[Federal Register: June 13, 2007 (Volume 72, Number 113)]
[Rules and Regulations]
[Page 32559-32562]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jn07-14]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 070209029-7118-02; I.D. 112906A]
RIN 0648-AU58
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
Observer Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to amend regulations implementing
the North Pacific Groundfish Observer Program (Observer Program). This
action is necessary to avoid expiration of these regulations on
December 31, 2007, and ensure uninterrupted observer coverage in North
Pacific groundfish fisheries. This action is intended to promote the
goals and objectives of the Fishery Management Plan for Groundfish of
the Bering Sea and Aleutian Islands Management Area and the Fishery
Management Plan for Groundfish of the Gulf of Alaska (FMPs).
DATES: Effective on July 13, 2007.
ADDRESSES: Copies of the final Environmental Assessment/Regulatory
Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA)
prepared for this action may be obtained from the NMFS Alaska Region,
P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the
NMFS Alaska
[[Page 32560]]
Region website at http://www.fakr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or
jason.anderson@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the Bering Sea and
Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) in the
Exclusive Economic Zone (EEZ) under the FMPs. The North Pacific Fishery
Management Council (Council) has 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.
High quality observer data are a cornerstone of Alaska groundfish
fisheries management. However, the quality and utility of observer data
suffer due to the current structure of procuring and deploying
observers. Under the current program, coverage levels vary with the
size of the vessel or the quantity of fish processed. Vessel owners and
operators choose when and where to carry observers, and fishery
managers do not control when and where observers are deployed. To
address these concerns, the Council directed NMFS to develop an
alternate program structure. Since the early 1990s, the Council and
NMFS have explored alternative program structures as part of three
separate actions. However, the Council identified problems with each of
these actions and none were adopted. While the Council was developing
and considering options for an alternate program structure, the Council
recommended, and the Secretary approved, several extensions of the
Observer Program regulations. A thorough discussion of the need for,
and history of, the Observer Program, including past efforts to
restructure and extend the Observer Program, is provided in the
proposed rule (72 FR 7948, February 22, 2007) and EA/RIR/FRFA prepared
for this action (see ADDRESSES), and is not repeated here.
In October 2002, the Council tasked its observer advisory committee
(OAC) to develop a problem statement and alternatives for restructuring
the Observer Program. In April 2003, the Council adopted a suite of
alternatives that contemplated restructuring the Observer Program in a
stepwise approach, beginning in the GOA. However, as NMFS began
evaluating these alternatives, it became apparent that certain
operational and data quality issues would be difficult to resolve in a
revised program under which NMFS contracted directly with observers for
observer services in the GOA, but retained the current system for
procuring observer services in the BSAI.
From December 2003 through June 2005, the Council refined the suite
of alternatives, and in June 2005 adopted the alternatives for
analysis. These alternatives include options to restructure the
Observer Program for all groundfish and halibut vessels fishing in the
GOA only, for halibut vessels and certain sectors fishing in both the
GOA and BSAI, and for all groundfish and halibut fisheries. Shoreside
and stationary floating processors were included under each alternative
depending on their location and management program. In addition to the
``no-action'' alternative under which the Observer Program would
expire, the Council also asked staff to analyze an alternative that
would remove the December 31, 2007, expiration date and continue
current observer coverage regulations without an expiration date.
While the Council intended to adopt a preferred alternative by
January 1, 2008, several issues arose during the course of analysis of
the alternatives that has made this difficult. First, due to
uncertainty about the applicability of overtime pay provisions of the
Fair Labor Standards Act to contracted observers, staff were unable to
adequately estimate observer costs under any of the restructuring
alternatives. Second, the Research Plan authority to assess a fee for
observer coverage could not be exclusively applied to a subset of the
North Pacific groundfish fisheries vessels. Therefore, all the action
alternatives except Alternative 2 (extension of the current program)
required new statutory authorization for fee collection from a portion
of the fleet or to implement different fee mechanisms for different
sectors, as were considered in the analysis.
Because observer costs could not be adequately estimated and the
uncertainty that Congress would authorize fee collection, NMFS
recommended that the Council adopt Alternative 2 as its preferred
alternative. The Council concurred and adopted Alternative 2 at its
February 2006 meeting. The Council also amended the problem statement
to reflect that, while Alternative 2 does not address most of the
issues in the problem statement, it ensures Observer Program viability,
and the continued collection of information necessary to manage the
North Pacific fisheries. While the costs of the restructuring
alternatives cannot be adequately estimated at this time, the analysis
prepared for this action includes restructuring alternatives to provide
context to the Council's adoption of Alternative 2.
