# Fisheries of the Exclusive Economic Zone Off Alaska; Chinook Salmon Bycatch Management in the Bering Sea Pollock Fishery

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-6082

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** March 23, 2010
- **Citation:** 75 FR 14016

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 090511911-91132-01]
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:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes regulations to implement Amendment 91 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). If approved, Amendment 91 would be a novel approach to managing Chinook salmon bycatch in the Bering Sea pollock fishery that combines a 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 and prevent bycatch from reaching the limit in most years. This action is necessary to minimize Chinook salmon bycatch in the Bering Sea pollock fishery to the extent practicable while maximizing the potential for the full harvest of the pollock total allowable catch within specified prohibited species catch limits. 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:

Comments must be received no later than May 7, 2010.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX89, by any one of the following methods:

•
Electronic Submissions:
Submit all electronic public comments via the Federal eRulemaking Portal
http://www.regulations.gov.

•
Fax:
(907) 586-7557, Attn: Ellen Sebastian.

•
Mail:
P.O. Box 21668, Juneau, AK 99802.

•
Hand Delivery to the Federal Building:
709 West 9th Street, Room 420A, Juneau, AK.

Instructions:
No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to
http://www.regulations.gov
without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

Electronic copies of Amendment 91, the Final Environmental Impact Statement (EIS), the Final Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) 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 proposed rule may be submitted to NMFS at the above address, e-mailed to
David_Rostker@omb.eop.gov
, or faxed 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 proposed rule would implement Amendment 91 to the FMP. The Council has submitted Amendment 91 for review by the Secretary of Commerce, and a Notice of Availability (NOA) of this amendment was published in the
Federal Register
on February 18, 2010 (75 FR 7228) with comments invited through April 19, 2010. Respondents do not need to submit the same comments on both the NOA and this proposed rule. All relevant written comments received by the end of the applicable comment period, whether specifically directed to the FMP amendment, this proposed rule, or both, will be considered in the approval/disapproval decision for Amendment 91 and addressed in the response to comments in the final decision.

The Bering Sea Pollock Fishery

This proposed 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 (BS) subarea of the BSAI. A detailed physical description of the BS subarea is contained in Section 1.3 of the EIS (
see

ADDRESSES
). The BS 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.

The BS pollock fishery is managed under the American Fisheries Act (AFA) (16 U.S.C. 1851 note). Currently, pollock in the BSAI is managed as three separate units: the BS subarea, the Aleutian Islands (AI) subarea, and the Bogoslof District of the BS subarea. Separate overfishing limits, acceptable biological catch limits, and total allowable catch (TAC) limits are specified annually for BS pollock, AI pollock, and Bogoslof pollock. In 2009, the BS pollock TAC was 815,000 metric tons (mt), the AI pollock TAC was 19,000 mt, and the Bogoslof pollock TAC was 50 mt. Additional information about the pollock fisheries is in Section 1.4 of the EIS, Section 2.1 of the RIR (
see

ADDRESSES
), and in the annual specifications for the BSAI groundfish fisheries (74 FR 7359; February 17, 2009).

Ten percent of the AI pollock TAC is allocated to the CDQ Program while the remaining 90 percent is divided between the Aleut Corporation and the incidental catch allowance (70 FR 9856; March 1, 2005). Under § 679.22(a)(7)(i), directed fishing for pollock is not allowed in the Bogoslof District and the entire TAC is allocated as an incidental catch allowance for pollock harvested in other groundfish directed fisheries that occur in this area. Amendment 91 would not affect the management of pollock fisheries in the AI or the status of pollock fishing in the Bogoslof District. This proposed rule applies only to management of the pollock fishery in the BS. Therefore, in this document, the word “fishery” refers only to the BS pollock fishery, unless otherwise specified.

In October 1998, Congress enacted the AFA, which “rationalized” the BS

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 BS 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 BS groundfish fisheries is subtracted from the TAC. In 2009, the CDQ allocation was 81,500 mt of pollock and the incidental catch allowance was 29,340 mt. The “directed fishing allowance” is the remaining amount of pollock, after subtraction of the CDQ Program allocation and the incidental catch allowance. The 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 allocation of pollock to the CDQ Program 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 percentage allocations of pollock among the six CDQ groups that currently are in effect were approved by NMFS in 2005 based on recommendations from the State of Alaska (State). These percentage allocations are now the required allocations of pollock among the CDQ groups under section 305(i)(1)(B) of the Magnuson-Stevens Act. More information about the allocations of pollock, other groundfish, crab, and prohibited species (including Chinook salmon) among the six CDQ groups is provided in a
Federal Register
notice that described the effect of the 2006 amendments to the Magnuson-Stevens Act on CDQ Program allocations (71 FR 51804; August 31, 2006). The CDQ Program also is described in more detail in the “Classification” section of this proposed rule.

CDQ groups typically sell or lease their pollock allocations to harvesting partners, including vessels owned, in part, by the CDQ group. Although CDQ groups are not required to partner with AFA-permitted vessels to harvest CDQ pollock, to date, 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 allowed for the formation of fishery cooperatives within the non-CDQ sectors. The purpose of these AFA cooperatives is to further subdivide each sector's or inshore cooperative'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 pollock among the cooperative members, enforce contract provisions, and participate in the intercooperative agreement to reduce salmon bycatch.

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 vessel's 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”. In recent years, all inshore catcher vessels have joined one of seven inshore cooperatives. However, NMFS has been notified that in 2010 one inshore catcher vessel will not join an inshore cooperative and will be fishing in 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 to catcher/processors. Owners of the catcher/processors that are listed by name in the AFA and still active in the BS pollock fishery have formed a cooperative called the Pollock Conservation Cooperative (PCC). The remaining catcher/processor, the F/V Ocean Peace, is not listed by name in the AFA, but is eligible to harvest up to 0.5 percent of the allocation of BS pollock to the catcher/processor sector. This portion of the catcher/processor sector's allocation of BS pollock is reserved for “unlisted” catcher/processors that meet certain requirements, which only the F/V Ocean Peace meets. Owners of the catcher vessels eligible to deliver pollock to the catcher/processors have formed a cooperative called the High Seas Catcher's 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. However, 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

Pollock is harvested with fishing vessels using trawl gear, which are large nets towed through the water by the vessel. Chinook salmon and pollock occur in the same locations in the BS. Consequently, 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, which are not sold or kept for personal use. Therefore, Chinook salmon caught in the BS 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.

The bycatch of culturally and economically valuable species like Chinook salmon, which are fully allocated and, in some cases, facing conservation concerns, are categorized as prohibited species under the FMP and are the most regulated and closely managed category of bycatch. Chinook salmon, all other species of salmon (a category called “non-Chinook salmon”),

steelhead trout, Pacific halibut, king crab, Tanner crab, and Pacific herring are classified as prohibited species in the groundfish fisheries off Alaska. As a prohibited species, fishermen must avoid salmon bycatch and any salmon caught must either be donated to the Prohibited Species Donation (PSD) Program under § 679.26, or returned to Federal waters as soon as is practicable, with a minimum of injury, after an observer has determined the number of salmon and collected any scientific data or biological samples.

The PSD Program was initiated to reduce the amount of edible protein discarded under prohibited species catch (PSC) regulatory requirements (§ 679.21). One reason for requiring the discard of prohibited species is that some of the fish may live if they are returned to the sea with a minimum of injury and delay. However, salmon caught incidentally in trawl nets always die as a result of that capture. The PSD Program allows enrolled seafood processors to retain salmon bycatch for distribution to economically disadvantaged individuals through tax-exempt hunger relief organizations.

The BS 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 BS pollock fishery was 32,482. 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 BS pollock fishery in 2007. However, Chinook salmon bycatch has declined in recent years to 20,493 in 2008 and 12,410 in 2009. The causes of the decline in Chinook salmon bycatch in 2008 and 2009 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. Since 1999, under the AFA, the inshore sector has been allocated about 45 percent of the pollock TAC (the percentage changes slightly in some years because the amount of pollock subtracted from the TAC for incidental catch varies). However, the inshore sector has always caught more than 45 percent of Chinook salmon bycatch. For example, in 2007, the inshore sector was allocated 44 percent of the pollock TAC, but caught 63 percent of the Chinook salmon bycatch, and in 2008 it was allocated 43 percent of the TAC, but caught 55 percent of the Chinook salmon bycatch in the BS pollock fishery. Over this same time period, the catcher/processor sector has taken a smaller portion of the Chinook salmon bycatch relative to their 35 percent allocation of pollock TAC (26 percent of the Chinook salmon bycatch in 2007 and 18 percent in 2008). 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 the A and B seasons.

In years of historically high Chinook salmon bycatch in the BS 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. Development of intercooperative 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, it will continue to be difficult to predict when and where large amounts of Chinook salmon bycatch will be encountered by the pollock fleet, 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.

Status of Chinook Salmon Stocks and Fisheries in Western Alaska

Chinook salmon taken in the BS 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 BS 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
).

Chinook salmon support subsistence, commercial, personal use, and sport fisheries in their regions of origin. The Alaska Board of Fisheries adopts regulations through a public process to conserve fisheries resources and to allocate fisheries resources 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.

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
).

Yukon River salmon fisheries management includes obligations under an international treaty with Canada. In 2007 and 2008, the United States did not meet the Yukon River Chinook salmon escapement goals established with Canada by the Yukon River Agreement to the Pacific Salmon Treaty (PST) of 2002. As of October 29, 2009, the preliminary estimate of escapement into Canada was approximately 68,400 Chinook salmon, which exceeds the 2009 interim management escapement goal of 45,000 Chinook salmon and provides for harvest sharing under the Yukon River Agreement to the PST.

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, the Council adopted, and NMFS approved, Amendment 21b to the FMP. Based on historic information regarding the location and timing of Chinook salmon bycatch, Amendment 21b established annual PSC limits for Chinook salmon and

specific seasonal no-trawling zones in the Chinook Salmon Savings Area that would close when the limits were reached. These regulations prohibited trawling in the Chinook Salmon Savings Area through April 15, once the PSC limit of 48,000 Chinook salmon was reached (60 FR 31215; November 29, 1995).

In 2000, the Council and NMFS implemented Amendment 58 to the FMP, which 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 in the BSAI were most recently revised under Amendments 82 and 84 to the FMP. In 2005, Amendment 82 established the AI Chinook salmon PSC limit of 700 fish, which, when reached, closes the directed pollock fishery in Area 1 (the AI) of the Chinook Salmon Savings Area (70 FR 9856; March 1, 2005).

