[Federal Register Volume 74, Number 110 (Wednesday, June 10, 2009)]
[Proposed Rules]
[Pages 27498-27504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13628]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 090218204-9956-03]
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:  Proposed rule; request for comments.

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SUMMARY:  NMFS issues a proposed rule that would implement the Fishery 
Management Plan for Fish Resources of the Arctic Management Area 
(Arctic FMP) and Amendment 29 to the Fishery Management Plan 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 move the northern boundary of the Crab FMP out of the Arctic 
Management Area south to Bering Strait. This action is necessary to 
establish a management framework for commercial fishing and to provide 
consistent management of fish resources in the Arctic Management Area 
before the potential onset of unregulated commercial fishing in the 
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.

DATES:  Written comments must be received by 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 (PR), by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P. O. Box 21668, Juneau, AK 99802.
    <bullet> Fax: (907) 586-7557.
    <bullet> Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    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 at the mailing 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 Bering Sea and Aleutian Islands King and 
Tanner crab fisheries are managed under the Crab FMP. The Arctic 
Management Area fisheries would be managed under the Arctic FMP. The 
North Pacific Fishery Management Council (Council) prepared the Crab 
FMP and has developed and adopted the proposed Arctic FMP under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 
50 CFR parts 679 and 680. General regulations governing U.S. fisheries 
also appear at 50 CFR part 600.
    The Council submitted the Arctic FMP and Amendment 29 to the Crab 
FMP for review by the Secretary of Commerce, and a notice of 
availability of the Arctic FMP and Amendment 29 was published in the 
Federal Register on Mary 26, 2009 (74 FR 24757), with comments on the 
Arctic FMP and Amendment 29 invited through July 27, 2009. Comments may 
address the Arctic FMP, Amendment 29, the proposed rule, or all 
actions, but must be received by July 27, 2009, to be considered in the 
approval/disapproval decision on the Arctic FMP and Amendment 29. All 
comments received by that time, whether specifically directed to the 
Arctic FMP, to Amendment 29, or to the proposed rule, will be 
considered in the

[[Page 27499]]

approval/disapproval decision on the Arctic FMP and Amendment 29.

Background

    If approved by NMFS, the Arctic FMP and Amendment 29 to the Crab 
FMP would provide for sustainable management of commercial fishing in 
the Arctic Management Area and eliminate management authority over 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 area. Amendment 29 to the Crab FMP would ensure consistent 
management of all crab species in the Arctic Management Area under the 
Arctic FMP.
    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 
a sustainable commercial fishery to proceed, 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 increasing human activity in this sensitive marine 
environment of the U.S. Exclusive Economic Zone (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 yet in place for the Arctic Management Area, and the 
State does not allow state licensed vessels to commercially fish in 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 limitation or regulatory oversight. 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. This action would prevent potential adverse 
effects on the Arctic marine environment from unregulated commercial 
fishing. The Arctic FMP would be a precautionary, ecosystem-based 
approach to fisheries management in the Arctic Management Area.
    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 in 
consideration of the National Standard guidelines. The following 
provides a summary of the main provisions of the proposed Arctic FMP 
that provide the authority for conservation and management of fish 
resources and for the provisions in this proposed rule.
    The Arctic FMP would apply to commercial harvests of most fish 
resources in the waters of the Arctic Management Area (Figure 24 in 
this proposed rule). 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.
    This proposed rule will not affect non-commercial fishing in the 
Arctic Management Area or 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 also would have no effect on the commercial harvest 
of Pacific salmon and 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 (Salmon FMP), 
which prohibits commercial salmon fishing in the Arctic Management 
Area. Pacific halibut commercial fishing is managed by the 
International Pacific Halibut Commission (IPHC), which does not allow 
harvest of Pacific halibut in the Arctic Management Area.
    The proposed Arctic FMP would establish two categories of species: 
target species and ecosystem component species. Target species are 
those that are most likely to be targeted in a foreseeable 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 occurring in the Arctic 
Management Area are classified as ecosystem component species. As used 
in the FMP, fish are defined by section 3 of the Magnuson-Stevens Act 
as finfish, mollusks, crustaceans, and all other forms of marine plant 
and animal life other than marine mammals and birds.
    The proposed Arctic FMP would provide the maximum sustainable yield 
(MSY) and optimum yield (OY) for commercial fishing for each 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 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) 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 
likely would result in impacts on Arctic cod and on 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 commercial fishing and Arctic predators, and the 
potential high levels of bycatch of Arctic cod in a saffron cod 
fishery, the MSYs for Arctic cod and saffron cod would be 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 proposed to be zero. With an OY of zero for each target 
species, no quantity of target species is available for commercial 
harvest. 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.
    Because the OYs for commercial fisheries for each target species 
are zero and because of the lack of information to manage sustainable 
fisheries for ecosystem component species, the Arctic FMP would 
prohibit commercial fishing on target and ecosystem

