[Federal Register Volume 74, Number 99 (Tuesday, May 26, 2009)]
[Proposed Rules]
[Pages 24757-24761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12151]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

RIN 0648-AX71


Fisheries of the United States Exclusive Economic Zone Off 
Alaska; Fisheries of the Arctic Management Area; Bering Sea Subarea

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

ACTION: Availability of a fishery management plan and fishery 
management plan amendment; request for comments.

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SUMMARY: The North Pacific Fishery Management Council has submitted the 
Fishery Management Plan for Fish Resources of the Arctic Management 
Area (Arctic FMP) and Amendment 29 to the FMP for Bering Sea/Aleutian 
Islands King and Tanner Crabs (Crab FMP). The Arctic FMP and Amendment 
29 to the Crab FMP, if approved, would establish sustainable management 
of commercial fishing in the Arctic Management Area and limit the 
management area of crab species under the Crab FMP to waters of the 
U.S. Exclusive Economic Zone (EEZ) south of Bering Strait. This action 
is necessary to establish a management framework for commercial fishing 
of nearly all fish species occurring in the Arctic Management Area 
before the potential onset of unregulated commercial fishing in the 
Arctic Management Area. This action is intended to promote the goals 
and objectives of the Magnuson-Stevens Fishery Conservation and 
Management Act, the FMPs, and other applicable laws. Comments from the 
public are encouraged.

DATES: Written comments on the Arctic FMP and Crab FMP amendment must 
be received by 1700 hours, A.D.T. on July 27, 2009.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. You may submit comments, identified for this 
action by 0648-AX71 (NOA), by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
     Fax: 907-586-7557.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.
    Copies of the Arctic FMP, Amendment 29 to the Crab FMP, maps of the 
action area and essential fish habitat, and the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) for this action may be obtained from the Alaska 
Region address above or from the Alaska Region website at http://www.alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melanie Brown, 907-586-7228.

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) requires that the North 
Pacific Fishery Management Council (Council) submit any FMP or FMP 
amendment it prepares to NMFS for review and approval, disapproval, or 
partial approval by the Secretary of Commerce (Secretary). The 
Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or 
FMP amendment, immediately publish a notice in the Federal Register 
that the FMP or FMP amendment is available for public review and 
comment.
    If approved by the Secretary, the Arctic FMP and Amendment 29 to 
the Crab FMP would establish sustainable management of commercial 
fishing in the Arctic Management Area and remove management authority 
within the Arctic Management Area from the Crab FMP. The Arctic FMP 
would establish a management framework to sustainably manage future 
commercial fishing in the Arctic Management Area and would initially 
prohibit commercial fishing until new information regarding Arctic fish 
resources allows for authorization of a sustainable commercial fishery 
in the Arctic Management Area. Amendment 29 to the Crab FMP would 
ensure consistent management of all crab species in the Arctic 
Management Area under one FMP.

[[Page 24758]]

    In February 2009, the Council recommended the adoption of the 
Arctic FMP to implement a management framework that will protect the 
fish resources of the Arctic Management Area against the potential 
onset of unregulated commercial fishing by initially prohibiting 
commercial fishing until sufficient information is available to enable 
sustainable management of such fishing consistent with the Magnuson-
Stevens Act. Global climate change is reducing the extent of sea ice in 
the Arctic Ocean, providing greater access to Arctic marine resources 
and increased human activity in this sensitive marine environment of 
the U.S. EEZ.
    Under the Magnuson-Stevens Act (section 306(a)(3)), the State of 
Alaska may regulate commercial fishing in the adjacent EEZ waters if no 
FMP is in place. No FMP is in place for the Arctic Management Area. 
However, the state authority for management in the EEZ pertains only to 
vessels registered under the law of the State of Alaska. Thus, absent 
an FMP it is possible that unregistered vessels could commercially fish 
in the Arctic Management Area without any regulatory oversight or 
management. In light of the potential adverse effects on the Arctic 
marine environment from unregulated commercial fishing, the Council 
chose to prevent this from occurring in the future. The proposed Arctic 
FMP would eliminate the potential for unregulated commercial fishing in 
the Arctic Management Area. The proposed Arctic FMP represents a 
precautionary, ecosystem-based approach to fisheries management in the 
Arctic Management Area.

Features of the Arctic FMP

    The proposed Arctic FMP contains all required provisions and 
appropriate discretionary provisions for an FMP contained in sections 
303(a), 303(b), and 313 of the Magnuson-Stevens Act. The conservation 
and management provisions in the Arctic FMP were developed to be 
consistent with the National Standard guidelines. The following is a 
summary of the main provisions of the proposed Arctic FMP.
    With the exception of Pacific halibut and Pacific salmon, the 
Arctic FMP would apply to commercial harvests of all fish resources in 
the waters of the Arctic Management Area (See Figure 1). The geographic 
extent of the Arctic Management Area would be all marine waters in the 
U.S. EEZ of the Chukchi and Beaufort Seas, from 3 nautical miles off 
the coast of Alaska or its baseline to 200 nautical miles offshore, 
north of Bering Strait (from Cape Prince of Wales to Cape Dezhneva) and 
westward to the 1990 U.S./Russia maritime boundary line and eastward to 
the U.S./Canada maritime boundary.

