Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Bycatch Management, 61070-61076 [E7-21256]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 208 (Monday, October 29, 2007)]
[Rules and Regulations]
[Pages 61070-61076]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21256]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://
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: https://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