[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Proposed Rules]
[Pages 62482-62489]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-25012]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 110321210-2495-01]
RIN 0648-BA93
Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea
and Aleutian Islands Management Area; Groundfish Retention Standard
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes a regulatory amendment that would modify the
groundfish retention standard (GRS) program in the Bering Sea and
Aleutian Islands (BSAI) management area by removing certain regulatory
requirements mandating minimum levels of groundfish retention and
adding requirements for annual reports on groundfish retention
performance. The GRS program was implemented to increase the retention
and utilization of groundfish caught by trawl catcher/processor (C/P)
vessels not listed in the American Fisheries Act (AFA), referred to as
Amendment 80 vessels, and Amendment 80 cooperatives participating in
the Bering Sea and Aleutian Islands groundfish fisheries. NMFS has
discovered that the regulatory methodology used to calculate compliance
with the GRS requires individual Amendment 80 vessels and Amendment 80
cooperatives to retain groundfish at minimum rates well above the
minimum rates recommended by the Council or implemented by NMFS. As a
result, the GRS is expected to impose significantly higher than
predicted compliance costs on vessel owners and operators due to the
increased level of retention needed to meet the minimum retention
rates.
Additionally, NMFS has discovered that enforcement of the GRS has
proven far more complex, challenging, and potentially costly than
anticipated by NMFS. This proposed rule would relieve non-AFA trawl C/
Ps and Amendment 80 cooperatives from undue compliance costs stemming
from the mandatory GRS rates, but continue the GRS program goals of
increased retention and utilization by establishing additional
reporting requirements on groundfish retention performance together
with current monitoring requirements for the Amendment 80 fleet. This
action is intended to promote the goals and objectives of the Magnuson-
Stevens Fishery Conservation and Management Act, the fishery management
plan, and other applicable law.
DATES: Comments must be received no later than November 14, 2012.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2011-0049, by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2011-0049 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on that line.
Mail: Address written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau,
AK 99802-1668.
Fax: Address written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
Hand delivery to the Federal Building: Address written
comments to Glenn Merrill, Assistant Regional Administrator,
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau,
AK.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address) submitted voluntarily by the sender
will 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).
Attachments to electronic comments will be accepted in Microsoft Word
or Excel, WordPerfect, or Adobe PDF file formats only.
[[Page 62483]]
Electronic copies of the Environmental Assessment, Regulatory
Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA)
that are collectively known as the analysis prepared for this proposed
rule may be obtained from http://www.regulations.gov or from the Alaska
Region Web site at http://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS at the above address and by
email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.
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 (EEZ) under the Fishery Management Plan for
Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP). The Council prepared the FMP pursuant to the Magnuson-Stevens
Fishery Conservation and Management Act (MSA). 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.
Background
In June 2003, the Council adopted Amendment 79 to the FMP.
Amendment 79 revised section 2.2.1 of the FMP to include the management
objective of improving the retention of groundfish where practicable,
by establishing minimum groundfish retention standards. At the same
time the Council adopted Amendment 79, it adopted the groundfish
retention standard (GRS) program. NMFS published a final rule
implementing the GRS program in April 2006 (71 FR 17362), and the GRS
program became effective in 2008.
As originally recommended by the Council and approved by NMFS, the
GRS program applied to non-AFA trawl C/Ps equal to or greater than 125
feet (38.1 m) length overall (LOA). The GRS program required each of
these vessels to retain and utilize a minimum amount of groundfish
caught during the calendar year. The Council recommended the GRS
program for 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 chose to exclude non-AFA trawl C/Ps less than 125
feet (38.1 m) LOA from the original GRS program because GRS 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 was minimal compared to
vessels equal to or greater than 125 feet (38.1 m) LOA.
The Council's policy objectives for the GRS program included
reducing bycatch, minimizing waste, and improving utilization of fish
resources to the extent practicable, acknowledging that any solution to
the problem of reducing discards must take into account the ability of
NMFS to monitor discards and adequately enforce any regulations. The
full rationale for the GRS is described in the preamble to the final
rule for the GRS program (71 FR 17362, April 6, 2006) and is not
repeated here. Regulations implementing the GRS program at Sec. Sec.
