[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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