[[Page 27500]]

component species, except Pacific salmon and Pacific halibut for which 
other authorities prohibit commercial fishing, as explained above. 
Prohibiting commercial harvest of ecosystem component species would 
prevent adverse effects on the Arctic marine ecosystem, including the 
target species, that may result from unregulated commercial fishing on 
any ecosystem component species. This prohibition is a precautionary 
approach to fisheries management because little information is 
available to NMFS to determine either the ability of these species to 
support commercial fishing or the potential impacts from such fishing 
on the Arctic marine environment, including the target 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 Pacific salmon and Pacific 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 . . . .'' 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 
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. NMFS 
will periodically 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 prescribes the process the Council will 
follow and the criteria it will evaluate before authorizing a future 
commercial fishery. Consideration of a future commercial fishery would 
include the Council's

[[Page 27501]]

review of an analysis of the biological information on the potential 
target species and potential impacts from commercial fishing on the 
Arctic marine environment and on communities. An Arctic 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 would provide the general conservation 
and management measures to ensure sustainable fishing and to prevent 
overfishing of any target species. Determination criteria for 
overfishing levels (OFL) and acceptable biological catch levels (ABC) 
would be based on the type and quantity of information available.
    The OFLs and ABCs would guide the Council and NMFS in setting 
harvest specifications for fishery management in the Arctic Management 
Area. The process for specifying OFLs, ABCs, and total allowable catch 
amounts (TACs) would include the development of a Stock Assessment and 
Fishery Evaluation report for the Council's consideration in 
recommending OFLs, ABCs, and TACs to the Secretary. At the time a 
commercial fishery is authorized by the amended Arctic FMP, the harvest 
specification regulations under Sec.  679.20 would be revised to 
include the Arctic Management Area. This would ensure the latest method 
of determining harvest specifications would be used at the time the 
Arctic Management Area commercial fishery is authorized.
    The National Standard 1 guidelines (74 FR 3178, January 16, 2009) 
require accountability measures and mechanisms to prevent overfishing. 
Because the proposed Arctic FMP initially prohibits commercial fishing 
in the Arctic Management Area, the prohibition on commercial fishing 
that would be implemented by this proposed rule would satisfy this 
requirement. If a commercial fishery is authorized in the future, the 
FMP would be amended to include specific accountability measures and 
mechanisms to prevent overfishing.
    The process and criteria for issuing exempted fishing permits 
(EFPs) that would be implemented by this proposed rule will be found at 
50 CFR part 679. EFPs provide exemptions to fishing regulations to 
allow commercial fishing in a manner not otherwise authorized. EFPs 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 on any federal action that may adversely impact EFH 
(Magnuson-Stevens Act section 305(b)(2)). The proposed EFH description 
for Arctic cod includes waters of the entire Arctic Management Area. 
Proposed EFH locations for snow crab and saffron cod are primarily in 
the Chukchi Sea. A description of non-fishing impacts on EFH is 
appended to the proposed Arctic FMP. This appendix describes potential 
adverse impacts of a variety of human activities that may occur in the 
Arctic Management Area and identifies possible mitigation measures to 
reduce such impacts.
    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 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 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 (Figure 24 in this proposed rule). 
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. This change in the geographic scope of management 
authority under the Crab FMP would ensure consistent management 
authority and application of the conservation and management measures 
in the Arctic FMP to crab throughout the Arctic Management Area. The 
Crab FMP defers crab management to the State of Alaska with federal 
oversight. The management of crab stocks in the Bering Sea is based on 
survey and catch information, which is not available in 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 crab fisheries 
management.

