[Federal Register Volume 85, Number 46 (Monday, March 9, 2020)]
[Proposed Rules]
[Pages 13618-13621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04686]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No.: 200303-0070]
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: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to adjust the North Pacific Observer
Program fee. This proposed rule is intended to increase funds available
to support observer and EM deployment in the partial coverage category
of the Observer Program and increase the likelihood of meeting desired
monitoring objectives. This proposed rule is intended to promote the
goals and objectives of the IFQ Program, the Magnuson-Stevens Fishery
Conservation and Management Act, the Northern Pacific Halibut Act of
1982, and other applicable law.
DATES: Submit comments on or before April 8, 2020.
ADDRESSES: You may submit comments, identified by docket number NOAA-
NMFS-2019-0136, either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0136, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Records Office. Mail comments to P.O. Box 21668, Juneau, AK
99802-1668.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Electronic copies of the Environmental Assessment/Regulatory Impact
Review (referred to as the ``Analysis'') prepared for this proposed
rule are available from http://www.regulations.gov.
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. The Halibut Act, at sections 773c (a) and
(b), provides the Secretary with general responsibility to carry out
the Convention and the Halibut Act. The Halibut Act, at section
773c(c), 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 proposes regulations to adjust the North Pacific Observer
Program (Observer Program) fee percentage. This proposed rule is
intended to increase funds available to support observer and EM
deployment in the partial coverage category of the Observer Program and
increase the likelihood of meeting monitoring objectives. The following
sections describe the Observer Program, the landings subject to the
observer fee, and the need for this action.
Observer Program
Fishery managers use information collected by observers or
electronic monitoring (EM) systems to monitor fishing quotas, manage
catch and bycatch, and document fishery
[[Page 13619]]
interactions with protected resources, such as marine mammals and
seabirds. Scientists use this information for fish stock assessments
and marine ecosystem research. Over the past several decades, NMFS has
required the deployment of observers onboard vessels and at shoreside
and other fish processors to ensure high-quality fishery data necessary
for the conservation and management of fisheries. Section 3.2 of the
Analysis detail the use of data gathered through observer and EM
systems.
In 2012, the Observer Program was extensively restructured to add a
funding and deployment system for observer coverage and amend existing
observer coverage requirements for vessels and processing plants (77 FR
70061, November 21, 2012). This funding and deployment system allows
NMFS to determine when and where to deploy observers according to
management and conservation needs, with funds provided through a system
of fees. In 2017, NMFS implemented regulations to integrate electronic
monitoring (EM) into the Observer Program (82 FR 36991, August 8,
2017). Regulations at 50 CFR 679 subpart E implementing the Observer
Program, require the deployment of NMFS-certified observers or EM.
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 proposed rule, the term
``processor'' refers to shoreside processors, stationary floating
processors, and catcher/processors.
The partial coverage category includes vessels and processors that
are not required to have an observer or EM at all times and the full
coverage category includes vessels and processors required to have all
of their fishing and processing activity observed. Vessels and
processors in the full coverage category arrange and pay for observer
services directly from a permitted observer provider, in what is
commonly known as a ``pay-as-you-go'' deployment method. Observer
coverage and EM for the partial coverage category are funded through a
system of fees based on the ex-vessel value of groundfish and Pacific
halibut. This fee is authorized under section 313 of the Magnuson-
Stevens Act.
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 deploying 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 since the Observer Program was restructured, NMFS
develops an Annual Deployment Plan (ADP) to describe how observers and
EM will be deployed in the partial coverage category for the upcoming
calendar year and prepares an annual report. The annual report
evaluates the performance of observer deployment in the full coverage
category according to the regulatory coverage requirements and
performance in partial coverage category according to the prior year's
ADP implementation. NMFS and the Council created the ADP process to
provide flexibility in the deployment of observers, specifically in the
partial coverage category, and EM to gather reliable data for
estimation of catch in the groundfish and halibut fisheries off Alaska.
The ADP process ensures that the best available information is used to
evaluate deployment, including scientific review and Council input, and
to annually determine deployment methods. During the development of the
ADP, NMFS consults with the Council to determine how to apportion fee
revenues between observer and EM deployment and to specify selection
rates for each. Observer and EM selection rates for a given year are
dependent on the available budget generated from the observer fee and
supplemental funds and the decisions about how to apportion the fees to
different selection pools and the anticipated fishing effort in each
selection pool. Additional information about the Observer Program is
available in Section 3 of the Analysis.
Landings Subject to the Fee
Since January 1, 2013, an observer fee equal to 1.25 percent of the
fishery ex-vessel value has been 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. A fee is
only assessed on landings of groundfish from vessels designated on a
Federal Fisheries Permit or from vessels landing individual fishing
quota (IFQ) or Western Alaska community development quota (CDQ) halibut
or IFQ sablefish. Within the subset of vessels subject to the observer
fee, only landings accruing against an IFQ allocation or a Federal TAC
for groundfish are included in the fee assessment. Regulations at Sec.
679.55(c) describe which landings are subject to the observer fee
assessment.
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
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 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 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
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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 for this action.
Proposed Action
This action would increase the observer fee specified at Sec.
679.55(f) from 1.25 percent to 1.65 percent of the ex-vessel value of
landings subject to the fee. A 1.65 percent fee would increase fee
revenues to support observer and EM deployment at rates that would be
more likely to meet the Council's and NMFS' monitoring objectives than
the revenues from the current 1.25 percent fee. As described in Section
3.2 of this Analysis, 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.
In recommending this adjustment to the observer fee, the Council
recognized the diminishing availability of supplemental Federal funding
and fee revenues as well as higher than expected costs for observer and
EM deployment since implementation of the Observer Program on January
1, 2013. As described in Section 4.5 of the Analysis, NMFS can manage
the fisheries at low levels of observer coverage, but in an uncertain
climate with substantive changes in fishery catch limits in recent
years, the Council and NMFS recognize the importance of fisheries
monitoring and maintaining the Observer Program.
