[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Rules and Regulations]
[Pages 82298-82299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33162]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 001213348-0366-02; I.D. 121100A]
RIN 0648-AO44
Fisheries of the Exclusive Economic Zone Off Alaska; Removal of
Groundfish Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS revises an existing closure to commercial fishing for
Pacific cod within critical habitat designated for Steller sea lions in
the exclusive economic zone (EEZ) off Alaska west of 144 deg. W. long.
through December 31, 2000. The revision of the existing closure is
necessary to permit relatively small-scale, fixed-gear fisheries for
Pacific cod to continue for a limited period of time. The revised
closure is intended to ensure that Steller sea lions are adequately
protected based on conclusions in a biological opinion issued November
30, 2000, while mitigating short-term social and economic effects on
fixed-gear fisheries for Pacific cod.
DATES: Effective December 22, 2000 through December 31, 2000.
ADDRESSES: Copies of the Endangered Species Act, Section 7 Consultation
Biological Opinion and Incidental Take Statement on Authorization of
the Bering Sea and Aleutian Islands groundfish fisheries based on the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area and the Authorization of the Gulf of Alaska
groundfish fisheries, based on the Fishery Management Plan for
Groundfish of the Gulf of Alaska, including the reasonable and prudent
alternative (BiOp), may be obtained by contacting the Alaska Region,
NMFS, P.O. Box 21668, Juneau, AK, 99802, or Room 401 of the Federal
Building, 709 West 9th Street, Juneau, AK. The 2000 BiOp is also
available on the Alaska Region home page at http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Jay Ginter, 907-586-7228 or
[email protected].
SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries
in the EEZ of the Bering Sea and Aleutian Islands Management Area
(BSAI) and Gulf of Alaska (GOA) under the fishery management plans
(FMPs) for groundfish in the respective areas. The North Pacific
Fishery Management Council (Council) prepared, and NMFS approved, the
FMPs under the authority of the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq.
Regulations implementing the FMPs appear at 50 CFR part 679. General
regulations governing U.S. fisheries appear at 50 CFR part 600.
NMFS also has statutory authority to promulgate regulations
governing the groundfish fisheries under the Endangered Species Act
(ESA), 16 U.S.C. 1531 et seq. The ESA requires that each Federal agency
ensure that any action authorized, funded, or carried out by such
agency is not likely to jeopardize the continued existence of any
endangered or threatened species or to result in the destruction or
adverse modification of critical habitat of such species.
On August 7, 2000, the United States District Court for the Western
District of Washington issued an order that granted a motion for a
partial injunction on the North Pacific groundfish fisheries.
Greenpeace v. NMFS, No. C98--4922 (W.D. Wash.). This motion requested
injunctive relief until NMFS issues a legally adequate BiOp addressing
the combined, overall effects of the North Pacific groundfish fisheries
on Steller sea lions and their critical habitat pursuant to the ESA.
The population of Steller sea lions west of 144 deg. W. long.
(hereafter western population) is listed under the ESA as endangered,
while the population of Steller sea lions east of 144 deg. W. long. is
listed as threatened.
To comply with the Court's August 7, 2000, Order, NMFS, pursuant to
the ESA, issued an interim rule prohibiting fishing for groundfish with
trawl gear in Steller sea lion critical habitat (65 FR 49766, August
15, 2000). The critical habitat areas closed by the interim rule were
defined in regulations codified at 50 CFR 226.202, and in Tables 1 and
2 to 50 CFR part 226.
On November 30, 2000, NMFS issued a BiOp, which is comprehensive in
scope and considers the fisheries and the overall management framework
established by the BSAI and GOA FMPs. After analyzing the cumulative,
direct and indirect effects of the groundfish fisheries authorized by
the BSAI and GOA FMPs on listed species, NMFS concluded in the BiOp
that the fisheries for pollock, Pacific cod, and Atka mackerel, as
currently prosecuted, jeopardize the continued existence of the western
population of Steller sea lions and adversely modify their critical
habitat. NMFS reached this conclusion based on information that the
pollock, Pacific cod, and Atka mackerel fisheries and the Steller sea
lions compete for the same species, that this competition causes
reduced availability of prey for the Steller sea lions, that reduced
availability of prey leads to nutritional stress, and that nutritional
stress, especially of juveniles and to a lesser extent adult females,
is the leading hypothesis to explain the continued decline of the
western population of Steller sea lions.
