Fisheries of the Exclusive Economic Zone off Alaska; Maximum Retainable Amounts for Non-American Fisheries Act Trawl Catcher/Processors, 65503-65507 [E9-29475]

Download as PDF Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Proposed Rules beginning of the following fishing year, to maintain the SWG commercial quota for that following year at the level of the prior year’s quota. The applicable commercial ACLs for SWG, in gutted weight, are 7.99 million lb (3.62 million kg) for 2010, and 8.04 million lb (3.65 million kg) for 2011 and subsequent fishing years. * * * * * (4) * * * (i) Commercial fishery. If gag commercial landings exceed the applicable ACL as specified in this paragraph (a)(4)(i), the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to maintain the gag commercial quota for that following year at the level of the prior year’s quota. The applicable commercial ACLs for gag, in gutted weight, are 1.71 million lb (0.78 million kg) for 2010, and 1.76 million lb (0.80 million kg) for 2011 and subsequent fishing years. * * * * * (5) * * * (i) Commercial fishery. If red grouper commercial landings exceed the ACL, 5.87 million lb (2.66 million kg) gutted weight, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to maintain the red grouper commercial quota for that following year at the level of the prior year’s quota. * * * * * [FR Doc. E9–29478 Filed 12–9–09; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070718366–7372–01] RIN 0648–AV32 mstockstill on DSKH9S0YB1PROD with PROPOSALS Fisheries of the Exclusive Economic Zone off Alaska; Maximum Retainable Amounts for Non-American Fisheries Act Trawl Catcher/Processors AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; withdrawal. SUMMARY: NMFS withdraws the proposed rule to revise accounting regulations for maximum retainable amounts of selected groundfish species caught by trawl catcher/processors that VerDate Nov<24>2008 17:17 Dec 09, 2009 Jkt 220001 are not eligible under the American Fisheries Act to participate in directed fishing for pollock (February 13, 2009). Thus, the current maximum retainable amounts accounting regulations remain in effect for the following species: yellowfin sole, rock sole, flathead sole, ‘‘other flatfish,’’ arrowtooth flounder, Pacific cod, and Atka mackerel in the Bering Sea and Aleutian Islands management area and for Pacific ocean perch in the Aleutian Islands. FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907–586–7442 SUPPLEMENTARY INFORMATION: Background NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands Management Area (BSAI) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Area (FMP), which was prepared by the North Pacific Fishery Management Council (Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. 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. Maximum retainable amounts (MRAs) assist in limiting catch of a species within its annual total allowable catch (TAC). Once the TAC for a species is reached, retention of that species becomes prohibited and all catch of that species must be discarded. NMFS closes a species to directed fishing before the entire TAC is taken to leave sufficient amounts of the TAC available for incidental catch. The amount of the TAC remaining available for incidental catch is managed by a species-specific MRA. The MRA is the maximum round weight of a species closed to directed fishing that may be retained onboard a vessel. MRAs are calculated as a percentage of the weight of catch of each species open to directed fishing (the basis species) that is retained onboard the vessel. If the MRA for a species is 35 percent, then the round weight of the retained incidental species must be no more than 35 percent of the round weight of basis species. Directed fishing is defined in 50 CFR part 679 as ‘‘any fishing activity that results in the retention of an amount of a species or species group onboard a vessel that is greater than the MRA for that species or species group.’’ Table 11 to 50 CFR part 679 lists each incidental catch and basis species and the MRA of each incidental PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 65503 catch species as a percentage of each basis species. Current regulations at § 679.20(e) require, with one exception for pollock, that the MRAs apply at any time during a fishing trip. This MRA accounting period is known as ‘‘instantaneous,’’ because the MRA may not be exceeded at any point in time during the fishing trip. The exception to this requirement, implemented in 2004 to reduce regulatory discards of pollock, allows the MRA for pollock retained by nonAmerican Fisheries Act (AFA) vessels to apply at the end of each offload rather than at any time during the trip. Regulatory discards of a species occur when regulations prohibit retention of some portion of the catch for a species that is closed to directed fishing. The amount and rate of groundfish discards resulting from the non-AFA trawl catcher/processor (C/P) sector have been a continuing issue with the Council. These vessels have among the highest groundfish discard (and lowest retention) amounts and rates compared with other processing sectors participating in the BSAI groundfish fisheries. At the October 2005 Council meeting, the non-AFA trawl C/P sector proposed a way to further reduce its regulatory discards. Sector representatives noted that substantial portions of groundfish discard in the BSAI are regulatory discards. They testified that increasing the MRA accounting and calculation interval from ‘‘instantaneous’’ to a onetime calculation at the time of offload would allow more time to accumulate species open to directed fishing to use as a basis for the MRA, i.e., for retaining catch of species closed to directed fishing. The sector predicted that additional time to accumulate basis species would reduce the amount of regulatory discards, particularly in situations when relatively high rates of incidentally caught species were taken early in a fishing trip. The Council took the sector’s proposal under consideration because of the multi-species nature of the sector’s fisheries and its longstanding difficulties in reducing discards. The action was also intended to provide an opportunity for non-AFA trawl C/Ps to minimize bycatch and so would be consistent with National Standard 9 of the Magnuson Stevens Act. National Standard 9 requires that conservation and management measures minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. Although the Council’s action provided relief from the ‘‘instantaneous’’ accounting interval, the E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSKH9S0YB1PROD with PROPOSALS 65504 Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Proposed Rules Council determined that a relaxed interval would increase incentives to harvest incidental catch in Steller sea lion protection areas. To address this problem, the Council decided that a new fishing trip would begin or end any time a non-AFA trawl C/P would enter or leave a Steller sea lion protection area that was closed to directed fishing for Atka mackerel or Pacific cod. Currently, regulations provide that a new fishing trip is triggered when a vessel enters or exits an area where a different directed fishing prohibition applies, including Steller sea lion protection areas. However, when directed fishing for Pacific cod or Atka mackerel is closed both inside and outside a Steller sea lion protection area, entering or exiting the Steller sea lion protection area does not trigger the start of a new fishing trip because the directed fishing prohibitions are the same on either side of the Steller sea lion protection area. This allows vessels to retain Pacific cod or Atka mackerel caught inside a Steller sea lion protection area using target species (basis species) retained from outside the Steller sea lion