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 BS 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 only apply 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 a salmon bycatch reduction ICA using the VRHS was approved by NMFS in January 2008. Amendment 84 requires that parties to the ICA be the AFA cooperatives or the 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.

Objectives of and Rationale for Amendment 91 and this Proposed Rule

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 BS pollock fishery.

The principal objective of Chinook salmon bycatch management in the BS pollock fishery is to minimize Chinook salmon bycatch to the extent practicable, while achieving optimum yield. Minimizing Chinook salmon bycatch while achieving optimum yield is necessary to maintain a healthy marine ecosystem, ensure long-term conservation and abundance of Chinook salmon, provide maximum benefit to fishermen and communities that depend on Chinook salmon and pollock resources, and comply with the Magnuson-Stevens Act and other applicable federal law.

In April 2009, the Council adopted Amendment 91 and recommended that NMFS develop regulations to implement that action. In developing Amendment 91, the Council considered consistency with the Magnuson-Stevens Act's 10 National Standards. The Council designed its recommended alternative to balance the competing demands of the National Standards. Specifically, the Council recognized the need to balance and be consistent with both National Standard 9 and National Standard 1. National Standard 9 requires that conservation and management measures shall, to the extent practicable, minimize bycatch. 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. The ability to harvest the entire pollock TAC in any given year is not determinative of whether the BSAI groundfish fishery achieves optimum yield. Providing the opportunity for the fleet to harvest its TAC is one aspect of achieving optimum yield in the long term.

Amendment 91 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 prevent bycatch from reaching the limit in most years. In developing this program, the Council recognized that the number of Chinook salmon caught as bycatch in the BS 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.

Under Amendment 91, the PSC limit would be 60,000 Chinook salmon if some or all of the pollock industry participates in an industry-developed contractual arrangement, called an incentive plan agreement (IPA), that establishes an incentive program to minimize bycatch at all levels of Chinook salmon abundance. Participation in an IPA would be voluntary; however, any vessel or CDQ group that chooses not to participate in an IPA would be subject to a restrictive opt-out allocation (also called a backstop cap).

To ensure participants develop effective IPAs, participants would demonstrate to the Council through performance and annual reports that the IPA is accomplishing the Council's intent that each vessel does its best to avoid Chinook salmon at all times while fishing for pollock and, that collectively, bycatch is minimized in each year. The Council believed that the addition of an

IPA that could impose rewards for avoiding Chinook salmon bycatch, penalties for failure to avoid Chinook salmon bycatch at the vessel level, or both, would warrant setting the PSC limit at 60,000 Chinook salmon. The Council recognized that while the IPA should minimize bycatch in all years to a level below the limit, a limit of 60,000 Chinook salmon would provide the industry the flexibility to harvest the pollock TAC in high-encounter years when bycatch was extremely difficult to avoid.

A 47,591 Chinook salmon PSC limit would apply fleet-wide if industry does not form any IPAs. This PSC limit of 47,591 Chinook salmon is the approximate 10-year average of Chinook salmon bycatch from 1997 to 2006. The Council determined that the 47,591 PSC limit was an appropriate limit on Chinook salmon bycatch in the BS pollock fishery if no other incentives were operating to minimize bycatch below this level.

Both PSC limits would be divided between the A and B seasons and allocated to AFA sectors, cooperatives, and CDQ groups as transferable PSC allocations. Transferability is expected to mitigate the variation in the encounter rates of salmon bycatch among sectors, CDQ groups, and cooperatives in a given season by allowing eligible participants to obtain a larger portion of the PSC allocation in order to harvest their pollock allocation or to transfer surplus allocation to other entities. When a transferable 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.

The Council also recommended a sector-level performance standard as an additional tool to ensure that the IPA is effective and that sectors do not fully harvest the Chinook salmon PSC allocations under the 60,000 Chinook salmon PSC limit 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 annual threshold amount 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. The Council believed that the risk of bearing the potential economic impacts of a reduction from the 60,000 PSC limit to the 47,591 PSC limit would create incentives for fishery participants to cooperate in an effective IPA.

In selecting the appropriate Chinook salmon bycatch management program, the Council considered a wide range of alternatives to assess the impacts of minimizing Chinook salmon bycatch to the extent practicable while maximizing the potential for the full harvest of the pollock TAC. The Council considered the trade-offs between the potential Chinook salmon saved and the forgone pollock catch. The EIS and RIR contain a complete description of the alternatives and a comparative analysis of the potential impacts of the alternatives (
see

ADDRESSES
).

The Council considered an alternative that would implement a single PSC limit, with no additional measures. However, the Council determined that a single PSC limit alone is not the optimum mechanism to minimize Chinook salmon bycatch at all levels of Chinook salmon abundance and at all rates of Chinook salmon encounters in the pollock fishery.

A relatively high PSC limit alone would not constrain the pollock fishery in most years, so it would not achieve the Council's goal of minimizing Chinook salmon bycatch to the extent practicable. A high PSC limit in years of low Chinook salmon encounters would not provide incentives for the pollock fleet to reduce bycatch at all, even if lower bycatch could have been achieved at minimal expense. If low encounters are due to low Chinook salmon abundance in one or more stocks, a high PSC limit alone would not address biological concerns about the potential impact of bycatch on Chinook salmon stocks.

A low PSC limit would reduce Chinook salmon bycatch below historic high levels. However, it 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 BS pollock fishery, or the unpredictability of these rates. While a low PSC limit alone would ensure bycatch does not exceed that level, it would not provide any incentives or mechanism to further reduce bycatch below that limit. As a result, if low encounters are due to low Chinook salmon abundance in one or more stocks, even a low PSC limit alone would not address biological concerns about the potential impact of bycatch on Chinook salmon stocks. Additionally, 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 to fish, which would undermine the rationalized management of the AFA and the current pollock fishery management.

Proposed Bering Sea Chinook Salmon Bycatch Management Measures

This proposed rule to implement the provisions of Amendment 91, as recommended by the Council, includes two Chinook salmon PSC limits (60,000 Chinook salmon and 47,591 Chinook salmon). For each PSC limit, NMFS would issue Chinook salmon PSC allocations to the catcher/processor sector, the mothership sector, the inshore cooperatives, and the CDQ groups. Separate allocations would be issued for the A season and the B season. Chinook salmon remaining from the A season could be used in the B season (“rollover”). Entities could transfer PSC allocations within a season and could also receive transfers of Chinook salmon bycatch to cover overages (“post-delivery transfers”).

If NMFS approves an IPA, NMFS would issue transferable allocations of the 60,000 Chinook salmon PSC limit to those sectors that remain in compliance with the performance standard. The performance standard requires each sector to maintain its Chinook salmon bycatch within its portion of 47,591 Chinook salmon in at least five out of every seven consecutive years. Sector and cooperative allocations would be reduced if members of the sector 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. If a whole sector does not participate in an IPA, all members of that sector would fish under the opt-out allocation.

NMFS would 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.

Under Amendment 91, NMFS would remove from existing regulations the 29,000 Chinook salmon PSC limit in the BS, the Chinook Salmon Savings Areas in the BS, exemption from Chinook Salmon Savings Area closures for participants in the VRHS ICA, and Chinook salmon as a component of the VRHS ICA. This proposed action would not change any regulations affecting the management of Chinook salmon in the AI 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.

Allocations of the 60,000 or the 47,591 Chinook Salmon Prohibited Species Catch Limits

Both the 60,000 and the 47,591 Chinook salmon PSC limits would be allocated among the catcher/processor sector, the mothership sector, inshore sector, and CDQ Program using a method that recognizes that sectors have different fishing patterns and needs for salmon bycatch in order to harvest their AFA pollock allocation (Table 1). The percentage allocations recommended by the Council are based on an adjusted five-year (2002 to 2006) historical average proportion of the Chinook salmon bycatch by sector and season, and are shown in Table 1. The basis for these percentage allocations is explained in more detail in section 2.5.2 of the EIS (
see

ADDRESSES
).

Table 1—Percentage Allocations and Amounts of the Chinook Salmon Prohibited Species Catch Limit

Percentage allocations to each sector

PSC Limit
(#s of Chinook salmon)

60,000
47,591

A season allocation: 70.0
42,000
33,314

CDQ Program—9.3
3,906
3,098

Inshore Sector—49.8
20,916
16,591

Mothership Sector—8.0
3,360
2,665

Catcher/Processor Sector—32.9
13,818
10,960

B season allocation: 30.0
18,000
14,277

CDQ Program—5.5
990
785

Inshore Sector—69.3
12,474
9,894

Mothership Sector—7.3
1,314
1,042

Catcher/Processor Sector—17.9
3,222
2,556

Allocations of Chinook salmon PSC to the inshore sector would be further allocated among the inshore cooperatives based on the proportion of the inshore pollock allocation made to each inshore cooperative under § 679.62(a)(1). Pollock allocations to the inshore cooperatives can change from year to year if membership in the cooperatives changes because the cooperative's pollock allocation is determined by the percentage of pollock assigned to each vessel in the sector. Column D of proposed Table 47c to part 679 shows the percentage of the inshore sector's pollock allocation assigned to each catcher vessel. The amount of Chinook salmon PSC that would be allocated to each inshore cooperative would be determined each year after the inshore cooperative permit applications are received on December 1. If the owner of an AFA catcher vessel eligible to deliver pollock to an inshore processor does not join an inshore cooperative in a particular year and fishes in the inshore open access fishery, the portion of Chinook salmon associated with that vessel also would be allocated to the inshore open access fishery.

The CDQ groups would continue to be allocated the same proportion of the CDQ Program allocation of Chinook salmon bycatch that each group has been allocated since 2005 (71 FR 51804; August 31, 2006). These percentage allocations are described in more detail in the “Classification” section of this preamble and would be published in proposed Table 47d to part 679.

Transferable and Non-transferable Allocations.
Each year, NMFS would send a letter to each entity receiving a transferable Chinook salmon PSC allocation, notifying them of the amount of the allocation and identifying the vessels fishing under that allocation. Each entity that receives a transferable allocation would be prohibited from exceeding their allocation. Each entity would be required to manage its pollock fishing so that neither its pollock allocation nor its transferable Chinook salmon PSC allocation is exceeded. The Council intended that both the A season allocation and the annual allocation would not be exceeded. Therefore, the A season and B season allocations would be managed separately. Overages for the A season would be evaluated at the end of the A season and overages for the B season would be evaluated the end of the year. NMFS would not close directed fishing for pollock by the sectors, inshore cooperatives, or CDQ groups receiving transferable Chinook salmon PSC allocations when those allocations are reached. Rather, penalties could be assessed against the entity for an overage of its Chinook salmon PSC allocation.

