03-11374. Fisheries of the Exclusive Economic Zone Off Alaska; Steller Sea Lion Protection Measures Correction

AGENCY:

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

ACTION:

Correcting amendments.

SUMMARY:

This final rule corrects the regulatory text of the final rule published January 2, 2003, implementing Steller sea lion protection measures for the Alaska groundfish fishery.

DATES:

Effective May 7, 2003.

ADDRESSES:

Copies of the Supplemental Environmental Impact Statement on Steller Sea Lion Protection Measures in the Federal Groundfish Fisheries Off Alaska (SEIS), including the 2001 biological opinion (2001 BiOp) and regulatory impact review may be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Durall. The SEIS is also available on the NMFS Alaska Region home page at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Melanie Brown, NMFS, 907-586-7228 or e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

A final rule published January 2, 2003 (68 FR 204), implementing Steller sea lion protection measures for the groundfish fisheries of the Bering Sea and Aleutian Islands Management Area (BSAI) and the Gulf of Alaska (GOA), contains errors in its paragraph designations, cross-references, regulatory text, and tables which are corrected by this action.

Corrections to the Office of Management and Budget (OMB) Control Numbers Table

Two corrections are needed in the OMB control number references in the table at 15 CFR 902.1(b). The OMB control number assigned to § 679.20(a)(8)(iii) is incorrect. Also, the table is missing an OMB control number and corresponding paragraph that applies to the Steller sea lion protection measures. This action corrects the number assigned to § 679.20(a)(8)(iii) to read “-0206”. OMB control number “-0269” that incorrectly was applied to § 679.20(a)(8)(iii) in the final rule is properly assigned to § 679.5(n)(2)(iii), which is added to the table with this action. This correction will accurately display the OMB control numbers for these collection-of-information approvals, as required by the Paperwork Reduction Act.

Corrections to the Regulatory Text

A number of corrections to the final rule for the Steller sea lion protection measures are needed for consistency with the final rule for Amendments 61/61/13/8 implementing the American Fisheries Act (AFA) (67 FR 79692, December 30, 2002, effective January 29, 2003). The AFA final rule at § 679.20(a)(5)(i)(A) and (a)(5)(ii) describes the Bering Sea subarea and Aleutian Islands subarea and Bogoslof district pollock AFA allocations, respectively. However, the Steller sea lion protection measures final rule provisions describing the seasonal apportionment of pollock in the BSAI and GOA also were codified at § 679.20(a)(5)(i)(A) and (a)(5)(ii)(B). This correction adds a new paragraph § 679.20(a)(5)(i)(B) describing the Steller sea lion protection measures seasonal apportionment of pollock in the Bering sea subarea. Section 679.20(a)(5)(i)(B) in the final rule regarding the Steller sea lion conservation area harvest limit is also redesignated as § 679.20(a)(5)(i)(C) to ensure proper paragraph designations. The seasonal apportionments for the GOA pollock fishery were codified by the AFA final rule at § 679.20(a)(5)(iii); therefore, no additional changes are needed in the Steller sea lion protection measures final rule for the GOA pollock seasonal apportionments. Cross-references in § 679.22(a)(7) to the redesignated paragraph § 679.20(a)(5)(i)(C) also are corrected. This correction results in no substantive changes to the requirements of the AFA or the Steller sea lion protection measures.

In addition, the Steller sea lion protection measures final rule contains cross-references to § 679.20(a)(6)(ii) and (iii) at § 679.20(b)(2)(i) and (ii). These cross-referenced paragraphs were renumbered as (a)(6)(i) and (a)(6)(ii), respectively, when the AFA final rule was published. This action corrects these cross-references in § 679.20(b)(2)(i) and (ii) to § 679.20(a)(6)(i) and (ii). This correction does not substantively change the requirements of either the final rule for the AFA or the Steller sea lion protection measures final rule.

