[Federal Register Volume 66, Number 114 (Wednesday, June 13, 2001)]
[Rules and Regulations]
[Pages 31845-31849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14894]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 010112013-1139-04; I.D. 011101B]
RIN 0648-A082


Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea 
Lion Protection 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.

-----------------------------------------------------------------------

SUMMARY: NMFS amends an emergency interim rule implementing 2001 
Steller sea lion protection measures. These modifications prohibit 
directed fishing for Pacific cod by specified vessels until the July 
17, 2001, expiration of that emergency interim rule. It is expected

[[Page 31846]]

that NMFS will undertake further rulemaking by that date to establish 
new fishing seasons for the Pacific cod fisheries and other Steller sea 
lion protection measures for the second half of 2001. This current 
action is intended to provide for orderly implementation of 2001 
Steller sea lion protection measures and is necessary to manage the 
groundfish fisheries off Alaska in a manner that continues to provide 
protection to Steller sea lions and their critical habitat in 
accordance with the Endangered Species Act (ESA), the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) and Pub. 
L. 106-554.

DATES: Effective 1200 hrs, Alaska local time (A.l.t.), June 10, 2001, 
through July 17, 2001. Comments must be received July 9, 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 e-mail or Internet.
    Copies of the November 30, 2000, Biological Opinion and Incidental 
Take Statement on Authorization of the Bering Sea and Aleutian Islands 
(BSAI) groundfish fisheries, based on the Fishery Management Plan for 
the Groundfish Fisheries 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: Sue Salveson, NMFS, 907-586-7228 or e-
mail 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 Fisheries 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 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 1-
year phase-in of the RPA developed in the Comprehensive Biological 
Opinion (see ADDRESSES) as directed under section 209 of Pub. L. 106-
554. This law was signed by the President on December 21, 2000, and 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. NMFS 
determined that the 2001 protection measures provided a sufficient 
degree of protection to endangered Steller sea lions during the 1-year 
phase-in period, were consistent with the intended purpose of the RPA, 
and allowed for the review or assessment called for in the ESA, and 
with section 209 of Pub. L. 106-554.
    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. The 
emergency rule also implemented several new measures, including two 
fishing seasons for GOA Pacific cod and for non-Community Development 
Quota (CDQ) Pacific cod in the BSAI. A complete description and 
justification of the 2001 Steller sea lion protection measures is 
discussed in the preamble to the January 22, 2001, emergency rule (66 
FR 7276).
    On March 23, 2001, NMFS amended the emergency rule to change 
fishing restrictions on vessels fishing for groundfish off Alaska with 
jig gear and on vessels less than 60 ft (18.3 meters (m)) length 
overall (LOA) fishing for BSAI Pacific cod with hook-and-line or pot 
gear (66 FR 17083, March 29, 2001). On March 20, 2001, NMFS also issued 
a correction to the January 22, 2001, emergency rule that addressed 
various technical and editorial errors (66 FR 15656, March 20, 2001).
    As mentioned previously, the January 22, 2001, emergency rule 
established two fishing seasons for the BSAI and GOA Pacific cod 
fisheries, January 1 to June 10 (60 percent of the total allowable 
catch (TAC)), and June 10 to December 31 (40 percent of the TAC), 
except that directed fishing for Pacific cod with trawl gear was 
prohibited after October 31, 2001. The March 23, 2001, emergency rule 
removed the season restrictions for the BSAI jig gear fisheries and 
BSAI vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line 
gear. Separate allocations of the BSAI Pacific cod TAC are established 
for these two groups of vessels under Sec. 679.20(a)(7)(i)(C) that 
facilitated separate seasonal fishing restrictions of this species. 
Justification for this relief of seasonal harvest constraints is 
discussed in the preamble to the March 23, 2001, emergency rule (66 FR 
17083).
    At its April 2001 meeting, the Council requested NMFS to issue an 
emergency rule establishing modified Steller sea lion protection 
measures for the second half of 2001 that would be implemented at the 
expiration of the January 22, 2001, emergency rule on July 17, 2001. 
NMFS is in the process of reviewing the Council's recommendation.
    In addition to recommending measures for the second half of 2001, 
the Council, at its April meeting, requested NMFS delay the June 10 
opening date of the GOA Pacific cod fishery and the BSAI Pacific cod 
fishery by vessels greater than 60 ft (18.3 m) LOA using pot or hook-
and-line gear. The Council's request was intended to promote management 
of the Alaska Pacific cod fisheries in a manner that would maintain the 
objective of 2001 Steller sea lion protection measures to avoid 
localized depletion of Pacific cod through temporal and spatial 
distribution of the directed fisheries for this species. The Council's 
requested season delays also would address salmon and Pacific halibut 
bycatch concerns. Other fishery management concerns addressed included 
poor product recovery and quality in summer months; competition with 
summer salmon fisheries for processing facilities; potential gear 
conflicts between pot and trawl gear fleets; and coordination between 
BSAI Pacific cod fisheries within the CDQ and non-CDQ sectors. 
Regulations to prohibit directed fishing for Pacific cod in the GOA and 
in the BSAI by vessels equal to or greaater than 60 ft (18.3) LOA using 
pot or hook-and-line gear must be effective by June 10, 2001, to meet 
the intent of the Council and to avoid industry confusion and a race 
for available Pacific cod TAC on this date.
    The Pacific cod seasons adopted by the Council and approved by NMFS

