[Federal Register Volume 77, Number 140 (Friday, July 20, 2012)]
[Rules and Regulations]
[Pages 42629-42637]
From the Federal Register Online via the Government Publishing 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 [email protected], 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 [email protected], 
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