Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77535 

Latitude Longitude 

36°55.88′ N ........................ 75°52.40′ W. 

36°55.88′ N ........................ 75°54.95′ W. 

■ 16. Revise § 167.203 to read as 

follows: 

§ 167.203 In the approaches to 

Chesapeake Bay: Southern approach. 

(a) A separation line connects the 

following geographical positions: 

Latitude Longitude 

36°50.33′ N ........................ 75°46.29′ W. 

36°52.90′ N ........................ 75°51.52′ W. 

36°55.96′ N ........................ 75°54.97′ W. 

(b) A separation line connects the 

following geographical positions: 

Latitude Longitude 

36°55.11′ N ........................ 75°55.23′ W. 

36°52.35′ N ........................ 75°52.12′ W. 

36°49.70′ N ........................ 75°46.80′ W. 

(c) A separation line connects the 

following geographical positions: 

Latitude Longitude 

36°49.52′ N ........................ 75°46.94′ W. 

36°52.18′ N ........................ 75°52.29′ W. 

36°54.97′ N ........................ 75°55.43′ W. 

(d) A separation line connects the 

following geographical positions: 

Latitude Longitude 

36°54.44′ N ........................ 75°56.09′ W. 

36°51.59′ N ........................ 75°52.92′ W. 

36°48.87′ N ........................ 75°47.42′ W. 

(e) A traffic lane for inbound traffic is 

established between the separation lines 

described in paragraphs (a) and (b) of 

this section. 

(f) A traffic lane for outbound traffic 

is established between the separation 

lines described in paragraphs (c) and (d) 

of this section. 

(g) A deep-water route is established 

between the separation lines described 

in paragraphs (b) and (c) of this section. 

The following vessels should use the 

deep-water route established in 

paragraph (g) of this section when 

bound for Chesapeake Bay from sea or 

to sea from Chesapeake Bay: 

(1) Deep draft vessels (drafts greater 

than 13.5 meters/45 feet in fresh water); 

and 

(2) Naval aircraft carriers. 

(h) It is recommended that a vessel 

using the deep-water route established 

in paragraph (g) of this section— 

(1) Announce its intention on VHF– 

FM Channel 16 as it approaches 

Chesapeake Bay Southern Approach 

Lighted Whistle Buoy CB on the south 

end, or Chesapeake Bay Junction 

Lighted Buoy CBJ on the north end of 

the route; 

(2) Avoid, as far as practicable, 

overtaking other vessels operating in the 

deep-water route; and 

(3) Keep as near to the outer limit of 

the route which lies on the vessel’s 

starboard side as is safe and practicable. 

(i) Vessels other than those listed in 

paragraph (d) of this section should not 

use the deep-water route. 

■ 17. Add § 167.250 to read as follows: 

§ 167.250 In the approaches to the Cape 

Fear River: General. 

The traffic separation scheme (TSS) in 

the approaches to the Cape Fear River 

consists of two parts: A precautionary 

area and a TSS. The specific areas in the 

approaches to Narragansett Bay, RI, and 

Buzzards Bay, MA, are described in 

§§ 167.251 and 167.252. The geographic 

coordinates in §§ 167.251 and 167.252 

are defined using North American 

Datum 1983 (NAD 83), which is 

equivalent to WGS 1984 datum. 

■ 18. Add § 167.251 to read as follows: 

§ 167.251 In the approaches to the Cape 

Fear River: Precautionary area. 

A precautionary area is established 

bounded by a line connecting the 

following geographical positions: from 

33°47.65′ N, 78°04.78′ W; to 33°48.50′ 

N, 78°04.27′ W; to 33°49.53′ N, 

78°03.10′ W; to 33°48.00′ N, 78°01.00′ 

W; to 33°41.00′ N, 78°01.00′ W; to 

33°41.00′ N, 78°04.00′ W; to 33°44.28′ 

N, 78°03.02′ W; then by an arc of 2 

nautical miles radius, centered at 

33°46.03′ N, 78°05.41′ W; then to the 

point of origin at 33°47.65′ N, 78°04.78′ 

W. 

■ 19. Add § 167.252 to read as follows: 

§ 167.252 In the approaches to the Cape 

Fear River: Traffic Separation Scheme. 

(a) A traffic separation zone is 

established bounded by a line 

connecting the following geographical 

positions: 

Latitude Longitude 

33°44.94′ N ........................ 78°04.81′ W. 

33°32.75′ N ........................ 78°09.66′ W. 

33°34.50′ N ........................ 78°14.70′ W. 

33°45.11′ N ........................ 78°04.98′ W. 

(b) A traffic lane for northbound 

traffic is established between the 

separation zone and a line connecting 

the following geographic positions: 

Latitude Longitude 

33°32.75′ N ........................ 78°05.99′ W. 

Latitude Longitude 

33°44.38′ N ........................ 78°03.77′ W. 

(c) A traffic lane for southbound 

traffic is established between the 

separation zone and a line connecting 

the following geographic positions: 

Latitude Longitude 

33°36.22′ N ........................ 78°18.00′ W. 

33°46.03′ N ........................ 78°05.41′ W. 

Note to § 167.252: A pilot boarding area is 

located inside the precautionary area. Due to 

heavy ship traffic, mariners are advised not 

to anchor or linger in the precautionary area 

except to pick up or disembark a pilot. 

Dated: December 7, 2010. 

P.F. Cook, 

Captain, U.S. Coast Guard, Acting Director 

of Marine Transportation Systems 

Management. 

[FR Doc. 2010–31113 Filed 12–10–10; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 101006495–0498–01] 

RIN 0648–BA31 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Steller Sea Lion 

Protection Measures for the Bering 

Sea and Aleutian Islands Groundfish 

Fisheries Off Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: NMFS issues an interim final 

rule to implement Steller sea lion 

protection measures to insure that the 

Bering Sea and Aleutian Islands 

management area (BSAI) groundfish 

fisheries off Alaska are not likely to 

jeopardize the continued existence of 

the western distinct population segment 

(DPS) of Steller sea lions or adversely 

modify its designated critical habitat. 

These management measures will 

disperse fishing effort over time and 

area to provide protection from 

potential competition for important 

Steller sea lion prey species in waters 

adjacent to rookeries and important 

haulouts in the BSAI. The intended 

effect of this interim final rule is to 


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protect the endangered western DPS of 

Steller sea lions, as required under the 

Endangered Species Act, and to 

conserve and manage the groundfish 

resources in the BSAI in accordance 

with the Magnuson-Stevens Fishery 

Conservation and Management Act. 

DATES: Effective January 1, 2011. 

Comments must be received by January 

12, 2011. 

ADDRESSES: Send comment to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by RIN 0648– 

BA31, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record. No comments will be 

posted to http://www.regulations.gov for 

public viewing until after the comment 

period has closed. Comments will 

generally be posted without change. All 

Personal Identifying Information (for 

example, name, address) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Electronic copies of the 

Environmental Assessment/Regulatory 

Impact Review (EA/RIR) prepared for 

this action, the 2010 Biological Opinion 

on the Authorization of Groundfish 

Fisheries under the Fishery 

Management Plans for the Bering Sea 

and Aleutian Islands Management Area 

and the Gulf of Alaska, the 2008 Revised 

Recovery Plan for the Steller Sea Lion, 

the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area, and 

the 2006 Alaska Groundfish Fisheries 

Biological Assessment are available 

from NMFS Alaska Region, P.O. Box 

21668, Juneau, AK 99802 or from the 

Alaska Region NMFS Web site at 

http://alaskafisheries.noaa.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this interim 

final rule may be submitted to NMFS 

and by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Melanie Brown, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fisheries in the 

exclusive economic zone off Alaska 

under the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI) 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 Fishery 

Conservation and Management Act 

(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 (ESA) of 1973, 16 U.S.C. 1531, et 

seq., and the authority to promulgate 

regulations to enforce provisions of the 

ESA to protect such species. As the 

action agency, NMFS is responsible to 

insure that the Federal action of 

authorizing the Alaska groundfish 

fisheries is not likely to jeopardize the 

continued existence or modify or 

destroy designated critical habitat for 

ESA-listed species. The action 

implemented by this interim final rule 

is the result of an ESA section 7 formal 

consultation biological opinion, which 

requires the implementation of a 

reasonable and prudent alternative to 

the current Alaska groundfish fisheries 

management. 