679.7(m) and 679.27(j) established annual minimum groundfish retention
standards and prohibited the owner or operator of a non-AFA trawl C/P
equal to or greater than 125 feet (38.1 m) LOA from retaining an amount
of groundfish during a fishing year that is less than the GRS. Section
679.27(j)(2) contains the equations used by NMFS for determining GRS
compliance. GRS program regulations also established new observer and
scale requirements at Sec. 679.27(j)(5) in order to effectively
monitor and account for groundfish catch onboard non-AFA trawl C/Ps
subject to the GRS program. The GRS was phased in to allow owners and
operators of affected vessels time to adjust to the retention
requirements. The GRS was based on historic total catch and retention
estimates presented in the analysis for the GRS program. 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 at 50 CFR 679.27(j)(4)
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Annual GRS
GRS Schedule (Percent)
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2008....................................................... 65
2009....................................................... 75
2010....................................................... 80
2011 and each year after................................... 85
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In June 2006, the Council adopted Amendment 80 to the FMP, which
authorized the allocation of specified groundfish species to harvesting
cooperatives and established a catch share program for non-AFA trawl C/
Ps. This catch share program is commonly referred to as the Amendment
80 program, and the vessels used in this program are commonly referred
to as Amendment 80 vessels, or 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 promoting
opportunities for the sector to increase the value of harvested
species. NMFS approved Amendment 80 and published a final rule
implementing it in 2007 (72 FR 52668, September 14, 2007), and the
Amendment 80 program was fully effective starting with the 2008 fishing
year.
Under the Amendment 80 program, NMFS annually issues an Amendment
80 quota share (QS) permit to a person holding the catch history of an
original qualifying vessel. The amount of QS issued is based on the
qualifying vessels' catch history of six Amendment 80 species (Atka
mackerel, Aleutian Islands Pacific ocean perch, flathead sole, Pacific
cod, rock sole, and yellowfin sole) in the BSAI from 1998 through 2004.
Generally, the Amendment 80 program is intended to facilitate the
formation of cooperatives among persons receiving Amendment 80 QS
permits. These cooperatives are eligible to receive cooperative quota
(CQ), which represents an exclusive harvest privilege for a portion of
these fishery resources. Amendment 80 sector participants who do not
choose to join a harvesting cooperative must fish in a limited access
fishery, without an exclusive harvest privilege, and must continue in a
race for fish with other participants in that fishery. The allocation
of CQ allows vessel operators to make operational choices to improve
returns from the fisheries and reduce discards of fish, because the
incentives of the limited access fishery--to maximize catch rates to
capture a larger share of the available catch--are removed. The
principal benefits from the Amendment 80 program are achieved with
harvesters choosing to join cooperatives. These benefits are described
more fully in the final rule for Amendment 80 (72 FR 52668, September
14, 2007).
In addition to issuing QS permits and providing mechanisms for the
formation of cooperatives, the Amendment 80 program established
measures to reduce the discard of groundfish. Amendment 80 modified the
GRS program in two critical ways. First, the GRS program
[[Page 62484]]
was extended to all non-AFA trawl C/Ps operating in the BSAI, removing
the exemption for vessels under 125 feet (38.1 m) LOA. Therefore, all
Amendment 80 vessels, regardless of size, are required to comply with
the GRS. Second, Amendment 80 modified the method of calculating the
total retention of groundfish catch that applies to cooperatives.
Amendment 80 authorized a cooperative to meet the GRS by aggregating
the retention rate of all vessels assigned to the cooperative. Under
this modification, not every vessel within the cooperative is required
to meet the minimum GRS; some vessels may not meet the minimum GRS as
long as the minimum is met by the aggregated retention rate of all
vessels in the cooperative. This action was intended to enable the
owners of Amendment 80 vessels with relatively low retention rates 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 Amendment
80 vessels that fish under a cooperative's exclusive harvest privilege,
the costs associated with retaining less valuable fish under the GRS
program may be offset by increased profitability because they are no
longer operating in a race for fish.
Under the current GRS program, each Amendment 80 cooperative and
each vessel participating in the limited access fishery must ensure
that it meets the GRS requirements, based on the amount of catch
retained by that cooperative or vessel. Catch is defined in regulations
at Sec. 600.10 to include, but is not limited to, any activity that
results in killing fish or bringing any live fish onboard a vessel. As
noted earlier, vessels participating in a cooperative can aggregate the
total catch and total retained catch by all vessels in the cooperative.
Therefore, vessels with poorer retention rates may have an incentive to
join a cooperative with other vessels that have better retention rates
and are able to offset the lower retention rates of those vessels. As
the GRS increased, individual vessels with lower retention rates likely
had greater difficulty meeting the GRS than vessels that coordinated
with other vessels in an Amendment 80 cooperative.
Many of the objectives for establishing monitoring and enforcement
regulations under Amendment 80 were similar to those under Amendment
79. However, the regulations implementing Amendment 80 established a
quota management program that had somewhat different monitoring needs.
