Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Amendment 18, 66122-66141 [E6-19106]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 218 (Monday, November 13, 2006)]
[Rules and Regulations]
[Pages 66122-66141]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-19106]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 060609159-6272-02; I.D. 060606A]
RIN 0648-AU12


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Amendment 18

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Amendment 18 to the 
Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 18 
responds to a court order by setting the Pacific Fishery Management 
Council's (Council's) bycatch minimization policies and requirements 
into the FMP.

DATES: Effective December 13, 2006.

ADDRESSES: Amendment 18 is available on the Council's Web site at: 
https://www.pcouncil.org/groundfish/gffmp.html.

FOR FURTHER INFORMATION CONTACT: Yvonne deReynier (Northwest Region, 
NMFS), phone: 206-526-6140; fax: 206-526-6736; and e-mail: 
yvonne.dereynier@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    The proposed and final rules for this action are accessible via the 
Internet at the Office of the Federal Register's Web site at: https://
www.gpoaccess.gov/fr/. The FEIS on bycatch mitigation is 
available on the NMFS Northwest Region Web site at: https://
www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/NEPA-
Documents/Programmatic-EIS.cfm and at the Council's Web site at https://
www.pcouncil.org.

Background

    Amendment 18 revised the FMP to set the Council's bycatch 
minimization polices and requirements into the FMP. Amendment 18 
responds to court orders in Pacific Marine Conservation Council v. 
Evans, 200 F.Supp.2d 1194 (N.D. Calif. 2002) [hereinafter PMCC v. 
Evans]. This final rule implements the following actions: require that 
groundfish fishery management measures take into account the co-
occurrence ratios of overfished species with more abundant target 
stocks; require vessels that participate in the open access groundfish 
fisheries to carry observers if directed by NMFS; authorize the use of 
depth-based closed areas as a routine management measure for protecting 
and rebuilding overfished stocks, preventing the overfishing of any 
groundfish species, minimizing the incidental harvest of any protected 
or prohibited non-groundfish species, controlling effort to extend the 
fishing season, minimizing the disruption of traditional commercial 
fishing and marketing patterns, spreading the available recreational 
catch over a large number of anglers, discouraging target fishing while 
allowing small incidental catches to be landed, and allowing small 
fisheries to operate outside the normal season; update the boundary 
definitions of the Klamath and Columbia River Salmon Conservation Zones 
and Eureka nearshore area to use latitude and longitude coordinates in 
a style similar to that of the Groundfish Conservation Areas (GCAs); 
and, allow species to be identified for sorting prior to landing if 
there is a scientific need for those species to be separately 
identified upon landing.
    A Notice of Availability for Amendment 18 was published on June 9, 
2006 (71 FR 33432). NMFS requested comments on the amendment under the 
Magnuson-Stevens Act FMP amendment review provisions for a 60-day 
comment period, ending August 8, 2006. A proposed rule was published on 
June 27, 2006 (71 FR 36506), requesting public comment through August 
8, 2006. During the Amendment 18 and proposed rule comment period, NMFS 
received two letters of comment. These letters are addressed later in 
the preamble to this final rule. The preamble to the proposed rule for 
this action provides additional background information on the fishery 
and on this final rule. Further detail on Amendment 18 also appears in 
the bycatch mitigation FEIS, referenced above under ``Electronic 
Access.'' After consideration of the public comments received on the 
amendment, NMFS approved Amendment 18 on September 6, 2006.

[[Page 66123]]

Comments and Responses

    NMFS received two letters of comment on the proposed rule to 
implement Amendment 18: one letter was jointly sent by four 
environmental advocacy organizations, and one letter was sent by the 
Washington Department of Fish and Wildlife (WDFW). These comments are 
addressed here:
    Comment 1: WDFW believes that groundfish species sorting 
requirements at Sec.  660.306 need to be expanded so that managers may 
better quantify total catch for some species that are part of the FMP, 
but which are not required to be sorted because they lack species-
specific trip limits, size limits, harvest guidelines, quotas, or 
optimum yields (OYs). Skates (Raja spp.) serve as an example of species 
for which broadening sorting requirements could greatly improve total 
catch accounting. There are several West Coast skate species and they 
are often landed with their wings removed, making these animals 
particularly difficult to identify by species when they are landed 
unsorted. Allowing NMFS to designate, upon recommendation by the 
Council, certain species as required to be sorted under a scientific 
sorting designation would allow science and management agencies to 
better assess populations of some of the less commonly caught species 
within the groundfish complex. Therefore, WDFW suggests that Federal 
regulations at Sec.  660.306(a)(7) and Sec.  660.370(h)(6) be revised 
to require that, in addition to other sorting requirements, vessels 
sort species with ``scientific sorting designation.''
    Response: NMFS agrees that WDFW's suggestion will be beneficial to 
improving total catch information on less commonly caught species. The 
suggested revision to Federal regulations supports language added to 
the FMP via Amendment 18, found at Section 6.4.1.2, on Commercial 
Fisheries total catch reporting methodology, ``Catch weight by sorted 
species category, area of catch, vessel identification number, and 
other data elements are required on fish tickets. Landings are also 
sampled in port by State personnel, who collect species composition 
data, otoliths for ageing, lengths, and other biological data. * * * 
All landings of groundfish stocks of concern (overfished stocks and 
stocks below BMSY) and target stocks and stock complexes in 
West Coast fisheries are tracked in Quota Species Monitoring reports of 
landed catch.'' NMFS anticipates that WDFW's suggestion will allow the 
Council to target particular stocks for improved species-specific data 
gathering, and to potentially address a management challenge identified 
under Section 4.3.3 of the FMP, the inability to conduct species-
specific stock assessments on fish stocks without species-specific 
landings data. Therefore, this final rule includes WDFW's suggested 
modification to Federal framework regulations at Sec.  660.306(a)(7) 
and Sec.  660.370(h)(6). No species would be added through this action 
to the lists at Sec.  660.370(h)(6)(i)-(ii) that designate the species 
and species groups currently required to be sorted. Species required to 
be sorted via a scientific sorting designation would be considered 
through the Council process and through a future Federal rulemaking.
    Comment 2: The commenting organizations (Natural Resources Defense 
Council, Pacific Marine Conservation Council, Oceana, and The Ocean 
Conservancy, hereinafter ``The Four Organizations'') generally agree 
with the Council's three-part bycatch minimization strategy of: 
Improving data collection and analysis; improving modeling to better 
correlate bycatch rates with time, place, and gear type; and developing 
management measures that minimize bycatch and bycatch mortality. 
However, for reasons explained in subsequent comments, below, they do 
not believe that Amendment 18 satisfies the requirements of the 
Magnuson-Stevens Act and other applicable laws. Pursuant to 16 U.S.C. 
1854(a)(3), they call on NMFS to disapprove portions of Amendment 18 on 
the following grounds: (1) The failure to adopt all practicable bycatch 
minimization measures; (2) the failure to articulate why certain 
measures adopted as part of the Council's preferred alternative have 
been deemed impracticable and thus dismissed from implementation at 
this time; (3) the failure to provide objectives and targets for 
implementing currently impracticable measures, or to include 
performance standards and measurable criteria for determining progress 
towards reducing bycatch; (4) an inadequate standardized total catch 
reporting (and observer) program; and (5) other reasons explained 
below.
    Response: The Magnuson-Stevens Act at 16 U.S.C. 1854(a)(3) requires 
that ``The Secretary [of Commerce] shall approve, disapprove, or 
partially approve a plan or amendment within 30 days of the end of the 
comment period [on the FMP or FMP amendment] by written notice to the 
Council.'' NMFS sent written notice to the Council on September 6, 2006 
that the agency had fully approved Amendment 18 to the FMP, prior to 
the Magnuson-Stevens Act's 30-day deadline from the end of the comment 
period. NMFS approved Amendment 18, after taking into account all 
comments received, because it revises the FMP to meet the requirements 
of the Magnuson-Stevens Act to minimize bycatch to the extent 
practicable, and to provide a standardized bycatch reporting 
methodology. As discussed in the proposed rule for this action, 
Amendment 18 significantly revised Chapter 6 of the FMP, ``Management 
Measures'' to address the bycatch monitoring and minimization 
requirements of the Magnuson-Stevens Act. With Amendment 18's 
revisions, the FMP sets a high priority on bycatch minimization and 
requires the use of practicable bycatch minimization measures, 
including: A total catch reporting and compliance program (Section 
6.4); bycatch mitigation measures to be implemented if practicable, 
such as full retention programs, sector-specific and vessel-specific 
total catch limit programs, and catch allocation to or gear flexibility 
for gear types with lower bycatch rates (Section 6.5); gear definitions 
and restrictions (Section 6.6); catch restrictions such as quotas, size 
limits, trip limits, and bag limits (Section 6.7); time/area closures 
for bycatch mitigation and habitat protection (Section 6.8); capacity 
control measures such as permits and licenses (Section 6.9); and 
enforcement and safety standards (Section 6.10). The FMP at 6.5.1 
states that ``The Council has all of the management measures detailed 
in Sections 6.5-6.10 at its disposal to manage directed catch and 
reduce bycatch of groundfish species in the groundfish fisheries. 
Because of the interaction among the various species and the regular 
incorporation of new information into the management system, the 
details of the specific measures will change over the years, or within 
years, based on the best available science. Management measures will be 
designed taking into account the co-occurrence ratios of target stocks 
with overfished stocks. To protect overfished species and minimize 
bycatch through reducing incidental catch of those species, the Council 
will particularly use, but is not limited to: Catch restrictions 
detailed in Section 6.7 to constrain the catch of more abundant stocks 
that commingle with overfished species, in times and areas where higher 
abundance of overfished species are expected to occur; time/area 
closures detailed in Section 6.8 and designed to prevent vessels from 
operating during times when or in areas where overfished species are 
most vulnerable to a

