Fisheries of the Exclusive Economic Zone Off Alaska; Closure of Critical Habitat Pursuant to a Court Order

AGENCY:

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

ACTION:

Interim rule.

SUMMARY:

NMFS issues interim regulations to close waters within critical habitat in the exclusive economic zone off Alaska west of 144°W. long. to all commercial groundfish fishing with trawl gear. This action is necessary to comply with a United States District Court Order.

DATES:

Effective 11:00 am A.l.t., August 9, 2000.

FOR FURTHER INFORMATION CONTACT:

John Lepore, 907-586-7228 or john.lepore@noaa.gov

SUPPLEMENTARY INFORMATION:

NMFS manages the U.S. groundfish fisheries in the exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) under the fishery management plans (FMPs) for groundfish in the respective areas. The North Pacific Fishery Management Council (Council) prepared, and NMFS approved, the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR 600.

NMFS also has statutory authority to promulgate regulations to enforce provisions of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq. The ESA requires that each Federal agency shall ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat of such species.

On July 19, 2000, the United States District Court for the Western District of Washington issued an order that granted a motion for a partial injunction of the North Pacific groundfish fisheries. Greenpeace et al. v. NMFS, No. C98-4922 (W.D. Wash.). This motion, filed by Greenpeace, American Oceans Campaign, and the Sierra Club (hereafter the Plaintiffs), requested injunctive relief until NMFS issues a legally adequate biological opinion addressing the combined, overall effects of the North Pacific groundfish fisheries on Steller sea lions and their critical habitat pursuant to the ESA. The population of Steller sea lions west of 144°W. long. (hereafter western population) is listed under the ESA as endangered, while the population of Steller sea lions east of 144°W. long. is listed as threatened.

This rule, promulgated under the authority of Section 11(f) of the ESA and in compliance with the Court's injunction, prohibits all groundfish trawl fishing, as the term fishing is defined at 16 U.S.C. 1802(15) and authorized pursuant to the Fishery Management Plans for the Bering Sea/Aleutian Islands and Gulf of Alaska, within Steller sea lion critical habitat listed in Tables 1 and 2 to 50 CFR 226.202 that is in federally regulated waters west of 144°W. long., as well as the three special aquatic foraging areas defined at 50 CFR 226.202. For the convenience of the affected public, all areas closed to groundfish trawling pursuant to the court order are described below. Please refer to regulations at 50 CFR § 226.202 and § 223.202 for further details concerning designated critical habitat and threatened marine and anadromous species. Steller Sea Lion Critical Habitat Sites Closed:

Critical habitat includes the Shelikof Strait area in the Gulf of Alaska and consists of the area between the Alaska Peninsula and Tugidak, Sitknak, Aiaktilik, Kodiak, Raspberry, Afognak and Shuyak Islands (connected by the shortest lines); bounded on the west by a line connecting Cape Kumlik (56° 38′N/157° 27′W) and the southwestern tip of Tugidak Island (56° 24′N/154° 41′W) and bounded in the east by a line connecting Cape Douglas (58° 51′N/153° 15′W) and the northernmost tip of Shuyak Island (58° 37′N/152° 22′W).

Critical habitat includes the Bogoslof area in the Bering Sea shelf and consists of the area between 170° 00′W and 164° 00′W, south of straight lines connecting 55° 00′N/170° 00′W and 55° 00′N/168° 00′W; 55° 30′N/168° 00′W and 55° 30′N/166° 00′W; 56° 00′N/166° 00′W and 56° 00′N/164° 00′W and north of the Aleutian Islands and straight lines between the islands connecting the following coordinates in the order listed: 52° 49.2′/169° 40.4′W; 52° 49.8′N/169° 06.3′; 53° 23.8′N/167° 50.1′W; 53° 18.7′N/167° 17.2′W; 54° 02.9′N/166° 03.0′W; 54° 07.7′N/165° 40.6′W; 54° 08.9′N/165° 38.8′W; 54° 11.9′N/165° 23.3′W; and 54° 23.9′N/164° 44.0′W.

Critical habitat includes the Seguam Pass area and consists of the area between 52° 00′N and 53° 00′N and between 173° 30′W and 172° 30′W.

Research activities conducted by scientific research vessels, as defined 50 CFR 600.10, are exempted from the closure specified in this emergency rule.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is necessary to comply with a court order and is authorized by the ESA.

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., do not apply to this action.

This emergency rule has been determined to be significant under section 3(f)(1) of E.O. 12866. NMFS estimates that the potential economic losses in closing critical habitat to pollock trawling from June through December 2000 could be as high as $88 million. Industry has estimated that if the injunction remains in place through the A/B seasons, loses could be as high as $250 mission. This rule has been determined to be major for purposes of the Congressional Review Act, 5 U.S.C. 801, et seq. The delay in effective date normally required for major rules under the Congressional Review Act is inapplicable to this rule closing a commercial fishery pursuant to 5 U.S.C. 808(1).

NMFS finds that there is good cause to waive the requirement to provide prior notice and an opportunity for public comment pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such procedures are unnecessary. This action complies with a United States District Court order and is non-discretionary. Delaying the effectiveness of this interim rule to provide prior notice and opportunity for comment would prevent NMFS from complying with the Court's order, which requires that critical habitat be closed to groundfish trawling by 12:00 noon Pacific time, August 8, 2000. Additionally, pursuant to authority at 5 U.S.C. 553(d)(3), NMFS finds good cause to waive the 30 day delay in effective date and makes this rule effective immediately in order to meet the time and date specified in the court's order.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

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 50 CFR part 679 is revised to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.; Title II of Division C, Pub. L. 105-277; Sec. 3027, Pub. L. 106-31, 113 Stat. 57; 16 U.S.C. 1540(f).

2. In § 679.22, paragraph (j) is added to read as follows: