[Federal Register Volume 77, Number 199 (Monday, October 15, 2012)]
[Proposed Rules]
[Pages 62482-62489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25012]



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.


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 
    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, 
    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 [email protected] 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.


    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)
                                                              Annual GRS
                        GRS Schedule                          (Percent)
2008.......................................................           65
2009.......................................................           75
2010.......................................................           80
2011 and each year after...................................           85

    In June 2006, the Council adopted Amendment 80 to the FMP, which 
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 
    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 
    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 

[[Page 62485]]


    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 
    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 
    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 

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 

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.  
     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).


    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 
    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 
    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 [email protected], 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:


    1. The authority citation for 50 CFR part 679 continues to read as 

    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:

    Substituting the value for GFroundweight into the following 

GFR% = (GFroundweight /TotalGF)* 100


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 
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.  
PRRspeciesn is the standard product recovery rate for each 
groundfish species and product combination listed in Table 3 to this 
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 
    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]