[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Proposed Rules]
[Pages 35925-35937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 120416007-2150-01]
RIN 0648-BB67


Fisheries of the Exclusive Economic Zone Off Alaska; Monitoring 
and Enforcement Requirements in the Bering Sea and Aleutian Islands 
Freezer Longline Fleet

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule that would modify equipment and 
operational requirements for freezer longliners (catcher/processors) 
named on License Limitation Program (LLP) licenses endorsed to catch 
and process Pacific cod at sea with hook-and-line gear in the Bering 
Sea and Aleutian Islands Management Area (BSAI). If approved, the 
proposed regulations would require vessel owners to select between two 
monitoring options: carry two observers so that all catch can be 
sampled, or carry one observer and use a motion-compensated scale to 
weigh Pacific cod before it is processed. The selected monitoring 
option would be required to be used when the vessel is operating in 
either the BSAI or Gulf of Alaska groundfish fisheries when directed 
fishing for Pacific cod is open in the BSAI, or while the vessel is 
fishing for groundfish under the Western Alaska Community Development 
Quota (CDQ) Program. A vessel owner who notifies NMFS that the vessel 
will not be used to conduct directed fishing for Pacific cod in the 
BSAI or to conduct groundfish CDQ fishing at any time during a 
particular year would not be required to select one of the monitoring 
options and would continue to follow observer coverage and catch 
reporting requirements that apply to catcher/processors not subject to 
this proposed action. These regulatory amendments address the need for 
enhanced catch accounting, monitoring, and enforcement created by the 
formation of a voluntary cooperative by the BSAI longline catcher/
processor subsector in 2010, and are necessary to improve the precision 
of the accounting for allocated quota species. This action is intended 
to promote the goals and objectives of the Fishery Management Plan for 
Groundfish of the Bering Sea and Aleutian Islands Management Area, the 
Fishery Management Plan for Groundfish of the Gulf of Alaska, the 
Magnuson-Stevens Fishery Conservation and Management Act, and other 
applicable laws.

DATES: Written comments must be received no later than 1700 hours, 
Alaska local time (A.L.T.) July 16, 2012.

ADDRESSES: You may submit comments, identified by FDMS Docket Number 
NOAA-NMFS-2011-0278, by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal Web site at http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``Submit a Comment'' icon, then enter NOAA-NMFS-2011-
0278 in the keyword search. Locate the document you wish to comment on 
from the resulting list and click on the ``Submit a Comment'' icon on 
the right of that line.
     Mail: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, 
AK 99802-1668.
     Fax: Address written comments to Glenn Merrill, Assistant 
Regional Administrator, Sustainable Fisheries Division, Alaska Region 
NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
     Hand delivery to the Federal Building: Address written 
comments to Glenn Merrill, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen 
Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, 
AK.
    Comments must be submitted by one of the above methods to ensure 
that they are received, documented, and considered by NMFS. Comments 
sent by any other method, to any other address or individual, or 
received after the end of the comment period, may not be considered. 
All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter will be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information. NMFS will accept anonymous comments (enter N/A in the 
required fields, if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe portable document file (pdf) formats only.
    Electronic copies of the Regulatory Impact Review and Environmental 
Assessment (RIR/EA) prepared for this action may be obtained from 
http://www.regulations.gov or from the NMFS Alaska Region Web site at 
http://alaskafisheries.noaa.gov.
    Electronic copies of NOAA Technical Memorandum NMFS-F/AKR-10 
``Investigation of Weight Loss in Pacific cod (Gadus macrocephalus) Due 
to Exsanguination'' may be obtained at http://docs.lib.noaa.gov/noaa_documents/NMFS/AlaskaRegionalOfc/TM-FAKR/NOAA-TM-FAKR-10.pdf.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed

[[Page 35926]]

rule may be submitted to NMFS (see ADDRESSES) and by email to [email protected], or by fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Jennifer Watson, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
of the exclusive economic zone off Alaska under the Fishery Management 
Plan for Groundfish of the Gulf of Alaska (GOA FMP) and the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area (BSAI FMP). The FMPs were prepared by the North Pacific 
Fishery Management Council (Council) and approved by the Secretary of 
Commerce under authority of the Magnuson-Stevens Fishery Conservation 
and Management Act, 16 U.S.C. 1801 et seq. (Magnuson-Stevens Act). The 
FMPs are implemented by regulations at 50 CFR parts 679 and 680.

Background

    NMFS proposes new monitoring and enforcement provisions applicable 
to vessels participating in the BSAI longline catcher/processor (C/P) 
subsector as a result of several pieces of legislation passed by 
Congress and recent changes to fishery management regulations. NMFS 
uses the term ``longline catcher/processor subsector'' in this proposed 
rule consistent with the term as used in section 219(a)(6) of the 
Department of Commerce and Related Agencies Appropriations Act, 2005 
(Pub. L. 108-447, 118 Stat. 2887 (Dec. 8, 2004)), which is described 
later in the proposed rule. Specifically, the legislative and 
regulatory changes that necessitate this proposed action are (1) 
Legislation that created a defined class of participants in the BSAI 
longline C/P subsector, (2) regulatory amendments that allocated a 
specific quantity of Pacific cod resources in the BSAI to the defined 
class of longline C/P subsector participants, and (3) legislation that 
allowed BSAI longline C/P subsector participants to receive exclusive 
catch privileges. In combination, these changes create the opportunity 
for the BSAI longline C/P subsector to form a voluntary fishing 
cooperative whose members have a de facto catch share program because 
they control fishing for the longline C/P subsector's allocation of 
Pacific cod in the BSAI. For reasons described in more detail below, 
vessels fishing under a voluntary cooperative require a higher level of 
monitoring to ensure accurate reporting of the catch of species 
allocated to the subsector. The following sections describe the 
legislation and regulatory changes, how those changes create the need 
for the proposed action, and the specific measures proposed to improve 
NMFS' monitoring of catch by the BSAI longline C/P subsector.

The BSAI Longline C/P Subsector

    Under the LLP, which was implemented by NMFS on January 1, 2000, an 
LLP license is required for all vessels directed fishing for groundfish 
in the BSAI. With limited exemptions for smaller vessels and vessels 
using a limited amount of jig gear, a vessel must be designated on an 
LLP license to directed fish for groundfish. For a vessel designated on 
an LLP license, the LLP license authorizes the type of fishing gear 
that may be used by the vessel, the maximum size of the vessel, and 
whether the vessel may catch and process fish at sea (C/P) or if it is 
limited to delivering catch without at-sea processing.
    Until 2003, an LLP license carried gear and operational type (C/P 
or catcher vessel) endorsements, but did not carry a species 
endorsement. NMFS modified the LLP in 2003 to include a species 
endorsement for Pacific cod in the BSAI. A vessel can directed fish for 
Pacific cod in the BSAI only if the vessel is designated on an LLP 
license that has this specific endorsement. NMFS added Pacific cod 
endorsements to existing LLP licenses based on eligibility criteria, 
primarily whether the license or the vessel had been used to harvest 
Pacific cod. Additional detail on the development and rationale for the 
LLP and Pacific cod endorsements in the BSAI can be found in the final 
rule implementing the Pacific cod endorsement requirement (68 FR 44666, 
July 30, 2003) and is not repeated here.
    The LLP Pacific cod endorsement requirement has, in effect, limited 
the number of vessels that are eligible to fish for Pacific cod in the 
BSAI. Congress further clarified the total number of eligible 
participants in the longline C/P subsector in section 219(a)(6) of 
Public Law 108-447, 118 Stat. 2887, Dec. 8, 2004, as holders of the 
license to catch and process Pacific cod at sea in the BSAI using hook-
and-line gear. Hook-and-line gear is commonly known as longline gear.
    Section 219(a)(6) defines the longline catcher processor subsector 
as follows:

    LONGLINE CATCHER PROCESSOR SUBSECTOR.--The term ``longline 
catcher processor subsector'' means the holders of an LLP license 
that is noninterim and transferable, or that is interim and 
subsequently becomes noninterim and transferable, and that is 
endorsed for Bering Sea or Aleutian Islands catcher processor 
fishing activity, C/P, Pcod, and hook and line gear.

    There are 37 LLP licenses that meet the criteria for inclusion in 
the BSAI longline C/P subsector. A person cannot use a vessel to catch 
and process Pacific cod at sea in the BSAI unless it is assigned at 
least one of the 37 LLP licenses that comprise the longline C/P 
subsector. In 2011, 33 vessels actively fished under these LLPs. 
Vessels participating in the longline C/P subsector primarily target 
Pacific cod in the CDQ and non-CDQ fisheries in the BSAI, but many also 
participate in the Greenland turbot and sablefish fisheries, as well as 
in fisheries in the Gulf of Alaska (GOA).

Allocation of Pacific Cod to the Longline C/P Subsector

    The Council and NMFS annually establish total allowable catch 
limits (TACs) for Pacific cod in the BSAI and GOA. TAC amounts are 
annual catch limits based on the scientifically determined acceptable 
biological catch and ensure the sustainability of the Pacific cod 
fishery. The TAC amounts are allocated among user groups as part of the 
annual specifications process. In the BSAI, Pacific cod is apportioned 
among allocations made to the CDQ Program and non-CDQ participants. 
Allocations to the CDQ Program are assigned as exclusive catch 
privileges to specific CDQ groups as defined by section 305(i) of the 
Magnuson-Stevens Act. The CDQ groups harvest almost all their Pacific 
cod allocations with vessels that are members of the longline C/P 
subsector.
    In 2007, NMFS implemented Amendment 85 to the BSAI FMP (72 FR 
50788, September 4, 2007). Regulations implementing Amendment 85 
apportion 10.7 percent of the Pacific cod TAC to the CDQ reserve for 
use by the CDQ Program. The non-CDQ TAC is further apportioned between 
seasons, gear types, and processing modes. The longline C/P sector 
receives 48.7 percent of the non-CDQ allocation as two separate 
seasonal allowances. An A season allowance of 60 percent of the total 
allocation is made available on January 1 and a B season allowance of 
40 percent is made available on June 20.
    Because halibut is incidentally caught by vessels using longline 
gear, the longline C/P subsector is allocated a limited amount of 
halibut to be used as prohibited species catch (PSC) in the Pacific cod 
fishery. The halibut PSC allocation ensures that total incidental 
mortality of halibut does not exceed a specified limit while at the 
same time allowing participants to conduct their target fisheries. 
Prior to the

[[Page 35927]]

implementation of Amendment 85, halibut PSC was apportioned to the 
hook-and-line sector, but was not further apportioned between C/Ps and 
catcher vessels. Amendment 85 sub-apportioned the available hook-and-
line halibut PSC between the catcher vessel and C/P sectors, which gave 
the longline C/P subsector a separate apportionment of halibut PSC.
    Regulations at Sec.  679.21(e)(2) and (4) specify that 760 metric 
tons of halibut mortality be made available to the BSAI longline C/P 
subsector. This halibut PSC may be further allocated seasonally through 
the annual specifications process.
    Congress' definition of the longline C/P subsector and the 
allocation of Pacific cod and halibut PSC specifically to the longline 
C/P subsector created conditions that lead owners of longline C/P LLP 
licenses to form a voluntary cooperative and divide the Pacific cod 
catch and halibut PSC allocations among its members. Cooperatives allow 
multiple quota recipients to aggregate their annual quota amounts, 
coordinate their collective fishing operations, and benefit from the 
resulting efficiencies. Beginning with the 2010 B season, 100 percent 
of the owners of the eligible longline C/P subsector LLP licenses had 
joined the Freezer Longline Conservation Cooperative (FLCC). This 
voluntary cooperative has established private contractual arrangements 
that divide the sector's Pacific cod and halibut PSC allocations among 
the member vessels.
    The allocation of exclusive catch privileges can be accomplished 
through regulation, or by private contractual arrangements, as is the 
case with the FLCC. The general term to describe programs that allocate 
exclusive catch privileges is ``catch share programs.'' Catch share 
programs assign specific catch privileges to specific fishery 
participants.
    Catch share programs address many of the problems that occur when 
harvesters compete for catch and do not receive an exclusive catch 
privilege. Competition for fish creates economic inefficiencies and 
incentives to increase harvesting and processing capacity. For example, 
harvesters may increase the fishing capacity of their vessels and 
accelerate their rate of fishing to outcompete other vessels. High-
paced fishing reduces the ability of harvesters to improve product 
quality and extract more value from the fishery by producing high-value 
products that require additional processing time. Catch share programs 
provide greater security to harvesters and result in a slower-paced 
fishery that enables the harvester to choose when to fish.

Longline C/P Cooperative Act

    The Longline Catcher Processor Subsector Single Fishery Cooperative 
Act was enacted in 2010 (Pub. L. 111-335). Under this Act, NMFS must 
implement a single, mandatory cooperative with exclusive catch 
privileges for each BSAI LLP license holder if requested to do so by 
persons holding at least 80 percent of the LLP licenses eligible to 
participate in the Longline C/P subsector (i.e., at least 30 of the 37 
LLP licenses). To date, NMFS has not received any such request. 
However, the fact that such a mandatory cooperative is explicitly 
authorized by Congress ensures that if the voluntary cooperative 
established by the FLCC is unable to continue, regulations to establish 
a mandatory cooperative with exclusive catch privileges could be 
implemented by NMFS upon request of a sufficient number of the members 
of the subsector.

Changes in Fishing Patterns in the Longline C/P Subsector and 
Background on Monitoring Provisions

    The formation of a voluntary cooperative has resulted in a 
significant change in the operations of the non-CDQ longline C/P 
Pacific cod fishery in the BSAI. Between 2003 and 2009, the Pacific cod 
fishery was open an average of 116 days each year. Since the formation 
of the voluntary cooperative in August 2010, seasonal Pacific cod and 
halibut PSC limits have not been reached and the fishery has not been 
closed at all between January 1 and December 31.
    While the formation of a voluntary cooperative has ended the race 
for fish and increased economic efficiency for the fleet, it has also 
created management challenges. Catch share programs create new demands 
for enhanced catch accounting, monitoring, and enforcement. They 
increase incentives for participants to misreport catch through 
unauthorized discards or inaccurate catch reports. If catch can be 
successfully misreported or underreported, the fishing season continues 
longer than it should, and the vessel owners and operators are able to 
catch more Pacific cod than are allocated to the subsector. The fact 
that the vessel owners and operators are fishing cooperatively under 
contract to maximize the harvest and value of the Pacific cod 
allocation for a given halibut PSC limit provides additional 
opportunities for them to communicate and cooperate to underreport 
catch.
    Catch share programs require participants to cease fishing when 
their individual quota allocations are reached. In the case of the 
voluntary cooperative, NMFS retains the authority to issue a closure to 
directed fishing for Pacific cod by the BSAI longline C/P sector if its 
allocation is reached. However, because the cooperative has divided the 
Pacific cod and halibut PSC sector allocations among its members, 
industry participants need near-real time catch accounting data so they 
can closely monitor their catch and prevent fishing in excess of the 
allocation. For all catch share programs implemented since 1998, NMFS 
requires the use of observer data as the best available source of 
information about the catch of the allocated species. Observer data is 
used as the basis for NMFS's ``catch accounting system,'' and 
participants in the catch share programs access their vessel's observer 
data to monitor catch against their allocations on a daily basis. All 
concerned parties (NMFS, other management agencies, and fishery 
participants) must have access to a single, authoritative database that 
clearly and accurately details the amount of quota harvested. If NMFS 
makes corrections when reviewing observer data during the observer 
debriefing process, all parties must receive, or have access to, the 
edited data.
    To meet the increased monitoring needs in other GOA and BSAI catch 
share programs, NMFS developed a suite of monitoring and enforcement 
measures designed to ensure accurate and near real-time catch 
accounting for allocated species. These measures include observer 
coverage requirements, observer sampling protocols, at-sea scale 
requirements, electronic reporting, and other measures to ensure that 
catch is accurately accounted for. Additional detail on the range of 
monitoring and enforcement measures generally applicable to catch share 
programs in the BSAI--and the rationale for those specific measures--
can be found in the final rule implementing Amendment 80 to the BSAI 
FMP, a catch share program for several non-pollock trawl fisheries (72 
FR 52668, September 14, 2007), and is not repeated here. NMFS proposes 
that monitoring and enforcement measures similar to those required in 
other catch share programs are necessary for the longline C/P 
subsector. However, as described in this proposed rule, longline C/Ps 
present unique challenges, so some of the monitoring and enforcement 
measures proposed in this action differ from those applied in the other 
catch share programs.

[[Page 35928]]

    Increased observer coverage and equipment and operational 
requirements to improve catch accounting and monitoring were first 
implemented in 1994 for trawl C/Ps and motherships in the pollock CDQ 
fisheries (59 FR 25346; May 16, 1994). The CDQ allocations provided an 
exclusive harvest privilege to the six CDQ groups and represented the 
first catch share program implemented in Federal waters off Alaska. A 
significant expansion of catch monitoring requirements for the CDQ 
fisheries were implemented in 1999 when allocations to the program 
expanded to all groundfish and prohibited species (63 FR 30381; June 4 
1998). Under the CDQ final rule, NMFS first implemented requirements to 
weigh catch at sea on trawl C/Ps and motherships, observer sampling 
stations on all C/Ps, two observers on C/Ps using longline gear, 
requirements for the observers to have prior experience and increased 
training (``level 2'' and ``lead level 2'') on all C/Ps and 
motherships, and the requirement that each set on C/Ps using hook-and-
line gear be sampled by an observer for species composition. This was 
the first time that enhanced observer coverage and equipment and 
operational requirements were applied to longline C/Ps. NMFS determined 
that data collected by observers were the best estimates of catch for 
the longline C/Ps and that observer sampling stations and two observers 
to sample each set for species composition was necessary to provide 
catch and bycatch estimates needed to manage the CDQ allocations.
    The 1998 final rule required motion-compensated scales to weigh 
total catch on trawl C/Ps and motherships because all the catch on 
these processing vessels could be made to pass through a single point 
on a conveyor belt in the factory before any sorting or processing was 
done. As described below, the operations on a longline C/P did not 
provide a single point where all catch could be weighed on a motion-
compensated scale and, in 1998, the technology for weighing catch at 
sea on longline C/Ps was not well developed. Therefore, NMFS' enhanced 
catch monitoring requirements for longline C/Ps focused on improving 
observer data as much as was possible at the time. These monitoring 
requirements for longline catcher processors in the CDQ fisheries 
remained largely unchanged until the 2006 amendments to the Magnuson-
Stevens Act, which are described below.
    In the non-CDQ groundfish fisheries, longline C/Ps equal to or 
greater than 125 feet length overall (LOA) are required to carry an 
observer 100 percent of the time. Vessels less than 125 feet LOA must 
carry an observer 30 percent of the time. The observer estimates the 
total catch and species composition by sampling a portion of the 
longline sets. These data are extrapolated to give an estimate of catch 
for unsampled sets. The current sampling methodologies produce accurate 
catch estimates on a seasonal level, but they are not designed to give 
a precise estimate of the catch for each set of hook-and-line gear. In 
addition to the observer coverage requirements, vessel operators also 
must comply with specified recordkeeping and reporting requirements 
(R&R) in Sec.  679.5 (primarily logbooks, daily electronic production 
reports, and product transfer reports) and with vessel monitoring 
system requirements (VMS). The R&R and VMS requirements also apply 
while these vessels are CDQ fishing.
    In 2006, section 305(i)(1) of the Magnuson-Stevens Act was amended 
by the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (Pub. L. 109-241). Section 305(i)(1)(B)(iv) 
requires that the harvest of CDQ allocations for fisheries with 
individual quotas or fishing cooperative shall be regulated no more 
restrictively than fisheries with individual quotas or fishing 
cooperatives. In a note to section 305, the term ``fishing 
cooperative'' is defined to include a voluntary fishing cooperative. 
More information about the ``CDQ regulation of harvest provision'' of 
the Magnuson-Stevens Act and how it applies to voluntary cooperatives 
is included in a final rule published on February 8, 2012 (77 FR 6492), 
and is not repeated here.
    In April 2011, the Western Alaska Community Development Association 
notified NMFS of the formation of a voluntary cooperative in the 
longline C/P subsector and requested that NMFS apply the regulation of 
harvest provisions of the Magnuson-Stevens Act to these vessels while 
they were participating in the CDQ fisheries. NMFS agreed and suspended 
enforcement of the regulations in 50 CFR part 679 that were more 
restrictive on the longline C/Ps while they were CDQ fishing. Included 
in the regulations suspended were the requirements for two observers, 
level 2 and lead level 2 requirements, observer sampling station 
requirements, and the requirement that each set be sampled. Therefore, 
since May 31, 2011, the observer coverage and catch monitoring 
requirements have been the same for longline C/Ps fishing in the CDQ 
and non-CDQ groundfish fisheries in the BSAI. These requirements are 
observer coverage based on vessel length overall and the standard R&R 
and VMS requirements that apply to longline C/Ps in general.
    In the meantime, the Council and NMFS have been working for many 
years to restructure the groundfish observer program and expand 
observer coverage to the halibut fleet. On April 18, 2012 (77 FR 
23326), NMFS published a proposed rule to implement Amendment 86 to the 
BSAI FMP and Amendment 76 to the GOA FMP. If approved, Amendments 86 
and 76 would require all C/Ps to carry at least one observer at all 
times (100 percent or full observer coverage). This would increase 
observer coverage for the longline C/Ps less than 125 feet LOA in both 
the CDQ and non-CDQ fisheries starting in 2013.

The Proposed Action

    With the changes in the BSAI Pacific cod fishery and experience 
from the CDQ Program monitoring requirements, the BSAI longline C/P 
subsector members and NMFS recognized the need to develop an enhanced 
monitoring and catch accounting system. NMFS decided that the best 
approach for developing an effective monitoring and catch accounting 
system was through the Council process. At its October 2009 meeting, 
the Council requested that NMFS prepare a discussion paper on options 
for enhanced monitoring for the BSAI longline C/P subsector, including 
increased observer coverage and the use of motion-compensated scales in 
lieu of an additional observer. NMFS staff held a public workshop in 
Dutch Harbor on December 1, 2009, to learn about the vessels 
participating in the freezer longline fishery and how to monitor their 
Pacific cod harvest. Following this workshop, NMFS staff visited a 
representative group of 21 longline C/P vessels in Dutch Harbor, AK, 
and Seattle, WA, and discussed catch handling protocols and factory 
operations with vessel crew. In July 2010, NMFS staff accompanied the 
F/V Bristol Leader to observe the operation of a motion-compensated 
flow scale recently installed on the vessel. On May 10, 2011, NMFS 
staff and industry representatives met for a workshop on longline C/P 
vessel monitoring and enforcement in Seattle, WA. The results of the 
workshop are included in the draft RIR/EA for this proposed rule, which 
was provided to the Council for review and comment at its October 2011 
meeting. NMFS informed the Council of the agency's intent to promulgate 
a regulatory amendment that, if approved by the Secretary, would be 
effective at

[[Page 35929]]

the beginning of 2013. The Council received public comment on NMFS' 
report but took no action to recommend changes or to explicitly endorse 
the proposed action.
    This proposed action would apply to the owners and operators of any 
vessel named on an LLP license with a Pacific cod catcher-processor 
hook-and-line endorsement for the Bering Sea, Aleutian Islands, or both 
Bering Sea and Aleutian Islands. It would affect these vessels when 
they operate (1) in either the BSAI or GOA groundfish fisheries when 
directed fishing for Pacific cod is open in the BSAI, or (2) while the 
vessel is groundfish CDQ fishing.
    Except for vessel owners that opt out of fisheries that are subject 
to the monitoring requirements, these requirements would apply to 
members of the longline C/P subsector while they fish in the GOA when 
directed fishing for Pacific cod is open in the BSAI. These vessels 
frequently move between the GOA and the BSAI without stopping to 
offload catch. Vessel owners and operators could find it difficult to 
comply with differing observer coverage and catch accounting 
requirements for the same trip. It would also be difficult for NOAA's 
Office of Law Enforcement to determine whether these vessels were 
complying with the correct observer coverage and catch monitoring 
requirements if the requirements differed for Pacific cod caught in the 
GOA versus the BSAI on the same trip. If directed fishing for Pacific 
cod in the BSAI by longline C/Ps continues to remain open all year, as 
it has since formation of the voluntary cooperative, these requirements 
would effectively apply all year to any longline C/P subject to the 
requirements.
    The proposed requirements also would apply while the vessel is 
groundfish CDQ fishing, which is defined in Sec.  679.2 to mean 
``fishing that results in the retention of any groundfish CDQ species, 
but that does not meet the definition of pollock CDQ fishing, sablefish 
CDQ fishing, or halibut CDQ fishing.'' NMFS does not use directed 
fishing closures to control fishing effort in the CDQ fisheries unless 
the closures apply to species that are not allocated to the CDQ 
Program. CDQ groups are allocated multiple groundfish and PSC species, 
and are prohibited from exceeding any of these allocations.
    As noted earlier, the Magnuson-Stevens Act requires that the CDQ 
fisheries for species managed with individual quotas or cooperatives in 
the non-CDQ fisheries be regulated no more restrictively than those 
non-CDQ fisheries. Aligning the CDQ regulations with regulations 
governing the halibut and sablefish IFQ Program, the American Fisheries 
Act pollock fisheries (managed under cooperatives), and the ``Amendment 
80'' trawl fisheries (managed under a cooperative) required NMFS to 
separately define halibut CDQ fishing, sablefish CDQ fishing, pollock 
CDQ fishing, and groundfish CDQ fishing (see definitions at Sec.  
679.2). Groundfish CDQ fishing refers to fishing under the CDQ Program 
for any groundfish other than pollock or sablefish. Therefore, 
groundfish CDQ fishing includes Pacific cod which is the primary target 
species of vessels in the longline C/P sector while they are 
participating in the CDQ fisheries.
    As described earlier in this proposed rule, the voluntary 
cooperative and the CDQ Program present NMFS with similar monitoring 
and enforcement challenges. Therefore, this proposed action would apply 
the same requirements to the longline C/Ps in both the CDQ and non-CDQ 
fisheries. Currently, the same observer coverage and monitoring 
requirements apply to the longline C/Ps in the CDQ and non-CDQ 
fisheries for Pacific cod. Continuing to maintain the same monitoring 
measures under the proposed action would ensure consistent methods of 
catch accounting, avoid confusion for observers, and reduce the risk of 
data processing or catch accounting errors that may occur if monitoring 
provisions change onboard a vessel while fishing.
    The proposed action would require owners of affected vessels to 
either annually opt out of the fisheries subject to the increased 
monitoring requirements, or select between two monitoring options: 
Increased observer coverage or scales. NMFS has examined both options 
and determined that either option would improve catch accounting on the 
longline C/Ps and provide the data needed to properly manage the 
Pacific cod and groundfish CDQ fisheries. Once a vessel owner makes a 
selection (opt out, increased observer coverage, or scales), the vessel 
would be required to operate under that option for the entire year. 
Except for the first year of implementation, NMFS proposes that a 
selected monitoring option must be used for an entire year to reduce 
the risk for data processing or catch accounting errors that may occur 
if monitoring options are changed during the season. Further rationale 
for this exception in the first year of implementation is provided in a 
later section of the proposed rule.
    Figure 1 illustrates the proposed action.

[[Page 35930]]

[GRAPHIC] [TIFF OMITTED] TP15JN12.000

Opt Out and Monitoring Option Provisions

    Under this proposed action, each year, prior to November 1, each 
vessel owner in the longline C/P subsector would be required to opt out 
of the proposed monitoring program if that vessel owner does not intend 
to directed fish for Pacific cod in the BSAI or conduct groundfish CDQ 
fishing at any time during the following calendar year, or to select 
one of two monitoring options. The vessel owner would be required to 
submit a completed notification form for the opt out or one of the two 
monitoring options to NMFS by November 1 of the calendar year prior to 
fishing. NMFS proposes a November 1 deadline to provide NMFS adequate 
time to inspect all vessels to ensure proper installation of necessary 
equipment, and make necessary adjustments to the catch accounting 
system to properly track catch according to the monitoring option 
selected by vessel owners.
    Vessel owners who opt out would be prohibited from using their 
vessel as a C/P to directed fish with hook-and-line gear for Pacific 
cod in the BSAI or to conduct groundfish CDQ fishing during the 
specified year. Vessel owners, however, could use their vessels to 
participate in directed fisheries in the GOA, the halibut or fixed gear 
sablefish CDQ fisheries, or BSAI-directed fisheries other than hook-
and-line C/P Pacific cod. Some vessels in this subsector also have LLP 
endorsements for catcher vessel or pot gear, which enables these 
vessels to fish other sectors. NMFS proposes this opt out provision to 
allow vessel owners who are not actively fishing in the BSAI Pacific 
cod longline C/P or groundfish CDQ fishing to be exempted from the 
requirements and additional compliance costs applicable to these catch 
share programs if they are not active in those fisheries. Vessel owners 
that opt out from directed fishing for Pacific cod in the BSAI or 
groundfish CDQ fishing would continue to be subject to all other 
monitoring requirements when the vessels are used in other fisheries.
    Vessel owners who intend to participate in groundfish CDQ or 
Pacific cod fisheries in the BSAI would be required to meet additional 
monitoring requirements. These requirements would apply (1) when the 
vessel is operating in either the BSAI or GOA groundfish fisheries when 
directed fishing for Pacific cod is open in the BSAI, or (2) while the 
vessel is groundfish CDQ fishing. Vessel owners would be allowed to 
select one of two monitoring options. An increased observer coverage 
option would require the vessel to carry two observers. As an 
alternative to increased observer coverage, vessel owners could select 
the scales option. Under the scales option, the vessel owner and 
operator would be required to ensure that all Pacific cod was weighed 
on a NMFS-approved scale

[[Page 35931]]

and to provide an electronic monitoring system that records all 
activities that take place on the vessel between the location where 
catch is first sorted or bled and the location where all Pacific cod 
have been sorted and weighed. Under both monitoring options, vessel 
operators would be required to use an electronic logbook (ELB) during 
the entire year for reporting catch, and provide a NMFS-approved 
observer sampling station. Vessels could not change monitoring options 
except prior to November 1 of the upcoming calendar year. The rationale 
for each of these proposed provisions is described below.
    A vessel owner that failed to select a monitoring option or to opt 
out by November 1 of each year would be required to operate under the 
increased observer coverage option in the following year. NMFS proposes 
to assign vessels that do not select a monitoring option to the 
observer coverage option to ensure that adequate catch records are 
available. If a vessel owner does not apply by November 1 of each year, 
NMFS would not be able to assign that vessel to the scales option 
because NMFS would not be able to ensure that a scale could be 
purchased, installed, and inspected before the Pacific cod fishery 
opens on January 1 of the following year.
    During the first year of the program, projected as 2013, NMFS 
proposes to allow vessel owners that chose the increased observer 
coverage option to make a one-time change to the scales option during 
the year. The change from the increased observer coverage option to the 
scales option would occur between the A and B seasons. Vessel owners 
would need to submit a monitoring option notification form by May 1, 
2013, and must comply with the scales option requirements beginning on 
June 10, 2013, which would be the opening of the B season. NMFS 
proposes to allow this one-time change in monitoring options during the 
first year of implementation because NMFS expects that many vessel 
owners or operators will not be able to purchase, make factory 
modifications, install flow scales, and have those scales approved by 
NMFS in time for the beginning of the program on January 1, 2013. 
Additionally, NMFS expects that there may be a shortage of flow scales 
manufactured in time for the beginning of the program.

Increased Observer Coverage Option

    Under the increased observer coverage option, NMFS would require 
observer coverage similar to other catch share programs. Vessel owners 
and operators would be required to provide two observers at all times 
(1) when the vessel is operating in either the BSAI or GOA groundfish 
fisheries when directed fishing for Pacific cod is open in the BSAI, or 
(2) while the vessel is groundfish CDQ fishing. One of those observers 
must have a lead level 2 certification. This additional experience and 
training requirement ensures that at least one observer deployed in 
this program has prior experience sampling in a longline or pot 
fishery.
    In other catch share programs in Alaska, NMFS requires observers 
who have additional training and experience to ensure the highest 
quality data for debiting quota accounts. Regulations at Sec.  679.50 
provide for two levels of observers with additional experience: Level 2 
and lead level 2.
    To become a level 2 observer, an observer must be a prior observer 
in the groundfish fisheries off Alaska who has completed at least 60 
days of data collection, has received an evaluation by NMFS for his or 
her most recent deployment that indicated that his or her performance 
met North Pacific Groundfish Observer Program (Observer Program) 
expectations for that deployment, and has successfully completed a 
NMFS-approved level 2 observer training as required by the Observer 
Program. Level 2 training is now included in the basic observer 
training.
    To become a lead level 2 observer for nontrawl gear, an observer 
must have completed two observer cruises (contracts) of at least 10 
days each and sampled at least 60 sets on a vessel using longline or 
pot gear. Additional detail on the lead level 2 requirement is provided 
later in this preamble in the section titled ``Elements Common to Both 
Monitoring Options.''
    The level 2 requirement ensures that observers have experience at 
sea; the ``lead'' requirement ensures that they have had experience 
with longline or pot gear and that, having taken at least two cruises, 
they have experience with various fixed-gear operations. In other 
quota-based C/P fisheries, allocations are debited from applicable 
quota accounts based on observer data. Because the data collected by 
observers is directly used to debit quota accounts, the observer 
estimates are carefully reviewed and scrutinized by catch share 
participants. NMFS has found that observers with prior experience with 
a specific gear type are more likely to collect usable data for quota 
management.

Scales Option

    Under the scales option, vessels would be required to use motion-
compensated scales and electronic monitoring as an alternative to 
increased observer coverage. Vessels would be required to carry a 
single lead level 2 observer, but instead of a second observer, vessels 
would be required to weigh all Pacific cod on a NMFS-approved scale and 
provide an electronic monitoring system.
    Motion-compensated flow or hopper scales are intended to provide an 
accurate record of catch. They are successfully used in the American 
Fisheries Act pollock, Central GOA rockfish, trawl CDQ, Crab 
Rationalization crab, and Amendment 80 catch share programs. As in 
other catch share programs, regulations would require that these scales 
be inspected and approved annually by NMFS and tested daily when in 
use. In C/P trawl fisheries, scales are used to weigh the total catch, 
and observer sampling is used to determine the fraction of that weight 
each species comprises. Because longline C/Ps do not bring all bycatch 
onboard the vessel and crew are required to release halibut as quickly 
as possible, it would be impractical to require vessel operators to 
obtain a scale weight of the total catch. Therefore, NMFS proposes that 
only the Pacific cod brought onboard the vessel be weighed. For the 
purpose of accounting for Pacific cod catch, NMFS would use the weight 
of all catch that passes over the scale. Observer data still would be 
used to estimate the weight of the catch of species other than Pacific 
cod and halibut PSC, and to estimate the weight of Pacific cod that was 
caught but did not enter the vessel.
    In the longline C/P Pacific cod fishery, product quality is 
dependent on rapid bleeding of catch. On most vessels, Pacific cod are 
cut and bled almost immediately upon entering the vessel and then 
allowed to complete the bleeding process in a saltwater-filled tank. 
Because of the need to preserve product quality, NMFS has determined 
that it may not be feasible for all vessels to weigh Pacific cod prior 
to bleeding. NMFS uses a product recovery rate (PRR) for bled fish of 
.98 to estimate the original round weight of the catch. To determine 
the round weight equivalent of a fish, NMFS divides the weight of the 
product by the PRR. In this case, the weight of bled fish is divided by 
.98. However, the bled fish PRR is based on catch that has fully 
completed the bleeding and soaking process and is not necessarily 
applicable to catch that has been cut but not fully bled. Based on

[[Page 35932]]

research conducted by NMFS staff (see ADDRESSES), NMFS proposes to use 
a PRR that is designated for each vessel for catch accounting depending 
on the location where catch is weighed in relation to the location that 
cutting and bleeding occurs. These PRRs would be specific to vessels 
using the scales monitoring option under Sec.  679.100 and would not be 
added to Table 3 to part 679. If Pacific cod are weighed prior to 
cutting, no PRR would be applied to the scale weights reported by the 
vessel operator in the ELB and 100 percent of the scale weight would be 
used to account for Pacific cod catch. If Pacific cod are weighed after 
cutting but before any bleeding holding area, a PRR of 0.99 would be 
applied to the reported scale weights and 101 percent of the scale 
weight would be used to account for Pacific cod catch. If Pacific cod 
are weighed after a bleeding holding area, the standard bled PRR of 
0.98 would be applied to the scale weights and 102 percent of the scale 
weight would be used to account for Pacific cod catch. NMFS staff would 
determine the applicable PRR rate at the time of the annual scale 
inspection based on the location of the scale and bleeding holding area 
on a particular vessel. NMFS would notify each vessel owner and 
operator in writing of the PRR that would be applied to the scale 
weights from that vessel.
    Because this option only requires a single observer, it would not 
be possible for an observer to be on site at all times when catch is 
being sorted and weighed. In order to ensure that all Pacific cod is 
accurately weighed, NMFS proposes to require that each vessel using 
this option be equipped with a NMFS-approved electronic monitoring 
system capable of recording crew activity. The system, consisting of 
cameras, a digital video recorder, and a monitor would be required to:
     Provide sufficient resolution and field of view to monitor 
all areas where Pacific cod are sorted from the catch, all fish passing 
over the motion-compensated scale, and all crew actions in these areas.
     Have sufficient data storage capacity to record all video 
data from an entire trip.
     Time/date stamp each frame of video in Alaska local time 
(A.l.t.).
     Include at least one external USB (1.1 or 2.0) port or 
other removable storage device approved by NMFS.
     Use commercially available software.
     Use color cameras that have at a minimum 470 TV lines of 
resolution, auto-iris capabilities, and output color video to the 
recording device with the ability to revert to black and white video 
output when light levels become too low for color recognition.
     Record at a speed of no less than 5 frames per second at 
all times when Pacific cod are being sorted or weighed.
     Provide a 16-bit or better color monitor that can display 
all cameras simultaneously.
    Data from the system would have to be maintained on board for at 
least 120 days and made available to NMFS staff, or any individual 
authorized by NMFS, upon request. The system would be inspected and 
approved annually by NMFS to ensure that it meets the above standards. 
This type of electronic monitoring system has also been effectively 
used in other catch share programs, such as the Amendment 80 catch 
share program and the Amendment 91 BSAI Chinook salmon bycatch 
management measures.

Elements Common to Both Monitoring Options

    Vessels would be required to carry a lead level 2 observer. NMFS 
would require at least one observer to be lead level 2 certified 
because NMFS needs the highest quality data available for catch share 
management in catch share programs, and observer experience is 
important to help reduce the potential for data loss. NMFS has 
consistently required lead level 2 observers in other catch share 
programs to ensure proper catch accounting. Data loss can occur when 
inexperienced observers suffer from sea sickness or conduct sampling 
incorrectly. Performance issues with new observers can impact NMFS' 
monitoring of scale performance, halibut catch estimates, halibut 
mortality estimates, and all discard estimates, including Pacific cod. 
All these factors are important to properly account for the voluntary 
cooperative's Pacific cod and halibut PSC allocations.
    The presence of at least one observer with the experience and 
confidence associated with lead level 2 qualifications will be 
important under the two-observer approach, for several reasons: (1) It 
would follow the monitoring model used in catch share programs; (2) it 
would reduce the time required for observers to understand sampling 
techniques on a new longline vessel assignment; (3) it would help 
identify efforts to create misleading data and to stand up to 
challenges to observer-collected information; and (4) it would provide 
for better organization among the observers on the vessel, and allow 
for mentoring of the less experienced observer during a cruise.
    Under the scales option, the sole observer aboard the vessel would 
be required to have a lead level 2 certification. While the scales 
would weigh retained Pacific cod, the single observer would be 
responsible for obtaining Pacific cod discard estimates and halibut PSC 
estimates for debiting the voluntary cooperatives quota accounts. 
Therefore, this proposed rule would require that the sole observer 
would be lead level 2 certified. A lead level 2 observer is more likely 
to have the skills necessary to deal with unexpected issues concerning 
sampling and data collection. Additional detail on the training, 
availability and costs of deploying lead level 2 observers for the 
longline C/P fleet is provided in section 1.3.4 of the RIR/EA (see 
ADDRESSES) and is not repeated here.
    At the October 2011 Council meeting, observer provider companies 
expressed concerns about a shortage of lead level 2 observers available 
for this program. While NMFS does not believe that a shortage of lead 
level 2 observers is likely, NMFS proposes to reduce the required 
number of sampled sets on vessels using longline or pot gear for a lead 
level 2 endorsement from 60 sets to 30 sets. Based on section 1.3.4 of 
the RIR/EA (see ADDRESSES), NMFS predicts this change would increase 
the pool of available lead level 2 observers by approximately 20 
percent. The requirement for 60 sampled sets was implemented in 1999 in 
the final rule for the CDQ Program (63 FR 30381, June 4, 1998). At that 
time, most observer experience was gained on longline C/P vessels that 
conducted multiple sets each day and made relatively long trips of up 
to 45 days. The majority of these trips were directed fishing for 
Pacific cod and there was little variability in the sets (length of 
set, soak time, species encounters). NMFS considered sixty sampled sets 
sufficient to ensure that observers were proficient in all the sampling 
duties and could adjust to changing circumstances aboard a fixed gear 
vessel. NMFS anticipates that future observers would qualify for a lead 
level 2 endorsement by deployment on smaller longline catcher vessels. 
Typically, these vessels deploy fewer sets per day. However, because of 
the small vessel size and diversity of fisheries, they create a more 
challenging sampling situation where an observer is likely to obtain 
diverse sampling experiences in a fewer number of sets.
    Vessel owners and operators would be required to provide an 
observer sampling station where an observer can work safely and 
effectively. The same requirements that have applied since 1999 to 
longline C/Ps groundfish CDQ fishing would be extended to all vessels 
in the longline C/P subsector that do not

[[Page 35933]]

opt out under proposed new Sec.  679.100(a). An observer sampling 
station would need to meet specifications for size and location and be 
equipped with an observer sampling station scale, a table, adequate 
lighting, floor grating, and running water. Details of the sampling 
station requirements are set forth at Sec.  679.28(d). Each observer 
sampling station would be inspected and approved annually by NMFS. This 
proposed rule does not modify current observer sampling station 
inspection and approval regulations or processes.
    Under both monitoring options, vessel operators would be required 
to use an ELB instead of a paper logbook during the entire year for 
reporting catch. This requirement would increase the speed and accuracy 
of data transmission to NMFS and would assist in accurate quota 
monitoring. Some C/Ps use longline as well as pot gear, during the 
year. Under this proposed rule, if an ELB is required when a vessel is 
operating as a C/P using longline gear, the requirement also would 
apply when that vessel is operating as a C/P using pot gear in the same 
year. Switching between electronic and paper logbooks during the same 
year would complicate both compliance and monitoring of logbook 
requirements. In addition, NMFS expects that vessel operators would 
prefer to use ELBs over the paper logbooks because the electronic 
features generally make completing the logbooks easier for vessel crew.

Removing CDQ Alternative Fishing Plan Regulations

    This action would remove regulations at Sec.  679.32(e)(3) that 
allow CDQ groups to propose to NMFS an alternative fishing plan to use 
only one observer where two are required, to sort and weigh catch by 
species on processors vessels, or to use larger sample sizes than those 
that can be collected by one observer. Since these regulations were 
implemented in 1999 (63 FR 30381, June 4, 1998), they have been used by 
the CDQ groups to obtain approval from NMFS for one lead level 2 
observer on longline C/Ps rather than the two observers required in 
current regulations. The alternative fishing plan was required to 
ensure that each set was available to be sampled by a lead level 2 
observer and that the single lead level 2 observer was not required to 
work more than 12 hours in a 24-hour period to complete all their 
duties. The CDQ groups have never used the alternative fishing plan for 
C/Ps using trawl gear, motherships, or catcher vessels of any kind. 
Apparent reasons for non-use of alternative fishing plans are that 
trawl C/Ps and motherships cannot conduct efficient CDQ fisheries with 
a single observer, and no catcher vessels participating in the CDQ 
fisheries are required to carry two observers. Therefore, the 
alternative fishing plans have been a viable option only for some of 
the longline C/Ps while CDQ fishing.
    This proposed rule would standardize the observer coverage and 
catch monitoring options for longline C/Ps in both the CDQ and non-CDQ 
fisheries because the monitoring and enforcement challenges in these 
fisheries are similar. Each of the monitoring options for groundfish 
CDQ fishing under this proposed rule would require either two 
observers, one of whom must be a lead level 2 observer, or a lead level 
2 observer and a motion compensated scale. With this standardization in 
observer coverage requirements between the CDQ and non-CDQ fisheries, 
the alternative fishing plan regulations would no longer be necessary. 
If operators of vessels groundfish CDQ fishing want to fish with one 
observer, they could continue to do so provided the vessel owner 
selects the scales option under Sec.  679.100.

Classification

    Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS 
Assistant Administrator has determined that this proposed rule is 
consistent with the FMPs, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Council for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
As a result, an initial regulatory flexibility analysis is not required 
and none has been prepared.

Description and Estimate of the Number of Small Entities to Which the 
Rule Applies

    This rule would directly regulate the activities of 33 vessels 
active in the longline C/P subsector fishing for a smaller number of 
separate entities. Although up to 37 LLP licenses comprise the longline 
C/P subsector, based on current trends of consolidation among vessel 
owners, NMFS anticipates that it is likely that 33 or fewer vessels 
will be active in the longline C/P sector. NMFS does not currently have 
data to precisely track ownership patterns in North Pacific fisheries. 
NMFS has reviewed vessel ownership, as recorded on the Web site of the 
FLCC. On the basis of this information, NMFS estimates that in 2011 
these vessels were owned by no more than 13 separate for-profit 
entities.
    For the purpose of this Regulatory Flexibility Act (RFA) analysis, 
NMFS believes that all of the directly regulated entities are large 
entities. According to the SBA size criteria, a business involved in 
fish harvesting is a small business if it is independently owned and 
operated and not dominant in its field of operation (including its 
affiliates) and if it has combined annual receipts not in excess of 
$4.0 million for all its affiliated operations worldwide. In 2010, the 
most recent year for which the necessary gross revenues information is 
available, 17 of 36 active vessels had less than $4 million in gross 
revenues from fishing for Pacific cod. Although the vessels target 
Pacific cod predominately and most of their revenues are from this 
source, some obtain revenues from other fisheries or fishery support 
activities, such as tendering or processing salmon in the summer. Thus, 
this analysis uses a conservative measure of vessel and entity 
revenues. Likewise, most of the entities operating vessels in this 
fishery have gross revenues in excess of $4 million. In 2009, fewer 
than 3 of an estimated 11 entities operating vessels in the fishery had 
gross revenues from fishing for Pacific cod less than the $4 million 
threshold. These estimates are based on data supplied by the Alaska 
Fisheries Information Network and evaluated by NMFS Alaska Region. Firm 
affiliations are estimated from lists created by the FLCC. Small and 
large business entity determinations under the RFA are based on entity 
revenues from all sources. In the present instance, where a clear 
determination can be made on the basis of Pacific cod revenues and 
known cooperative affiliations, additional information on total 
groundfish and other entity revenues was not collected.
    Even though small numbers of directly regulated vessels and 
entities may be described as small with respect to their own gross 
revenues, when affiliations among entities are considered, as required 
under the RFA, there are no small entities in this fishery. As 
described in the RIR prepared for this action (see ADDRESSES), the 
directly regulated vessels in this fleet have formed a fisheries 
cooperative that effectively allocates to each vessel a share of the 
Pacific cod TAC, and of the available halibut PSC. These vessel-
specific

[[Page 35934]]

individual quotas are enforced under a private contract among the 
entities. Therefore, for the purpose of this analysis, the directly 
regulated entities are all affiliated, with all the entities that would 
otherwise be characterized as small having affiliations with larger 
entities. Thus, there are no directly regulated small entities under 
this action.

Estimate of Economic Impact on Small Entities, by Entity Size and 
Industry

    Since there are no directly regulated small entities under this 
action within the definition of small entities used in the RFA, there 
are no economic impacts from this action on small entities.

Criteria Used To Evaluate Whether the Rule Would Impose Impacts on ``a 
Substantial Number'' of Small Entities

    This analysis uses the criteria described in the NMFS guidelines 
for economic reviews of regulatory actions:

    The term ``substantial number'' has no specific statutory 
definition and the criterion does not lend itself to objective 
standards applicable across all regulatory actions. Rather, 
``substantial number'' depends upon the context of the action, the 
problem to be addressed, and the structure of the regulated 
industry. The SBA casts ``substantial'' within the context of ``more 
than just a few'' or de minimis (``too few to care about'') 
criteria. In some cases consideration of ``substantial number'' may 
go beyond merely counting the number of regulated small entities 
that are impacted significantly. For example, a fishery may have a 
large number of participants, but only a few of them may account for 
the majority of landings. In such cases, a substantial number of 
small entities may be adjudged to be significantly impacted, even 
though there may be a large number of insignificantly impacted small 
entities.
    Generally, a rule is determined to affect a substantial number 
of entities if it impacts more than just a few small entities. In a 
borderline case, the rules effect on the structure of the regulated 
industry or the controversiality of the rule might tip the balance 
in favor of determining that a substantial number of entities would 
be affected.

Criteria Used To Evaluate Whether the Rule Would Impose ``Significant 
Economic Impacts''

    The two criteria recommended to determine significant economic 
impact are disproportionality and profitability of the action. 
Disproportionality relates to the potential for the regulations to 
place a substantial number of small entities at a significant 
competitive disadvantage to large entities. Profitability relates to 
the potential for the rule to significantly reduce profit for a 
substantial number of small entities. However, given the absence of 
small entities these criteria were not used for the certification 
decision.

Description of, and an Explanation of the Basis for, Assumptions Used

    Catch and revenue information for the directly regulated entities 
was supplied by the Alaska Fisheries Information Network. Ownership of 
directly regulated vessels by different entities was estimated from 
information on the Web site of the FLCC.
    The economic analysis contained in the RIR for this action (see 
ADDRESSES) further describes the regulatory and operational 
characteristics and history of this fishery, including the origins and 
operation of the fishery cooperative, the history of this action, and 
the details of the alternatives considered for this action, including 
the preferred alternative.

Collection-of-Information Requirements

    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These requirements have 
been submitted to OMB for approval. The collections-of-information are 
presented below by OMB control number.

OMB Control No. 0648-0213

    The reporting requirements for the C/P longline or pot gear daily 
cumulative logbook (DCPL) are removed for certain C/Ps with this 
proposed rule; the electronic logbook (see OMB 0648-0515) is used in 
place of the DCPL by freezer longliners (C/Ps) named on License 
Limitation Program licenses (LLPs) endorsed to catch and process 
Pacific cod at sea with hook-and-line gear in the BSAI.

OMB Control No. 0648-0318

    The Observer Program requirements are mentioned in this proposed 
rule; however, the public reporting burden for this collection-of-
information is not directly affected by this proposed rule.

OMB Control No. 0648-0330

    Public reporting burden is estimated to average 30 minutes for 
Pacific Cod Monitoring Option or Opt-out Notification Form; 2 hours for 
Inspection Request for an Electronic Monitoring System; 6 minutes for 
At-Sea Scales Inspection Request; 2 minutes for notification to 
observers of at-sea scale tests; 45 minutes for Record of Daily Flow 
Scale Test; 1 minute for printed output from at-sea scale; and 2 hours 
for Observer Sampling Station Inspection Request.

OMB Control No. 0648-0334

    LLP license requirements are mentioned in this proposed rule; 
however, the public reporting burden for this collection-of-information 
is not directly affected by this proposed rule.

OMB Control No. 0648-0515

    Public reporting burden is estimated to average 15 minutes for 
eLogbook registration and 41 minutes per active response, and 5 minutes 
inactive response for the C/P longline and pot gear eLogbook.
    These reporting burden 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.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS at 
the ADDRESSES above, and by email to [email protected] or 
fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: June 12, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be 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. 108-447.

[[Page 35935]]

    2. In Sec.  679.5, revise paragraph (f)(1)(ii) and add paragraph 
(f)(1)(viii) to read as follows:


Sec.  679.5  Recordkeeping and reporting (R&R).

* * * * *
    (f) * * *
    (1) * * *
    (ii) Catcher/processor longline and pot gear ELB. Except for 
catcher/processors subject to Sec.  679.100(b), the operator of a 
catcher/processor using longline or pot gear may use a combination of a 
NMFS-approved catcher/processor longline and pot gear ELB and eLandings 
to record and report groundfish information. The operator may use a 
NMFS-approved catcher/processor longline and pot gear ELB to record 
daily processor identification information and catch-by-set 
information. In eLandings, the operator must record daily processor 
identification, groundfish production data, and groundfish and 
prohibited species discard or disposition data.
* * * * *
    (viii) Longline catcher/processor subsector. The operator of a 
catcher/processor subject to Sec.  679.100(b) must use a NMFS-approved 
catcher/processor longline and pot gear ELB to record processor 
identification information, catch-by-set information, and, if required 
to weigh Pacific cod on a NMFS-approved scale, the total Pacific cod 
weight from the scale for each set. This requirement applies for the 
entire year that the vessel is subject to Sec.  679.100(b) and 
operating as a catcher/processor using either longline or pot gear.
* * * * *
    3. In Sec.  679.7, add paragraph (c)(1) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (c) * * *
    (1) For vessel owners and operators subject to Sec.  679.100(a), to 
use the vessel as a catcher/processor to conduct directed fishing for 
Pacific cod with hook-and-line gear in the BSAI or to conduct 
groundfish CDQ fishing.
* * * * *
    4. In Sec.  679.28, add paragraph (k) to read as follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (k) Electronic monitoring in the longline catcher/processor 
subsector. The owner and operator of a catcher/processor subject to 
Sec.  679.100(b)(2) must provide and maintain a NMFS-approved 
electronic monitoring system at all times when the vessel is operating 
in either the BSAI or GOA groundfish fisheries when directed fishing 
for Pacific cod is open in the BSAI, or while the vessel is groundfish 
CDQ fishing.
    (1) In order to be approved by NMFS, the vessel owner and operator 
must provide an electronic monitoring system that include cameras, a 
monitor, and a digital video recorder that must--
    (i) Provide sufficient resolution and field of view to monitor all 
areas where Pacific cod are sorted from the catch, all fish passing 
over the motion-compensated scale, and all crew actions in these areas.
    (ii) Have sufficient data storage capacity to record all video data 
from an entire trip. Each frame of stored video data must record a 
time/date stamp in Alaska local time (A.l.t.).
    (iii) Include at least one external USB (1.1 or 2.0) port or other 
removable storage device approved by NMFS.
    (iv) Use commercially available software.
    (v) Use color cameras, with a minimum of 470 TV lines of 
resolution, auto-iris capabilities, and output color video to the 
recording device with the ability to revert to black and white video 
output when light levels become too low for color recognition.
    (vi) Record at a speed of no less than 5 frames per second at all 
times when Pacific cod are being sorted or weighed.
    (2) NMFS staff, or any individual authorized by NMFS, must be able 
to view any footage from any point in the trip using a 16-bit or better 
color monitor that can display all cameras simultaneously and must be 
assisted by crew knowledgeable in the operation of the system.
    (3) The vessel owner and operator must maintain the video data and 
make the data available to NMFS staff or any individual authorized by 
NMFS, upon request. The data must be retained onboard the vessel for no 
less than 120 days after the date the video is recorded, unless NMFS 
has notified the vessel owner in writing that the video data may be 
retained for less than this 120-day period.
    (4) The vessel owner or operator must arrange for NMFS to inspect 
the electronic monitoring system and maintain a current NMFS-issued 
electronic monitoring system inspection report onboard the vessel at 
all times when the vessel is required to provide an approved electronic 
monitoring system.
    (5) The vessel owner or operator must submit an Inspection Request 
for an Electronic Monitoring System to NMFS with all information fields 
accurately filled in. The application form is available on the NMFS 
Alaska Region Web site (http://alaskafisheries.noaa.gov/). NMFS will 
coordinate with the vessel owner to schedule the inspection no later 
than 10 working days after NMFS receives a complete request form.
    (6) Additional information required for an electronic monitoring 
system inspection. (i) A diagram drawn to scale showing all sorting 
locations, the location of the motion-compensated scale, the location 
of each camera and its coverage area, and the location of any 
additional video equipment must be submitted with the Inspection 
Request for an Electronic Monitoring System form.
    (ii) Any additional information requested by the Regional 
Administrator.
    (7) Any change to the electronic monitoring system that would 
affect the system's functionality or ability to meet the requirements 
described at paragraph (k)(1) of this section must be submitted to, and 
approved by, NMFS in writing before that change is made.
    (8) Inspections will be conducted on vessels tied to docks at Dutch 
Harbor, Alaska; Kodiak, Alaska; and in the Puget Sound area of 
Washington State.
    (9) After an inspection, NMFS will issue an electronic monitoring 
system inspection report to the vessel owner, if the electronic 
monitoring system meets the requirements of paragraph (k) of this 
section. The electronic monitoring system report is valid for 12 months 
from the date it is issued by NMFS. The electronic monitoring system 
inspection report must be made available to the observer, NMFS 
personnel, or to an authorized officer upon request.
    5. In Sec.  679.32, revise paragraph (c)(3)(i)(E) introductory text 
and paragraph (c)(3)(i)(E)(1), and remove paragraph (c)(3)(ii)(G) to 
read as follows:


Sec.  679.32  CDQ fisheries monitoring and catch accounting.

