E7-13133. Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Observer Program

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues a final rule to amend regulations supporting the North Pacific Groundfish Observer Program (Observer Program). This action is necessary to revise requirements for the facilitation of observer data transmission and improve inseason support for observers. This action would promote the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs).

DATES:

Effective on August 6, 2007.

ADDRESSES:

Copies of the final Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared for this action may be obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Ellen Sebastian, and on the NMFS Alaska Region website at http://www.fakr.noaa.gov. The proposed rule to revise requirements for the facilitation of observer data transmission and improve inseason support for observers may also be accessed at this website.

FOR FURTHER INFORMATION CONTACT:

Jason Anderson, 907-586-7228, or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

NMFS manages the U.S. groundfish fisheries of the Bering Sea and Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) in the Exclusive Economic Zone under the FMPs. The North Pacific Fishery Management Council (Council) has prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council originally adopted and NMFS approved and implemented the current “interim” Observer Program (Observer Program) in 1996 (61 FR 56425, November 1, 1996). Through interim extensions, Observer Program regulatory requirements have been extended through 2007 (62 FR 67755, December 30, 1997; 63 FR 69024, December 15, 1998; 65 FR 80381, December 21, 2000; and 67 FR 72595, December 6, 2002). A final rule that extended regulations implementing the Observer Program indefinitely was published on June 13, 2007 (72 FR 32559).

The Observer Program provides the regulatory framework for the collection of data by observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Regulations implementing the Observer Program at § 679.50 require observer coverage aboard catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors that participate in the groundfish fisheries off Alaska, as well as establish vessel, processor, and observer provider responsibilities relating to the Observer Program.

Timely electronic communication of catch reports submitted to NMFS by industry and observers is crucial for groundfish quota and prohibited species catch allowance monitoring. In July 1995, NMFS issued a final rule (60 FR 34904, July 5, 1995) that required computer hardware and software that enabled observers to send NMFS electronic data on all catcher/processors, motherships, and shoreside processors that process groundfish. In October 2003, a final rule was published (68 FR 58038, October 8, 2003) that extended these requirements to all catcher vessels that are required to carry an observer at all times during fishing operations. In April 2006, a final rule (71 FR 20346, April 20, 2006) was issued that, in part, revised hardware requirements to allow software upgrades installation. These rules referred to the electronic data submission and communications system as “Atlas.”

Regulations describing hardware and software requirements for electronic submission of observer reports on all catcher/processors, motherships, catcher vessels required to carry an observer at all times, and from shoreside and stationary floating processors are found at § 679.50(g)(1) and (g)(2). This electronic data submission and communications system is now called the observer communications system (OCS), rather than “Atlas”. The OCS consists of computers and communications equipment supplied by catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors, as well as customized software provided to these entities by NMFS. The OCS lets observers rapidly process data they collect and report it to NMFS. Its use on catcher vessels, catcher/processors, motherships, and shoreside and stationary floating processors has enhanced timely and accurate fisheries data reporting.

Regulations at § 679.50(g)(1) and (g)(2) require that each OCS computer's processing chip, memory, operating system, disk drive, and modem meet minimum specifications. Since their initial implementation, OCS requirements have been periodically revised. NMFS has required upgrades as commercially available software became obsolete or unsupported by its manufacturer, or when NMFS upgraded the OCS software component.

Rather than continually specify hardware and software component that support new OCS software through rulemakings, this action removes the specific hardware and software component requirements. NMFS will now require that each catcher vessel, catcher/processor, mothership, and shoreside and stationary floating processor already subject to OCS requirements provide hardware and software that is fully functional and operational with the NMFS-supplied software. The term “functional” will mean that all the tasks and components of the NMFS supplied software and data transmissions to NMFS could be executed effectively by the computer equipment. NMFS will no longer revise OCS hardware and software requirements through rulemaking. As changes to the software component of the OCS become necessary to support electronic communications of observer data, Observer Program staff will communicate in writing with vessel and plant personnel to describe those changes. Catcher vessels, catcher/processors, motherships, and shoreside or stationary floating processors subject to OCS requirements are required to ensure that their computer hardware and software components continue to meet the functionality and operational requirements.

Observer Program staff are currently upgrading the OCS software component. One reason for the upgrade is that the commercial database software used to store observer-collected information and interface with the OCS software is no longer supported by the manufacturer. The new OCS software should increase overall data quality by increasing the functionality and efficiency of the OCS, and interface with new, supported commercial database software. The new OCS software is expected to be available for installation for the 2008 fishing year.

