[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Rules and Regulations]
[Pages 31881-31883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13719]


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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 Extension

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

ACTION: Temporary rule; emergency action extension.

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SUMMARY: NMFS is exempting, through this emergency rule extension, 
trawl catcher/processor vessels (C/Ps) that are not specified in 
regulation as American Fisheries Act (AFA) vessels, and Amendment 80 
cooperatives from the groundfish retention standard (GRS) program 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 a 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 have proven far 
more complex, challenging, and potentially costly than anticipated by 
NMFS. This emergency rule extension is necessary to exempt non-AFA 
trawl C/Ps and Amendment 80 cooperatives from the minimum retention

[[Page 31882]]

requirements of the GRS program for the remainder 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 from June 13, 2011, through December 17, 2011.

ADDRESSES: Electronic copies of the Regulatory Impact Review (RIR) and 
the Categorical Exclusion prepared for this action may be obtained from 
http://www.regulations.gov or from the Alaska Region Web site at http://alaskafisheries.noaa.gov. The Environmental Assessment, RIR, and Final 
Regulatory Flexibility Analysis for Amendment 79 to the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area (FMP) and the Environmental Assessment, RIR, and Final 
Regulatory Flexibility Analysis for Amendment 80 to the FMP are 
available from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Seanbob Kelly, 907-586-7228.

SUPPLEMENTARY INFORMATION: Section 305(c) of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) provides 
authority for rulemaking to address an emergency. Under that section, a 
Regional Fishery Management Council may recommend emergency rulemaking, 
if it finds an emergency exists. At its June 2010 meeting, the North 
Pacific Fishery Management Council (Council) voted 10 to 1 to request 
that NMFS promulgate an emergency rule to exempt non-AFA trawl C/Ps and 
Amendment 80 cooperatives from the 2010 and 2011 GRS in the Bering Sea 
and Aleutian Islands management area (BSAI).
    On December 15, 2010, NMFS published an emergency action to exempt 
the non-AFA trawl C/Ps and Amendment 80 cooperatives from regulations 
implementing the GRS program at 50 CFR 679.27(j)(1) through (4), 
through June 13, 2011 (75 FR 78172). NMFS invited public comments until 
January 14, 2011. NMFS received four public comments from two unique 
persons during the public comment period for the emergency rule 
exempting non-AFA trawl C/Ps and Amendment 80 cooperatives from the 
minimum GRS established under Amendment 79. The comments are summarized 
and responded to below; however, this emergency rule extension makes no 
changes to the exemptions contained in the initial emergency action.
    This extension of the emergency rule exempting non-AFA trawl C/Ps 
and Amendment 80 cooperatives from regulations establishing the GRS 
minimum retention standards continues to remove all regulatory 
incentive for the Amendment 80 sector to meet or exceed retention 
standards for 2011. However, non-AFA trawl C/Ps and Amendment 80 
cooperatives are still required to meet all applicable record keeping, 
monitoring, and permitting regulations, including but not limited to 50 
CFR 679.93(c) and 679.7(g), which ensure proper catch accounting under 
the Amendment 80 quota-based catch share management program. The 
preamble to the emergency rule (75 FR 78172, December 15, 2010) 
provides additional background information.
    Section 305(c)(3)(B) of the Magnuson-Stevens Act authorizes NMFS to 
extend the emergency action for up to 186 days beyond the June 13, 
2011, expiration of the initial emergency action, provided the public 
has had an opportunity to comment on the emergency action and, in the 
case of a Council recommendation, the Council has recommended NMFS 
implement a regulatory amendment to address the emergency on a 
permanent basis.
    The initial emergency rule exempted vessels from a portion of the 
2011 fishing year and thereby precluded the calculation of compliance 
with the annual GRS; however, an extension is necessary to relieve 
these vessels from the requirement to retain groundfish at 85 percent 
or higher for 2011. This extension is necessary because any lapse in an 
exemption from the minimum retention regulations would require all non-
AFA trawl C/Ps and Amendment 80 cooperatives to retain groundfish at 
the 85 percent minimum retention standard for 2011. With this emergency 
rule extension, owners and operators of vessels in the non-AFA trawl C/
Ps and Amendment 80 cooperatives are exempt from 679.27(j)(1) through 
(4) through December 17, 2011.
    At its February 2011 meeting, the Council recommended a preferred 
alternative to permanently address the emergency that would remove the 
GRS program and instead require annual reporting of retention rates. 
The emergency rule extension would provide relief for the non-AFA trawl 
C/Ps and Amendment 80 cooperatives in 2011 while the Council and NMFS 
prepare regulatory amendment documents for review by the Secretary of 
Commerce.