Therefore, the Council recommended and NMFS implemented a separate,
enhanced set of monitoring and enforcement regulations for Amendment 80
because of the increased incentive for Amendment 80 vessels and
Amendment 80 cooperatives to engage in presorting or ``high grading''
of catch prior to weighing under the quota-based catch share management
plan. The monitoring and enforcement regulations implemented for
Amendment 80 were in addition to and did not remove any of the
monitoring and enforcement regulations established under the GRS
program and were intended to minimize the under-reporting or
misreporting of catch under the quota-based catch share program.
Concerns With the GRS
At its April 2010 meeting, the Council requested that NMFS report
on the status of monitoring, enforcing, and prosecuting the GRS
program. The Council's request was based, in part, on the concerns
raised by NMFS at the time the Council took final action on BSAI
Amendment 93, which established Amendment 80 cooperatives. The request
also was based upon general concerns expressed by participants in the
Amendment 80 sector regarding the enforcement of the GRS. Specifically,
the Council requested a report on the enforcement and prosecution
concerns raised since the development of the GRS program, including
changes to the GRS program under Amendment 80, changes proposed by the
Council at the time it adopted Amendment 93 to the FMP, and concerns
about monitoring and enforcing the GRS program that were identified by
the agency or industry participants. The Council also requested
conceptual alternatives to modify the GRS program to address these
concerns.
In June 2010, NMFS provided the Council with a preliminary
assessment of the GRS program. NMFS raised two key concerns in the June
2010 report to the Council. First, NMFS pointed out that the
methodology for calculating annual retention standards established in
regulations implementing the GRS was different than the methodology
used in the analysis for the GRS program to estimate the fleet's
historic retention rates. NMFS explained that the methodology
implemented in regulation was necessary for calculating retention rates
that were verifiable and enforceable on an individual vessel basis.
However, when NMFS compared the retention rates produced by the two
methodologies, NMFS determined that the methodology used in the
analysis for the GRS program, which was the basis for the Council's
selection of minimum retention rates, produced consistently higher
retention rates than the methodology established in regulation. As a
result, NMFS realized that the fleet had to retain more groundfish in
order to meet the minimum retention rate using the regulatory
methodology than the fleet would have been required to retain using the
methodology in the analysis. Second, NMFS explained the difficulties
the agency was encountering in effectively enforcing and prosecuting
the GRS for individual vessels, and that these difficulties would
extend to prosecution of a single cooperative, or multiple
cooperatives. NMFS also noted that since the GRS program was
implemented, the retention rate of groundfish by the Amendment 80 fleet
had increased substantially under either methodology. Additional
information on the key concerns raised by NMFS is provided below.
At the June 2010 Council meeting, representatives of the Amendment
80 sector testified that vessel operators that met the GRS in 2009 will
face significant additional challenges meeting the increasing standard.
Vessel operators cited the differences in the Council's recommended GRS
and NMFS' methodology for calculating compliance with that standard as
an unintended burden on the fleet. Industry representatives reported to
the Council that the GRS calculation specified in regulations results
in a lower retention percentage than the methodology used in the
analysis developed for the GRS program. Amendment 80 vessel operators
raised concerns that it may not be possible to achieve the highest GRS
required in regulation for vessels operating individually in the
Amendment 80 limited access fishery, or collectively in a cooperative.
Differences in Catch Data Estimation
In its report to the Council, NMFS confirmed that the regulatory
method for calculating compliance with the GRS consistently results in
a lower calculated retention rate than the method used in the GRS
program analysis, as shown in Table 2 below. In 2008, this difference
was 13 percent, in 2009 it was 10 percent, and in 2010 it was 7
percent.
[[Page 62485]]
[GRAPHIC] [TIFF OMITTED] TP15OC12.086
The regulatory method requires a level of groundfish retention much
higher than that intended by the Council when it adopted the GRS
program. The reasons for the underestimates of groundfish retention are
not clear, but likely reflect a mixture of factors. One possible source
of the variation in the retention estimates may stem from differences
in the data used in the analysis for the GRS program to calculate the
historic total catch and NMFS' current method for estimating groundfish
retention.
Total catch estimates in the groundfish fisheries off Alaska are
generated by NMFS from information provided through a variety of
required industry reports of harvest and at-sea discard, and data
collected through an extensive fishery observer program. Over the past
decade, NMFS changed the methodologies used to determine catch
estimates from the NMFS blend database (1995 through 2002) to the catch
accounting system (2003 through present). The analysis for the GRS
program used data from the blend database to determine the total
retention rates of the non-AFA trawl C/P fleet and the Council relied
on these retention rates to recommend specific groundfish retention
standards for the GRS program.
