North Pacific Fisheries Research Plan; Amendment 1

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 677

[Docket No. 950822211-5291-02; I.D. 080395A]

RIN 0648-AD80

North Pacific Fisheries Research Plan; Amendment 1

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; technical amendments.

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SUMMARY: NMFS issues a final rule to implement Amendment 1 to the North

Pacific Fisheries Research Plan (Research Plan). Regulations

implementing Amendment 1 delay full implementation of the Research Plan

until 1997 and establish 1996 observer coverage requirements for the

Research Plan fisheries. This delay is necessary to provide the North

Pacific Fishery Management Council (Council) additional time to address

certain issues presented by implementation of the Research Plan. Two

technical amendments also are implemented to clarify provisions for

refunding excess payments of 1995 Research Plan fee assessments and to

clarify 1996 observer coverage requirements for groundfish vessels.

EFFECTIVE DATE: January 1, 1996.

[[Page 66756]]

ADDRESSES: Copies of the Observer Plan may be obtained from the

Fisheries Management Division, Alaska Region, NMFS, 709 West 9th

Street, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK 99802-1668,

Attn: Lori J. Gravel.

Copies of the Research Plan as revised by Amendment 1, the

environmental assessment/regulatory impact review prepared for the

Research Plan, and the final report ``Establishing the Fee Percentage

and Standard Exvessel Prices for 1995'' may be obtained from the North

Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK

99510.

FOR FURTHER INFORMATION CONTACT: Susan Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

Regulations implementing the Research Plan became effective October

6, 1994 (59 FR 46126, September 6, 1994). Since then, these regulations

have been amended three times. The first regulatory amendment was

published in the Federal Register on January 9, 1995 (60 FR 2344), to

clarify 1995 observer coverage requirements and revise the definition

of certain terms set out under Sec. 677.2. A second regulatory

amendment was published on July 5, 1995 (60 FR 34904), to require

vessels and shoreside processors to facilitate transmission of observer

data. The third regulatory amendment was published on August 16, 1995

(60 FR 42470), to revise 1995 observer coverage requirements for crab

catcher vessels and exempt certain crab catcher vessels required to

obtain observer coverage from paying 1995 Research Plan fees.

The Council requested that full implementation of the Research Plan

be delayed for a 1-year period to provide additional time to reconsider

certain elements of the Research Plan that were previously adopted by

the Council. This Council action was developed during the Council's

April and June 1995 meetings, as well as during a May 16, 1995,

teleconference. The Council also expressed its intent to continue the

fee collection program implemented for 1995 for the remainder of the

year, so that adequate start-up funds may be collected for full

implementation of the Research Plan in 1997.

A proposed rule to delay full implementation of the Research Plan

was published in the Federal Register on September 11, 1995 (60 FR

47142). Comments on the proposed rule were invited through November 6,

1995. No written comments were received within the comment period. NMFS

received oral comment on the proposed delay of the Research Plan during

a September 18, 1995, public hearing by teleconference. The public

hearing teleconference provided opportunity for public participation in

Anchorage, AK, Juneau, AK, Seattle, WA, and Newport, OR. Members of the

public participating in the public hearing either provided no comment

or endorsed the proposed delay of the Research Plan.

Section 313(c)(3) of the Magnuson Act requires that, within 45 days

of the close of the public comment period, NMFS, in consultation with

the Council, analyze the public comment received and publish final

regulations for implementing an amendment to the Research Plan.

Consultation with the Council was initiated at the Council's September

1995 meeting. Oral comment received by NMFS and the Council indicated

widespread industry support for the proposed delay of the Research

Plan. NMFS received no further comment subsequent to the September

Council meeting that would require further consultation with the

Council.

NMFS has approved a 1-year delay of the full implementation of the

Research Plan under section 313(c) of the Magnuson Act. Upon reviewing

the Council's reasons for this delay and comments by the industry

endorsing this action, NMFS has determined that this final rule is

consistent with the Magnuson Act. The reasons for this delay are

discussed further in the proposed rule (60 FR 47142, September 11,

1995).

Consistent with the Council's expressed intent, NMFS will continue

to assess fees through early 1996 for fish harvested and retained in

the Research Plan fisheries during 1995. Lacking future regulatory

action to the contrary, collected funds will be held in an interest-

bearing account and will be used to award contracts to provide

observers under the Research Plan starting in 1997. Adequate start-up

funds will be collected during 1995; as a result, Research Plan fees

will not be assessed for fish caught in 1996.

The Council intends that 1996 observer coverage levels remain

unchanged from 1995 levels. These observer coverage requirements for

the groundfish and crab fisheries are set out at Sec. 677.10(a). As in

1995, participants in the groundfish and crab Research Plan fisheries

will be responsible for making their own arrangements and paying for

required observer coverage.

The Council's intent to maintain 1995 observer coverage levels

through 1996 applies to mothership processor vessel and shoreside

processor observer coverage requirements set out in regulations

implementing Amendment 35 to the Fishery Management Plan for the

Groundfish Fishery of the Bering Sea and Aleutian Islands Area. Final

regulations implementing Amendment 35 are codified at 50 CFR 675.25(b)

and are effective through December 31, 1995. In keeping with the

Council's intent to maintain 1995 observer coverage levels in 1996,

NMFS is extending the effective date of observer coverage requirements

implemented under Amendment 35 through December 31, 1996, and including

these requirements in the 1996 Research Plan observer coverage

requirements at Sec. 677.10(a).

NMFS notes that regulations at Sec. 677.10(g) set out vessel safety

requirements applicable in 1996 and beyond. No substantive changes to

these requirements are implemented; however, the regulatory text is

revised to clarify that these requirements apply to vessels required to

carry observers in 1996 under Sec. 677.10(a).

NMFS further notes that the following sections of the Observer Plan

still will be in effect until full implementation of the Research Plan

in 1997: (1) Standards of observer conduct; and (2) description,

specifications, and work statement for certified domestic observer

contractors, including conflict of interest standards for NMFS-

certified observers and contractors and conditions for contractor and

observer certification revocation. Copies of the Observer Plan dated

May 1994 are available from NMFS (see ADDRESSES).

Technical Amendments

Two technical amendments are implemented to clarify NMFS's intent

for the Research Plan in 1996. The first technical amendment is

necessary to allow groundfish and crab processors that participate in

the 1996 Research Plan fisheries to receive a refund for costs of 1995

observer coverage up to an amount equal to the sum of the fee

assessments paid by the processor for retained catch during 1995.

Section 677.6(d)(3)(ii)(C) authorizes NMFS to refund excess payments of

1995 Research Plan fee assessments to processors that do not intend to

participate in the Research Plan fisheries during the first half of

1996. This provision assumes that a fee assessment program would be

ongoing in 1996 and that processors participating in the 1996 Research

Plan fisheries could be credited for any excess payments of their 1995

fee assessments on their 1996 bills. However, the final rule to delay

full implementation of the Research Plan does not authorize a fee

assessment program during 1996. As a result,

[[Page 66757]]

regulatory language at Sec. 677.6(d)(3)(ii)(C) must be removed so that

all processors who are owed a refund from the 1995 fee assessment

program can be issued a refund regardless of whether they participate

in a Research Plan fishery during the first half of 1996 or not.

The second technical amendment is necessary to clarify 1996

observer coverage requirements for groundfish vessels that are set out

at Sec. 677.10(a)(1). Under the general provisions, a catcher/processor

or catcher vessel equal to or greater than 60 ft (18.3 m) length

overall (LOA) but less than 125 ft (38.1 m) LOA that is used to

participate for more than 3 fishing days in a directed fishery for

groundfish during a calendar quarter must carry a NMFS-certified

observer during at least 30 percent of its fishing days during that

calendar quarter. This means that if a vessel equal to or greater than

60 ft (18.3 m) LOA but less than 125 ft (38.1 m) LOA retrieves fishing

gear and retains amounts of any groundfish species in excess of the

maximum retainable bycatch amounts specified in Secs. 672.20(g) or

675.20(h) during more than 3 days of a calendar quarter, that vessel

must carry a NMFS-certified observer for at least 30 percent of all

fishing days within that calendar quarter. A fishing day is defined at

Sec. 677.2 as ``a 24-hour period, from 0001 Alaska local time (A.l.t.)

through 2400 A.l.t., in which fishing gear is retrieved and groundfish,

halibut, or king or Tanner crab are retained. Days during which a

vessel only delivers unsorted codends to a processor are not ``fishing

days.'' This final rule does not change these general provisions.