[[Page 66124]]

particular gear type or fishery; and gear restrictions described in 
Section 6.6, where that gear restriction has been shown to be 
practicable in reducing overfished species incidental catch rates.'' 
The groundfish FMP addresses over 90 species; its management area spans 
the length of the U.S. West Coast; and its fisheries affecting 
groundfish range from treaty tribal ceremonial fisheries, to commercial 
fisheries with international markets varying from elite delicacies to 
mass-market surimi, to family weekend sport fishing trips. The diverse 
array of management measures required in the FMP for bycatch mitigation 
reflects the Council's philosophy that there is not one single solution 
for minimizing bycatch in such a diverse set of fisheries, and that 
addressing bycatch is an ongoing process.
    NMFS notes that although The Four Organizations requested partial 
disapproval of Amendment 18, their comments did not specify which 
sections of Amendment 18 they wished NMFS to disapprove. The Four 
Organizations also state that ``NMFS must reject the portions of the 
proposed rule implementing Amendment 18 that fail to comply with the 
bycatch requirements of the Magnuson-Stevens Act, and the reasoned 
decision-making standard of the Administrative Procedures Act (APA.)'' 
The Four Organizations elaborated on each of the five points on which 
they based their request that NMFS disapprove portions of Amendment 18. 
NMFS has approved all of Amendment 18 and its implementing regulations 
because they are consistent with the Magnuson-Stevens Act and other 
applicable laws. NMFS responds below to both the general and detailed 
comments of The Four Organizations, which they had summarized as stated 
in Comment 2 as the introduction to their letter.
    Comment 3: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. The Magnuson-Stevens Act 
requires that NMFS implement all ``practicable'' bycatch minimization 
measures (16 U.S.C. 1853(a)(11).) Although NMFS has some discretion in 
determining which measures are practicable, mere ``[i]nconvenience is 
not an excuse'' for finding a particular measure impracticable (63 FR 
24212 at 24224, May 1, 1998--Preamble to National Standard Guidelines.) 
The only bycatch minimization measures required by Amendment 18--(1) 
Gear restrictions found in FMP Section 6.6; (2) catch restrictions 
found in FMP Section 6.7; and (3) time-area closures contained in FMP 
Section 6.8--have already been part of the status quo management of the 
fishery for several years. All other measures remain discretionary or 
are deemed not yet practicable. Thus, the only measures that the 
Council considers to be practicable in 2006 are those that have 
comprised the status quo since prior to the decision in PMCC v. Evans.
    Response: As discussed in the preamble to the proposed rule for 
this action, PMCC v. Evans addressed Amendment 13, which NMFS approved 
on December 31, 2001. The Four Organizations are incorrect in asserting 
that the Council only considers measures implemented in 2001 and 
earlier to be practicable in 2006. NMFS provided a list of bycatch 
management measures required by the FMP, via Amendment 18, in the 
response to Comment 2, above. Since 2001, and in response to the 
Court's decision in 2002 on Amendment 13, NMFS and the Council have 
evaluated and implemented numerous new bycatch minimization measures 
through the FMP's framework authority. The following list of measures 
implemented since 2001 does not include either the Amendment 18 
regulations or those additional bycatch minimization measures that NMFS 
has proposed to be implemented for the 2007-2008 groundfish fisheries 
via the groundfish specifications and management measures process (71 
FR 57764, September 29, 2006):