If members of the catcher/processor or mothership sectors are unable to form their respective sector-level entities to receive transferable Chinook salmon PSC allocations, then these sectors would fish under a non-transferable sector allocation. If some inshore catcher vessels did not join an inshore cooperative, then they would fish under a non-transferable Chinook salmon PSC allocation assigned to the inshore open-access fishery. Similarly, if some vessels or CDQ groups did not participate in an IPA, then they would fish under the non-transferable opt-out allocation. NMFS would manage each non-transferable allocation with a directed fishery closure to prevent the non-transferable allocation being exceeded. The directed fishery closure would apply to all vessels fishing under that non-transferable allocation.

Separate allocations would be made for the A season and the B season for a total of up to 30 transferable PSC allocation accounts (see Table 2). NMFS could establish up to eight non-transferable PSC allocation accounts annually for the inshore open access fishery, the opt-out fishery, and for the mothership sector and catcher/processor sector.

Table 2—Potential Number of Transferable Chinook Salmon PSC Allocations

Entities that could receive transferable allocations

Catcher/processor sector

Mothership
sector

Inshore co-ops
CDQ
Total transferable

A Season
1
1
7
6
15

B Season
1
1
7
6
15

Annual total
2
2
14
12
30

Entities Eligible To Receive Transferable Chinook Salmon Prohibited Species Catch Allocations.
NMFS would issue transferable allocations to eligible entities representing the catcher/processor sector, mothership sector, inshore cooperatives, and CDQ groups. Each entity receiving a transferable allocation of Chinook salmon PSC must identify a “representative” and an “agent for service of process”. The representative would represent all members of the entity with NMFS and would be authorized to transfer all or a portion of the entity's Chinook salmon PSC allocation to another entity or to receive a transfer from another entity. The agent for service of process is the person authorized and responsible to receive notices or other documents on behalf of all members of the entity. The representative and the agent for service of process could be the same person.

All members of an entity that receives transferable Chinook salmon PSC allocations would be jointly and severally liable for any violation of applicable regulations and for any penalties assessed against that entity for any regulatory violation, including if the Chinook salmon bycatch by the vessels fishing on behalf of that entity exceeded the amount of Chinook salmon allocated to the entity.

NMFS would issue transferable Chinook salmon PSC allocations to the catcher/processor sector or the mothership sector if they form a “sector-level entity” that is authorized by NMFS to receive transferable Chinook salmon PSC allocations. The sector-level entity would be responsible for ensuring that the collective Chinook salmon bycatch by its members does not exceed those allocations. The entity representing the catcher/processor sector and the entity representing the mothership sector would be required to identify their representative and agent for service or process on their application to NMFS to receive transferable Chinook salmon PSC allocations.

The catcher/processor sector and the mothership sector currently are not required to register as entities with NMFS to receive allocations of BS pollock. Non-transferable allocations of pollock are made to each of these two sectors by NMFS through the annual groundfish harvest specifications process. NMFS issues permits to individual AFA eligible vessels to harvest pollock under these sector allocations, but the catcher/processor sector and mothership sector as a whole do not need to be permitted by NMFS to receive such allocations. No more than one entity may be authorized by NMFS to represent the catcher/processor sector, and no more than one entity may be authorized to represent the mothership sector. Existing contracts forming the PCC, the HSCC, and the MFC could be modified to create the sector-level entities required to receive transferable Chinook salmon PSC allocations, or new entities could be formed by the owners of these same vessels to address only NMFS's requirements related to Chinook salmon PSC allocations.

The inshore cooperatives and the CDQ groups already are recognized by NMFS as entities eligible to receive allocations on behalf of others. The inshore cooperatives are permitted annually by NMFS under § 679.4(l)(6) and must submit copies of their cooperative contracts to NMFS to be issued a permit. The representative and agent for service of process for the inshore cooperatives would be the same person as named on the cooperative's annual application for pollock allocations. The CDQ groups are authorized under section 305(i)(1) of the Magnuson-Stevens Act to receive fishery allocations from NMFS. No additional authorizations are needed for the inshore cooperatives or CDQ groups to be eligible to receive transferable allocations of Chinook salmon PSC. The representative and agent for service of process for a CDQ group would be its chief executive officer. In either case, an inshore cooperative or a CDQ group could notify NMFS in writing if its representative or agent for service of process for purposes of Chinook salmon PSC allocations is a different person.

Assigning Portions of the Chinook Salmon PSC Limit

The proposed rule includes a series of tables, proposed Tables 47a through 47d to part 679, that show the percent of the pollock allocation, the corresponding amounts of Chinook salmon PSC, and the percent used to calculate the IPA minimum participation, that NMFS has assigned to each vessel in each sector and to each CDQ group. See Table 3, below, for an outline of proposed Tables 47a through 47d to part 679. NMFS would use the numbers in these tables to (1) Calculate adjustments to allocations of the 60,000 PSC limit for any vessels not participating in an IPA, (2) establish the amount of the opt-out allocation, (3) establish the annual threshold amount for the performance standard, and (4) determine if minimum participation requirements have been met for a proposed IPA. The methods NMFS would use to assign a percent of each sector's pollock allocation to each vessel or CDQ group are described below.

Table 3—Location in the Proposed Rule of the Tables That Show the Percent of the Pollock Allocation, the Corresponding Amounts of the Chinook Salmon, and Percent Used to Calculate the IPA Minimum Participation Assigned to Each Vessel in Each Sector and to Each CDQ Group

Sector
Location in proposed rule

Catcher/processor sector
Table 47a to part 679.

Percent of pollock allocation
Column D.

Opt-out allocation
Column E and F.

Annual threshold amount
Column G.

IPA minimum participation
Column H.

Mothership sector
Table 47b to part 679.

Percent of pollock allocation
Column D.

Opt-out allocation
Column E and F.

Annual threshold amount
Column G.

IPA minimum participation
Column H.

Inshore sector
Table 47c to part 679.

Percent of pollock allocation
Column D.

Opt-out allocation
Column E and F.

Annual threshold amount
Column G.

IPA minimum participation
Column H.

CDQ Program
Table 47d to part 679.

Percent of pollock allocation
Column B.

Opt-out allocation
Column C and D.

Annual threshold amount
Column E.

IPA minimum participation
Column F.

Catcher/processor sector.
To implement Amendment 91, proportions of the catcher/processor sector's allocations of Chinook salmon must be developed for each AFA eligible catcher/processor and each of the catcher vessels eligible to deliver pollock to these catcher/processors. All but one of the AFA catcher/processors are represented by the PCC, and all catcher vessels are represented by the HSCC. The PCC assigns each vessel a percent of the catcher/processor sector's allocation of pollock. The Council recommended using each vessel's percent of the catcher/processor sector's allocation of pollock as a basis for assigning each vessel a percent of the sector's Chinook salmon PSC allocation. This approach is reasonable because it relies on already agreed upon proportions, so it eliminates the need for the Council or NMFS to develop a different set of proportions that may have unintended impacts on the sector members. In addition, the proportion assigned to each vessel in a sector does not affect the incentives or operation of the elements of Amendment 91 (the PSC limit, the IPA, and the performance standard) that are important to achieve the Council's overall objectives for Chinook salmon bycatch management.

The pollock allocated to the catcher/processor sector is further allocated as follows: 0.5 percent to the F/V Ocean Peace under section 208(e)(21) of the AFA, 8.5 percent to catcher vessels eligible to deliver pollock to AFA catcher/processors, and 91 percent to the catcher/processors listed in section 208(e)(1) through (20) and permitted under § 679.4(l)(2)(i).

The seven catcher vessels that are members of the HSCC are allocated 8.5 percent of the pollock allocated to the AFA catcher/processor sector. Members of the HSCC further allocate this pollock among the seven member vessels based on percentage allocations agreed upon in their HSCC contract. These percentage allocations are used to apportion the Chinook salmon bycatch associated with each of the seven catcher vessels listed at the bottom of proposed Table 47a to part 679. These proportions add up to 8.5 percent.

The 91 percent of the allocation of pollock to the catcher/processor sector is further allocated among the companies owning the AFA eligible catcher/processors that are members of the PCC. These allocations are negotiated among the PCC members and do not stem from any requirement of the AFA or NMFS regulation. The percentage allocations to each company are listed in the annual cooperative report submitted by PCC to the Council under requirements at § 679.61(f). The PCC recommended a method of apportioning Chinook salmon among the catcher/processors based on the catch of pollock by each of these vessels in 2006. This year was chosen as the basis for these proportions because it was the last year that the F/V American Dynasty fished in both the A and B seasons and, therefore, is the year that best represents the relative catching capacity of vessels that are currently members of the AFA catcher/processor sector.

AFA eligible catcher/processors that do not currently participate in the BS pollock fishery are not likely to return to the fishery. Therefore, the PCC board recommended that these vessels receive a proportion of zero for purposes of Amendment 91. Although unlikely, three of the four inactive vessels (F/V Katie Ann, F/V U.S. Enterprise, and F/V American Enterprise) could return to fish for pollock in the BS in the future. However, the owners of these vessels are members of the PCC so its recommendation for a proportion of zero for these three vessels is made at the recommendation and concurrence of the vessel owners. The fourth vessel, F/V Endurance, is listed as eligible in the AFA, but is permanently precluded from participation in the fishery because it is now a foreign flagged vessel, and, therefore, cannot receive endorsements to fish in the U.S. EEZ. In the unlikely event that a vessel currently assigned a zero proportion would return to the fishery and choose not to participate in an IPA, the portion and number of Chinook salmon associated with that vessel would be assigned within the sector based on revisions to the PCC contract that are made at the time a vessel returns to active fishing, until proposed Table 47a to part 679 could be revised to reflect the new proportions assigned to each vessel.

