[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Rules and Regulations]
[Pages 17362-17383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3265]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050607152-6070-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule to implement a groundfish retention 
standard (GRS) program in the Bering Sea and Aleutian Island management 
area (BSAI) for trawl catcher/processor vessels (C/Ps) that are 125 ft 
(38.1 m) length overall (LOA) or greater and that are not listed 
American Fisheries Act (AFA) catcher/processors referred to throughout 
this rule as non-AFA trawl C/Ps. This action is necessary to reduce 
bycatch and improve utilization of groundfish harvested by these non-
AFA trawl C/Ps. This action is intended to promote the management 
objectives of the Improved Retention/Improved Utilization (IRIU) 
program, the Fishery Management Plan for Groundfish of the Bering Sea 
and Aleutian Islands Management Area (FMP), and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES: Effective on January 20, 2008.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained from NMFS, Alaska Region, P.O. Box 21668, 
Juneau, Alaska, 99802-1668, Attn: Records Officer, or from the NMFS 
Alaska Region website at www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS, Alaska Region, and by email to 
[email protected] or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jason Anderson at 
[email protected] or Jeff Hartman at [email protected]. 
Either person 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.
    This action was adopted by the Council to decrease regulatory and 
economic discards and increase catch utilization in the BSAI groundfish 
fisheries. Amendment 49 to the FMP (62 FR 63880, January 3, 1998), 
establishes retention and utilization standards for pollock and Pacific 
cod. In June 2003, the Council adopted Amendment 79 to the FMP, which 
authorizes groundfish retention standards as a tool for further 
increasing the retention and utilization of groundfish and responding 
to bycatch reduction goals described in National Standard 9. A notice 
of availability for Amendment 79 was published in the Federal Register 
on June 2, 2005 (70 FR 32287), and Amendment 79 was approved by the 
Secretary of Commerce on August 31, 2005.
    Also in June 2003, the Council adopted a GRS program for all non-
AFA trawl C/Ps that are used to harvest BSAI groundfish. A proposed 
rule for the GRS program was published in the Federal Register on June 
16, 2005 (70 FR 35054). The public comment period for the proposed rule 
ended on August 1, 2005. NMFS received 19 letters of comment and 38 
discrete comments on the proposed rule. These comments are summarized 
and responded to below under Response to Comments.
    The Council's analysis of groundfish retention rates in the BSAI 
groundfish fishery revealed that vessels in the non-AFA trawl catcher/
processor sector (all lengths) had the lowest retained catch rates of 
any groundfish trawl fishery in the BSAI. The EA/RIR/FRFA for the GRS 
program reports that non-AFA trawl C/Ps had a retained groundfish catch 
rate of 75.1 percent in 2001 and accounted for 67 percent of all 
discards in the BSAI. However, during the same year in the BSAI, AFA 
trawl catcher/

[[Page 17363]]

processors had a retained groundfish catch rate of 99.1 percent, pot 
catcher/processors had a retained groundfish catch rate of 93.5 percent 
and longline catcher/processors had a retained groundfish catch rate of 
85.4 percent. Since 2001, non-AFA trawl C/P retention rates have 
declined slightly while retention rates from other sectors have 
remained relatively stable. For example, in 2004, non-AFA trawl C/Ps 
had a retained groundfish catch rate of 67.6 percent. For these 
reasons, the GRS program focuses on non-AFA trawl C/Ps for improved 
groundfish retention rates and reduced bycatch.
    The Council specified that regulations implementing this GRS 
program would only apply to non-AFA trawl C/Ps that are 125 ft (38.1 m) 
LOA or greater while fishing in the BSAI because trawl catcher/
processor vessels that are less than 125 ft (38.1m) LOA account for a 
relatively small portion of the sector's total catch and total discard. 
In 2004, non-AFA trawl C/Ps less than 125 ft (38.1 m) LOA accounted for 
only 17 percent of the total catch of all non-AFA trawl C/Ps and 24 
percent of the discarded catch. Additionally, because non-AFA trawl C/
Ps under 125 ft (38.1 m) LOA have relatively smaller factory space, 
scale and sampling station requirements could reduce processing 
capacity relative to larger vessels. Displacing a crew member to 
accommodate an additional observer could also reduce processing 
capacity for smaller vessels with limited space for crew. 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 ft (38.1 m) LOA, non-AFA trawl catcher/processor vessels that 
are less than 125 ft (38.1 m) LOA were excluded from the GRS program. 
The existing management background and explanation of the need for this 
action were described in greater detail in the preamble to the proposed 
rule (70 FR 35054, June 16, 2005). The following provides a summary of 
the approved GRS program.

GRS Program

    This action implements an annual GRS for non-AFA trawl C/Ps. The 
percent of groundfish retained will 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 will 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 intended to avoid a potential incentive to 
target groundfish species closed to directed fishing and to recognize 
that retention of non-groundfish often is either impractical or 
prohibited by regulation. Further, the catch of groundfish that are 
required to be treated as prohibited species under 50 CFR 679.20(d)(2) 
will be removed from the GRS calculation for individual vessels. By 
removing groundfish that are in prohibited species status, vessel 
operators will not be held accountable for retaining catch that they 
are required to discard. Groundfish species that are closed to directed 
fishing will be included in the calculation for percent of groundfish 
retained, because species taken incidental to target species may be 
retained up to the maximum retainable amounts established in 
regulations at Sec.  679.27(c). Including these species in the GRS 
calculation will provide an incentive to reduce incidental catch while 
providing flexibility to catch target species.
    This action also requires non-AFA trawl C/Ps to meet a 15 percent 
utilization standard for all retained groundfish species listed in 
Table 2a to part 679 that are used in the calculation for percent of 
retained groundfish. For each groundfish species, the total weight of 
retained products must equal or exceed 15 percent of the round-weight 
catch of each species during a fishing trip.

Monitoring and Enforcement of the GRS

    The GRS will be enforced on an individual vessel basis as opposed 
to a sector basis, so that those vessels that fail to meet the standard 
could not affect fishing activity by the rest of the non-AFA trawl C/
Ps. All regulated vessels will 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 processing plan 
approved by NMFS. Each vessel will be required to provide a single 
location for observers to collect samples to reduce the potential of 
sample bias. Observer sampling of each haul is necessary to determine 
the percentage of the total catch that is comprised of groundfish. This 
information will be used to estimate total groundfish weight used in 
the denominator of the GRS calculation. The round weight of retained 
groundfish catch will 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 will 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 will use 
best available data until a PRR can be established in regulation. Since 
retained groundfish 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 species will not comply with this action.
    Mixing of catch from two or more hauls prior to sampling by an 
observer will be prohibited. This activity is prohibited because all 
hauls must be available to be observed and sampled, and it is not 
possible to obtain a discrete sample if hauls are mixed. Non-AFA trawl 
C/Ps occasionally mix catch from two or more hauls prior to sampling by 
an observer. However, the percent of groundfish retained under the GRS 
will be calculated based on the amount of groundfish in each haul. To 
determine the amount of groundfish in each haul, each haul will be 
sampled by an observer for species composition. The proportion of 
groundfish in each species composition sample will be extrapolated to 
the total haul weight. NMFS would not be able to determine accurately 
the total haul weight of groundfish or species composition for a 
specific haul for purposes of calculating the percent of retained 
groundfish 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 
expects that opportunities to bias observer samples will be reduced 
under the GRS program in comparison with the status quo because of the 
enhanced monitoring provisions that are established under this rule. 
These include observer sampling space and catch access provisions that 
will allow observers to monitor all catch between a holding bin and the 
scale used to weigh total catch.
    Recent enforcement actions also have identified an issue with 
observers' unwillingness to serve as witnesses in enforcement actions 
because of inconvenience, cost, and the need for observers to 
refamiliarize themselves with the data and other records relating to 
the alleged violation. This could be a particular problem when numerous 
observers may have information and evidence necessary to prove a 
violation of the GRS. To address this issue, and

[[Page 17364]]

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 a supplementary witness fee to any 
observer who, at the request of NOAA General Counsel, assists in the 
prosecution of an enforcement action. This program will mitigate, to 
some degree, the inconvenience and other costs 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/FRFA for this action 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 this action. NMFS has determined that the GRS program 
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 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 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/FRFA prepared for this action and are summarized below.

Comparing GRS Tradeoffs

    NMFS concluded that progress made in adhering to Magnuson-Stevens 
Act requirements to reduce bycatch and potential consumer and 
environmental benefits from improved retention and utilization of 
groundfish from the GRS program outweighs the costs of enforcement, 
increased observer coverage, vessel modifications, operational 
adjustments and recordkeeping and reporting. The EA/RIR/FRFA 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 trawl 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 of this type of program. The analysis also recognizes the 
technical difficulty of quantifying those potential benefits. NMFS has 
determined that implementation of this action imposes reduced 
compliance costs on industry, as compared to a proposal for full 
retention of specified flatfish species in the original IRIU program 
implemented under Amendment 49. Additionally, the EA/RIR/FRFA concludes 
that a targeted application of the GRS program to the sector of the 
fleet with the highest discard rates will provide the greatest benefit 
in bycatch reduction for the costs imposed. At the same time, this 
action also mitigates the cost of the program on the industry and 
sector it most directly impacts by excluding non-AFA trawl catcher/
processor vessels less than 125 ft (38.1 m) LOA. It also gradually 
phases in the GRS program over time which allows the affected vessels 
to schedule and adjust to the retention requirements. This phase-in 
provides 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. A 
recognition of monitoring and enforcement (M&E) costs associated with 
the GRS program; the time required by the agency to consider public 
comment and respond in a deliberative manner; the ensuing delay in 
publication of a final rule; and the time frame within which this 
sector would incur the M&E costs under a 2007 effective date has led 
NMFS to implement the GRS in 2008.
    Providing additional time for vessel owners to make these changes 
enhances the flexibility they would have to make arrangements for 
factory modifications and to plan for associated costs in their 
business plans. This additional time also would facilitate the design 
of efficient monitoring space, scale placement, and observer viewing 
that supports overall catch and bycatch accounting goals.

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                 TABLE 1. GROUNDFISH RETENTION STANDARD
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                 GRS Schedule                          Annual GRS
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2008                                            65%
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2009                                            75%
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2010                                            80%
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2011 and each year after                        85%
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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 implement monitoring 
requirements for the GRS, require all catch on certain catcher/
processors to be weighed on NMFS-approved scales. This final rule at 
Sec.  679.5(a)(7)(iv)(C)(3) requires 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 will 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.
    Regulations at Sec.  679.7(m) establish prohibitions specific to 
the GRS program. Regulations at Sec.  679.7(m)(1) prohibit owners or 
operators from discarding groundfish in an amount greater than allowed 
under the GRS program.
    Regulations at Sec.  679.7(m)(2) prohibit owners or operators from 
failing to submit required information, submitting inaccurate 
information, or intentionally submitting false information that relates 
to the GRS program.
    Regulations at Sec.  679.7(m)(3) 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), prohibit the sorting of catch prior to the catch passing 
over the scale, and require that all catch be available to be sampled 
by an observer.
    Regulations at Sec.  679.7(m)(4) 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

[[Page 17365]]

described, regulations at Sec.  679.7(m)(5) prohibit the mixing of 
catch from two or more hauls.
    Regulations at Sec.  679.27(b)(4) describe the specific groundfish 
species to be used in the GRS calculation. This includes all species 
listed in Table 2a to 50 CFR part 679, except for listed groundfish 
species that are in prohibited species status. Groundfish species used 
in the GRS calculations also are subject to the 15 percent utilization 
requirements found at Sec.  679.27(i). Regulations at Sec.  
679.27(j)(1) specify the vessels that are required to comply with the 
annual GRS program and the time period for which the GRS will be 
calculated.
    Regulations at Sec.  679.27(j)(2)(i) establish the equation used 
for the GRS calculation and describe the variables used in each 
component of the calculation. Also, Sec.  679.27(j)(2)(ii) describes 
the schedule for increasing GRS percentages from 2007 through 2010 and 
beyond.
    Regulations at Sec.  679.27(j)(3) describe the monitoring 
requirements for vessels subject to the GRS program. Section 
679.27(j)(3)(i) requires 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) 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 is required to ensure 
that the 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) 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) require 
all vessel owners or operators subject to 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 enforceability of this action by ensuring that all hauls used to 
estimate the GRS are available to be observed, and that a record is 
created by the vessel operator to compare with the observer record. 
Regulations at Sec.  679.27(j)(5) require compliance with the 
monitoring requirements described above and at Sec.  679.27(j)(3) by 
all vessels required to comply with the GRS program that have BSAI 
groundfish or groundfish product on board and that receive deliveries 
of unsorted catch from vessels not required to comply with the GRS 
program. 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.  679.50(c)(6)(i) and (c)(6)(ii) 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 is 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 will 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 will not be permitted 
to exceed 12 hours in a 24 hour period. NMFS may authorize an 
alternative processing plan that could allow the vessel to carry only 
one lead Level 2 NMFS-certified observer depending on whether the 
vessel owner or operator can demonstrate to NMFS that the observer's 
duties can be completed within these workload restrictions. NMFS will 
not authorize an alternative processing plan if it would require the 
observer to divide 12-hour shifts into shifts of less than 6 hours.

Response to Comments

    NMFS received 19 letters of comment on the proposed rule that 
contained 38 separate comments. The following summarizes and responds 
to these comments.
    Comment 1: Costs associated with the proposed monitoring 
requirements, combined with other costs of this program, exceed the 
benefits of the proposed rule. Costly monitoring requirements include: 
(1) a prohibition on the mixing of hauls; (2) a requirement for 
observer sampling from a single location; (3) limiting observer 
sampling to nine hours in a twelve hour shift; and (4) installation and 
use of a NMFS certified scale, an observer sampling station, and the 
requirement for observing all hauls. Monitoring measures will have 
significant, perhaps bankrupting, economic repercussions for affected 
vessels. In aggregate, the monitoring, installation, and operating 
costs to the industry, occupational health and safety issues, and 
timing issues impose greater costs in the context of National Standard 
7 than benefits to either the industry or society from this action.
    Response: NMFS disagrees that this final rule is inconsistent with 
National Standard 7. National Standard 7 states that conservation and 
management measures shall, where practicable, minimize costs and avoid 
unnecessary duplication. Regulatory guidelines for National Standard 7 
at 50 CFR 600.340(d) state that the supporting analyses for management 
measures should demonstrate that the benefits of fishery regulation are 
real and substantial relative to the added research, administrative, 
and enforcement costs, as well as costs to the industry of compliance.
    NMFS has determined that the benefits from implementation of the 
GRS program are real and substantial relative to the costs of the 
program. First, the GRS program will significantly reduce the current 
level of fishery resource waste that occurs in the non-AFA trawl 
catcher processor sector through the mandatory increase in retention of 
groundfish by non-AFA trawl C/Ps and the mandatory production of 
product from that retained fish. As noted in the EA/RIR/FRFA, there is 
no conclusive information regarding how many, if any, discarded 
groundfish survive after being caught in a trawl, and NMFS assumes 100 
percent mortality for all groundfish discarded by trawl vessels. Under 
the GRS program, the amount of groundfish catch that is discarded 
annually by non-AFA trawl C/Ps will decrease by tens of thousands of 
metric tons. The EA/AIR/FFA notes that by 2010, retained catch is 
anticipated to increase by approximately 53,000 metric tons. The GRS 
will also increase the quantity of groundfish production by non-AFA 
trawl C/Ps by 20 percent, to approximately 34,300 tons.
    Members of the public not directly regulated by this action 
testified in support of the GRS program at the Council meetings and in 
public comment on the proposed rule. Federal government resource 
agencies commenting on the proposed rule (supporting the GRS) expressed 
interest in reducing waste of living resources, particularly where no 
products are extracted, used or sold from these groundfish discards. 
Persons who value

[[Page 17366]]

reduction of groundfish discards and waste will perceive that the GRS 
program has successfully reduced groundfish waste in the BSAI and 
benefitted society. National Standard 7 explicitly includes 
consideration of intangible benefits and costs that often are not 
represented by formal markets. For example, these intangible factors 
are not typically included in the observed prices of groundfish removed 
from the BSAI. Moreover, the public interest in reducing the relatively 
high discard rates within this sector also is reflected in National 
Standard 9 guidelines which convey specific national values, and 
benefits for reduction of bycatch and waste in U.S. fisheries. A number 
of these environmental interest groups and other agencies commented on 
the proposed rule and the GRS, attesting to the value that exists in 
reducing bycatch and waste. Bycatch is defined in section 3 of the 
Magnuson-Stevens Act (16 U.S.C. 1802(2)) and used synonymously with the 
term ``discards'' in this final rule.
    Technical challenges to monetizing societal perceptions of 
groundfish discards and waste do not mean that society places an 
insignificant value on wasteful practices in the BSAI. The existence of 
fisheries and game waste reduction, discard and utilization laws in a 
number of states is observable evidence that some members of the public 
perceive that a cost exists to the removal and discard of fish in 
commercial and recreational fisheries. The States of Washington, New 
Jersey, Alaska, Oregon, Minnesota, South Dakota and Vermont regulate, 
to a differing extent, discards of fish and wildlife, roe stripping, or 
limited utilization of fish. The State of Alaska prohibits the discard 
of salmon, herring, and groundfish. The State's laws are noted as some 
of the most restrictive fish and wildlife waste laws in the United 
States. The State's waste laws impose a cost on fishermen to either 
avoid catching fish that are not efficient to sell or use, or to catch 
and deliver the whole fish to a buyer. For example, if market prices 
for salmon flesh were low, or zero, a fisherman may choose to exit from 
a fishery in which he or she would otherwise strip roe, dispose of the 
carcass, and sell the roe because the costs to commercial fishermen to 
forgo catching fish that they may otherwise roe strip and sell, or to 
retain and dispose of fish delivered to processing plants are 
substantial, are potentially on the order of millions of dollars 
annually. The willingness of the legislature (and populace) to forgo 
some of the value of the target fisheries and to avoid discards of 
valuable roe-bearing fish indicates a positive value of this type of 
waste avoidance policy to people who may not catch, produce or consume 
the fish.
    Second, NMFS believes the GRS program will reduce the catch of 
incidental species and the waste of unutilized groundfish by providing 
an incentive to avoid catches with little commercial value. The agency 
expects owners and operators of non-AFA trawl C/Ps to adjust their 
fishing practices to avoid undesirable fish. The tangible benefit of 
such an incentive is that there will be some reduction in the 
disturbance, injury or mortality of groundfish that currently are 
incidentally caught, discarded and unutilized by non-AFA trawl C/Ps. 
The additional groundfish that are retained by implementation of the 
GRS are processed into head and gut products utilized at a rate that 
exceeds the minimum groundfish utilization rate of 15 percent as 
identified in this rule. Under the GRS, not only are more fish expected 
to be retained, but products made from those groundfish are expected to 
contribute to additional production of the head and tail cut product 
known as kirimi. The product recovery rate for kirimi is among the 
highest product recovery rates for BSAI groundfish at 48 percent.
    Third, NMFS anticipates that the increased retention and 
utilization requirements of the GRS program will result in an increase 
in the quantity of groundfish sold to consumers from previously 
discarded species. The benefits that flow from an increase in the 
amount of groundfish production in the marketplace include the expanded 
availability of groundfish for consumers.
    Finally, an indirect but tangible benefit from the GRS program is 
that it will enhance the status quo catch monitoring and accounting of 
groundfish for non-AFA trawl C/Ps. The enhanced data collection will 
allow NMFS inseason managers to adjust season dates with greater 
confidence and may reduce the chance of exceeding groundfish total 
allowable catch. As identified in the preamble to this rule, recent 
enforcement actions for halibut presorting raise concerns regarding the 
accuracy of catch accounting data. If the presorting violations of the 
magnitude documented by some vessels non-AFA trawl C/Ps become widely 
practiced in this sector, and are extended to species at or near an 
overfished state, a conservation risk for those species may exist. The 
monitoring program for the GRS reduces this risk with a combination of 
improved observer coverage and weighing requirements for groundfish.
    NMFS understands that non-AFA trawl C/Ps will incur costs for 
flowscales and plant changes and these costs are examined in the EA/
RIR/FRFA. For example, the rule requires seven vessels in this sector 
to invest in flow scales at an approximate cost of $75,000 to $300,000 
per vessel, and it requires all sixteen vessels greater than 125 ft. 
LOA to carry an extra observer at a cost of roughly $82,000 per year 
per vessel. Under this action, these vessels may incur the costs and 
lost revenues associated with holding/processing, transporting, and 
transferring fish that are of relative low value. However, the lack of 
any standardized industry data on variable costs, fixed costs, and 
earnings to evaluate the effects of the GRS program prevent any 
reliable estimate of how these vessel owners will adjust to this 
action, or how it would change their decisions to enter or exit BSAI 
groundfish fisheries. Based on anecdotal information from the regulated 
sector, the EA/RIR/FRFA notes that one or more vessels may exit the 
fishery if the vessel could be used more profitably elsewhere. However, 
many economic and resource variables enter into groundfish fishing 
vessel entry or exit decisions. Some economic variables that could 
impact this sector include: (1) prices of some non-pollock products 
produced by non-AFA trawl C/Ps have increased in the last decade 
changing the relative value of retaining or discarding certain species 
in the mixed fishery catches; (2) a new vessel buyback program passed 
by Congress (Department of Commerce and Related Agencies Appropriations 
Act, 2005, Public Law 108-447), could encourage non-AFA trawl C/Ps to 
remain active in this fleet until the details of the buyback program 
are known and bids for buyout are approved through a referendum; (3) 
the Council has been working on a program that could facilitate the 
industry's formation of one or more non-AFA trawl C/P fishing 
cooperatives that may increase the expected value of fishing history 
and returns to capital; and (4) changing prices of operational inputs 
such as fuel and labor. Each of these factors may alter economic 
incentives to remain active in or exit a fishery. Also, for some non-
AFA trawl C/Ps, compliance with GRS program monitoring requirements 
will not involve significant changes to a vessel or operation. Seven 
vessels in this sector currently have flow scales, five of which have 
certified flow scales. Five vessels also have observer stations, and at 
least one vessel has two observers on board for much of the year. NMFS 
anticipates these vessels will experience lower GRS

[[Page 17367]]

program costs compared with vessels that have no flow scales, observer 
stations or less than 2 observers. In consideration of vessels that may 
incur relatively higher initial M&E costs associated with modifying 
vessel layout and associated processing operations, the regulated 
entities are provided additional time to contract for and arrange 
vessel modifications by implementing the GRS program in 2008 rather 
than in 2007. NMFS has also addressed comments on monitoring costs of 
the GRS program in response to Comments 2, 13, 23, and 25.
    The costs of the GRS program are justified by the groundfish 
discard and compliance history of the non-AFA trawl C/P sector. The 
sector regulated by the GRS has chronically exceeded groundfish discard 
rates that have been routinely achieved by other BSAI groundfish 
sectors. These relatively higher discard rates create an inconsistency 
and imbalance in groundfish fishing privileges to sectors striving to 
reduce groundfish discards. This regulatory action is necessary to 
maintain groundfish fishing practices that are equitable and 
accountable across all BSAI groundfish C/Ps.
    This final rule applies a reasoned process for determining that the 
benefits of the GRS justify the costs for the following additional 
reasons: (1) A tangible market exists for avoidance of groundfish 
discards in the United States as demonstrated by Federal and State laws 
restricting and preventing fish discards to reduce waste as identified 
in this response and the response to Comment 6. Public comment in 
support of the proposed rule from the EPA and the State of Alaska 
(Department of Fish and Game) are representative agencies for those 
market values. Market prices for discard reduction cannot be directly 
observed because there is no mechanism for people who value clean 
fishing to pay those that catch, kill and discard groundfish in this 
sector; (2) The increment in discard reduction from the action are 
significant in comparison with total discards in the BSAI and large 
compared with total groundfish harvests in many other coastal states as 
identified in the response to Comment 3, and justified as identified in 
public comments (on the proposed rule) from persons outside the 
regulated sector, including the EPA and State of Alaska; (3) Costs of 
the GRS may change fishing decisions and fishing effort for one or more 
vessels in the non-AFA trawl C/P sector, but they are not likely to 
force persons to exit Alaska groundfish fisheries altogether 
considering prices of the products derived from many of the species 
that will be retained, as noted in the response to Comment 9 and (4) 
The M&E costs associated with initial factory modifications could be 
accommodated over more than an 18 month period to provide flexibility 
in planning and construction time for plant changes.
    There is no requirement to limit bycatch reduction tools to only 
those that increase profits for affected vessels or do not impose costs 
to a business or aggregation of fishing businesses. National Standard 9 
requires that conservation and management measures minimize bycatch to 
the extent practicable and minimize the mortality of bycatch when it 
cannot be avoided. Guidelines for practicable bycatch reduction efforts 
(discard reduction) include consideration of impacts on the environment 
and value to people who may not directly consume or produce the 
resource. In this respect, NMFS received public comments from persons 
and Federal and State agencies that expressed support for implementing 
the GRS program. These include an environmental interest group, a 
member of the non-AFA trawl C/P sector, the U.S. Environmental 
Protection Agency, and the State of Alaska.
    A portion of this comment refers to costs associated with safety as 
a result of a possible industry response to the prohibition on haul 
mixing. The alternatives for non-AFA trawl C/Ps to respond to or adjust 
operations and reduce or eliminate circumstances where loading 
practices may have adverse safety implications are numerous and 
addressed in the response to Comment 12. Any efforts to avoid unsafe 
loading practices in this sector could result in a change to vessel 
costs. NMFS believes that these risk avoidance costs are likely to be 
subsumed in the fixed costs and driven by external Coast Guard vessel 
safety regulations and economic incentives for risk avoidance.
    The prohibition on mixing of hauls, limitations to one flow scale 
and conveyor line passing over a scale, and limitation on observer 
sampling time to 9 hours a day were all included in the proposed rule 
to provide NMFS with the ability to adequately account for groundfish 
catch and discards under the GRS program. NMFS agrees that observers 
may be allowed to sample during an entire 12-hour shift, and the final 
rule removes the limitation of 9 hours on observer sampling, as 
explained in the response to Comment 13. Based on the above, NMFS has 
determined that the benefits from the GRS program identified in this 
response are real and substantial relative to the added costs to the 
industry and the agency.
    Comment 2: NMFS received a number of comments regarding the cost 
estimates for the monitoring provisions of the GRS program. A range of 
opinions expressed that some data used to estimate the costs of the 
monitoring provisions were not accurate, understated or overstated. For 
example, one commenter asserted that NMFS underestimated the costs of 
altering vessels to accommodate flow scales, the costs resulting from 
the prohibition on mixing of hauls, and the costs of other monitoring 
requirements. Other comments suggested that specific estimates of 
aggregate costs in the EA/RIR/IRFA were overstated, noting that each 
year most of the affected vessels make major factory modifications to 
repair equipment and make processing operations more efficient.
    Response: The data included in the EA/RIR/FRFA represent the best 
scientific data available to NMFS on the financial costs associated 
with the monitoring requirements of the GRS program. Wherever possible, 
NMFS accessed third party data on costs, such as those associated with 
purchasing and installing scales, or published rates for observers. No 
independent data exists to determine the extent of other potential 
costs. Other effects and available data on the costs of the monitoring 
program are outlined in the response to Comment 1. The range of 
comments on vessel upgrade costs suggests the possibility that NMFS' 
estimates represent reasonable point estimates for this sector, 
although NMFS acknowledges that considerable variation in monitoring 
compliance costs may exist among fishing vessels.
    Comment 3: The proposed action could have a detrimental effect on 
the community of Greater Seattle due to the concentration of C/Ps in 
this locality. Further, National Standard 8 is not constrained to the 
concept of a community as a formal geographic area. A community can be 
an aggregation of similarly interested individuals engaged in an 
activity such as fishing. In this context, severe impacts would be 
imposed on the non-AFA trawl C/P community from this action.
    Response: NMFS disagrees that the GRS program will have a 
detrimental effect on the community of Greater Seattle. The EA/RIR/FRFA 
examines the impacts of the GRS program on fishing communities. As 
treated in section 4.2 and in the National Standard 8 discussion in 
section 5.1 of the EA/RIR/FRFA for the GRS program, NMFS does not 
anticipate that the Seattle area in the State of Washington and 
communities along the northern Oregon coast will experience any 
significant impacts or

