[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  

[[Page 53026]]


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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