Background 

The Endangered Species Act of 1973 

(ESA) requires Federal agencies to 

‘‘insure 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 result in the 

destruction or adverse modification of 

habitat of such species which is 

determined * * * to be critical.’’ 16 

U.S.C. sec. 1536(a)(2). This provision 

further requires Federal agencies to 

consult with the Secretary of Commerce 

on Federal actions that might affect 

species under the Secretary’s 

jurisdiction that are listed as 

endangered or threatened (‘‘listed 

species’’). The annual authorization of 

the Alaska groundfish fisheries under 

the Magnuson-Stevens Act is an ‘‘action 

authorized, funded, or carried out’’ by a 

Federal agency that could affect listed 

species under the jurisdiction of the 

Secretary of Commerce, and therefore 

requires consultation. 

In October 2005, the Council 

recommended that NMFS reinitiate an 

FMP-level formal section 7 consultation 

on the effects of the Federal groundfish 

fisheries on ESA-listed species under 

U.S. Department of Commerce 

jurisdiction. This jurisdiction has been 

formally delegated to NMFS. On April 

19, 2006, the Protected Resources 

Division of NMFS Alaska Region (PRD), 

as the consulting agency, received a 

written request from the NMFS Alaska 

Region Sustainable Fisheries Division 

(SFD), as the action agency, to re-initiate 

section 7 consultation on the Federal 

groundfish fisheries in waters 3 miles to 

200 miles off Alaska, as well as several 

groundfish fisheries that are conducted 

in waters of the State of Alaska 

(collectively, the ‘‘Alaska groundfish 

fisheries’’), to evaluate the effects of 

current Federal fisheries management 

on listed species because of information 

gained and management actions taken 

since previous consultations. That 

request was accompanied by a 

biological assessment that reviewed the 

likely effects of the Alaska groundfish 

fisheries on all twelve of the listed 

marine species found in waters off 

Alaska and under NMFS’s jurisdiction 

(see ADDRESSES). In June 2006, PRD 

concluded that the information 

provided by SFD’s biological assessment 

showed that the Steller sea lion (both 

the western and the eastern DPSs), the 

North Pacific humpback whale, and the 

North Pacific sperm whale were likely 

to be adversely affected by the Alaska 

groundfish fisheries. This determination 

required the initiation of formal section 

7 consultation under the ESA on these 

species and Steller sea lion designated 

critical habitat, resulting in the issuance 

of a biological opinion. Subsequent to 

reinitiating consultation, a fin whale 

was taken incidentally in the BSAI 

pollock trawl fishery. Therefore, fin 

whales also were included in this 

consultation. Critical habitat is not 

designated for humpback, fin, and 

sperm whales. 

Under the ESA and its implementing 

regulations, if the consulting agency 

(here, PRD) finds that the proposed 

action is likely to either jeopardize the 

continued existence of the species or 

result in the adverse modification of 

critical habitat, the consulting agency is 

required to identify a reasonable and 

prudent alternative (RPA), if any, that 

would not violate the ESA. While an 

action agency (here, SFD) has limited 


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discretion to adopt different measures 

than those contained in the RPA, it does 

so at its peril and must still demonstrate 

why the alternative measures comply 

with the ESA’s mandate to avoid the 

likelihood of jeopardizing the continued 

existence of the species or adversely 

modifying critical habitat. 

As explained in detail below, NMFS 

issued a biological opinion (2010 BiOp, 

see ADDRESSES) that concluded that the 

proposed fishery management action 

was not likely to jeopardize the 

continued existence or adversely modify 

the critical habitat of North Pacific 

humpback whales, North Pacific sperm 

whales, fin whales, or the eastern 

distinct population segment of Steller 

sea lions, but was likely to jeopardize 

the continued existence and adversely 

modify the critical habitat of the 

western DPS of Steller sea lions. 

Section 3.5.3 of the FMP for 

Groundfish of the BSAI, approved by 

the Secretary of Commerce under the 

Magnuson-Stevens Act, specifically 

authorizes implementation by 

regulation of special fishery 

management measures to protect marine 

mammals, without requiring 

amendment of the fishery management 

plan itself (see ADDRESSES). Therefore, 

NMFS has chosen to implement fishery 

management measures responding to 

the biological opinion issued under the 

ESA via regulations promulgated under 

the Magnuson-Stevens Act. 

In order to provide as transparent a 

process as possible, on August 3, 2010, 

NMFS released a draft of the 2010 BiOp, 

including the RPA, as well as analyses 

of alternatives to the proposed action 

(see ADDRESSES). These analyses were a 

draft environmental assessment (EA) 

prepared pursuant to the National 

Environmental Policy Act (NEPA), 

reviewing the potential impact on the 

human environment of the proposed 

action and alternatives; and a 

Regulatory Impact Review (RIR) 

pursuant to Executive Order 12866, 

which analyzes the cost and benefits of 

the proposed action and alternatives. 

The draft 2010 BiOp and draft EA/RIR 

were presented to the Council at a 

special meeting in August 2010. The 

Council and the public were provided a 

comment period to submit suggested 

changes to the RPA. PRD reviewed the 

comments from the Council and the 

public and made revisions to the RPA 

consistent with principles and 

objectives in the draft biological 

opinion. The final 2010 BiOp was 

signed on November 24, 2010. Both the 

final 2010 BiOp and EA/RIR are 

available to the public (see ADDRESSES). 

This interim final rule adopts the RPA 

in the final 2010 BiOp. Therefore, 

NMFS takes this action under the 

Magnuson-Stevens Act to comply with 

its responsibilities under the ESA to 

insure that its action, i.e., the 

authorization of the Alaska groundfish 

fisheries, is not likely to jeopardize the 

continued existence of the western DPS 

of Steller sea lions or result in the 

destruction or adverse modification of 

its designated critical habitat. 

In this rulemaking, NMFS adopted the 

2010 BiOp’s RPA because it was 

modified based on public comment on 

the draft RPA to reduce impacts on the 

fisheries while insuring that the 

groundfish fisheries are not likely to 

jeopardize the continued existence of 

Steller sea lions or adversely modify 

their designated critical habitat. While 

NMFS considered public comments that 

would have allowed greater fishing 

opportunities, including the Council’s 

proposed alternative, none of those 

measures as a whole would have met 

the performance standards of the RPA to 

insure the groundfish fisheries are not 

likely to jeopardize the continued 

existence of Steller sea lions or 

adversely modify their designated 

critical habitat. 

Because the 2010 BiOp, including the 

RPA, was not signed until November 24, 

2010, and the Alaska groundfish 

fisheries open on January 1, 2011, it is 

necessary for these regulations to be 

issued on an expedited basis, without 

the usual notice and opportunity for 

public comment before the regulations 

go into effect. See the Classification 

section of this rule for further 

information on waiver of prior notice 

and comment. 

Findings of the 2010 Biological Opinion 

The jeopardy and adverse 

modification finding for the western 

DPS of Steller sea lions is based on the 

continued decline of Steller sea lions in 

the Aleutian Islands subarea and the 

potential effects of the harvest of Atka 

mackerel and Pacific cod in this 

subarea. Over the last eight years, the 

numbers of sea lions in the western 

most district of the Aleutian Islands 

subarea (Area 543) have declined by 

approximately 45 percent. Because of 

the current population decline in Area 

543, as well as the slow population 

decline observed in the central and 

eastern districts of the Aleutian Islands 

subarea (Areas 542 and 541, 

respectively), the recovery of the 

western DPS of Steller sea lions is not 

meeting the criteria in the 2008 

Recovery Plan (see ADDRESSES). If 

population trends in the Aleutian 

Islands subarea continue at current 

rates, Steller sea lions may be extirpated 

from this portion of their range. 