[[Page 24759]]

[GRAPHIC] [TIFF OMITTED] TP26MY09.022

    This action would not affect non-commercial fishing in the Arctic 
Management Area, nor commercial harvest of certain species that are 
managed pursuant to other legal authorities. This action would have no 
effect on subsistence harvest of marine resources in the Arctic 
Management Area. It would also have no effect on the commercial 
harvests of Pacific salmon or Pacific halibut. The commercial harvest 
of Pacific salmon in the Arctic Management Area is managed under the 
FMP for Salmon Fisheries in the EEZ off the Coast of Alaska, which 
prohibits commercial salmon fishing in the Arctic Management Area. 
Pacific halibut commercial fishing is managed by the International 
Pacific Halibut Commission, which does not permit harvest of Pacific 
halibut in the Arctic Management Area.
    The proposed Arctic FMP establishes two categories of species, 
target species and ecosystem component species. Target species are 
those that are most likely to be targeted in a commercial fishery based 
on potential markets and available biomass in the Arctic Management 
Area. Arctic cod (Boreogadus saida), saffron cod (Eleginus gracilis), 
and snow crab (Chionoecetes opilio) are target species in the proposed 
Arctic FMP. The remainder of fish, as defined by Section 3 of the 
Magnuson-Stevens Act, occurring in the Arctic Management Area are 
classified as ecosystem component species.
    The proposed Arctic FMP provides the maximum sustainable yield 
(MSY) and optimum yield (OY) for commercial fishing for each of the 
target species. MSY is specified for each target species using the MSY 
control rule described in the proposed Arctic FMP. The OY for each 
target species is determined by reductions from MSY based on 
uncertainty, economic considerations, and ecosystem considerations. The 
MSYs for Arctic cod, saffron cod, and snow crab would be reduced by 100 
percent based on economic costs of fishing. Uncertainty would reduce 
the

[[Page 24760]]

MSY for each target species by an amount ranging from 36 to 61 percent. 
MSYs for Arctic cod and saffron cod also would be reduced based on 
ecosystem considerations. Arctic cod is a keystone species in the 
Arctic marine environment, with many higher trophic level predators 
(i.e., certain marine mammals and seabirds) heavily dependent on Arctic 
cod as a principal prey species. The harvest of saffron cod likely 
would result in very high levels of Arctic cod bycatch (two tons of 
Arctic cod for each ton of saffron cod); therefore, the harvest of 
saffron cod also likely would result in impacts on Arctic cod and those 
species that depend on Arctic cod as prey. Because of the importance of 
Arctic cod to the Arctic food web, the lack of knowledge of the Arctic 
cod biomass needed to support both commercial fishing and Arctic 
predators, and the potential high levels of bycatch of Arctic cod in a 
saffron cod fishery, the MSYs for Arctic and saffron cods are reduced 
100 percent based on ecosystem concerns.
    Based on these reductions of the MSYs for the target species, the 
OY for commercial fishing in the Arctic Management Area for each target 
species is zero. The proposed Arctic FMP specifies the OY for each 
target species as the lowest amount of catch sufficient to allow for 
bycatch of Arctic cod, saffron cod, and snow crab in subsistence 
fisheries for other species. The Arctic FMP would thus prohibit 
commercial fishing on target species. With an OY of zero for each 
target species, no quantity of target species is available for 
commercial harvest.
    The commercial harvest of ecosystem component species also would be 
prohibited to prevent the adverse effects on the Arctic marine 
ecosystem, including the target species, that may occur from 
unregulated commercial fishing on these species. Consistent with the 
Council's stated management policy and objectives, the proposed Arctic 
FMP includes non-target species in the ecosystem component category to 
ensure that the Arctic marine ecosystem is adequately protected and out 
of concern that unregulated commercial fishing for these species could 
detrimentally affect the target fishery. The inclusion of all non-
target species in the Arctic Management Area in the ecosystem component 
category is consistent with the Magnuson-Stevens Act which: recognizes 
the increased importance of habitat conservation; calls for development 
of conservation and management measures to avoid irreversible or long-
term adverse effects to the marine environment and to minimize bycatch 
to the extent practicable; permits inclusion in an FMP of management 
measures to conserve non-target species and habitats, considering the 
variety of ecological factors affecting fishery populations; and 
requires consideration of ecological factors and protection of the 
marine ecosystem in setting OY for stocks in the fishery. The National 
Standard 1 guidelines (50 CFR 600.310(d)(5)(i)) further encourage an 
ecosystem-based approach to management of fisheries, providing the 
Council and NMFS with broad discretion to determine whether stocks 
should be classified and included in an FMP as ecosystem component 
species for a series of reasons, including specifying OY and developing 
conservation and management measures for the associated fishery to 
address other ecosystem issues and to protect their associated role in 
the ecosystem with which the fishery interacts. Due to the lack of 
commercial fishing in the Arctic, these species are non-target species 
and are not generally retained for sale or for personal use. Moreover, 
these species are not likely to be overfished or be subject to 
overfishing in the absence of commercial fishing or conservation and 
management measures.
    The Council's decision to create an ecosystem component category 
that includes all fish species in the Arctic Management Area, except 
the potential target species, and to prohibit commercial fishing for 
such species other than salmon and halibut, is based on ecosystem 
considerations and is intended to conserve target and non-target 
species and their habitats. The stated management objectives of the 
Arctic FMP provide a benchmark for NMFS' evaluation of the Council's 
proposed management measures. These objectives include a ``Biological 
Conservation Objective'' that seeks to ensure the long-term viability 
of fish populations by, among other things, preventing unregulated 
fishing and ``incorporating ecosystem-based considerations into fishery 
management decisions, as appropriate . . . .'' NMFS believes that the 
prohibition on commercial fishing for ecosystem component species 
reflects such appropriate ecosystem-based considerations and does not 
constitute required conservation and management for purposes of 
including such species in the fishery.
    The OY for each of the three potential target fisheries is de 
minimis, and sufficient only to support subsistence fishing. NMFS 
shares the Council's concern that if the target species are caught as 
bycatch during unregulated commercial fishing for other species, 
removal of those target species could surpass OY. Similarly, NMFS 
shares the Council's concern that unregulated commercial fishing for 
ecosystem component species may affect the Arctic marine ecosystem in 
ways that are detrimental to the potential target fishery as well as 
non-target species and their habitats. For example, large-scale removal 
of biomass of important prey species for one or more target species, or 
removal of species that are otherwise ecologically connected to one or 
more target species, could adversely affect the target fishery 
populations. At present, the scientific understanding of the 
interdependence and trophic relationships between particular species in 
the Arctic marine ecosystem is rudimentary, relative to other marine 
ecosystems, as is the knowledge of particular habitats in the region 
that may be important to the continued health of the ecosystem and its 
various species. In particular, NMFS is concerned about the potential 
adverse effects of unregulated commercial fishing for non-target 
species on Arctic cod, which is found throughout the Arctic Management 
Area and is a keystone species that provides a crucial trophic link 
between the sea ice food web and marine mammals and birds.
    These limitations on NMFS' understanding of ecological processes in 
the Arctic are compounded by the ongoing climatic changes in the region 
and physical changes in the marine environment. Global climate change 
is anticipated to continue altering the Arctic environment in 
fundamental ways, and before long may lead to a seasonally ice-free 
Arctic Ocean. As a result, there is great uncertainty regarding the 
ways in which current ecological relationships may change, irrespective 
of fishing pressure. Consistent with the Council's ecosystem-based 
management policy, NMFS believes it is appropriate to adopt management 
measures that will maximize the resilience of the target species and 
afford the greatest protection to the integrity of the Arctic ecosystem 
in the face of a changing climate. The prohibition on commercial 
fishing for ecosystem component species represents such a management 
measure.
    Although there is uncertainty as to whether commercial fishing for 
ecosystem component species would diminish target fishery populations 
to an unacceptable degree, either due to bycatch of target species or 
impacts on the ecosystem, NMFS has determined that the Council 
appropriately adopted a precautionary approach that proposes

[[Page 24761]]

prohibiting commercial fishing for any species of Arctic fish in the 
Arctic Management Area. Given the limited knowledge of ecological 
relationships and considerable uncertainty regarding the future, this 
will ensure that fishing does not interfere with important ecological 
relationships in the Arctic marine environment and thereby avoids the 
risk of harm to the potential target species, the broader ecosystem, 
and the habitat of fish species that may otherwise result from 
unregulated commercial fishing for ecosystem component species. 
Prohibiting commercial fishing on ecosystem component species is 
therefore an ecosystem-based, precautionary approach to fish resources 
management in the Arctic Management Area. NMFS will from time-to-time 
review the status of ecosystem component species based on the best 
available scientific information to determine whether or not such 
species should be classified for active conservation and management as 
species or stocks in the fishery.
    The proposed Arctic FMP includes a process and criteria for 
evaluating a future commercial fishery. The evaluation process includes 
the Council's review of an analysis of the biological information on 
the potential target species and potential impacts of commercial 
fishing on the Arctic marine environment and on communities. An FMP 
amendment would be required to authorize a commercial fishery in the 
Arctic Management Area and to implement the specific conservation and 
management measures for the fishery.
    If a commercial fishery is authorized in the Arctic Management 
Area, the proposed Arctic FMP provides the general conservation and 
management measures to ensure sustainable fishing and to prevent 
overfishing of any target species. Overfishing levels (OFL) and 
acceptable biological catch levels (ABC) would be established, 
according to tier systems, based on the quantity of information 
available. The process for specifying OFLs, ABCs, and total allowable 
catch amounts (TACs) includes the development of a Stock Assessment and 
Fishery Evaluation report for the Council's consideration in 
recommending OFLs, ABCs, and TACs to the Secretary.
    The National Standard 1 guidelines (74 FR 3178, January 16, 2009) 
require accountability measures and mechanisms to prevent overfishing. 
This requirement would be satisfied by the catch and retention 
restrictions implemented with the prohibition of commercial fishing 
initially imposed by the proposed Arctic FMP. If a commercial fishery 
is authorized in the future, the FMP would be amended to incorporate 
specific accountability measures and mechanisms to prevent overfishing.
    The proposed Arctic FMP includes the process and criteria for 
issuing exempted fishing permits (EFP). EFPs provide exemptions to 
fishing regulations under 50 CFR part 679 to allow commercial fishing 
in a manner not otherwise authorized. These permits are granted for the 
purpose of allowing studies that provide information useful to the 
management of fisheries and are effective for a limited time. More 
information regarding EFPs is available from the NMFS Alaska Region 
website at http://www.alaskafisheries.noaa.gov/ram/efp.htm.
    Essential fish habitat (EFH) is described for each target species 
in the proposed Arctic FMP. Once EFH is established, NMFS must be 
consulted for any federal action that may adversely impact EFH 
(Magnuson-Stevens Act section 305(b)(2)). The proposed EFH description 
for Arctic cod includes the entire Arctic Management Area. Proposed EFH 
locations for snow crab and saffron cod are primarily in the Chukchi 
Sea. Descriptions of potential non-fishing adverse impacts on EFH and 
mitigation are appended to the proposed Arctic FMP.
    To assist in the ecosystem approach to fisheries management, the 
proposed Arctic FMP includes habitat descriptions for several ecosystem 
component species. The species selected for habitat descriptions 
represent forage species and potential future target species based on 
Bering Sea commercial fishing.
    The proposed Arctic FMP also includes the latest information on the 
Arctic ecosystem and Chukchi and Beaufort Seas survey data. This 
information provides the basis for the MSY and OY specifications and 
informed the Council's decision to recommend adoption of the Arctic 
FMP.

Amendment 29 to the Crab FMP

    Amendment 29 to the Crab FMP would move the northern boundary of 
the Crab FMP management area to Bering Strait. The Crab FMP northern 
boundary is currently located at Point Hope, north of Bering Strait and 
within the Arctic Management Area (See Figure 1). This change in the 
Crab FMP northern boundary would allow the management of all crab 
species in the Arctic Management Area to be under the Arctic FMP, and 
would ensure consistent application of the conservation and management 
measures in the Arctic FMP to crab throughout the Arctic Management 
Area. The Arctic FMP's conservation and management measures were 
designed to address the unique Arctic marine environment and the 
paucity of information available for sustainable fisheries management. 
Because the information available for Arctic crab and the marine 
environment of the Arctic Management Area differs from the Bering Sea, 
the Council recommended management of crab in the Arctic Management 
Area under the Arctic FMP.

Public Comments

    NMFS is soliciting public comments on the proposed Arctic FMP and 
Crab FMP amendment through July 27, 2009. A proposed rule that would 
implement the Arctic FMP and Crab FMP amendment will be published in 
the Federal Register for public comment at a later date, following 
NMFS' evaluation pursuant to the Magnuson-Stevens Act. Public comments 
on the proposed rule must be received by the end of the comment period 
on the Arctic FMP and Crab FMP amendment in order to be considered in 
the approval/disapproval decision on the Arctic FMP and Crab FMP 
amendment. All comments received on the Arctic FMP and Crab FMP 
amendment by the end of the comment period, whether specifically 
directed to the FMP or amendment or to the proposed rule, will be 
considered in the approval/disapproval decision. Comments received 
after that date will not be considered in the approval/disapproval 
decision on the Arctic FMP or Crab FMP amendment. To be considered, 
comments must be received-- not just postmarked or otherwise 
transmitted--by 1700 hours, A.D.T. on the last day of the comment 
period (See DATES and ADDRESSES).

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

    Dated: May 20, 2009.
Margo Schulze-Haugen,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. E9-12151 Filed 5-22-09; 8:45 am]
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