On December 5, 2000, the United States District Court for the
Western District of Washington issued an order dissolving the
injunction issued on August 7, 2000. Based on that Order, NMFS issued a
final rule on December 14, 2000 (65 FR 79784, December 20, 2000)
revoking the closure of all groundfish trawl fishing in designated
critical habitat that was published on August 15, 2000 (65 FR 49766).
However, because the BiOp concluded that the fisheries for Pacific cod,
along with pollock and Atka mackerel, as currently prosecuted,
jeopardize the continued existence of the western population of Steller
sea lions and adversely modify their critical habitat, and because only
Pacific cod was still available for harvest in certain fisheries, the
December 20, 2000, final rule prohibited commercial fishing for Pacific
cod in designated critical habitat through December 31, 2000.
Commercial fisheries for pollock and Atka mackerel were not included in
the final rule because fisheries for those species already were
prohibited through
[[Page 82299]]
December 31, 2000, pursuant to other regulatory requirements.
This final rule revises the December 14, 2000, final rule by
permitting directed fishing for Pacific cod by vessels using non-trawl
gear and continuing the prohibition on directed fishing for Pacific cod
by vessels using trawl gear in designated critical habitat. This action
is being taken to allow three previously authorized fisheries for
Pacific cod with non-trawl gear to continue through the end of the
fishing year (i.e., December 31, 2000) or until otherwise closed sooner
due to attainment of catch or bycatch limits. The three previously
authorized Pacific cod fisheries include: (1) fishing in the BSAI under
the Community Development Quota (CDQ) Program, (2) fishing in the BSAI
by vessels less than 60 ft (18.3 m) length overall (LOA), and (3)
fishing in the GOA by vessels using pot gear for processing by the
offshore component.
The number of vessels that were participating in these three
fisheries and the remaining catch quota of Pacific cod to be harvested
is small relative to the BSAI and GOA groundfish fisheries generally.
Based on current participation and harvest information, the CDQ fishery
could have about 10 vessels using hook-and-line gear to harvest a
remaining quota of 1,800 mt of Pacific cod in critical habitat in the
BSAI. The under 60 ft (18.3 m) LOA fishery could have about 4 vessels
using non-trawl gear to harvest a remaining quota of 1,200 mt of
Pacific cod in critical habitat in the BSAI. Through December 15, 2000,
this fishery harvested only 62 mt of this quota and, based on previous
harvest rates, NMFS anticipates that another 33 mt will be harvested
before January 1, 2001. No vessels were operating in the GOA
``offshore'' fishery for Pacific cod as of December 15, 2000. Only
vessels using pot gear can operate in this fishery because restrictions
on Pacific halibut bycatch prevent vessels using hook-and-line gear
from participating in the GOA ``offshore'' fishery for Pacific cod
through December 31, 2000. Hence, these are relatively small-scale
fisheries and NMFS has determined that allowing them to continue within
designated critical habitat would not contravene the Reasonable and
Prudent Alternative described in Section 9 of the BiOp. In addition,
this action expires on December 31, 2000, thereby severely limiting the
potential effect of this action on Steller sea lions.
Classification
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this final rule is consistent with the Court's Order
and is authorized by the ESA.
Because prior notice and opportunity for public comment are not
required for this final rule 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., do not apply to this action.
This final rule has been determined to be not significant under
section 3(f)(1) of E.O. 12866.
The AA, under 5 U.S.C. 553(b)(B), finds there is good cause to
waive providing prior notice and an opportunity for public comment for
the partial removal of the existing closure. This removal stems from a
United States District Court Order dissolving, as of December 5, 2000,
the injunction requiring the closure. Delaying this action to provide
prior notice and opportunity for comment would cause unnecessary
economic harm to the affected fishermen and thus would be contrary to
the public interest. Because this action relieves a restriction, under
5 U.S.C. 553(d)(1) it is not subject to a 30-day delay in the effective
date.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Recordkeeping and reporting requirements.
Dated: December 22, 2000.
Penelope D. Dalton
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth 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 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).
2. In Sec. 679.22, paragraph (k) is removed and reserved and
paragraph (l) is added, effective through December 31, 2000, to read as
follows:
Sec. 679.22 Closures.
* * * * *
(k) Closure of critical habitat. (Applicable through December 31,
2000.) Vessels using trawl gear within Steller sea lion critical
habitat within the EEZ and west of 144 deg. W. long., as such critical
habitat is defined by regulations codified at 50 CFR 226.202 and Tables
1 and 2 to 50 CFR part 226, must not retain at any time amounts of
Pacific cod that exceed the maximum retainable bycatch amounts at Sec.
679.20(e) and (f).
[FR Doc. 00-33162 Filed 12-22-00; 3:10 pm]
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