[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42629-42637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17747]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 679 and 680
[Docket No. 110627357-2209-03]
RIN 0648-BB24
Fisheries of the Exclusive Economic Zone Off Alaska; Chinook
Salmon Bycatch Management in the Gulf of Alaska Pollock Fishery;
Amendment 93
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule and notice of approval of an FMP amendment.
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SUMMARY: NMFS publishes regulations to implement Amendment 93 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The
regulations apply exclusively to the directed pollock trawl fisheries
in the Central and Western Reporting Areas of the Gulf of Alaska (GOA)
(Central and Western GOA). Amendment 93 establishes separate prohibited
species catch (PSC) limits in the Central and Western GOA for Chinook
salmon (Oncorhynchus tshawytscha), which would cause NMFS to close the
directed pollock fishery in the Central or Western regulatory areas of
the GOA, if the applicable limit is reached. This action also requires
retention of salmon by all vessels in the Central and Western GOA
pollock fisheries until the catch is delivered to a processing facility
where an observer is provided the opportunity to count the number of
salmon and to collect scientific data or biological samples from the
salmon. This action makes several revisions to the Prohibited Species
Donation (PSD) program. Amendment 93 is intended to promote the goals
and objectives of the Magnuson-Stevens Fishery Conservation and
Management Act, the FMP, and other applicable laws.
DATES: Effective August 25, 2012, except for: 50 CFR 679.21(h)(2) will
be effective January 1, 2013, and 50 CFR 679.21(h)(3) will be effective
August 25, 2012, until November 1, 2012.
ADDRESSES: Electronic copies of the proposed and final rules, the
Environmental Assessment (EA), and Regulatory Impact Review for this
action may be obtained from http://www.regulations.gov or from the
Alaska Region Web site at http://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box
21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer;
in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A,
Juneau, Alaska; and by email to OIRA_Submission@omb.eop.gov, or by fax
to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Mary Grady, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the
U.S. exclusive economic zone of the GOA under the Fishery Management
Plan for Groundfish of the GOA (FMP). The North Pacific Fishery
Management Council (Council) prepared, and NMFS approved, the FMP under
the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), 16 U.S.C. 1801 et seq. Regulations governing U.S.
fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.
The Notice of Availability for Amendment 93 was published in the
Federal Register on November 23, 2011 (76 FR 72384), with a 60-day
comment period that ended January 23, 2012. The Secretary of Commerce
(Secretary) approved Amendment 93 on February 17, 2012. The proposed
rule to implement Amendment 93 was published in the Federal Register on
December 14, 2011 (76 FR 77757). The 45-day comment period on the
proposed rule ended January 30, 2012. NMFS
[[Page 42630]]
received written comments on Amendment 93 and the proposed rule from
four different entities. After considering these comments, the
Secretary of Commerce approved Amendment 93 on February 17, 2012. A
summary of these comments and the responses by NMFS are provided under
Response to Comments below.
Regulatory Amendments
The preamble to the proposed rule provides a detailed description
of the reasons for and provisions of Amendment 93 and its implementing
rule (76 FR 77757, December 14, 2011). The proposed rule is available
from the NMFS Alaska Region Web site (see ADDRESSES). This final rule
makes the following regulatory amendments to the management of the
directed pollock trawl fisheries in the Central and Western GOA to
reduce Chinook salmon bycatch and to the PSD program.
Prohibitions
This final rule adds prohibitions under Sec. 679.7(b)(8) to
specify when salmon must be retained and discarded in the Central and
Western GOA directed pollock fisheries. The final rule adds paragraph
(b)(8) to expressly prohibit any action that does not comply with the
regulations described below for Sec. 679.21(h). This is necessary to
expressly inform participants in the pollock trawl fisheries in the
Central and Western GOA that except for salmon under the PSD program at
Sec. 679.26, all salmon must be discarded, following notification by
an observer that the number of salmon has been estimated and the
collection of scientific data or biological samples has been completed.
PSC Management
The final rule revises PSC management measures under Sec. 679.21
to establish Chinook salmon PSC limits and management measures for
directed pollock trawl fishing in the Central and Western Reporting
Areas of the GOA. The final rule revises paragraph (b)(2)(ii) to add an
exception for salmon PSC caught by vessels directed fishing for pollock
with trawl gear in the Central and Western GOA to the requirement to
immediately sort catch and return salmon PSC to the sea. The final rule
also revises paragraph (b)(2)(ii) to clarify that the requirement to
immediately sort catch and discard PSC does not apply to PSC that may
be retained pursuant to a permit issued under the PSD program. This
clarification is necessary to ensure participants in the PSD program
may retain salmon for donation purposes and to facilitate observer
sampling and counting of all salmon. The final rule revises paragraph
(b)(3) to limit the scope of the rebuttable presumption regarding PSC
retained on board that was previously in place. As revised, paragraph
(b)(3) does not establish a rebuttable presumption that any salmon
retained on board during a directed pollock fishery in the Central or
Western GOA was caught and retained in violation of Sec. 679.21. This
change is necessary to ensure that vessels that comply with the
requirement to retain salmon are not presumed to violate Sec. 679.21.
In addition, this change maintains the existing rebuttable presumption
that any Chinook salmon retained on board during a directed pollock
fishery in the GOA outside of the Western and Central reporting areas
was caught and retained in violation of this section.