Table 4 in 50 CFR part 679 specifies closures to directed fishing for pollock with trawl gear around identified Steller sea lion rookeries and haulouts in the Gulf of Alaska, the Bering Sea and the Aleutian Islands. The Steller sea lion protection measures final rule incorrectly specified the closed areas around Uliaga and Kagamil haulouts. Table 4 currently specifies a 10 nm closure around each of these haulouts (68 FR 218, January 2, 2003). Although these 10 nm closures are correctly specified for the waters within the Bering Sea subarea around these haulouts, Table 4 should have closed all of the Steller sea lion critical habitat around these haulouts that extends west of 170 degrees W. longitude into the Aleutian Islands subarea. In the proposed rule for this amendment, NMFS announced that directed fishing for pollock inside critical habitat in the Aleutian Islands subarea would be prohibited (67 FR 56703, column 1, September 4, 2002). Steller sea lion critical habitat includes an aquatic zone that extends 20 nm seaward from Uliaga and Kagamil haulouts (50 CFR 226.202(a), Table 2). Therefore, this action corrects Table 4 in 50 CFR part 679 by closing the waters of the Aleutian Islands subarea that lie within 20 nm of Uliaga and Kagamil haulouts to directed fishing for pollock with trawl gear.

Table 5 in 50 CFR part 679 specifies closures to directed fishing for Pacific cod with trawl gear, hook-and-line gear, and pot gear around identified Steller sea lion rookeries and haulouts in the Gulf of Alaska, the Bering Sea, and the Aleutian Islands. The final rule resulted in several errors that require correction. First, Table 5 currently specifies closures to directed fishing for Pacific cod with hook-and-line gear and pot gear within the waters around Uliaga and Kagamil haulouts in the Bogoslof foraging area (68 FR 225-26, January 2, 2003). Although these haulouts are located in the Bogoslof foraging area, the critical habitat designated around these haulouts extends west beyond 170 degrees W. longitude, the western boundary of the Bogoslof foraging area (50 CFR 226.202(a), Table 2). Table 5 should have closed all of the Steller sea lion critical habitat around these haulouts that lies between 170 degrees W. longitude and 173 degrees W. longitude as well. The preamble to the proposed rule implementing the Steller sea lion protection measures explained that hook-and-line and pot vessels would be prohibited from directed fishing for Pacific cod in critical habitat east of 173 degrees W. longitude to the western boundary of the Bogslof foraging area (67 FR 56703, column 2, September 4, 2002). Therefore, NMFS corrects Table 5 in 50 CFR part 679 by closing the waters that lie within 20 nm of Uliaga and Kagamil haulouts to directed fishing for Pacific cod with hook-and-line and pot gear.

Second, Table 5 currently specifies a closure to directed fishing for Pacific cod with hook-and-line gear within 10 nm in the waters around Chuginadak haulout (68 FR 225, January 2, 2003). Although Chuginadak is located in the Gulf of Alaska, the critical habitat designated around this haulout extends west beyond 170 degrees W. longitude, the eastern boundary of the Aleutian Islands subarea (50 CFR section 226.202(a), Table 2). For the reason stated above, this critical habitat should have been closed to fishing for Pacific cod with hook-and-line gear as well. Therefore, NMFS corrects Table 5 in 50 CFR part 679 by prohibiting directed fishing for Pacific cod with hook-and-line gear in waters west of 170 degrees W. longitude that lie within 20 nm of Chuginadak haulout. Table 5 retains the current 10 nm closure to directed fishing for Pacific cod with hook-and-line gear around Chuginadak in the Gulf of Alaska.

Third, Table 5 currently specifies no closures to directed fishing for Pacific cod with hook-and-line gear or pot gear around Marmot Island rookery in the Gulf of Alaska (68 FR 229, January 2, 2003). However, the proposed rule for this amendment announced that directed fishing for Pacific cod with hook-and-line gear or pot gear around Gulf of Alaska rookeries would be prohibited (67 FR 56704, column 2, September 4, 2002). The Steller sea lion protection measures analyzed in the 2001 BiOp and in the SEIS specified 10 nm closures to hook-and-line and pot gear fishing around Marmot Island, and these closure were implemented in 2002 by emergency interim rule (67 FR 956, January 8, 2002). Therefore, NMFS corrects Table 5 in 50 CFR part 679 by closing the waters that lie within 10 nm of Marmot Island rookery to directed fishing for Pacific cod with hook-and-line or pot gear.

