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 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 679
[Docket No. 010112013-1139-04; I.D. 011101B]
RIN 0648-A082
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Amendments to an emergency interim rule; request for comments.
 SUMMARY: NMFS amends an emergency interim rule implementing 2001 Steller sea lion protection measures.  These modifications prohibit directed fishing for Pacific cod by specified vessels until the July 17, 2001, expiration of that emergency interim rule.  It is expected 
                        ( print page 31846)
                        that NMFS will undertake further rulemaking by that date to establish new fishing seasons for the Pacific cod fisheries and other Steller sea lion protection measures for the second half of 2001.  This current action is intended to provide for orderly implementation of 2001 Steller sea lion protection measures and is necessary to manage the groundfish fisheries off Alaska in a manner that continues to provide protection to Steller sea lions and their critical habitat in accordance with the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and Pub. L. 106-554.
 DATES: Effective 1200 hrs, Alaska local time (A.l.t.), June 10, 2001, through July 17, 2001.  Comments must be received July 9, 2001.
 ADDRESSES: Comments may be sent to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK, 99802, Attn: Lori Gravel, or delivered to room 401 of the Federal Building, 709 West 9th Street, Juneau, AK.  Comments will not be accepted if submitted via e-mail or Internet. Copies of the November 30, 2000, Biological Opinion and Incidental Take Statement on Authorization of the Bering Sea and Aleutian Islands (BSAI) groundfish fisheries, based on the Fishery Management Plan for the Groundfish Fisheries of the Bering Sea and Aleutian Islands and Authorization of the GOA groundfish fisheries, based on the Fishery Management Plan for Groundfish of the Gulf of Alaska (Comprehensive Biological Opinion), including the Reasonable and Prudent Alternative (RPA), may be obtained from the same address.  The Comprehensive Biological Opinion is also available on the NMFS Alaska Region home page at 
                        *http://www.fakr.noaa.gov*.
 FOR FURTHER INFORMATION CONTACT: Sue Salveson, NMFS, 907-586-7228 or e-mail at 
                        *sue.salveson@noaa.gov*


SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for the Groundfish Fisheries of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs).  The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, 
                    *et seq.*
                     Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600 and 679. NMFS also has management responsibility for certain threatened and endangered species, including Steller sea lions, under the ESA, 16 U.S.C. 1531, 
                    *et seq.*, and the authority to promulgate regulations to enforce provisions of the ESA to protect such species. Background On January 22, 2001, NMFS published an emergency rule that established 2001 harvest specifications for the BSAI and GOA groundfish fisheries and implemented 2001 Steller sea lion protection measures for these fisheries (66 FR 7276).  These protection measures initiated a 1-year phase-in of the RPA developed in the Comprehensive Biological Opinion (see 
                    **ADDRESSES**
                    ) as directed under section 209 of Pub. L. 106-554.  This law was signed by the President on December 21, 2000, and was intended to provide for independent scientific review and additional public and Council assessment of the Comprehensive Biological Opinion and the RPA prior to full implementation of the RPA in 2002.  NMFS determined that the 2001 protection measures provided a sufficient degree of protection to endangered Steller sea lions during the 1-year phase-in period, were consistent with the intended purpose of the RPA, and allowed for the review or assessment called for in the ESA, and with section 209 of Pub. L. 106-554. The January 22, 2001, emergency rule extended the Steller sea lion protection measures that were in place during 2000 for the BSAI Atka mackerel fisheries and the BSAI and GOA pollock fisheries.  