Fisheries of the Exclusive Economic Zone Off Alaska; Observer Coverage Requirements for Bering Sea and Aleutian Islands Management Area Trawl Catcher Vessels

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to modify observer coverage requirements for catcher vessels participating in the trawl limited access fisheries in the Bering Sea and Aleutian Islands management area (BSAI). This final rule allows the owner of a trawl catcher vessel to request, on an annual basis, that NMFS place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following calendar year. These regulations are necessary to relieve vessel owners who request full observer coverage of the reporting requirements and observer fee liability associated with the partial observer coverage category. Additionally, this final rule makes minor technical corrections to observer program regulations. This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), and other applicable laws.

DATES:

Effective October 31, 2016.

ADDRESSES:

Electronic copies of the Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Categorical Exclusion prepared for this action are available from www.regulations.gov (search NOAA-NMFS-2016-0020) or from the NMFS Alaska Region Web site at alaskafisheries.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this 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 OIRA_Submission@omb.eop.gov; or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Alicia M. Miller, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

NMFS published a proposed rule to modify observer coverage requirements for catcher vessels participating in the trawl limited access fisheries in the BSAI on July 7, 2016 (81 FR 44251). The comment period on the proposed rule ended on August 8, 2016. Following is a brief description of the North Pacific Groundfish and Halibut Observer Program (Observer Program) and elements of the Observer Program impacted by this final rule. The preamble of the proposed rule (81 FR 44251, July 7, 2016) provides a more detailed description of the Observer Program and this action.

The Observer Program

Regulations implementing the Observer Program require observer coverage on fishing vessels and at processing plants to allow NMFS-certified observers (observers) to obtain information necessary for the conservation and management of the BSAI and Gulf of Alaska groundfish and halibut fisheries. The Observer Program was implemented in 1990 (55 FR 4839, February 12, 1990). In 2013, NMFS restructured the funding and deployment systems of the Observer Program (77 FR 70062, November 21, 2012). Under the restructured Observer Program, all vessels and processors in the groundfish and halibut fisheries off Alaska are placed into one of two categories: (1) The full observer coverage category, where vessels and processors obtain observer coverage by contracting directly with observer providers; and (2) the partial observer coverage category, where NMFS has the flexibility to deploy observers when and where they are needed, as described in the annual deployment plan that is developed by NMFS in consultation with the North Pacific Fishery Management Council (Council). NMFS funds observer deployment in the partial observer coverage category by assessing a 1.25 percent fee on the ex-vessel value of retained groundfish and halibut from vessels that are not in the full observer coverage category.

Regulations implementing the restructured Observer Program in 2013 placed all trawl catcher vessels in the full observer coverage category when participating in a catch share program with transferable prohibited species catch (PSC) limits. For trawl catcher vessels in the BSAI, the catch share programs with transferable PSC limits are the American Fisheries Act (AFA) pollock fisheries in the Bering Sea and the Western Alaska Community Development Quota (CDQ) groundfish fisheries. All other trawl catcher vessels subject to observer coverage requirements in the BSAI are in the partial observer coverage category when participating in the BSAI trawl limited access fisheries.

Throughout this final rule, the trawl fisheries in the BSAI that are not part of a catch share program with transferable PSC limits are referred to collectively as “the BSAI trawl limited access fisheries.” Vessels participating in the BSAI trawl limited access fisheries primarily target Pacific cod or yellowfin sole. The BSAI trawl limited access fisheries are managed with halibut and crab PSC limits that apply to the directed fishery as a whole or to operational category and gear type. Section 3.5 in the RIR provides additional information about the BSAI trawl limited access fisheries, the Observer Program, and observer coverage categories.

Need for This Final Rule

Since 2013, for reasons detailed in the proposed rule for this action (81 FR 44251, July 7, 2016), NMFS has implemented an interim policy that allows an owner of a BSAI trawl catcher vessel to request, on an annual basis, placement in the full observer coverage category by submitting a letter of request to NMFS. Under the interim policy, the owner of a trawl catcher vessel complies with full observer coverage requirements but is not placed in the full observer coverage category by regulation. Therefore, the owner must continue to comply with the partial observer coverage category reporting requirements and associated observer fee liability. This results in the vessel owner paying costs for partial and full observer coverage and additional reporting requirements for those vessel owners that have requested full observer coverage under the interim policy. This final rule replaces the interim policy and establishes in regulation a process for the owner of a trawl catcher vessel to request placement in the full observer coverage category.