[[Page 17368]]

cumulative effects from the GRS program based upon the sustained 
participation of these communities in the groundfish fisheries. The 
size of the regional economy and personal income generated in Seattle 
and surrounding areas as well as in coastal communities in Oregon 
dilutes the overall impact of the Alaska groundfish fishery jobs. While 
nearly all the non-AFA trawl C/Ps affected by the GRS program are home 
ported in Seattle, NMFS anticipates few impacts on the surrounding 
area, in terms of average annual employment, personal income or 
purchase of goods and services.
    The comment also suggests that under National Standard 8, a 
community can be defined as an aggregation of similarly interested 
individuals. National Standard 8 states that conservation and 
management measures must, consistent with the conservation requirements 
of the Magnuson-Stevens Act (including the prevention of overfishing 
and rebuilding of overfished stocks), take into account the importance 
of fishery resources to fishing communities in order to (A) provide for 
the sustained participation of such communities; and (B) to the extent 
practicable, minimize adverse economic impacts on such communities. 
Regulatory guidelines for National Standard 8 at 50 CFR 600.345(b)(3) 
define a fishing community as a community that is ``substantially 
dependent on or substantially engaged in the harvest or processing of 
fishery resources to meet social and economic needs and includes 
fishing vessel owners, operators, and crew, and fish processors that 
are based in such communities. A fishing community is a social or 
economic group whose members reside in a specific location and share a 
common dependency on commercial, recreational, or subsistence fishing, 
or on directly related fisheries dependent services and industries (for 
example, boatyards, ice suppliers, tackle shops).'' NMFS developed the 
guidelines for National Standard 8 in accordance with the Sustainable 
Fisheries Act (SFA, Pub. L. 104 - 297), which added National Standard 8 
to the Magnuson - Stevens Act, and with congressional intent as 
expressed through the legislative history for the SFA. Given NMFS' 
regulatory guidelines, a ``fishing community'' is based on a geographic 
approach, defining a census area or statistical area that is consistent 
with a known state or federal designation for a community. NMFS 
disagrees with the comment that a fishing community can be an 
aggregation of similarly interested individuals, engaged in an activity 
such as fishing. NMFS has followed its regulatory guidelines with 
respect to analyzing the impacts of the GRS program on affected 
entities and has determined that the GRS program is consistent with 
National Standard 8.
    Comment 4: The proposed rule does not meet the practicability 
standards for National Standard 9. The costs to non-AFA trawl C/Ps are 
high in comparison with the benefits to society. These costs result 
from the following provisions: no mixing of hauls, limitation to only 
one flow scale and line, limitation on observer sampling workload time 
to nine hours out of twelve hours in a day, requirement for 
installation and use of a NMFS certified scale, requirement for an 
observer sampling station, and the requirement for monitoring of all 
hauls.
    Response: NMFS disagrees that the GRS program fails to meet the 
practicability standards for National Standard 9. National Standard 9 
states that conservation and management measures shall, to the extent 
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot 
be avoided, minimize the mortality of such bycatch. Regulations 
implementing National Standard 9 at 50 CFR 600.350(d)(3) state that 
NMFS should consider ten factors when determining whether a 
conservation and management measure minimizes bycatch or bycatch 
mortality to the extent practicable, consistent with the other national 
standards and maximizing net benefits to the Nation. The ten factors 
are: population effects for the bycatch species; ecological effects due 
to changes in the bycatch of that species (effects on other species in 
the ecosystem); changes in the bycatch of other species of fish and the 
resulting population and ecosystem effects; effects on marine mammals 
and birds; changes in fishing, processing, disposal, and marketing 
costs; changes in fishing practices and behavior of fishermen; changes 
in research, administration, and enforcement costs and management 
effectiveness; changes in the economic, social, or cultural value of 
fishing activities and nonconsumptive uses of fishery resources; 
changes in the distribution of benefits and costs; and social effects.
    Because the GRS program is a bycatch reduction measure, the costs 
and benefits associated with the GRS program and considered in light of 
National Standard 9 are similar to the considerations that NMFS must 
undertake relative to National Standard 7 and therefore, the response 
to Comment 1 is relevant to this response. As explained in the response 
to Comment 1, the EA/RIR/FRFA developed for the GRS program 
demonstrates that the benefits of the GRS program, while not all of 
which are easily quantifiable, are real and substantial relative to the 
costs of compliance, consistent with both National Standards 7 and 9. 
The EA/RIR/FRFA for the GRS program itemizes and addresses each of 
these factors in a manner that is responsive to National Standard 9. 
Several of the key benefits identified in the response to Comment 1 
directly address two of the factors that NMFS must consider when 
evaluating an action's consistency with National Standard 9: changes in 
the economic, social, or cultural value of fishing activities and 
nonconsumptive uses of fishery resources; and social effects. 
Additionally, as noted in the response to Comment 1, a number of states 
have enacted bycatch (discard) and other fish and wildlife waste 
reduction measures, including complete or partial banning of such 
actions as roe stripping and wanton waste. NMFS believes that measures 
implemented by other jurisdictions to reduce waste and under-
utilization of fish reveal preferences and positive values for the GRS 
program.
    The response to Comment 1 lists the benefits and costs of the GRS 
program. Although the non-AFA trawl C/P sector has attempted to 
increase retention of groundfish without regulatory intervention, it 
has been unsuccessful in raising retention rates to match the rates of 
other catcher processors' operations in the BSAI groundfish fisheries. 
The groundfish retention rate for non-AFA trawl C/Ps remains 
significantly lower than other BSAI catcher processor sectors.
    Comment 5: NMFS has not addressed National Standard 9, which 
explicitly states the intent of Congress for discard reduction efforts 
to be ``practicable.'' As clarified in the Congressional Record on 
National Standard 9: ``'Practicable' requires an analysis of the costs 
of imposing a management action; the Congress does not intend that this 
provision will be used to allocate among fish gear groups, nor to 
impose costs on fishermen and processors that cannot be reasonably 
met.'' Some of the new monitoring and enforcement aspects presented in 
the proposed rule do not meet this standard.
    Response: NMFS disagrees that National Standard 9 has not been 
addressed and that the GRS program is inconsistent with National 
Standard 9. NMFS has published regulatory guidelines for National 
Standard 9 at 50 CFR 600.350 that are responsive to and consistent with 
National Standard 9 and other provisions of the Magnuson Stevens Act. 
The EA/RIR/FRFA at section 4.5.4 includes a discussion of

[[Page 17369]]

the consistency of the GRS program with National Standard 9. NMFS 
acknowledges that some vessels will incur new costs under the GRS 
program that could reduce profits for some fishing businesses in this 
sector. The potential exists that one or more non-AFA trawl C/Ps may 
choose to exit from this fishery, though no independently verifiable 
data are available from this sector to confirm if this is likely. 
National Standard 9 does not require that the benefits to a sector or a 
fishery offset the costs of complying with discard reduction programs, 
or that the benefits to each vessel offset the costs to individual 
vessels. National Standard 9 does, however, require that the agency 
examine the best available data on bycatch reduction benefits to the 
nation and bycatch costs. Benefits from a bycatch (discard) reduction 
action include a broad spectrum of effects as discussed in the 
responses to Comments 1 and 4. In the case of the GRS program, NMFS has 
determined that the preponderance of benefits to society by reducing 
discards by over 50 thousand metric tons per year at a GRS of 85 
percent offset costs in a manner consistent with National Standard 9.
    Past actions by some non-AFA trawl C/Ps demonstrate that the 
monitoring requirements necessary to implement the GRS program and 
described above do not impose costs that cannot be reasonably met. As 
described in section 4.5.2 of the EA/RIR/FRFA prepared for this action, 
several non-AFA trawl C/Ps already have met some or all the GRS program 
monitoring requirements in compliance with other management programs. 
Finally, the GRS program does not allocate among fish gear groups.
    Comment 6: The State of Alaska recommends that the proposed GRS be 
approved because it addresses National Standard 9 as follows:
    a. National Standard 9, as approved by Congress is consistent with 
the State of Alaska wanton waste laws and its application to state 
resource management. The Alaska legislature received impassioned 
testimony regarding citizen objections to waste of fishery resources of 
the type that is occurring in the non-AFA trawl C/P fleet when the bill 
was originally passed in 1975 and amended in 1984.
    b. Bycatch (discard) reduction has international and national 
support. There is broad-based public consensus that discarded portions 
of fishery catches represent an unacceptable waste of the public's 
natural resources.
    c. According to NMFS regulations (50 CFR 600.350), the criteria for 
evaluating discard reduction measures include non-consumptive, 
existence, ecological values, and impacts of groundfish discards on the 
environment. The GRS provides potential mitigation for any losses in 
the value of groundfish to persons who do not produce or consume these 
resources, and any lost value associated with the environment.
    d. The proposed GRS program for the non-AFA trawl C/P sector would 
provide ecological and social benefits that outweigh the costs of the 
program.
    Response: NMFS agrees with the comments made in paragraphs (b) and 
(c) and notes the comments made in paragraphs (a) and (d).
    Comment 7: None of the Council's bycatch reduction actions, alone 
or in combination, are sufficient to comply with the Magnuson-Stevens 
Act bycatch mandates. The GRS is a single species-based approach to 
reducing bycatch (discards) in one portion of the fleet. The commenter 
urges NMFS to address discards on a more fundamental level by 
establishing a Bycatch Committee with a strong mandate and clear 
timeline to develop ecosystem-based conservation and management 
measures that focus on avoiding discard of all marine species.
    Response: NMFS disagrees with the comment that none of the current 
bycatch reduction measures in the North Pacific groundfish fisheries is 
sufficient to comply with the Magnuson-Stevens Act's bycatch mandates. 
The bycatch monitoring and reduction programs implemented for the North 
Pacific groundfish fisheries have resulted in significant reductions in 
the amount of fish discarded in these fisheries over the past decade, 
as well as bycatch avoidance initiatives for prohibited species and 
seabirds. These activities and the catch monitoring programs 
implemented for the Alaska groundfish fisheries are the most extensive 
in the nation and are fully compliant with the Manguson-Stevens Act. 
Nonetheless, opportunities for improvement exist, and the Council 
focused a GRS program on non-AFA trawl C/Ps because those vessels had 
the highest discard rate compared to other sectors operating in the 
BSAI. The GRS program is not a single species-based approach to 
reducing bycatch. Instead, it is a multispecies approach for reducing 
discards of multiple groundfish species.
    Consistent with the U.S. Commission on Ocean Policy report and the 
President's U.S. Ocean Action Plan, the Council is continuing to pursue 
ecosystem-based conservation and management measures. It has 
established an ecosystem committee to explore different ecosystem 
approaches to management and is exploring the concept of a fishery 
ecosystem plan for the Aleutian Islands area as a pilot project. The 
Council recognizes that its decisions regarding fisheries and 
associated bycatch issues affect and are affected by the actions of 
other governing bodies. Accordingly, the Council also is exploring the 
feasibility of an Aleutian Islands Ecosystem Forum or some similar 
mechanism for collaboration among the governmental bodies involved in 
ocean related activities in the Aleutian Islands area.
    Comment 8: The GRS is necessary because the sector has not shown 
the ability to internally control discard practices. Some species, such 
as northern rockfish in the Aleutian Islands Atka mackerel fishery, are 
discarded at rates that are equal to or exceed 80 percent. This 
activity shows a disregard for a species managed under a federal 
fishery management plan.
    Response: The statistic that discards of northern rockfish discards 
are equal to or exceed 80 percent is consistent with NMFS catch 
accounting data. In 2003 and 2004, the discard rate of northern 
rockfish in the non-AFA trawl C/P fleet exceeded 90 percent in the 
Aleutian Islands area. NMFS agrees that this discard rate is an example 
of why the GRS program is a necessary conservation and management 
measure. The GRS program will make it more difficult to discard 
groundfish species that are currently discarded at rates that are much 
higher than the GRS percent for a given year. The GRS program is 
expected to provide incentives to either avoid catching unwanted 
groundfish or to seek markets to better utilize incidental harvest of 
groundfish species.
    Comment 9: This action would not reduce discards and, therefore, is 
not practicable. Bycatch is defined by the Magnuson-Stevens Act as fish 
which are not sold or kept for personal use. This action would require 
vessels to retain fish that are valueless and not likely to be 
marketable in the near future. This unmarketable fish will have to be 
thrown away on land, and likely would increase ancillary transportation 
and disposal costs. These fish do not meet the definition of bycatch 
and, furthermore, these removals represent a net loss of energy from 
the ecosystem.
    Response: Section 3 of the Magnuson-Stevens Act (16 U.S.C. 1802(2)) 
defines the term ``bycatch'' to mean fish which are harvested in a 
fishery, but which are not sold or kept for personal use, and 
``includes economic discards and regulatory discards'' (emphasis 
added). Economic discards are defined as fish that are the target of a 
fishery, but which are not retained because they are of an undesirable 
size, sex, or quality, or for