Standardized Total Catch Reporting Methodologies

     Requirement for participants in the West Coast groundfish 
fisheries to carry one or more Federal observers onboard their vessels. 
Observer program regulations implemented May 24, 2001 (66 FR 20609, 
April 24, 2001).
     NMFS's West Coast Groundfish Observer Program (WCGOP) 
begins placing observers on vessels that participate in the groundfish 
fisheries in Federal waters (August 2001).
     NMFS first uses a bycatch model, populated by data from 
historical experiments, to set groundfish trip limits that vary by time 
of year and depth, in accordance with co-occurrence ratios in the 
bycatch model (67 FR 1555, January 11, 2002).
     NMFS completes analysis of first year's worth of data from 
WCGOP in January 2003 (https://www.nwfsc.noaa.gov/research/divisions/
fram/observer/datareport/trawl/datareportjan2003.cfm)
     NMFS approves Amendment 16-1 to the FMP on November 13, 
2003. In addition to setting a framework for incorporating overfished 
species rebuilding plans into the FMP, Amendment 16-1 revises the FMP 
to make a groundfish observer program a mandatory tool in fishery 
management (69 FR 8861, February 26, 2004).
     NMFS reconstructs groundfish fishery bycatch model and 
populates it with WCGOP data to model species co-occurrence ratios, 
plus trip limit and depth-based management regimes for the 2004 fishing 
year, effective January 1, 2004 (69 FR 1380, January 8, 2004).
     Requirement for at-sea processors and catcher-processors 
to carry one or more Federal observers onboard their vessels 
implemented July 7, 2004. These vessels had previously been carrying 
observers voluntarily for their participation in the at-sea whiting 
fishery, but NMFS viewed mandatory coverage as needed in order to 
ensure observer data integrity (69 FR 31751, June 7, 2004).

Fleet-Size/Effort Reduction (With Direct or Indirect Bycatch 
Minimization Effects)

     Restriction on the frequency of limited entry permit 
transfers in order to restrict the number of vessels that may use a 
permit within a calendar year implemented August 1, 2001 (66 FR 40918, 
August 6, 2001).
     Amendment 14 to the FMP, program to consolidate limited 
entry sablefish fleet by allowing vessels to stack up to three permits 
on the same vessel, implemented August 2, 2001 (66 FR 41152, August 7, 
2001). Between 2001 and the present, fleet size reduced by 
approximately 50 percent.
     Limited entry trawl permit and vessel buyback program; 
fleet size reduced by 34 percent between July and December 2003 (68 FR 
42613, July 18, 2003).
     The Council announces its intent to consider implementing 
an individual quota program for the limited entry trawl fishery, 
setting a control date for considerations of qualifying catch (69 FR 
1563, January 9, 2004).
     The Council announces its intent to consider a license 
limitation program for the open access fishery, setting a control date 
for considerations of qualifying catch (Federal Register publication 
anticipated by November 15, 2006).

Marine Areas Closed to Fishing

     Eastern and Western Cowcod Conservation Areas implemented 
in Southern California Bight, January 5, 2001 (66 FR 2338, January 11, 
2001).
     Darkblotched Rockfish Conservation Area (RCA) implemented 
for trawlers operating north of Cape Mendocino, CA for the months of

[[Page 66125]]

September-December 2002 (67 FR 57973, September 13, 2002).
     Darkblotched RCA replaced with coastwide (U.S. border with 
Canada to U.S. border with Mexico) RCAs for commercial fisheries, 
primarily closing fishing on the continental shelf (68 FR 908, January 
7, 2003, and 68 FR 11182, March 7, 2003).
     Yelloweye Rockfish Conservation Area implemented off 
Washington coast (68 FR 908, January 7, 2003, and 68 FR 11182, March 7, 
2003).
     Vessel monitoring system requirements for limited entry 
fleet implemented January 1, 2004 (68 FR 62374, November 4, 2003).
     Recreational fisheries first subject to RCAs and depth-
based management (69 FR 1322, January 8, 2004, and 69 FR 11064, March 
9, 2004).
     NMFS establishes for the 2005 Pacific whiting fishery, via 
emergency rule, the Ocean Salmon Conservation Zone, closing the whiting 
fishery shoreward of the 100-fm depth contour (70 FR 51682, August 31, 
2005).
     NMFS implements 51 new closed areas within the West Coast 
Exclusive Economic Zone for the protection of groundfish Essential Fish 
Habitat (71 FR 27408, May 11, 2006.)

Gear Restrictions or Incentives

     Differential trip limits are introduced for vessels using 
small footrope gear, intended to discourage fishing in areas where 
nearshore and shelf rockfish occur, January 5, 2001 (66 FR 2338, 
January 11, 2001.)
     Selective flatfish trawl gear required for trawl vessels 
operating shoreward of the RCAs and north of Cape Mendocino, CA, 
effective January 1, 2005 (69 FR 77012, December 23, 2004.)
    Comment 4: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. According to the bycatch 
mitigation EIS, the preferred alternative that Amendment 18 purports to 
implement would: ``primarily use sector allocations and reward those 
sectors with the best bycatch minimization performance. It would 
encourage individual vessels to carry observers at the vessel's expense 
and provide larger trip limits for those vessels, in combination with 
catch limits for overfished species. Those vessels that participate 
would be exempted from the sectors and not be closed if a sector were 
closed.''
    Response: The Four Organizations have quoted a discussion of a 
portion of the preferred alternative from the EIS's Executive Summary, 
not the preferred alternative itself, which the Council developed to 
incorporate elements from several of the EIS's alternatives. NMFS 
addresses sector bycatch caps in its responses to Comments 5 and 6. 
Here, NMFS provides the text of the preferred alternative, so that 
readers may be clear as to the precise wording:
    ``Create a new Alternative 7 that includes elements of Alternatives 
1, 4, and 5. Elements from Alternative 1 that would be included in 
Alternative 7 would be all current programs for bycatch minimization 
and management, including but not limited to: setting optimum yield 
specifications, gear restrictions, area closures, variable trip and bag 
limits, season closures, establishing landings limits for target 
species based on co-occurrence ratios with overfished stocks, etc. The 
FMP would be amended to more fully describe our standardized reporting 
methodology program and to require the use of bycatch management 
measures indicated under Alternative 1 for the protection of overfished 
and depleted groundfish stocks and to reduce bycatch and bycatch 
mortality to the extent practicable. These would be used until replaced 
by better tools as they are developed.
    Elements from Alternative 4 that would be included in Alternative 7 
would be the development and adoption of sector-specific caps for 
overfished and depleted groundfish species where practicable. We 
anticipate phasing in sector bycatch caps that would include: 
Monitoring standards, full retention programs, and individual vessel 
incentives for exemption from caps.
    Elements of Alternative 5 that would be included in Alternative 7 
would be the support of future use of Individual Fishing Quota programs 
for appropriate sectors of the fishery. The FMP would incorporate the 
Strategic Plan's goal of reducing overcapacity in all commercial 
fisheries. Additionally, baseline accounting of bycatch by sector shall 
be established for the purpose of establishing future bycatch program 
goals.''
    Comment 5: The Four Organizations believe that Amendment 18 fails 
to adopt all practicable management measures. They believe that NMFS 
must implement hard bycatch caps for all sectors targeting Pacific 
groundfish. Continued delay in setting hard caps and other important 
bycatch reduction measures is irresponsible, because it promotes 
overfishing and fails to promote a more efficient and thus more 
profitable fishery. Hard caps, along with rapid inseason management 
responses and robust monitoring, are necessary to prevent exceeding the 
OY of Pacific groundfish. Absent these measures, they believe that the 
fisheries risk exceeding the Acceptable Biological Catch (ABC) and/or 
OY on a regular basis, as they assert occurred with lingcod, Dover 
sole, canary rockfish, bocaccio, shortspine thornyheads, and black 
rockfish in 2003 and with darkblotched rockfish and canary rockfish in 
2004. Moreover, from an ecosystem-based perspective, The Four 
Organizations believe that NMFS must improve the counting and control 
of bycatch of all marine life since fishing affects not only targeted 
and overfished species, but also marine ecosystems more broadly.
    Response: NMFS has determined, as explained below, that ``hard'' 
bycatch caps are not practicable at this time. The Four Organizations 
are incorrect in asserting that hard bycatch caps are necessary to 
prevent overfishing. While Amendment 18 endorses the use of sector 
bycatch caps, where practicable, hard bycatch caps are not a 
prerequisite for preventing overfishing, nor are bycatch caps the sole 
management measure available to prevent overfishing.
    Amendment 18 discusses sector-specific total catch limit programs 
in Section 6.5.3.2 as follows: ``A sector-specific total catch limit 
program is one in which a fishery sector would have access to a pre-
determined (probably through the harvest specifications and management 
measure process, Section 6.2, C) amount of a groundfish FMU species, 
stock, or stock complex that would be allowed to be caught by vessels 
in that sector. Once a total catch limit is attained, all vessels in 
the sector would have to cease fishing until the end of the limit 
period, unless the total catch limit is increased by the transfer of an 
additional limit amount. A sector-specific total catch limit program 
could be based on either: (1) Monitoring of landed catch and inseason 
modeling of total catch based on past landed catch and bycatch rates, 
or (2) monitoring of total catch and real-time delivery of total catch 
data. If a sector-specific total catch limit program is based on 
inseason monitoring of landed catch, a sector would close when inseason 
total catch modeling estimated that the sector had achieved an FMU 
[Fishery Management Unit] species, stock, or stock complex total catch 
limit. If a sector-specific total catch limit program is based on 
inseason monitoring of total catch, a sector would close when inseason 
total catch monitoring estimated that the sector had achieved an FMU 
species, stock, or stock complex total catch limit.''
    Currently, before the start of a two-year management cycle, the 
Council and NMFS use projection models incorporating past WCGOP data to 
set

[[Page 66126]]

fishery management measures so that they best reflect the known catch 
ratios between target and rebuilding species. During each two-year 
management cycle, new WCGOP data is incorporated into the model and 
total catch is estimated so that management measures may be revised 
inseason to keep the fishery within OYs. Following each fishing year, 
WCGOP data for that year are used for post-season total catch 
evaluations, and are then used in setting or revising management 
measures for subsequent fishing years. Taking these three evaluation 
and implementation steps--pre-season, inseason, and post-season--
ensures that NMFS and the Council are using the best available 
scientific information to minimize bycatch to keep total catch within 
OYs, and to ensure that management is constantly improved through the 
use of updated information. The OYs of non-target species serve as 
total catch limits for those species, although most species are not 
allocated by sector. If a species is not allocated by sector, a higher-
than-predicted catch in one sector may be accounted for by constraining 
catch in another sector with lower-than-predicted catch for that 
species.
    For example, in summer 2006, the Council used an inseason bycatch 
limit to ensure that the summer fisheries' incidental catch of canary 
rockfish remained low enough so that autumn and winter fisheries with 
incidental rockfish catch would not have to be closed to keep the catch 
of canary rockfish within its OY, recommending that: ``If the catch of 
canary in the LE bottom trawl sector is projected to reach 7.75 mt of 
the end of either July or August, NMFS will move the shoreward boundary 
of the RCA in to the shore north of 40[deg] 10[min] N. lat. at the end 
of that month. The Groundfish Management Team will reevaluate 
management measures relative to canary rockfish at the Council's 
September meeting.'' That Council recommendation illustrates the type 
of bycatch limit that is both possible and effective in groundfish 
fishery management, a limit that relies on projections from data 
received inseason, rather than on real-time estimates of the exact 
amount of catch being taken at a given time. Because the current 
management system is more flexible than a hard bycatch cap system, it 
allows overages discovered inseason for one portion of the fishery, or 
with research catch, to be accommodated with reductions in available 
bycatch amounts in other portions of the fishery.
    Regarding whether overfishing occurred on darkblotched and canary 
rockfish in 2004, NMFS has recent revised estimates that show 
overfishing did not occur. Under the FMP, ABCs for all species are set 
at the FMSY level or its proxy the level that, for a 
particular year, is intended to produce maximum sustainable yield for 
that species on a continuing basis. OYs for most groundfish species are 
set below their ABCs. Overfishing occurs when the total catch of a 
species exceeds that species' ABC. NMFS completed its post-season 
evaluation of the 2004 fisheries in early 2006. In an analysis by NMFS 
Northwest Fisheries Science Center dated May 18, 2006, NMFS estimated 
that overfishing had occurred on darkblotched rockfish in 2004. 
Subsequently, NMFS determined that some double-counting had occurred in 
the summarization of landed catches in the May 18, 2006, analysis. A 
revised analysis of total fishing mortality, or total catch, was 
published on the Northwest Fisheries Science Center Web site on 
September 29, 2006. [https://www.nwfsc.noaa.gov/
research/divisions/fram/observer/datareport/docs/revised_total_fg_
catch_estimation2004.pdf] Based on the September 29, 2006 
analysis, NMFS estimates that no species were subject to overfishing 
during the 2004 fishing year. The total catch of darkblotched rockfish, 
which was previously estimated to have exceeded the 240 mt ABC by 1.6 
mt, is now estimated to have been 9.1 mt below the ABC. The September 
29, 2006, analysis estimates that the 2004 total catch of canary 
rockfish exceeded the 47.3 mt OY by 0.8 mt. This does not represent 
overfishing because the total catch was below the ABC of 243 mt. In no 
other instance did the estimated 2004 total catch of a species exceed 
that species ABC.
    As reported in Table 4-2 in the final EIS for the 2005-2006 
groundfish specifications and management measures, estimated 2003 
lingcod total catch exceeded the lingcod ABC of 841 mt by 525.6 mt. The 
lingcod stock, which had previously been listed as overfished, 
completed its rebuilding ahead of its 2009 anticipated rebuilt date and 
was announced as rebuilt in 2005. The 2003 shortspine thornyhead 
estimated total catch exceeded its ABC of 1,004 mt by 216.2 mt. These 
two species were subject to overfishing, but were protected from 
overfishing in subsequent years both by a more conservative management 
regime and by a more consistent total catch calculation methodology 
between the pre-season period and the inseason management period, as 
described below. Dover sole, canary rockfish and bocaccio estimated 
total catch levels exceeded their OYs: Dover sole estimated total catch 
was 8,342.2 mt, between its 7,440 mt OY and its 8,510 ABC; canary 
rockfish estimated total catch was 46.8 mt, between its 44 mt OY and 
its 272 mt ABC; and bocaccio estimated total catch was 29.1 mt, between 
its 20 mt OY and its 198 mt ABC. Bycatch rate and total catch 
estimation was particularly challenging in 2003, because NMFS had 
modeled bycatch rates prior to the fishing year based on pre-WCGOP 
data, then revised its bycatch rate estimates inseason based on data 
from WCGOP's first year, which became available for management use for 
the first time in January 2003. Post-season total catch estimates also 
used WCGOP data to assess total catch. The number of species with 
catches in excess of their OYs in 2003 is an indicator of the challenge 
of managing a fishery to use best and most recently available science, 
when the new scientific data in question represents a significant shift 
in scientific method. However, when the newly available science 
revealed that the fishery had or was projected to exceed its 2003 OY 
level, NMFS and the Council responded quickly with inseason actions to 
constrain the fisheries. The effects of newly available inseason 
observer data have diminished over time as more years of observer data 
are added to the management process, since those additional years of 
data provide NMFS with a more complete picture of how fishing vessel 
behavior and groundfish stock migrations change during the calendar 
year. The effects of all harvest levels, whether under or over OYs, are 
accounted for in subsequent stock assessments.
    Finally, The Four Organizations state that NMFS must improve the 
counting and control of bycatch of all marine life, because they 
believe that fishing affects not only targeted and overfished species, 
but also marine ecosystems more broadly. NMFS agrees that it is 
important to assess and minimize the bycatch of marine species other 
than those that are either targeted or overfished. Many of the measures 
currently in place reduce bycatch of all species; for example, the gear 
restrictions described in the response to comment 6. See also the 
response to comment 14. Because of the Magnuson-Stevens Act's mandate 
to rebuild overfished species, and because of the unusually long lives 
and low productivity levels of rockfish managed under rebuilding plans, 
NMFS places its highest bycatch minimization priority on constraining 
incidental catch of overfished species. NMFS most recently described 
its approach to overfished species rebuilding in the preamble to