protection areas. The Council’s action to require that a new fishing trip start each time a vessel enters or leaves a Steller sea lion protection area, regardless of the fishery closures in effect outside the Steller sea lion protection areas, would limit the potential to top-off and target Pacific cod or Atka mackerel inside the protection areas. The new fishing trip trigger also would facilitate NMFS’ monitoring MRA compliance inside the Steller sea lion protection areas (at the end of the trip for some species and at any point in time for other species). In response to the Council’s 2006 action, NMFS published a proposed rule (74 FR 7209, February 13, 2009). A detailed description of the proposed changes to MRA accounting is included in the proposed rule. To provide the non-AFA trawl C/P sector additional flexibility to increase retention and decrease regulatory discards of certain groundfish species, NMFS proposed to change the MRA calculation timing from ‘‘instantaneous’’ to instead occur at the end of a fishing trip. Consistent with the Council motion, instantaneous MRA accounting would continue to apply inside Steller sea lion protection areas. NMFS proposed to revise the definition of a fishing trip at § 679.2 to require that a new fishing trip would start or end when a non-AFA trawl C/P entered or exited a Steller sea lion protection area that was closed to directed fishing for Pacific cod or Atka mackerel. A key element of the proposed rule would have established how MRAs VerDate Nov<24>2008 17:17 Dec 09, 2009 Jkt 220001 would be applied to Atka mackerel and Pacific cod in the BSAI. The proposed rule also would have clarified that the location of Atka mackerel and Pacific cod retained catch could impact MRA accounting requirements, depending upon whether these species were retained inside or outside a designated Steller sea lion protection area. For example, if a non-AFA trawl C/P completed one fishing trip inside a Steller sea lion protection area and a second fishing trip outside a Steller sea lion protection area, two different MRA accounting intervals would have applied to retention of Atka mackerel, as long as a single haul did not occur on both sides of a Steller sea lion protection area. For a non-AFA trawl C/ P in an Amendment 80 cooperative, if Atka mackerel were closed to directed fishing both inside and outside the Steller sea lion protection area, MRAs would have applied at any time (i.e., ‘‘instantaneously’’) during that fishing trip inside the Steller sea lion protection area, and MRAs would not apply outside the Steller sea lion protection area. For a non-AFA trawl C/P that was not in an Amendment 80 cooperative, if Atka mackerel were closed to directed fishing both inside and outside the Steller sea lion protection area, MRAs also would have applied at any time during that fishing trip inside the Steller sea lion protection area, and would have applied at the end of a fishing trip outside the Steller sea lion protection area. Since the Council recommended this action, two significant programs (Amendment 79 and Amendment 80) have been implemented by the Secretary to improve utilization and retention of groundfish caught by the non-AFA trawl C/P sector in the BSAI. Amendment 79 (71 FR 17362, April 6, 2006) implemented the groundfish retention standard (GRS), requiring all vessels in this sector that are greater than or equal to 125 ft. (38.1 m) to comply with a minimum annual percent of total groundfish caught. The GRS rate for 2009 requires that vessels retain 75 percent of all groundfish caught. The GRS increase from the baseline of 65 percent in 2008 to the current level has been effective in increasing this sector’s retained catch of groundfish. The GRS requires this sector to continue to increase the percentage of retained catch of groundfish to 85 percent by 2011. The Amendment 80 cooperative program (72 FR 52668, September 14, 2007) extended the GRS to all vessels in the non-AFA trawl C/P sector, regardless of length, and developed a cooperative structure for the sector that is intended to encourage additional PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 retention and utilization of groundfish. By extending the scope of the GRS to smaller vessels in the sector and by establishing a limited access permit program (LAPP) program authorizing annual groundfish allocations to the sector, Amendment 80 was intended to encourage fishing practices that would lower groundfish discard rates. Because the direct groundfish allocations of species under Amendment 80 included five of the eight included in this MRA accounting proposed rule, many of these important species no longer are closed to directed fishing, thereby negating some of the potential impacts of this proposed action. The species allocated by Amendment 80 to this sector are yellowfin sole, flathead sole, rock sole, Atka mackerel and Pacific cod. Response to Comments The proposed rule was published in the Federal Register for a 30–day public review and comment period. A total of five written submissions were received. Four of the comment submissions were opposed to revising MRA accounting for non-AFA trawl C/Ps in the BSAI, no comments were in favor, and one comment addressed issues not within the scope of the proposed rule. Commenters included two representatives of the non-AFA trawl C/ P sector, representing all but one of the 21 vessels in that sector, and the general public. Comment 1: The costs of the action to the non-AFA trawl C/P sector would exceed the benefits. The proposed regulation to trigger a new fishing trip any time a vessel enters or exits a Steller sea lion could reduce the amount of valuable incidental catch, such as Atka mackerel and Pacific cod, that may be retained from inside the Steller sea lion protection areas when compared to retention allowed under current regulations. The potential reduction in the value of retained incidental catch as a result of the new fishing trip trigger likely would exceed any increase in the value of returned incidental catch as a result of the longer MRA accounting period. Response: The proposed action relied on previous industry testimony indicating this action would increase the value of groundfish catch to the nonAFA trawl C/P sector. Now, representatives for this sector assert in their comments that this is not the case because the proposed rule requires instantaneous accounting with an additional fishing trip trigger for a new logbook entry to accurately account for MRAs inside Steller sea lion protection areas. NMFS’ response to Comment 6 explains that the additional fishing trip E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSKH9S0YB1PROD with PROPOSALS Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Proposed Rules trigger and logbook entry are provisions necessary to support the action, as they allow for accurate estimates of the amount of Atka mackerel and Pacific cod retained in Steller sea lion protection areas. NMFS has no data or information other than these public comments from members of the nonAFA trawl C/P sector to conclude that the costs of the proposed trip trigger differ from those suggested in public comment. Those who submitted public comments on this issue represent directly or indirectly all but one of the vessels in the non-AFA trawl C/P sector. Thus, NMFS believes that the concerns expressed in these comments are representative of the overall interests of the affected sector. No contrary information or comment was received from any other sector members. Comment 2: The proposed measures will not improve retention of groundfish and may increase regulatory discards of some groundfish species. Instantaneous MRA accounting will reduce the amount of Atka mackerel and Pacific cod that can be retained from catch inside the Steller sea lion protection areas. If a non-AFA