[Federal Register Volume 81, Number 60 (Tuesday, March 29, 2016)]
[Rules and Regulations]
[Pages 17403-17411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07019]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 150904827-6233-02]
RIN 0648-BF36
Fisheries of the Exclusive Economic Zone Off of Alaska; Observer
Coverage Requirements for Small Catcher/Processors in the Gulf of
Alaska and Bering Sea and Aleutian Islands Groundfish Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 112 to the
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian
Islands Management Area (BSAI FMP) and Amendment 102 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska (GOA FMP) and
revise regulations for observer coverage requirements for certain small
catcher/processors in the Gulf of Alaska (GOA) and Bering Sea and
Aleutian Islands Management Area (BSAI). This final rule modifies the
criteria for NMFS to place small catcher/processors in the partial
observer coverage category under the North Pacific Groundfish and
Halibut Observer Program (Observer Program). Under this final rule, the
owner of a non-trawl catcher/processor can choose to be in the partial
observer coverage category, on an annual basis, if the vessel processed
less than 79,000 lb (35.8 mt) of groundfish on an average weekly basis
in a particular prior year, as specified in this final rule. This final
rule provides a relatively limited exception to the general requirement
that all catcher/processors are in the full observer coverage category,
and maintains the full observer coverage requirement for all trawl
catcher/processors and catcher/processors participating in a catch
share program that requires full observer coverage. This final rule
promotes the goals of the BSAI and GOA FMPs, and the goals and
objectives of the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act) and other applicable laws.
DATES: Effective March 29, 2016.
ADDRESSES: Electronic copies of Amendment 112 to the BSAI FMP and
Amendment 102 to the GOA FMP, the Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (Analysis), and the Categorical
Exclusion prepared for this action are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection of information requirements contained in this
final rule may be submitted by mail to NMFS Alaska Region, P.O. Box
21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer;
in person at NMFS Alaska Region, 709 West 9th Street, Room 420A,
Juneau, AK; by email to [email protected]; or by fax to (202)
395-5806.
FOR FURTHER INFORMATION CONTACT: Anne Marie Eich, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements Amendment 112 to the BSAI FMP and
Amendment 102 to the GOA FMP (collectively referred to as Amendment
112/102). NMFS published a notice of availability (NOA) for Amendment
112/102 on December 17, 2015 (80 FR 78705). The comment period on the
NOA for Amendment 112/102 ended on February 16, 2016. The Secretary of
Commerce approved Amendment
[[Page 17404]]
112/102 on March 11, 2016, after accounting for information from the
public, and determining that Amendment 112/102 is consistent with the
FMPs, the Magnuson-Stevens Act, and other applicable law. NMFS
published a proposed rule to implement Amendment 112/102 and the
regulatory amendments on December 29, 2015 (80 FR 81262; corrected
January 22, 2016 (81 FR 3775)). The comment period on the proposed rule
ended on January 28, 2016. NMFS received three comments on proposed
Amendment 112/102 or the proposed rule.
This final rule modifies the criteria used by NMFS to place small
catcher/processors in the partial observer coverage category in the
Observer Program. Under this final rule, the owners of non-trawl
catcher/processors can choose to be in the partial observer coverage
category for the upcoming fishing year if their vessels processed less
than 79,000 lb (35.8 mt) of groundfish on an average weekly basis in a
particular prior year, as specified in this final rule. This final rule
does not alter observer coverage requirements for a catcher/processor
using trawl gear or for a catcher/processor when participating in a
catch share program; these catcher/processors will continue to be
required to be in the full observer coverage category. The terms
``production'' and ``processing'' are used synonymously in this final
rule.
Below is a brief description of the Observer Program and the
elements of the Observer Program that apply to Amendment 112/102 and
this final rule. The preamble of the proposed rule (80 FR 81262,
December 29, 2015; corrected January 22, 2016 (81 FR 3775)) provides a
more detailed description of the Observer Program and this action.
The Observer Program
Regulations implementing the Observer Program allow NMFS-certified
observers (observers) to obtain information necessary for the
conservation and management of the BSAI and GOA groundfish and halibut
fisheries. The Observer Program was implemented in 1990 (55 FR 4839,
February 12, 1990). In 2012, NMFS restructured the funding and
deployment systems of the Observer Program (77 FR 70062, November 21,
2012). Since implementation of the restructured Observer Program in
2013, vessels, shoreside processors, and stationary floating processors
participating in the groundfish and halibut fisheries off Alaska are
placed in one of two observer coverage categories: (1) Partial observer
coverage category, or (2) full observer coverage category.
Under the restructured Observer Program, almost all catcher/
processors were assigned to the full observer coverage category to
obtain independent estimates of catch, at-sea discards, and prohibited
species catch to reduce the potential for introducing error into NMFS'
catch accounting system (as described in the proposed rule: 77 FR
23326, April 18, 2012). In the full observer coverage category, an
observer must be on board a vessel any time the vessel is harvesting,
receiving, or processing groundfish in a federally managed or parallel
groundfish fishery, as specified at Sec. 679.51(a)(2)(i). In the full
observer coverage category, vessel operators obtain observers by
contracting directly with observer providers. Operators of vessels in
the full observer coverage category pay the observer provider for each
day the observer is on board the vessel, including days that the vessel
is travelling to or from the fishing grounds but not fishing.
NMFS deploys observers on vessels in the partial observer coverage
category according to a statistical sample design based on an annual
deployment plan developed in consultation with the North Pacific
Fishery Management Council (Council). Vessels in the partial observer
coverage category are required to carry observers on fishing trips
selected at random per the statistical sample design. Instead of paying
for each day an observer is on board, NMFS assesses a fee equal to 1.25
percent of the ex-vessel value of the retained groundfish and halibut
landed by vessels in the partial observer coverage category. NMFS uses
these fees to establish a Federal contract with an observer service
provider to deploy observers in the partial observer coverage category.
