01-7668. 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.

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 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 [e-mail].

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; -

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 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

Gear sector	Percent	Share1 (mt)	Subtotal percentages for gear sectors	Share of gear sector total (mt)	Seasonal apportionment2
					Date
Total hook-and-line and pot gear allocation of Pacific cod TAC	51	88,689
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 Jun 10 to Dec 31
Hook-and-Line Catcher Vessels			0.3	265	Jan 1 to Jun 10 Jun 10 to Dec 31
Pot Gear Vessels			18.3	16,139	Jan 1 to Jun 10 Jun 10 to Dec 31
Catcher Vessels < 60 feet (18.3 m) LOA using Hook-and-line or Pot gear			1.4	1,235
Trawl gear Total	47	81,733
Trawl Catcher Vessel			50	40,867	Jan 1 to Jun 10 Jun10 to Dec 31
Trawl Catcher Processor			50	40,867	Jan 1 to Jun 10 Jun10 to Dec 31
Jig	2	3,478
Total				173,900
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 § 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:

§ 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 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° 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 § 679.23, paragraph (e)(6)(i) is suspended and paragraph (e)(6)(iii) is added to read as follows:

§ 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.

* * * * *