E9-24221. Fisheries of the Exclusive Economic Zone Off Alaska, Groundfish Observer Program; Correction

AGENCY:

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

ACTION:

Correcting amendments.

SUMMARY:

This action makes four corrections to regulations. It corrects a final rule removing the December 31, 2007, expiration date for regulations governing the North Pacific Observer Program. NMFS intended this final rule to remove the expiration date from all paragraphs, however, due to the overlay of an additional and overlooked expiration date in a different final rule, NMFS inadvertently removed the regulations governing observer coverage for catcher/processors and motherships participating in the pollock fisheries in the Bering Sea and Aleutian Islands management area. This correcting amendment reinstates those observer coverage requirements. In addition, this rule corrects a cross-reference error; removes an expiration date; and removes effective dates that have now passed from certain paragraphs.

DATES:

Effective October 7, 2009.

FOR FURTHER INFORMATION CONTACT:

Patsy A. Bearden, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

NMFS has determined that four errors exist in the North Pacific Groundfish Observer Program (Observer Program) regulations at § 679.50.

This final rule will correct an error that resulted when NMFS overlooked the existence of a sunset provision for observer coverage requirements. Observer program vessel and processor coverage requirements are set forth at 50 CFR 679.50. Prior to 2007, the observer program and the observer coverage requirements were subject to periodic sunset dates. The last sunset date extension prolonged the observer program and, with one exception explained further below, all coverage requirements to December 31, 2007, (67 FR 72595; December 6, 2002).

Although the observer program and coverage requirements were generally established and reauthorized in single rulemakings, one particular component of the observer coverage requirements was originally implemented under the American Fisheries Act (AFA) (67 FR 79692; December 30, 2002). This component established coverage requirements for catcher/processors and motherships participating in the BSAI pollock fisheries. These regulations are found at § 679.50(c)(5). These AFA regulations originally established an AFA Program-wide sunset date of December 31, 2007. Subsequent to the 2002 AFA program establishment, and except for the observer coverage requirements found at § 679.50(c)(5), the sunset date was removed and the AFA program became permanent by a final rule published on February 10, 2004 (69 FR 6198). NMFS left the AFA observer coverage requirements sunset date unchanged in the 2004 final rule because NMFS considered the AFA requirements an integrated component of the larger body of observer coverage requirements.

In a final rule published on June 13, 2007, NMFS attempted to remove the December 31, 2007, sunset date for the groundfish Observer Program (72 FR 32559). Although it was NMFS' intent to extend all coverage requirements set forth in § 679.50, NMFS overlooked the independent expiration date that continued to apply to § 679.50(c)(5) from the December 30, 2002, AFA final rule. NMFS should have addressed and removed this independent sunset date when it removed the sunset for the entire program and related coverage requirements in the June, 2007, final rule. This correcting amendment removes that sunset date applicable to the § 679.5(c)(5) regulations, and reinstates them.

The other sunset date reference (December 31, 2007) that was overlooked and is now removed is found in § 679.1(f).

Next, a cross-reference related to observer workload restrictions in § 679.50(c)(5)(i)(A) is corrected by removing “(c)(5)(iii)” and replacing it with “(c)(5)(ii)” which is the correct cross-reference.

The effective date (January 20, 2008) is removed from §§ 679.50(c)(4)(i)(A) and 679.50(c)(6) because it is no longer necessary. This effective date was added in a final rule (September 14, 2007, 72 FR 52668) to identify paragraphs with delayed effectiveness dates.

Classification

Pursuant to 5 U.S.C. 553(b)(B), the Acting Assistant Administrator of Fisheries (AA) finds good cause to waive prior notice and opportunity for public comment. Data collected by observers is critical for conservation and management of the groundfish fisheries off Alaska and for assessing the impact of these fisheries on other aspects of the marine environment. Without these regulations, fishing vessels could overfish the stock and exceed bycatch reduction allowances in violation of the Magnuson Stevens Fishery Conservation and Management Act (MSA). NMFS only recently discovered these errors and to ensure uninterrupted and comprehensive management of the fisheries, believes that it is in the public interest to institute the corrections without prior notice and opportunity for comment. Furthermore, the errors need to be corrected immediately to eliminate potential confusion.

For these reasons, the AA finds good cause to waive prior notice and opportunity for public comment and the 30-day delay in the effective date under 5 U.S.C. 553(d)(3), as such procedures would be contrary to the public interest. Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. are inapplicable.

The Acting AA for NMFS has determined that this action is consistent with MSA and other applicable law.

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

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: October 1, 2009

James W. Balsiger,

Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the same reasons set out in the preamble, 50 CFR part 679 is corrected by making the following correcting amendments:

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.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

2. In § 679.1, revise the heading for paragraph (f) to read as follows:

§ 679.1

Purpose and scope.

* * * * *

(f) Groundfish Observer Program.

* * * * *

3. In § 679.50, add paragraph (c)(5); revise heading for paragraph (c)(4)(i)(A); and revise heading for paragraph (c)(6) to read as follows:

§ 679.50

Groundfish Observer Program.

* * * * *

(c) * * *

(4) * * *

(i) * * *

(A) CDQ groundfish fisheries.

* * * * *

(5) AFA and AI directed pollock fishery catcher/processors and motherships—(i) Coverage requirement—(A) Listed AFA catcher/processors and AFA motherships. The owner or operator of a listed AFA catcher/processor or AFA mothership must provide at least two NMFS-certified observers, at least one of which must be certified as a lead level 2 observer, for each day that the vessel is used to harvest, process, or take deliveries of groundfish. More than two observers are required if the observer workload restriction at paragraph (c)(5)(ii) of this section would otherwise preclude sampling as required under § 679.63(a)(1).

(B) Unlisted AFA catcher/processors. The owner or operator of an unlisted AFA catcher/processor must provide at least two NMFS-certified observers for each day that the vessel is used to engage in directed fishing for pollock in the BSAI, or takes deliveries of pollock harvested in the BSAI. At least one observer must be certified as a lead level 2 observer. When an unlisted AFA catcher/processor is not engaged in directed fishing for BSAI pollock and is not receiving deliveries of pollock harvested in the BSAI, the observer coverage requirements at paragraph (c)(1)(iv) of this section apply.

(C) AI directed pollock fishery catcher/processors and motherships. A catcher/processor participating in the AI directed pollock fishery or a mothership processing pollock harvested in the AI directed pollock fishery must have on board at least two NMFS-certified observers, at least one of which must be certified as a lead level 2 observer, for each day that the vessel is used to harvest, process, or take deliveries of groundfish. More than two observers are required if the observer workload restriction at paragraph (c)(5)(ii) of this section would otherwise preclude sampling as required under § 679.63(a)(1).

(ii) Observer work load. The time required for the observer to complete sampling, data recording, and data communication duties may not exceed 12 consecutive hours in each 24-hour period, and the observer may not sample more than 9 hours in each 24-hour period.

(6) Amendment 80 vessels and non-AFA trawl catcher/processors.

* * * * *