[[Page 17370]]

other economic reasons. As noted in the response to Comment 1, the GRS 
will create an incentive to reduce economic discards by establishing a 
minimum percentage of the total catch of groundfish that must be 
retained. The costs associated with required retention rates are an 
incentive to avoid catching groundfish that will not be utilized. 
Therefore, unless total catch of groundfish declines in this sector, 
NMFS assumes that both groundfish retention and utilization will 
increase under the GRS program. The GRS is likely to reduce economic 
discards that are clearly included in the definition of ``bycatch'' in 
the Magnuson-Stevens Act.
    NMFS does not agree that all utilized product from the GRS program 
will be unmarketable, although it is possible a vessel regulated by 
this action could find that the cost of harvesting and marketing a 
groundfish product may exceed the revenues generated. For some products 
this condition may occur in any fishery. The marketability of products 
utilized under the GRS program will depend on a number of regional and 
international market factors that are unrelated to the GRS program. For 
example, rising market prices have been observed for a number of 
flatfish species subject to the GRS program.
    The EA/RIR/FRFA for the GRS program projects that increased 
retention requirements will typically reduce the percent and amount of 
discards, relative to the no action alternative. Any reduction in 
discards projected from the GRS will be small compared to natural 
sources of detritus in the BSAI. There is also an absence of evidence 
relating changes in scavenger populations to discard trends that would 
suggest groundfish discards have significant ecosystem impacts through 
energy removal and redirection.
    Comment 10: The analysis shows that the GRS alternative only 
results in a small change in groundfish retention.
    Response: NMFS disagrees that the anticipated reduction in 
groundfish discard amounts under the GRS program should be 
characterized as insignificant or small. The rule requires that the 
groundfish retention rate for the vessels regulated by this rule to 
increase to 85 percent from present levels of 65 percent - 75 percent 
in the absence of a regulation. The EA/RIR/FRFA for the GRS program 
estimates that when the GRS increases to 85 percent in 2010, more than 
an additional 50,000 metric tons (110 million pounds) of groundfish 
will be retained annually.
    Comment 11: Discarding catch in the course of normal fishing 
operations is a poor practice, and will decrease the sustainability of 
fisheries in the long term. We support efforts by NMFS and the Council 
to reduce regulatory and economic discards.
    Response: Comment noted. The GRS program will reduce amounts of 
economic discards by non-AFA trawl C/Ps in the BSAI groundfish 
fisheries.
    Comment 12: The U.S. Coast Guard (USCG) Fishing Vessel Safety 
Division recommends the prohibition on mixing of hauls aboard non-AFA 
trawl C/P vessels impacted by the GRS be reexamined with respect to 
safety at sea. The basis for this recommendation is the potential for 
additional risks to vessel stability if vessel operators choose to 
comply with the proposed prohibition on mixing of hauls by holding 
greater amounts of groundfish on deck prior to transporting that fish 
into bins and weighing areas.
    Response: As adopted by the Council, the GRS program for non-AFA 
trawl C/Ps is based solely on groundfish species that are not on 
prohibited species status. As a result, catch of non-groundfish, 
groundfish species on prohibited species status, or rocks, boulders, 
and other non-biological catch must be estimated by NMFS based on haul 
specific observer data and deducted from the total haul catch weight. 
The response to Comment 17 describes why this estimation procedure must 
be done on a haul by haul basis and cannot allow for the mixing of fish 
from different hauls.
    Given the comment from the USCG Fishing Vessel Safety Division, 
NMFS re-examined the prohibition for mixing hauls. In that re-
examination, NMFS demonstrated ample operational choices and 
flexibility for vessel operators to avoid unsafe loading practices 
while fishing under the mixing of hauls prohibition. After reviewing 
NMFS' re-examination, the USCG concluded that NMFS had ``offered 
numerous viable options to reduce time (of codends and fish) on the 
deck.''
    After consulting with staff of the USCG Fishing Vessel Safety 
Division, NMFS concludes that this final rule will not result in a 
decrease in vessel safety compared with the status quo, and that this 
action is consistent with National Standard 10. NMFS recognizes that 
fishing is a dangerous activity, particularly in the North Pacific, and 
believes that persons engaged in this business are aware of these 
risks. The GRS program does not require persons to undertake dangerous 
actions beyond those they voluntarily undertake when they choose to 
fish in the North Pacific. Vessel masters and crew make choices on how 
best to accommodate safety concerns during fishing activity, including 
considerations about vessel stability.
    The prohibition on mixing of hauls could be accommodated in a 
number of ways that would not result in new vessel stability risks. For 
example, vessels could slow fishing effort and the frequency at which 
gear is deployed to better time haul back activities to minimize the 
amount of time a codend is on deck. Or, rather than staging a codend on 
deck where it could be poised for immediate dumping when the previous 
haul is completely processed, it is a common practice by operators of 
non-AFA trawl C/Ps to ``shortwire'' a codend, where it is closely towed 
behind the vessel. Hauling of the codend up onto the deck takes little 
more than several minutes. As soon as the bin is emptied, the vessel 
operator could haul the shortwired codend on deck and immediately dump 
its contents into the bin. Thus, little or no legitimate need exists to 
stage a codend on deck, and the timing of when to haul the codend on 
deck and begin dumping the codend into the tank is within the control 
of the vessel operator. The industry practice of shortwiring a codend 
at the stern provides an opportunity to ensure a very minimal delay in 
fish being delivered to the processing deck without having to leave a 
codend on deck.
    Vessel operators also could increase throughput in a factory to 
complete processing activities of a prior haul before a codend is 
brought on deck. Vessel specific layout also could be modified to 
increase the size or number of fish bins to avoid mixing of hauls.
    The GRS program does not impede the use of any of these strategies. 
Although some of them may be costly to some vessels, these changes 
could be incorporated into other required factory modifications. The 
analysis prepared for this action describes the costs associated with 
these changes in section 4.5. The response to Comment 1 includes a more 
detailed explanation of the costs examined in the EA/RIR/FRFA.
    NMFS also encourages vessel owners to adhere to USCG requirements 
that the master of a vessel is the responsible party to ensure the 
stability and safety of his or her vessel. In addition, many commercial 
fishing vessel owners are required by the USCG to retain on board a 
copy of the vessel's Trim and Stability Booklet (T&S Booklet) prepared 
by a certified naval architect (46 CFR part 170 subpart D--Stability 
Instructions for Operating Personnel). Most, if not all, the 16 non-AFA 
trawl C/Ps that will be regulated under the GRS program have a T&S 
Booklet. The USCG advises that

[[Page 17371]]

the T&S Booklet should be written in clear terms and made available to 
all members of the crew. Each vessel must restrict the loading of catch 
according to the tables and analysis in the T&S Booklet, which 
considers many variables, including fuel, other ballast, and gear. The 
USCG is authorized to review these booklets when boarding a vessel at 
sea, but more frequently will review the T&S Booklet in port prior to 
departing for the fishing grounds. Carrying a load of fish on deck in 
amounts that exceed the recommendations in a vessel's T&S Booklet may 
adversely impact vessel stability and create a safety hazard. The 
implementation date for the GRS program provides ample time for vessel 
owners and operators to further to integrate vessel safety measures 
into modified vessels and plants. NMFS encourages vessel operators to 
consult USCG guidance for reviewing safety equipment and loading 
practices between the date of this final rule and implementation of the 
GRS.
    The incentive for both crew and observers to work in safe 
conditions is likely to contribute to a vessel operator's compliance 
with safe loading procedures and, if available, recommendations of the 
T&S Booklet. While stability risk assessment involves potentially 
complex engineering models, the act of loading the contents of multiple 
codends of fish on the deck of a vessel is highly observable to persons 
working on a vessel and easier to monitor than many activities that may 
involve safety risks. Crew members have an interest in safety and an 
incentive to understand loading procedures that may impact vessel 
stability. NMFS certified observers are neither trained nor expected to 
assess or monitor vessel stability. However, at any time, crew or 
observers may formally record practices, question a skipper, or contact 
the USCG regarding any safety issue posing a risk to the conduct of 
their activities on a vessel, including issues associated with the 
stability of a vessel. Furthermore, any increase in observed illegal or 
unadvised risk taking behavior on the part of non-AFA trawl C/Ps could 
be translated into higher insurance premiums, including employee 
liability and capital loss insurance. Thus, the threat of higher costs 
imposed by insurance markets for violating loading and stability 
recommendations may buffer any propensity of an operator of a non-AFA 
trawl C/P to attempt unsafe, and/or illegal loading practices in these 
fishing operations.
    Given the above considerations, NMFS has determined that the GRS 
program for non-AFA trawl C/Ps will not result in additional safety 
concerns resulting from the catch monitoring requirements established 
for this program and is consistent with National Standard 10.
    Comment 13: The Small Business Administration Office of Advocacy 
was unable to locate a discussion of the monitoring and enforcement 
costs associated with the prohibition on mixing of hauls, limitation on 
the number of hours per day an observer may sample catch, the 
installation of a NMFS approved scale, and specified single observer 
sampling location.
    Response: The IRFA prepared for the proposed rule includes a 
summary of the impacts of the proposed rule and alternatives, including 
the monitoring program and states that the specific economic impacts of 
the proposed rule and other alternatives on both large and small 
entities in section 4. Section 5.3.9 of the FRFA includes information 
and analysis on a number of economic factors, including an examination 
of changes in revenues and operating costs under the proposed action 
and alternatives. section 5. This section examines the estimated costs 
of installing flow scales and observer stations and the costs 
associated with additional observer coverage. Although not explicitly 
stated, the estimated costs of installation apply to those vessels that 
must reconfigure a previously installed flow scale or observer sampling 
station in order to accommodate the monitoring provisions of the GRS 
program. While the FRFA does not include a specific discussion of the 
costs associated with the prohibition on the mixing of hauls, it does 
provide an estimate of the overall costs of compliance with the 
monitoring provisions of the proposed rule, which specifically included 
the prohibition on the mixing of hauls. The estimates provided in the 
FRFA are based on the best available data.
    The EA/RIR/FRFA prepared for the final rule notes in several 
locations that ``all hauls'' must be available for observer sampling 
and in Appendix 1 that ``each haul'' must be available for observer 
sampling. NMFS is aware that some vessels routinely mix hauls and may 
have costs associated with this prohibition that are different from 
costs experienced by those vessels that do not mix hauls. No 
independent data exist to determine the extent of these potential 
costs, but the primary effect of the haul mixing constraint could be 
reduced haul frequency. Other effects and available data on the costs 
of the monitoring program are outlined in the response to Comment 1.
    Reference to an observer sampling station is made in numerous 
locations throughout the EA/RIR/FRFA. The proposed rule clearly states 
the requirement for a single observer station and NMFS has not 
suggested that multiple observer stations would be allowed. The effects 
and costs associated with requiring observer stations on these vessels 
are discussed in the EA/RIR/FRFA , and NMFS has used the best available 
data to project potential costs associated with observer requirements 
and sampling stations. NMFS acknowledges that observer sampling station 
costs may differ among operations, but that the estimates provided 
constitute the best data available to the agency at this time to make 
these estimates. A substantial time period for planning and 
construction is accommodated by the 2008 implementation date to allow 
regulated vessels to seek the most efficient means to install and 
modify equipment to comply with the GRS. The response to Comment 24 
also includes information on the need for and impacts of observer 
stations.
    For the reasons explained in response to Comment 21 and in Changes 
from the proposed rule, NMFS agrees that the proposed limitation of an 
observer's sampling activities to no more than 9 hours per day is not 
explicitly discussed in the EA/RIR/IRFA. NMFS received public comment 
that constraining observers to a nine hour sampling day could constrain 
fishing operations for vessels subject to the GRS program. Thus, upon 
reconsideration, this measure has been modified in the final rule such 
that the time required for observers to complete their sampling, data 
recording, and data communications duties cannot exceed 12 hours per 
day. Non-AFA trawl C/Ps continue to be required to carry two observers 
to fish uninterrupted during each 24 hour period.
    The EA/RIR/IRFA provided information on the cost of NMFS approved 
scales in section 4.5. The response to Comment 1 also notes that flow 
scale installation costs could range from $75,000 to $300,000 per 
vessel.
    Comment 14: NMFS used the wrong criteria for assessing the impacts 
of the proposed rule on the non-AFA trawl C/Ps under the Regulatory 
Flexibility Act. The Small Business Administration Office of Advocacy 
(NAICS) indicates that the correct North American Industry 
Classification System code for catcher processor vessels is code 
311711, which is known as ``Seafood Product Preparation and 
Packaging.'' This classification specifically includes establishments 
that are ``floating factory

[[Page 17372]]

ships.'' The size standard for businesses in that industry is 500 or 
fewer employees.
    Response: The IRFA and FRFA prepared for this action consider the 
effects to all non-AFA trawl C/Ps as if they are all small entities 
under the Regulatory Flexibility Act. The effects to all vessels 
subject to this action were examined in these analyses. However, the 
Small Business Administration's Size Standards by NAICS code at 13 CFR 
121.201 do not include a size standard for vessels that both harvest 
and process catch. NMFS acknowledged the need for a determination as to 
whether the catcher processor fleet would be considered fish 
harvesters, and thereby governed by the annual receipts standard for 
catcher vessels, or fish processors, and thereby governed by the 
employee standard for seafood processors, for purposes of preparing 
analyses under the requirements of the Regulatory Flexibility Act. To 
date, NMFS has applied the annual receipts standard to catcher/
processors because a catcher/processor is first and foremost a fish 
harvesting operation. Using this rationale, NMFS appropriately 
considered non-AFA trawl C/Ps as fish harvesters in the IRFA and FRFA 
prepared for this action and applied the annual receipts standard for 
purposes of Regulatory Flexibility Act analyses. Although NMFS 
currently is reviewing its small entity size classification for all 
catcher/processors in the United States, NMFS will continue to use the 
annual receipts standard for catcher/processors until new guidance is 
adopted.
    Comment 15: The Small Business Administration Office of Advocacy 
requests that a new IRFA be submitted that includes a discussion of the 
impacts on small entities.
    Response: NMFS has determined that a new IRFA is not necessary. As 
explained in the responses to Comments 13 and 14, NMFS considered the 
non-AFA trawl C/Ps affected by the GRS program to be small entities and 
prepared an IRFA that sufficiently discussed the impacts of the 
proposed rule on small entities, including all the non-AFA trawl C/Ps 
directly regulated by this action.
    Comment 16: The agency did not consider the reasonable and prudent 
alternative of changing the accounting period for maximum retainable 
amounts (MRA) of other groundfish species to achieve discard reduction. 
This revision was implemented for pollock in the BSAI and resulted in 
increased retention with minimal costs. The MRA accounting period for 
groundfish could be revised to an offload-to-offload period. By 
providing operators with additional flexibility to manage groundfish 
retention, this revision would allow vessels to decrease discards.
    Response: The EA/RIR/FRFA examined a range of reasonable 
alternatives to achieve the stated purpose and need: to create a fixed 
standard for the retention of BSAI groundfish. MRAs are management 
tools intended to slow the harvest rate of a species by prohibiting 
directed fishing for the species but permitting the limited retention 
of incidental catch amounts. Requiring vessel operators to adhere to 
MRAs at any time during a trip limits vessel operators' ability to 
maximize catch retention of any given species. This restriction also 
limits opportunities for vessel operators to intentionally target 
valuable species that are closed to directed fishing. Revising an MRA 
accounting period to allow additional groundfish retention could 
provide for increased targeting on a valuable species and increase the 
risk that catch would approach over-fishing levels. Additionally, this 
revision would only increase groundfish retention of those species that 
provide an economic benefit to vessel owners and operators. Vessel 
owners and operators are unlikely to retain species that decrease their 
profits.
    Conversely, the GRS program is a performance-based management 
concept that is intended to alter fishing behavior to decrease discard 
and increase retention within the current management constraints. 
Vessel operators would increase their overall groundfish retention 
within current MRA restraints. They would also be less likely to 
intentionally target high value species that are closed to directed 
fishing, and more likely to retain groundfish species they would not 
otherwise retain.
    NMFS agrees that modification of the pollock MRA accounting period 
provides greater opportunity for retention of pollock when a vessel 
operator determines that it is economically feasible to do so. The 
adjustment to the accounting period for the pollock MRA may be an 
effective tool to reduce discards through increased retention because 
pollock is sometimes a valuable species and it is always on bycatch 
status for vessels that are not permitted to participate in the 
directed pollock fishery under the American Fisheries Act. Furthermore, 
the incidental catch of pollock on a haul-by-haul basis can be 
relatively high for non-AFA trawl C/Ps. These two facts led the Council 
to focus on the pollock MRA adjustment as an effective management 
measure to reduce discards.
    Other economically valuable species such as Pacific cod and some 
rockfish species also are taken incidentally by non-AFA trawl C/Ps. The 
Council is considering adjusting the MRA accounting periods for these 
species to address discard issues. NMFS supports this initiative, 
however, the potential reduction in discards of Pacific cod and 
rockfish likely would be less than that anticipated for pollock due to 
the larger volume of pollock catch that currently must be discarded. 
Conservation and allocation concerns also must be considered for any 
change in retention standards that might create greater incentives to 
target a species that may have low acceptable biological catch levels 
and associated overfishing concerns or be fully utilized by competing 
user groups. Nonetheless, the Council and NMFS would need to prepare a 
separate rulemaking to adjust the MRA accounting period for incidental 
catch of groundfish taken by non-AFA trawl C/Ps. If adopted by the 
Council and approved by NMFS, such an adjustment may be implemented 
prior to 2007 when the GRS program becomes effective.
    Comment 17: The requirement to observe and sample each haul can be 
satisfied by less onerous and safer means than prohibiting the mixing 
of hauls. For example, traditional operations could continue and all 
hauls could be observed by requiring the container that holds unsorted 
catch from the codend (live tank) to be emptied before the observer 
goes off-duty.
    Response: As described above, only groundfish not on prohibited 
species status are used in the GRS calculation. Observer samples will 
be used to calculate the proportion of groundfish not on prohibited 
species status for each discrete haul. Total groundfish catch is 
determined by pooling together multiple basket samples from a discrete 
haul, determining species composition of the catch by weight, and 
expanding the sampled weight of all groundfish not on prohibited 
species status by the total weight of the haul as measured by a flow 
scale. To determine whether a vessel has met the specified annual GRS 
threshold, NMFS divides the round weight equivalent of retained 
products during a year by the sum of haul specific estimates of total 
groundfish catch over the same time period.
    Because the distribution of organisms by size and species in a haul 
is often heterogeneous between hauls, an aggregation of hauls (i.e., 
mixing two or more hauls) could create errors in the

[[Page 17373]]

calculation of total groundfish catch. For example, if a vessel mixes 
hauls from two different areas or depths, catch composition and size 
could be significantly different between these hauls, and a composite 
sample may not be representative of each individual haul. Any errors 
would be exacerbated as the composite sample is expanded to the total 
weight of the mixed hauls.
    Adequate accounting of the GRS will rely heavily on observer 
species composition samples. To adequately assess groundfish retention 
rates for consistency with the GRS, NMFS must have confidence that the 
data collected is representative of actual groundfish catch and that 
potential sources of bias have been minimized to the greatest extent 
practicable. Because the mixing of hauls could create unacceptable data 
errors as described above, NMFS must prohibit the mixing of hauls. 
Clearing the live tank as suggested in this comment does not resolve 
these data collection issues.
    Comment 18: In aggregate, the proposed monitoring requirements 
exceed the scope of the analysis for the GRS program and the Council's 
recommendation to the Secretary. For example, the provisions for 
prohibiting the mixing of hauls, limitation to only one flow scale and 
line, and limitation on observer workload time to nine hours out of 
twelve hours in a day exceed the recommendations identified by the 
Council. No notice of these requirements was ever given to the Council, 
and no authority was given to NMFS to add these requirements to the 
proposed rule.
    Response: With the exception of the 9-hour limitation on observer 
sampling time and GRS implementation date of 2008, NMFS disagrees that 
the proposed monitoring requirements exceeded the scope of the 
analysis. See the response to Comment 19. Most of the key monitoring 
elements included in the proposed rule and information on the costs 
associated with those monitoring elements were included in the EA/RIR/
IRFA that was available to the Council when it took final action on 
Amendment 79 and the GRS program. These elements include the 
requirements for flow scales, two observers, and that each haul be 
available for observer sampling. The public had numerous opportunities 
to comment on these monitoring elements before the Council prior to the 
Council's decision in June 2003.
    NMFS agrees that several details of the monitoring program were 
clarified during development of the proposed rule after new information 
became available on recent presorting cases, necessitating additional 
monitoring and enforcement tools for ensuring compliance with the GRS. 
These clarifications included the prohibition on mixing of hauls and 
the use of a nine hour day of sampling for each observer. The practice 
in the Alaska region is to have NMFS, rather than Council staff, 
prepare the proposed rule for Council action. NMFS provides the Council 
with the proposed rule and the Council initiates Secretarial review by 
formally transmitting the proposed rule to NMFS. On May 26, 2005, the 
Council formally transmitted the GRS program proposed rule to NMFS, 
which included all the monitoring components of the published proposed 
rule. Additionally, the Council submitted comments to the Secretary 
during the public comment period on the proposed rule, but none of the 
Council's comments objected to the monitoring requirements.
    All the monitoring requirements for the GRS program were fully 
noticed to the public in accordance with the requirements of the 
Magnuson-Stevens Act and the Administrative Procedure Act. Note that in 
response to comments received, NOAA Fisheries has modified the final 
rule to remove the nine hour time constraint on observer sampling.
    Comment 19:The Council never had an opportunity to comment on the 
specific monitoring requirements that exceeded those identified in 
their June 2003 motion.
    Response: Several of the monitoring requirements included in the 
proposed rule were not before the Council when it took its final action 
on the GRS program, as explained in greater detail in the response to 
Comment 18. However, at the June 2005 meeting, the NMFS described all 
the monitoring requirements prior to their publication in the proposed 
rule and the Council heard public testimony on the GRS program, which 
included all the proposed monitoring components. Subsequently, the 
Council clarified their intentions for the GRS program, and submitted 
comments to NMFS during the proposed rule comment period. None of the 
Council's comments recommended revising any of the monitoring 
components. Additionally, as noted in Comment 18, all the monitoring 
components were included in the proposed rule transmitted to NMFS on 
May 26, 2005.
    NMFS agrees that some regulatory provisions for this rule were not 
explicitly discussed by the Council before they adopted a 
recommendation to the Secretary. In the course of implementing a 
Council recommendation, NMFS must consider its ability to monitor 
programs such as the GRS, and promulgate enforceable regulations. The 
prohibition on the mixing of hauls, the limitations to one flow scale, 
the requirement that the conveyor line pass over a scale, and the 
limitation on observer sampling time to 9 hours a day were all included 
in the proposed rule to promote compliance with the GRS. While the 
final rule eliminates the restriction of observer sampling to nine 
hours, as explained in the response to Comment 13, the public was 
provided ample opportunity for public notice and comment on these 
regulatory clarifications in accordance with the APA.
    Comment 20: The proposed rule would establish several additional 
monitoring requirements for the non-AFA trawl C/P sector. These new 
monitoring requirements are excessive. Current monitoring standards are 
sufficient and adequately meet NMFS data needs.
    Response: The proposed rule and the supporting EA/RIR/IRFA as well 
as this final rule and EA/RIR/FRFA discuss the need for enhanced haul-
by-haul catch monitoring standards necessary to monitor and support the 
GRS program. Also, see the response to Comment 17 above. NMFS' ability 
to adequately account for groundfish catch made under the GRS program 
would be severely compromised or impossible under current regulations 
because these regulations do not provide the information needed to 
determine haul-by-haul accounting of groundfish catch.
    All regulated vessels are required to use NMFS-approved scales to 
determine the weight of total catch. This information is necessary to 
estimate total groundfish weight used in the denominator of the GRS 
calculation. All regulated vessels also must obtain sufficient observer 
coverage to ensure every haul is observed for verification that all 
fish are weighed or use an alternative processing plan approved by 
NMFS. Observer sampling of each haul is necessary to determine the 
percentage of the total catch that is comprised of groundfish. Each 
vessel will be required to provide a single location for observers to 
collect samples to reduce the potential of sample bias and enhance an 
observer's ability to obtain high quality samples. Mixing of catch from 
two or more hauls prior to sampling by an observer will be prohibited, 
because it is not possible to obtain a discrete sample if hauls are 
mixed.
    Additionally, recent enforcement actions involving the intentional 
presorting of catch to bias observed catch rates of Pacific halibut 
document the incentive for biasing observer samples to optimize 
groundfish catch

[[Page 17374]]