Finally, the closure around Tanaga I./Bumpy Pt. for the Aleutian Islands subarea Pacific cod trawl fishery in Table 5 is also corrected. Directed fishing for Pacific cod using trawl gear should have been prohibited in the Harvest Limit Area (HLA) during the Atka mackerel HLA directed fishery (§ 679.22(a)(8)(iv)). A portion of the 20 nm critical habitat area surrounding Tanaga I./Bumpy Pt. extends west of 178° W longitude, and this portion of water, by definition, is part of the HLA (§ 679.2). Therefore, the portion of critical habitat for Tanaga I./Bumpy Pt. that lies west of 178° W longitude should have been closed to directed fishing for Pacific cod with trawl gear during the Atka mackerel HLA directed fishery. Table 5 of the final rule did not describe this portion of critical habitat associated with Tanaga I./Bumpy Pt. as being part of the HLA, although the proposed rule clearly announced that this portion of critical habitat would be closed too, until the Atka mackerel HLA fishery is completed (67 FR 56703, column 2, September 4, 2002). A footnote is added to Tanaga I./Bumpy Pt. explaining the closure around this site. Because haulout sites located east of 178° W longitude are closed to 3 nm to directed fishing for Pacific cod with trawl gear, the no-fishing zone in column 7 of Table 5 is corrected to show 3 nm and 20 nm closures that apply around the Tanaga I./Bumpy Pt. haulout.

Table 6 of 50 CFR part 679 specifies closures to directed fishing for Atka mackerel with trawl gear near identified Steller sea lion rookeries and haulouts in the BSAI. The final rule included two errors in Table 6 that require correction. First, footnote 4 to Table 6 was inadvertently omitted from the site Tanaga I./Bumpy Pt. in the final rule. This footnote was included in the emergency interim rule implementing the Steller sea lion protection measures in 2002 (67 FR 956, January 8, 2002). The footnote explains the closure around this site and is added to the site name with this correction. For the same reasons as described above for the Pacific cod trawl fishery, footnote 4 is also corrected to specify that waters within 20 nm of Tanaga I./Bumpy Pt. and west of 178° W longitude are closed as part of the HLA, as defined in § 679.2.

Second, footnote 7 to Table 6 is corrected to further describe the 10 nm and 20 nm closures around Gramp Rock. The 20 nm closure for Gramp Rock should apply to waters located east of 178° W longitude, and the 10 nm closure for Gramp Rock should apply to waters located west of 178° W longitude. Gramp Rock should be closed to directed fishing for Atka mackerel using trawl gear in waters within 20 nm and west of 178° W longitude after the closure of the Atka mackerel HLA directed fishery. This action corrects the footnote accordingly.

Classification

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this action is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA. The Regional Administrator also has determined that this action is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. No relevant Federal rules exist that may duplicate, overlap, or conflict with this action.

This action has been determined to be not significant for purposes of Executive Order 12866.

A formal section 7 consultation under the Endangered Species Act (ESA) was initiated for the Steller sea lion protection measures under the fishery management plans for the groundfish fisheries of the BSAI and the GOA. In a biological opinion dated October 19, 2001, (2001 BiOp), the Director of the Office of Protected Resources determined that fishing activities conducted under the Steller sea lion protection measures implemented by the final rule (68 FR 204, January 2, 2003) are not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat. This correction fully implements the Steller sea lion protection measures analyzed in the 2001 BiOp and approved by the Secretary of Commerce.

On December 18, 2002, the United States District Court for the Western District of Washington remanded to NMFS the 2001 BiOp for the groundfish fisheries managed pursuant to the Steller 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 Steller 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 completes the remand. The response to the remand will evaluate the effects of fishing activities authorized pursuant to the final rule, as corrected by this action, on listed species and critical habitat.

The measures in this rule correct the regulatory text to reflect the proper and intended paragraph designations, cross-references, regulatory text and tables of the final rule published on January 2, 2003, in order to make the regulations consistent with NMFS' intent and current industry practice. The affected fishermen were already complying with such measures pursuant to an earlier rule. Additionally, on January 15, 2003, NOAA Fisheries Alaska Region posted maps depicting the correct closures on its official webpage for use by affected fishermen. As a result, this rule seeks to bring the published regulations into conformity with the status quo. Prior notice and an opportunity for public comment on the substance of these measures was provided by the September 4, 2002, proposed rule. All comments provided pursuant to that proposed rule were considered in the development of the January 2, 2003, final rule. An additional opportunity for public comment would perpetuate any confusion or lack of clarity that may exist as a result of the incorrect information in the January 2, 2003, final rule. Accordingly, the Assistant Administrator for Fisheries finds good cause to waive prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B). Because the affected industry is already complying with the corrected measures, additional time is not required to allow them to come into compliance. Therefore, the Assistant Administrator for Fisheries also finds that there exists good cause to waive the requirement of a 30-day delay in the effective date of this rule pursuant to 5 U.S.C. 553(d)(3).

