[Federal Register Volume 66, Number 61 (Thursday, March 29, 2001)]
[Rules and Regulations]
[Pages 17083-17087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7668]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 010112012-1070-02; I.D. 011101B]
RIN 064-A082


Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea 
Lion Protection Measures for the Groundfish Fisheries Off Alaska; Final 
2001 Harvest Specifications and Associated Management Measures for the 
Groundfish Fisheries Off Alaska

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

ACTION: Amendments to an emergency interim rule; request for comments.

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SUMMARY: NMFS amends an emergency interim rule implementing 2001 
Steller sea lion protection measures and harvest specifications for the 
groundfish fisheries off Alaska. These modifications relax fishing 
restrictions on vessels fishing for groundfish off Alaska with jig gear 
and on vessels less than 60 ft (18.3 m) length overall (LOA) fishing 
for Pacific cod with hook-and-line or pot gear in the Bering Sea and 
Aleutian Islands management area (BSAI). The intended effect of this 
emergency interim rule is to relieve specified restrictions implemented 
by the 2001 Steller sea lion protection measures on the small boat 
fleet, while continuing to provide protection to Steller sea lions and 
their critical habitat and to conserve and manage the groundfish 
resources in the BSAI and the Gulf of Alaska (GOA) in accordance with 
the Magnuson-Stevens Fishery Conservation and

[[Page 17084]]

Management Act (Magnuson-Stevens Act) and section 209 of Pub. L. 106-
554.

DATES: Effective March 23, 2001, through July 17, 2001, except that 50 
CFR 679.22(a)(15) and (b)(8), which will be effective on 1200 hours 
(noon) A.l.t., June 10, 2001, through July 17, 2001. Comments must be 
received by April 23, 2001.

ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Gravel, or delivered to 
room 401 of the Federal Building, 709 West 9th Street, Juneau, AK. 
Comments will not be accepted if submitted via email or Internet.
    Copies of the November 30, 2000, Biological Opinion and Incidental 
Take Statement on Authorization of the BSAI groundfish fisheries based 
on the Fishery Management Plan for the Groundfish Fishery of the Bering 
Sea and Aleutian Islands and Authorization of the GOA groundfish 
fisheries based on the Fishery Management Plan for Groundfish of the 
Gulf of Alaska (Comprehensive Biological Opinion), including the 
Reasonable and Prudent Alternative (RPA), may be obtained from the same 
address. The Comprehensive Biological Opinion is also available on the 
NMFS Alaska Region home page at http:// www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, Sustainable Fisheries 
Division, Alaska Region, 907-586-7459 or email at 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone off Alaska under the Fishery Management Plan 
for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area 
and the Fishery Management Plan for Groundfish of the Gulf of Alaska 
(FMPs). The North Pacific Fishery Management Council (Council) prepared 
the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 
1801, et seq. Regulations governing U.S. fisheries and implementing the 
FMPs appear at 50 CFR parts 600 and 679. NMFS also has management 
responsibility for certain threatened and endangered species, including 
Steller sea lions, under the Endangered Species Act of 1973 (ESA), 16 
U.S.C. 1531, et seq., and the authority to promulgate regulations to 
enforce provisions of the ESA to protect such species.