Proposed Regulatory Amendments

    The Council recommended, and the Secretary proposes, the following 
regulatory changes and additions to 50 CFR part 679 to implement the 
Arctic FMP.
    1. Section 679.1 would be revised to add the title of the Arctic 
FMP and to describe the scope of the FMP as governing commercial 
fishing for Arctic fish in the Arctic Management Area by vessels of the 
United States. This addition would be necessary to expand the scope of 
the 50 CFR part 679 regulations to include implementation of the Arctic 
FMP.
    2. Section 679.2 would be amended to add and revise definitions for 
the Arctic FMP and for Amendment 29 to the Crab FMP. A definition for 
``Arctic fish'' would be added to distinguish in regulations the 
species under the authority of the Arctic FMP. The Arctic fish 
definition would include all fish as defined by the Magnuson-Stevens 
Act, excluding Pacific halibut and Pacific salmon. The Magnuson-Stevens 
Act defines ``fish'' as finfish, mollusks, crustaceans, and all other 
forms of marine animal and plant life other than marine mammals and 
birds. Commercial fishing for Pacific halibut and Pacific salmon in the 
EEZ off Alaska is authorized by the IPHC and under the Salmon FMP, 
respectively, and would not be managed under the Arctic FMP. Creating 
this definition would allow for the initial prohibition of commercial 
fishing for Arctic fish, as would be prescribed by the Arctic FMP.
    A definition for the ``Arctic Management Area'' as described by the 
Arctic FMP would be added. The area would be described by text and 
would refer to Figure 24 in part 679. This definition is necessary to 
define the area within which the proposed Arctic FMP will manage 
commercial fishing.
    The definition for the ``Bering Sea and Aleutian Islands Area'' for 
the purposes of king and Tanner crab management would be revised. This 
revision would implement Amendment 29 to the Crab FMP by moving the 
northern boundary of the Crab FMP fishery management area from Point 
Hope southward to Bering Strait. This revision is necessary to 
eliminate management authority in the Arctic Management Area from the 
Crab FMP so that all crab that occur within the Arctic Management Area 
would be managed under the Arctic FMP.
    The definition of ``commercial fishing'' would be revised to 
include the catch of Arctic fish which is or is

[[Page 27502]]