The monitoring objectives for the Observer Program include
maintaining and improving data quality and utility for scientific and
management purposes while fairly distributing the burden of monitoring
and minimizing the impacts to vessel operations (see Section 3.3 of the
Analysis for additional detail). According to Section 4.2 of the
Analysis, a 1.65 percent fee would have resulted in $4.4 to $5.8
million in fee revenues annually (2013 through 2018) compared to the
estimated $3.3 to $4.4 million in fee revenues generated by the 1.25
percent fee. Section 4.2 of the Analysis notes that it is difficult to
reliably project the amount of revenue that will be provided from a fee
on an annual basis due to uncertainty about future TAC or halibut quota
limits, ex-vessel prices, or fishing effort. However, Section 5.6 of
the Analysis describes that increasing the fee increases the likelihood
that monitoring objectives can continue to be met. Sections 4.2.1 and
Appendix D provide additional detail on the range of potential
revenues, and possible gaps in the types of data that may occur at
various levels of fees.
The Council considered two alternatives that would increase the
observer fee from the current 1.25 percent up to 2 percent (the maximum
fee authorized by section 313 of the Magnuson-Stevens Act). The two
alternatives differed in how the fee would be distributed across the
fisheries (i.e., trawl, hook-and-line, pot, and jig gear). Alternative
2 would have increased the fee equally on all fisheries. Alternative 3
would have allowed different fee percentages to be established for the
different fisheries subject to the observer fee. The Council
recommended and NMFS proposes increasing the fee equally on all
fisheries (Alternative 2) to maintain consistency with the current
method for assessing costs on fishery participants, because it was not
clear what specific data collection need would be better met by having
differential fees among fisheries, and the lack of a clear rationale to
establish a greater fee on one fishery than another.
The Council recommended and NMFS proposes an observer fee of 1.65
percent to balance the concerns raised by the affected industry about
the costs of operation if the fee were to increase to the maximum of 2
percent, or an amount close to 2 percent, with the need to increase fee
revenues to meet monitoring objectives. Public testimony at the Council
noted that increasing fees up to the maximum amount would be likely to
impose substantial additional costs during a period of decreasing
revenues in various fisheries (e.g., halibut). Section 5.6 of the
Analysis notes that fees lower than 1.65 percent would be unlikely to
provide the revenue to meet the Council's monitoring objectives. The
Council's recommendation and NMFS' proposal for a 1.65 percent fee
would balance concerns about increased costs with the need to increase
revenue in order to meet monitoring objectives.
The proposed fee adjustment would 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. Adjusting the observer fee to 1.65 percent would improve
the fiscal stability of an industry-funded monitoring program and
balances the need to increase funding for observer and EM deployment
with the economic burden imposed on affected fishery participants.
Along with adjusting the observer fee, the Council supports continuing
efforts to further explore efficiencies that may provide for more cost
effective or efficient deployment of observers with existing funding,
while still meeting the needs for reliable and unbiased data.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Fishery Management Plan (FMP) for Groundfish of the
Gulf of Alaska (GOA) and the FMP for Groundfish of the Bering Sea and
Aleutian Islands Management Area (BSAI), other provisions of the
Magnuson-Stevens Fishery and Conservation Act, and other applicable
law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
This proposed rule is not an Executive Order 13771 regulatory
action because this rule is not significant under Executive Order
12866.
Regulatory Impact Review (RIR)
An RIR was prepared to examine the costs and benefits of the
alternatives analyzed. The RIR considers quantitative and qualitative
measures. A copy of this analysis is available from NMFS (see
ADDRESSES). The Council recommended and NMFS proposes these regulations
based on those measures that maximize net benefits to the Nation.
Specific aspects of the RIR are discussed below in the initial
regulatory flexibility analysis (IRFA) section.
Initial Regulatory Flexibility Analysis (IRFA)
This IRFA was prepared for this proposed rule, as required by
section 603 of the Regulatory Flexibility Act (RFA). This IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the 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 Proposed
Rule
This proposed rule directly regulates the owners (permit holders)
of fish processors required to pay the observer
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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 proposed
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).
The proposed rule 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 proposed rule.
In 2018, 997 vessels participated in fisheries in the partial
coverage category. Section 4.5.3.2 in the EA notes that the number of
catcher/processors eligible for partial coverage when fishing off
Alaska is currently estimated to be between six and 10. Of the total of
997 vessels in partial coverage in 2018, 982 are classified as small
entities (four were catcher/processors and the rest catcher vessels).
Of those 982 vessels, by gear type, 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. Alternative 1,
the no action Alternative, 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 would raise the fee up to 2 percent, equally
across all fisheries included in the program (i.e., gear types).
Alternative 3 would raise the fee up to 2 percent, but be implemented
differentially across the fisheries included in the program (i.e., gear
types). This proposed rule would increase the observer fee to 1.65
percent of ex-vessel value for all landings subject to the observer
fee. The status quo and some of the fee levels considered under
Alternatives 2 and 3 would have implemented a fee percentage lower than
the proposed rule 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 electronic monitoring 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 should continue to be applied equally to the
ex-vessel value of all of the landed catch subject to the observer fee.
Duplicate, Overlapping, or Conflicting Federal Rules
No duplication, overlap, or conflict between this proposed action
and existing Federal rules has been identified.
Recordkeeping, Reporting, and Other Compliance Requirements
This proposed rule does not contain recordkeeping, reporting, or
other compliance requirements.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: March 3, 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
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
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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.
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(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.
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[FR Doc. 2020-04686 Filed 3-6-20; 8:45 am]
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