Background

    On January 22, 2001, NMFS published an emergency rule that 
established 2001 harvest specifications for the BSAI and GOA groundfish 
fisheries and implemented 2001 Steller sea lion protection measures for 
these fisheries (66 FR 7276). These protection measures initiated a 
one-year phase-in of the RPA developed in the Comprehensive Biological 
Opinion (see ADDRESSES). NMFS determined that the 2001 protection 
measures provided a sufficient degree of protection to endangered 
Steller sea lions within the one-year time period and were consistent 
with the intended purpose of the RPA, the ESA, and with section 209 of 
Public Law 106-554. This statute, enacted on December 21, 2000, was 
intended to provide for independent scientific review and additional 
public and Council assessment of the Comprehensive Biological Opinion 
and the RPA prior to full implementation of the RPA in 2002.
    The January 22, 2001, emergency rule extended the Steller sea lion 
protection measures that were in place during 2000 for the BSAI Atka 
mackerel fisheries and the BSAI and GOA pollock fisheries, and also 
implemented several new measures. A complete description and 
justification of the 2001 Steller sea lion protection measures are 
discussed in the preamble to the January 22, 2001, emergency rule (66 
FR 7276). These measures are summarized below:
    1. No transit zones within 3 nautical miles (nm) of 37 rookery 
sites;
    2. Closure within 10 or 20 nm of 37 rookeries to all trawling year-
round;
    3. Closure to pollock fishing within 10 or 20 nm of 75 haulouts, 
seasonally or year-round based on use by sea lions;
    4. In the Bering Sea pollock fishery: (a) four seasons with harvest 
limits within Steller sea lion critical habitat foraging areas; and (b) 
two seasons (40:60 percent allocation) outside critical habitat;
    5. Continuation of Bering Sea pollock fishery cooperatives 
established under the American Fisheries Act;
    6. Gulf of Alaska pollock fishery distributed over four seasons 
(30:15:30:25 percent allocation);
    7. Closure of the Aleutian Islands to pollock fishing;
    8. Atka mackerel fishery measures include a vessel monitoring 
system requirement, continuation of two equal seasons, and restrictions 
on harvests in critical habitat;
    9. Closure of the groundfish fishery to federally permitted vessels 
within 3 nm of more than 75 important haulout sites identified under 
established criteria;
    10. Two fishing seasons for BSAI and GOA Pacific cod, January 1 to 
June 10 (60 percent of the total allowable catch (TAC)) and June 11 to 
December 31 (40 percent of the TAC);
    11. Reduction of the allowable catch for Gulf of Alaska pollock 
from the Council's recommended 2001 level by 10 percent; and
    12. The 2001 Bering Sea pollock harvests in the Steller sea lion 
conservation area (SCA) are limited to no more than the metric ton 
amount authorized in the final 2000 harvest specifications.
    In addition, the emergency rule implemented the closed areas 
contained in the RPA on June 10, 2001, for the pollock, Pacific cod, 
and Atka mackerel fisheries. The Council is in the process of 
considering modifications to these closures.
    At its February 2001 meeting and in a subsequent letter to the 
Secretary of Commerce, the Council requested that NMFS review statutory 
language at section 209(c)(6) of Pub. L. 106-554 to assess whether the 
2001 Steller sea lion protection measures could be modified consistent 
with the intent of this statute. Section 209(c)(6) provides that
    [i]n enforcing regulations for the 2001 fisheries, the Secretary 
[of Commerce], upon recommendation of the North Pacific [Fishery 
Management] Council, may open critical habitat where needed, adjust 
seasonal catch levels, and take other measures as needed to ensure 
that harvest levels are sufficient to provide income from these 
fisheries for small boats and Alaska on-shore processors that is no 
less than in 1999.
    Specifically, the Council requested NMFS to consider the following 
measures for modification to the January 22, 2001, emergency rule under 
the section 206(c)(6) of Pub. L. 106-554:
    1. In the GOA, allow fishing except for 10 nm closures around those 
haulouts and rookeries listed in the current emergency rule;
    2. In the BSAI, allow fishing to continue as it did under the 2000 
Steller sea lion protection measures in place prior to the fishery 
injunction issued by the Federal court in Greenpeace v. NMFS, 106 F. 
Supp 2d 1066 (W.D. Wash 2000);
    3. Allow 100 percent of Pacific cod TAC to be released, beginning 
January 1, 2001;
    4. Allow 2001 removals in the Bering Sea Steller sea lion 
conservation areas using the identical percentage of TAC as was 
specified in 2000, rather than limiting catch within the SCA by a fixed 
metric ton limit;
    5. Exempt the BSAI Pacific cod jig fishery from the Steller sea 
lion protection measures; exempt vessels less than 60 ft (18.3 m) LOA 
that are fishing the fixed gear cod allocation around Akutan and 
Unalaska from the Steller sea lion protection measures;

[[Page 17085]]

