Comment by Fishery Science Advisors on AR78

I worked on this proposed rule off and on for over 15 years before I retired from NMFS. I am very pleased with this proposed rule as written. I only have one concern that I address in my last paragraph. Copies of final rule should be include in all NOAA grant solicitations that include the possibility for fishery research at sea that could be considered as fishing I fully agree with the definitions for and distinction between ?conservation engineering? and ?testing of gear.? This revision will greatly improve the ability for scientist working cooperatively with the fishing industry to carry out important new research to reduce unintended bycatch and gear impacts on habitat. Conservation engineering was once a significant area of fishery research in the Bureau of Commercial Fisheries and National Marine Fisheries Service but it met it demise in the 1980?s. Recent federal research efforts have been bogged down by the ?testing of gear? restrictions. I am also pleased by the proposed regulations handling of the federal review process of Exempted Fishing Permit. Previous versions rule set up a rigid and lengthy application and review process. This proposed rule meets the requirements for public review and agency review without setting up rigid fixed schedule for application submission and review dates. This proposed rule will encourage good ideas when they come to light to move forward with out any delay caused by rigid annual application due dates. I am also convinced that EFP processes must address the potential for impacts on environment, habitat, resource stability including marine mammals and endangered species. I have no other choice in the EFP process. The one issue that I am still concerned about is under the section entitled ?EFP Requirements for NMFS Observer Program.? I fully understand the intent is to not require EFP for NMFS sanctioned observer programs. I do not fully understand the last sentence in this section ?Other programs could continue to provide sea samplers, but would need an EFP to retain prohibited species and otherwise act in contravention of the published regulations.? What might these other programs be? In coastal waters there may be state managed fisheries that have state observer programs that occur in outside the territorial sea. These may not be NMFS sanctioned observer programs. I doubt that NMFS would want to manage EFPs for such fisheries. More importantly, I foresee an industry, state or university study that would require an EFP given the nature of the study for a fishery with a NMFS sanctioned observer program yet the group using the EFP are likely to have a number of sea samplers to collect the necessary data to address the question identified in the EFP that is contrary and incompatible with the sampling protocols of the NMFS sanctioned observer program. Is this group required to have an NMFS sanctioned observer aboard? One problem that frequently arises in an EFP study, is that the fish handling operations and catch recording processes needs to be modified from the standard NMFS sanctioned observer sampling protocols. These changes could make the catch record date collected by the observer invalid for tracking catches during the study and inconsistent with observer protocols and standards. If the observer program is unwilling to make the changes, then the study can not be properly conducted. Who is responsible for reporting the catches to the NMFS authority in this case, the NMFS sanctioned observer or the group holding the EFP. There are frequently conflicts during EFP studies between the NMFS sanctioned observers and the study groups sea samplers. As an example, this could become a problem when prohibited species are required to be discarded as soon as possible from a catch and the observer sampling is structured to count discarded prohibited species for estimating of total prohibited catch, but the EFP study calls for intercepting prohibited species before discarding overboard and retaining the prohibited species catch aboard for observation for some period of time. Another issue arises resulting from the limited number of bunks aboard. In many cases, the EFP group needs a specific number of sea samplers but if an observer is required this may reduce the number of bunks available for their sea samplers. This would be OK if the observer could follow the sampling protocols for the study rather than the observer protocols. But then the problem would likely be that the NMFS observer data would be invalid for tracking the catch during the EFP. Not sure the best way to handle these particularly situations if the NMFS sanctioned observer program is unwilling to adjust protocols such that the groups sea samplers can collect the intended data. I do know that in these cases, the EFP group and the leadership of the NMFS sanctioned observer program need to meet to discuss these issues long before everyone shows up on the boat ready to go to work, unfortunately this is not always the case. The basic question is whether an EFP study is required to carry an NMFS sanctioned observer to document and report the catch during the EFP. This may not be a trivial question.