[Federal Register Volume 68, Number 32 (Tuesday, February 18, 2003)]
[Proposed Rules]
[Pages 7750-7760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3589]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030128021-3021-01; I.D. 121602A]
RIN: 0648-AQ45


Fisheries of the Exclusive Economic Zone Off Alaska; Opening 
Waters to Pacific Cod Pot Fishing off Cape Barnabas and Caton Island

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

ACTION: Proposed rule.

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SUMMARY: NMFS issues a proposed rule to open waters to Pacific cod pot 
fishing around Cape Barnabas and Caton Island located in the Gulf of 
Alaska (GOA). Waters out to 3 nautical miles (nm) around these sites 
are currently closed to Pacific cod fishing by federally permitted 
vessels as a Steller sea lion protection measure. State of Alaska 
regulations do not implement these same closures in State waters. This 
action is necessary to provide consistency between State and Federal 
fishing restrictions and to relieve a potential burden on the Pacific 
cod pot fishing sector. The regulatory amendment is intended to meet 
the objectives in the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) and further the goals and 
objectives of the Fishery Management Plan for Groundfish of the Gulf of 
Alaska (FMP).

DATES: Comments on the proposed rule must be received on or before 
March 20, 2003.

ADDRESSES: Comments should be sent to Sue Salveson, Assistant Regional 
Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK 99802-1668, Attn: Lori Durall, or delivered to the 
Federal Building, 709 W 9th St., Juneau, Alaska. Comments may also be 
faxed to 907-586-7557, marked Attn: Lori Durall. Copies of the 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (EA/RIR/IRFA) prepared for this action and the 
Steller sea lion supplemental environmental impact statement (SEIS) may 
also be obtained from the same address, from the Alaska Region, NMFS, 
Web site at http://www.fakr.noaa.gov, or by calling the Alaska Region, 
NMFS, at 907-586-7228.

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FOR FURTHER INFORMATION CONTACT: Melanie Brown, (907) 586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the domestic groundfish 
fisheries of the GOA under the FMP. The North Pacific Fishery 
Management Council (Council) prepared the FMP under the Magnuson-
Stevens Act. Regulations governing the groundfish fisheries of the GOA 
appear at 50 CFR parts 600 and 679.
    At its October 2001 meeting, the Council recommended Steller sea 
lion (SSL) protection measures for 2002 and beyond. These measures were 
developed by a Council-appointed committee (hereafter referred to as 
the SSL Committee but was formerly called the ``RPA Committee''). In 
developing its recommendations, the SSL Committee first assessed the 
needs of Steller sea lions to avoid jeopardy to their continued 
existence or destruction or adverse modification of their critical 
habitat based on the best scientific information available. The SSL 
Committee then crafted groundfish fisheries management measures that 
provided adequate protection for Steller sea lions in compliance with 
the Endangered Species Act (ESA).
    These recommendations included a revised harvest control rule for 
pollock, Pacific cod, and Atka mackerel; closed areas and seasons based 
on the location, fishery, and gear type; critical habitat harvest 
limits for the pollock and Atka mackerel fisheries in certain areas of 
critical habitat; and requirements to allow for monitoring of pollock, 
Pacific cod, and Atka mackerel directed fishing. The recommendations of 
the SSL Committee were further modified by the Council. The complete 
set of recommendations by the Council is detailed in the preamble to 
the emergency interim rule implementing Steller sea lion protection 
measures and groundfish harvest specifications in 2002 (67 FR 956, 
January 8, 2002).
    NMFS formally consulted under section 7 of the ESA on the Steller 
sea lion protection measures. A biological opinion (2001 BiOp) was 
appended to the Steller sea lion SEIS which evaluated the effects of 
the preferred alternative on ESA listed species (see ADDRESSES). The 
agency determined in the 2001 BiOp that the protection measures 
proposed by the Council were not likely to jeopardize the continued 
existence of the western distinct population segment (DPS) of Steller 
sea lions or result in the destruction or adverse modification of its 
critical habitat. Based on the 2001 BiOp and the environmental impacts 
disclosed in the Steller sea lion SEIS, the Council adopted the 
preferred alternative (with modifications) and forwarded it to NMFS for 
approval and implementation. NMFS implemented the preferred alternative 
by emergency interim rule prior to the start of the 2002 fishing year 
(67 FR 956, January 8, 2002, amended 67 FR 21600, May 1, 2002, 67 FR 
45671, July 10, 2002, 67 FR 47472, July 19, 2002, and extended 67 FR 
34860, May 16, 2002). These protection measures were published as a 
proposed rule for 2003 and beyond (67 FR 56692, September 4, 2002) and 
the final rule became effective January 1, 2003 (68 FR 204, January 2, 
2003).On December 18, 2002, the United States District Court for the 
Western District of Washington remanded to NMFS the biological opinion 
(``2001 BiOp'') NMFS prepared for the groundfish fisheries managed 
pursuant to the Stellar sea lion protection measures published on 
January 2, 2003 (68 FR 204). Greenpeace, et al. V. National Marine 
Fisheries Service, No. C98-492Z (W.D. Wash.). The Court held that the 
biological opinion's findings of no jeopardy to the continued existence 
of endangered Stellar sea lions and no adverse modification of their 
critical habitat were arbitrary and capricious. On December 30, 2002, 
the Court issued an Order declaring that the 2001 BiOp ``shall remain 
effective until June 30, 2003,'' while NMFS complies with the remand.
    In order for the Steller sea lion protection measures to be fully 
implemented, in November 2001, the State of Alaska Board of Fisheries 
(BOF) adopted parallel regulations providing for an extension of 
Steller sea lion protection measures in State waters (0-3 nm) during 
the State parallel fishery. The parallel groundfish fishery is defined 
as the Pacific cod, walleye pollock, and Atka mackerel fisheries in 
State waters opened by the Commissioner of the Alaska Department of 
Fish and Game (ADF&G). The opening was effected under emergency order 
authority to correspond with the times, area, and, unless otherwise 
specified, the gear of the Federal season in adjacent Federal waters 
(Alaska Administrative Code 5 AAC 28.087(c), January 3, 2002).
    As part of its November 2001 action, the BOF adopted a series of 
fishery closure areas that almost mirrored those areas requested by the 
Council under the Steller sea lion protection measures. The Federal 
regulations (implementing the Council's preferred alternative) 
contained closures for Pacific cod fisheries using pot gear at Caton 
Island (King Cove area) and Cape Barnabas (Kodiak) within 3 nm of those 
ESA listed haulouts. However, the BOF action did not contain these 
closures for the parallel fishery, and this allowed vessels without a 
Federal fishing permit to fish in those areas under Alaska State law. 
This resulted in conflicting Federal and State regulations. In November 
2001, NMFS informally consulted on allowing Pacific cod fisheries using 
pot gear at Caton Island and Cape Barnabas within 3 nm of those ESA 
listed haulouts and determined that these changes to the Steller sea 
lion protection measures were not of sufficient extent to re-initiate 
formal ESA consultation.
    In October 2002, the Council recommended proposed regulations to 
remove Pacific cod pot fishing restrictions in waters within 3 nm of 
Cape Barnabas and Caton Island for federally permitted vessels. These 
proposed regulations remove the restrictions from Table 5 of part 679 
for these two locations.