In 2003, the catch accounting system was implemented to better meet
the increasing information needs of fisheries scientists and managers.
Currently, the catch accounting system relies on data derived from a
mixture of production and observer reports as the basis of the total
catch estimates. The approach for estimating retained catch used in the
GRS program relies on round weight equivalents of retained products and
NMFS product recovery rates to estimate retention. The 2003
modifications in catch estimation included providing more frequent data
summaries at finer spatial and fleet resolution, and the increased use
of observer data. Redesigned observer program data collections were
implemented in 2008, and include recording sample-specific information
in lieu of pooled information, increased use of systematic sampling
over simple random and opportunistic sampling, and decreased reliance
on observer computations. As a result of these modifications, NMFS is
unable to recreate blend database estimates for total catch and
retained catch after 2002. Therefore, NMFS is not able to reliably
determine differences in retention rates when comparing historic data
from the blend database to the current catch accounting system.
Enforcement Concerns
In the June 2010 report, NMFS described a suite of enforcement
concerns about the ability to effectively prosecute a violation of the
GRS. When the GRS program was approved by NMFS, NOAA's Office of
General Counsel for Enforcement and Litigation raised concerns about
certain difficulties it anticipated in prosecuting vessel specific
violations of the GRS program. These concerns primarily focused on the
program'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 whether these observers would be
available in future years to support the prosecution process. NMFS
explained that these concerns are aggravated under Amendment 80 because
the number of observers necessary to support an enforcement case and
associated prosecution increases significantly from a single vessel
scenario to a multiple vessel cooperative, or a multiple cooperative
scenario as proposed by the Council at the time it adopted Amendment
93.
NMFS also explained that enforcement of the GRS has proven far more
complex, challenging, and potentially more costly than anticipated at
the time it approved the GRS program. The Amendment 80 sector has
operated under a cooperative system for several years in a manner that
appears to facilitate compliance with the GRS (see Table 2 of this
preamble); however, the method used to calculate compliance with the
GRS requires
[[Page 62486]]
higher retention rates than those used by the Council to establish the
GRS. Thus, many participants in the Amendment 80 sector have expressed
strong doubt that it will be possible to achieve the highest retention
standard of 85 percent using the existing regulatory methodology. NMFS
determined the likelihood that additional vessels may be unable to meet
the GRS, as calculated by NMFS, in coming years may unnecessarily
increase compliance and enforcement costs, considering that the
Council's objectives for retention appear to be met, as demonstrated in
Table 2 of this preamble. In addition, NMFS explained that it now has
actual enforcement experience indicating that the costs to NOAA of
developing a GRS compliance case are high and will increase if the 85
percent GRS cannot be met by the fleet in 2012 and following years.
Emergency Action
After receiving NMFS' report and the public testimony described
above, the Council recommended two GRS actions. First, the Council
recommended that NMFS initiate an emergency rule to suspend the
application of the GRS. 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 statutory provisions for emergency rules are
described in section 305(c)(1) of the MSA. On December 15, 2010, NMFS
published an emergency rule exempting Amendment 80 vessels and
cooperatives from GRS regulations, effective during 2010 and 2011 (75
FR 78172). The preamble to the emergency rule describes the Council's
justification for emergency action, and it is not repeated here. An
extension of this emergency action was published on June 2, 2011, and
the action was effective until December 17, 2011 (76 FR 31881).
Second, the Council recommended the development of an analysis to
review and recommend permanent changes to the GRS program. Given the
concerns raised by NMFS and the public, the Council stated that the
analysis should examine options that would revise the GRS or that would
remove the specific regulatory requirements to meet a GRS, and allow
the Amendment 80 sector to implement an internal retention monitoring
program that ensures continued high groundfish retention. During the
February 2011 Council meeting, NMFS, with its Office of Law Enforcement
(OLE), reiterated the agency's concerns about the potential costs and
complexity of enforcing the GRS across cooperatives. At final action,
the Council unanimously recommended that NMFS implement a regulatory
amendment to modify the GRS program such that it meets the management
objectives for groundfish retention included in the BSAI FMP and that
maintains incentives for groundfish retention through a new groundfish
retention reporting requirement.
Rationale for Proposed Action
This action is intended to provide a long-term solution to the
problems outlined by the Council in the problem statement. The Council
determined that this action is necessary because the circumstances that
justified the increasing GRS have changed. The Council concluded that
the regulatory constraint and associated GRS established for 2012, and
each following fishing year, no longer achieve the goals that led to
their establishment. This action is intended to mitigate higher than
expected compliance costs of the GRS borne by the Amendment 80 sector.
