[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Rules and Regulations]
[Pages 41424-41427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13775]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No.: 200622-0166]
RIN 0648-BJ40


Fisheries of the Exclusive Economic Zone off Alaska; Adjust the 
North Pacific Observer Program Fee

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues regulations to adjust the North Pacific Observer 
Program (Observer Program) fee. This action is intended to increase 
funds available to support observer and electronic monitoring systems 
deployment in the partial coverage category of the Observer Program and 
increase the likelihood of meeting desired monitoring objectives. This 
action is intended to promote the goals and objectives of the 
Individual Fishing Quota (IFQ) Program, the Magnuson-Stevens Fishery 
Conservation and Management Act, the Northern Pacific Halibut Act of 
1982, and other applicable law.

DATES: Effective August 10, 2020.

ADDRESSES: Electronic copies of the Environmental Assessment/Regulatory 
Impact Review (referred to as the ``Analysis'') prepared for this final 
rule are available from http://www.regulations.gov or from the NMFS 
Alaska Region website at https://www.fisheries.noaa.gov/region/alaska.

FOR FURTHER INFORMATION CONTACT: Alicia M. Miller, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Authority for Action

    NMFS manages the groundfish fisheries in the exclusive economic 
zone off Alaska under the Fishery Management Plan (FMP) for Groundfish 
of the Gulf of Alaska (GOA) and under the FMP for Groundfish of the 
Bering Sea and Aleutian Islands Management Area (BSAI). The North 
Pacific Fishery Management Council (Council) prepared the FMPs under 
the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. 
Regulations governing U.S. fisheries and implementing the FMPs appear 
at 50 CFR parts 600 and 679.
    The International Pacific Halibut Commission (IPHC) and NMFS manage 
fishing for Pacific halibut (Hippoglossus stenolepis) through 
regulations established under the authority of the Northern Pacific 
Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations 
governing the halibut fishery under the Convention between the United 
States and Canada for the Preservation of the Halibut Fishery of the 
Northern Pacific Ocean and Bering Sea (Convention), signed at Ottawa, 
Ontario, on March 2, 1953, as amended by a Protocol Amending the 
Convention (signed at Washington, DC, on March 29, 1979). The IPHC's 
regulations are subject to approval by the Secretary of State with the 
concurrence of the Secretary. Sections 5(a) and 5(b) of the Halibut Act 
(16 U.S.C. 773c(a), (b)) provides the Secretary with general 
responsibility to carry out the Convention and the Halibut Act. Section 
5(c) of the Halibut Act also provides the Council with authority to 
develop regulations that are in addition to, and not in conflict with, 
approved IPHC regulations. Throughout this preamble the term halibut is 
used for Pacific halibut.

Background

    NMFS issues regulations to adjust the Observer Program fee 
percentage. This action is intended to increase funds available to 
support observer and electronic monitoring systems (EM) deployment in 
the partial coverage category of the Observer Program and increase the 
likelihood of meeting monitoring objectives. Additional detail 
describing the Observer Program, the landings subject to the observer 
fee, and the need for this action were included in the Analysis 
prepared for this action and preamble to the proposed rule for this 
action and are not repeated here. The following sections provide a 
brief summary of this information.

Observer Program

    Regulations at 50 CFR part 679, subpart E, implementing the 
Observer Program, require the deployment of NMFS-certified observers or 
EM. Fishery managers use information collected by observers or EM to 
monitor fishing quotas, manage catch and bycatch, and document fishery 
interactions with protected resources, such as marine mammals and 
seabirds. The current Observer Program was implemented in 2012 (77 FR 
70061, November 21, 2012) and modified in 2017, to integrate EM into 
the partial coverage category (82 FR 36991, August 8, 2017).
    The Observer Program includes two observer coverage categories--the 
partial coverage category and the full coverage category (defined in 
regulation at Sec.  679.51). All groundfish and halibut vessels and 
fish processors subject to observer coverage are included in one of 
these two categories. Throughout this rule, the term ``processor'' 
refers to shoreside processors, stationary floating processors, and 
catcher/processors.
    Section 313 of the Magnuson-Stevens Act (16 U.S.C. 1862) authorizes 
the Council, in consultation with NMFS, to prepare a fishery research 
plan that includes stationing observers to collect data necessary for 
the conservation, management, and scientific understanding of the 
fisheries under the Council's jurisdiction, including the halibut 
fishery. Section 313(d) of the Magnuson-Stevens Act authorized creation 
of the North Pacific Fishery Observer Fund within the U.S. Treasury. 
NMFS uses its authority under section 313 of the Magnuson-Steven Act to 
fund the deployment of observers and EM on vessels and processors in 
the partial coverage category. Section 313 of the Magnuson-Stevens Act 
authorizes NMFS to assess a fee up to 2 percent of the unprocessed ex-
vessel value of the fisheries under the jurisdiction of the Council, 
including the halibut fishery.
    Each year, NMFS prepares an annual report and consults with the 
Council to develop an Annual Deployment Plan (ADP). The annual report 
evaluates the performance of observer deployment in the prior year and 
informs the development of the ADP for the following year. The ADP 
describes how observers and EM will be deployed in the partial coverage 
category for the upcoming calendar year. Deployment requirements for 
observers and EM in the full coverage category are established in 
regulations 50 CFR part 679. Observer and EM selection rates for a 
given year are dependent on the available budget generated from the 
observer fee and supplemental funds. Additional information about the 
Observer Program is available in the preamble to the proposed rule for 
this action and in Section 3 of the Analysis.

