[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80381-80383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32424]
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DEPARTMENT OF COMMERCE
National Oceanic Atmospheric Administration
50 CFR Part 679
[Docket No. 001023289-0289-01; I.D. 083000C]
RIN 0648-AO25
Fisheries of the Exclusive Economic Zone Off Alaska; Extension of
the Interim Groundfish Observer Program through December 31, 2002
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to extend through 2002 the
regulations implementing the Interim North Pacific Groundfish Observer
Program (Interim Observer Program), which otherwise would expire
December 31, 2000. This action is necessary to ensure uninterrupted
observer coverage through December 31, 2002. The intention is to
advance the management objectives of the Fishery Management Plan for
the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and
the Fishery Management Plan for Groundfish of the Gulf of Alaska
(FMPs). This final rule does not amend the existing regulations, except
to extend the certifications of observer contractors who are currently
certified by NMFS.
DATES: Effective January 1, 2001.
ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for
the 1997 Interim Groundfish Observer Program, the RIR/FRFA prepared for
the 1998 Interim Groundfish Observer Program, the RIR/FRFA prepared for
the 1999-2000 Interim Groundfish Observer Program, and the RIR/FRFA
prepared for this final regulatory action may be obtained from the
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori
Gravel. Send comments on any ambiguity or unnecessary complexity
arising from the language used in this final rule to the Administrator,
Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668.
FOR FURTHER INFORMATION CONTACT: Bridget Mansfield, 907-586-7228.
SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries
of the Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands
Management Area (BSAI) in the Exclusive Economic Zone under the FMPs.
The North Pacific Fishery Management Council (Council) prepared the
FMPs pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). Regulations implementing the
FMPs appear at 50 CFR part 679. General regulations that pertain to
U.S. fisheries appear at subpart H of 50 CFR part 600.
The Council adopted and NMFS implemented the Interim Observer
Program in 1996, which superseded the North Pacific Fisheries Research
Plan (Research Plan). The regulations implementing the Interim Program
were extended through 1997 (61 FR 56425, November 1, 1996), again
through 1998 (62 FR 67755, December 30, 1997), and again through 2000
(63 FR 69024, December 15, 1998). The Interim Observer Program provides
the framework for the collection of data by observers to obtain
information necessary for the conservation and management of the
groundfish fisheries managed under the FMPs. Further, it authorizes
mandatory observer coverage requirements for vessels and shoreside
processors and establishes vessel, processor and contractor
responsibilities relating to the observer program. NMFS intends that by
2003 a long-term program will be developed and implemented that
addresses several current concerns. These include data integrity,
observer compensation, working conditions for observers, and equitable
distribution of observer costs.
NMFS is working with the Council and the Council's Observer
Advisory Committee (OAC) to address these concerns and to develop new
options for an alternative infrastructure for an Observer Program. A
new infrastructure would be expected to ensure the continued collection
of quality observer data and address observer coverage cost
distribution issues through a fee system or alternate funding
mechanism.
The development of a new infrastructure will require extensive time
and coordination among NMFS staff, the OAC, and representatives of the
industry sectors and observer interests. NMFS and the Council intend to
implement a replacement structure for the program prior to the
expiration of the Interim Observer Program on December 31, 2002.
A description of the regulatory provisions of the Interim
Groundfish Observer Program was provided in the proposed and final
rules implementing this program (61 FR 40380, August 2, 1996; 61 FR
56425, November 1, 1996, respectively) as well as the proposed and
final rules extending this program through 1998 and again through 2000
(62 FR 49198, September 19, 1997; 62 FR 67755, December 30, 1997; 63 FR
47462, September 8, 1998; 63 FR 69024, December 15, 1998,
respectively).
A proposed rule to extend the Interim Observer Program through 2002
was published in the Federal Register on November 3, 2000 (65 FR
66223), for a 17-day public comment and review period that ended on
November 20, 2000. No written comments were received. This final rule
does not change the existing regulations, except to extend
certification of observer contractors who are currently certified by
NMFS under the terms and conditions set forth in the regulations at
Sec. 679.50(i).
Changes From the Proposed Rule
No changes are made in this final rule from the proposed rule
published in the Federal Register (65 FR 66223 November 3, 2000).
Small Entity Compliance Guide
The following information satisfies the Small Business Regulatory
Enforcement Act of 1996, which requires a plain language guide to
compliance with this final rule by affected small entities.
How much observer coverage do I need?
Observer coverage requirements for vessels over 60 ft (18.3 m)
length overall (LOA) and up, other than motherships, that fish for
groundfish in the BSAI or the GOA are applicable each calendar quarter
and are specific to vessel type and length. Coverage requirements also
vary according to the gear used and the directed fishery in which the
vessel participates. Vessels under 60 ft (18.3 m) LOA are exempt from
observer coverage under this final rule.
[[Page 80382]]
Coverage requirements for shoreside processors and motherships are
specified according to projected landings in a given month. Additional
coverage requirements for vessels and shoreside processors are
specified under the Community Development Quota Program (CDQ) and
American Fisheries Act (AFA).