Expiration of the Observer Program would result in significant
costs to groundfish fishery participants. Without data collected by
observers, NMFS would be forced to adopt a much more conservative
approach towards managing the groundfish fisheries of the GOA and BSAI.
Such an approach could lead to early fisheries closures because no
observer data would be collected to monitor and estimate groundfish
total allowable catch (TAC) and prohibited species catch. NMFS would
likely rely more on population models to generate allowable biological
catch and TAC recommendations. In addition, failure to maintain a
groundfish observer program in the North Pacific would violate the
terms of a variety of statutes, including the Endangered Species Act
(ESA). The ESA requires observer coverage as a reasonable and prudent
measure for certain management actions. These are non-discretionary
measures under current biological opinions and are prescribed under the
incidental take statements for endangered marine mammals, salmon, and
seabirds.
In June 2006 the Council decided it would consider amendments to
the FMPs proposing restructuring alternatives for the Observer Program
when (1) legislative authority is established for fee-based
alternatives; (2) the cost issues described above are clarified (by
statute, regulation, or guidance) to allow estimated costs associated
with the fee-based alternatives; or (3) the Council responds to changes
in conditions that cannot be anticipated now.
On January 12, 2007, the President signed the Magnuson-Stevens
Fishery Conservation and Management Reauthorization Act (Public Law
109-479). The reauthorized Magnuson-Stevens Act includes language that
appears to allow the Council to adopt a fee collection program as
considered in the analysis. However, the exact nature of the fee
program authorized by the Magnuson-Stevens Act must be determined, the
Council must consider new FMP amendments to restructure the current
Observer Program, and NMFS must undergo rulemaking to implement a new
Observer Program. Therefore, implementing a fee collection and
restructured Observer Program prior to the December 31, 2007,
expiration date would be difficult. Additionally,
[[Page 32561]]
the observer cost issues described above remain unresolved.
Revisions to Observer Program Regulations
For the reasons described above, this action removes the December
31, 2007, expiration date from the section heading of Sec. 679.50 and
from regulations at Sec. 679.50(j)(1)(vi). The current Observer
Program will continue until the Council recommends and the Secretary
approves and implements further action to amend the program.
Continuation of the current Observer Program is necessary to prevent
interruption of many current management programs.
The proposed rule to extend the Observer Program beyond 2007 was
published in the Federal Register on February 22, 2007 (72 FR 7948),
and the public review and comment period closed on March 23, 2007. No
comments were received during the comment period.
Classification
The Administrator, Alaska Region, NMFS, determined that the
regulatory amendment is necessary for the conservation and management
of the groundfish fisheries off Alaska and that it is consistent with
the Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
An Initial Regulatory Flexibility Analysis (IRFA) was prepared for
the proposed rule, and described in the Classification section of the
proposed rule. The public comment period ended on March 23, 2007, but
no comments were received on the economic analysis in the proposed
rule.
NMFS prepared a final regulatory flexibility analysis (FRFA). The
FRFA incorporates the IRFA and a summary of the analyses completed to
support the action. A copy of this analysis is available from NMFS (see
ADDRESSES). A summary of the analysis follows.
This action would extend the effective date of regulations
governing the Observer Program beyond December 31, 2007, the current
expiration date. Extending the Observer Program beyond December 31,
2007, is necessary for uninterrupted continuation of many of the
current management programs. The entities that would be directly
regulated by this action are groundfish harvesters and processors of
the BSAI and GOA EEZ. These entities include the groundfish catcher
vessels, groundfish catcher processor vessels, and shoreside processors
active in these areas. It also includes organizations to which direct
allocations of groundfish are made, such as the BSAI Community
Development Quota (CDQ) groups and the American Fisheries Act (AFA)
fishing sectors.
The FRFA identified the following small entities that would be
impacted by this action. Based on 2005 data, 23 of the 87 catcher/
processors active in the North Pacific groundfish fisheries are
considered small entities. All five North Pacific observer provider
companies and the six CDQ groups are considered small entities.
Estimates of the number of shoreside processors that are small entities
include all Alaska processors that reported processing groundfish to
NMFS in 2002. Due to insufficient ownership and affiliation
information, it is not possible, at this time, to determine how many of
the 73 shoreside processors qualify as small entities. However, at
least eight shoreside processors would be considered large entities
because of American Fisheries Act (AFA) affiliations. Finally, 807
catcher vessels have gross revenues less than $4 million for
groundfish, and would be considered small entities.