    6. Defer until 2002 the closure areas scheduled to be implemented 
on June 10, 2001; and
    7. Consider any other measures that will meet the intent of Public 
Law 106-554 section 209(c)(6).
    NMFS considered the Council's requests and determined that any 
change to the 2001 Steller sea lion protection measures must be 
consistent with the ESA, must not pose conservation concerns or differ 
sufficiently from the 2001 protection measures to require a new 
consultation under section 7 of the ESA, and must be implemented by 
rulemaking. Based on these considerations, NMFS is implementing 
modifications to the 2001 Steller sea lion protection measures with 
this emergency rule. A summary of NMFS' determinations on each of the 
seven Council requests are discussed below.
    1. In the GOA, allow fishing except for 10 nm closures around those 
haulouts and rookeries listed in the current emergency rule. Under the 
January 22, 2001, emergency rule, eight GOA rookeries or haulouts are 
closed to directed fishing for pollock within 20 nm until June 10, 
2001. This measure is unchanged from the 2000 Steller sea lion 
protection measures. Directed fishing for groundfish by federally 
permitted vessels also is prohibited within 3 nm of important haulouts.
    The Council has established a new committee (RPA Committee) to 
assess the Comprehensive Biological Opinion and resulting RPA, 
including the scheduled June 10 closure/opening of critical habitat 
areas. The RPA Committee is expected to recommend to the Council 
changes to the June 10 closures that are consistent with the 
Comprehensive Biological Opinion. The Council has commenced a process 
to develop modifications to closed areas in consideration of impacts on 
small boats and coastal communities. Therefore, NMFS will not modify 
the open/closed critical habitat areas at this time. Recommendations by 
the RPA Committee for modified closed areas are scheduled to be 
considered by the Council at its April 2001 meeting. If approved by 
NMFS, modifications could be implemented by July 17, 2001, when the 
January 22, 2001, emergency rule expires.
    2. In the BSAI, allow fishing as per the 2000 Steller sea lion 
protection measures in place prior to the injunction. NMFS has 
determined that the Steller sea lion protection measures in effect 
immediately before the injunction provide inadequate protection for 
Steller sea lions and their critical habitat. This request by the 
Council would remove all protection measures implemented for the 
Pacific cod fisheries, as well as other protection measures, in a 
manner that would be inconsistent with the ESA.
    3. Allow 100 percent of Pacific cod TAC to be made available for 
harvest beginning January 1, 2001. NMFS has determined that a single 
season for the Pacific cod fisheries would provide inadequate 
protection for Steller Sea lions and their critical habitat. NMFS has 
determined that this measure would remove nearly all 2001 protection 
measures implemented for the Pacific cod in a manner that would be 
inconsistent with the ESA.
    4. Allow 2001 removals in the Bering Sea Steller sea lion 
conservation area using the identical percentage of the TAC as was 
authorized in 2000, rather than limiting catch within the area with a 
fixed metric ton limit. NMFS agrees that an adjustment to the SCA 
harvest limit can be considered. However, such an adjustment could pose 
environmental concerns that should be assessed in a deliberative manner 
that is not conducive to the timing of this emergency rule. Further, 
any benefits to the Bering sea pollock roe fishery likely could not be 
realized given that this emergency rule will become effective after the 
2001 pollock roe season concludes, probably by late March. Nonetheless, 
an adjustment to the SCA harvest limit based on a percentage of TAC 
proportional to seasonal biomass distribution could be considered by 
the Council and NMFS for the second half of 2001. Any such 
recommendation by the Council and approved by NMFS could be implemented 
as part of the Steller sea lion protection measures implemented by July 
17, 2001, for the remainder of 2001.
    5a. Exempt the BSAI Pacific cod jig fishery from the Steller sea 
lion protection measures.  NMFS agrees to exempt vessels using jig gear 
from most of the 2001 Steller sea lion protection measures. The 
relatively small harvests of Pacific cod and Atka mackerel by the jig 
gear fleet during the 2001 RPA phase-in pose little concern to Steller 
sea lions and their critical habitat.
    The jig gear fleet largely is composed of vessels less than 60 ft 
(18.3 m) LOA. In 2000, jig gear vessels in the BSAI harvested no Atka 
mackerel and only 77 mt of Pacific cod. For comparison, the BSAI 2001 
Acceptable Biological Catch (ABC) specifications for Atka mackerel and 
Pacific cod are 69,300 mt and 188,000 mt, respectively. In the GOA, jig 
gear vessels harvested 42 mt of Pacific cod during the Federal waters 
fishery. For comparison, the GOA 2001 ABC for Pacific cod is 67,800 mt.
    Under this amendment to the January 22, 2001, emergency rule, 
federally permitted vessels using jig gear will be permitted to fish 
within 3 nm of important haulouts and in closed Steller sea lion 
management areas after June 10, 2001. However, no-transit zones around 
rookeries will remain in place for all vessels and gear types. The 
seasonal apportionment of the Pacific cod TAC will continue to apply to 
vessels fishing with jig gear in the GOA because a separate gear 
allocation does not exist that would facilitate separate treatment of 
these vessels. In contrast, jig gear vessels in the BSAI have a 
separate allocation of the Atka mackerel and Pacific cod total TACs. 
Elimination of the seasonal apportionments of the jig gear allocations 
of Pacific cod will be implemented consistent with Council intent.
    5b. Exempt vessels less than 60 ft (18.3 m) LOA that are fishing 
the fixed gear Pacific cod allocation around Akutan and Unalaska from 
the Steller sea lion protection measures. NMFS has determined that this 
exemption can be implemented in all areas of the BSAI without concern 
for Steller sea lions and their critical habitat. The amount of Pacific 
cod harvested in 2000 in the BSAI by these small vessels using fixed 
gear was 501 mt, which, by comparison, amounts to only 0.3 percent of 
the 2001 Pacific cod ABC (188,000 mt).
    However, the amount of GOA Pacific cod harvested in 2000 by small 
vessels using fixed gear was 11,260 mt, which is 16.6 percent of the 
2001 Pacific cod ABC (67,800 mt). Given this large of a percentage 
harvested, NMFS cannot exempt the GOA fixed gear fleet less than 60 ft 
(18.3 m) LOA without further analysis of impact on Steller sea lions 
and their critical habitat, which will be forthcoming within the next 
several months. Council and agency analysts currently are assessing the 
historic groundfish harvest by these vessels in different critical 
habitat areas for future consideration by the Council when assessing 
alternative Steller sea protection measures for implementation in 2002 
and beyond.
    6. Defer until 2002 the closure areas scheduled to be implemented 
on June 10, 2001. NMFS will not change the open/closed critical habitat 
areas prior to the completion of the Council process described above 
(See response to item 1).
    7. Any other measures that will meet the intent of Pub. L. 106-554 
section 209(c)(6). At this time, NMFS will not implement any other 
changes to the 2001 Steller sea lion protection measures. Additional 
changes may be considered for the second half of 2001

[[Page 17086]]

under a separate emergency rule that will extend the 2001 protection 
measures through the end of 2001. Adjustment of 2001 Harvest 
Specifications
    On page 7288, Table 7 to the preamble, published in the emergency 
rule January 22, 2001 (66 FR 7276), is revised as set forth below. This 
revision results from the removal of seasonal harvest limits for the 
BSAI Pacific cod jig gear fleet and vessels participating in the 
directed fishery for BSAI Pacific cod using fixed gear and that are 
less than 60 ft (18.3 m) LOA.

                                   Table 7.-- 2001 Gear Shares and Seasonal Apportionments of the BSAI Pacific Cod TAC
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Subtotal                                 Seasonal apportionment\2\
                                                                 Share\1\    percentages     Share of gear   -------------------------------------------
                    Gear sector                       Percent      (mt)       for gear        sector total                                        Amount
                                                                               sectors            (mt)                       Date                  (mt)
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Total hook-and-line and pot gear allocation of              51     88,689  ..............  .................  ..................................  ......
 Pacific cod TAC
Incidental Catch Allowance                           .........  .........  ..............                500  ..................................  ......
  Processor and Vessel sub-total                     .........  .........  ..............             88,189  ..................................  ......
  Hook-and-line Catcher Processors                   .........  .........              80             70,551  ..................................  ......
  Hook-and-line Catcher                              .........  .........              80             70,551                     Jan 1 to Jun 10  42,331
                                                                                                                                Jun 10 to Dec 31  28,220
  Hook-and-Line Catcher Vessels                      .........  .........             0.3                265                     Jan 1 to Jun 10  159
                                                                                                                                Jun 10 to Dec 31  106
  Pot Gear Vessels                                   .........  .........            18.3             16,139                     Jan 1 to Jun 10  9,683
                                                                                                                                Jun 10 to Dec 31  6,455
Catcher Vessels  60 feet (18.3 m) LOA using Hook-    .........  .........             1.4              1,235  ..................................  ......
 and-line or Pot gear
Trawl gear Total                                            47     81,733  ..............  .................  ..................................  ......
  Trawl Catcher Vessel                               .........  .........              50             40,867                     Jan 1 to Jun 10  24,520
                                                                                                                                 Jun10 to Dec 31  16,347
  Trawl Catcher Processor                            .........  .........              50             40,867                     Jan 1 to Jun 10  24,520
                                                                                                                                 Jun10 to Dec 31  16,347
Jig                                                          2      3,478  ..............  .................  ..................................  ......
                                                    ----------------------------------------------------------------------------------------------------
Total                                                .........  .........  ..............            173,900  ..................................  ......
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\1\The reserve has been released for Pacific cod see (Table 4).
\2\2 The first season is allocated 60 percent of the TAC and the second season is allocated 40 percent of the TAC. Any unused portion of the first
  seasonal Pacific cod allowance will be reapportioned to the second seasonal allowance.