The regulations found at 50 CFR 679.50 should be referenced for
specific coverage requirements.
Who is responsible for ensuring that observer coverage is met?
The operator of the vessel or shoreside processor is responsible
for obtaining appropriate coverage levels as specified by regulation.
The owner of a vessel must ensure the operator complies and is liable
with the operator for compliance.
How do I obtain an observer?
Vessel owner/operators are required to procure observers directly
through a NMFS-certified observer provider company (contractor). A list
of contractors is available from the NMFS Alaska Regional Office (see
ADDRESSES) or from the North Pacific Groundfish Observer Program at
(206) 526-4078.
What if an observer is not available when I need one?
In general, a vessel may not fish for groundfish and a shoreside
processor may not process groundfish without a required observer. NMFS
encourages vessels and shoreside processors that anticipate the need
for an observer to contact, as early as possible and in writing, the
contractors that provide observers to allow enough time to ensure the
availability of an observer when needed. A written contract regarding
the terms of agreement with the contractor for providing observer
coverage also is encouraged. If an observer also is not available when
the vessel or shoreside processor has requested one, the vessel or
shoreside processor may need to adjust operations. For a vessel or
shoreside processor requiring 100 percent observer coverage, if an
observer is not available when scheduled operations would require one,
the vessel or shoreside processor would be in violation of coverage
regulations should the vessel continue to fish for groundfish, or, in
the case of a mothership or shoreside processor, continue to receive
and process groundfish. Vessels or shoreside processors that require 30
percent observer coverage in a given calendar quarter or month may have
some latitude to obtain observer coverage later that quarter or month.
However, the vessels or shoreside processors requiring 30 percent
observer coverage will be considered in violation of coverage
regulations if, by the close of the calendar quarter or month, they do
not obtain the appropriate level of coverage for that period.
What are my responsibilities to the Observer aboard my vessel or at my
shoreside processor?
At no cost to the observers or the U.S. Government, vessels must
provide food and accommodation equivalent to that of the vessels'
officers or other management-level personnel of the vessel. Vessels and
shoreside processors must maintain safe conditions, and vessels must
adhere to U.S. Coast Guard rules for safe operation of the vessel and
display a valid Commercial Fishing Vessel Safety Decal issued by the
Coast Guard. Vessels and shoreside processors must facilitate the
transmission of observer data by providing the appropriate computer and
communications hardware equipped with NMFS-supplied software. Observers
must have free and unobstructed access to equipment and areas of a
vessel or shoreside processor, as outlined in the regulations, that are
necessary for observers to complete their work. Such access must also
be available to records such as the Daily Fishing Log, Daily Catch
Processing Log, product transfer forms, scale information or production
records, or any logs or documents required by regulation. Observers
must be notified in advance of fish being brought aboard the vessel or
a delivery being received at a shoreside processor, unless the observer
requests otherwise. Observers must be reasonably assisted in carrying
out their duties, including being provided with a safe work area. The
Community Development Quota Program and American Fisheries Act programs
have additional requirements outlined in regulations implementing those
programs.
What are the responsibilities of an observer provider company?
The observer provider (specified in the regulations as the
contractor) must be certified by NMFS to provide observer services to
vessels and shoreside processors operating in the BSAI and GOA.
Contractors are required to provide a NMFS-certified observer to a
shoreside processor or vessel upon request. This means that they are
responsible for recruiting and hiring qualified candidates; providing
observers' salaries; benefits and personnel services in a timely
manner; providing all logistics, including travel and per diem costs to
get an observer to place of deployment. Contractors must meet
requirements of deployment length and assignment criteria and must
replace an observer or prospective observer under specified conditions.
Contractors must maintain communication with deployed observers with an
employee on call 24 hours a day for observer emergencies and must
ensure observer data, biological samples, and other communication are
transmitted or transferred to NMFS within the specified time frames.
Contractors must also ensure that observers meet all NMFS training,
briefing, and debriefing requirements, as well as all equipment
maintenance and replacement requirements. Contractors are responsible
to monitor observers' performance to ensure satisfactory conformance to
NMFS standards. Contractors are responsible to provide NMFS with
information as specified in regulations under Sec. 679.50(i)(2)(xiv).
Finally, contractors must conform with conflict-of-interest standards
as set out in Sec. 679.50(i)(3).
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule extends without change existing collection-of-
information requirements subject to the Paperwork Reduction Act (PRA).
The collection of this information has been approved by the Office of
Management and Budget (OMB) under OMB control numbers 0648-0307 and
0648-0318.
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.
The extension of the regulations implementing the Interim Observer
Program through December 31, 2002, is consistent with the intent and
purpose of the Interim Observer Program. The extension will provide the
same benefits as listed in the EA/RIR/FRFA for the Interim Observer
Program dated August 27, 1996, the RIR/FRFA for the extension of the
Interim Observer Program through 1998 dated October 28, 1997, and the
RIR/FRFA for the extension of the Interim Observer Program through
2000, dated June 4, 1998. Copies of these analyses are available from
NMFS (see ADDRESSES).
