E6-19530. Fisheries of the Exclusive Economic Zone Off Alaska; Application for an Exempted Fishing Permit

AGENCY:

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

ACTION:

Notice; receipt of an application for an exempted fishing permit.

SUMMARY:

This notice announces receipt of an application for an exempted fishing permit (EFP) from the American Fisheries Act (AFA) Catcher Vessel Intercooperative, and the Pollock Conservation Cooperative. If granted, the EFP would allow the applicants to use a salmon bycatch reduction intra-cooperative agreement (ICA) in the 2007 Bering Sea pollock fishery, and be exempt from closures of the salmon savings areas. This project is intended to promote the objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) and National Standard 9 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

ADDRESSES:

Copies of the EFP application and the environmental assessment (EA) are available by writing to the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Walsh. The application and EA are also available from the Alaska Region, NMFS website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Jason Anderson, 907-586-7228 or [e-mail].

SUPPLEMENTARY INFORMATION:

NMFS manages the domestic groundfish fisheries in the Bering Sea and Aleutian Islands (BSAI) under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Act. Regulations governing the groundfish fisheries of the BSAI appear at 50 CFR parts 600 and 679. The FMP and the implementing regulations at §§ 679.6 and 600.745(b) authorize issuance of EFPs to allow fishing that would be otherwise prohibited. Procedures for issuing EFPs are contained in the implementing regulations.

NMFS received an EFP application from the AFA Catcher Vessel Intercooperative and the Pollock Conservation Cooperative (hereafter referred to as “applicants”) on October 19, 2006. The primary objective of the proposed EFP is to test the feasibility of an ICA designed to avoid salmon bycatch in the Bering Sea pollock fishery. The applicants developed the feasibility study in cooperation with NMFS scientists at the Alaska Fisheries Science Center (AFSC). The project will provide information needed by the Council and NMFS to inform decision making on subsequent salmon bycatch reduction management actions. Specifically, the project will assess the feasibility of using an ICA to share salmon bycatch information among pollock fishery participants, determine areas of high salmon bycatch, and monitor vessels= ability to meet the operational guidelines of the ICA to avoid these areas in a manner that is not allowed under current regulations.

Background

Pacific salmon are caught incidentally in the BSAI trawl fisheries. Of the five species of Pacific salmon, Chinook salmon (Onchorynchus tshawytscha) and chum salmon (O. keta) are most often incidentally caught in the pollock fishery. Pacific salmon are placed into two categories for purposes of salmon bycatch management: Chinook and non-Chinook. The non-Chinook category is comprised of chum, sockeye (O. nerka), pink (O. gorbuscha), and coho (O. kisutch) salmon. However, from 2001 through 2006, chum salmon represented about 99 percent of non-Chinook salmon harvested incidentally in the pollock trawl fisheries. For purposes of this notice, all non-Chinook salmon are referred to as chum salmon.

To address Chinook salmon bycatch concerns, the Council adopted several management measures designed to reduce overall Chinook salmon bycatch in the BSAI trawl fisheries. In 1995, the Council adopted and NMFS approved Amendment 21b to the FMP. Based on historic information on salmon bycatch, Amendment 21b established a Chinook salmon savings area (60 FR 31215, November 29, 1995). Under Amendment 21b, the Chinook salmon savings area closed to trawl gear when the incidental catch of Chinook salmon in BSAI trawl fisheries reached 48,000 fish. Amendment 58 to the FMP revised the Chinook salmon savings area measures (65 FR 60587, October 12, 2000). Amendment 58 reduced the Chinook salmon bycatch limit from 48,000 fish to 29,000 fish, mandated year-round accounting of Chinook bycatch in the directed pollock fishery, revised the boundaries of the Chinook salmon savings area closure, and implemented new closure dates. The timing of the closure depends on when the limit is reached as follows:

(1) Before April 15, the area closes immediately through April 15. After April 15, the area re-opens, but closes again from September 1 through December 31.

(2) Between April 15 and September 1, the area would close from September 1 through the end of the year.

(3) After September 1, the area closes immediately through the end of the year.

The Chinook salmon savings area was further modified under Amendment 82 to the FMP (70 FR 9856, March 1, 2005). Amendment 82 established a separate Aleutian Islands subarea bycatch limit that when reached, would close the existing Chinook salmon savings area located in that subarea (Area 1). The Chinook salmon savings area in the Bering Sea subarea remained unchanged, but was designated as Area 2 of the Chinook salmon savings area (Figure 8 to 50 CFR part 679).

The Council also adopted a time-area closure designed to reduce overall chum salmon bycatch in the BSAI trawl fisheries. In 1995, Amendment 35 to the FMP established the chum salmon savings area (60 FR 34904, July 5, 1995). This area is closed to all trawling from August 1 through August 31 of each year. Additionally, if 42,000 non-Chinook salmon are caught in the Catcher Vessel Operational Area during the period August 15 through October 14, the area remains closed for the remainder of the calendar year.

