[Federal Register Volume 70, Number 115 (Thursday, June 16, 2005)]
[Proposed Rules]
[Pages 35054-35061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11918]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050607152-5152-01; I.D. 052605B]
RIN 0648-AT04


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish 
Retention Standard

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS issues a proposed rule to implement Amendment 79 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area (FMP). This action is necessary to reduce 
bycatch and improve utilization of groundfish harvested by catcher/
processor trawl vessels in the Bering Sea and Aleutian Island 
management area (BSAI) that are not listed American Fisheries Act (AFA) 
catcher/processors referred to throughout this proposed rule as non-AFA 
catcher/processors. This action is intended to promote the management 
objectives of the Improved Retention/Improved Utilization (IRIU) 
program, the FMP, and the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Written comments on the proposed rule must be received by August 
1, 2005.

ADDRESSES: Written comments may be sent to Sue Salveson, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region, 
NMFS, Attn: Lori Durall. Comments may be submitted by any of the 
following methods:
     E-mail: [email protected]. Include in the subject 
line of email comments the following identifier: GRS. E-mail comments, 
with or without attachments, are limited to 5 megabytes;
     Webform at the Federal e-Rulemaking Portal: 
http:www.regulations.gov. Follow the instructions at that site for 
submitting comments;
     Mail to P.O. Box 21668, Juneau, AK 99802;
     Fax: to (907) 586-7557; or
     Hand Delivery to the Federal Building, 709 West 9th 
Street, Room 420A, Juneau, AK.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of information requirements contained in this rule 
should be submitted in writing to NMFS at the ADDRESSES above, and e-
mail to David Rostker, OMB, by e-mail at [email protected] or 
by fax to 202-395-7285.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this 
action may be obtained from the same mailing address above or from the 
NMFS Alaska Region website at www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jason Anderson at 
[email protected] or Jeff Hartman at [email protected]. 
Either may be contacted at (907) 586-7228.

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the U.S. groundfish fisheries of the BSAI in the 
Exclusive Economic Zone under the FMP. The North Pacific Fishery 
Management Council (Council) prepared the FMP pursuant to the Magnuson-
Stevens Act. Regulations implementing the FMP appear at 50 CFR part 
679. General regulations that pertain to U.S. fisheries appear at 
subpart H of 50 CFR part 600.
    Public comments are being solicited on Amendment 79 through the end 
of the comment period specified in the notification of availability of 
the FMP amendment (NOA). The NOA published in the Federal Register on 
June 2, 2005 (70 FR 32287), with comments on the amendment invited 
through August 1, 2005. Public comments on the proposed rule must be 
received by the end of the comment period on the amendment, as 
published in the NOA, to be considered in the approval/disapproval 
decision on the amendment. All comments received by the end of the 
comment period on the amendment, whether specifically directed to the 
amendment, or the proposed rule, will be considered in the approval/
disapproval decision. Comments received after that date will not be 
considered in the approval/disapproval decision on the amendment. To be 
considered, written comments must received by the close of business on 
the last day of the comment period/ that does not mean postmarked or 
otherwise transmitted by that date.
    This proposed action is one of several adopted by the Council in 
recent years to decrease regulatory and economic discards and increase 
catch utilization in the BSAI groundfish fisheries. Amendment 49 to the 
FMP was implemented on January 3, 1998 (62 FR 63880), establishing IRIU 
standards for pollock and Pacific cod beginning January 3, 1998, and 
for rock sole and yellowfin sole (flatfish) beginning January 1, 2003. 
In 2001, the Council determined that cost, market and logistical 
constraints would prevent non-AFA trawl catcher/processors from being 
able to comply with IRIU requirements for flatfish. In June 2002, the 
Council developed a problem statement for the development of 
alternatives to address the pending effective date of IRIU regulations 
for flatfish. In October 2002, the Council adopted Amendment 75 to the 
FMP which delayed the effective date of IRIU requirements for flatfish 
harvested in the BSAI until June 1, 2004. The Council's intent for this 
delay was to provide additional time for the development of bycatch 
reduction measures that could be more practically and effectively 
applied to the non-AFA trawl catcher/processor sector.
    In October 2002, the Council also initiated the analysis of four 
new FMP amendments that were intended to augment or replace IRIU 
regulations for BSAI flatfish prior to the June 2004 effective date for 
this program. Amendment ``B'' would have created flatfish discard 
limits for the flatfish fisheries; Amendment 76 would exempt fisheries 
with less than a 5-percent IRIU flatfish bycatch rate from IRIU 
flatfish regulations; Amendment 79 (the proposed action) would 
establish a minimum groundfish retention standard (GRS); and Amendment 
80 (as modified at the October 2004 Council meeting) would allocate 
specified target species and prohibited species catch (PSC) limits to 
non-AFA trawl catcher/processors and allow these vessels to form one or 
more fishery cooperatives.

[[Page 35055]]

    NMFS partially approved Amendment 75 on September 2, 2003 (68 FR 
52412), by approving the removal of the January 1, 2003 effective date 
for the IRIU flatfish program from the FMP, and by disapproving the 
adjusted effective date of June 1, 2004. NMFS's decision on Amendment 
75 had the effect of indefinitely delaying the IRIU flatfish program. 
With the indefinite delay of this program, Amendment 76 no longer had 
practical application in the BSAI and Amendment ``B'' was rejected by 
the Council as infeasible following discussions between industry 
representatives and fishery managers. However, the Council continued to 
develop Amendments 79 and 80. Amendment 79, which this rule proposes to 
implement, was adopted by the Council in June 2003. If approved, it 
would supercede Amendment 75. The Council continues to develop 
Amendment 80.
    As part of Amendment 79, the Council adopted a revision to the 
maximum retainable amount (MRA) for pollock harvested by non-AFA 
vessels in the BSAI that would allow for increased retention of pollock 
incidentally harvested by non-AFA vessels. Before June 2003, the 
proposed GRS and pollock MRA revision were component parts of the same 
action to reduce discards in the BSAI. The Council recognized that the 
MRA change could have immediate benefits for reducing discard in 
groundfish fisheries however, and requested NMFS to expedite the 
proposed pollock MRA revision as a separate action. The revised MRA for 
pollock harvested by non-AFA vessels in the BSAI was implemented by a 
final rule published in the Federal Register on June 14, 2004 (69 FR 
32901).

GRS Program

    The Council's analysis of groundfish retention rates in the BSAI 
fishery revealed that vessels in the non-AFA trawl catcher/processor 
sector had the lowest retained catch rates of any groundfish trawl 
fishery in the BSAI. The EA/RIR/IRFA for Amendment 79 reported that the 
non-AFA trawl catcher/processor sector had a retained groundfish catch 
rate of 75.1 percent in 2001. However, during the same year in the 
BSAI, AFA trawl catcher/processors had a retained catch rate of 99.1 
percent, pot catcher/processors had a retained catch rate of 93.5 
percent and longline catcher/processors had a retained catch rate of 
85.4 percent. In 2001, the non-AFA trawl catcher/processor sector 
accounted for 67 percent of all discards in the BSAI. For these 
reasons, the GRS program that would be authorized under Amendment 79 
focuses on this sector for improved groundfish retention rates and 
reduced bycatch.
    This action proposes to implement an annual GRS for non-AFA trawl 
catcher/processors equal to or greater than 125 ft (38.1 m) length 
overall (LOA). The percent of groundfish retained would be a percent 
calculated as a specified ratio of the round-weight equivalent of total 
retained groundfish to total groundfish catch. The owners or operators 
of these vessels would be required to meet this standard on an annual 
basis. The use of total groundfish catch in the denominator of the 
calculation, instead of total catch, is proposed to avoid a potential 
incentive to target on non-groundfish species and to recognize that 
retention of non-groundfish often is either impractical or prohibited. 
Further, the catch of groundfish that are required to be treated as 
prohibited species under 50 CFR 679.20(d)(2) would be removed from the 
GRS calculation for individual vessels. By removing groundfish that are 
in prohibited species status, vessel operators would not be held 
accountable for retaining catch that they are required to discard. 
Groundfish species closed to directed fishing would be included in the 
calculation for percent of groundfish retained, because species taken 
incidental to target species may be retained up to the MRA (50 CFR 
679.20(e)). This constraint would provide an incentive to reduce 
incidental catch while providing flexibility to catch target species. 
The annual GRS ratios as adopted by the Council are shown below:

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                 TABLE 1. GROUNDFISH RETENTION STANDARD
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                 GRS Schedule                          Annual GRS
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2005                                            65%
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2006                                            75%
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2007                                            80%
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2008 and each year after                        85%
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    The Council considered several alternatives to an annual GRS. The 
Council's preferred alternative, however, included an annual GRS 
because it would increase the number of vessels that could comply with 
the GRS program and addressed NMFS enforcement concerns. The EA/RIR/
IRFA prepared for this action indicates that, in general, more vessels 
would be in compliance with the GRS standard as the period over which 
the GRS is calculated is increased from a weekly assessment period to a 
year. Additionally, NMFS Enforcement expressed concerns that some of 
the calculation periods for the GRS under consideration by the Council 
(for example, weekly) were infeasible because recordkeeping and 
reporting processes did not allow NMFS to match catch and production 
estimates over those time periods.
    The purpose of the incremental increase of the annual GRS would be 
to provide additional time for vessels to adjust fishing operations to 
lower bycatch practices. If Amendment 79 is approved, NMFS anticipates 
the GRS to be effective January 20, 2006, and vessels would be required 
to retain at least 75 percent of their groundfish catch in the initial 
year of the program. The Council intended NMFS to approve Amendment 79 
and implement the GRS program by 2005 with a GRS of 65 percent. 
However, Secretarial review of Amendment 79 and associated rulemaking 
was not initiated prior to the start of the 2005 fishing year. Because 
the GRS would be enforced on the basis of a calendar year, the 2006 
fishing year would be the earliest the GRS program could be 
implemented. The EA/RIR/IRFA prepared for this action indicates that 16 
BSAI non-AFA trawl catcher/processor vessels would be regulated by the 
GRS program. Data presented in the EA/RIR/IRFA to evaluate the effects 
of this action on these 16 vessels demonstrates that in 2001 the 16 
non-AFA trawl catcher/processors retained 75.1 percent of their total 
groundfish catch. Furthermore, the analysis estimates that overall, the 
vessels regulated by this proposed action would retain 76.3 percent of 
total groundfish catch in 2006. For 2006, the analysis estimates that 
five of these 16 vessels would need to increase total groundfish 
retention to meet the 75-percent standard. NMFS understands that some 
vessels may incur an additional burden to meet a GRS of 75 percent 
rather than 65 percent for the first year of the program. The EA/RIR/
IRFA and Council anticipate that this additional burden would be 
minimal because this sector has demonstrated groundfish retention 
amounts that frequently exceed 65 percent and have met the 75-percent 
level in 2001. It is NMFS's opinion that the starting level of 75 
percent in 2006 is consistent with Council intent on this action and 
practicable according to the analysis presented on National Standards 7 
and 9 in the EA/RIR/IRFA. However, NMFS requests public comment on the 
implementation of the GRS program at 75 percent in 2006. In

[[Page 35056]]

the event that NMFS determines, based on public comment, that the 
initiation of the GRS at 75 percent is not consistent with Council 
intent to gradually increase the GRS regardless of when the program is 
implemented, an initial GRS of 65 percent may be substituted for the 75 
percent GRS in the final rule.
    The FMP would establish the GRS as a tool for reducing discards of 
groundfish for any BSAI groundfish fishery sector. However, the Council 
specified that regulations implementing a GRS would only apply to non-
AFA trawl catcher/processors that are 125 ft (38.1 m) LOA or greater. 
Data provided in the EA/RIR/IRFA indicate that other BSAI groundfish 
trawl sectors consistently achieve or exceed these standards. In 2001, 
non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA 
accounted for only 8 percent of the total catch of all non-AFA trawl 
catcher/processors and 7 percent of the retained catch. Given the 
relatively small contribution to this sector's overall harvest and 
recognizing that compliance costs associated with observers and scale 
monitoring requirements would be relatively higher for vessels less 
than 125 feet (38.1 m) LOA, the Council chose to exclude these vessels 
from the proposed GRS program.
    The Council also specified that regulations implementing the GRS 
would require vessels subject to the GRS program to create products 
that yield at least 15 percent from each retained fish. Current 
regulations at Sec.  679.27(i) set forth a 15-percent utilization 
requirement for all IRIU species. This action proposes to add 
groundfish listed in Table 2a to Part 679, except for any groundfish on 
prohibited species status, as IRIU species. Non-AFA trawl catcher/
processors equal to or greater than 125 ft (38.1 m) LOA would be 
required to meet these current utilization standards for retained 
groundfish species used in the calculation for percent of retained 
groundfish.

Monitoring and Enforcement of the GRS

    The GRS would be enforced on an individual vessel basis as opposed 
to a sector basis, so that those vessels that chronically fail to meet 
the standard could not impose a penalty on those vessels that 
consistently meet these requirements. All regulated vessels would be 
required to use NMFS-approved scales to determine the weight of total 
catch and either obtain sufficient observer coverage to ensure every 
haul is observed for verification that all fish are weighed or use an 
alternative scale use verification plan approved by NMFS. Each vessel 
would be required to provide a single location for observers to collect 
samples to reduce the potential of sample bias. Observer sampling of 
each haul would be necessary to determine the percentage of the total 
catch that is comprised of groundfish. This information would be used 
to estimate total groundfish weight used in the denominator of the GRS 
calculation. The round weight of retained groundfish catch would be 
calculated using NMFS standard product recovery rates (PRRs) set forth 
in regulations at Table 3 to Part 679. For each product/species 
combination, retained tonnage would be equal to primary product tonnage 
divided by the applicable PRR. For primary products that do not have a 
PRR specified in Table 3, NMFS would use best available data until a 
PRR could be established in regulation. Since all IRIU species must 
meet minimum utilization requirements at Sec.  679.27(i), any primary 
product with a PRR less than 15 percent of the total weight of retained 
or lawfully transferred products produced from catch or receipt of that 
IR/IU species would not comply with this action. Further Council action 
and rulemaking would be required to include any primary product that 
could not meet these utilization standards.
    NMFS proposes to prohibit the mixing of catch from two or more 
hauls prior to sampling by an observer. NMFS proposes this prohibition 
because all hauls must be observed and sampled, and it is not possible 
to obtain a discrete sample if hauls are mixed. Non-AFA catcher/
processors using trawl gear occasionally mix catch from two or more 
hauls prior to sampling by an observer. However, the amount of 
groundfish retained under the GRS would be calculated based on the 
proportion of groundfish in each haul. To determine the proportion of 
groundfish in each haul, each haul would be sampled by an observer for 
species composition. The proportion of groundfish in each species 
composition sample would be extrapolated to the total haul weight. For 
purposes of calculating the percent of retained groundfish, NMFS would 
not be able to determine accurately the total haul weight of groundfish 
or species composition for a specific haul if two or more hauls are 
mixed.
    Recent enforcement actions concerning intentional presorting of 
catch to bias observed catch rates of Pacific halibut document the 
incentive for biasing observer samples to optimize groundfish catch 
relative to constraining PSC or other groundfish catch. However, NMFS 
believes the ability to bias observer samples could be reduced under 
the GRS in comparison with the status quo by implementing the 
monitoring provisions that would be required under this rule. These 
include space and catch access provisions that would be approved by 
NMFS and that would allow observers to monitor all catch between the 
bin and the scale used to weigh total catch.
    Recent enforcement actions also have identified an issue with 
observers not being willing to serve as witnesses in enforcement 
actions because of inconvenience, cost, and the need for the observer 
to refamiliarize herself or himself with the data and other records 
relating to the alleged violation. This could be a particular problem 
when numerous observers may have information regarding evidence 
necessary to prove the violations of the GRS. To address this issue, 
and to acknowledge the critical role observers play in effective 
management and enforcement of Alaska fisheries, NMFS intends to 
implement a program that provides for payment of witness fees to any 
observer who, at the request of an enforcement attorney, assists in the 
prosecution of an enforcement action. NMFS believes that this program 
will mitigate, to some degree, the inconvenience and other detriments 
that may otherwise dissuade an observer from assisting the government 
in proving its case.

Authority for Bycatch Reduction, the National Standards and the GRS

    The EA/RIR/IRFA for Amendment 79 (see ADDRESSES), provides 
information on Magnuson-Stevens Act requirements to reduce bycatch and 
increase retention of catch. The analysis also highlights the relevance 
of National Standards 7 and 9 in the selection of the Council's 
preferred alternative. In their deliberations, the Council stated that 
its adoption of Amendment 79 balances conservation through reductions 
in discards (National Standard 9) and minimizes costs where practicable 
(National Standard 7) by enforcing higher retention rates only on the 
specific section of the fleet with the largest problem.
    Reduction of bycatch for fisheries and other living marine 
resources has become a national and global concern. For example, on 
March 6, 2003, NMFS issued a National Bycatch Strategy to address 
issues related to the management of bycatch within the Nation's 
fisheries. To provide the authority for programs like the GRS, Congress 
amended the Magnuson-Stevens Act to require each fishery management 
plan approved by the

[[Page 35057]]

Secretary to ``establish a standardized reporting methodology to assess 
the amount and type of bycatch occurring in the fishery, and include 
conservation and management measures that, to the extent practicable 
and in the following priority- (A) minimize bycatch; and (B) minimize 
the mortality of bycatch which cannot be avoided.'' Also, NMFS 
regulations at 50 CFR part 600.350(d)(3) provide guidance on factors 
that should be considered in determining the practicability of a 
particular management action to minimize bycatch or the mortality of 
bycatch. Relevant factors were considered and assessed in the EA/RIR/
IRFA prepared for this action and are summarized below.

Comparing GRS Tradeoffs

    The Council deliberated on Magnuson-Stevens Act requirements to 
reduce bycatch and concluded that progress made in adhering to the 
National Standards and potential consumer and environmental benefits 
from improved retention and utilization of groundfish offset the costs 
of enforcement, increased observers, vessel modifications, operational 
adjustments and recordkeeping and reporting. The EA/RIR/IRFA describes 
these conclusions relative to conservation goals through reductions in 
discards (National Standard 9) and minimization of costs where 
practicable (National Standard 7) by enforcing higher retention rates 
only on the specific section of the fleet with a recent history of 
higher discard rates relative to other BSAI groundfish fisheries. The 
analysis notes that the growing national and regional emphasis on 
reduction of discards reflects national and regional consumer interest 
in and potential for non-market, non-consumptive, or environmental 
benefits for this type of program. The analysis also recognizes the 
technical difficulty of quantifying those potential benefits. The 
Council also evaluated a range of alternatives to Amendment 79 that 
would have imposed greater compliance costs on industry, such as a 
proposal for full retention of specified flatfish species in the 
original IRIU program implemented under Amendment 49. The Council 
considered and rejected recommendations to enforce the GRS on other 
BSAI groundfish sectors, concluding that an application of the action 
to the target fleet with the highest discard rates would provide the 
greatest benefit in bycatch reduction through the GRS program. At the 
same time, the preferred alternative also would mitigate the cost of 
the program on the industry and sector it most directly impacts. For 
example, the preferred alternative would mitigate the adverse impacts 
of the program by excluding non-AFA trawl catcher/processor vessels 
less than 125 ft (38.1 m) LOA. Non-AFA trawl catcher/processor vessels 
have ``specific and particular operational concerns'' associated with 
the enforcement and monitoring requirements of the GRS. It also 
gradually would phase in the GRS program over time which would allow 
the affected vessels to adjust to the retention requirements. This 
phase-in would provide that portion of the industry most impacted by 
GRS requirements with the opportunity to continue targeting rock sole 
and yellowfin sole, while working to reduce discards in these 
fisheries.