The emergency rule also implemented several new measures, including two fishing seasons for GOA Pacific cod and for non-Community Development Quota (CDQ) Pacific cod in the BSAI.  A complete description and justification of the 2001 Steller sea lion protection measures is discussed in the preamble to the January 22, 2001, emergency rule (66 FR 7276). On March 23, 2001, NMFS amended the emergency rule to change fishing restrictions on vessels fishing for groundfish off Alaska with jig gear and on vessels less than 60 ft (18.3 meters (m)) length overall (LOA) fishing for BSAI Pacific cod with hook-and-line or pot gear (66 FR 17083, March 29, 2001).  On March 20, 2001, NMFS also issued a correction to the January 22, 2001, emergency rule that addressed various technical and editorial errors (66 FR 15656, March 20, 2001). As mentioned previously, the January 22, 2001, emergency rule established two fishing seasons for the BSAI and GOA Pacific cod fisheries, January 1 to June 10 (60 percent of the total allowable catch (TAC)), and June 10 to December 31 (40 percent of the TAC), except that directed fishing for Pacific cod with trawl gear was prohibited after October 31, 2001.  The March 23, 2001, emergency rule removed the season restrictions for the BSAI jig gear fisheries and BSAI vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear.  Separate allocations of the BSAI Pacific cod TAC are established for these two groups of vessels under § 679.20(a)(7)(i)(C) that facilitated separate seasonal fishing restrictions of this species.  Justification for this relief of seasonal harvest constraints is discussed in the preamble to the March 23, 2001, emergency rule (66 FR 17083). At its April 2001 meeting, the Council requested NMFS to issue an emergency rule establishing modified Steller sea lion protection measures for the second half of 2001 that would be implemented at the expiration of the January 22, 2001, emergency rule on July 17, 2001.  NMFS is in the process of reviewing the Council’s recommendation. In addition to recommending measures for the second half of 2001, the Council, at its April meeting, requested NMFS delay the June 10 opening date of the GOA Pacific cod fishery and the BSAI Pacific cod fishery by vessels greater than 60 ft (18.3 m) LOA using pot or hook-and-line gear.  The Council’s request was intended to promote management of the Alaska Pacific cod fisheries in a manner that would maintain the objective of 2001 Steller sea lion protection measures to avoid localized depletion of Pacific cod through temporal and spatial distribution of the directed fisheries for this species.  The Council’s requested season delays also would address salmon and Pacific halibut bycatch concerns.  Other fishery management concerns addressed included poor product recovery and quality in summer months; competition with summer salmon fisheries for processing facilities; potential gear conflicts between pot and trawl gear fleets; and coordination between BSAI Pacific cod fisheries within the CDQ and non-CDQ sectors.  Regulations to prohibit directed fishing for Pacific cod in the GOA and in the BSAI by vessels equal to or greaater than 60 ft (18.3) LOA using pot or hook-and-line gear must be effective by June 10, 2001, to meet the intent of the Council and to avoid industry confusion and a race for available Pacific cod TAC on this date. The Pacific cod seasons adopted by the Council and approved by NMFS 
                    ( print page 31847)
                    under this amendment to the January 22, 2001, emergency interim rule impose no seasonal harvest constraints for vessels fishing in the BSAI using jig gear, for vessels less than 60 ft LOA using pot or hook-and-line gear, or for vessels participating in the CDQ fisheries.  These vessels were addressed in the March 23 amendment to the January 22 emergency rule.  The Council’s recommended start dates for the second Pacific cod season in 2001 for other Pacific cod sectors are listed here: PACIFIC COD FISHERY SECTOR*
SECOND SEASON OPENING DATE OF DIRECTED FISHING FOR PACIFIC CODJune 10
August 15
September 1Gulf of Alaska  All gear types