relative to constraining PSC or other groundfish catch. However, the 
opportunities to bias observer samples should be reduced under the GRS 
program in comparison with the status quo because of the enhanced 
monitoring provisions that are established under this rule. These 
include observer sampling space and catch access provisions that will 
allow observers to monitor all catch between a holding bin and the 
scale used to weigh total catch. NMFS has determined that the new 
monitoring requirements are necessary to adequately account for 
groundfish catch under the GRS program and are not excessive.
    Comment 21: The requirement that fishing operations must be 
conducted in such a manner that observers are available for no more 
than 9 hours out of a 12 hour shift could force a vessel to acquire 
three observers. The analysis envisioned two observers to meet this 
standard for vessels conducting fishing operations for 24 hours each 
day. The analysis did not analyze the effects of three observers.
    Response: NMFS agrees. As the commenter notes, the analysis is 
based on the premise that two observers each working a 12-hour shift 
would be available to sample all hauls retrieved by a non-AFA trawl C/P 
that conducted fishing operations for 24 hours each day. The proposed 
rule included the nine hour sampling limitation to provide observers 
with sufficient time to complete other assigned duty tasks. NMFS 
assumed that the nine hour sampling limitation would not disrupt the 
normal haul retrieval patterns of non-AFA trawl C/Ps and that two 
observers would continue to be sufficient to sample all hauls retrieved 
by a non-AFA trawl C/P that conducted fishing operations for 24 hours 
each day. However, as revealed in the comment, non-AFA trawl C/Ps 
typically retrieve hauls throughout a 12-hour period. Limiting 
observers to nine hours of sampling within each 12-hour shift would 
likely require most non-AFA trawl C/Ps to routinely carry a third 
observer or to significantly alter their operations. Because the EA/
RIR/FRFA did not analyze the effects of the 9-hour sampling limitation, 
NMFS has removed the 9-hour time limitation on sampling in the final 
rule, as noted in the response to Comment 13. Observers will continue 
to be limited to a 12-hour work day, and vessel operators must ensure 
that all hauls are available to an observer to sample. Routine fishing 
practices which do not allow for 2 observers working 12-hour shifts to 
complete all required sampling duties would not meet this standard, and 
additional observers may be required.
    Comment 22: The analysis for the proposed GRS program indicates 
that the additional monitoring requirements provide improvements to 
management precision and accuracy because NOAA Fisheries will have 
scale weight data to verify each haul's total weight. Fishery managers 
currently must rely on secondary sources such as skipper estimates or 
total weekly production figures to estimate total catch weight. Other 
potential benefits include: (a) a reduction in error in the timing of 
fishing closures for some directed groundfish species, (b) improved 
precision and accuracy associated with prohibited species catch and 
non-target species removal estimates may lead to more precise estimates 
of the residual stock, and (c) improved data for estimating sampling 
variability between observers and for improved information on non-
target species which are important components of the ecosystem.
    Response: Installation of flow scales, sample stations and 
observation of each haul will enhance status quo catch monitoring and 
accounting for non-AFA trawl C/Ps. Direct measurement of weight on a 
flow scale is likely to be more accurate than observer measurements 
based on volumetric estimates and density. Managers will use catch 
estimates based on observer species catch composition data for each 
discrete haul. The greater the number of hauls that are sampled, the 
more representative are the species specific catch rates that will be 
applied to the groundfish catch weight from a specific vessel. NMFS 
agrees that improvements to data quality could enable inseason managers 
to adjust season dates with greater confidence than without these 
monitoring tools. If data from the GRS program are more representative 
of the actual catch, the management response may reduce the chance of 
exceeding TAC amounts. While NMFS agrees that the monitoring components 
of the GRS program are likely to increase data quality and potentially 
decrease the chance of exceeding catch allocation thresholds, sampling 
methods employed under the GRS program would not allow NMFS to measure 
bias and precision error in catch data.
    Comment 23: The requirements that all catch be available for 
sampling from a single point and that an observer be able to ensure 
that no catch was removed from the point where fish exit the fish bin 
to the point where unsorted catch is collected are costly, if not 
unattainable. In many cases, these requirements would require massive 
restructuring of the factory area or would be physically impossible. 
The industry always understood that two flow scales would be allowed. 
This action will prevent vessels from having multiple lines or multiple 
scales. This will impose an unnecessary burden on those vessels with 
multiple processing lines and slow down production by creating a 
bottleneck upstream from the factory.
    Response: As described above, NMFS must be confident that a vessel 
crew's ability to intentionally bias an observer's sample is minimized. 
Requiring all catch to be available for sampling from a single point 
reduces the crew's ability to deliberately sort catch prior to observer 
sampling. For example, if multiple sampling points were allowed, crew 
could intentionally move catch away from the observer's current sample 
collection point. Under this scenario, all catch would not be available 
for sampling by an observer and the sample could be biased. 
Additionally, a line-of-sight between the observer work station and 
discharge point of the codend is a required component of this final 
rule. This requirement further reduces the potential for intentional 
presorting as observers could detect these violations between the 
discharge and sample points.
    The EA/RIR/FRFA includes an estimate of the costs associated with 
complying with this requirement as part of the cost of building a NMFS-
approved observer sampling station. Factory designers have always 
sought to minimize the amount of space between the bins and the size 
sorters because until sorting takes place, fish cannot be further 
processed and excess space, in effect, would be wasted. Because of this 
constraint, the natural area for the flow scale in almost all cases is 
very close to the bins and visibility is not a problem. NMFS' 
experience with approving sampling stations for vessels has shown that 
in some cases the observer could not see the entire flow of fish from 
the sampling location, but that modifications to allow full visibility 
tended to be inexpensive (such as installing a parabolic mirror). To 
date, only two vessels have had to make factory modifications 
specifically to comply with the same monitoring requirements 
implemented under the CDQ program. Based on agency staff experience 
with this requirement in other programs and knowledge of all the 
affected vessels, NMFS has concluded that complying with the line-of-
site regulation will likely require minimal factory alteration and 
should not be physically impossible or require massive restructuring.

[[Page 17375]]

    This comment also asserts that the rule would prevent the use of 
multiple scales or multiple lines. NMFS disagrees, as the rule will 
only require that multiple scales not be used simultaneously and that 
all unsorted catch pass by a single location where the observer 
collects his or her samples. The vessel may bifurcate those lines both 
upstream and downstream in order to increase processing capacity or 
flexibility. This requirement will only result in a production-reducing 
constraint in the event that the speed with which fish could pass over 
the scale was a limiting factor. Given that NMFS-approved flow scales 
are capable of weighing catch at rates of 60-80 metric tons per hour, 
NMFS does not believe that such a bottleneck would be created. NMFS 
also notes that all the C/Ps and motherships participating in the AFA 
pollock fishery are able to effectively pass fish across a single point 
in spite of the fact that factory throughput in these vessels is 
generally considerably greater than the throughput of any non-AFA trawl 
C/P.
    Comment 24: Smaller non-AFA trawl C/Ps should not be required to 
invest significant amounts of money into vessel capacity and factory 
upgrades when the need to make such investments may disappear when 
Amendment 80 is implemented. Amendment 80 is expected to include 
mechanisms that would allow these vessels to either comply with discard 
retention requirements through contractual means or retire from the 
fishery in an economically rational manner.
    Response: NMFS recognizes that the lengths of vessels subject to 
the GRS program vary greatly, from slightly longer to 125 ft (38.1m) 
LOA to significantly longer than 125 ft. (38.1m) LOA. However, all non-
AFA trawl C/Ps are required to comply with the GRS program regardless 
of whether they are slightly or significantly longer than 125 ft 
(38.1m) LOA because the non-AFA trawl C/P sector has consistently had 
the highest rate of groundfish discards of any groundfish sector in the 
BSAI and non-AFA trawl C/Ps account for 83 percent of the total catch 
of all non-AFA trawl catcher/processors.
    Amendment 80 currently is under consideration by the Council and 
has not yet been submitted to NMFS for review and approval. Amendment 
80 is an entirely separate action that would allocate specified 
groundfish species to the non-AFA trawl C/P sector and would provide 
the option for participants in the sector to form one or more fishing 
cooperatives.
    In the future, vessels may be able to exit the fishery with some 
form of compensation for relinquishing their history and forego initial 
or ongoing compliance costs of the GRS program if opportunities arise 
to do so under a legislated buy out program. Similarly, Amendment 80, 
if adopted by the Council and approved by NMFS, could allow License 
Limitation Program permit holders the opportunity to enter cooperative 
agreements to lease their fishing history and avoid direct compliance 
costs associated with the monitoring of cooperative allocations and the 
GRS program. These options apply equally to non-AFA trawl C/Ps that are 
slightly longer than 125 ft (38.1m) LOA and to those that are much 
longer than 125 ft (38.1m) LOA. The comment appears to assume that only 
smaller non-AFA trawl C/Ps will exit the fishery were Amendment 80 if 
approved, but it is difficult to predict which non-AFA trawl C/Ps would 
continue to operate under Amendment 80.
    Comment 25: The draft EA notes that more practicable measures exist 
for achieving bycatch reduction goals. Specifically, combining a GRS 
with Amendment 80 would achieve the same goal while offsetting the 
monitoring and enforcement costs associated with this regulation.
    Response: NMFS does not agree that the EA/RIR/IRFA for the GRS 
states that other alternatives are more practicable for achieving 
bycatch reduction goals than this GRS. On the contrary, the preferred 
alternative GRS in this final rule is identified as a practicable means 
for meeting bycatch reduction goals. The purpose of the GRS program is 
to create a standard for the retention of groundfish in the BSAI 
groundfish fishery that will reduce current levels of discards in order 
to address the problem of excessive discards of groundfish in the BSAI. 
The alternatives examined in the EA/RIR/FRFA for the GRS program 
represent a reasonable range of alternatives to the identified purpose 
and need for the action. While NMFS anticipates that the formation of 
fishery cooperatives in the non-AFA trawl C/P sector under Amendment 80 
(if approved) would decrease discard levels, there is no assurance 
under Amendment 80 that fishery cooperatives will form and, if formed, 
that discard reduction will reach the standard imposed by the GRS 
program.
    The Council could have combined the GRS program and Amendment 80 
into one action. However, for various policy reasons, the Council chose 
to separate the two actions. When the Council submitted the GRS program 
to NMFS for review and approval in accordance with section 304(b) of 
the Magnuson-Stevens Act (16 U.S.C. 1854(b)), NMFS had to determine 
whether the GRS program, as a stand alone action, was consistent with 
the Magnuson-Stevens Act and other applicable law. The provisions of 
Amendment 80 and the likelihood that they would offset costs associated 
with the GRS program were immaterial to the determination before NMFS, 
which was whether the proposed rule for the GRS program is consistent 
with the Magnuson-Stevens Act and other applicable law. NMFS initially 
determined that the proposed rule for the GRS program was consistent 
with the Magnuson-Stevens Act and other applicable law. After reviewing 
public comment received on the proposed rule, NMFS has determined that 
the GRS program continues to be consistent with the Magnuson-Stevens 
Act and other applicable law for the reasons provided in the preamble 
to this final rule.
    Comment 26: Proposed Amendment 80 could impose different, more 
stringent, monitoring standards. These could cause vessels to have to 
modify their factories again in order to fish under Amendment 80. For 
example, the draft Amendment 80 analysis indicates that NMFS may 
require more space in the observer sampling station to accommodate 
larger samples.
    Response: NMFS agrees that Amendment 80 could impose different, 
more stringent monitoring standards than those imposed in this final 
rule for the GRS program. Amendment 80, if approved, would impose 
monitoring standards on participating vessels that are appropriate for 
monitoring and accurate species specific catch accounting. Because non-
AFA trawl C/Ps that are subject to the GRS program also would be 
subject to Amendment 80 if it were approved by the Council and NMFS, 
non-AFA trawl C/Ps may have to reconfigure certain parts of their 
factories twice [dash] once to accommodate the monitoring requirements 
of the GRS program and again to accommodate the monitoring requirements 
of Amendment 80. To the extent possible, NMFS has sought to develop 
Amendment 80 monitoring standards to avoid additional costs, but in 
some cases this may not be possible. NMFS cannot state with certainty 
how the standards will differ until such time as Amendment 80 is 
approved by the Council and rulemaking implementing Amendment 80 is 
promulgated. Section 3.3 of the EA/RIR/FRFA prepared for the GRS 
program examines the cumulative effects that may occur from Amendment 
80.

[[Page 17376]]

    Comment 27: NMFS has not adequately discussed how the program will 
be enforced. Also, an observer misreporting incentive exists in part of 
the enforcement mechanism, where observers could be paid to return to 
testify on a case. Financial compensation for an observer to testify at 
some future date could compel observers to falsify records on the basis 
of potential future remuneration.
    Response: The preambles to the proposed and final rules, EA/RIR/
FRFA, and additional clarifications in response to public comment 
provide extensive discussion on how the program will be enforced and 
why different regulatory provisions, such as the requirement for 
weighing all catch on a certified scale, are required to support 
compliance monitoring, enforcement and prosecution.
    Supplemental witness fees paid to observers will not bias observer 
reporting of data. In the event that a person contests a violation of 
the GRS, NMFS must be able to assemble a sufficient number of observers 
to provide testimony and review sampling data. When prosecution of a 
violation requires the testimony of observers, NMFS possesses the 
authority to provide travel expenses and some remuneration for 
incidental costs and labor associated with that testimony. It is 
unlikely that this supplemental witness fee will approach the value of 
lost time, inconvenience or other forgone opportunities for an observer 
who has chosen to leave the observer program for some alternative 
activity or source of employment. Additionally, any observer who biases 
data is subject to agency action which could include decertification 
and criminal prosecution.
    Comment 28: This action will improve estimation of groundfish and 
prohibited species catch through better sampling and more precise 
estimation of observer total catch samples.
    Response: As noted in the response to Comment 22, NMFS agrees that 
the accuracy of total catch estimates and the distribution of catch by 
species in hauls could be improved by this action. It is possible that 
increasing the total number of samples will have some positive catch 
precision implications, but the current sampling program is 
insufficient to generate any error statistics or other statistical 
measures from catch data. Improvements in the precision of catch 
estimates are not the purpose of this action, and the monitoring 
measures were not designed to accomplish this goal. However, this 
action will clearly improve NMFS' ability to measure total catch and to 
determine the species composition of that catch.
    Comment 29: The Council's length criterion for exempting vessels 
from the GRS is arbitrary. Some vessels greater than 125 ft (38.1 m) 
LOA cannot comply with the proposed GRS while some vessels less than 
125 ft (38.1 m) LOA would be able to meet the GRS. Differences in 
vessel size, processing capability, hold capacity, horsepower, crew 
capacity, and fish tank capacity are not determined by vessel length. 
The decision to use greater than or equal to 125 ft (38.1 m) LOA as a 
measure by which vessels can comply with the GRS is not supported in 
the analysis and is arbitrary.
    Response: The length criterion for inclusion in the GRS program is 
not arbitrary or unsupported in the record. The GRS program applies to 
non-AFA trawl C/Ps that are 125 ft (38.1 m) LOA or greater. The EA/RIR/
FRFA includes data showing that 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 only 7 
percent of the retained catch. Data presented in the EA/RIR/FRFA 
demonstrate for these two vessel length categories that catch and 
retained catch percentages are relatively stable between 1999 and 2002. 
Additionally, the EA/RIR/FRFA includes information on the costs 
associated with observers and scale monitoring requirements for non-AFA 
trawl catcher/processors over and under 125 ft (38.1 m) LOA. Because 
vessels under 125 ft (38.1m) LOA have relatively smaller factory space, 
scale and sampling station requirements could reduce processing 
capacity to a greater extent relative to that of larger vessels. 
Displacing a crew member to accommodate an additional observer also 
could reduce processing capacity for smaller vessels with limited space 
for crew. 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 ft (38.1 m) LOA, these vessels are excluded 
from the GRS program.
    Vessel length is a well established criterion for determining 
application of fishery regulations. In particular, 125 ft (38.1 m) LOA 
is a common dividing line for other regulations implemented for the 
North Pacific groundfish fisheries. For example, regulations at Sec.  
679.50(c) describe vessel observer coverage requirements. Groundfish 
vessels 125 ft (38.1 m) LOA or longer are required to carry an observer 
100 percent of the time. In general, groundfish vessels less than 125 
ft (38.1 m), but greater than 60 ft (18.3 m) LOA are required to carry 
an observer 30 percent of their fishing days. Groundfish vessels less 
than 60 ft (18.3 m) LOA are exempt from observer coverage. These 
regulations have been in place since implementation of the Observer 
Program in 1990, and are based on an analysis similar to that prepared 
for the GRS program. The proposed rule for the Observer Program (54 FR 
51042, 51044; December 12, 1989) states, ``Because these large vessels 
harvest more than 50 percent of all the groundfish, requiring them to 
have higher observer coverage relative to smaller vessels and shoreside 
processing facilities is appropriate.''
    Vessel length is the most practical criterion to determine 
applicability of fisheries regulations. Determination of vessel length 
is subject to little uncertainty or measurement bias as compared with 
some of the alternative operational measures suggested in this comment. 
Vessel length is tracked and monitored by the USCG and NMFS. While 
other capacity and power measures are not without merit as criteria for 
some regulations, NMFS has determined that they do not provide the 
necessary level of precision or accuracy for applying the GRS program. 
By applying the equal to or greater than 125 ft (38.1 m) vessel length 
criterion, those vessels accounting for a significant majority of the 
total catch and discards by non-AFA trawl C/Ps will be subject to the 
GRS program. This is consistent with the Council and NMFS's intent for 
the GRS program to reduce to the maximum extent practicable the amount 
of discards by non-AFA trawl C/P vessels. Therefore, NMFS has 
determined that the record for the GRS program supports the use of the 
125 ft (38.1 m) LOA criterion.
    Comment 30: The proposed rule imposes a burden on vessels within 
the non-AFA trawl C/P sector over 125 ft (38.1 m) LOA in a manner that 
is unequal between vessels. For example, vessels that operate in mixed 
species flatfish and cod fisheries may find it necessary to operate in 
other fisheries that are further from traditional fishing areas to 
achieve the required retention rates. The relative costs of making 
changes to physical plants and ongoing operations in this sector are 
unequal (and have different effects on the efficiency of a vessel) 
between the vessels in the sector. It is more costly for some vessels 
to operate in these remote fisheries than others.
    Response: NMFS is aware that the GRS program may pose more 
operational costs on some non-AFA trawl C/Ps greater than or equal to 
125

[[Page 17377]]

ft (38.1 m) LOA than other non-AFA trawl C/Ps greater than or equal to 
125 ft (38.1 m) LOA. The analysis for this action is based on aggregate 
catch data for the entire sector as well as other data such as gross 
revenue and discards. As noted in the response to Comment 29, NMFS has 
determined that the vessel size threshold of greater than or equal to 
125 ft (38.1 m) LOA is an appropriate criterion for inclusion in the 
GRS program between non-AFA trawl C/Ps. Also, the Magnuson-Stevens Act 
does not require the imposition of uniform costs or uniform benefits on 
each vessel in a fleet.
    Comment 31: Amendment 79 is not approved at this time. It is not 
appropriate for NMFS to publish a proposed rule without FMP authority 
through an approved FMP amendment.
    Response: Amendment 79, which authorizes the establishment of GRS 
programs, was approved by NMFS on August 31, 2005. NMFS disagrees that 
it was inappropriate to publish the proposed rule for the GRS program 
prior to approving Amendment 79. Amendment 79 and the proposed rule for 
the GRS program were submitted by the Council to NMFS on May 26, 2005. 
The Magnuson-Stevens Act at section 304(b) (16 U.S.C. 1854(b)) requires 
NMFS to publish a proposed rule within 15 days of receipt if NMFS 
determines that the proposed rule is consistent with the proposed FMP 
amendment, the Magnuson-Stevens Act and other applicable law. Because 
NMFS determined that the proposed rule for the GRS program was 
consistent with proposed Amendment 79, the Magnuson-Stevens Act, and 
other applicable law, NMFS appropriately published the proposed rule 15 
days after its receipt and prior to NMFS' approval of Amendment 79, 
consistent with the requirements of the Magnuson-Stevens Act.
    Comment 32: The decision to approve, disapprove or partially 
approve Amendment 79 must be made considering the legal approvability 
of the regulations implementing it.
    Response: NMFS agrees that a decision to approve, disapprove or 
partially approve an FMP amendment must be made considering the legal 
consistency of the regulations necessary to implement the FMP 
amendment. Amendment 79 included the following statement in the 
management objectives section of the FMP: ``Continue to improve the 
retention of groundfish where practicable, through establishment of 
minimum groundfish retention standards.'' As worded, Amendment 79 
refines the existing bycatch reduction objectives of the FMP by 
explicitly recognizing GRS programs as tools to reduce bycatch. At the 
time NMFS approved Amendment 79, the agency considered the consistency 
of the amendment as well as any regulations necessary for its 
implementation. Because regulations were not immediately necessary in 
order to implement Amendment 79 given its general, discretionary 
nature, NMFS was able to approve Amendment 79 without having to also 
make a decision on the proposed GRS program for non-AFA trawl C/Ps. 
NMFS recognized that any specific GRS program developed by the Council 
and NMFS under the authority of Amendment 79 must be consistent with 
the FMP, the Magnuson-Stevens Act, and other applicable law.
    Comment 33: Amendment 79 should be approved to provide authority 
for the GRS program, but the regulations for the proposed GRS program 
should not be approved.
    Response: As explained in greater detail in the response to Comment 
32, NMFS approved Amendment 79 on August 31, 2005. After approving 
Amendment 79, NMFS considered whether the GRS program for non-AFA trawl 
C/Ps was consistent with the FMP, Magnuson-Stevens Act, and other 
applicable law. For the reasons provided throughout this final rule, 
NMFS determined that the GRS program for non-AFA trawl C/Ps was 
consistent with the FMP, the Magnuson-Stevens Act, and other applicable 
law, and has approved it.
    Comment 34: The Council clarified its intent for the GRS by 
recommending that NMFS implement the GRS program in 2007 emphasizing 
that it intended to start the GRS at a rate of 65 percent in the first 
year of the program. The Council concluded that starting the GRS in 
2007 would provide the affected fleet with a sufficient amount of time 
to make the necessary adjustments, including factory restructuring, to 
comply with the rule. The Council was concerned that inadequate time 
would be available to purchase and install the required monitoring 
equipment before the 2006 fishing season. The Council also concluded 
that the GRS should start at 65 percent because it was necessary to 
allow vessel owners to adjust fishing and business operations to 
accommodate gradually increased groundfish retention over time.
    Response: NMFS determines that implementation of the GRS program in 
2008 will provide the owners of affected non-AFA trawl C/Ps with a 
sufficient amount of time to modify their vessels as necessary to 
comply with the monitoring requirements of this rule. While the Council 
listed year 2007 as an anticipated starting date for the GRS, the time 
required to develop this final rule, and provide a sufficient 
opportunity for persons subject to the final rule to conform to its 
requirements lead NMFS to implement the GRS in 2008. Therefore, the 
proposed rule has been modified and this final rule implements the GRS 
program in 2008. NMFS also agrees with the Council's intent that the 
GRS program start at 65 percent regardless of the year in which the 
program is implemented. NMFS has determined that the owners and 
operators of some of the non-AFA trawl C/Ps regulated by this action 
will find it easier to adjust to the GRS in the first year if it is 
implemented at 65 percent as opposed to 75 percent as specified in the 
proposed rule because some of the non-AFA trawl C/P vessels continue to 
have a retained groundfish catch of less than 75 percent. Under the 
final rule, the GRS program will start at a GRS of 65 percent in 2008 
and incrementally increase each year thereafter, culminating in an 85 
percent GRS in 2011. Although the monitoring requirements must be met 
for the first year of the GRS program, the incremental increase in the 
GRS will provide owners and operators of regulated vessels with 
additional time to make operational adjustments in response to the 
required retention of additional groundfish. Because of the changes 
made to the final rule, non-AFA trawl C/Ps will have until 2011, 
instead of 2008, to respond to an 85 percent retention level.
    Comment 35: In June 2005, the Council forwarded a comment on the 
proposed rule that if adopted by NMFS, would start the GRS program in 
2007. In addition to the reasons provided by the Council for starting 
the GRS program at 65 percent in the first year of the program as 
summarized in Comment 34, the Council also commented that starting the 
GRS program later than 2006 is intended to allow the GRS to come on 
line simultaneously with or at most one year earlier than Amendment 80.
    Response: While NMFS notes that Comment 35 is part of the Council's 
rationale for proposing to start the GRS program in 2007, NMFS does not 
find Comment 35 to be an appropriate reason to start the GRS program in 
2007. NMFS has determined to start the GRS program in 2008 for the 
reasons provided in the response to Comment 34 and in the Changes to 
the final rule section of the preamble. Amendment 80 is currently under 
development by the Council. If the Council submits Amendment 80 to NMFS 
for approval, its approval is not

[[Page 17378]]

guaranteed, and if approved, its implementation date is not certain. 
Therefore, it is not possible to know at this time whether starting the 
GRS program in 2007 or even in 2008 will result in a simultaneous 
implementation with or a one year difference in implementation with 
Amendment 80.
    The GRS program is an action that is independent of and separate 
from Amendment 80. As such, the GRS program must have a reasonable 
basis for its approval that is not dependent on the approval of and a 
specific implementation date for Amendment 80. For the reasons set 
forth in this rulemaking, NMFS has determined that the GRS program has 
sufficient analysis and justification for its approval regardless of 
Amendment 80's approval or implementation date.
    Comment 36: The Council understood that industry would incur costs 
to implement and comply with the GRS and balanced them with the 
benefits it believes will arise from a reduction of discards and 
improved utilization of catch.
    Response: NMFS agrees. The record developed during Council 
consideration of the GRS program and its adoption by the Council in 
June 2003 demonstrates that the Council was fully aware that the GRS 
program would result in vessel modifications and additional operational 
costs for non-AFA trawl C/Ps. The Council was again made aware of and 
received additional public testimony on the operational effects and 
costs of the GRS, and amended the GRS at its June 2005 meeting. At that 
time, the Council recommended modification of the GRS implementation 
date and percentage, but did not act to remove or withdraw support for 
the GRS program in any manner.
    Comment 37: NMFS should adhere to the guidelines for overfishing 
established by the Pew Report and the United Nations.
    Response: The GRS program has no explicit connection with the 
process that NMFS uses for designating the status of a species or 
species complex relative to overfishing guidelines.
    Comment 38: All quotas should be reduced by 50 percent this year, 
10 percent each subsequent year, and marine sanctuaries should be 
established.
    Response: The GRS program implemented by this final rule does not 
have any relationship to the establishment of harvest specifications or 
the assignment of quotas or allocations in the North Pacific groundfish 
fisheries. Furthermore, the GRS program does not have any tangible 
connection with the establishment of marine sanctuaries.

Changes From the Proposed Rule

    In June 2003, the Council assumed that approval and implementation 
of the GRS program would occur in time for the 2005 fishing year 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. Therefore, the proposed rule prepared for this action (70 
FR 35054, June 16, 2005) proposed implementing the GRS in 2006 at the 
75 percent level, which was consistent with the schedule in the 
Council's motion, but NMFS specifically asked for public comment on 
this aspect of the proposed rule. In June 2005, the Council asked NMFS 
to start implementation of the GRS at the 65 percent level and assumed 
the start date for implementation would be in 2007. The Council 
clarified that it did not intend implementation of the GRS on a date 
certain basis. Rather, it intended a gradual increase of the GRS level, 
regardless of the year the program was implemented. The Council 
clarified that this was necessary to allow vessel owners to adjust 
fishing and business operations to accommodate gradually increased 
groundfish retention over time. The Council also was concerned that 
inadequate time would be available to purchase and install the required 
monitoring equipment before the 2006 fishing season.
    Because the Council clarified its intent to implement the GRS at 
the 65 percent level regardless of the calendar year, and public 
comment documented the extent to which some vessels may incur an 
additional burden to meet a GRS of 75 percent for the first year of the 
program, the final rule is adjusted to implement the first year of the 
GRS program at 65 percent. The EA/RIR/FRFA prepared for this action 
analyzed the effects of implementing the GRS at the 65 percent level, 
and this change is consistent with the analysis.
    Because of the timing concerns highlighted by the industry and 
Council during public comment associated with making factory 
modifications to comply with the GRS program in 2006 and because the 
GRS program must start at the beginning of a fishing year for reasons 
summarized above, the final rule is adjusted to allow time for vessels 
to make these modifications and will be effective in 2008. Public 
comment was also helpful in determining the implementation date for the 
GRS. Some fishing companies noted that factory modifications would be 
more significant for some vessels than others. The time required to 
develop architectural and engineering contracts, scope and budget for 
capital modifications and schedule one or more shipyard visits for 
significant modifications could take several months. NMFS has responded 
to these concerns by implementing the GRS in 2008. Shifting the 
imposition of monitoring costs by one additional year from 2007 to 2008 
will result in clear cost savings to the sector, by deferring present 
accounting costs by one full year. In addition to extending the time 
vessel owners and operators would have to plan and make these 
modifications, NMFS anticipates that the goals of the monitoring 
program are more likely to be achieved with this additional time by 
improving the quality of monitoring spaces, ease of observer access and 
viewing, and accuracy of catch accounting.
    Some members of industry affected by this action also expressed 
concern with observer workload restrictions. As revealed by public 
comments, non-AFA trawl C/Ps typically retrieve hauls throughout a 12-
hour period. Limiting observer to nine hours of sampling within each 
12-hour shift could require vessels to alter their operations to allow 
observers to remain within this limit. To provide non-AFA C/Ps with 
increased flexibility to maximize their operational efficiencies, the 
final rule eliminates the 9-hour sampling restriction, as noted in the 
response to Comment 13. Observers will continue to be limited to a 12-
hour work day, and vessel operators must ensure that all hauls are 
available to an observer to sample. Routine fishing practices that do 
not allow for 2 observers working 12-hour shifts to complete all 
required sampling duties would not meet this standard, and additional 
observers may be required.
    A cross reference is added to the final rule at Sec.  
679.27(b)(3)(i) to clarify that all hauls must be available to be 
observed. This is a non-substantive change intended to provide 
consistency with observer coverage requirements.
    At Sec.  679.27(j)(5), the proposed rule is clarified so that the 
owner or operator of a non-AFA trawl C/P that is subject to the GRS 
program at Sec.  679.27(j)(1) at any time during a fishing year also is 
required to comply with the GRS and all associated monitoring 
requirements if that vessel receives unsorted codends from another 
vessel at any time during a fishing year. For example, if a non-AFA 
trawl C/P vessel were to begin the fishing year by acting as a 
mothership and receive unsorted codends and then act as a catcher/
processor later in the year, that vessel would be required to comply 
with the monitoring requirements at Sec.  679.27(j)(3) for all

[[Page 17379]]

catch that was brought on board, even when the vessel was acting as a 
mothership. If the vessel failed to meet those monitoring requirements 
during the period that it acted as a mothership, the vessel would be in 
violation of the GRS program if at anytime during the fishing year it 
also acted as a catcher/processor. This revision is necessary to 
clarify which vessels are required to comply with the GRS, and the 
circumstances under which the GRS may apply to a mothership. Without 
these monitoring requirements, it would be impossible to accurately 
account for GRS fish and enforce the GRS program for any catcher/
processor that also receives unsorted codends. Total catch would not be 
required to be measured by a flow scale, but could be estimated by the 
vessel operator. Furthermore, it would be impossible to verify the 
amount of product reported on WPRs.
    For the reasons described above, regulations at Sec.  679.7(m)(6) 
were added to prohibit non-AFA trawl C/Ps from receiving deliveries of 
unsorted catch at any time during a fishing year without complying with 
the monitoring requirements at Sec.  679.27(j)(3) if the vessel is 
required to comply with Sec.  679.27(j)(1) at any time during the same 
fishing year.