The final rule adds PSC management measures under Sec. 679.21(h)
to establish Chinook salmon PSC limits for the pollock trawl fisheries
in the Central and Western GOA. Paragraph (h)(1) specifies that the
regulations in this paragraph apply to federally permitted vessels
directed fishing for pollock in the Central and Western GOA reporting
areas and processors taking deliveries from such vessels. Paragraph
(h)(2) establishes GOA Chinook salmon PSC limits. Paragraph (h)(2)(i)
specifies an annual PSC limit of 18,316 Chinook salmon for vessels
engaged in directed fishing for pollock in the Central reporting area
of the GOA. Paragraph (h)(2)(ii) specifies an annual limit of 6,684
Chinook salmon for vessels engaged in directed fishing for pollock in
the Western reporting area of the GOA. Paragraph (h)(3) sets Chinook
salmon PSC limits and allocations for the Central and Western GOA
pollock fisheries during the C and D seasons in 2012. The 2012 PSC
limits are effective until November 1, 2012. Paragraphs (h)(3)(i) and
(ii) specify a PSC limit of 8,929 Chinook salmon for vessels engaged in
directed fishing for pollock in the Central reporting area of the GOA
for the C and D seasons in 2012, and a PSC limit of 5,598 Chinook
salmon for vessels engaged in directed fishing for pollock in the
Western reporting area of the GOA for the C and D seasons in 2012.
These revisions are necessary to establish the annual Chinook salmon
PSC limits and the 2012 C and D season limits recommended by the
Council and approved by the Secretary.
Paragraph (h)(4) of Sec. 679.21 requires temporary salmon
retention in the Central and Western GOA directed pollock fisheries.
The operator of a vessel and the manager of a shoreside processor or
stationary floating processor may not discard any salmon or transfer or
process any salmon under the PSD program at Sec. 679.26, if the salmon
are taken incidental to a Central or Western GOA directed pollock
fishery, until after an observer at the processing facility has been
provided the opportunity to count the number of salmon and to collect
any scientific data or biological samples from the salmon.
Paragraph (h)(5) of Sec. 679.21 requires that all salmon, except
for salmon donated pursuant to the PSD program at Sec. 679.26, must be
discarded following notification by an observer that the number of
salmon has been estimated and the collection of scientific data or
biological samples has been completed. This requirement is necessary to
ensure observers are provided the opportunity to count salmon and to
take biological samples, and to ensure that the salmon not donated is
discarded, as required of all PSC.
Paragraph (h)(6) of Sec. 679.21 establishes Chinook salmon PSC
closure management. NMFS would close pollock fisheries using trawl gear
if, during the fishing year, the Regional Administrator determines that
vessels engaged in directed fishing for pollock in the Central or
Western GOA will catch all the Chinook salmon PSC limit specified for
that area. NMFS will publish a notice in the Federal Register closing
the applicable regulatory area to directed fishing for pollock. This
step is necessary to allow NMFS to manage area closures for the pollock
fisheries in the Central and Western Regulatory Areas of the GOA based
on Chinook salmon PSC reaching the Chinook salmon PSC limits for the
Central and Western Reporting Areas. The State of Alaska will manage
the closure of the State waters parallel pollock fishery.
Prohibited Species Donation Program
This final rule revises Sec. 679.26(c)(1) reporting and
recordkeeping requirements for the PSD program to add the Central and
Western GOA pollock fisheries and to ensure observer sampling of
donated fish. This is necessary to facilitate the counting and
biological sampling of donated salmon and to ensure NMFS applies the
Chinook salmon donated to the PSD program to the PSC limits.
In addition, this final rule modifies the PSD program regulations
to implement the intent of the program to allow participation by all
types of near shore, stationary processors for halibut donations.
Paragraph (a)(2) of Sec. 679.26 is revised to include stationary
floating processors as eligible to receive and process donated halibut.
Stationary floating processors are generally located
[[Page 42631]]
near shore and remain in one location and are therefore similar to a
shoreside processor for purposes of the halibut donation program. This
revision is necessary to meet the Council's intent under Amendment 50
to the GOA FMP that halibut that cannot be sorted at sea and delivered
to a processor located in one location in a near shore area may be
donated to the PSD program.
The final rule revises paragraph (b)(1)(xi) of Sec. 679.26 to
clarify information required for the application process to become an
authorized PSD distributor. This rule removes the requirement that the
vessel or processor provide a fax number, as faxes are no longer used
for communication between NMFS and the vessels or processors for the
purposes of this program. This revision reduces the reporting burden
for the PSD applicant.
The final rule revises paragraph (b)(2)(iv) of Sec. 679.26 to
change the selection criteria considered by the Regional Administrator
in issuing a PSD permit. The revision changes the consideration of the
potential number of groundfish trawl vessels and processors in the
fishery to the potential number of vessels and processors participating
in the PSD program. The number of vessels and processors in the
groundfish fishery is not an important consideration to determine how
many distributors should participate in the program. Instead, the
Regional Administrator will consider the number of vessels and
processors currently in the PSD program, along with the number and
qualification of applicants, the number of harvesters and quantity of
fish that applicants can effectively administer, and the anticipated
level of bycatch of prohibited species. A comparison of the number of
vessels and processors currently in the program with the number of
harvesters that prospective distributors can effectively administer
provides a more meaningful basis by which to determine the appropriate
number of distributors for the program. This revision focuses the
considerations for issuing a permit on pertinent vessel and processor
information.
Changes From the Proposed Rule
This final rule does not include a provision imposing increased
observer coverage on vessels less than 60 feet length overall (LOA)
that participate in the directed pollock fishery in the Central or
Western regulatory areas of the GOA by January 2013. Consistent with
the Council's intent, the proposed rule stated that increased observer
coverage on vessels less than 60 feet LOA under this action would only
be effective until the restructured observer program is implemented (76
FR 77762). It would be premature to adopt a final rule that imposes
such increased observer coverage at this time, because NMFS approved
Amendment 86 to the FMP for Groundfish of the Bering Sea and Aleutian
Islands Management Area and Amendment 76 to the GOA FMP on June 7,
2012. Having approved these FMP amendments that provide for a
restructured observer program, NMFS intends to fulfill its legal
responsibility to implement the amendments. The proposed rule for
Amendment 86 and Amendment 76 was published on April 18, 2012, with the
comment period ending on June 18, 2012 (77 FR 23266). NMFS has not yet
made any final decisions regarding the publication of a final rule to
implement Amendments 86 and 76 and NMFS recognizes that revisions to
the proposed rule may occur as a result of public comments.
Nonetheless, at this time, NMFS anticipates that the restructured
observer program will be implemented by January 1, 2013, meeting the
Council's intent of increased coverage under Amendment 93.
Implementing a short-term change to the observer program for these
vessels between the effective date of this final rule and January 2013,
would burden NMFS and fishery participants without providing much
improvement over current data collection efforts. Moreover, such a
short-term change is not needed to meet the Council's intent under
Amendment 93. Rather than require an interim change to observer
requirements that would provide little data collection benefit relative
to the effort the agency would expend to implement this short-term
program, resources will be used to ready NMFS and the industry for the
restructured observer program that NMFS has proposed and anticipates
will be implemented beginning in 2013. If NMFS does not implement the
restructured observer program by January 1, 2013, the agency will
consult with the Council regarding how to achieve observer coverage for
vessels less than 60 feet LOA under Amendment 93 until the restructured
observer program is implemented. Therefore, NMFS changed this final
rule for GOA Chinook PSC management to omit the increased observer
coverage set forth in the proposed rule. NMFS consulted with the
Council in June 2012 regarding this approach to observer coverage for
these vessels under the final rule for Amendment 93.
Response to Comments
NMFS received 4 letters containing 12 unique comments during the
public comment periods for the Notice of Availability and for the
proposed rule. One letter received was not responsive to this action. A
summary of relevant comments, grouped by subject matter and NMFS'
responses, follows.
Comment 1: Several commenters expressed general support for
Amendment 93 to the FMP and its implementing regulations.
Response: NMFS acknowledges these comments.
Comment 2: The range of alternatives considered in the
environmental assessment was inadequate, and NMFS should have
considered lower PSC limits.
Response: The environmental assessment for this action included a
reasonable range of alternatives that met the purpose and need of this
action to take prompt action to protect against the risk of high
Chinook salmon PSC levels. The Council's problem statement recognizes
the obligation under the MSA to minimize Chinook salmon bycatch to the
extent practicable. The alternatives included (1) no action; (2) GOA-
wide PSC limits of 15,000, 22,500, 25,000, and 30,000 Chinook salmon;
(3) alternative ways of allocating the PSC limits between the Central
and Western Reporting Areas; and (4) a 25-percent buffer for the PSC
limit in one out of three consecutive years. Alternative 2 included a
range of PSC caps that would reduce Chinook salmon PSC to varying
degrees, with lower limits resulting in potentially greater adverse
economic impacts on fishery participants. During the Council's
development of this action, no member of the public objected to the
adequacy of the range of GOA-wide PSC limits evaluated in the Council's
Public Review draft of the Environmental Assessment. Throughout the
Council process, no member of the public commented that the Council
must consider GOA-wide PSC limits below 15,000 Chinook salmon, nor did
any member of the public suggest that a lower GOA-wide PSC limit was
needed to achieve the Council's stated purpose, which was to diminish
the risk of high Chinook salmon PSC levels to the extent practicable.
The Council considered the importance of equity among user groups
in recommending Amendment 93. The Council noted that the Chinook salmon
resource is of value to many stakeholders, including but not limited to
commercial, recreational, and cultural user groups, and it is a
resource that is currently fully allocated. The Council also recognized
that efforts to reduce Chinook salmon PSC in the pollock fishery would
impose costs on participants in the pollock fishery. The
[[Page 42632]]
preferred alternative balances the need to minimize Chinook PSC to the
extent practicable, consistent with the MSA National Standard 9, with
the requirements of National Standard 1, to enable the pollock fishery
to contribute to the achievement of optimum yield in the groundfish
fishery. In an effort to strike this balance, the Council considered a
range of PSC limits. As indicated by the analysis (see ADDRESSES), a
PSC limit of 15,000 fish would result in considerable amounts of
foregone harvest in the pollock fishery, and relatively high costs (in
terms of foregone revenue) per salmon saved. PSC limits lower than
15,000 fish would be expected to further increase these costs.
A Chinook salmon PSC limit of 15,000 would impose a greater burden
on small entities that participate in the pollock fishery by
constraining pollock fishing to a greater degree than the 25,000 fish
limit of the preferred alternative. Any lower PSC limits would have
further burdened fishery participants and were not considered
practicable by the Council for minimizing Chinook salmon bycatch
because they were determined to be unnecessarily constraining to the
pollock fisheries. Given the considerable costs per salmon saved at PSC
limits of 15,000 or less and uncertainty over the added benefits to
individual Chinook stocks of such limits, the environmental assessment
evaluated a reasonable range of alternatives.
Comment 3: The proposed limit does not comply with National
Standard 9 and the precautionary principle.