Classification

    NMFS has determined that the opening of closed Pacific cod pot 
fishing within 3 nm miles of Caton Island and Cape Barnabas is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Under Executive Order 12612, this proposed rule does not contain 
policies with federalism implications sufficient to warrant preparation 
of a federalism assessment. Because no federalism issues are implicated 
with this action, the mandatory requirements contained in Executive 
Order 13132 for consultation on federalism issues among Federal, State, 
and local governments are not triggered.
    Nothing in this action results in any changes in reporting or 
recordkeeping requirements.
    Species listed under the Endangered Species Act (ESA) are present 
in the action area. This action is not expected to result in increases 
of Pacific cod harvest beyond those experienced with the opening of the 
State parallel fishery in these areas. With no additional removals of 
Pacific cod expected, informal ESA consultation concluded that this 
action is not likely to adversely affect listed species.
    The analysis for this action did not reveal any existing Federal 
rules that duplicate, overlap, or conflict with this action.
    NMFS prepared an IRFA that describes the impact this action may 
have on small entities. Earlier sections of this preamble describe the 
reasons

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why action by the agency is being considered and provide a succinct 
statement of the objectives of, and the legal basis for, the proposed 
rule. This action is expected to affect six regulated small entities by 
removing a fishing restriction. These entities are the pot vessels 
fishing for Pacific cod in the waters within 3 nm of the two haulouts. 
This action does not impose new reporting, recordkeeping or other 
compliance requirements on regulated small entities. No Federal rules 
exist that duplicate, overlap or conflict with the proposed rule. This 
action does not have any adverse impacts on regulated small entities. 
No significant alternatives to the proposed rule exist that would have 
lower economic impacts on these entities.
    Two alternatives were considered for the Caton Island and Cape 
Barnabas pot fishing vessels: (1) No exemption for these vessels 
(status quo) and (2) exempt pot fishing vessels from SSL closures from 
0 to 3 nm around Caton Island and Cape Barnabas.
    Alternative 1 is the baseline alternative, and federally permitted 
vessels using pot gear for Pacific cod directed fishing would continue 
to be prohibited from fishing within 3 nm of the Caton Island and Cape 
Barnabas haulouts. Also, the status quo would not provide consistency 
between Federal and State regulations governing fishing restrictions 
within Steller sea lion protection areas. The preferred alternative 
would allow federally permitted vessels used to participate in the GOA 
Pacific cod pot fishery to fish within 3 nm of the haulouts at Caton 
Island and Cape Barnabas. This would reduce the Pacific cod revenues 
placed ``at risk'' by the restrictions of the status quo alternative by 
up to $63,000. The areas in question are small parts of larger fishing 
areas, and fishermen may currently be making up a large part of the 
harvest foreclosed by the restrictions by fishing elsewhere. This 
alternative is not believed to create jeopardy for the Steller sea 
lions or adversely modify its critical habitat. This alternative would 
not trigger Executive Order 12866 significance criteria since the 
maximum revenue impact is likely to be $63,000 at the outside.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: February 6, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries National Marine Fisheries 
Service.

     For the reasons discussed in the preamble, 50 CFR part 679 is 
proposed to be 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.
Table 5 to Part 679 [Amended]

    2. Table 5 to part 679 is revised as follows:

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[FR Doc. 03-3589 Filed 2-14-03; 8:45 am]
BILLING CODE 3510-22-S