Atka mackerel and Pacific cod are 

principal prey species of Steller sea 

lions. The harvest of these species may 

impact the foraging success of Steller 

sea lions. Atka mackerel and Pacific cod 

harvest have been managed in the 

Aleutian Islands under the temporal and 

spatial dispersion requirements 

implemented by the Steller sea lion 

protection measures. These protection 

measures were implemented in 2002 by 

emergency interim rule (67 FR 956, 

January 8, 2002; amended 67 FR 21600, 

May 1, 2002; corrected 67 FR 45671, 

July 10, 2002, 67 FR 47472, July 19, 

2002, and 67 FR 64315, October 18, 

2002; and extended 67 FR 34860, May 

16, 2002) and by final rule in 2003 (68 

FR 204, January 2, 2003; corrected 68 FR 

24615, May 8, 2003). Detailed analysis 

of the environmental baseline; Steller 

sea lions population trends, foraging 

behavior, and biology; and effects of the 

groundfish fisheries on Steller sea lions 

is presented in the 2010 BiOp (see 

ADDRESSES). 

Reasonable and Prudent Alternative 

Based on the continued population 

decline of Steller sea lions in portions 

of the Aleutian Islands subarea and the 

potential effects of groundfish harvests 

on Steller sea lions and their critical 

habitat, an RPA to the current 

management of the BSAI groundfish 

fisheries must be implemented to insure 

the Alaska groundfish fisheries are not 

likely to jeopardize the continued 

existence of the western DPS of Steller 

sea lions and adversely modify its 

designated critical habitat. These 

protection measures are necessary to 

comply with section 7(a)(2) of the ESA. 

Details on the specific protection 

measures in the RPA and their effects on 

Steller sea lions and their critical habitat 

are in chapter 8 of the 2010 BiOp (see 

ADDRESSES). 

The RPA was structured to mitigate 

effects of the fishery in locations where 

Steller sea lion abundance continues to 

decline (Areas 543, 542, and 541) and 

where available information indicates 

that reproduction may be reduced to a 

level that cannot support population 

growth. The 2010 BiOp determined that 

the weight of evidence indicates that 

fisheries for Steller sea lion prey may be 

appreciably reducing the reproduction 

and thus numbers of Steller sea lions 

and adversely modifying the 

conservation value of their critical 

habitat in Areas 543, 542, and 541 by 

removing large quantities of prey 

species important to Steller sea lions for 

basic nutrition and reproductive 

capacity. Competition with fisheries for 

prey is likely one component of an 

intricate suite of natural and 


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anthropogenic factors affecting Steller 

sea lion numbers and reproduction. 

While natural factors may be 

contributing, NMFS must insure that 

actions authorized by NMFS are not 

likely to appreciably reduce the 

likelihood of survival and recovery of 

the western DPS of Steller sea lions. 

The RPA was developed based on 

performance standards that address the 

effects of the groundfish fisheries and 

the population status and foraging 

behavior of Steller sea lions in the 

Aleutian Islands subarea. The details of 

these standards are in the 2010 BiOp 

(see ADDRESSES). One of the 

performance standards requires that the 

protection measures be commensurate 

with the rate of Steller sea lion 

population declines, with more 

stringent measures in those locations 

with greater population declines. The 

RPA meets this standard by applying 

more fisheries restrictions in Area 543 

where Steller sea lions have the highest 

population decline and applying fewer 

fisheries restrictions in Areas 542 and 

541, where Steller sea lion population 

decline is less. The implementation of 

the RPA is expected to eliminate local 

competition between Steller sea lions 

and the Atka mackerel and Pacific cod 

fisheries in Area 543. This is intended 

to improve foraging success and prey 

availability for juvenile and adult Steller 

sea lions, which is expected to lead to 

higher survival and natality rates. The 

RPA also reduces the competitive 

overlap between Steller sea lions and 

fisheries for Atka mackerel and Pacific 

cod in Areas 542 and 541. This is 

intended to improve foraging success 

and prey availability for Steller sea 

lions, particularly adult females with 

dependent young in winter, which is 

expected to lead to higher natality rates 

and survival. 

In addition to maintaining the status 

quo, NOAA considered three different 

alternatives for analysis under NEPA 

and under Executive Order 12866 to 

inform its decisions as to how best to 

manage the fishery in compliance with 

the ESA (see ADDRESSES for the EA/RIR). 

The status quo was rejected because it 

would not avoid jeopardy or adverse 

modification. One alternative was an 

alternative that complied with ESA’s 

statutory mandates regarding jeopardy 

and adverse modification but had a 

greater impact on the fishing industry 

than the RPA. The second alternative 

was the draft RPA in the draft 2010 

BiOp released for public review in 

August 2010. The second alternative 

was not implemented as NMFS 

reviewed the Council and public 

comments regarding the draft RPA and 

further refined the RPA to provide 

additional opportunity for fishing while 

meeting the RPA performance 

standards. The third and preferred 

alternative is the RPA from the final 

2010 BiOp. While the RPA may result 

in substantial impacts on the fishing 

industry, NMFS determined that the 

RPA is the least costly alternative 

among the options that is likely to avoid 

jeopardy and adverse modification. 

Protection Measures Requiring 

Regulatory Amendments 

The following are the revisions to the 

Steller sea lion protection measures 

implemented by this interim final rule. 

Application of the Revised Protection 

Measures 

The protection measures that are 

implemented by this rule, and which 

are further described below, apply to 

vessels that catch groundfish that is 

required to be deducted from the 

Federal total allowable catch (TAC) 

under § 679.20 and that are required to 

be named on a Federal Fisheries Permit 

issued under § 679.4(b) in the BSAI 

reporting areas, including the State of 

Alaska (State) waters within those 

reporting areas. Federally permitted 

vessels that participate in the State 

Pacific cod fishery authorized by 5 AAC 

28.647, Aleutian Islands District Pacific 

Cod Management Plan (AI Statemanaged Pacific cod fishery) and that 

deduct this Pacific cod from the State 

Pacific cod guideline harvest level and 

not the Federal TAC, would not be 

subject to the Pacific cod retention and 

directed fishing restrictions specified in 

this interim final rule. The State has 

adopted the same Steller sea lion 

protection measures for the AI Statemanaged Pacific cod fishery as NMFS 

implemented for the Federal groundfish 

fisheries in 2003 (68 FR 204, January 2, 

2003). The 2010 BiOp included the 

cumulative impact of the AI Statemanaged Pacific cod fishery. Based on 

the findings in the 2010 BiOp, which 

considered the combination of effects of 

the AI State-managed Pacific cod fishery 

and the Federal groundfish fisheries, 

NMFS has determined that the 

modifications made by this interim final 

rule are sufficient to insure that NMFS’s 

authorization of Federal fisheries is not 

likely to jeopardize the continued 

existence of the western DPS of Steller 

sea lions or destroy or adversely modify 

its designated critical habitat. 

Area 543 Atka Mackerel and Pacific 

Cod Fishing Prohibitions 

The RPA requires a protection 

measure prohibiting the retention of 

Pacific cod and Atka mackerel in Area 

543. Because Area 543 has experienced 

the most severe decline in Steller sea 

lion abundance and because Atka 

mackerel and Pacific cod are important 

prey items, it is necessary to reduce 

fishery removals of these prey species. 

Pacific cod and Atka mackerel may not 

be targeted or retained when 

incidentally caught in other groundfish 

fisheries. If only a directed fishing 

closure were used to limit Atka 

mackerel and Pacific cod harvest, these 

species could be retained up to the 

maximum retainable amount (MRA) of 

the basis species specified in Table 11 

to 50 CFR part 679. For example, if 

retention were not prohibited, a vessel 

targeting Pacific ocean perch could 

retain Atka mackerel and Pacific cod in 

amounts up to 20 percent of the amount 

of Pacific ocean perch retained. 

