Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Retention Standard; Emergency Rule, 78172-78176 [2010-31531]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 240 (Wednesday, December 15, 2010)]
[Rules and Regulations]
[Pages 78172-78176]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31531]


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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.

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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 https://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 https://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 
https://www.regulations.gov or from the Alaska Region Web site at https://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 https://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
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                                                                                                                                            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, 
https://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