[[Page 66127]]

the proposed rule to implement Amendment 16-4 to the FMP and the 2007-
2008 groundfish specifications and management measures (71 FR 57764, 
September 29, 2006.) A more detailed analysis of this management 
approach is also available in the Final EIS for that action, available 
online from the Council at: https://www.pcouncil.org/nepa/
nepatrack.html.
    Comment 6: The Four Organizations believe that the proposed rule 
fails to provide a rational basis for dismissing measures as 
impracticable. Neither the proposed rule nor Amendment 18 explains 
sufficiently why other measures that the Council analyzed but did not 
adopt, such as hard sector caps, are not currently practicable. NMFS 
has dismissed certain measures by simply labeling them impracticable, 
without fully considering the practicability of achieving those 
measures and without explaining why they are impracticable. In 
Amendment 13, NMFS dismissed as ``impracticable without an observer 
program'' two methods of reducing bycatch: (1) ``the use of incentives 
for vessels with lower bycatch rates, such as allowing higher landing 
limits (and thus greater fishing profits) for fishing vessels that fish 
selectively and thus have relatively low discard rates;'' and (2) ``the 
use of discard caps to manage the fishery'' (PMCC v. Evans). The agency 
argued that ``both alternatives are deemed impracticable without a full 
observer program, since both would require individual vessel 
monitoring'' (PMCC v. Evans). The agency never explained why full 
observer coverage was impracticable; it just concluded that it was so.
    Several bycatch minimization programs that were chosen as part of 
the agency's preferred alternative have been dismissed as impracticable 
at the present time, including: full retention programs, sector-
specific total catch limits, vessel-specific total catch limits, and 
providing increased catch allocations to or gear flexibility for gear 
types with lower bycatch rates. NMFS states that the reasons for this 
are that ``[s]ector specific limits are not practicable until the 
shore-based retention and monitoring program is more fully developed'' 
and vessel-based limits ``would be dependent upon a more intense level 
of monitoring than is practicable under the current management regime * 
* *.'' (71 FR 36506 at 36510, June 27, 2006.) This rationale is wholly 
insufficient to satisfy the Administrative Procedures Act's (APA's) 
requirement for reasoned decision-making, just as the court in PMCC v. 
Evans found inadequate NMFS's explanation in Amendment 13 that ``the 
type of observer program that would be needed to implement a vessel 
incentive program is not practicable.'' (66 FR 29729, at 29731 (June 1, 
2001)). In PMCC v. Evans, the Court found that NMFS had engaged in 
``unreasoned decision-making'' because it ``did not fully consider the 
practicability of the more comprehensive observer program necessary to 
administer vessel incentives or discard caps in light of the factors 
set forth in 50 CFR 600.350(d)(3)(i).'' The Council's ``Preliminary 
Discussion Draft Practicability Analysis for Amendment 18'' does not 
suffice. It was not included in the analysis of either the proposed 
rule or Amendment 18 and, even if it had been, the draft is confusing 
and incomplete. For example, the analysis only considers the socio-
economic obstacles or costs of individual fishing quotas, which are but 
one of several measures from the preferred alternative in the PEIS that 
are dismissed as impracticable in the proposed rule. Other measures, 
such as hard sector caps and the use of performance standards, are not 
similarly evaluated.
    Response: PMCC v. Evans addressed Amendment 13, which as mentioned 
above, NMFS approved on December 21, 2001. This final rule implements 
Amendment 18, which NMFS approved on September 6, 2006. The Four 
Organizations have quoted the agency's record for Amendment 13. NMFS 
analyses for Amendment 18 are separate from its analyses for Amendment 
13.
    In its National Standard 9, the Magnuson-Stevens Act requires 
bycatch to be minimized to the extent practicable. The issue of which 
management measures are and are not practicable at this time or into 
the future is central to Amendment 18, its program for bycatch 
minimization into the future, and to Federal regulations as amended 
through this final rule. The bycatch mitigation EIS, completed in 
September 2004, discussed the practicability of each of the 
alternatives when weighed against each other.
    NMFS and the Council dealt further with practicability through the 
development of Amendment 18, which recommends different bycatch 
minimization measures in different fisheries and sectors, as 
practicable. The Council finalized Amendment 18 at its November 2005 
meeting. For that meeting, NMFS provided the Council with a draft 
practicability analysis that evaluated the practicability of Amendment 
18 within a framework of the Federal guidelines on National Standard 9 
at Sec.  660.350(d)(3). Those guidelines provide factors that should be 
considered when determining whether a conservation and management 
measure minimizes bycatch or bycatch mortality to the extent 
practicable. It became clear from Council discussions, however, that 
the Council and the public were more focused on evaluating the 
practicability of particular management tools, such as fleet capacity 
reduction or sector bycatch caps. Therefore, NMFS revised its 
practicability analysis to evaluate major bycatch accounting and 
minimization tools, in order to better inform the agency's decision on 
Amendment 18 under the Magnuson-Stevens Act and for the Record of 
Decision on the EIS. The final practicability analysis is available 
from NMFS's Northwest Region (see ADDRESSES) and the portions of that 
document that addressed vessel incentives, sector bycatch caps, full 
retention programs, and gear restrictions and catch incentives for 
lower bycatch gear are provided here, since The Four Organizations 
explicitly mentioned those four potential management tools. NMFS 
addressed some practicability issues associated with sector bycatch 
caps in its response to Comment 5; that discussion is supplemented 
here.
    The Magnuson-Stevens Act provides for a deliberative fishery 
management council process, followed by a Federal rulemaking process, 
both with multiple opportunities for public review and comment on 
fishery management concepts as they are developed in the Council and on 
the Federal regulations that implement Council recommendations. Other 
laws, such as NEPA and the Regulatory Flexibility Act (RFA,) require 
that NMFS and the Council analyze the potential effects of fishery 
management actions on the physical, biological, and socio-economic 
environment, and particularly on small business entities within the 
socio-economic environment. In completing the analytical documents 
needed to assess the Council's recommendation on a preferred 
alternative for the bycatch mitigation EIS and on Amendment 18 
language, NMFS evaluated the meaning of the requirement to minimize 
bycatch ``to the extent practicable'' in light of the current state of 
the groundfish fishery. The evaluative processes required by the 
Magnuson-Stevens Act, NEPA, RFA, and other applicable law, provide the 
framework for the agency's reasoned decision-making on both the EIS's 
preferred alternative and approval of Amendment 18.
    The Magnuson-Stevens Act does not define what is meant by ``to the 
extent practicable'' when referring to the requirement to minimize 
bycatch. For the purposes of this discussion, NMFS

[[Page 66128]]

defines practicable for bycatch minimization measures to mean a measure 
that is ``reasonable and capable of being done in light of available 
technology and economic considerations.'' In other words, it may be 
possible to imagine a particular management tool, or to have seen it 
used in other fisheries, without that management tool being practicable 
for the West Coast groundfish fishery in particular. This definition is 
consistent with standard dictionaries, and with the intent of Congress, 
as expressed in the Congressional Record on the Sustainable Fisheries 
Act, ``The use of the term `to the extent practicable' was chosen 
deliberately by both the Senate and the House. Both bodies recognize 
that bycatch can occur in any fishery, and that complete avoidance of 
mortality is impossible. Councils should make reasonable efforts in 
their management plans to prevent bycatch and minimize its mortality. 
However, it is not the intent of the Congress that the councils ban a 
type of fishing gear or a type of fishing in order to comply with this 
standard. `Practicable' requires an analysis of the cost of imposing a 
management action; the Congress does not intend that this provision 
will be used to allocate among fishing gear groups, nor to impose costs 
on fishermen and processors that cannot be reasonably met.'' (104 Cong. 
Rec., H11437 (1996).) The agency's definition of the term practicable 
has also been tested in court and affirmed for bycatch minimization and 
essential fish habitat (EFH) protection for Federal fishery management 
off New England (Oceana v. Evans, No. 04-0811 (ESH) (Mar. 9, 2005.)
    The Council addressed the question of practicability when making 
its final decision on Amendment 18. At its November 2005 meeting, the 
Council finalized FMP amendatory language for Amendment 18 and reviewed 
a draft work plan for future bycatch minimization measures intended to 
follow on Amendment 18. Council members particularly addressed sector 
bycatch caps in discussing potential future management measures, saying 
that, collectively, NMFS, the states, and the industry do not have the 
``resources, money, or infrastructure to manage by sector caps.'' 
Council members expressed an interest in looking at sector bycatch caps 
for future management, but viewed them as impracticable to implement 
right now. As explained in the proposed rule for this action, the 
Council wished to build a management infrastructure for implementing 
sector bycatch caps where practicable in the future, but also 
concentrate right now on bycatch minimizing management measures that 
are more practicable in the near term. In particular, the Council cited 
two activities that could be done in the near term to minimize bycatch 
using existing personnel, funds, and management infrastructure: 
requiring permits in the open access fishery and evaluating the process 
by which observer and landings data are collected and analyzed for use 
in the management process. NMFS and the Council have followed up with 
both of these issues and NMFS anticipates shortly publishing an advance 
notice of proposed rulemaking on permitting the open access fishery.
    NMFS has also fully considered the practicability of a more 
comprehensive observer program throughout the process of developing 
Amendment 18 and concurrent regulatory programs. In addition to the 
bycatch mitigation EIS, NMFS has evaluated observer coverage in two 
Environmental Assessment/Regulatory Impact Review/Initial Regulatory 
Flexibility Analyses (EA/RIR/IRFAs) for observer requirements in the 
groundfish fishery: a 2000 EA/RIR/IRFA on ``An Observer Program for 
Catcher Vessels in the Pacific Coast Groundfish Fishery,'' and a 2003 
EA/RIR/IRFA on the ``Implementation of an Observer Program for At-Sea 
Processing Vessels in the Pacific Coast Groundfish Fishery.'' NMFS has 
analyzed additional monitoring mechanisms in two EA/RIR/IRFAs on vessel 
monitoring systems, and is currently drafting an EA/RIR/IRFA on 
implementing electronic monitoring (camera observation) requirements 
for the shore-based sector of the whiting fishery. These EA/RIR/IRFAs, 
which have been discussed in the Council process and made available to 
the public both through the Council and NMFS notice-and-comment 
processes, evaluate the costs and appropriateness of the different 
types of monitoring mechanisms for different fishery management goals.
    For the practicability analysis on NMFS's decision on Amendment 18, 
NMFS evaluated the costs of the various monitoring programs currently 
in place against the expected cost of 100 percent observer coverage. 
Current WCGOP costs to address the non-whiting portion of the 
groundfish fleet are approximately $4.5 million per year. NMFS 
estimates that expanding WCGOP coverage so that all vessels were 
required to carry an observer whenever they are fishing would cost 
approximately $13.3 million per year, a significant cost when compared 
against the commercial fishery's total 2004 ex-vessel revenue of $61 
million. NMFS considers implementing WCGOP to be both a practicable 
observer program to implement, and an appropriate approach to observer 
coverage for this fishery. An observer program that costs over a fifth 
of the fishery's revenue is not a program that is ``reasonable and 
capable of being done in light of current technology and economic 
considerations,'' particularly bearing in mind the many other costs 
associated with the science, management, and enforcement programs 
needed to support this fishery. The remaining paragraphs in this 
response to Comment 6 are excerpted or summarized from the 
practicability analysis and provide the agency's reasons for 
determining particular management measures to be practicable or 
impracticable at this time.
    Vessel incentive programs. A vessel incentive program reduces 
bycatch by rewarding ``clean'' vessels with greater economic 
opportunity, thereby encouraging vessels to reduce their amount of 
bycatch. The Council discussed a type of vessel incentive program that 
would grant higher landings limits to vessels that voluntarily carry 
and pay for observers. Amendment 16-1 put a mandatory observer program 
into the FMP. Federal regulations at 50 CFR 660.314(c)(2) state ``When 
NMFS notifies the vessel owner, operator, or permit holder, or the 
vessel manager of any requirement to carry an observer, the vessel may 
not take and retain, possess, or land any groundfish without carrying 
an observer.''
    Observers that are required to be carried onboard vessels as part 
of a statistical sampling program are observing vessels behaving within 
the framework of regulations that apply to the fleet as a whole. This 
type of observer sampling plan allows data from the observed portion of 
the fleet to be expanded to provide bycatch estimates for the whole 
fleet.
    NMFS does not support an incentive program wherein vessels that 
voluntarily carry an observer are permitted to access higher landings 
limits than otherwise allowed, because such a program could undermine 
NMFS's observer sampling plan. Observers carried on a portion of the 
fleet under an incentive program that allows vessels to operate outside 
of the normal regulatory framework do not generate data that are useful 
to modeling the whole fleet's behavior. Thus, while an incentive-based 
observer program may be beneficial to the particular participating 
vessels, it is not necessarily beneficial, and could even be harmful, 
to the statistical validity of NMFS's sampling program design,

[[Page 66129]]

which provides data that support bycatch modeling on the groundfish 
fisheries. In addition to these scientific concerns, even if vessels 
were to pay for observers outside of the WCGOP program, NMFS would need 
to pay for the infrastructure to train the observers and process and 
analyze their data--a benefit to the participating vessels, but not to 
the fishery as a whole. For these reasons, NMFS does not consider an 
incentive-based observer program to be a practicable bycatch 
minimization measure for implementation in the groundfish fishery.
    Discard caps or bycatch limits. Discard caps or total catch limits 
reduce bycatch by restricting fisheries when those limits are reached. 
A vessel cap works similarly to a vessel incentive in that target 
fishing can occur so long as the vessel does not reach a particular 
cap. This essentially rewards a vessel or fleet with fishing 
opportunity if they fish cleanly. The Council's preferred alternative 
includes the use of this mechanism for reducing bycatch when 
practicable. In addition, bycatch limits have been in place for the 
Pacific whiting fishery since 2004.
    NMFS uses the term ``bycatch limit,'' rather than ``discard cap,'' 
because a bycatch limit is more appropriate in a multi-species fishery, 
where species that are incidentally caught may be retained or 
discarded. Either term may be confusing, since the Magnuson-Stevens Act 
defines bycatch as only those fish that are discarded, whereas the 
groundfish FMP views bycatch species as those species that may not have 
been one of the target species, but which were taken incidentally to 
the targeted species. In the case of overfished species, NMFS and the 
Council manage the fishery to minimize the total catch of each 
overfished species, including the discards of those species. The term 
``discard cap'' might be more appropriate for a fishery where a single 
species is targeted and all non-target species are discarded. West 
Coast groundfish fisheries are multi-species fisheries and management 
measures are intended to either ensure that non-target species are 
avoided (e.g. the Rockfish Conservation Areas,) or to allow non-target 
species to be retained when caught in common with target species (e.g. 
trip limits for minor slope rockfish in association with fixed gear 
sablefish limits.)
    NMFS quoted Amendment 18's provisions for sector total catch limit 
programs in the response to Comment 5, above. NMFS also provided an 
example of how bycatch limits work under the current management system, 
which relies on inseason catch projections, rather than on real-time 
catch estimates, to calculate current catch. The only groundfish 
fishery sector with total catch limits based on near real-time data for 
both landings and discards is the whiting fishery. In 2004, NMFS first 
implemented overfished species bycatch limits for canary and 
darkblotched rockfish taken incidentally in the Pacific whiting fishery 
via emergency rule and inseason action (August 3, 2004, 69 FR 46448, 
and; October 6, 2004, 69 59816). The final rule for the 2005-2006 
groundfish specifications and management measures implemented bycatch 
limits for canary and widow rockfish taken incidentally in the 2005 and 
2006 Pacific whiting fisheries (December 23, 2004, 69 FR 77012.) NMFS 
subsequently implemented a bycatch limit for darkblotched rockfish in 
the 2006 Pacific whiting fishery on July 1, 2006 (71 FR 37844, July 3, 
2006.) These limits apply to the non-tribal whiting fishery, in which 
two of the three participating sectors have at least 100 percent 
observer coverage, the catcher-processor and mothership sectors. The 
shore-based whiting sector, which consists of catcher vessels that 
deliver their catch to processing plants on land, has been managed in 
2004-2006 under an EFP that requires vessels to carry electronic 
monitoring (EM) systems. On whiting catcherboats, EM systems were used 
to monitor whether vessels were retaining all of their catch or 
discarding a portion of catch, since this fishery is known to have 
relatively low bycatch rates and is assumed to maximize its retention 
of all fish caught. As applied in this fishery, EM technology is not 
capable of estimating species-specific discards for trawl fisheries at 
this time; however, it may provide an independent source of information 
for estimating total catch.
    Several practical considerations make implementing near real-time 
bycatch limits practicable for the whiting fishery, but would make them 
impracticable for the remainder of the groundfish fleet. Near real-time 
monitoring would be required to implement near real-time bycatch 
limits. West Coast groundfish trawl vessels, which tend to be larger 
than non-trawl vessels, have an average size of about 70 feet in length 
overall. Vessels of this size have limited deck space for catch 
sampling, and restricted bunk space for accommodating observers on 
overnight trips. Some vessels that operate in nearshore waters are so 
small, under 20 feet in length overall, that vessel operators take 
their boats out alone, not having space for crew, let alone observers. 
By contrast, the catcher-processor and mothership vessels that 
participate in the at-sea whiting fishery carry two observers apiece 
and are all at least 125 feet in length overall, with some are over 250 
feet in length overall. Also unlike the whiting fishery, the multi-
species groundfish fishery has not been very profitable for many of its 
participants in recent years, which at times means that vessel owners 
cannot afford to keep their vessels in optimal condition. Since WCGOP's 
inception in 2001, NMFS has had to refuse to deploy observers on 
several vessels that have failed to meet observer safety regulations at 
50 CFR 600.746(c) and 660.314(d)(2).
    Unlike the whiting fishery, where whiting is the sole target 
species, the rest of the groundfish fleet tends to target multiple 
species simultaneously. This means that inseason whiting fishery 
management requires that managers track fewer than ten species for 
real-time management issues, while inseason management of the non-
whiting groundfish fisheries would require tracking 30+ species or 
species groups for total catch. Similar to the needs for an IFQ 
program, the shoreside landings monitoring infrastructure, including 
the fish ticket system, would need to be greatly expanded to support 
the data processing speed that would be required to implement a near 
real-time bycatch limit program for the non-whiting fisheries. Finally, 
the number of boats in the whiting fishery is relatively small, roughly 
40-50 in all three non-tribal sectors, with landings occurring at few 
ports. Tracking these few vessels and ports is much more 
straightforward than would be the case in the overall groundfish 
fishery, which has over a thousand vessels making landings in dozens of 
ports coastwide.
    Regardless of the type of bycatch limit implemented, moving the 
bycatch limit program beyond the whiting fishery would require that the 
Council allocate the species intended to be limited between the fishing 
sectors. Species or species groups that are currently subject to 
allocations are managed with sector-specific total catch limits, are 
monitored inseason for their landed catch and modeled for total catch 
based on past landed catch and bycatch rates, and are closed if those 
allocations are achieved. For all species except Pacific whiting and 
sablefish, the allocations are primarily between the limited entry and 
open access portions of the commercial fishery. These are relatively 
large sectors, which means that the activities of one portion of a 
sector may affect the fishing opportunities of another portion of the 
sector. For example, inseason modeling in 2005 indicated that the