As described in the 2010 BiOp, NMFS 

model results indicate that allowing 

fishing to occur, even at substantially 

reduced levels, would inhibit a 

significant increase in biomass of Atka 

mackerel and Pacific cod. NMFS 

believes a significant increase in 

biomass of Atka mackerel and Pacific 

cod will contribute to both the 

continued survival and recovery of 

Steller sea lions in Area 543. The 

biomass of these prey species is 

expected to increase if all retention of 

Atka mackerel and Pacific cod is 

prohibited. Given the potential for Atka 

mackerel and Pacific cod fisheries to 

compete with Steller sea lions in a 

manner that limits their reproduction or 

survival, as evidenced in population 

responses observed to date in Area 543, 

NMFS has determined that it must 

eliminate this potential competition to 

comply with the ESA. 

Atka Mackerel Harvest Limit Area 

(HLA) Fishery 

Under the 2003 Steller sea lion 

protection measures, the harvest of Atka 

mackerel inside Steller sea lion critical 

habitat in Area 543 and the western 

portion of Area 542 was dispersed by 

controlling the number of vessels that 

could harvest Atka mackerel inside the 

HLA. The HLA included designated 

critical habitat and waters 0 nm to 20 

nm around other locations identified as 

important to Steller sea lions (Steller sea 

lion sites). A lottery system assigned 

vessels to platoons that were allowed to 

fish inside the HLA in specific locations 

and at specific times. The details of the 

HLA fishery are in the 2003 final rule 

for the Steller sea lion protection 

measures (68 FR 204, January 2, 2003). 

Because the RPA would prohibit all 

retention of Atka mackerel in Area 543 

and nearly all directed fishing for Atka 

mackerel in waters 0 nm to 20 nm 

around Steller sea lion sites in Area 542, 


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the platoon management of Atka 

mackerel harvest inside the HLA is no 

longer needed. 

Kanaga Island/Ship Rock Groundfish 

Closure 

Recent Steller sea lion count 

information indicates that this site is 

now functioning as a rookery. The 

rookeries listed in Table 12 to 50 CFR 

part 679 are surrounded by groundfish 

fishery closures that extend 0 nm to 3 

nm from the site. The RPA requires the 

Kanaga Island/Ship Rock rookery to be 

treated the same as other rookeries. 

Therefore, this action includes a 

protection measure to close directed 

fishing for groundfish in waters 0 nm to 

3 nm of this site. This closure is 

necessary to protect animals using this 

location from potential disturbance by 

fishing vessels and to protect near shore 

prey resources. Very little groundfish 

catch has historically occurred in waters 

0 nm to 3 nm from this site. According 

to the 2010 BiOp, this site is important 

to the population of the western DPS of 

Steller sea lions because it is one of the 

few locations in the Aleutian Islands 

where Steller sea lion reproduction is 

occurring. 

Pacific Cod Nontrawl Fisheries Winter 

Closure in Areas 542 and 541 

The RPA includes a closure of the 

Pacific cod hook-and-line, pot, and jig 

gear (nontrawl) fisheries in Areas 542 

and 541 from November 1, 1200 hours, 

Alaska local time (A.l.t.), to December 

31, 2400 hours, A.l.t. This closure of 

nontrawl fisheries is consistent with the 

trawl fishery closure during this time 

period. This closure allows for two 

months in the winter when Steller sea 

lions would not compete with vessels 

for Pacific cod prey. This closure is 

necessary to prevent expansion of 

fishing into time periods not previously 

fished as other time periods and areas 

historically fished are restricted under 

these protection measures. This measure 

is intended to protect prey availability 

in the winter when Steller sea lion 

energetic needs are high and when 

Pacific cod compose a larger proportion 

of their diet relative to the summer. 

Pacific Cod Nontrawl Fisheries 

Closures in Area 542 

The RPA includes two revisions to 

Area 542 protection measures for the 

nontrawl Pacific cod fisheries. The first 

revision closes waters 0 nm to 6 nm of 

Steller sea lion sites in Area 542 to 

nontrawl vessels directed fishing for 

Pacific cod year round. Telemetry data 

show the relative importance of 

different portions of critical habitat for 

foraging Steller sea lions. Steller sea lion 

at-sea locations from satellite-tagged 

animals summarized by 2 nm areas 

show high use by adult female Steller 

sea lions of waters from 0 nm to 6 nm, 

especially in summer, and higher use in 

this area by juveniles relative to other 

areas within critical habitat in both 

summer and winter. 

Because of the need for extensive 

shallow-water locations and the 

relatively narrow continental shelf 

throughout the Aleutian Islands 

subarea, hook-and-line gear vessels 

generally fish for Pacific cod in the 

Aleutian Islands within 10 nm of Steller 

sea lion sites (EA/RIR, see ADDRESSES). 

The closure of waters from 0 nm to 6 nm 

provides protection to Steller sea lions 

while providing opportunity for fishing 

by the hook-and-line vessels. 

Prohibiting pot and jig gear vessels in 

this closed area allows for consistent 

management of all nontrawl gear types 

and further reduces potential 

competition for Pacific cod prey in 

critical habitat. 

The second revision prohibits vessels 

60 feet (18.3 m) or greater in length 

overall (LOA) using nontrawl gear from 

directed fishing for Pacific cod in waters 

6 nm to 20 nm from Steller sea lion sites 

in Area 542 from January 1, 0001 hours, 

to March 1, 1200 hours, A.l.t. This 

revision does not apply to nontrawl 

vessels less than 60 feet (18.3 m) LOA 

because these vessels account for 

approximately two percent of historic 

Pacific cod Area 542 catch, a small 

proportion of the overall Pacific cod 

catch. NMFS determined that this small 

amount of catch would not be 

detrimental to the western DPS of 

Steller sea lions. This revised protection 

measure benefits Steller sea lion prey 

resources in the winter, an important 

time to protect prey resources, and 

provides the fishing industry with 

access to higher value fish in the later 

portion of the A season (March 1 to June 

10). 

Pacific Cod Trawl Vessel Closures in 

Area 542 

The RPA includes revised protection 

measures for the trawl gear Pacific cod 

fisheries in Area 542. This interim final 

rule closes waters 0 nm to 20 nm from 

Steller sea lion sites to directed fishing 

for Pacific cod with trawl gear year 

round in most of Area 542. However, for 

Steller sea lion sites between 178° W 

longitude and 177° W longitude, this 

rule applies the year round closure only 

to waters from 0 nm to 10 nm. Waters 

that are 10 nm to 20 nm from Steller sea 

lion sites and that occur in this one 

degree longitude area are closed to 

directed fishing for Pacific cod with 

trawl gear in the B season (June 10, 1200 

hours, A.l.t., to November 1, 1200 hours, 

A.l.t.), but are open during the A season. 

The trawl fishery in Area 542 

typically occurs in the A season when 

Pacific cod are aggregated, which 

coincides with the time of year in which 

Steller sea lion energetic needs are high. 

The 10 nm to 20 nm zone of critical 

habitat would be closed to trawl gear in 

the B season to prevent the trawl fishery 

from expanding into a season they have 

not traditionally fished in Area 542. 

Therefore, a year-round closure of 0 nm 

to 20 nm to trawl gear in most of Area 

542 (177° E longitude to 178° W 

longitude) is intended to conserve the 

value of critical habitat and prevent an 

intensification of harvest, especially in 

the 10 nm to 20 nm zone of critical 

habitat. 

Atka Mackerel Closures in Area 542 

The RPA includes a closure to 

directed fishing for Atka mackerel in 

most of the critical habitat in Area 542. 

This interim final rule prohibits 

directed fishing for Atka mackerel in 

waters 0 nm to 20 nm from Steller sea 

lion sites in Area 542 located between 

177° E longitude and 179° W longitude 

and between 178° W longitude and 177° 

W longitude. Directed fishing for Atka 

mackerel is prohibited in waters 0 nm 

to 10 nm from Steller sea lion sites 

located between 178° W longitude and 

179° W longitude. These closures would 

provide protection to most of the critical 

habitat in Area 542, which is currently 

open to directed fishing for Atka 

mackerel, from the potential effects of 

Atka mackerel fishing while allowing a 

limited Atka mackerel fishery in a 

portion of critical habitat where the 

Steller sea lion population trends show 

less decline. NMFS determined that 

providing some fishing opportunities in 

the one degree longitude area within the 

10 nm to 20 nm zone of critical habitat 

reduces the potential for impacting Atka 

mackerel occurring on Petrel Bank, the 

primary remaining productive Atka 

mackerel fishing grounds outside of 

critical habitat in Area 542. 

Atka Mackerel Area 542 Critical 

Habitat Harvest Restrictions 

The RPA includes a limitation on the 

participation in, and the amount and 

seasonal apportionment of, the Atka 

mackerel fishery in critical habitat in 

Area 542. This interim final rule limits 

the directed fishery for Atka mackerel in 

critical habitat between 178° W 

longitude and 179° W longitude to 

participants in the Western Alaska 

Community Development Quota (CDQ) 

Program or to vessels fishing under the 

authority of an Amendment 80 

cooperative quota permit (72 FR 52668, 


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September 14, 2007, corrected 73 FR 

27768, May 14, 2008). The interim final 

rule also limits the amount of Atka 

mackerel catch from critical habitat to 

10 percent of an Amendment 80 

cooperative’s Area 542 Atka mackerel 

allocation, and to 10 percent of a CDQ 

group’s Area 542 Atka mackerel 

allocation. This 10 percent limit is 

seasonally apportioned evenly between 

the A and B seasons. 

Limiting access to 10 nm to 20 nm of 

critical habitat only to operations with 

a specific allocation, i.e., operations 

fishing in harvest cooperatives or 

operations fishing CDQ, prevents a race 

for Atka mackerel in the open area of 

critical habitat and insures that 

allowable harvests in critical habitat is 

not exceeded. Vessels fishing under a 

CDQ allocation or an Amendment 80 

cooperative allocation are constrained 

by their allocations and do not have an 

incentive to engage in a competitive 

‘‘race for fish’’ with other participants. 

Vessels not participating in the CDQ 

Program or an Amendment 80 

cooperative are not held individually 

accountable to a specific allocation and 

could have an incentive to ‘‘race for fish’’ 

in a manner that could cause a catch 

limit to be exceeded. In 2011, two 

Amendment 80 cooperatives will be 

formed. Each Amendment 80 

cooperative may catch up to 10 percent 

of its Area 542 Atka mackerel allocation 

between 178° W longitude and 179° W 

longitude. Similarly, each CDQ group 

receiving an Area 542 allocation may 

catch up to 10 percent of its Area 542 

Atka mackerel allocation within this 

specified area. Catch is temporally 

dispersed under either of these 

allocative programs. 

The 10 percent harvest limit prevents 

catch that may exceed historical 

amounts taken from this area of critical 

habitat (2010 BiOp, see ADDRESSES). 

This 10 percent harvest limit also 

prevents excessive concentration of 

Atka mackerel catch inside critical 

habitat but provides the industry some 

opportunity to catch Atka mackerel in a 

location in Area 542 other than the 

Petrel Banks, where Atka mackerel 

fishing effort is likely to shift with the 

implementation of closures under this 

interim final rule. The seasonal 

apportionment of the critical habitat 

catch provides temporal dispersion of 

catch in critical habitat, reducing 

potential impacts on Steller sea lion 

prey availability. 

Atka Mackerel Area 542 TAC Limit 

The RPA includes a limit of the total 

catch of Atka mackerel to the historical 

amount caught in this area, but that is 

outside of critical habitat. Based on 

historical harvests, this interim final 

rule limits the Area 542 Atka mackerel 

TAC to no more than 47 percent of the 

Area 542 acceptable biological catch 

(ABC). The average annual Atka 

mackerel catch outside of critical habitat 

from 2003 through 2009 was 47 percent 

of the total catch in Area 542 (the lowest 

and the highest years were eliminated in 

the calculation). Setting the TAC at 47 

percent of the ABC preserves historical 

access to Atka mackerel amounts that 

had been taken outside of critical 

habitat while preventing an increase of 

that amount of catch that could occur if 

the harvest displaced from the 10 nm to 

20 nm zone of critical habitat west of 

178° W longitude was allowed to be 

taken in the open area of Area 542. This 

limitation on Atka mackerel catch is less 

stringent than that which is imposed in 

Area 543 based on the determination by 

NMFS that measures should be 

commensurate with the population 

trends of Steller sea lions in particular 

areas. 

Pacific Cod Nontrawl Vessel Closures 

in Area 541 

The RPA includes a closure to 

nontrawl directed fishing for Pacific cod 

in Area 541. This interim final rule 

closes waters 0 nm to 20 nm from 

Steller sea lion sites to directed fishing 

for Pacific cod with nontrawl gear from 

January 1, 0001 hours, A.l.t., to March 

1, 1200 hours, A.l.t., for all Federally 

permitted vessels in Area 541. After 

March 1, 1200 hours, A.l.t., nontrawl 

vessels are prohibited from directed 

fishing for Pacific cod in waters 0 nm 

to 10 nm from Steller sea lion sites in 

Area 541. These closures provide 

protection to Steller sea lion prey in 

critical habitat, particularly in the 

winter, while providing fishing 

opportunity inside critical habitat in the 

later portion of the A season and in the 

B season. This closure provides access 

to the limited amount of area in Area 

541 that can be effectively fished with 

hook-and-line gear for Pacific cod while 

preventing fishing in marine critical 

habitat that is used more frequently by 

foraging Steller sea lions, based on 

telemetry data (2010 BiOp, see 

ADDRESSES). Prohibiting pot and jig gear 

vessels in this closed area allows for 

consistent management of these gear 

types with hook-and-line gear vessels 

and avoids incentives to use alternative 

fishing gear to circumvent Steller sea 

lion protection measures. 

Pacific Cod Trawl Vessel Closures in 

Area 541 

The RPA includes a closure of 

portions of critical habitat to directed 

fishing by Federally permitted vessels 

for Pacific cod with trawl gear. This 

interim final rule prohibits directed 

fishing for Pacific cod with trawl gear in 

waters 0 nm to 10 nm from Steller sea 

lion sites in Area 541 year round. The 

interim final rule also prohibits directed 

fishing for Pacific cod with trawl gear 

within 10 nm to 20 nm from Steller sea 

lion sites in Area 541 from June 10, 

1200 hours, A.l.t., to November 1, 1200 

hours, A.l.t. These closures protect most 

of the critical habitat in Area 541 from 

the potential effects of Pacific cod trawl 

harvest on Steller sea lion prey 

availability. Because Steller sea lion 

population trends are better in Area 541 

than Areas 542 and 543, more critical 

habitat is made available for the Pacific 

cod fishery in Area 541 compared to 

Areas 542 and 543. This is consistent 

with the 2010 BiOp performance 

standard that protection measures be 

commensurate with the rate of Steller 

sea lion population decline. 

Atka Mackerel Closure in the Bering 

Sea Subarea 

The RPA includes a closure of the 

Bering Sea subarea to directed fishing 

for Atka mackerel. This interim final 

rule closes the Bering Sea subarea to 

directed fishing for Atka mackerel to 

allow for a limited harvest of Atka 

mackerel in areas of commercial 

abundance consistent with the MRAs 

established for Atka mackerel relative to 

other retained groundfish species open 

to directed fishing (Table 11 to 50 CFR 

part 679). These areas of commercial 

abundance generally occur in critical 

habitat areas of the Bering Sea subarea, 

where Atka mackerel has been 

historically caught up to the MRAs. 

Under the regulations implementing 

MRA provisions, codified at § 679.20 (e) 

and (f), closure of the Bering Sea 

subarea to directed fishing for Atka 

mackerel is necessary to allow for 

continued harvest of Atka mackerel in a 

manner similar to historical practices. 

Because Steller sea lion population 

trends are not a concern in the Bering 

Sea subarea, the continued location, 

amounts, and methods of harvest of 

Bering Sea Atka mackerel is not likely 

to result in population level effects on 

Steller sea lions. 