Description of Regulations Specific to the GRS Program

    Current recordkeeping and reporting regulations at Sec.  
679.5(a)(7)(iv)(C)(3) require the owners or operators of a catcher/
processor using trawl gear to record an estimate of total round weight 
of groundfish by haul in a NMFS daily cumulative production logbook 
(DCPL). Other regulations, including those that would implement 
monitoring requirements for the GRS, require all catch on certain 
catcher/processors to be weighed on NMFS-approved scales. Proposed 
revisions to regulations at Sec.  679.5(a)(7)(iv)(C)(3) would require 
all vessel owners or operators of vessels subject to the GRS to record 
in the DCPL the total catch scale weight for each haul. This would 
increase the quality of data available to NMFS managers and provide 
NMFS enforcement with a tool to verify total catch weight for vessels 
subject to the GRS program.
    Proposed regulations at Sec.  679.7(m) establish prohibitions 
specific to the GRS program. Regulations at Sec.  679.7(m)(1) would 
prohibit owners or operators from discarding groundfish in an amount 
greater than allowed under the GRS program.
    Regulations at Sec.  679.7(m)(2) would prohibit owners or operators 
from failing to submit, submitting inaccurate information, or 
intentionally submitting false information that relates to the GRS 
program.
    Regulations at Sec.  679.7(m)(3) would (1) prohibit an owner or 
operator from processing or discarding any catch that was not weighed 
on a NMFS-approved scale that complies with requirements described at 
Sec.  679.28(b), (2) prohibit the sorting of catch prior to the catch 
passing over the scale, and (3) require that all catch be available to 
be sampled by an observer.
    Regulations at Sec.  679.7(m)(4) would prohibit the processing of 
any catch by a vessel that does not comply with observer sampling 
station requirements described at Sec.  679.28(d). Also, as previously 
described, regulations at Sec.  679.7(m)(5) would prohibit the mixing 
of catch from two or more hauls.
    Regulations at Sec.  679.27(b)(4) would describe the specific 
groundfish species to be used in the GRS calculation. This would 
include all species listed in Table 2a to 50 CFR part 679, except for 
listed groundfish species that are in prohibited species status. By 
establishing these species as IRIU species, they would be subject to 
the 15-percent utilization requirements currently found at Sec.  
679.27(i). Regulations at Sec.  679.27(j)(1) would also describe the 
vessels that would be required to comply with the GRS program and the 
time period for which the GRS would be calculated.
    Regulations at Sec.  679.27(j)(2)(i) would show the equation used 
for the GRS calculation and describe the variable and source of the 
variable used in each component of the calculation. Also, Sec.  
679.27(j)(2)(ii) would describe the schedule for increasing GRS 
percentages from 2006 through 2008 and beyond. As described above, the 
GRS is proposed to be implemented in 2006 at the 2006 level of 75 
percent, although NMFS specifically requests public comment on whether 
a first year rate of 65 percent may be more appropriate.
    Regulations at Sec.  679.27(j)(3) would describe the monitoring 
requirements for vessels subject to the GRS program. Section 
679.27(j)(3)(i) would require vessels subject to the GRS program to 
comply with minimum observer coverage requirements at Sec.  
679.50(c)(6). These requirements are described below. Regulations at 
Sec.  679.27(j)(3)(ii) would require vessels to weigh each haul on a 
NMFS-approved scale and comply with catch weighing requirements 
described at Sec.  679.28(b). Also, the vessel owner or operator would 
be required to ensure that catch from each haul is available to be 
sampled by an observer from a single location at a single collection 
point. Regulations at Sec.  679.27(j)(3)(iii) would require the owner 
or operator to provide an observer sampling station that meets 
requirements described at Sec.  679.28(d).
    Vessels required to comply with the GRS program also may operate in 
areas other than the BSAI. Total retained groundfish is calculated from 
total fish product divided by the PRR for each species. For purposes of 
enforcing GRS requirements, it is necessary to separate fish or fish 
product subject to the GRS program from fish or fish product not 
subject to the GRS program. Regulations at Sec.  679.27(j)(4) would 
require all owners or operators required to comply

[[Page 35058]]

