[Federal Register Volume 60, Number 247 (Tuesday, December 26, 1995)]
[Rules and Regulations]
[Pages 66755-66758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31181]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 677
[Docket No. 950822211-5291-02; I.D. 080395A]
RIN 0648-AD80
North Pacific Fisheries Research Plan; Amendment 1
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; technical amendments.
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SUMMARY: NMFS issues a final rule to implement Amendment 1 to the North
Pacific Fisheries Research Plan (Research Plan). Regulations
implementing Amendment 1 delay full implementation of the Research Plan
until 1997 and establish 1996 observer coverage requirements for the
Research Plan fisheries. This delay is necessary to provide the North
Pacific Fishery Management Council (Council) additional time to address
certain issues presented by implementation of the Research Plan. Two
technical amendments also are implemented to clarify provisions for
refunding excess payments of 1995 Research Plan fee assessments and to
clarify 1996 observer coverage requirements for groundfish vessels.
EFFECTIVE DATE: January 1, 1996.
[[Page 66756]]
ADDRESSES: Copies of the Observer Plan may be obtained from the
Fisheries Management Division, Alaska Region, NMFS, 709 West 9th
Street, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802-1668,
Attn: Lori J. Gravel.
Copies of the Research Plan as revised by Amendment 1, the
environmental assessment/regulatory impact review prepared for the
Research Plan, and the final report ``Establishing the Fee Percentage
and Standard Exvessel Prices for 1995'' may be obtained from the North
Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK
99510.
FOR FURTHER INFORMATION CONTACT: Susan Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Regulations implementing the Research Plan became effective October
6, 1994 (59 FR 46126, September 6, 1994). Since then, these regulations
have been amended three times. The first regulatory amendment was
published in the Federal Register on January 9, 1995 (60 FR 2344), to
clarify 1995 observer coverage requirements and revise the definition
of certain terms set out under Sec. 677.2. A second regulatory
amendment was published on July 5, 1995 (60 FR 34904), to require
vessels and shoreside processors to facilitate transmission of observer
data. The third regulatory amendment was published on August 16, 1995
(60 FR 42470), to revise 1995 observer coverage requirements for crab
catcher vessels and exempt certain crab catcher vessels required to
obtain observer coverage from paying 1995 Research Plan fees.
The Council requested that full implementation of the Research Plan
be delayed for a 1-year period to provide additional time to reconsider
certain elements of the Research Plan that were previously adopted by
the Council. This Council action was developed during the Council's
April and June 1995 meetings, as well as during a May 16, 1995,
teleconference. The Council also expressed its intent to continue the
fee collection program implemented for 1995 for the remainder of the
year, so that adequate start-up funds may be collected for full
implementation of the Research Plan in 1997.
A proposed rule to delay full implementation of the Research Plan
was published in the Federal Register on September 11, 1995 (60 FR
47142). Comments on the proposed rule were invited through November 6,
1995. No written comments were received within the comment period. NMFS
received oral comment on the proposed delay of the Research Plan during
a September 18, 1995, public hearing by teleconference. The public
hearing teleconference provided opportunity for public participation in
Anchorage, AK, Juneau, AK, Seattle, WA, and Newport, OR. Members of the
public participating in the public hearing either provided no comment
or endorsed the proposed delay of the Research Plan.
Section 313(c)(3) of the Magnuson Act requires that, within 45 days
of the close of the public comment period, NMFS, in consultation with
the Council, analyze the public comment received and publish final
regulations for implementing an amendment to the Research Plan.
Consultation with the Council was initiated at the Council's September
1995 meeting. Oral comment received by NMFS and the Council indicated
widespread industry support for the proposed delay of the Research
Plan. NMFS received no further comment subsequent to the September
Council meeting that would require further consultation with the
Council.
NMFS has approved a 1-year delay of the full implementation of the
Research Plan under section 313(c) of the Magnuson Act. Upon reviewing
the Council's reasons for this delay and comments by the industry
endorsing this action, NMFS has determined that this final rule is
consistent with the Magnuson Act. The reasons for this delay are
discussed further in the proposed rule (60 FR 47142, September 11,
1995).
Consistent with the Council's expressed intent, NMFS will continue
to assess fees through early 1996 for fish harvested and retained in
the Research Plan fisheries during 1995. Lacking future regulatory
action to the contrary, collected funds will be held in an interest-
bearing account and will be used to award contracts to provide
observers under the Research Plan starting in 1997. Adequate start-up
funds will be collected during 1995; as a result, Research Plan fees
will not be assessed for fish caught in 1996.
