[Federal Register: October 29, 2007 (Volume 72, Number 208)]
[Rules and Regulations]
[Page 61070-61076]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc07-12]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 070322067-7501-01; I.D. 031407A]
RIN 0648-AU03
Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited
Species Bycatch Management
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS amends regulations governing salmon bycatch in the
Bering Sea and Aleutian Islands management area (BSAI). This action is
necessary to enhance the effectiveness of salmon bycatch measures by
exempting pollock vessels from Chinook and Chum Salmon Savings Area
closures if they participate in an intercooperative agreement (ICA) to
reduce salmon bycatch, and exempting vessels participating in non-
pollock trawl fisheries from Chum Salmon Savings Area closures because
these fisheries intercept minimal amounts of salmon. This action is
intended to promote the goals and objectives of the Fishery Management
Plan for Groundfish of the Bering Sea and Aleutian Islands Management
Area (FMP).
DATES: Effective on November 28, 2007.
ADDRESSES: Copies of Amendment 84; the final Environmental Assessment/
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/
RIR/IRFA) prepared for Amendment 84; and the final Environmental
Assessment/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (EA/RIR/FRFA) prepared for this action may be obtained from
the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen
Sebastian, and on the NMFS Alaska Region website at http://www.fakr.noaa.gov
.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements included in this
final rule may be submitted to NMFS at the address above and by e-mail
to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or
jason.anderson@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the BSAI in the
Exclusive Economic Zone under the FMP. The North Pacific Fishery
Management Council (Council) prepared the FMP pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Regulations implementing the FMP appear at 50 CFR part 679. General
regulations that pertain to U.S. fisheries appear at subpart H of 50
CFR part 600.
Pacific salmon are caught incidentally in the BSAI trawl fisheries,
especially in the pollock fishery. Of the five species of Pacific
salmon, Chinook salmon (Onchorynchus tshawytscha) and chum salmon (O.
keta) are most often incidentally caught in the pollock fisheries.
Pacific salmon are placed into two categories for purposes of salmon
bycatch management: Chinook and non-Chinook. The non-Chinook category
is comprised of chum, sockeye (O. nerka), pink (O. gorbuscha), and coho
(O. kisutch) salmon. However, chum salmon represent about 98 percent of
non-Chinook salmon harvested incidentally in the pollock trawl
fisheries. For convenience, all non-Chinook salmon are referred to as
chum salmon.
In October 2005, the Council adopted Amendment 84 to the FMP.
Amendment 84 establishes the salmon bycatch intercooperative agreement
(ICA) which allows vessels participating in the directed fisheries for
pollock in the Bering Sea to utilize their internal cooperative
structure to reduce salmon bycatch using a method called the
``voluntary rolling hotspot system'' (VRHS). In recommending Amendment
84, the Council recognized that current regulatory management measures,
including a bycatch cap that triggered closure of fixed salmon savings
areas, have not been effective at reducing salmon bycatch. Amendment 84
provides an alternative approach to managing salmon bycatch which has
the potential to be more effective than current regulations.
The notice of availability for Amendment 84 was published in the
Federal Register on March 26, 2007 (72 FR 14069), and the public review
and comment period closed on May 25, 2007. NMFS approved Amendment 84
on June 22, 2007. This final rule contains regulatory amendments
necessary to implement the provisions of Amendment 84.
The proposed rule to implement Amendment 84 was published in the
Federal Register on April 18, 2007 (72 FR 19454), and the public review
and comment period closed on June 4, 2007. The proposed rule contains a
description of the management measures adopted by the Council prior to
Amendment 84 to limit salmon bycatch, a description of requirements for
the salmon bycatch reduction ICA, and a summary of the proposed
regulations to implement the Amendment 84. Please refer to the proposed
rule for detailed background information as it is not reproduced in
this final rule.
The purpose of the salmon bycatch avoidance ICA is to use real-time
salmon bycatch information to avoid areas of high chum and Chinook
salmon bycatch rates. Parties to the ICA include the American Fisheries
Act cooperatives, the six Western Alaska Community Development Quota
(CDQ)
[[Page 61071]]
groups, at least one third party group representing western Alaskans
who depend on salmon and have an interest in salmon bycatch reduction,
and at least one private firm retained to facilitate bycatch avoidance
behavior and information sharing. The ICA utilizes a system of base
bycatch rates, assignment of vessels to tiers based on bycatch rates
relative to the base rate, a system of closures for vessels in certain
tiers, and monitoring and enforcement through private contractual
arrangements. Vessels participating in the salmon bycatch ICA are
exempted from closures of the Chinook and Chum Salmon Savings Areas in
the Bering Sea. In addition, vessels participating in trawl fisheries
for species other than pollock are exempt from Chum Salmon Savings Area
closures. More information about the salmon bycatch reduction ICA is
included in the Classification section of this rule and in the proposed
rule (72 FR 19454; April 18, 2007).