In addition, Sec. 677.10(a)(1)(i) contains specific requirements

that provide that, in addition to the general provisions, a vessel must

carry a NMFS-certified observer during at least one fishing trip during

the calendar quarter for each of six separate groundfish categories in

which the vessel participates. These six categories are defined at

Sec. 677.10(a)(1)(ii); the groundfish categories are: the pollock

fishery, the Pacific cod fishery, the sablefish fishery, the rockfish

fishery, the flatfish fishery, and the other species fishery. Under

current regulations, participation in one of these fisheries is based

on whether the retained catch in that fishery, during any fishing trip,

constitutes the predominant catch of all of the groundfish categories

retained by the vessel. These specific categories were developed to

ensure more complete observer coverage of directed fishing operations

for groundfish and were not intended to include fishing operations that

retained only bycatch amounts of groundfish. This provision was

intended to apply only to directed fishing operations for groundfish.

Nonetheless, the actual language of the regulation, plus recent

regulatory action, increased confusion concerning the meaning of this

provision. It could be argued that the regulations implementing the

individual fishing quota (IFQ) program for halibut inadvertently

changed the requirements for observer coverage by increasing the

probability that a person fishing for halibut would trigger a ``fishing

day'' for groundfish. The IFQ regulations require IFQ card holders to

retain all Pacific cod and rockfish, consistent with the maximum

bycatch amounts specified for these species. All sablefish must be

retained on board if a sablefish IFQ card holder is on board the

vessel.

NMFS is implementing this technical amendment to

Sec. 677.10(a)(1)(ii) to clarify that the groundfish fishery categories

subject to the separate observer coverage requirements apply only with

respect to fishing operations that constitute ``directed fishing'' for

groundfish as defined at Secs. 672.2 and 675.2. This change is

consistent with the original intent of the separate observer coverage

requirement, past practice and the common understanding of the how the

separate observer coverage requirements are supposed to be applied. It

removes a possible unintended effect of the IFQ regulations. To the

extent that this action has any substantive effect, it will relieve an

unintended burden for additional observer coverage that otherwise might

be imposed on fishermen participating in the IFQ program.

Classification

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this rule would not have a

significant economic impact on a substantial number of small entities.

The reasons for this certification were summarized in the preamble to

the proposed rule.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

A delay of full implementation of the Research Plan until 1997

results in a 1-year hiatus of the fee assessment program authorized

under the Research Plan. As such, this final rule relieves a

restriction and, pursuant to authority at 5 U.S.C. 553(d)(1), the

requirement for a 30-day delay in effective date is inapplicable.

However, NMFS has determined to make this rule effective on January 1,

1996, to coincide with the start of the 1996 fishing year.

One of the technical amendments implemented under this action

clarifies NMFS' intent with respect to issuing refunds of excess

payments of the 1995 Research Plan fee assessment. Without this

amendment, processors participating in a Research Plan fishery during

the first part of 1996 would not be eligible to receive a refund until

1997, when the Research Plan fee assessment program would be

reinitiated and refund amounts could be credited against 1997 billed

fees assessments.

The second technical amendment clarifies 1996 groundfish observer

coverage requirements to exempt from observer coverage those vessels

participating in a nongroundfish fishery and retaining bycatch amounts

of groundfish. In that the first technical amendment ensures that an

action that would have occurred under authority of a regulation issued

through notice and comment rulemaking but for the delay in full

implementation of the Research plan does in fact occur and that the

second technical amendment simply clarifies NMFS intent in an existing

regulation, good cause exists, pursuant to authority at 5 U.S.C.

553(b)(B), to waive prior notice and opportunity to comment on the

technical amendments as such procedure is unnecessary. Because the

technical amendments relieve restrictions, a delay in the effective

date is not necessary under U.S.C. 553(d)(1).

List of Subjects in 50 CFR Part 677

Fisheries, Reporting and recordkeeping requirements.

Dated: December 15, 1995.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 677 is amended

as follows:

PART 677--NORTH PACIFIC FISHERIES RESEARCH PLAN

1. The authority citation for part 677 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In Sec. 677.6, paragraph (d)(3)(ii)(C) is removed, paragraph

(b)(2) is redesignated as paragraph (b)(3), paragraph (d)(3)(ii)(D) is

redesignated as paragraph (d)(3)(ii)(C), new paragraph (b)(2) is added,

and the heading to newly redesignated paragraph (b)(3) is revised to

read as follows:

Sec. 677.6 Research Plan fee.

* * * * *

[[Page 66758]]

(b) * * *

(2) Fee assessments during 1996. Processors of Research Plan

fisheries will not be assessed fees based on catch from Research Plan

fisheries that is retained during the 1996 calendar year.