with the GRS program to either (1) offload or transfer all fish or fish 
product prior to harvesting fish outside of the BSAI; or (2) ensure 
that the vessel is in compliance with recordkeeping and reporting and 
monitoring requirements described above and at Sec.  679.5(a)(7)(iv)(C) 
and Sec.  679.27(j)(3) at all times when fishing outside the BSAI. 
These requirements will improve the enforcement of this proposed action 
by assuring that all hauls used to estimate the GRS are observed, and 
that a record is created by the vessel operator to compare with the 
observer record.
    Regulations at Sec.  679.27(j)(5) would require all vessels 
required to comply with the GRS program that have BSAI groundfish on 
board, groundfish product on board, or receive deliveries of unsorted 
catch from vessels not required to comply with the GRS program, to 
comply with monitoring requirements described above and at Sec.  
679.27(j)(3). For purposes of enforcing GRS requirements, this 
requirement is necessary to separate fish or fish product subject to 
the GRS program from fish or fish product not subject to the GRS 
program.
    Regulations at Sec. Sec.  679.50(c)(6)(i) and (c)(6)(ii) would 
describe observer coverage and observer workload requirements for 
vessels subject to the GRS program. The owner or operator of a vessel 
subject to the GRS program would be required to provide two Level 2 
NMFS-certified observers, at least one of which must be certified as a 
lead Level 2 observer, for each day the vessel is used to harvest or 
process fish in the BSAI. The owner or operator would be required to 
provide more than two observers if workload restrictions would 
otherwise preclude sampling duties. The time required for an observer 
to complete sampling, data recording, and data communications would not 
be permitted to exceed 12 hours in a 24-hour period and the observer 
would not be permitted to conduct sampling duties for more than 9 hours 
in each 24-hour period. NMFS could authorize an alternative processing 
plan that could allow the vessel to carry only one lead Level 2 NMFS-
certified observer if the vessel owner or operator supplies vessel 
logbook or observer data to NMFS that demonstrates these duties can be 
completed within these workload restrictions. NMFS would not authorize 
an alternative processing plan if it would require the observer to 
divide 12-hour shifts into shifts of less than 6 hours.

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this proposed rule would implement is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an initial regulatory flexibility analysis (IRFA) as 
required by section 603 of the Regulatory Flexibility Act. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are provided above. A 
copy of the IRFA is available from NMFS (see ADDRESSES). A summary of 
the analysis follows.
    This proposed action is intended to decrease regulatory and 
economic discards and increase catch utilization in the BSAI groundfish 
fisheries by implementing an annual GRS for non-AFA trawl catcher/
processors equal to or greater than 125 ft (38.1 m) LOA. The percent of 
groundfish retained would be a percent calculated as a specified ratio 
of the round-weight equivalent of total retained groundfish to total 
groundfish catch. The GRS would gradually increase from 75 percent in 
2006 to 85 percent in 2008.
    The GRS program would apply only to non-AFA catcher/processors 
using trawl gear that are 125 ft (38.1 m) LOA or greater. Sixteen head-
and-gut trawl catcher/processors meet these criteria. Based on the best 
available data, it is improbable that any of these vessels are small 
entities. However, NMFS does not have the level of data and information 
to make a statistically confident estimation of the number of small 
entities affected by this proposed action. Therefore, an IRFA has been 
prepared.
    Alternative 1 described in the EA/RIR/IRFA is the status quo 
alternative. Current regulations regarding retention and discards would 
remain in effect.
    Alternative 2 would establish a GRS of 70 percent. The standard 
would apply to non-AFA trawl catcher/processors 125 ft (38.1 m) LOA or 
greater and enforced at the sector level. Compliance with the GRS would 
be determined at the end of a fishing year. The MRA for pollock would 
be increased to 35 percent for all non-AFA trawl catcher/processors, 
including vessels less than 125 ft (38.1 m) LOA, and compliance with 
the pollock MRA would be monitored and enforced on each vessel at the 
end of each offload. NMFS-approved scales, a certified observer 
sampling station, and observer coverage of every haul would be used to 
measure and verify total catch. Alternative processing plans, approved 
by NMFS, could be substituted for observer coverage of every haul. 
Retained catch would be calculated using NMFS standard PRRs.
    Alternative 3 would establish a GRS of 85 percent for January 
through May of each calendar year. The GRS would increase to 90 percent 
for the remainder of the year. The GRS would apply to individual non-
AFA catcher/processors 125 feet (38.1 m) LOA or greater. Non-AFA 
catcher/processors less than 125 feet (38.1 m) LOA would be exempt from 
the GRS program if their weekly production is less than 600 mt. The MRA 
for pollock would be revised so that it is enforced at any time. 
Compliance with the GRS would be monitored and enforced at the end of 
each week for each area and gear type. NMFS-approved scales, a 
certified observer sampling station, and observation of every haul 
would be used to measure and verify total catch. Retained catch would 
be calculated using standard PRRs.
    Alternative 4 is the preferred alternative, and would implement a 
gradually increasing annual GRS for non-AFA trawl catcher/processors 
equal to or greater than 125 ft (38.1 m) length overall (LOA). This 
alternative, including provisions to monitor and enforce this action, 
is described in further detail above in the preamble to this proposed 
action.
    Retaining additional groundfish is not expected to generate 
additional revenues, and could result in lower revenues if these fish 
displace higher value fish. Vessels subject to the GRS program could 
incur operating costs associated with holding, processing, 
transporting, and transferring fish that are of relatively low value. 
However, changes in technology, fishing techniques, and markets could 
reduce these potential costs.
    Vessels subject to this proposed action would be required to comply 
with the monitoring components described in the preamble above. NMFS 
estimates 7 of the 16 vessels subject to the GRS program would be 
required to install NMFS-approved flow scales, which are estimated to 
cost approximately $50,000 each. Equipment necessary to comply with 
observer sampling station requirements is estimated to cost between 
$6,000 and $12,000. Installation of this equipment is estimated to cost 
between $20,000 and $100,000. Under the GRS program, every haul would 
be required to be available for sampling by a NMFS-