The Council intends that 1996 observer coverage levels remain
unchanged from 1995 levels. These observer coverage requirements for
the groundfish and crab fisheries are set out at Sec. 677.10(a). As in
1995, participants in the groundfish and crab Research Plan fisheries
will be responsible for making their own arrangements and paying for
required observer coverage.
The Council's intent to maintain 1995 observer coverage levels
through 1996 applies to mothership processor vessel and shoreside
processor observer coverage requirements set out in regulations
implementing Amendment 35 to the Fishery Management Plan for the
Groundfish Fishery of the Bering Sea and Aleutian Islands Area. Final
regulations implementing Amendment 35 are codified at 50 CFR 675.25(b)
and are effective through December 31, 1995. In keeping with the
Council's intent to maintain 1995 observer coverage levels in 1996,
NMFS is extending the effective date of observer coverage requirements
implemented under Amendment 35 through December 31, 1996, and including
these requirements in the 1996 Research Plan observer coverage
requirements at Sec. 677.10(a).
NMFS notes that regulations at Sec. 677.10(g) set out vessel safety
requirements applicable in 1996 and beyond. No substantive changes to
these requirements are implemented; however, the regulatory text is
revised to clarify that these requirements apply to vessels required to
carry observers in 1996 under Sec. 677.10(a).
NMFS further notes that the following sections of the Observer Plan
still will be in effect until full implementation of the Research Plan
in 1997: (1) Standards of observer conduct; and (2) description,
specifications, and work statement for certified domestic observer
contractors, including conflict of interest standards for NMFS-
certified observers and contractors and conditions for contractor and
observer certification revocation. Copies of the Observer Plan dated
May 1994 are available from NMFS (see ADDRESSES).
Technical Amendments
Two technical amendments are implemented to clarify NMFS's intent
for the Research Plan in 1996. The first technical amendment is
necessary to allow groundfish and crab processors that participate in
the 1996 Research Plan fisheries to receive a refund for costs of 1995
observer coverage up to an amount equal to the sum of the fee
assessments paid by the processor for retained catch during 1995.
Section 677.6(d)(3)(ii)(C) authorizes NMFS to refund excess payments of
1995 Research Plan fee assessments to processors that do not intend to
participate in the Research Plan fisheries during the first half of
1996. This provision assumes that a fee assessment program would be
ongoing in 1996 and that processors participating in the 1996 Research
Plan fisheries could be credited for any excess payments of their 1995
fee assessments on their 1996 bills. However, the final rule to delay
full implementation of the Research Plan does not authorize a fee
assessment program during 1996. As a result,
[[Page 66757]]
regulatory language at Sec. 677.6(d)(3)(ii)(C) must be removed so that
all processors who are owed a refund from the 1995 fee assessment
program can be issued a refund regardless of whether they participate
in a Research Plan fishery during the first half of 1996 or not.
The second technical amendment is necessary to clarify 1996
observer coverage requirements for groundfish vessels that are set out
at Sec. 677.10(a)(1). Under the general provisions, a catcher/processor
or catcher vessel equal to or greater than 60 ft (18.3 m) length
overall (LOA) but less than 125 ft (38.1 m) LOA that is used to
participate for more than 3 fishing days in a directed fishery for
groundfish during a calendar quarter must carry a NMFS-certified
observer during at least 30 percent of its fishing days during that
calendar quarter. This means that if a vessel equal to or greater than
60 ft (18.3 m) LOA but less than 125 ft (38.1 m) LOA retrieves fishing
gear and retains amounts of any groundfish species in excess of the
maximum retainable bycatch amounts specified in Secs. 672.20(g) or
675.20(h) during more than 3 days of a calendar quarter, that vessel
must carry a NMFS-certified observer for at least 30 percent of all
fishing days within that calendar quarter. A fishing day is defined at
Sec. 677.2 as ``a 24-hour period, from 0001 Alaska local time (A.l.t.)
through 2400 A.l.t., in which fishing gear is retrieved and groundfish,
halibut, or king or Tanner crab are retained. Days during which a
vessel only delivers unsorted codends to a processor are not ``fishing
days.'' This final rule does not change these general provisions.
