[Federal Register Volume 75, Number 167 (Monday, August 30, 2010)]
[Rules and Regulations]
[Pages 53026-53074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20618]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 902
50 CFR Part 679
Fisheries of the Exclusive Economic Zone Off Alaska; Chinook Salmon
Bycatch Management in the Bering Sea Pollock Fishery; Final Rule
Federal Register / Vol. 75, No. 167 / Monday, August 30, 2010 / Rules
and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 090511911-0307-02]
RIN 0648-AX89
Fisheries of the Exclusive Economic Zone Off Alaska; Chinook
Salmon Bycatch Management in the Bering Sea Pollock Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues regulations to implement Amendment 91 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (FMP). Amendment 91 is an innovative approach
to managing Chinook salmon bycatch in the Bering Sea pollock fishery
that combines a prohibited species catch (PSC) limit on the amount of
Chinook salmon that may be caught incidentally with an incentive plan
agreement and performance standard designed to minimize bycatch to the
extent practicable in all years. This action is necessary to minimize
Chinook salmon bycatch in the Bering Sea pollock fishery to the extent
practicable while maintaining the potential for the full harvest of the
pollock total allowable catch. Amendment 91 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 September 29, 2010.
ADDRESSES: Electronic copies of Amendment 91, the Final Environmental
Impact Statement (EIS), the Record of Decision (ROD), the Final
Regulatory Impact Review (RIR), and the Biological Opinion prepared for
this action may be obtained from http://www.regulations.gov or from the
NMFS 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
rule may be submitted to NMFS Alaska Region, P.O. Box 21668, Juneau, AK
99802, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska
Region, 709 West 9th Street, Room 420A, Juneau, AK; and by e-mail to
[email protected], or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Gretchen Harrington or Seanbob Kelly,
907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the
exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands
Management Area (BSAI) under the Fishery Management Plan for Groundfish
of the Bering Sea and Aleutian Islands Management Area (FMP). The North
Pacific Fishery Management Council (Council) prepared the FMP under the
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations
governing U.S. fisheries and implementing the FMP appear at 50 CFR
parts 600 and 679.
This final rule implements Amendment 91 to the FMP. In April 2009,
the Council unanimously recommended Amendment 91 to the Secretary of
Commerce. NMFS published a Notice of Availability of this amendment in
the Federal Register on February 18, 2010 (75 FR 7228) with comments
invited through April 19, 2010. NMFS published the proposed rule on
March 23, 2010 (75 FR 14016) with comments invited through May 7, 2010.
NMFS approved Amendment 91 on May 14, 2010. NMFS received 71 letters of
public comment on Amendment 91 and the proposed rule. NMFS summarized
these letters into 102 separate comments, and responds to them under
Response to Comments, below.
The Bering Sea Pollock Fishery
This final rule applies to owners and operators of catcher vessels,
catcher/processors, motherships, inshore processors, and the six
Western Alaska Community Development Quota (CDQ) Program groups
participating in the pollock (Theragra chalcogramma) fishery in the
Bering Sea subarea of the BSAI. The Bering Sea pollock fishery is the
largest single species fishery, by volume, in the United States. The
first wholesale gross value of this fishery was more than 1.4 billion
dollars in 2008. In 2010, the Bering Sea pollock total allowable catch
(TAC) is 813,000 metric tons.
Currently, pollock in the BSAI is managed as three separate units:
the Bering Sea subarea, the Aleutian Islands subarea, and the Bogoslof
District of the Bering Sea subarea. Separate overfishing limits,
acceptable biological catch limits, and TAC limits are specified
annually for Bering Sea pollock, Aleutian Islands pollock, and Bogoslof
pollock. Amendment 91 applies only to management of the Bering Sea
pollock fishery and will not affect the management of pollock fisheries
in the Aleutian Islands or the status of pollock fishing in the
Bogoslof District.
The Bering Sea pollock fishery is managed under the American
Fisheries Act (AFA) (16 U.S.C. 1851 note), which ``rationalized'' the
pollock fishery by identifying the vessels and processors eligible to
participate in the fishery and allocating pollock among those eligible
participants. Under the AFA, 10 percent of the Bering Sea pollock TAC
is allocated to the CDQ Program. After the CDQ Program allocation is
subtracted, an amount needed for the incidental catch of pollock in
other Bering Sea groundfish fisheries is subtracted from the TAC. The
remaining ``directed fishing allowance'' is then allocated among the
AFA inshore sector (50 percent), the AFA catcher/processor sector (40
percent), and the AFA mothership sector (10 percent). Pollock
allocations to the CDQ Program and the other three AFA sectors are
further allocated annually between two seasons--40 percent to the A
season (January 20 to June 10) and 60 percent to the B season (June 10
to November 1).
The CDQ Program pollock allocation is further allocated among the
six non-profit corporations (CDQ groups) that represent the 65
communities eligible for the CDQ Program under section 305(i)(1)(D) of
the Magnuson-Stevens Act. The CDQ Program also is described in more
detail in the ``Classification'' section of this final rule. CDQ groups
typically sell or lease their pollock allocations to harvesting
partners, including vessels owned, in part, by individual CDQ groups.
Although CDQ groups are not required to partner with AFA-permitted
vessels to harvest CDQ pollock, the vessels harvesting CDQ pollock have
been AFA permitted-vessels. The CDQ pollock allocations have most often
been harvested by catcher/processors or catcher vessels delivering to a
mothership. However, some pollock CDQ has been delivered to inshore
processing plants in past years.
The AFA allows for the formation of fishery cooperatives within the
non-CDQ sectors. The purpose of these AFA cooperatives is to further
subdivide each sector's pollock allocation among participants in the
sector or cooperative through private contractual agreements. The
cooperatives manage these allocations to ensure that individual vessels
and companies do not harvest more than their agreed upon share. The
cooperatives also facilitate transfers of
[[Page 53027]]
pollock among the cooperative members and enforce contract provisions.
Each year, catcher vessels eligible to deliver pollock to the seven
eligible AFA inshore processors may form inshore cooperatives
associated with a particular inshore processor. NMFS permits the
inshore cooperatives, allocates pollock to them, and manages these
allocations through a regulatory prohibition against an inshore
cooperative exceeding its pollock allocation. The amount of pollock
allocated to each inshore cooperative is based on the member vessels'
pollock catch history from 1995 through 1997, as required under section
210(b) of the AFA (16 U.S.C. 1851 note). These catcher vessels are not
required to join an inshore cooperative. Those that do not join an
inshore cooperative are managed by NMFS under the ``inshore open access
fishery.''
The AFA catcher/processor sector is made up of the catcher/
processors and catcher vessels eligible under the AFA to deliver
pollock to catcher/processors. Owners of the catcher/processors that
are listed by name in the AFA and still active in the pollock fishery
have formed a cooperative called the Pollock Conservation Cooperative
(PCC). Owners of the catcher vessels eligible to deliver pollock to the
catcher/processors have formed a cooperative called the High Seas
Catchers' Cooperative (HSCC).
The AFA mothership sector is made up of three motherships and the
catcher vessels eligible under the AFA to deliver pollock to these
motherships. These catcher vessels have formed a cooperative called the
Mothership Fleet Cooperative (MFC). The MFC does not include the owners
of the three motherships. The primary purpose of the cooperative is to
sub-allocate the mothership sector pollock allocation among the catcher
vessels authorized to harvest this pollock and to manage these
allocations.
NMFS does not manage the sub-allocations of pollock among members
of the PCC, HSCC, or MFC. The cooperatives control the harvest by their
member vessels so that the pollock allocation to the sector is not
exceeded. NMFS monitors pollock harvest by all members of the catcher/
processor sector and mothership sector. NMFS retains the authority to
close directed fishing for pollock by a sector if vessels in that
sector continue to fish once the sector's seasonal allocation of
pollock has been harvested.
Chinook Salmon Bycatch in the Bering Sea Pollock Fishery
Chinook salmon are accidently caught in the nets as fishermen
target pollock. The Magnuson-Stevens Act defines bycatch as fish that
are harvested in a fishery that are not sold or kept for personal use.
Therefore, Chinook salmon caught in the pollock fishery are considered
bycatch under the Magnuson-Stevens Act, the FMP, and NMFS regulations
at 50 CFR part 679. Bycatch of any species, including discard or other
mortality caused by fishing, is a concern of the Council and NMFS.
National Standard 9 of the Magnuson-Stevens Act requires the Council to
select, and NMFS to implement, conservation and management measures
that, to the extent practicable, minimize bycatch and bycatch
mortality.
Culturally and economically valuable species like Chinook salmon,
which are fully allocated and, in some cases, facing conservation
concerns, are classified as prohibited species in the groundfish
fisheries off Alaska under the FMP. The prohibited species are Chinook
salmon, all other species of salmon (a category called ``non-Chinook
salmon''), steelhead trout, Pacific halibut, king crab, Tanner crab,
and Pacific herring. Bycatch of prohibited species is highly regulated
and closely managed. The FMP requires that groundfish fishermen avoid
bycatch of prohibited species. Additionally, any salmon bycatch must
either be donated to the Prohibited Species Donation (PSD) Program
under Sec. 679.26, or returned to sea as soon as practicable, with
minimum injury, after an observer has determined the number of salmon
and collected any scientific data or biological samples.
The Bering Sea pollock fishery catches up to 95 percent of the
Chinook salmon taken incidentally as bycatch in the BSAI groundfish
fisheries. From 1992 through 2001, the average Chinook salmon bycatch
in the Bering Sea pollock fishery was 32,482 fish. Bycatch increased
substantially from 2002 through 2007, to an average of 74,067 Chinook
salmon per year. A historic high of approximately 122,000 Chinook
salmon were taken in the Bering Sea pollock fishery in 2007. However,
Chinook salmon bycatch has declined in recent years to 20,559 in 2008
and 12,414 in 2009. For the 2010 pollock A season, and the pollock B
season that opened on June 10, bycatch rates are comparable to the low
bycatch rates in 2009. The causes of the decline in Chinook salmon
bycatch in 2008, 2009, and 2010 are unknown. The decline is most likely
due to a combination of factors, including changes in abundance and
distribution of Chinook salmon and pollock, and changes in fleet
behavior to avoid salmon bycatch.
Chinook salmon bycatch also varies seasonally and by sector. In
most years, the majority of Chinook salmon bycatch occurs during the A
season. Since 2002, catcher vessels in the inshore sector typically
have caught the highest number of Chinook salmon and had the highest
bycatch rates by sector in both the A and B seasons. As discussed in
the EIS (see ADDRESSES), the variation in bycatch rates among sectors
and seasons is due, in part, to the different fishing practices and
patterns each sector uses to fully harvest their pollock allocations.
In years of historically high Chinook salmon bycatch in the Bering
Sea pollock fishery (2003 through 2007), the rate of Chinook salmon
bycatch averaged 52 Chinook salmon per 1,000 tons of pollock harvested.
With so few salmon relative to the large amount of pollock harvested,
Chinook salmon encounters are difficult to predict or avoid. Industry
agreements that require vessel-level cooperation to share information
about areas of high Chinook salmon encounter rates probably are the
best tool that the industry currently has to quickly identify areas of
high bycatch and to avoid fishing there. However, predicting these
encounter rates will continue to be difficult, primarily because of the
current lack of understanding of the biological and oceanographic
conditions that influence the distribution and abundance of salmon in
the areas where the pollock fishery occurs.
Chinook Salmon Stocks and Fisheries in Western Alaska
Chinook salmon taken in the pollock fishery originate from Alaska,
the Pacific Northwest, Canada, and Asian countries along the Pacific
Rim. Estimates vary, but more than half of the Chinook salmon bycatch
in the pollock fishery may be destined for western Alaska. Western
Alaska includes the Bristol Bay, Kuskokwim, Yukon, and Norton Sound
areas. In general, western Alaska Chinook salmon stocks declined
sharply in 2007 and remained depressed in 2008 and 2009. Chapter 5 of
the EIS provides additional information about Chinook salmon biology,
distribution, and stock assessments by river system or region (see
ADDRESSES). NMFS is expanding biological sampling to improve data on
the origins of salmon caught as bycatch in the pollock fishery.
Chinook salmon support subsistence, commercial, personal use, and
sport fisheries in their regions of origin. The
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State of Alaska Board of Fisheries adopts regulations through a public
process to conserve fisheries resources and allocate them to the
various users. The State of Alaska Department of Fish and Game (ADF&G)
manages the salmon commercial, subsistence, sport, and personal use
fisheries. The first management priority is to meet spawning escapement
goals to sustain salmon resources for future generations. The next
priority is for subsistence use under both State and Federal law.
Chinook salmon serves as a primary subsistence food in some areas.
Subsistence fisheries management includes coordination with U.S.
Federal agencies where Federal rules apply under the Alaska National
Interest Lands Conservation Act, 16 U.S.C. 3101-3233.
In recent years of low Chinook salmon returns, the in-river harvest
of western Alaska Chinook salmon has been severely restricted and, in
some cases, river systems have not met escapement goals. Surplus fish
beyond escapement needs and subsistence use are made available for
other uses. Commercial fishing for Chinook salmon may provide the only
source of income for many people who live in remote villages. Chapter 3
of the RIR provides an overview of the importance of subsistence
harvests and commercial harvests (see ADDRESSES).
Current Management of Chinook Salmon Bycatch in the Bering Sea and
Aleutian Islands
Over the past 15 years, the Council and NMFS have implemented
several management measures to limit Chinook salmon bycatch in the BSAI
trawl fisheries. In 1995, NMFS implemented an annual PSC limit of
48,000 Chinook salmon and specific seasonal no-trawling zones in the
Chinook Salmon Savings Area that would close when the limits were
reached (60 FR 31215; November 29, 1995). In 2000, NMFS reduced the
Chinook Salmon Savings Area closure limit to 29,000 Chinook salmon,
redefined the Chinook Salmon Savings Area as two non-contiguous areas
of the BSAI (Area 1 in the AI subarea and Area 2 in the BS subarea),
and established new closure periods (65 FR 60587; October 12, 2000).
Chinook salmon bycatch management measures were most recently
revised under Amendments 84 to the FMP. The Council adopted Amendment
84 in October 2005 to address increases in Chinook and non-Chinook
salmon bycatch that were occurring despite PSC limits that triggered
closure of the Chinook and Chum Salmon Savings Areas.
Amendment 84 established in Federal regulations the salmon bycatch
intercooperative agreement (ICA), which allows vessels participating in
the Bering Sea pollock fishery to use their internal cooperative
structure to reduce Chinook and non-Chinook salmon bycatch using a
method called the voluntary rolling hotspot system (VRHS). Through the
VRHS, industry members provide each other real-time salmon bycatch
information so that they can avoid areas of high Chinook or non-Chinook
salmon bycatch rates. The VRHS was implemented voluntarily by the fleet
in 2002. Amendment 84 exempts vessels participating in the salmon
bycatch reduction ICA from salmon savings area closures, and revised
the Chum Salmon Savings Area closure to apply only to vessels directed
fishing for pollock, rather than to all vessels using trawl gear. The
exemptions to savings area closures for participants in the VRHS ICA
were implemented by NMFS in 2006 and 2007 through an exempted fishing
permit. Regulations implementing Amendment 84 were approved in 2007 (72
FR 61070; October 29, 2007), and NMFS approved the salmon bycatch
reduction VRHS ICA in January 2008. Amendment 84 requires that parties
to the ICA be AFA cooperatives and CDQ groups. All AFA cooperatives and
CDQ groups participate in the VRHS ICA.
Using a system specified in regulations, the VRHS ICA assigns
vessels in a cooperative to certain tiers, based on bycatch rates of
vessels in that cooperative relative to a base rate, and implements
large area closures for vessels in tiers associated with higher bycatch
rates. The VRHS ICA managers monitor salmon bycatch in the pollock
fisheries and announce area closures for areas with relatively high
salmon bycatch rates. Monitoring and enforcement are accomplished
through private contractual arrangements. The efficacy of voluntary
closures and bycatch reduction measures must be reported to the Council
annually.
While the annual reports suggest that the VRHS ICA has reduced
Chinook salmon bycatch rates compared to what they would have been
without the ICA, the highest historical Chinook salmon bycatch occurred
in 2007, when the ICA was in effect under an exempted fishing permit.
This high level of bycatch illustrated that, while the management
measures implemented under Amendment 84 provided the pollock fleet with
tools to reduce salmon bycatch, these measures contain no effective
upper limit on the amount of salmon bycatch that could occur in the
Bering Sea pollock fishery.
Bering Sea Chinook Salmon Bycatch Management
This final rule implements the provisions of Amendment 91, as
approved by NMFS. The preamble to the proposed rule (75 FR 14016; March
23, 2010) provides a full description of the provisions implemented
with this final rule and the justification for them. In summary, this
final rule establishes two Chinook salmon PSC limits (60,000 Chinook
salmon and 47,591 Chinook salmon) for the Bering Sea pollock fishery.
For each PSC limit, NMFS will issue A season and B season Chinook
salmon PSC allocations to the catcher/processor sector, the mothership
sector, the inshore cooperatives, and the CDQ groups. Chinook salmon
allocations remaining from the A season can be used in the B season
(``rollover''). Entities can transfer PSC allocations within a season
and can also receive transfers of Chinook salmon PSC to cover overages
(``post-delivery transfers'').
NMFS will issue transferable allocations of the 60,000 Chinook
salmon PSC limit to those sectors that participate in an incentive plan
agreement (IPA) and remain in compliance with the performance standard.
Sector and cooperative allocations would be reduced if members of the
sector or cooperative decided not to participate in an IPA. Vessels and
CDQ groups that do not participate in an IPA would fish under a
restricted opt-out allocation of Chinook salmon. If a whole sector does
not participate in an IPA, all members of that sector would fish under
the opt-out allocation.
The IPA component is an innovative approach for fishery
participants to design industry agreements with incentives for each
vessel to avoid Chinook salmon bycatch at all times and thus reduce
bycatch below the PSC limits. This final rule establishes performance-
based requirements for the IPAs. To ensure participants develop
effective IPAs, this final rule requires that participants submit
annual reports to the Council that evaluate whether the IPA is
effective at providing incentives for vessels to avoid Chinook salmon
at all times while fishing for pollock.
The sector-level performance standard ensures that the IPA is
effective and that sectors cannot fully harvest the Chinook salmon PSC
allocations under the 60,000 Chinook salmon PSC limit in most years.
Each year, each sector will be issued an annual threshold amount that
represents that sector's portion of 47,591 Chinook salmon. For a sector
to continue to receive Chinook salmon
[[Page 53029]]
PSC allocations under the 60,000 Chinook salmon PSC limit, that sector
must not exceed its annual threshold amount 3 times within 7
consecutive years. If a sector fails this performance standard, it will
permanently be allocated a portion of the 47,591 Chinook salmon PSC
limit.
NMFS will issue transferable allocations of the 47,591 Chinook
salmon PSC limit to all sectors, cooperatives, and CDQ groups if no IPA
is approved, or to the sectors that exceed the performance standard.
Transferability of PSC allocations is expected to mitigate the
variation in the encounter rates of Chinook salmon bycatch among
sectors, CDQ groups, and cooperatives in a given season by allowing
eligible participants to obtain a larger portion of the PSC limit in
order to harvest their pollock allocation or to transfer surplus
allocation to other entities. When a PSC allocation is reached, the
affected sector, inshore cooperative, or CDQ group would have to stop
fishing for pollock for the remainder of the season even if its pollock
allocation had not been fully harvested.
This final rule also removes from regulations the 29,000 Chinook
salmon PSC limit in the Bering Sea, the Chinook Salmon Savings Areas in
the Bering Sea, exemption from Chinook Salmon Savings Area closures for
participants in the VRHS ICA, and Chinook salmon as a component of the
VRHS ICA. This final rule does not change any regulations affecting the
management of Chinook salmon in the Aleutian Islands or non-Chinook
salmon in the BSAI. The Council is currently considering a separate
action to modify the non-Chinook salmon management measures to minimize
non-Chinook salmon bycatch.
Summary of Regulation Changes in Response to Public Comments
This section provides a summary of the substantive changes made to
the final rule in response to public comments. Section 304(b)(3) of the
Magnuson-Stevens Act requires NMFS to consult with the Council before
making any revisions to proposed regulations and to publish in the
Federal Register an explanation of any differences between proposed and
final regulations. At its June 2010 meeting, NMFS consulted with the
Council on the revisions to the proposed rule to improve the
implementing regulations and respond to public comments. All of the
specific regulation changes, and the reasons for making these changes,
are contained under Response to Comments, below.
Recordkeeping and Reporting
NMFS changed the time limit in the final rule for operators of
catcher/processors, catcher vessels delivering to motherships, and
motherships to record the CDQ group number in the paper or electronic
logbooks to within 2 hours after completion of weighing on the scale
all catch in the haul. NMFS is preparing a separate proposed rule to
revise and standardize reporting time limits to address the time limit
for recording scale weights of each haul and other required information
because these requirements affect more vessels than those regulated
under Amendment 91. These additional revisions are expected to be
effective by January, 2011.
Bering Sea Pollock Offload Monitoring
NMFS modified the final rule to (1) allow a catcher vessel to begin
a new trip before the salmon census and sampling are complete from the
vessel's prior trip and (2) clarify that a shoreside or stationary
processor must give the observer the opportunity to complete the count
of salmon and collect biological samples before sorting a new pollock
offload. In 2011, NMFS' observer sampling policy and observer duties
for the Bering Sea pollock fishery will be modified for monitoring
offloads at shoreside processors and stationary floating processors.
The plant observer on duty will be tasked with monitoring each offload
for proper salmon sorting, verifying the count of salmon, and
collecting biological samples and scientific data.
Catch Monitoring and Control Plan (CMCP) Requirements
NMFS has modified the final rule to clarify that the observation
area and the observer work station may be located in separate areas,
while also requiring the observer work station be adjacent to the
location where the observer counts all salmon and collects scientific
data or biological information. NMFS also modified the final rule to
require that all salmon be stored in a ``salmon storage container.''
The observation area must now provide a clear, unobstructed view of the
salmon storage container to ensure no salmon of any species are removed
without the observer's knowledge. NMFS made these changes to the final
rule to give processors more flexibility to achieve the goals of
allowing an observer to monitor all the sorting of salmon as well as
verify the count of the salmon.
Adjustments to the Performance Standard's Annual Threshold Amount
NMFS changed the final rule to subtract a vessel's opt-out
allocation from a sector's annual threshold amount in a method similar
to the Council's recommended method for determining the sector
allocation under the 60,000 Chinook salmon PSC limit.
Entities for the Catcher/Processor and Mothership Sectors
To improve the implementation of sector entities, NMFS modified the
final rule to clarify that: (1) NMFS will authorize only one entity to
represent the catcher/processor sector and only one entity to represent
mothership sector; (2) under the 60,000 Chinook salmon PSC limit, the
entity for each sector has to represent all IPA participating vessel
owners in that sector; and (3) vessel owners in the catcher/processor
sector and mothership sector must be a member of the sector entity to
join an IPA. NMFS changed the deadline for the entity application from
November 1 to October 1, to coincide with the deadline for the IPA
application, and added a December 1 deadline for the entity
representative to make changes to the vessels that are members of the
entity. NMFS also changed the regulations to clarify that an entity
representative may sign more than one IPA on behalf of the vessel
owners participating in that IPA.
Joint and Several Liability
NMFS removed joint and several liability provisions for
cooperatives and the entities representing the catcher/processor sector
and mothership sector. In the proposed rule, these provisions created
some confusion and they are unnecessary because NOAA has independent
authority to exercise its discretion to seek to impose joint liability
if the evidence supports doing so.
Post-Delivery Transfers
NMFS changed the final rule to clarify that a vessel is prohibited
from fishing for an entity that has exceeded its Chinook salmon PSC
allocation.
Incentive Plan Agreements
NMFS changed the final rule to: (1) Modify the minimum
participation requirement for an IPA to clarify that parties to an IPA
must collectively represent at least 9 percent of the Bering Sea
pollock quota; (2) modify the IPA requirement to better reflect the
Council motion that says that an IPA must describe incentives for each
vessel to avoid Chinook salmon bycatch under any condition of pollock
and Chinook
[[Page 53030]]
salmon abundance in all years; (3) change the deadline for amendments
to the IPA list of participants from November 1 to December 1 to
provide vessel owners more time to join an IPA; and (4) clarify the
regulatory language for an amendment to an IPA.
To clarify a CDQ group's participation in one or more approved
IPAs, NMFS added a requirement in the final rule that, for a CDQ group
to be a member of an IPA, the CDQ group must list each vessel
harvesting pollock CDQ on behalf of that CDQ group in the IPA.
Electronic Monitoring
NMFS removed the proposed rule's requirement that the video monitor
display the ``activities within the tank,'' and clarified in the final
rule that the purpose of the video monitor is to enable the observer to
view any area where crew could sort salmon and view the salmon
contained in the storage container. Also, for clarity and consistency,
NMFS revised the final rule to allow NMFS staff or other authorized
personnel, including observers, the ability to view any video footage
from earlier in the trip.
Tables 47a, 47b, 47c, and 47d to Part 679
In the final rule, NMFS changed column G in Tables 47a, 47b, and
47c and column E in Table 47d to show each vessel's annual amount of
Chinook salmon for the opt-out allocation that will be deducted from
the sector's annual threshold amount for the performance standard if a
vessel opts-out of an IPA. NMFS also modified the percent of the
inshore sector's pollock allocation in column D of Table 47c to include
four decimal places.
Additional Changes From the Proposed Rule
NMFS made the following changes from the proposed rule to the final
rule to clarify regulatory language or correct mistakes in the proposed
rule.
AFA Preliminary Report
In the final rule, NMFS corrects the proposed language at Sec.
679.61(f)(1) to retain the requirement for a preliminary AFA
cooperative report. The proposed rule anticipated the publication of
another rule that would have provided notice and an opportunity for
public comment to remove this AFA reporting requirement. Until such a
process is completed, NMFS cannot remove the regulations requiring a
preliminary report at Sec. 679.61(f)(1). Retaining the preliminary
report does not change the information collection burden on AFA
cooperatives; however, the final rule still changes the submission
deadline for the final annual AFA cooperative reports from February 1
to April 1 to coincide with the deadlines for a new Chinook salmon IPA
annual report and the non-Chinook salmon ICA annual report. Having the
same deadline for all three of these reports allows the Council to
discuss any of these annual reports at one time during its April
Council meeting. At its June 2010 meeting, the Council recommended that
NMFS pursue a proposed rule to remove the regulations requiring a
preliminary AFA report.
AI Chinook Salmon Allocation for the CDQ Program
NMFS corrected the proposed rule to retain allocations of the trawl
gear PSC limits to the CDQ Program as a prohibited species quota (PSQ)
reserve. The proposed rule, at Sec. 679.21(e)(3)(i)(A)(3)(i),
inadvertently eliminated the 7.5 percent apportionment of the PSC limit
for AI Chinook salmon set forth in paragraph (e)(1)(viii). This
correction is necessary to ensure that CDQ participants will be subject
to the AI salmon area closure based on the PSC limit established for
the CDQ sector by Amendment 82 to the BSAI FMP (70 FR 9856, March 1,
2005).
Response to Comments
Observer Issues
Comment 1: This action proposes two positive management actions:
increasing observer coverage to 100 percent and implementing the census
approach to catch accounting.
Response: NMFS agrees with this comment. This final rule will
improve the collection of Chinook salmon information by increasing
observer coverage to 100 percent for all vessels and shoreside
processing facilities, and by requiring a census of Chinook salmon in
every haul or fishing trip.
Comment 2: The majority of Alaskans depend on fish to feed
themselves. Yet salmon bycatch in the pollock fishery is uncertain and
unregulated. Solving this mystery starts with observing the pollock
fishery and international fishing boats.
Response: Amendment 91 regulates Chinook salmon bycatch in the
Bering Sea pollock fishery and will minimize Chinook salmon bycatch to
the extent practicable. Additionally, with the regulations implementing
Amendment 91, NMFS will increase observer coverage for all vessels and
shoreside processing facilities, and require a census of Chinook salmon
in every haul or fishing trip. This will greatly improve our
information on Chinook salmon bycatch in the pollock fishery.
International fishing boats are prevented from fishing in the U.S.
exclusive economic zone, and observing vessels fishing in international
waters is outside the scope of this action.
Comment 3: Under Amendment 91, observers on catcher vessels would
be performing a monitoring and compliance role. While we agree that it
is not necessary to require an observer with a level-two endorsement
for catcher vessels delivering to inshore plants, we do not recommend
specifying observer training level in the regulations. Doing so could
restrict future flexibility if the observer's role should change to
accommodate other needs.
Response: NMFS agrees and does not specify the observer training
levels for observers on catcher vessels in this final rule. Species
identification and sampling methodologies for the shoreside observers
are covered during the three week training course that all certified
observers receive. Observers with a level-two endorsement, as defined
at Sec. 679.50(j)(1)(v)(D), are trained in at-sea sample station
requirements, at-sea motion compensated scale testing, and observer
duties under the CDQ Program. Training for level-two observers does not
include new duties for shoreside vessel and plant observers under
Amendment 91.
Comment 4: The inshore sector represents approximately 76 percent
of the pollock catcher vessels, assuming that each mothership services
eight harvesting vessels. The vast majority of catcher vessels have had
extremely lax observer coverage for several years. Over a dozen crew
members of the inshore fleet have commented that over the last decade
the salmon bycatch is under-reported by an average of 40 percent (range
of under-reporting was stated as between 20 and 70 percent).
Response: Under this final rule, every catcher vessel in the
inshore sector will have an observer onboard at all times. This is an
increase in observer coverage for catcher vessels less than 125 feet
length overall (LOA). Additionally, every salmon caught by each vessel
in the Bering Sea pollock fishery will be counted.
Comment 5: The monitoring and enforcement measures in the proposed
rule ensure that the appropriate conservation and management measures
are adequately applied to Chinook salmon bycatch.
Response: NMFS agrees. This final rule will improve the collection
of Chinook salmon information by increasing observer coverage for
vessels
[[Page 53031]]
and shoreside processing facilities, by requiring a census of Chinook
salmon in every haul or fishing trip, by requiring video monitoring to
assist observers aboard catcher/processors and motherships, and by
implementing electronic reporting by haul or delivery.
Comment 6: A third plant observer should not be considered as part
of Amendment 91 and is not necessary because the two full-time
observers currently available at each inshore plant plus the vessel
observer provide more than adequate coverage.
Response: NMFS agrees and neither the proposed rule nor the final
rule require a third plant observer. Under the final rule, one plant
observer is on duty for each delivery with the assistance of the vessel
observer. Together, two observers can meet the assigned duties of
monitoring proper sorting of salmon, verifying salmon counts, and
collecting scientific data and biological samples. Shoreside processors
may voluntarily obtain a third plant observer. However, the duties of a
third observer would be no different than those currently required of
plant observers.
Comment 7: The proposed rule inaccurately assumes that observers
can add salmon census duties to their other responsibilities and still
accomplish their other work. Currently, observers are assigned a
variety of data collection projects that support scientists and
managers. To accomplish the goals of the proposed census system, an
additional person dedicated to the oversight of salmon sorting may be
necessary. Otherwise, the observer is dedicated to Amendment 91
responsibilities, and other data collection would have to be greatly
reduced or eliminated altogether.
Response: NMFS recognizes that observer duties may need to change
to allow observers to complete salmon monitoring as outlined in this
final rule. The Fisheries Monitoring and Analysis (FMA) Division of the
Alaska Fisheries Science Center makes policy decisions about the tasks
an observer performs, informed by regulation and management necessity.
As is customary for each new regulation and calendar year, the FMA
Division may require duties performed in 2010 be added or removed for
2011. Under the FMA Division observer sampling policy for 2011,
observer duties will be adjusted to allow for the monitoring of pollock
offloads at shoreside processors and stationary floating processors.
The FMA Division determines the specific observer duties necessary to
ensure the proper data is collected while recognizing the limitations
on the observer's time and energy.
Observers aboard catcher/processors and motherships will still
complete their normal sampling duties. Observers have routinely
reported the number of salmon collected during a haul. The
responsibility for ensuring that all salmon are removed from the catch
and counted will fall upon the vessel with the observer providing third
party verification. The use of electronic monitoring systems will
supplement the observer's ability to monitor proper sorting and ensure
that no salmon are removed from the storage container until an observer
has had the opportunity to verify the count and collect scientific data
and biological samples on a haul by haul basis.
Comment 8: The proposed rule is written such that the burden of
ensuring that all salmon are collected, enumerated, and identified to
species appears to fall on the observer. A census can be accomplished,
but it requires shifting the responsibility for sorting and identifying
salmon bycatch from the observer to the vessel and processing plant
crews. The regulations should require the vessel or processing plant
crew to sort all salmon and separate salmon by species. Observers
should only be responsible for independently tallying the salmon and
verifying species, gathering biological samples, and transmitting data
as directed by NMFS. Furthermore, placing such onus on the vessel or
processing plant crew would allow for fewer disruptions to fishing
operations.
This system already exists under Sec. 679.21(c), prohibited
species bycatch management, and through the observers sampling
protocols established by the FMA Division. The regulations at Sec.
679.21(c) direct vessels to sort all salmon bycatch into bins and
separate by haul until the number of salmon can be determined by the
observer. Observers estimate these salmon counts are approximately 95
percent accurate.
Response: NMFS disagrees that the regulations place the burden on
the observer to ensure that all salmon are collected, enumerated, and
identified to species. The observer provides third party verification
and reports salmon bycatch. The FMA Division has historically tasked
observers to collect information that sometimes parallels industry
reporting requirements; this role remains the same under this final
rule.
For the inshore sector, the final rule, at Sec. 679.21(c)(2)(i)
and (iii), is clear that the responsibility for ensuring all salmon are
sorted, stored, and accounted properly falls upon the vessel operator
or shoreside processor. Additionally, Sec. 679.5(e)(5)(i)(C)(3)
requires shoreside processors and stationary floating processors to
report salmon numbers by species for each landing. The final rule, at
Sec. 679.5(f)(1)(vii), requires all catcher/processors and motherships
to report the salmon numbers by species for each haul.