Mothership sector.
The proportion associated with each catcher vessel in the mothership sector in proposed Table 47b to part 679 is based on the allocations of pollock made under the MFC contract. The proportions are published annually in the MFC's annual report to the Council, which is available on the NMFS Alaska Region Web site (
http://alaskafisheries.noaa.gov/sustainablefisheries/afa/
). NMFS did not adjust any of these proportions and has published them as agreed upon by the members of the cooperative.

Inshore sector.
NMFS calculated the proportions associated with each catcher vessel in the inshore sector based on ADF&G fish tickets submitted by the inshore processors for each delivery of pollock by a catcher vessel from 1995 through 1997, adjusted by the procedures described in § 679.62(a). These proportions have been used since 2000 to determine the amount of pollock allocated to the inshore cooperatives based on the catch history of the catcher vessels that are members of each cooperative. NMFS is proposing to publish these proportions in Table 47c to part 679 because they are needed for a number of important calculations under this proposed rule. These calculations must be made in a short period of time at the end of each year, prior to the start of the next year's fishery. Having these proportions available to the public as part of the regulations provides an early opportunity for public comment on these proportions and improves the transparency of how important annual calculations related to the Chinook salmon PSC allocations would be made. Although these proportions were based on ADF&G fish tickets and the information on the fish tickets is confidential, the proportions of the total pollock catch over this three-year period is not confidential because no confidential information from the fish tickets about the amount, location, or value of pollock catch for a specific

vessel can be determined from these proportions.

Community Development Quota Program.
The proportion of Chinook salmon associated with each CDQ group in Table 47d to part 679 of this proposed rule are the percentage allocations of pollock and Chinook salmon PSC that have been made to each group since 2005 (71 FR 51804; August 31, 2006). These percentage allocations are described in more detail in the Classification section of this proposed rule.

Replacement vessels.
If an AFA permitted vessel listed in proposed Tables 47a through 47c 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 would 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 through subsequent proposed and final rulemaking.

Opt-Out Allocation

If at least some members of a given sector are participating in an approved IPA, and the sector has not exceeded its performance standard, then the vessels in that sector whose owners do not participate in an IPA, or vessels fishing on behalf of a CDQ group that does not participate in an IPA, would fish for BS pollock under a seasonal opt-out allocation. Vessel owners, inshore cooperatives, or CDQ groups not participating in an IPA do not have to notify NMFS that they are not participating in an IPA because NMFS would know the list of vessels and CDQ groups participating in each approved IPA. NMFS would post on the NMFS Alaska Region Web site (
http://alaskafisheries.noaa.gov
) whether each AFA-permitted vessel is participating or not participating in an IPA and the Chinook salmon PSC allocation under which each vessel would be managed. Vessel owners would be expected to notify NMFS if a vessel they own is incorrectly listed as fishing under the opt-out allocation.

The purpose of the opt-out allocation is to require those not participating in an IPA to fish under a separate allocation that is considerably more restrictive than the transferable Chinook salmon PSC allocations issued to entities representing those who do participate in an IPA. The Council intends the opt-out allocation to be low enough to provide an incentive to participate in an IPA. The concept of the opt-out allocation was originally developed as a component of the Council's preliminary preferred alternative under which the higher PSC limit was 68,392 Chinook salmon and the maximum amount of the “backstop cap” was 32,482 Chinook salmon. The amount of the backstop cap under the preliminary preferred alternative represented the 1992 through 2001 10-year average Chinook salmon bycatch and is one of the lower and most restrictive of the PSC limits considered by the Council (Alternative 2, Sub-option vii in the EIS (
see

ADDRESSES
)). For Amendment 91, the Council reduced the maximum amount of the backstop cap (or opt-out allocation) to 28,496, which is 47.5 percent of 60,000 Chinook salmon, the same percentage that the 32,482 backstop cap is of the 68,392 PSC limit under the Council's preliminary preferred alternative.

The annual opt-out allocation would be some number less than 28,496 Chinook salmon. Before each fishing year, NMFS would calculate the amount of the opt-out allocation for each season based on the number of vessels or CDQ groups that chose not to participate in an approved IPA. NMFS would also reduce the allocation of the 60,000 Chinook salmon PSC limit for sectors or cooperatives with members that participate in the opt-out fishery. To calculate the opt-out allocation for each season, NMFS would take the sum of the number of Chinook salmon associated with each vessel or CDQ group that opted out of an IPA, as shown in Columns E and F in proposed Tables 47a through 47c to part 679, and Column C and D in proposed Table 47d to part 679. NMFS would then subtract this opt-out amount from the seasonal allocation of Chinook salmon PSC to the sector or cooperative in which that vessel is a member or, for a CDQ group, to the CDQ Program. This reduction in the allocations of the 60,000 Chinook salmon PSC limit for vessels and CDQ groups that fish under the opt-out allocation is necessary to ensure that total bycatch does not exceed the 60,000 Chinook salmon PSC limit.

For example, if all vessels in an inshore cooperative (called cooperative A in this example) that collectively represents 31.145 percent of the inshore sector's allocation of pollock do not participate in an IPA and if all of the other inshore cooperatives do participate in an approved IPA, the adjustments that would be made to the number of Chinook salmon allocated to the inshore cooperatives participating in an IPA and the amount of Chinook salmon that would be allocated to the opt-out allocation are explained below:

(1) The inshore sector's allocation of the 60,000 Chinook salmon PSC limit is 20,916 in the A season and 12,474 in the B season.

(2) If cooperative A would have participated in an IPA, it would have been allocated its portion of the inshore sector's allocation as a transferable Chinook salmon allocation. This allocation would be 31.145 percent of the inshore sector's allocation; 6,514 Chinook salmon in the A season (20,916 * .31145) and 3,885 Chinook salmon in the B season (12,474 * .31145).

(3) The inshore sector's proportion of 28,496 Chinook salmon is 9,933 in the A season and 5,925 in the B season.

(4) The portion of 28,496 that is represented by cooperative A is 3,094 Chinook salmon in the A season (9,933 * .31145) and 1,845 Chinook salmon in the B season (5,925 * .31145).

(5) This amount of Chinook salmon (3,094 in the A season and 1,845 in the B season) would be added to the opt-out allocation. All of the vessels in cooperative A would fish as a group under this opt-out allocation, along with any other vessels or CDQ groups not participating in an IPA and the additional Chinook salmon allocated to the opt-out allocation associated with those other vessels or CDQ groups.

(6) Chinook salmon allocated to the opt-out allocation would not be available to the remaining inshore cooperatives that are participating in an approved IPA and fishing under their transferable allocations of the inshore sector allocation.

(7) The difference between the amount of Chinook salmon that would have been allocated to the inshore sector for cooperative A and the amount allocated to the opt-out allocation is 3,420 in the A season (6,514−3,094) and 2,040 in the B season (3,885−1,845). This amount of Chinook salmon is forfeit by cooperative A.

(8) The amount of Chinook salmon forfeit by cooperative A would be redistributed among the inshore cooperatives participating in an IPA in proportion to each cooperative's annual pollock allocation. NMFS would issue each inshore cooperative participating in an IPA a transferable PSC allocation equal to its portion of the inshore sector Chinook salmon PSC allocation plus its portion of Chinook salmon forfeit by the inshore cooperative opting out of an IPA.

Additional examples of calculations of the reductions of sector allocations and the amount added to the opt-out allocation for each AFA sector are

provided in section 2.5.6 of the EIS (
see

ADDRESSES
).

If some members of the catcher/processor sector or the mothership sector opt out of an IPA, the proportion of 28,496 Chinook salmon associated with these vessels would be subtracted from the amount of Chinook salmon allocated to the sector under the 60,000 PSC limit and this same amount would be added to the opt-out allocation. The remaining Chinook salmon PSC allocated to the sector would be available to all members of the sector participating in an IPA. Because the catcher/processor and mothership sector receive a single allocation of Chinook salmon, no redistribution by NMFS of the amount of Chinook salmon “forfeit” by the members of these sectors opting out of an IPA would be necessary. This redistribution would be done by private contractual arrangement with the remaining members of the sector that are participating in an IPA.

If an IPA is approved, but all members of a particular sector do not participate in an IPA, then the difference between their sector allocation of the 60,000 PSC limit and the amount of Chinook salmon allocated to the opt-out allocation (their portion of 28,496) is not redistributed among members of the other sectors. NMFS would redistribute the “forfeit” Chinook salmon within the inshore and CDQ sectors so that the process for allocating Chinook salmon PSC between the sectors and the opt-out allocation is consistent among all sectors. However, when an entire sector does not participate in an IPA, all members have chosen to forfeit Chinook salmon and fish under the opt-out allocation. This forfeited Chinook salmon would not be allocated and would be a net savings of Chinook salmon bycatch under the 60,000 Chinook salmon PSC limit.

Each vessel fishing under the opt-out allocation would continue to fish for pollock under the allocation of BS pollock that applies to the vessel under current regulations. An inshore catcher vessel that is a member of an inshore cooperative would fish under the inshore cooperative's allocation of pollock. An inshore catcher vessel that is not a member of an inshore cooperative would fish under the inshore open-access fishery's pollock allocation. The catcher/processor sector, the mothership sector, and the CDQ groups would continue to fish under their seasonal allocations of pollock. Although unlikely, it is possible that some vessels in the catcher/processor sector or mothership sector, or some vessels in an inshore cooperative, would participate in an IPA and other members of the sector or inshore cooperative would not participate in an IPA. In this case, a group of vessels would be fishing together under the same allocation of pollock, but would be fishing under separate allocations of the Chinook salmon PSC limit. Those participating in an IPA would be fishing under transferable allocations of Chinook salmon PSC issued to the entity that represents them and those not participating in an IPA would be fishing under the opt-out allocation.

All vessels fishing under the opt-out allocation would be managed by NMFS as a group for purposes of Chinook salmon PSC limits, regardless of the sector, inshore cooperative, or CDQ group on whose behalf they were fishing for purposes of their pollock allocations. All Chinook salmon bycatch by these vessels fishing under the opt-out allocation would accrue against the opt-out allocation. Chinook salmon bycatch in the opt-out allocation would be non-transferable, because the salmon are not being allocated to an entity. There would be no rollover of unused Chinook salmon in the A season opt-out allocation to the B season opt-out allocation because, under the 60,000 PSC limit, this flexibility is offered only to those participating in an IPA. The Council specifically intended that more restrictive management measures would apply to the opt-out allocation to increase the incentive to participate in an IPA.