The restructured Observer Program provided three limited exceptions
for catcher/processors to be placed in the partial observer coverage
category, in recognition that the cost of full observer coverage would
be disproportionate to total revenues for some small catcher/
processors. The first exception applied to a hybrid vessel less than 60
feet length overall (LOA) that acted as both a catcher vessel and a
catcher/processor in the same year in any year from 2003 through 2009.
The second exception applied to a catcher/processor that had an average
daily production of less than 5,000 lb (2.3 mt) round weight equivalent
in its most recent full calendar year of operation from 2003 through
2009. The third exception applied to a catcher/processor that did not
process more than one metric ton round weight of groundfish on any day
in the immediately preceding year.
Under the first two exceptions, a vessel that started processing
after 2009 could never qualify to be placed in the partial observer
coverage category. Also, the first two exceptions permanently placed a
vessel in the partial observer coverage category. These exceptions have
no provision to review the production of a catcher/processor placed in
the partial observer coverage category on an ongoing basis and remove
them from the partial observer coverage category if their production
increases. The third exception is theoretically open to any catcher/
processor that began production after 2009.
Summary of Amendment 112/102
The following discussion summarizes the provisions of Amendment
112/102; additional details are provided in the NOA for Amendment 112/
102 (80 FR 78705; December 17, 2015), the proposed rule for Amendment
112/102 (80 FR 81262, December 29, 2015; corrected January 22, 2016 (81
FR 3775)), and Section 2 of the Analysis (see ADDRESSES).
1. The Production Threshold for Placement in the Partial Observer
Coverage Category
This final rule establishes a production threshold for placement in
the partial observer coverage category of average weekly groundfish
production of 79,000 lb (35.8 mt) or less in a standard basis year or
an alternate basis year (as defined below). The weekly production
measure includes catcher/processors that engage in intense bursts of
processing activity during a year but may not process throughout the
whole year.
The Council and NMFS considered a range of average weekly
production measures as a threshold for partial coverage. The production
standard of 79,000 lb (35.8 mt) was selected to ensure that catcher/
processors that are currently eligible for placement in the partial
observer coverage category will continue to be eligible if these
vessels maintain their current levels of production. The catcher/
processors eligible for partial observer coverage under this final rule
are engaged primarily in the hook-and-line and Pacific cod and
sablefish fisheries (see Section 2.2.1 of the Analysis). This
production threshold maintains a limited exception to the general
requirement that catcher/processors are in the full observer coverage
category.
The Council and NMFS concluded that this production threshold would
[[Page 17405]]
maintain a limited exception to the general requirement that catcher/
processors are in the full observer coverage category. The Council does
not anticipate that this action would impair data quality because the
overwhelming amount of groundfish production would remain subject to
full observer coverage (Section 3.6.7 of the Analysis). The catcher/
processors eligible for the partial observer coverage category under
this final rule are engaged primarily in the hook-and-line and Pacific
cod and sablefish fisheries (see Section 3.7.12 of the Analysis).
2. The Basis Year for Placing a Catcher/Processor in the Partial
Observer Coverage Category
This final rule establishes the fishing year minus two years as the
standard basis year for determining whether a catcher/processor is
eligible for placement in the partial observer coverage category, as it
is the most recent year for which NMFS will have full production data.
As an example, to determine if a catcher/processor will be eligible for
partial observer coverage in the fishing year that begins on January 1,
2017, NMFS will assess production data from 2015 (i.e., the fishing
year minus two years).
If a catcher/processor had no production in the standard basis
year, (i.e., the fishing year minus two years), but that catcher/
processor had production before the standard basis year, the vessel's
most recent year of production, but not earlier than 2009, will be used
(referred to as the alternate basis year) (see Section 2.4 of the
Analysis). For example, if for the fishing year beginning January 1,
2017, the most recent fishing year prior to 2015 that a catcher/
processor had production was 2011, the production from 2011 would be
used to assess whether that catcher/processor met the threshold
production amount to be eligible for placement in the partial observer
coverage category. This final rule does not consider production data
prior to 2009 because that is the first year that NMFS collected daily
production reports (73 FR 76136, December 15, 2008), permitting
calculation of average daily production (see Appendix D of the
Analysis).
3. A Catcher/Processor With No History of Production
The Council and NMFS also considered the initial type of observer
coverage (i.e., full or partial) that should apply to a catcher/
processor with no production in either the standard basis year or an
alternate basis year, e.g., a new catcher/processor. This final rule
places any non-trawl catcher/processor with no production from 2009
through the standard basis year in the partial observer coverage
category in the partial observer coverage category in its first two
years of operation. The costs of full observer coverage could prevent
some non-trawl catcher/processors from starting processing,
particularly processing of sablefish in remote fishing grounds in the
Aleutian Islands, and processing of Pacific cod by catcher/processors
using jig gear. If non-trawl catcher/processors had to operate for
their first two years in the full observer coverage category, it might
defeat one of the objectives of this action, namely encouraging
beneficial activity that is being prevented by the cost of full
observer coverage.
4. Owner Choice by an Annual Deadline
Under this final rule, the owner of a qualifying vessel may request
placement in the partial observer coverage category through an annual
selection process that includes an annual deadline. Absent selection by
the owner of a qualifying vessel, that catcher/processor will be placed
in the full observer coverage category for the upcoming fishing year.
This annual selection process is a new requirement for the three
catcher/processors that are currently permanently placed in the partial
observer coverage category.
This final rule does not establish a deadline for vessel operators
to request placement in the partial coverage category during the 2016
fishing year; vessel operators can request placement in partial
coverage as soon as the final rule is effective. The application
process for the 2016 fishing year is described in further detail in the
section Changes from the Proposed Rule.
This final rule establishes an annual deadline of July 1 to request
placement in the partial observer coverage category applicable for the
2017 fishing year, and for all future fishing years. For the 2017
fishing year, a vessel owner would have to request placement in the
partial observer coverage category by July 1, 2016.