In addition, Sec. 677.10(a)(1)(i) contains specific requirements
that provide that, in addition to the general provisions, a vessel must
carry a NMFS-certified observer during at least one fishing trip during
the calendar quarter for each of six separate groundfish categories in
which the vessel participates. These six categories are defined at
Sec. 677.10(a)(1)(ii); the groundfish categories are: the pollock
fishery, the Pacific cod fishery, the sablefish fishery, the rockfish
fishery, the flatfish fishery, and the other species fishery. Under
current regulations, participation in one of these fisheries is based
on whether the retained catch in that fishery, during any fishing trip,
constitutes the predominant catch of all of the groundfish categories
retained by the vessel. These specific categories were developed to
ensure more complete observer coverage of directed fishing operations
for groundfish and were not intended to include fishing operations that
retained only bycatch amounts of groundfish. This provision was
intended to apply only to directed fishing operations for groundfish.
Nonetheless, the actual language of the regulation, plus recent
regulatory action, increased confusion concerning the meaning of this
provision. It could be argued that the regulations implementing the
individual fishing quota (IFQ) program for halibut inadvertently
changed the requirements for observer coverage by increasing the
probability that a person fishing for halibut would trigger a ``fishing
day'' for groundfish. The IFQ regulations require IFQ card holders to
retain all Pacific cod and rockfish, consistent with the maximum
bycatch amounts specified for these species. All sablefish must be
retained on board if a sablefish IFQ card holder is on board the
vessel.
NMFS is implementing this technical amendment to
Sec. 677.10(a)(1)(ii) to clarify that the groundfish fishery categories
subject to the separate observer coverage requirements apply only with
respect to fishing operations that constitute ``directed fishing'' for
groundfish as defined at Secs. 672.2 and 675.2. This change is
consistent with the original intent of the separate observer coverage
requirement, past practice and the common understanding of the how the
separate observer coverage requirements are supposed to be applied. It
removes a possible unintended effect of the IFQ regulations. To the
extent that this action has any substantive effect, it will relieve an
unintended burden for additional observer coverage that otherwise might
be imposed on fishermen participating in the IFQ program.
Classification
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
The reasons for this certification were summarized in the preamble to
the proposed rule.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
A delay of full implementation of the Research Plan until 1997
results in a 1-year hiatus of the fee assessment program authorized
under the Research Plan. As such, this final rule relieves a
restriction and, pursuant to authority at 5 U.S.C. 553(d)(1), the
requirement for a 30-day delay in effective date is inapplicable.
However, NMFS has determined to make this rule effective on January 1,
1996, to coincide with the start of the 1996 fishing year.
One of the technical amendments implemented under this action
clarifies NMFS' intent with respect to issuing refunds of excess
payments of the 1995 Research Plan fee assessment. Without this
amendment, processors participating in a Research Plan fishery during
the first part of 1996 would not be eligible to receive a refund until
1997, when the Research Plan fee assessment program would be
reinitiated and refund amounts could be credited against 1997 billed
fees assessments.
The second technical amendment clarifies 1996 groundfish observer
coverage requirements to exempt from observer coverage those vessels
participating in a nongroundfish fishery and retaining bycatch amounts
of groundfish. In that the first technical amendment ensures that an
action that would have occurred under authority of a regulation issued
through notice and comment rulemaking but for the delay in full
implementation of the Research plan does in fact occur and that the
second technical amendment simply clarifies NMFS intent in an existing
regulation, good cause exists, pursuant to authority at 5 U.S.C.
553(b)(B), to waive prior notice and opportunity to comment on the
technical amendments as such procedure is unnecessary. Because the
technical amendments relieve restrictions, a delay in the effective
date is not necessary under U.S.C. 553(d)(1).
List of Subjects in 50 CFR Part 677
Fisheries, Reporting and recordkeeping requirements.
Dated: December 15, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 677 is amended
as follows:
PART 677--NORTH PACIFIC FISHERIES RESEARCH PLAN
1. The authority citation for part 677 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 677.6, paragraph (d)(3)(ii)(C) is removed, paragraph
(b)(2) is redesignated as paragraph (b)(3), paragraph (d)(3)(ii)(D) is
redesignated as paragraph (d)(3)(ii)(C), new paragraph (b)(2) is added,
and the heading to newly redesignated paragraph (b)(3) is revised to
read as follows:
Sec. 677.6 Research Plan fee.
* * * * *
[[Page 66758]]
(b) * * *
(2) Fee assessments during 1996. Processors of Research Plan
fisheries will not be assessed fees based on catch from Research Plan
fisheries that is retained during the 1996 calendar year.