NMFS would close directed fishing for pollock by all vessels fishing under the opt-out allocation when NMFS determines that the seasonal opt-out allocation will be reached. If some vessels in a sector or inshore cooperative were fishing under the opt-out allocation and others were fishing under transferable Chinook salmon PSC allocations, and if the sector or inshore cooperative had not yet reached its seasonal pollock allocation, those vessels fishing under the transferable Chinook salmon PSC allocations could continue to fish for pollock while the vessels fishing under the opt-out allocation would be required to stop fishing for pollock because the opt-out allocation had been reached.

One of the more complicated scenarios that could occur under Amendment 91 would be if a number of inshore catcher vessels did not join an inshore cooperative, and some participated in an IPA but others did not. If an inshore catcher vessel does not join a cooperative, it fishes under an allocation of pollock to the inshore open-access fishery. That pollock allocation is based on the pollock catch history associated with each vessel not joining a cooperative. For this example, assume that two inshore catcher vessels did not join a cooperative and were fishing under seasonal allocations of pollock to the inshore open access fishery. Regardless of which Chinook salmon PSC allocation they were fishing under or the status of those PSC allocations, both vessels would be required to stop fishing for pollock when their combined catch of pollock reached the amount of pollock allocated to the inshore open-access fishery. If one of these vessels participated in an IPA but the other did not, the vessel participating in an IPA would be fishing under an amount of Chinook salmon allocated to the inshore limited access fishery based on that vessel's proportion of pollock catch history shown in Column D of proposed Table 47c to part 679. Even if pollock remained available to the two vessels fishing in the inshore open-access fishery, once the allocation of Chinook salmon to the inshore open-access fishery was reached, the operator of the vessel participating in an IPA would be required to stop fishing for pollock. The other vessel that did not participate in an IPA would be fishing under the opt-out allocation. As long as Chinook salmon remained available in the opt-out allocation and pollock remained available in the inshore open-access allocation of pollock, this vessel could continue to fish for pollock.

Predicting when a salmon PSC limit will be reached by a group of vessels is difficult for NMFS under any circumstances because of the variability and unpredictability of salmon bycatch. If only a few vessels fished under the opt-out allocation, the amount of Chinook salmon PSC in the opt-out allocation could be very small and it would be difficult for NMFS to accurately project when the opt-out allocation would be reached. If the closure date selected by NMFS resulted in more Chinook salmon caught than the A season opt-out allocation, the amount over the A season allocation would be deducted by NMFS from the B season opt-out allocation. However, if the closure date selected by NMFS in the B season resulted in more Chinook salmon caught in the year than was allocated to the opt-out allocation, NMFS could not reduce the amount of Chinook salmon PSC allocated to other entities or fisheries, because these allocations would have already been made and could not be withdrawn by NMFS due to bycatch by vessels fishing under the opt-out allocation. Based on NMFS's experience with other programs that allocate transferable amounts of groundfish, halibut, crab, or prohibited species, even if one entity or fishery

exceeds its portion of an allocation, generally the overall allocation is not exceeded because other entities do not harvest their full allocations. With all of the restrictions that would be in place under the 60,000 PSC limit, particularly the performance standard, even if the opt-out allocation were exceeded or an entity receiving a transferable allocation exceeded its allocation, it is unlikely that the total amount of Chinook salmon bycatch in the BS pollock fishery will reach even the lower limit of 47,591 in a year.

Chinook Salmon Bycatch Performance Standard for Sectors

The proposed rule includes a Chinook salmon bycatch performance standard for each sector that has at least some members participating in an IPA. In addition to participation by at least some members in an IPA, for each sector to continue to receive its allocation of the 60,000 Chinook salmon PSC limit, the total annual Chinook salmon bycatch by all members of a sector participating in an IPA could not exceed the sector's “annual threshold amount” in any three years within a consecutive seven-year period. Although Chinook salmon PSC allocations would be made to the inshore cooperatives and the CDQ groups, the performance standard would apply to the sector, not to individual inshore cooperatives or CDQ groups.

Before each fishing year, NMFS would calculate each sector's annual threshold amount. If all members of a sector participate in an IPA that year, a sector's annual threshold amount would be that sector's portion of the 47,591 PSC limit, which is the annual total of the A and B season allocations for that sector under the 47,591 PSC limit shown in Table 1 of this preamble. For example, the mothership sector's annual portion of 47,591 is 3,707 Chinook salmon (2,665 A season + 1,042 B season). If all catcher vessels delivering to motherships participated in an IPA that year, the mothership sector's annual threshold amount for that year would be 3,707 Chinook salmon. If all catcher vessels in the mothership sector participated in an IPA in each of seven consecutive years, the mothership sector would maintain its allocation of 4,674 Chinook salmon PSC under the 60,000 PSC limit as long as the Chinook salmon bycatch by all vessels in the mothership sector was less than or equal to 3,707 Chinook salmon in at least five of those seven years.

If some, but not all, members of a sector participate in an IPA, NMFS would reduce that sector's annual threshold amount by an amount equal to the sum of each of the non-participating vessel's portion of 47,591. The amount of Chinook salmon associated with each vessel in each sector is shown in Column G of proposed Tables 47a through 47c to part 679 and for each CDQ group in Column E of proposed Table 47d to part 679.

Continuing with the example of the mothership sector, and using the information from Column G of proposed Table 47b to part 679, the annual threshold amount for the mothership sector would be adjusted downward from 3,707 Chinook salmon if any catcher vessels in the sector did not participate in an IPA. For example, if all catcher vessels in the mothership sector except the F/V American Beauty participated in an IPA, the mothership sector's annual threshold amount would be 3,484 Chinook salmon. This amount is determined by subtracting 223, the number of Chinook salmon that represents the F/V American Beauty' portion of 47,591 from Column G of proposed Table 47b, from 3,707. The F/V American Beauty would be fishing under the opt-out allocation and its bycatch would not accrue against the mothership sector's annual threshold amount for that year.

At the end of each fishing year, NMFS would evaluate each sector's annual bycatch against that sector's annual threshold amount. Only the bycatch of vessels or CDQ groups participating in an IPA would accrue against a sector's annual threshold amount. If a sector's annual bycatch exceeds its annual threshold amount in any three years within seven consecutive years, NMFS would reduce that sector's Chinook salmon PSC allocation to that sector's portion of 47,591 Chinook salmon for all future years. A sector's annual threshold amount does not change when vessels from other sectors or entire sectors opt-out of an IPA or if another sector exceeds its performance standard.

If all members of a sector did not participate in an IPA, then the annual threshold amount would be zero because the full amount of the sector's portion of 47,591 would have been subtracted from the initial amount of the annual threshold amount. For example, the mothership sector's share of 47,591 is 3,707 Chinook salmon. If all catcher vessels eligible to deliver to motherships did not participate in an IPA, then the sum of the amount each vessel represented of 3,707 would be subtracted from 3,707. This would leave an annual performance threshold of zero for the mothership sector. However, only bycatch by vessels participating in an IPA accrue against the annual threshold amount, so when no members of a sector participate in an IPA, no Chinook salmon bycatch accrues against the sector's annual threshold amount and, as long as this continues throughout the seven consecutive years, the sector would not exceed its performance standard and would continue to fish under the opt-out allocation. This outcome is consistent with the intent of the Council for the performance standard because fishing under the opt-out allocation, which is a portion of 28,496 Chinook salmon, is more restrictive than fishing under the 47,591 PSC limit.

Transfers and Rollovers

Under this proposed rule, NMFS would issue transferable Chinook salmon PSC allocations under either the 60,000 or 47,591 Chinook salmon PSC limits to eligible entities representing the catcher/processor sector, the mothership sector, inshore cooperatives, and CDQ groups. Transferable allocations would provide the pollock fleet the flexibility to maximize the harvest of pollock while maintaining Chinook salmon bycatch at or below the PSC limit. Transfers are requests to NMFS from holders of Chinook salmon PSC allocations to move a specific amount of a Chinook salmon PSC from a transferor's (sender's) account to a transferee's (receiver's) account. NMFS's approval is required for any transfer.

Eligible entities may transfer Chinook salmon PSC allocations to and from any of the other entities representing sectors, cooperatives, or CDQ groups, subject to the following restrictions: (1) Entities receiving transferable allocations under the 60,000 limit would only be allowed to transfer to and from other entities receiving transferable allocations under the 60,000 limit, (2) entities receiving transferable allocations under the 47,591 limit would only be allowed to transfer to and from other entities receiving transferable allocations under the 47,591 limit, and (3) Chinook salmon may not be transferred between seasons.

Under this proposed rule, requests for transfers may be submitted either electronically or non-electronically through a form available on the NMFS Alaska Region Web site (
http://alaskafisheries.noaa.gov/
). Computer programs would be designed to review the transferor's catch account during a transfer request to ensure sufficient Chinook salmon is available to transfer and, if it were, to make that transfer effective immediately.

Post-delivery Transfers of Chinook Salmon Prohibited Species Catch Allocations.
This proposed rule contains a post-delivery transfer provision similar to the allowances

implemented under Amendment 80 to the FMP and the Central Gulf of Alaska Rockfish Program. If an entity's transferable Chinook salmon PSC allocation account balance falls below zero in a season, the entity would be provided the opportunity to receive transfers of Chinook salmon PSC to bring the entity's account balance back up to zero or above. However, once an account balance falls below zero in each season, vessels participating on behalf of the entity would be prohibited from starting a new fishing trip for the remainder of the season. This requirement would implement the Council's recommendation that “any recipient of a post-delivery transfer during a season may not fish for the remainder of that season.”

A new component would be added to the definition of a fishing trip in § 679.2 to define a fishing trip for purposes of post-delivery transfers of Chinook salmon PSC allocations as “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.” This definition and the associated prohibitions at § 679.7(d)(8)(ii)(C)(
2
) and § 679.7(k)(8)(iii) related to overages would allow catcher vessels fishing for an entity that had exceeded its Chinook salmon PSC allocation to continue to fish for pollock until the end of the current trip even though additional Chinook salmon caught before the end of that fishing trip would increase the amount of the entity's overage. Similarly, any catcher/processor fishing when the catcher/processor sector exceeded its seasonal Chinook salmon PSC allocation could continue to fish for pollock until pollock was next offloaded from the vessel, even if the sector's overage would continue to increase as a result of a catcher/processor completing its fishing trip.