XBering Sea and Aleutian Islands-All trawl
XBering Sea and Aleutian Islands Pot vessels ≥60 ft LOA


XBering Sea and Aleutian Islands Vessels ≥ 60 ft LOA using hook-and-line gear

X* Seasonal harvest constraints are not established for BSAI vessels using jig gear, BSAI vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear, or for vessels participating in the CDQ fisheries.
 The purpose of this amendment to the existing emergency interim rule is to support the Council’s management intentions for the Pacific cod season delays through prohibitions on directed fishing for Pacific cod by specified vessels as of June 10.  These closures will remain effective until the expiration of the January 22 emergency rule.  An expected upcoming rule will establish new opening dates for the second Pacific cod season for different harvesting sectors.  The justification for the fishery closures implemented under this amendment to the January 22 emergency rule follows. The Council recommended that the second season opening date for the GOA Pacific cod fisheries be delayed from June 10 to September 1.  Except for an allocation between inshore and offshore sectors under § 679.20(a)(6)(iii), the GOA Pacific cod TAC is not allocated among different gear sectors that would facilitate separate treatment of vessels using jig, pot, hook-and-line, or trawl gear.  Thus, the Council’s intent was to delay the second season for vessels using any gear type. The Council recommended a season delay to September 1 in consideration of the fact that only 40 percent of the 2001 TAC remains for the remainder of the year, that the fishery would not be sufficiently compromised to the extent it would effect foraging Steller sea lions, and that trawl fishing would continue to be prohibited after October 31 to eliminate the potential of relatively high volume harvest amounts during winter months. Further, a September 1 opening date for the second GOA Pacific cod season also would address concerns for salmon bycatch in the June and July trawl fisheries that could increase significantly if the Pacific cod fishery were to open June 10.  Specifically, chum salmon move through the Gulf of Alaska and concentrate in Aleutian Island passes on their way to Western Alaska spawning grounds.  During this time, they are vulnerable to interception in other fisheries, including GOA groundfish trawl fisheries.  In the January 22 emergency interim rule that established NMFS’ intent for 2001 Steller sea lion conservation measures, NMFS anticipated that the summer GOA pollock fishery would be delayed to August 20, thus avoiding the potential for significant salmon bycatch and the Council desired the same mitigation for the GOA Pacific cod trawl fisheries. Finally, Pacific halibut bycatch rates in both the trawl and hook-and-line gear fisheries for GOA Pacific cod would increase significantly in summer months when halibut move into shallower waters where the cod fisheries typically are conducted.  Furthermore, catch-per-unit of effort for Pacific cod is low at this time of year when fish are dispersed, and fishing gear is in the water for a longer period of time and has greater opportunity for increased incidental catch rates of prohibited species.  The flesh quality and product recovery of Pacific cod also is relatively low in summer months, when a target fishery generally has been avoided in favor of other times of the year when harvest and revenues would be more optimal.  Last, GOA processing capacity for groundfish in summer months is constrained by processing needs of the salmon industry and these competing uses of processing facilities would be avoided by the proposed delay of the Pacific cod fishery until early September when the salmon fisheries generally have concluded. The Council also requested a delay of the second season opening date of the BSAI hook-and-line catcher/processor and catcher vessel fisheries for Pacific cod from June 10 until August 15.  In taking this action, the Council recognized that NMFS already has implemented the 2001 seasonal apportionment of the non-trawl Pacific halibut bycatch limit in a manner that currently delays the BSAI hook-and-line Pacific cod fisheries to August 1.   The additional delay from August 1 to August 15 was adopted by the Council to maintain temporal distribution of the fishery consistent with the objectives of existing  Steller sea lion protection measures, while minimizing high halibut bycatch rates during summer months.  This delay also reduces the potential for interaction of the hook-and-line gear fisheries with the endangered short-tailed albatross and other seabird species during summer months.  Finally, this delay provides additional opportunity for the harvest of CDQ Pacific cod with hook-and-line gear to the extent that fishing for CDQ Pacific cod would occur in summer months prior to the start of the non-CDQ fisheries when partner vessels contracted to harvest or process CDQ Pacific cod become less available. Finally, the Council requested a  June 10 to September 1 delay in the second season opening date for the BSAI Pacific cod pot gear fishery by vessels equal to or greater than 60 ft (18.3 m) LOA.  This action was requested in recognition that the amount of BSAI Pacific cod that remains to be harvested by these vessels in the second season represents less than 2 percent of the BSAI Pacific cod TAC.  The Council also recognized that harvest removals by this gear type are slow paced and are unlikely to effect Steller sea lions in a manner not already considered by NMFS when it implemented the 2001 Steller sea lion protection measures.  This season delay for the pot gear fleet also is intended by the Council to help avoid gear conflicts with the groundfish trawl fisheries. 
 
