[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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