[Federal Register Volume 63, Number 173 (Tuesday, September 8, 1998)]
[Proposed Rules]
[Pages 47462-47464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24031]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 980826225-8225-01 ; I.D. 081498C]
RIN 0648-AL50
Fisheries of the Exclusive Economic Zone Off Alaska; Extension of
the Interim Groundfish Observer Program through December 31, 2000
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule to extend the current groundfish
observer coverage requirements and implementing regulations for the
North Pacific Groundfish Observer Program (Observer Program) that
expire December 31, 1998. This action is necessary to assure
uninterrupted observer coverage through December 31, 2000.
This action is intended to accomplish the objectives of the Fishery
Management Plan for Groundfish of the Gulf of Alaska and the Fishery
Management Plan for the Groundfish Fishery of the Bering Sea and
Aleutian Islands Area (FMPs).
DATES: Comments on this proposed rule must be received by October 8,
1998.
ADDRESSES: Comments should be sent to Sue Salveson, Assistant Regional
Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box
21668, Juneau, AK 99802, Attn: Lori J. Gravel, or delivered to the
Federal Building, 709 West 9th Street, Juneau, AK. 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, and the RIR/Initial Regulatory Flexibility
Analysis (IRFA) prepared for this proposed regulatory action also may
be obtained from the same address.
FOR FURTHER INFORMATION CONTACT: Sue Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska
and the Bering Sea and Aleutian Islands management area 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 also pertain to U.S. fisheries appear at
subpart H of 50 CFR part 600.
In 1996, the Council adopted and NMFS implemented the Interim
Groundfish Observer Program. The Interim Groundfish Observer Program
superseded the North Pacific Fisheries Research Plan and extended the
1996 mandatory groundfish observer requirements through 1997 (61 FR
56425, November 1, 1996) and again through 1998 (62 FR 67755, December
30, 1997). The intent of the Interim Observer Program is to provide for
the collection of observer data necessary to manage the Alaska
groundfish fisheries while a long-term program is being developed to
address concerns about observer data integrity, observer compensation
and working conditions, and equitable distribution of observer coverage
costs. During 1997 and 1998, NMFS attempted to address the first two
concerns through the development of a joint partnership agreement
(JPA). The JPA would be an agreement with a third party organization
that would be implemented by 1999 for that organization to provide
observer procurement services for the Alaska groundfish industry. The
Pacific States Marine Fisheries Commission (PSMFC) expressed a
willingness to serve as the third party organization to provide these
services under a JPA. Throughout 1997 and 1998, NMFS consulted with the
Council on the progress toward development of a JPA between NMFS and
PSMFC.
At its December 1997 meeting, the Council further requested NMFS to
address the observer coverage cost distribution issue through either
reconsideration of the North Pacific Fisheries Research Plan that was
repealed in 1995 (61 FR 56425, November 1, 1996), or the development of
an alternative funding mechanism. The Council intended that options to
address the cost distribution issue be developed concurrently with the
JPA, although the implementation schedule of the JPA and of measures to
address industry cost concerns were anticipated to differ.
During late spring 1998, NMFS became aware of two issues that
forestalled the ability of PSMFC to go forward with the JPA concept as
endorsed by the Council and conceptualized by NMFS. First, the
authorities and respective roles of NMFS and PSMFC under a JPA could
subject the agreement to the Services Contract Act (SCA). While it
would be possible to develop a JPA under the SCA, under the SCA's wage
provisions costs of observer services under the JPA would likely
increase beyond those negotiated under union settlement and envisioned
by the Council for this program.
Second, the role envisioned for PSMFC under the JPA would increase
PSMFC's exposure to potential lawsuits. PSMFC determined this exposure
to be too high. Furthermore, NMFS could not sufficiently indemnify
PSMFC against legal challenge because (1) no statutory authority for
such indemnification exists, and (2) the Anti-Deficiency Act precludes
open-ended indemnification. Regulations developed to implement the JPA
could deflect potential lawsuits away from PSMFC to NMFS.
[[Page 47463]]
Nonetheless, such deflection could not sufficiently reduce the
potential for lawsuits in a manner that would allow PSMFC to go forward
with the JPA as endorsed by the Council.