intended to be sold or bartered, excluding subsistence fishing. This 
revision is necessary to manage, and initially prohibit, commercial 
fishing for Arctic fish and to ensure subsistence fishing is not 
affected by such management of commercial fishing.
    The definition of ``management area'' would be revised to add the 
Arctic Management Area. This revision is necessary to list the Arctic 
Management Area with the Bering Sea and Aleutian Islands Management 
Area and the Gulf of Alaska. This revision would allow for fishery 
management within the scope of the regulations at Sec.  679.1.
    The definition of ``optimum yield'' would be revised by adding 
Arctic fish and referencing Sec.  679.20(a)(1) where the optimum yield 
for target species identified in the Arctic FMP would be specified. 
This revision is necessary to establish the optimum yield for the 
target species and to support the prohibition on commercial fishing of 
target species.
    The definition of ``subsistence fishing'' would be added to 
describe subsistence harvests in the Arctic Management Area of Arctic 
fish and Pacific salmon. Subsistence in terms of Pacific halibut is 
defined under regulations at 50 CFR 300.61 and would not be changed by 
this proposed definition. Subsistence fishing in the Arctic would be 
the harvest of Arctic fish and Pacific salmon for non-commercial, long-
term, customary and traditional use necessary to maintain the life of 
the taker or those who depend upon the taker to provide them with such 
subsistence. This definition is consistent with the definition of 
subsistence in the Marine Mammal Protection Act. Adding this definition 
to 50 CFR part 679 would allow the subsistence harvest practices to be 
differentiated from commercial harvest practices, which would be 
prohibited. This addition is necessary to ensure the continued 
subsistence harvest of Arctic fish and Pacific salmon in the Arctic 
Management Area while differentiating such activity from commercial 
fishing. NMFS is requesting comments specific to this definition and 
any suggestions on how subsistence fishing may be better defined.
    3. The introductory paragraph to Sec.  679.6 addressing EFPs would 
be revised to add Arctic fish. EFPs currently are available for only 
groundfish exempted fishing. Because the Arctic FMP includes species 
other than groundfish and the Council intended that EFPs may be 
available for any type of fish resource occurring in the Arctic 
Management Area, the application of EFPs would be revised to include 
Arctic fish.
    4. In Sec.  679.7, a prohibition would be added to prevent 
commercial fishing for Arctic fish in the Arctic Management Area. A 
prohibition on commercial fishing for Arctic fish would be necessary to 
implement the Arctic FMP prohibition on commercial fishing on either 
target or ecosystem component species. NMFS currently works with the 
U.S. Coast Guard in surveillance of vessel activities in the Arctic 
Management Area. U.S. fishing vessels transiting Canadian waters are 
required to stow gear in a manner that makes the gear not readily 
available for fishing and easily visible during surveillance flights. 
NMFS may, in the future, consider this or other procedures that could 
facilitate enforcement of the commercial fishing prohibition in the 
Arctic Management Area and is interested in any public comment on 
possible future enforcement procedures.
    5. In Sec.  679.20(a), the OY for commercial fishing for Arctic 
Management Area target species would be added. The OY for commercial 
fishing would be set at zero mt for each of the target species, as 
provided in the Arctic FMP. This revision is necessary to implement the 
OYs specified in the Arctic FMP.
    6. Figure 24 to part 679 would be added to show the Arctic 
Management Area as established by the Arctic FMP. This addition is 
necessary to clarify in the regulations the location of the Arctic 
Management Area and to differentiate the boundary of the Arctic 
Management Area from the Bering Sea and Aleutian Islands Management 
Area boundary shown in Figure 1 to part 679. The Chukchi Sea 
statistical area 400 would remain with the Bering Sea and Aleutian 
Islands statistical and reporting areas in Figure 1 to part 679 until 
the Arctic FMP is amended to authorize a commercial fishery in the 
Arctic Management Area. The Council recommended not establishing 
subareas for fisheries management in the Arctic Management Area at this 
time due to the lack of information to inform the boundaries of such 
subareas.

Classification

    Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-
Stevens Act, the NMFS Acting Assistant Administrator has determined 
that this proposed rule is consistent with and necessary to implement 
the Arctic FMP, and Amendment 29 to the Crab FMP, and in accordance 
with other provisions of the Magnuson-Stevens Act, and other applicable 
law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA), as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. Descriptions of the action, the reasons 
it is under consideration, and its objectives and legal basis, are 
contained at the beginning of this section in the preamble and in the 
SUMMARY section of the preamble. A summary of the analysis follows. A 
copy of this analysis is available from NMFS (see ADDRESSES).
    This action would regulate commercial fishing for fish resources 
and not regulate subsistence, recreational, or personal use fishing in 
the action area. There is only one unverified, small, and poorly 
documented commercial fishery for red king crab in a portion of the 
Arctic Management Area in Kotzebue Sound.
    A survey of the Alaska Department of Fish and Game fish ticket 
database back to 1985 identified a single fish ticket for this fishery. 
The ticket was for a very small amount of red king crab delivered in 
the summer of 2005. However, to the extent that fishing has occurred, 
landings in this fishery may not always have been reported on official 
state landings records (i.e., not legally recorded). The waters in 
which this fishery may have occurred were set apart from other waters 
for reporting purposes in 2005. From 2005 to 2007, three or four 
persons acquired the State of Alaska K09X permits that are required to 
fish commercially in this area. With the exception of the single 
anomalous fish ticket cited above, there have been no commercial fish 
tickets from the action area during 2005 through 2007. Thus, the number 
of permit holders, rather than the number of operations with fish 
tickets, is assumed to best represent the potential number of entities 
directly regulated by this action. All of these operations are believed 
to be small entities with annual gross revenues under $4 million.
    The Council considered four alternatives and three options for this 
proposed action. The options have no effect on directly regulated small 
entities as the options are limited to different scientific and 
administrative processes for developing management measures for 
fisheries. Each option resulted in the same effect, because each would 
implement a management framework that initially prohibits

[[Page 27503]]

commercial fishing in the Arctic Management Area.
    Alternative 1 is the status quo which would allow for the potential 
for unregulated commercial fishing to occur in the Arctic Management 
Area. Alternative 1 does not meet the objectives of the action to 
sustainably manage commercial fisheries in the Arctic Management Area.
    Alternatives 3 and 4 would provide different mechanisms to provide 
for sustainable management of fish resources in the Arctic Management 
Area, but each alternative would exclude the small red king crab 
fishery in Kotzebue Sound from Arctic FMP management. Alternative 3 
would have exempted the red king crab fishery from the Arctic FMP and 
from the Crab FMP while Alternative 4 would have provided for the 
continued management of the small red king crab fishery under the Crab 
FMP. Neither Alternative 3 nor Alternative 4 were chosen based on the 
lack of evidence of a currently existing small red king crab fishery in 
the Kotzebue Sound area and on the lack of information to ensure 
sustainable management of the potential red king crab stock in the 
Kotzebue Sound while not affecting subsistence use of the resource. 
Alternatives 1, 3, and 4 have no known impacts on directly regulated 
small entities.
    Alternative 2 was chosen as the preferred alternative as it fully 
meets the objective to provide sustainable management for all fish 
resources of the Arctic Management Area. Alternative 2, which 
implements a management framework that initially prohibits all 
commercial fishing in the Arctic Management Area, initially would 
prohibit future crab fishing that may otherwise take place in the small 
and poorly documented fishery in Kotzebue Sound, until stocks have been 
assessed and harvest specifications (e.g., OFL, ABC, TAC) are 
established. At that time, an amendment to the Arctic FMP could be 
proposed to authorize commercial fishing. Based on permit issuance, it 
is possible that two to four small entities may fish in the small red 
king crab fishery in Kotzebue Sound in a year. Permit issuance does not 
necessarily indicate fishing activity, and only one fish ticket exists 
from this fishery since 1985. Income from this fishery is likely to be 
small.
    This regulation does not impose new recordkeeping and reporting 
requirements on the regulated small entities.
    The IRFA did not reveal any federal rules that duplicate, overlap, 
or conflict with the proposed action.
    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 (P.L.) 
108-199 (188 Stat. 452), as amended by section 518 of P.L. 109-447 (118 
Stat. 3267), extends the consultation requirements of E.O. 13175 to 
Alaska Native corporations. NMFS will contact tribal governments and 
Alaska Native corporations which may be affected by the proposed 
action, provide them with a copy of this proposed rule, and offer them 
an opportunity to consult.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: June 5, 2009.
Samuel D. Rauch III,
Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set out in the preamble, NMFS proposes to amend 50 CFR 
part 679 as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; 
Pub. L. 108 447.
    2. In Sec.  679.1, add paragraph (l) to read as follows:


Sec.  679.1  Purpose and scope.