[[Page 66130]]

summer flatfish trawl fisheries had taken more petrale sole than had 
been expected from pre-season modeling, which led the Council to close 
the fall/winter directed petrale sole fishery.
    The Council is developing a multi-species inter-sector allocation 
EIS that would support transitioning the trawl fleet to an IFQ program. 
This EIS would also support dividing available groundfish harvest into 
smaller sector harvest levels than are used under current management. 
The groundfish fishery's current standardized bycatch reporting 
methodology is adequate to support the management system of pre-season, 
inseason, and post-season total catch evaluation, coupled with inseason 
management measures revisions. If available groundfish harvest is 
divided into smaller sectors, NMFS and the Council will need to re-
evaluate the fishery's standardized bycatch reporting methodology to 
determine how to best match the monitoring efforts to management needs.
    As total available harvest is divided into smaller percentage 
shares, the coverage level of associated fishery monitoring usually 
needs to increase. In a fishery managed with vessel-specific total 
catch limits, such as in an IFQ program, participating vessels may need 
100 percent coverage of at-sea fishing activities. NMFS anticipates 
that expanding fishery monitoring to support a vessel-specific total 
catch limit program would cost $13.3 million annually, or nearly $9 
million more than the current observer program. That level of funding 
is not currently available from management agencies. Although other 
regions have implemented industry-funded observer programs, 
establishing that type of system requires an adequate study of 
appropriate checks and balances, assurances that such a program would 
not encourage the misreporting of observed catch, and an infrastructure 
to support the training of observers and analysis of observer data. In 
some fisheries, at-sea monitoring could be managed with EM systems, 
which may cost less, but those systems would have to be tested for 
their usability with each particular type of fishery. NMFS, the States, 
and the whiting industry are in the third year of testing EM systems 
for the shore-based sector of the whiting fishery.
    Fishery or sector total catch limits, in the form of OYs, harvest 
guidelines, and sector allocations, are part of the current management 
process and are managed through the pre-season/inseason/post-season 
evaluation process described above. Dividing current sector allocations 
into smaller percentages would require the development of the inter-
sector allocation EIS, which is underway. Vessel-specific total catch 
limits would also rely first on harvest allocation between sectors, and 
then on harvest allocation between individual vessels. The FEIS's 
preferred alternative supports sector total catch limits, where 
practicable. The ``hard'' sector caps recommended by The Four 
Organizations are not now practicable for the groundfish fishery.
    Full or maximized retention programs. Full or maximized retention 
programs are designed to eliminate the discard of species caught during 
fishing activities by requiring fishers to retain species that are 
caught. Full or maximized retention programs require a different 
monitoring system than a fishery managed with landing limits for 
various species. Complete full retention may be a problem in some 
situations because of safety or other operational reasons; therefore, 
NMFS is also considering maximized retention programs that would 
require complete retention of catch except in certain specified 
circumstances and vessels using best fishing practices to reduce 
discard. NMFS, the States, and the whiting industry are experimenting 
with a maximized retention and EM program in the shore-based whiting 
fishery through an EFP, as discussed above. In a full- or maximized-
retention fishery, observers or EM devices are answering a yes/no 
question: Did the vessel retain all of its catch taken in a particular 
trip? Operating a fishery with that management question requires higher 
monitoring coverage than in a fleet sampled for bycatch rates, but less 
sophisticated evaluation of fishing activities. For example, WCGOP 
observers are not simply used to determine whether catch is retained, 
but are instead deployed to determine how much catch is discarded, the 
species composition of the discarded fish, and collect biological data 
from discard species. An EM system may be an effective mechanism for 
answering the yes/no question in a less costly manner, but it cannot 
collect information at the same sophistication level as that collected 
by a human observer. Conversely, deploying a human observer simply to 
answer a yes/no question could be an impractical use of limited staff 
resources.
    Amendment 18 supports the implementation of full retention programs 
where practicable. The Council is developing a maximized retention 
management program for the shore-side sector of the whiting fishery, 
and will next consider that program at its November 2006 meeting. Such 
management is appropriate for the whiting fishery, because the delay in 
catch refrigeration that would result from the time needed to sort 
catch at sea would impair the quality of the target species' flesh for 
sale. Full retention management may not be appropriate or practicable 
for other fisheries, particularly under the current rockfish rebuilding 
regime. Some of the rebuilding rockfish have a high enough market value 
that a program to require full retention might backfire by providing 
vessels with incentives to target rebuilding species so as to ensure 
that they are part of the total catch that is required to be retained.
    Although full retention may lead to improved accounting of total 
catch, it does not eliminate bycatch, as defined in the Magnuson-Steven 
Act. Fish that are not sold would be regarded as if they were 
discarded. Many fish that are currently discarded at sea are not landed 
because they do not meet minimum standards for size or quality that are 
established by individual processors. NMFS cannot require processors to 
buy fish for which they have no market. Potential full- or maximized-
retention programs need to be evaluated with these practical 
considerations in mind if they are to be effective at minimizing 
bycatch to the extent practicable.
    Gear restrictions. Gear restrictions minimize bycatch in several 
ways, by: Restricting gears that are prone to catching bycatch species 
to operating in certain areas; requiring that certain gears be modified 
so that they either allow bycatch species to escape the gear once 
caught, or so that they prevent non-target species from being caught on 
o