Classification

    The Administrator, Alaska Region, determined that Amendment 79 to 
the FMP is necessary for the conservation and management of the BSAI 
groundish fishery and that it is consistent with the Magnuson-Stevens 
Act and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The NMFS prepared a final regulatory flexibility analysis (FRFA). 
The FRFA incorporates the IRFA, a summary of the significant issues 
raised by the public comments in response to the IRFA, NMFS responses 
to those comments, and a summary of the analyses completed to support 
the action. A summary of the FRFA and how it addresses each of the 
requirements in 5 U.S.C. 604(a)(1)-(5) follows. A copy of this FRFA is 
available from NMFS (see ADDRESSES).
    This 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 C/Ps equal to 
or greater than 125 ft (38.1 m) LOA. The percent of groundfish retained 
will be a percent calculated as a specified ratio of the round-weight 
equivalent of total retained groundfish to total groundfish catch. The 
GRS will gradually increase from 65 percent in 2007 to 85 percent in 
2010.
    The GRS program applies only to non-AFA C/Ps using trawl gear that 
are 125 ft (38.1m) LOA or greater. Sixteen head-and-gut trawl C/Ps 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 action. 
Therefore, NMFS considered these vessels to be small entities and 
prepared an IRFA/FRFA that examines the impacts of the GRS program.
    Alternative 1 described in the EA/RIR/FRFA 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 C/Ps 125 ft (38.1m) LOA or greater and 
would be 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 C/Ps, including vessels 
less than 125 ft (38.1m) 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 C/Ps 125 ft (38.1m) LOA or greater. Non-AFA C/Ps less than 125 ft 
(38.1m) LOA would be exempt from the GRS program if their weekly 
production were 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 is described above 
in the preamble to this action.
    Not withstanding the possibility that markets could develop, 
retaining additional groundfish is not expected to generate additional 
revenues immediately, 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 action will 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 will 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 will be 
required to be available for sampling by a NMFS-certified observer. 
This requirement will likely necessitate an additional observer on each 
vessel, which is estimated to cost $82,000 per vessel per year.
    This action revises recordkeeping and reporting requirements for 
vessels subject to the GRS program. Proposed revisions to regulations 
will require all vessel owners or operators of vessels subject to the 
GRS program to record in the DCPL the total catch scale weight for each 
haul. This will 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.

Need for and Objectives of the Rule

    A description of the need for and objectives of this action is 
contained in the preamble to the proposed rule published in the Federal 
Register on July 16, 2005 (69 FR 35054), and in the preamble to this 
final rule and is not repeated here.

Summary of Significant Issues Raised in Public Comment

    The public comment period for the proposed rule ended on August 1, 
2005. NMFS received 19 letters of comment on the proposed rule 
including 38 discrete comments. Four of the comments received 
specifically addressed the IRFA. These comments are summarized above in 
Comments 2, 13, 14, and 15. Seventeen of the comments focused on 
economic concerns of the proposed rule, but did not specifically 
address the IRFA. These comments are summarized above in

[[Page 17380]]

Comments 1, 3, 4, 5, 6, 9, 10, 17, 20, 21, 23, 24, 25, 26, 27, 30, and 
36. Eleven letters of comment were received from persons working for or 
associated with one or more vessels subject to these regulations. Ten 
of those letters opposed the rule, and one was in favor of the rule. 
Associated entities opposing the rule cited the lack of discussion on 
some of the proposed monitoring components, the burden to catcher 
processing operations from monitoring and operational adjustments 
required for fishing under the rule, the costs associated with 
compliance to the rule, inconsistency of criteria for a small business 
entity as applied to catcher processors in the fishery, comparatively 
small benefits to the sector, fishing industry and nation, and a 
request to complete a new IRFA as the reasons for opposing the action. 
The regulated entity supporting the rule cited the need for bycatch 
reduction in the fleet due to wasted catch of groundfish and minimal 
costs associated with the benefits of the regulation. Of the total 
number of 19 letters, 5 respondents were in favor of the action, and 13 
were not in favor of the action and one expressed no approval/
disapproval opinion. Some of the agencies in favor of the action 
included the Environmental Protection Agency and the State of Alaska.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    The GRS program will apply only to non-AFA C/Ps using trawl gear 
that are 125 ft (38.1m) LOA or greater. Sixteen vessels meet these 
criteria. Based on the best available data, it is improbable that any 
of these vessels are small entities. NMFS defines a catcher/processor 
as a small entity if it has gross earnings of less than $3.5 million in 
a year. However, NMFS does not have the level of data and sufficient 
information on the corporate organization of these companies or data on 
the gross earnings from fishing operations of these companies to make a 
statistically confident estimation of the number of small entities 
affected by this action. Therefore, an IRFA was prepared for the 
proposed rule, and a FRFA was prepared for the final rule. A detailed 
description of the entities affected by the alternatives considered is 
provided in the EA/RIR/FRFA for the final rule in Sections 3.0, 4.0 and 
5.0.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action will not change the overall reporting structure and 
recordkeeping requirements of the participants in the BSAI groundfish 
fisheries. Modifications to plants for accommodating and certifying 
scales required of non-AFA trawl C/Ps regulated by this action will 
result in reporting costs. Many of these costs are detailed in the EA/
RIR/FRFA submitted with this final rule in section 5.3.9, regarding 
impacts on regulated small entities. A detailed description of 
recordkeeping and reporting requirements are included in the draft 
support statement for the GRS proposed rule: Supporting Statement for 
Scale and Catch Weighing Requirements : June 2005 OMB Control No. 0648-
0330.
    All GRS regulated vessels are required to use NMFS-approved scales 
to determine the weight of total catch. In addition all vessels must 
obtain sufficient observer coverage to ensure each haul is observed for 
verification that all fish are weighed. Capital costs for scales on 
vessels that do not currently have them are estimated to total 
approximately $1.0 million. Approximately $0.5 million in annual 
observer costs are anticipated to support the monitoring program. 
Observer sampling stations are also required and capital costs for 
including these stations are anticipated to total approximately 
$70,000. Other reporting costs include scale tests and inspections, 
labor associated with producing scale outputs and recordkeeping for 
logging scale weights for total catch of each haul.

Steps Taken to Minimize Economic Impacts on Small Entities

    The FRFA and other sections of the EA/RIR submitted with this rule, 
considered and rejected a number of options and alternatives that were 
each likely to have a greater negative impact on regulated entities 
than the preferred alternative. Alternative 3 would have imposed a GRS 
of 85 percent for January through May and 90 percent during the 
remainder of the year. That GRS percent would have applied to all 
vessel sizes in the non-AFA trawl C/P sector, and for those equal to or 
greater than 125 ft (38.1 m) length overall (LOA). Alternative 3 would 
be applied and enforced on an individual vessel basis. A greater number 
of the non-AFA trawl C/P vessels would be required to increase 
retention of groundfish under this alternative. The preferred 
Alternative 4 also considered an option to apply the GRS to non-AFA 
trawl catcher/processor vessels under 125 ft (38.1 m) LOA. This option 
was determined to be costly for these operations under 125 ft (38.1 m) 
LOA, and was rejected because of the lack of cost data associated with 
adapting these vessels for monitoring the GRS due to limited deck space 
and processing area. Additionally, non-AFA trawl catcher/processor 
vessels under 125 ft (38.1 m) LOA accounted for only 17 percent of the 
total groundfish catch by all non-AFA catcher/processors. Also, as a 
result of public comment on a potential approach to minimizing the 
impacts of the GRS, the regulations for this rule (Alternative 4) 
provide additional relief to these entities, by both reducing and 
staggering the GRS from the proposed rule level of 75 to 65 percent and 
by starting the GRS program in 2007 rather than 2006 as proposed. The 
GRS program is staggered to further provide a gradual increase of the 
GRS up to 85 percent in 2010 as opposed to imposing it at 85 percent in 
Alternative 3. Based on public comment, the regulations regarding 
observer sampling times also were relaxed to provide the affected 
entities with additional periods in a 12 hour work day to fish. The 
proposed rule restrained each observer to a sampling work schedule of 
nine hours in a 12 hour work day. The final rule allows observers to 
sample over the full 12 hour period, reducing the need for additional 
observers, or staging trawl operations only during the 9 hour observer 
sampling period.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules.
    The preamble to this rule serves as the small entity compliance 
guide. It applies to the 16 vessels in the non-AFA trawl C/P sector 
that are equal or greater than 125 ft (38.1 m) LOA. Parent companies 
for these operations are well informed of compliance measures for the 
GRS, due to their long term participation in the non-AFA trawl C/P 
sector and involvement in the Council process leading to the GRS 
recommendation. These entities have assessed their ability to comply 
with the GRS and provided comments to NMFS on the proposed rule, and 
NMFS has incorporated many of these comments in the final rule. 
Implementing regulations at Sec. Sec.  679.2, 679.5, 679.7, 679.27 and 
679.50 detail all revisions and additions to recordkeeping, 
prohibitions, retention and utilization and observer requirements. This 
action

[[Page 17381]]

does not require additional compliance from small entities that is not 
described in the preamble. Copies of this final rule are available from 
NMFS (see ADDRESSES) and at the following website: http://www.fakr.noaa.gov.
    NMFS has determined that this alternative meets the objective of 
the recordkeeping and reporting requirements of the GRS program by 
appropriately balancing the requirements for conservation and 
management of the groundfish fisheries under the Magnuson-Stevens Act 
with the requirements to minimize bycatch under National Standard 9 and 
minimize economic burdens under both National Standard 7 (minimize 
costs and avoid unnecessary duplication) and the Paperwork Reduction 
Act (minimize the economic burden of recordkeeping and reporting 
requirements).
    This final rule includes a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) that has been approved by 
OMB under control number 0648-0330. Public reporting burden for a 
catcher/processor trawl gear daily cumulative production logbook is 
estimated to average 30 minutes per response. 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.
    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. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, 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, and no person shall be subject to 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 number.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 31, 2006.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 679 is amended to 
read as follows:

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

0
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.

0
2. In Sec.  679.2, a definition of ``Groundfish Retention Standard 
(GRS)'' is added in alphabetical order 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).
* * * * *

0
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.
* * * * *                                                   .............................................  .............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

0
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.
    (6) Receive deliveries of unsorted catch at any time during a 
fishing year without complying with Sec.  679.27(j)(3) if the vessel is 
required to comply with Sec.  679.27(j)(1) at any time during the same 
fishing year.
* * * * *

0
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 paragraph (j) of this section, except 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

[[Page 17382]]

longer, not listed in Sec.  679.4(l)(2)(i), and using trawl gear must 
comply with the GRS set forth under paragraph (j)(2)(ii) of this 
section while fishing for or processing groundfish caught from the BSAI 
from January 1 through 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 
paragraph (j)(2)(ii) of this section. 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) of this section would be calculated using the 
following equations:
[GRAPHIC] [TIFF OMITTED] TR06AP06.039

    Substituting the value for GFroundweight into the following 
equation,

GRF% = (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 
this part.
    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) of this section:

------------------------------------------------------------------------
                      GROUNDFISH RETENTION STANDARD
-------------------------------------------------------------------------
                 GRS Schedule                          Annual GRS
------------------------------------------------------------------------
2008                                            65%
------------------------------------------------------------------------
2009                                            75%
------------------------------------------------------------------------
2010                                            80%
------------------------------------------------------------------------
2011 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. Sec.  679.50(c)(6) and 679.7(m)(3) 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 paragraph (j)(3) 
of this section 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 
paragraph (j) of this section at any time during a fishing year and 
also receives deliveries of unsorted catch at any time during a fishing 
year must comply with paragraph (j)(3) of this section while processing 
deliveries of unsorted catch.

0
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 (38.1m) 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 125 ft (38.1 
m) LOA or longer 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) 
and Sec.  679.7(m)(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.

[[Page 17383]]

    (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 period.
* * * * *
[FR Doc. 06-3265 Filed 4-5-06; 8:45 am]
BILLING CODE 3510-22-S