78172 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

(4) Communications for RACES 

training drills and tests necessary to 

ensure the establishment and 

maintenance of orderly and efficient 

operation of the RACES as ordered by 

the responsible civil defense 

organization served. Such drills and 

tests may not exceed a total time of 1 

hour per week. With the approval of the 

chief officer for emergency planning in 

the applicable State, Commonwealth, 

District or territory, however, such tests 

and drills may be conducted for a 

period not to exceed 72 hours no more 

than twice in any calendar year. 

[FR Doc. 2010–31349 Filed 12–14–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 101203602–0602–1] 

RIN 0648–BA29 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Retention 

Standard; Emergency Rule 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Emergency rule; request for 

comments. 

SUMMARY: NMFS is exempting, through 

this emergency rule, trawl catcher/ 

processor vessels (C/Ps) that are not 

specified in regulation as American 

Fisheries Act (AFA) vessels, referred to 

throughout this rule as non-AFA trawl 

C/Ps, and Amendment 80 cooperatives 

from the groundfish retention standard 

(GRS) in the Bering Sea and Aleutian 

Islands management area. The GRS was 

implemented to increase the retention 

and utilization of groundfish caught by 

the non-AFA trawl C/Ps and to respond 

to bycatch reduction goals described in 

National Standard 9. NMFS recently 

discovered that the regulatory 

methodology used to calculate 

compliance with and to enforce the GRS 

percentages established for 2010 and 

2011 effectively require the sector to 

meet GRS well above that considered by 

the North Pacific Fishery Management 

Council or that implemented by NMFS. 

As a result, the retention requirements 

are expected to impose significantly 

higher costs due to the increased level 

of retention and to generate an 

unanticipated level of noncompliance in 

the Amendment 80 fleet. Further, 

monitoring and enforcement of the GRS 

has proven far more complex, 

challenging, and potentially costly than 

anticipated by NMFS. This emergency 

rule is necessary to exempt non-AFA 

trawl C/Ps and Amendment 80 

cooperatives from the regulatory 

provisions of the GRS program before 

the end of the 2010 fishing season and 

prior to the start of the 2011 fishing 

season. This action is intended to 

promote the goals and objectives of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area, and 

other applicable law. 

DATES: Effective December 15, 2010 

through June 13, 2011. Comments must 

be received by January 14, 2011. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by RIN 0648– 

BA29, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Fax: (907) 586–7557, Attn: Ellen 

Sebastian. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will be posted to 

http://www.regulations.gov, generally 

without change. No comments will be 

posted for public viewing until after the 

comment period has closed. All 

Personal Identifying Information (for 

example, name, address) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Electronic copies of the Regulatory 

Impact Review (RIR), and the 

Categorical Exclusion prepared for this 

action may be obtained from http:// 

www.regulations.gov or from the Alaska 

Region Web site at http:// 

alaskafisheries.noaa.gov. The 

Environmental Assessment, RIR, and 

Final Regulatory Flexibility Analysis for 

Amendment 79 to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) and the 

Environmental Assessment, RIR, and 

Final Regulatory Flexibility Analysis for 

Amendment 80 to the FMP are available 

from the NMFS Alaska Region Web site 

at http://alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Seanbob Kelly, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the U.S. groundfish fisheries of 

the Bering Sea and Aleutian Islands 

management area (BSAI) in the 

Exclusive Economic Zone under the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(FMP). The North Pacific Fishery 

Management Council (Council) 

prepared the FMP pursuant to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). Regulations 

implementing the FMP appear at 50 

CFR part 679. General regulations that 

pertain to U.S. fisheries appear at 

subpart H of 50 CFR part 600. 

Groundfish Retention Standard 

The Groundfish Retention Standard 

(GRS) originally was adopted by the 

Council as Amendment 79 to the FMP 

in June 2003. The GRS was intended to 

increase retention of groundfish by nonAmerican 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 nonAFA 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 


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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 

§ 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 § 679.27(j)(4) and is listed 

below in Table 1. 

TABLE 1—ANNUAL GROUNDFISH

RETENTION STANDARD

GRS Schedule Annual GRS 

(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 nonAFA 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 § 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 § 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 § 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). 


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78174 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

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

Year Regulatory 

GRS (percent) Total Catch Retained catch 

Round Weight 

Equivalent 

Reported 

Production 

Analytical Approach for Selecting GRS 

(percent) 

Regulatory Approach for Determining 

Compliance 

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 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 78175 

prioritizing enforcement work at the 

regional and national levels, http:// 

www.oig.doc.gov/oig/reports/2010/OIG19887.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 nonregulatory 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 nonAFA trawl C/Ps and Amendment 80 

cooperatives from the GRS regulations 

at § 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 nonAFA trawl C/Ps from the recordkeeping, 

permitting, or monitoring regulations at 

§ 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 MagnusonStevens 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 nonAFA 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 

§ 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 § 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. 


emcdonald on DSK2BSOYB1PROD with RULES
78176 Federal Register / Vol. 75, No. 240 / Wednesday, December 15, 2010 / Rules and Regulations 

• 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, noticeand-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 MagnusonStevens 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 

§ 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 


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