Landings Subject to the Fee

    Regulations at Sec.  679.55(c) describe which landings are subject 
to the observer fee assessment. The observer

[[Page 41425]]

fee is assessed on all landings accruing against a Federal total 
allowable catch (TAC) for groundfish or a commercial halibut quota made 
by vessels that are subject to Federal regulations and not included in 
the full coverage category.
    The intent of the Council and NMFS is for vessel owners to split 
the fee liability 50-50 with the processor or registered buyer. While 
the intent is that vessels and processors are each responsible for 
paying their portion of the ex-vessel value fee, the owner of a 
processor is responsible for collecting the fee, including the vessel's 
portion of the fee, at the time of landing and for remitting the full 
fee amount to NMFS.
    Annually, NMFS publishes in the Federal Register, a notice of the 
standard ex-vessel prices for groundfish and halibut for the 
calculation of the observer fee under the Observer Program (84 FR 
68409, December 16, 2019). Each year the notice provides information to 
vessel owners, processors, registered buyers, and other participants 
about the standard ex-vessel prices that will be used to calculate the 
observer fee assessed against landings of groundfish and halibut. NMFS 
sends invoices to processors and registered buyers subject to the fee 
by January 15 of each year for the previous year's fee liabilities. 
Fees are due to NMFS on or before February 15.

Need for This Action

    The annual process of establishing observer coverage and EM 
selection rates in the partial coverage category using the Observer 
Program Annual Report and Draft ADP is a well-designed and flexible 
process. This annual process produces a statistically reliable sampling 
plan for the collection of scientifically robust data at any level of 
observer coverage and allows for annual consideration of policy-driven 
monitoring objectives identified through the Council process (Section 
3.3 of the Analysis). Due to higher than expected observer deployment 
costs since 2013, and to the diminishing availability of supplemental 
Federal funding and declining fee revenues, additional funding is 
necessary to deploy observers and EM at coverage rates adequate to meet 
the Council's and NMFS' monitoring objectives in future years. In 
October 2019, the Council unanimously recommended to increase the 
observer fee to 1.65 percent. Additional information about funding and 
coverage rates afforded since 2013 is included in Section 3.4 of the 
Analysis.

Final Rule

    This action will increase the observer fee specified at Sec.  
679.55(f) to 1.65 percent of the ex-vessel value of landings subject to 
the fee beginning on January 1, 2021. A 1.65 percent fee will increase 
fee revenues (as compared to a 1.25 percent fee) to support observer 
and EM deployment at rates more likely to meet the Council's and NMFS' 
monitoring objectives. Observer and EM data are an integral component 
of management for all fisheries in the partial coverage category. Data 
collected by observers is fundamental to fisheries management off 
Alaska, and the Observer Program is critical to collecting important 
information for NMFS, the Council, and stakeholders.
    This action balances concerns about the impacts of increased costs 
with the need to increase revenue in order to meet monitoring 
objectives. This action does not modify other aspects of the fee 
collection process, the responsibility to pay the fee, the ADP process, 
or other aspects of the Observer Program regulations and management.

Comments and Responses

    NMFS received three comment letters during the comment period for 
the proposed rule (85 FR 13618, March 9, 2020). Two of these comment 
letters were outside the scope of this action and are not addressed in 
this final rule. One comment letter from an individual fishery 
participant included three distinct comments which are summarized and 
responded to below.
    Comment 1: There is no reason to increase the observer fee.
    Response: This action is necessary to support the Council's 
objective of increasing fee revenues and improving the ability of NMFS 
and the Council to support observer and EM deployment rates that are 
more likely to meet monitoring objectives of the Observer Program. Each 
year NMFS, in consultation with the Council, establishes observer and 
EM deployments rates in the ADP. Due to diminishing availability of 
supplemental Federal funding and declining fee revenues, additional 
funding is necessary to decrease risk and increase the probability of 
deploying observers and EM at coverage rates adequate to meet the 
Council's and NMFS' monitoring objectives in future years. In October 
2019, the Council unanimously recommended to increase the observer fee 
to 1.65 percent to support observer and EM deployment at rates that are 
more likely to meet Observer Program monitoring objectives. Fishery 
dependent data collected through the Observer Program is fundamental to 
fisheries management off Alaska and is important for NMFS, the Council, 
and stakeholders. Additional information about the Council's rationale 
for this action is included in the preamble to the proposed rule and 
Section 2.4.1 of the Analysis for this action.
    Comment 2: NMFS should work within the available budget.
    Response: Each year, NMFS establishes observer and EM deployment 
rates based on the available budget that is generated from the observer 
fee revenue and supplemental Federal funds. Under current regulations, 
the observer fee cannot be adjusted annually without notice and comment 
rulemaking. This action would not change the annual deployment process 
and NMFS would continue to annually decide the rate of observer 
coverage and EM coverage that are possible given the budget generated 
by fee revenues. The amount of coverage allocated to both deployments 
would continue to be determined annually in the ADP based on an 
analysis of the costs, budget, and fishing effort in the partial 
coverage category.
    Since 2014, NMFS has set the annual partial coverage budget based 
on expected fee revenues, unused funds from the previous year's budget, 
and supplemental Federal funding. NMFS uses the estimated budget and 
anticipated fishing effort to evaluate the expected budget for the 
upcoming year. This process in the ADP enables NMFS to reduce the risk 
of going over the budget. If at some point during the fishing year, 
NMFS evaluates spending and determines that the realized costs of 
observer and EM deployment could exceed the available budget, NMFS may 
either provide additional supplemental funding or reduce the observer 
or EM deployment rates to reduce expenditures. Realized expenditures 
and deployment rates for observers and EM are evaluated each year in 
the Annual Report. This annual process enables the agency to 
incorporate information from previous years and adjust the deployment 
methods. This final rule establishes the fee percentage that will 
directly influence the available budget in future years.
    Comment 3: Cameras are the answer and more cameras should be 
deployed on boats instead of observers to reduce costs. Cameras work 
well, the costs were paid years ago and the labor to review the video 
must cost less.
    Response: NMFS, in collaboration with Industry and the Council's 
Fishery Monitoring Advisory and Electronic Monitoring Committees, 
continues to

[[Page 41426]]

work on developing and implementing EM to improve available monitoring 
tools and improve cost efficiencies within the partial coverage 
category. In 2018 NMFS developed regulations to allow fixed gear 
vessels in partial coverage category to request placement in the EM 
selection pool for the calendar year rather than carrying an observer. 
The data collected from this coverage are used to obtain catch and 
discard information from these vessels. Additional information about 
ongoing work to develop EM and improve cost efficiency is available on 
the Council's website at: https://www.npfmc.org/observer-program/.
    Until 2020, EM deployment in the partial coverage category has been 
funded through a combination of Federal funding and grants to industry 
partners. Starting in 2020, funds from the observer fee will be used to 
fund EM deployment. The average annual cost per day for EM deployment 
in the partial coverage category since 2015 has thus far been similar 
to average annual cost per day for deploying observers in the partial 
coverage category, though this may change as more information becomes 
available about the annual EM equipment replacement costs. The costs to 
deploy EM in lieu of an observer are generally thought to be lower over 
time for a mature and stable monitoring program. Annual EM deployment 
costs are variable and depend on a number of factors, including 
equipment costs (for new installations and replacements), maintenance, 
video review, and data storage. Section 3.4 of the Analysis (see 
ADDRESSES) includes additional detail on EM deployment costs.

Changes From Proposed to Final Rule

    There were no changes from the proposed to final rule.

Classification

    The Administrator, Alaska Region, NMFS, determined that this final 
rule is consistent with the FMP for Groundfish of the GOA and the FMP 
for Groundfish of the BSAI Management Area, other provisions of the 
Magnuson-Stevens Fishery and Conservation Act, and other applicable 
laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule is not an Executive Order 13771 regulatory action 
because this rule is not significant under Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared for 
this action and is included below. NMFS published a proposed rule on 
March 9, 2020 (85 FR 13618). An initial regulatory flexibility analysis 
(IRFA) was prepared and included in the ``Classification'' section of 
the preamble to the proposed rule. The comment period closed on April 
8, 2020. NMFS received three letters of comment on the proposed rule. 
Two of these comment letters were outside the scope of this action and 
are not addressed in this final rule and no comments were received on 
the IRFA. The Chief Counsel for Advocacy of the SBA did not file any 
comments on the proposed rule.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, information included in the small entity 
compliance guide for the Observer Program was prepared. Copies of this 
final rule and the small entity compliance guide, are available on the 
Alaska Region's website at: https://www.fisheries.noaa.gov/alaska/fisheries-observers/north-pacific-observer-program.