(3) Fee assessments applicable after December 31, 1996. * * *
* * * * *
3. In Sec. 677.10, the headings for paragraphs (a) and (b), the
introductory text to paragraph (g), and paragraphs (a)(1)(ii)(A)
through (F) are revised, paragraphs (a)(1)(i)(C) through (a)(1)(i)(F)
are redesignated as paragraphs (a)(1)(i)(D) through (a)(1)(i)(G),
respectively, and paragraphs (a)(1)(i)(C) and (a)(2)(iii) are added to
read as follows:
Sec. 677.10 General requirements.
(a) Observer requirements applicable through December 31, 1996--(1)
* * * (i) * * *
(C) Each mothership processor vessel that receives pollock
harvested by catcher vessels in the catcher vessel operational area,
defined at Sec. 675.22(g) of this chapter, during the second pollock
season that starts on August 15 under Sec. 675.23(e) of this chapter,
is required to have a second NMFS-certified observer aboard, in
addition to the observer required under paragraphs (a)(1)(i)(A) and (B)
of this section, for each day of the second pollock season until the
chum salmon savings area is closed under Sec. 675.22(h)(2) of this
chapter, or October 15, 1996, whichever occurs first.
* * * * *
(ii) * * *
(A) Pollock fishery. Directed fishing for groundfish that results
in a retained catch of pollock, during any fishing trip, that is
greater than the retained catch of any other groundfish species or
species group that is specified as a separate groundfish fishery under
this paragraph (a)(1)(ii).
(B) Pacific cod fishery. Directed fishing for groundfish that
results in a retained catch of Pacific cod, during any fishing trip,
that is greater than the retained catch of any other groundfish species
or species group that is specified as a separate groundfish fishery
under this paragraph (a)(1)(ii).
(C) Sablefish fishery. Directed fishing for groundfish that results
in a retained catch of sablefish, during any fishing trip, that is
greater than the retained catch of any other groundfish species or
species group that is specified as a separate groundfish fishery under
this paragraph (a)(1)(ii).
(D) Rockfish fishery. Directed fishing for groundfish that results
in a retained aggregate catch of rockfish of the genera Sebastes and
Sebastolobus, during any fishing trip, that is greater than the
retained catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph
(a)(1)(ii).
(E) Flatfish fishery. Directed fishing for groundfish that results
in a retained aggregate catch of all flatfish species, except Pacific
halibut, during any fishing trip, that is greater than the retained
catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph
(a)(1)(ii).
(F) Other species fishery. Directed fishing for groundfish that
results in a retained catch of groundfish, during any fishing trip,
that does not qualify as a pollock, Pacific cod, sablefish, rockfish,
or flatfish fishery as defined under paragraphs (a)(1)(ii)(A) through
(E) of this section.
* * * * *
(2) * * *
(iii) Each shoreside processor that offloads pollock at more than
one location on the same dock and has distinct and separate equipment
at each location to process those pollock and that receives pollock
harvested by catcher vessels in the catcher vessel operational area,
defined at Sec. 675.22(g) of this chapter, during the second pollock
season that starts on August 15, under Sec. 675.23(e) of this chapter,
is required to have a NMFS-certified observer, in addition to the
observer required under paragraphs (a)(2)(i) and (ii) of this section,
at each location where pollock is offloaded, for each day of the second
pollock season until the chum salmon savings area is closed under
Sec. 675.22(h)(2) of this chapter, or October 15, 1996, whichever
occurs first.
* * * * *
(b) Observer requirements applicable after December 31, 1996--(1) *
* * (i) * * *
* * * * *
(g) Vessel safety requirements applicable after December 31, 1995.
Any vessel that is required to carry observers under paragraph (a) or
(b) of this section must have onboard either:
* * * * *
4. In Sec. 677.11, paragraph (a)(4) is revised to read as follows:
Sec. 677.11 Annual Research Plan specifications.
(a) * * *
(4) Observer coverage. For the period January 1, 1996, through
December 31, 1996, observer coverage levels in Research Plan fisheries
will be as required by Sec. 677.10(a). After December 31, 1996, the
level of observer coverage will be determined annually by NMFS, after
consultation with the Council and the State of Alaska, and may vary by
fishery and vessel or processor size, depending upon the objectives to
be met for the groundfish, halibut, and king and Tanner crab fisheries.
The Regional Director may change observer coverage inseason pursuant to
Sec. 677.10(b)(2)(ii).
* * * * *
[FR Doc. 95-31181 Filed 12-22-95; 8:45 am]
BILLING CODE 3510-22-F