List of Subjects

15 CFR Part 902

• Reporting and recordkeeping requirements

50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

Dated: May 1, 2003.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

Accordingly, 15 CFR part 902, chapter IX, and 50 CFR part 679, chapter VI are corrected by making the following correcting amendments:

15 CFR Chapter IX

PART 902 NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, the table in paragraph (b) under 50 CFR is amended by adding in numerical order an entry for § 679.5(n)(2)(iii) and revising the entry for § 679.20 (a)(8)(iii) to read as follows:

§ 902.1

OMB Control numbers assigned pursuant to the Paperwork Reduction Act.

* * * * *

(b) * * *

CFR part or section where the information collection requirement is located	Current OMB control number (All numbers begin with 0648-)
*    *    *    *    *
50 CFR
*    *    *    *    *
679.5(n)(2)(iii)	-0269
*    *    *    *    *
679.20 (a)(8)(iii)	-0206
*    *    *    *    *

50 CFR Chapter VI

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. 105-277; Sec. 3027, Pub. L. 106-31; 57 Stat. 113; 16 U.S.C. 1540(f); and Sec. 209, Pub. L. 106-554.

2. In § 679.20, paragraph (a)(5)(i)(B) is redesignated as paragraph (a)(5)(i)(C), a new paragraph (a)(5)(i)(B) is added, and paragraph (b)(2)(i) and (ii) is revised to read as follows:

§ 679.20

General limitations.

* * * * *

(a) * * *

(5) * * *

(i) * * *

(B) BSAI seasonal allowances--(1) Inshore, catcher/processor, mothership, and CDQ components. The portions of the BSAI area pollock directed fishing allowances allocated to each component under Sections 206(a) and 206(b) of the AFA will be divided into two seasonal allowances corresponding to the two fishing seasons set out at § 679.23(e)(2), as follows: A Season, 40 percent; B Season, 60 percent.

(2) Inseason adjustments. Within any fishing year, the Regional Administrator may add or subtract any under harvest or over harvest of a seasonal allowance for a component to the subsequent seasonal allowance for the component through notification published in the Federal Register.

* * * * *

(b) * * *

(2) * * *

(i) Pollock inshore-offshore reapportionment. Any amounts of the GOA reserve that are reapportioned to pollock as provided by paragraph (b) of this section must be apportioned for processing by the inshore component in the GOA and the offshore component in the GOA in the same proportions specified in paragraph (a)(6)(i) of this section.

(ii) Pacific Cod inshore-offshore reapportionment. Any amounts of the GOA reserve that are reapportioned to Pacific cod as provided by paragraph (b) of this section must be apportioned for processing by the inshore component in the GOA and the offshore component in the GOA in the same proportion specified in paragraph (a)(6)(ii) of this section.

* * * * *

3. In § 679.22, paragraph (a)(7)(vii)(C) is revised to read as follows:

§ 679.22

Closures.

(a) * * *

(7) * * *

(vii) * * *

(C) Criteria for closure -- (1) General. The directed fishing closures identified in paragraph (a)(7)(vii)(A) of this section will take effect when the Regional Administrator determines that the harvest limit for pollock within the SCA, as specified in § 679.20(a)(5)(i)(C) is reached before April 1. The Regional Administrator shall prohibit directed fishing for pollock in the SCA by notification published in the Federal Register.

(2) Inshore catcher vessels greater than 99 ft (30.2 m) LOA. The Regional Administrator will prohibit directed fishing for pollock by vessels greater than 99 ft (30.2 m) LOA, catching pollock for processing by the inshore component before reaching the inshore SCA harvest limit before April 1 to accommodate fishing by vessels less than or equal to 99 ft (30.2 m) inside the SCA until April 1. The Regional Administrator will estimate how much of the inshore seasonal allowance is likely to be harvested by catcher vessels less than or equal to 99 ft (30.2 m) LOA and reserve a sufficient amount of the inshore SCA allowance to accommodate fishing by such vessels after the closure of the SCA to inshore vessels greater than 99 ft (30.2 m) LOA. The Regional Administrator will prohibit directed fishing for all inshore catcher vessels within the SCA when the harvest limit specified in § 679.20(a)(5)(i)(C) has been met before April 1.

* * * * *

4. Tables 4, 5, and 6 to Part 679 are revised to read as follows: