Fisheries of the Exclusive Economic Zone Off Alaska; Modifications to Federal Fisheries Permits and Federal Processor Permits

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS revises regulations for the application process, use, surrender, and amendment of a Federal Fisheries Permit (FFP) or a Federal Processor Permit (FPP). This action will reduce industry compliance costs associated with fishing and processing permit regulations and NMFS' administrative costs associated with maintaining and updating permit application regulations and forms. This action promotes the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for Groundfish of the Gulf of Alaska, the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, and other applicable laws.

DATES:

Effective November 20, 2014.

ADDRESSES:

Electronic copies of the proposed rule, the Categorical Exclusion, and the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) are available from http://www.regulations.gov or from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; or by email to OIRA_Submission@omb.eop.gov or fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Patsy A. Bearden, Sustainable Fisheries Division, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Regulatory Authority

NMFS Alaska Region manages the U.S. groundfish fisheries in the Exclusive Economic Zone (EEZ) off Alaska under 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. The fishery management plans were prepared by the North Pacific Fishery Management Council, under authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. and other applicable laws, and approved by the Secretary of Commerce. Regulations implementing the fishery management plans appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

Background

NMFS published a proposed rule for these regulatory amendments in the Federal Register on April 18, 2014 (79 FR 21882). The 30-day comment period on the proposed rule ended on May 19, 2014. NMFS received one comment during the comment period on the proposed rule. The public comment and NMFS' response are found in the Comment and Response section below.

A detailed review, including rationale, for these regulations are provided in the preamble to the proposed rule (79 FR 21882, April 18, 2014) and are not repeated here (see ADDRESSES). A brief summary of the regulatory amendments follows.

This final rule incorporates six actions that will: (1) Eliminate the requirement to submit an original permit when surrendering the permit to NMFS or when applying for a permit revision. This action will also add a proof of permit application submission standard; (2) allow the use of a valid legible copy in place of an original FFP or FPP; (3) remove redundant FFP and FPP application form requirements; (4) clarify the circumstances under which an FFP or FPP must be held by fishery participants; (5) make minor clarifications to FPP regulations; and (6) make other regulatory corrections and revisions to regulatory text.

Action 1: Eliminate the Requirements To Submit an Original Permit When Surrendering the Permit to NMFS or When Amending an FFP or FPP, and Add a Proof of Application Submission Standard for Surrendering or Amending a Permit

Section 679.4(a)(9) governs surrender of permits issued by NMFS Alaska Region, and § 679.4(b) and (f) govern FFPs and FPPs, respectively. This rule revises paragraphs (a)(9), (b), and (f) to describe the process to surrender or amend a permit. Paragraph (a)(9) is amended to eliminate the requirement that the FFP holder or FPP holder mail the original permit to NMFS. Instead of mailing back the original permit, a permit holder will notify NMFS of intent to surrender or amend an FFP or FPP by submitting an FFP or FPP application form (see http://www.alaskafisheries.noaa.gov ).

This rule adds a standard at § 679.4(a)(9)(iii) and (iv) that requires permit applicants to have “objective written evidence” to prove that their application to surrender or amend a permit was received by NMFS. In some circumstances, persons have unsuccessfully filed applications to surrender or amend a permit because they missed a filing deadline. This rule establishes a “proof of receipt” standard, in a case of disputed receipt within a filing deadline, that allows an applicant to prove that the deadline was met when surrendering or amending a permit to Restricted Access Management (RAM), the NMFS Alaska Region permit division. Objective written evidence will include, for example, the applicant's use of United States Post Office Priority mail delivery confirmation, or the United States Post Office “green card” with its confirmed receipt.

Regulations at § 679.4(a)(9)(iii) and (iv) state that the sender is responsible for keeping proof that the application form to amend or surrender a permit was received by NMFS. This does not directly impose an additional recordkeeping or reporting requirement on a permit holder. The objective written evidence standard will be used by NMFS to determine if a permit application was received.

Action 2: Allowing the Use of a Legible Copy in Place of an Original FFP or FPP

This rule revises regulations at §§ 679.4(b) and (f) and §§ 679.7(a)(1), (a)(7), and (a)(15) to allow a legible copy of a valid FFP or FPP to take the place of the original permit. NMFS believes that a legible copy is sufficient evidence that a vessel holds an FFP, or a facility holds an FPP. Allowing legible copies of an FFP or FPP will simplify operations for permit holders and will allow operations to commence or continue without having to wait to receive an original FFP or FPP via mail. Removing this requirement will reduce potentially costly delays in operations and will not hamper enforcement.

Action 3: Remove Unnecessary FFP and FPP Application Requirements From Regulation

Sections 679.4(b) and 679.4(f) describe the FFP or FPP application forms. This rule removes instructions for completion of the application forms and specific address and contact information. NMFS has determined that it is unnecessary to specify this information in regulatory text because each FFP or FPP application form adequately specifies that information. The FFP and FPP applications are available on the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/ram.

Action 4: Clarify the Circumstances When an FFP Must Be Obtained and Held

Section 679.4(b) provides regulations for the FFP. An FFP is issued by NMFS and is required for vessels that retain groundfish in the GOA or BSAI or engage in any fishery in the GOA or BSAI that requires retention of groundfish. This rule amends § 679.4(b) to clarify the circumstances under which a vessel owner or authorized representative must hold an FFP. A vessel owner or authorized representative must hold an FFP when operating in the GOA or BSAI as a catcher vessel, catcher/processor, mothership, tender vessel, or support vessel. These vessel categories are described under existing regulations at § 679.2. This rule also amends § 679.4(b) to remove the requirement that a vessel owner or authorized representative must hold an original FFP, and amends paragraph (b) to require that vessels retaining groundfish have a legible copy of a valid FFP on board at all times.

Action 5: Minor Clarifications to FPP Regulations

Section 679.4(f) provides regulations for the FPP. An FPP is required for shoreside processors, stationary floating processors (SFPs) processing vessels that operate solely within Alaska State waters and for community quota entity (CQE) floating processors, each of whom receives or processes groundfish harvested in the GOA or BSAI. NMFS makes several changes to the FPP requirements. This rule amends paragraph (f) to provide that a shoreside processor, SFP, and CQE floating processor must have a legible copy of a valid FPP at the facility (or on board an SFP or CQE), instead of an original FPP. This rule revises the following additional portions of paragraph (f).

Paragraph (f)(1) is revised to add particular processor activities that must be conducted with an FPP. The regulation now provides than an owner of a shoreside processor, SFP, or CQE floating processor must hold an FPP in order to purchase or arrange to purchase groundfish. This requirement is added to the requirement that a shoreside processor, SFP, or CQE floating processor hold an FPP when receiving or processing groundfish. In many cases, shoreside processors, SFPs, or CQE floating processors neither receive nor process groundfish, but they do purchase groundfish or make purchase arrangements for other processors.

Paragraph 679.4(f)(1) is revised further:

• By adding text stating that a processor may not be operated in a category other than as specified on the FPP. The processor categories are: Shoreside Processor, SFP, and CQE Floating Processor.
• By replacing “stationary floating processor” with “SFP” and by replacing an incorrect cross-reference to paragraph (f)(2) with “§ 679.2”.

Paragraph (f)(1) states that the FPP is issued without charge and paragraph (f)(2)(i) states that the FPP application is not considered complete until all fees are paid. For clarification, NMFS notes that the fees referred to in paragraph (f)(2)(i) are observer fees. If the required observer fees are not paid, the FPP will not be issued.

Paragraph (f)(2) is revised:

• By replacing “amend or renew an FFP” with “amend, renew, or surrender an FPP.”
• By adding a heading “Fees” to newly redesignated (f)(2)(i) and then adding language to (f)(2)(i) identifying who is subject to the observer fee as specified at § 679.55(c).

Paragraph (f)(3) is removed because it is unnecessary text. This paragraph states that a completed application will result in issuance of an FPP.

Paragraph (f)(4) is redesignated as (f)(3). Newly redesignated paragraph (f)(3)(ii)(A) is revised by removing the third sentence, which is the NMFS/RAM contact information. New paragraph (f)(3)(ii)(B) is added to state that an owner or authorized representative must submit an FPP application when surrendering an FPP. Newly redesignated paragraph (f)(3)(iii) is redesignated as paragraph (f)(3)(iii)(A). Paragraph (f)(3)(iii)(B) is added to describe the requirements of an SFP holding a GOA inshore processing endorsement on the FPP. Paragraph (f)(3)(iii)(C) is added to describe the requirements of a vessel holding a CQE floating processor endorsement on the FPP.

Action 6: Other Corrections and Revisions

In addition to the changes described above, this rule makes the following corrections and revisions to standardize, simplify, and clarify regulatory text in § 679.4. The preamble to the proposed rule lists these changes and explains the need and rationale for these changes. This rule also includes a revision to § 679.4(a)(6) that was not included in the proposed rule. This revision is described below.

Comment and Response

NMFS received one comment letter on the proposed rule.

Comment: The commenter supported the changes described in the proposed rule and suggested an additional modification. The commenter recommended revising § 679.4(a)(6) to state that NMFS “shall” disclose a list of permitted harvesters and processors for public inspection, and not that NMFS “may” disclose a list of permitted harvesters and processors for public inspection.

Response: NMFS acknowledges the support for the rule overall. However, NMFS disagrees with the suggested change. As proposed, § 679.4(a)(6) stated that “NMFS will maintain a list of permitted harvesters and processors that may be disclosed for public inspection.” The proposed change to the previous statement added permitted harvesters to the list that NMFS currently maintains of permitted processors and discloses for public inspection on the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/ram/ffpfpp.htm. Modifying § 679.4(a)(6) to use “shall” instead of “may” is inconsistent with NMFS' current unilateral public disclosure practices. NMFS will not change this rule in response to this comment because the change would unnecessarily impose a requirement upon NMFS.

Changes From the Proposed Rule

No changes were made to this final rule in response to the comment letter received. Several minor edits were necessary, such as addition of a comma, deletion of a mistakenly duplicated line of text, and correction of a misspelled word. Other changes are made to the final rule due to inadvertent omission of text in the instructions within the proposed rule. These changes are: Paragraph (f)(2)(i) is added to the regulatory text; paragraph (b)(1)(ii) is added to the regulatory text; and paragraph (a)(10)(ii) is added to the regulatory text.

Classification

Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Fishery Management Plan for Groundfish of the Gulf of Alaska, the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, other provisions of the Magnuson-Stevens Act, and other applicable laws.

Small Entity Compliance Guide

Small Entity Compliance Guide 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 final regulatory flexibility analysis (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. The preamble to the proposed rule and this final rule serve as the small entity compliance guide.

This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS at the following Web site: http://alaskafisheries.noaa.gov. This rule has been determined to be not significant for purposes of Executive Order 12866.

Final Regulatory Flexibility Analysis (FRFA)

Section 604 of the Regulatory Flexibility Act requires that, when an agency promulgates a final rule under section 553 of Title 5 of the United States Code, after being required by that section, or any other law, to publish a general notice of proposed rulemaking, the agency shall prepare a final regulatory flexibility analysis.

Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected.

Need for and Objectives of the Rule

A statement of the need for, and objectives of, the rule is contained in the preamble to this final rule and is not repeated here.

Public and Chief Counsel for Advocacy Comments on the Proposed Rule

NMFS published the proposed rule on April 18, 2014 (79 FR 21882). An initial regulatory flexibility analysis (IRFA) was prepared and summarized in the “Classification” section of the preamble to the proposed rule. The comment period closed on May 19, 2014. NMFS received one letter of public comment on the proposed rule. This comment did not address the IRFA or the economic impacts of the rule generally. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments on the proposed rule.

Number and Description of Small Entities Regulated by the Actions

These actions directly regulate entities acquiring FFPs or FPPs. Estimates of the number of small entities holding FFPs and FPPs includes 821 catcher vessels, 10 catcher/processors, 154 fishing vessels without groundfish revenues, 24 support and tender vessels without fishing revenues, no motherships, 4 shoreside floating processors, and 60 groundfish shoreside processors. Small entity estimates reported in this FRFA have been updated from those in the IRFA to reflect recent revisions to Small Business Administration thresholds for identifying small entities (79 FR 33647, June 12, 2014). These changes increased the number of small catcher vessels by 7, and the number of fishing vessels without groundfish revenues by 3.

Recordkeeping and Reporting Requirements

These actions modify existing regulations for amending, applying for, revising, and surrendering an FFP and FPP with the intention of reducing the time, expense, and administrative effort associated with submitting permit requests to NMFS. These actions relax some compliance requirements for vessels required to carry FFPs and for processors required to carry FPPs. No new recordkeeping and reporting requirements are required. Instead of an original FFP or FPP, a current, legible copy of an FFP or FPP will be acceptable on board a vessel or on site a facility when fishing, purchasing, or processing groundfish. Instead of returning an original FFP or FPP to NMFS to revise or to surrender a permit, the Application for a Federal Fisheries Permit or Application for a Federal Processor Permit provides the respondent with a check box to indicate he or she wishes to surrender the permit.

The professional skills necessary to prepare the existing reporting and recordkeeping requirements under these actions include the ability to read, write, and understand English; the ability to use a computer and the Internet; and the authority to take actions on behalf of an entity.

Description of Significant Alternatives to the Final Action That Minimize Adverse Impacts on Small Entities

A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected.

The combined effect of these changes will reduce the industry costs of complying with existing permit regulations.

The preferred alternative for these actions accomplishes the objectives of these actions, relieves a restriction on small entities, and has no adverse impacts on any directly regulated small entities. We were unable to identify any alternatives that accomplish all of the desired objectives while placing a smaller burden on directly regulated small entities.

Collection-of-Information Requirements

This rulemaking contains collection of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under OMB control number 0648-0206.

Public reporting burden is estimated to average per response: 21 minutes for Application for Federal fisheries permit (FFP) and 21 minutes for Application for Federal processor permit (FPP). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to OIRA_Submission@omb.eop.gov, or fax to 202-395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Recordkeeping and reporting requirements

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 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. 108-447.

2. In § 679.4:

a. Add paragraph headings for paragraphs (a)(3)(i) and (ii);

b. Revise paragraphs (a)(3)(iii); (a)(5); and (a)(9);

c. Revise paragraph (b)(1);

d. Remove paragraphs (b)(2), (b)(5), and (b)(7);

e. Redesignate paragraphs (b)(3) and (b)(4) as (b)(2) and (b)(3), respectively; (b)(6) as (b)(5); (b)(8) and (b)(9) as (b)(6) and (b)(7), respectively;

f. Revise newly redesignated paragraphs (b)(2); (b)(3)(i); (b)(3)(ii)(A), (B), and (C);

g. Add paragraph (b)(3)(ii)(D);

h. Revise newly redesignated paragraph (b)(3)(iii)(A);

i. Add paragraphs (b)(3)(iii)(D) and (E); and (b)(4);

j. Revise newly redesignated paragraphs (b)(5), (6), and (7);

k. Revise paragraphs (d)(1)(iii); (d)(2)(iv); (d)(3)(vi); (e)(2); (e)(3); (f)(1); and (f)(2);

l. Remove paragraph (f)(3);

m. Redesignate paragraphs (f)(4) through (f)(6) as (f)(3) through (f)(5), respectively;

n. Revise newly redesignated paragraphs (f)(3)(ii) and (iii); and (f)(4) and (5); and

o. Revise paragraphs (g)(1)(ii); (k)(6)(x); and (l)(5)(ii).

The revisions and additions read as follows:

3. In § 679.7, revise paragraphs (a)(1), (a)(7)(i), (a)(10)(ii), and (a)(15) to read as follows: