[Federal Register: April 18, 2007 (Volume 72, Number 74)]
[Proposed Rules]
[Page 19454-19460]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ap07-17]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 070322067-7067-01; 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: Proposed rule.
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SUMMARY: NMFS proposes to amend 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 (1) exempting pollock vessels from Chinook and chum salmon
savings area closures if they participate in an inter-cooperative
agreement (ICA) to reduce salmon bycatch, and (2) exempting vessels
participating in non-pollock trawl fisheries from chum salmon savings
area closures because these fisheries intercept minimal amounts of
salmon. The proposed rule 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: Written comments must be received by June 4, 2007.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian, Records Officer. Comments may be submitted by
any of the following methods:
E-mail: 0648-au03-BSA84-A-PR@noaa.gov. Include in the
subject line the following identifier: BS salmon proposed rule. E-mail
comments, with or without attachments, are limited to 5 megabytes;
Federal e-Rulemaking Portal: http:http://www.regulations.gov;
Mail to P.O. Box 21668, Juneau, AK 99802;
Fax: to (907) 586-7557; or
Hand Delivery to the Federal Building, 709 West 9th
Street, Room 420A, Juneau, AK.
Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this
action
[[Page 19455]]
may be obtained from the same mailing address listed here or from the
NMFS Alaska Region Web site at http://www.fakr.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS at ADDRESSES 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 fishery.
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, from 2001 through 2004, chum salmon
represented 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.
To address Chinook salmon bycatch concerns, the Council adopted
several management measures designed to reduce overall Chinook salmon
bycatch in the BSAI trawl fisheries. In 1995, the Council adopted, and
NMFS approved, Amendment 21b to the FMP. Based on historic information
on salmon bycatch, Amendment 21b established a Chinook salmon savings
area (60 FR 31215, November 29, 1995). Under Amendment 21b, the Chinook
salmon savings area closed when the incidental catch of Chinook salmon
in BSAI trawl fisheries reached 48,000 fish. Amendment 58 to the FMP
revised the Chinook salmon savings area measures (65 FR 60587, October
12, 2000). Amendment 58 reduced the Chinook salmon bycatch limit from
48,000 fish to 29,000 fish, mandated year-round accounting of Chinook
bycatch in the directed pollock fishery, revised the boundaries of the
Chinook salmon savings area closure, and implemented new closure dates.
The timing of the closure depends on when the limit is reached. If the
limit is reached:
Before April 15, the area closes immediately through April
15. After April 15, the area re-opens, but closes again from September
1 through December 31.
Between April 15 and September 1, the area would close
from September 1 through the end of the year.
After September 1, the area closes immediately through the
end of the year.
The Chinook salmon savings area was further modified by Amendment
82 to the FMP (70 FR 9856, March 1, 2005). Amendment 82 established a
separate Aleutian Islands subarea bycatch limit that, when reached,
closes the existing Chinook salmon savings area located in the Aleutian
Islands subarea (Area 1). The Chinook salmon savings area located in
the Bering Sea subarea remained unchanged, but was designated as Area
2.
The Council also adopted a time-area closure designed to reduce
overall chum salmon bycatch in the BSAI trawl fisheries. In 1995,
Amendment 35 to the FMP established the chum salmon savings area (60 FR
34904, July 5, 1995). This area is closed to all trawling from August 1
through August 31 of each year. Additionally, if 42,000 chum salmon are
caught in the Catcher Vessel Operational Area (CVOA) during the period
August 15 through October 14, the area remains closed for the remainder
of the calendar year.
Community development quota (CDQ) groups receive, along with
allocations of groundfish CDQ, individual allocations of Chinook and
non-Chinook annual bycatch amounts. Vessels groundfish CDQ fishing are
not subject to the chum and Chinook salmon savings area closures that
apply to the non-CDQ pollock fisheries. Rather, the Chinook salmon
savings area closes to vessels directed fishing for pollock for a CDQ
group once that CDQ group has reached its Chinook salmon bycatch limit.
The chum salmon savings area closes to vessels using trawl gear to fish
for groundfish CDQ once that CDQ group has reached its non-Chinook
salmon bycatch limit. Thus, individual CDQ groups are subject to salmon
savings area closures based on their respective catch of chum or
Chinook salmon while groundfish CDQ fishing.
The Chinook and chum salmon savings areas were adopted based on
historic observed salmon bycatch rates and were designed to avoid high
spatial and temporal levels of salmon bycatch. From 1990 through 2001,
the BSAI salmon bycatch average was 37,819 Chinook and 69,332 chum
annually. Recently, however, salmon bycatch numbers have increased
substantially. In 2003, 54,911 Chinook salmon and 197,091 chum salmon
were taken incidentally in the trawl fisheries. In 2004, salmon bycatch
increased substantially to 62,493 Chinook and 465,650 chum salmon.
Bycatch amounts remained high in 2005 and totaled 67,541 Chinook and
116,999 chum salmon.
Since its establishment in 1995, the Chinook salmon savings area
closure only has been triggered since 2003. The Chinook salmon bycatch
limit was not reached prior to 2003. In 2003, the Chinook salmon
savings area closed to directed trawl fishing for non-CDQ pollock on
September 1, with the closure remaining in effect until the end of the
calendar year. In 2004, the Chinook salmon savings area closed to
directed trawl fishing for non-CDQ pollock on September 5 through the
end of the year. In 2005, the Chinook salmon savings area in the Bering
Sea subarea was closed to directed trawl fishing for non-CDQ pollock on
September 1 through the end of the year.
Since establishment of the chum salmon savings area in 1995, the
bycatch of non-Chinook salmon triggered closures in 2002, 2003, 2004,
and 2005. In these years, the chum salmon savings area closed to non-
CDQ trawl fisheries in September and October.
Anecdotal information from participants in the BSAI trawl fisheries
indicated that salmon bycatch rates may be higher outside the Chinook
and chum salmon savings area. In February 2005, the Council initiated
an EA/RIR/IRFA to explore alternatives to the current salmon bycatch
measures. Spatial and temporal comparisons of non-CDQ vessels fishing
outside of the salmon savings areas with CDQ vessels fishing inside of
the salmon savings areas indicated that bycatch rates were much higher
outside of the savings areas.
In October 2005, the Council adopted Amendment 84 to the FMP.
Amendment 84 would exempt non-CDQ and CDQ pollock vessels participating
in a salmon bycatch reduction ICA from closures of the Chinook and chum
salmon savings areas in the Bering Sea. Additionally, vessels
participating in trawl fisheries for species other than
[[Page 19456]]
pollock would be exempt from chum salmon savings area closures. The
Council and NMFS intend to use NMFS salmon bycatch information to
assess the effectiveness of regulations implementing Amendment 84 at
reducing salmon bycatch in the directed pollock fisheries. The Council
also asked for participants in the salmon bycatch reduction ICA to
report annually on how effective the ICA appears to be at reducing
salmon bycatch. The Council also will gather additional information to
assess the effectiveness of the ICA in coordinating voluntary salmon
bycatch reduction efforts by participants in the Bering Sea pollock
fisheries. Additionally, this information could be used to further
assess whether participants fishing in the current salmon savings areas
continue to encounter lower salmon bycatch rates than participants
fishing outside of salmon savings areas.
The Council is also developing a separate FMP amendment that could
result in additional management measures to reduce salmon bycatch.
These measures could include altering the geographic coordinates of the
Chinook and chum salmon savings areas based on recent bycatch rates,
and implementing an individual salmon bycatch accountability program.
However, the Council determined that consideration of these management
measures would require additional time and chose to expedite Amendment
84 while the Council develops the second amendment.
Salmon Bycatch Reduction ICA
Amendment 84 proposes a management program intended to enable the
pollock fleet to utilize its internal cooperative structure to reduce
salmon bycatch. If Amendment 84 is approved and implemented, salmon
savings area closures would not apply to vessels that operate under a
salmon bycatch reduction ICA. Rather, the agency intends that salmon
bycatch would be reduced as ICA parties comply with the provisions of
the ICA. The ICA, including its enforcement mechanism, is discussed
further below.
The salmon bycatch reduction ICA is intended to reduce salmon
bycatch in the BSAI non-CDQ and CDQ pollock fisheries. American
Fisheries Act (AFA) pollock fishery participants would incorporate the
ICA into existing cooperative agreements.
CDQ groups, western Alaska community organizations, and AFA
cooperatives would be eligible to become parties to the ICA. Parties to
the ICA could include the following AFA cooperatives: Pollock
Conservation Cooperative, the High Seas Catchers Cooperative, the
Mothership Fleet Cooperative, the Inshore Cooperatives (Akutan Catcher
Vessel Association, Arctic Enterprise Association, Northern Victor
Fleet Cooperative, Peter Pan Fleet Cooperative, Unalaska Fleet
Cooperative, Unisea Fleet Cooperative and Westward Fleet Cooperative)
and all six CDQ groups. Additionally, western Alaskan groups who have
an interest in the sustainability of salmon resources could be parties
in the ICA. The ICA must identify at least one third party group
representing western Alaskans who depend on salmon and have an interest
in salmon bycatch reduction.
The purpose of the ICA would be to use real-time salmon bycatch
information to avoid high incidental catch rates of chum and Chinook
salmon. The ICA would be a contractual agreement among the parties. All
parties to the ICA would agree to comply with ICA provisions, including
requirements to retain the services of a private contractor to collect
and analyze bycatch data and report salmon bycatch information to the
ICA parties.
The ICA would require that the third party hired to facilitate
salmon bycatch avoidance compare the bycatch rate of a participating
cooperative to a pre-determined bycatch rate (base rate). All ICA
provisions for fleet bycatch avoidance behavior, closures, and
enforcement would be based on the ratio of the cooperative's rate to
the base rate.
The third party entity hired to facilitate salmon bycatch avoidance
would assign an ICA cooperative to one of three tiers based on its
bycatch rate relative to the base rate. Higher tiers correspond to
higher bycatch rates. Tier assignments determine access privileges to
specific fishing areas. The ICA would prohibit a participant assigned
to a high tier from fishing in a relatively larger geographic area to
avoid high bycatch areas. Conversely, the ICA would grant access to a
wider range of fishing areas to a participant assigned to a low tier
based on fishing behavior that results in relatively low bycatch. The
contractor would track bycatch rates for each participant. The ICA
would specify a participant's tier assignment each week based on that
participant's bycatch rate for the previous week. Thus, participants
would have incentives to avoid fishing behavior that results in high
bycatch rates.
Monitoring and enforcement would be facilitated through the ICA.
Any of the parties to the ICA may bring civil suit or initiate a
binding arbitration action against another party for violating the ICA.
For example, a participant that fishes for pollock in a prohibited area
based on its tier assignment would be subject to a monetary penalty.
The ICA would include a penalty schedule for violating these tier
closures.
As described above, two western Alaska salmon user groups could be
parties to the ICA. These groups do not participate in commercial
groundfish fisheries off Alaska. However, they represent subsistence
salmon users, and are concerned about the amount of salmon bycatch
taken in the groundfish fisheries. Because their members are partially
dependent on healthy salmon returns, the western Alaska user groups
have incentives to reduce salmon bycatch in the groundfish fisheries
and monitor performance of the ICA's bycatch reduction measures. The
Council's intent is that their participation in the ICA may improve
monitoring and compliance among the parties. If either of these western
Alaska user groups determines that fishing is not in compliance with
the ICA, the user group could bring civil suit against the offending
parties.
Chum Salmon Savings Area Exemption
Vessels participating in non-pollock trawl fisheries currently are
subject to the chum salmon savings area closure. However, the best
available information summarized in the EA/RIR/IRFA prepared for this
action indicates that 97 percent of the 2002 and 2003 chum salmon
bycatch occurred in the pollock fisheries. Because the non-pollock
trawl sector accounts for such a small portion of the chum bycatch, the
Council recommended exempting all non-pollock trawl vessels from the
chum salmon savings area closure. While this proposed rule would exempt
non-pollock trawl vessels from this closure, any chum salmon bycatch by
these vessels would continue to contribute towards triggering closures.
Proposed Changes to Regulations
The salmon bycatch reduction ICA would be defined at Sec. 679.2 as
a voluntary civil agreement among pollock cooperatives, CDQ groups, and
western Alaska subsistence salmon user groups that is intended to
coordinate the pollock fishery in a manner that reduces incidental
catch rates of salmon.
Prohibitions at Sec. 679.7 would be revised to incorporate the
primary elements of this proposed action into two existing prohibitions
specific to CDQ fisheries. Section 679.7(d)(9) and (10) would be
revised to extend the exemptions from salmon savings area closures to
vessels participating in the pollock CDQ fishery under a salmon
[[Page 19457]]
bycatch reduction ICA. Additionally, Sec. Sec. 679.7(d)(10),
679.21(e)(7)(vii), and 679.22(a)(10) would be revised to exempt trawl
vessels directed fishing for groundfish other than pollock from the
chum salmon savings area closure.
Regulations at Sec. Sec. 679.21(e)(7)(ix) would be revised to
exempt pollock trawl vessels participating in a salmon bycatch
reduction ICA from closures in Area 2 of the Chinook salmon savings
area. Vessels that are not participating in the salmon bycatch
reduction ICA would remain subject to Chinook and chum salmon savings
area closures.
As noted above, NMFS would not enforce provisions of the salmon
bycatch reduction ICA. However, these proposed regulations would
require the ICA to include basic provisions necessary to reduce salmon
bycatch in the pollock fisheries. Additionally, NMFS would review the
ICA for compliance with regulations. An ICA that includes these basic
provisions would be approved by NMFS. If NMFS does not approve an ICA,
participants would be able to appeal that determination, subject to
current regulations at Sec. 679.43. The process for submitting and
obtaining NMFS approval of an ICA would be described at Sec.
679.21(g). Additionally, Sec. 679.21(g)(4) would establish an initial
deadline of December 1, 2007, for the 2008 fishing year, and the ICA
would remain in effect until it expires or is amended. An amendment of
the ICA would require submission of an amended ICA signed by all
parties and approval by final agency action of the amended ICA by NMFS.
Minimum requirements for an ICA would be described at Sec.
679.21(g)(6). The proposed rule would require the salmon bycatch
reduction ICA to list the parties to the agreement, describe how
participants would avoid salmon bycatch in directed pollock fisheries,
and describe internal monitoring and enforcement mechanisms for the
ICA. It would require the ICA to identify at least one private firm
retained to facilitate bycatch avoidance behavior and information
sharing. It would require the ICA to dictate salmon bycatch avoidance
behaviors for vessel operators subject to the ICA. In addition, it
would require the ICA to specify a salmon bycatch base rate, a method
for assigning a cooperative or CDQ group to one of three tiers based on
its salmon bycatch rate relative to the salmon bycatch base rate and
provisions for governing access to fishing areas by cooperatives or CDQ
groups assigned to each tier. Finally, it would require the ICA to
require all parties to comply with the provisions of the ICA.
The proposed rule also would require the ICA to include the names,
Federal fisheries permit numbers, and United States Coast Guard (USCG)
vessel identification numbers of vessels subject to the salmon bycatch
reduction ICA. Finally, the proposed rule would require the ICA to list
the name, business address, and phone number of the person who will
annually file the ICA with NMFS.
The proposed rule also would require participants to procure an
external compliance audit. If the compliance audit reveals a previously
unidentified violation of the terms of the ICA, the information used to
determine that this violation occurred would be required to be
disseminated to all participants. Furthermore, if a violation of the
ICA is identified at any time, but a penalty is not assessed, the
information used to identify that violation would be required to be
disseminated to all participants. These provisions are intended to
increase transparency for the participants, and allow each participant
to monitor compliance with the terms of the ICA.
If the Council determined that the salmon bycatch reduction ICA did
not effectively reduce salmon bycatch, it could initiate a separate
action to accomplish salmon bycatch reduction goals. Additionally, NMFS
is concerned about the effective execution of the terms and conditions
of the ICA. To address these concerns, regulations at Sec.
679.61(f)(2)(vi) would require AFA annual reports to include the number
of violations of the ICA, the nature of those violations, and the
penalty imposed, if any, against the violating party.
Public comments are being solicited on the FMP amendment through
the end of the comment period stated in the NOA. Public comments on the
proposed rule must be received by the end of the comment period on the
amendment, as published in the NOA, to be considered in the approval/
disapproval decision on the amendment. All comments received by the end
of the comment period on the amendment, whether specifically directed
to the amendment, or the proposed rule, will be considered in the
approval/disapproval decision. Comments received after that date will
not be considered in the approval/disapproval decision on the
amendment. To be considered, comments must be received by close of
business on the last day of the comment period; that does not mean
postmarked or otherwise transmitted by that date.
Classification
At this time, NMFS has not determined that the FMP/amendment that
this rule would implement is consistent with the national standards of
the Magnuson-Stevens Act and other applicable laws. NMFS, in making
that determination, will take into account the data, views, and
comments received during the comment period.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared an initial regulatory flexibility analysis (IRFA) as
required by section 603 of the Regulatory Flexibility Act. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the legal basis for this action are contained at the
beginning of the preamble and in the SUMMARY section of the preamble. A
copy of the IRFA is available from NMFS (see ADDRESSES). A summary of
the analysis follows.
This action proposes to exempt 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 in the BSAI AFA and CDQ pollock fisheries.
Additionally, this proposed rule would exempt all non-pollock trawl
vessels from the chum salmon savings area closure.
In 2003, about 116 trawl catcher vessels operated in the BSAI with
gross revenues less than $3.5 million. NMFS records indicate that 112
BSAI catcher vessels were members of AFA cooperatives. Because of Small
Business Administration affiliation guidelines, all AFA vessels are
considered large entities. Therefore, four BSAI trawl catcher vessels
appear to qualify as small entities. Additionally, NMFS' 2003 data
indicates that three non-AFA catcher processor trawl vessels had gross
revenues less than $3.5 million.
Alternative 1, the status quo, has resulted in increases in salmon
bycatch in the Bering Sea pollock trawl fishery in recent years. 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 in 2003. 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
results in increases in foregone value and decreased benefits of
bycatch reduction. The status quo could also lead to future
restrictions on the
[[Page 19458]]
Bering Sea pollock trawl fleet to reduce the incidental take of Chinook
salmon 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 associate 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 fisheries.
Alternative 3 would be implemented by this proposed rule. It would
exempt vessels participating in a salmon bycatch reduction ICA from the
BSAI salmon savings area closures. It is expected to reduce salmon
bycatch 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 would be subject to a dynamic system of rolling
``hot spot'' closures dictated by the ICA and designed to reduce salmon
bycatch. This alternative would likely 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 would
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.
Alternative 3 would 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.
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval under
OMB control number 0648-0401. Public reporting burden is estimated per
response to average: 40 hours for salmon bycatch reduction inter-
cooperative agreement (ICA); 15 minutes for renewal of ICA; 28 hours
for preliminary annual report; 12 hours for final annual report; 4
hours 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.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. 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, 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.
The analysis did not reveal any Federal rules that duplicate,
overlap, or conflict with the proposed action.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: April 11, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.>
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be 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.; 1540(f); 1801 et seq.; 1851
note; 3631 et seq.
2. In Sec. 679.2, the definition of ``Salmon bycatch reduction
inter-cooperative agreement'' is added in alphabetical order to read as
follows:
Sec. 679.2 Definitions.
* * * * *
Salmon bycatch reduction inter-cooperative 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.
* * * * *
3. In Sec. 679.7, paragraphs (d)(9) and (d)(10) are proposed to be
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).
* * * * *
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
[[Page 19459]]
exempt from closures in the Chum Salmon Savings Area described at Sec.
679.21(e)(7)(vii). 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 Sec. 679.21(e)(7)(viii).
* * * * *
(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
(5)(v) of this paragraph 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 Regional 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 Sec. 679.21(e)(7)(ix)(A), Sec. 679.21(e)(7)(ix)(B) and 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
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 (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 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 .04 Chinook per
metric ton of pollock, the initial base rate shall be .04 Chinook per
metric ton, and if the initial base rate for any given year is equal to
or greater than .06 Chinook per metric ton of pollock, the initial base
rate shall be .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 non-party entity retained to facilitate vessel
bycatch avoidance behavior and information sharing identified in
paragraph (g)(6)(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 pm Alaska local time
the following Friday through 6 pm Alaska local time the following
Tuesday. The Monday notice must be effective from 6 pm Alaska local
time the following Tuesday through 6 pm Alaska local time the following
Friday. For any ICA salmon savings area notice, the maximum total area
closed must be at least 1000 square miles.
(4) Fishing restrictions for vessels assigned to Tiers as described
at paragraph (g)(6)(iii)(C) of this section. ICA Chinook savings area
closures announced on Thursdays must be closed to directed fishing for
pollock, including pollock CDQ, by vessels assigned to Tier 3 for seven
days. ICA Chinook savings area closures announced on Thursdays must be
closed to vessels assigned to Tier 2 through 6 pm 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 .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
[[Page 19460]]
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 non-party entity retained to facilitate vessel bycatch
avoidance behavior and information sharing identified in paragraph
(g)(6)(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 pm Alaska local time the following Friday through 6 pm Alaska local
time the following Tuesday. The Monday notice must be effective from 6
pm Alaska local time the following Tuesday through 6 pm Alaska local
time the following Friday. For any ICA salmon savings area notice, the
maximum total area closed must be at least 3000 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)(6)(iii)(C) of this section. ICA chum savings area
closures announced on Thursdays must be closed to directed fishing for
pollock, including pollock CDQ, by vessels assigned to Tier 3 for seven
days. ICA chum savings area closures announced on Thursdays must be
closed to vessels assigned to Tier 2 through 6 pm 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)(6)(iii)(C) of this section.
(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. Coops with salmon bycatch rates of less than 75
percent of the base rate shall be assigned to Tier 1. Coops with salmon
bycatch rates of equal to or greater than 75 percent but equal to or
less than 125 percent of the base rate shall be assigned to Tier 2.
Coops 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 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 described at Sec. 679.61(g)(6)(i) determines that
an apparent violation of an ICA savings are 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 60 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.
* * * * *
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).
* * * * *
6. In Sec. 679.61, paragraph (f)(2)(vii) is added to read as
follows:
Sec. 679.61 Formation and operation of fishery cooperatives.
* * * * *
(f) * * *
(2) * * *
(vii) The annual report must indicate the number of salmon taken by
species and season, estimate 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 of each vessels number of appearances on the
weekly dirty 20 lists for both salmon species.
* * * * *
[FR Doc. E7-7380 Filed 4-17-07; 8:45 am]
BILLING CODE 3510-22-S