[Federal Register Volume 77, Number 225 (Wednesday, November 21, 2012)]
[Rules and Regulations]
[Pages 70062-70103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28255]



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Vol. 77

Wednesday,

No. 225

November 21, 2012

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 902

50 CFR Part 679





Groundfish Fisheries of the Exclusive Economic Zone Off Alaska and 
Pacific Halibut Fisheries; Observer Program; Final Rules

  Federal Register / Vol. 77 , No. 225 / Wednesday, November 21, 2012 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 110831549-2587-02]
RIN 0648-BB42


Groundfish Fisheries of the Exclusive Economic Zone Off Alaska 
and Pacific Halibut Fisheries; Observer Program

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

ACTION: Final rule and notice of approval of an FMP amendment.

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SUMMARY: NMFS publishes regulations to implement Amendment 86 to the 
Fishery Management Plan for Groundfish of the Bering Sea and Aleutian 
Islands Management Area and Amendment 76 to the Fishery Management Plan 
for Groundfish of the Gulf of Alaska (Amendments 86/76). Amendments 86/
76 add a funding and deployment system for observer coverage to the 
existing North Pacific Groundfish Observer Program (Observer Program) 
and amend existing observer coverage requirements for vessels and 
processing plants. The new funding and deployment system allows NMFS to 
determine when and where to deploy observers according to management 
and conservation needs, with funds provided through a system of fees 
based on the ex-vessel value of groundfish and halibut in fisheries 
covered by the new system. This action is necessary to resolve data 
quality and cost equity concerns with the Observer Program's existing 
funding and deployment structure. This action is intended to promote 
the goals and objectives of the Magnuson-Stevens Fishery Conservation 
and Management Act, the Northern Pacific Halibut Act of 1982, the 
fishery management plans, and other applicable law.

DATES: Effective January 1, 2013.

ADDRESSES: Electronic copies of the March 2011 Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Impact Review 
(``the analysis'') and the Finding of No Significant Impact (FONSI) 
prepared for this action may be obtained from http://www.regulations.gov. These documents, the 2013 Observer Program Annual 
Deployment Plan, and other documents referenced in this final rule also 
are available from the 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 
final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box 
21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; 
in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, 
Juneau, Alaska; and by email to [email protected], or by fax 
to 202-395-7285.
    Inspections for U.S. Coast Guard Safety Decals may be scheduled 
through the U.S. Coast Guard Web site at http://www.fishsafe.info/contactform.htm or by contacting the Seventeenth Coast Guard District 
safety coordinator at http://www.uscg.mil/d17/, or by phone at 907-463-
2810 or 907-463-2823.

FOR FURTHER INFORMATION CONTACT: Sally Bibb, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS manages the U.S. groundfish fisheries 
in the Exclusive Economic Zone (EEZ) of the Bering Sea and Aleutian 
Islands (BSAI) and the Gulf of Alaska (GOA) under the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Islands 
Management Area (BSAI FMP) and the Fishery Management Plan for 
Groundfish of the Gulf of Alaska (GOA FMP), respectively. These fishery 
management plans are collectively referred to as ``the FMPs.'' The 
North Pacific Fishery Management Council (Council) prepared the FMPs 
pursuant to the Magnuson-Stevens Fishery Conservation and Management 
Act (MSA). Regulations implementing the FMPs appear at 50 CFR part 679. 
General regulations that pertain to U.S. fisheries appear at subpart H 
of 50 CFR part 600.
    Management of the Pacific halibut fisheries in and off Alaska is 
governed by an international agreement, the Convention Between the 
United States of America and Canada for the Preservation of the Halibut 
Fishery of the Northern Pacific Ocean and Bering Sea (Convention), 
which was signed in Ottawa, Canada, on March 2, 1953, and was amended 
by the Protocol Amending the Convention, signed in Washington, DC, on 
March 29, 1979. The Convention is implemented in the United States by 
the Northern Pacific Halibut Act of 1982.
    The Notice of Availability for Amendments 86/76 published in the 
Federal Register on March 14, 2012 (77 FR 15019), with a 60-day comment 
period that ended May 14, 2012. In compliance with section 313 of the 
MSA, NMFS held a public hearing on the proposed rule in each of the 
affected states--Alaska, Oregon, and Washington--during the mandatory 
60-day comment period for the proposed rule (77 FR 22753, April 17, 
2012; 77 FR 29961, May 2, 2012). The Secretary of Commerce approved 
Amendments 86/76 on June 7, 2012. The proposed rule to implement 
Amendments 86/76 published in the Federal Register on April 18, 2012 
(77 FR 23326). The 60-day comment period on the proposed rule ended 
June 18, 2012.

North Pacific Groundfish Observer Program

    The Observer Program has an integral role in the management of 
North Pacific fisheries. The Observer Program was created with the 
implementation of the MSA in the mid-1970s and has evolved from 
primarily observing foreign fleets to observing domestic fleets. The 
Observer Program provides the regulatory framework for NMFS-certified 
observers (observers) to obtain information necessary for the 
conservation and management of the groundfish fisheries. The 
information collected by observers provides the best available 
scientific information for managing the fisheries and developing 
measures to minimize bycatch in furtherance of the purposes and 
national standards of the MSA. Observers collect biological samples and 
information on total catch and interactions with protected species. 
Managers use data collected by observers to monitor quotas, manage 
groundfish and prohibited species catch, and document and reduce 
fishery interactions with protected resources. Scientists use observer-
collected data for stock assessments and marine ecosystem research.
    Under the current structure, catcher vessels, catcher processors, 
and processing plant operators enter into direct contracts with 
observer providers to meet coverage requirements at Sec.  679.50. 
Existing coverage requirements, based on vessel length and processing 
volume, are set at 30 percent or 100 percent, and vessels less than 60 
ft. in length overall (LOA) and vessels fishing for halibut (halibut 
vessels) are exempt from observer coverage. Owners of smaller vessels 
pay observer costs that are disproportionately high relative to their 
earnings, and owners of vessels less than 60 ft. LOA and halibut 
vessels do not contribute to observer coverage costs. Furthermore, 
vessel and plant operators required to have 30-percent coverage 
determine when to carry

[[Page 70063]]

observers, which statistically biases the data collected.