At its June 1998 meeting, the Council was informed that development
of a JPA failed due to the issues described here. Subsequently, the
Council requested NMFS to develop new options for an alternative
infrastructure for the Observer Program that would (1) better assure
the continued collection of quality observer data, and (2) address
observer coverage cost distribution issues through a fee collection or
alternative funding mechanism. NMFS is scheduled to report back to the
Council at its October 1998 meeting on a plan to achieve these
objectives. The Council also recognized that the development of
measures to address concerns about the continued integrity of observer
data and industry cost distribution issues would require extensive time
and coordination efforts among NMFS staff, different industry sectors,
and representatives of observer interests. At its June 1998 meeting,
the Council unanimously requested NMFS to extend the current Interim
Observer Program through December 31, 2000.
A description of the regulatory provisions of the Interim
Groundfish Observer Program was provided in the proposed rule and final
rule implementing this program (61 FR 40380, August 2, 1996; 61 FR
56425, November 1, 1996, respectively) as well as the proposed and
final rule that extended the interim program through 1998 (62 FR 49198,
September 19, 1997; 62 FR 67755, December 30, 1997, respectively).
Consistent with the final rule extending the existing observer program
into 1998, Sec. 679.50(i)(1)(i) of the proposed rule specifies that
observer contractors certified prior to January 1, 1999, and providing
observer services during 1998, would be exempt from the requirement to
submit an application for certification. The intent of this provision
is to alleviate an unnecessary paperwork burden on those observer
contractors who are certified by NMFS and currently provide observer
services. No other changes to the existing regulations are proposed at
this time.
Classification
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
This rule would extend 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 0648-0318 and
0648-0307.
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 existing regulations implementing the interim
observer program through December 31, 2000, is consistent with the
intent and purpose of the Interim Groundfish Observer Program. The
proposed action is a necessary extension of the rule implementing the
Interim Groundfish Observer Program and will provide the same benefits
as listed in the EA/RIR/FRFA for the Interim Groundfish Observer
Program, dated August 27, 1996, and the RIR/FRFA for the extension of
Interim Observer Program through 1998 dated October 28, 1997. Copies of
these analyses are available from NMFS (see ADDRESSES).
NMFS prepared an IRFA as part of the RIR, which describes the
impact this proposed rule would have on small entities, if adopted.
Based on the analysis, it was determined that this proposed rule could
have a significant economic impact on a substantial number of small
entities. A copy of this analysis is also available from NMFS (see
ADDRESSES).
Observer costs borne by vessels and processors are based on whether
an observer is aboard a vessel and on overall coverage needs. Higher
costs are borne by those vessels and shoreside processors that require
higher levels of coverage. Most of the catcher vessels participating
in the groundfish fisheries off Alaska and required to carry observers
(i.e., vessels 60 ft (18.3 mt) LOA and longer) meet the definition of a
small entity under the Regulatory Flexibility Act (RFA). Since 1995,
about 270 catcher vessels carry observers annually. The FRFAs prepared
for the 1997 and 1998 Interim Groundfish Observer Program describe the
degree to which these catcher vessels would be economically impacted by
observer coverage levels or other regulatory provisions of the Observer
Program. The proposed action is not expected to result in any economic
impacts beyond those already analyzed in these previous FRFAs because
this rule would not implement any changes in required observer coverage
levels or other regulations implementing the Interim Observer Program,
except for an extension of the effective date, and the underlying
socioeconomic conditions of the fishery and participating small
entities has remained constant. These impacts are summarized from the
IRFA prepared for this proposed action as follows:
Table 4 of the IRFA summarizes costs by groundfish harvesting
and processing sector considering observer costs as a fraction of
exvessel groundfish value alone, and of the sum of exvessel values
for groundfish and halibut. For most sectors, ranges, averages and
medians are similar for both groundfish only and groundfish plus
halibut categories. Participation in halibut fisheries occurred in
only four of the ten sectors examined (100 percent and 30 percent
fixed-gear catch vessels (CVs), 30 percent fixed-gear catcher/
processor vessels (CPs), and 30 percent trawlers CVs). The data in
Table 4 are based on 1995 assumptions for estimated costs per
observer day ($180-$198/day) and indicate that vessel and processor
observer costs ranged from .02 to 24.8 percent of the operations
exvessel value of catch. Fixed gear vessels generally experience the
highest relative cost for observer coverage (about 3.5 percent of
the groundfish exvessel value for catch vessels > 125 ft LOA and 2.5
percent for catch vessels > 60 ft and < 125 ft LOA). These relative
costs are decreased slightly to 3.4 and 2.0 percent, respectively,
if the vessels' exvessel value of halibut catch is also considered.