5. Unchanged Observer Requirements for Trawl Catcher/Processors and
Catcher/Processors That Participate in a Catch Share Program
This final rule does not alter existing observer coverage
requirements for a catcher/processor using trawl gear or a catcher/
processor when participating in a catch share program; these catcher/
processors will continue to be required to be in the full observer
coverage category. The rationale for the existing observer coverage
requirements for each catch share program is described in the proposed
rule (80 FR 81262, December 29, 2015; corrected January 22, 2016 (81 FR
3775)).
The Final Rule
This final rule revises regulations at 50 CFR part 679 to modify
the criteria for NMFS to place small catcher/processors in the partial
observer coverage category in the Observer Program. This final rule
establishes a new paragraph in Sec. 679.51, namely Sec. 679.51(a)(3).
At Sec. 679.51(a)(3)(i), this final rule defines the following
terms for purposes of the new Sec. 679.51(a)(3): a ``fishing year'' as
the year during which a catcher/processor might be placed in the
partial observer coverage category; the ``standard basis year'' as the
fishing year minus two years; and the ``alternate basis year'' as the
most recent year before the standard basis year in which a catcher/
processor had any groundfish production but not earlier than 2009. At
Sec. 679.51(a)(3)(i), this final rule defines a vessel's ``average
weekly groundfish production,'' as the annual groundfish round weight
production estimate for a catcher/processor, divided by the number of
separate weeks during which production occurred, as determined by
production reports, but excluding any groundfish that was caught with
trawl gear. Thus, if a vessel has groundfish production any day in a
week, excluding trawl production, that will be considered as a week of
production.
At Sec. 679.51(a)(3)(ii), this final rule specifies the annual
deadline for requesting placement in the partial observer coverage
category as July 1 of the year before the year that the vessel owner
would like to be placed in the partial observer coverage category, for
2017 and all future years. As described in the section titled Changes
from the Proposed Rule, no deadline is specified for the owner of a
catcher/processor to apply to be placed in the partial observer
coverage category in 2016. NMFS should be able to make an eligibility
determination within 30 days of receipt of the request for placement in
the partial observer coverage category.
At Sec. 679.51(a)(3)(iii), this final rule specifies the
requirements for NMFS to place a catcher/processor in the partial
observer coverage category, namely if the vessel owner requests
placement by the annual deadline specified and the vessel meets the
production threshold of 79,000 lb (35.8 mt) of average weekly
groundfish production (excluding groundfish caught with trawl gear).
To determine eligibility for placement in the partial observer
coverage category, NMFS will first examine the
[[Page 17406]]
catcher/processor's production in the standard basis year, namely two
years before the fishing year. If a catcher/processor produced at or
below the production threshold (79,000 lb (35.8 mt) average weekly
groundfish production) in the standard basis year, but more than zero
pounds, the vessel will meet the production threshold for placement in
the partial observer coverage category in the upcoming fishing year. If
a catcher/processor exceeded that production threshold, the vessel will
not be eligible for placement in the partial observer coverage category
in the upcoming fishing year.
If a catcher/processor had no production in the standard basis
year, NMFS will examine the vessel's production in the alternative
basis year, namely the first year that the vessel had any production
before the standard basis year but not earlier than 2009. If a catcher/
processor had average weekly groundfish production of 79,000 lb (35.8
mt) or less in the alternate basis year, the vessel will meet the
production threshold requirement for placement in the partial observer
coverage category for the upcoming fishing year. If a catcher/processor
exceeded the production threshold in the alternate basis year, the
vessel will not be eligible for placement in the partial observer
coverage category. If a catcher/processor had no production from 2009
through the standard basis year, the vessel will meet the production
threshold requirement for placement in the partial observer coverage
category.
If a catcher/processor meets the production threshold requirement
for placement in the partial observer coverage category and is not a
vessel using trawl gear or otherwise required to have full observer
coverage by participation in a catch share program, the catcher/
processor will be placed in partial observer coverage only if the owner
of the vessel makes the request by the annual deadline. This final rule
specifies at Sec. 679.51(a)(3)(iv) how the vessel owner can request
placement in the partial observer coverage category. A vessel owner
must submit a request form to NMFS, which NMFS will make available on
the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.
At Sec. 679.51(a)(3)(v), this final rule specifies that NMFS will
notify a vessel owner in writing if NMFS has placed the vessel in the
partial observer coverage category. Until NMFS provides this notice,
the catcher/processor will remain in the full observer coverage
category.
At Sec. 679.51(a)(3)(vi), this final rule specifies that if NMFS
denies a request for placement in the partial observer coverage
category, NMFS will issue an Initial Administrative Determination,
which will explain the reasons for the denial. If the vessel owner
wishes to appeal the denial, this final rule provides at Sec.
679.51(a)(3)(vii) that the vessel owner may appeal to the National
Appeals Office according to the procedures in 15 CFR part 906. During
the appeal process, the catcher/processor will remain in the full
observer coverage category.
This final rule has several provisions in addition to the new
paragraph at Sec. 679.51(a)(3). This final rule adds regulations at
Sec. 679.51(a)(1)(i)(C) to clarify that certain catcher/processors
(newly specified by this final rule at Sec. 679.51(a)(3)) are in the
partial observer coverage category when fishing for halibut with hook-
and-line gear or when directed fishing for groundfish in a federally
managed or parallel groundfish fishery. This final rule revises Sec.
679.51(a)(2)(i)(A) to clarify that catcher/processors are placed in the
full observer coverage category unless they are placed the partial
observer coverage category using criteria specified at Sec.
679.51(a)(3). This final rule also removes the regulations detailing
the exceptions to the full observer coverage category for catcher/
processors at Sec. 679.51(a)(2)(iv)(B) that were in place prior to
implementation of this final rule.