NMFS prepared an FRFA, which describes the impact this final rule
[[Page 80383]]
would have on small entities. A copy of this analysis is also available
from NMFS (see ADDRESSES). No comments on the Initial Regulatory
flexibility Analysis were received during the public comment period on
the proposed rule. NMFS has determined that this final rule could have
a significant impact on a substantial number of small entities.
Alternatives that addressed modifying reporting requirements for small
entities or the use of performance standards rather than design
standards for small entities were not included in the analysis, because
such alternatives are not relevant to this final action and would not
mitigate impacts on small entities. Allowing exemptions for small
entities would not be appropriate because the objective to ensure
uninterrupted observer coverage requirements through 2002 would not be
achieved would undermine the collection of information needed to
effectively manage the Alaska groundfish fisheries.
Under the definition of small entity for the fisheries harvesting
and processing industry, 6 companies certified by NMFS to supply
observers and 19 shoreside processors that would be impacted by this
action are considered small entities with fewer than 500 employees.
With the exception of Anchorage, 17 Alaskan communities impacted by
this rule qualify as ``small jurisdictions'', under Regulatory
Flexibility Act definitions. None of these communities is directly
regulated by this action, and there are no anticipated indirect effects
associated with the action that would accrue to this group of ``small
entities''.
Approximately 1,315 vessels that caught groundfish off Alaska while
fishing Federal total allowable catch amounts in 1997 were
provisionally considered to be small entities. Most persons operating
in the fisheries impacted by the action are small entities given their
expected gross annual revenues less than $3 million. The ownership
characteristics of vessels operating in the fisheries have not been
thoroughly analyzed to determine if they are independently owned and
operated or affiliated with a larger parent company.
This may represent an overestimate of vessels considered to be
small entities, because in 1997, the most recent year for which data on
the number of vessels considered to be large entities is available, 59
vessels were considered large entities based solely on their Alaska
groundfish fishery ex-vessel value and product value. This is
considered to be an underestimate of large entities for the following
reasons: (1) earnings from other fisheries and activities were not
included,; (2) a vessel's owner's earnings from other sources were not
included; (3) ex-vessel value of a delivery by a catcher vessel to an
at-sea processor was included only when a fish ticket with value was
submitted for the delivery; (4) vessel-specific fish ticket landings
weight and value data are used to estimate ex-vessel value for catcher
vessels, but such data are not available for all deliveries to inshore
processors.
However, this action does include measures that will minimize the
significant economic impacts of observer coverage requirements on at
least some small entities. Vessels less than 60 ft (18.3 m) LOA are not
required to carry an observer while fishing for groundfish. Vessels 60
ft (18.3 m) and greater, but less than 125 ft (38.1 m) LOA, have lower
levels of observer coverage than those 125 ft (38.1 m) and above.
Recently, NMFS proposed reductions in observer coverage for some CDQ
vessels and shoreside processors. Since the inception of the North
Pacific Groundfish Observer Program in 1989, NMFS has strived to
mitigate the economic impacts of the observer program on small
entities. In doing so, NMFS has not significantly adversely affected
the implementation of the conservation and management responsibilities
imposed by the FMPs prepared under the Magnuson-Stevens Fishery
Conservation and Management Act.
The Assistant Administrator for Fisheries, NOAA, (AA) finds for
good cause under 5 U.S.C. 553(d) that delaying the effectiveness of
this rule for 30 days would be contrary to the public interest. Such a
delay would cause the Observer Program to expire. For conservation and
management reasons, NMFS could not allow fishing in 2001 without
requiring observer coverage necessary to monitor and manage the Alaska
groundfish fisheries. Also, this final rule is not establishing any new
requirements with which affected parties must come into compliance. For
these reasons, a delay in the effective date is not warranted.
Accordingly, the AA makes the extension effective on January 1, 2001.
The President has directed Federal agencies to use plain language
in their communications with the public, including regulations. To
comply with this directive, we seek public comment on any ambiguity or
unnecessary complexity arising from the language used in this proposed
rule. Such comments such be sent to the Administrator, Alaska Region
(see ADDRESSES).
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: December 14, 2000
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is 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., and 3631 et seq.
2. In Sec. 679.50, the section heading, and paragraphs (i)(1)(i)
and (i)(1)(iii) are revised to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 2002.
* * * * *
(i) * * *
(1) * * *
(i) Application. An applicant seeking to become an observer
contractor must submit an application to the Regional Administrator
describing the applicant's ability to carry out the responsibilities
and duties of an observer contractor as set out in paragraph (i)(2) of
this section and the arrangements to be used. Observer contractors
certified for the year 2000 to provide observers through the North
Pacific Groundfish Observer Program, are exempt from this requirement
to submit an application and are certified for the term specified in
paragraph (i)(1)(iii) of this section.
* * * * *
(iii) Term. Observer contractors will be certified through December
31, 2002. NMFS can decertify or suspend observer contractors pursuant
to paragraph (j) of this section.
* * * * *
[FR Doc. 00-32424 Filed 12-20-00; 8:45 am]
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