The major provisions of this final rule are summarized below. Additional detail about the rationale for the major provisions is found in the proposed rule for this action (81 FR 44251, July 7, 2016) and Sections 3.6 and 3.7 of the RIR.

1. Annual Request for Full Observer Coverage

This final rule allows the owner of a trawl catcher vessel to annually request full observer coverage in lieu of partial observer coverage for directed fishing for groundfish using trawl gear in the BSAI in the following year. This final rule establishes a regulatory process to allow the owner of a trawl catcher vessel to submit a request for full observer coverage to NMFS. NMFS will then place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following year.

This final rule does not restrict which trawl catcher vessel owners may request full observer coverage, allowing the owner of any trawl catcher vessel to request full observer coverage for all directed fishing for groundfish using trawl gear in the BSAI in the following year. This final rule does not alter existing observer coverage requirements for trawl catcher vessels delivering unsorted codends to a mothership in the BSAI.

2. Annual Deadline

This final rule establishes an annual deadline of October 15 for a trawl catcher vessel owner to request placement in the full observer coverage category for the following year.

This Final Rule

This final rule revises regulations at 50 CFR part 679 to establish a process to allow the owner of a trawl catcher vessel to request, on an annual basis, that NMFS place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following calendar year. This final rule adds a paragraph at § 679.51(a)(2)(i)(C)(4) describing a new vessel type under the list of catcher vessels in the full observer coverage category to allow this annual request for placement in the full observer coverage category for one year. This final rule adds a new paragraph at § 679.51(a)(4) to describe the requirements for this annual process.

The owner of a trawl catcher vessel that requests full observer coverage in lieu of partial observer coverage for all directed fishing for groundfish in the BSAI trawl limited access fisheries in the following year will submit the request to NMFS using the Observer Declare and Deploy System (ODDS), which is described at § 679.51(a)(1)(ii). Once a request is received, NMFS will consider the request and will notify the vessel owner whether the request is approved or denied. This notification will occur through ODDS. Once NMFS has notified the vessel owner that a request to be placed in the full observer coverage category for the following year is approved, the owner and operator of the trawl catcher vessel are subject to full observer coverage requirements as described at § 679.51(a)(2) for all directed fishing for groundfish using trawl gear in the BSAI in the following year. Once approved by NMFS for placement in the full observer coverage category, a trawl catcher vessel cannot be placed in the partial observer coverage category until the next year. Until NMFS provides notification of approval, a catcher vessel remains in the partial observer coverage category as described at § 679.51(a)(1)(i).

The owner of a trawl catcher vessel placed in the full observer coverage category contracts directly with a permitted full coverage observer provider to procure observer services as described at § 679.51(d). The owner of a trawl catcher vessel in the full observer coverage category is not required to log fishing trips in ODDS under § 679.51(a)(1), and landings made by a vessel in the full observer coverage category are not subject to the 1.25 percent partial observer coverage fee under § 679.55.

This final rule establishes an annual deadline of October 15 for a trawl catcher vessel owner to request that a trawl catcher vessel operating in the BSAI be placed in the full observer coverage category for the following year as described at § 679.51(a)(4)(iii). NMFS will approve all requests that contain the information required by ODDS submitted on or before October 15. If NMFS denies a request to place a catcher vessel in the full observer coverage category, the catcher vessel will remain in the partial observer coverage category as described at § 679.51(a)(1)(i).

This final rule specifies at § 679.51(a)(4)(v) that if NMFS denies a request for placement in the full observer coverage category, NMFS will issue an Initial Administrative Determination, which will explain in writing the reasons for the denial. Under § 679.51(a)(4)(vi), the vessel owner can appeal a denial to the National Appeals Office according to the procedures in 15 CFR part 906.

This final rule makes minor technical corrections to Observer Program regulations, and corrects inaccurate cross references in § 679.84 and § 679.93 to observer coverage requirements in § 679.51. This final rule also standardizes references to the observer sampling station and the Observer Sampling Manual throughout part 679, and updates check-in/check-out report submission methods by removing a discontinued email address in § 679.5.