* * * * *
    (l) Fishery Management Plan for Fish Resources of the Arctic 
Management Area. Regulations in this part govern commercial fishing for 
Arctic fish in the Arctic Management Area by vessels of the United 
States (see this subpart and subpart B of this part).
    3. In Sec.  679.2, add in alphabetical order definitions for 
<gr-thn-eq>Arctic fish'', ``Arctic Management Area'', and ``Subsistence 
fishing'' and revise the definitions for the ``Bering Sea and Aleutian 
Islands Area'', ``Management area'', and paragraph (2) of the 
definition of ``Optimum yield'' and paragraph (3) to the definition of 
``Commercial fishing'' to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Arctic fish means finfish, mollusks, crustaceans, and all other 
forms of marine animal and plant life other than marine mammals, birds, 
Pacific salmon, and Pacific halibut.
    Arctic Management Area, for purposes of regulations governing the 
Arctic Management Area fisheries, means 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 (see Figure 24 to this part).
* * * * *
    Bering Sea and Aleutian Islands Area, for purposes of regulations 
governing the commercial king and Tanner crab fisheries in part 680 of 
this Chapter, means those waters of the EEZ off the west coast of 
Alaska lying south of the Chukchi Sea statistical area as described in 
the coordinates listed for Figure 1 to this part, and extending south 
of the Aleutian Islands for 200 nm west of Scotch Cap Light (164[deg] 
44'36'' W. long).
* * * * *
    Commercial fishing means:
* * * * *
    (3) For purposes of Arctic fish, the resulting catch of fish in the 
Arctic Management Area which either is, or is intended to be, sold or 
bartered but does not include subsistence fishing for Arctic fish, as 
defined in this subsection.
* * * * *
    Management area means any district, regulatory area, subpart, part, 
or the entire GOA, BSAI, or Arctic Management Area.
* * * * *
    Optimum yield means:
* * * * *
    (2) With respect to the groundfish and Arctic fisheries, see Sec.  
679.20(a)(1).
* * * * *
    Subsistence fishing for purposes of fishing in the Arctic 
Management Area means the harvest of Arctic fish and Pacific salmon for 
non-commercial, long-term, customary and traditional use necessary to 
maintain the life of the taker or those who depend upon the taker to 
provide them with such subsistence.
* * * * *
    4. In Sec.  679.6, revise paragraph (a) to read as follows:


Sec.  679.6  Exempted fisheries.

    (a) General. For limited experimental purposes, the Regional 
Administrator may authorize, after consulting with the Council, fishing 
for groundfish or fishing for Arctic fish in the Arctic

[[Page 27504]]

Management Area in a manner that would otherwise be prohibited. No 
exempted fishing may be conducted unless authorized by an exempted 
fishing permit issued by the Regional Administrator to the 
participating vessel owner in accordance with the criteria and 
procedures specified in this section. Exempted fishing permits will be 
issued without charge and will expire at the end of a calendar year 
unless otherwise provided for under paragraph (e) of this section.
* * * * *
    5. In Sec.  679.7, add paragraph (p) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (p) Arctic Management Area. Conduct commercial fishing for any 
Arctic fish in the Arctic Management Area.
    6. In Sec.  679.20, revise the introductory paragraph and paragraph 
(a)(1) to read as follows:


Sec.  679.20  General limitations.

    This section applies to vessels engaged in directed fishing for 
groundfish in the GOA and/or the BSAI and to vessels engaged in 
commercial fishing for Arctic fish in the Arctic Management Area.
    (a) * * *
    (1) OY (i) BSAI and GOA. The OY for BSAI and GOA target species and 
the ``other species'' category is a range or specific amount that can 
be harvested consistently with this part, plus the amounts of 
``nonspecified species'' taken incidentally to the harvest of target 
species and the ``other species'' category. The species categories are 
defined in Table 1 of the specifications as provided in paragraph (c) 
of this section.
    (A) The OY for groundfish in the BSAI regulated by this section and 
by part 600 of this chapter is 1.4 million to 2.0 million mt.
    (B) The OY for groundfish in the GOA regulated by this section and 
by part 600 of this chapter is 116,000 to 800,000 mt.
    (ii) Arctic Management Area. The OY for each target fish species 
identified in the Fishery Management Plan for Fish Resources of the 
Arctic Management Area regulated by this section and by part 600 of 
this chapter is 0 mt.
* * * * *
    7. Figure 24 is added to part 679 to read as follows:
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[FR Doc. E9-13628 Filed 6-9-09; 8:45 am]
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