[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Rules and Regulations]
[Pages 32559-32562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11419]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 070209029-7118-02; 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:  Final rule.

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SUMMARY:  NMFS issues a final 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. This action 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: Effective on July 13, 2007.

ADDRESSES:  Copies of the final Environmental Assessment/Regulatory 
Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) 
prepared for this action may be obtained from the NMFS Alaska Region, 
P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the 
NMFS Alaska

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Region website at http://www.fakr.noaa.gov.

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.
    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 1990s, 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 need for, 
and history of, the Observer Program, including past efforts to 
restructure and extend the Observer Program, is provided in the 
proposed rule (72 FR 7948, February 22, 2007) and EA/RIR/FRFA 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 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 estimate observer costs under any of the restructuring 
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 could not be adequately estimated 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 estimated 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 no 
observer data would be collected to monitor and estimate groundfish 
total allowable catch (TAC) and prohibited species catch. NMFS would 
likely rely more on 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.
    In June 2006 the Council decided it would consider amendments to 
the FMPs 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 (Public Law 
109-479). The reauthorized Magnuson-Stevens Act includes language that 
appears 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 new FMP amendments 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,

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the observer cost issues described above remain unresolved.

Revisions to Observer Program Regulations

    For the reasons described above, this action removes the December 
31, 2007, expiration date from the section heading of Sec.  679.50 and 
from regulations at Sec.  679.50(j)(1)(vi). The current Observer 
Program will 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.
    The proposed rule to extend the Observer Program beyond 2007 was 
published in the Federal Register on February 22, 2007 (72 FR 7948), 
and the public review and comment period closed on March 23, 2007. No 
comments were received during the comment period.

Classification

    The Administrator, Alaska Region, NMFS, determined that the 
regulatory amendment is necessary for the conservation and management 
of the groundfish fisheries off Alaska and that it is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared for 
the proposed rule, and described in the Classification section of the 
proposed rule. The public comment period ended on March 23, 2007, but 
no comments were received on the economic analysis in the proposed 
rule.
    NMFS prepared a final regulatory flexibility analysis (FRFA). The 
FRFA incorporates the IRFA and a summary of the analyses completed to 
support the action. A copy of this analysis is available from NMFS (see 
ADDRESSES). A summary of the analysis follows.
    This action 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 action are groundfish harvesters and processors of 
the BSAI and GOA EEZ. These entities include the 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 FRFA identified the following small entities that would be 
impacted by this action. Based on 2005 data, 23 of the 87 catcher/
processors active in the North Pacific groundfish fisheries are 
considered small entities. All five North Pacific observer provider 
companies and the six CDQ groups are 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 
catcher vessels have gross revenues less than $4 million for 
groundfish, and would be considered small entities.
    In the FRFA, 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.
    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) 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 was rejected because 
it 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/FRFA 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.
    Adoption of any of these alternatives as presented in the EA/RIR/
FRFA 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

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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. Each of these alternatives was 
rejected because they would not continue to provide the benefits 
associated with the Observer Program beyond 2007.
    Because of the looming sunset clause contained within the No Action 
alternative, only Alternative 2 accomplishes the stated objectives, is 
consistent with applicable statutes, and would minimize the economic 
impact of the action on small entities. Alternative 2 is the only 
alternative that achieves the primary objective of this action to 
extend the Observer Program beyond December 31, 2007.
    No additional recordkeeping, reporting, or compliance requirements 
are associated with this action.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 8, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as 
follows:

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

0
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.

0
2. In Sec.  679.50, the section heading is revised to read and 
paragraph (j)(1)(vi) is removed as follows:


Sec.  679.50  Groundfish Observer Program.

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[FR Doc. E7-11419 Filed 6-12-07; 8:45 am]
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