Need for and Objectives of This Action

    This action addresses longstanding concerns about statistical bias 
of observer-collected data and cost inequality among fishery 
participants with the Observer Program's current funding and deployment 
structure. The Council's problem statement, reproduced below, 
identifies the need for this action:

    The Observer Program is widely recognized as a successful and 
essential program for management of the North Pacific groundfish 
fisheries. However, the Observer Program faces a number of 
longstanding problems that result primarily from its current 
structure. The existing program design is driven by coverage levels 
based on vessel size that, for the most part, have been established 
in regulation since 1990 and do not include observer requirements 
for either the less than 60 ft. groundfish sector or the commercial 
halibut sector. The quality and utility of observer data suffer 
because coverage levels and deployment patterns cannot be 
effectively tailored to respond to current and future management 
needs and circumstances of individual fisheries. In addition, the 
existing program does not allow fishery managers to control when and 
where observers are deployed. This results in potential sources of 
bias that could jeopardize the statistical reliability of catch and 
bycatch data. The current program is also one in which many smaller 
vessels face observer costs that are disproportionately high 
relative to their gross earnings. Furthermore, the complicated and 
rigid coverage rules have led to observer availability and coverage 
compliance problems. The current funding mechanism and program 
structure do not provide the flexibility to solve many of these 
problems, nor do they allow the program to effectively respond to 
evolving and dynamic fisheries management objectives.

    This action will replace the existing service delivery model for 
the partial coverage category of the Observer Program. Under the 
previous service delivery model, vessels and processors contracted 
directly with observer providers to meet coverage levels specified in 
Federal regulations and paid observer providers for observer services. 
With the new service delivery model, NMFS contracts with observer 
providers and determines when and where observers are deployed, based 
on a scientifically sound sampling design. Vessels and processors 
included in the restructured program will pay a fee (ex-vessel value 
based or daily fee) to NMFS to fund the deployment of observers in the 
sectors covered by the new program. In addition, the restructured 
program will include vessel sectors (the less than 60 ft. LOA 
groundfish sector and halibut sector) that are not currently subject to 
any observer requirements.

Summary of the Final Action

    This action will reduce bias in observer data, authorize the 
collection of observer data in sectors that do not currently have any 
observer coverage requirements, allow fishery managers to provide 
observer coverage to respond to the management needs and circumstances 
of individual fisheries, and assess a broad-based fee which reflects 
the value a vessel or processor extracts from the fishery.
    First, this final action expands the Observer Program to include 
groundfish vessels less than 60 ft. LOA and halibut vessels that have 
not been previously required to carry an observer.
    Second, this final action restructures the observer deployment 
system by establishing two observer coverage categories: Partial and 
full. All groundfish and halibut vessels and processors will be 
included in one of these two categories.
    NMFS requires fishing sectors in the full coverage category to have 
all operations observed. The full coverage category includes catcher/
processors, motherships, and catcher vessels participating in a catch 
share program with a transferrable prohibited species catch (PSC) 
limit. Owners of vessels or processors in the full coverage category 
must arrange and pay for required observer coverage from a permitted 
observer provider. This final rule does not change the observer 
deployment or funding system for operations in the full coverage 
category.
    The partial observer coverage category includes fishing sectors 
(vessels and processors) that will not be required to have an observer 
at all times. The partial coverage category includes catcher vessels, 
shoreside processors, and stationary floating processors when not 
participating in a catch share program with a transferrable PSC limit. 
Small catcher/processors that meet certain criteria will also be in the 
partial coverage category. NMFS will assign vessels in the partial 
coverage category to one of two distinct observer coverage selection 
pools: The trip selection or vessel selection pool.
    Each year, NMFS will develop an annual deployment plan that will 
describe how NMFS plans to deploy observers to vessels in the partial 
observer coverage category in the upcoming year. The annual deployment 
plan will describe the sampling design NMFS uses to generate unbiased 
estimates of total and retained catch, and catch composition in the 
groundfish and halibut fisheries. The annual deployment plan also will 
describe how NMFS will deploy observers to shoreside processing plants 
or stationary floating processors in the partial coverage category. 
Adjustments to the annual deployment plan would be made each year after 
a scientific evaluation of data collected under the restructured 
Observer Program to evaluate the impact of changes in observer 
deployment and identify areas where improvements are needed to collect 
the data necessary to conserve and manage the groundfish and halibut 
fisheries. Any adverse economic impacts and safety-related issues will 
also be considered through the annual deployment plan process, 
particularly with respect to expanding coverage to small vessels (less 
than 40 ft LOA). NMFS will post the annual deployment plan on the NMFS 
Alaska Region Web site (http://alaskafisheries.noaa.gov).
    This final rule establishes the Observer Declare and Deploy System 
(ODDS) as an Internet-based interface that provides information about 
observer deployment on vessels in the partial coverage category and 
facilitates communication among the owner or operator of a vessel in 
the partial observer coverage category, NMFS, and NMFS' contracted 
observer provider. The ODDS Web site is https://odds.afsc.noaa.gov. For 
those unable to use the Internet, access to ODDS also will be available 
by calling the NOAA Data Technician Office at 1-800-304-4846 (option 
 1) or 907-586-7163.
    Owners and operators of vessels in the trip selection pool will 
enter information about upcoming fishing trips into ODDS and receive 
information about whether a trip has been selected for observer 
coverage. Owners and operators of vessels in the vessel selection pool 
will be notified by letter from NMFS if they have been selected for 
observer coverage for a particular time period. Only those vessels 
selected for observer coverage will use ODDS to provide additional 
information to NMFS about whether they intend to fish in the selected 
time period and whether they can physically carry an observer on board 
the vessel.
    ODDS was called the ``Deployment System'' in the preamble to the 
proposed rule. The preamble to the proposed rule also described the 
duration of coverage for vessels in the vessel selection pool as 3 
months. In response to recommendations from the Council, the 2013 
Observer Program Annual Deployment Plan has been adjusted and the 
duration of coverage in the vessel selection pool will be 2 months for 
the initial year of the program.