 The June 10 second season opening date for BSAI Pacific cod harvested by trawl vessels remains unchanged to maintain overall spatial and temporal distribution of the BSAI Pacific cod fisheries.  Potential bycatch concerns ensuing from a summer trawl effort for Pacific cod was assumed by the Council to be self limiting due to low summer catch rates and the fleets’ avoidance of high Pacific halibut bycatch rates that could preempt more lucrative fall fishing.  Salmon bycatch in the non-pollock trawl fisheries typically has not posed a concern given that summer trawl fisheries typically are limited due to halibut bycatch concerns and restrictions.  These fisheries also tend to operate on fishing grounds that avoid high bycatch rates of salmon. NMFS has assessed the Council’s request for delay of the second season opening date for Pacific cod by specified sectors relative to the objective of distributing Pacific cod fisheries in time and space  to minimize fishery competition with Steller sea lion foraging success.  The season delay only affects the BSAI Pacific cod pot and hook-and-line gear fisheries and the GOA Pacific cod fisheries.  These fisheries will be limited to 40 percent of their 2001 Pacific cod TAC allocations.  Any existing seasonal constraints for the BSAI trawl, jig, CDQ, and small vessel pot or hook-and-line fisheries for Pacific cod are unchanged.  The BSAI Pacific cod pot gear allocation for the remainder of year totals less than 5,000 metric tons (mt).  The magnitude and expected rate of removal by this gear type starting on September 1 for the remainder of 2001 does not pose concern for disproportionate removals of Pacific cod in critical habitat areas.  The hook-and-line gear harvest of BSAI Pacific cod during the second season starting on August 15 historically is spread spatially in a manner that does not pose concern for disproportionate removal in Steller sea lion critical habitat.  Further, the maximum historical weekly harvest rate by this sector in recent years (less than 5,600 mt) is sufficiently low as to not pose undue concern for prey competition with Steller sea lions during the 2001 phase-in year of the RPA. The GOA Pacific cod fishery during the delayed second season would continue to be limited to 40 percent of the annual TAC and regulatory provisions will remain unchanged for the closure of the directed fishery by trawl vessels after October 31, 2001.  Weekly catch rates of GOA Pacific cod are anticipated to be low during the second season given that Pacific cod are not aggregated in a manner conducive to intense harvest effort and removals. Based on these determinations, NMFS finds that the compressed duration of the second Pacific cod season for the GOA fisheries and the BSAI pot and hook-and-line gear fisheries and the rate of removal of the remaining Pacific cod allocated to these fisheries are of sufficiently small temporal scale and impact as to not pose concern for a disproportionate rate of harvest removal.  Thus, the effects of this amendment to the January 22, 2001, emergency interim rule on the ability of Steller sea lions to forage on available Pacific cod would not be compromised to the extent that the compressed seasons would lead to any effect that has not been previously considered in the implementation of the January 22, 2001, emergency rule, including any increased takes of Steller sea lions or any other species listed under the ESA. This action also addresses prohibited species bycatch concerns. The second season delay for the BSAI hook-and-line and pot gear fisheries and the GOA fishery by any gear type is advisable in consideration of salmon, seabird, and Pacific halibut bycatch concerns, as well as general management of competing BSAI fisheries using the same fishing platforms (CDQ vs non-CDQ Pacific cod fisheries) and fishing grounds (pot gear vs non-pot gear). Classification The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this emergency interim rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA.  The Regional Administrator also has determined that this emergency interim rule is consistent with the Magnuson-Stevens Act and other applicable laws. This action has been determined to be not significant for purposes of Executive Order 12866.  This emergency interim rule contains no reporting, recordkeeping, or compliance requirements, and no relevant Federal rules exit which may duplicate, overlap, or conflict with this action. This amended emergency interim rule is consistent with the objectives for Steller sea lion protection measures implemented in 2001 under section 209(c)(6) of Pub. L. 106-554, the ESA, and other applicable laws.  This action also will minimize bycatch rates of salmon and Pacific halibut in the Pacific cod fisheries while providing for continued temporal distribution of the Pacific cod fisheries.  As such, the opportunity for harvest of Pacific cod will be optimized under prohibited species catch restrictions and the desire to avoid high bycatch rates of chum salmon in the GOA groundfish fisheries.  The short-term directed fishing prohibitions implemented under the amended emergency interim rule must be effective by June 10, 2001, to realize the intent of the Council and NMFS and avoid more long-term fishery closures that could occur if the fishery were to be conducted when bycatch rates are high and cod catch rates are low.  Thus, this action must be implemented as soon as practical and in a manner that makes impracticable prior opportunity for notice and public comment.  Therefore, good cause exists to waive those requirements pursuant to 5 U.S.C. 553(b)(3).  For the same reason, good cause exists to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3).  Because this emergency interim rule is not subject to the requirement to provide notice or an opportunity for comment by 5 U.S.C. 553 or any other laws, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
                    *et seq.*
                     are not applicable.  Thus, no initial or final regulatory flexibility analysis has been prepared. List of Subjects in 50 CFR Part 679
 Alaska, Fisheries, Recordkeeping and reporting requirements. Dated:  June 7, 2001. William T. Hogarth, Acting Assistant Administrator  for Fisheries, National Marine Fisheries Service.
 For the reasons set out in the preamble, 50 CFR part 679 is amended as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
 1.The authority citation for part 679 continues to read as follows: Authority:
                        16 U.S.C. 773 
                            *et seq.*; 1801 
                            *et seq.*; 3631 
                            *et seq.*; Title II of Division C, Pub. L. 10-277; Sec. 3027,  Pub.  L. 106-31; 113 Stat. 57; 16 U.S.C. 1540(f); and section 209, Pub. L. 106-554. 2.In § 679.23, paragraphs (d)(4) and (e)(6)(iii) are suspended and paragraphs (d)(5) and (e)(6)(iv) are added to read as follows: § 679.23
  
 (d) *   *   * (5) 
                            *Directed fishing for Pacific cod*.  Directed fishing for Pacific cod in the Western and Central Regulatory Areas is prohibited. (e) *   *   * (6) *   *   * 
 
 (iv) 
                            *Nontrawl gear.*
                             Subject to other provisions of this part, directed fishing for Pacific cod with non-trawl gear is authorized as follows: (A) 
                            *Vessels using jig gear and vessels less than 60 ft (18.3 m) LOA using pot or hook-and-line gear.*
                             From 0001 hours A.l.t., January 1, through 2400 hours, A.l.t., July 17. (B) 
                            *Vessels equal to or greater than 60 ft (18.3 m) and using pot or hook-and-line gear.*
                             Directed fishing is prohibited.


[FR Doc. 01-14894 Filed 6-8-01; 4:20 pm] BILLING CODE 3510-22-S