This final rule adds a new category to the definition of fishing
trip for purposes of the Observer Program in Sec. 679.2. Prior to
implementation of this final rule, Sec. 679.2 defined a fishing trip
for a catcher vessel delivering to a shoreside processor or stationary
floating processor and for a catcher vessel delivering to a tender
vessel. This final rule defines a fishing trip for a catcher/processor
in the partial observer coverage category, as the period of time that
begins when the vessel departs a port to harvest fish until the vessel
returns to port and offloads all processed product. This new definition
is necessary because the current definition of a fishing trip does not
accurately apply to a catcher/processor in the partial observer
coverage category.
This final rule adds a new requirement at Sec. 679.5(e)(13) for a
catcher/processor landing report. The operator of a catcher/processor
placed in the partial observer coverage category must submit a catcher/
processor landing report by 2400 hours, A.l.t., on the day after the
end of the fishing trip. This is a new reporting requirement created
for this program. The landing report will be generated through
eLandings or other NMFS-approved software by consolidating the daily
production reports for the period the vessel operator defines as the
fishing trip for purposes of observer coverage. NMFS will use
information from the catcher/processor landing report to link catch
data with observer data, to determine how to appropriately assign at-
sea discard rates and prohibited species catch rates to unobserved
catcher/processors in the partial observer coverage category, and to
monitor compliance with the requirement for catcher/processors placed
in the partial observer coverage category to log all fishing trips in
the Observer Declare and Deploy System.
This final rule revises Sec. 679.51(e)(1)(iii)(B) to remove
requirements from catcher/processors placed in the partial observer
coverage category to provide equipment for the purpose of observer data
entry and transmission. Prior to implementation of this final rule, all
catcher/processors were required to provide an observer with a
computer, NMFS-supplied software, and the ability to transmit data to
NMFS using a point-to-point connection from the vessel. Removing this
requirement reduces the financial burden on small catcher/processors
placed in the partial observer coverage category, especially for
vessels mentioned in Section 3.7.4 of the Analysis that may begin to
operate as a catcher/processor (e.g., catcher/processors using jig
gear). Prior to implementation of this final rule, observers deployed
in the partial observer coverage category entered and transmitted data
without equipment provided by the industry. Maintaining those equipment
requirements for catcher/processors in the partial observer coverage
category may have resulted in duplicative and unnecessary equipment
being available on the vessel. NMFS typically receives data from
observers deployed in the partial observer coverage category at the end
of each trip, and that timeline is sufficient for catcher/processors in
partial observer coverage under this final rule. NMFS notes that even
with this change, more frequent data transmission could be achieved on
some catcher/processors in partial observer coverage if the observer is
allowed to use existing communication equipment.
This final rule revises Sec. 679.55(a) and (c) to clarify that all
catcher/processors named on a Federal Fishing Permit and not in the
full observer coverage category are responsible for paying the observer
fee.
This final rule corrects two cross references in Sec. 679.2 and
replaces language in Sec. 679.5 that refers to old
[[Page 17407]]
terminology of ``100 percent observer coverage.'' That terminology is
replaced with ``full observer coverage;'' this is the terminology used
under the restructured Observer Program.
Comments and Responses
During the public comment periods for the NOA for Amendment 112/102
and the proposed rule to implement Amendment 112/102, NMFS received
three comment letters from the public that contained three substantive
comments. NMFS' responses to these comments are presented below.
Comment 1: All three commenters expressed support for this action.
Response: NMFS acknowledges these comments.
Comment 2: Two commenters requested that NMFS implement this action
as soon as possible in 2016. One commenter would like to begin fishing
for Individual Fishing Quota (IFQ) Program Pacific halibut and
sablefish around April 1, but due to the costs of full coverage, would
not start fishing until they were allowed to be placed in the partial
observer coverage category. The second commenter stated that it
benefits the few eligible catcher/processors to be placed in the
partial observer coverage as soon as possible in 2016, and doing so
would not negatively impact any other fishery participants.
Response: NMFS acknowledges these comments. Most of the catcher/
processors that will be eligible to be placed in the partial observer
coverage category under this final rule participate in the sablefish
IFQ fisheries or fish for Pacific cod. Directed fishing for Pacific cod
opened in most areas off Alaska on January 1, 2016, and the IFQ fishing
season started on March 19, 2016. Under existing regulations, any
catcher/processors not placed in the partial observer coverage category
are in the full observer coverage category and must carry an observer
at all times while fishing in the GOA or BSAI. As noted in the proposed
rule and Analysis, being placed in the full observer coverage category
imposes costs on vessel owners that generally exceed the costs of being
placed in the partial observer coverage category. Allowing the owners
of catcher/processors to apply to be placed in the partial observer
coverage category as soon as possible in 2016 would minimize the cost
of observer coverage for these vessel owners. Due to the costs of the
full observer coverage category, some vessel owners may even choose not
to fish until the catcher/processor can be placed in the partial
observer coverage category. Therefore, for reasons discussed in the
Classification section, the NMFS Assistant Administrator has waived the
30-day delay in effectiveness of this final rule and will accept
applications from the owners of catcher/processors to be placed in the
partial observer coverage category on the day that this final rule is
published in the Federal Register.
Comment 3: The proposed regulations appropriately add a paragraph
(C), referencing catcher/processors, to 50 CFR 679.51(a)(1)(i). New
paragraph (C) joins a list of certain classes of vessels in partial
observer coverage, with paragraphs (A) and (B) describing certain
catcher vessels. The language introducing the list at Sec.
679.51(a)(1)(i) should be revised to reference not just catcher vessels
but also catcher/processors: `` . . . the following catcher vessels
[and catcher/processors] are in the partial observer coverage category
. . .'' The word ``or'' should be deleted after paragraph (A).
Response: NMFS agrees with the suggested addition of ``and catcher/
processors'' at Sec. 679.51(a)(1)(i). However, NMFS does not agree
with the suggested deletion of the word ``or'' after Sec.
679.51(a)(1)(i)(A). With the implementation of this final rule, Sec.