The new OCS software will be installed by NMFS field personnel on vessel and processor OCS computers. Under this regulatory action, catcher vessels, catcher/processors, motherships, and shoreside or stationary floating processors must ensure their OCS computer meets the minimum specifications necessary for the software to execute all of its tasks, including communication with NMFS computers to transmit data for the 2008 fishing year.

Changes to OCS Regulations

Presently, § 679.50(g)(1)(iii)(B)(1) and (g)(2)(iii)(B)(1) describe the minimum technical hardware and software standards for the OCS-use computer. This action removes the technical standards, but the OCS-use computer is still required to be connected to a communication device that provides a point-to-point modem connection to the NMFS host computer.

This action implements regulations at § 679.50(g)(1)(iii)(B)(2) and (g)(2)(iii)(B)(2) that require catcher vessel, catcher/processor, mothership, and shoreside or stationary floating processor operators to install the most recent NMFS-provided OCS software version or other NMFS-approved, commercially available software. While no commercially available software has been approved at this time, NMFS will consider approving commercially available software in the future.

This action revises the current OCS-computer operational standards. OCS hardware must be fully functional and operational under regulations at § 679.50(g)(1)(iii)(C) and (g)(2)(iii)(C). According to these regulations, “functional” means that the hardware can initiate and transmit data to NMFS. Under this action, “functional” will address software as well as hardware. “Functional” will now mean that all NMFS-supplied, or other approved software's tasks and components, must be fully functional and operational on the computer equipment. In addition to adding a software function standard, this action redesignates § 679.50(g)(1)(iii)(C) and (g)(2)(iii)(C) as § 679.50(g)(1)(iii)(B)(3) and (g)(2)(iii)(B)(3), respectively, to require that both software and hardware OCS components be functional.

The revisions described above are necessary to accommodate the larger, more sophisticated software and database programs provided, or otherwise approved, by NMFS.

The proposed rule to revise requirements for the facilitation of observer data transmission and improve inseason support for observers was published in the Federal Register on March 29, 2007 (72 FR 14764), and the public review and comment period closed on April 27, 2007. No comments were received during the comment period.

Small Entity Compliance Guide

Regulations governing observer coverage requirements for vessels and processors that participate in the groundfish fisheries off Alaska are found at 50 CFR part 679. A copy of these regulations are available on the internet at http://www.fakr.noaa.gov/​regs/​summary.htm. They also are available by mail. If you wish to receive a copy of these regulations by mail, call NMFS Alaska Region, Sustainable Fisheries Division at [phone] or write to NMFS Alaska Region at the address listed in the ADDRESSES section of this final rule. These regulations identify which vessels and processors are required to have observers, when observers are required, and the related responsibilities of the vessel owner or operator and the manager of the processing plant. The requirements implemented in this final rule are one category of responsibilities for vessel operators and managers of shoreside processing plants or stationary floating processors that are required to have observers. All vessel operators and managers of shoreside processing plants or stationary floating processors that are required to have observers also are required to provide the observer with access to a computer that is connected to a communication device that provides a point-to-point connection to the NMFS host computer. The most recent release of NMFS data entry software provided by the Regional Administrator, or other approved software, must be installed on this computer. In addition, the required communication equipment that is available for use by the observers must be fully functional and operational. “Functional” means that all the tasks and components of the NMFS supplied, or other approved, software described at paragraph 50 CFR part 679(g)(1) and the data transmissions to NMFS can be executed effectively aboard the vessel by the communications equipment.

Classification

The Administrator, Alaska Region, NMFS, determined that the regulatory amendment is necessary for the conservation and management of the groundfish fisheries off Alaska and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

An Initial Regulatory Flexibility Analysis (IRFA) was prepared for the proposed rule, and described in the Classification section of the preamble to the rule. The public comment period ended on March 23, 2007. No comments were received on the IRFA or the economic impact of the rule.

NMFS prepared a FRFA which incorporates the IRFA and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES). A summary of the analysis follows.

The need for and objectives of the rule are set forth in the preamble and are not repeated here.

This action requires vessels and shoreside or stationary floating processors to meet current technology standards necessary to support OCS software changes as they occur. Entities subject to OCS requirements include all motherships, catcher/processors, shoreside or stationary floating processors, and catcher vessels required to carry an observer at all times. This action revises requirements for the facilitation of observer data transmission and improves support for observers. All motherships have gross revenues in excess of $4 million and are considered large entities. Data available for 2005 indicate that 17 of the 83 catcher/processors active in the groundfish fisheries that year are considered small entities. One catcher vessel is believed to meet the criterion for a small entity. NMFS staff estimate that three stationary or shoreside floating processors have fewer than 500 employees worldwide, and are considered small.