Overages of Chinook salmon PSC would be evaluated on June 25 for the A season and on December 1 for the B season. This would provide entities 15 days after the end of the A season and 30 days after the end of the B season to obtain post-delivery transfers to reduce or eliminate any overages. NMFS proposes that 15 days after the A season is an appropriate amount of time to provide for post-delivery transfers because most A season pollock fishing is completed well before the end of the season on June 10, and NMFS needs to resolve A season account balances relatively quickly so that any necessary adjustments can be made to the B season account balances before B season pollock fishing begins. NMFS proposes to allow 30 days after the end of the B season for post-delivery transfers because pollock fishing will cease for the remainder of the year on November 1, and NMFS does not need to make further adjustments to account balances within a specified period of time at the end of the year. If, after allowing for post-delivery transfers to cover an overage, an entity exceeded its Chinook salmon PSC allocation, the entity could be subject to an enforcement action for violating NMFS regulations.

Rollover of A Season Chinook Salmon Prohibited Species Catch Allocations.
NMFS would add, or “rollover”, any Chinook salmon PSC allocation remaining after the A season for an entity receiving a transferable allocation or for vessels fishing under non-transferable allocations, except the opt-out allocation, to the B season allocation for that entity or sector. This action would be done by NMFS automatically on June 26, after the deadline for post-delivery transfers had passed. The combination of transferable Chinook salmon PSC allocations from one entity to another entity in the A season, plus the automatic rollover of unused A season allocations effectively allows one entity to transfer Chinook salmon from its A season allocation to another entity's B season allocation, as long as the transfer was completed by June 25. This would be accomplished by one entity transferring A season Chinook salmon to another entity during the A season and that second entity not using that Chinook salmon in the A season, but allowing it to roll over to its B season allocation.

Incentive Plan Agreement

An IPA is a private contract among vessel owners or CDQ groups that establishes incentives for participants to reduce Chinook salmon bycatch. The parties to an IPA, or the people who would sign the contract, would be the owners of AFA-eligible catcher vessels, catcher/processors, or motherships, or the representatives of CDQ groups. The proposed rule would allow the representative of an AFA cooperative or a sector-level entity formed under Amendment 91 to sign an IPA on behalf of all vessel owners that are members of that inshore cooperative or sector-level entity.

If NMFS approves at least one IPA, those participating in an IPA would receive an allocation of the 60,000 Chinook salmon PSC limit. Those not participating in an IPA would be considered to be “opting-out” of an IPA and would fish under the opt-out allocation.

Incentive Plan Agreement Components.
The IPA concept includes (1) the NMFS approved IPA that contains the elements of the incentive program that all parties to the IPA (vessel owners, CDQ groups, or both) agree to follow and (2) the annual report to the Council about performance under the IPA in the previous year.

The deadline for an application for approval of a proposed IPA is October 1 of the year prior to the year in which the IPA is proposed to be effective. This deadline is necessary to allow enough time for NMFS to review the proposed IPA and to issue a decision on its approval or disapproval prior to the start of the next fishing year.

An IPA would be required to contain a written description of the following:

(1) The incentive(s) that would be implemented under the IPA to ensure that the operator of each vessel governed by the IPA will avoid Chinook salmon bycatch at all times while directed fishing for pollock in the BS;

(2) The rewards for avoiding Chinook salmon bycatch, penalties for failure to avoid Chinook salmon bycatch at the vessel level, or both;

(3) How the incentive measures in the IPA are expected to promote reductions in a vessel's bycatch rates relative to what would have occurred in absence of the incentive program;

(4) How the incentive measures in the IPA promote Chinook salmon bycatch 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 bycatch; and

(5) How the IPA ensures that the operator of each vessel governed by the IPA will manage his or her bycatch to keep total bycatch below the performance standard for the sector in which the vessel participates.

An IPA would be required to identify the AFA vessels that are participating in the IPA. However, the IPA would not be required to list all of the vessels that a CDQ group plans to use to harvest its BS pollock allocation. A CDQ group would participate in an IPA on behalf of all vessels directed fishing for pollock for that CDQ group. If a CDQ group representative signs an IPA, all vessels directed fishing for pollock for that CDQ group would be required to participate in the IPA. Information submitted to NMFS on industry observer reports are sufficient for NMFS to identify vessels fishing for pollock CDQ on behalf of a CDQ group.

Vessel and CDQ group participation in an IPA would be voluntary. However, any vessel or CDQ group permitted to receive pollock allocations under the AFA that wants to join an IPA must be allowed to join subject to the terms that have been agreed upon by all parties to that IPA. NMFS would post a copy of any proposed IPA on its website so that the public is informed that a proposed IPA is under review by NMFS. A participant who believed that they were involuntarily excluded from the IPA could submit documentation of the violation with a challenge to NMFS's approval of the proposed IPA. NMFS would have to review this information and determine whether the assertion was valid. If it were, NMFS would disapprove the proposed IPA. Further resolution of the issue could then occur through NMFS's administrative appeal process. However, an appeal on the issue of involuntary exclusion could be difficult and time consuming to resolve, and an on-going appeal would require all participants to fish under the PSC limit that would apply if the IPA under appeal was not in effect.

Each IPA representative would be required to submit an annual report to the Council by April 1 each year after the first full year of operation of an IPA. If an IPA is approved for 2011, the Council would receive the first annual report on this IPA by April 1, 2012.

The IPA annual report would be the primary tool through which the Council would evaluate whether its goals for the IPAs are being met. The IPA annual report would be required to 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 the reasons that the amendments to the IPA were made.

Minimum Participation.
To be approved by NMFS, the Council recommended that an IPA must meet a minimum participation requirement of vessel owners or CDQ groups that (1) “represent not less than 9 percent of the pollock quota” and (2) be composed of at least two unaffiliated AFA companies or CDQ groups. The Council intended the minimum participation requirement for the IPA to allow members of different sectors to join together to form an IPA, but not force members of different sectors to join with other sectors. They expressed this intent through the minimum participation requirement related to the “percent of pollock quota”. This method is based on the percentage allocations of pollock associated with each sector in the AFA and not on the actual percent of the annual TAC that is allocated to each sector. Ten percent of the pollock TAC is allocated to the CDQ Program. After subtraction of the incidental catch allowance, the remaining amount of pollock (the “directed fishing allowance”) is allocated among the catcher/processor, mothership, and inshore sectors.

In the proposed rule, the proportions for each sector (and for vessels in each sector) that NMFS would use to determine minimum participation are shown in Column H of proposed Table 47a to part 679 for the catcher/processor sector, proposed Table 47b to part 679 for the mothership sector, and proposed Table 47c to part 679 for the inshore sector. The 9 percent associated with the mothership sector for purposes of the minimum participation requirements under this proposed rule derives from multiplying 90 percent, which is 100 percent minus the 10 percent associated with the CDQ Program allocation, by the mothership sector's allocation of 10 percent of the pollock directed fishing allowance. Similarly, the 36 percent associated with the catcher/processor sector is 90 percent multiplied by catcher/processor sector's 40 percent allocation of the directed fishing allowance, and the 45 percent associated with the inshore sector is 90 percent multiplied by the inshore sector's 50 percent allocation of the directed fishing allowance. While these percentages do not represent either the percent of the pollock TAC or the percent of the pollock directed fishing allowance allocated to the non-CDQ sectors each year, they represent a method of expressing the percent of the “pollock quota” associated with each sector that can be used to specify minimum participation requirements for the IPA, which would not change as the incidental catch allowance changes.

If some, but not all, vessel owners in a sector participated in an IPA, then the minimum participation requirements would be evaluated based on the sum of the proportion of the amount of pollock available for directed fishing that is associated with each vessel.

NMFS Approval of an IPA.
Approval or disapproval of an IPA by NMFS would be an administrative determination. NMFS would review a proposed IPA by comparing the actual content of a proposed IPA with the information requirements in regulations, and would decide whether the proposed IPA provides the required information. Because 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 long as a proposed IPA contains all of the information required in NMFS regulations and it generally describes an incentive program that is designed to accomplish the goals specified in regulation, NMFS would approve the IPA. In reviewing the proposed IPAs, NMFS would not judge the expected adequacy of the incentives described. Judgments about the efficacy or outcomes of the proposed incentive plans would be subjective and the regulations would not provide a legal basis for NMFS to disapprove a proposed IPA because NMFS does not believe that the proposed measures would succeed. Minor errors or omissions in the proposed IPA could be resolved by NMFS contacting the IPA representative, in writing, and requesting revisions to the IPA. All approved IPAs would be made available for Council and public review.

If NMFS approves an IPA, the IPA representative would be notified in writing of the approval and a copy of the IPA and the list of participants would be posted on the NMFS Alaska Region Web site (
http://alaskafisheries.noaa.gov/
). Once approved, an IPA would remain in effect unless it contains an expiration date, until the IPA representative notifies NMFS that the IPA is terminated, or until NMFS approves an amendment to the IPA, except that an IPA could not be terminated or expire mid-year. An existing IPA would not have to be re-submitted each year. Representatives of inshore cooperatives or the entities representing the catcher/processor or mothership sectors could sign a proposed IPA on behalf of all members of the cooperative or sector-level entity. Once party to an IPA, a vessel owner, sector-level entity, inshore cooperative, or CDQ group could not withdraw from the IPA or remove a vessel from the IPA until after the close of a fishing year.

Amendments or revisions to the terms and conditions of an IPA could be submitted to NMFS by the IPA representative at any time, except that proposed amendments to change the participants in the IPA mid-year, or to terminate or end an IPA, would not be approved. Mid-year revisions to an incentive plan are not likely because of the cost associated with getting all parties to agree to any changes and the time involved in obtaining the

signatures needed for a contract revision. However, particularly in the first few years of an IPA, the flexibility to adjust the incentive plan mid-year may be necessary, and it is preferable to allow these amendments rather than have necessary adjustments made outside of the contract where they would not be apparent to the Council, the public, or those evaluating the effectiveness of the IPAs. The proposed rule includes a requirement that any amendments to an approved IPA (and the reasons for these amendments) be described by the IPA representative in the annual report to the Council. If an amendment is submitted, NMFS would review whether the IPA, if amended, would continue to comply with all applicable requirements. The original, approved IPA would be effective until NMFS approved an amendment. If an amendment were disapproved, the existing approved IPA would remain in effect.