Final Regulatory Flexibility Analysis (FRFA)

    This FRFA was prepared for this action, as required by section 603 
of the Regulatory Flexibility Act (RFA). This FRFA describes the 
economic impact this action will have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble.

Number and Description of Small Entities Regulated by This Final Action

    This action directly regulates the owners (permit holders) of fish 
processors required to pay the observer fee. A shoreside processor or 
stationary floating processor primarily involved in seafood processing 
is classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual employment, counting all 
individuals employed on a full-time, part-time, or other basis, not in 
excess of 750 employees for all its affiliated operations worldwide. 
Reliable information is not available on ownership affiliations between 
individual processing operations or employment for the fish processors 
directly regulated by this final rule. Therefore, NMFS assumes that all 
of the processors directly regulated by this action could be small. 
Section 5.7 of the Analysis identifies 50 shorebased processors and 14 
floating processors that received partial coverage deliveries subject 
to the observer fee in 2018 (the most recent year of available 
ownership and permit data).
    This action also directly regulates the owners (permit holders) of 
catcher/processors required to pay the observer fee, and directly 
affects the owners (permit holders) of catcher vessels that harvest 
fish subject to the observer fee. Under the RFA, businesses classified 
as primarily engaged in commercial fishing are considered small 
entities if they have combined annual gross receipts (revenues) not in 
excess of $11.0 million for all affiliated operations worldwide, 
regardless of the type of fishing operation--i.e., finfish or shellfish 
(81 FR 4469; January 26, 2016). If a vessel has a known affiliation 
with other vessels--through a business ownership or through a 
cooperative--the vessel's gross receipts are measured against the small 
entity threshold based on the total gross revenues of all affiliated 
vessels. Because public information on business ownership is 
incomplete, this analysis only considers affiliation in the form of 
membership in a fishing cooperative. Gross revenues for catcher vessels 
that participated in fishing cooperatives under the Central Gulf of 
Alaska Rockfish Program, the Bering Sea American Fisheries Act pollock 
fishery, or the Crab Rationalization Program were combined for purposes 
of identifying small entities directly affected by this final rule.
    In 2018, 997 vessels participated in fisheries in the partial 
coverage category. Section 4.5.3.2 of the Analysis notes that the 
number of catcher/processors eligible for partial coverage when fishing 
off Alaska is currently estimated to be between 6 and 10. Of the total 
of 997 vessels in partial coverage in 2018, 982 are classified as small 
entities (4 were catcher/processors and the rest were catcher vessels). 
Of those 982 vessels, 827 vessels fished hook-and-line gear, 87 fished 
pot gear, 30 fished trawl gear, and 22 fished jig gear.

Description of Significant Alternatives That Minimize Adverse Impacts 
on Small Entities

    The Council and NMFS considered three alternatives to this action. 
Alternative 1, the no action Alternative,

[[Page 41427]]

would maintain the current level of the fee at 1.25 percent of the ex-
vessel value of the fish landings subject to the fee. Alternative 2 
included fee options up to 2 percent, that would be applied equally 
across all fisheries included in the program (i.e., gear types). 
Alternative 3 included fee options up to 2 percent that would be 
implemented differentially across the fisheries included in the program 
(i.e., gear types). This action increases the observer fee to 1.65 
percent of ex-vessel value for all landings subject to the observer 
fee. Some of the fee levels considered under Alternatives 2 and 3 would 
have implemented a fee percentage lower than this action for some or 
all directed regulated or directly affected small entities. However, 
the Council recommendation to increase the observer fee is necessary to 
increase fee revenues to deploy observers and EM at coverage rates 
adequate to meet the Council's and NMFS' monitoring objectives in 
future years. In addition, the Council recommended and NMFS agrees that 
a single observer fee percentage applied equally to the ex-vessel value 
of all of the landed catch subject to the observer fee continues to be 
fair and equitable.

Recordkeeping, Reporting, and Other Compliance Requirements

    This action does not contain recordkeeping, reporting, or other 
compliance requirements.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements, 
Observers.

    Dated: June 22, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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

0
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.; 3631 et seq.; 
Pub. L. 108-447; Pub. L. 111-281.


0
2. In Sec.  679.55, revise paragraph (f) to read as follows:


Sec.  679.55  Observer fees.

* * * * *
    (f) Observer fee percentage. The observer fee percentage is 1.25 
percent through December 31, 2020. Beginning January 1, 2021, the 
observer fee percentage is 1.65 percent.
* * * * *
[FR Doc. 2020-13775 Filed 7-9-20; 8:45 am]
BILLING CODE 3510-22-P