Upgrade costs to accommodate anticipated changes to OCS software are estimated to average $93 for all catcher/processors, $200 for all motherships, $315 for all shoreside and stationary floating processors, and $438 for all catcher vessels required to carry an observer at all times under this action. For the 17 catcher/processors considered small entities, the cost is estimated at about 0.004 percent of one year's gross revenues. Due to confidentiality restrictions, NMFS is unable to report gross revenues for catcher vessels and shoreside or stationary floating processors considered small entities under this action. Therefore, OCS upgrade costs cannot be reported as a percentage of gross revenues for these entities.

Alternative 1 described in the RIR/FRFA is the status quo alternative. Current regulations regarding computing and communications equipment would remain in effect.

Alternative 2 would remove current hardware and software specifications for all vessels and shoreside or stationary floating processors currently subject to OCS requirements, and instead require them to ensure the computer provided for use by an observer meets the minimum specifications necessary for the NMFS-provided OCS software to execute all of its tasks, including communication with NMFS computers to transmit data.

Alternative 3 would revise current regulations to upgrade minimum hardware and software specifications for all vessels and shoreside or stationary floating processors currently subject to OCS requirements. Future changes to OCS software that would require hardware and software upgrades would require additional rulemaking.

Alternative 2 was selected as the preferred alternative because it removes the need for NMFS to continually revise regulations to specify hardware and software component upgrades that are needed to support evolving OCS software. Alternative 2 provides more flexible and responsive regulations than the current specific technical requirements that quickly become out of date.

Alternative 1 was rejected because it does not meet the data quality and collection goals of the Observer Program. This is especially the case as more management programs are implemented that require near real-time data reporting for purposes of determining target and prohibited species catch quota harvests. Alternative 3 was rejected because, while it would meet short-term fishery dependent reporting goals, it does not meet the long-term goals of improving flexibility for NMFS staff to work directly with industry to ensure they meet the OCS requirements.

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 FRFA, 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. A small entity compliance guide is included in this final rule.

No additional recordkeeping, reporting, or compliance requirements are associated with this action.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: June 29, 2007.

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 amended as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., 3631 et seq.; Pub. L. 108 199, 118 Stat. 110.

2. In § 679.50, paragraph (g)(1)(iii)(C) is redesignated as paragraph (g)(1)(iii)(B)( 3) and revised; paragraph (g)(2)(iii)(C) is redesignated as paragraph (g)(2)(iii)(B)(3) and revised; and paragraphs (g)(1)(iii)(B)(1) and (2), and (g)(2)(iii)(B)(1) and (2) are revised to read as follows:

§ 679.50

Groundfish Observer Program.

* * * * *

(g) * * *

(1) * * *

(iii) * * *

(B) * * *

(1) Observer access to computer. Making a computer available for use by the observer. This computer must be connected to a communication device that provides a point-to-point connection to the NMFS host computer.

(2) NMFS-supplied software. Ensuring that the catcher/processor, mothership, or catcher vessel specified in this paragraph (g)(1) has installed the most recent release of NMFS data entry software provided by the Regional Administrator, or other approved software.

(3) Functional and operational equipment. Ensuring that the communication equipment required in this paragraph (g)(1)(iii)(B) and that is used by observers to enter and transmit data, is fully functional and operational. “Functional” means that all the tasks and components of the NMFS supplied, or other approved, software described at paragraph (g)(1)(iii)(B)(2) of this section and the data transmissions to NMFS can be executed effectively aboard the vessel by the communications equipment.

* * * * *

(2) * * *

(iii) * * *

(B) * * *

(1) Observer access to computer. Making a computer available for use by the observer. This computer must be connected to a communication device that provides a point-to-point connection to the NMFS host computer.

(2) NMFS-supplied software. Ensuring that the shoreside or stationary floating processor specified in paragraph (g)(2) of this section has installed the most recent release of NMFS data entry software provided by the Regional Administrator, or other approved software.

(3) Functional and operational equipment. Ensuring that the communication equipment required in paragraph (g)(2)(iii)(B) of this section and that is used by observers to enter and transmit data, is fully functional and operational. “Functional” means that all the tasks and components of the NMFS supplied, or other approved, software described at paragraph (g)(2)(iii)(B)(2) of this section and the data transmissions to NMFS can be executed effectively aboard the vessel by the communications equipment.

* * * * *