[Federal Register Volume 60, Number 247 (Tuesday, December 26, 1995)]
[Rules and Regulations]
[Pages 66755-66758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31181]



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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]
BILLING CODE 3510-22-F