Response: In developing Amendment 93, the Council considered
consistency with the MSA's ten National Standards, including National
Standard 9, which requires NMFS to minimize bycatch to the extent
practicable, and National Standard 1, to achieve optimum yield for the
managed fishery. The Council designed Amendment 93 to balance the
competing requirements of the National Standards. Specifically, the
Council recognized the need to balance and be consistent with the
mandate of National Standard 9 and the mandate of National Standard 1.
In selecting the overall limit on Chinook salmon PSC, the Council
considered a range of alternatives to assess the impacts of minimizing
Chinook salmon bycatch to the extent practicable while preserving the
potential for the full harvest of the pollock TAC. The Council
considered the trade-offs between Chinook salmon saved and the forgone
pollock catch. The EA and RIR include a description of the alternatives
and a comparative analysis of the potential impacts of the alternative
PSC limits (see ADDRESSES).
The action follows the precautionary principle by implementing
conservation measures to reduce overall Chinook salmon PSC, even though
data is not available to determine the impact of Chinook salmon PSC on
individual Chinook salmon stocks. Even though effects on individual
Chinook salmon stocks cannot be determined at this time, this action
reduces overall potential impacts and improves data collection, which
is a necessary precursor to any future analysis of the potential
impacts of the pollock fisheries on individual Chinook salmon stocks.
The PSC limits minimize bycatch to the extent practicable given the
tools currently available to the fleet, the derby-style prosecution of
the fishery, the uncertainty about whether the bycatch has adverse
effects on any particular Chinook salmon stocks, and the need to ensure
that the pollock fishery contributes to the achievement of optimum
yield in the groundfish fishery.
Comment 4: The proposed limit does not adequately address the full
costs and benefits to each user sector and did not provide the public
with the opportunity to review more stringent PSC limits that
appropriately respond to uncertainties about the Chinook resource,
impacts to downstream users, and the requirements of National Standard
9.
Response: See response above to comment 2 regarding a more
stringent PSC limit and response to comment 3 above regarding
uncertainties about impacts to the Chinook salmon resource. The Council
considered the importance of equity among user groups in recommending
Amendment 93. In addition to providing a fair and equitable
apportionment of the total GOA-wide PSC limit between the Central and
Western GOA pollock fisheries, the Council also considered the needs of
Chinook salmon users. The Council noted that the Chinook salmon
resource is of value to many stakeholders, including, but not limited
to, commercial, recreational, and cultural user groups, and it is a
resource that is currently fully allocated. By recommending a PSC limit
that reduces Chinook salmon PSC in relatively high bycatch years, the
Council also has considered the needs of these other user groups and
has recommended measures to promote their access to the Chinook salmon
resource. The RIR included a qualitative discussion of the benefits of
a PSC limit to users of Chinook salmon (both consumptive and non-
consumptive uses); therefore, the benefits have been described, albeit
with some limitations due to the information that is available (see
ADDRESSES). With the information that is currently available, neither
the total ``cost'' of Chinook salmon PSC nor the total ``value'' of
Chinook salmon savings can be estimated for the various user groups.
The potential salmon savings that are estimated in the analysis do not
translate directly into adult salmon that would otherwise have survived
to return to spawning streams. Because of these and other data
limitations, it is beyond the scope of the analysis to monetize or even
quantify the benefits of this action, which is expected to reduce
Chinook salmon PSC by, on average, 5,800 fish annually. However, the
Council heard and considered testimony and was provided additional
information by representatives of most groups that utilize the Chinook
salmon resource demonstrating the breadth and variety of values
associated with this species.
An analysis of the preferred alternative suggests that the
imposition of PSC limits is likely to be constraining to the GOA
pollock fisheries in some years, and consequently may result in impacts
to the communities that depend on those fisheries. The preferred
alternative that is implemented by this final rule balances the need to
minimize Chinook salmon PSC consistent with National Standard 9, with
the requirement to achieve optimum yield in the managed fishery,
consistent with National Standard 1. The preferred alternative also
reflects consideration of the requirements of National Standard 8--to
minimize adverse impacts on fishing communities, consistent with the
conservation requirements of the MSA. To this end, the final rule
establishes PSC limits for the Western and Central GOA that could allow
the pollock quota to be fully harvested in both areas, if the fleet can
maintain the average long-term (17-year) Chinook salmon PSC rate,
recognizing that in years of high PSC, if the fleet is unable to work
together to come up with mechanisms to reduce Chinook salmon PSC, the
PSC limit may result in an early closure to the fishery. One
consequence of such a closure may be a benefit to fishing communities
that depend on Chinook salmon. In approving the final rule, the
Secretary minimizes the risk of adverse impacts to fishing communities,
while adhering to her conservation obligations under National Standard
9.
Comment 5: Mid-year implementation is opposed and the Secretary
should disapprove this part of the rule. The caps to be put in place
for the C and D
[[Page 42633]]
seasons in 2012 will constrain the 2012 fall GOA pollock fisheries in
the Central GOA.
Response: The Council recommended the PSC limits for the 2012 C and
D seasons to be 8,929 Chinook salmon in the GOA Central Reporting Area
and 5,598 Chinook salmon in the GOA Western Reporting Area. NMFS has
determined that implementing these limits is consistent with the MSA
and other applicable law.
These PSC limits were calculated by multiplying the annual PSC
limit in each area by the average percentage of annual Chinook salmon
PSC taken in the C and D seasons within each area, over the same time
series of 2001 to 2010 but excluding 2007 and 2010, and adjusting
upward by 25 percent. The Council adjusted the amount upward by 25
percent the first year to provide a buffer and reduce the constraint of
mid-year implementation limits on the pollock fisheries. The Council
recommended the 25 percent increase recognizing that pollock total
allowable catch limits (TACs) may be higher in 2012 than they were in
2011. NMFS expects the upward adjustment of the PSC limits that will be
implemented in 2012 will result in PSC limits that are not overly
restrictive on the Central GOA pollock fishery. Nevertheless, the
limits are intended to be constraining in years of high Chinook salmon
PSC. If they are constraining, they are performing their intended
function to prevent excessively high PSC. By the commenter's own
analysis, full prosecution of the C season in the Central Gulf should
be expected. If the fleet is able to achieve a modest reduction in its
Chinook PSC rate compared to 2011, when there was no PSC limit in
place, it may be able to avoid a closure before the TAC is reached in
the D season as well.
Comment 6: There are numerous recent and upcoming Council and State
actions that cumulatively may restrict the harvesters.
Response: Beyond the cumulative impact analyses in the EA for this
action, the 2006 and 2007 harvest specifications EA, Groundfish Harvest
Specifications Environmental Impact Statement, Allocation of Pacific
Cod among Sectors in the Western and Central GOA EA, and the Central
GOA Rockfish Program EA, no other additional past or present cumulative
impact issues were identified. The combination of effects from the
cumulative effects of past, present, and reasonably foreseeable future
actions and this action are not likely to result in significant effects
for any of the environmental components analyzed and are therefore not
significant. Socioeconomic impacts are a direct result of the action of
imposing PSC limits on the fisheries. These impacts are independent of
the natural or physical effects of imposing PSC limits on the fisheries
and are not expected to be significant. The environmental analyses
listed are available at http://alaskafisheries.noaa.gov.
Comment 7: Due to inshore/offshore regulations, no pollock catcher/
processors participate in the GOA pollock fisheries.
Response: NMFS acknowledges this comment. This final rule applies
to the directed pollock trawl fisheries in the Central and Western
Reporting Areas of the GOA, including pollock catcher/processors if
they were to participate in the GOA pollock fishery in the future.
Comment 8: The proposed rule states in the preamble that the only
State of Alaska-managed pollock guideline harvest level fishery in
those areas is the Prince William Sound (PWS) pollock fishery. If
``those areas'' refers to the Central and Western GOA, the PWS area
(649) is considered part of the Eastern GOA, not the Central or Western
GOA.
Response: NMFS acknowledges this comment, and agrees that the PWS
area (649) is considered part of the Eastern GOA. ``Those areas''
referred to the entire GOA.
Comment 9: The proposed rule preamble stated paragraph (h)(2)(ii)
would specify an annual limit of 6,684 Chinook salmon for vessels
engaged in directed fishing for pollock in the Central reporting area
of the GOA. ``Central'' should be ``Western.''
Response: NMFS agrees. This was an erroneous statement in the
proposed rule preamble which was not reflected in the proposed
regulatory text set forth in the proposed rule. The correct annual PSC
limits of 6,684 Chinook salmon for vessels engaged in directed fishing
for pollock in the Western reporting area of the GOA, and 18,316
Chinook salmon for vessels engaged in directed fishing for pollock in
the Central reporting area of the GOA, were stated in the proposed
regulatory text and elsewhere throughout the preamble of the proposed
rule.
Comment 10: The proposed rule needs clarification for regulatory
text for observers on catcher/processors in a directed pollock fishery
in the Central or Western reporting areas of the GOA. Catcher/
processors do not participate in GOA directed pollock fisheries, so
requiring catcher/processors less than 60 ft. to carry an observer for
pollock directed fishing seems unnecessary and conflicting.
Response: NMFS acknowledges this comment. For reasons noted in the
preamble, no observer requirements are included in this final rule.
Comment 11: Unlike the Bering Sea American Fisheries Act (AFA)
fleet, the GOA pollock catcher vessels are subject to 30 percent
observer coverage, not 100 percent coverage, so the PSC estimates will
not be based entirely on observer census numbers for all deliveries.
Given the high number of permutations of area/target/gear type and the
30 percent observed rate, a high Chinook salmon bycatch rate in one
area/target/gear with poor observer coverage could result in
underestimated or overestimated salmon numbers for the entire fleet in
that area/target/gear fishery. The Bering Sea, with 100 percent
observer coverage for distinct pollock trips (no mixing of catch
species, which happens in the Central GOA) and mid-water fishery only,
results in 100 percent census data to manage the hard caps for Chinook
salmon PSC. For the GOA, the data will be more variable and less
robust; this will challenge NMFS to accurately manage a hard cap for
Chinook salmon PSC and will challenge the fleet to stay within the cap.
A better approach could be to have PSC estimates derived from all
pollock trips as one group by regulatory area instead of creating
separate estimates across all the different possible permutations.
Variability and precision may improve and this type of approach should
be evaluated.
Response: NMFS acknowledges this comment. The current Catch
Accounting System is described in Chapter 5 of the analysis for this
action (see ADDRESSES). NMFS estimates of Chinook salmon are based on
well-established sampling methodology implemented by the observer
program and ratio estimators based on post stratification of catch.
Changes to the estimation process are outside the scope of this rule.
Comment 12: The GOA pollock fishery is not the Bering Sea AFA
pollock fishery. A hard cap with no tools or incentives for saving is a
very blunt and antiquated management scheme.
Response: NMFS acknowledges this comment. This action sets PSC
limits, but it does not restructure the management of the pollock
fishery. The Council acknowledged that the selection of a Chinook
salmon PSC limit for the GOA pollock fishery requires a balance of
obligations under the MSA National Standards and the needs of different
user groups. The Council intends for the Chinook salmon PSC limits to
allow the full prosecution of the pollock fishery in
[[Page 42634]]
the Central and Western GOA in most years, while truncating the fishery
in high bycatch years, to prevent events of relatively high Chinook
salmon PSC in these areas, such as occurred in 2010 (44,813 Chinook
salmon).
Classification
The Administrator, Alaska Region, NMFS determined that the FMP
amendment is necessary for the conservation and management of the
groundfish fisheries off Alaska and that it is consistent with the MSA
and other applicable law. After considering the comments received on
the amendment, the Secretary of Commerce approved Amendment 93 on
February 17, 2012.
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 Final Regulatory Flexibility
Analysis, 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 preambles to
the proposed rule and this final rule serve as the small entity
compliance guide. This action does not require any additional
compliance from small entities that is not described in the preambles.
Copies of the proposed rule and this final rule are available from NMFS
at the following Web site: http://alaskafisheries.noaa.gov.
Executive Order 12866
This rule has been determined to be not significant for purposes of
Executive Order 12866.
Final Regulatory Flexibility Analysis
This final regulatory flexibility analysis (FRFA) incorporates the
Initial Regulatory Flexibility Analysis (IRFA), a summary of the
significant issues raised by the public comments, NMFS' responses to
those comments, and a summary of the analyses completed to support the
action. NMFS published the proposed rule on December 14, 2011 (76 FR
77757), with comments invited through January 30, 2012. An IRFA was
prepared and summarized in the ``Classification'' section of the
preamble to the proposed rule. The FRFA describes the impacts on small
entities, which are defined in the IRFA for this action and not
repeated here. Analytical requirements for the FRFA are described in
Regulatory Flexibility Act, section 304(a)(1) through (5), and
summarized below.
The FRFA must contain:
1. A succinct statement of the need for, and objectives of, the
rule;
2. A summary of the significant issues raised by the public
comments in response to the IRFA, a summary of the assessment of the
agency of such issues, and a statement of any changes made in the
proposed rule as a result of such comments;
3. A description and an estimate of the number of small entities to
which the rule will apply, or an explanation of why no such estimate is
available;
4. A description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
5. A description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
The ``universe'' of entities to be considered in a FRFA generally
includes only those small entities that can reasonably be expected to
be directly regulated by the action. If the effects of the rule fall
primarily on a distinct segment of the industry, or portion thereof
(e.g., user group, gear type, geographic area), that segment would be
considered the universe for purposes of this analysis.
In preparing a FRFA, an agency may provide either a quantifiable or
numerical description of the effects of a rule (and alternatives to the
rule), or more general descriptive statements, if quantification is not
practicable or reliable.
Need for and Objectives of This Final Action
The Council developed a purpose and need statement defining the
reasons for considering this action, as described in Section 1.1 and
3.3 of the analysis for this action (see ADDRESSES). The MSA National
Standards require balancing optimum yield with minimizing bycatch and
minimizing adverse impacts to fishery dependent communities. Chinook
salmon bycatch taken incidentally in GOA pollock fisheries is a
concern, historically accounting for the greatest proportion of Chinook
salmon taken in GOA groundfish fisheries. Salmon bycatch control
measures have not yet been implemented in the GOA, and 2010 Chinook
salmon bycatch levels in the area were unacceptably high. Limited
information on the origin of Chinook salmon in the GOA indicates that
stocks of Asian, Alaska, British Columbia, and lower-48 origin are
present, including Endangered Species Act-listed stocks.
The legal basis for this action is the MSA. Under the authority of
the MSA, the Secretary of Commerce (NMFS Alaska Regional Office) and
the Council have the responsibility to prepare fishery management plans
and associated regulations for the marine resources found to require
conservation and management. NMFS is charged with carrying out the
federal mandates of the Secretary of Commerce with regard to marine
fish, including the publication of federal regulations. The Alaska
Regional Office of NMFS and the Alaska Fisheries Science Center
research, draft, and support the management actions recommended by the
Council. The GOA groundfish fisheries are managed under the FMP. The
action represents amendments to the FMP, as well as amendments to
associated Federal regulations. Two principal objectives of the FMP
amendment and regulations are to reduce Chinook salmon PSC in the
Central and Western GOA pollock fisheries to the minimal level
practicable, consistent with National Standard 9 of the MSA, and to
enable pollock harvests to contribute to the achievement of optimum
yield on a continuing basis in the GOA groundfish fishery, consistent
with National Standard 1 of the MSA.
Summary of Significant Issues Raised During Public Comment
No comments were received that raised significant issues in
response to the IRFA specifically; therefore, no changes were made to
the rule as a result of comments on the IRFA. However, several comments
were received on the economic impacts of Amendment 93 on different
sectors of the industry. For a summary of the comments received and the
agency's responses, refer to the section above titled ``Response to
Comments.''
Number and Description of Directly Regulated Small Entities
This final action directly regulates those federally-permitted or
licensed entities that participate in harvesting groundfish from the
Federal or State of Alaska-managed parallel pollock target fisheries of
the Central or Western GOA. Fishing vessels are considered small
entities if their total annual gross
[[Page 42635]]
receipts, from all their activities combined, are less than $4.0
million. The analysis identified 63 vessels in 2010 that would be
affected by this action, 37 catcher vessels of which fished for pollock
in the Central or Western GOA pollock fisheries and are members of a
cooperative. These vessels are members of an AFA cooperative for Bering
Sea pollock, a rockfish program cooperative in the GOA, a Bering Sea
crab cooperative, or members of two or more of these cooperatives. The
remaining 26 vessels are not part of a cooperative and are considered
to be small entities.
Description of Significant Alternatives to the Final Action
During consideration of this action, the Council evaluated a number
of alternatives to the preferred alternative, including (1) no action:
(2) GOA-wide PSC limits of 15,000, 22,500, 25,000, and 30,000 Chinook
salmon; (3) alternative ways of allocating the PSC limits between the
Central and Western Reporting Areas; and (4) a 25-percent buffer for
the PSC limit in one out of three consecutive years. The preferred
alternative selected for Amendment 93 was a 25,000 fish limit, with 73
percent going to the Central GOA and 27 percent to the Western GOA.
None of the other alternatives met the objectives of the action and had
a smaller impact on small entities.
No action would have left the Chinook salmon PSC unlimited, which
would have failed to meet the objective of the action. The 30,000 GOA-
wide Chinook salmon PSC limit would likewise have failed to
significantly control Chinook salmon PSC, and therefore failed to
balance the benefits of the action to the Chinook salmon stocks and
target fisheries for Chinook salmon with the needs of pollock trawlers
in the way sought by the Council. A Chinook salmon PSC limit of 15,000
would have imposed a greater burden on small entities by constraining
pollock fishing beyond the preferred alternative. The Chinook salmon
PSC limit of 22,500 would be constraining in more years for the Central
GOA compared to the recommended 25,000 PSC limit. The option for a 25-
percent buffer to the PSC limits did not meet the intended objectives
of reducing Chinook salmon PSC to the maximum extent practicable. Under
the apportionment options, the Central GOA's proportion of the GOA-wide
PSC limit ranges from 61 percent to 77 percent, or 9,122 Chinook salmon
to 23,224 Chinook salmon, depending on the overall PSC limit. For the
Western GOA, the range is from 23 percent to 39 percent, which results
in a range of 3,388 Chinook salmon to 11,757 Chinook salmon. The
apportionment options were based on the relative historical pollock
catch in each regulatory area, the relative historical Chinook salmon
catch amounts in each area, or a weighted ratio of the two. The Council
determined lower percentages for either area were unnecessarily
constraining to the pollock fisheries in the area while larger
percentages for either area did not provide the incentive to minimize
PSC to the extent practicable.
The changes to the PSD program regulations reduce reporting burden
for applicants, streamline the application process considerations, and
improve the description of eligible processors. No alternatives were
identified for these regulatory amendments that would further reduce
any potential impacts on small entities.
Collection-of-Information Requirements
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA) and which has been approved by the
Office of Management and Budget (OMB) under Control Number 0648-0316.
Public reporting burden for the Application to become a NMFS
Authorized Distributor in the PSD program is estimated to average 13
hours per response, including 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 regarding this burden estimate, or any other aspect
of this data collection, including suggestions for reducing the burden,
to NMFS (see ADDRESSES) and by email to OIRA_Submission@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.
OMB Revisions to PRA References in 15 CFR 902.1(b).
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, OMB, for
each agency information collection. Section 902.1(b) identifies the
location of NOAA regulations for which OMB approval numbers have been
issued. Because this final rule adds a collection-of-information for
recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to
reference correctly the new section resulting from this final rule.
Tribal Consultation
Executive Order (E.O.) 13175 of November 6, 2000 (25 U.S.C. 450
note), the Executive Memorandum of April 29, 1994 (25 U.S.C. 450 note),
and the American Indian and Alaska Native Policy of the U.S. Department
of Commerce (March 30, 1995) outline the responsibilities of NMFS in
matters affecting tribal interests. Section 161 of Public Law 108-199
(188 Stat. 452), as amended by section 518 of Public Law 109-447 (118
Stat. 3267), extends the consultation requirements of E.O. 13175 to
Alaska Native corporations.
NMFS is obligated to consult and coordinate with federally
recognized tribal governments and Alaska Native Claims Settlement Act
regional and village corporations on a government-to-government basis
pursuant to E.O. 13175 which establishes several requirements for NMFS,
including (1) to provide regular and meaningful consultation and
collaboration with Indian tribal governments and Alaska Native
corporations in the development of Federal regulatory practices that
significantly or uniquely affect their communities, (2) to reduce the
imposition of unfunded mandates on Indian tribal governments, (3) and
to streamline the applications process for and increase the
availability of waivers to Indian tribal governments. This Executive
Order requires Federal agencies to have an effective process to involve
and consult with representatives of Indian tribal governments in
developing regulatory policies and prohibits regulations that impose
substantial, direct compliance costs on Indian tribal communities.
Section 5(b)(2)(B) of E.O. 13175 requires NMFS to prepare a tribal
summary impact statement as part of the final rule. This statement must
contain (1) a description of the extent of the agency's prior
consultation with tribal officials, (2) a summary of the nature of
their concerns, (3) the agency's position supporting the need to issue
the regulation, and (4) a statement of the extent to which the concerns
of tribal officials have been met.
Tribal Summary Impact Statement
On December 14, 2011, NMFS consulted on this action by mailing
letters to all Alaska tribal governments, Alaska Native corporations,
and related organizations (``Alaska Native representatives'') by
notifying them of the opportunity to comment when the Notice of
Availability for Amendment
[[Page 42636]]
93 and the proposed rule were published in the Federal Register. The
letter invited requests for further consultation on this action. One
letter was received from the tribes in support of implementation of
Amendment 93. The agency will implement Amendment 93 to establish PSC
limits of salmon in the Central and Western GOA pollock fisheries.
There were no concerns regarding the proposed action raised by tribal
officials during this consultation process.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Parts 679 and 680
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: July 17, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the
functions and duties of the Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For the reasons set out in the preamble, NMFS amends 15 CFR chapter
IX and 50 CFR chapter VI as follows:
Title 15--Commerce And Foreign Trade
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT
OF COMMERCE
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, in the table in paragraph (b), under the entry ``50
CFR,'' add entry in alphanumeric order for ``679.21(h).'' The addition
reads as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
CFR part or section where the information collection control No. (all
requirement is located numbers begin
with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR............................................... .................
* * * * *
679.21(h)............................................ -0316
* * * * *
------------------------------------------------------------------------
Title 50--Wildlife and Fisheries
CHAPTER VI--FISHERY CONSERVATION AND MANAGEMENT, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
3. 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. 108-447.
0
4. In Sec. 679.7, add paragraph (b)(8) to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(b) * * *
(8) Prohibitions specific to salmon discard in the Central and
Western Reporting Areas of the GOA directed fisheries for pollock. Fail
to comply with any requirement of Sec. 679.21(h).
* * * * *
0
5. In Sec. 679.21:
0
a. Revise paragraphs (b)(2)(ii) and (b)(3); and
0
b. Add paragraph (h) to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(b) * * *
(2) * * *
(ii) After allowing for sampling by an observer, if an observer is
aboard, sort its catch immediately after retrieval of the gear and,
except for salmon prohibited species catch in the BS and GOA pollock
fisheries under paragraph (c) or (h) of this section, or any prohibited
species catch as provided (in permits issued) under Sec. 679.26,
return all prohibited species, or parts thereof, to the sea
immediately, with a minimum of injury, regardless of its condition.
(3) Rebuttable presumption. Except as provided under paragraph (c)
and (h) of this section and Sec. 679.26, there will be a rebuttable
presumption that any prohibited species retained on board a fishing
vessel regulated under this part was caught and retained in violation
of this section.
* * * * *
(h) GOA Chinook Salmon PSC Management--(1) Applicability.
Regulations in this paragraph apply to vessels directed fishing for
pollock with trawl gear in the Central and Western reporting areas of
the GOA and processors taking deliveries from these vessels.
(2) GOA Chinook salmon prohibited species catch (PSC) limits
(effective January 1, 2013).
(i) NMFS establishes an annual PSC limit of 18,316 Chinook salmon
for vessels engaged in directed fishing for pollock in the Central
reporting area of the GOA.
(ii) NMFS establishes an annual PSC limit of 6,684 Chinook salmon
for vessels engaged in directed fishing for pollock in the Western
reporting area of the GOA.
(3) Chinook salmon PSC limit for the GOA pollock fishery C and D
seasons in 2012. (Effective from August 25, 2012, until November 1,
2012). NMFS establishes the GOA Chinook salmon PSC limits for the
Central and Western GOA pollock fisheries during the 2012 C and D
seasons as follows:
(i) A PSC limit of 8,929 Chinook salmon for vessels engaged in
directed fishing for pollock in the Central reporting area of the GOA;
and
(ii) A PSC limit of 5,598 Chinook salmon for vessels engaged in
directed fishing for pollock in the Western reporting area of the GOA.
(4) Salmon retention. The operator of a vessel and the manager of a
shoreside processor or SFP must not discard any salmon or transfer or
process any salmon under the PSD program at Sec. 679.26, if the salmon
were taken incidental to a Central or Western GOA directed pollock
fishery, until an observer at the processing facility that takes
delivery of the catch is provided the opportunity to count the number
of salmon and to collect any scientific data or biological samples from
the salmon.
(5) Salmon discard. Except for salmon under the PSD program at
Sec. 679.26, all salmon must be discarded, following notification by
an observer that the number of salmon has been estimated and the
collection of scientific data or biological samples has been completed.
(6) Chinook salmon PSC closures in Pollock trawl gear fisheries.
If, during the fishing year, the Regional Administrator determines that
vessels engaged in directed fishing for pollock in the Central
reporting area or Western reporting area of the GOA will catch the
applicable Chinook salmon PSC limit specified for that reporting area
under paragraph (h)(2) of this section, NMFS will publish notification
in the Federal Register closing the applicable regulatory area to
directed fishing for pollock.
6. In Sec. 679.26, revise paragraphs (a)(2), (b)(1)(xi)
introductory text, (b)(1)(xi)(C), (b)(2)(iv), and (c)(1) to read as
follows:
Sec. 679.26 Prohibited Species Donation Program.
(a) * * *
(2) Halibut delivered by catcher vessels using trawl gear to
shoreside
[[Page 42637]]
processors and stationary floating processors.
(b) * * *
(1) * * *
(xi) A list of all vessels and processors, and food bank networks
or food bank distributors participating in the PSD program. The list of
vessels and processors must include:
* * * * *
(C) The vessel's or processor's telephone number.
* * * * *
(2) * * *
(iv) The potential number of vessels and processors participating
in the PSD program.
* * * * *
(c) * * *
(1) A vessel or processor retaining prohibited species under the
PSD program must comply with all applicable recordkeeping and reporting
requirements, including allowing the collection of data and biological
sampling by an observer prior to processing any fish under the PSD
program. A vessel or processor participating in the PSD program:
(i) In the BS pollock fishery must comply with applicable
regulations at Sec. Sec. 679.7(d) and (k), 679.21(c), and 679.28; and
(ii) In the Central or Western GOA pollock fishery must comply with
applicable regulations at Sec. Sec. 679.7(b), 679.21(h) and 679.28.
* * * * *
[FR Doc. 2012-17747 Filed 7-19-12; 8:45 am]
BILLING CODE 3510-22-P