Comment 9: NMFS should consider the 100 percent observer
requirement on the previously unobserved segment of the pollock fleet
as an opportunity to research claims by other unobserved sectors with
similarly configured vessels regarding cost, practicality, and
convenience.
Response: The AFA catcher vessels that will be subject to increased
observer coverage under this final rule are not members of a previously
unobserved segment of the pollock fleet. All of the vessels that will
be subject to 100 percent observer coverage currently are subject to 30
percent observer coverage, so they already carry observers during part
of the year. Therefore, NMFS already has information about the costs,
practicality, and convenience of carrying observers on these vessels.
NMFS needs information about cost and practicality of carrying
observers on vessels less than 60 feet LOA that are not required to
carry any observers under current regulations. However, there are no
active fishing vessels of this size class in the Bering Sea pollock
fishery.
Comment 10: The proposed rule would stop all sorting and processing
when the observer cannot be present. This inaccurately assumes that the
observer is present during all sorting periods. Observers on at-sea
processors must complete a myriad of activities that may require them
to move to other parts of the vessel. Similarly, on some catcher
vessels hauls are sorted on a level below the trawl deck; therefore,
crew can be on deck dumping the bag, while the observer is below
sorting the catch. Observers are also required to take breaks.
Response: NMFS disagrees that the regulations would stop all
sorting and processing when the observer cannot be present, and has
made no changes to the final rule in response to this comment. Although
the observer must verify that a census of all salmon is conducted,
observers aboard catcher/processors and motherships are not required to
conduct the census. Under the final rule, at Sec. 679.21(c)(2)(i), the
vessel operator is responsible for ensuring that all salmon are sorted,
stored, and counted by species. Therefore, the regulations do not
require that sorting and processing must halt if an observer is not
present or is completing other duties. Instead,
[[Page 53032]]
the final rule, at Sec. 679.28(j), requires an electronic monitoring
system to enable observers to review sorting they may have not been
able to witness. Sorting is required to stop only if the salmon storage
container is full; see Sec. 679.21(c)(2)(i)(B). This will allow the
observer to clearly delineate salmon that have been sampled from those
that have not been sampled and counted.
For catcher vessels, no salmon may be removed or discarded at sea
and all salmon must be delivered to a shoreside processor; see Sec.
679.7(d)(7)(E) and Sec. 679.21(c)(2)(ii)(B). Additionally, catcher
vessels that have the ability to sort below deck do not have many
opportunities to sort out salmon while the codend is being dumped. NMFS
acknowledges that there may be a small opportunity to remove salmon
while the codend is being dumped; however, these vessels would be in
violation of the requirement to retain all salmon.
Comment 11: The final rule should require vessels to assign and
maintain a salmon sorter at the sorting belt throughout the processing
of a haul. Such a salmon sorter should also be required to identify and
sort salmon by species into designated bins that can be easily
monitored by the observer.
Response: The final rule, at Sec. 679.21(c)(3), requires the
operators of vessels and the managers of shoreside or stationary
floating processors to designate, and identify to the observer, a crew
person or employee responsible for ensuring all sorting, retention, and
storage of salmon occurs in accordance with the regulations at Sec.
679.21(c)(2). However, the regulations do not require vessel operators
and shoreside or stationary floating processor managers to sort salmon
by species. Due to the variety of vessel and shoreside configurations,
adding the necessary space required for sorting salmon by species may
be impractical for some operations. Vessel operators or processors may
choose to separate salmon by species in order to expedite the
verification of the salmon count and the collection of biological
samples or scientific data.
Comment 12: Vessel operators participating in an IPA are
responsible to track their own salmon counts throughout each season.
Therefore, it is unnecessary to structure regulations regarding the
observation and count of salmon that are directly tied to the vessel
observer.
Response: NMFS agrees that vessel operators, cooperative managers,
and managers of shoreside processing facilities are responsible for
ensuring proper sorting, counting, and identification of salmon.
However, NMFS disagrees that it is unnecessary to structure regulations
regarding the observation and count of salmon that are directly tied to
the vessel observer. Observations reported by the NMFS observers will
serve as independent third party information to verify whether the
counts and identification of salmon reported by industry are correct
and accurate. Regulations are necessary to ensure the observer has
unobstructed access to these fish in such a way that the data can be
reliably collected and reported.
Comment 13: The proposed rule, at Sec. 679.7(k)(8)(iii), prohibits
the operator of a catcher vessel from starting a new fishing trip for
pollock in the Bering Sea if the observer assigned to the catcher
vessel for the next fishing trip has not completed counting the salmon
and collecting scientific data or biological samples from the previous
delivery by that vessel. Similarly, Sec. 679.21(c)(2)(ii)(C) requires
that before the vessel can begin a new fishing trip, the observer
assigned to that vessel for the next fishing trip must be given the
opportunity to complete the count of salmon and collect scientific data
or biological samples from the previous delivery. These provisions
contradict language in the preamble (pages 14029 and 14030) that a
vessel may begin a new trip before the salmon census and sampling are
complete for the vessel's prior trip so long as the vessel leaves with
a different observer than it carried on the prior trip.
These provisions are overly prescriptive, would increase costs to
participants while reducing flexibility, and would require contractors
to maintain a large pool of observers onshore to ensure that catcher
vessels could start a new fishing trip prior to the observer completing
their duties. And, it should not be the responsibility of the observer
assigned to the catcher vessel for the next trip to collect the data
from the previous trip. These responsibilities should be shared by the
vessel and plant observers. The final rule should require only that no
catcher vessel may start a new fishing trip unless it has an observer
onboard. Which observer the vessel carries and whether a vessel or
plant observer completes the salmon census and all sampling for a prior
delivery should not matter. In light of additional observer coverage
and changing duties involved in Chinook salmon bycatch accounting, a
more flexible approach to duty assignment is necessary.
Response: NMFS agrees and for the reasons set forth by the
commenter, it has modified the final rule to (1) allow a catcher vessel
to begin a new trip before the salmon census and sampling are complete
from the vessel's prior trip, and (2) clarify that a shoreside or
stationary processor must give the observer the opportunity to complete
the count of salmon and collect biological samples before sorting a new
pollock offload.
NMFS removed the restriction on a vessel's ability to begin a new
trip, at Sec. 679.21(c)(2)(ii)(C) of the proposed rule. Instead, NMFS
revised the prohibition at Sec. 679.7(d)(8)(ii)(C)(6) to clarify that
a shoreside or stationary floating processor cannot begin sorting a
pollock CDQ offload before the observer has completed the count of
salmon and the collection of scientific data or biological samples.
Similarly, NMFS revised Sec. 679.7(k)(8)(iii) to prohibit shoreside
processors and stationary floating processors from sorting the next
pollock offload until the observer has completed duties related to a
previous pollock offload. Moreover, NMFS added Sec.
679.21(c)(2)(iii)(F) to the final rule to prevent a shoreside or
stationary floating processor from beginning the next pollock offload
until the observer has notified the plant operator that opportunity has
been provided to complete the count of salmon and collect scientific
data or biological samples.
Comment 14: The proposed rule, at Sec. 679.21(c)(2)(iii)(D),
requires that the vessel offload and sorting must cease in the event
salmon are too numerous to be contained in the observation area and the
observer must be given the opportunity to count the salmon in the
observation area and collect scientific data or biological samples. In
addition, the proposed rule, at Sec. 679.28(g)(7)(vii)(F), requires
that the observation area must contain an area designated to store
salmon. However, there may not be enough room to contain all salmon
within sight of the observer at all times. The final rule should allow
the salmon to be removed, in the presence of the observer, once salmon
have been counted and sampled. Moreover, vessels should be allowed to
resume offloading and sorting as soon as space becomes available in the
observation area.
Response: NMFS agrees and has revised the final rule to clarify
that, at any point during the offload, if salmon are too numerous to be
contained in the salmon storage container, the sorting of the offload
must cease and the observer must be allowed to count all the salmon and
collect scientific data and biological samples adjacent to the observer
work station. Once these duties have been completed, the salmon may be
removed
[[Page 53033]]
in the presence of the observer and the sorting of the offload may
continue.
NMFS made the following changes in the final rule to give
processors more flexibility to achieve the goals of allowing an
observer to monitor all the sorting of salmon and verify the count of
salmon. These changes are necessary because processing facilities vary
greatly in the methods used to sort and weigh fish.
In response to comments that the observation area may not provide
enough space to hold the salmon storage area, NMFS revised the final
rule at Sec. 679.21(c)(2)(iii)(C), (D), and (E) by removing the
requirement to store and count salmon in the observation area. Instead,
the final rule requires salmon to be stored in a ``salmon storage
container.'' No additional revisions are needed because the final rule,
at Sec. 679.21(c)(2)(iii)(D), allows shoreside processors or
stationary processors to remove the salmon from the storage container
if the salmon become too numerous to contain in this location.
NMFS added a requirement, at Sec. 679.28(g)(7)(vi)(C), that the
observation area must provide a clear, unobstructed view of the salmon
storage container to ensure no salmon of any species are removed
without the observer's knowledge.
NMFS revised paragraph Sec. 679.28(g)(7)(vii) to allow for the
observation area and the observer work station to be in separate
locations, while also requiring the observer work station be adjacent
to the location where the observer counts all salmon and collects
scientific data or biological information.
Last, NMFS revised the regulations at Sec. 679.28(g)(7)(x)(F) to
clarify that the CMCP requirement to include the location of the salmon
storage container is only for shoreside or stationary floating
processors taking pollock deliveries.
Comment 15: Revise sections Sec. 679.21(c)(2)(iii)(D) and (E) to
refer to ``an observer'' rather than ``the observer.'' Using ``the
observer'' implies that the required functions would always be done by
the catcher vessel observer, which is illogical because an offload
could take up to 24 hours. Using ``an observer'' would add flexibility
for program participants and more accurately reflect the current shared
responsibilities of vessel and plant observers when a catcher vessel
delivers to a shoreside or stationary floating processor.
Response: NMFS disagrees and has made no changes to the final rule
in response to this comment. The final rule, at Sec.
679.21(c)(2)(iii)(D) and (E), uses the phrase ``the observer'' to refer
to either the plant or the vessel observer, and does not designate
which observer will be tasked with monitoring the offload. No changes
are required to the regulations because either observer may perform
these duties.
The FMA Division makes policy decisions about the tasks an observer
performs. In the past, vessel observers monitored offloads of shoreside
pollock deliveries. Beginning in 2011, observer program policy will
place the primary responsibility for monitoring the proper sorting of
salmon, verifying the count of salmon, and collecting scientific data
and biological samples upon the observers stationed at the processing
facility. The vessel observer may provide the plant observer breaks or
other assistance as needed during the offload.
Comment 16: The proposed rule, at Sec. 679.21(c)(2)(i)(D) and
Sec. 679.21(c)(2)(iii)(B), requires that that no salmon pass the
observer sample collection point, or no salmon pass from the last point
where sorting of fish occurs into the factory area of a processing
plant. These requirements are unreasonable as it is inevitable that
salmon occasionally pass beyond the sorting area because salmon can be
difficult to identify in the large volume of pollock. This could occur
even when every effort is made to identify and separate salmon out at
the observer sample collection point and/or sorting area. Rather than
penalize a plant operator, the regulations should provide the
flexibility for salmon identified at any point in the process to be
counted and sampled without penalty.
Response: NMFS disagrees and has made no changes to the final rule
in response to this comment. As identified in the EIS on page 65,
Chinook salmon PSC allocations may create strong economic incentives to
misreport salmon bycatch because each salmon counted against Chinook
salmon PSC allocation could ultimately constrain the full harvest of a
sector's, cooperative's, or CDQ group's pollock allocation. The factory
areas of processing plants are large and complex. Preventing observers
from seeing Chinook salmon that enter the factory would not be
difficult. In order for PSC limits to be effective, NMFS needs to
ensure that there is a credible salmon bycatch monitoring system in
place at shoreside processing plants. This would ensure that observers
have access to all salmon, prior to the fish being conveyed into the
factory. NMFS acknowledges that the reduction in the flow of fish
through the initial catch sorting area could slow pollock processing,
since fish would enter the factory at a slower rate. Additional sorting
crew may also be needed in the catch sorting area during times when
salmon bycatch is high or small salmon are present.
Recordkeeping and Reporting
Comment 17: Current regulations require operators of trawl catcher/
processors to record the scale weight for the haul and the CDQ group
number within 2 hours after completion of gear retrieval. However, it
is unlikely that all of the catch from a haul will be weighed within 2
hours of gear retrieval. Pollock often are held in tanks before
weighing and processing for hours after the gear is retrieved. In
addition, vessel operators and CDQ group representatives want to know
the weight of the haul and the number of Chinook salmon in the haul
before deciding whether to assign the haul to the CDQ group. The time
limit for recording scale weight and CDQ group number should be changed
to within 2 hours after the completion of weighing of the catch from
the haul. This solution provides adequate time for the crew to safely
move the fish across the scale without putting unnecessary pressure on
the observer to monitor the haul and complete their other duties faster
than they reasonably can. It also ensures that the vessel operator
enters the haul data with minimal delay for the benefit of other
vessels in their sector that depend on that data to avoid hot spots and
to manage under the PSC allocation and performance standard.
Response: NMFS agrees and has modified the final rule, at Sec.
679.5, to change the time limit for recording the CDQ group number in
the logbooks, for the reasons described in the comment.
Proper accounting of pollock catch and salmon bycatch to an AFA
sector, inshore cooperative, or CDQ group requires identification of
whether a haul by a catcher/processor or a delivery by a catcher vessel
to either a mothership, shoreside processor, or stationary floating
processor is assigned to a specific CDQ group. If no CDQ group is
identified with the haul or delivery, that pollock, associated salmon
bycatch, and other catch in the haul or delivery is attributed to the
sector or inshore cooperative to which the vessel or processor belongs.
For catcher/processors and motherships, observer data is used to
determine the weight of pollock and number of salmon associated with
the haul or delivery, and the CDQ group number must be properly
identified in the observer data at the time the data is transmitted by
the observer from the vessel to NMFS. The primary and official source
of the CDQ group number for the observer is the
[[Page 53034]]
vessel logbook. Observers also record and transmit the total weight of
each haul or delivery from the scale onboard the vessel. Although the
scale weight of each haul or delivery also is required to be recorded
in the vessel logbook, observers can obtain this information directly
from the scale and do not need to rely on the vessel logbooks as the
only source of data for scale weights.
Under current regulations, operators of catcher vessels and
catcher/processors using any gear type and the operators of motherships
are required to record the CDQ group number in their logbooks within 2
hours after the completion of gear retrieval. This requirement has
existed for logbooks for many years so that vessel operators can
document whether catch in a haul or set is occurring in CDQ or non-CDQ
fisheries. The primary reasons for requiring the vessel operators to
indicate in their logbooks that they were fishing on behalf of a CDQ
group are: (1) To document why a vessel may be directed fishing for a
groundfish species when the non-CDQ fisheries for that species were
closed; (2) to record production and retained catch separately in the
CDQ and non-CDQ fisheries for purposes of calculating maximum
retainable amounts of groundfish not open for directed fishing; and (3)
to provide information for proper accounting of catch to allocated
quotas.
The requirement to record both the scale weight of the haul and the
CDQ group number within 2 hours of completion of gear retrieval applies
to daily cumulative production logbooks (DCPLs) for catcher/processors
using trawl gear under regulations at Sec. 679.5(c)(4)(ii)(B).
However, as described in the proposed rule, under Amendment 91 AFA
catcher/processors or any catcher/processor harvesting pollock CDQ will
no longer be filling out DCPLs (the paper logbooks). Vessel operators
are required to record all information previously required in the DCPL
in an electronic logbook (ELB). This final rule adds text to the
introductory paragraph of the trawl catcher/processor DCPL requirements
to clarify that the operators of AFA catcher/processors or any catcher/
processor harvesting pollock CDQ are required to use an ELB and no
longer report using a DCPL.
Regulations at Sec. 679.5(f)(2)(iii)(B)(1) require that vessel
operators using an ELB must ``Record the haul number or set number,
time and date gear set, time and date gear hauled, begin and end
position, CDQ group number (if applicable), and hail weight for each
haul or set within 2 hours after completion of gear retrieval.'' Hail
weight is the vessel operator's estimate of the total weight of the
haul. Although current ELB regulations require the vessel operator to
enter all data currently required for the DCPLs, the ELB time limits
currently do not include the same requirement that applies to the DCPL
that operators of catcher/processors required to weigh catch on a scale
approved by NMFS must record the scale weight of the haul. In addition,
although the ELB time limits list the information that must be recorded
within 2 hours after completion of gear retrieval, they do not include
the additional DCPL time limit to record all other required information
by noon of the day following completion of production. NMFS revised the
final rule to require operators of catcher/processors to report, in the
ELBs, the CDQ group number within 2 hours after completion of weighing
all of the catch in the haul on the scale.
NMFS is preparing a separate proposed rule to revise and
standardize time limits in Sec. 679.5 for daily fishing logbooks
(DFLs), DCPLs, and ELBs and will address the time limit for recording
the scale weight of each haul and all other required information in
this separate rulemaking because these requirements affect more than
the vessels regulated under Amendment 91. This separate rulemaking is
expected to be effective by January 1, 2011. However, until these
revisions are made, operators of catcher/processors fishing under
Amendment 91 are not required to record scale weights of each haul in
the ELB within 2 hours of completion of gear retrieval.
NMFS changed the final rule to add a requirement that the operator
of the vessel must provide the information recorded in the ELB to the
observer or an authorized officer upon request at any time after the
specified deadlines and before the ELB logsheet is printed. This
requirement is needed because the CDQ group number is required to be
recorded in the ELB within 2 hours after weighing of the catch, but the
vessel operator is only required to print a copy of the ELB logsheet
for the observer's use by noon each day to record the previous day's
ELB information. The observer may need access to the information about
the CDQ group number recorded in the ELB prior to the daily printing of
the ELB logsheet page to submit observer data to NMFS in a timely
manner. As stated in the comment, timely submission of observer data
will be essential to the industry to manage Chinook salmon bycatch
under Amendment 91.
The same issue raised in this comment about the time needed to
assess catch composition before assigning the catch in the haul to a
CDQ group or the partner vessel also applies to catcher vessels
delivering to motherships. Current regulations at Sec.
679.5(c)(4)(ii)(A) require the operator of a catcher vessel using trawl
gear to record the CDQ group number in its DFL within 2 hours after
completion of gear retrieval. Catcher vessels delivering unsorted
codends do not retrieve gear onboard the catcher vessel, but just
transfer the codend from the catcher vessel to the mothership. The
trawl net is hauled onboard the mothership, dumped into holding tanks
and held, sorted, weighed, and processed in much the same manner as is
done on a catcher/processor. Therefore, assessment of the composition
of the catch and obtaining information needed by the vessel operator to
assign the catch to a CDQ group or the mothership sector is not
available until after the catch is weighed and the salmon sorted,
identified, and counted on the mothership.
To maintain consistency with the revisions made for time limits
that apply to the catcher/processors, NMFS also revised the final rule
that governs time limits for recording the CDQ group number in the
catcher vessel's DFL and the mothership's DCPL. NMFS revised the final
rule, at Sec. 679.5(c)(4)(ii)(A)(1), to add the statement that
specific information must be recorded within 2 hours after completion
of gear retrieval, except that catcher vessels harvesting pollock CDQ
and delivering unsorted codends to a mothership must record CDQ group
number within 2 hours after completion of weighing all catch in the
haul on the mothership.
For the mothership DCPL, NMFS revised the final rule, at Sec.
679.5(c)(6)(ii)(A), to add the statement that specific information must
be recorded within 2 hours after completion of receipt of each
groundfish delivery, except that the CDQ group number for catcher
vessels harvesting pollock CDQ and delivering unsorted codends to a
mothership must be recorded within 2 hours after the completion of
weighing all catch from the haul on the mothership. Mothership
operators may use either the DCPL or ELB. Mothership DCPLs do not
require reporting of the scale weight of each delivery, so no revisions
are needed.
Finally, current regulations require that the operator of a vessel
using an ELB must notify NMFS by fax that he or she will be using an
ELB. NMFS modified the final rule so that this requirement applies only
to operators
[[Page 53035]]
voluntarily using an ELB. AFA catcher/processors required to use an ELB
under Amendment 91 will not be required to notify NMFS by fax that they
are using an ELB because NMFS will know that they are using an ELB.
Comment 18: The final rule should revise the time limit to record
scale weight of the haul and CDQ group number to within 2 hours after
the catch from a haul is weighed and the salmon in the haul are
counted, whichever occurs later. This deadline would better comport
with fish processing operations and the practical requirements for
storing pollock in holding tanks.
Response: NMFS agrees that the time limit for recording whether the
catch from a haul by a catcher/processor is attributed to a CDQ group
should be changed. See response to comment 17. The final rule revises
this time limit to within 2 hours of the completion of weighing all
catch in the haul. NMFS believes that the time limit is appropriately
linked to the completion of weighing of the haul and does not agree
that the time limit should be linked to when the observer has completed
counting the salmon in the haul.
Two hours after weighing the catch in the haul should provide
sufficient time for the observer to sort, identify species, and count
all of the salmon in a haul. However, if unusual circumstances prevent
the observer from completing the count of all salmon in the haul within
this time limit, vessel crew can assist the observer or count the
salmon in the haul independent of the observer with enough detail to
assess the catch composition from the haul for purposes of deciding
whether to assign a haul to a CDQ group or to the catcher/processor
sector. In addition, the time when the catch from a haul is completely
weighed on the scale is readily available to the vessel operator from
information stored and printed by the scale. Conversely, the time when
an observer completes counting salmon would require separate and
additional documentation by the observer.
Comment 19: The proposed rule, at Sec. 679.21(c)(2)(ii)(A),
requires an operator of a vessel making inshore deliveries to store all
salmon taken as bycatch in a refrigerated saltwater tank. This
regulation should be removed because at times catch must be stored on
deck if tanks are full, a refrigeration break-down could result in a
violation, and certain times of the year water temperatures are
sufficiently cold that it is unnecessary to refrigerate.
Response: NMFS did not add this requirement with the proposed rule,
we only removed the ability to freeze or ice the salmon. Making the
requested change is outside the scope of this action. Vessel operators
should notify NOAA Office of Law Enforcement of any equipment failures,
including a refrigeration break down, that impedes a vessel's full
compliance with regulations.
Comment 20: In the interest of reducing the carbon footprint of the
pollock fleet, we support the proposal to remove the reference
requiring the discard of salmon into Federal waters once they have been
counted or otherwise sampled. However, whenever possible and practical,
Chinook salmon bycatch should be committed to the PSD program.
Response: NMFS acknowledges this comment.
PSC Limits and Allocations
Comment 21: A 20,000 to 25,000 Chinook salmon bycatch cap is
required for the Chinook salmon population to recover.
Response: As discussed in the EIS (see ADDRESSES), no available
information indicates that caps at the levels recommended in this
comment would recover the Chinook salmon population. Annual bycatch
caps of 20,000 to 25,000 Chinook salmon were considered and eliminated
from further analysis by the Council. Based on recommendations from the
Council's Salmon Bycatch Workgroup, the initial hard cap numbers under
consideration ranged from 14,000 to 114,000 fish. At the December 2007
Council meeting, the Council raised the lowest hard cap under
consideration to 29,323 Chinook salmon, which is representative of the
5-year average prior to 2001. The Council noted that including this
number in the analysis was sufficiently conservative and that caps
below 29,323 would not meet the purpose and need for this action. The
EIS has a complete analysis of the cap level options (see ADDRESSES).
Comment 22: A hard cap of 29,323 Chinook salmon would ensure salmon
returns meet the needs of user groups. A cap at this level is
consistent with the (1997 to 2001) average Chinook salmon bycatch and
would approach the Yukon River Salmon Agreement requirement that the
United States increase in-river returns by reducing losses to marine
fisheries. As the EIS describes, a cap at this level would have
provided the ``greatest benefit'' in salmon savings for Western and
Interior Alaska stocks from 2003-2007.
Response: NMFS acknowledges the comment and notes that a similar
hard cap was considered in the EIS. The Council recommended and NMFS
approved Amendment 91 because it best balances the need to minimize
Chinook salmon bycatch to the extent practicable while providing the
pollock fleet the flexibility to harvest the pollock TAC. This decision
is fully supported by the EIS and RIR prepared for this action (see
ADDRESSES). NMFS has complied with all applicable laws, Executive
Orders, and international obligations in approving and implementing
Amendment 91.
Comment 23: A very strong case was made by directly affected
communities, and those organizations whose entire existence is for the
purpose of conserving Yukon River Chinook salmon, for implementing a
30,000 Chinook salmon cap with a 58/42 A/B season split.
Response: The analyses for this action examined the impacts of hard
caps ranging from 29,300 to 87,500 Chinook salmon. See NMFS response to
comment 21. Four seasonal apportionment options were analyzed in the
EIS, including the 58/42 apportionment. Amendment 91 apportions the PSC
limits as 70 percent in the A season and 30 percent in the B season.
Seventy percent is higher than the average historical distribution of
Chinook salmon bycatch to the A season to provide more of the Chinook
salmon PSC allocation during the highest value pollock fishing season.
However, the 70/30 A/B season split is combined with the rollover of
100 percent of the remaining A season allocation to the B season. This
rollover provision promotes salmon savings in the A season by providing
incentives for sectors to minimize bycatch to the extent practicable in
preparation for the B season, but also locks in the maximum proportion
of bycatch allowed in the A season.
Comment 24: The 47,591 Chinook salmon PSC limit is too high.
Declining Chinook salmon numbers prove that salmon stocks cannot
sustain exploitation at that level.
Response: NMFS disagrees. The EIS analyzes the environmental
impacts of Chinook salmon bycatch at the 47,591 Chinook salmon PSC
limit (see ADDRESSES). This analysis provides the best available
information on the predicted impacts of bycatch at this level. The
47,591 is the approximate 10-year average of Chinook salmon bycatch
from 1997 to 2006, and represents both the performance standard for
sectors with vessels participating in an IPA and the PSC limit if no
IPA is approved by NMFS.
While Chinook salmon bycatch in the pollock fishery may be a
contributing factor in the decline of Chinook salmon, as the EIS
analysis shows, the absolute
[[Page 53036]]
numbers of the ocean bycatch that would have returned to western Alaska
are expected to be relatively small due to ocean mortality and the
large number of other river systems contributing to the total Chinook
bycatch. Although the reasons for the decline of Chinook salmon are not
completely understood, scientists believe they are predominately
natural. Changes in ocean and river conditions, including unfavorable
shifts in temperatures and food sources, likely cause poor survival of
Chinook salmon.
Comment 25: The 60,000 Chinook salmon PSC limit is nearly double
the cap levels of 29,323-32,500 Chinook salmon recommended by those who
oversee management of the Chinook salmon fisheries in-river and by
those who depend on the Chinook salmon. The 60,000 Chinook salmon PSC
limit would allow the pollock industry to waste more Chinook salmon
than the entire subsistence catch on the Yukon River.
Response: Amendment 91 involves more management measures than a
simple 60,000 Chinook salmon PSC limit. The performance standard will
ensure that average bycatch does not exceed the recent 10-year average.
The IPAs are intended to further reduce bycatch below that amount by
providing vessels incentives to avoid Chinook salmon at all times. As a
result, Amendment 91 is intended to achieve, on average, greater
Chinook salmon savings in low abundance years than a single hard cap
and achieve Chinook salmon bycatch below the performance standard in
most years. However, the 60,000 Chinook salmon PSC limit provides for
the inherent variability in Chinook salmon bycatch among vessels,
sectors, and years by allocating sufficient Chinook salmon for times
when Chinook salmon bycatch is unavoidably high.
NMFS will monitor all salmon bycatch by each vessel in the pollock
fishery through a census, 100 percent observer coverage, and an
expanded biological sampling program. Annual reports and the proposed
economic data collection program are designed to evaluate whether and
how incentive plans influence a vessel's operational decisions to avoid
Chinook salmon bycatch. If information becomes available to indicate
that Amendment 91 is not providing the expected Chinook salmon savings,
NMFS will work with the Council to take additional actions to minimize
Chinook salmon bycatch to the extent practicable.
Performance Standard
Comment 26: Under the proposed rule, if a vessel opts-out of an
IPA, an amount equal to that vessel's portion of opt-out allocation of
28,496 Chinook salmon is subtracted from that sector's PSC allocation;
however, an amount equal to that vessel's portion of 47,591 Chinook
salmon is also subtracted from that sector's annual threshold amount.
The proposed rule has no rationale for subtracting an opt-out vessel's
portion of 47,591 Chinook salmon from the sector's annual threshold
amount. This proposed adjustment method will unnecessarily restrict
fishing opportunities for vessels that choose to become members of an
IPA and will, in turn, jeopardize the attainment of optimum yield in
the pollock fishery. The final rule should accommodate the vessels that
choose to opt-out of an IPA by subtracting the vessels opt-out
allocation from the sector's annual threshold amount.
Response: NMFS consulted with the Council on the two methods to
calculate a sector's annual threshold amount, the method in the
proposed rule or the method recommended by public comment. The Council
recommended that the final rule be changed to subtract a vessel's opt-
out allocation from the sector's annual threshold amount. This is the
same method that the Council had recommended for calculating the sector
allocations under the 60,000 Chinook salmon PSC limit and will result
in slightly higher annual threshold amounts for sectors with vessels
that opt-out of an IPA than the method in the proposed rule. To make
this change, NMFS changed column G in Tables 47a, 47b, and 47c and
column E in Table 47d of the final rule to show each vessel's annual
Chinook salmon opt-out allocation that will be deducted from the
sector's annual threshold amount.
Comment 27: The performance standard allows the pollock fleet to
exceed the 60,000 Chinook salmon PSC limit in some years without
penalty, although consistently exceeding the performance standard could
trigger a lower bycatch cap for future years.
Response: Under Amendment 91, the pollock fleet is prevented from
exceeding the 60,000 Chinook salmon PSC limit in every year. Each year,
NMFS will allocate the 60,000 Chinook salmon PSC limit to the
mothership sector, catcher/processor sector, inshore cooperatives, and
CDQ groups if an IPA is formed and approved by NMFS. The sector-level
performance standard of 47,591 Chinook salmon is a tool to ensure that
each sector does not fully harvest its Chinook salmon PSC allocation in
most years. For a sector to continue to receive Chinook salmon PSC
allocations under the 60,000 Chinook salmon PSC limit, that sector may
not exceed its portion of 47,591 in any three years within seven
consecutive years. If a sector fails this performance standard, it will
permanently be allocated a portion of the 47,591 Chinook salmon PSC
limit.
Comment 28: The performance standard allows the pollock fleet to
catch 60,000 Chinook salmon in two out of seven years with no penalty.
The rationale cited by the Council was that in certain years the
pollock fishery simply cannot avoid bycatch despite behavioral changes.
No analysis is presented in the EIS to support this conclusion.
Response: The EIS (see ADDRESSES) discusses the function of the
sector-level performance standard to prevent each sector from exceeding
its portion of 47,951 Chinook salmon in more than 3 years in any 7
consecutive years. Note that since the performance standard is on a
sector basis, if one sector exceeded its performance standard and
fished up to its allocation under the 60,000 PSC limit, total bycatch
would still be below 60,000 Chinook salmon. Bycatch would only reach
60,000 Chinook salmon in a given year if all sectors fished up to their
allocation of 60,000 Chinook salmon. Therefore, the performance
standard is the tool that will prevent bycatch from exceeding, on
average, the historical 10-year average.
The EIS analysis shows that the number of Chinook salmon caught as
bycatch in the pollock fishery is highly variable from year to year,
from sector to sector, and even from vessel to vessel. Current
information about Chinook salmon is insufficient to determine the
reasons for high or low encounters of Chinook salmon in the pollock
fishery or the degree to which encounter rates are related to Chinook
salmon abundance or other conditions. The uncertainty and variability
in Chinook salmon bycatch led the Council to create a program with a
60,000 Chinook salmon PSC limit, a performance standard, and IPAs. The
60,000 Chinook salmon PSC limit represents a reduction in bycatch from
the recent high bycatch years and is approximately one-half of the 2007
Chinook salmon bycatch. The 60,000 Chinook salmon PSC limit assumes
that the fleet can and will change behavior to avoid Chinook salmon or
face closure the pollock fishery. The performance standard and the IPAs
aim to ensure that the fleet will further change behavior to avoid
Chinook salmon bycatch.
[[Page 53037]]
Eligible Entities
Comment 29: The proposed rule, at Sec. 679.21(f)(8)(ii), is
unclear about what would happen if NMFS received more than one
application for the entity to represent a sector and receive the
Chinook salmon PSC allocation. No more than one entity should be
authorized to represent the catcher/processor sector, but not all of
the owners of the AFA permitted vessels in the sector should be
required to be members in a single entity.
The final rule should contain an explanation of the criteria that
NMFS intends to use to determine which of two or more entity
applications will be selected to represent the catcher/processor
sector. One criterion should be that an applicant must represent the
majority (i.e., 75 percent) of the eligible vessel owners in that
sector. By using these criteria, NMFS would authorize an entity with
the broadest representation of participants. This super-majority
threshold will ensure that the terms under which the entity is formed
will reflect the views of the strong majority of participants but at
the same time will prevent the creation of hold out opportunities that
would result from a unanimous approval requirement. The rule should not
require unanimous participation by the owners of every eligible vessel.
This standard would give inappropriate leverage to participants with
very little investment in the fishery and could disrupt the entire
allocation and IPA process.
Response: NMFS consulted with the Council on the best way to
address the sector entity issues raised in public comment, and the
Council recommended that NMFS change the final rule to improve the
implementation of sector entities and better align IPA and sector
entity participation. The requirement that the mothership and catcher/
processor sector entities must represent all of the vessel owners in
that sector to receive a transferable PSC allocation was explained in
the EIS and is a result of the fact that Amendment 91 only allows for
NMFS to make a single allocation to those sectors. However, the
proposed rule did not provide the necessary structure for the sector
entity to form without introducing the problems identified in public
comments.
NMFS modified the final rule, at Sec. 679.21(f)(8)(i)(C) and (D),
to make it clear that NMFS will authorize only one entity to represent
the catcher/processor sector and one entity to represent the mothership
sector. NMFS also clarified that, under the 60,000 Chinook salmon PSC
limit, the entity has to represent all IPA participating vessel owners
because the allocation is for use by all IPA participating members of
the sector, and the entity is responsible for managing the use of the
allocation by all IPA participating members. Vessel owners that choose
to opt-out of an IPA would not participate in the sector entity. NMFS
added a requirement, at Sec. 679.21(f)(8)(ii)(A), that the sector
entity representative must affirm on the application form that each
eligible vessel owner, from whom the applicant received written
notification requesting to join the sector entity, has been allowed to
join the sector entity subject to the terms and conditions that have
been agreed on by, and are applicable to, all other parties to the
sector entity. NMFS moved a similar requirement for IPA membership from
the proposed language at Sec. 679.21(f)(12)(ii) to the IPA application
requirements at Sec. 679.21(f)(12)(iii)(A) to better align the
participation requirements for both applications. NMFS also added a
requirement, at Sec. 679.21(f)(12)(ii)(B), that vessels owners in the
catcher/processor sector or mothership sector must be a member of the
sector entity to join an IPA.
To address the issue of what would happen if NMFS received more
than one sector entity application, NMFS added Sec.
679.21(f)(8)(ii)(E) to the final rule to clarify that if more than one
entity application is submitted to NMFS, NMFS will approve the
application for the entity that represents the most eligible vessel
owners in the sector. At Sec. 679.21(f)(8)(ii)(D), NMFS changed the
deadline for the entity application from November 1 to October 1 to
coincide with the deadline for the IPA application. NMFS added Sec.
679.21(f)(8)(ii)(F) to the final rule to enable vessel owners to join
an approved sector entity by December 1 of each year, so that the
entity can represent all eligible vessels in the sector and receive a
transferable PSC allocation.
Comment 30: The proposed rule, at Sec. 679.7(f)(8)(iii)(A)(4),
allows an entity representative to sign an IPA on behalf of the vessel
owners in that entity. The final rule should allow the entity
representative to sign more than one IPA to provide for the eventuality
that members of the same entity join different IPAs.
Response: NMFS agrees and has modified this paragraph, now at Sec.
679.21(f)(8)(iii)(B) in the final rule, to allow an entity
representative to sign more than one IPA. The IPA representative may
sign an IPA on behalf of the vessel owners in that entity that intend
to join that IPA. Note that the IPA application requires that the IPA
list each vessel that will be participating in that IPA.
Comment 31: The joint and several liability provision, at Sec.
679.21(f)(8)(iii)(A), is unreasonably broad and makes the members of an
entity formed for the purposes of applying for and holding transferable
quotas jointly and severally liable for any violation of applicable
regulations and for any penalties. Requiring vessel owners to subject
themselves to such onerous and open-ended joint and several liability
exposure raises serious issues of fairness and due process. The
prospect of such liability is likely to have a chilling effect on the
willingness of an individual company to enter into the entity formation
arrangements required to enjoy the benefits of a transferable bycatch
allocation in the first place. Without an entity, that sector would not
receive transferable Chinook salmon PSC allocations, which may
jeopardize its ability to harvest its pollock. This is an inappropriate
standard that not only unfairly imposes liability on innocent vessel
owners, but it was included in the proposed rule without opportunity
for comment earlier in the process and without the benefit of Council
input. For these reasons, and without benefit of any rationale for
including such provisions in the first place, the joint and several
liability provisions should be removed for the final rule.
Response: NMFS has removed from the final rule the joint and
several liability provisions for cooperatives and the entities
representing the catcher/processor sector and mothership sector. These
provisions created some confusion, as discussed in the comment, and
they are unnecessary because NOAA has independent authority to exercise
its discretion to seek to impose joint liability if the evidence
supports doing so.
Transfers
Comment 32: The proposed rule, at Sec. 679.21(f)(9)(ii), states
that vessels fishing on behalf of an entity that has exceeded its
Chinook salmon PSC allocation for a season may not start a new pollock
fishing trip for the remainder of that season. This implies that if a
vessel was fishing on the pollock allocation from an AFA entity and the
entity had exceeded its Chinook salmon PSC limit, the vessel could not
start a new fishing trip for a CDQ entity. That is not the intent.
Clarify that once an entity has exceeded its Chinook salmon PSC
allocation, a vessel cannot start a new fishing trip for that same
entity.
[[Page 53038]]
Response: NMFS agrees and has modified the final rule at Sec.
679.21(f)(9)(ii) to clarify that a vessel is prohibited from fishing
for an entity that has exceeded its Chinook salmon PSC allocation. The
Council motion states that any recipient of a post delivery transfer
during a season may not fish for the remainder of that season. The
recipient of a post delivery transfer is the entity, not a vessel. The
prohibitions at Sec. 679.7(d)(8)(ii)(C)(2) and (k)(8)(iv)(B)
accurately reflect this.
Comment 33: In the proposed rule, at Sec. 679.21(f)(10)(ii), it is
difficult to determine whether seasonal pollock fishery closures will
affect a sector of the fishery or the entire fishery. The final rule
should make it clear that sector-specific seasonal closures will be
employed to manage this portion of the fishery.
Response: NMFS disagrees that this paragraph needs to be changed.
This regulation makes it clear that NMFS will close fishing for those
vessels fishing under a non-transferable allocation. For any given
year, NMFS can establish non-transferable allocations, including a non-
transferable allocation for the group of opt-out vessels. The non-
transferable opt-out allocation will apply to all vessels that have
opted out and could include vessels from different sectors. Therefore,
the NMFS closures will not necessarily be sector-specific.
Incentive Plan Agreement (IPA)
Comment 34: The proposed rule, at Sec. 679.21(f)(12)(i)(A),
incorrectly characterizes the minimum participation requirement. The
first sentence should read, ``participation by the owners of AFA
permitted vessels or CDQ groups that combined represent at least 9
percent of the Bering Sea directed pollock fishery is required for
purposes of this paragraph (f)(12)(i).'' The accompanying table should
be deleted.
Response: NMFS agrees and has corrected this paragraph for the
final rule to clarify that parties to an IPA must collectively
represent at least 9 percent of the Bering Sea pollock quota. The
correct method for determining the percent represented by each party to
an IPA is described in detail in the preamble to the proposed rule (75
FR 14028; March 23, 2010).
NMFS disagrees that the accompanying table should be deleted. The
table contains necessary information for participants to understand how
NMFS will calculate the percent of Bering Sea pollock used for each AFA
permitted vessel and CDQ group in determining whether an IPA meets the
minimum participation requirement.
Comment 35: The preamble to the proposed rule explains that a CDQ
group can only join one IPA. This restriction would force a CDQ group
with vessels fishing in different AFA sectors to join one IPA and adopt
the same incentive program. A CDQ group has investments in fishing
vessels in several pollock sectors, and can allocate CDQ pollock among
them, and should have the ability to join multiple IPAs.
Response: NMFS concurs that a CDQ group should not be required to
participate in only one approved IPA. CDQ groups are not restricted in
what vessels they may authorize to catch pollock CDQ on their behalf as
long as those vessels meet all other applicable requirements in 50 CFR
part 679 and other Federal regulations. Therefore, a CDQ group may have
vessels from different AFA sectors fishing for pollock in the Bering
Sea on its behalf. Different AFA sectors may develop different IPAs and
the CDQ group or the vessel owner may want the partner vessel to
participate in the same IPA that the vessel participates in for its
non-CDQ fishing. Although described in the preamble, no regulations
were included in the proposed rule that would require the CDQ groups to
participate in only one IPA. Therefore, no changes in the final rule
are needed.
However, NMFS added a requirement to the final rule to clarify
requirements associated with a CDQ group's participation in an IPA. To
receive a transferable Chinook salmon PSC allocation under the 60,000
PSC limit, a CDQ group must participate in an approved IPA. If a CDQ
group is participating in an IPA, it cannot also participate in the
opt-out fishery because the Chinook salmon allocation to a CDQ group
cannot be subdivided based on the participation of its partner vessels
in an approved IPA. Therefore, to implement the Council's intent and to
address this comment submitted by five of the six CDQ groups, NMFS
added a requirement in the final rule, at Sec. 679.21(f)(12)(ii)(C),
that states, for a CDQ group to be a member of an IPA, the CDQ group
must list in the IPA each vessel harvesting Bering Sea pollock CDQ on
behalf of that CDQ group that will participate in that IPA.
Comment 36: If a vessel is eligible to participate in more than one
sector, that vessel should be able to participate in more than one IPA.
This would occur for a vessel that is in the catcher/processor sector
and fishing for a CDQ group or for a vessel that can fish in the
mothership sector and inshore cooperative sector.
Response: NMFS agrees that if a vessel is eligible to participate
in more than one sector, then that vessel can participate in an IPA for
each sector.
Comment 37: Clarify whether a CDQ group must submit a separate
proposed IPA if they decide to participate in an IPA together with
members of another AFA sector.
Response: The IPA representative must submit an application for
approval of a proposed IPA to NMFS. A CDQ group that is a member of
that proposed IPA will be listed in the IPA; this CDQ group does not
need to separately submit the same proposed IPA.
Comment 38: Two different deadlines are identified for IPAs;
October 1 and November 1. Which is correct?
Response: Both deadlines are correct. October 1 is the deadline for
submitting a proposed IPA or amended IPA under Sec. 679.21(f)(12)(iv).
November 1 is the deadline in the proposed rule for the IPA
representative to submit amendments to the list of participants in the
IPA. Note that, in response to comment 39, NMFS changed this deadline
for amendments to the IPA list of participants, at Sec.
679.21(f)(12)(v)(C)(2), to December 1.
Comment 39: NMFS should add a deadline for when NMFS will notify
participants whose IPA is rejected to allow them sufficient time to
amend their application or join a different IPA. The proposed rule, at
Sec. 679.21(f)(12)(iv)(D)(2), provides an applicant one 30-day period
to address any deficiencies in the proposed IPA that NMFS identifies.
The final rule should allow for a 45-day period to address, in writing,
the IPA deficiencies identified by NMFS. Additionally, the November 1
deadline at Sec. 679.21(f)(12)(v)(C)(2) for amendments to the IPA's
list of participants should be changed to December 1 to accommodate
NMFS' review and notification process and the potential for amending
and/or switching IPAs.
Response: NMFS will expeditiously review the IPAs and notify the
IPA representative of any deficiencies as soon as possible; therefore,
a deadline for NMFS review is not necessary. The 30-day period for an
IPA representative to address any identified deficiencies was put in
regulations to ensure that deficiencies could be addressed and NMFS
could approve an IPA before the upcoming fishing year. Therefore, NMFS
did not change this 30-day period in the final rule. NMFS agrees that
the deadline for amendments to the list of participants for an IPA
should be changed from November 1 to December 1 and has made this
change in the final rule at Sec. 679.21(f)(12)(v)(C)(2).
[[Page 53039]]
Comment 40: The proposed rule, at Sec.
679.21(f)(12)(iii)(B)(3)(i), says that the IPA must contain a written
description of the incentives that will be implemented under the IPA to
ensure that the operator of each vessel participating in the IPA will
avoid Chinook salmon at all times while directed fishing for pollock.
This does not correctly reflect the Council motion, which says that an
IPA must describe incentives for each vessel to avoid Chinook salmon
bycatch under any condition of pollock and Chinook salmon abundance in
all years. In other words, the IPA is to describe the incentives that
promote salmon avoidance. The incentives will not ensure that
participants avoid salmon at all times. The final rule should reflect
the Council motion.
Response: NMFS agrees and has changed the IPA requirement in the
final rule, at Sec. 679.21(f)(12)(iii)(B)(3)(i), to reflect the
Council motion.
Comment 41: The final rule, at Sec. 679.21(f)(12)(v)(D), should
include the criteria that NMFS would use to disapprove of an IPA as
identified in the preamble (75 FR 14029; March 23, 2010). The reasons
for disapproval should also include where the IPA lacks a component
intended to prevent the sector from exceeding the performance standard.
As the performance standard applies to all members of a sector who
participate in IPAs, rather than to each IPA individually, the IPAs
should be required to include provisions to keep the entire sector
below the performance standard. This is particularly important in the
event that vessels in any one sector participate in more than one IPA.
And, this criteria should also be added to the final rule at Sec.
679.21(f)(12)(v)(D)(1)(ii) for disapproval of a proposed amendment to
an IPA.
Response: NMFS disagrees that additional criteria for disapproval
should be specified in the regulations. The requirements in the
regulations that an IPA must meet for NMFS approval are directly
related to the Council motion, and NMFS will disapprove an IPA that
does not meet these requirements. The proposed rule preamble provides
examples of ways that an IPA would not meet the requirements specified
in the regulations, but these are just examples and there are other
ways NMFS may decide an IPA does not meet the regulatory requirements.
Additionally, under Sec. 679.21(f)(12)(iii)(B)(3)(v), an IPA must
describe how the IPA ensures that the operator of each vessel governed
by the IPA will manage his or her Chinook salmon bycatch to keep total
bycatch below the performance standard for the sector in which the
vessel participates. Under Sec. 679.21(f)(12)(v)(D), NMFS will
disapprove an IPA or an amendment to an IPA that does not meet this
requirement.
Comment 42: For the requirement that the IPA contains incentives to
ensure that the operator of each vessel will avoid Chinook salmon while
fishing for pollock, ``avoid'' should be changed to ``minimize to the
extent practicable'' to use the same language as National Standard 9.
Response: The Council motion recommending Amendment 91 specifically
requires that an IPA must describe incentives for each vessel to avoid
Chinook salmon bycatch under any condition of pollock and Chinook
salmon abundance. This final rule implements Amendment 91.
Additionally, this IPA requirement is consistent with National Standard
9. National Standard 9 states that conservation and management measures
shall, to the extent practicable, (A) minimize bycatch and (B) to the
extent bycatch cannot be avoided, minimize the mortality of such
bycatch. This suggests the general goal is to avoid bycatch and if it
cannot be avoided, minimize its mortality. In other words, the fact
that part (B) uses the word ``avoided'' suggests that that word
accurately encapsulates the principal aim of part (A) of National
Standard 9. Therefore, the requirement to avoid bycatch is consistent
with National Standard 9's parameters, namely, bycatch must be
minimized to the extent practicable. Moreover, Amendment 91 is designed
to minimize bycatch to the extent practicable, as required by National
Standard 9, and the IPAs are one aspect in achieving that goal.
Comment 43: The IPAs operate outside of regulatory control, and we
have no assurances that actual bycatch will be any lower than the
limits placed in regulation.
Response: The IPAs will not operate outside of regulatory control.
Regulations establish the performance based requirements that each IPA
must accomplish. Any number of different incentive plans could meet
these regulatory requirements. The requirements for the IPA are
performance based because fishery participants have more tools
available to them to create incentives to minimize bycatch at the
vessel level than could be proscribed through Federal regulation. As
designed, an IPA can be more responsive and adaptive than Federal
regulations and can use tools not available to managers, such as fees
and penalties. IPAs are included as a performance-based provision and
the Federal regulations are flexible in allowing the pollock fleet to
modify the IPAs as performance information becomes available to ensure
that the IPAs meet the goals in Amendment 91.
Additionally, the final rule requires the IPA representative to
submit an annual report to the Council that will be the primary tool
through which the Council will evaluate whether its goals for the IPAs
are being met. Also, the proposed economic data collection program that
the Council and NMFS are developing is designed to provide quantitative
information to evaluate how an IPA influences a vessel's operational
decisions to avoid Chinook salmon bycatch. See response to comment 44.
Comment 44: Under Amendment 91, there is no opportunity for a
substantive review of the IPAs by either NMFS or the Council, and no
analysis of expected performance is conducted by NMFS in approving the
plans. The IPA requirements do not specify the types of incentives that
must be contained in the plans. Under this review process, only the
Council addresses the efficacy of the incentive programs, yet the
incentive programs submitted to NMFS may not be the same programs
initially submitted to the Council. In effect, no one, including the
public, NMFS, and the Council, has the opportunity to assess the
efficacy of the final incentive programs submitted to NMFS. Moreover,
the Council has no authority to approve or deny the IPAs. An FMP
amendment would have to be initiated to change the requirements.
Response: The comment is correct that there is no process to review
the potential efficacy of the IPAs prior to the first year of
implementation. After the first year of implementation, substantive
review of the IPAs will occur annually as part of the Council's public
process and will be based on the performance of the IPAs. The IPA
annual report is the primary tool through which the Council will
evaluate whether its goals for the IPAs are being met. The IPA annual
report must contain: (1) A comprehensive description of the incentive
measures in effect in the previous year; (2) a description of how these
incentive measures affected individual vessels; (3) an evaluation of
whether incentive measures were effective in achieving salmon savings
beyond levels that would have been achieved in the absence of the
measures; and (4) a description of any amendments to the terms of the
IPA that were approved by NMFS since the last annual report and
[[Page 53040]]
the reasons that the amendments to the IPA were made.
The proposed economic data collection program, once implemented,
would provide information to the analysts and the Council for
determining the effectiveness of the IPAs. The data collection program
will focus on (1) evaluating the effectiveness of the IPA incentives,
the PSC limits, and the performance standard in terms of minimizing
salmon bycatch in times of high and low levels of salmon abundance, and
(2) evaluating how Amendment 91 affects where, when, and how pollock
fishing and salmon bycatch occur. The proposed data collection program
would also provide data for NMFS and the Council to study and verify
conclusions drawn by industry in the IPA annual reports. Due to the
complex nature of economic data collection, the data collection program
will be implemented after Amendment 91.
By design, IPAs are adaptive and can be modified as necessary. The
IPAs may be amended in response to the Council's review to better
achieve the program goals. Furthermore, if analysis prepared after the
incentive plans are in effect demonstrates that the Council's goals are
not being met, then NMFS and the Council could re-initiate analysis of
alternative Chinook salmon bycatch management measures and recommend
revised or new management measures in the future.
Comment 45: It is important that the public review and objectively
assess how the IPAs are functioning. The qualitative approach suggested
in the proposed rule is not adequate. The final rule should recommend
that an IPA and its associated annual report contain objective,
measurable, specific, and verifiable quantitative values or estimates
for each of the IPA components.
Response: NMFS agrees that careful review and assessment of the
IPAs are important. The Council motion specified the requirements for
the IPA annual report to the Council and no changes to these
requirements were made in the final rule. The proposed economic data
collection program that the Council and NMFS are developing is designed
to provide quantitative information to evaluate how an IPA influences a
vessel's operational decisions to avoid Chinook salmon bycatch.
Comment 46: The EIS does not analyze the IPAs, which were relied
upon to justify Amendment 91. NEPA requires that IPAs be analyzed as
alternatives within the EIS if selection of a higher hard cap is based
on performance under the IPAs. Without an analysis of the IPAs, there
is no justification for allowing a higher cap if IPAs are in place. The
agency argues that the IPAs need not be analyzed because it is the cap
levels themselves which are being analyzed. One must then assume that
the Council has effectively chosen a 60,000 hard cap. Assuming arguendo
that this is the case, the Council's rhetoric does not match its
action. In deliberations and in follow-up to the public, Council
members have stressed that this is not really a 60,000 hard cap because
of the IPAs and the performance standard. If the IPAs are truly
insignificant enough such that they need not be analyzed in the EIS,
they also cannot be justification for the two scenario approach.
Response: NMFS disagrees. As explained in EIS chapter 9, as long as
the EIS analyzes and discloses the consequences of adopting the PSC
limits specified in the alternatives, and the IPAs are a feature of the
alternative that provides additional incentives to avoid Chinook salmon
bycatch within these cap levels, the Secretary of Commerce can approve
and implement Amendment 91 without an analysis in the EIS of the
specific IPAs the pollock industry may submit.
The EIS analyzes the environmental impacts of Chinook salmon
bycatch at the 60,000 and 47,591 Chinook salmon PSC limits. This
analysis provides the best available information on the predicted
impacts of bycatch at these levels because these PSC limits are the
maximum amount of bycatch that could be caught in any given year. The
EIS discusses the function of the sector-level performance standard to
prevent each sector from exceeding its portion of 47,951 in more than
three years in any seven consecutive years. Note that since the
performance standard is on a sector basis, if a given sector exceeded
its performance standard and fished up to its PSC allocation, total
bycatch would still be below 60,000 Chinook salmon. Bycatch could only
reach 60,000 Chinook salmon in a given year if each sector fished up to
its PSC allocation. Therefore, the performance standard is the tool
that will prevent bycatch from exceeding, on average, the historical
10-year average of 47,591 Chinook salmon.
The EIS makes no assumptions as to whether the IPAs will be
effective; rather, the IPA component is an innovative approach that is
designed to provide incentives for each vessel to avoid bycatch at all
times with the goal of reducing bycatch below the PSC limits. The
requirements for an IPA are performance based (i.e., they address what
an IPA should accomplish); any number of different incentive plans
could meet these objectives. As designed, an IPA can be more responsive
and adaptive than Federal regulations and can use tools not available
to Federal managers, such as fees and penalties. IPAs were included as
a performance-based provision, and the Federal regulations are flexible
in allowing the pollock fleet to modify the IPAs as performance
information becomes available to ensure that the IPAs meet the goals in
Amendment 91. IPA performance will be reviewed annually (see response
to comment 44). If information becomes available to indicate that
Amendment 91 is not providing the expected Chinook salmon savings, NMFS
will work with the Council to take additional actions to minimize
Chinook salmon bycatch to the extent practicable.
Additionally, requiring, as the comment suggests, that fishery
participants finalize an IPA years before it would be used in order for
it to be analyzed would remove the adaptive nature of the IPAs and
therefore remove some of its effectiveness. And, doing so would not
have changed the analysis of the environmental impacts.
Non-Chinook Bycatch
Comment 47: The section at Sec. 679.21(g)(2)(iii)(C) on ICA Chum
Salmon Savings Area Notices should be re-written to more accurately
describe the original intention of Amendment 84. While the twice weekly
notices are required, ICA Chum Salmon Savings Area closures only occur
if and when areas with bycatch in excess of the based rate, as
described in paragraph (g)(2)(iii)(B), are identified. The sentence,
``For any ICA Salmon Savings Area notice, the maximum total area closed
must be at least 3,000 square miles for ICA Chum Salmon Area closures''
is confusing and does not accurately reflect the original intention of
the 3,000 square mile standard. The original intention was to assure
that the ICA, not the notice, contain language that allows for the
maximum areas available for a Chum Salmon Savings Area closure to be no
less than 3,000 square miles. There was never an intention to require
3,000 square miles be closed by each notice as this sentence may be
interpreted to mean.
Response: Substantive revisions to the regulations at Sec.
679.21(g) governing the non-Chinook salmon portions of the VRHS ICA are
not within the scope of this final rule. Revisions to the management of
chum salmon bycatch in the Bering Sea pollock fishery was not
considered among the alternatives analyzed for Amendment 91. The
[[Page 53041]]
Council currently is analyzing alternatives to address chum salmon
bycatch, and NMFS will request that it consider these comments in
developing its alternatives and analysis.
Comment 48: The last sentence in Sec. 679.21(g)(2)(iii)(E) states
that ``Bycatch rates for Chinook salmon must be calculated separately
from non-Chinook salmon, and cooperatives must be assigned to tiers
based on non-Chinook salmon bycatch.'' This sentence is not necessary
and should be removed.
Response: NMFS concurs and removed this sentence in the final rule.
This requirement does not appear in current regulations governing the
VRHS ICA and was added in the proposed rule in an attempt to clarify
how the ICA would operate with the removal of regulations related to
Chinook salmon. However, the intent of the regulations in this
paragraph is clear without this additional sentence.
PSD Program
Comment 49: The proposed rule, at Sec. 679.21(c)(2)(i)(D),
requires catcher/processors and motherships to ensure that no salmon of
any species pass the observer sample collection point. This seems to
prohibit salmon from passing the observer sample collection point and
into the factory area, yet salmon intended for the PSD program must be
processed and frozen, and these activities take place in the factory
area. The final rule should clearly indicate that it is acceptable for
crew to process and freeze donation program salmon in the factory areas
after the salmon have been counted.
Response: NMFS disagrees that a change in the final rule is
necessary to allow for the transfer or processing of salmon under the
PSD program, at Sec. 679.26. The final rule, at Sec.
679.21(c)(2)(i)(A), requires that the operators of catcher/processors
or motherships must first sort salmon bycatch into an approved salmon
storage location. Once the observer has determined the salmon count and
collected biological samples, the salmon can be removed from the area,
as described in Sec. 679.21(c)(1), and can then be processed for the
PSD program.
Comment 50: Salmon taken as bycatch are either discarded at sea or
processed for food banks in the Pacific Northwest, far from the Western
Alaska families which depend on salmon.
Response: NMFS encourages participation in the PSD program to
reduce waste and provide high quality protein to those in need.
Regulations at Sec. 679.26 require any salmon donated to be handled by
an authorized distributor. Any organization that can meet the
requirements for a PSD program permit may apply to NMFS to become an
authorized distributor. To date, only one authorized distributor,
SeaShare, is permitted to handle donated salmon. Because of the
logistics of handling and shipping the fish, and the limited resources
for the program, only Pacific Northwest residents have benefited from
the donated salmon. The PSD program is currently a voluntary program,
with participants paying the cost of handling the fish. Having more
authorized distributors that could provide donated salmon to Western
Alaska communities would be a good way to reduce salmon waste in the
pollock fishery. More information about the PSD program is available on
the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/ram/psd.htm).
Equipment and Operational Requirements
Comment 51: The proposed rule, at Sec. 679.28(j)(1)(viii),
specifies that a video monitor is needed for viewing ``within the
tank.'' Because salmon are sorted from the catch after the catch is
removed from fish storage tanks, there is no reason to require a camera
in a fish storage tank. The final rule should remove the phrase
``within the tank.''
Response: NMFS agrees and has revised the final rule to eliminate
the requirement to display the ``activities within the tank''. The
final rule, at Sec. 679.28(j)(1)(viii), clarifies that the purpose of
the 16-bit video monitor is to enable the observer to view all areas
where the sorting of salmon of any species takes place, in addition to
the salmon contained in the storage container.
Comment 52: The preamble states (75 FR14029-14030; March 23, 2010)
that NMFS would use the same method for accounting for Chinook salmon
bycatch for all AFA sectors, yet the video monitoring requirement
applies only to the catcher/processor and mothership sectors. The
inshore sector should have the option to use the same video system as a
method of ensuring compliance.
Response: NMFS disagrees that the inshore sector should have the
option to use video monitoring. In the EIS, NMFS examined the
possibility of requiring video at shoreside processors but found that
this was not a reasonable option because factories are so complex that
it would be logistically impossible to cover all areas where a salmon
could appear in the factory. On the other hand, the areas to be
monitored on catcher/processors and motherships are limited in space
and complexity. Thus, electronic monitoring systems will be able to
view all the areas required with a minimal amount of equipment.
Additionally, while the requirement for a census of salmon will be
the same for catcher/processors, motherships, and shoreside processors,
the duties of an observer differ. The observers aboard catcher/
processors and motherships must conduct species composition sampling
while the sorting of catch is occurring. Therefore, observers may not
be able to monitor the sorting at all times due to their other duties.
Video monitoring is required to verify all salmon are sorted from the
catch into the appropriate storage container prior to entering the
processing area of the factory and remain in the storage container
until removed under the direction of the observer. The primary duties
for observers assigned to shoreside processors differ from the observer
duties on a catcher/processor or mothership. While the offload is
occurring at a shoreside processor, observers ensure that all salmon
are properly sorted from the catch and are not required to complete
other duties during an offload.
Comment 53: The video system will work well to augment the
observer's role as a salmon census monitor. Proposed regulations at
Sec. 679.28(j) require the installation of a video system to allow
observers to view all areas where salmon might be sorted. Observers
would be able to randomly scan the monitors to assure proper handling
of the salmon. If the vessel reported salmon bycatch numbers from the
unobserved periods that varied from those of the observed periods, the
observer could review the video to determine whether salmon were being
missed by the crew.
Response: NMFS agrees. The electronic monitoring systems are a tool
for the observers to use to determine whether proper sorting occurs
during periods when they may not be able to monitor and verify that no
salmon have been removed from the salmon storage container before they
have the opportunity to count the number of salmon and collect
biological samples and scientific data.
Tables 47a to 47d to Part 679
Comment 54: It is vitally important that NMFS provide the vessel
owners, listed in table 47c, with the total pounds of pollock being
accredited to each vessel during the three AFA inshore history years,
1995 to 1997. These pound estimates must be compared to the owner's
records and the vessel owners must be provided the opportunity to
provide contradictory information to NMFS.
[[Page 53042]]
Response: NMFS cannot provide the AFA catcher vessel's catch
history due to the confidentiality requirements established by the
State of Alaska on fish ticket data (AS 16.05.815). Under Federal
regulations at Sec. 679.62(a), the Regional Administrator used State
of Alaska fish ticket records to establish the Official AFA Record to
determine (1) a catcher vessel's eligibility for an AFA permit and (2)
a catcher vessel's official AFA inshore cooperative catch history. Due
to the confidential nature of these records, NMFS does not release or
verify historic catch data for an individual AFA pollock catcher
vessel.
State of Alaska fish tickets document the harvest of fish sold,
discarded, or retained by the fisherman for personal use. The
information collected includes species composition, weight, gear used,
date harvested, who caught the fish, processor's license code, and
other information specific to each fishery. As records of purchase
between the processors and the fishermen, fish ticket data are
confidential. The owners of fish tickets can request fishing records
from any local office of ADF&G. In order to receive a vessel's catch
history, vessel owners that are not also owners of the fish tickets
must obtain confidentiality wavers. AFG&G clears the waivers prior to
releasing the certified fish tickets.
Comment 55: The proposed rule, at column D of Table 47c to part
679, inaccurately lists the percent of inshore sector pollock assigned
to each catcher vessel. AFA catcher vessels have relied on cooperative
catch data to determine each vessel's individual share of the inshore
sector's pollock allocation. The shares of each catcher vessel's
inshore pollock allocation in Table 47c differ significantly from
cooperative records and from the percentages some vessel owners and
cooperatives previously believed NMFS had applied to pollock
allocations. NMFS should afford each catcher vessel owner the
opportunity to challenge the percentage of the inshore sector's pollock
allocation because these values are used to calculate vessel-level
Chinook salmon limits and may determine a vessel's ability to harvest
pollock. To not do so will unjustly disadvantage many catcher vessel
owners.
Response: NMFS disagrees that changes are necessary to the percent
of inshore pollock assigned to each catcher vessel in column D of Table
47c to part 679. The values NMFS assigned to each AFA eligible inshore
catcher vessel were calculated from the Official AFA Record, defined at
Sec. 679.2, which represents the best scientific information
available.
Following the passage of the AFA by Congress in 1998, NMFS compiled
the Official AFA Records for each vessel potentially qualifying for an
AFA permit. As specified at Sec. 679.4(l), the information included
vessel ownership, documentation of harvests made by vessels during the
AFA qualifying periods, vessel characteristics, and documented amounts
of pollock processed by pollock processors during the AFA qualifying
period. For inshore catcher vessels, individual catch histories were
required to determine fishery eligibility and annual catch allocations
under the AFA. NMFS relied on State of Alaska fish tickets to establish
a comprehensive account of all groundfish catch by catcher vessel
because fish tickets are required for any groundfish landed in State
waters or delivered to plants or processing vessels operated in State
waters. See response to comment 54.
Since the 2000 directed pollock fishing season, the catch histories
of individual AFA eligible vessels have been used to calculate each
cooperative's percentage allocation of the inshore sector's portion of
the TAC. NMFS converts individual vessel catch histories into annual
quota share percentages assigned to each vessel in a process described
in regulation at Sec. 679.62(a). The annual Bering Sea pollock
allocation to each inshore cooperative is equal to the aggregated
member vessel quota share percentages. The resulting cooperative
percentages are then applied to the inshore sector's portion of the
Bering Sea pollock TAC to determine each cooperative's pollock
allocations.
Each year NMFS announces the harvest specification for the directed
pollock fishery in the Bering Sea subarea. NMFS posts the sum of member
vessel's official catch histories, the percentage of inshore sector
allocation, and the corresponding allocation for each inshore pollock
cooperative and open access fishery, should one exist. These tables are
posted on the Alaska Region Web site (http://alaskafisheries.noaa.gov/sustainablefisheries/afa/afa_sf.htm).
NMFS previously provided an appeals process under which the owners
of vessels and processors could appeal NMFS' determinations relating to
AFA eligibility or AFA inshore cooperative allocations. Both the
emergency interim rule (65 FR 380, January 5, 2000) and the final rule
implementing AFA related amendments (67 FR 79692, December 30, 2002)
established an appeals process similar to the process for appealing
individual fishing quota and license limitation programs. Further, the
regulations implementing the AFA-related FMP amendments provided an
opportunity for, and placed the burden on, each applicant for AFA
permits to correct any inconsistencies with the Official AFA Record,
including catch histories.
Following that appeals process and in response to challenges by
cooperatives, NMFS revised the Official AFA Record. NMFS responded to
each challenge that provided individual vessel catch histories as
evidence of discrepancies between cooperative records and the Official
AFA Record. In order to verify claims, NMFS compared the cooperatives
records to the Official AFA Record and, if necessary, observer
information. In several cases this vetting process resulted in
corrections to the Official AFA Record and the calculations of a
cooperative's allocation of Bering Sea pollock TAC. Therefore, the
quota share percentages in Column D of Table 47c, which were derived
from the Official AFA Record, represent the best information available
for allocating Chinook salmon PSC limits. The creation of another
appeals process or other revisions to the pollock quota share
allocations that were established under the AFA and relied on by NMFS
to allocate pollock to cooperatives for the past 10 years are beyond
the scope of this action. Should the Council determine that further
refinement of Table 47c is necessary, additional rulemaking would be
required.