Furthermore, the Council determined that this action is needed to
mitigate management and enforcement costs that were not foreseen when
the regulation was promulgated.
The Council noted that the regulatory GRS of 85 percent may not be
achievable by most vessels in the Amendment 80 sector in 2012 and each
following year. The Council determined that the additional and
potentially significant compliance costs associated with the 85 percent
GRS are not warranted because the improvements in retention rates by
the non-AFA trawl C/Ps through 2010 have met Council objectives.
Furthermore, the Council concluded that the likelihood that additional
vessels may be unable to meet the GRS, as calculated by NMFS, in coming
years may unnecessarily increase compliance and enforcement costs,
again noting that the Council's objectives for retention have been met.
Although this proposed rule would remove the GRS requirements from
the regulations, Amendment 80 vessel owners have stated their intent to
maintain groundfish retention rates that are consistent with Council
intent, the BSAI FMP, and the MSA requirement that regulations be
consistent with the 10 national standards for fishery conservation and
management, including National Standard 9, which requires regulations
to minimize bycatch to the extent practicable through cooperative civil
contract agreements. The Council and NMFS determined that ongoing
commitments of the Amendment 80 sector to maintain recent improvements
in groundfish retention rates should enhance resource management and
conservation.
Proposed Action
The proposed action would remove regulations implementing the GRS
at Sec. Sec. 679.7 and 679.27. To meet Council intent for this action,
NMFS would revise the language at Sec. 679.27(b)(4) to remove
references to the GRS program and would remove Sec. 679.27(j), which
contains the bulk of the GRS program's regulations. This action is not
intended to change the use caps, sideboard limits, recordkeeping,
permitting, monitoring, or catch accounting requirements established
for the Amendment 80 sector. This proposed action also would leave in
place the regulations at Sec. 679.27(b)(4) that require non-AFA trawl
C/Ps to meet a 15 percent utilization standard for all retained
groundfish species listed in Table 2a to part 679 that are used in the
calculation for percent of retained groundfish.
Also, the proposed action would add regulations requiring each
Amendment 80 cooperative to provide an annual report to NMFS on
groundfish retention performance. NMFS would require Amendment 80
cooperatives to report groundfish performance as part of the Amendment
80 cooperative report established in regulations at Sec. 679.5(s)(6).
Under existing regulations at Sec. 679.5(s)(6), each Amendment 80
cooperative issued a CQ permit must annually submit a report to the
Regional Administrator detailing the use of the cooperative's CQ. In
addition, this action would require Amendment 80 cooperatives to
calculate and report their annual aggregate groundfish retention rate
using the methodology currently established in regulation at Sec.
679.27(j)(3). The Council recommended the regulatory methodology over
the methodology used in the analysis for the GRS program because blend
data are no longer available and because use of the regulatory
methodology would provide the Council and the public with a consistent
and comparable data set of groundfish retention rates since the
implementation of the GRS program in 2008. This additional reporting
requirement is intended to provide the Council, NMFS, and the public
with information as to whether the groundfish retention achievements of
the GRS program are being maintained. As part of the annual reporting
requirement proposed in this action, estimates of total catch for the
non-AFA trawl C/Ps participating in Amendment 80 cooperatives would
need to include all catch (as defined in Sec. 600.10) that passes over
the flow scale, including
[[Page 62487]]
deliveries from other vessels, commonly referred to as ``bags over the
side.'' NMFS would continue to oversee the submission of Amendment 80
cooperative reports and provide these reports to the Council.
Retaining Monitoring and Enforcement Provisions
To meet the Council's intent that monitoring and enforcement
regulations not change under this action, NMFS proposes to modify
regulations at Sec. 679.93(c)(1) to incorporate certain provisions in
regulations that would otherwise be removed under this proposed action.
OLE has expressed concerns that removing certain specific catch
monitoring provisions could result in fishing behavior that was not
intended by the Council when it took final action to remove the GRS.
Currently, regulations implementing the GRS prohibit non-AFA trawl C/Ps
from receiving deliveries of sorted catch. Amendment 80 vessels are
authorized to receive deliveries of unsorted codends from vessels for
processing. However, deliveries received from a catcher vessel's
refrigerated salt water tank are prohibited because such deliveries do
not meet the definition of unsorted codend. ``Unsorted Codend'' is
defined by regulations at Sec. 679.2 as a codend of groundfish that is
not brought on board a catcher vessel and that is delivered to a
mothership, shoreside processor, or stationary floating processor
without the potential for sorting. No other instance of catcher vessel
harvest is considered an ``unsorted codend.'' All other catch that does
not meet this definition is considered ``presorted'' whether or not
sorting occurs.
Although the proposed rule would remove certain regulations at
Sec. Sec. 679.7(m)(3) and 679.27(j)(5)(iii) that require non-AFA trawl
C/Ps to weigh all catch and prohibit any sorting of catch prior to
weighing, this removal is necessary because these sections specifically
reference the current GRS program that will be replaced by this action.
However, the requirements put in place by these two provisions are
essential to monitoring and enforcement. Sections 679.7(m)(3) and
679.27(j)(5)(iii) require weighing of catch and prohibit presorting,
respectively. Removing these provisions would not be consistent with
the Council's recommendation that this action not change existing
monitoring and enforcement regulations. Therefore, this action would
revise Sec. 679.93(c)(1) to reincorporate these two requirements into
the regulations, ensuring that the status quo monitoring and recording
of catch by the Amendment 80 sector is retained and that pre-sorting
will remain prohibited.
Recordkeeping and Reporting Requirements
The Council recommended that the Amendment 80 fleet be required to
annually report groundfish retention using observer, scale, and product
data that can be verified by NMFS. As noted earlier in this preamble,
Amendment 80 cooperatives would be required to report annual groundfish
retention rates to the Council as part of the extant Amendment 80
annual cooperative report, instead of requiring an additional report
from these participants. The confidential catch and production data
needed to calculate annual groundfish retention are generally available
to both NMFS and the Amendment 80 entity responsible for meeting
current observer and production reporting requirements established for
the Amendment 80 fleet. The authorized representative of an Amendment
80 cooperative could request that NMFS verify these data (see
ADDRESSES). These data could then be used by the Amendment 80
cooperative to calculate its annual groundfish retention rate. As
recommended by the Council, this proposed rule would require each
Amendment 80 cooperative to have a third party audit the cooperative's
groundfish retention calculations and include these findings as part of
the Amendment 80 annual cooperative report. Any third party audit would
require the Amendment 80 cooperative to coordinate with NMFS and the
appropriate Amendment 80 entities for a release of confidential
observer data and production data. NMFS notes that it is highly
unlikely that the third party audit will differ from NMFS' or the
cooperative's estimates of annual groundfish retention rates because
the data used in the calculation originate from the same source.
The Council also recommended that it receive an annual report on
groundfish retention performance by Amendment 80 vessels participating
in the Amendment 80 limited access fishery. Rather than propose
regulations that would require the owners of vessels participating in
the Amendment 80 limited access fishery to report annual groundfish
retention to the Council, NMFS determined that it would prepare
information on groundfish retention performance for Amendment 80
vessels participating in the Amendment 80 limited access fishery. NMFS
currently produces this data as part of its inseason management report
to the Council, and would continue to report these retention rates to
the Council during the October Council meeting. NMFS concluded that
requiring individual vessels not participating in an Amendment 80
cooperative to participate in the new reporting requirement would be
duplicative and could result in undue burden on these entities. Because
NMFS will provide this information to the Council, no proposed
regulation is needed to implement this aspect of the Council's
recommendation.
Summary of Regulatory Changes
This action proposes the following changes to the existing
regulatory text at 50 CFR part 679:
Remove the definition of ``Groundfish Retention Standard
(GRS)'' from Sec. 679.2;
Add requirements for cooperative reporting and third party
audits to Sec. 679.5(s)(6)(iii)(D) and (E);
Remove the prohibitions specific to the GRS at Sec.
679.7(m);
Remove the requirement that Amendment 80 cooperatives meet
a minimum GRS at Sec. 679.7(o)(4)(iv);
Revise improved retention and improved utilization
regulations at Sec. 679.27(b)(4);
Remove regulations implementing the GRS at Sec.
679.27(j); and
Revise regulations at Sec. 679.93(c)(1).
Classification
Pursuant to sections 304(b)(1)(A) and 305(d) of the MSA, the NMFS
Assistant Administrator has determined that this proposed rule is
consistent with the FMP, other provisions of the MSA, and other
applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). A copy of this analysis is available from NMFS
(see ADDRESSES).
The IRFA for this proposed action describes the reasons why this
action is being proposed; describes the objectives and legal basis for
the proposed rule; describes and estimates the number of small entities
to which the proposed rule would apply; describes any projected
reporting, recordkeeping, or other compliance requirements of the
proposed rule; identifies any overlapping, duplicative, or conflicting
Federal rules; and describes any significant alternatives to the
proposed rule that accomplish the stated objectives of the MSA and any
other applicable statutes, and that would minimize any significant
adverse economic impact of the proposed rule
[[Page 62488]]
on small entities. A summary of that analysis follows.
Rationale, Objectives, and Legal Basis of the Proposed Rule
The preamble to this proposed rule describes the reasons why this
action is being proposed, describes the objectives and legal basis for
the proposed rule, and discusses both small and other regulated
entities to adequately characterize the fishery participants. The MSA
is the legal basis for the proposed rule. This proposed rule is needed
to mitigate management and enforcement costs that were not foreseen
when the regulation was promulgated. In addition, this action is needed
to mitigate higher than expected compliance costs of the groundfish
retention standard borne by the non-AFA trawl C/Ps. The objective for
this proposal is to remove the groundfish retention standard for the
Amendment 80 fleet and require the sector to report their groundfish
retention performance to the Council annually. This objective is
encompassed by authorities contained in the MSA. Under the MSA, the
Unities States has exclusive management authority over all living
marine resources found within the EEZ.
The management of marine fishery resources is vested in the
Secretary of Commerce (Secretary), with advice from the Regional
Fishery Management Councils. The groundfish fisheries in the EEZ off
Alaska are managed under the Fishery Management Plan for Groundfish of
the BSAI and the Fishery Management Plan for Groundfish of the Gulf of
Alaska. Statutory authority for measures designed to reduce bycatch is
specifically addressed in the MSA at section 301(a)(9). That section
establishes National Standard 9--Bycatch, which directs the Councils to
minimize bycatch to the extent practicable or minimize mortality when
bycatch cannot be avoided.
The groundfish fisheries of the BSAI and GOA are managed under the
MSA. In the Alaska region, the Council is responsible for preparing
management plans for marine fishery resources requiring conservation
and management. NMFS, under the U.S. Department of Commerce, is charged
with carrying out the Federal mandates with regard to marine fish, once
they are approved by the Secretary. NMFS' Alaska Regional Office and
Alaska Fisheries Science Center review the management actions
recommended by the Council.
Number of Small Entities To Which the Proposed Rule Would Apply
These impacts are analyzed in the RIR prepared for this action (see
ADDRESSES). The entities directly regulated by this action are those
catcher processors that are members of the Amendment 80 sector that
target flatfish, Atka mackerel, Pacific cod, and Pacific ocean perch in
the EEZ of the BSAI.
Earnings from all Alaska fisheries for 2009 were matched with the
vessels that are members of the Amendment 80 sector and participated in
the BSAI groundfish fisheries for that year. There are a total of 28
Amendment 80 qualified C/Ps in the sector. Based on the known
affiliations and joint ownership of the Amendment 80 vessels, all
vessels in the sector would be categorized as a large entity for the
purpose of the RFA, because they all have annual revenues that exceed
$4 million. Due to their participation in a harvest cooperative or
through known ownership of multiple vessels, co-ownerships and
``shares'' ownership arrangements among vessels, and other economic and
operational affiliations, it is the aggregate annual gross receipts of
all affiliated operations worldwide that are relevant under the Small
Business Administration rules. Because of the lack of complete data on
ownership and affiliation, it was determined that preparation of an
IRFA, in lieu of `certification' of this action under RFA, was
appropriate, thereby allowing for public comment on this aspect of the
RFA analysis.
Description of Significant Alternatives to the Proposed Action
An IRFA requires a description of any significant alternatives to
the preferred alternative that would minimize any significant adverse
economic impact of the proposed rule on small entities. The suite of
potential actions includes two alternatives.
The Council's preferred alternative, Alternative 2, has been
selected as the action alternative. It would remove the GRS from the
GRS program for the Amendment 80 sector. Revocation of the GRS will
result in significant operational benefits and cost savings to all
directly regulated entities. The Amendment 80 sector would be permitted
to internally monitor the groundfish retention rates to meet Council
retention goals described in the analysis prepared for Amendment 79 and
the GRS program, but avoid mandatory compliance standards and their
associated costs. The action would also include a requirement for the
sector, as a whole, to report to the Council its annual groundfish
retention performance. It would also further the program's original
purpose of reducing bycatch, encouraging the use of all fish resources,
and minimizing waste.
The Council also considered an alternative to revise the GRS to
require groundfish retention at rates similar to the estimates
presented in the analysis prepared for the GRS program. The Council
determined that, while revising the GRS could reduce economic hardship
imposed on the Amendment 80 sector by more closely correlating
groundfish retention rates with historical retention rates, it would
not address the monitoring, enforcement, and prosecution issues that
arise from the requirements for annual determination of vessel
compliance with the GRS program. Because this alternative would not
resolve the problems for the program, the Council decided not to
forward this alternative in the analysis for the proposed action.