[[Page 31847]]

under this amendment to the January 22, 2001, emergency interim rule 
impose no seasonal harvest constraints for vessels fishing in the BSAI 
using jig gear, for vessels less than 60 ft LOA using pot or hook-and-
line gear, or for vessels participating in the CDQ fisheries. These 
vessels were addressed in the March 23 amendment to the January 22 
emergency rule. The Council's recommended start dates for the second 
Pacific cod season in 2001 for other Pacific cod sectors are listed 
here:

------------------------------------------------------------------------
   PACIFIC COD FISHERY SECTOR*         SECOND SEASON OPENING DATE OF
----------------------------------    DIRECTED FISHING FOR PACIFIC COD
                                  --------------------------------------
                                     June 10     August 15   September 1
------------------------------------------------------------------------
Gulf of Alaska All gear types                                          X
Bering Sea and Aleutian Islands-             X
 All trawl
Bering Sea and Aleutian Islands                                        X
 Pot vessels 60 ft LOA
Bering Sea and Aleutian Islands                           X
 Vessels  60 ft LOA using hook-
 and-line gear
------------------------------------------------------------------------
* Seasonal harvest constraints are not established for BSAI vessels
  using jig gear, BSAI vessels less than 60 ft (18.3 m) LOA using pot or
  hook-and-line gear, or for vessels participating in the CDQ fisheries.

