[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78172-78176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31531]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 101203602-0602-1]
RIN 0648-BA29
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
Retention Standard; Emergency Rule
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS is exempting, through this emergency rule, trawl catcher/
processor vessels (C/Ps) that are not specified in regulation as
American Fisheries Act (AFA) vessels, referred to throughout this rule
as non-AFA trawl C/Ps, and Amendment 80 cooperatives from the
groundfish retention standard (GRS) in the Bering Sea and Aleutian
Islands management area. The GRS was implemented to increase the
retention and utilization of groundfish caught by the non-AFA trawl C/
Ps and to respond to bycatch reduction goals described in National
Standard 9. NMFS recently discovered that the regulatory methodology
used to calculate compliance with and to enforce the GRS percentages
established for 2010 and 2011 effectively require the sector to meet
GRS well above that considered by the North Pacific Fishery Management
Council or that implemented by NMFS. As a result, the retention
requirements are expected to impose significantly higher costs due to
the increased level of retention and to generate an unanticipated level
of noncompliance in the Amendment 80 fleet. Further, monitoring and
enforcement of the GRS has proven far more complex, challenging, and
potentially costly than anticipated by NMFS. This emergency rule is
necessary to exempt non-AFA trawl C/Ps and Amendment 80 cooperatives
from the regulatory provisions of the GRS program before the end of the
2010 fishing season and prior to the start of the 2011 fishing season.
This action is intended to promote the goals and objectives of the
Magnuson-Stevens Fishery Conservation and Management Act, the Fishery
Management Plan for Groundfish of the Bering Sea and Aleutian Islands
Management Area, and other applicable law.
DATES: Effective December 15, 2010 through June 13, 2011. Comments must
be received by January 14, 2011.
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-
BA29, by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal at http://www.regulations.gov.
Fax: (907) 586-7557, Attn: Ellen Sebastian.
Mail: P.O. Box 21668, Juneau, AK 99802.
Hand delivery to the Federal Building: 709 West 9th
Street, Room 420A, Juneau, AK.
All comments received are a part of the public record and will be
posted to http://www.regulations.gov, generally without change. No
comments will be posted for public viewing until after the comment
period has closed. All Personal Identifying Information (for example,
name, address) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Electronic copies of the Regulatory Impact Review (RIR), and the
Categorical Exclusion prepared for this action may be obtained from
http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. The Environmental Assessment, RIR, and Final
Regulatory Flexibility Analysis for Amendment 79 to the Fishery
Management Plan for Groundfish of the Bering Sea and Aleutian Islands
Management Area (FMP) and the Environmental Assessment, RIR, and Final
Regulatory Flexibility Analysis for Amendment 80 to the FMP are
available from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries
of the Bering Sea and Aleutian Islands management area (BSAI) in the
Exclusive Economic Zone under the Fishery Management Plan for
Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP). The North Pacific Fishery Management Council (Council) prepared
the FMP pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (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.
Groundfish Retention Standard
The Groundfish Retention Standard (GRS) originally was adopted by
the Council as Amendment 79 to the FMP in June 2003. The GRS was
intended to increase retention of groundfish by non-American Fisheries
Act (AFA) trawl catcher processors (C/Ps) that were equal to or greater
than 125 ft (38.1 m) length overall (LOA). In adopting that action, the
Council focused on non-AFA trawl C/Ps because, as a group, they had the
lowest retained catch rates of any C/P sector operating in the BSAI
groundfish fishery. The Council's stated policy objective for
developing the GRS was based on the Council's commitment to ``reducing
bycatch, minimizing waste, and improving utilization of fish resources
to the extent practicable * * * [and acknowledged] the fact that any
solution to the problem of reducing discards must take into account the
ability of NOAA Fisheries to monitor discards and adequately enforce
any regulations that are promulgated.''
The final rule implementing the GRS was effective January 20, 2008
(71 FR 17362, April 6, 2006), and required non-AFA trawl C/Ps 125 ft
(38.1 m) LOA or greater to retain and utilize an increased percentage
of groundfish caught during fishing operations; these percentages are
referred to as groundfish retention standards. Non-AFA trawl C/Ps less
than 125 ft (38.1 m) LOA initially were excluded from the GRS because
GRS
[[Page 78173]]
compliance costs associated with observers and scale monitoring
requirements were found to be higher for these vessels, and their
contribution to the overall bycatch and discard of groundfish were
minimal compared to vessels equal to or greater than 125 ft (38.1 m)
LOA.
Regulations at 50 CFR sections 679.27(j)(1) through (4) implement
the GRS by prohibiting the owner or operator of a non-AFA trawl C/P
equal to or greater than 125 ft (38.1 m) LOA from retaining an amount
of groundfish during a fishing year that is less than the groundfish
retention standard as determined by the equation used for determining
GRS compliance at Sec. 679.27(j)(2). Although compliance with the GRS
percentages is calculated on an annual basis, the variables used to
calculate annual retention are obtained from data collected throughout
the year and from each haul by a vessel. NMFS implemented a different
methodology for monitoring and enforcing annual retention standards in
regulations implementing the GRS than that used in the Amendment 79
analysis in order to ensure that calculations were verifiable and
enforceable on an individual vessel basis. The GRS was phased in to
allow the affected vessels time to adjust to the retention
requirements. The GRS schedule can be found at Sec. 679.27(j)(4) and
is listed below in Table 1.
Table 1--Annual Groundfish Retention Standard
------------------------------------------------------------------------
Annual GRS
GRS Schedule (percent)
------------------------------------------------------------------------
2008.................................................... 65
2009.................................................... 75
2010.................................................... 80
2011 and each year after................................ 85
------------------------------------------------------------------------
In June 2006, the Council adopted Amendment 80 to the FMP, which
was implemented with a final rule published in 2007 and was fully
effective starting with the 2008 fishing year (72 FR 52668, September
14, 2007). Among other measures, Amendment 80 authorized the allocation
of specified groundfish species to harvesting cooperatives and
established a catch share program for the non-AFA trawl C/Ps, also
referred to as the Amendment 80 sector. Amendment 80 was intended to
meet a number of policy objectives that included improving retention
and utilization of fishery resources by the Amendment 80 sector,
reducing potential bycatch reduction costs, encouraging fishing
practices with lower discard rates, and improving increasing the
opportunity for increasing the value of harvested species. To meet
these goals, Amendment 80 extended the GRS to non-AFA trawl C/Ps of all
sizes by including C/P vessels less than 125 ft (38.1 m) LOA, and also
extended the GRS to Amendment 80 harvesting cooperatives, rather than
the individual vessels in the cooperative, to encourage fishing
practices with lower discard rates.
The Council included all Amendment 80 sector vessels because some
vessels, particularly the non-AFA trawl C/Ps less than 125 ft (38.1 m)
LOA, could reduce the compliance costs associated with the GRS program
if those vessels formed harvesting cooperatives under the Amendment 80
catch share program. Amendment 80 authorized a cooperative to meet the
GRS by aggregating the retention rate of all vessels assigned to the
cooperative. Owners of non-AFA C/Ps with relatively low retention rates
could choose to join a cooperative, assign their harvest privilege to
the cooperative, and allow vessels with higher retention rates to
harvest the cooperative's exclusive allocation of fish. Additionally,
for non-AFA trawl C/Ps that fish under a cooperative's exclusive
harvest privilege, the costs associated with retaining less valuable
fish under the GRS may be offset by increased profitability because
they are no longer operating in a race for fish.
Recent and Unforeseen Issues With the GRS
In its March 2010 report to the Council, the Best Use Cooperative,
a cooperative established under the cooperative formation provisions of
Amendment 80, noted several issues that could pose potential compliance
problems with the current GRS regulations. Specifically, the report
stated that as retention requirements are increased through 2011,
current GRS percentages may become economically impractical and
unattainable.
In response to these concerns, the Council asked NMFS to assess the
GRS and the issues raised by the Best Use Cooperative. In June 2010,
NMFS reported to the Council the agency's opinion that unintended
implementation, compliance, and enforcement issues are apparent with
the GRS program. These issues center around (1) the regulatory
methodology used to calculate annual GRS percentages for vessels and
(2) the high enforcement and prosecution costs associated with the GRS.
NMFS has recently discovered that the regulatory methodology for
calculating vessel specific GRS percentages results in lower estimates
of groundfish retention percentages than the analytical methodology
used by the Council when it adopted the GRS (see Table 2 of this
preamble). Using information from NMFS' catch accounting database and
the methodology used in the Amendment 79 analysis to calculate
retention, the retention of groundfish by vessels in the Amendment 80
sector increased from 71 percent in 2003, when the Council adopted the
GRS, to 90 percent in 2009 (see Table 2 of this preamble). The 90
percent retention rate in 2009 surpassed the Council policy objective
of an 85 percent groundfish retention rate by 2011. However, the
regulatory methodology set forth at Sec. 679.27(j)(2) and (3) and used
by NMFS to determine GRS compliance, differs from the analytical
methodology that the Council used to calculate the GRS percentages. The
methodology at Sec. 679.27(j)(2) and (3) indicates that the retention
of groundfish by vessels in the sector had only increased from 65% in
2003 to 83% in 2009. NMFS had purposefully implemented the different
methodology at Sec. 679.27(j)(2) and (3) than that used in the
Amendment 79 analysis in order to ensure that calculations were
verifiable and enforceable on an individual vessel basis.
To calculate the percent of retained catch, both the analytical and
regulatory methodologies divide the retained catch (numerator) by total
catch (denominator). The total catch (denominator), in both
methodologies is a vessel's groundfish catch, as weighted on a
certified flow scale, by haul. However, the retained catch (numerator)
in each methodology is estimated by different methods. In the
regulatory methodology, the retained catch (numerator) is a vessel's
total round weight equivalent of retained catch based on primary
groundfish production and NMFS product recovery rates. In the
analytical method (See Column B, Table 2 of this preamble), the
calculation relied on estimates of retained catch (numerator) based on
several observer calculations and estimations. This resulted in
estimates of retained catch that are unlike those used in the
regulatory approach (See Column C, Table 2 of this preamble) to
determine retained catch compliance with the GRS. Section 1.2.6 of the
RIR for this action provides a detailed explanation of the analytical
and regulatory methodologies (see ADDRESSES).
[[Page 78174]]
Table 2--Comparison of Groundfish Retention Percentages Derived Under the Approach Used by the Analysis Supporting Amendment 79 and the Regulatory
Approach for GRS Compliance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory
Round Weight Analytical Approach for
Regulatory GRS Equivalent Approach for Determining
Year (percent) Total Catch Retained catch Reported Selecting GRS Compliance
Production (percent) with GRS
(percent)
.............. (A) (B) (C) (B)/(A) (C)/(A)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2003.................................................... .............. 281,083 200,631 183,260 71 65
2004.................................................... .............. 313,942 214,904 200,338 68 64
2005.................................................... .............. 300,814 235,627 216,210 78 72
2006.................................................... .............. 295,028 232,973 214,637 79 73
2007.................................................... .............. 317,540 246,199 223,560 78 70
2008.................................................... 65 352,698 315,453 264,245 89 75
2009.................................................... 75 325,252 292,416 268,632 90 83
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: All weights are in metric tons.
As demonstrated in Table 2, the regulatory methodology results in
retention rates that are consistently lower than those considered, and
recommended, by the Council for Amendment 79 and approved by the
Secretary. In 2008, this difference was 15 percentage points, while the
difference in 2009 was 7 percentage points. Using the regulatory
methodology to determine individual vessels' specific annual retention,
in 2009 three vessels had a retention rate less than 76 percent, seven
vessels had a retention rate between 76 percent and 80 percent, and the
remaining 10 vessels had a retention rate greater than 80 percent. Of
the three vessels with retention rates below 76 percent, one vessel
appears to be under the GRS and an enforcement action is pending
against this vessel. The other two vessels are not subject to an
enforcement action because the vessels were members of an Amendment 80
cooperative in 2009 and the cooperative as a whole exceeded the GRS.
As the GRS increases to 80 percent in 2010 and 85 percent in 2011,
a large number of vessels that met or exceeded the GRS regulatory
requirement in 2009, will not likely meet the standard in 2010 and
2011. Since the regulatory calculation of GRS can vary by as much as 15
percentage points from the Amendment 79 methodology, it is
mathematically possible that a vessel could retain 100 percent of its
catch and still fall at or below the regulatory GRS compliance rate,
thereby triggering a larger number of enforcement actions than
anticipated under Amendment 79 or Amendment 80. The high probability
that vessels will be unable to meet the GRS in 2010 and each following
year represents an unnecessary burden to the Amendment 80 sector,
considering that under the analytical methodology for calculating
compliance with the GRS, the Council's objectives for the GRS appear to
be met and/or exceeded two years earlier than required.
Many participants in this sector have expressed strong concern
about the feasibility of achieving the 2010 and 2011 GRS percentages
under existing regulatory provisions. The Council recognized that the
cooperative provisions, which were intended to increase retention rates
by encouraging underperforming members of the Amendment 80 sector to
assign their harvest privilege to a cooperative, may not be effective
if a large portion of the fleet is unable to comply with the GRS. A
cooperative may not be able to absorb the additional catch shares from
underperforming vessels due to the limited fishing seasons and recent
reductions in fleet capacity, including vessels exiting the fishery and
one vessel lost at sea. Furthermore, NMFS has determined that the
provisions of Amendment 80, which promote cooperative formation, will
be undermined as more vessels are unable to meet the GRS. There is
little incentive for an Amendment 80 cooperative to include
underperforming vessels due to the potential for reduced retention
rates at the cooperative level.
When the GRS program was approved by NMFS, NMFS anticipated
difficulties in prosecuting vessel-specific violations of the GRS.
These concerns primarily focused on the GRS's reliance on an annual
groundfish retention percentage based in part on data collected by
numerous observers deployed on a vessel over the course of a year, and
the fact that observers may not be available (in future years) to
support the prosecution process. These concerns persisted under
Amendment 80 because the number of observers necessary to support an
enforcement case and associated prosecution would increase
substantially in enforcement actions including multiple vessels.
In early 2010, the NOAA Office of Law Enforcement (OLE) began to
investigate an alleged violation of the GRS for the 2009 fishing year.
This alleged violation involves a vessel, not part of an Amendment 80
cooperative, that fished for a portion of the fishing year. This case,
which appeared to be a relatively simple GRS case, created an
opportunity to evaluate the evidence collection processes necessary for
prosecution of a GRS violation. This evaluation showed that the
sufficiency of data sets for prosecution purposes must be examined for
each vessel and that the evidence collection process may result in an
unanticipated increase in enforcement costs. Prior to considering an
alleged GRS violation for prosecution, OLE investigators must perform a
detailed analysis and verification of the sampling procedures and
protocols employed by embarked observers, and must find that the
observed data have a high degree of reliability. This task is both time
and labor intensive.
Recent experience shows that the estimated cost to NOAA OLE for an
investigation of a simple case is $50,000 or more per vessel.
Enforcement costs are likely to increase significantly depending on
vessel size, number and availability of observers, and the portion of
the season actively fished by the vessel. If the number of vessels
investigated for GRS noncompliance increase, the cost of investigating
a suspected violation of the GRS is also expected to rise to levels
significantly higher than anticipated under Amendment 79 or Amendment
80.
A recent Office of the Inspector General investigation of OLE
recommended greater emphasis on
[[Page 78175]]
prioritizing enforcement work at the regional and national levels,
http://www.oig.doc.gov/oig/reports/2010/OIG-19887.pdf. Given the
limited resources available to OLE, NMFS must balance the priority of
particular regulatory schemes with overall enforcement time and
personnel demands. Furthermore, the report recommended targeting
regional enforcement operations on actions that warrant focused
enforcement. Knowledge gained through the current one-vessel GRS case
indicates future investigations will be much more labor and time
intensive than expected. This level of investment does not appear to
coincide with regional priorities, or NMFS's national enforcement
objectives, considering the current high level of groundfish retention
in the sector.
At this time, NMFS is unable to predict the magnitude of the level
of noncompliance that will result under the regulatory methodology for
calculating compliance with the 2010 and 2011 GRS. However, the
disparity between the analytical methodology for establishing the GRS
and the regulatory methodology for calculating compliance with the GRS
poses serious concern. Therefore, NMFS has encouraged the Council to
consider the implications of continuing to dedicate agency resources to
the GRS. NMFS and representatives for the Amendment 80 sector
recommended that the Council consider a more flexible, non-regulatory
approach for assessing whether or not the Amendment 80 sector is
maintaining recent improvements to retention rates. This suggested non-
regulatory approach would include withdrawing the specific regulatory
provisions for the GRS and instead relying on cooperative formation and
annual reports to the Council on cooperative activity relative to catch
and discard percentages to ensure that recent improvements in discard
rates are maintained.
In response to this input, the Council initiated an analysis of
alternatives to address the compliance and enforcement issues
identified with the GRS and will consider an analysis supporting an FMP
amendment to remove the GRS at its December 2010 meeting. While the FMP
amendment and associated regulations are being developed, the Council
requested that NMFS implement an emergency rule to exempt non-AFA trawl
C/Ps from the GRS for the 2010 and 2011 fishing years.
Emergency Action
This emergency rule exempts non-AFA trawl C/Ps and Amendment 80
cooperatives from the GRS regulations at Sec. 679.27(j)(1) through
(4), including the minimum GRS percentages established for 2010 and
2011. This action would be implemented for 180 days, and would span two
groundfish fishing years. An exemption from a portion of a fishing year
precludes the calculation of annual compliance with the GRS; therefore,
the practical effect of this emergency rule is that the non-AFA trawl
C/Ps will be exempt from both the 2010 and 2011 GRS requirements. This
emergency rule does not exempt non-AFA trawl C/Ps from the
recordkeeping, permitting, or monitoring regulations at Sec. 679.93;
those requirements must remain effective to ensure proper catch
accounting under the Amendment 80 quota-based catch share program.
Section 305(c) of the Magnuson-Stevens Act provides authority for
rulemaking to address an emergency. Under that section, a Council may
recommend emergency rulemaking, if it finds an emergency exists.
At its June 2010 meeting, the Council voted 10 to 1 to request that
NMFS promulgate an emergency rule to relieve the GRS requirement for
the non-AFA trawl C/Ps. The Council determined that an emergency exists
because the regulations established to calculate compliance with annual
GRS rates require a level of retention much higher than that intended
by the Council. This discrepancy has only recently been identified and
is aggravated by the scheduled increase in required retention rates in
2010 and 2011. In addition, the regulatory methodology requires a level
of minimum retention higher than that contemplated when NMFS approved
Amendment 79. The regulatory GRS rates cannot be sustained by many non-
AFA trawl C/Ps; they create compliance costs above those anticipated
when the GRS was approved, and they cannot be effectively enforced.
Additional and potentially significant compliance costs associated with
the 2010 and 2011 GRS percentages are not warranted because the
improvements in retention rates by the non-AFA trawl C/Ps through 2009
have met Council objectives.
Enforcement of the GRS has proven far more complex, challenging,
and potentially more costly than anticipated. Given the estimated
increase in groundfish retention since 2003, it appears that the
Council's policy objectives to decrease bycatch and waste in the non-
AFA trawl C/P sector have been largely successful. The Amendment 80
sector has operated under a cooperative system for nearly 3 years in a
manner that seems to facilitate compliance with the GRS to date (See
Table 2 of this preamble). In addition, NMFS now has experience
indicating that the costs to NOAA of developing a GRS compliance case
are high and will increase if GRS noncompliance increases in 2010 and
2011. Given that NMFS's management objectives for the GRS seem to be
met generally, other enforcement and prosecution priorities should take
precedence over allocating additional resources to the enforcement of
the GRS.
Exempting non-AFA trawl C/Ps and Amendment 80 cooperatives from the
minimum GRS requirements at Sec. 679.27(j)(1) through (4) before the
end of the 2010 fishing year and prior to the start of the 2011 fishing
year will enable the Amendment 80 sector to engage in ongoing civil
contract agreements addressing groundfish discard rates and associated
reports to the Council on its progress toward minimizing discard while
the Council develops an FMP amendment to permanently address this
situation. Without this exemption, regulatory compliance with the GRS
may not be possible for the Amendment 80 fleet and may result in
noncompliance rates that were unanticipated with this program.
In making this recommendation, the Council considered the NMFS
policy guidelines for the development and approval of regulations to
address emergencies. Emergency rulemaking is intended for circumstances
that are extremely urgent, where substantial harm to or disruption of
the fishery would be caused in the time it would take to follow
standard rulemaking procedures (62 FR 44421, August 21, 1997). An
emergency is a situation that results from recent, unforeseen events or
recently discovered circumstances; presents serious conservation or
management problems in the fishery; and can be addressed through
emergency regulations for which the immediate benefits outweigh the
value of advance notice, public comment, and deliberative consideration
of the impacts on participants to the same extent as would be expected
under the normal rulemaking process.
NMFS finds that an emergency exists because:
Recent and unforeseen discrepancies between the analytical
methodology used to establish the GRS percentages and the regulatory
methodology used to monitor and enforce these percentages impose higher
retention standards than those adopted by the Council or approved by
the Secretary.
Recent and unanticipated consequences of regulations
implementing the GRS at Sec. 679.27(j)(1) through (4) have been
determined to unduly constrain the non-AFA trawl C/Ps in 2010 and 2011
potentially leading to widespread noncompliance with the GRS.
[[Page 78176]]
Enforcing the GRS in 2010 and 2011 as currently written is
likely to result in an unanticipated and significant increase in
enforcement costs. The strong likelihood that a large portion of
vessels will be unable to comply with the 2010 and 2011 GRS percentages
presents a serious management and enforcement problem.
Recent recognition that the 2010 and 2011 GRS percentages
could disrupt or impede participation of some vessels in Amendment 80
cooperatives erodes overall policy and management objectives for the
Amendment 80 catch share program.
Exempting participants from the GRS before the end of 2010
and prior to the 2011 fishing year provides immediate benefits from the
costs identified above that outweigh the value of the deliberative
notice-and-comment rulemaking process. In addition, notice-and-comment
rulemaking would not relieve restrictions with sufficient time to
offset the potential costs of compliance in 2010. The agency has
determined that the GRS regulations are currently unacceptable, and
non-AFA trawl C/Ps and Amendment 80 cooperatives must be exempted as
soon as possible.