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    Third, this final rule creates a new observer funding system 
applicable to all vessels and shoreside processors in the partial 
observer coverage category. By creating two observer coverage 
categories with separate funding systems, this action addresses cost 
inequities with the existing Observer Program without imposing higher 
costs on operations that already pay for full observer coverage. 
Moreover, the potential implementation of future management programs 
with increased monitoring needs will not reduce the funds available to 
provide observer coverage for the fisheries as a whole.
    A fee equal to 1.25 percent of the fishery ex-vessel value will be 
paid by partial coverage category participants to fund observer 
coverage in the partial coverage category. This fee is authorized by 
section 313 of the MSA. Vessels and processors in the full coverage 
category will continue to arrange and pay for observer services from a 
permitted observer provider.
    NMFS will use Federal start-up funds in the first year of 
implementation (2013) to transition from the existing industry-funded/
direct contract model to one where NMFS contracts with observer 
providers to deploy observers in partial coverage category sectors. In 
subsequent years, NMFS will use the observer fee proceeds collected 
from partial coverage category participants to pay for observer 
coverage in these sectors.
    The proposed rule for this action (77 FR 23326; April 18, 2012) 
contains a thorough discussion of the history of the Observer Program, 
the restructured Observer Program, and details of requirements and 
provisions of the full and partial coverage categories. Those details 
are not repeated in this final rule unless relevant to a specific 
public comment. Changes from the proposed rule are detailed in the 
section ``Changes from the Proposed Rule.''

Comments and Responses

    Approximately 25 people, representing fishery participants and 
organizations, attended the public hearings. Eight people provided oral 
comments on the proposed regulations at the public hearings. These 
eight people represented the Association for Professional Observers, 
the Yukon-Delta Fisheries Association, fishing companies, processing 
companies, and a tour operator. In addition, during the public comment 
periods on the notice of availability and proposed rule, NMFS received 
35 letters. The letters were from a wide range of fishery participants 
including participants that have carried observers and participants new 
to the Observer Program. NMFS also received letters from observers, 
observer organizations, and observer providers. NMFS also received 
letters from conservation organizations and interested members of the 
public. Eighty-five unique comments were received in the hearings and 
letters of comment. These comments, including those from the public 
hearings, are summarized and responded to below.

General Program Comments

    Comment 1: The Observer Program is an indispensable component in 
the successful management of Federal groundfish fisheries off Alaska, 
though we recognize that some portions of the existing program need 
adjustment. Thus, we support the approach in Amendments 86/76. This 
approach is fair and equitable and should facilitate the level of catch 
data and other information necessary to ensure responsible management 
and the long-term sustainability of the groundfish resources. The 
proposed amendments will improve upon a program that is already 
recognized as one of the most comprehensive and successful observer 
programs in the world.
    Response: NMFS acknowledges this comment.
    Comment 2: We applaud the restructured Observer Program that shares 
the costs of observer-collected catch and bycatch data, and observer 
deployment across all fisheries and vessel classes. This action will 
make the program equitable for all fishery participants and provide 
more statistically robust data.
    Response: NMFS acknowledges this comment.
    Comment 3: The restructured Observer Program is overdue and 
necessary for all sectors. We support the intent of the restructured 
Observer Program to remove bias and gather data from the currently 
unobserved fleet. We urge NMFS to implement a program that is not 
unreasonably burdensome, and does not substantially increase costs or 
interfere with existing business practices. It is imperative that the 
program respond quickly to the issues that will arise in covering an 
additional 1,200 vessels that will be included in the new program.
    Response: NMFS acknowledges this comment.
    Comment 4: On behalf of 300 individuals participating in fisheries 
in Prince William Sound and the GOA, most of whom operate vessels less 
than 60 ft. LOA, we oppose the proposed rule to restructure the 
Observer Program. We support the intent of the proposed rule. However, 
the proposed rule does not provide clear information on how the 
Observer Program will apply to small vessels.
    Response: The preamble to the proposed rule contained a detailed 
explanation of how the Observer Program will apply to small vessels, 
specifically those vessels under 60 ft. LOA. The proposed rule details 
the instructions for small vessels to follow in order to find out 
whether and when they will be required to have an observer on board. 
Each year, the annual deployment plan will describe how observer 
coverage requirements will apply to small vessels. Small vessels are 
specifically addressed in the 2013 Observer Program Annual Deployment 
Plan. For 2013, small fixed gear vessels less that 40 ft LOA are in the 
``no selection'' pool which means that they will not be selected for 
observer coverage. Based on the relative proportion of catch and 
fishing trips conducted by vessels less than 40 ft LOA, NMFS is not 
likely to deploy observers on vessels less that 40 ft LOA in the near 
future. NMFS would only expand coverage to vessels less than 40 ft. LOA 
if data collection needs warrant the deploying observers on those 
vessels. NMFS would make this decision in conjunction with the Council 
through the annual deployment plan process and after careful 
consideration of economic impacts and safety-related issues as well as 
public comments.
    Information on the requirements that apply to small vessels is 
included in the Final Regulatory Flexibility Analysis (FRFA) in this 
final rule. NMFS has also posted a small entity compliance guide on the 
NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov) as a 
plain language guide to assist small entities, including the small 
vessels referred to by the commenter, in complying with this rule. In 
addition, NMFS will conduct outreach via direct mailing and community 
meetings to continue to communicate as widely as possible how the 
requirements of the restructured Observer Program apply to small 
vessels. For more information on NMFS's outreach activities, please see 
the section below called ``Outreach.''
    Comment 5: The restructured Observer Program is a waste of money 
and should not be implemented since there are other methods to collect 
information on bycatch. Halibut vessels are required to retain all 
rockfish, so there is a record of rockfish bycatch in the Individual 
Fishing Quota (IFQ) fleet. Halibut IFQ skippers should be required to 
document bycatch in their logbooks.
    Response: NMFS disagrees. Observer coverage is necessary in the 
halibut

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fisheries off Alaska to collect unbiased and representative data on 
catch and bycatch in the halibut fisheries. The current standard used 
by NMFS to best obtain unbiased fishery dependent information is to 
deploy human observers to observe fishing operations. Human observers 
can collect data (e.g., obtain biological samples and reliably identify 
species of fish) in an independent manner that currently cannot be 
collected through other means. NMFS agrees that collecting information 
through logbooks for vessels not currently required to maintain 
logbooks may be helpful additional information for NMFS, but such a 
requirement is outside the scope of this action, and does not directly 
address the purpose and need for this action.
    Comment 6: To address all potential sources of bias in observer-
collected data, NMFS needs to control the deployment of observers in 
both the partial and full coverage categories to completely eliminate 
the potential conflict of interest between vessel owners/operators and 
observer providers.
    Response: NMFS acknowledges that, despite modifications to the 
Observer Program through this final rule, sources of bias or 
uncertainty in observer data will still exist as there are potentially 
many contributing factors. However, a central component to the purpose 
and need for this action is to correct one source of potential bias by 
giving NMFS control over the deployment of observers in the partial 
coverage category.
    The deployment of observers in the full coverage category does not 
have this same potential bias concern because all fishing trips are 
observed. In the full coverage category, vessels still choose which of 
the four currently certified and active observer providers to work with 
and those providers are prohibited from responding to industry requests 
for specific observers. NMFS believes that the active observer 
providers in Alaska are in compliance with this requirement based on 
available information. Thus, NMFS does not agree that further 
modifications are needed so that NMFS controls the deployment of 
observers in the full coverage category.
    Comment 7: The charter halibut fleet is unobserved and does not 
contribute to the cost of managing the fishery. The charter fleet 
should be monitored with electronic monitoring (EM) to understand the 
level of halibut mortality associated with charter fishing operations 
and should be required to pay observer fees.
    Response: The Council did not identify the extension of observer 
fees, observer coverage, or EM to the charter halibut fleet in the 
purpose and need for the observer restructuring action; therefore, it 
was not included in the alternatives analyzed. The Council and NMFS 
will continue to review the data needed to conserve and manage the 
fisheries under its authority and, if appropriate, may consider 
developing and analyzing alternatives that would include the charter 
halibut fleet in the Observer Program.
    Comment 8: NMFS should disapprove or delay implementation of the 
provisions authorizing deployment of observers on vessels in the vessel 
selection pool until a more detailed deployment plan is made available 
for full public comment and an EM alternative is sufficiently developed 
to allow implementation of an integrated EM program. However, NMFS 
should implement the fee collection and trip selection pool provisions 
of the proposed rule at this time.
    Response: NMFS disagrees. Bifurcating implementation of this final 
rule is not warranted or necessary to achieve the goals of the 
commenter. First, this final rule does not preclude public comments on 
the annual deployment plan. The 2013 Observer Program Annual Deployment 
Plan is being developed concurrently with this final rule and was 
available for public comment prior to the publication of this final 
rule. For example, public comments during the development of the 2013 
Observer Program Annual Deployment Plan led NMFS to not require 
observer coverage for vessels less than 40 ft. LOA in 2013, thereby 
delaying observer coverage on those vessels in the vessel selection 
pool. However, all vessels in the vessel selection pool, regardless of 
size, will contribute to the fee assessment upon implementation of this 
final rule.
    Second, NMFS is providing for the limited use of EM equipment 
during 2013. In the future, NMFS can integrate EM into the Observer 
Program. NMFS is committed to continuing to develop EM in an effort to 
advance technological tools available to collect data about the 
groundfish and halibut fisheries. For a more complete discussion of EM, 
please see the subheading below called ``Electronic Monitoring.''
    Comment 9: The analysis fails to address Section 303 of the MSA 
which requires that each FMP describe the fishery, including ``the cost 
likely to be incurred in management'' and the ``actual and potential 
revenues from the fishery.''
    Response: This section of the MSA refers to requirement for FMPs, 
and the FMPs do include sections that describe both the fishery 
revenues (Section 4.3.2) and the costs of management (Section 6.2.1) 
for the respective groundfish fisheries, as a whole. These sections are 
periodically updated, generally in conjunction with the programmatic 
reconsideration of the FMPs, and are intended to provide a programmatic 
perspective on the groundfish fisheries. An annual report of fisheries 
revenues is also prescribed in the FMPs, which is included in the 
Economic Status of the Groundfish Fisheries Off Alaska. This 
information is a component of the annual Stock Assessment and Fishery 
Evaluation report (available on the Alaska Fisheries Science Center's 
Web site at http://www.afsc.noaa.gov/REFM/stocks/assessments.htm).
    Comment 10: NMFS needs to consider, as a reasonable alternative, 
100 percent observer coverage for trawl fisheries as the best available 
scientific tool to minimize bycatch and bycatch mortality. If the 
purpose of restructuring the Observer Program is to address problems in 
the quality of data collected from trawl vessels in the 30-percent 
coverage category, NMFS should substantially increase observer coverage 
for the trawl fleet. The goal should not be even coverage across the 
whole fishing fleet, but to be able to collect more information from 
fisheries of concern.
    This is necessary to comply with National Standards 2 and 9 of the 
MSA, as well as requirements of the National Environmental Policy Act 
(NEPA) to consider significant environmental impacts of a proposed 
action.
    Response: The purpose of restructuring the Observer Program is to 
reduce bias in observer data, authorize the collection of observer data 
in sectors that do not currently have any observer coverage 
requirements, allow fishery managers to provide observer coverage to 
respond to the management needs and circumstances of individual 
fisheries, and assess a broad-based fee that reflects the value a 
vessel or processor extracts from the fishery.
    The Council and NMFS did consider applying 100 percent observer 
coverage to the trawl fisheries, and rejected that alternative for the 
reasons described here and in Section 3.2 of the analysis. Under the 
restructured Observer Program, vessels will either be in the partial 
coverage or full coverage category. The Council and NMFS decide which 
vessels or sectors belong in the full coverage category based primarily 
on NMFS' inseason management needs, requirements for monitoring and

[[Page 70066]]

enforcing limited access privilege programs (LAPPs), or Congressional 
mandates (described in Section 3.2.7.2 of the analysis, and page 23329 
of the preamble to the proposed rule). Based on this information, the 
Council and NMFS placed trawl catcher vessels that are not fishing with 
transferable quotas and PSC limits in the partial coverage category. 
Note that observer coverage levels for the partial coverage category 
are flexible and not codified in regulation. NMFS can adjust coverage 
levels for specific sectors as needed, and within budgetary 
constraints, to best meet the needs of science and management.
    NMFS disagrees that 100 percent observer coverage for trawl 
fisheries is necessary to comply with National Standard 2. National 
Standard 2 requires that conservation and management measures be based 
upon the best available scientific information. The analysis that 
supports this action used the best scientific information available to 
design the restructured Observer Program.
    NMFS also disagrees that 100 percent observer coverage is necessary 
to obtain unbiased catch and bycatch estimates, and has designed a 
sampling plan for the partial coverage category to improve the 
reliability of data collection from vessels within this category (see 
Section 3.2 of the analysis for additional detail). Each year, NMFS 
will use the best available scientific information in the annual 
deployment plan to determine the amount of observer coverage in the 
partial coverage category. The annual deployment plan process provides 
flexibility to adjust scientific sampling methods from one year to the 
next as new information is acquired and management needs change. This 
flexibility is crucial for employing the best available science for 
data collection and greatly improves NMFS's ability to collect unbiased 
information on bycatch. The 2013 Observer Program Annual Deployment 
Plan, prepared for the initial year of the restructured Observer 
Program, describes how NMFS will deploy observers on all types of 
fishing operations. The deployment plan process is described in detail 
in the proposed rule (77 FR 23330; April 18, 2012), Section 3.2 of the 
analysis, and the 2013 Observer Program Annual Deployment Plan. These 
changes in observer deployment are intended to reduce possible sampling 
bias and thereby represent an important step to provide the best 
available scientific information to managers. Additionally, by 
maintaining sampling probabilities equal within the vessel and trip 
selection pools, over time, observer coverage levels in a given sector 
will be proportional to the relative magnitude of the fishing effort in 
that sector.
    National Standard 9 requires that management and conservation 
measures, to the extent practicable, minimize bycatch or bycatch 
mortality. NMFS disagrees that increased observer coverage, as 
suggested by the commenter, will, in and of itself, minimize bycatch. 
The implementation of the restructured Observer Program should reduce 
bias and improve the statistical reliability of observer data. Better 
total catch accounting will improve bycatch data and contribute to 
conservation efforts, such as limiting bycatch to PSC limits. These 
environmental benefits are evaluated in the analysis (Sections 3.2.6, 
4.3, and 6.1).
    Comment 11: The environmental assessment (EA) prepared for the 
proposed rule fails to comply with the requirements of NEPA because (1) 
beneficial environmental impacts from increased observer coverage are 
not evaluated, (2) uncertainty in bycatch estimates is not evaluated, 
and (3) the public does not have meaningful opportunity to comment on 
aspects of the program that are delegated to the annual deployment plan 
review process. NMFS needs to establish a clear process that ensures 
public comment on the annual deployment plan. The proposed approach to 
have the plan presented to the Council in October of each year limits 
opportunity for meaningful public participation and does not provide 
sufficient time to adequately consider and comment on the deployment 
plan.
    Response: NMFS disagrees that the EA fails to comply with the 
requirements of NEPA. The EA evaluates the environmental benefits of 
increased observer coverage and an improved scientific sampling design 
in Section 4.3.1. The EA evaluates the uncertainty in the bycatch 
estimates and how the restructured Observer Program reduces this 
uncertainty in Section 3.2. Uncertainty in the bycatch estimates will 
also be evaluated in the annual deployment plans, as explained in the 
2013 Observer Program Annual Deployment Plan. Additionally, the aspects 
of the program deferred to the annual deployment plan were analyzed in 
Section 3.2 of the analysis, and the public had the opportunity to 
comment on that analysis during its development through the Council and 
rulemaking processes for this action.
    The public does have a meaningful opportunity to comment on the 
annual deployment plans. NMFS has established a schedule for release, 
review, and discussion of the annual deployment plan that will provide 
the public with numerous opportunities to provide input to the Council 
and NMFS on the deployment plan. NMFS will release the annual 
deployment plan by September 1 of each year so that it is available for 
public review prior to the Plan Teams' meetings. Each year, the public 
will also have the opportunity to comment on the annual deployment plan 
when the Council reviews the annual report and annual deployment plan 
at its annual October meeting. The 2013 Observer Program Annual 
Deployment Plan was released for public comment in September 2012 and 
reviewed by the Council at its October 2012 meeting. Starting in 2013, 
the public will also have the opportunity to comment when NMFS presents 
an analysis of the deployment plan and issues raised at the June 
Council meeting. In addition, the public may comment directly to NMFS 
in writing on the deployment plan or any other aspect of NMFS' 
responsibilities or projects at any time.

Safety

    Comment 12: A discretionary provision in section 303(b)(8) of the 
MSA allows FMPs to require that observers be carried on board fishing 
vessels, unless the facilities of the vessel are ``so inadequate or 
unsafe that the health or safety of the observer or the safe operation 
of the vessel would be jeopardized.'' Most of the small vessels in the 
fixed gear fleet do not have operable toilets, an extra bunk, or hot 
water, and may not meet these criteria.
    Placing an observer on a small vessel creates safety issues that 
were not sufficiently addressed in the analysis. Longstanding safety 
concerns include: (1) Limited deck space on small vessels; (2) hazards 
created by tight groundline; (3) the observer displacing traditional 
positions at the rail to assist the roller man; (4) distractions caused 
by an observer placed in front of the roller man; (5) increased pitch 
and roll on small vessels leading to seasickness and risk to observers 
and crew; (6) limited available space in life rafts; and (7) increasing 
the risk that vessels will fish in marginal conditions in order to 
avoid losing observer coverage.
    Response: NMFS disagrees that the presence of an observer presents 
an additional risk to the safe operation of small vessels or that the 
analysis did not adequately address safety concerns associated with 
this action. This final rule at Sec.  679.51(e)(1) maintains existing 
regulations that all vessels subject to the requirement to carry an 
observer maintain safe conditions on the vessel.

[[Page 70067]]

This requirement is intended to ensure that safety issues, such as 
those raised by the commenter, are addressed by the vessel operator. In 
addition, NMFS trains observers to work safely at sea, and the training 
addresses the issues noted in this comment.
    Section 6.1 of the analysis addressed consistency with National 
Standard 10 (section 301(a)(10) of the MSA) in general terms. National 
Standard 10 requires that conservation and management measures shall, 
to the extent practicable, promote the safety of human life at sea. 
Section 3.2.7.3 of the analysis considered safety issues and 
specifically addressed the types of factors that would be considered in 
determining whether to deploy an observer on a vessel in the vessel 
selection pool (defined in the 2013 Observer Program Annual Deployment 
Plan as fixed gear vessels greater than or equal to 40 ft. LOA and less 
than 57.5 ft. LOA). Vessels in the vessel selection pool are the 
participants in the fixed gear fleet referred to by the commenter. The 
analysis determined that the more flexible contracting model allows 
NMFS to adequately consider safety issues when deploying observers on 
vessels that may be difficult or dangerous to work on, recognizing that 
there are cases in which a vessel's deck layout or operations may cause 
safety and logistical concerns due to lack of suitable workspace. The 
analysis lists the key factors NMFS would consider in determining 
whether to place an observer on a vessel in the vessel selection pool. 
Key factors include, but are not limited to, the amount of available 
deckspace, the size of the crew, the weather at the time of deployment, 
and the adequacy of berthing space.
    There are many ways in which a vessel can adapt to safely 
accommodate an observer. However, if a vessel operator believes that 
the vessel is unsafe to carry an observer, he or she may identify their 
reasons and request that NMFS release them from carrying an observer. 
Requests for release from observer coverage would prompt a vessel 
inspection by NMFS to assess the safety and/or logistical concerns. For 
a more complete discussion of releasing a vessel from observer 
coverage, please see the subheading below called ``Release from 
Observer Coverage.''
    NMFS acknowledges that there is an increased risk to observers due 
to increased observer days at sea in Alaska and that sea-going vessels 
engaged in fishing have inherent known workplace risks. Recognizing 
that some risks to observers may be exacerbated on smaller vessels, 
NMFS is requiring the observer provider to place only experienced 
observers on vessels in the vessel selection pool. Specifically, 
section C.2.2.2.1 of the ``Solicitation Request for Proposal AB133F-12-
RP-0020'' states that ``* * * observers deployed to vessels in the 
vessel selection pool must have prior experience as an observer in the 
Groundfish Observer Program and must be in good standing with the 
Groundfish Observer Program; this requirement doesn't apply to 
observers going to vessels in the trip selection pool.'' A copy of the 
entire solicitation is available online at https://www.fbo.gov/index?s=opportunity&mode=form&id=dc897646db9de61f36682e5d32140c76&tab=core&_cview=1
    Comment 13: Vessels less than 60 ft. LOA were exempted from 
previous human observer programs, in part because of safety concerns.
    Response: NMFS disagrees. The 1990 Observer Plan first established 
the length-based category of vessels which would not be requested to 
carry an observer (i.e., vessels less than 60 ft. LOA). Limiting 
observer coverage to vessels 60 ft. LOA or greater was based on a 
determination that the information that would be received from 
observers on these vessels would not justify the costs imposed on 
vessel operators or the costs that would be imposed on NMFS. This 
determination was based on an assessment of the costs of deploying an 
observer using the only available observer procurement method at that 
time, which required vessels to contract directly with observer 
providers to meet coverage levels fixed in regulation. The analysis 
developed for, and the proposed rules to implement, Amendment 18 to the 
GOA FMP (54 FR 50386; December 6, 1989) and Amendment 13 to the BSAI 
FMP (55 FR 4839; February 12, 1990) that first established length-based 
observer requirements specifically assumed that, at a minimum, all 
vessels greater than 50 ft. LOA would be able to accommodate an 
observer.
    Comment 14: Various sections of the MSA require consideration of 
safety (e.g., National Standard 10, section 303, section 313). The 
placement of observers on board vessels causes safety issues by 
replacing experienced crew members and by interfering with vessel 
operations and thereby violating National Standard 10. The National 
Standard 10 guidelines (Sec.  600.355) identify ways to reduce adverse 
safety impacts, including ``[a]voiding management measures that require 
hazardous at-sea inspections or enforcement if other comparable 
enforcement could be accomplished as effectively'' (50 CFR 
600.355(e)(5)).
    Response: NMFS disagrees. National Standard 10 states that 
conservation and management measures shall, to the extent practicable, 
promote the safety of human life at sea (Section 303(a)(10) of the 
MSA). Neither National Standard 10 nor the guidelines preclude the 
placement of observers, and NMFS does not agree that the placement of 
observers on board vessels causes safety issues, as there are many ways 
in which a vessel can adapt to safely accommodate an observer.
    Vessels that carry observers are required to have a valid U.S. 
Coast Guard (USCG) Commercial Fishing Vessel Safety Decal, which 
ensures the vessel is current and in compliance with USCG safety 
equipment requirements. Compliance with the safety requirements is not 
a new requirement of this rule, as all vessels, with few exceptions, 
must comply with the USCG requirements, regardless of whether they 
carry an observer (see Section 3.2.8 of the analysis). Observers 
inspect the vessel when they board to ensure that the required safety 
equipment is in place, and they will not remain on board a vessel where 
the decal is absent or the equipment is no longer present or current.
    During and after a trip on a vessel, observers will report safety 
concerns to NMFS and the USCG and will document any marine casualties 
that have occurred, following the USCG definition of marine casualty. 
NMFS' experience through observer programs has been that the presence 
of an observer has improved safety awareness within the observed 
fleets, increased the issuance of USCG safety inspections, improved 
reporting of marine casualties, and rarely, but importantly, brought 
manifestly unsafe vessel conditions to the attention of USCG personnel 
who were authorized to take corrective action. Additionally, observers 
board vessels with their own safety gear, including a currently 
inspected survival suit and personal locator beacon.
    Comment 15: The proposed rule may reduce safety if vessels in the 
trip selection pool are prompted to fish marginal or un-safe weather to 
avoid losing their observer for that trip to another vessel. This 
impact on safety is contrary to previous Council actions and National 
Standard 10 of the MSA.
    Response: The selection for observer coverage does not compel an 
operator to fish in bad weather. NMFS expects that vessel operators 
will continue to make prudent decisions regarding fishing in weather 
regardless of the observer coverage requirement.

[[Page 70068]]

    NMFS recognizes that weather may delay fishing trips and factored 
that into the design of the deployment system balanced with the 
knowledge that some operators will attempt to avoid meeting the 
required coverage. For vessels in the trip selection pool, if the 
operator has complied with the notification requirements at Sec.  
679.51(a)(1), this final rule at Sec.  679.51(a)(1)(ii)(C)(4) provides 
a 48-hour window for delaying a trip from scheduled departure. If a 
departure must be delayed beyond 48 hours, that trip could be cancelled 
in coordination with the observer provider and an observer will be 
required on that vessel's next trip.
    Comment 16: Small boat operations in the GOA and BSAI are 
constrained by weather. During the spring and fall, halibut vessels 
often wait in port for 7 to 10 days for good weather and often leave on 
short notice to take advantage of favorable weather. Failure to take 
advantage of a weather window can be costly. Additionally, flights to 
remote ports in Alaska are routinely canceled and delayed due to poor 
weather conditions. As such, deploying observers on vessels in the 
vessel selection pool will be extremely problematic and may cause 
costly interruptions to fishing operations. The proposed rule is silent 
relative to accommodating the small boat fleet on this issue.
    Response: NMFS recognizes that weather delays in fishing do occur, 
and the Council and NMFS considered this in the design of the program 
and in the proposed and final rule. NMFS expects that small boat 
operations will be more susceptible to weather delays, and that there 
will be a subsequent cost to the overall program as a result. NMFS also 
agrees that flights to ports in Alaska can be challenging due to 
weather. This challenge is most acute in remote areas. However, NMFS 
does need data from remote areas and small vessels and will attempt to 
observe remote locations when a vessel or trip operating out of a 
remote area is selected.
    The proposed rule and final rule establish a process to address 
small vessel weather delays. Vessels in the vessel selection pool that 
are selected for observer coverage will coordinate with the observer 
provider to ensure that observers are available when and where vessels 
are departing for fishing. The process of coordinating directly with 
the observer provider will enable flexibility for vessels and observer 
providers to work together regarding weather delays. This process is 
similar to the process that vessels in the full coverage category 
currently undergo with observer providers. Based on that experience, 
NMFS does not anticipate costly interruptions to fishing operations or 
releases from observer requirements due to weather delays. If no 
observer is available, the observer provider will coordinate with NMFS 
Fisheries Monitoring and Analysis Division. NMFS Fisheries Monitoring 
and Analysis Division may release the vessel from the observer coverage 
requirement for that trip under Sec.  679.51(a)(1)(iii) of this final 
rule.

Standardized Bycatch Reporting

    Comment 17: Amendments 86/76, the proposed rule, and the analysis 
are not consistent with the requirements of section 303(a)(11) of the 
MSA that the FMPs establish a standardized bycatch reporting 
methodology.
    Response: NMFS disagrees. The standardized reporting methodology is 
unaffected by this action and is outside the scope of this rulemaking. 
MSA section 303(a)(11) requires that an FMP establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery. Bycatch in the BSAI and GOA groundfish 
fisheries is estimated through the Catch Accounting System (CAS), which 
is described in Section 3.2.4.2 of the BSAI FMP and the GOA FMP. The 
CAS is the NMFS Alaska Region's standardized bycatch reporting 
methodology. The methods NMFS uses to estimate bycatch through the CAS 
are further described in ``Cahalan, J., J. Mondragon, and J. Gasper. 
2010. Catch Sampling and Estimation in the Federal Groundfish Fisheries 
Off Alaska. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-AFSC-205, 42 p.'' 
This publication is available on the NMFS Alaska Region's Web site 
(http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-205.pdf).
    In addition, NMFS' estimates of bycatch in the groundfish fisheries 
managed under the FMPs are reported on the NMFS Alaska Region's Web 
site (http://www.alaskafisheries.noaa.gov/sustainablefisheries/catchstats.htm) and in periodic reports such as: ``National Marine 
Fisheries Service. 2011. U.S. National Bycatch Report. W. A. Karp, L. 
L. Desfosse, S. G. Brooke, Editors. U.S. Dep. Commer., NOAA Tech. Memo. 
NMFS-F/SPO-117E, 508 p.'' (This publication is available online: http://www.nmfs.noaa.gov/by_catch/bycatch_nationalreport.htm).
    As described in the FMPs, the CAS uses observer data and data 
submitted by the fishing industry to estimate prohibited species catch 
and at-sea discards, which are two components of bycatch. The use of 
observer data is further described in Section 3.2.4.1 of the BSAI FMP 
and the GOA FMP, which were amended by Amendments 86/76 to reflect 
restructuring of the observer program. The purpose of Amendments 86/76 
is to improve the quality of data collected by observers in the 
groundfish and halibut fisheries off Alaska. Observer data are the 
primary source of information used by NMFS to estimate bycatch. 
Therefore, Amendments 86/76 and this final rule improve NMFS' ability 
to estimate bycatch, strengthen the standardized bycatch reporting 
methodology, and support the intent of section 303(a)(11) of the MSA.
    Comment 18: A poorly designed standardized bycatch reporting 
methodology could result in significant environmental harm by failing 
to identify bycatch issues and the implications for at-risk populations 
such as halibut and Chinook salmon. The proposed rule does not 
adequately address these concerns, and the potential for significant 
environmental harm must be considered in an Environmental Impact 
Statement (EIS) rather than an EA.
    Response: NMFS agrees that the standardized bycatch reporting 
methodology is integral to identifying bycatch issues and implications 
of groundfish fisheries for at-risk populations and has spent 
considerable effort in developing the methodology. However, as 
explained in the response to Comment 17, the standardized bycatch 
reporting methodology for the groundfish fisheries off Alaska is a 
separate matter from this observer restructuring action. Amendments 86/
76, as implemented by this final rule, reduce bias and improve the 
quality of data collected by observers in the groundfish and halibut 
fisheries off Alaska. NMFS will use these data in the standardized 
bycatch reporting methodology to improve bycatch estimates.
    NMFS prepared a FONSI (see ADDRESSES) for restructuring the 
Observer Program that describes in more detail why NMFS determined that 
the action will not significantly impact the quality of the human 
environment. Based on this FONSI, an environmental assessment is the 
appropriate NEPA analysis for this action and preparation of an EIS is 
not warranted.
    Comment 19: Bycatch reporting methodologies under National Standard 
9 of the MSA require a detailed analysis of data collection needs from 
different fisheries. However, the analysis exhibits a ``one-sized-fits-
all approach'' to bycatch reporting and does not demonstrate that NMFS 
took a hard look at specific fishery sectors. NMFS should

[[Page 70069]]

provide further supporting analysis to discuss and compare data gaps 
and uncertainties from each fishery, define specific research 
objectives, and then assess what monitoring methods are most 
appropriate. If NMFS had adequately analyzed and prepared a bycatch 
assessment methodology, the inescapable conclusion would be that an EM 
program would best achieve data collection objectives for the small 
boat fixed gear fleet. The failure to consider fishery-specific needs 
is a major flaw of the proposed rule and its supporting analysis.
    Response: NMFS disagrees. NMFS has conducted a detailed analysis of 
bycatch reporting methodologies, as described in response to Comment 
17. The restructured Observer Program will improve the data collected 
and the analysis prepared for this action considers the fishery-
specific data collection needs. Further consideration of fishery-
specific data collection needs will also be addressed each year in the 
annual deployment plan.
    NMFS disagrees that EM in its current form would best achieve data 
collection objectives for the small boat fixed gear fleet. NMFS is 
committed to continuing to develop EM in an effort to advance 
technological tools available to collect data about the groundfish and 
halibut fisheries. For a more complete discussion of EM, please see the 
subheading below titled ``Electronic Monitoring.''
    Comment 20: Develop and implement a method to obtain statistically 
reliable catch and bycatch estimates, particularly the bias in catch 
and bycatch estimates that would result from not observing the exempted 
vessels and gear types (i.e., those using jig gear or those less than 
40 ft. LOA using pot or hook-and-line gear).
    Response: The scope of this action is limited to the funding and 
deployment of observers. The methods through which these data are used 
to make estimates are not part of Amendments 86/76 or this final rule. 
Therefore, this action does not prescribe how NMFS uses observer 
information to estimate bycatch, such as the use of specific 
statistical estimators, as discussed in the response to Comment 17.
    However, NMFS agrees that it is important to understand bias 
associated with not selecting particular types of vessels in the 
partial coverage stratum. Chapter 3 and Appendix 10 of the analysis, 
and the 2013 Observer Program Annual Deployment Plan, describe the 
rationale for designating vessels in the partial coverage category that 
will not be observed in the initial year(s) of the program (vessels 
less that 40 ft LOA). The designations would likely change over time 
and bias would be one of the elements that NMFS will likely evaluate to 
make these decisions in the future. The analysis also provides a 
detailed description of bias in Chapter 3 and Appendix 8, and describes 
how NMFS will deploy observers to improve the data on fishing 
operation. These changes in observer deployment are intended to reduce 
possible sampling bias and thereby represent an important step to 
provide the best available scientific information to managers.