Based upon the best available scientific data and information, and
consideration of the objectives of this action, there are no
alternatives to the proposed action that have the potential to
accomplish the stated objectives of the MSA and any other applicable
statutes and that have the potential to minimize any significant
adverse economic impact of the proposed rule on directly regulated
small entities.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
This action is projected to have de minimis impact on the
recordkeeping and reporting requirements of small entities
participating in the BSAI groundfish fisheries. Some recordkeeping and
reporting requirements may be needed by individual firms. Those firms
that already record and report catch data will likely not be
significantly impacted by this proposed action. It is not possible to
determine which firms will be most impacted by the requirements, since
the information each firm collects is based on what they need to
operate their business and the current reporting requirements. The
regulations proposed in this amendment are not expected to impact the
recordkeeping and reporting requirements for any other entities in the
fishery.
Under this action, NMFS would not require the individual owners and
operators of non-AFA trawl C/P vessels participating in the limited
access fishery to annually report groundfish retention performance.
Instead, NMFS would prepare retention estimates for each vessel in the
limited access fishery
[[Page 62489]]
and present these data to the Council annually as part of the inseason
management report.
Duplicate, Overlapping, or Conflicting Federal Rules
No Federal rules that might duplicate, overlap, or conflict with
this proposed action have been identified.
Collection-of-Information Requirements
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval under
OMB Control No. 0648-0565. Public reporting burden for the Amendment 80
cooperative report is estimated to average 25 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS at
the ADDRESSES above, and email to OIRA_Submission@omb.eop.gov, or fax
to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: October 5, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447.
Sec. 679.2 [Amended]
2. In Sec. 679.2, remove the definition of ``Groundfish Retention
Standard (GRS).''
3. In Sec. 679.5, add paragraph (s)(6)(iii)(D) and paragraph
(s)(6)(iii)(E) to read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(s) * * *
(6) * * *
(iii) * * *
(D) For each Amendment 80 cooperative, the percent of groundfish
retained by that Amendment 80 cooperative of the aggregate groundfish
retained by all Amendment 80 vessels assigned to that Amendment 80
cooperative using the following equations:
[GRAPHIC] [TIFF OMITTED] TP15OC12.087
Substituting the value for GFroundweight into the following
equation:
GFR% = (GFroundweight /TotalGF)* 100
Where:
GFroundweight is the total annual round weight equivalent of all
retained product weights retained by all Amendment 80 vessels
assigned to that Amendment 80 cooperative for each IR/IU groundfish
species.
PWspeciesn is the total annual product weight for each groundfish
species listed in Table 2a to this part by product type as reported
in the vessel's production report for all Amendment 80 vessels
assigned to that Amendment 80 cooperative required at Sec.
679.5(e).
PRRspeciesn is the standard product recovery rate for each
groundfish species and product combination listed in Table 3 to this
part.
GFR% is the groundfish retention percentage for an Amendment 80
cooperative calculated as GFroundweight divided by the total weight
of groundfish catch.
TotalGF is the total groundfish round catch weight for all Amendment
80 vessels assigned to that Amendment 80 cooperative as measured by
the flow scale measurement, less any non-groundfish, PSC species or
groundfish species on prohibited species status under Sec. 679.20.
(E) For each Amendment 80 cooperative, a third party must audit the
Amendment 80 cooperative's annual groundfish retention calculations and
the Amendment 80 cooperative must include the finding of the third
party audit in its Amendment 80 annual cooperative report.
* * * * *
Sec. 679.7 [Amended]
4. In Sec. 679.7, remove and reserve paragraphs (m) and
(o)(4)(iv).
5. In Sec. 679.27,
a. Remove and reserve paragraph (j); and
b. Revise paragraph (b)(4) to read as follows:
Sec. 679.27 Improved Retention/Improved Utilization Program.
* * * * *
(b) * * *
(4) For catcher/processors not listed in Sec. 679.4(l)(2)(i) using
trawl gear in the BSAI, all species listed in Table 2a to this part,
except for groundfish in prohibited species status.
* * * * *
6. In Sec. 679.93, revise paragraph (c)(1) to read as follows:
Sec. 679.93 Amendment 80 Program recordkeeping, permits, monitoring,
and catch accounting.
* * * * *
(c) * * *
(1) Catch weighing. All catch are weighed on a NMFS-approved scale
in compliance with the scale requirements at Sec. 679.28(b). Each haul
must be weighed separately, all catch must be made available for
sampling by a NMFS-certified observer, and no sorting of catch may take
place prior to weighing.
* * * * *
[FR Doc. 2012-25012 Filed 10-12-12; 8:45 am]
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