Public Comment

    NMFS received four comments from two unique persons on the 
emergency rule exempting non-AFA trawl C/Ps and Amendment 80 
cooperatives from the GRS for 2010 and 2011. Both commenters generally 
support NMFS emergency action. The comments are summarized and 
responded to as follows:
    Comment 1: Both commenters support NMFS' emergency action and 
encourage NMFS to extend the emergency rule while an alternative 
program is developed by the Council. These letters described the 
economic burden of the GRS on the industry and they noted the inability 
to fully monitor and enforce the minimum standards as justification to 
extend the emergency rule.
    Response: NMFS notes the support for emergency action and its 
extension. This 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 
Act; therefore, this emergency action would not exempt vessels from the 
GRS in the 2012 fishing year. At its February 2011 meeting, the Council 
took final action on a regulatory amendment to remove provisions of the 
GRS program and instead establish new reporting requirements for the 
non-AFA trawl C/Ps and Amendment 80 cooperatives. Based on experience 
with similar actions, NMFS expects this regulatory amendment to be 
effective by the start of the 2012 fishing year.
    Comment 2: NMFS should have included the various monitoring 
requirements at Sec.  679.27(j)(5) through (7) in the emergency rule 
exempting Sec.  679.27(j)(1) through (j)(4). Several of these 
regulations could impose unnecessary and unneeded burden on the fleet. 
NMFS should correct these oversights by extending the emergency 
exemption to include all of Sec.  679.27(j).
    Response: NMFS disagrees. The Council recommended and NMFS 
concurred with taking emergency action to exempt non-AFA trawl C/Ps and 
Amendment 80 cooperatives from the minimum retention requirements. 
Emergency action was necessary because (1) the regulatory methodology 
used to calculate compliance with the annual GRS differs from the 
methodology the Council used to set the minimum retention standard and 
(2) the high enforcement and prosecution costs associated with the GRS.
    To meet the objectives of this action, NMFS exempted non-AFA trawl 
C/Ps and Amendment 80 cooperatives from the GRS compliance calculations 
and the minimum retention schedule found