[[Page 35059]]

certified observer. This requirement would likely necessitate an 
additional observer on each vessel, which is estimated to cost $82,000 
per vessel per year.
    This action proposes to revise recordkeeping and reporting 
requirements for vessels subject to the GRS. Proposed revisions to 
regulations would require all vessel owners or operators of vessels 
subject to the GRS to record in the DCPL the total catch scale weight 
for each haul. This would increase the quality of data available to 
NMFS managers and provide NMFS enforcement with a tool to verify total 
catch weight for vessels subject to the GRS program.
    The analysis did not reveal any Federal rules that duplicate, 
overlap, or conflict with the proposed action.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). These requirements have been submitted to OMB for approval under 
OMB No. 0648-0330. Public reporting burden per response for: at-sea 
scale inspection report/sticker is estimated to average 6 minutes; 
record of daily scale tests is estimated to average 45 minutes; printed 
output of at-sea scale weight is estimated to average 45 minutes; 
observer sampling station inspection request is estimated to average 2 
hours; and prior notice to observer of scale test is estimated to 
average 2 minutes.
    This proposed rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under control 
number OMB 0648-0213. Public reporting burden for catcher/processor 
trawl gear daily cumulative production logbook is estimated to average 
30 minutes per response.
    Estimated response times include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS 
Alaska Region at the ADDRESSES above, and e-mail to [email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 10, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended to read as follows:

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

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 
note; 3631 et seq.

    2. In Sec.  679.2, a definition of ``Groundfish Retention Standard 
(GRS)'' is added to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Groundfish Retention Standard (GRS) means the retention and 
utilization standard for groundfish described at Sec.  679.27(j) of 
this part.
* * * * *
    3. In Sec.  679.5, paragraph (a)(7)(iv)(C)(3) is revised to read as 
follows:


Sec.  679.5  Recordkeeping and reporting (R&R).

    (a) * * *
    (7) * * *
    (iv) * * *
    (C) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Enter ...                                             In a ...                                       If a ...
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *                                               .............................................  .............................................
(3) Estimated total round weight of groundfish by haul. If  Trawl DCPL                                     C/P
 the owner or operator of the vessel is required to comply
 with the GRS program described at Sec.   679.27(j), the
 operator or manager must enter the round weight total of
 all catch by haul as measured by the NMFS-approved scale.
* * * * * * *                                               .............................................  .............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    4. In Sec.  679.7, paragraph (m) is added to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (m) Prohibitions specific to GRS. It is unlawful for the owner or 
operator of a catcher/processor that is 125 ft (38.1 m) LOA or longer 
and not listed in Sec.  679.4(l)(2)(i) and using trawl gear in the BSAI 
to:
    (1) Retain an amount of groundfish during a fishing year that is 
less than the amount of groundfish required to be retained under the 
GRS program described at Sec.  679.27(j).
    (2) Fail to submit, submit inaccurate information, or intentionally 
submit false information on any report, application or statement 
required under this part.
    (3) Process or discard any catch not weighed on a NMFS-approved 
scale that complies with the requirements of Sec.  679.28(b). Catch 
must not be sorted before it is weighed and each haul must be available 
to be sampled by an observer for species composition.
    (4) Process any groundfish without an observer sampling station 
that complies with Sec.  679.28(d).
    (5) Combine catch from two or more hauls.
    5. In Sec.  679.27, paragraphs (b)(4) and (j) are added to read as 
follows:


Sec.  679.27  Improved Retention/Improved Utilization Program.

* * * * *
    (b) * * *
    (4) All species listed in Table 2a to this part for purposes of the 
GRS program described in Sec.  679.27(j), except

[[Page 35060]]

for groundfish in prohibited species status at the end of each 
reporting week.
* * * * *
    (j) Groundfish retention standard--(1) Applicability. The operator 
of a catcher/processor that is 125 ft (38.1 m) LOA or longer, not 
listed in Sec.  679.4(l)(2)(i), and using trawl gear must comply with 
the GRS set forth under Sec.  679.27(j)(2)(ii) while fishing for or 
processing groundfish caught from the BSAI between January 1 and 
December 31 of each year. The owner of a catcher/processor 125 ft (38.1 
m) LOA or longer is required to ensure that the operator complies with 
the GRS program set forth under Sec.  679.27(j)(2)(ii). No part of the 
GRS program supersedes minimum retention or utilization requirements 
for IR/IU species found in this section.
    (2) Percent of groundfish retained calculation. (i) For any fishing 
year, the percent of groundfish retained by each vessel identified 
under paragraph (j)(1)(i) of this section would be calculated using the 
following equations:
[GRAPHIC] [TIFF OMITTED] TP16JN05.009