(3) Fee assessments applicable after December 31, 1996. * * *

* * * * *

3. In Sec. 677.10, the headings for paragraphs (a) and (b), the

introductory text to paragraph (g), and paragraphs (a)(1)(ii)(A)

through (F) are revised, paragraphs (a)(1)(i)(C) through (a)(1)(i)(F)

are redesignated as paragraphs (a)(1)(i)(D) through (a)(1)(i)(G),

respectively, and paragraphs (a)(1)(i)(C) and (a)(2)(iii) are added to

read as follows:

Sec. 677.10 General requirements.

(a) Observer requirements applicable through December 31, 1996--(1)

* * * (i) * * *

(C) Each mothership processor vessel that receives pollock

harvested by catcher vessels in the catcher vessel operational area,

defined at Sec. 675.22(g) of this chapter, during the second pollock

season that starts on August 15 under Sec. 675.23(e) of this chapter,

is required to have a second NMFS-certified observer aboard, in

addition to the observer required under paragraphs (a)(1)(i)(A) and (B)

of this section, for each day of the second pollock season until the

chum salmon savings area is closed under Sec. 675.22(h)(2) of this

chapter, or October 15, 1996, whichever occurs first.

* * * * *

(ii) * * *

(A) Pollock fishery. Directed fishing for groundfish that results

in a retained catch of pollock, during any fishing trip, that is

greater than the retained catch of any other groundfish species or

species group that is specified as a separate groundfish fishery under

this paragraph (a)(1)(ii).

(B) Pacific cod fishery. Directed fishing for groundfish that

results in a retained catch of Pacific cod, during any fishing trip,

that is greater than the retained catch of any other groundfish species

or species group that is specified as a separate groundfish fishery

under this paragraph (a)(1)(ii).

(C) Sablefish fishery. Directed fishing for groundfish that results

in a retained catch of sablefish, during any fishing trip, that is

greater than the retained catch of any other groundfish species or

species group that is specified as a separate groundfish fishery under

this paragraph (a)(1)(ii).

(D) Rockfish fishery. Directed fishing for groundfish that results

in a retained aggregate catch of rockfish of the genera Sebastes and

Sebastolobus, during any fishing trip, that is greater than the

retained catch of any other groundfish species or species group that is

specified as a separate groundfish fishery under this paragraph

(a)(1)(ii).

(E) Flatfish fishery. Directed fishing for groundfish that results

in a retained aggregate catch of all flatfish species, except Pacific

halibut, during any fishing trip, that is greater than the retained

catch of any other groundfish species or species group that is

specified as a separate groundfish fishery under this paragraph

(a)(1)(ii).

(F) Other species fishery. Directed fishing for groundfish that

results in a retained catch of groundfish, during any fishing trip,

that does not qualify as a pollock, Pacific cod, sablefish, rockfish,

or flatfish fishery as defined under paragraphs (a)(1)(ii)(A) through

(E) of this section.

* * * * *

(2) * * *

(iii) Each shoreside processor that offloads pollock at more than

one location on the same dock and has distinct and separate equipment

at each location to process those pollock and that receives pollock

harvested by catcher vessels in the catcher vessel operational area,

defined at Sec. 675.22(g) of this chapter, during the second pollock

season that starts on August 15, under Sec. 675.23(e) of this chapter,

is required to have a NMFS-certified observer, in addition to the

observer required under paragraphs (a)(2)(i) and (ii) of this section,

at each location where pollock is offloaded, for each day of the second

pollock season until the chum salmon savings area is closed under

Sec. 675.22(h)(2) of this chapter, or October 15, 1996, whichever

occurs first.

* * * * *

(b) Observer requirements applicable after December 31, 1996--(1) *

* * (i) * * *

* * * * *

(g) Vessel safety requirements applicable after December 31, 1995.

Any vessel that is required to carry observers under paragraph (a) or

(b) of this section must have onboard either:

* * * * *

4. In Sec. 677.11, paragraph (a)(4) is revised to read as follows:

Sec. 677.11 Annual Research Plan specifications.

(a) * * *

(4) Observer coverage. For the period January 1, 1996, through

December 31, 1996, observer coverage levels in Research Plan fisheries

will be as required by Sec. 677.10(a). After December 31, 1996, the

level of observer coverage will be determined annually by NMFS, after

consultation with the Council and the State of Alaska, and may vary by

fishery and vessel or processor size, depending upon the objectives to

be met for the groundfish, halibut, and king and Tanner crab fisheries.

The Regional Director may change observer coverage inseason pursuant to

Sec. 677.10(b)(2)(ii).

* * * * *

[FR Doc. 95-31181 Filed 12-22-95; 8:45 am]

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