Furthermore, NMFS disagrees that the percentages listed in Table
47c disadvantage vessel owners. Under Amendment 91, NMFS uses these
vessel level percentage assignments listed in Table 47c to calculate
the opt-out allocation at Sec. 679.21(f)(4)(i)(C) or open access
fishery allocation, the annual threshold amount at Sec.
679.21(f)(6)(ii)(C), and the IPA minimum participation for catcher
vessels under section Sec. 679.21(f)(12)(i)(A)(3). NMFS allocates
transferable Chinook salmon PSC allocations to each inshore
cooperative, not to the individual vessels. The management of PSC
allocations is handled within each cooperative through private
contracts with member vessels and such transactions are not within the
scope of this action.
Comment 56: Chinook salmon PSC limits are based on the historical
pollock harvest; therefore, it is important that these figures be
identical to the cooperative's records. Carry the percentages on the
table to four decimal places (ten-thousandths place) rather than two.
Response: NMFS agrees and has revised the final rule to include the
percentages in Column D of Table 47c
[[Page 53043]]
in four decimal places. NMFS notes that the Chinook salmon associated
with each vessel has not changed.
Amendment 91
Comment 57: Use an emergency regulation to immediately implement a
hard cap of 32,500 Chinook salmon. This lower cap level will provide
protection to salmon populations while allowing the pollock fishery to
operate.
Response: Emergency action is not warranted at this time in light
of the reductions from the high Chinook salmon bycatch years. In 2008,
the pollock fleet caught 19,928 Chinook salmon. In 2009, the pollock
fleet caught 12,410 Chinook salmon. For the 2010 pollock A season, and
the pollock B season that opened on June 10, bycatch rates are
comparable to the low bycatch rates in 2009.
Comment 58: The Council has justified a higher cap on the basis
that they must balance National Standard 9 with National Standard 1,
which requires that conservation and management measures prevent
overfishing, while achieving, on a continuing basis, the optimum yield
from each fishery for the United States fishing industry. However, the
EIS shows that even at the lowest cap level analyzed, 29,300 Chinook
salmon, optimum yield was achieved overall throughout the time period
analyzed in the EIS. This time period includes the highest bycatch on
record, and the three highest bycatch levels in the past eighteen
years, so the fact that optimum yield was achieved even with these
bycatch levels suggests that a bycatch cap at the lowest level
analyzed, 29,300 Chinook salmon, is indeed practicable for the pollock
fleet, and would comport with National Standard 1. This being the case,
a 60,000 hard cap is not necessary to meet National Standard 1 or the
practicability requirement of National Standard 9, and in fact seems
designed more to protect the pollock fishery's revenues than the health
of Western Alaska's salmon and those who depend upon them.
Response: Amendment 91 complies with National Standards 9 and 1,
and the 60,000 Chinook salmon PSC limit is one component of this
program. In developing this program, the Council recognized that the
number of Chinook salmon caught as bycatch in the pollock fishery is
highly variable from year to year, from sector to sector, and even from
vessel to vessel. Current information about Chinook salmon is
insufficient to determine the reasons for high or low encounters of
Chinook salmon in the pollock fishery or the degree to which encounter
rates are related to Chinook salmon abundance or other conditions. The
uncertainty and variability in Chinook salmon bycatch led the Council
to create a program with a combination of management measures that
together achieve its objective to minimize bycatch to the extent
practicable in all years while providing the fleet the flexibility to
harvest the pollock TAC.
Since Amendment 91 divides the PSC limit between the A and B
seasons and allocates the PSC limits to the sectors, cooperatives, CDQ
groups, and, potentially, non-transferable allocations, the actual
allocations are small and could be limiting to an entity that is trying
to avoid bycatch in a high bycatch year. In these years, the
flexibility of the higher PSC limit is necessary for each sector,
cooperative, or CDQ group to harvest its pollock allocation. Thus,
Amendment 91 provides the flexibility for the fleet potentially to
harvest its TAC, which is one aspect of achieving optimum yield in the
long term. Amendment 91 balances this flexibility with the performance
standard and IPA components that provide incentives for each vessel to
avoid Chinook salmon at all times while fishing for pollock.
Comment 59: Amendment 91 is in direct conflict with NMFS' stated
management goal of avoiding bycatch of a prohibited species like
Chinook salmon. The hard cap amounts do not reduce bycatch but are an
allowance for higher bycatch.
Response: NMFS disagrees. Amendment 91 achieves the stated
management goal to minimize Chinook salmon bycatch to the extent
practicable while achieving optimum yield by maintaining flexibility
for the pollock fleet to harvest the TAC. The PSC limits are not an
allowance for higher bycatch, they are one aspect of the program that
imposes an absolute limit on Chinook salmon bycatch. Amendment 91 also
contains a performance standard to ensure that Chinook salmon bycatch
will not exceed, on average, the recent 10-year average Chinook salmon
bycatch and will be much lower than bycatch levels several years prior
to and including 2007. The IPAs will provide incentives for each vessel
to avoid Chinook salmon bycatch at all times. Therefore, Amendment 91
aims to achieve greater reductions in Chinook salmon bycatch than the
PSC limit and performance standard.
Comment 60: Members of the Bering Sea pollock fishery remain
cautiously optimistic that Amendment 91 and its implementing
regulations will provide the incentives and tools necessary to enable
the pollock industry to fully harvest and process the annual pollock
TAC while, at the same time, minimizing to the extent practicable the
fishery's bycatch of Chinook salmon--all as required by the Magnuson-
Stevens Act and the national standards embodied therein.
Response: NMFS acknowledges the comment.
Comment 61: The Amendment 91 text should be clarified. As written,
one of the Amendment 91 changes to the FMP executive summary states
``Attainment of a Chinook salmon PSC allocation closes directed fishing
for pollock in the Bering Sea subarea.'' It would be more accurate to
State that ``Under certain circumstances, attainment of a sector's or
sub-sector's Chinook salmon PSC allocation may close directed fishing
for pollock by that sector or sub-sector in the Bering Sea subarea.''
Response: NMFS disagrees. Additional clarification is not required
because the executive summary provides readers a general description of
the BSAI groundfish fisheries and the conservation and management
measures promulgated under the FMP. The Chinook salmon bycatch
management program is described in detail at section 3.6.2 of the FMP,
while other aspects of the program are specified in this final rule
implementing Amendment 91. Also note that the term ``sub-sector'' does
not appear in the FMP, in the regulations at 50 CFR Part 679, or in the
Council's final action recommending Amendment 91.
Comment 62: Amendment 91 appears to be more weighted to the
concerns of the profitability of industrial fisheries than to the real
impacts to communities, the subsistence way of life, and the protection
of Chinook salmon stocks. Rules need to be put in place that prioritize
the conservation of Chinook salmon returns over the continuation of the
pollock fishery in a way that allows them to remove too many Chinook
salmon.
Response: Amendment 91 prioritizes the conservation of Chinook
salmon by the pollock fishery. However, it does so in a way that
provides the pollock fleet the flexibility to determine how best to
avoid Chinook salmon while harvesting pollock. In developing this
program, NMFS and the Council analyzed and considered the impacts to
communities, subsistence, and Chinook salmon stocks in the EIS and RIR
(see ADDRESSES).
Comment 63: The Council's rejection of bycatch proposals submitted
by the most affected communities is not reassuring that future fishery
management in the Arctic will be responsive to community concerns and
that protective measures will be
[[Page 53044]]
implemented to avoid negatively impacting critical stocks of fish on
which Arctic coastal communities rely.
Response: The Council's Fishery Management Plan for Fish Resources
of the Arctic Management Area includes in its management policy the use
of adaptive management through community-based or rights-based
management. The objectives of the plan include Alaska Native and
community considerations. In managing Arctic fisheries, the Council
promotes management measures that, while meeting conservation
objectives, are designed to avoid significant disruption of existing
social and economic structures and incorporate local and traditional
knowledge in fishery management, encouraging Alaska Native
participation and consultation in fishery management.
Before any fishery may develop in the Arctic, an analysis must be
provided of the historic commercial, sport, or subsistence harvest of
the potential target and bycatch species and of the customary and
traditional subsistence use patterns and evaluation of impacts on
existing users. The combination of the FMP's policy and objectives with
the Council's efforts to work with Native communities through its Rural
Outreach Committee, should ensure concerns of Arctic communities are
considered in Arctic fisheries management decisions. Arctic communities
will be able to work with the Council to ensure sustainable management
of Arctic marine fish resources.
Comment 64: The salmon bycatch in the pollock fishery is impacting
the Copper River salmon fisheries. As Chinook salmon runs decrease
elsewhere, the harvest pressure on Copper River stocks increase.
Response: NMFS acknowledges that salmon fishing effort may shift
from areas with low Chinook salmon returns to more favorable fishing
areas; however, many factors likely contribute to decreases in run
strength. ADF&G manages the Copper River salmon fisheries to address
conservation concerns.
Comment 65: No data was presented to the Council or made available
to the public which would support the rationale that a low cap and low
allocations could preclude pollock fishing by vessels or groups of
vessels.
Response: NMFS disagrees. The EIS and RIR analysis show that a low
PSC limit could limit the pollock fishery harvests below the pollock
TAC in many years because a low PSC limit would not accommodate the
high variability in Chinook salmon encounter rates experienced in the
pollock fishery, or the unpredictability of these rates (see
ADDRESSES). Additionally, as the analysis shows, if the low PSC limit
were allocated to sectors, cooperatives, and CDQ groups, it could
result in allocations so small that it could effectively preclude
pollock fishing by a vessel or group of vessels. On the other hand, not
allocating the PSC limit could result in a race for fish, which would
undermine the rationalized management of the AFA and the current
pollock fishery management.
Comment 66: The pollock fleet's Chinook salmon bycatch
significantly impairs the sustainability of western Alaska Chinook
salmon runs.
Response: As explained in the EIS analysis, the degree to which
levels of bycatch are related to declining returns of Chinook salmon is
unknown (see ADDRESSES). While Chinook salmon bycatch in the pollock
fishery may be a contributing factor in the decline of Chinook salmon,
the absolute numbers of the ocean bycatch that would have returned to
western Alaska are expected to be relatively small due to ocean
mortality and the large number of other river systems contributing to
the total Chinook bycatch. Although the reasons for the decline of
Chinook salmon are not completely understood, scientists believe they
are predominately natural. Changes in ocean and river conditions,
including unfavorable shifts in temperatures and food sources, likely
caused poor survival of Chinook salmon.
Comment 67: Cease operation of the pollock fishery until the
Chinook salmon rebound to acceptable levels.
Response: NMFS acknowledges this comment; however, the closure of
the Bering Sea pollock fishery is beyond the scope of this action.
Comment 68: The burden of conservation should be shared with the
pollock fleet. Rural subsistence users have carried this burden by
themselves for too long. In many parts of rural Alaska commercial,
sport, and subsistence fisheries have been severely restricted, yet
escapement goals are not met.
Response: NMFS acknowledges this comment.
Comment 69: Available evidence suggests that practicable and easily
achievable ways to reduce bycatch below Amendment 91 cap levels exist.
Amendment 91 falsely relies upon a presumption that further reductions
in bycatch are not practicable; however, no evidence is presented in
the EIS or Council record that this is the case. Evidence suggests that
the high bycatch years may be a function of fishing behavior and
fishing patterns that are easily changed (e.g., time area closures).
Response: Amendment 91 is premised on that fact that the pollock
fleet can and will reduce bycatch substantially below the 60,000
Chinook salmon PSC limit and is specifically designed, through the
performance standard and IPAs, to provide incentives for each vessel to
change fishing behavior to avoid Chinook salmon at all times. With
Amendment 91, additional command and control management measures, such
as time area closures, are not necessary to minimize bycatch to the
extent practicable.
Comment 70: Overall, the proposed rule provides a good overview of
the issues and challenges involving salmon bycatch reduction in the
pollock fishery. The proposed rule clearly presents and describes in
sufficient detail the measures managers intend to use to address salmon
bycatch in the pollock fishery while assisting the public in
understanding the potential impacts of those measures.
Response: NMFS acknowledges this comment.
Comment 71: The Council justified a higher cap on the basis of the
possibility of a ``lightning strike''--or a single haul of pollock with
a high amount of Chinook salmon bycatch. The Council did not consider
other methods to address this concern, such as a bycatch pool in which
each vessel contributes a portion of their bycatch allocation to cover
a vessel that has a lightning strike event.
Response: The Council considered public testimony that lightning
strikes of Chinook salmon bycatch occur, especially in the catcher
vessel fleet, in understanding the unpredictability of Chinook salmon
bycatch. To address this, Amendment 91 does not allocate Chinook salmon
PSC to vessels. In a sense, the Chinook salmon PSC allocations are a
type of bycatch pool in that they will be allocated to the mothership
sector, the catcher/processor sector, inshore cooperatives, and CDQ
groups to manage among participating vessels.
Comment 72: Remand the Chinook salmon bycatch issue back to the
Council with a strong statement about the failure of Amendment 91 to
adequately protect and conserve Chinook salmon stocks, to provide for
subsistence uses (including the small scale in-river commercial
fisheries), and to meet the United States' obligation under the Yukon
River Salmon Agreement. Acknowledge NMFS' emergency regulatory
authority under the Magnuson-Stevens Act should bycatch reach 32,000
Chinook salmon
[[Page 53045]]
during the period of the remand. Continuing under the status quo while
the Council reconsiders Amendment 91 is far more acceptable and
presents less of a risk to Chinook salmon stocks and the subsistence
way of life than a 60,000 Chinook salmon PSC limit. The Council can act
quickly on a remand because the EIS analyzed a full range of
alternatives.
Response: On May 14, 2010, NMFS approved Amendment 91. As
demonstrated in the EIS and ROD, Amendment 91 minimizes Chinook salmon
bycatch to the extent practicable and achieves optimum yield on a
continuing basis. NMFS has determined that Amendment 91 is consistent
with the National Standards and other applicable law.
Amendment 91, through the IPA component, is intended to result in
Chinook salmon bycatch levels below the PSC limit and performance
standard. Amendment 91 is a highly innovative program, however, there
is inherent uncertainty over how effective this novel approach will be
in minimizing bycatch over all years and at all levels of Chinook
salmon and pollock abundance. NMFS will be monitoring the bycatch
closely during the season, and if information becomes available to
indicate that Amendment 91 is not providing the expected Chinook salmon
savings, NMFS will work with the Council to take additional actions to
minimize Chinook salmon bycatch to the extent practicable.
Comment 73: Amendment 91 rewards the pollock fleet for less than
responsible fishing behavior practiced by some of the fleet in 2006 and
2007. Amendment 91 is based, in part, on rationale and bycatch averages
that incorporate these high years of ``voluntary'' compliance. This
``trust me'' approach in VRHS approach has failed miserably. The
pollock industry should bear the burden of its past excesses rather
than reaping rewards.
Response: Amendment 91 is a direct response to the high Chinook
salmon bycatch in 2006 and 2007, and does not reward the fleet for that
bycatch. First, the 60,000 Chinook salmon PSC limit is below the three
highest years of bycatch and is approximately half the amount of the
highest year, 2007. Second, while the VRHS ICA was in place in 2007,
after that year, the pollock fleet made significant changes to the
system for 2008, 2009, and 2010, which, in addition to other factors,
have resulted some of the lowest Chinook salmon bycatch since 1990.
NMFS expects that these changes to fishing practices will remain under
Amendment 91, and Amendment 91 provides incentives for further
reductions in bycatch while preventing future bycatch from ever
exceeding 60,000 Chinook salmon.
Comment 74: All quotas should be cut by 50 percent. You are
starving all marine life that needs fish to stay alive. It is
disgusting that you allow the commercial fish profiteers to walk away
with one million dollars for a week's work. Those fish belong to all
Americans, not just local profiteers.
Response: Amendment 91 will minimize Chinook salmon bycatch to the
extent practicable and reduce the impacts of the pollock fleet on
Chinook salmon. The environmental impacts of Amendment 91 and its
alternatives were analyzed in the EIS (see ADDRESSES).
Comment 75: The Council and NMFS have an obligation to consider the
Endangered Species Act (ESA) in setting the bycatch caps. The effects
of Chinook salmon bycatch on the viability of listed Pacific Northwest
Chinook salmon species are unknown; therefore, take may exceed
permissible levels.
Response: NMFS and the Council considered the ESA in setting the
PSC limits. NMFS Alaska Region conducted a formal section 7
consultation under the ESA for Amendment 91 with the NMFS Northwest
region. In the December 2, 2009, biological opinion (see ADDRESSES),
the Administrator, NMFS Northwest Region, determined that fishing
activities conducted under Amendment 91 and its implementing
regulations are not likely to jeopardize the continued existence of any
endangered or threatened salmon species or result in the destruction or
adverse modification of critical habitat.
There is no permissible level of take for ESA-listed salmon. The
take that is expected to occur with the action is established in the
incidental take statement included in the biological opinion for this
action. The incidental take statement determined that the amount or
extent of expected take of ESA-listed Chinook salmon in the Bering Sea
pollock fishery would be equivalent to the amount of ESA-listed Chinook
salmon taken under the Chinook salmon PSC limits established by
Amendment 91. If this level of take is exceeded, NMFS would be required
to reinitiate section 7 consultation.
Information on the bycatch of ESA-listed stocks is from the
recovery of coded-wire tagged fish from ESA-listed stocks. The only
ESA-listed stocks that have been recovered from bycatch in the BSAI
groundfish fisheries are from the Lower Columbia River and Upper
Willamette River Chinook salmon stocks. All of these recoveries have
been from the Bering Sea pollock fishery. The frequency of coded-wire
tag recovery, in relation to the number of coded-wired tagged fish
released from these stocks, indicates that the take of these ESA-listed
stocks in the BSAI groundfish fisheries is rare.
The final rule will improve the collection of Chinook salmon
information by requiring the retention, sorting, and counting of every
Chinook salmon in every haul or fishing trip. Each Chinook salmon with
a clipped adipose fin, indicating a coded-wire tag may be present, will
be sampled for coded-wire tags. Because of this improved sampling
process, NMFS will know the actual number of coded-wire tagged ESA-
listed salmon taken by the Bering Sea pollock fishery.
Comment 76: The transboundary escapement goals were not met in 2007
or 2008; therefore, the statement that ``. . . salmon escapement
targets are being met in general . . .'' is not true. The transboundary
escapement goal was only met in one out of three years because of
massive curtailment of the subsistence fishing and a commercial fishing
stand down.
Response: NMFS acknowledges this comment. The EIS and RIR contain
information on the Yukon River escapement through 2009 (see ADDRESSES).
Comment 77: The Council process in adopting Amendment 91 allowed
blatant conflicts of interest and disregarded the Obama
administration's position on conflict of interest standards. The
pollock industry was represented by voting Council members with past
and/or future financial ties to the pollock fishery. When one distills
the Council's decision, it is clear that it was not guided by science,
facts, or law, but by misplaced policies facilitated by a process that
allows for at least the appearance of a conflict of interest.
Response: NMFS disagrees. NOAA Office of General Counsel reviewed
all of the financial disclosure forms that Council members had filed
pursuant to Sec. 600.235(b) and (c)(1), and concluded that the action
would not have a significant and predictable effect on a financial
interest disclosed in their reports. Therefore, no Council member was
precluded from voting.
Comment 78: Proposed FMP revisions are problematic because they
would create or perpetuate a bycatch standard that is inconsistent with
the Magnuson-Stevens Act and the accompanying national standards. Each
revision utilizes or depends on a requirement that groundfish fishermen
``avoid'' the bycatch of prohibited species including Chinook salmon.
This mandate goes significantly further than the requirement of
National Standard 9, which requires fishermen to ``minimize
[[Page 53046]]
bycatch to the extent practicable.'' The effect of the proposed
revisions would be to arbitrarily eliminate the ``to the extent
practicable'' qualifier of National Standard 9; replacing it with
language that could jeopardize attainment of optimum yield from the
fishery as required by National Standard 1. The statutory language,
minimize to the extent practicable, should be utilized in establishing
the regulatory mandate.
Response: Amendment 91 does not change prohibited species
management under the FMP, except to implement the specific provisions
of the Chinook salmon bycatch management program, as recommended by the
Council. Prohibited species, which include Pacific halibut, Pacific
herring, Pacific salmon and steelhead, king crab, and Tanner crab, are
the most regulated and closely managed category of bycatch. The FMP
states that catch of all prohibited species must be avoided. This is
not a new requirement or modified language under Amendment 91.
Amendment 91 only changes the FMP text in the paragraphs in question to
provide for the new regulatory requirement to retain salmon in the
pollock fishery so that all salmon can be counted. Changing the FMP's
provision that prohibited species must be avoided would require
consideration and recommendation by the Council.
The FMP is consistent with National Standard 9. National Standard 9
states that conservation and management measures shall, to the extent
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot
be avoided, minimize the mortality of such bycatch. This suggests the
general goal is to avoid bycatch, but if it cannot be avoided, to
minimize bycatch mortality. In other words, the fact that part (B) uses
the word ``avoided'' suggests that that word accurately encapsulates
the principal aim of part (A) of National Standard 9. Therefore, the
FMP is consistent with National Standard 9's parameters, namely, that
bycatch must be minimized to the extent practicable.
For Chinook salmon, Amendment 91, by design, provides the
flexibility for the fleet potentially to harvest its TAC, which is one
aspect of achieving optimum yield in the long term. Management of the
other prohibited species is outside the scope of this action.
Comment 79: NOAA has the responsibility to modify the Council's
recommendations to fulfill Federal obligations under ANILCA, ESA,
Pacific Salmon Treaty, Environmental Justice, and Federal
responsibility to tribal governments. NOAA should fulfill these
obligations by not implementing Amendment 91 and insisting on the
smaller bycatch rates proposed and supported by the most directly
impacted communities.
Response: NMFS has complied with all applicable laws, Executive
Orders, and international obligations in approving and implementing
Amendment 91, as documented in the EIS and ROD (see ADDRESSES).
Comment 80: Amendment 91 does not comply with National Standard 8.
Western Alaska communities depend on Chinook salmon as a subsistence
resource and for commercial fishing. Every additional fish that escapes
the pollock fleet will make a difference to communities where fishing
is already severely restricted. The impacts of Amendment 91 on the
pollock fishery are minor in comparison.
Response: Amendment 91 complies with National Standard 8. National
Standard 8 states, ``Conservation and management measures shall,
consistent with the conservation requirements of this Act (including
the prevention of overfishing and rebuilding of overfished stocks),
take into account the importance of fishery resources to fishing
communities by utilizing economic and social data based on the best
scientific information available, in order to (A) provide for the
sustained participation of such communities, and (B) to the extent
practicable, minimize adverse economic impacts on such communities''
(16 U.S.C. 1851(a)(8)).
The EIS and RIR analyze the importance of Chinook salmon and
pollock resources to fishing communities. Amendment 91 mitigates the
impacts of status quo bycatch on Chinook salmon fishing communities and
does not negatively affect the sustained participation of these fishing
communities. Amendment 91 balances the needs of these communities with
the ability to ascertain direct impacts to salmon streams from bycaught
salmon. Understanding that this action cannot rebuild salmon streams,
this action is likely to return more fish to these streams than many of
the other alternatives considered by the Council. Amendment 91 also
balances the needs of pollock fishing communities with need to minimize
Chinook salmon bycatch in developing a program that provides the fleet
the flexibility to harvest the pollock TAC.
Comment 81: The description of National Standard 1 in the preamble
is an inaccurate interpretation of optimum yield. The preamble states
that providing the opportunity for the fleet to harvest its TAC is one
aspect of achieving optimum yield in the long term. The mere
opportunity to fish under regulations where catching fish is not
possible provides nothing but an opportunity to incur costs. It is the
catching of fish and the creation of economic profits that produces
optimum yield.
Response: NMFS disagrees with the commenter's description of
optimum yield and the statement that the proposed regulations make it
impossible to catch pollock. National Standard 1 requires that
``conservation and management measures shall prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery
for the U.S. fishing industry'' (16 U.S.C. 1851(a)(1)). The Magnuson-
Stevens Act expressly defines optimum yield in a comprehensive manner.
Specifically, it means ``the amount of fish which * * * (A) will
provide the greatest overall benefit to the Nation, particularly with
respect to food production and recreational opportunities, and taking
into account the protection of marine ecosystems; [and] (B) is
prescribed as such on the basis of the maximum sustainable yield from
the fishery, as reduced by any relevant economic, social, or ecological
factor. * * * .'' 16 U.S.C. 1802(33).
Under National Standard 1, the optimum yield standard must be
achieved over the long-run but not necessarily with precision each
individual fishing year. Accordingly, as the preamble states, achieving
optimum yield in the BSAI groundfish fishery does not equate to
ensuring the ability to harvest the entire pollock TAC in any given
year. For the BSAI management area, NMFS has established that the
optimum yield is a range from 1.4 to 2.0 million metric tons (see Sec.
679.20(a)(1)(i)). The record indicates that the regulations
implementing Amendment 91 will not impede the BSAI groundfish fishery
from meeting this standard.
Comment 82: The Amendment 91 PSC limits will not meet the
obligations under National Standard 9 to reduce bycatch, but rather
will maintain bycatch levels that are higher than historical averages.
Response: NMFS disagrees. National Standard 9 requires that
conservation and management measures shall, to the extent practicable,
(A) minimize bycatch and (B) to the extent bycatch cannot be avoided,
minimize the mortality of such bycatch. Amendment 91 minimizes bycatch
to the extent practicable. Amendment 91 is more than just a 60,000
Chinook salmon PSC limit. Amendment 91 complies with National Standard
9 because the performance standard ensures Chinook salmon
[[Page 53047]]
bycatch will not exceed, on average, the recent 10-year average and
will be lower than bycatch levels several years prior to and including
2007. Additionally, if the IPAs work as intended, the bycatch should be
well below that amount. If fishery participants do not form any IPAs,
then the 47,591 PSC limit will be in effect, which is the approximate
10-year average of Chinook salmon bycatch from 1997 to 2006.
Comment 83: NMFS' interpretation of Sec. 210(a)(1)(B) of the AFA
in relation to section 402(b)(2) of the Magnuson-Stevens Act, as
described in the preamble (75 FR 14032; March 23, 2010), is entirely
appropriate. Chinook salmon, as well as other species in the Bering
Sea, are public resources held in trust by the Federal Government. As
public trust resources, the collective owners of those resources, the
American people, have a right to know how those resources are being
used or otherwise affected. Therefore, NMFS should make available to
the public data on not just Chinook salmon bycatch, but on all bycatch
in the pollock fishery on a vessel-by-vessel basis.
Response: NMFS acknowledges the comment and notes that making an
AFA pollock fishing vessel's bycatch data available to the public, for
species other than Chinook salmon, is outside the scope of Amendment
91.
Comment 84: Amendment 91 can be construed as a limited access
allocation of Chinook salmon to the pollock fleet. Accordingly, the
Council could use its Magnuson-Stevens Act 303A(e) authority to recover
the costs of the management, data collection, analysis, and enforcement
of the program.
Response: Section 304(d)(2) of the Magnuson-Stevens Act provides
NMFS authority to collect fees for cost recovery of a limited access
privilege program. That section specifies that the fee shall not exceed
3 percent of the ex-vessel value of the fish harvested under the
program. This does not apply to the Chinook salmon bycatch management
program because the Chinook salmon incidentally caught in the pollock
fishery are not sold and therefore have no ex-vessel value.
Comment 85: Necessary information on contributions of different
Chinook salmon stocks to the bycatch has not been determined. The
pollock industry should be required to pay for a robust genetic
research program to determine the exact Chinook salmon stock
contributions as this knowledge is critical in determining impacts to
various watersheds and communities hit hard by the decline of Chinook
salmon.
Response: NMFS agrees that genetic research is important for
understanding the impacts of Chinook salmon bycatch in the Bering Sea
pollock fishery and has taken steps to improve the collection and
analysis of genetic data starting in the 2011 pollock fishery.
Requiring the pollock industry to pay for this research, however, is
outside of the scope of Amendment 91.
Comment 86: Develop and fund a comprehensive research program to
adaptively manage salmon at all life-stages. This gravel-to-gravel
research plan, which would emphasize hiring and development of local
experts, would include community-based salmon research such as habitat
assessments, integration of traditional knowledge, in-river and ocean
sampling for genetic stock identification, and Chinook salmon's
temporal and spatial use of ocean habitat.
Response: NMFS agrees that research on salmon at all life stages is
important and notes that ADF&G, NMFS, the University of Alaska, and
many other institutions currently conduct such research. A gravel-to-
gravel research plan is outside of the scope of Amendment 91.
Comment 87: Use Magnuson-Stevens Act authority, in Sec. 313(g)(1),
to levy fines of up to $25,000 per vessel as an incentive to reduce
bycatch and make these funds available to offset costs including
conservation and management measures and much-needed research.
Response: NMFS and the Council considered using this provision of
the Magnuson-Stevens Act and determined, based on guidance from NOAA
Office of General Counsel, that it was not appropriate for minimizing
Chinook salmon bycatch in the Bering Sea pollock fishery. Section
313(g)(1) of the Magnuson-Stevens Act authorizes the Council and NMFS
to impose a ``system of fines'' on a per-salmon caught basis, and to
use those fines to offset the costs of bycatch reduction research. The
fine, however, is limited to $25,000 per vessel per season.
The use of the term ``fine'' in Sec. 313(g)(1) makes this
provision a penalty-based program. A concern with a penalty-based
program is that it creates greater problems of proof. To prove a
violation, NOAA would have to demonstrate that the vessel in question
had exceeded a specific bycatch level. Experience shows that successful
prosecution of this type of case requires a commitment of agency
resources that is difficult to sustain. Further, since an enforcement
action can take a significant amount of time to bring to successful
conclusion, there can be no certainty that any fine would be recovered
quickly, or that even a successful prosecution would have a deterrent
effect on Chinook salmon bycatch violators. In short, since the
deterrent effect of the $25,000 fine per vessel per season under Sec.
313(g)(1) is relatively inconsequential, and given the length of time
and agency resources necessary for successful investigations and
prosecutions of violations of a fine-per-salmon-penalty program, any
prosecution(s) under that program would not likely result in swift
enforcement of salmon bycatch exceedences or the collection of
substantial and timely funds for research.
Comment 88: Reducing bycatch of salmon in the commercial groundfish
fisheries and implementing comprehensive research and monitoring are
crucial to maintaining and restoring salmon runs, and should remain a
priority for NMFS and the Council.
Response: NMFS acknowledges the comment.
Comment 89: Although NMFS has acknowledged the potential for
unintended negative consequences of Amendment 91 on the northern fur
seal populations, we urge NMFS to carefully monitor this action for any
negative effects. The EIS for this action suggests that a hard cap
could benefit the fur seal if the fleet shifts away from pollock prey
areas, or the fishery is closed before reaching its total allowable
catch. However, it is too early to determine the impact of hard caps on
fur seals because of data limitations and the complexity of the
ecosystem. We encourage caution in this approach.
Response: NMFS agrees that much needs to be learned about the
potential effects of the pollock fishery on northern fur seals and
about fur seal biology. A description of past and ongoing research is
available on the National Marine Mammal Laboratory's Web site (http://www.afsc.noaa.gov/nmml/species/species_nfs.php). This research
includes studies that should provide additional information regarding
the pollock fishery interactions with northern fur seals. NMFS is
actively pursuing research on northern fur seals to help us understand
the reasons for the decline and potential threats to the population.
The research projects investigate a broad range of topics related to
fisheries interactions around the Pribilof Islands, including studies
to quantify area-specific food habits and animal conditions, describe
foraging behavior in different environments, delineate foraging
habitats, and model habitat suitability in relation to fur seals and
their overlap with commercial fisheries.
[[Page 53048]]
Comment 90: Amendment 91 would allow more salmon to be caught as
bycatch in a single year than would enter into the Canadian portion of
the Yukon River system in any given year's healthy run. This is an
insult to Canadian First Nations. The Pacific Salmon Treaty and First
Nation tribes are ignored even though they are severely impacted.
Response: The substantive issues involving Chinook salmon bycatch
on the Canadian portion of the Yukon River and the Pacific Salmon
Treaty were considered in the development of Amendment 91. The EIS and
RIR for this action (see ADDRESSES) recognize that Chinook salmon taken
as bycatch in the pollock fishery originate from Alaska, the Pacific
Northwest, Canada, and Asian countries along the Pacific Rim. Estimates
vary, but more than half of the Chinook salmon may be destined for
rivers in western Alaska including the Yukon River. The EIS and RIR
address the substantive issues involving the portion of Chinook salmon
taken as bycatch in the Bering Sea pollock fishery that originated from
the Yukon River.
NMFS acknowledges that in 2007 and 2008, the United States did not
meet the Yukon River escapement goals established with Canada by the
Yukon River Agreement. However, in 2009 the United States exceeded
these escapement goals, allowing for harvest sharing between the United
States and Canada.
Comment 91: The final rule should acknowledge the current
contribution that the VRHS provides to Chinook salmon bycatch reduction
efforts, especially in low abundance years when the challenge will be
to keep bycatch as far below the PSC limit as is practicable. The
preamble does not explain that while the VRHS was in place in 2007, the
highest bycatch year, bycatch likely would have been significantly
higher without the VRHS. After 2007, major modifications were made to
the VRHS that have clearly helped to keep Chinook salmon bycatch down
in 2008, 2009, and 2010. Based on the performance from 2008 to 2010,
the VRHS remains one of the most effective tools the industry has to
keep Chinook salmon bycatch within acceptable levels.
Response: The RIR prepared for this action contains a complete
description of the VRHS, its performance, and modifications since it
was developed.
Comment 92: Industry efforts are ongoing to develop an effective
salmon ``excluder'' that fishermen can incorporate into their trawl
nets so as to enable salmon to escape from the nets unharmed. Ongoing
experiments to design and perfect excluder devices are showing promise,
and it is hoped that they, too, will make significant contributions to
industry efforts to keep Chinook bycatch as low as practicable.
Response: NMFS acknowledges the comment.
Comment 93: Acknowledge the importance of salmon to ecosystems
other than marine. Low Chinook salmon returns are not only bad for the
people who depend on them for sustenance and income, but declining runs
present substantial negative impacts to river systems, riparian
habitat, upland watershed habitat, and the ocean nutrient conveyor
belt.
Response: NMFS agrees and acknowledges the comment.
Comment 94: Chinook salmon bycatch in the Bering Sea pollock
fishery may lead user groups to give up their way of life. If user
groups cannot continue to catch more pollock and more salmon, they will
starve and die.
Response: NMFS acknowledges the comment.
Tribal Consultation Issues
Comment 95: Tribes and their leaders were shut out of meaningful
participation in the decision-making process. The Council limited
Chinook salmon bycatch management options before any significant effort
was made to involve Alaskan Native tribes. NMFS and Council staff's
attempts at outreach and government-to-government tribal consultations
were awkward, held too late in the process, and participation was
limited. As a result, the analysis poorly characterized subsistence and
its importance to rural user groups. It is evident by their actions
that the majority of Council members paid no meaningful attention to
the concerns of the tribes who all spoke with a strong and unified
voice on this issue. Conversely, the Council meetings involved many
pollock industry representatives and presentations.
Response: NMFS and the Council made significant efforts to involve
Alaska Native tribes and western Alaska residents early in the process.
As detailed in the EIS (see ADDRESSES), the Council conducted extensive
outreach to Alaskan communities to explain this action, the supporting
analysis, and the Council decision-making process. In conjunction with
the Council outreach, NMFS consulted with interested Alaska Native
representatives, as described in the Tribal Summary Impact Statement in
the Classification section of this preamble.
In February 2007, the Council began developing this action by
creating the Salmon Bycatch Workgroup. The Salmon Bycatch Workgroup had
members that represented western Alaska, held public meetings, and
developed the first draft of the alternative set. When NMFS started the
EIS scoping process on December 28, 2007, NMFS initiated the
consultation process for this action by mailing letters to Alaska
tribal governments, Alaska Native corporations, and related
organizations. These letters provided information about the proposed
action and the EIS process, and solicited consultation and coordination
with Alaska Native representatives. The primary purpose of scoping is
to obtain public comments on the range of alternatives and issues to
analyze. Based on scoping, public testimony, and the workgroup
recommendations, the Council refined the range of alternatives and
developed the analysis over seven Council meetings, finalizing the
alternative set and recommending the preferred alternative in April
2009.
Western Alaska residents commented that the Draft EIS and RIR
poorly characterized subsistence and its importance to rural user
groups. In response to these comments, NMFS, the Council, and the State
of Alaska made significant improvements to this analysis for the final
EIS and RIR (see ADDRESSES). This additional analysis was presented to
the Council before they took final action to recommend Amendment 91.
Comment 96: Subsistence users of the Yukon River, the vast majority
of whom are Alaska Native and have the lowest per capita income in the
United States, are clearly bearing a disproportionately high adverse
environmental impact under Amendment 91. Under the concept of
Environmental Justice, why does Amendment 91 result in tribal
subsistence users bearing virtually all of the consequences resulting
from past, present, and future wasteful bycatch by the pollock fleet?
This violates all measures of fairness and fails to satisfy any
consideration of environmental justice. The pollock fleet can best
afford to make sacrifices in order to accomplish meaningful reductions
in Chinook salmon bycatch.
Response: NMFS acknowledges the comment. The EIS prepared for this
action analyzes the environmental justice impacts of this action (see
ADDRESSES).
Comment 97: NOAA conducted only one true tribal consultation, with
the Bering Straits tribes. This consultation occurred with only a small
fraction of the Alaska federally recognized tribes affected by
Amendment 91. NOAA failed to formally respond to or follow-
[[Page 53049]]
up on the concerns raised by the tribes in the single inadequate tribal
consultation that was held.
Response: NMFS disagrees. NMFS conducted a consultation with every
tribe that requested a consultation. As detailed in the Tribal Summary
Impact Statement, below, NMFS held five consultations with fifteen
Alaska Native tribes. Following the Nome consultation referenced by the
commenter, NMFS addressed the concerns raised by the tribal
representatives in written responses in the Comment Analysis Report,
and amended the EIS analysis to reflect the concerns raised at the
consultation.
Comment 98: We support NMFS' efforts to implement and refine its
procedures for effective and adequate consultation and coordination
with Alaska Native tribes.
Response: NMFS acknowledges this comment.
Comment 99: Fewer than 5 percent of the people who live in the
Yukon River drainage have heard of the Council despite the FMP
containing provisions for consulting with Alaska Natives and rural
communities. During the April 2009 Council meeting, NMFS stated that
the analysis for this action did not include freshwater information,
even though salmon are anadromous. The Tanana Chiefs Conference, the
Association of Village Council Presidents, the First Nations tribes of
Canada, and the Office of Subsistence Management should have all been
consulted regarding the declining salmon runs. Traditional ecological
knowledge must be considered.
Response: The State of Alaska manages Chinook salmon fisheries and
the EIS and RIR prepared for this action (see ADDRESSES) contain
extensive information from the State of Alaska on Chinook salmon in-
river abundance, fisheries, and management. ADF&G was a cooperating
agency in preparing the EIS and the EIS relied on subsistence
information from ADF&G's Office of Subsistence Management.
As explained in the EIS, the Council conducted extensive outreach
to Alaskan communities to explain this action, the supporting analysis,
and the Council decision-making process. In conjunction with the
Council's outreach activities, NMFS consulted with interested Alaska
Native representatives, as described in the Tribal Summary Impact
Statement.
Comment 100: We applaud NMFS efforts to incorporate more personal
meetings with tribal representatives. We recommend that NMFS establish
an Alaska Native Tribal Liaison position for the purpose of further
implementing and conducting NMFS consultation and coordination policy.
Response: NMFS acknowledges this comment. NMFS continues to
encourage the participation of rural Alaska in the decision-making
processes and strives to improve our tribal consultation and outreach
efforts. NMFS is considering the recommendation to hire a tribal
liaison as we assess the resources needed to meet tribal consultation
requests and responsibilities under Executive Order 13175.
Comment 101: Tribal leaders, even those representing regions with
20, 30, and 50 tribes, were allowed an impossibly scant three minutes
of time during the ``public'' comment part of the April 2009 meeting to
express their concerns and positions. Pollock fishery representatives,
on the other hand, were allowed several hours to present their
incentive plans.
Response: During the April 2009 Council meeting, public testimony
was limited to 4 minutes for associations and organizations and 2
minutes for individuals. Because the preliminary preferred alternative
included a provision to allow the pollock industry to develop incentive
plan agreements, and the Council's selection of a final preferred
alternative depended on the ability to understand what such agreements
may entail, the Council requested that each primary sector of the
pollock industry provide a presentation on the progress and potential
content of the incentive plans as part of the background presentations
prior to public comment. These presentations assisted the Council and
the public in understanding how the incentive plan agreements may be
developed before making a decision.
Comment 102: The Secretary of Commerce has a trust obligation to
protect the opportunity for Alaska Natives to continue their
subsistence way of life.
Response: NMFS agrees that the Federal Government has a trust
responsibility to protect the Alaskan Natives' rights of subsistence
hunting and fishing. However, the environmental statutes under which
the Council and NMFS act prescribe a solicitous stance toward the
environment. As a result, where the government acts responsibly
regarding the environment, it implements and protects the parallel
concerns of Native Alaskans. In this instance, the Council and NMFS are
taking action to minimize the Chinook salmon bycatch to the extent
practicable. This action is intended to protect an important natural
resource and therefore is also, inherently, intended to protect Alaskan
Natives' rights of subsistence fishing.
Classification
Pursuant to sections 304(b) and 305(d) of the Magnuson-Stevens Act,
the NMFS Assistant Administrator has determined that Amendment 91 and
this final rule are consistent with the FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Final Environmental Impact Statement (EIS) and Final Regulatory Impact
Review (RIR)
An EIS and RIR were prepared to serve as the central decision-
making documents for the Secretary of Commerce to approve, disapprove,
or partially approve Amendment 91, and for NMFS to implement Amendment
91 through Federal regulations (see ADDRESSES). The EIS was prepared to
disclose the expected impacts of this action and its alternatives on
the human environment. The RIR for this action was prepared to assess
the costs and benefits of available regulatory alternatives.
Final Regulatory Flexibility Analysis (FRFA)
This final regulatory flexibility analysis (FRFA) incorporates the
Initial Regulatory Flexibility Analysis (IRFA), a summary of the
significant issues raised by the public comments in response to the
IRFA, NMFS' responses to those comments, and a summary of the analyses
completed to support the action.
NMFS published the proposed rule on March 23, 2010 (75 FR 14016)
with comments invited through May 7, 2010. An IRFA was prepared and
summarized in the ``Classification'' section of the preamble to the
proposed rule. The description of this action, its purpose, and its
legal basis are described in the preamble to the proposed rule and are
not repeated here.
NMFS received 71 letters of public comment on Amendment 91 and the
proposed rule. None of these comments addressed the IRFA. NMFS received
comment letters on Amendment 91 and the proposed rule from five of the
six CDQ groups, which compose all the small entities directly affected
by this action. In total six unique comments were received from the
small entities. Two of these comments (17 and 34) resulted in revisions
to the final rule from the proposed rule, while the other three (35,
36, 37, and 39) resulted in
[[Page 53050]]
further clarification in the preamble to the final rule.
Number and Description of Small Entities Regulated by This Action
This action applies only to those entities that participate in the
directed pollock trawl fishery in the Bering Sea. These entities
include the AFA-affiliated pollock fleet and the six CDQ groups that
receive allocations of Bering Sea pollock.
The Regulatory Flexibility Act (RFA) requires consideration of
affiliations among entities for the purpose of assessing if an entity
is small for RFA purposes. The AFA pollock cooperatives are a type of
affiliation. All of the non-CDQ entities directly regulated by this
action were members of AFA cooperatives in 2008 and, therefore, NMFS
considers them ``affiliated'' large (non-small) entities for RFA
purposes.
Due to their status as non-profit corporations, the six CDQ groups
are identified as ``small'' entities under the Small Business
Administration's (SBA) guidelines. This action directly regulates the
six CDQ groups, and NMFS considers the CDQ groups to be small entities
for RFA purposes. As described in regulations implementing the RFA (13
CFR 121.103), the CDQ groups' affiliations with other large entities do
not qualify them as large entities. Revenue derived from groundfish
allocations and investments in BSAI fisheries enable these non-profit
corporations to better comply with the burdens of this action, when
compared to many of the large AFA-affiliated entities. Nevertheless,
the only small entities that are directly regulated by this action are
the six CDQ groups.
No duplication, overlap, or conflict between this action and
existing Federal rules has been identified.
A FRFA must describe 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. ``Significant alternatives'' are
those that achieve the stated objectives for the action, consistent
with prevailing law, with potentially lesser adverse economic impacts
on small entities, as a whole.
NMFS approved and is implementing Amendment 91 following
recommendations by the Council. The EIS, RIR, and FRFA for this action
considered four alternative management actions to the preferred
alternative.
As the ``preferred alternative,'' Alternative 5 constitutes the
``final rule.'' The remaining four alternatives (in various
combinations of options and suboptions) constitute the suite of
``significant alternatives,'' under the final rule, for RFA purposes.
Each is addressed below. Please refer to section 2.5 of the EIS for the
detailed impacts analyses. Data on cost and operating structure within
the CDQ sector are unavailable, so a wholly quantitative evaluation of
the size and distribution of burdens cannot be provided. The following
is a summary of the contents of those more extensive analyses,
specifically focusing on the aspects which pertain to small entities.
Under the status quo alternative (Alternative 1), the Chinook
Salmon Savings Area, established by Amendment 84 to the FMP, creates
separate non-CDQ and CDQ Chinook salmon PSC limits. NMFS closes the
Chinook Salmon Savings Area upon attainment of the non-CDQ Chinook
salmon PSC limit. The CDQ Program receives allocations of 7.5 percent
of the Chinook salmon PSC limit (or 2,175 Chinook salmon) as PSQ
reserve. NMFS further allocates PSQ reserves among the six CDQ groups,
based on a recommendation by the State of Alaska in 2005. The State of
Alaska recommended that the percentage allocation of Chinook salmon PSQ
and non-Chinook salmon PSQ among the CDQ groups be the same as the CDQ
groups' percentage allocations of pollock. The percentage allocation of
Chinook salmon PSQ by CDQ group is as follows: Aleutian Pribilof Island
Community Development Association (APICDA) 14 percent, Bristol Bay
Economic Development Corporation (BBEDC) 21 percent, Central Bering Sea
Fisherman's Association (CBSFA) 5 percent, Coastal Villages Region Fund
(CVRF) 24 percent, Norton Sound Economic Development Corporation
(NSEDC) 22 percent, and Yukon Delta Fisheries Development Association
(YDFDC) 14 percent. Allocations of salmon PSQ to the CDQ groups are
transferable among the CDQ groups.
Unless exempted because of participation in the VRHS ICA, a CDQ
group is prohibited from directed fishing for pollock in the Chinook
Salmon Savings Area when the Chinook salmon PSQ is reached. As
described earlier in the preamble to this final rule, the VRHS ICA
provides real-time salmon PSC information, so that the fleet can avoid
areas of high Chinook salmon interception rates. The fleet voluntarily
started the VRHS in 2002 for Chinook salmon, and in 2008 NMFS approved
the regulations implementing Amendment 84 to the BSAI FMP. In 2008 and
2009, all CDQ groups were voluntarily participating in an ICA, so they
were exempt from the closure of the Chinook Salmon Savings Area.
Alternative 1 would likely impose the least burden on the CDQ
groups, because it does not impose a Chinook salmon PSC limit that
could prevent the full harvest of their respective pollock allocations.
While the annual reports indicate that the VRHS ICA has reduced Chinook
salmon encounter rates compared to what they would have been without
the ICA, the highest historical Chinook salmon bycatch occurred in
2007, when the ICA was in effect under an exempted fishing permit. This
high level of bycatch indicates that the status quo management
measures, despite their giving the pollock fleet the tools to reduce
salmon bycatch, contain no effective upper limit on the amount of
Chinook salmon bycatch taken in the fishery. NMFS and the Council
remain concerned that the status quo management has the potential for
high amounts of Chinook salmon bycatch as experienced in 2007.
The hard cap alternative (Alternative 2) would establish an upper
limit to Chinook salmon bycatch in the pollock fishery. A range of
suboption caps, from 29,323 to 87,500 Chinook salmon, were considered,
based on various averages of Chinook salmon bycatch in the pollock
fishery over a range of historical year combinations from 1997 through
2006. Analysis in sections 6.10.3 and 7.3 of the RIR examined the
potential impacts on CDQ groups over this range. All Chinook salmon
caught by vessels participating in the pollock fishery would accrue
toward the cap. Under this alternative, upon reaching a Chinook salmon
PSC limit, all directed pollock fishing would stop, regardless of
potential forgone pollock harvests.
As described in the EIS section 2.2, this alternative includes
several different options for management of a PSC limit, including
separate PSC limits for the CDQ Program and the remaining AFA sectors,
and hard caps divided by season, by sector, or a combination of both.
In addition, the Council included an option to allow small entities
(i.e., CDQ groups) and non-CDQ groups to transfer Chinook PSC
allocations among sectors, between the A and B seasons, or a
combination of both, that would allow small entities more flexibility
to harvest the full TAC in high Chinook salmon encounter years.
Regardless of the hard cap level or allocation option chosen, the
[[Page 53051]]
establishment of an upper limit on the amount of Chinook salmon bycatch
in the pollock fishery would require participants in the CDQ Program to
stop directed fishing for pollock if a hard cap were reached, because
further directed fishing for pollock would likely result in exceeding
the Chinook salmon hard cap. As the analysis in section 6.10 of the RIR
demonstrates, the lower the hard cap selected, the higher the
probability of a fishery closure and potential for forgone pollock
revenues to the CDQ groups.
Although this alternative would have established an upper limit to
Chinook salmon bycatch, the hard cap alternative alone would fail to
promote Chinook salmon avoidance during years of low salmon encounter
rates and could result in a loss of revenues to CDQ groups, due to the
closure of the fishery before the TAC has been harvested. Additionally,
this alternative could create a race for Chinook salmon bycatch,
similar to a race for fish in an open access fishery, which could
increase the likelihood of wasteful fishing practices, a truncated
directed fishing season, and forgone pollock harvest. The final rule
retains components of Alternative 2 that will limit the burden on the
small entities and further increase the flexibility for small entities
through an IPA to minimize Chinook bycatch, to the extent practicable,
at all levels of salmon or pollock abundance, while establishing an
upper limit on Chinook salmon bycatch. Furthermore, the Council
rejected Alternative 2 in partial response to public testimony
described below.
During public comment, the Council received varying perspectives
from CDQ participants on the costs and benefits of the range of PSC
limits under consideration. NMFS received written comments from three
of the six CDQ groups. While two CDQ groups (BBEDC and YDFDA) argued
for a lower limit than this final rule provides, it was asserted by
some, (including members of CVRF communities) that a hard cap higher
than 68,000 Chinook salmon would increase the possibility that they
could both harvest their full pollock allocation, under AFA, and
receive full royalty and profit sharing payments from those
allocations. The importance of the pollock resource, as a source of
revenue for these small entities, indicates that any loss of pollock
catch represents an increased economic burden on the CDQ groups (small
entities). Public comment from CDQ members revealed the complexity of
the issue for CDQ groups and communities. Although CDQ communities
derive revenue from pollock and other BSAI fisheries, many of these CDQ
stakeholders also depend on sustainable Chinook salmon runs for
subsistence, cultural, and spiritual practices; therefore, this issue
is not strictly a matter of finances. The Council ultimately rejected
Alternative 2 in recognition that a hard cap alone would not achieve
the Council's objectives for this action.
The modified area triggered closure alternative (Alternative 3) is
similar to the status quo in that regulatory time and area closures
would be invoked when specified Chinook salmon PSC limits are reached,
but NMFS would remove the VRHS ICA exemptions to the closed areas. This
alternative would incorporate new cap levels for triggered closures,
sector allocations, and transfer provisions and could impose a lower
burden on the CDQ groups than the preferred alternative. If triggered,
NMFS would close only the seasonal areas, described in section 2.3 of
the EIS, to directed pollock fishing. This alternative would not
necessarily prevent small entities from the full harvest of their
pollock TAC, because fishing effort outside of the closed areas could
continue until the fishing season ended.
While Alternative 3 appears to reduce the economic impacts of
forgone pollock revenue on small entities, when compared to the hard
cap alternative, it does not provide any incentive to minimize Chinook
salmon bycatch below the trigger amount. This alternative would shift
the fleet's fishing effort to areas that may (or, as experienced in
recent seasons, may not) have a lower risk of Chinook salmon
encounters, but would not achieve the Council's objectives to promote
Chinook salmon avoidance at the vessel level, establish a maximum limit
on Chinook salmon bycatch in the pollock fishery, or hold the industry
accountable for minimizing Chinook salmon bycatch.
At its June 2008 meeting, the Council developed a preliminary
preferred alternative (Alternative 4) that contains components of
Alternatives 1 through 3. Alternative 4 would set a hard cap for all
vessels participating in the pollock fisheries and includes provisions
for a voluntary ICA that must encourage Chinook salmon avoidance, at
all levels of pollock and Chinook salmon abundance and encounter rates.
This alternative would minimize the burden on small entities by setting
a relatively high PSC limit (68,392 Chinook salmon), allowing
participants in an ICA to share the burden of reducing Chinook bycatch,
and allowing sector level PSC allocation transfers.
PSC allocations under Alternative 4 would limit the burden on the
small entities by increasing their annual allocation of the Chinook
salmon PSC limit. Under component 2 of this alternative, a sector's
allocation of Chinook salmon bycatch would be calculated at 75 percent
historical bycatch and 25 percent AFA pollock quota, with allowances
for the CDQ sector. Estimates of historic bycatch in the CDQ sector
were based on lower bycatch hauls when compared to non-CDQ sectors, due
in part to agreement with the catcher/processor fleet contracted to
harvest pollock on behalf of the CDQ sector. These historical bycatch
estimates would have resulted in a lower initial allocation of Chinook
salmon to CDQ groups, potentially increasing forgone revenue loss for
small entities. Therefore, component 2 estimates the historic CDQ
bycatch rates by blending CDQ bycatch rates with those of sectors
harvesting pollock on behalf of the CDQ groups. The resulting higher
PSC allocations would decrease the probability of forgone pollock
revenue and the financial burden of this action on the CDQ groups. NMFS
provides a description of the sector allocation in section 2.4 of the
EIS (see ADDRESSES).
During public comment on the Draft EIS, a different sector
allocation was proposed to component 2 of Alternative 4. The suggested
allocation would further reduce the burden on the small entities by
allocating Chinook salmon based on 25 percent history and 75 AFA
pollock allocation. Such an allocation would further benefit CDQ groups
by increasing the PSC allocations to the CDQ groups above the amount
provided under component 2 of Alternative 4. The Council considered and
rejected this suggestion because such an allocation would not
adequately represent the different fishing practices and patterns each
sector utilizes to fully harvest their pollock allocations.
Despite the advantages of Alternative 4, the Council did not
recommend this alternative, noting that it failed to meet the Chinook
salmon conservation objective of this action by setting too high a PSC
limit and by not establishing a performance standard to promote and
ensure that the pollock fishery minimized Chinook salmon bycatch to the
extent practicable. However, by unanimous vote, the Council selected a
preferred alternative that retained component 2 from Alternative 4,
which is designed to reduce the economic burden on the CDQ groups.
The preferred alternative (Alternative 5), which constitutes the
``final action'' under this element of the FRFA, reflects
[[Page 53052]]
the least burdensome of management structures available, in terms of
directly regulated small entities, while fully achieving the
conservation and management purposes consistent with applicable
statutes. As described elsewhere in the final rule for this action,
Alternative 5 combines a limit on the amount of Chinook salmon that may
be caught incidentally with a novel approach designed to minimize
bycatch, to the extent practicable, in all years and should result in a
greater reduction of Chinook salmon bycatch over time than the PSC
limits and performance standard.
The uncertainty and variability in Chinook salmon bycatch led the
Council and NMFS to create an innovative and comprehensive management
program, which limits the burden on CDQ groups through performance
rather than design standards. Alternative 5 establishes a system of
transferable PSC allocations and a performance standard to provide CDQ
groups with the flexibility to decide how best to comply with the
requirements of this action, given the other constraints imposed on the
pollock fishery (e.g., pollock TAC, market conditions, area closures
associated with other rules, gear restrictions, climate and
oceanographic change).
NMFS decided to implement the Council's recommended alternative
because it best balances a suite of management measures that enable
NMFS to manage Chinook salmon bycatch in the pollock fishery, while
meeting all statutory, regulatory, and national policy requirements,
goals, and objectives. Following a comprehensive review of the relevant
environmental, economic, and social consequences of the alternatives,
NMFS did not identify any additional alternatives to those analyzed in
the EIS, RIR, and the FRFA that had the potential to further reduce the
economic burden on small entities, while achieving the objectives of
this action. The EIS section 2.6, contains a detailed discussion of
alternatives considered and eliminated for further analysis (see
ADDRESSES).
Recordkeeping and Reporting Requirements
In addition to revising some existing requirements, this rule will
add recordkeeping and reporting requirements needed to implement the
preferred alternative including those related to--
Reporting Chinook salmon bycatch by vessels directed
fishing for pollock in the Bering Sea;
Applications to transfer Chinook salmon PSC allocations to
another eligible entity;
Development and submission of proposed IPAs and amendments
to approved IPAs; and
An annual report from each IPA representative documenting
information and data relevant to the Chinook salmon bycatch management
program.
The CDQ groups enter contracts with partner vessels to harvest
their pollock allocations. Many of these vessels are at least partially
owned by the CDQ groups. Although the accounting of Chinook salmon
bycatch by partner vessels fishing under CDQ allocations will accrue
against each respective CDQ group's seasonal PSC limit, most of the
recordkeeping, reporting, and compliance requirements in the final rule
apply to the vessels harvesting pollock, as well as the processors
processing pollock delivered by catcher vessels. For example, under
existing requirements at Sec. 679.5, landings and production reports
that include information about Chinook salmon bycatch are required to
be submitted by processors.
NMFS clarifies that, in the future, if a CDQ group chooses to have
pollock CDQ delivered to a shoreside processing plant, the catcher
vessel used to harvest the pollock CDQ would need to designate the trip
as a CDQ trip and comply with the retention and observer coverage
requirements for catcher vessels, and the pollock would have to be
delivered to a processor with an approved CMCP. These steps will ensure
that all salmon bycatch from the pollock CDQ fisheries are properly
counted and reported.
The CDQ groups already receive transferable Chinook and non-Chinook
salmon PSQ allocations and have received such allocations under the CDQ
Program since 1999. Therefore, NMFS will not require CDQ groups to
apply for recognition as entities eligible to receive transferable
Chinook salmon PSC allocations. The CDQ groups are already authorized
to transfer their salmon PSQ allocations to and from other CDQ groups,
using existing transfer applications submitted to NMFS.
New under this action is the authorization for the CDQ groups to
transfer Chinook salmon PSC allocations to and from AFA entities,
outside of the CDQ Program, including the AFA inshore cooperatives and
the entities representing the AFA catcher/processor sector and the AFA
mothership sector. Because of this new feature, CDQ groups will use a
new application form to transfer Chinook PSC; all other transfers by
CDQ groups will continue to be accomplished using the CDQ or PSQ
Transfer Application. The existing application has been revised to
provide this instruction.
Participation in an IPA is voluntary, but it is necessary to
receive transferable allocations of a portion of the 60,000 Chinook
salmon PSC limit. Therefore, it is likely that the CDQ groups will
participate in one or more IPAs. A CDQ group may participate in an IPA
with vessel owners from other AFA sectors, or the CDQ groups may
develop an IPA that applies only to CDQ groups and vessels fishing on
behalf of the CDQ groups. Each vessel harvesting pollock CDQ on behalf
of a CDQ group must be listed in an approved IPA in which the CDQ group
also is a participant, as required by Sec. 679.21(f)(12)(ii)(C). If a
CDQ group participates in an IPA, it will share the costs of developing
and managing the IPA and meeting the reporting requirements. However,
these costs are offset by the increased allocation of Chinook salmon
PSC for IPA participants.
The professional skills necessary to prepare the reporting and
recordkeeping requirements that will apply to the CDQ groups under this
action include the ability to read, write, and understand English; the
ability to use a computer and the Internet to submit electronic
transfer request applications; and the authority to take actions on
behalf of the CDQ group. Each of the six CDQ groups has executive and
administrative staffs capable of complying with the reporting and
recordkeeping requirements of this action and the financial resources
to contract for any additional legal or technical expertise that they
require to advise them.
Small Entity Compliance Guide
NMFS has posted a small entity compliance guide on the NMFS Alaska
Region Web site (http://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm) to satisfy the Small Business Regulatory
Enforcement Fairness Act of 1996, which requires a plain language guide
to assist small entities in complying with this rule. Contact NMFS to
request a hard copy of the guide (see ADDRESSES).
Tribal Summary Impact Statement (E.O. 13175)
Executive Order 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
[[Page 53053]]
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 Executive Order 13175 to Alaska Native corporations.
Pursuant to Executive Order 13175, 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. Specifically, Executive Order 13175
requires Federal agencies to: (1) Regularly consult and collaborate
with Indian tribal governments and Alaska Native corporations in
developing Federal regulatory practices that significantly or uniquely
affect their communities; (2) reduce the imposition of unfunded
mandates on Indian tribal governments; and (3) streamline the
applications process for and increase the availability of waivers to
Indian tribal governments.
Section 5(b)(2)(B) of Executive Order 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) a statement of the extent to which the
concerns of tribal officials have been met; and (4) the agency's
position supporting the need to issue the regulation.
A Description of the Extent of the Agency's Prior Consultation With
Tribal Officials
On December 28, 2007, when NMFS started the EIS scoping process for
this action, NMFS mailed letters to Alaska tribal governments, Alaska
Native corporations, and related organizations (``Alaska Native
representatives''). The letter provided information about the proposed
action, the EIS process, and solicited consultation and coordination
with Alaska Native representatives. NMFS received 12 letters providing
scoping comments from representatives of tribal governments and Alaska
Native Corporations. These comments were summarized and included in the
scoping report available on the NMFS Alaska Region Web site (see
ADDRESSES). Additionally, a number of tribal representatives and tribal
organizations provided written public comments and oral public
testimony to the Council during Council outreach meetings on Amendment
91 and at the numerous Council meetings at which Amendment 91 was
discussed.
Once the Draft EIS was released on December 5, 2008, NMFS sent
another letter to Alaska Native representatives announcing the release
of the document and soliciting comments concerning the scope and
content of the Draft EIS. The letter included a copy of the executive
summary of the Draft EIS and provided information on how to obtain a
printed or electronic copy of the Draft EIS. NMFS also mailed 23 copies
of the Draft EIS to the Alaska Native representatives who had requested
a copy or provided written comments to NMFS during scoping. NMFS
received 14 letters of comment on the Draft EIS from representatives of
tribal governments, tribal organizations, or Alaska Native
corporations. These comments were summarized and responded to in the
Comment Analysis Report (CAR) in Chapter 9 of the EIS and the comment
letters are posted on the NMFS Alaska Region Web site (see ADDRESSES).
NMFS conducted tribal consultations at the request of
representatives from the following federally recognized tribes: The
Nome Eskimo Community; the Chinik Eskimo Community (representing the
village of Golovin); the Stebbins Community Association; the Native
Village of Unalakleet; the Native Village of Kwigillingok; the Native
Village of Kipnuk; the Alakanuk Tribal Council; the Native Village of
Koyuk; the Native Village of Elim; the Native Village of Gambell;
Native Village of Savoonga; Saint Michael; Shaktoolik; King Island; and
the Native Village of Eyak.
NMFS held a tribal consultation in Nome, Alaska, on January, 22,
2009, in conjunction with a Council outreach meeting on Chinook salmon
bycatch. Consulting in person with NMFS in Nome were representatives of
the Nome Eskimo Community, the Chinik Eskimo Community, and the Native
Village of Elim. Representatives of the Stebbins Community Association
and the Native Village of Unalakleet participated by telephone. Council
staff provided information on the Draft EIS, the alternatives, and the
schedule for Council action. As part of the consultation, NMFS staff
provided additional information and listened to the concerns and issues
raised by the tribal representatives. The Nome Eskimo Community
submitted a letter to NMFS with its comments during the tribal
consultation. NMFS considered and responded to these comments in the
CAR.
NMFS also held a tribal consultation teleconference on March 17,
2009, with the Native Village of Kwigillingok and the Bering Sea Elders
Advisory Group, which has 37 tribes as members. The Regional
Administrator provided information about the upcoming final action by
the Council and the Draft EIS comment period and listened to the
concerns and issues raised by the tribal representatives. The concerns
expressed in the consultation were provided in a letter from the Bering
Sea Elders Advisory Group.
On October 19, 2009, NMFS held a tribal consultation teleconference
with the Alakanuk Tribal Council and the Native Village of Kipnuk. The
Regional Administrator provided information on the Chinook and chum
salmon bycatch in the Bering Sea in 2009 and listened to the concerns
and issues raised by the tribal representatives.
Following the release of the EIS and RIR on December 7, 2009, NMFS
sent another letter to Alaska Native representatives announcing the
release of the EIS and providing information on how to participating in
the rulemaking process. These letters included a copy of the EIS and
RIR executive summary and provided information on how to obtain a
printed or electronic copy of the EIS and RIR. NMFS also mailed 28
copies of the EIS and RIR to the Alaska Native representatives who
requested a copy or who had provided written comments to NMFS. NMFS
received one comment from an Alaska Native organization on the EIS that
was summarized and responded to in the ROD (see ADDRESSES).
On October 13, 2009, NMFS received a request from the Native
Village of Unalakleet for tribal consultation on a number of fishery
management issues regarding the Bering Sea. On February 16, 2010, NMFS
conducted a tribal consultation in Unalakleet, Alaska, that included
tribal representatives from the Native Village of Unalakleet, the
Native Village of Koyuk, Stebbins Community Association, Native Village
of Elim, the Native Village of Gambell, the Native Village of Savoonga,
Saint Michael, Shaktoolik, and King Island. Among other issues,
Amendment 91, general rulemaking and tribal consultation processes,
salmon research, and fisheries bycatch management were discussed. The
report NMFS prepared on this consultation is available on the NMFS
Alaska Region Web site (see ADDRESSES).
On March 24, 2010, NMFS continued the consultation process by
sending another letter to all Alaska Native representatives when the
Notice of Availability for Amendment 91 and the proposed rule were
published in the Federal Register. The letter included a copy of these
documents and notified representatives of the opportunity to comment
and consult. NMFS received
[[Page 53054]]
45 letters of comment on Amendment 91 and the proposed rule from tribal
members and representatives of tribal governments, tribal
organizations, or Alaska Native corporations. The comment summaries and
NMFS' responses are provided in this preamble under Response to
Comments.
On May 18, 2010, NMFS held a tribal consultation teleconference
with the Native Village of Eyak. The Regional Administrator provided
information on Amendment 91 and Chinook salmon and listened to the
concerns and issues raised by the tribal representatives.
A Summary of the Nature of Tribal Concerns
The concerns expressed in consultations and reflected in written
comments from tribal representatives and members center on four themes.
First, Chinook salmon is vitally important to tribal members, and they
suffer great hardships when Chinook salmon abundance is low. Second,
tribal representatives attribute low Chinook salmon in-river returns
directly to bycatch in the Bering Sea pollock fishery. Third, tribal
members want Chinook salmon bycatch greatly curtailed by a hard cap of
between zero and 32,000 Chinook salmon. Fourth, NMFS should improve its
consultation process and include tribal perspectives early in decision-
making. The Alaska tribal representatives' specific concerns raised
during the consultations before the EIS was finalized were summarized
and responded to in the EIS (see ADDRESSES). The Alaska tribal
representatives' specific concerns raised after the EIS was published
are addressed in the Response to Comments in this final rule.
A Statement of the Extent to Which the Concerns of Tribal Officials
Have Been Met
One of the primary factors in initiating this action was concern
over the potential impacts of Chinook salmon bycatch in the Bering Sea
pollock fishery on the return of Chinook salmon to western Alaska river
systems and the recognition of the importance of Chinook salmon to the
people in western Alaska. While the final program is not the program
advocated by many Alaska Native representatives, it will minimize
bycatch to the extent practicable.
To address their first concern that the draft analysis poorly
characterized the subsistence fishery for Chinook salmon and its
importance to rural user groups, NMFS, the Council, and the State of
Alaska made significant improvements to the final EIS and RIR analysis
to accurately document the importance of the subsistence way of life.
The analysis includes the best available information from the ADF&G
Office of Subsistence and current literature, and the traditional
knowledge shared with NMFS and the Council in consultations and
comments. This additional analysis was presented to the Council before
it took final action to recommend Amendment 91 and was the analysis
used by the agency to approve Amendment 91.
To address the second concern, the EIS applied the best available
scientific information to conduct an adult equivalent analysis to
determine the impacts of the pollock fishery on the annual returns of
Chinook salmon to the river systems in Western Alaska. As explained in
the EIS analysis, the degree to which levels of bycatch are related to
declining returns of Chinook salmon is unknown. While Chinook salmon
bycatch in the Bering Sea pollock fishery may be a contributing factor
in the decline of Chinook salmon, the EIS analysis shows that the
absolute numbers of the ocean bycatch that would have returned to
western Alaska are expected to be relatively small due to ocean
mortality and the large number of other river systems contributing to
the total Chinook salmon bycatch. Although the reasons for the decline
of Chinook salmon are not completely understood, scientists believe
they are predominately natural. Changes in ocean and river conditions,
including unfavorable shifts in temperatures and food sources, likely
caused poor survival of Chinook salmon.
NMFS considered the recommended hard caps from tribal members, and
the most recommended limit of 32,500 Chinook salmon was analyzed in the
EIS and RIR. As discussed above, NMFS has determined Amendment 91 is a
better program than a hard cap alone because it includes a mechanism,
the IPA, that provides incentives for pollock fishing vessels to avoid
Chinook salmon bycatch under any condition of pollock and Chinook
salmon abundance in all years. Amendment 91 will achieve the
conservation objectives of minimizing Chinook salmon bycatch to the
extent practicable, but includes management measures that provide the
fleet the flexibility to harvest the pollock TAC within the specified
Chinook salmon PSC limits.
NMFS and the Council have made great efforts to conduct outreach,
communication, and consultations with Alaska Native tribes,
organizations, Alaska Native corporations, and communities. NMFS and
the Council made significant efforts to involve Alaska Native tribes
and western Alaska residents early in the process of developing
Amendment 91. As explained in the EIS, the Council conducted extensive
outreach to Alaskan communities to explain this action, the supporting
analysis, and the Council decision-making process. In conjunction with
the Council outreach, NMFS provided information to all tribes at each
step in the process and consulted with interested Alaska Native
representatives, as described in ``A Description of the Extent of the
Agency's Prior Consultation with Tribal Officials.''
In response to the tribal concerns, NMFS and the Council have also
taken steps to improve these processes. In November 2009, NMFS
conducted a workshop with interested tribal officials on tribal
consultations and has responded to the recommendations made at that
workshop. More information on NMFS' tribal consultation process is
available on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/tc/). The Council also created the Rural
Community Outreach Committee to develop outreach plans for specific
Council actions and educational workshops for rural communities on
environmental law and the Council process. More information on the
Council's outreach efforts is available on the Council's Web site
(http://alaskafisheries.noaa.gov/npfmc/default.htm).
NMFS' Position Supporting the Need To Issue the Regulation
This final rule is needed to implement Amendment 91, a complex and
innovative program to minimize bycatch to the extent practicable in the
pollock fishery. This final rule is also needed to implement increased
observer coverage and ensure that every salmon caught in the pollock
fishery is counted so that NMFS has accurate salmon bycatch data. NMFS
is also expanding the biological sampling to improve data on the
origins of salmon caught as bycatch in the pollock fishery.
Collection-of-Information Requirements
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA), which have been approved by the
Office of Management and Budget (OMB). The collections are listed below
by OMB control number.
OMB Control No. 0648-0213
Public reporting burden per response is estimated to average 30
minutes for
[[Page 53055]]
eLandings Catcher/Processor Trawl Gear Electronic Logbook.
OMB Control No. 0648-0393
Public reporting burden per response is estimated to average 8
hours for the Application for Approval as an Entity to Receive
Transferable Chinook Salmon PSC Allocation form and 15 minutes for the
Application for Transfer of Chinook Salmon PSC Allocations.
OMB Control No. 0648-0515
Public reporting burden per response is estimated to average 20
minutes for the eLandings Catcher/Processor or Mothership Production
Report.
This rule also contains new collection-of-information requirements
subject to the PRA. These information collections have been submitted
to and approved by the OMB.
OMB Control No. 0648-0609
Public reporting burden per response is estimated to average 30
minutes for the Groundfish/Halibut CDQ and Prohibited Species Quota
(PSQ) Transfer Request.
OMB Control No. 0648-0610
Public reporting burden per response is estimated to average 40
hours for the AFA CMCP; 5 minutes for the Inspection Request for
Inshore CMCP; 8 hours for the CMCP Addendum; 1 hour for the Electronic
Monitoring System; and 2 hours for the Inspection Request for
Electronic Monitoring System.
OMB Control No. 0648-0401
Public reporting burden per response is estimated to average 40
hours for the Application for Proposed Chinook Incentive Plan Agreement
(IPA); 8 hours for the Chinook IPA annual report; 40 hours for the
initial non-Chinook Inter-Cooperative Agreement (ICA); 8 hours for the
non-Chinook ICA annual report; 12 hours the annual AFA cooperative
report; 5 minutes for the IPA agent of service (this item will be
removed because it is part of the ICA); and 5 minutes for the ICA agent
of service (this item will be removed because it is part of the IPA).
Public reporting burden includes 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 e-mail 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.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: August 13, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator, for Regulatory Programs, National
Marine Fisheries Service.
0
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'',
0
a. Remove entries for ``679.28(b), (c), (d), and (e)'' and
``679.28(g)''; and
0
b. Add entries in alphanumeric order for ``679.21(f) and (g)''; and
``679.28(b), (c), (d), (e), (g), and (j)''.
The additions read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the
information collection Current OMB control No. (all numbers
requirement is located begin with 0648-)
------------------------------------------------------------------------
* * * * * * *
50 CFR
* * * * * * *
679.21(f) and (g)............ -0393 and -0608.
* * * * * * *
679.28(b), (c), (d), (e), -0610.
(g), and (j).
* * * * * * *
------------------------------------------------------------------------
[[Page 53056]]
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.;
Pub. L. 108-447.
0
4. In Sec. 679.2,
0
a. Remove the definitions for ``Bycatch rate'', ``Chinook Salmon
Savings Area of the BSAI'', ``Fishing month'', ``Observed or observed
data'', and ``Salmon bycatch reduction intercooperative agreement
(ICA)'';
0
b. In the definition for ``Fishing trip'', revise paragraph (1)
introductory text, paragraph (1)(i) introductory text, and paragraph
(1)(ii), and add new paragraph (6);
0
c. Add new definitions for ``Agent for service of process'', ``Chinook
salmon bycatch incentive plan agreement (IPA)'', ``Non-Chinook salmon
bycatch reduction intercooperative agreement (ICA)'', and ``Observed''.
The addition and revisions read as follows:
Sec. 679.2 Definitions.
* * * * *
Agent for service of process means, for purposes of Sec.
679.21(f), a person appointed by the members of an AFA inshore
cooperative, a CDQ group, or an entity representing the AFA catcher/
processor sector or the AFA mothership sector, who is authorized to
receive and respond to any legal process issued in the United States
with respect to all owners and operators of vessels that are members of
the inshore cooperative, the entity representing the catcher/processor
sector, the entity representing the mothership sector, or the entity
representing the cooperative or a CDQ group and owners of all vessels
directed fishing for pollock CDQ on behalf of that CDQ group.
* * * * *
Chinook salmon bycatch incentive plan agreement (IPA) is a
voluntary private contract, approved by NMFS under Sec. 679.21(f)(12),
that establishes incentives for participants to avoid Chinook salmon
bycatch while directed fishing for pollock in the Bering Sea subarea.
* * * * *
Fishing trip means:
(1) Retention requirements (MRA, IR/IU, and pollock roe stripping)
and R&R requirements under Sec. 679.5.
(i) Catcher/processors and motherships. An operator of a catcher/
processor or mothership processor vessel is engaged in a fishing trip
from the time the harvesting, receiving, or processing of groundfish is
begun or resumed in an area until any of the following events occur: *
* *
(ii) Catcher vessels. An operator of a catcher vessel is engaged in
a fishing trip from the time the harvesting of groundfish is begun
until the offload or transfer of all fish or fish product from that
vessel.
* * * * *
(6) For purposes of Sec. 679.7(d)(9) for CDQ groups and Sec.
679.7(k)(8)(ii) for AFA entities, the period beginning when a vessel
operator commences harvesting any pollock that will accrue against a
directed fishing allowance for pollock in the BS or against a pollock
CDQ allocation harvested in the BS and ending when the vessel operator
offloads or transfers any processed or unprocessed pollock from that
vessel.
* * * * *
Non-Chinook salmon bycatch reduction intercooperative agreement
(ICA) is a voluntary non-Chinook salmon bycatch avoidance agreement, as
described at Sec. 679.21(g) and approved by NMFS, for directed pollock
fisheries in the Bering Sea subarea.
* * * * *
Observed means observed by one or more observers (see subpart E of
this part).
* * * * *
0
5. In Sec. 679.5,
0
a. Revise paragraphs (c)(4)(i)(B), (c)(4)(ii)(A)(1), (c)(6)(ii)(A),
(e)(10)(iii)(M), (f)(1) introductory text, (f)(1)(iv),
(f)(2)(iii)(B)(1), (f)(7) introductory text, and paragraph (f)(7)(i);
and
0
b. Add paragraph (f)(1)(vii).
The revisions and additions read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(c) * * *
(4) * * *
(i) * * *
(B) Except as described in paragraph (f)(1)(iv) or (vii) of this
section, the operator of a catcher/processor that is required to have
an FFP under Sec. 679.4(b) and that is using trawl gear to harvest
groundfish is required to use a combination of catcher/processor trawl
gear DCPL and eLandings to record and report daily processor
identification information, catch-by-haul landings information,
groundfish production data, and groundfish and prohibited species
discard or disposition data. Under paragraph (f)(1)(vii) of this
section, the operators of AFA catcher/processors or any catcher/
processor harvesting pollock CDQ are required to use an ELB and no
longer report using a DCPL.
(ii) * * *
(A) * * *
Data Entry Time Limits, Catcher Vessel Trawl Gear
------------------------------------------------------------------------
Required information Time limit for recording
------------------------------------------------------------------------
(1) Haul number, time and date gear Within 2 hours after completion
set, time and date gear hauled, of gear retrieval, except that
beginning and end positions, CDQ group catcher vessels harvesting
number (if applicable), total pollock CDQ in the BS and
estimated hail weight for each haul. delivering unsorted codends to
a mothership must record CDQ
group number within 2 hours
after completion of weighing
all catch in the haul on the
mothership.
* * * * * * *
------------------------------------------------------------------------
* * * * *
(6) * * *
(ii) * * *
[[Page 53057]]
Data Entry Time Limits, Mothership
----------------------------------------------------------------------------------------------------------------
Record in
Required information --------------------------- Time limit for recording
DCPL eLandings
----------------------------------------------------------------------------------------------------------------
(A) All catcher vessel or buying station X ........... Within 2 hours after completion of
delivery information. receipt of each groundfish delivery,
except that the CDQ group number for
catcher vessels harvesting pollock
CDQ in the BS and delivering
unsorted codends to a mothership
must be recorded within 2 hours
after completion of weighing all
catch in the haul on the mothership.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
(10) * * *
(iii) * * *
(M) PSC numbers--(1) Non-AFA catcher/processors and all
motherships. Daily number of PSC animals (Pacific salmon, steelhead
trout, Pacific halibut, king crabs, and Tanner crabs) by species codes
and discard and disposition codes.
(2) AFA and CDQ catcher/processors. The operator of an AFA catcher/
processor or any catcher/processor harvesting pollock CDQ must enter
daily the number of non-salmon PSC animals (Pacific halibut, king
crabs, and Tanner crabs) by species codes and discard and disposition
codes. Salmon PSC animals are entered into the electronic logbook as
described in paragraphs (f)(1)(iv) and (v) of this section.
* * * * *
(f) * * *
(1) Responsibility. The operator of a vessel voluntarily using an
ELB must notify the Regional Administrator by fax at 907-586-7465 to
notify NMFS that the operator is using a NMFS-approved ELB instead of a
DFL or DCPL, prior to participating in any Federal fishery.
* * * * *
(iv) Catcher/processor trawl gear ELB. Except as described in
paragraph (f)(1)(vii) of this section, the operator of a catcher/
processor using trawl gear may use a combination of a NMFS-approved
catcher/processor trawl gear ELB and eLandings to record and report
groundfish information. In the ELB, the operator may enter processor
identification information and catch-by-haul information. In eLandings,
the operator must enter processor identification, groundfish production
data, and groundfish and prohibited species discard or disposition
data.
* * * * *
(vii) AFA and CDQ trawl catcher/processors. The operator of an AFA
catcher/processor or any catcher/processor harvesting pollock CDQ must
use a combination of NMFS-approved catcher/processor trawl gear ELB and
eLandings to record and report groundfish and PSC information. In the
ELB, the operator must enter processor identification information,
catch-by-haul information, and prohibited species discard or
disposition data for all salmon species in each haul. In eLandings, the
operator must enter processor identification, groundfish production
data, and groundfish and prohibited species discard or disposition data
for all prohibited species except salmon.
* * * * *
(2) * * *
(iii) * * *
(B) * * *
(1) Recording time limits. Record the haul number or set number,
time and date gear set, time and date gear hauled, begin and end
position, CDQ group number (if applicable), and hail weight for each
haul or set within 2 hours after completion of gear retrieval. If a
catcher/processor using trawl gear and required to weigh all catch on a
scale approved by NMFS, record the CDQ group number (if applicable)
within 2 hours after completion of weighing all of the catch in the
haul. The operator of a vessel must provide the information recorded in
the ELB to the observer or an authorized officer upon request at any
time after the specified deadlines.
* * * * *
(7) ELB data submission. The operator must transmit ELB data to
NMFS at the specified e-mail address in the following manner:
(i) Catcher/processors or motherships. Directly to NMFS as an e-
mail attachment or other NMFS-approved data transmission mechanism, by
2400 hours, A.l.t., each day to record the previous day's hauls.
* * * * *
0
6. In Sec. 679.7,
0
a. Remove and reserve paragraph (c)(1);
0
b. Remove paragraphs (d)(6) and (d)(9) through (d)(23);
0
c. Redesignate paragraph (d)(24) as (d)(6) and paragraph (d)(25) as
(d)(9);
0
d. Revise paragraphs (d)(7), (d)(8);
0
e. Revise paragraph (k)(3)(vi); and
0
f. Add paragraph (k)(8).
The additions and revisions read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(c) * * *
(1) [Reserved]
* * * * *
(d) * * *
(7) Catch Accounting--(i) General--(A) For the operator of a
catcher/processor using trawl gear or a mothership, to harvest or take
deliveries of CDQ or PSQ species without a valid scale inspection
report signed by an authorized scale inspector under Sec. 679.28(b)(2)
on board the vessel.
(B) For the operator of a vessel required to have an observer
sampling station described at Sec. 679.28(d), to harvest or take
deliveries of CDQ or PSQ species without a valid observer sampling
station inspection report issued by NMFS under Sec. 679.28(d)(8) on
board the vessel.
(C) For the manager of a shoreside processor or stationary floating
processor, or the manager or operator of a buying station that is
required elsewhere in this part to weigh catch on a scale approved by
the State of Alaska under Sec. 679.28(c), to fail to weigh catch on a
scale that meets the requirements of Sec. 679.28(c).
(D) For the operator of a catcher/processor or a catcher vessel
required to carry a level 2 observer, to combine catch from two or more
CDQ groups in the same haul or set.
(E) For the operator of a catcher vessel using trawl gear or any
vessel less than 60 ft (18.3 m) LOA that is groundfish CDQ fishing as
defined at Sec. 679.2, to discard any groundfish CDQ species or salmon
PSQ before it is delivered to a processor, unless discard of the
groundfish CDQ is required under other provisions or, in waters within
the State of Alaska, discard is required by laws of the State of
Alaska.
(F) For the operator of a vessel using trawl gear, to release CDQ
catch from
[[Page 53058]]
the codend before it is brought on board the vessel and weighed on a
scale approved by NMFS under Sec. 679.28(b) or delivered to a
processor. This includes, but is not limited to, ``codend dumping'' and
``codend bleeding.''
(G) For the operator of a catcher/processor using trawl gear or a
mothership, to sort, process, or discard CDQ or PSQ species before the
total catch is weighed on a scale that meets the requirements of Sec.
679.28(b), including the daily test requirements described at Sec.
679.28(b)(3).
(H) For a CDQ representative, to use methods other than those
approved by NMFS to determine the catch of CDQ and PSQ reported to NMFS
on the CDQ catch report.
(ii) Fixed gear sablefish--(A) For a CDQ group, to report catch of
sablefish CDQ for accrual against the fixed gear sablefish CDQ reserve,
if that sablefish CDQ was caught with fishing gear other than fixed
gear.
(B) For any person on a vessel using fixed gear that is fishing for
a CDQ group with an allocation of fixed gear sablefish CDQ, to discard
sablefish harvested with fixed gear unless retention of sablefish is
not authorized under Sec. 679.23(e)(4)(ii) or, in waters within the
State of Alaska, discard is required by laws of the State of Alaska.
(8) Prohibited species catch--(i) Crab--(A) Zone 1. For the
operator of an eligible vessel, to use trawl gear to harvest groundfish
CDQ in Zone 1 after the CDQ group's red king crab PSQ or C. bairdi
Tanner crab PSQ in Zone 1 is attained.
(B) Zone 2. For the operator of an eligible vessel, to use trawl
gear to harvest groundfish CDQ in Zone 2 after the CDQ group's PSQ for
C. bairdi Tanner crab in Zone 2 is attained.
(C) COBLZ. For the operator of an eligible vessel, to use trawl
gear to harvest groundfish CDQ in the C. opilio Bycatch Limitation Zone
after the CDQ group's PSQ for C. opilio Tanner crab is attained.
(ii) Salmon--(A) Discard of salmon. For any person, to discard
salmon from a catcher vessel, catcher/processor, mothership, shoreside
processor, or SFP or transfer or process any salmon under the PSD
Program at Sec. 679.26, if the salmon were taken incidental to a
directed fishery for pollock CDQ in the Bering Sea, until the number of
salmon has been determined by an observer and the collection of
scientific data or biological samples from the salmon has been
completed.
(B) Non-Chinook salmon. For the operator of an eligible vessel, to
use trawl gear to harvest pollock CDQ in the Chum Salmon Savings Area
between September 1 and October 14 after the CDQ group's non-Chinook
salmon PSQ is attained, unless the vessel is participating in a non-
Chinook salmon bycatch reduction ICA under Sec. 679.21(g).
(C) Chinook salmon--(1) Overages of Chinook salmon PSC allocations.
For a CDQ group, to exceed a Chinook salmon PSC allocation issued under
Sec. 679.21(f) as of June 25 for the A season allocation and as of
December 1 for the B season allocation.
(2) For the operator of a catcher vessel or catcher/processor, to
start a new fishing trip for pollock CDQ in the BS in the A season or
in the B season, if the CDQ group for which the vessel is fishing has
exceeded its Chinook salmon PSC allocation issued under Sec. 679.21(f)
for that season.
(3) For the operator of a catcher/processor or mothership, to catch
or process pollock CDQ in the BS without complying with the applicable
requirements of Sec. 679.28(j).
(4) For the operator of a catcher/processor or a mothership, to
begin sorting catch from a haul from a directed fishery for pollock CDQ
in the BS before the observer has completed counting the salmon and
collecting scientific data or biological samples from the previous
haul.
(5) For the operator of a catcher vessel, to deliver pollock CDQ to
a shoreside processor or stationary floating processor that does not
have a catch monitoring and control plan approved under Sec.
679.28(g).
(6) For the manager of a shoreside processor or stationary floating
processor, to begin sorting a pollock CDQ offload before the observer
has completed the count of salmon and the collection of scientific data
or biological samples from the previous offload.
* * * * *
(k) * * *
(3) * * *
(vi) Catch monitoring and control plan (CMCP)--(A) Take deliveries
or process groundfish delivered by a vessel engaged in directed fishing
for BSAI pollock without following an approved CMCP as described at
Sec. 679.28(g). A copy of the CMCP must be maintained on the premises
and made available to authorized officers or NMFS-authorized personnel
upon request.
(B) Allow sorting of fish at any location in the processing plant
other than those identified in the CMCP under Sec. 678.28(g)(7).
(C) Allow salmon of any species to pass beyond the last point where
sorting of fish occurs, as identified in the scale drawing of the
processing plant in the approved CMCP.
* * * * *
(8) Salmon bycatch--(i) Discard of salmon. For any person, to
discard any salmon from a catcher vessel, catcher/processor,
mothership, or inshore processor, or transfer or process any salmon
under the PSD Program at Sec. 679.26, if the salmon were taken
incidental to a directed fishery for pollock in the BS before the
number of salmon has been determined by an observer and the collection
of scientific data or biological samples from the salmon has been
completed.
(ii) Catcher/processors and motherships. For the operator of a
catcher/processor or a mothership, to begin sorting catch from a haul
from a directed fishery for pollock in the BS before the observer has
completed counting the salmon and collecting scientific data or
biological samples from the previous haul.
(iii) Shoreside processors and stationary floating processors. For
the manager of a shoreside processor or stationary floating processor
to begin sorting a new BS pollock offload before the observer has
completed the count of salmon and the collection of scientific data or
biological samples from the previous offload.
(iv) Overages of Chinook salmon PSC allocations--(A) For an inshore
cooperative, the entity representing the AFA catcher/processor sector,
or the entity representing the AFA mothership sector, to exceed a
Chinook salmon PSC allocation issued under Sec. 679.21(f) as of June
25 for the A season allocation and as of December 1 for the B season
allocation.
(B) For a catcher vessel or catcher/processor, to start a fishing
trip for pollock in the BS in the A season or in the B season if the
vessel is fishing under a transferable Chinook salmon PSC allocation
issued to an inshore cooperative, the entity representing the AFA
catcher/processor sector, or the entity representing the AFA mothership
sector under Sec. 679.21(f) and the inshore cooperative or entity has
exceeded its Chinook salmon PSC allocation for that season.
* * * * *
0
7. In Sec. 679.21,
0
a. Remove and reserve paragraph (a);
0
b. Revise paragraphs (b)(2)(ii), (b)(3), (c), (e)(1)(vi),
(e)(3)(i)(A)(3)(i), (e)(7)(viii), (e)(7)(ix), and (g); and
0
c. Add paragraphs (b)(6) and (f).
The revisions and additions read as follows:
[[Page 53059]]
Sec. 679.21 Prohibited species bycatch management.
(a) [Reserved]
(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 pollock fisheries
under paragraph (c) of this section and 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)
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.
* * * * *
(6) Addresses. Unless otherwise specified, submit information
required under this section to NMFS as follows: by mail to the Regional
Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802; by courier to
the Office of the Regional Administrator, 709 West 9th St., Juneau, AK
99801; or by fax to 907-586-7465. Forms are available on the NMFS
Alaska Region Web site (http://alaskafisheries.noaa.gov/).
(c) Salmon taken in the BS pollock fisheries. Regulations in this
paragraph apply to vessels directed fishing for pollock in the BS,
including pollock CDQ, and processors taking deliveries from these
vessels.
(1) Salmon discard. 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 directed fishery for pollock in the BS,
until the number of salmon has been determined by the observer and the
observer's collection of any scientific data or biological samples from
the salmon has been completed.
(2) Salmon retention and storage-- (i) Operators of catcher/
processors or motherships must:
(A) Sort and transport all salmon bycatch from each haul to an
approved storage location adjacent to the observer sampling station
that allows an observer free and unobstructed access to the salmon (see
Sec. 679.28(d)(2)(i) and (d)(7)). The salmon storage location must
remain in view of the observer from the observer sampling station at
all times during the sorting of the haul.
(B) If, at any point during sorting of the haul or delivery for
salmon, the salmon are too numerous to be contained in the salmon
storage location, all sorting must cease and the observer must be given
the opportunity to count the salmon in the storage location and collect
scientific data or biological samples. Once the observer has completed
all counting and sampling duties for the counted salmon, the salmon
must be removed by vessel personnel from the approved storage location,
in the presence of the observer.
(C) Before sorting of the next haul may begin, the observer must be
given the opportunity to complete the count of salmon and the
collection of scientific data or biological samples from the previous
haul.
(D) Ensure no salmon of any species pass the observer sample
collection point, as identified in the scale drawing of the observer
sample station.
(ii) Operators of vessels delivering to shoreside processors or
stationary floating processors must:
(A) Store in a refrigerated saltwater tank all salmon taken as
bycatch in trawl operations.
(B) Deliver all salmon to the processor receiving the vessel's BS
pollock catch.
(iii) Shoreside processors or stationary floating processors must:
(A) Comply with the requirements in Sec. 679.28(g)(7)(vii) for the
receipt, sorting, and storage of salmon from deliveries of catch from
the BS pollock fishery.
(B) Ensure no salmon of any species pass beyond the last point
where sorting of fish occurs, as identified in the scale drawing of the
plant in the CMCP.
(C) Sort and transport all salmon of any species to the salmon
storage container identified in the CMCP (see Sec. 679.28(g)(7)(vi)(C)
and (x)(F)). The salmon must remain in that salmon storage container
and within the view of the observer at all times during the offload.
(D) If, at any point during the offload, salmon are too numerous to
be contained in the salmon storage container, the offload and all
sorting must cease and the observer must be given the opportunity to
count the salmon and collect scientific data or biological samples. The
counted salmon then must be removed from the area by plant personnel in
the presence of the observer.
(E) At the completion of the offload, the observer must be given
the opportunity to count the salmon and collect scientific data or
biological samples.
(F) Before sorting of the next offload of catch from the BS pollock
fishery may begin, the observer must be given the opportunity to
complete the count of salmon and the collection of scientific data or
biological samples from the previous offload of catch from the BS
pollock fishery.
(3) Assignment of crew to assist observer. Operators of vessels and
managers of shoreside processors and SFPs that are required to retain
salmon under paragraph (c)(1) of this section must designate and
identify to the observer aboard the vessel, or at the shoreside
processor or SFP, a crew person or employee responsible for ensuring
all sorting, retention, and storage of salmon occurs according to the
requirements of (c)(2) of this section.
(4) Discard of salmon. Except for salmon under the PSD Program at
Sec. 679.26, all salmon must be returned to the sea as soon as is
practicable, following notification by an observer that the number of
salmon has been determined and the collection of scientific data or
biological samples has been completed.
* * * * *
(e) * * *
(1) * * *
(vi) BS Chinook salmon. See paragraph (f) of this section.
* * * * *
(3) * * *
(i) * * *
(A) * * *
(3) * * *
(i) Chinook salmon. For BS Chinook salmon, see paragraph (f) of
this section. For AI Chinook salmon, 7.5 percent of the PSC limit set
forth in paragraph (e)(1)(viii) of this section.
* * * * *
(7) * * *
(viii) AI Chinook salmon. If, during the fishing year, the Regional
Administrator determines that catch of Chinook salmon by vessels using
trawl gear while directed fishing for pollock in the AI will reach the
annual limit of 700 Chinook salmon, as identified in paragraph
(e)(1)(viii) of this section, NMFS, by notification in the Federal
Register will close the AI Chinook Salmon Savings Area, as defined in
Figure 8 to this part, to directed fishing for pollock with trawl gear
on the following dates:
(A) From the effective date of the closure until April 15, and from
September 1 through December 31, if the Regional Administrator
determines that the annual limit of AI Chinook salmon will be attained
before April 15.
(B) From September 1 through December 31, if the Regional
Administrator determines that the annual limit of AI Chinook salmon
will be attained after April 15.
(ix) Exemptions. Trawl vessels participating in directed fishing
for
[[Page 53060]]
pollock and operating under a non-Chinook salmon bycatch reduction ICA
approved by NMFS under paragraph (g) of this section are exempt from
closures in the Chum Salmon Savings Area described at paragraph
(e)(7)(vii) of this section. See also Sec. 679.22(a)(10) and Figure 9
to part 679.
* * * * *
(f) BS Chinook Salmon Bycatch Management--(1) Applicability. This
paragraph contains regulations governing the bycatch of Chinook salmon
in the BS pollock fishery.
(2) BS Chinook salmon prohibited species catch (PSC) limit. Each
year, NMFS will allocate to AFA sectors, listed in paragraph (f)(3)(ii)
of this section, a portion of either the 47,591 Chinook salmon PSC
limit or the 60,000 Chinook salmon PSC limit.
(i) An AFA sector will receive a portion of the 47,591 Chinook
salmon PSC limit if:
(A) No Chinook salmon bycatch incentive plan agreement (IPA) is
approved by NMFS under paragraph (f)(12) of this section; or
(B) That AFA sector has exceeded its performance standard under
paragraph (f)(6) of this section.
(ii) An AFA sector will receive a portion of the 60,000 Chinook
salmon PSC limit if:
(A) At least one IPA is approved by NMFS under paragraph (f)(12) of
this section; and
(B) That AFA sector has not exceeded its performance standard under
paragraph (f)(6) of this section.
(3) Allocations of the BS Chinook salmon PSC limits--(i) Seasonal
apportionment. NMFS will apportion the BS Chinook salmon PSC limits
annually 70 percent to the A season and 30 percent to the B season,
which are described in Sec. 679.23(e)(2)(i) and (ii).
(ii) AFA sectors. Each year, NMFS will make allocations of the
applicable BS Chinook salmon PSC limit to the following four AFA
sectors:
------------------------------------------------------------------------
AFA sector: Eligible participants are:
------------------------------------------------------------------------
(A) Catcher/processor (C/P).. AFA catcher/processors and AFA catcher
vessels delivering to AFA catcher/
processors, all of which are permitted
under Sec. 679.4(l)(2) and Sec.
679.4(l)(3)(i)(A), respectively.
(B) Mothership............... AFA catcher vessels harvesting pollock
for processing by AFA motherships, all
of which are permitted under Sec.
679.4(l)(3)(i)(B) and Sec.
679.4(l)(4), respectively.
(C) Inshore.................. AFA catcher vessels harvesting pollock
for processing by AFA inshore
processors, all of which are permitted
under Sec. 679.4(l)(3)(i)(C).
(D) CDQ Program.............. The six CDQ groups authorized under
section 305(i)(1)(D) of the Magnuson-
Stevens Act to participate in the CDQ
Program.
------------------------------------------------------------------------
(iii) Allocations to each AFA sector. NMFS will allocate the BS
Chinook salmon PSC limits to each AFA sector as follows:
(A) If a sector is managed under the 60,000 Chinook salmon PSC
limit, the maximum amount of Chinook salmon PSC allocated to each
sector in each season and annually is:
--------------------------------------------------------------------------------------------------------------------------------------------------------
A season B season Annual total
-----------------------------------------------------------------------------------------------
AFA sector of of of
% Allocation Chinook % Allocation Chinook % Allocation Chinook
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) C/P................................................. 32.9 13,818 17.9 3,222 28.4 17,040
(2) Mothership.......................................... 8.0 3,360 7.3 1,314 7.8 4,674
(3) Inshore............................................. 49.8 20,916 69.3 12,474 55.6 33,390
(4) CDQ Program......................................... 9.3 3,906 5.5 990 8.2 4,896
--------------------------------------------------------------------------------------------------------------------------------------------------------
(B) If the sector is managed under the 47,591 Chinook salmon PSC
limit, the sector will be allocated the following amount of Chinook
salmon PSC in each season and annually:
--------------------------------------------------------------------------------------------------------------------------------------------------------
A season B season Annual total
-----------------------------------------------------------------------------------------------
AFA sector of of of
% Allocation Chinook % Allocation Chinook % Allocation Chinook
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) C/P................................................. 32.9 10,960 17.9 2,556 28.4 13,516
(2) Mothership.......................................... 8.0 2,665 7.3 1,042 7.8 3,707
(3) Inshore............................................. 49.8 16,591 69.3 9,894 55.6 26,485
(4) CDQ Program......................................... 9.3 3,098 5.5 785 8.2 3,883
--------------------------------------------------------------------------------------------------------------------------------------------------------
(iv) Allocations to the AFA catcher/processor and mothership
sectors--(A) NMFS will issue transferable Chinook salmon PSC
allocations under paragraph (f)(3)(iii)(A) or (B) of this section to
entities representing the AFA catcher/processor sector and the AFA
mothership sector if these sectors meet the requirements of paragraph
(f)(8) of this section.
(B) If no entity is approved by NMFS to represent the AFA catcher/
processor sector or the AFA mothership sector, then NMFS will manage
that sector under a non-transferable Chinook salmon PSC allocation
under paragraph (f)(10) of this section.
(v) Allocations to inshore cooperatives and the AFA inshore open
access fishery. NMFS will further allocate the inshore sector's Chinook
salmon PSC allocation under paragraph (f)(3)(iii)(A)(3) or (B)(3) of
this section among the inshore cooperatives and the inshore open access
fishery based on the percentage allocations of pollock to each inshore
cooperative under Sec. 679.62(a). NMFS will issue transferable Chinook
salmon PSC allocations to inshore cooperatives. Any Chinook salmon PSC
allocated to the inshore open access fishery will be as a non-
transferable
[[Page 53061]]
allocation managed by NMFS under the requirements of paragraph (f)(10)
of this section.
(vi) Allocations to the CDQ Program. NMFS will further allocate the
Chinook salmon PSC allocation to the CDQ Program under paragraph
(f)(3)(iii)(A)(4) or (B)(4) of this section among the six CDQ groups
based on each CDQ group's percentage of the CDQ Program pollock
allocation in Column B of Table 47d to this part. NMFS will issue
transferable Chinook salmon PSC allocations to CDQ groups.
(vii) Accrual of Chinook salmon bycatch to specific PSC
allocations.
------------------------------------------------------------------------
Then all Chinook salmon
If a Chinook salmon PSC allocation is: bycatch:
------------------------------------------------------------------------
(A) A transferable allocation to a By any vessel fishing under a
sector-level entity, inshore transferable allocation will
cooperative, or CDQ group under accrue against the allocation
paragraph (f)(8) of this section. to the entity representing
that vessel.
(B) A non-transferable allocation to a By any vessel fishing under a
sector or the inshore open access non-transferable allocation
fishery under paragraph (f)(10) of will accrue against the
this section. allocation established for the
sector or inshore open access
fishery, whichever is
applicable.
(C) The opt-out allocation under By any vessel fishing under the
paragraph (f)(5) of this section. opt-out allocation will accrue
against the opt-out
allocation.
------------------------------------------------------------------------
(viii) Public release of Chinook salmon PSC information. For each
year, NMFS will release to the public and publish on the NMFS Alaska
Region Web site (http://alaskafisheries.noaa.gov/):
(A) The Chinook salmon PSC allocations for each entity receiving a
transferable allocation;
(B) The non-transferable Chinook salmon PSC allocations;
(C) The vessels fishing under each transferable or non-transferable
allocation;
(D) The amount of Chinook salmon bycatch that accrues towards each
transferable or non-transferable allocation; and
(E) Any changes to these allocations due to transfers under
paragraph (f)(9) of this section, rollovers under paragraph (f)(11) of
this section, and deductions from the B season non-transferable
allocations under paragraphs (f)(5)(v) or (f)(10)(iii) of this section.
(4) Reduction in allocations of the 60,000 Chinook salmon PSC
limit--(i) Reduction in sector allocations. NMFS will reduce the
seasonal allocation of the 60,000 Chinook salmon PSC limit to the
catcher/processor sector, the mothership sector, the inshore sector, or
the CDQ Program under paragraph (f)(3)(iii)(A) of this section, if the
owner of any permitted AFA vessel in that sector, or any CDQ group,
does not participate in an approved IPA under paragraph (f)(12) of this
section. The amount of Chinook salmon subtracted from each sector's
allocation for those not participating in an approved IPA is calculated
as follows:
----------------------------------------------------------------------------------------------------------------
Reduce the A season Reduce the B season
allocation by the allocation by the
sum of the amount sum of the amount
of Chinook salmon of Chinook salmon
For each sector: associated with associated with
each vessel or CDQ each vessel or CDQ
group not group not
participating in an participating in an
IPA: IPA:
----------------------------------------------------------------------------------------------------------------
(A) Catcher/processor............ From Column E in + From Column F in = The annual amount
Table 47a to this Table 47a to this of Chinook salmon
part. part. subtracted from
each sector's
Chinook salmon PSC
allocation listed
at paragraph
(f)(3)(iii)(A) of
this section.
(B) Mothership................... From Column E in ...... From Column F in
Table 47b to this Table 47b to this
part. part.
(C) Inshore...................... From Column E in ...... From Column F in
Table 47c to this Table 47c to this
part. part.
(D) CDQ Program.................. From Column C in ...... From Column D in
Table 47d to this Table 43d to this
part. part.
----------------------------------------------------------------------------------------------------------------
(ii) Adjustments to the inshore sector and inshore cooperative
allocations--(A) If some members of an inshore cooperative do not
participate in an approved IPA, NMFS will only reduce the allocation to
the cooperative to which those vessels belong, or the inshore open
access fishery.
(B) If all members of an inshore cooperative do not participate in
an approved IPA, the amount of Chinook salmon that remains in the
inshore sector's allocation, after subtracting the amount in paragraph
(f)(4)(i)(C) of this section for the non-participating inshore
cooperative, will be reallocated among the inshore cooperatives
participating in an approved IPA based on the proportion each
participating cooperative represents of the Chinook salmon PSC
initially allocated among the participating inshore cooperatives that
year.
(iii) Adjustment to CDQ group allocations. If a CDQ group does not
participate in an approved IPA, the amount of Chinook salmon that
remains in the CDQ Program's allocation, after subtracting the amount
in paragraph (f)(4)(i)(D) of this section for the non-participating CDQ
group, will be reallocated among the CDQ groups participating in an
approved IPA based on the proportion each participating CDQ group
represents of the Chinook salmon PSC initially allocated among the
participating CDQ groups that year.
(iv) All members of a sector do not participate in an approved IPA.
If all members of a sector do not participate in an approved IPA, the
amount of Chinook salmon that remains after subtracting the amount in
paragraph (f)(4)(i) of this section for the non-participating sector
will not be reallocated among the sectors that do have members
participating in an approved IPA. This portion of the 60,000 PSC limit
will remain unallocated for that year.
[[Page 53062]]
(5) Chinook salmon PSC opt-out allocation. The following table
describes requirements for the opt-out allocation:
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(i) What is the amount of Chinook salmon PSC that The opt-out allocation will equal the sum of the Chinook
will be allocated to the opt-out allocation in the salmon PSC deducted under paragraph (f)(4)(i) of this
A season and the B season? section from the seasonal allocations of each sector with
members not participating in an approved IPA.
(ii) Which participants will be managed under the Any AFA permitted vessel or any CDQ group that is a member
opt-out allocation? of a sector eligible under paragraph (f)(2)(ii) of this
section to receive allocations of the 60,000 PSC limit,
but that is not participating in an approved IPA.
(iii) What Chinook salmon bycatch will accrue All Chinook salmon bycatch by participants under paragraph
against the opt-out allocation? (f)(2)(ii) of this section.
(iv) How will the opt-out allocation be managed? All participants under paragraph (f)(2)(ii) of this
section will be managed as a group under the seasonal opt-
out allocations. If the Regional Administrator determines
that the seasonal opt-out allocation will be reached,
NMFS will publish a notice in the Federal Register
closing directed fishing for pollock in the BS, for the
remainder of the season, for all vessels fishing under
the opt-out allocation.
(v) What will happen if Chinook salmon bycatch by NMFS will deduct from the B season opt-out allocation any
vessels fishing under the opt-out allocation Chinook salmon bycatch in the A season that exceeds the A
exceeds the amount allocated to the A season opt- season opt-out allocation.
out allocation?
(vi) What will happen if Chinook salmon bycatch by If Chinook salmon bycatch by vessels fishing under the opt-
vessels fishing under the opt-out allocation is out allocation in the A season is less than the amount
less than the amount allocated to the A season opt- allocated to the opt-out allocation in the A season, this
out allocation? amount of Chinook salmon will not be added to the B
season opt-out allocation.
(vii) Is Chinook salmon PSC allocated to the opt-out No. Chinook salmon PSC allocated to the opt-out allocation
allocation transferable? is not transferable.
----------------------------------------------------------------------------------------------------------------
(6) Chinook salmon bycatch performance standard. If the total
annual Chinook salmon bycatch by the members of a sector participating
in an approved IPA is greater than that sector's annual threshold
amount of Chinook salmon in any three of seven consecutive years, that
sector will receive an allocation of Chinook salmon under the 47,591
PSC limit in all future years.
(i) Annual threshold amount. Prior to each year, NMFS will
calculate each sector's annual threshold amount. NMFS will post the
annual threshold amount for each sector on the NMFS Alaska Region Web
site (http://alaskafisheries.noaa.gov/). At the end of each year, NMFS
will evaluate the Chinook salmon bycatch by all IPA participants in
each sector against that sector's annual threshold amount.
(ii) Calculation of the annual threshold amount. A sector's annual
threshold amount is the annual number of Chinook salmon that would be
allocated to that sector under the 47,591 Chinook salmon PSC limit, as
shown in the table in paragraph (f)(3)(iii)(B) of this section. If any
vessels in a sector do not participate in an approved IPA, NMFS will
reduce that sector's annual threshold amount by the number of Chinook
salmon associated with each vessel not participating in an approved
IPA. If any CDQ groups do not participate in an approved IPA, NMFS will
reduce the CDQ Program's annual threshold amount by the number of
Chinook salmon associated with each CDQ group not participating in an
approved IPA. NMFS will subtract the following numbers of Chinook
salmon from each sector's annual threshold amount for vessels or CDQ
groups not participating in an approved IPA:
------------------------------------------------------------------------
The amount of
Chinook salmon
associated with each
For each sector: vessel or CDQ group
not participating in
an IPA:
------------------------------------------------------------------------
(A) Catcher/processor............................. From Column G of
Table 47a to this
part;
(B) Mothership.................................... From Column G of
Table 47b to this
part;
(C) Inshore....................................... From Column G of
Table 47c to this
part;
(D) CDQ Program................................... From Column E of
Table 47d to this
part.
------------------------------------------------------------------------
(iii) If NMFS determines that a sector has exceeded its
performance standard by exceeding its annual threshold amount in any
three of seven consecutive years, NMFS will issue a notification in the
Federal Register that the sector has exceeded its performance standard
and that NMFS will allocate to that sector the amount of Chinook salmon
in the table in paragraph (f)(3)(iii)(B) of this section in all
subsequent years. All members of the affected sector will fish under
this lower allocation regardless of whether a vessel or CDQ group
within that sector participates in an approved IPA.
(7) Replacement vessels. If an AFA permitted vessel listed in
Tables 47a through 47c to this part is no longer eligible to
participate in the BS pollock fishery or if a vessel replaces a
currently eligible vessel, the portion and number of Chinook salmon
associated with that vessel in Tables 47a through 47c to this part will
be assigned to the replacement vessel or distributed among other
eligible vessels in the sector based on the procedures in the law,
regulation, or private contract that accomplishes the vessel removal or
replacement action until Tables 47a through 47c to this part can be
revised as necessary.
(8) Entities eligible to receive transferable Chinook salmon PSC
allocations--(i) NMFS will issue transferable Chinook salmon PSC
allocations to the following entities, if these entities meet all of
the applicable requirements of this part.
(A) Inshore cooperatives. NMFS will issue transferable Chinook
salmon PSC allocations to the inshore cooperatives permitted annually
under Sec. 679.4(l)(6). The representative and agent for service of
process (see definition at Sec. 679.2) for an inshore cooperative is
the
[[Page 53063]]
cooperative representative identified in the application for an inshore
cooperative fishing permit issued under Sec. 679.4(l)(6), unless the
inshore cooperative representative notifies NMFS in writing that a
different person will act as its agent for service of process for
purposes of this paragraph (f). An inshore cooperative is not required
to submit an application under paragraph (f)(8)(ii) of this section to
receive a transferable Chinook salmon PSC allocation.
(B) CDQ groups. NMFS will issue transferable Chinook salmon PSC
allocations to the CDQ groups. The representative and agent for service
of process for a CDQ group is the chief executive officer of the CDQ
group, unless the chief executive officer notifies NMFS in writing that
a different person will act as its agent for service of process. A CDQ
group is not required to submit an application under paragraph
(f)(8)(ii) of this section to receive a transferable Chinook salmon PSC
allocation.
(C) Entity representing the AFA catcher/processor sector. NMFS will
authorize only one entity to represent the catcher/processor sector for
purposes of receiving and managing transferable Chinook salmon PSC
allocations on behalf of the catcher/processors eligible to fish under
transferable Chinook salmon PSC allocations.
(1) NMFS will issue transferable Chinook salmon allocations under
the 60,000 Chinook salmon PSC limit to the entity representing the
catcher/processor sector if that entity represents all of the owners of
AFA permitted vessels in this sector that are participants in an
approved IPA.
(2) NMFS will issue transferable Chinook salmon allocations under
the 47,591 Chinook salmon PSC limit to an entity representing the
catcher/processor sector if that entity represents all of the owners of
AFA permitted vessels in this sector.
(D) Entity representing the AFA mothership sector. NMFS will
authorize only one entity to represent the mothership sector for
purposes of receiving and managing transferable Chinook salmon PSC
allocations on behalf of the vessels eligible to fish under
transferable Chinook salmon PSC allocations.
(1) NMFS will issue transferable Chinook salmon allocations under
the 60,000 Chinook salmon PSC limit to an entity representing the
mothership sector if that entity represents all of the owners of AFA
permitted vessels in this sector that are participants in an approved
IPA.
(2) NMFS will issue transferable Chinook salmon allocations under
the 47,591 Chinook salmon PSC limit to an entity representing the
mothership sector if that entity represents all of the owners of AFA
permitted vessels in this sector.
(ii) Request for approval as an entity eligible to receive
transferable Chinook salmon PSC allocations. A representative of an
entity representing the catcher/processor sector or the mothership
sector may request approval by NMFS to receive transferable Chinook
salmon PSC allocations on behalf of the members of the sector. The
application must be submitted to NMFS at the address in paragraph
(b)(6) of this section. A completed application consists of the
application form and a contract, described below.
(A) Application form. The applicant must submit a paper copy of the
application form with all information fields accurately filled in,
including the affidavit affirming that each eligible vessel owner, from
whom the applicant received written notification requesting to join the
sector entity, has been allowed to join the sector entity subject to
the same terms and conditions that have been agreed on by, and are
applicable to, all other parties to the sector entity. The application
form is available on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/) or from NMFS at the address or phone number
in paragraph (b)(6) of this section.
(B) Contract. A contract containing the following information must
be attached to the completed application form:
(1) Information that documents that all vessel owners party to the
contract agree that the entity, the entity's representative, and the
entity's agent for service of process named in the application form
represent them for purposes of receiving transferable Chinook salmon
PSC allocations.
(2) A statement that the entity's representative and agent for
service of process are authorized to act on behalf of the vessel owners
party to the contract.
(3) Certification of applicant. Signatures, printed names, and date
of signature for the owners of each AFA permitted vessel identified in
the application.
(C) Contract duration. Once submitted, the contract attached to the
application is valid until amended or terminated by the parties to the
contract.
(D) Deadline. An application and contract must be received by NMFS
no later than 1700 hours, A.l.t., on October 1 of the year prior to the
year for which the Chinook salmon PSC allocations are effective.
(E) Approval. If more than one entity application is submitted to
NMFS, NMFS will approve the application for the entity that represents
the most eligible vessel owners in the sector.
(F) Amendments to the sector entity.
(1) An amendment to sector entity contract, with no change in
entity participants, may be submitted to NMFS at any time and is
effective upon written notification of approval by NMFS to the entity
representative. To amend a contract, the entity representative must
submit a complete application, as described in paragraph (f)(8)(ii) of
this section.
(2) To make additions or deletions to the vessel owners represented
by the entity for the next year, the entity representative must submit
a complete application, as described in paragraph (f)(8)(ii) of this
section, by December 1.
(iii) Entity Representative. (A) The entity's representative must--
(1) Act as the primary contact person for NMFS on issues relating
to the operation of the entity;
(2) Submit on behalf of the entity any applications required for
the entity to receive a transferable Chinook salmon PSC allocation and
to transfer some or all of that allocation to and from other entities
eligible to receive transfers of Chinook salmon PSC allocations;
(3) Ensure that an agent for service of process is designated by
the entity; and
(4) Ensure that NMFS is notified if a substitute agent for service
of process is designated. Notification must include the name, address,
and telephone number of the substitute agent in the event the
previously designated agent is no longer capable of accepting service
on behalf of the entity or its members within the 5-year period from
the time the agent is identified in the application to NMFS under
paragraph (f)(8)(ii) of this section.
(B) All vessel owners that are members of an inshore cooperative,
or members of the entity that represents the catcher/processor sector
or the mothership sector, may authorize the entity representative to
sign a proposed IPA submitted to NMFS, under paragraph (f)(12) of this
section, on behalf of the vessel owners that intend to participate in
that IPA. This authorization must be included in the contract submitted
to NMFS, under paragraph (f)(8)(ii)(B) of this section, for the sector-
level entities and in the contract submitted annually to NMFS by
inshore cooperatives under Sec. 679.61(d).
[[Page 53064]]
(iv) Agent for service of process. The entity's agent for service
of process must--
(A) Be authorized to receive and respond to any legal process
issued in the United States with respect to all owners and operators of
vessels that are members of an entity receiving a transferable
allocation of Chinook salmon PSC or with respect to a CDQ group.
Service on or notice to the entity's appointed agent constitutes
service on or notice to all members of the entity.
(B) Be capable of accepting service on behalf of the entity until
December 31 of the year five years after the calendar year for which
the entity notified the Regional Administrator of the identity of the
agent.
(v) Absent a catcher/processor sector or mothership sector entity.
If the catcher/processor sector or the mothership sector does not form
an entity to receive a transferable allocation of Chinook salmon PSC,
the sector will be managed by NMFS under a non-transferable allocation
of Chinook salmon PSC under paragraph (f)(10) of this section.
(9) Transfers of Chinook salmon PSC--(i) A Chinook salmon PSC
allocation issued to eligible entities under paragraph (f)(8)(i) of
this section may be transferred to any other entity receiving a
transferable allocation of Chinook salmon PSC by submitting to NMFS an
application for transfer described in paragraph (f)(9)(iii) of this
section. Transfers of Chinook salmon PSC allocations among eligible
entities are subject to the following restrictions:
(A) Entities receiving transferable allocations under the 60,000
PSC limit may only transfer to and from other entities receiving
allocations under the 60,000 PSC limit.
(B) Entities receiving transferable allocations under the 47,591
PSC limit may only transfer to and from other entities receiving
allocations under the 47,591 PSC limit.
(C) Chinook salmon PSC allocations may not be transferred between
seasons.
(ii) Post-delivery transfers. If the Chinook salmon bycatch by an
entity exceeds its seasonal allocation, the entity may receive
transfers of Chinook salmon PSC to cover overages for that season. An
entity may conduct transfers to cover an overage that results from
Chinook salmon bycatch from any fishing trip by a vessel fishing on
behalf of that entity that was completed or is in progress at the time
the entity's allocation is first exceeded. Under Sec.
679.7(d)(8)(ii)(C)(2) and (k)(8)(iv)(B), vessels fishing on behalf of
an entity that has exceeded its Chinook salmon PSC allocation for a
season may not start a new fishing trip for pollock in the BS on behalf
of that same entity for the remainder of that season.
(iii) Application for transfer of Chinook salmon PSC allocations--
(A) Completed application. NMFS will process a request for transfer of
Chinook salmon PSC provided that a paper or electronic application is
completed, with all information fields accurately filled in.
Application forms are available on the NMFS Alaska Region Web site
(http://alaskafisheries.noaa.gov/) or from NMFS at the address or phone
number in paragraph (b)(6) of this section.
(B) Certification of transferor-- (1) Non-electronic submittal. The
transferor's designated representative must sign and date the
application certifying that all information is true, correct, and
complete. The transferor's designated representative must submit the
paper application as indicated on the application.
(2) Electronic submittal. The transferor's designated entity
representative must log onto the NMFS online services system and create
a transfer request as indicated on the computer screen. By using the
transferor's NMFS ID, password, and Transfer Key, and submitting the
transfer request, the designated representative certifies that all
information is true, correct, and complete.
(C) Certification of transferee-- (1) Non-electronic submittal. The
transferee's designated representative must sign and date the
application certifying that all information is true, correct, and
complete.
(2) Electronic submittal. The transferee's designated
representative must log onto the NMFS online services system and accept
the transfer request as indicated on the computer screen. By using the
transferee's NMFS ID, password, and Transfer Key, the designated
representative certifies that all information is true, correct, and
complete.
(D) Deadline. NMFS will not approve an application for transfer of
Chinook salmon PSC after June 25 for the A season and after December 1
for the B season.
(10) Non-transferable Chinook salmon PSC allocations--(i) All
vessels belonging to a sector that is ineligible to receive
transferable allocations under paragraph (f)(8) of this section, any
catcher vessels participating in an inshore open access fishery, and
all vessels fishing under the opt-out allocation under paragraph (f)(5)
of this section will fish under specific non-transferable Chinook
salmon PSC allocations.
(ii) All vessels fishing under a non-transferable Chinook salmon
PSC allocation, including vessels fishing on behalf of a CDQ group,
will be managed together by NMFS under that non-transferable
allocation. If, during the fishing year, the Regional Administrator
determines that a seasonal non-transferable Chinook salmon PSC
allocation will be reached, NMFS will publish a notice in the Federal
Register closing the BS to directed fishing for pollock by those
vessels fishing under that non-transferable allocation for the
remainder of the season or for the remainder of the year.
(iii) For each non-transferable Chinook salmon PSC allocation, NMFS
will deduct from the B season allocation any amount of Chinook salmon
bycatch in the A season that exceeds the amount available under the A
season allocation.
(11) Rollover of unused A season allocation--(i) Rollovers of
transferable allocations. NMFS will add any Chinook salmon PSC
allocation remaining at the end of the A season, after any transfers
under paragraph (f)(9)(ii) of this section, to an entity's B season
allocation.
(ii) Rollover of non-transferable allocations. For a non-
transferable allocation for the mothership sector, catcher/processor
sector, or an inshore open access fishery, NMFS will add any Chinook
salmon PSC remaining in that non-transferable allocation at the end of
the A season to that B season non-transferable allocation.
(12) Chinook salmon bycatch incentive plan agreements (IPAs)-- (i)
Minimum participation requirements. More than one IPA may be approved
by NMFS. Each IPA must have participants that represent the following:
(A) Minimum percent pollock. Parties to an IPA must collectively
represent at least 9 percent of the BS pollock quota. The percentage of
pollock attributed to each sector, AFA permitted vessel, and CDQ group
is as follows:
[[Page 53065]]
----------------------------------------------------------------------------------------------------------------
The percent of
BS pollock quota Percent of BS pollock quota used to calculate
For each sector attributed to IPA minimum participation for each AFA
each sector permitted vessel and CDQ group is the value in
----------------------------------------------------------------------------------------------------------------
(1) Catcher/processor........................ 36 Column H in Table 47a to this part.
(2) Mothership............................... 9 Column H in Table 47b to this part.
(3) Inshore.................................. 45 Column H in Table 47c to this part.
(4) CDQ Program.............................. 10 Column F in Table 47d to this part.
----------------------------------------------------------------------------------------------------------------
(B) Minimum number of unaffiliated AFA entities. Parties to an IPA
must represent any combination of two or more CDQ groups or
corporations, partnerships, or individuals who own AFA permitted
vessels and are not affiliated, as affiliation is defined for purposes
of AFA entities in Sec. 679.2.
(ii) Membership in an IPA.--(A) No vessel owner or CDQ group is
required to join an IPA.
(B) For a vessel owner in the catcher/processor sector or
mothership sector to join an IPA, that vessel owner must be a member of
the entity representing that sector under paragraph (f)(8).
(C) For a CDQ group to be a member of an IPA, the CDQ group must
sign the IPA and list in that IPA each vessel harvesting BS pollock
CDQ, on behalf of that CDQ group, that will participate in that IPA.
(iii) Request for approval of a proposed IPA. The IPA
representative must submit an application for approval of a proposed
IPA to NMFS at the address in paragraph (b)(6) of this section. A
completed application consists of the application form and the proposed
IPA, described below.
(A) Application form. The applicant must submit a paper copy of the
application form with all information fields accurately filled in,
including the affidavit affirming that each eligible vessel owner or
CDQ group, from whom the applicant received written notification
requesting to join the IPA, has been allowed to join the IPA subject to
the same terms and conditions that have been agreed on by, and are
applicable to, all other parties to the IPA. The application form is
available on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/) or from NMFS at the address or phone number
in paragraph (b)(6) of this section.
(B) Proposed IPA. The proposed IPA must contain the following
information:
(1) Name of the IPA. The same IPA name submitted on the application
form.
(2) Representative. The name, telephone number, and e-mail address
of the IPA representative who submits the proposed IPA on behalf of the
parties and who is responsible for submitting proposed amendments to
the IPA and the annual report required under paragraph (f)(12)(vii) of
this section.
(3) Description of the incentive plan. The IPA must contain a
written description of the following:
(i) The incentive(s) that will be implemented under the IPA for the
operator of each vessel participating in the IPA to avoid Chinook
salmon bycatch under any condition of pollock and Chinook salmon
abundance in all years;
(ii) The rewards for avoiding Chinook salmon, penalties for failure
to avoid Chinook salmon at the vessel level, or both;
(iii) How the incentive measures in the IPA are expected to promote
reductions in a vessel's Chinook salmon bycatch rates relative to what
would have occurred in absence of the incentive program;
(iv) How the incentive measures in the IPA promote Chinook salmon
savings in any condition of pollock abundance or Chinook salmon
abundance in a manner that is expected to influence operational
decisions by vessel operators to avoid Chinook salmon; and
(v) How the IPA ensures that the operator of each vessel governed
by the IPA will manage his or her Chinook salmon bycatch to keep total
bycatch below the performance standard described in paragraph (f)(6) of
this section for the sector in which the vessel participates.
(4) Compliance agreement. The IPA must include a written statement
that all parties to the IPA agree to comply with all provisions of the
IPA.
(5) Signatures. The names and signatures of the owner or
representative for each vessel and CDQ group that is a party to the
IPA. The representative of an inshore cooperative, or the
representative of the entity formed to represent the AFA catcher/
processor sector or the AFA mothership sector under paragraph (f)(8) of
this section may sign a proposed IPA on behalf of all vessels that are
members of that inshore cooperative or sector level entity.
(iv) Deadline and duration-- (A) Deadline for proposed IPA. An
application must be received by NMFS no later than 1700 hours, A.l.t.,
on October 1 of the year prior to the year for which the IPA is
proposed to be effective.
(B) Duration. Once approved, an IPA is effective starting January 1
of the year following the year in which NMFS approves the IPA, unless
the IPA is approved between January 1 and January 19, in which case the
IPA is effective starting in the year in which it is approved. Once
approved, an IPA is effective until December 31 of the first year in
which it is effective or until December 31 of the year in which the IPA
representative notifies NMFS in writing that the IPA is no longer in
effect, whichever is later. An IPA may not expire mid-year. No party
may join or leave an IPA once it is approved, except as allowed under
paragraph (f)(12)(v)(C) of this section.
(v) NMFS review of a proposed IPA--(A) Approval. An IPA will be
approved by NMFS if it meets the following requirements:
(1) Meets the minimum participation requirements in paragraph
(f)(12)(i) of this section;
(2) Is submitted in compliance with the requirements of paragraph
(f)(12)(ii) and (iv) of this section; and
(3) Contains the information required in paragraph (f)(12)(iii) of
this section.
(B) IPA identification number. If approved, NMFS will assign an IPA
number to the approved IPA. This number must be used by the IPA
representative in amendments to the IPA.
(C) Amendments to an IPA. Amendments to an approved IPA may be
submitted to NMFS and will be reviewed under the requirements of this
paragraph (f)(12).
(1) An amendment to an approved IPA, with no change in the IPA
participants, may be submitted to NMFS at any time and is effective
upon written notification of approval by NMFS to the IPA
representative. To amend an IPA, the IPA representative must submit a
complete application, as described in paragraph (f)(12)(iii) of this
section.
(2) An amendment to the list of IPA participants must be received
by NMFS no later than 1700 hours, A.l.t., on
[[Page 53066]]
December 1 and will be effective at the beginning of the next year. To
amend the list of participants, the IPA representative must submit an
application form, as described in paragraph (f)(12)(iii)(A) of this
section.
(3) An amendment to the list of participants related to a
replacement vessel, under paragraph (f)(7) of this section, may be
submitted to NMFS at any time. To amend the list of participants for a
replacement vessel, the IPA representative must submit the application
form, as described in paragraph (f)(12)(iii)(A) of this section, and
include a copy of the AFA permit issued under Sec. 679.4 for the
replacement vessel.
(D) Disapproval--(1) NMFS will disapprove a proposed IPA or a
proposed amendment to an IPA for either of the following reasons:
(i) If the proposed IPA fails to meet any of the requirements of
paragraphs (f)(12)(i) through (iii) of this section, or
(ii) If a proposed amendment to an IPA would cause the IPA to no
longer be consistent with the requirements of paragraphs (f)(12)(i)
through (iv) of this section.
(2) Initial Administrative Determination (IAD). If, in NMFS' review
of the proposed IPA, NMFS identifies deficiencies in the proposed IPA
that require disapproval of the proposed IPA, NMFS will notify the
applicant in writing. The applicant will be provided 30 days to
address, in writing, the deficiencies identified by NMFS. An applicant
will be limited to one 30-day period to address any deficiencies
identified by NMFS. Additional information or a revised IPA received
after the 30-day period specified by NMFS has expired will not be
considered for purposes of the review of the proposed IPA. NMFS will
evaluate any additional information submitted by the applicant within
the 30-day period. If the Regional Administrator determines that the
additional information addresses deficiencies in the proposed IPA, the
Regional Administrator will approve the proposed IPA under paragraphs
(f)(12)(iv)(B) and (f)(12)(v)(A) of this section. However, if, after
consideration of the original proposed IPA and any additional
information submitted during the 30-day period, NMFS determines that
the proposed IPA does not comply with the requirements of paragraph
(f)(12) of this section, NMFS will issue an initial administrative
determination (IAD) providing the reasons for disapproving the proposed
IPA.
(3) Administrative Appeals. An applicant who receives an IAD
disapproving a proposed IPA may appeal under the procedures set forth
at Sec. 679.43. If the applicant fails to file an appeal of the IAD
pursuant to Sec. 679.43, the IAD will become the final agency action.
If the IAD is appealed and the final agency action is a determination
to approve the proposed IPA, then the IPA will be effective as
described in paragraph (f)(12)(iv)(B) of this section.
(4) While appeal of an IAD disapproving a proposed IPA is pending,
proposed members of the IPA subject to the IAD that are not currently
members of an approved IPA will fish under the opt-out allocation under
paragraph (f)(5) of this section. If no other IPA has been approved by
NMFS, NMFS will issue all sectors allocations of the 47,591 Chinook
salmon PSC limit as described in paragraph (f)(3)(iii)(B) of this
section.
(vi) Public release of an IPA. NMFS will make all proposed IPAs and
all approved IPAs and the list of participants in each approved IPA
available to the public on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/).
(vii) IPA Annual Report. The representative of each approved IPA
must submit a written annual report to the Council at the address
specified in Sec. 679.61(f). The Council will make the annual report
available to the public.
(A) Submission deadline. The annual report must be postmarked or
received by the Council no later than April 1 of each year following
the year in which the IPA is first effective.
(B) Information requirements. The annual report must contain the
following information:
(1) A comprehensive description of the incentive measures in effect
in the previous year;
(2) A description of how these incentive measures affected
individual vessels;
(3) An evaluation of whether incentive measures were effective in
achieving salmon savings beyond levels that would have been achieved in
absence of the measures; and
(4) A description of any amendments to the terms of the IPA that
were approved by NMFS since the last annual report and the reasons that
the amendments to the IPA were made.
(g) BS Non-Chinook Salmon Bycatch Management--(1) Requirements for
the non-Chinook salmon bycatch reduction intercooperative agreement
(ICA)--(i) Application. The ICA representative identified in paragraph
(g)(2)(i)(B) of this section must submit a signed copy of the proposed
non-Chinook salmon bycatch reduction ICA, or any proposed amendments to
the ICA, to NMFS at the address in paragraph (b)(6) of this section.
(ii) Deadline. For any ICA participant to be exempt from closure of
the Chum Salmon Savings Area as described at paragraph (e)(7)(ix) of
this section and at Sec. 679.22(a)(10), the ICA must be filed in
compliance with the requirements of this section, and approved by NMFS.
The proposed non-Chinook salmon bycatch reduction ICA or any amendments
to an approved ICA must be postmarked or received by NMFS by December 1
of the year before the year in which the ICA is proposed to be
effective. Exemptions from closure of the Chum Salmon Savings Area will
expire upon termination of the initial ICA, expiration of the initial
ICA, or if superseded by a NMFS-approved amended ICA.
(2) Information requirements. The ICA must include the following
provisions:
(i) Participants--(A) The names of the AFA cooperatives and CDQ
groups participating in the ICA. Collectively, these groups are known
as parties to the ICA. Parties to the ICA must agree to comply with all
provisions of the ICA.
(B) The name, business mailing address, business telephone number,
business fax number, and business e-mail address of the ICA
representative.
(C) The ICA also must identify one entity retained to facilitate
vessel bycatch avoidance behavior and information sharing.
(D) The ICA must identify at least one third party group. Third
party groups include any organizations representing western Alaskans
who depend on non-Chinook salmon and have an interest in non-Chinook
salmon bycatch reduction but do not directly fish in a groundfish
fishery.
(ii) The names, Federal fisheries permit numbers, and USCG
documentation numbers of vessels subject to the ICA.
(iii) Provisions that dictate non-Chinook salmon bycatch avoidance
behaviors for vessel operators subject to the ICA, including:
(A) Initial base rate. The initial B season non-Chinook salmon base
rate shall be 0.19 non-Chinook salmon per metric ton of pollock.
(B) Inseason adjustments to the non-Chinook base rate calculation.
Beginning July 1 of each fishing year and on each Thursday during the B
season, the B season non-Chinook base rate shall be recalculated. The
recalculated non-Chinook base rate shall be the three week rolling
average of the B season non-Chinook bycatch rate for the current year.
The recalculated base rate shall be used to determine bycatch avoidance
areas.
[[Page 53067]]
(C) ICA Chum Salmon Savings Area notices. On each Thursday and
Monday after June 10 of each year for the duration of the pollock B
season, the entity identified under paragraph (g)(2)(i)(C) of this
section must provide notice to the parties to the salmon bycatch
reduction ICA and NMFS identifying one or more areas designated ``ICA
Chum Savings Areas'' by a series of latitude and longitude coordinates.
The Thursday notice must be effective from 6 p.m. A.l.t. the following
Friday through 6 p.m. A.l.t. the following Tuesday. The Monday notice
must be effective from 6 p.m. A.l.t. the following Tuesday through 6
p.m. A.l.t. the following Friday. For any ICA Salmon Savings Area
notice, the maximum total area closed must be at least 3,000 square
miles for ICA Chum Savings Area closures.
(D) Fishing restrictions for vessels assigned to tiers. For vessels
in a cooperative assigned to Tier 3, the ICA Chum Salmon Savings Area
closures announced on Thursdays must be closed to directed fishing for
pollock, including pollock CDQ, for seven days. For vessels in a
cooperative assigned to Tier 2, the ICA Chum Salmon Savings Area
closures announced on Thursdays must be closed through 6 p.m. Alaska
local time on the following Tuesday. Vessels in a cooperative assigned
to Tier 1 may operate in any area designated as an ICA Chum Salmon
Savings Area.
(E) Cooperative tier assignments. Initial and subsequent base rate
calculations must be based on each cooperative's pollock catch for the
prior two weeks and the associated bycatch of non-Chinook salmon taken
by its members. Base rate calculations shall include non-Chinook salmon
bycatch and pollock caught in both the CDQ and non-CDQ pollock directed
fisheries. Cooperatives with non-Chinook salmon bycatch rates of less
than 75 percent of the base rate shall be assigned to Tier 1.
Cooperatives with non-Chinook salmon bycatch rates of equal to or
greater than 75 percent, but less than or equal to 125 percent of the
base rate shall be assigned to Tier 2. Cooperatives with non-Chinook
salmon bycatch rates of greater than 125 percent of the base rate shall
be assigned to Tier 3.
(iv) Internal monitoring and enforcement provisions to ensure
compliance of fishing activities with the provisions of the ICA. The
ICA must include provisions allowing any party of the ICA to bring
civil suit or initiate a binding arbitration action against another
party for breach of the ICA. The ICA must include minimum annual
uniform assessments for any violation of savings area closures of
$10,000 for the first offense, $15,000 for the second offense, and
$20,000 for each offense thereafter.
(v) Provisions requiring the parties to conduct an annual
compliance audit, and to cooperate fully in such audit, including
providing information required by the auditor. The compliance audit
must be conducted by a non-party entity, and each party must have an
opportunity to participate in selecting the non-party entity. If the
non-party entity hired to conduct a compliance audit discovers a
previously undiscovered failure to comply with the terms of the ICA,
the non-party entity must notify all parties to the ICA of the failure
to comply and must simultaneously distribute to all parties of the ICA
the information used to determine the failure to comply occurred and
must include such notice(s) in the compliance report.
(vi) Provisions requiring data dissemination in certain
circumstances. If the entity retained to facilitate vessel bycatch
avoidance behavior and information sharing under paragraph (g)(2)(i)(C)
of this section determines that an apparent violation of an ICA Chum
Salmon Savings Area closure has occurred, that entity must promptly
notify the Board of Directors of the cooperative to which the vessel
involved belongs. If this Board of Directors fails to assess a minimum
uniform assessment within 180 days of receiving the notice, the
information used by the entity to determine if an apparent violation
was committed must be disseminated to all parties to the ICA.
(3) NMFS review of the proposed ICA and amendments. NMFS will
approve the initial or an amended ICA if it meets all the requirements
specified in paragraph (g) of this section. If NMFS disapproves a
proposed ICA, the ICA representative may resubmit a revised ICA or file
an administrative appeal as set forth under the administrative appeals
procedures described at Sec. 679.43.
(4) ICA Annual Report. The ICA representative must submit a written
annual report to the Council at the address specified in Sec.
679.61(f). The Council will make the annual report available to the
public.
(i) Submission deadline. The ICA annual report must be postmarked
or received by the Council by April 1 of each year following the year
in which the ICA is first effective.
(ii) Information requirements. The ICA annual report must contain
the following information:
(A) An estimate of the number of non-Chinook salmon avoided as
demonstrated by the movement of fishing effort away from Chum Salmon
Savings Areas, and
(B) The results of the compliance audit required at Sec.
679.21(g)(2)(v).
0
8. In Sec. 679.22, revise paragraphs (a)(10) and (h) to read as
follows:
Sec. 679.22 Closures.
(a) * * *
(10) Chum Salmon Savings Area. Directed fishing for pollock by
vessels using trawl gear is prohibited from August 1 through August 31
in the Chum Salmon Savings Area defined at Figure 9 to this part (see
also Sec. 679.21(e)(7)(vii)). Vessels directed fishing for pollock in
the BS, including pollock CDQ, and operating under a non-Chinook salmon
bycatch reduction ICA approved under Sec. 679.21(g) are exempt from
closures in the Chum Salmon Savings Area.
* * * * *
(h) CDQ fisheries closures. See Sec. 679.7(d)(8) for time and area
closures that apply to the CDQ fisheries once the non-Chinook salmon
PSQ and the crab PSQs have been reached.
* * * * *
0
9. In Sec. 679.26, revise paragraph (c)(1) to read as follows:
Sec. 679.26 Prohibited Species Donation Program.
* * * * *
(c) * * *
(1) A vessel or processor retaining prohibited species under the
PSD program must comply with all applicable recordkeeping and reporting
requirements. A vessel or processor participating in the BS pollock
fishery and PSD program must comply with applicable regulations at
Sec. Sec. 679.7(d) and (k), 679.21(c), and 679.28, including allowing
the collection of data and biological sampling by an observer prior to
processing any fish under the PSD program.
* * * * *
0
10. In Sec. 679.28,
0
a. Redesignate paragraphs (d)(7) and (d)(8) as paragraphs (d)(8) and
(d)(9), respectively;
0
b. Add paragraphs (d)(7), (g)(7)(vi)(C), and (g)(7)(x)(F);
0
c. Revise newly redesignated paragraph (d)(9)(i)(H) and paragraphs
(g)(2)(i), (g)(7)(vii)(A) and (C), (g)(7)(ix)(A), and (g)(7)(x)(D) and
(E);
0
d. Add paragraph (j); and
0
e. Redesignate paragraphs (i)(1)(iii), (iv), and(v) as paragraphs
(i)(1)(ii), (iii), and (iv), respectively.
The revisions and additions read as follows:
[[Page 53068]]
Sec. 679.28 Equipment and operational requirements.
* * * * *
(d) * * *
(7) Catcher/processors and motherships in the BS pollock fishery,
including pollock CDQ. Catcher/processors directed fishing for pollock
in the BS or motherships taking deliveries from vessels directed
fishing for pollock in the BS also must meet the following
requirements:
(i) A container to store salmon must be located adjacent to the
observer sampling station;
(ii) All salmon stored in the container must remain in view of the
observer at the observer sampling station at all times during the
sorting of each haul; and
(iii) The container to store salmon must be at least 1.5 cubic
meters.
* * * * *
(9) * * *
(i) * * *
(H) For catcher/processors using trawl gear and motherships, a
diagram drawn to scale showing the location(s) where all catch will be
weighed, the location where observers will sample unsorted catch, and
the location of the observer sampling station including the observer
sampling scale. For catcher/processors directed fishing for pollock in
the BS or motherships taking deliveries from catcher vessels directed
fishing for pollock in the BS, including pollock CDQ, the diagram also
must include the location of the last point of sorting in the factory
and the location of the salmon storage container required under
paragraph (d)(7) of this section.
* * * * *
(g) * * *
(2) * * *
(i) AFA and CDQ pollock,
* * * * *
(7) * * *
(vi) * * *
(C) For shoreside processors or stationary floating processors
taking deliveries from vessels directed fishing for pollock in the BS,
including vessels directed fishing for pollock CDQ in the BS, the
observation area must provide a clear, unobstructed view of the salmon
storage container to ensure no salmon of any species are removed
without the observer's knowledge.
(vii) * * *
(A) Location of observer work station. (1) The observer work
station must be located in an area protected from the weather where the
observer has access to unsorted catch.
(2) For shoreside processors or stationary floating processors
taking deliveries from vessels directed fishing for pollock in the BS,
including vessels directed fishing for pollock CDQ in the BS, the
observer work station must be adjacent to the location where salmon
will be counted and biological samples or scientific data are
collected.
* * * * *
(C) Proximity of observer work station. The observation area must
be located near the observer work station. The plant liaison must be
able to walk between the work station and the observation area in less
than 20 seconds without encountering safety hazards.
* * * * *
(ix) * * *
(A) Orienting new observers to the plant and providing a copy of
the approved CMCP;
* * * * *
(x) * * *
(D) The location of each scale used to weigh catch;
(E) Each location where catch is sorted including the last location
where sorting could occur; and
(F) For shoreside processors or stationary floating processors
taking deliveries from vessels directed fishing for BS pollock,
including vessels directed fishing for pollock CDQ in the BS, the
location of the salmon storage container.
* * * * *
(j) Electronic monitoring on catcher/processors and motherships in
the BS pollock fishery, including pollock CDQ. The owner or operator of
a catcher/processor or a mothership must provide and maintain an
electronic monitoring system that includes cameras, a monitor, and a
digital video recording system for all areas where sorting of salmon of
any species takes place and the location of the salmon storage
container described at paragraph (d)(7) of this section. These
electronic monitoring system requirements must be met when the catcher/
processor is directed fishing for pollock in the BS, including pollock
CDQ, and when the mothership is taking deliveries from catcher vessels
directed fishing for pollock in the BS, including pollock CDQ.
(1) What requirements must a vessel owner or operator comply with
for an electronic monitoring system?
(i) The system must have sufficient data storage capacity to store
all video data from an entire trip. Each frame of stored video data
must record a time/date stamp in Alaska local time (A.l.t.). At a
minimum, all periods of time when fish are flowing past the sorting
area or salmon are in the storage container must be recorded and
stored.
(ii) The system must include at least one external USB (1.1 or 2.0)
port or other removable storage device approved by NMFS.
(iii) The system must use commercially available software.
(iv) Color cameras must have at a minimum 470 TV lines of
resolution, auto-iris capabilities, and output color video to the
recording device with the ability to revert to black and white video
output when light levels become too low for color recognition.
(v) The video data must be maintained and made available to NMFS
staff, or any individual authorized by NMFS, upon request. These data
must be retained onboard the vessel for no less than 120 days after the
date the video is recorded, unless NMFS has notified the vessel
operator that the video data may be retained for less than this 120-day
period.
(vi) The system must provide sufficient resolution and field of
view to observe all areas where salmon could be sorted from the catch,
all crew actions in these areas, and discern individual fish in the
salmon storage container.
(vii) The system must record at a speed of no less than 5 frames
per second at all times when fish are being sorted or when salmon are
stored in the salmon storage location.
(viii) A 16-bit or better color monitor, for viewing all areas
where sorting of salmon of any species takes place and the salmon
storage container in real time, must be provided within the observer
sampling station. The monitor must--
(A) Have the capacity to display all cameras simultaneously;
(B) Be operating at all times when fish are flowing past the
sorting area and salmon are in the storage container; and
(C) Be securely mounted at or near eye level.
(ix) NMFS staff, or any individual authorized by NMFS, must be able
to view any earlier footage from any point in the trip and be assisted
by crew knowledgeable in the operation of the system.
(x) A vessel owner or operator must arrange for NMFS to inspect the
electronic monitoring system and maintain a current NMFS-issued
electronic monitoring system inspection report onboard the vessel at
all times the vessel is required to provide an approved electronic
monitoring system.
(2) How does a vessel owner arrange for NMFS to conduct an
electronic monitoring system inspection? The owner or operator must
submit an Inspection Request for an Electronic Monitoring System to
NMFS by fax (206-526-4066) or e-mail
[[Page 53069]]
([email protected]). The request form is available on the
NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov/) or from
NMFS at the address or phone number in paragraph (b)(6) of this
section. NMFS will coordinate with the vessel owner to schedule the
inspection no later than 10 working days after NMFS receives a complete
request form.
(3) What additional information is required for an electronic
monitoring system inspection?
(i) A diagram drawn to scale showing all locations where salmon
will be sorted, the location of the salmon storage container, the
location of each camera and its coverage area, and the location of any
additional video equipment must be submitted with the request form.
(ii) Any additional information requested by the Regional
Administrator.
(4) How does a vessel owner make a change to the electronic
monitoring system? Any change to the electronic monitoring system that
would affect the system's functionality must be submitted to, and
approved by, the Regional Administrator in writing before that change
is made.
(5) Where will NMFS conduct electronic monitoring system
inspections? Inspections will be conducted on vessels tied to docks at
Dutch Harbor, Alaska; Kodiak, Alaska; and in the Puget Sound area of
Washington State.
(6) What is an electronic monitoring system inspection report?
After an inspection, NMFS will issue an electronic monitoring system
inspection report to the vessel owner, if the electronic monitoring
system meets the requirements of paragraph (j)(1) of this section. The
electronic monitoring system report is valid for 12 months from the
date it is issued by NMFS. The electronic monitoring system inspection
report must be made available to the observer, NMFS personnel, or to an
authorized officer upon request.
0
11. In Sec. 679.50,
0
a. Revise paragraph (c)(1) introductory text, paragraph (c)(4)(iv), and
(c)(5) heading; and
0
b. Add a new paragraph (c)(5)(i)(D).
The addition and revisions read as follows:
Sec. 679.50 Groundfish Observer Program.
* * * * *
(c) * * *
(1) Unless otherwise specified in paragraphs (c)(4) through (7) of
this section, observer coverage is required as follows:
* * * * *
(4) * * *
(iv) Catcher vessel using trawl gear--(A) Groundfish CDQ fishing. A
catcher vessel equal to or greater than 60 ft (18.3 m) LOA using trawl
gear, except a catcher vessel that delivers only unsorted codends to a
processor or another vessel or a catcher vessel directed fishing for
pollock CDQ in the BS, must have at least one level 2 observer as
described at paragraph (j)(1)(v)(D) of this section aboard the vessel
at all times while it is groundfish CDQ fishing.
(B) BS pollock CDQ fishery. A catcher vessel using trawl gear,
except a catcher vessel that delivers only unsorted codends to a
processor or another vessel, must have at least one observer aboard the
vessel at all times while it is directed fishing for pollock CDQ in the
BS.
* * * * *
(5) AFA and AI directed pollock fishery.
(i) * * *
(D) AFA catcher vessels in the BS pollock fishery. A catcher vessel
using trawl gear, except a catcher vessel that delivers only unsorted
codends to a processor or another vessel, must have at least one
observer aboard the vessel at all times while it is directed fishing
for pollock in the BS.
* * * * *
0
12. In Sec. 679.61, revise paragraph (f)(2)(vi) to read as follows:
Sec. 679.61 Formation and operation of fishery cooperatives.
* * * * *
(f) * * *
(2) * * *
(vi) The number of salmon taken by species and season, and list
each vessel's number of appearances on the weekly ``dirty 20'' lists
for non-Chinook salmon.
* * * * *
Sec. Sec. 679.2, 679.5, 679.7, 679.20, 679.21, 679.26, 679.27, 679.28,
679.32, 679.61, and Sec. 679.93 [Amended]
0
13. At each of the locations shown in the ``Location'' column of the
following table, remove the phrase indicated in the ``Remove'' column
and replace it with the phrase indicated in the ``Add'' column for the
number of times indicated in the ``Frequency'' column.
----------------------------------------------------------------------------------------------------------------
Location Remove Add Frequency
----------------------------------------------------------------------------------------------------------------
Sec. 679.2 Definition ``AFA trawl AFA trawl catcher/processor AFA catcher/processor...... 1
catcher/processor''.
Sec. 679.2 Definition for ``Amendment AFA trawl catcher/processor AFA catcher/processor...... 1
80 vessel'' paragraph (2)(i).
Sec. 679.5(c)(3)(v)(F) and certified observer(s)...... observer(s)................ 2
(c)(4)(v)(G).
Sec. 679.5(c)(6)(v)(E)................ certified observer(s)...... observer(s)................ 1
Sec. 679.7(d)(18)..................... Sec. 679.28(d)(8)........ Sec. 679.28(d)(9)........ 1
Sec. 679.20(a)(5)(i)(A)(3)(i)......... Sec. 679.62(e)........... Sec. 679.62(a)........... 1
Sec. 679.20(a)(7)(iii)(B)............. AFA trawl catcher/processor AFA catcher/processor...... 1
Sec. 679.21(e)(3)(v).................. AFA trawl catcher/processor AFA catcher/processor...... 2
Sec. 679.26(c)(1)..................... Sec. 679.7(c)(1)......... Sec. 679.7(c)(2)......... 1
Sec. 679.27(j)(5)(iii)................ Sec. 679.28(d)(7)(i)..... Sec. 679.28(d)(8)(i)..... 1
Sec. 679.28(d)(2)(ii)................. Sec. 679.28(d)(7)(ii)(A). paragraph (d)(8)(ii)(A) of 1
this section.
Sec. 679.28(d)(2)(ii)................. Sec. 679.28(d)(7)(ii)(B). paragraph (d)(8)(ii)(B) of 1
this section.
Sec. 679.32(b)........................ Sec. 679.7(d)(7) through Sec. 679.7(d)(8)......... 1
(10).
Sec. 679.32(d)(2)(ii)(B)(1)........... Sec. 679.28(d)(8)........ Sec. 679.28(d)(9)........ 1
Sec. 679.32(d)(4)(ii)................. Sec. 679.28(d)(8)........ Sec. 679.28(d)(9)........ 1
Sec. 679.61(f)(1)..................... February 1................. April 1.................... 1
Sec. 679.93(c)(9)..................... Sec. 679.28(i)........... Sec. 679.28(i)(1)........ 1
----------------------------------------------------------------------------------------------------------------
0
14. Revise Figure 8 to part 679 to read as follows:
BILLING CODE 3510-22-P
[[Page 53070]]
[GRAPHIC] [TIFF OMITTED] TR30AU10.000
BILLING CODE 3510-22-C
[[Page 53071]]
0
15. Tables 47a through 47d to part 679 are added to read as follows:
Table 47a to Part 679--Percent of the AFA Catcher/Processor Sector's Pollock Allocation, Numbers of Chinook Salmon Used To Calculate the Opt-out
Allocation and Annual Threshold Amount, and Percent Used To Calculate IPA Minimum Participation Assigned to Each Catcher/Processor Under Sec.
679.21(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Column A Column B Column C Column D Column E Column F Column G Column H
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Chinook
Number of Number of salmon
Percent of Chinook Chinook deducted Percent used
C/P sector salmon for salmon for from the to calculate
pollock the opt-out the opt-out annual IPA minimum
allocation allocation threshold participation
(8,093) (8,093) amount of
13,516
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vessel name USCG vessel AFA permit Percent A season B season Annual Percent
documentation No.
No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
American Dynasty........................................ 951307 3681 4.93 324 76 400 1.78
American Triumph........................................ 646737 4055 7.25 475 111 586 2.61
Northern Eagle.......................................... 506694 3261 6.07 398 93 491 2.19
Northern Hawk........................................... 643771 4063 8.45 554 129 683 3.04
Northern Jaeger......................................... 521069 3896 7.38 485 113 598 2.66
Ocean Rover............................................. 552100 3442 6.39 420 98 518 2.30
Alaska Ocean............................................ 637856 3794 7.30 479 112 591 2.63
Island Enterprise....................................... 610290 3870 5.60 367 86 453 2.01
Kodiak Enterprise....................................... 579450 3671 5.90 387 90 477 2.13
Seattle Enterprise...................................... 904767 3245 5.48 359 84 443 1.97
Arctic Storm............................................ 903511 2943 4.58 301 70 371 1.65
Arctic Fjord............................................ 940866 3396 4.46 293 68 361 1.60
Northern Glacier........................................ 663457 661 3.12 205 48 253 1.12
Pacific Glacier......................................... 933627 3357 5.06 332 77 409 1.82
Highland Light.......................................... 577044 3348 5.14 337 79 416 1.85
Starbound............................................... 944658 3414 3.94 259 60 319 1.42
Ocean Peace............................................. 677399 2134 0.50 33 8 41 0.18
Katie Ann............................................... 518441 1996 0.00 0 0 0 0.00
U.S. Enterprise......................................... 921112 3004 0.00 0 0 0 0.00
American Enterprise..................................... 594803 2760 0.00 0 0 0 0.00
Endurance............................................... 592206 3360 0.00 0 0 0 0.00
American Challenger..................................... 633219 4120 0.78 51 12 63 0.28
Forum Star.............................................. 925863 4245 0.61 40 9 49 0.22
Muir Milach............................................. 611524 480 1.13 74 17 91 0.41
Neahkahnie.............................................. 599534 424 1.66 109 25 134 0.60
Ocean Harvester......................................... 549892 5130 1.08 71 16 87 0.39
Sea Storm............................................... 628959 420 2.05 134 31 165 0.74
Tracy Anne.............................................. 904859 2823 1.16 76 18 94 0.42
-----------------------------------------------------------------------------------------------
Total............................................... .............. ........... 100.00 6,563 1,530 8,093 36.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 47b to Part 679--Percent of the AFA Mothership Sector's Pollock Allocation, Numbers of Chinook Salmon Used To Calculate the Opt-Out Allocation and
Annual Threshold Amount, and Percent Used To Calculate IPA Minimum Participation Assigned to Each Mothership Under Sec. 679.21(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Column A Column B Column C Column D Column E Column F Column G Column H
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Chinook
Number of Number of salmon
Percent of Chinook Chinook deducted Percent used
MS sector salmon for salmon for from the to calculate
pollock the opt-out the opt-out annual IPA minimum
allocation allocation threshold participation
(2,220) (2,220) amount of
3,707
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vessel name USCG Vessel AFA Permit Percent A season B season Annual Percent
Documentation No.
No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
American Beauty......................................... 613847 1688 6.000 96 37 133 0.54
Pacific Challenger...................................... 518937 657 9.671 154 60 214 0.87
Nordic Fury............................................. 542651 1094 6.177 99 39 138 0.55
Pacific Fury............................................ 561934 421 5.889 94 37 131 0.53
[[Page 53072]]
Margaret Lyn............................................ 615563 723 5.643 90 35 125 0.51
Misty Dawn.............................................. 926647 5946 3.569 57 22 79 0.32
Vanguard................................................ 617802 519 5.350 85 33 118 0.48
California Horizon...................................... 590758 412 3.786 61 24 85 0.34
Oceanic................................................. 602279 1667 7.038 112 44 156 0.63
Mar-Gun................................................. 525608 524 6.251 100 39 139 0.56
Mark 1.................................................. 509552 1242 6.251 100 39 139 0.56
Aleutian Challenger..................................... 603820 1687 4.926 79 31 110 0.44
Ocean Leader............................................ 561518 1229 6.000 96 37 133 0.54
Papado II............................................... 536161 2087 2.953 47 18 65 0.27
Morning Star............................................ 618797 7270 3.601 57 23 80 0.32
Traveler................................................ 929356 3404 4.272 68 27 95 0.38
Vesteraalen............................................. 611642 517 6.201 99 39 138 0.56
Alyeska................................................. 560237 395 2.272 36 14 50 0.20
Western Dawn............................................ 524423 134 4.150 66 26 92 0.37
------------------------------------------------------------------
Total.............................................. .............. ........... 100.000 1,596 624 2,220 9.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 47c to Part 679--Percent of the AFA Inshore Sector's Pollock Allocation, Numbers of Chinook Salmon Used To Calculate the Opt-Out Allocation and
Annual Threshold Amount, and Percent Used To Calculate IPA Minimum Participation Assigned to Each Catcher Vessel Under Sec. 679.21(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Column A Column B Column C Column D Column E Column F Column G Column H
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Chinook
Number of Number of salmon
Percent of Chinook Chinook deducted Percent used
sector salmon for salmon for from the to calculate
pollock the opt-out the opt-out annual IPA minimum
allocation allocation threshold participation
(15,858) (15,858) amount of
26,485
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vessel name USCG Vessel AFA Permit Percent A Season B Season Annual Percent
documentation No.
No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
AJ...................................................... 599164 3405 0.6958 69 41 110 0.31
Alaska Rose............................................. 610984 515 1.6835 167 100 267 0.76
Alaskan Command......................................... 599383 3391 0.3711 37 22 59 0.17
Aldebaran............................................... 664363 901 1.4661 146 87 233 0.66
Alsea................................................... 626517 2811 1.6635 165 99 264 0.75
Alyeska................................................. 560237 395 1.2192 121 72 193 0.55
American Beauty......................................... 613847 1688 0.0425 4 2 6 0.02
American Eagle.......................................... 558605 434 1.0682 106 63 169 0.48
Anita J................................................. 560532 1913 0.4999 50 30 80 0.22
Arctic Explorer......................................... 936302 3388 1.6236 161 96 257 0.73
Arctic Wind............................................. 608216 5137 1.1034 110 65 175 0.50
Arcturus................................................ 655328 533 1.5450 153 91 244 0.70
Argosy.................................................. 611365 2810 1.6330 162 97 259 0.73
Auriga.................................................. 639547 2889 3.0981 308 184 492 1.39
Aurora.................................................. 636919 2888 3.0990 308 184 492 1.39
Bering Rose............................................. 624325 516 1.7238 171 102 273 0.78
Blue Fox................................................ 979437 4611 0.3140 31 19 50 0.14
Bristol Explorer........................................ 647985 3007 1.5398 153 91 244 0.69
Caitlin Ann............................................. 960836 3800 0.9357 93 55 148 0.42
Cape Kiwanda............................................ 618158 1235 0.2282 23 13 36 0.10
Chelsea K............................................... 976753 4620 4.6467 462 275 737 2.09
[[Page 53073]]
Collier Brothers........................................ 593809 2791 0.1534 15 9 24 0.07
Columbia................................................ 615729 1228 1.4429 143 85 228 0.65
Commodore............................................... 914214 2657 1.2595 125 75 200 0.57
Defender................................................ 554030 3257 3.4822 346 206 552 1.57
Destination............................................. 571879 3988 2.1528 214 128 342 0.97
Dominator............................................... 602309 411 1.7505 174 104 278 0.79
Dona Martita............................................ 651751 2047 2.1033 209 125 334 0.95
Elizabeth F............................................. 526037 823 0.3835 38 23 61 0.17
Excalibur II............................................ 636602 410 0.5200 52 31 83 0.23
Exodus Explorer......................................... 598666 1249 0.2990 30 18 48 0.13
Fierce Allegiance....................................... 588849 4133 0.9377 93 56 149 0.42
Flying Cloud............................................ 598380 1318 1.6410 163 97 260 0.74
Gold Rush............................................... 521106 1868 0.4062 40 24 64 0.18
Golden Dawn............................................. 604315 1292 1.7532 174 104 278 0.79
Golden Pisces........................................... 599585 586 0.2706 27 16 43 0.12
Great Pacific........................................... 608458 511 1.2361 123 73 196 0.56
Gun-Mar................................................. 640130 425 2.2201 221 132 353 1.00
Half Moon Bay........................................... 615796 249 0.5859 58 35 93 0.26
Hazel Lorraine.......................................... 592211 523 0.3847 38 23 61 0.17
Hickory Wind............................................ 594154 993 0.3055 30 18 48 0.14
Intrepid Explorer....................................... 988598 4993 1.1458 114 68 182 0.52
Leslie Lee.............................................. 584873 1234 0.5480 54 32 86 0.25
Lisa Melinda............................................ 584360 4506 0.2192 22 13 35 0.10
Majesty................................................. 962718 3996 0.9958 99 59 158 0.45
Marcy J................................................. 517024 2142 0.1799 18 11 29 0.08
Margaret Lyn............................................ 615563 723 0.0341 3 2 5 0.02
Mar-Gun................................................. 525608 524 0.1043 10 6 16 0.05
Mark I.................................................. 509552 1242 0.0452 4 3 7 0.02
Messiah................................................. 610150 6081 0.2291 23 14 37 0.10
Miss Berdie............................................. 913277 3679 0.6110 61 36 97 0.27
Morning Star............................................ 610393 208 1.6981 169 101 270 0.76
Ms Amy.................................................. 920936 2904 0.4882 48 29 77 0.22
Nordic Explorer......................................... 678234 3009 1.1045 110 65 175 0.50
Nordic Fury............................................. 542651 1094 0.0207 2 1 3 0.01
Nordic Star............................................. 584684 428 1.0103 100 60 160 0.45
Northern Patriot........................................ 637744 2769 2.4115 240 143 383 1.09
Northwest Explorer...................................... 609384 3002 0.2387 24 14 38 0.11
Ocean Explorer.......................................... 678236 3011 1.3744 137 81 218 0.62
Morning Star............................................ 652395 1640 0.5290 53 31 84 0.24
Ocean Hope 3............................................ 652397 1623 0.4175 41 25 66 0.19
Ocean Leader............................................ 561518 1229 0.0545 5 3 8 0.02
Oceanic................................................. 602279 1667 0.1348 13 8 21 0.06
Pacific Challenger...................................... 518937 657 0.1680 17 10 27 0.08
Pacific Explorer........................................ 678237 3010 1.2895 128 76 204 0.58
Pacific Fury............................................ 561934 421 0.0121 1 1 2 0.01
Pacific Knight.......................................... 561771 2783 2.1816 217 129 346 0.98
Pacific Monarch......................................... 557467 2785 1.5992 159 95 254 0.72
Pacific Prince.......................................... 697280 4194 2.4099 239 143 382 1.08
Pacific Ram............................................. 589115 4305 0.2035 20 12 32 0.09
Pacific Viking.......................................... 555058 422 1.0909 108 65 173 0.49
Pegasus................................................. 565120 1265 0.6950 69 41 110 0.31
Peggy Jo................................................ 502779 979 0.3324 33 20 53 0.15
Perseverance............................................ 536873 2837 0.2954 29 17 46 0.13
Poseidon................................................ 610436 1164 1.2411 123 73 196 0.56
Predator................................................ 547390 1275 0.1968 20 12 32 0.09
Progress................................................ 565349 512 1.0118 100 60 160 0.46
Providian............................................... 1062183 6308 0.3822 38 23 61 0.17
Raven................................................... 629499 1236 0.7116 71 42 113 0.32
[[Page 53074]]
Royal American.......................................... 624371 543 0.9698 96 57 153 0.44
Royal Atlantic.......................................... 559271 236 1.3095 130 78 208 0.59
Sea Wolf................................................ 609823 1652 1.5156 151 90 241 0.68
Seadawn................................................. 548685 2059 1.4108 140 84 224 0.63
Seeker.................................................. 924585 2849 0.3695 37 22 59 0.17
Sovereignty............................................. 651752 2770 2.3513 234 139 373 1.06
Star Fish............................................... 561651 1167 1.5114 150 90 240 0.68
Starlite................................................ 597065 1998 1.2252 122 73 195 0.55
Starward................................................ 617807 417 1.2611 125 75 200 0.57
Storm Petrel............................................ 620769 1641 1.2334 123 73 196 0.56
Sunset Bay.............................................. 598484 251 0.5596 56 33 89 0.25
Topaz................................................... 575428 405 0.0828 8 5 13 0.04
Traveler................................................ 929356 3404 0.0413 4 2 6 0.02
Vanguard................................................ 617802 519 0.0565 6 3 9 0.03
Viking.................................................. 565017 1222 1.6575 165 98 263 0.75
Viking Explorer......................................... 605228 1116 1.1881 118 70 188 0.53
Walter N................................................ 257365 825 0.4031 40 24 64 0.18
Western Dawn............................................ 524423 134 0.3952 39 23 62 0.18
Westward I.............................................. 615165 1650 1.5544 154 92 246 0.70
-----------------------------------------------------------------------------------------------
Total............................................... .............. ........... 100.00 9,933 5,925 15,858 45.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 47d to Part 679--Percent of the CDQ Program's Pollock Allocation, Numbers of Chinook Salmon Used To Calculate the Opt-Out Allocation and Annual
Threshold Amount, and Percent Used To Calculate IPA Minimum Participation Assigned to Each CDQ Group Under Sec. 679.21(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Column A Column B Column C Column D Column E Column F
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Number of
Chinook salmon Chinook salmon Chinook salmon Percent used to
Percent of CDQ for the opt-out for the opt-out deducted from the calculate IPA
Program pollock allocation allocation annual threshold minimum
(2,325) (2,325) amount of 3,883 participation
--------------------------------------------------------------------------------------------------------------------------------------------------------
CDQ group Percent A season B season Annual Percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
APICDA................................................... 14.00 260 66 326 1.40
BBEDC.................................................... 21.00 389 99 488 2.10
CBSFA.................................................... 5.00 93 23 116 0.50
CVRF..................................................... 24.00 445 113 558 2.40
NSEDC.................................................... 22.00 408 103 511 2.20
YDFDA.................................................... 14.00 260 66 326 1.40
----------------------------------------------------------------------------------------------
Total................................................ 100.00 1,855 470 2,325 10.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 2010-20618 Filed 8-27-10; 8:45 am]
BILLING CODE 3510-22-P