    Substituting the value for GFroundweight into the following 
equation,

GFR% = (GFroundweight/TotalGF)*100

Where:
    GFroundweight = the total annual round weight equivalent of all 
retained product weights for each IR/IU groundfish species.
    PWspeciesn = the total annual product weight for each 
groundfish species listed in Table 2a to this part by product type as 
reported in the vessel's weekly production report required at Sec.  
679.5(i).
    PRRspeciesn = the standard product recovery rate for 
each groundfish species and product combination listed in Table 3 to 
Part 679.
    GFR% = the groundfish retention percentage for a vessel calculated 
as GFroundweight divided by the total weight of groundfish catch.
    TotalGF = the total groundfish catch weight as measured by the flow 
scale measurement, less any non-groundfish, PSC species or groundfish 
species on prohibited species status under Sec.  679.20.
    (ii) The following table displays annual minimum groundfish 
retention requirements for each vessel required to comply with the GRS 
program under paragraph (j)(1)(i) of this section:

------------------------------------------------------------------------
                      GROUNDFISH RETENTION STANDARD
-------------------------------------------------------------------------
                 GRS Schedule                          Annual GRS
------------------------------------------------------------------------
2006                                            75%
------------------------------------------------------------------------
2007                                            80%
------------------------------------------------------------------------
2008 and each year after                        85%
------------------------------------------------------------------------

    (3) Monitoring requirements--(i) Observer coverage requirements. In 
addition to complying with minimum observer coverage requirements at 
Sec.  679.50(c), the owner or operator of a vessel required to comply 
with the GRS program must comply with observer coverage requirements as 
described at Sec.  679.50(c)(6) at all times the vessel is used to 
harvest groundfish in the BSAI with trawl gear.
    (ii) Catch weighing. For each haul, all catch caught by a vessel 
required to comply with the GRS program must be weighed on a NMFS-
approved scale and made available for sampling by a NMFS certified 
observer at a single location. The owner or operator of a vessel 
required to comply with the GRS program must ensure that the vessel is 
in compliance with the scale requirements described at Sec.  679.28(b), 
that each haul is weighed separately, and that no sorting of catch 
takes place prior to weighing. All weighed catch must be recorded as 
required at Sec.  679.5(a)(7)(iv)(C).
    (iii) Observer sampling station. The owner or operator of a vessel 
required to comply with the GRS program must provide an observer 
sampling station as described at Sec.  679.28(d) and the owner of a 
vessel required to comply with the GRS program must ensure that the 
vessel operator complies with the observer sampling station 
requirements described at Sec.  679.28(d) at all times the vessel is 
used to harvest groundfish in the BSAI. In addition to the requirements 
at Sec.  679.28(d)(7)(ii), observers must be able to sample all catch 
from a single point along the conveyer belt conveying unsorted catch, 
and when standing where unsorted catch is collected, the observer must 
be able to see that no catch has been removed between the bin and where 
unsorted catch is collected.
    (4) Requirements for vessels that also harvest groundfish outside 
of the BSAI. The operator of a vessel required to comply with the GRS 
program must offload or transfer all fish or fish product prior to 
harvesting fish outside the BSAI, unless the operator of the vessel is 
in compliance with the recordkeeping and reporting and monitoring 
requirements described at Sec.  679.5(a)(7)(iv)(C) and Sec.  
679.27(j)(3) at all times the vessel harvests or processes groundfish 
outside the BSAI.
    (5) Requirements for vessels receiving deliveries of unsorted 
catch. The owner or operator of a vessel required to comply with Sec.  
679.27(j) that receives deliveries of unsorted catch while processing 
or possessing fish subject to the GRS program must comply with Sec.  
679.27(j)(3) while processing deliveries of unsorted catch.
    6. In Sec.  679.50, paragraph (c)(6) is added to read as follows:


Sec.  679.50  Groundfish Observer Program applicable through December 
31, 2007.

* * * * *
    (c) * * *
    (6) Catcher/processors 125 ft (38.1 m) LOA or longer and not listed 
in Sec.  679.4(l)(2)(i) using trawl gear in the BSAI--(i) Coverage 
requirement. The owner or operator of a catcher/processor using trawl 
gear and not listed in Sec.  679.4(l)(2)(i) must provide at least two 
level 2 NMFS-certified observers, at least one of which must be 
certified as a lead level 2 observer, for each day that the vessel is 
used to harvest or process groundfish in the BSAI. More than two 
observers are required if the observer workload restriction at 
paragraph (c)(6)(ii) of this section would otherwise preclude sampling 
as required under Sec.  679.27(j)(3). NMFS may authorize the vessel to 
carry only one lead level 2 observer if the vessel owner or operator 
supplies vessel logbook or observer data that demonstrate that one 
level 2 observer can complete sampling, data recording, and data 
communication duties within the workload requirements described in 
Sec.  679.50(c)(6)(ii) under an alternative processing plan. NMFS will 
not authorize an alternative processing plan with only one lead level 2 
observer if it would require the observer to divide a 12-hour shift 
into shifts of less than 6 hours.
    (ii) Observer work load. The time required for the observer to 
complete sampling, data recording, and data communication duties must 
not exceed 12 consecutive hours in each 24-hour

[[Page 35061]]

period, and the observer must not conduct sampling duties more than 9 
hours in each 24-hour period.
* * * * *
[FR Doc. 05-11918 Filed 6-15-05; 8:45 am]
BILLING CODE 3510-22-S