Shoreside processors and trawl catcher processors generally paid the
least for observer coverage relative to exvessel value (0.5 percent
and 1.0 percent, respectively). Note that these relative costs would
increase under the proposed action to the extent that observer union
negotiations continue to result in increased costs per deployment
day.
Table 4 also presents data based on an assumption for estimated
costs per observer day of $325/day. Under this higher cost scenario,
vessel and processor observer costs ranged from .04 percent to 40.7
percent of the operations' exvessel value of catch. Again, fixed
gear vessels generally experience the highest relative cost for
observer coverage (about 6.3 percent of the groundfish exvessel
value for catcher vessels > 125 ft LOA and 4.2 percent for catcher/
processor vessels > 125 ft LOA). The relative costs for catcher
vessels is decreased slightly to 6.1 if the vessels' exvessel value
of halibut catch is also considered. Shoreside processors and trawl
catcher processors generally paid the least for observer coverage
relative to exvessel value (0.8 percent and 1.7 percent,
respectively).
Under both cost scenarios, the highest relative costs of
observer coverage were correlated with vessel operations that were
at the lowest end of the revenue spectrum within each sector
examined. The fact that fixed gear operations generally pay higher
relative costs for observer coverage reflects that these operations
generally receive less revenue from the groundfish/halibut fisheries
compared to trawl operations. The single case where observer costs
exceeded 20 percent reflected a single vessel operation that earned
less than $5,500 in groundfish revenues for 1995.
The RFA requires that the IRFA describe significant alternatives to
the proposed rule that accomplish the stated objectives of the
applicable
[[Page 47464]]
statutes and that minimize any significant impact on small entities.
The IRFA must discuss significant alternatives to the proposed rule
such as (1) establishing different reporting requirements for small
entities that take into account the resources available to small
entities, (2) consolidating or simplifying of reporting requirements,
(3) using performance rather than design standards, and (4) allowing
exemptions from coverage for small entities.
Alternatives that addressed modifying reporting requirements for
small entities or the use of performance rather than design standards
for small entities were not considered by the Council or in this
analysis. Such alternatives are not relevant to this proposed action
and would not mitigate the impacts on small entities. Allowing
exemptions for small entities from this proposed action would not be
appropriate because the objective to assure uninterrupted observer
coverage requirements through 2000 could not be achieved if small
entities were exempted.
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. Similarly,
vessels between 60 ft (18.3 m) and 125 ft (38.1 m) LOA have lower
levels of observer coverage than those for vessels over 125 ft (38.1 m)
LOA. These measures, which have been incorporated into the requirements
of the North Pacific Groundfish Observer Program since its inception in
1989, effectively mitigate the economic impacts on some small entities
without adversely affecting implementation of the conservation and
management responsibilities imposed by the FMPs and the Magnuson-
Stevens Act.
The EA/RIR/FRFA prepared for the 1997 Interim Groundfish Observer
Program (61 FR 56425, November 1, 1996) included the North Pacific
Fisheries Research Plan (Research Plan) as an alternative. However, the
Research Plan currently is not a viable alternative to the proposed
interim observer program because fees collected in 1995 were refunded
in early 1996 and, if the Research Plan were pursued as the preferred
alternative, start-up funding would have to be collected again.
Regulations implementing the existing observer program will expire at
the end of 1998. Implementation of a fee-based observer program is not
feasible by the end of this year, which would be necessary to provide
observer coverage for the 1999-2000 groundfish fisheries. The preferred
alternative for an interim observer program is the only option that
could be implemented by January 1, 1999, so that the groundfish
fisheries could commence without interruption.
With the demise of the JPA, the Council again requested NMFS to
address industry cost distribution issues through a fee collection or
alternative funding mechanism. NMFS is scheduled to report back to the
Council at its October 1998 meeting on a plan to achieve this
objective.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: September 1, 1998.
Hilda Diaz-Soltero,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.50, the section heading, paragraphs (i)(1)(i), and
(i)(1)(iii) are revised to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 2000.
* * * * *
(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 and methods to be used. Observer
contractors certified prior to January 1, 1999, and that have provided
observer services during 1998, 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, 2000. NMFS can decertify or suspend observer contractors pursuant
to paragraph (j) of this section.
* * * * *
[FR Doc. 98-24031 Filed 9-4-98; 8:45 am]
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