Response to Comments
NMFS received two letters of comment on Amendment 84 and one letter
of comment on both the proposed rule and the amendment. These letters
contained seven separate comments related to both the proposed rule and
the amendment. The following summarizes and responds to these comments.
Comment 1: While we support the ideas and intent of salmon bycatch
management through the Voluntary Rolling Hot Spot (VRHS) system adopted
by Amendment 84, in the absence of an associated limit on salmon
bycatch, we have great concerns that this system will not effectively
reduce salmon bycatch in compliance with National Standard 9 of the
Magnuson-Stevens Act and the Yukon River Salmon Agreement. In fact, the
experiences of the first two seasons of operation of the VRHS under an
Experimental Fishing Permit have seen some of the highest bycatch
numbers on record.
Response: From 1990 through 2001, BSAI Chinook salmon bycatch
averaged around 37,819 individual fish annually, and chum salmon
bycatch averaged 69,332. Recently, however, salmon bycatch numbers have
increased significantly. In 2003, 54,911 Chinook salmon and 197,091
chum salmon were caught incidentally in the trawl fisheries. In 2004,
salmon bycatch increased to 62,493 Chinook and 465,650 chum salmon.
Bycatch amounts remained high in 2005 and totaled 74,975 Chinook and
711,939 chum salmon. In 2006, 87,786 Chinook and 326,279 chum salmon
were taken.
NMFS authorized exempted fishing permits (EFPs) for the 2006 ``B''
and 2007 ``A'' and ``B'' seasons to allow the pollock fisheries in the
Bering Sea to operate under the salmon bycatch ICA that will be
implemented by Amendment 84. The EFPs exempted the pollock fleet from
salmon savings area closures and allowed them to explore the
feasibility of operating under a dynamic salmon bycatch reduction
mechanism. One of the objectives of these EFPs was to reduce salmon
bycatch, however, as noted by the commenter, salmon bycatch amounts
remain high even under the EFPs.
Analyses of data collected under the EFPs suggest that salmon
bycatch rates and amounts would have been higher without the salmon
savings area exemptions that are provided under Amendment 84. A report
prepared by representatives of the ICA for the Council concluded that
the reduced salmon bycatch rates under the 2006 EFP resulted in
estimated savings of salmon from what would otherwise have occurred (18
percent reduction for Chinook and 65 percent reduction for chum). They
also reported that the 2007 EFP resulted in an estimated savings of
39,000 Chinook salmon during the ``A'' season.
The primary objective of Amendment 84 is to reduce salmon bycatch.
Information in the EA/RIR/FRFA that compares historical bycatch rates
inside and outside the existing salmon savings closure areas and the
EFP reports indicate that bycatch rates under the EFP have been reduced
relative to what they would have been under the existing regulatory
structure.
Amendment 84 provides participants in the pollock fisheries the
flexibility to conduct pollock fishing in areas of relatively lower
salmon bycatch rates and to be responsive to current bycatch rates
rather than relying on static closure areas that were established based
on historical high bycatch rates. The EA/RIR/FRFA shows that the
existing regulations caused vessels to fish in areas of higher bycatch
rates when the Chinook and Chum Salmon Savings Areas closed. For these
reasons, we believe that Amendment 84 is consistent with National
Standard 9 because it increases the ability of ICA participants to
minimize salmon bycatch to the extent practicable. In addition, we
believe that Amendment 84 also is consistent with the Yukon River
Salmon Agreement because it is an element of the Council's efforts to
reduce bycatch of western Alaska salmon in the BSAI groundfish
fisheries. Additionally, the Council continues to work on ways to
further reduce salmon bycatch and will evaluate the effectiveness of
Amendment 84 in the next few years as it analyzes additional
alternatives to reduce salmon bycatch.
Comment 2: The commenter is concerned with a statement in the EA/
RIR/IRFA that there are recent indications of increasing returns to
chum and Chinook salmon stocks in Western Alaska. Specifically, the
commenter notes that salmon bycatch in the pollock fishery has
increased while Chinook salmon runs in the Yukon River and Norton Sound
remain at average or below average returns.
Response: While the EA/RIR/FRFA does contain the general statement
quoted in the comment about increasing returns to chum and Chinook
stocks in Western Alaska, it also acknowledges, in section 3.4 (Western
Alaska Chinook Salmon Stock Status), that there are concerns with the
Yukon River and Norton Sound Chinook salmon returns.
Comment 3: It is unclear on what basis the EA can conclude that
``the incidental catch of Chinook salmon by the BSAI trawl fisheries is
not thought to be extremely detrimental to the health and viability of
those stocks.'' Although the EA does recognize there is some
uncertainty in that analysis, the conclusion reached is that Amendment
84 will have limited impacts on the salmon stocks.
Response: The EA/RIR/FRFA provides an overview of the information
known about the origin of salmon bycatch in the BSAI groundfish
fisheries and the status of western Alaska salmon stocks. Admittedly,
NMFS has limited information on salmon biomass and genetic river of
origin for salmon bycatch species. Research is underway to address
these information deficiencies. However, without this information, NMFS
is unable to determine if high bycatch amounts in the pollock fishery
are due to high salmon abundance in the Bering Sea, or how these high
bycatch amounts affect western Alaska salmon runs. Throughout the EA/
RIR/IRFA and discussion of the issue, the Council recognized that
salmon bycatch is an important issue and that salmon of western Alaska
origin that are caught in the groundfish fisheries are not available
for escapement, subsistence fisheries, and commercial fisheries.
Amendment 84 provides more flexible regulations that can better respond
to changes in salmon bycatch rates, and the Council believes that it is
an improvement to the existing regulatory structure. In addition, the
Council is continuing to work to identify
[[Page 61072]]
additional measures that could be implemented to reduce salmon bycatch
amounts.
Comment 4: Two elements of the VRHS system of closures limit the
system's ability to reduce bycatch. First, the method of setting the
base rate for Chinook salmon in the ``A'' season at the last ``A''
season's average and then adjusting the rate three weeks into the
season can result in initially setting the base rate high when salmon
bycatch was high in the previous year. This occurred in the 2007 A
season. The effect of this method is that most coops move to Tier 1,
where closures do not apply. While in reality boats responded to the
advisory closures throughout the remainder of the A season as if they
were in Tier 3, this action was not required under the VRHS system.
Second, limitations on closure areas to 1,000 square miles represent an
enormous reduction from the amount of area closed under the regulatory
Salmon Savings Areas and it is not clear in the analysis why such a
limit is necessary or how a VRHS system with such a limit will achieve
salmon bycatch reductions.
Response: The specific components of the ICA were proposed to the
Council as a package by the members of the ICA and analyzed as
Alternative 3 in the EA/RIR/IRFA. The Secretary concurs with the
Council's selection of this alternative as its preferred alternative
because it allows the parties to the ICA to develop a more flexible
system for responding to salmon bycatch than the existing regulations.
Calculation of the base rates and the minimum size of the closure areas
are two of many elements of the ICA developed by the parties. The
Chinook salmon initial base rate is based on the average bycatch rate
in the previous A season, as noted by the commenter. However, the
regulations also place an upper limit of 0.06 Chinook per metric ton of
pollock as a maximum initial base rate for the A season. Therefore, the
initial base rate is not necessarily always as high as the previous
year's average bycatch rate. The proposed regulations specify that the
maximum ICA Chinook savings area closures during the A season must be
at least 1000 square miles. However, the parties to the ICA could
specify larger closure areas if they determined that this was necessary
to accomplish the goals of reducing salmon bycatch.
In general, the objective of Amendment 84 and its implementing
regulations is to allow the parties to the ICA to develop a system of
managing salmon bycatch that includes identifying the elements of the
ICA that the parties believe will best accomplish the goals of reducing
salmon bycatch. At the time the Council took final action on Amendment
84, it also expressed its intent to review salmon bycatch performance
under the ICA and to make adjustments in the future, if necessary.
Specific elements of the ICA such as the base rate calculations and the
size of the closure areas may be reviewed in the future as performance
under the ICA is evaluated by the Council.
Comment 5: We strongly support the voluntary rolling hotspot
approach to managing Bering Sea salmon bycatch. As noted in the EA/RIR/
FRFA, Amendment 84 has the potential to reduce Bering Sea salmon
bycatch more than the status quo. If that potential is realized,
Amendment 84 would reduce the foregone value of salmon bycatch and
increase the overall benefits of bycatch reduction.
Response: NMFS agrees.
Comment 6: The analysis prepared for this action indicates that
very little chum bycatch occurs in the non-pollock fisheries.
Additionally, virtually no non-Chinook salmon are caught in the
flatfish, rockfish, or Atka mackerel fisheries within the Catcher
Vessel Operational Area. Therefore, we recommend approval of the
component of Amendment 84 that applies closures of the Chum Salmon
Savings Area only to vessels conducting directed fishing for pollock.
In addition, if there are additional delays in implementing Amendment
84, we recommend implementation of this exemption while other issues of
concern are addressed.
Response: Amendment 84 was approved on June 22, 2007, and this
final rule revises regulations at 50 CFR part 679 to apply closures of
the Chum Salmon Savings Area only to vessels conducting directed
fishing for pollock that are not participating in an approved salmon
bycatch ICA.
Comment 7: We suggest two changes from the proposed rule. First,
several paragraphs of the proposed rule reference Tier assignments at
Sec. 679.21(g)(6)(iii)(C). We believe these references should be Sec.
679.21(g)(5)(iii)(C). Second, regulations at Sec. 679.21(g)(5)(vii)
require that if a cooperative Board of Directors fails to assess a
minimum uniform assessment within 60 days of receiving a notice of an
apparent violation, the information used to determine if an apparent
violation was committed must be disseminated to all parties to the ICA.
The Intercooperative recently addressed several apparent violations of
ICA savings area closures. In the process of doing so, it became
apparent that 60 days is not sufficient for a vessel captain to gather
evidence necessary to defend the violation, the captain to submit this
information to the Board of Directors, and the Board of Directors to
issue a reasoned decision concerning whether a violation was committed.
Therefore, we recommend revising the final rule so that regulations at
Sec. 679.21(g)(5)(vii) reflect a 180 day time limit.
Response: NMFS agrees. The reference correction noted in the
comment is correct and is made in the final rule. In addition, an
increase in the time period for ICA members to respond to a notice of
apparent violation is reasonable and will improve the administrative
process under the ICA. Therefore, this revision also will be made in
the final rule.
Changes From the Proposed Rule
Regulations at Sec. 679.21(g)(5)(iii)(A)(1) describe the initial
base rate calculation for Chinook salmon. In the first sentence, the
final rule adds the words ``in the'' between the words ``season'' and
``prior'' to clarify that sentence.
Regulations at Sec. 679.21(g)(5)(iii)(B)(5) and Sec.
679.21(g)(5)(iii)(A)(4) describe fishing restrictions for vessels
assigned to Tiers. In the first sentence of both paragraphs, the final
rule removes the words ``for seven days'' from the end of the sentence,
and adds them between the word ``pollock'' and the comma in the same
sentence. This clarifies that the ICA must require chum savings area
closures announced on Thursdays must remain in place for seven days for
vessels assigned to Tier 3.
Regulations at Sec. 679.21(g)(5)(iii)(C) describe the salmon
bycatch reduction ICA requirements for cooperative Tier assignments.
However, proposed regulations erroneously referred to this paragraph as
Sec. 679.21(g)(6)(iii)(C). These references are corrected in the final
rule regulatory text.
Regulations at Sec. 679.21(g)(5)(vii) require that if a
cooperative Board of Directors fails to assess a minimum uniform
assessment within 60 days of receiving a notice of an apparent
violation, the information used to determine if an apparent violation
was committed must be disseminated to all parties to the ICA. As noted
by public comment above, the 60 day time limit may be constraining, and
is not consistent with its intent to provide ample opportunity for
internal ICA penalty processes to occur. Therefore, Sec.
679.21(g)(5)(vii) is revised to a 180-day time limit.
Regulations at Sec. 679.61(f)(2)(vii) describe annual reporting
requirements for AFA fishery cooperatives. The final rule adds an
apostrophe to the word ``vessels'' to indicate its possessive form.
[[Page 61073]]
Classification
The Administrator, Alaska Region, NMFS determined that Amendment 84
is necessary for the conservation and management of the groundfish
fishery and that it is consistent with the Magnuson-Stevens Act and
other applicable laws.
This final rule has been determined not to be significant for the
purposes of Executive Order 12866.
NMFS prepared a Final Regulatory Flexibility Analysis. The FRFA
incorporates the IRFA, a summary of the significant issues raised by
public comments in response to the IRFA, NMFS responses to those
comments, and a summary of the analyses completed to support the
action. A copy of this analysis is available from NMFS (see ADDRESSES).
The following summarizes the FRFA.
Objectives and Need for this Action
This action exempts vessels participating in directed pollock
fishing from Chinook and Chum Salmon Savings Area closures if they
participate in a salmon bycatch reduction ICA. The ICA is intended to
reduce salmon bycatch rates in the BSAI AFA and CDQ pollock fisheries.
Additionally, this action exempts all non-pollock trawl vessels from
the Chum Salmon Savings Area closure.
Number of Small Entities Affected by the Rule
In 2005 about 116 trawl catcher vessels operated in the BSAI with
gross revenues less than $4.0 million. NMFS records indicate that 111
BSAI catcher vessels were members of AFA cooperatives. Because of Small
Business Administration affiliation guidelines, all AFA vessels are
considered large entities. Therefore, five BSAI trawl catcher vessels
appear to qualify as small entities. Additionally, NMFS' 2005 data
indicate that three non-AFA catcher processor trawl vessels had gross
revenues less than $4.0 million.
Significant Alternatives Considered and Steps Taken to Minimize the
Significant Economic Impacts to Small Entities
Salmon bycatch in the Bering Sea pollock trawl fishery has
increased in recent years under Alternative 1, the status quo. This
translates into foregone salmon value, assuming full terminal harvest
of salmon bycatch, of nearly $1 million for Chinook and more than $250
thousand for chum salmon. These values very likely overstate the actual
harvest that might have occurred if salmon bycatch had not been taken
in the Bering Sea pollock trawl fishery. Unfortunately, it is not
possible to estimate actual harvest value more accurately at this time.
However, the increases in salmon bycatch under the status quo likely
result in increases in foregone value and decreased benefits of bycatch
reduction. The status quo could also lead to future restrictions on the
Bering Sea pollock trawl fleet to reduce the incidental take of Chinook
salmon currently listed under the Endangered Species Act.
Alternative 2 would eliminate the salmon savings closure areas
altogether. The result would likely be reduced operational costs,
improved vessel safety, improved product quality, and reduced
management and enforcement costs. However, in the absence of any
bycatch reduction measures this alternative may result in further
increase in salmon bycatch in the Bering Sea pollock trawl fishery.
Were that to occur, the foregone value of such bycatch would increase
and the associated benefits of bycatch reduction would decrease,
possibly dramatically. This could also result in the increased take of
listed Chinook salmon in the Bering Sea pollock trawl fishery.
Alternative 3 is the preferred alternative. It exempts vessels
participating in a salmon bycatch reduction ICA from the BSAI salmon
savings area closures. It is expected to reduce salmon bycatch rates in
the BSAI pollock fisheries by penalizing participants that exhibit high
salmon bycatch rates and rewarding participants that exhibit low salmon
bycatch rates. Vessels participating in a salmon bycatch reduction ICA
will be subject to a dynamic system of rolling ``hot spot'' closures
dictated by the ICA and designed to reduce salmon bycatch. This
alternative likely will reduce operational costs, improve vessel
safety, and improve product quality. Alternative 3 also has the
potential to reduce salmon bycatch more than the status quo management
measures. If that potential is realized, Alternative 3 will reduce
foregone value of salmon bycatch and increase the overall benefits of
bycatch reduction. Alternative 3 also provides some mitigation
possibilities for western Alaska subsistence salmon user groups by
including them as parties to the ICA and enabling them to enforce
compliance with the ICA's salmon bycatch reduction measures in Bering
Sea pollock fisheries through private contractual arrangements.
Alternative 3 will reduce management and enforcement costs for
government agencies by transferring much of that cost to the fishing
industry. The industry has volunteered to bear this cost in hopes of
reducing operational costs associated with the status quo while at the
same time attempting to reduce salmon bycatch. If bycatch is not
reduced under Alternative 3, additional restrictions on the fleet could
result.
Alternative 3, through the suboption to option 2, exempts directly
regulated small entities participating in the BSAI Pacific cod and/or
flatfish trawl fisheries from all salmon bycatch caps, closures,
voluntary salmon bycatch management measures, etc. Pacific cod and/or
flatfish trawl fisheries in the BSAI account for a negligible share of
the total salmon bycatch attributable to trawl fisheries. At the same
time, many of the vessels that prosecute these fisheries are assumed to
be ``small'' (as defined by the Regulatory Flexibility Act). Therefore,
adoption of the suboption to option 2 that exempts BSAI Pacific cod
and/or flatfish trawl fisheries from the regulatory provisions of the
salmon bycatch reduction program removes all adverse economic burdens
from this action on all small entities operating in these BSAI
groundfish trawl fisheries.
Issues Raised by Public Comments on the IRFA
No comments were received on the IRFA.
Recordkeeping, Reporting, and other Compliance Requirements
Depending on the alternative chosen, the subsequent proposed
regulation may impose new recordkeeping or reporting requirements on
directly regulated small entities. This would be accurate for
Alternative 3, which eliminates existing salmon bycatch prevention
measures, and replaces them with an industry funded and operated salmon
bycatch reduction program. Under this program, the ICA will require
vessels to report bycatch and position data to an industry hired
contractor. These activities could conceivably increase recordkeeping
and reporting requirements for regulated small entities. However, under
the suboption to option 2, virtually all the small entities directly
regulated under this action would be exempted from the program's
provisions.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
[[Page 61074]]
required to take to comply with a rule or group of rules.
The preamble to this rule serves as the small entity compliance
guide. It applies to trawl catcher vessels and catcher/processors
operating in the BSAI. Affected entities are well informed of
compliance measures for regulations implementing Amendment 84, due to
their involvement in the Council process leading to its adoption of
Amendment 84, and industry development of the VRHS system of closures.
These entities have assessed their ability to comply with Amendment 84
regulations and provided comments to NMFS on the proposed rule. NMFS
has incorporated some of these comments in the final rule. Implementing
regulations at Sec. Sec. 679.2, 679.7, 679.21, 679.22 and 679.61
detail all revisions and additions to definitions, prohibitions,
prohibited species management, area closures, and recordkeeping and
reporting requirements. This action does not require additional
compliance from small entities that is not described in this final
rule. Copies of the final rule are available from NMFS (see ADDRESSES)
and at the following website: http://www.fakr.noaa.gov.
Collection-of-Information
This final rule includes collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) which have been approved
by the Office of Management and Budget under Control Number 0648-0401.
Public reporting burden per response is estimated to average 40 hr for
salmon bycatch reduction intercooperative agreements; 15 min for
renewal of an ICA; 28 hr for a preliminary annual report; 12 hr for a
final annual report; and 4 hr for ICA appeal. Reporting burden includes
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 on these or any other
aspects of the collection of information to NMFS (see ADDRESSES) and e-
mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall 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 Office of Management and Budget Control Number.
This final rule was developed after meaningful consultation with
tribal representatives and Alaska Native corporations.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: October 23, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
0
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
0
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.;
and Pub. L. 108 199, 118 Stat. 110.
0
2. In Sec. 679.2, the definition of ``Salmon bycatch reduction
intercooperative agreement (ICA)'' is added in alphabetical order to
read as follows:
Sec. 679.2 Definitions.
* * * * *
Salmon bycatch reduction intercooperative agreement (ICA) is a
voluntary chum and Chinook salmon catch avoidance agreement, as
described at Sec. 679.21(g) and approved by NMFS, for directed pollock
fisheries in the Bering Sea subarea.
* * * * *
0
3. In Sec. 679.7, paragraphs (d)(9) and (d)(10) are revised to read as
follows:
Sec. 679.7 Prohibitions.
* * * * *
(d) * * *
(9) For the operator of an eligible vessel, use trawl gear to
harvest pollock CDQ in the Chinook Salmon Savings Area between January
1 and April 15, and between September 1 and December 31, after the CDQ
group's Chinook salmon PSQ is attained, unless the vessel is
participating in a salmon bycatch reduction ICA under Sec.
679.21(e)(7)(ix).
(10) For the operator of an eligible vessel, use trawl gear to
harvest pollock CDQ in the Chum Salmon Savings Area between September 1
and October 14 after the CDQ group's non-Chinook salmon PSQ is
attained, unless the vessel is participating in a salmon bycatch
reduction ICA under Sec. 679.21(e)(7)(ix).
* * * * *
0
4. In Sec. 679.21, paragraph (e)(7)(vii) is revised and paragraphs
(e)(7)(ix) and (g) are added to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(e) * * *
(7) * * *
(vii) Chum salmon. If the Regional Administrator determines that
42,000 non-Chinook salmon have been caught by vessels using trawl gear
during August 15 through October 14 in the CVOA, defined under Sec.
679.22(a)(5) and in Figure 2 to this part, NMFS will prohibit directed
fishing for pollock for the remainder of the period September 1 through
October 14 in the Chum Salmon Savings Area as defined in Figure 9 to
this part.
* * * * *
(ix) Exemptions. (A) Trawl vessels participating in directed
fishing for pollock and operating under a salmon bycatch reduction ICA
approved by NMFS are exempt from closures in the Chum Salmon Savings
Area described at paragraph (e)(7)(vii) of this section. See also Sec.
679.22(a)(10).
(B) Trawl vessels participating in directed fishing for pollock and
operating under a salmon bycatch reduction ICA approved by NMFS are
exempt from closures in area 2 of the Chinook Salmon Savings Area
described at paragraph (e)(7)(viii) of this section.
* * * * *
(g) Requirements for vessels participating in a salmon bycatch
reduction ICA--(1) Who must file the salmon bycatch reduction ICA? The
representative for the salmon bycatch reduction ICA identified at
paragraph (g)(5)(v) of this section must file a copy of the initial ICA
and any amended salmon bycatch reduction ICA with NMFS.
(2) With whom must the initial salmon bycatch reduction ICA and an
amended salmon bycatch reduction ICA be filed? The ICA representative
must send a signed copy of the initial salmon bycatch reduction ICA and
any amended salmon bycatch reduction ICA to the NMFS Alaska Region. The
mailing address for the Administrator, NMFS Alaska Region is P.O. Box
21668, Juneau, AK 99802. The street address for courier delivery is 709
West 9th St., Suite 401, Juneau, AK 99801.
(3) What is the deadline for filing? In order for any ICA
participant to be exempt from salmon savings area closures as described
at paragraphs (e)(7)(ix)(A) and (B) of this section and at Sec.
679.22(a)(10), the salmon bycatch reduction ICA must be filed in
compliance with the requirements of this section, and approved by NMFS.
The initial salmon bycatch reduction ICA must be received by NMFS by
[[Page 61075]]
December 1, 2007, for the 2008 fishing year. Exemptions from salmon
savings area closures will expire upon termination of the initial ICA,
expiration of the initial ICA, or if superseded by a NMFS-approved
amended salmon bycatch reduction ICA.
(4) How is the initial and an amended salmon bycatch reduction ICA
approved by NMFS? NMFS will approve the initial or an amended salmon
bycatch reduction ICA if it meets all the requirements specified in
paragraph (g)(5) of this section. If NMFS disapproves a salmon bycatch
reduction ICA, the representative identified at (g)(5)(v) of this
section may resubmit a revised salmon bycatch reduction ICA or file an
administrative appeal as set forth under the administrative appeals
procedures described at Sec. 679.43.
(5) What are the minimum information requirements for the salmon
bycatch reduction ICA? The salmon bycatch ICA must include the
following provisions:
(i) The names of the AFA cooperatives, CDQ groups, and third party
groups that are parties to the ICA. The ICA must identify at least one
third party group. Third party groups include any organizations
representing western Alaskans who depend on Chinook and chum salmon and
have an interest in salmon bycatch reduction but do not directly fish
in a groundfish fishery. The ICA must identify one entity retained to
facilitate vessel bycatch avoidance behavior and information sharing.
Collectively, these groups are known as parties to the ICA. Parties to
the ICA must agree to comply with all provisions of the ICA;
(ii) The names, Federal fisheries permit numbers, and USCG vessel
identification numbers of vessels subject to the salmon bycatch
reduction ICA;
(iii) Provisions that dictate salmon bycatch avoidance behaviors
for vessel operators subject to the ICA, including:
(A) ``A'' season salmon bycatch management--(1) Initial base rate
calculation for Chinook salmon. The initial ``A'' season Chinook base
rate shall be calculated by dividing the total number of Chinook taken
incidentally in the ``A'' season in the prior year by the total number
of metric tons of ``A'' season pollock catch during the prior year,
except that if the initial ``A'' season Chinook base rate for any given
year is less than or equal to 0.04 Chinook per metric ton of pollock,
the initial base rate shall be 0.04 Chinook per metric ton, and if the
initial base rate for any given year is equal to or greater than 0.06
Chinook per metric ton of pollock, the initial base rate shall be 0.06
Chinook per metric ton. Base rate calculations shall include Chinook
salmon and pollock caught in both the CDQ and non-CDQ pollock directed
fisheries.
(2) Inseason adjustments to the Chinook salmon base rate
calculation. On February 14 of each year, the ``A'' season Chinook base
rate shall be recalculated. The recalculated base rate shall be the
Chinook bycatch rate for the current year, calculated by dividing the
total number of Chinook salmon taken incidentally in the current ``A''
season by the total number of metric tons of ``A'' season pollock catch
during the current season. The recalculated base rate shall be used to
determine bycatch avoidance areas.
(3) ICA salmon savings area notices. On January 30 of each year and
each Thursday and Monday thereafter for the duration of the pollock
``A'' season, the entity retained to facilitate vessel bycatch
avoidance behavior and information sharing identified in paragraph
(g)(5)(i) of this section must provide notice to the parties to the
salmon bycatch reduction ICA and NMFS identifying one or more areas
designated as ``ICA Chinook Savings Areas'' by a series of latitude and
longitude coordinates. The Thursday notice of ICA Chinook savings area
designations must be effective from 6 p.m. Alaska local time the
following Friday through 6 p.m. Alaska local time the following
Tuesday. The Monday notice must be effective from 6 p.m. Alaska local
time the following Tuesday through 6 p.m. Alaska local time the
following Friday. For any ICA salmon savings area notice, the maximum
total area closed must be at least 1,000 square miles.
(4) Fishing restrictions for vessels assigned to Tiers as described
at paragraph (g)(5)(iii)(C) of this section. ICA Chinook savings area
closures announced on Thursdays must be closed to directed fishing for
pollock for seven days, including pollock CDQ, by vessels assigned to
Tier 3. ICA Chinook savings area closures announced on Thursdays must
be closed to vessels assigned to Tier 2 through 6 p.m. Alaska local
time on the following Tuesday. Vessels assigned to Tier 1 may operate
in any area designated as an ICA Chinook savings area.
(B) ``B'' season salmon bycatch management--(1) ``B'' season
Chinook salmon. For the ``B'' season of the 2008 fishing year, the
Chinook salmon base rate shall be 0.05 Chinook salmon per metric ton of
pollock. For the ``B'' season of the 2009 fishing year and each ``B''
season thereafter, the base rate shall be based on the Chinook salmon
bycatch during a representative period of the prior year's ``B''
season. The recalculated base rate shall be used to determine bycatch
avoidance areas. Base rate calculations shall include Chinook salmon
and pollock caught in both the CDQ and non-CDQ pollock directed
fisheries.
(2) Non-Chinook salmon. The initial ``B'' season non-Chinook salmon
base rate shall be 0.19 non-Chinook salmon per metric ton of pollock.
(3) Inseason adjustments to the non-Chinook base rate calculation.
Beginning July 1 of each fishing year, and on each Thursday during
``B'' season, the ``B'' season non-Chinook base rate shall be
recalculated. The recalculated non-Chinook base rate shall be the three
week rolling average of the ``B'' season non-Chinook bycatch rate for
the current year. The recalculated base rate shall be used to determine
bycatch avoidance areas.
(4) ICA salmon savings area notices. On each Thursday and Monday
after June 10 of each year for the duration of the pollock ``B''
season, the entity retained to facilitate vessel bycatch avoidance
behavior and information sharing identified in paragraph (g)(5)(i) of
this section must provide notice to the parties to the salmon bycatch
reduction ICA and NMFS identifying one or more areas designated as
``ICA Chinook Savings Areas'' and/or ``ICA Chum Savings Areas'' by a
series of latitude and longitude coordinates. The Thursday notice of
ICA Chinook savings area designations must be effective from 6 p.m.