If NMFS determines that the regulatory requirements for the IPA were not met, it would issue an initial administrative determination (IAD) explaining the reasons that the proposed IPA did not comply with Federal regulations. Examples of reasons for disapproval are a complete lack of information that responds in any way to one or more of the IPA requirements, information that did not make sense in such an obvious way as to be clearly not responsive to the requirements, a component of an IPA that was specifically designed to exceed the performance standard, or a description of a component of the IPA that was in conflict with another regulation or law governing the BS pollock fishery.

If NMFS issued an IAD disapproving a proposed IPA, the IPA representative could either submit a revised IPA that addressed the issues identified in the IAD or file an administrative appeal. While an appeal is pending, participants in the proposed IPA may not receive transferable Chinook salmon allocations under the 60,000 PSC limit. If no other IPA were approved, all AFA participants would receive transferable allocations under the 47,591 PSC limit. If an IPA were approved for other participants in the BS pollock fishery, those participating in the IPA under appeal would fish under the opt-out allocation because, at the beginning of the fishing year, they would not be participants in an approved IPA.

Final agency action on an administrative appeal to approve a proposed IPA that occurred after January 19 of any year would be effective in the year after the administrative appeal is resolved. Once Chinook salmon PSC allocations are issued at the beginning of the year and computer programs are established to accrue Chinook bycatch from each vessel participating in the BS pollock fishery to the appropriate Chinook salmon PSC allocation, NMFS could not reissue Chinook salmon PSC allocations or reassign vessels or CDQ groups to another allocation account.

Proposed Monitoring and Enforcement Requirements

This proposed rule would place constraints on the BS pollock fishery that currently do not exist. The only regulatory measure that currently prevents the full harvest of a pollock allocation is the end of a fishing season, and no PSC limits currently prevent pollock fishermen from full harvest of their allocations. Amendment 91 would implement Chinook salmon PSC limits that, if reached, could prevent the full harvest of a pollock allocation by a sector, inshore cooperative, or CDQ group. Each entity receiving a transferable Chinook salmon PSC allocation would be prohibited from exceeding that allocation. Once a Chinook salmon PSC allocation has been reached, the only way to prevent further overages of that allocation is for all vessels fishing on behalf of the entity with the overage to stop fishing for pollock.

The EIS explains why current methods of estimating Chinook salmon bycatch in the BS pollock fishery are not adequate to support monitoring and enforcement of the Chinook salmon PSC limits and must be improved. See sections 2.5.8 and 3.1 of the EIS (see
ADDRESSES
). The following sections describe NMFS's proposed regulatory amendments to accomplish the improvements to Chinook salmon bycatch monitoring in the BS pollock fishery necessary to support the Council's objectives under Amendment 91.

With this proposed rule, NMFS would use the same method of accounting for Chinook salmon bycatch for all AFA sectors. NMFS believes that to accurately count salmon for Chinook salmon PSC allocations, the following requirements must be implemented under this proposed rule: (1) Observer coverage for all vessels and processing plants, (2) retention requirements, (3) specific areas to store and count all salmon, (4) video monitoring on at-sea processors, and (5) electronic reporting of salmon by species by haul or delivery. Prohibitions against the discard of salmon in the BS pollock fishery would be added to prohibitions for the CDQ Program (at § 679.7(d)(8)(ii)(A)) and for the AFA (§ 679.7(k)(8)(i)).

Catcher Vessels Delivering to Inshore Processors

Currently, the Chinook salmon bycatch rates from observed vessels are used to estimate Chinook salmon bycatch by the unobserved vessels delivering pollock to inshore processors. This method of accounting for Chinook salmon bycatch would not be adequate for monitoring and enforcement of transferable PSC allocations under Amendment 91.

Under this proposed rule, catcher vessels delivering pollock, including pollock CDQ, to inshore processors would be required to retain all salmon of any species caught while directed fishing for pollock in the BS, and to deliver that salmon together with its pollock catch to an inshore processor with an approved catch monitoring and control plan (CMCP). Full retention of all salmon regardless of species would be required because it is difficult to differentiate Chinook salmon from other species of salmon without direct identification. NMFS proposes that identification of and counting of salmon would occur at the shoreside processing plant or on the floating processor where conditions for identification and counting of salmon can be better monitored and controlled.

In addition, catcher vessels delivering to inshore processors would be required to carry an observer at all times while directed fishing for pollock in the BS. Currently, observer coverage for these catcher vessels is based on vessel length with one observer required at all times for vessels greater than 125 feet length overall (LOA) and an observer required for 30 percent of the fishing days for vessels between 60 feet and 125 feet LOA (see § 679.50(c)(1)(v)). An observer would be required on every catcher vessel, primarily to monitor compliance with the requirement to retain all salmon to ensure that all salmon bycatch is counted at the processing plant. These duties would not require an observer with prior experience or a “level 2” endorsement as defined at § 679.50(j)(1)(v)(D).

The observer on a catcher vessel is responsible for identifying and counting salmon, and collecting scientific data or biological samples from a delivery. These duties must be completed as soon as possible after the delivery so that information about salmon bycatch from each delivery is available to NMFS, the vessel operator, and the entity responsible for the Chinook salmon bycatch by this vessel. Therefore, this proposed rule would prohibit the

operator of a catcher vessel from starting a new fishing trip for pollock in the BS until the observer assigned to their vessel had completed their duties in the processing plant. The vessel operator could obtain a different observer if he or she needed to start a new trip before the observer from the previous delivery was finished with duties associated with the previous delivery.

Inshore Processors

Under current regulations, each inshore processor that receives AFA pollock is required to develop and operate under a NMFS-approved CMCP. The procedures established under the AFA for the CMCPs were designed to monitor the weighing of pollock at the inshore processing plants. Proper weighing of large volumes of a target species such as pollock require different conditions than does the proper sorting, identification, and counting of a more infrequently occurring bycatch species such as salmon. Salmon can be difficult to see, identify, and count amid the large volume of pollock. The factory areas of processing plants are large and complex. Preventing observers from seeing salmon that enter the factory area of the processing plant would not be difficult. In addition, observers must examine each salmon to verify the species identification. Therefore, NMFS proposes that the following additions to requirements for the inshore processors are needed to ensure that observers have access to all salmon bycatch prior to the fish being conveyed into the processing area of the plant:

(1) Processors would be prohibited from allowing salmon to pass from the area where catch is sorted and into the factory area of the processing plant;

(2) The observer work station currently described in regulations at § 679.28(g) would be required to be located within the observation area identified in the CMCP;

(3) A location must be designated within the observation area for the storage of salmon; and

(4) All salmon of any species must be stored in the observation area and within view of the observer at all times during the offload.

Because these requirements would be effective for the 2011 fishing year, inshore processors would have to modify their plants to meet these requirements and have these modifications reflected in CMCPs approved by NMFS prior to January 20, 2011.

Observers would identify the species of each salmon, count each salmon, record the number of salmon by species on their data form, and transmit that information electronically to NMFS. Data submitted by the observer would be used by NMFS to accrue Chinook salmon bycatch against an entity's allocation. The manager of the inshore processor would be provided notice by the observer when he or she will be conducting the salmon count and would be provided an opportunity to witness the count. Information from the observer's salmon count would be made available to the manager of the inshore processor for their use in submitting this information to NMFS on electronic logbooks or landings reports.

Requirements to deliver pollock to inshore processors that have approved CMCPs currently apply only to AFA catcher vessels delivering non-CDQ pollock to inshore processors. These requirements do not apply to catcher vessels directed fishing for pollock on behalf of a CDQ group. With few exceptions, pollock allocated to the CDQ Program since 1992 has been processed at sea on catcher/processors or motherships. Therefore, this requirement would not require any of the CDQ groups to stop delivering pollock CDQ to a currently-contracted processing partner. In the future, if they chose to have pollock CDQ delivered to a shoreside processing plant, the catcher vessel used to harvest the pollock CDQ would be required to comply with the retention and observer coverage requirements described above and the pollock would have to be delivered to a processor with an approved CMCP. This requirement is necessary to ensure that salmon bycatch from the pollock CDQ fisheries are properly counted and reported.

Catcher/Processors and Motherships

Current methods for estimating salmon bycatch by catcher/processors and catcher vessels delivering to motherships rely on requirements for two observers on each catcher/processor and mothership and using observers' species composition sample data to estimate the number of salmon in each haul. This method has been adequate to estimate Chinook salmon bycatch for management of the current trigger cap that applies to the BS pollock fishery as a whole.

However, in the proposed rule, NMFS proposes to use a census or a full count of Chinook salmon bycatch in each haul by a catcher/processor and delivery by a catcher vessel to a mothership or catcher/processor as a basis for monitoring and enforcing the Chinook salmon PSC allocations under Amendment 91. This would eliminate the uncertainty associated with extrapolating from species composition samples to estimates of the total number of salmon caught in each haul and support the level of precision and reliability that both the vessel owners and NMFS require to monitor and enforce Chinook salmon PSC limits.

NMFS supports the use of a census on catcher/processors and motherships, as long as conditions exist to properly monitor that all of the salmon bycatch is retained and to provide the observer with the tools needed to identify, count, and report salmon bycatch by haul or delivery by catcher vessels. Current regulations require the retention of salmon “until the number of salmon has been determined by an observer.” Observers report the count of salmon for each haul in data submitted to NMFS and vessel operators separately report the count of salmon bycatch each day on their daily production reports.

To ensure accurate counts of salmon on catcher/processors and motherships, NMFS proposes the following requirements:

(1) No salmon of any species would be allowed to pass from the observer sample collection point and into the factory area of the catcher/processor or mothership;

(2) All salmon bycatch of any species must be retained until it is counted by an observer;

(3) Vessel crew must transport all salmon bycatch from each haul to an approved storage location adjacent to the observer sampling station so that the observer has free and unobstructed access to the salmon, and the salmon must remain within view of the observer from the observer sampling station at all times;

(4) The observer must be given the opportunity to count the salmon and take biological samples, even if this requires the vessel crew to stop sorting or processing catch until the counting and sampling is complete;

(5) The vessel owner must install a video system with a monitor in the observer sample station that provides views of all areas where salmon could be sorted from the catch and the secure location where salmon are stored; and

(6) The counts of salmon by species must be reported by the operator of a catcher/processor for each haul, using an electronic logbook that will be provided by NMFS as part of the current eLandings software.

The operator of the catcher/processor or mothership would be provided notice by the observer when he or she will be conducting the count of salmon and would be provided an opportunity to witness the count. Information from the observer's count of salmon would be made available to the vessel operator for

their use in submitting this information to NMFS on electronic logbooks or landings reports.