Atka Mackerel Seasons in Areas 542 

and 541 and in the Bering Sea Subarea 

The RPA includes an extension of the 

Atka mackerel A and B seasons. This 

interim final rule extends the A and B 

seasons by ending the A season and 

starting the B season on June 10, 1200 

hours, A.l.t. This season revision 

applies to the Bering Sea subarea 

because the Atka mackerel TAC is 

established for the combined harvest in 


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Area 541 and the Bering Sea subarea. 

Seasonal harvests also apply to the CDQ 

program so that all harvests of Atka 

mackerel in the BSAI are temporally 

dispersed. 

The increased season lengths provide 

for Atka mackerel fishing in the 

summer, a time period for which data 

show that Steller sea lions have less 

dependence on Atka mackerel. 

Extending the Area 542 and Area 541/ 

Bering Sea Atka mackerel seasons 

insure Atka mackerel harvest inside and 

outside critical habitat is temporally 

dispersed, reducing potential effects on 

Steller sea lion prey availability and 

providing additional time for fishing for 

the Atka mackerel vessels. 

Protection Measures Not Requiring 

Regulatory Amendments 

The RPA also contains three measures 

that do not require changes to 

regulations at 50 CFR part 679. These 

measures address management of the 

Atka mackerel catch in Area 543 and the 

amounts of Pacific cod harvests that, if 

exceeded, would require reinitiation of 

ESA formal consultation. These 

measures are listed below and further 

explained in the 2010 BiOp (see 

ADDRESSES). 

1. NMFS must establish a TAC for 

Atka mackerel in Area 543 sufficient to 

support the incidental discarded catch 

that may occur in other targeted 

groundfish fisheries. 

This measure is necessary to provide 

for the discarded incidental catch of 

Atka mackerel that may occur in other 

groundfish fisheries in Area 543. The 

Area 543 Atka mackerel TAC is 

established in the annual harvest 

specification as required by § 679.20. 

Because retention of Atka mackerel will 

be prohibited in Area 543, the Atka 

mackerel TAC should not be set higher 

than what is needed to support the 

discarded incidental catch. 

2. For Pacific cod in Area 542, NMFS 

must reinitiate ESA consultation if the 

nontrawl gear harvest exceeds 1.5 

percent of the BSAI Pacific cod ABC or 

if the trawl harvest exceeds two percent 

of the BSAI Pacific cod ABC. These 

percentages are equivalent to the Area 

542 maximum annual trawl and 

nontrawl gear harvest amounts from 

2007 through 2009. 

3. For Pacific cod in Area 541, NMFS 

must reinitiate ESA consultation if the 

nontrawl gear harvest exceeds 1.5 

percent of the BSAI Pacific cod ABC or 

if the trawl harvest exceeds 11.25 

percent of the BSAI Pacific cod ABC. 

These percentages are equivalent to the 

Area 541 maximum annual trawl and 

nontrawl harvest amounts from 2007 

through 2009. 

The RPA allows Pacific cod fishery 

removals in Area 542 and 541 that do 

not exceed recent historical amounts. 

With the closure of Area 543 to Pacific 

cod fishing, Pacific cod harvests in 

Areas 542 and 541 may increase as 

vessels shift into areas open to Pacific 

cod directed fishing. If the amount of 

Pacific cod fishing increases beyond 

historical amounts in Areas 542 and 

541, NMFS will need to consider the 

potential effects of this increased 

harvest on Steller sea lions and 

determine if any additional protection 

measures are needed to protect the 

western DPS of Steller sea lions and its 

designated critical habitat. 

Regulatory Amendments 

Definitions 

Two definitions for the HLA Atka 

mackerel fisheries are removed from 

§ 679.2. Neither of these definitions is 

needed with the elimination of the HLA 

and platooning method of managing 

Atka mackerel harvest in Areas 543 and 

542. 

Permits 

Section 679.4(b)(5) is revised to 

remove references to the HLA Atka 

mackerel fishery. Permit applicants will 

no longer need to indicate participation 

in the HLA fishery as this type of 

harvest management is eliminated by 

this interim final rule. 

Prohibitions 

Section 679.7(a) is revised to remove 

references to the HLA fishery and to add 

prohibitions for the Atka mackerel and 

Pacific cod fisheries. Paragraph (a)(19) is 

revised to remove reference to the HLA 

fishery and to add the retention 

prohibition for Atka mackerel and 

Pacific cod in Area 543. Paragraph 

(a)(23) is added to prohibit directed 

fishing for Pacific cod with hook-andline, pot, and jig gear in Areas 542 and 

541 from November 1, 1200 hours, 

A.l.t., through December 31, 2400 hours, 

A.l.t. Paragraphs (a)(19) and (a)(23) are 

specific to vessels harvesting Pacific cod 

that is required to be deducted from the 

Federal TAC and that are required to be 

Federally permitted. 

Paragraph (a)(24) is added to prohibit 

directed fishing for Atka mackerel in the 

Bering Sea subarea with a vessel 

required to be Federally permitted. 

Paragraph (a)(25) is added to prohibit 

directed fishing for Atka mackerel 

inside of critical habitat of Gramp Rock 

and Tag Island unless the participant is 

fishing under an Amendment 80 

cooperative quota permit or under 

authority of a CDQ allocation. Paragraph 

(d)(10) is added to require CDQ Atka 

mackerel fishing to be seasonally 

apportioned in the same manner as nonCDQ fishing. 

General Limitations 

Section 679.20 is revised to remove 

provisions for the HLA Atka mackerel 

fishery under paragraph (a)(8)(iii) and to 

change provisions for Atka mackerel 

harvest in the BSAI. Paragraph 

(a)(8)(ii)(A) is revised to remove the 

exception for CDQ reserves in 

establishing seasonal allowances. This 

will insure CDQ Atka mackerel fishing 

is seasonally apportioned in the same 

manner as non-CDQ fishing. Paragraph 

(a)(8)(ii)(C) is revised to remove the 

HLA provisions and to add three 

subparagraphs to describe the harvest 

limitations for Atka mackerel in Area 

542. These limitations are the 10 

percent CDQ or Amendment 80 

cooperatives Atka mackerel allocation 

inside critical habitat at Gramp Rock 

and Tag Island, the seasonal 

apportionment of the critical habitat 

harvest, and the setting of TAC at no 

more than 47 percent of Area 542 ABC. 

Paragraph (c)(6) also is revised to 

remove reference to the HLA fishery for 

purposes of the harvest specifications. 

Closures 

Section 679.22 is revised to describe 

the Pacific cod and Atka mackerel 

closures implemented by this rule and 

to remove references to the HLA Atka 

mackerel fishery. Paragraph (a)(8)(vi) is 

revised to remove reference to Table 6 

and to establish the closure to directed 

fishing for Atka mackerel in the entire 

Bering Sea subarea. Reference to Table 

6 for Atka mackerel closures is no 

longer necessary as the entire Bering Sea 

subarea is closed to directed fishing by 

this rule. 

The Pacific cod directed fishing 

restriction during the HLA Atka 

mackerel fishery under paragraph 

(a)(8)(iv)(A) is removed because of the 

elimination of the HLA fishery. 

Paragraph (a)(8)(iv) is modified to 

include jig gear and to specify that the 

closures apply to vessels required to be 

Federally permitted and that harvest 

Pacific cod that is deducted from the 

Federal TAC. This revision is necessary 

to insure the closure areas apply to all 

Pacific cod gear types and the vessels to 

which the closures apply are clearly 

described. 

Paragraph (b)(6) is removed from the 

regulations as this provision for the 

Chiniak Gully Research Area has 

expired. 

Seasons 

Section 679.23 is revised to change 

the BSAI Atka mackerel seasons and to 


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insure these seasons apply to the CDQ 

Atka mackerel fishery. Paragraph (e)(3) 

is revised to remove reference to nonCDQ fisheries for the Atka mackerel 

seasons and to extend the A and B 

seasons as described in the RPA. 