Although this emergency rule exempts non-AFA trawl C/Ps from the
2010 and 2011 GRS standards, non-AFA trawl C/Ps will continue to
participate in Amendment 80 cooperatives and associated civil contract
agreements to maintain discard rates that are consistent with Council
intent and the Magnuson-Stevens Act requirement that each fishery
management plan and the implementing regulations be consistent with the
national standards for fishery conservation and management, including
National Standard 9 which requires regulations to minimize bycatch to
the extent practicable. The circumstances that justified the increasing
constraint on fishing operations to increase groundfish retention have
changed, and the regulatory constraint and associated GRS standards
established for the 2010 and 2011 fishing years no longer achieve the
goals that led to their establishment under Amendments 79 and 80.
Therefore, exempting the Amendment 80 sector from the current
constraints should relieve an unnecessary and unanticipated burden,
eliminate unanticipated and significant compliance costs and
enforcement costs, and enhance resource management and conservation
through ongoing commitments by the Amendment 80 sector to continue to
pursue cooperative agreements and civil contracts to maintain recent
improvements in groundfish retention rates.
Classification
The Assistant Administrator for Fisheries, NOAA, has determined
that this emergency rule is consistent with the national standards and
other provisions of the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws. The rule may be extended for
a period of not more than 186 days as described under section
305(c)(3)(B) of the Magnuson-Stevens Fishery Conservation Management
Act.
The Assistant Administrator for Fisheries, NOAA, finds good cause
pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the
opportunity for public comment because it would be impracticable and
contrary to the public interest. This action would allow the GRS
restriction to be relieved before the end of 2010, and prior to the
2011 fishing year, to address unforeseen and unnecessary compliance
costs to the non-AFA trawl C/Ps, address enforcement and prosecution
concerns associated with unattainable GRS standards as calculated under
existing regulations, and provide for enhanced flexibility of the
Amendment 80 sector to engage in an ongoing and more flexible approach
for meeting Council objectives to minimize bycatch in this fleet. After
NMFS discovered the unforeseen compliance and enforcement costs and the
enforcement and prosecution concerns, it determined that maintaining
the existing GRS percentages for 2010 and 2011 is neither warranted nor
achievable. This action would address these issues by exempting non-AFA
trawl C/Ps and Amendment 80 cooperatives from the minimum GRS
requirements at Sec. 679.27(j)(1) through (4) before the end of the
2010 fishing year and prior to the start of the 2011 fishing year, and
will enable the Amendment 80 sector to engage in ongoing civil contract
agreements addressing groundfish discard rates and associated reports
to the Council on its progress toward minimizing discard.
Without the exemption implemented by this rule, regulatory
compliance with the GRS may not be possible for the Amendment 80 fleet
and may result in noncompliance rates that were unanticipated with this
program. Maintaining the regulations as currently written for non-AFA
trawl C/Ps for 2010 and into 2011 would result in unavoidable
noncompliance with the GRS regulations by some fishery participants,
increased compliance costs by industry participants, and unwarranted
enforcement and prosecution costs to NMFS.
NMFS was not able to implement this action earlier as NMFS was not
fully aware of the enforcement and prosecution concerns and additional
compliance and enforcement costs with the GRS until shortly before the
June 2010 Council meeting. After the Council recommended this emergency
rule, NMFS and OLE required additional time to assess and substantiate
the problems identified by the Council and the Amendment 80 sector
representatives. NMFS has completed this process and is now
implementing the exemption through this final rule to meet the
objectives of this action. This emergency rule has broad support from
the Council and the affected industry.
For the reasons above, the Assistant Administrator for Fisheries
finds good cause under 5 U.S.C. 553(d)(1) to waive the 30-day delay in
effectiveness provision of the Administrative Procedure Act.
This emergency rule has been determined to be not significant for
purposes of Executive Order 12866. The RIR prepared for this action is
available from NMFS (see ADDRESSES).
This emergency rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule is not subject to the requirement to
provide prior notice and opportunity for public comment pursuant to 5
U.S.C. 553 or any other law.
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447.
Dated: December 9, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2010-31531 Filed 12-14-10; 8:45 am]
BILLING CODE 3510-22-P