trawl C/P operator completed a trawl tow where the amount of Atka mackerel caught in the Steller sea lion protection area exceeded the available basis species inside the Steller sea lion protection area, the amount of Atka mackerel exceeding the MRA percent for an amount of basis species must be discarded. Under the current regulation, if the same operator preferred to retain Atka mackerel caught inside a Steller sea lion protection area, it would be possible for the operator to continue to fish outside this area, to catch sufficient amounts of basis species to stay at or under the Atka mackerel MRA. Response: One of the assumptions supporting the proposed rule was that this action would provide tools for reducing regulatory discards. Consistent with the Council action, NMFS determined that the proposed rule must include a trip trigger for vessels entering or exiting Steller sea lion trip protection areas (see response to Comment 6). Comments from the non-AFA trawl C/ P sector support a determination that the new trip trigger would reduce the sector’s opportunity to retain groundfish vis-a-vis the MRA provisions. Thus, this action is unlikely to achieve the objectives intended by the Council and identified as the purpose and need statement for the proposed rule. NMFS does not have any data or information to confirm a different outcome than the commenter suggests, has no reason to doubt the accuracy of this public comment, and assumes that it is correct. VerDate Nov<24>2008 17:17 Dec 09, 2009 Jkt 220001 Comment 3: This regulation is unnecessary because other more effective means of reducing regulatory discards exist. For example, one tool in 50 CFR 679.27 for improving groundfish retention for non-AFA trawl C/Ps is the Groundfish Retention Standard (GRS), and a second tool is the fishing cooperative that many of these vessels joined under Amendment 80. These tools are more effective in improving the sector’s retention of groundfish than the expanded MRA accounting period developed in this proposed rule. Response: NMFS agrees that the GRS is likely to be a more effective tool for reducing regulatory discards in the nonAFA trawl C/P sector compared with the tools provided by this proposed rule. Since the time of Council action, the GRS and Amendment 80 allocations and cooperative formation programs have been instituted to facilitate retention and reduce discards. The GRS sets specific retention requirements for groundfish, caught both as targets and incidentally, that increase annually from 65 percent in 2009 to 85 percent by 2011. It is likely that the GRS will compel members of this sector to increase groundfish retention until the maximum GRS is reached. NMFS does not have sufficient data at this time to determine if the cooperative formed under Amendment 80 has increased groundfish retention because it has only been in operation for less than two years. Comment 4: The proposed new fishing trip trigger in the proposed rule would cause additional confusion for tracking compliance with MRAs for the non-AFA trawl C/P sector. Under the proposed rule a vessel operator would need to comply with additional recordkeeping by filling out a new logsheet page each time the vessel entered or exited the Steller sea lion protection area. That operator would also need to document for NOAA Office for Law Enforcement that he has retained the necessary basis species from within a Steller sea lion protection area to match an amount of Atka mackerel or Pacific cod caught in a Steller sea lion protection area. These proposed recordkeeping provisions would require additional tracking of retained catch for non-AFA trawl C/P vessels as they fish through areas that they do not currently track, and increase the probability of unintentional MRA violations. Response: NMFS is not able to confirm if the additional trip trigger for new logbook entries described in this proposed rule is more burdensome or confusing to MRA accounting for vessels in the non-AFA trawl C/P sector PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 65505 compared with the current conditions that trigger the start of a fishing trip. However, the analysis for the proposed rule does state that non-AFA C/P vessel operators would be required to carry out additional recordkeeping and tracking of MRAs. Thus, it is possible that this additional recordkeeping could increase overall complexity and reporting costs of MRA accounting. For example, MRA accounting would have become more complex because the proposed rule applied multiple accounting periods by specific area and groundfish species. The additional recordkeeping was proposed as the least burdensome approach NMFS could implement to assist non-AFA trawl C/Ps in tracking MRAs, as they would only be required to fill out a new logsheet page each time a vessel entered or exited a Steller sea lion protection area. NMFS knows of no alternative recordkeeping method that would achieve the tracking requirements for the proposed action while being less burdensome. Comment 5: The non-AFA trawl C/P sector was not aware of the consequences of the trip trigger at the time the Council recommended this regulatory amendment. When issues began to be raised to the Council during the development of the proposed rule, the sector should have been afforded another opportunity to testify to the Council and express its support or lack thereof on the record. Response: NMFS acknowledges that at the time the Council concluded this action, it is possible that members of the non-AFA trawl C/P sector may not have fully understood the impacts of the additional trip trigger for vessels entering or exiting a Steller sea lion protection area. The SSL protection area trip trigger and logbook reporting requirement was not analyzed in the EA/RIR/IRFA used for the Council action. Further effects of the new fishing trip trigger were identified by NMFS and included in the EA/RIR/IRFA published with this proposed rule. Consequently, the action’s impacts on non-AFA trawl C/P sector members may not have been well understood until publication of the proposed rule and accompanying EA/RIR/IRFA. Comment 6: The additional fishing trip trigger included in the proposed rule to prevent vessels from using Steller sea lion protection areas to top off on Atka mackerel and Pacific cod was not a logical component of the original action passed by the Council and is unnecessary. Response: NMFS disagrees with the commenter that the proposed new fishing trip trigger is not a logical component of the Council’s final action. E:\FR\FM\10DEP1.SGM 10DEP1 mstockstill on DSKH9S0YB1PROD with PROPOSALS 65506 Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Proposed Rules To comply with the proposed rules requirement to account for MRAs for Atka mackerel or Pacific cod at any time during a fishing trip inside BSAI Steller sea lion protection areas, vessel operators would have had to keep a discrete record of retained catch of these two species and the required basis species for computing MRAs when a vessel is inside a Steller sea lion protection area. To avoid exceeding retained catch limits at any time during a fishing trip inside Steller sea lion protection areas, the proposed rule required a non-AFA trawl C/P vessel operator to record and track the discrete amounts of retained basis species, Atka mackerel and Pacific cod, for any trawl tow or series of tows inside a Steller sea lion protection area. The new fishing trip trigger would have assured that those amounts of retained catch would remain discrete in the Steller sea lion protection area by requiring a new fishing trip to begin at any time a vessel entered or exited a Steller sea lion protection area. The additional trip trigger in the proposed rule would ensure that Atka mackerel caught in Steller sea lion protection areas would continue to be identified in NMFS’ catch accounting system as being caught in these areas as opposed to some adjacent location. Finally, without a new trip trigger for identifying the beginning and end point of records for retained catch, it would be difficult for a vessel operator to demonstrate this discrete record to NOAA Office for Law Enforcement. Comment 7: The commenter requests that if NMFS considers any additional fishing trip triggers, they be addressed under the process associated with future reviews of Steller sea lion recovery and not this MRA accounting proposed rule. Response: The Steller sea lion recovery process is separate from this action and not relevant to proposed revisions of MRA accounting. Currently, NMFS is in the process of reconsultation and preparation of an updated Biological Opinion evaluating the impacts of the Alaska groundfish fisheries on endangered and threatened species, primarily Steller sea lions. The Biological Opinion and recovery planning will address a broad range of issues relative to Steller sea lion protection and may or may not include additional consideration of revisions to the definition of a fishing trip or MRA accounting. Comment 8: If NMFS proceeds with a final rule to revise MRA accounting for the non-AFA trawl C/P sector, it should revise MRA accounting from offload to offload as currently allowed for pollock rather than at the end of a fishing trip. VerDate Nov<24>2008 17:17 Dec 09, 2009 Jkt 220001 Response: NMFS is withdrawing this proposed rule, and is not considering further rulemaking to revise MRA accounting to any interval at this time. However, the proposed rule explains why the alternatives for extending MRA accounting to the time of offload could result in significant monitoring and enforcement issues. Comment 9: The commenter requests information on whether the Pribilof Habitat Protection Zone plays into NMFS’ planning process and asks if NMFS has studied the efficacy of the Pribilof Habitat Protection Zone. Response: The Pribilof Habitat Protection Zone is closed to trawling at all times. This proposed MRA rule only applies where trawling is allowed. Therefore, this proposed rule would have had no impact on the Pribilof Habitat Protection Zone. Comment 10: No fishing should be allowed in the BSAI for groundfish. This agency allows all marine mammals to starve so that commercial fishing profiteers can make a million dollars in a couple of days at sea. Response: This comment is not relevant to the proposed rule being considered because modifying season length or the allowable catch for any of the species in the proposed rule is outside the scope of this action. Total allowable catch amounts for groundfish species in the BSAI are established through the annual specifications process and remain the limit on total catch. The proposed rule did not adjust these amounts and was intended to reduce regulatory discards and improve retention of groundfish species already caught. It would have had no impact on the duration of season lengths or total allowable catch. Justification for Withdrawal NMFS is withdrawing this proposed rule because, as pointed out in public comment, representatives of the nonAFA trawl C/P sector who originally requested this action have requested that NMFS withdraw the proposed rule. These representatives have provided information demonstrating that the proposed rule will no longer assist the sector in increasing the value of groundfish catches, and it would not provide the intended flexibility to increase retention of groundfish in the BSAI. This action was proposed to assist in meeting objectives of National Standard 9 by providing an additional tool for reducing groundfish bycatch to the extent practicable. Comments provided by the non-AFA trawl C/P sector support a conclusion that the proposed rule may not be effective in reducing PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 regulatory discards because of additional costs for complying with a new trip trigger. National Standard 9 states, ‘‘Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided or minimize the mortality of such bycatch.’’ The proposed action, therefore, is unlikely to achieve the bycatch reduction objectives of National Standard 9 if vessel operators in this sector will not make use of the additional flexibility provided for reducing regulatory discards. Members of this sector state that they will not make use of the additional MRA accounting interval because all members of the single cooperative formed under Amendment 80 have an amendment 80 allocation for most of their important groundfish species, including Atka mackerel, Pacific cod, yellowfin sole, flathead sole, rock sole. Thus, fisheries for these species are never closed for directed fishing to the majority of vessels in this sector. Arrowtooth flounder also is included in the proposed action, but this is a minor target species for the non-AFA trawl C/ P sector. If implemented as described in the proposed rule, the proposed revisions to MRA accounting also may be inconsistent with National Standard 7. National Standard 7 states, ‘‘Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.’’ The non-AFA trawl C/P sector’s comments state that the cost of the proposed action would exceed the benefits to the sector, because vessel operators would find it more difficult to retain Atka mackerel and Pacific cod inside Steller sea lion protection areas. Retaining Atka mackerel and Pacific cod inside Steller sea lion protection areas could be made more difficult because of insufficient amounts of basis species available inside Steller sea lion protection areas for matching with incidental catch of Pacific cod or Atka mackerel. That could have the effect of requiring these operators to discard these valuable species, compared with current regulations that allow these vessels to catch basis species outside Steller sea lion protection areas. Prior to these public comments, NMFS was not aware of and was not informed by this sector that the additional trip trigger would result in costs of the magnitude that could offset the value of a longer MRA accounting interval for species caught by non-AFA trawl C/Ps. Thus, the record for this action does not show how overall benefits outweigh the costs, E:\FR\FM\10DEP1.SGM 10DEP1 Federal Register / Vol. 74, No. 236 / Thursday, December 10, 2009 / Proposed Rules mstockstill on DSKH9S0YB1PROD with PROPOSALS and it could result in significant adverse economic impacts that are inconsistent with National Standard 7. Following the closing of the public comment period for the proposed rule and pursuant to MSA Sec. 304(b)(3), NMFS consulted with the Council at the April 2009, meeting, and informed the Council that the industry was now opposed to the MRA accounting revision. NMFS also informed that Council that it believed the appropriate action was to withdraw the rule. VerDate Nov<24>2008 17:17 Dec 09, 2009 Jkt 220001 In conclusion, NMFS is withdrawing this proposed rule because it is inconsistent with the intent of the Council motion taken in 2006 and 2007 for the following reasons: it is likely to be inconsistent with National Standards 7 and 9; it is unlikely to achieve the Council’s objective to improve groundfish retention and reduce regulatory discards; other regulatory tools such as the GRS, Amendment 80 sector allocations, and the sector fishing cooperatives, are likely to be more PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 65507 effective for improving groundfish retention; it is likely to increase costs to the non-AFA trawl C/P sector; and it is likely to impose implementation costs on NMFS without benefit to the nonAFA trawl C/P sector or to the Nation. Dated: December 4, 2009. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E9–29475 Filed 12–9–09; 8:45 am] BILLING CODE 3510–22–S E:\FR\FM\10DEP1.SGM 10DEP1

Agencies

[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Proposed Rules]
[Pages 65503-65507]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29475]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070718366-7372-01]
RIN 0648-AV32


Fisheries of the Exclusive Economic Zone off Alaska; Maximum 
Retainable Amounts for Non-American Fisheries Act Trawl Catcher/
Processors

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

ACTION:  Proposed rule; withdrawal.

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SUMMARY:  NMFS withdraws the proposed rule to revise accounting 
regulations for maximum retainable amounts of selected groundfish 
species caught by trawl catcher/processors that are not eligible under 
the American Fisheries Act to participate in directed fishing for 
pollock (February 13, 2009). Thus, the current maximum retainable 
amounts accounting regulations remain in effect for the following 
species: yellowfin sole, rock sole, flathead sole, ``other flatfish,'' 
arrowtooth flounder, Pacific cod, and Atka mackerel in the Bering Sea 
and Aleutian Islands management area and for Pacific ocean perch in the 
Aleutian Islands.

FOR FURTHER INFORMATION CONTACT: Jeff Hartman, 907-586-7442

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the groundfish fisheries in the exclusive economic 
zone of the Bering Sea and Aleutian Islands Management Area (BSAI) 
under the Fishery Management Plan for Groundfish of the Bering Sea and 
Aleutian Islands Area (FMP), which was prepared by the North Pacific 
Fishery Management Council (Council) pursuant to the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 
U.S.C. 1801 et seq. 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.
    Maximum retainable amounts (MRAs) assist in limiting catch of a 
species within its annual total allowable catch (TAC). Once the TAC for 
a species is reached, retention of that species becomes prohibited and 
all catch of that species must be discarded. NMFS closes a species to 
directed fishing before the entire TAC is taken to leave sufficient 
amounts of the TAC available for incidental catch. The amount of the 
TAC remaining available for incidental catch is managed by a species-
specific MRA. The MRA is the maximum round weight of a species closed 
to directed fishing that may be retained onboard a vessel. MRAs are 
calculated as a percentage of the weight of catch of each species open 
to directed fishing (the basis species) that is retained onboard the 
vessel. If the MRA for a species is 35 percent, then the round weight 
of the retained incidental species must be no more than 35 percent of 
the round weight of basis species. Directed fishing is defined in 50 
CFR part 679 as ``any fishing activity that results in the retention of 
an amount of a species or species group onboard a vessel that is 
greater than the MRA for that species or species group.'' Table 11 to 
50 CFR part 679 lists each incidental catch and basis species and the 
MRA of each incidental catch species as a percentage of each basis 
species.
    Current regulations at Sec.  679.20(e) require, with one exception 
for pollock, that the MRAs apply at any time during a fishing trip. 
This MRA accounting period is known as ``instantaneous,'' because the 
MRA may not be exceeded at any point in time during the fishing trip. 
The exception to this requirement, implemented in 2004 to reduce 
regulatory discards of pollock, allows the MRA for pollock retained by 
non-American Fisheries Act (AFA) vessels to apply at the end of each 
offload rather than at any time during the trip. Regulatory discards of 
a species occur when regulations prohibit retention of some portion of 
the catch for a species that is closed to directed fishing.
    The amount and rate of groundfish discards resulting from the non-
AFA trawl catcher/processor (C/P) sector have been a continuing issue 
with the Council. These vessels have among the highest groundfish 
discard (and lowest retention) amounts and rates compared with other 
processing sectors participating in the BSAI groundfish fisheries.
    At the October 2005 Council meeting, the non-AFA trawl C/P sector 
proposed a way to further reduce its regulatory discards. Sector 
representatives noted that substantial portions of groundfish discard 
in the BSAI are regulatory discards. They testified that increasing the 
MRA accounting and calculation interval from ``instantaneous'' to a 
one-time calculation at the time of offload would allow more time to 
accumulate species open to directed fishing to use as a basis for the 
MRA, i.e., for retaining catch of species closed to directed fishing. 
The sector predicted that additional time to accumulate basis species 
would reduce the amount of regulatory discards, particularly in 
situations when relatively high rates of incidentally caught species 
were taken early in a fishing trip.
    The Council took the sector's proposal under consideration because 
of the multi-species nature of the sector's fisheries and its 
longstanding difficulties in reducing discards. The action was also 
intended to provide an opportunity for non-AFA trawl C/Ps to minimize 
bycatch and so would be consistent with National Standard 9 of the 
Magnuson Stevens Act. National Standard 9 requires that conservation 
and management measures minimize bycatch and, to the extent bycatch 
cannot be avoided, minimize the mortality of such bycatch.
     Although the Council's action provided relief from the 
``instantaneous'' accounting interval, the

[[Page 65504]]

Council determined that a relaxed interval would increase incentives to 
harvest incidental catch in Steller sea lion protection areas. To 
address this problem, the Council decided that a new fishing trip would 
begin or end any time a non-AFA trawl C/P would enter or leave a 
Steller sea lion protection area that was closed to directed fishing 
for Atka mackerel or Pacific cod. Currently, regulations provide that a 
new fishing trip is triggered when a vessel enters or exits an area 
where a different directed fishing prohibition applies, including 
Steller sea lion protection areas. However, when directed fishing for 
Pacific cod or Atka mackerel is closed both inside and outside a 
Steller sea lion protection area, entering or exiting the Steller sea 
lion protection area does not trigger the start of a new fishing trip 
because the directed fishing prohibitions are the same on either side 
of the Steller sea lion protection area. This allows vessels to retain 
Pacific cod or Atka mackerel caught inside a Steller sea lion 
protection area using target species (basis species) retained from 
outside the Steller sea lion protection areas. The Council's action to 
require that a new fishing trip start each time a vessel enters or 
leaves a Steller sea lion protection area, regardless of the fishery 
closures in effect outside the Steller sea lion protection areas, would 
limit the potential to top-off and target Pacific cod or Atka mackerel 
inside the protection areas. The new fishing trip trigger also would 
facilitate NMFS' monitoring MRA compliance inside the Steller sea lion 
protection areas (at the end of the trip for some species and at any 
point in time for other species). In response to the Council's 2006 
action, NMFS published a proposed rule (74 FR 7209, February 13, 2009). 
A detailed description of the proposed changes to MRA accounting is 
included in the proposed rule. To provide the non-AFA trawl C/P sector 
additional flexibility to increase retention and decrease regulatory 
discards of certain groundfish species, NMFS proposed to change the MRA 
calculation timing from ``instantaneous'' to instead occur at the end 
of a fishing trip. Consistent with the Council motion, instantaneous 
MRA accounting would continue to apply inside Steller sea lion 
protection areas. NMFS proposed to revise the definition of a fishing 
trip at Sec.  679.2 to require that a new fishing trip would start or 
end when a non-AFA trawl C/P entered or exited a Steller sea lion 
protection area that was closed to directed fishing for Pacific cod or 
Atka mackerel.
    A key element of the proposed rule would have established how MRAs 
would be applied to Atka mackerel and Pacific cod in the BSAI. The 
proposed rule also would have clarified that the location of Atka 
mackerel and Pacific cod retained catch could impact MRA accounting 
requirements, depending upon whether these species were retained inside 
or outside a designated Steller sea lion protection area. For example, 
if a non-AFA trawl C/P completed one fishing trip inside a Steller sea 
lion protection area and a second fishing trip outside a Steller sea 
lion protection area, two different MRA accounting intervals would have 
applied to retention of Atka mackerel, as long as a single haul did not 
occur on both sides of a Steller sea lion protection area. For a non-
AFA trawl C/P in an Amendment 80 cooperative, if Atka mackerel were 
closed to directed fishing both inside and outside the Steller sea lion 
protection area, MRAs would have applied at any time (i.e., 
``instantaneously'') during that fishing trip inside the Steller sea 
lion protection area, and MRAs would not apply outside the Steller sea 
lion protection area. For a non-AFA trawl C/P that was not in an 
Amendment 80 cooperative, if Atka mackerel were closed to directed 
fishing both inside and outside the Steller sea lion protection area, 
MRAs also would have applied at any time during that fishing trip 
inside the Steller sea lion protection area, and would have applied at 
the end of a fishing trip outside the Steller sea lion protection area.
    Since the Council recommended this action, two significant programs 
(Amendment 79 and Amendment 80) have been implemented by the Secretary 
to improve utilization and retention of groundfish caught by the non-
AFA trawl C/P sector in the BSAI. Amendment 79 (71 FR 17362, April 6, 
2006) implemented the groundfish retention standard (GRS), requiring 
all vessels in this sector that are greater than or equal to 125 ft. 
(38.1 m) to comply with a minimum annual percent of total groundfish 
caught. The GRS rate for 2009 requires that vessels retain 75 percent 
of all groundfish caught. The GRS increase from the baseline of 65 
percent in 2008 to the current level has been effective in increasing 
this sector's retained catch of groundfish. The GRS requires this 
sector to continue to increase the percentage of retained catch of 
groundfish to 85 percent by 2011.
    The Amendment 80 cooperative program (72 FR 52668, September 14, 
2007) extended the GRS to all vessels in the non-AFA trawl C/P sector, 
regardless of length, and developed a cooperative structure for the 
sector that is intended to encourage additional retention and 
utilization of groundfish. By extending the scope of the GRS to smaller 
vessels in the sector and by establishing a limited access permit 
program (LAPP) program authorizing annual groundfish allocations to the 
sector, Amendment 80 was intended to encourage fishing practices that 
would lower groundfish discard rates. Because the direct groundfish 
allocations of species under Amendment 80 included five of the eight 
included in this MRA accounting proposed rule, many of these important 
species no longer are closed to directed fishing, thereby negating some 
of the potential impacts of this proposed action. The species allocated 
by Amendment 80 to this sector are yellowfin sole, flathead sole, rock 
sole, Atka mackerel and Pacific cod.

Response to Comments

    The proposed rule was published in the Federal Register for a 30-
day public review and comment period. A total of five written 
submissions were received. Four of the comment submissions were opposed 
to revising MRA accounting for non-AFA trawl C/Ps in the BSAI, no 
comments were in favor, and one comment addressed issues not within the 
scope of the proposed rule. Commenters included two representatives of 
the non-AFA trawl C/P sector, representing all but one of the 21 
vessels in that sector, and the general public.
    Comment 1: The costs of the action to the non-AFA trawl C/P sector 
would exceed the benefits. The proposed regulation to trigger a new 
fishing trip any time a vessel enters or exits a Steller sea lion could 
reduce the amount of valuable incidental catch, such as Atka mackerel 
and Pacific cod, that may be retained from inside the Steller sea lion 
protection areas when compared to retention allowed under current 
regulations. The potential reduction in the value of retained 
incidental catch as a result of the new fishing trip trigger likely 
would exceed any increase in the value of returned incidental catch as 
a result of the longer MRA accounting period.
    Response: The proposed action relied on previous industry testimony 
indicating this action would increase the value of groundfish catch to 
the non-AFA trawl C/P sector. Now, representatives for this sector 
assert in their comments that this is not the case because the proposed 
rule requires instantaneous accounting with an additional fishing trip 
trigger for a new logbook entry to accurately account for MRAs inside 
Steller sea lion protection areas. NMFS' response to Comment 6 explains 
that the additional fishing trip

[[Page 65505]]

trigger and logbook entry are provisions necessary to support the 
action, as they allow for accurate estimates of the amount of Atka 
mackerel and Pacific cod retained in Steller sea lion protection areas. 
NMFS has no data or information other than these public comments from 
members of the non-AFA trawl C/P sector to conclude that the costs of 
the proposed trip trigger differ from those suggested in public 
comment. Those who submitted public comments on this issue represent 
directly or indirectly all but one of the vessels in the non-AFA trawl 
C/P sector. Thus, NMFS believes that the concerns expressed in these 
comments are representative of the overall interests of the affected 
sector. No contrary information or comment was received from any other 
sector members.
    Comment 2: The proposed measures will not improve retention of 
groundfish and may increase regulatory discards of some groundfish 
species. Instantaneous MRA accounting will reduce the amount of Atka 
mackerel and Pacific cod that can be retained from catch inside the 
Steller sea lion protection areas. If a non-AFA trawl C/P operator 
completed a trawl tow where the amount of Atka mackerel caught in the 
Steller sea lion protection area exceeded the available basis species 
inside the Steller sea lion protection area, the amount of Atka 
mackerel exceeding the MRA percent for an amount of basis species must 
be discarded. Under the current regulation, if the same operator 
preferred to retain Atka mackerel caught inside a Steller sea lion 
protection area, it would be possible for the operator to continue to 
fish outside this area, to catch sufficient amounts of basis species to 
stay at or under the Atka mackerel MRA.
    Response: One of the assumptions supporting the proposed rule was 
that this action would provide tools for reducing regulatory discards. 
Consistent with the Council action, NMFS determined that the proposed 
rule must include a trip trigger for vessels entering or exiting 
Steller sea lion trip protection areas (see response to Comment 6). 
Comments from the non-AFA trawl C/P sector support a determination that 
the new trip trigger would reduce the sector's opportunity to retain 
groundfish vis-a-vis the MRA provisions. Thus, this action is unlikely 
to achieve the objectives intended by the Council and identified as the 
purpose and need statement for the proposed rule. NMFS does not have 
any data or information to confirm a different outcome than the 
commenter suggests, has no reason to doubt the accuracy of this public 
comment, and assumes that it is correct.
    Comment 3: This regulation is unnecessary because other more 
effective means of reducing regulatory discards exist. For example, one 
tool in 50 CFR 679.27 for improving groundfish retention for non-AFA 
trawl C/Ps is the Groundfish Retention Standard (GRS), and a second 
tool is the fishing cooperative that many of these vessels joined under 
Amendment 80. These tools are more effective in improving the sector's 
retention of groundfish than the expanded MRA accounting period 
developed in this proposed rule.
    Response: NMFS agrees that the GRS is likely to be a more effective 
tool for reducing regulatory discards in the non-AFA trawl C/P sector 
compared with the tools provided by this proposed rule. Since the time 
of Council action, the GRS and Amendment 80 allocations and cooperative 
formation programs have been instituted to facilitate retention and 
reduce discards. The GRS sets specific retention requirements for 
groundfish, caught both as targets and incidentally, that increase 
annually from 65 percent in 2009 to 85 percent by 2011. It is likely 
that the GRS will compel members of this sector to increase groundfish 
retention until the maximum GRS is reached. NMFS does not have 
sufficient data at this time to determine if the cooperative formed 
under Amendment 80 has increased groundfish retention because it has 
only been in operation for less than two years.
    Comment 4: The proposed new fishing trip trigger in the proposed 
rule would cause additional confusion for tracking compliance with MRAs 
for the non-AFA trawl C/P sector. Under the proposed rule a vessel 
operator would need to comply with additional recordkeeping by filling 
out a new logsheet page each time the vessel entered or exited the 
Steller sea lion protection area. That operator would also need to 
document for NOAA Office for Law Enforcement that he has retained the 
necessary basis species from within a Steller sea lion protection area 
to match an amount of Atka mackerel or Pacific cod caught in a Steller 
sea lion protection area. These proposed recordkeeping provisions would 
require additional tracking of retained catch for non-AFA trawl C/P 
vessels as they fish through areas that they do not currently track, 
and increase the probability of unintentional MRA violations.
    Response: NMFS is not able to confirm if the additional trip 
trigger for new logbook entries described in this proposed rule is more 
burdensome or confusing to MRA accounting for vessels in the non-AFA 
trawl C/P sector compared with the current conditions that trigger the 
start of a fishing trip. However, the analysis for the proposed rule 
does state that non-AFA C/P vessel operators would be required to carry 
out additional recordkeeping and tracking of MRAs. Thus, it is possible 
that this additional recordkeeping could increase overall complexity 
and reporting costs of MRA accounting. For example, MRA accounting 
would have become more complex because the proposed rule applied 
multiple accounting periods by specific area and groundfish species. 
The additional recordkeeping was proposed as the least burdensome 
approach NMFS could implement to assist non-AFA trawl C/Ps in tracking 
MRAs, as they would only be required to fill out a new logsheet page 
each time a vessel entered or exited a Steller sea lion protection 
area. NMFS knows of no alternative recordkeeping method that would 
achieve the tracking requirements for the proposed action while being 
less burdensome.
    Comment 5: The non-AFA trawl C/P sector was not aware of the 
consequences of the trip trigger at the time the Council recommended 
this regulatory amendment. When issues began to be raised to the 
Council during the development of the proposed rule, the sector should 
have been afforded another opportunity to testify to the Council and 
express its support or lack thereof on the record.
    Response: NMFS acknowledges that at the time the Council concluded 
this action, it is possible that members of the non-AFA trawl C/P 
sector may not have fully understood the impacts of the additional trip 
trigger for vessels entering or exiting a Steller sea lion protection 
area. The SSL protection area trip trigger and logbook reporting 
requirement was not analyzed in the EA/RIR/IRFA used for the Council 
action. Further effects of the new fishing trip trigger were identified 
by NMFS and included in the EA/RIR/IRFA published with this proposed 
rule. Consequently, the action's impacts on non-AFA trawl C/P sector 
members may not have been well understood until publication of the 
proposed rule and accompanying EA/RIR/IRFA.
    Comment 6: The additional fishing trip trigger included in the 
proposed rule to prevent vessels from using Steller sea lion protection 
areas to top off on Atka mackerel and Pacific cod was not a logical 
component of the original action passed by the Council and is 
unnecessary.
    Response: NMFS disagrees with the commenter that the proposed new 
fishing trip trigger is not a logical component of the Council's final 
action.

[[Page 65506]]