Comments and Responses

During the comment period for the proposed rule, NMFS received two letters of comment from two individuals, each letter containing two substantive comments. NMFS' responses to these comments are presented below.

Comment 1: Both commenters expressed support for this action, noting that the vessels they represent will be positively impacted by this action and that the proposed rule is consistent with changes requested by industry in 2012, as well as the recommendations made by the Council in February 2016.

Response: NMFS acknowledges this comment.

Comment 2: Both commenters support all provisions of the final rule as proposed, and request the action be implemented as soon as possible.

Response: NMFS acknowledges this comment. To ensure this action is effective and allow at least 15 days for vessel owners to submit a full observer coverage request for the 2017 calendar year, an implementation year deadline has been added to this final rule as described in the following section.

Changes From the Proposed Rule

This final rule includes changes to the regulatory text published in the proposed rule. These changes are necessary to define an initial implementation deadline for the 2017 calendar year and to make a minor editorial correction to existing regulatory text that was inadvertently altered in the proposed rule.

Initial Implementation Deadline for 2017

The proposed rule for this action (81 FR 44251, July 7, 2016) proposed an annual deadline of October 15 for a trawl catcher vessel owner to request that a trawl catcher vessel operating in the BSAI be placed in the full observer coverage category for the following year. Because the effective date of this final rule is after October 15, 2016, the deadline for the 2017 calendar year is 15 days after the effective date of this final rule. This deadline for 2017 is necessary to provide an adequate amount of time after publication of the final rule in the Federal Register for the owner of a trawl catcher vessel to submit a full observer coverage request to NMFS.

Other Changes

NMFS corrects § 679.51(a)(2)(i)(C)(2) by changing “while” to “when” to be consistent with the terminology used in existing regulations.

NMFS removed the cross reference correction in § 679.21 from this final rule because the cross reference was corrected in the final rule to implement salmon bycatch management measures under Amendment 110 to the BSAI FMP (81 FR 37534, June 10, 2016).

OMB Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)

Section 3507(c)(B)(i) of the Paperwork Reduction Act requires that agencies inventory and display a current control number assigned by the Director, Office of Management and Budget (OMB), for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule revises and adds data elements within a collection-of-information for recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to reference correctly the sections resulting from this final rule.

Classification

Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the Administrator, Alaska Region, NMFS, determined that this final rule is necessary for the conservation and management of the BSAI trawl limited access fisheries and is consistent with the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

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 (81 FR 44251, July 7, 2016) and the preamble to this final rule serve as the small entity compliance guide for this action. Copies of the proposed rule, this final rule, and additional information about how to comply with other requirements of the Observer Program are available on the NMFS Alaska Region Web site ( https://alaskafisheries.noaa.gov/fisheries/observer-program ).

Final Regulatory Flexibility Analysis

Section 604 of the Regulatory Flexibility Act (RFA) requires an agency to prepare a final regulatory flexibility analysis (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 (SBA) 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 This Rule

A description of the need for, and objectives of, this 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) (see ADDRESSES) and the summary of the IRFA in the proposed rule (81 FR 44251, July 7, 2016).

Summary of Significant Issues Raised During Public Comment

NMFS published a proposed rule to modify observer coverage requirements for catcher vessels participating in the BSAI trawl limited access fisheries on July 7, 2016 (81 FR 44251). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on August 8, 2016. NMFS received two letters of comment, each in support of the action as proposed. These comments letters did not address the IRFA. The commenters did request the rulemaking process be completed as soon as possible. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

Number and Description of Small Entities Directly Regulated by this Rule

This final rule directly regulates the owners of trawl catcher vessels that participate in the BSAI trawl limited access fisheries. The SBA has established size standards for all major industry sectors in the United States. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) 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 receipts not in excess of $11 million for all its affiliated operations worldwide.

This final rule provides the owners of BSAI trawl catcher vessels that currently are placed in the partial observer coverage category the opportunity for placement in the full observer coverage category. In 2014, 100 catcher vessels used trawl gear in the BSAI. NMFS estimates that 13 of these trawl catcher vessels are directly regulated small entities. The owners of three of these catcher vessels requested to be placed in the full observer coverage category for all their BSAI trawl limited access fisheries during at least one year from 2013 through 2015.