The video requirements would be similar to those currently in place for monitoring fish bins on non-AFA trawl catcher/processors. An owner of a catcher/processor would be required to provide and maintain cameras, a monitor, and a digital video recording system for all areas where sorting and storage of salmon, prior to being counted by an observer, could occur. The video data must be maintained and made available to NMFS upon request for 120-days after the date the video is recorded. The video systems would also be subject to approval by NMFS at the time of the observer sample station inspection. In order for the video system to be effective and ensure the observer has access to all salmon prior to entering the factory area, no salmon of any species would be allowed to pass the last point where sorting could occur.

These requirements would be effective for the 2011 fishing year so catcher/processors and motherships would have to modify their vessels to meet these requirements and have these modifications approved by NMFS prior to January 20, 2011.

On September 23, 2009, NMFS conducted a workshop on proposed monitoring requirements for catcher/processors and motherships (74 FR 43678, August 27, 2009). At that workshop, participants asked NMFS two main questions about the proposed video requirements.

First, participants asked for clarification about the ownership and confidentiality status of video data recorded to monitor salmon bycatch sorting and storage on catcher/processors and motherships. Video data collected as a requirement of regulations belong to the vessel owner and, under proposed regulations at § 679.28(j)(1)(v), must be retained onboard the vessel for at least 120 days after the date the video is recorded. Similar to logbook requirements the observer may request to view any of the recorded video data at any time, but such a request to view a recording does not require the observer to take custody of the hard drive on which the video data are recorded. Therefore, video data remains in the custody of the vessel owner or operator unless they are submitted to NMFS in response to a request from NMFS under § 679.28(j)(1)(v). When video data are in the custody of the vessel operator, they are not subject to the Freedom of Information Act (FOIA) and NMFS may not require the vessel operator to provide video data to the public in response to a FOIA request. If video data are submitted to NMFS, they would be covered by the confidentiality laws and regulations that apply to any data or information in NMFS's possession. These laws include the FOIA, the Trade Secrets Act, and the Magnuson-Stevens Act. Under section 402(b) of the Magnuson-Stevens Act, information submitted to NMFS pursuant to a requirement under the Magnuson-Stevens Act is considered confidential. Video data required to be submitted to NMFS under § 679.28(j) are covered by these confidentiality provisions of the Magnuson-Stevens Act because the regulations in 50 CFR part 679 are promulgated under the authority of the Magnuson-Stevens Act. In addition, the FOIA or the Trade Secrets Act may prevent release of certain commercial information, which may include these video data. Finally, NMFS also must comply with regulatory guidelines in 50 CFR 600.415
et seq.,
which control collection, handling, and disclosure of confidential fisheries information.

Second, participants asked what would happen if the video equipment failed and could not be immediately repaired. Participants wanted to know if NMFS has a contingency plan that would allow the vessel operator to continue to sort and process catch from the BS pollock fishery until the video equipment is repaired. The requirement to record video of all areas in the factory where salmon are sorted from the catch and where salmon are stored until they are counted by an observer is an important component to monitoring compliance with Chinook salmon bycatch management measures under Amendment 91. Therefore, the requirements at § 679.28(j) must be met when the catcher/processor or mothership is sorting or processing catch from the BS pollock fishery. The video systems that will comply with these proposed regulations are relatively simple systems with many easily replaceable components. The vessel operator should carry additional video system components so that the systems may be repaired while at sea with minimal lost time fishing. If some component of the video system fails when this equipment is required to be operational, and if the video system cannot be repaired at sea, the vessel operator should inform the NOAA Office of Law Enforcement (OLE) about the video failure.

Operators of catcher/processors participating in the BS pollock fishery would be required to report the salmon bycatch counts by species for each haul rather than the daily total currently required. This count would be required to be submitted to NMFS using an electronic logbook so that the data are readily available to NMFS in an electronic format. Reporting the count of all salmon by species for each haul would not change or increase the amount of information that is required to be gathered by vessel operators because, to report the number of salmon by species each day, as they currently are required to do, vessel operators must obtain a count and identification of salmon in each haul and sum that information to get the daily totals.

The electronic logbooks would replace the paper logbooks currently required to be submitted by the operators of catcher/processors under § 679.5(c)(4). Current regulations require recording the following information in paper logbooks: Vessel identifying information and catch-by-haul information including haul number; date, time, and location of gear deployment and retrieval; average sea depth and average gear depth for each haul, target species of the haul, estimate weight of the haul, and information about retention of certain species. All of this information would now be submitted using the electronic logbook.

The electronic logbooks would be an additional component to “eLandings,” the program through which the operators of catcher/processors currently submit their daily production reports. The requirement to maintain and submit daily logbook information electronically instead of maintaining and submitting a paper logbook is not expected to increase costs for the catcher/processors. The electronic logbook software would be developed by NMFS and provided to the vessel operator as part of the eLandings software that is updated annually by NMFS. Data entry for the electronic logbooks would be done on the same computer as already is required on the vessel to submit the electronic daily production reports. The same communications hardware and software currently used for eLandings could be used for the electronic logbooks. The vessel operators would be required to print out a copy of the electronic logbook and maintain it onboard the vessel. The additional cost of data entry of information into the electronic logbook should be offset by the reduction in cost associated with maintaining the paper logbook.

AFA catcher/processors required to use an electronic logbook for their participation in the BS pollock fisheries also would be required to use this electronic logbook for the entire year for any other fishery in which they participate. Use of the electronic

logbook all year for all fisheries is necessary to provide logbook information from a vessel to NMFS in a consistent format throughout the year for all fisheries in which that vessel participates. In 2008, 13 of the 17 catcher/processors that fished in the BS pollock fishery also participated in other fisheries, primarily yellowfin sole and Pacific cod. The days fishing in non-pollock fisheries represented 20 percent of the total fishing days for these vessels in 2008.

Electronic logbooks would not be required for the AFA motherships or catcher vessels. Motherships already are required under § 679.5(e)(6) to submit daily an electronic landings report that includes a report of the number of salmon by species in each delivery by a catcher vessel. When NMFS develops the electronic logbook component of eLandings for the AFA catcher/processors, it likely also will develop an electronic logbook for the motherships, which could be used voluntarily in place of the paper logbook. Electronic logbooks also would not be required for catcher vessels delivering to inshore processors because the counting and reporting of the number of salmon by species in each delivery would be done at the processing plant and reported in the inshore processor's electronic logbook.

Release of Information About Chinook Salmon Prohibited Species Catch Allocations and Catch

Under this proposed rule, the NMFS Alaska Region would post on its Web site (
http://alaskafisheries.noaa.gov/
) (1) The Chinook salmon PSC allocations for each entity receiving a transferable allocation, (2) each entity's Chinook salmon bycatch, and (3) the vessels fishing on behalf of that entity for that year. NMFS would update the Web site to reflect any transfers of Chinook salmon PSC allocations.

For non-transferable allocations, the NMFS Alaska Region would also post on its Web site (1) the amount of each non-transferable allocation, (2) the Chinook salmon bycatch that accrued towards that non-transferable allocation, and (3) the vessels fishing under each non-transferable allocation. NMFS would update the website to reflect any changes to the B season non-transferable allocations from rollovers or deductions for overages in the A season.

Information about Chinook salmon bycatch is based on data collected by observers and data submitted by processors. Section 402(b)(2) of the Magnuson-Stevens Act provides that any observer information is confidential and shall not be disclosed. As a result of this requirement, NMFS may not release information collected by observers from vessels or processing plants unless it is provided to the public in aggregate or summary form. However, section 210(a)(1)(B) of the AFA requires NMFS “to make available to the public in such manner as the North Pacific Council and Secretary deem appropriate information about the harvest by vessels under a fishery cooperative of all species (including bycatch) in the directed pollock fishery on a vessel-by-vessel basis.” Public release of Chinook salmon bycatch information for each entity and vessel fishing on behalf of that entity would provide information valuable to the pollock industry and the public in assessing the efficacy of Amendment 91. It would also reduce the amount of time NMFS staff would need to spend responding to information requests about Chinook salmon bycatch in the BS pollock fishery.

Removal of Salmon Bycatch Retention Requirements in the Bering Sea Aleutian Islands Trawl Fisheries

NMFS proposes to revise the requirements at § 679.21(c), which currently require the operators of all vessels using trawl gear in the BSAI groundfish fisheries, and all processors taking deliveries from these vessels, to retain all salmon until the salmon have been counted by an observer and the observer has collected biological samples. This allows discard of salmon from a vessel with an observer onboard, after the observer has counted and sampled the salmon. It also requires retention of salmon by vessels without an observer onboard until those salmon are delivered to a processing plant, where an observer is provided the opportunity to count and sample the salmon. Once salmon are counted and sampled at the processing plant, they may either be donated to the PSD Program or they must be put back onboard a catcher vessel and discarded at sea. This proposed rule would apply these regulations only to catcher vessels and processors participating in the BS pollock fishery, because these requirements are needed to obtain an accurate count of all salmon bycatch for Chinook salmon PSC allocations.

NMFS is proposing to remove the retention requirements in § 679.21(c) from participants in other BSAI trawl fisheries and the AI pollock fishery because it is not necessary to count each salmon in these other fisheries. Estimates of salmon bycatch for the other BSAI trawl fisheries, including the AI pollock fishery, would continue to be based on data collected by observers and extrapolation of bycatch rates derived from observer data to unobserved vessels. Moreover, all vessels and processors would continue to be required to report the number of discarded salmon by species in their landings or production reports. Current methods are adequate to estimate salmon bycatch in these other BSAI fisheries because, under current regulations, the salmon caught in these other fisheries (except AI pollock) does not accrue against the Chinook or non-Chinook PSC limits. Chinook salmon bycatch in the AI pollock fishery would continue to be managed with a trigger cap that closes the AI Chinook Salmon Savings Area. Current methods of estimating Chinook salmon bycatch are adequate to manage this area closure, if it is triggered during any AI pollock fishery in the future. Because the retention requirement would be removed from § 697.21(c), this proposed rule would also remove the prohibition at § 679.7(c)(1) that prohibits the discard of any salmon taken with trawl gear in a BSAI groundfish fishery.

The proposed rule also would standardize language related to the discard of salmon. C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-6082. Public record. Not legal advice.