679.51(a)(1)(i) contains three paragraphs, (A), (B), and (C), each of
which is independent of the others. Therefore, it is appropriate to
retain the word ``or'' after Sec. 679.51(a)(1)(i)(A).
Changes From the Proposed Rule
Initial Implementation Deadline for 2016
The proposed rule for Amendment 112/102 (80 FR 81262, December 29,
2015; corrected January 22, 2016 (81 FR 3775)) proposed to establish an
application deadline in 2016 for an owner of an eligible catcher/
processor to request placement in the partial observer coverage
category within 15 days after the effective date of the final rule. The
effective date of the final rule was anticipated to be 30 days after
its publication in the Federal Register; therefore, this deadline would
have provided a vessel owner 45 days to consider and submit a timely
request for placement in the partial observer coverage category after
the date of publication of the final rule.
NMFS has determined that an application deadline for the 2016
fishing year is not necessary. One of the primary reasons for an
application deadline for 2017 and future years is to provide
information about which catcher/processors will be in the partial
observer coverage category in time to prepare the Observer Program
annual deployment plan for the upcoming year. NMFS has already prepared
the 2016 annual deployment plan assuming that any catcher/processor
eligible to be in partial observer coverage in 2016 would choose to do
so; therefore NMFS does not need an application deadline in 2016 to
enable a catcher/processor to be placed in the partial observer
coverage category. Nevertheless, an owner wishing to place a catcher/
processor in the partial observer coverage category has an incentive to
submit an application as soon as possible in 2016 if placement in
partial coverage reduces the cost of observer coverage. In addition,
not having an application deadline for 2016 provides additional time
for potential new participants in the fishery to adjust to the new
regulations. If a vessel owner missed the 2016 application deadline
described in the proposed rule, the vessel would require full observer
coverage until January 2017. Removing the 2016 deadline does not create
a substantial administrative burden for NMFS because of the small
number of vessels involved. Fishery participants are reminded that the
July 1 deadline applies for the 2017 fishing year, and for all future
fishing years.
Other Changes
NMFS adds the phrase ``and catcher/processors'' at Sec.
679.51(a)(1)(i) to reference not just catcher vessels but also catcher/
processors, as described in the response to Comment 3 in the Comments
and Responses section.
NMFS corrects a verb disagreement error in the table at Sec.
679.55(c) by changing ``is'' to ``are'' in row (5).
Classification
The Administrator, Alaska Region, determined that Amendments 112
and 102 and this final rule are necessary for the conservation and
management of the BSAI and GOA groundfish fisheries and that they are
consistent with the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Administrative Procedure Act
The NMFS Assistant Administrator finds good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in effectiveness for the provisions
in this final rule. Maintaining the 30-day delay would be contrary to
the public interest. Waiving the 30-day delay in effectiveness would
allow the owners of catcher/processors to apply to be placed in the
partial observer coverage category as soon as the final rule is
published and would allow NMFS to approve this placement for eligible
catcher/
[[Page 17408]]
processors as soon as NMFS is able to complete the necessary review.
Maintaining the 30-day delay in effectiveness would not prevent vessel
owners from applying to be placed in the partial observer coverage
category, but NMFS would not be able to approve placement of eligible
catcher/processors in the partial observer coverage category until the
effective date of the final rule. This would require vessel owners to
bear the costs of the full observer coverage category or delay fishing
for up to 30 days. Public comment received on the proposed rule
overwhelmingly requested that NMFS implement this action as soon as
possible in 2016.
Most of the catcher/processors that will be eligible to be placed
in the partial observer coverage category under this final rule
participate in the sablefish IFQ fisheries or fish for Pacific cod.
Pacific cod opened for directed fishing in most areas off Alaska on
January 1, 2016, and the sablefish IFQ fishing season started on March
19, 2016. Under existing regulations, any catcher/processors not placed
in the partial observer coverage category are in the full observer
coverage category and required to carry an observer at all times while
fishing in the GOA or BSAI. As noted in the proposed rule and Analysis,
the full observer coverage category imposes costs on vessel owners that
generally exceed the costs of being placed in the partial observer
coverage category. Allowing the owners of catcher/processors to apply
to be placed in the partial observer coverage category as soon as
possible in 2016 would minimize the cost of observer coverage for these
vessel owners.
Waiving the 30-day delay in this final rule's effectiveness will
help maximize economic opportunities for these commercial fishermen in
the BSAI and GOA during the 2016 fishing year and will allow qualifying
vessel owners to start operating under partial observer coverage
requirements as soon as the vessel owner receives notification from
NMFS that the vessel is placed in the partial observer coverage
category.
There is no administrative need for additional time beyond the
point of notification from NMFS. This is a non-controversial action
that affects a small number of vessel owners. NMFS is unaware of any
participants who would not be in favor of or who would be potentially
harmed by waiving the 30-day delay in effectiveness. Without waiving
the 30-day delay in effectiveness, vessel owners affected by this final
rule that are currently in full observer coverage would have to wait an
additional 30 days after publication of this final rule to be placed in
partial observer coverage, which would delay the associated economic
opportunities being sought through this final rule, thus undermining
its intent.
For these reasons, the NMFS Assistant Administrator waives the 30-
day delay in effectiveness of this final rule and will accept
applications from the owners of catcher/processors to be placed in the
partial observer coverage category on the day that this final rule is
published in the Federal Register.
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 final regulatory flexibility
analysis, 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. The preamble to the proposed rule (80 FR 81262,
December 29, 2015; corrected January 22, 2016 (81 FR 3775)) and the
preamble to this final rule serve as the small entity compliance guide.
This final rule does not require any additional compliance from small
entities that is not described in the preamble to the proposed rule and
this final rule. Copies of the proposed rule and this final rule are
available from NMFS at the following Web site: http://alaskafisheries.noaa.gov.
Final Regulatory Flexibility Analysis (FRFA)
Section 604 of the Regulatory Flexibility Act requires an agency to
prepare a FRFA after being required by that section or any other law to
publish a general notice of proposed rulemaking and when an agency
promulgates a final rule under section 553 of Title 5 of the U.S. Code.
The following paragraphs constitute the FRFA for this action.
Section 604 describes the required contents of a FRFA: (1) A
statement of the need for, and objectives of, the rule; (2) a statement
of the significant issues raised by the public comments in response to
the initial regulatory flexibility analysis, a statement of the
assessment of the agency of such issues, and a statement of any changes
made in the proposed rule as a result of such comments; (3) the
response of the agency to any comments filed by the Chief Counsel for
Advocacy of the Small Business Administration in response to the
proposed rule, and a detailed statement of any change made to the
proposed rule in the final rule as a result of the comments; (4) a
description of and an estimate of the number of small entities to which
the rule will apply or an explanation of why no such estimate is
available; (5) a description of the projected reporting, recordkeeping
and other compliance requirements of the rule, including an estimate of
the classes of small entities which will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record; and 6) a description of the steps the agency has
taken to minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes, including
a statement of the factual, policy, and legal reasons for selecting the
alternative adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the agency which
affect the impact on small entities was rejected.
Need for and Objectives of the Rule
A description of the need for, and objectives of, the rule is
contained in the preamble to the proposed rule and this final rule and
is not repeated here. This FRFA incorporates the Initial Regulatory
Flexibility Analysis (IRFA) and the summary of the IRFA in the proposed
rule (80 FR 81262, December 29, 2015; corrected January 22, 2016 (81 FR
3775)).
Summary of Significant Issues Raised During Public Comment
NMFS published a proposed rule on December 29, 2015 (80 FR 81262;
corrected January 22, 2016 (81 FR 3775)). An IRFA was prepared and
summarized in the Classification section of the preamble to the
proposed rule. The comment period closed on January 28, 2016. NMFS
received 3 letters of public comment on the proposed rule. These
comment letters did not address the IRFA. The comments did address the
economic impacts of the rule generally by requesting that the rule be
implemented as soon as possible to help maximize economic opportunities
for commercial fishermen in the BSAI and GOA during the 2016 fishing
year by allowing qualifying vessels to start operating under partial
observer coverage requirements as soon as the vessel owner receives
notification from NMFS that the vessel is placed in the partial
observer coverage category. The Chief Counsel for Advocacy of the Small
Business Administration did not file any comments on the proposed rule.
[[Page 17409]]
Number and Description of Small Entities Regulated by the Action
NMFS expects that up to 11 vessels will qualify for placement in
the partial observer coverage category (See the Classification section
of the proposed rule (80 FR 81262, December 29, 2015; corrected January
22, 2016 (81 FR 3775))). NMFS estimates that up to 9 of the 11 vessels
identified are considered directly regulated small entities.
Recordkeeping, Reporting, and Other Compliance Requirements
This action contains one new reporting and recordkeeping
requirement that affects the small entities. Vessel owners desiring to
be placed in the partial observer coverage category for a fishing year
must submit a form expressing that choice by July 1 (except for the
2016 fishing year).
This form will use production data that will be available to the
owner on the eLandings Web site. Given the simplicity of the form, and
the accessibility of the data needed to complete it, NMFS estimates
that it will take no more than 30 minutes to complete and file the
form. For Paperwork Reduction Act estimation purposes, NMFS values this
type of effort at $37 per hour. Approximately nine small entities could
be affected by this requirement. Thus, the total public time required
to complete nine forms a year x 30 minutes is 4.5 hours. At a cost of
$37 per hour, the estimated cost is about $167.
Description of Significant Alternatives to the Final Action That
Minimize Adverse Impacts on Small Entities
A FRFA must describe the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statues, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency that affect the
impact on small entities was rejected. ``Significant alternatives'' are
those that achieve the stated objectives for the action, consistent
with prevailing law, with potentially lesser adverse economic impacts
on small entities as a whole.
The Council and NMFS considered a range of alternatives and options
to the preferred alternative that is implemented by this final rule.
These alternatives and options are described in Section 2 of the RIR/
IRFA and are not repeated here. The Council and NMFS did not identify
alternatives to the preferred alternative that would minimize the
impact on small entities better than the preferred alternative and
still meet the objectives for this final rule--to provide a relatively
limited exception to the general requirement that all catcher/
processors are in the full observer coverage category, and maintain the
full observer coverage requirement for all trawl catcher/processors and
catcher/processors participating in a catch share program that requires
full observer coverage.
The preferred alternative implemented by this final rule modifies
existing regulations that are necessary to meet the objectives of this
final rule. The preferred alternative is not anticipated to have
adverse impacts on small entities. As noted in the IRFA, this action is
expected to create a net benefit for the directly regulated small
entities. In other words, the benefits of this action are expected to
outweigh the reporting, recordkeeping, and other compliance costs
described above.
The Council and NMFS adopted the average weekly production
threshold of 79,000 lb (35.8 mt) as its preferred alternative. This
production threshold allows a catcher/processor to qualify for
placement in the partial observer coverage category for a year, if its
round weight equivalent of their processed product, two years previous,
averaged less than 79,000 lb (35.8 mt) a week. If the vessel had not
operated two years previously, NMFS will use its production in the
first year with production since 2009, inclusive of 2009. If the vessel
has not produced in this period, NMFS will allow the vessel to be
placed in the partial observer coverage category in the year in which
application is made, unless it is a trawl vessel, in which case it will
be in the full observer coverage category.
This action reduces the relative burden on directly regulated small
catcher/processors in comparison with the status quo. Vessels that
qualify can forego full observer coverage and operate with less
expensive partial observer coverage, should they choose to do so. The
three catcher/processors that were permanently placed in the partial
observer coverage category under the status quo now have to qualify for
placement in the partial observer coverage category each year. The
Council and NMFS chose the 79,000-lb average weekly threshold, rather
than an alternative 42,000-lb average weekly threshold, to maximize the
potential for these three vessels to qualify for the option to be
placed in the partial observer coverage category in future years.
Moreover, one of the objectives of this action was to end permanent
placement in the partial observer coverage category for catcher/
processor vessels and create a flexible system that could respond if a
vessel increased production.
The Council and NMFS considered multiple elements and options under
Alternative 2 that would qualify more vessels or fewer vessels for
placement in the partial observer coverage category. In addition to the
two average weekly production thresholds, a low and a high average
daily, maximum daily production, maximum weekly, and annual production
measures were considered.
The production thresholds analyzed under Element 1 Option 4B (high
maximum weekly production) and Option 5B (high annual production) could
have qualified one more small catcher/processor for partial observer
coverage than is qualified under the preferred alternative (Option 2B:
average weekly production threshold of 79,000 lb). The Council and NMFS
did not select Option 4B because basing a threshold on maximum weekly
production would have excluded some catcher/processors that had one
week of relatively high production, but had relatively low average
production over the remainder of the year. The Council did not select
Option 5B because it would allow catcher/processors with relatively
high production levels over the course of several weeks or months
during the year into the partial observer coverage category. NMFS
recommended that catcher/processors with these high intensity
production periods during the year should remain in the full observer
coverage category so that all of their fishing activity is observed.
The average weekly measure was chosen, because it provided a
measure of production intensity, which the annual, maximum daily, and
maximum weekly measures, did not provide; it was readily measurable;
and it was less prone to manipulation or unusually high levels of
production than the other options considered. A week is also the
standard measure of production for a catcher/processor trip in current
regulation (Section 2.2.1 of the Analysis and the Classification
section of the proposed rule (80 FR 81262, December 29, 2015; corrected
January 22, 2016 (81 FR 3775))).
Collection-of-Information Requirements
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) which have been approved
by Office of Management and Budget (OMB) under control numbers 0648-
0318, 0648-0515,
[[Page 17410]]
and 0648-0711. The information collections are presented by OMB control
number.
OMB Control No. 0648-0318
Public reporting burden for Catcher/Processor Observer Partial
Coverage Request is estimated to average 30 minutes per response.
OMB Control No. 0648-0515
Public reporting burden for Catcher/Processor Landing Report
through eLandings is estimated to average one minute per response.
OMB Control No. 0648-0711
Public reporting burden for submittal of Observer Fee through eFISH
is estimated to average 1 minute per response.
Send comments regarding these burden estimates or any other aspect
of these collections, including suggestions for reducing the burden, to
NMFS (see ADDRESSES), and by email to [email protected] or
fax to 202-395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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. All currently approved NOAA
collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 23, 2016.
Eileen Sobeck,
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
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. 679.2, add paragraph (3)(iii) to the definition of
``Fishing trip'' to read as follows:
Sec. 679.2 Definitions.
* * * * *
Fishing trip means: * * *
(3) * * *
(iii) For a catcher/processor in the partial observer coverage
category, the period of time that begins when the vessel departs a port
to harvest fish until the vessel returns to port and offloads all
processed product.
* * * * *
0
3. In Sec. 679.5, add paragraph (e)(13) to read as follows:
Sec. 679.5 Recordkeeping and reporting (R&R).
* * * * *
(e) * * *
(13) Catcher/processor landing report. (i) The operator of a
catcher/processor placed in the partial observer coverage category
under Sec. 679.51(a)(3) must use eLandings or other NMFS-approved
software to submit a catcher/processor landing report to NMFS for each
fishing trip conducted while that catcher/processor is in the partial
observer coverage category.
(ii) The vessel operator must log into eLandings or other NMFS-
approved software and provide the information required on the computer
screen. Additional instructions for submitting a catcher/processor
landing report is on the Alaska Region Web site at http://alaskafisheries.noaa.gov.
(iii) For purposes of this landing report requirement, the end of a
fishing trip is defined in Sec. 679.2, paragraph (3)(iii) of the
definition of a fishing trip.
(iv) The vessel operator must submit the catcher/processor landing
report to NMFS by 2400 hours, A.l.t., on the day after the end of the
fishing trip.
* * * * *
0
4. In Sec. 679.51,
0
a. Revise paragraphs (a)(1)(i) and (a)(2)(i)(A);
0
b. Remove and reserve paragraphs (a)(2)(iv)(B) and (a)(2)(v);
0
c. Add paragraph (a)(3); and
0
d. Revise paragraph (e)(1)(iii)(B) introductory text to read as
follows:
Sec. 679.51 Observer requirements for vessels and plants.
* * * * *
(a) * * *
(1) * * *
(i) Vessel classes in partial coverage category. Unless otherwise
specified in paragraph (a)(2) of this section, the following catcher
vessels and catcher/processors are in the partial observer coverage
category when fishing for halibut with hook-and-line gear or when
directed fishing for groundfish in a federally managed or parallel
groundfish fishery, as defined at Sec. 679.2:
(A) A catcher vessel designated on an FFP under Sec. 679.4(b)(1);
or
(B) A catcher vessel when fishing for halibut with hook-and-line
gear and while carrying a person named on a permit issued under Sec.
679.4(d)(1)(i), Sec. 679.4(d)(2)(i), or Sec. 679.4(e)(2), or for
sablefish IFQ with hook-and-line or pot gear and while carrying a
person named on a permit issued under Sec. 679.4(d)(1)(i) or Sec.
679.4(d)(2)(i); or
(C) A catcher/processor placed in the partial observer coverage
category under paragraph (a)(3) of this section.
* * * * *
(2) * * *
(i) * * *
(A) Catcher/processors, except a catcher/processor placed in the
partial observer coverage category under paragraph (a)(3) of this
section;
* * * * *
(3) Catcher/processor placement in the partial observer coverage
category for a year--(i) Definitions. For purposes of this paragraph
(a)(3), these terms are defined as follows:
(A) Average weekly groundfish production means the annual
groundfish round weight production estimate for a catcher/processor,
divided by the number of separate weeks during which production
occurred, as determined by production reports, excluding any groundfish
caught using trawl gear.