Reporting, Recordkeeping and Other Compliance Requirements

This final rule includes one new reporting requirement and eliminates one reporting requirement for a vessel owner who requests placement of their vessel in the full observer coverage category for a year. Any trawl catcher vessel owner who requests placement of their trawl catcher vessel in the full observer coverage category will be required to submit a request to NMFS. This request is a new reporting requirement and only applies to those catcher vessel owners who request placement of their vessel in the full observer coverage category. The reporting requirement to log fishing trips in ODDS does not apply to vessels in the full observer coverage category; therefore, this final rule removes the reporting requirement for these directly regulated small entities to log fishing trips in ODDS.

Description of Significant Alternatives to This Rule That Minimize Economic Impacts on Small Entities

The RFA requires identification of any significant alternatives to this rule that accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant economic impact of this rule on small entities. This final rule is expected to create a net benefit for the directly regulated small entities because it offers trawl catcher vessel owners an opportunity to change their observer coverage category. The benefits of this final rule to trawl catcher vessel owners are expected to outweigh the costs of paying for an observer to be on board the vessel during all groundfish fishing in the BSAI trawl limited access fisheries, and the cost of the annual request to NMFS. If the benefits to a catcher vessel owner do not outweigh the costs, a catcher vessel owner can choose not to request their vessel be placed in the full observer coverage category, and therefore, would not be impacted by this final rule.

The Council considered the status quo (Alternative 1) and two action alternatives (Alternative 2 and Alternative 3). Alternative 3 included one option and three suboptions. The preferred alternative (Alternative 3 with Suboption 3) described in this final rule provides the owners of BSAI trawl catcher vessels an option of requesting, on an annual basis, placement in the full observer coverage category rather than remaining in the partial observer coverage category. No new requirements are imposed under the preferred alternative unless the catcher vessel owner requests placement in the full observer coverage category. Of the action alternatives analyzed, the preferred alternative provides the most flexibility for the owner of a trawl catcher vessel to request full observer coverage in lieu of partial observer coverage.

Alternative 1 (status quo) would have continued to offer catcher vessel owners the option of carrying full observer coverage under the interim policy, but would not remove the requirement in regulations for continued payment of the partial observer coverage fee in addition to the cost of full observer coverage. Alternative 2 is more restrictive than the preferred alternative because it would have permanently placed AFA trawl catcher vessels in the full observer coverage category rather than offering the vessel owners an option to request full observer coverage on an annual basis. Alternative 3 Option 1 would have allowed only the owners of AFA trawl catcher vessels to request placement in the full observer coverage category, rather than providing the opportunity to the owners of all BSAI trawl catcher vessels. Alternative 3 Suboption 1 would have established an earlier deadline to submit the request for full observer coverage than under the preferred alternative. Directly regulated small entities opposed the earlier deadline because they wanted more time to make business decisions about observer coverage in the following year. Alternative 3 Suboption 2 would have established a one-time request to be placed in the full observer coverage category rather than an annual request as under the preferred alternative. In summary, the preferred alternative of Alternative 3 with Suboption 3 (this final rule) offers the widest range of options to the widest range of directly regulated small entities, as compared to all other alternatives.

Collection-of-Information Requirements

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the OMB under Control No. 0648-0731. The public reporting burden for Request for Full Observer Coverage Category is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments on these burden estimates or any other aspects of the collection of information, including suggestions for reducing the burden, to NMFS (see ADDRESSES), by email to OIRA_Submission@omb.eop.gov, 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

15 CFR Part 902

• Reporting and recordkeeping requirements

50 CFR Part 679

• Alaska
• Fisheries
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

Title 15—Commerce and Foreign Trade

PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR” revise entry for “679.51” to read as follows:

Title 50—Wildlife and Fisheries

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

3. 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.

4. In § 679.51:

a. Revise paragraphs (a)(2)(i)(C)( 2) and (3); and

b. Add paragraphs (a)(2)(i)(C)( 4) and (a)(4).

The revisions and additions read as follows:

5. At each of the locations shown in the “Location” column, remove the phrase indicated in the “Remove” column and add in its place the phrase indicated in the “Add” column.