* * * * *
    (c) * * *
    (3) * * *
    (i) * * *
    (E) Catcher/processors using nontrawl gear. Operators of catcher/
processors using hook-and-line gear must comply with Sec.  679.100. 
Operators of catcher/processors using pot gear must comply with the 
following requirements:
    (1) Each CDQ set on a catcher/processor using pot gear must be 
sampled by an observer for species composition and weight.
* * * * *
    6. Sec.  679.51, as proposed to be added at 77 FR 23326, April 18, 
2012, is proposed to be further amended to

[[Page 35936]]

remove and reserve paragraph (a)(2)(vi)(A)(3) and add paragraph 
(a)(2)(vi)(E) to read as follows:


Sec.  679.51  Observer requirements for vessels and plants.

* * * * *
    (a) * * *
    (2) * * *
    (vi) * * *
    (E) Longline catcher/processor subsector. The owner and operator of 
a catcher/processor subject to Sec.  679.100(b) must comply with the 
following observer coverage requirements:
    (1) Increased observer coverage option. If the vessel owner selects 
the increased observer coverage option under Sec.  679.100(b)(1), at 
least two observers must be aboard the vessel at all times when the 
vessel is operating in either the BSAI or GOA groundfish fisheries when 
directed fishing for Pacific cod is open in the BSAI, or while the 
vessel is groundfish CDQ fishing. At least one of the observers must be 
certified as a lead level 2 observer as described at Sec.  
679.53(a)(5)(v)(C). More than two observers are required if the 
observer workload restriction at paragraph (a)(2)(iii) of this section 
would otherwise preclude sampling as required under Sec.  
679.100(b)(1)(iv).
    (2) Scales option. If the vessel owner selects the scales option 
under Sec.  679.100(b)(2), one lead level 2 observer as described at 
Sec.  679.53(a)(5)(v)(C) must be aboard the vessel at all times when 
the vessel is operating in either the BSAI or GOA groundfish fisheries 
when directed fishing for Pacific cod is open in the BSAI, or while the 
vessel is groundfish CDQ fishing.
* * * * *
    7. Sec.  679.53, as proposed to be added at 77 FR 23326, April 18, 
2012, is proposed to be further amended to revise paragraph 
(a)(5)(v)(C) to read as follows:


Sec.  679.53  Observer certification and responsibilities.

    (a) * * *
    (5) * * *
    (v) * * *
    (C) A ``lead'' level 2 observer on a vessel using nontrawl gear 
must have completed two observer cruises (contracts) of at least 10 
days each and sampled at least 30 sets on a vessel using nontrawl gear.
* * * * *
    8. Under part 679, add subpart I to read as follows:

Subpart I--Equipment and Operational Requirements for the Longline 
Catcher/Processor Subsector

Sec.
679.100 Applicability.


Sec.  679.100  Applicability.

    The owner and operator of a vessel named on an LLP license with a 
Pacific cod catcher-processor hook-and-line endorsement for the Bering 
Sea, Aleutian Islands or both the Bering Sea and Aleutian Islands must 
comply with the requirements of this subpart.
    (a) Opt out selection. Each year, the owner of a vessel subject to 
this subpart who does not intend to directed fish for Pacific cod in 
the BSAI or conduct groundfish CDQ fishing at any time during a year 
may, by November 1 of the year prior to fishing, submit to NMFS a 
completed notification form to opt out of directed fishing for Pacific 
cod in the BSAI and groundfish CDQ fishing in the upcoming year. The 
notification form is available on the NMFS Alaska Region Web site 
(http://alaskafisheries.noaa.gov/). Once the vessel owner has selected 
to opt out, the owner must ensure that the vessel is not used as a 
catcher/processor to conduct directed fishing for Pacific cod with 
hook-and-line gear in the BSAI or to conduct groundfish CDQ fishing 
during the specified year.
    (b) Monitoring option selection. Each year, the owner of a vessel 
subject to this subpart that does not opt out under paragraph (a) of 
this section must, by November 1 of the year prior to fishing, submit a 
completed notification form for one of two monitoring options to NMFS. 
The notification form is available on the NMFS Alaska Region Web site 
(http://alaskafisheries.noaa.gov/). The vessel owner must comply with 
the selected monitoring option at all times when the vessel is 
operating in either the BSAI or GOA groundfish fisheries when directed 
fishing for Pacific cod is open in the BSAI, or while the vessel is 
groundfish CDQ fishing for the entire upcoming calendar year. If NMFS 
does not receive a notification to opt out or a notification for one of 
the two monitoring options by November 1 of the year prior to fishing, 
NMFS will assign that vessel to the increased observer coverage option 
under paragraph (b)(1) of this section for the upcoming calendar year.
    (1) Increased observer coverage option. Under this option, the 
vessel owner and operator must ensure that--
    (i) The vessel is in compliance with observer coverage requirements 
described at Sec.  679.51(a)(2)(vi)(E)(1).
    (ii) The vessel is in compliance with observer workload 
requirements described at Sec.  679.51(a)(2)(iii).
    (iii) An observer sampling station meeting the requirements at 
Sec.  679.28(d) is available at all times, unless otherwise approved by 
NMFS.
    (iv) All sets are made available for sampling by an observer.
    (2) Scales option. Under this option--
    (i) The vessel owner and operator must ensure that--
    (A) The vessel is in compliance with observer coverage requirements 
described at Sec.  679.51(a)(2)(vi)(E)(2).
    (B) All Pacific cod brought onboard the vessel is weighed on a 
NMFS-approved scale in compliance with the scale requirements at Sec.  
679.28(b), and that each set is weighed and recorded separately.
    (C) An observer sampling station meeting the requirements at Sec.  
679.28(d) is available at all times, unless otherwise approved by NMFS.
    (D) The vessel is in compliance with the electronic monitoring 
requirements described at Sec.  679.28(k).
    (ii) NMFS will use the weight of all catch that passes over the 
scale for the purposes of accounting for Pacific cod catch.
    (iii) At the time NMFS approves the scale used to weigh Pacific 
cod, NMFS will provide the vessel owner or operator with one of the 
following designations on the scale inspection report that will be used 
for catch accounting of Pacific cod for the duration of the approval 
period:
    (A) Scale prior to bleeding. If the scale is located before the 
location where Pacific cod are bled, a PRR of 1.00 will be applied to 
all catch weighed on the motion-compensated scale.
    (B) Scale between bleeding and holding area. If Pacific cod are 
bled before being weighed and prior to the bleeding holding area, a PRR 
of 0.99 will be applied to all catch weighed on the scale.
    (C) Scale after holding area. If Pacific cod are bled and placed in 
a bleeding holding area before being weighed, a PRR of 0.98 will be 
applied to all catch weighed on the scale.
    (c) Electronic logbooks. The operator of a vessel subject to 
paragraph (b) of this section at any time during a year must comply 
with the requirements for electronic logbooks at Sec.  679.5(f) at all 
times during that year.
    (d) During 2013, the vessel owner that has selected the increased 
observer coverage option under paragraph (b)(1) of this section may 
make a one-time change to the scales option as described under 
paragraph (b)(2) of this section. The owner must submit a completed

[[Page 35937]]

notification form no later than May 1 to change monitoring options. The 
change in monitoring options will become effective June 10 and will 
remain effective until December 31.

[FR Doc. 2012-14681 Filed 6-14-12; 8:45 am]
BILLING CODE 3510-22-P