(B) Fishing year means the year during which a catcher/processor
might be placed in partial observer coverage.
(C) Standard basis year means the fishing year minus two years.
(D) Alternate basis year means the most recent year before the
standard basis year in which a catcher/processor had any groundfish
production but not earlier than 2009.
(ii) Deadline for requesting partial observer coverage. For the
2017 fishing year and every fishing year after 2017, the deadline for
requesting partial observer coverage is July 1 of the year prior to the
fishing year.
(iii) Requirements for placing a catcher/processor in the partial
observer coverage category. NMFS will place a catcher/processor in the
partial observer coverage category for a fishing year if the owner of
the catcher/processor requests placement in partial observer coverage
by the deadline for requesting partial observer coverage for that
fishing year and the catcher/processor meets the following
requirements:
(A) An average weekly groundfish production of:
(1) 79,000 lb (35.8 mt) or less, but more than zero lb, in the
standard basis year; or
(2) Zero lb in the standard basis year and 79,000 lb (35.8 mt) or
less, but more
[[Page 17411]]
than zero lb, in the alternate basis year; or
(3) Had no production from 2009 through the standard basis year;
and
(B) Is not a catcher/processor using trawl gear; and
(C) Is not subject to additional observer coverage requirements in
paragraph (a)(2)(vi) of this section.
(iv) How to request placement of a catcher/processor in partial
observer coverage. A vessel owner must submit a request form to NMFS.
The request form must be completed with all required fields accurately
completed. The request form is provided by NMFS and is available on the
NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov). The
submittal methods are described on the form.
(v) Notification of placement in the partial observer coverage
category. NMFS will notify the owner if the catcher/processor has been
placed in the partial observer coverage category in writing. Until NMFS
provides notification, the catcher/processor is in the full observer
coverage category for that fishing year.
(vi) Initial Administrative Determination (IAD). If NMFS denies a
request to place a catcher/processor in the partial observer coverage
category, NMFS will provide an IAD, which will explain the basis for
the denial.
(vii) Appeal. If the owner of a catcher/processor wishes to appeal
NMFS' denial of a request to place a catcher/processor in the partial
observer coverage category, the owner may appeal the determination
under the appeals procedure set out at 15 CFR part 906.
* * * * *
(e) * * *
(1) * * *
(iii) * * *
(B) Communication equipment requirements. In the case of an
operator of a catcher/processor (except for a catcher/processor placed
in the partial observer coverage category under paragraph (a)(3) of
this section), a mothership, a catcher vessel 125 ft LOA or longer
(except for a vessel fishing for groundfish with pot gear), or a
catcher vessel participating in the Rockfish Program:
* * * * *
0
5. In Sec. 679.55, revise paragraphs (a) and (c) to read as follows:
Sec. 679.55 Observer fees.
(a) Responsibility. The owner of a shoreside processor or
stationary floating processor named on a Federal Processing Permit
(FPP), a catcher/processor named on a Federal Fisheries Permit (FFP),
or a person named on a Registered Buyer permit at the time of the
landing subject to the observer fee as specified at Sec. 679.55(c)
must comply with the requirements of this section. Subsequent non-
renewal of an FPP, FFP, or a Registered Buyer permit does not affect
the permit holder's liability for noncompliance with this section.
* * * * *
(c) Landings subject to the observer fee. The observer fee is
assessed on landings by vessels not in the full observer coverage
category described at Sec. 679.51(a)(2) according to the following
table:
------------------------------------------------------------------------
Is fish from the landing subject to
the observer fee?
If fish in the landing by a ---------------------------------------
catcher vessel or production by If the vessel is If the vessel is
a catcher/processor is from the not designated on designated on an
following fishery or species: an FFP or required FFP or required to
to be designated be designated on
on an FFP: an FFP:
------------------------------------------------------------------------
(1) Groundfish listed in Table Not applicable, an Yes.
2a to this part that are FFP is required
harvested in the EEZ and to harvest these
subtracted from a total groundfish in the
allowable catch limit specified EEZ.
under Sec. 679.20(a).
(2) Groundfish listed in Table No................ Yes.
2a to this part that are
harvested in Alaska State
waters, including in a parallel
groundfish fishery, and
subtracted from a total
allowable catch limit specified
under Sec. 679.20(a).
(3) Sablefish IFQ, regardless of Yes............... Yes.
where harvested.
(4) Halibut IFQ or halibut CDQ, Yes............... Yes.
regardless of where harvested.
(5) Groundfish listed in Table No................ No.
2a to this part that are
harvested in Alaska State
waters, but are not subtracted
from a total allowable catch
limit under Sec. 679.20(a).
(6) Any groundfish or other No................ No.
species not listed in Table 2a
to part 679, except halibut IFQ
or CDQ halibut, regardless of
where harvested.
------------------------------------------------------------------------
* * * * *
Sec. Sec. 679.2 and 679.5 [Amended]
0
6. At each of the locations shown in the ``Location'' column, remove
the phrase indicated in the ``Remove'' column and replace it with the
phrase indicated in the ``Add'' column for the number of times
indicated in the ``Frequency'' column.
----------------------------------------------------------------------------------------------------------------
Location Remove Add Frequency
----------------------------------------------------------------------------------------------------------------
Sec. 679.2 Definition of Sec. 679.50............. Sec. 679.53............. 1
``Suspension''.
Sec. 679.2 Definition of Sec. 679.50(j).......... Sec. 679.53(c).......... 1
``Suspension''.
Sec. 679.5(e)(10)(iv)(B).............. required to have 100 in the groundfish and 1
percent observer coverage halibut fishery full
or more. observer coverage
category described at
Sec. 679.51(a)(2).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2016-07019 Filed 3-28-16; 8:45 am]
BILLING CODE 3510-22-P