In the FRFA, Alternative 1 is the no action alternative. Under this
alternative, the current Observer Program would continue to be the only
system under which groundfish observers would be provided in the BSAI
and GOA groundfish fisheries. Regulations authorizing the current
program expire at the end of 2007.
Alternative 2 is the preferred alternative, and would extend the
existing program. Under this alternative, the 2007 sunset date for the
existing program would be removed and the program would be extended
indefinitely with no changes to the overall service delivery model
until the Council took further action.
Alternative 3 would restructure the Observer Program for GOA
groundfish and all halibut fisheries, while BSAI groundfish fisheries
would be administered under the current system. A new ex-vessel value
fee program would be established to fund coverage for GOA groundfish
vessels, GOA-based processors, and halibut vessels operating throughout
Alaska. Regulations that divide the fleet into zero, 30 percent, and
100 percent coverage categories would no longer apply to vessels and
processors in the GOA. Fishermen and processors would no longer be
responsible for obtaining their own observer coverage. Rather, NMFS
would determine when and where to deploy observers based on data
collection and monitoring needs, and would contract directly for
observers using fee proceeds and/or direct Federal funding.
Alternative 4 would restructure the Observer Program for all
fisheries with coverage less than 100 percent. All vessels and
processors assigned to Tiers 3 and 4 would participate in the new
program throughout Alaska and pay an ex-vessel value based fee. In
general, this alternative would apply to all halibut vessels, all
groundfish catcher vessels less than 125 ft (38.1 m) length overall and
all non-AFA shoreside processors. All vessels and processors assigned
to Tiers 1 and 2 (100 percent or greater coverage) would continue to
operate under the current ``pay-as-you-go'' system throughout Alaska.
Alternative 5 would restructure the Observer Program for all
groundfish and halibut fisheries off Alaska. This alternative would
establish a new fee-based groundfish observer program in which NMFS has
a direct contract with observer providers for all GOA and BSAI
groundfish and halibut vessels. Under this alternative, vessels with
100 percent or greater coverage requirements would pay a daily observer
fee and vessels with coverage requirements less than 100 percent would
pay an ex-vessel value based fee.
As noted in the preamble above, Alternative 1 was rejected because
it would result in significant costs to the fleet.
The impacts to small entities of the Alternatives 2 through 5,
expressed as a percentage of the ex-vessel value of groundfish and
halibut landed, are presented in the EA/RIR/FRFA prepared for this
action and are summarized here. Current observer costs expressed as a
percentage of ex-vessel landed catch value can be considered a
reasonable estimate of the costs to each sector of the fleet under
Alternative 2 (rollover of the existing program). In the BSAI
management area for the years 2000 through 2003, these costs averaged
2.54 percent for catcher/processors, 1.49 percent for catcher vessels,
and 0.89 percent for all processors, including motherships. In the GOA
management area for these same years, these costs averaged 1.11 percent
for catcher/processors, 1.71 percent for catcher vessels, and 0.65
percent for all processors.
Adoption of any of these alternatives as presented in the EA/RIR/
FRFA would require selection of a low, middle, or high ex-vessel fee
percentage. Estimated costs expressed as a percentage of ex-vessel
value of groundfish and halibut landings for the low, middle, and high
endpoint options for Alternative 3 are 0.52 percent, 0.70 percent, and
1.05 percent, respectively. Estimated costs in
[[Page 32562]]
terms of a percent of ex-vessel value for Alternative 4 are 0.69
percent, 0.83 percent, and 1.15 percent. Finally estimated costs in
terms of a percent of ex-vessel value for Alternative 5 are 0.69
percent, 0.83 percent, and 1.15 percent. Each of these alternatives was
rejected because they would not continue to provide the benefits
associated with the Observer Program beyond 2007.
Because of the looming sunset clause contained within the No Action
alternative, only Alternative 2 accomplishes the stated objectives, is
consistent with applicable statutes, and would minimize the economic
impact of the action on small entities. Alternative 2 is the only
alternative that achieves the primary objective of this action to
extend the Observer Program beyond December 31, 2007.
No additional recordkeeping, reporting, or compliance requirements
are associated with this action.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: June 8, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851
note; 3631 et seq.
0
2. In Sec. 679.50, the section heading is revised to read and
paragraph (j)(1)(vi) is removed as follows:
Sec. 679.50 Groundfish Observer Program.
* * * * *
[FR Doc. E7-11419 Filed 6-12-07; 8:45 am]
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