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at Sec.  679.27(j)(1) through (4). NMFS did not include the remaining 
paragraphs in this section because these regulations directly regulate 
the monitoring, recordkeeping, offloading, and reception of catch from 
other vessels and do not directly relate to the establishment of or 
calculations associated with the minimum retention standards under the 
GRS program. Removing these monitoring and enforcement requirements may 
affect the non-AFA trawl C/Ps and Amendment 80 cooperatives in ways not 
considered or intended by the Council at the time they recommended the 
emergency action.
    Comment 3: The monitoring requirements at Sec.  679.27(j)(5) were 
ordered vacated by the U.S. Court of Appeals for the District of 
Columbia Circuit in December 18, 2007. Please clarify whether these 
regulation are still effective.
    Response: On December 18, 2007, the U.S. Court of Appeals for the 
District of Columbia Circuit issued a decision invalidating three 
monitoring and enforcement requirements associated with the Bering Sea 
and Aleutian Islands Groundfish Retention Standard Program that would 
have been effective on January 20, 2008 (No. 06cv00835; Fishing Company 
of Alaska, Inc., v. Gutierrez, et al.). In accordance with the court's 
ruling, NMFS issued information bulletins (08-4) and (08-7), which 
announced that the regulation at 50 CFR 679.7(m)(5) is invalid and 
void, and would not be enforced by NMFS. NMFS also announced that the 
phrase, ``at a single location'' contained in the first sentence of 50 
CFR 679.27(j)(5)(ii), and that the last sentence of 50 CFR 
679.27(j)(5)(iii) are invalid and void, and will not be enforced by 
NMFS. Other regulations pertaining to the BSAI GRS were unaffected by 
the court's decision and have been in effect since January 20, 2008.
    Although the regulatory text at Sec.  679.27(j)(5)(i) through (iii) 
has not been modified to reflect the specific portions vacated by the 
U.S. Court of Appeals, NMFS notified Amendment 80 vessel owners and 
operators of the scope of the court's ruling in a letter dated January 
7, 2008. NMFS clarifies that the remaining text of Sec.  679.27(j)(5) 
remains applicable to the non-AFA trawl C/Ps and Amendment 80 
cooperatives. For the purposes of complying with the regulatory change, 
vessel owners are advised to see the actual text in the Code of Federal 
Regulations at http://www.gpoaccess.gov/cfr/index.html.
    Comment 4: Regulations at Sec.  679.27(j)(5) through (7) are 
redundant with regulations established for monitoring Amendment 80 
program and are not effective. One commenter also suggested removing 
Sec.  679.27(j)(7) from regulations in any proposed action to remove 
the GRS program.
    Response: NMFS acknowledges that many objectives for establishing 
monitoring and enforcement regulations under Amendment 80 were similar 
to those under Amendment 79; however, regulations at Sec.  679.27(j)(5) 
through (7) were not intended to be affected by this action; see 
response to Comment 2 of this preamble.
    Furthermore, NMFS disagrees that the regulations implementing 
Amendment 80 are redundant with those at Sec.  679.27(j)(5) through 
(7). The regulations implementing Amendment 80 established a rights-
based quota management program that expanded the GRS program to include 
all non-AFA trawl C/Ps regardless of size and Amendment 80 
cooperatives. The Council recommended and NMFS implemented enhanced 
monitoring and enforcement regulations because of the increased 
incentive for the non-AFA trawl C/Ps and Amendment 80 cooperatives to 
engage in presorting or ``high grading'' of catch prior to weighing 
under the quota-based catch share management plan. Although the 
regulations implementing Amendment 80 did not remove any of the 
monitoring and enforcement regulations established under the GRS 
program, the regulations implementing Amendment 80 provided additional 
measures to sufficiently minimize the under-reporting or misreporting 
of catch under that program.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this emergency rule extension is consistent with the national 
standards and other provisions of the Magnuson-Stevens Act and other 
applicable laws. NMFS has the authority to extend the emergency action 
for up to 186 days beyond the June 13, 2011, expiration of the initial 
emergency action, as authorized under section 305(c)(3)(B) of the 
Magnuson-Stevens 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. In the initial emergency rule 
published on December 15, 2010 (75 FR 78172), NMFS requested public 
comment and received two unique letters containing four substantive 
public comments.
    This action extends without change, the exemptions contained in the 
initial emergency action. If the initial emergency action were allowed 
to lapse, regulations at 50 CFR 679.27(j)(1) through (4) would require 
all non-AFA trawl C/Ps and Amendment 80 cooperatives to retain 
groundfish at the 85 percent minimum retention standard for 2011 and 
each following year. As described in the initial emergency action, 
exempting a vessel from a portion of the year precludes the calculation 
of annual compliance with the GRS. This lack of regulatory clarity 
could cause economic harm to fishery participants required to meet an 
unenforceable retention standard much higher than the Council 
recommended. Extending the exemptions of the emergency rule without 
additional notice and opportunity for public comment will ensure the 
2011 groundfish fishery continues uninterrupted and will prevent 
unnecessary adverse economic impacts. Therefore, for the reasons 
outlined above, the Assistant Administrator finds it is unnecessary and 
contrary to the public interest to provide any additional notice and 
opportunity for public comment under 5 U.S.C. 553(b)(B) prior to 
publishing the emergency rule extension.
    Because this rule relieves a restriction by exempting vessel owners 
and operators from the GRS minimum retention standards, it is not 
subject to the 30-day delayed effectiveness provision of the APA 
pursuant to 5 U.S.C. 553(d)(1).
    This emergency rule extension has been determined to be not 
significant for purposes of Executive Order 12866. The regulatory 
impact review prepared for this action is available from NMFS (see 
ADDRESSES).
    No duplication, overlap, or conflict between this action and 
existing Federal rules has been identified.
    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: May 26, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-13719 Filed 6-1-11; 8:45 am]
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