Paragraph (e)(4) is revised to insure the 

CDQ Atka mackerel fishery is seasonally 

apportioned. Paragraphs (e)(4)(iv) and 

(e)(4)(v) are removed from the 

regulations as these provisions have 

expired. These revisions are necessary 

to insure the Atka mackerel seasons 

apply to CDQ fishing and to implement 

these seasons as described in the RPA. 

Observer Program 

Section 679.50(c)(1)(x) is removed 

because it applied to observer coverage 

requirements for the HLA Atka mackerel 

fishery. The HLA fishery is eliminated 

by this interim final rule so this 

paragraph is no longer needed. 

Tables 

Tables 5, 6, and 12 to 50 CFR part 679 

are revised by this interim final rule. 

Because this interim final rule prohibits 

retention of Atka mackerel and Pacific 

cod in Area 543, the Steller sea lion 

sites located in Area 543 are removed 

from Tables 5 and 6. This revision is 

needed to clarify the application of 

closure areas around Steller sea lions 

sites in the Aleutian Islands subarea. 

In Table 5 to 50 CFR part 679, 

columns 7, 8, and 9 and the footnotes 

are revised to reflect the closures for 

Pacific cod by gear type in the Aleutian 

Islands subarea and elimination of the 

HLA Atka mackerel fishery 

implemented by this interim final rule. 

Footnote 11 is removed to eliminate 

HLA fishery restrictions for the Pacific 

cod trawl fishery. Footnote 14 is added 

to describe the closures for Gramp Rock 

and Tanaga Island/Bumpy Point, which 

differ west and east of 178°0′ 00′′ W 

longitude. This footnote also describes 

the area closures for the footnoted sites 

during two time periods of the year. 

Footnote 15 describes the vessel size 

specific closures for the Pacific cod 

hook-and-line, jig, and pot vessels in 

Area 542. Even though jig is not 

identified in the gear columns of the 

Table 5, the same restrictions apply to 

jig vessels, which are separately 

described in footnote 15. Footnote 16 

describes the Pacific cod pot, hook-andline, and jig closures in Area 541, and 

jig restrictions are also separately 

referred to in the footnote. Footnote 17 

is added to clarify the closure areas 

around Kiska Island sites that may 

overlap into Area 543. These revisions 

are necessary to insure the closures as 

described by the RPA are implemented. 

Table 6 to 50 CFR part 679 is revised 

to remove Steller sea lion sites that 

occur in the Area 543 and in the Bering 

Sea subarea, to remove reference to the 

HLA Atka mackerel fishery, and to 

describe the closures implemented by 

this interim final rule. The Steller sea 

lion sites for the Area 543 and for the 

Bering Sea subarea no longer have 

closures specific to each site because 

this interim final rule closes the entire 

Area 543 to Atka mackerel retention and 

closes the entire Bering Sea subarea to 

directed fishing for Atka mackerel. For 

this reason, these sites are removed from 

Table 6. Column 7 of Table 6 is revised 

to show the closures in Area 542. These 

closures are designed to allow limited 

fishing inside critical habitat, as 

provided by the RPA. Footnotes 2 and 

3 are revised and Footnote 6 is removed 

to remove reference to the Bering Sea 

subarea because directed fishing for 

Atka mackerel is closed in the entire 

subarea. Footnote 7 is renumbered to 

Footnote 4 and revised to describe the 

closure around Tanaga Island/Bumpy 

Point implemented by this interim final 

rule. A new Footnote 6 is added to 

describe the closure around Gramp Rock 

implemented by this interim final rule. 

A new Footnote 7 is added to describe 

the closures around Amatignak Island, 

Nitrof Point, Unalga & Dinkum Rocks, 

Ulak Island/Hasgox Point, and Kavalga 

Island implemented by this interim final 

rule. These revisions are necessary to 

insure that the protection measures 

described by the RPA are implemented. 

Table 12 to 50 CFR part 679 is revised 

to be consistent with the regulations at 

50 CFR 223.202(a)(2) and (a)(3) and to 

add the Kanaga Island/Ship Rock 

rookery. Section 223.202(a)(2) and (a)(3) 

specify the 3-nm no-transit areas around 

rookeries in the Aleutian Islands 

subarea and Gulf of Alaska. The Walrus 

Island rookery has the wrong 

designation for no-transit areas in 

column 7 of Table 12 to 50 CFR part 

679. Walrus Island is located in the 

Bering Sea subarea and does not have a 

3-nm no-transit area, and this interim 

final rule corrects this error in Table 12 

to 50 CFR part 679. This interim final 

rule also adds Kanaga Island/Ship Rock 

rookery to Table 12, applying a 3-nm no 

groundfish fishing area around this site. 

Kanaga Island/Ship Rock is not 

included in the § 223.202(a)(2) and 

(a)(3) regulations and does not have a 3- 

nm no-transit area. Column 7 of Table 

12 to 50 CFR part 679 is revised for each 

of these sites to indicate the presence or 

absence of the 3-nm no-transit areas. 

Classification 

The Administrator, Alaska Region, 

NMFS, determined that this interim 

final rule is necessary for the 

conservation and management of the 

BSAI groundfish fishery and that it is 

consistent with the Magnuson-Stevens 

Act and other applicable laws. Also, this 

action is directly responding to a 

reasonable and prudent alternative 

recommended in a biological opinion, 

and fulfills NMFS’s responsibility under 

the ESA. 

This interim final rule has been 

determined to be significant for 

purposes of Executive Order 12866. 

Formal section 7 consultation under 

the ESA was completed for this interim 

final rule under the FMPs for the 

groundfish fisheries of the BSAI and the 

GOA. In the 2010 BiOp, the NMFS 

Alaska Region Administrator 

determined that as currently managed, 

NMFS could not insure that the Alaska 

groundfish fisheries are not likely to 

jeopardize the continued existence of 

the western DPS of Steller sea lions or 

adversely modify its designated critical 

habitat. This interim final rule, 

developed in response to that finding 

and based on the RPA in the 2010 BiOp, 

has been determined by NMFS to insure 

that the Alaska groundfish fisheries are 

not likely to jeopardize the continued 

existence of the western DPS of Steller 

sea lions or adversely modify its 

designated critical habitat. 

Pursuant to 5 U.S.C. 553(b)(B), there 

is good cause to waive prior notice and 

an opportunity for public comment on 

this action, as notice and comment 

would be impracticable and contrary to 

the public interest. NMFS provided a 

30-day public review and comment 

period on the draft 2010 BiOp and on 

the draft EA/RIR supporting this action. 

NMFS reviewed and addressed all 

comments received before completion of 

the 2010 BiOp and adjusted the 

proposed RPA in response to public 

comment. The 2010 BiOp, with the final 

RPA, was signed November 24, 2010. 

Because of the timing of the start of the 

fisheries, which begins on January 1, 

2011, in relation to the completion of 

the 2010 BiOp, it is impracticable to 

complete rulemaking before the start of 

the fisheries with a public review and 

comment period. This interim final rule 

implements the final RPA based on 

consideration of public comments on 

the draft RPA. NMFS must insure the 

prosecution of a fishery is compliant 

with the ESA, which would not be 

possible if additional time was used to 

provide for a public review and 

comment period and agency processing 

of additional public comments on this 

action, as the fishery commences on 

January 1. These protection measures 

are necessary to prevent the likelihood 

that these fisheries will jeopardize the 


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continued existence of endangered 

Steller sea lions and adversely modify 

their critical habitat. 

There also is good cause under 5 

U.S.C. 553(d)(3) to waive the 30-day 

delay in effectiveness. The Steller sea 

lion protection measures must be 

effective by January 1, 2011, when the 

Pacific cod hook-and-line, pot, and jig 

fisheries are scheduled to open by 

regulation. These protection measures 

are necessary to prevent the likelihood 

that these fisheries will jeopardize the 

continued existence of endangered 

Steller sea lions and adversely modify 

their critical habitat. Accordingly, it is 

impracticable to delay for 30 days the 

effective date of this rule. Therefore, 

good cause exists to waive the 30-day 

delay in effectiveness pursuant to 5 

U.S.C. 553(b)(3), and to make the rule 

effective January 1, 2011. 

Although we are waiving prior notice 

and opportunity for public comment, 

we are requesting post promulgation 

comments until January 12, 2011. Please 

see ADDRESSES for more information on 

the ways to submit comments. 

Because prior notice and opportunity 

for public comment are not required for 

this 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., are inapplicable. 

This rule contains a collection-ofinformation requirement subject to the 

Paperwork Reduction Act (PRA) and 

which has been approved by OMB 

under control number 0648–0206. 

Public reporting burden for Federal 

Fisheries Permit Application is 

estimated to average 21 minutes per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. Send comments 

regarding this burden estimate, or any 

other aspect of this data collection, 

including suggestions for reducing the 

burden, to NMFS (see ADDRESSES) and 

by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Recordkeeping and 

reporting requirements. 

Dated: December 8, 2010. 

John Oliver, 

Deputy Assistant Administrator For 

Operations, National Marine Fisheries 

Service. 

■ For 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.; Pub. L. 108–447. 

■ 2. In § 679.2, remove the definitions 

for ‘‘Harvest limit area for platoon 

managed Atka mackerel directed 

fishing’’ and ‘‘Harvest limit area (HLA) 

for Atka mackerel directed fishing.’’ 

■ 3. In § 679.4, remove paragraph 

(b)(5)(vii) and revise paragraph (b)(5)(vi) 

to read as follows: 

§ 679.4 Permits. 

* * * * * 

(b) * * * 

(5) * * * 

(vi) Atka mackerel, pollock, and 

Pacific cod directed fisheries. 

(A) Indicate use of pot, hook-and-line, 

or trawl gear in the directed fisheries for 

pollock, Atka mackerel, or Pacific cod. 

(B) Selections for species 

endorsements will remain valid until an 

FFP is amended to remove those 

endorsements or the permit with these 

endorsements is surrendered or 

revoked. 

* * * * * 

■ 4. In § 679.7, revise paragraph (a)(19) 

and add paragraphs (a)(23), (a)(24), 

(a)(25), and (d)(10) to read as follows: 

679.7 Prohibitions. 

* * * * * 

(a) * * * 

(19) Atka mackerel and Pacific cod 

prohibition in Area 543. Retain in Area 

543 or in adjacent State waters Pacific 

cod or Atka mackerel required to be 

deducted from the Federal TAC 

specified under § 679.20 on a vessel 

required to be Federally permitted. 

* * * * * 

(23) Pacific cod directed fishing 

prohibition by hook-and-line, pot, or jig 

vessels in the Aleutian Islands subarea. 

Conduct directed fishing for Pacific cod 

required to be deducted from the 

Federal TAC specified under § 679.20 in 

the Aleutian Islands subarea and 

adjacent State waters with a vessel 

required to be Federally permitted using 

hook-and-line, pot, or jig gear November 

1, 1200 hours, A.l.t., to December 31, 

2400 hours, A.l.t. 

(24) Atka mackerel directed fishing in 

the Bering Sea subarea. Conduct 

directed fishing for Atka mackerel in the 

Bering Sea subarea and adjacent State 

waters with a vessel required to be 

Federally permitted. 

(25) Atka mackerel directed fishing 

inside Steller sea lion critical habitat in 

Area 542. Conduct directed fishing for 

Atka mackerel inside waters 10 nm to 

20 nm of Gramp Rock and Tag Island 

rookeries, as described on Table 12 to 

this part, unless fishing under the 

authority of a CDQ allocation or an 

Amendment 80 cooperative quota 

permit. 

* * * * * 

(d) * * * 

(10) For a CDQ group, exceed a 

seasonal allowance of Atka mackerel 

under § 679.20(a)(8)(ii). 

* * * * * 

■ 5. In § 79.20, remove and reserve 

paragraph (a)(8)(iii), and revise 

paragraphs (a)(8)(ii)(A), (a)(8)(ii)(C), and 

(c)(6) to read as follows: 

§ 679.20 General limitations. 

* * * * * 

(a) * * * 

(8) * * * 

(ii) * * * 

(A) Seasonal allowances. The Atka 

mackerel TAC specified for each 

subarea or district will be divided 

equally, after subtraction of the jig gear 

allocation, into two seasonal allowances 

corresponding to the A and B seasons 

defined at § 679.23(e)(3). 

* * * * * 

(C) Area 542 Atka mackerel harvest 

limitations—(1) Atka mackerel catch 

within waters 10 nm to 20 nm of Gramp 

Rock and Tag Island, as described on 

Table 12 to this part, is limited to: 

(i) No more than 10 percent of an 

Amendment 80 cooperative’s Area 542 

Atka mackerel allocation, and 

(ii) No more than 10 percent of a CDQ 

group’s Area 542 Atka mackerel 

allocation. 

(2) Atka mackerel harvest within 

waters 10 nm to 20 nm of Gramp Rock 

and Tag Island, as described on Table 12 

to this part, is equally divided between 

the A and B seasons defined at 

§ 679.23(e)(3). 

(3) The annual TAC will be no greater 

than 47 percent of the ABC. 

* * * * * 

(c) * * * 

(6) BSAI Atka mackerel allocations. 

The proposed and final harvest 

specifications will specify the allocation 

of BSAI Atka mackerel among gear types 

as authorized under paragraph (a)(8) of 

this section. 

* * * * * 


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■ 6. In § 679.22, revise paragraphs 

(a)(7)(vi) and (a)(8)(iv), and remove and 

reserve paragraph (b)(6) to read as 

follows: 

§ 679.22 Closures. 

(a) * * * 

(7) * * * 

(vi) Atka mackerel closures. Directed 

fishing for Atka mackerel by vessels 

named on a Federal Fisheries Permit 

under § 679.4(b) and using trawl gear is 

prohibited within the Bering Sea 

subarea. 

* * * * * 

(8) * * * 

(iv) Pacific cod closures. Directed 

fishing for Pacific cod required to be 

deducted from the Federal TAC 

specified at § 679.20 by vessels named 

on a Federal Fisheries Permit under 

§ 679.4(b) using trawl, hook-and-line, 

jig, or pot gear is prohibited within the 

Pacific cod no-fishing zones around 

selected sites. These sites and gear types 

are described in Table 5 of this part and 

its footnotes and are identified by ‘‘AI’’ 

in column 2. 

* * * * * 

■ 7. In § 679.23, remove paragraphs 

(e)(4)(iv) and (e)(4)(v) and revise 

paragraphs (e)(3) and (e)(4)(iii) to read 

as follows: 

§ 679.23 Seasons. 

* * * * * 

(e) * * * 

(3) Directed fishing for Atka mackerel 

with trawl gear. Subject to other 

provisions of this part, directed fishing 

for Atka mackerel with trawl gear in the 

BSAI is authorized only during the 

following two seasons: 

(i) A season. From 1200 hours, A.l.t., 

January 20 through 1200 hours, A.l.t., 

June 10; and 

(ii) B season. From 1200 hours, A.l.t., 

June 10 through 1200 hours, A.l.t., 

November 1. 

(4) * * * 

(iii) Groundfish CDQ. Fishing for 

groundfish CDQ species, other than 

CDQ pollock; hook-and-line, pot, jig, or 

trawl CDQ Pacific cod; trawl CDQ Atka 

mackerel; and fixed gear CDQ sablefish 

under subpart C of this part, is 

authorized from 0001 hours, A.l.t., 

January 1 through the end of each 

fishing year, except as provided under 

paragraph (c) of this section. 

* * * * * 

679.50 [Amended] 

■ 8. In § 679.50, remove paragraph 

(c)(1)(x). 

■ 9. In 50 CFR part 679, revise Tables 

5, 6, and 12 to read as follows: 

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[FR Doc. 2010–31226 Filed 12–8–10; 4:15 pm] 

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