    The purpose of this amendment to the existing emergency interim 
rule is to support the Council's management intentions for the Pacific 
cod season delays through prohibitions on directed fishing for Pacific 
cod by specified vessels as of June 10. These closures will remain 
effective until the expiration of the January 22 emergency rule. An 
expected upcoming rule will establish new opening dates for the second 
Pacific cod season for different harvesting sectors. The justification 
for the fishery closures implemented under this amendment to the 
January 22 emergency rule follows.
    The Council recommended that the second season opening date for the 
GOA Pacific cod fisheries be delayed from June 10 to September 1. 
Except for an allocation between inshore and offshore sectors under 
Sec. 679.20(a)(6)(iii), the GOA Pacific cod TAC is not allocated among 
different gear sectors that would facilitate separate treatment of 
vessels using jig, pot, hook-and-line, or trawl gear. Thus, the 
Council's intent was to delay the second season for vessels using any 
gear type.
    The Council recommended a season delay to September 1 in 
consideration of the fact that only 40 percent of the 2001 TAC remains 
for the remainder of the year, that the fishery would not be 
sufficiently compromised to the extent it would effect foraging Steller 
sea lions, and that trawl fishing would continue to be prohibited after 
October 31 to eliminate the potential of relatively high volume harvest 
amounts during winter months.
    Further, a September 1 opening date for the second GOA Pacific cod 
season also would address concerns for salmon bycatch in the June and 
July trawl fisheries that could increase significantly if the Pacific 
cod fishery were to open June 10. Specifically, chum salmon move 
through the Gulf of Alaska and concentrate in Aleutian Island passes on 
their way to Western Alaska spawning grounds. During this time, they 
are vulnerable to interception in other fisheries, including GOA 
groundfish trawl fisheries. In the January 22 emergency interim rule 
that established NMFS' intent for 2001 Steller sea lion conservation 
measures, NMFS anticipated that the summer GOA pollock fishery would be 
delayed to August 20, thus avoiding the potential for significant 
salmon bycatch and the Council desired the same mitigation for the GOA 
Pacific cod trawl fisheries.
    Finally, Pacific halibut bycatch rates in both the trawl and hook-
and-line gear fisheries for GOA Pacific cod would increase 
significantly in summer months when halibut move into shallower waters 
where the cod fisheries typically are conducted. Furthermore, catch-
per-unit of effort for Pacific cod is low at this time of year when 
fish are dispersed, and fishing gear is in the water for a longer 
period of time and has greater opportunity for increased incidental 
catch rates of prohibited species. The flesh quality and product 
recovery of Pacific cod also is relatively low in summer months, when a 
target fishery generally has been avoided in favor of other times of 
the year when harvest and revenues would be more optimal. Last, GOA 
processing capacity for groundfish in summer months is constrained by 
processing needs of the salmon industry and these competing uses of 
processing facilities would be avoided by the proposed delay of the 
Pacific cod fishery until early September when the salmon fisheries 
generally have concluded.
    The Council also requested a delay of the second season opening 
date of the BSAI hook-and-line catcher/processor and catcher vessel 
fisheries for Pacific cod from June 10 until August 15. In taking this 
action, the Council recognized that NMFS already has implemented the 
2001 seasonal apportionment of the non-trawl Pacific halibut bycatch 
limit in a manner that currently delays the BSAI hook-and-line Pacific 
cod fisheries to August 1. The additional delay from August 1 to August 
15 was adopted by the Council to maintain temporal distribution of the 
fishery consistent with the objectives of existing Steller sea lion 
protection measures, while minimizing high halibut bycatch rates during 
summer months. This delay also reduces the potential for interaction of 
the hook-and-line gear fisheries with the endangered short-tailed 
albatross and other seabird species during summer months. Finally, this 
delay provides additional opportunity for the harvest of CDQ Pacific 
cod with hook-and-line gear to the extent that fishing for CDQ Pacific 
cod would occur in summer months prior to the start of the non-CDQ 
fisheries when partner vessels contracted to harvest or process CDQ 
Pacific cod become less available.
    Finally, the Council requested a June 10 to September 1 delay in 
the second season opening date for the BSAI Pacific cod pot gear 
fishery by vessels equal to or greater than 60 ft (18.3 m) LOA. This 
action was requested in recognition that the amount of BSAI Pacific cod 
that remains to be harvested by these vessels in the second season 
represents less than 2 percent of the BSAI Pacific cod TAC. The Council 
also recognized that harvest removals by this gear type are slow paced 
and are unlikely to effect Steller sea lions in a manner not already 
considered by NMFS when it implemented the 2001 Steller sea lion 
protection measures. This season delay for the pot gear fleet also is 
intended by the Council to help avoid gear conflicts with the 
groundfish trawl fisheries.

[[Page 31848]]

    The June 10 second season opening date for BSAI Pacific cod 
harvested by trawl vessels remains unchanged to maintain overall 
spatial and temporal distribution of the BSAI Pacific cod fisheries. 
Potential bycatch concerns ensuing from a summer trawl effort for 
Pacific cod was assumed by the Council to be self limiting due to low 
summer catch rates and the fleets' avoidance of high Pacific halibut 
bycatch rates that could preempt more lucrative fall fishing. Salmon 
bycatch in the non-pollock trawl fisheries typically has not posed a 
concern given that summer trawl fisheries typically are limited due to 
halibut bycatch concerns and restrictions. These fisheries also tend to 
operate on fishing grounds that avoid high bycatch rates of salmon.
    NMFS has assessed the Council's request for delay of the second 
season opening date for Pacific cod by specified sectors relative to 
the objective of distributing Pacific cod fisheries in time and space 
to minimize fishery competition with Steller sea lion foraging success. 
The season delay only affects the BSAI Pacific cod pot and hook-and-
line gear fisheries and the GOA Pacific cod fisheries. These fisheries 
will be limited to 40 percent of their 2001 Pacific cod TAC 
allocations. Any existing seasonal constraints for the BSAI trawl, jig, 
CDQ, and small vessel pot or hook-and-line fisheries for Pacific cod 
are unchanged. The BSAI Pacific cod pot gear allocation for the 
remainder of year totals less than 5,000 metric tons (mt). The 
magnitude and expected rate of removal by this gear type starting on 
September 1 for the remainder of 2001 does not pose concern for 
disproportionate removals of Pacific cod in critical habitat areas. The 
hook-and-line gear harvest of BSAI Pacific cod during the second season 
starting on August 15 historically is spread spatially in a manner that 
does not pose concern for disproportionate removal in Steller sea lion 
critical habitat. Further, the maximum historical weekly harvest rate 
by this sector in recent years (less than 5,600 mt) is sufficiently low 
as to not pose undue concern for prey competition with Steller sea 
lions during the 2001 phase-in year of the RPA.
    The GOA Pacific cod fishery during the delayed second season would 
continue to be limited to 40 percent of the annual TAC and regulatory 
provisions will remain unchanged for the closure of the directed 
fishery by trawl vessels after October 31, 2001. Weekly catch rates of 
GOA Pacific cod are anticipated to be low during the second season 
given that Pacific cod are not aggregated in a manner conducive to 
intense harvest effort and removals.
    Based on these determinations, NMFS finds that the compressed 
duration of the second Pacific cod season for the GOA fisheries and the 
BSAI pot and hook-and-line gear fisheries and the rate of removal of 
the remaining Pacific cod allocated to these fisheries are of 
sufficiently small temporal scale and impact as to not pose concern for 
a disproportionate rate of harvest removal. Thus, the effects of this 
amendment to the January 22, 2001, emergency interim rule on the 
ability of Steller sea lions to forage on available Pacific cod would 
not be compromised to the extent that the compressed seasons would lead 
to any effect that has not been previously considered in the 
implementation of the January 22, 2001, emergency rule, including any 
increased takes of Steller sea lions or any other species listed under 
the ESA.
    This action also addresses prohibited species bycatch concerns. The 
second season delay for the BSAI hook-and-line and pot gear fisheries 
and the GOA fishery by any gear type is advisable in consideration of 
salmon, seabird, and Pacific halibut bycatch concerns, as well as 
general management of competing BSAI fisheries using the same fishing 
platforms (CDQ vs non-CDQ Pacific cod fisheries) and fishing grounds 
(pot gear vs non-pot gear).

Classification

    The Administrator, Alaska Region, NMFS (Regional Administrator), 
has determined that this emergency interim 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 emergency 
interim 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 emergency interim rule contains no 
reporting, recordkeeping, or compliance requirements, and no relevant 
Federal rules exit which may duplicate, overlap, or conflict with this 
action.
    This amended emergency interim rule is consistent with the 
objectives for Steller sea lion protection measures implemented in 2001 
under section 209(c)(6) of Pub. L. 106-554, the ESA, and other 
applicable laws. This action also will minimize bycatch rates of salmon 
and Pacific halibut in the Pacific cod fisheries while providing for 
continued temporal distribution of the Pacific cod fisheries. As such, 
the opportunity for harvest of Pacific cod will be optimized under 
prohibited species catch restrictions and the desire to avoid high 
bycatch rates of chum salmon in the GOA groundfish fisheries. The 
short-term directed fishing prohibitions implemented under the amended 
emergency interim rule must be effective by June 10, 2001, to realize 
the intent of the Council and NMFS and avoid more long-term fishery 
closures that could occur if the fishery were to be conducted when 
bycatch rates are high and cod catch rates are low. Thus, this action 
must be implemented as soon as practical and in a manner that makes 
impracticable prior opportunity for notice and public comment. 
Therefore, good cause exists to waive those requirements pursuant to 5 
U.S.C. 553(b)(3). For the same reason, good cause exists to waive the 
30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3). Because 
this emergency interim rule is not subject to the requirement to 
provide notice or an opportunity for comment by 5 U.S.C. 553 or any 
other laws, the analytical requirements of the Regulatory Flexibility 
Act, 5 U.S.C. 601et seq. are not applicable. Thus, 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: June 7, 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 section 209, Pub. L. 106-554.

    2. In Sec. 679.23, paragraphs (d)(4) and (e)(6)(iii) are suspended 
and paragraphs (d)(5) and (e)(6)(iv) are added to read as follows:


Sec. 679.23  Seasons.

* * * * *
    (d) * * *
    (5) Directed fishing for Pacific cod. Directed fishing for Pacific 
cod in the Western and Central Regulatory Areas is prohibited.
    (e) * * *
    (6) * * *

[[Page 31849]]

    (iv) Nontrawl gear. Subject to other provisions of this part, 
directed fishing for Pacific cod with non-trawl gear is authorized as 
follows:
    (A) Vessels using jig gear and vessels less than 60 ft (18.3 m) LOA 
using pot or hook-and-line gear. From 0001 hours A.l.t., January 1, 
through 2400 hours, A.l.t., July 17.
    (B) Vessels equal to or greater than 60 ft (18.3 m) and using pot 
or hook-and-line gear. Directed fishing is prohibited.
[FR Doc. 01-14894 Filed 6-8-01; 4:20 pm]
BILLING CODE 3510-22-S