[Federal Register Volume 68, Number 102 (Wednesday, May 28, 2003)]
[Rules and Regulations]
[Pages 31629-31640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13275]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030128021-3124-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule to allow use of pot gear in waters 
around Cape Barnabas and Caton Island located in the Gulf of Alaska 
(GOA) for directed fishing for Pacific cod. Waters within 3 nautical 
miles (nm) of these sites currently are closed to Pacific cod fishing 
by vessels using pot gear and named on a Federal fisheries permit. This 
action is necessary to provide consistency between State and Federal 
fishing restrictions and to relieve a potential burden on the Pacific 
cod pot gear fishing sector. This final rule is intended to meet the 
objectives in the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) and to further the goals and objectives of 
the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).

DATES: Effective June 27, 2003.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared 
for this action and the Final Regulatory Flexibility Analysis (FRFA) 
may be obtained from NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 
99802-1668, Attn: Lori Durall, or by calling (907) 586-7228.

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.
    The background regarding this action, including the Steller sea 
lion protection measures, the Council action, U. S. District Court 
orders, and the State of Alaska fishery restrictions, is detailed in 
the preamble to the proposed rule (68 FR 7750, February 18, 2003). This 
final rule removes restrictions on using pot gear for directed fishing 
for Pacific cod by vessels named on a Federal groundfish fishing permit 
in waters within 3 nm of Cape Barnabas and Caton Island. Accordingly, 
Table 5 to part 679 is revised by removing the 3 nm restriction in 
column 9 for Caton Island and Cape Barnabas.
    No comments were received on the proposed rule.

Changes in the Final Rule From the Proposed Rule

    This final rule revises Table 5 to part 679 from the proposed rule. 
Since the proposed rule was published on February 18, 2003, (68 FR 
7750), NMFS published a correction to the Steller sea lion protection 
measures (SSL correction) at 68 FR 24615, May 08, 2003. The corrections 
to Table 5 in the SSL correction were not included in the proposed rule 
for this action. To ensure the corrections to Table 5 from the SSL 
correction remain in the Code of Federal Regulations, Table 5 in this 
final rule is revised from the proposed rule to include those revisions 
that were published in the SSL correction. For details on these 
revisions, see the preamble to the SSL correction (68 FR 24615).

Classification

    The Administrator, Alaska Region, NMFS has determined that removing 
restrictions on directed fishing for Pacific cod using pot gear within 
3 nm of Caton Island and Cape Barnabas is necessary for the 
conservation and management of the Pacific cod pot gear fishery and is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    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 completed on December 
11, 2001, concluded that this action is not likely to adversely affect 
listed species or critical habitat.
    NMFS has prepared a FRFA for this action pursuant to Section 604(a) 
of the Regulatory Flexibility Act. The need for and objectives of this 
action have been

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discussed earlier in detail in the preamble to the proposed rule (68 FR 
7750, February 18, 2003).
    NMFS prepared an IRFA that describes the impact this action may 
have on small entities. This action is necessary to provide consistency 
between State and Federal fishing restrictions and to relieve a 
potential burden on the Pacific cod pot gear fishing sector. 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.
    NMFS Alaska Fisheries Science Center (AFSC) data show that, in 
2000, 252 pot catcher vessels and four pot catcher/processors fished 
for groundfish in the GOA. The numbers fishing near the waters that are 
opened under this action are smaller. An examination of the numbers of 
vessels fishing for Pacific cod with pot gear in state waters within 
the South Peninsula management area (the location of the Caton Island 
haulout) found 31 in 1999 and 51 in 2000. An examination of the numbers 
fishing in the Kodiak management area (the location of the Cape 
Barnabas haulout) found 41 in 1999 and 44 in 2000. An estimated six 
vessels actually fished within the Caton Island and Cape Barnabas 
haulouts in each of those years. Information on gross revenues from the 
AFSC indicates that all vessels fishing for Pacific cod with pots in 
the GOA are classified as small entities according to Small Business 
Administration criteria.
    At its October 2001 meeting, the Council recommended SSL protection 
measures for 2002 and beyond. These measures were developed by a 
Council-appointed committee. In developing its recommendations, the SSL 
Committee first assessed the needs of Steller sea lions to avoid 
jeopardy 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 
first provided protection for Steller sea lions. If some flexibility 
existed, the measures were crafted to minimize adverse economic impacts 
to affected fishermen and fishing communities, as long as protection 
for Steller sea lions was maintained, as required by the 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.
    In November 2001, the Alaska Board of Fisheries (BOF) reviewed the 
Council's recommendation for Steller sea lion protection measures. 
These measures generally consist of fishery or gear specific directed 
fishing closures within 3, 10, or 20 nautical miles (nm) of Steller sea 
lion rookeries or haulouts. NMFS and the Council expected that the BOF 
would mirror these regulations in State waters during the parallel 
fisheries for pollock, Atka mackerel, and Pacific cod. This is 
necessary to implement the protection measures that included fishery 
prohibitions that extended into State waters.
    The BOF responded by authorizing the Commissioner of the Alaska 
Department of Fish and Game, through emergency order, to open and close 
seasons and areas as necessary to mirror federal regulations for the 
purpose of protecting Steller sea lions. However, the BOF did provide 
two exemptions for vessels fishing for Pacific cod with pot gear around 
the Caton Island and Cape Barnabas haulouts.
    The two exceptions in the parallel fishery would allow directed 
fishing for Pacific cod with pot gear between 0-3 nm of the Caton 
Island and Cape Barnabas haulouts. The proposed action recommended by 
the Council, and assessed in the 2001 Biological Opinion (BiOp), closed 
0-3 nm to all gear types except vessels using jig gear. Thus, the BOF 
action authorizes pot gear fishing within 0-3 nm of two haulouts that 
was not considered or assessed in the 2001 BiOp.
    The rationale stated by the BOF for this discrepancy was that few 
animals have been seen at these two sites over the last decade; these 
sites are haulouts instead of rookeries; and that other sites in the 
region would remain closed to pot gear fishing inside 3 nm of haulouts. 
Hook-and-line gear was not included in the exemption because this gear 
type is not authorized in the State-managed Pacific cod fishery.
    Because the BOF action did not contain these Caton Island and Cape 
Barnabas closures, the SSL protection measures under state regulations 
were not consistent with Federal rules because they allowed vessels 
without a federal fishing permit to fish in those areas under Alaska 
State law. This resulted in conflicting Federal and State regulations, 
as well as being different from the action that was consulted on under 
the ESA. In November, 2001, NMFS informally consulted on these changes 
and determined that they were not of sufficient extent to re-initiate 
formal consultation under the ESA. NMFS informed the Council at its 
February 2002 meeting that no new scientific analyses were necessary in 
order to consider the BOF action on GOA haulouts, therefore, the 
Council requested that an analysis be developed immediately for an 
action to remove fishing restrictions around these sites.
    A copy of the FRFA is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.


[[Page 31631]]


    Dated: May 21, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons discussed in the preamble, 50 CFR part 679 is amended 
as follows:

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

0
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); and Sec. 209, Pub. L. 106-
554.

0
2. Table 5 to part 679 is revised to read as follows:

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[FR Doc. 03-13275 Filed 5-27-03; 8:45 am]
BILLING CODE 3510-22-S