To comply with the proposed rules requirement to account for MRAs for 
Atka mackerel or Pacific cod at any time during a fishing trip inside 
BSAI Steller sea lion protection areas, vessel operators would have had 
to keep a discrete record of retained catch of these two species and 
the required basis species for computing MRAs when a vessel is inside a 
Steller sea lion protection area. To avoid exceeding retained catch 
limits at any time during a fishing trip inside Steller sea lion 
protection areas, the proposed rule required a non-AFA trawl C/P vessel 
operator to record and track the discrete amounts of retained basis 
species, Atka mackerel and Pacific cod, for any trawl tow or series of 
tows inside a Steller sea lion protection area. The new fishing trip 
trigger would have assured that those amounts of retained catch would 
remain discrete in the Steller sea lion protection area by requiring a 
new fishing trip to begin at any time a vessel entered or exited a 
Steller sea lion protection area. The additional trip trigger in the 
proposed rule would ensure that Atka mackerel caught in Steller sea 
lion protection areas would continue to be identified in NMFS' catch 
accounting system as being caught in these areas as opposed to some 
adjacent location. Finally, without a new trip trigger for identifying 
the beginning and end point of records for retained catch, it would be 
difficult for a vessel operator to demonstrate this discrete record to 
NOAA Office for Law Enforcement.
    Comment 7: The commenter requests that if NMFS considers any 
additional fishing trip triggers, they be addressed under the process 
associated with future reviews of Steller sea lion recovery and not 
this MRA accounting proposed rule.
    Response: The Steller sea lion recovery process is separate from 
this action and not relevant to proposed revisions of MRA accounting. 
Currently, NMFS is in the process of re-consultation and preparation of 
an updated Biological Opinion evaluating the impacts of the Alaska 
groundfish fisheries on endangered and threatened species, primarily 
Steller sea lions. The Biological Opinion and recovery planning will 
address a broad range of issues relative to Steller sea lion protection 
and may or may not include additional consideration of revisions to the 
definition of a fishing trip or MRA accounting.
    Comment 8: If NMFS proceeds with a final rule to revise MRA 
accounting for the non-AFA trawl C/P sector, it should revise MRA 
accounting from offload to offload as currently allowed for pollock 
rather than at the end of a fishing trip.
    Response: NMFS is withdrawing this proposed rule, and is not 
considering further rulemaking to revise MRA accounting to any interval 
at this time. However, the proposed rule explains why the alternatives 
for extending MRA accounting to the time of offload could result in 
significant monitoring and enforcement issues.
    Comment 9: The commenter requests information on whether the 
Pribilof Habitat Protection Zone plays into NMFS' planning process and 
asks if NMFS has studied the efficacy of the Pribilof Habitat 
Protection Zone.
    Response: The Pribilof Habitat Protection Zone is closed to 
trawling at all times. This proposed MRA rule only applies where 
trawling is allowed. Therefore, this proposed rule would have had no 
impact on the Pribilof Habitat Protection Zone.
    Comment 10: No fishing should be allowed in the BSAI for 
groundfish. This agency allows all marine mammals to starve so that 
commercial fishing profiteers can make a million dollars in a couple of 
days at sea.
    Response: This comment is not relevant to the proposed rule being 
considered because modifying season length or the allowable catch for 
any of the species in the proposed rule is outside the scope of this 
action. Total allowable catch amounts for groundfish species in the 
BSAI are established through the annual specifications process and 
remain the limit on total catch. The proposed rule did not adjust these 
amounts and was intended to reduce regulatory discards and improve 
retention of groundfish species already caught. It would have had no 
impact on the duration of season lengths or total allowable catch.

Justification for Withdrawal

    NMFS is withdrawing this proposed rule because, as pointed out in 
public comment, representatives of the non-AFA trawl C/P sector who 
originally requested this action have requested that NMFS withdraw the 
proposed rule. These representatives have provided information 
demonstrating that the proposed rule will no longer assist the sector 
in increasing the value of groundfish catches, and it would not provide 
the intended flexibility to increase retention of groundfish in the 
BSAI.
    This action was proposed to assist in meeting objectives of 
National Standard 9 by providing an additional tool for reducing 
groundfish bycatch to the extent practicable. Comments provided by the 
non-AFA trawl C/P sector support a conclusion that the proposed rule 
may not be effective in reducing regulatory discards because of 
additional costs for complying with a new trip trigger. National 
Standard 9 states, ``Conservation and management measures shall, to the 
extent practicable, (A) minimize bycatch and (B) to the extent bycatch 
cannot be avoided or minimize the mortality of such bycatch.'' The 
proposed action, therefore, is unlikely to achieve the bycatch 
reduction objectives of National Standard 9 if vessel operators in this 
sector will not make use of the additional flexibility provided for 
reducing regulatory discards. Members of this sector state that they 
will not make use of the additional MRA accounting interval because all 
members of the single cooperative formed under Amendment 80 have an 
amendment 80 allocation for most of their important groundfish species, 
including Atka mackerel, Pacific cod, yellowfin sole, flathead sole, 
rock sole. Thus, fisheries for these species are never closed for 
directed fishing to the majority of vessels in this sector. Arrowtooth 
flounder also is included in the proposed action, but this is a minor 
target species for the non-AFA trawl C/P sector.
    If implemented as described in the proposed rule, the proposed 
revisions to MRA accounting also may be inconsistent with National 
Standard 7. National Standard 7 states, ``Conservation and management 
measures shall, where practicable, minimize costs and avoid unnecessary 
duplication.'' The non-AFA trawl C/P sector's comments state that the 
cost of the proposed action would exceed the benefits to the sector, 
because vessel operators would find it more difficult to retain Atka 
mackerel and Pacific cod inside Steller sea lion protection areas. 
Retaining Atka mackerel and Pacific cod inside Steller sea lion 
protection areas could be made more difficult because of insufficient 
amounts of basis species available inside Steller sea lion protection 
areas for matching with incidental catch of Pacific cod or Atka 
mackerel. That could have the effect of requiring these operators to 
discard these valuable species, compared with current regulations that 
allow these vessels to catch basis species outside Steller sea lion 
protection areas. Prior to these public comments, NMFS was not aware of 
and was not informed by this sector that the additional trip trigger 
would result in costs of the magnitude that could offset the value of a 
longer MRA accounting interval for species caught by non-AFA trawl C/
Ps. Thus, the record for this action does not show how overall benefits 
outweigh the costs,

[[Page 65507]]

and it could result in significant adverse economic impacts that are 
inconsistent with National Standard 7.
    Following the closing of the public comment period for the proposed 
rule and pursuant to MSA Sec. 304(b)(3), NMFS consulted with the 
Council at the April 2009, meeting, and informed the Council that the 
industry was now opposed to the MRA accounting revision. NMFS also 
informed that Council that it believed the appropriate action was to 
withdraw the rule.
    In conclusion, NMFS is withdrawing this proposed rule because it is 
inconsistent with the intent of the Council motion taken in 2006 and 
2007 for the following reasons: it is likely to be inconsistent with 
National Standards 7 and 9; it is unlikely to achieve the Council's 
objective to improve groundfish retention and reduce regulatory 
discards; other regulatory tools such as the GRS, Amendment 80 sector 
allocations, and the sector fishing cooperatives, are likely to be more 
effective for improving groundfish retention; it is likely to increase 
costs to the non-AFA trawl C/P sector; and it is likely to impose 
implementation costs on NMFS without benefit to the non-AFA trawl C/P 
sector or to the Nation.

    Dated: December 4, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-29475 Filed 12-9-09; 8:45 am]
BILLING CODE 3510-22-S