[Federal Register Volume 72, Number 35 (Thursday, February 22, 2007)]
[Proposed Rules]
[Pages 7948-7950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3019]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070209029-7029-01; 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: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed 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. The proposed rule 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: Written comments must be received by March 23, 2007.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Ellen Sebastian. Comments may be submitted by any of the 
following methods:
     Mail: to P.O. Box 21668, Juneau, AK 99802;
     Hand delivery to the Federal Building: 709 West 9\th\ 
Street, Room 420A, Juneau, AK, 99802;
     Fax: (907) 586-7557;
     E-mail: [email protected]. Include in the subject line 
of the email the following identifier: Observer Program Extension 0648-
AU58. E-mail comments, with or without attachments, are limited to five 
megabytes; or
     Webform at the Federal e-Rulemaking Portal: http://www.regulations.gov.
    Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this 
action may be obtained from the mailing address above or by calling the 
Sustainable Fisheries Division, Alaska Region, NMFS, at 907-586-7228.

FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or 
[email protected].

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.
    Groundfish fisheries in the GOA and BSAI are managed under quotas 
set annually for groundfish species and for several other species that 
groundfish fishery participants are prohibited from retaining. 
Management programs under the FMPs allocate specific quotas among 
areas, seasons, gear types, processor and catcher vessel sectors, 
cooperatives, and individual fishermen. Annual quotas are based on NMFS 
stock assessments and Council recommendations. The Alaska Region NMFS 
is responsible for monitoring the catch of these quotas, and for 
closing the fisheries when quotas are reached. Stock assessments, quota 
monitoring, and management require an accounting for all groundfish and 
prohibited species catch, including discarded catch.
    Observer requirements for fisheries off Alaska have been in place 
since the mid-1970s, when the Magnuson Fishery Conservation and 
Management Act (re-authorized in 1996 as the Magnuson-Stevens Act) was 
implemented and NMFS began to monitor U.S. EEZ foreign groundfish 
fisheries. The Secretary of Commerce (Secretary) and the Council 
recognized that living marine resources cannot be effectively managed 
without the types of information that are either available only or most 
efficiently through an observer program. Therefore, when foreign vessel 
fisheries ended in 1991, the Council developed and the Secretary 
approved a domestic Observer Program that authorized the placement of 
observers on domestic fishing vessels and at shoreside processing 
plants participating in Alaskan groundfish fisheries. The domestic 
Observer Program was implemented through Amendment 18 to the GOA FMP 
and Amendment 13 to the BSAI FMP (54 FR 50386, December 6, 1989, and 55 
FR 4839, February 12, 1990). Observer coverage requirements have 
remained mostly unchanged since approval of the program.
    The current Observer Program has an integral role in the management 
of North Pacific fisheries. The information collected by observers 
provides the best available scientific information for managing the 
fisheries and developing measures to minimize bycatch in furtherance of 
the purposes and national standards of the Magnuson-Stevens Act. 
Observers collect catch data used by managers for quota monitoring and 
management of groundfish and prohibited species, biological data and 
samples used by scientists for stock assessment analyses, information 
used by managers to document and reduce fishery interactions with 
protected resources, and information and samples used by scientists in 
marine ecosystem research. The Observer Program also provides 
information, analyses, and support in the development of proposed 
policy and management measures. Further, observers interact with the 
fishing industry on a daily basis and the Observer Program strives to 
promote constructive communication between the agency and interested 
parties. Observations are used by managers and enforcement personnel to 
document the effectiveness of the management programs of various 
entities, including NMFS, the U.S. Coast Guard, and the U.S. Fish and 
Wildlife Service.
    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 1990's, 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 history of 
the Observer Program, including past efforts to restructure and extend 
the Observer Program, is provided in the EA/RIR/

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IRFA 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 current 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 analyze observer costs under any of the restructure 
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 cannot be adequately calculated 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 calculated 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 there 
would be no observer data for total allowable catch (TAC) and 
prohibited species catch limit calculations. NMFS would likely rely on 
more 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.
    Also in June 2006, the Council decided it would consider a new 
amendment 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 (Pub. Law No. 
109-479). The reauthorized Magnuson-Stevens Act includes language that 
would appear 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 a new amendment 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, the observer cost 
issues described above remain unresolved.

Revisions to Observer Program Regulations

    For the reasons described above, NMFS proposes to remove the 
December 31, 2007, expiration date from the heading of 50 CFR 679.50 
and from regulations at Sec.  679.50(j)(1)(vi). The current Observer 
Program would 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.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared an IRFA as required by section 603 of the Regulatory 
Flexibility Act. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the objectives and legal basis 
for this action are contained in the preamble and are not repeated 
here. A copy of the IRFA is available from NMFS (see ADDRESSES). A 
summary of the analysis follows.
    This proposed rule 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 proposed action are groundfish and halibut harvesters 
and processors of the BSAI and GOA EEZ. These entities include the 
halibut vessels, 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 IRFA identified the following small entities that would be 
impacted

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by this rule. Based on 2005 data, 23 of the 87 catcher/processors 
active in the North Pacific groundfish fisheries would be considered 
small entities. All five North Pacific observer provider companies and 
the six CDQ groups would be 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 groundfish and halibut 
catcher vessels have gross revenues less than $4 million, and would be 
considered small entities.
    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.
    No additional recordkeeping and reporting requirements are 
associated with this action.
    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) in 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 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/IRFA 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.
    Although adoption of Alternative 3, 4 or 5 would require new 
statutory authority that currently does not exist, adoption of any of 
these alternatives as presented in the EA/RIR/IRFA 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 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.
    The analysis did not reveal any Federal rules that duplicate, 
overlap, or conflict with the proposed action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: February 15, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 679 as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    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.
    2. In Sec.  679.50, paragraph (j)(1)(vi) is removed and the section 
heading is revised to read as follows:


Sec.  679.50  Groundfish Observer Program.

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[FR Doc. E7-3019 Filed 2-21-07; 8:45 am]
BILLING CODE 3510-22-S