Alaska local time the following Friday through 6 p.m. Alaska local time
the following Tuesday. The Monday notice must be effective from 6 p.m.
Alaska local time the following Tuesday through 6 p.m. Alaska local
time the following Friday. For any ICA salmon savings area notice, the
maximum total area closed must be at least 3,000 square miles for ICA
chum savings area closures, and 500 square miles for ICA Chinook
savings area closures.
(5) Fishing restrictions for vessels assigned to Tiers as described
at paragraph (g)(5)(iii)(C) of this section. ICA chum savings area
closures announced on Thursdays must be closed to directed fishing for
pollock for seven days, including pollock CDQ, by vessels assigned to
Tier 3. ICA chum savings area closures announced on Thursdays must be
closed to vessels assigned to Tier 2 through 6 p.m. Alaska local time
on the following Tuesday. Vessels assigned to Tier 1 may operate in any
area designated as an ICA chum savings area. ICA Chinook savings areas
must be closed to fishing by all vessels identified at paragraph
(g)(5)(iii)(C) of this section.
[[Page 61076]]
(C) Cooperative tier assignments. Initial and subsequent base rate
calculations must be based on each cooperative's pollock catch for the
prior two weeks and the associated bycatch of Chinook or non-Chinook
salmon taken by its members. Base rate calculations shall include
salmon bycatch and pollock caught in both the CDQ and non-CDQ pollock
directed fisheries. Cooperatives with salmon bycatch rates of less than
75 percent of the base rate shall be assigned to Tier 1. Cooperatives
with salmon bycatch rates of equal to or greater than 75 percent, but
less than or equal to 125 percent of the base rate shall be assigned to
Tier 2. Cooperatives with salmon bycatch rates of greater than 125
percent of the base rate shall be assigned to Tier 3. Bycatch rates for
Chinook salmon must be calculated separately from non-Chinook salmon,
and cooperatives must be assigned to tiers separately for Chinook and
non-Chinook salmon bycatch.
(iv) Internal monitoring and enforcement provisions to ensure
compliance of fishing activities with the provisions of the ICA. The
ICA must include provisions allowing any party of the ICA to bring
civil suit or initiate a binding arbitration action against another for
breach of the ICA. The ICA must include minimum annual uniform
assessments for any violation of savings area closures of $10,000 for
the first offense, $15,000 for the second offense, and $20,000 for each
offense thereafter;
(v) The name, phone number, and business address of the person who
will annually file the ICA with NMFS;
(vi) Provisions requiring the parties to conduct an annual
compliance audit, and to cooperate fully in such audit, including
providing information required by the auditor. The compliance audit
must be conducted by a non-party entity, and each party must have an
opportunity to participate in selecting the non-party entity. If the
non-party entity hired to conduct a compliance audit discovers a
previously undiscovered failure to comply with the terms of the ICA,
the non-party entity must notify all parties to the ICA of the failure
to comply and must simultaneously distribute to all parties of the ICA
information used to determine the failure to comply occurred and must
include such notice(s) in the compliance report described in Sec.
679.61(f)(2)(vii).
(vii) Provisions requiring data dissemination in certain
circumstances. If the entity retained to facilitate vessel bycatch
avoidance behavior and information sharing identified at paragraph
(g)(5)(i) of this section determines that an apparent violation of an
ICA savings area closure has occurred, that entity must promptly notify
the Board of Directors of the cooperative to which the vessel involved
belongs. If this Board of Directors fails to assess a minimum uniform
assessment within 180 days of receiving the notice, the information
used by the entity retained to facilitate vessel bycatch avoidance
behavior to determine if an apparent violation was committed must be
disseminated to all parties to the ICA.
0
5. In Sec. 679.22, paragraph (a)(10) is revised to read as follows:
Sec. 679.22 Closures.
(a) * * *
(10) Chum Salmon Savings Area. Directed fishing for pollock by
vessels using trawl gear is prohibited from August 1 through August 31
in the Chum Salmon Savings Area defined at Figure 9 to this part (see
also Sec. 679.21(e)(7)(vii)). Vessels using trawl gear participating
in directed fishing for pollock, including pollock CDQ, and operating
under a salmon bycatch reduction ICA are exempt from closures in the
Chum Salmon Savings Area. See also Sec. 679.21(e)(7)(vii).
* * * * *
0
6. In Sec. 679.61, paragraph (f)(2)(vi) is added to read as follows:
Sec. 679.61 Formation and operation of fishery cooperatives.
* * * * *
(f) * * *
(2) * * *
(vi) The annual report must indicate the number of salmon taken by
species and season, estimate the number of salmon avoided as
demonstrated by the movement of fishing effort away from salmon savings
areas, include the results of the compliance audit described at Sec.
679.21(g)(6)(vi), and list each vessel's number of appearances on the
weekly dirty 20 lists for both salmon species.
* * * * *
[FR Doc. E7-21256 Filed 10-26-07; 8:45 am]
BILLING CODE 3510-22-S