Western Alaska Community Development Quota (CDQ) groups receive, along with allocations of groundfish CDQ, individual allocations of Chinook and non-Chinook annual bycatch amounts. Vessels directed fishing for CDQ pollock are not subject to the chum and Chinook salmon savings area closures that apply to the non-CDQ pollock fisheries. Rather, vessels participating in directed CDQ pollock fisheries on behalf of individual CDQ groups are subject to group-specific closures only after they exceed a given CDQ group's chum or Chinook salmon bycatch limit. Thus, individual CDQ groups are subject to salmon savings area closures based on their respective catch of chum or Chinook salmon while directed fishing for CDQ pollock.

The Chinook and chum salmon savings areas were adopted based on historic observed salmon bycatch rates and were designed to avoid high spatial and temporal levels of salmon bycatch. From 1990 through 2001, BSAI salmon bycatch averaged 37,819 Chinook and 69,332 chum annually. Recently, however, salmon bycatch numbers have increased substantially. In 2003, 54,911 Chinook salmon and 197,091 chum salmon were taken incidentally in the trawl fisheries. In 2004, salmon bycatch further increased to 62,493 Chinook and 465,650 chum salmon. Bycatch amounts remained high in 2005 and totaled 67,541 Chinook and 116,999 chum salmon. High bycatch amounts continued in 2006 with 74,120 Chinook and 317,375 chum salmon taken incidentally by September 23, 2006. Since establishment of the chum salmon savings area in 1995, the bycatch of non-Chinook salmon triggered closures in 2002, 2003, 2004, 2005, and 2006.

In February 2005, the Council initiated an Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis to explore alternatives to the current salmon bycatch measures. Spatial and temporal comparisons of non-CDQ vessels fishing outside the salmon savings areas with CDQ vessels fishing inside the salmon savings areas indicated that bycatch rates were much higher outside the savings areas.

In October 2005, the Council recommended Amendment 84 to the FMP. Amendment 84 would exempt non-CDQ and CDQ pollock vessels participating in a salmon bycatch reduction ICA from closures of the Chinook and chum salmon savings areas in the Bering Sea and enable the pollock fleet to utilize its internal cooperative structure to communicate amongst themselves and reduce salmon bycatch. Because the chum salmon savings area closes by regulation on August 1 of every year (§ 679.22(a)(10)) and this closure was expected to exacerbate the high salmon bycatch the pollock fleet has experienced in recent years, the Council stressed the importance of implementing Amendment 84 by August 1, 2006. The Council also asked for an annual report from participants in the salmon bycatch reduction ICA on how effective the agreement appears to be at reducing salmon bycatch, although regulations would not require reporting to the Council. The intent of the Council is to assess the effectiveness of the ICA in coordinating voluntary salmon bycatch reduction efforts by participants in the Bering Sea pollock fisheries.

During the development of a draft proposed rule to implement Amendment 84, NOAA General Council, Alaska Region (GCAK) determined that specific ICA provisions must be incorporated into regulations for compliance with the Administrative Procedure Act (APA) and National Standard 9. These provisions include requirements for:

(1) The initial salmon bycatch base rate that vessels' salmon bycatch rates will be compared against;

(2) Inseason adjustments to the initial salmon bycatch base rate;

(3) Cooperative tier assignments and inseason adjustments to those assignments;

(4) Closure notices and area closure requirements based on tier assignment;

(5) Internal ICA enforcement provisions; and

(6) Inseason data sharing provisions among the pollock harvesting cooperatives and western Alaska subsistence salmon user groups.

These provisions are described in detail in the EA prepared for this action (see ADDRESSES) and are generally described below.

Industry is concerned that incorporating components of the salmon bycatch reduction ICA into regulation would reduce their operational flexibility and ability to respond to inseason changes in salmon distribution, abundance, and bycatch levels. In June 2006, NMFS and GCAK met with members of the pollock fleet and western Alaska subsistance user groups to describe these issues and begin working towards resolving these concerns.

To address the immediate need of implementing a program to enable vessels to reduce their salmon bycatch during directed fishing for pollock, and to explore whether promulgating regulations that include components of the salmon bycatch reduction ICA would be unworkable for the fleet, the applicants were granted an EFP for the time period August 2, 2006, through November 1, 2006.

The 2006 EFP exempted CDQ and non-CDQ pollock vessels operating under a salmon bycatch reduction ICA from closures of the salmon savings areas. The EFP allowed the participants to conduct operations under the salmon bycatch reduction EFP during the “B” season. Under the conditions of the 2006 EFP, the applicants are scheduled to present initial and final results at the December 2006 and February 2007 Council meetings, respectively. Preliminary indications are that salmon bycatch was reduced under the EFP, although it is not known whether these reductions are due to decreases or movements in overall salmon biomass.

On October 16, 2006, NMFS received an EFP application that would continue to evaluate the goals described in the 2006 EFP. However, because chum salmon is the predominant bycatch problem during the “B” season, and Chinook salmon bycatch is the predominant bycatch problem during the “A” season, the applicants expect to be able to evaluate these goals relative to Chinook salmon bycatch in the early part of 2007. The EFP is also expected to provide a basis for potential future changes to the ICA to decrease salmon bycatch. Pending implementation of Amendment 84, this information could also provide the basis for rulemaking to adjust ICA provisions that would be established in regulations.

Description of Salmon Bycatch Reduction ICA and Associated EFP

The salmon bycatch reduction ICA is intended to reduce salmon bycatch in the Bering Sea pollock fisheries. The ICA would be incorporated into existing cooperative agreements among participants in the AFA fishery and include CDQ groups and western Alaska community organizations as well as AFA cooperatives. Parties to the ICA include the following AFA cooperatives: Pollock Conservation Cooperative, the High Seas Catchers Cooperative, the Mothership Fleet Cooperative, the Inshore Cooperatives (Akutan Catcher Vessel Association, Arctic Enterprise Association, Northern Victor Fleet Cooperative, Peter Pan Fleet Cooperative, Unalaska Fleet Cooperative, UniSea Fleet Cooperative, and Westward Fleet Cooperative) and all six CDQ groups. Additionally, two western Alaskan groups who have an interest in the sustainability of salmon resources would be parties in the ICA. All these groups have participated in meetings to develop the ICA and have a compliance responsibility in the agreement.

The purpose of the ICA is to use real-time salmon bycatch information to avoid unacceptably high incidental catch rates of chum and Chinook salmon. The ICA is a private, contractual agreement among the parties. All parties to the ICA have agreed to abide by all tenants of the contract and the structure of the ICA and to retain the services of a private contractor to gather and analyze data, monitor the fleet, and report necessary bycatch information to the parties of the ICA.

The ICA requires that the bycatch rate of a participating cooperative be compared to a pre-determined bycatch rate (base rate). All ICA provisions for fleet bycatch avoidance behavior, closures, and enforcement are based on the ratio of the cooperative's actual salmon bycatch rate to the base rate.

An ICA cooperative is assigned to one of three tiers based on its salmon bycatch rate relative to the base rate. Higher tiers correspond to higher salmon bycatch rates. Tier assignments determine access privileges to specific areas. A cooperative assigned to a high tier is restricted from fishing in a relatively larger geographic area to avoid unacceptably high salmon bycatch areas. A cooperative assigned to a low tier based on fishing behavior that results in relatively low salmon bycatch rates is granted access to a wider range of fishing areas. The private contractor tracks salmon bycatch rates for each cooperative. A participating cooperative is assigned to a tier each week based on its salmon bycatch rate for the previous week. Thus, vessels have incentives to avoid fishing behavior that results in high salmon bycatch rates.

Any of the parties to the ICA may bring suit against another party for breaching the contract. A vessel that enters an area closed to it based on its tier assignment may be assessed a monetary penalty. The ICA contains a penalty schedule for violating these closures.

The project would begin January 20, 2007, and continue until November 1, 2007. Fishing would occur in the Bering Sea subarea during the normal fishing seasons described in regulation at § 679.23. Fishing would occur within the annual specified prohibited species catch limits and total allowable catch for pollock. No additional fish would be allocated for fishing under this EFP. Exemptions to regulations granted under the EFP would apply to all directed Bering Sea pollock fisheries, including participants in the CDQ program who participate in the ICA.

The proposed EFP exempts vessels listed in the application from chum and Chinook salmon savings area closures. These exemptions are necessary to allow the permit holder to effectively test the feasibility the ICA to reduce salmon bycatch in the Bering Sea. As noted above, the analysis prepared for this action indicates that some geographic areas may present additional opportunities to reduce salmon bycatch, but are otherwise closed to fishing during certain times of the year. The EFP would exempt the applicant from fishing closures related to salmon bycatch implemented under §§ 679.21 and 679.22. Additionally, vessels listed on the application would be exempt from salmon bycatch related prohibitions against fishing described in § 679.7(c)(2). Vessels would still be subject to all other requirements described in 50 CFR part 679, including monitoring and observer coverage requirements described in §§ 679.28 and 679.50.

The applicant would be required to report to NMFS and the Council at the December 2007 amd February 2008 meetings the findings of this study. Findings will include how well the project met the goals and objectives described above, and the number of violations of the ICA, the nature of those violations, and the penalty imposed, if any, against the violating entity.

In accordance with § 600.745(b) and § 679.6, NMFS has determined that the proposal warrants consideration and has initiated consultation with the Council. The Council will consider the EFP application during its meeting in Anchorage, Alaska from December 4-12, 2006. The applicants have been invited to appear in support of the application. Interested persons may comment on the application at the Council meeting during public testimony. Information regarding the December 2006 Council meeting is available at the Council's website at http://www.fakr.noaa.gov/​npfmc/​council.htm.

Copies of the application and EA are available for review from NMFS (see ADDRESSES).

Authority: 16 U.S.C. 1801 et seq.

Dated: November 15, 2006.

James P. Burgess,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.