Classification

    The Administrator, Alaska Region, NMFS (Regional Administrator), 
has determined that this rule is necessary for the conservation and 
management of the groundfish fisheries of the BSAI and GOA. The 
Regional Administrator also has determined that this amended emergency 
rule is consistent with the Magnuson-Stevens Act and other applicable 
laws.
    This action has been determined to be not significant for purposes 
of Executive Order 12866. This rule contains no reporting, 
recordkeeping, or compliance requirements, and no relevant Federal 
rules exist which may duplicate, overlap, or conflict with this action.
    This amended emergency rule is intended to enact section 209(c)(6) 
of Public Law 106-554 in a manner that is consistent with the ESA. This 
action relieves restrictions on the use of jig or fixed gear by certain 
vessels, and immediate implementation will result in economic benefits 
to those vessels, while presenting no significant harm to Steller sea 
lions. Accordingly, it would be contrary to the public interest to 
provide prior notice and an opportunity for public comment. Therefore, 
good cause exists to waive those requirements pursuant to 5 U.S.C. 
553(b)(2). Moreover, because this rule is not subject to the 
requirement to provide notice or an opportunity for comment 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., are not applicable. Therefore, 
no initial or final regulatory flexibility analysis has been prepared.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: March 23, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, national Marine Fisheries 
Service.

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

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

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

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Title II of Division C, Pub.L. 10-277; Sec. 3027, Pub. L. 106-31; 
113 Stat. 57; 16 U.S.C. 1540(f); and Sec. 209, Pub. L. 106-554.

    2. In Sec.  679.22, paragraphs(a)(13) and (b)(6) are suspended, and 
paragraphs (a)(14), (a)(15), (b)(7) and (b)(8) are added to read as 
follows:


Sec.  679.22  Closures.

    (a) * * *
    (14) No fishing zones. Until 1200 hours, A.l.t., June 10, 2001, 
except for vessels described in paragraphs (a)(14)(i) and (ii) of this 
section, directed fishing for groundfish by all federally permitted 
vessels is prohibited within 3 nm of selected Steller sea lion haulout 
sites in the BSAI. These sites are listed in Table 21 to this part and 
are identifiable by a designation ``Bering

[[Page 17087]]

Sea'' or ``Aleutian Islands'' in column 2, ``H'' or ``RPA'' in column 
7, and ``Y'' in column 14. After 1200 hours, A.l.t., June 10, 2001, 
refer to paragraph (a)(11)(v) of this section for fishing prohibitions 
in the Bering Sea subarea and the Bogoslof district and paragraph 
(a)(12)(v) of this section for fishing prohibitions in the Aleutian 
Islands subarea.
    (i) Vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line 
gear.
    (ii) Vessels using jig gear.
    (15) Applicable 1200 hours A.l.t., June 10, 2001, through July 17, 
2001, vessels using jig gear and vessels less than 60 ft (18.3 m) LOA 
using pot or hook-and-line gear are exempt from the prohibitions 
described in paragraphs (a)(11)(v)(B), (a)(11)(v)(C), (a)(12)(v)(B) and 
(a)(12)(v)(C) of this section.
* * * * *
    (b) * * *
    (7) No fishing zones. Until 1200 hours, A.l.t., June 10, 2001, 
except for vessels using jig gear, directed fishing for groundfish by 
all federally permitted vessels is prohibited within 3 nm of selected 
Steller sea lion haulout sites in the GOA west of 144 deg. W. 
longitude. These sites are listed in Table 21 to this part and are 
identifiable by a designation ``Gulf of Alaska'' in column 2, ``H'' or 
``RPA'' in column 7, and ``Y'' in column 14. After 1200 hours, A.l.t., 
June 10, 2001, refer to paragraph (b)(3)(iv) of this section for 
fishing prohibitions.
    (8) Applicable 1200 hours A.l.t., June 10, 2001, through July 17, 
2001, vessels using jig gear are exempt from the prohibitions described 
in paragraphs (b)(3)(iv)(B) and (b)(3)(iv)(C) of this section.
* * * * *

    3. In Sec.  679.23, paragraph (e)(6)(i) is suspended and paragraph 
(e)(6)(iii) is added to read as follows:


Sec.  679.23  Seasons.

* * * * *
    (e) * * *
    (6) * * *
    (iii) Fixed gear. Except for vessels using jig gear and for vessels 
less than 60 ft (18.3 m) LOA using pot and hook-and-line gear, subject 
to other provisions of this part, directed fishing for Pacific cod with 
fixed gear in the BSAI is authorized only during the following two 
seasons:
    (A) A season. From 0001 hours, A.l.t., January 1, through 1200 
hours, A.l.t., June 10; and
    (B) B season. From 1200 hours, A.l.t., June 10, through 2400 hours, 
A.l.t., December 31.
* * * * *
[FR Doc. 01-7668 Filed 3-23-01; 4:30 pm]
BILLING CODE 3510-22-S