Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Retention Standard, 17362-17383 [06-3265]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Rules and Regulations]
[Pages 17362-17383]
From the Federal Register Online via the Government Printing 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 
David--Rostker@omb.eop.gov or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jason Anderson at 
jason.anderson@noaa.gov or Jeff Hartman at jeff.hartman@noaa.gov. 
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 o