Annual Deployment Plan

    Comment 21: The Council should have an opportunity to review and 
encourage consideration of its priorities for observer coverage through 
the annual deployment plan. The Council should not be constrained to 
only influencing the observer coverage through subsequent rulemaking as 
implied in the proposed rule preamble.
    Response: As described in the Council's motion and the preamble to 
the proposed rule, each year NMFS will prepare a report that reviews 
the progress of the Observer Program, describes the financial aspects 
of the program, and includes a plan for observer coverage rates for the 
partial coverage category for the upcoming year (the annual deployment 
plan). The Council will review the annual deployment plan, monitor the 
program's progress, provide input to the annual deployment plan, and 
recommend appropriate adjustments to the program that would be 
implemented through rulemaking. The Council may also request that the 
Observer Advisory Committee (OAC), Groundfish and Crab Plan Teams, and 
Scientific and Statistical Committee review and comment on the annual 
deployment plan.
    NMFS will release the annual deployment plan by September 1 of each 
year so that it is available prior to the September meetings of the 
Groundfish and Crab Plan Teams. NMFS will then present the annual 
deployment plan to the Council at its October meeting. Starting in 
2013, NMFS also will prepare an annual report that analyzes the prior 
year's annual deployment plan and present that report at the June 
Council meeting. The time between June and October will allow the 
Council, public, and NMFS the opportunity to evaluate deployment 
methods for the upcoming year using information from the prior year's 
deployment.
    Some aspects of observer deployment can be adjusted through the 
annual deployment plan, including the assignment of vessels to the 
selection pools or the allocation strategy used to deploy observers in 
the partial coverage category. To adjust the annual deployment plan, 
NMFS will analyze the scientific data collected and identify areas 
where improvements are needed to (1) collect the data necessary to 
manage the groundfish and halibut fisheries, (2) maintain the 
scientific goals of unbiased data collection, and (3) accomplish the 
most effective and efficient use of the funds collected through the 
observer fee. In addition, the Council may provide NMFS input on the 
priority of particular data collection goals and NMFS will consider 
adjustments to observer deployment that achieve those goals.
    Some adjustments to observer coverage will require regulatory 
amendments. For example, moving vessels or processors from the partial 
coverage category to the full coverage category, or vice versa, will 
require a regulatory amendment because the assignment of vessels to the 
full coverage category is specified in regulation based on criteria 
developed by the Council. The assignment of vessels or processors to a 
particular coverage category has economic impacts on the vessel owner 
or processor industry members, on the amount of fees available to fund 
the partial coverage category, and on the contract NMFS has established 
for observer deployment. The rulemaking process allows for these 
impacts to be analyzed and for the public to comment prior to 
implementation of a change in coverage categories.
    Comment 22: We support the approach described in the proposed rule 
for vetting the annual deployment plan. The Council would have an 
opportunity to provide input on the annual report and the annual 
deployment plan, but would not formally approve or disapprove it.
    Response: NMFS acknowledges this comment.
    Comment 23: NMFS should establish observer coverage performance 
standards based on (1) precision targets for protected species catch 
estimates, which are no lower than a coefficient of variation (CV) of 
30 percent; and (2) desired strata variances (CVs), rather than uniform 
coverage prescriptions that are driven by NMFS' budget. Budget 
constraints may limit NMFS' ability to meet its performance standards, 
but NMFS should be mindful of those standards and establish a 
prioritization process to achieve them even when funding is limited.
    Response: NMFS agrees that performance standards, such as the

[[Page 70070]]

acceptable amount of error (precision), represent an important and 
necessary step towards a fully optimized deployment of observers and is 
an appropriate goal. However, performance standards are not part of 
this final rule and are not required to implement a restructured 
Observer Program or achieve the purpose and need for this action.
    However, NMFS will be able to use the information collected through 
this restructured Observer Program to develop performance standards 
after examining the data resulting from observer deployment under this 
final rule. As specified in Section 3.2.10 of the analysis, there are 
three obstacles towards implementing a fully optimized Observer 
Program: A lack of prior data, the definition of adequately ranked 
(weighted) performance standards, and the prioritization of objectives. 
The analysis also recognized the fact that the level of sampling 
necessary to generate a desired level of precision in an estimate 
varied widely depending on (among other things) the rarity of the item 
in question. Until NMFS has defined performance standards, NMFS plans 
to assign observers with equal probability to vessels or trips within a 
pool. This gives NMFS the ability to estimate the ``observer 
deployment'' effect, increase the accuracy of catch estimates, and 
increase the effectiveness of observer deployment and catch estimation 
processes. Please see the 2013 Observer Program Annual Deployment Plan 
for more information on this issue (see ADDRESSES).
    Comment 24: The Council recently passed a motion to require 100 
percent observer coverage to improve estimates of Tanner crab 
(Chionoecetes bairdi) bycatch in two areas of the GOA. Although the GOA 
catcher vessel trawl fleet is in the partial observer coverage 
category, NMFS must develop a method to have higher observer coverage 
in these areas.
    Response: In October 2010 and April 2012, the Council recommended 
Amendment 89 to the GOA FMP. NMFS is preparing the notice of 
availability and proposed rule for that action. If approved, Amendment 
89 would close an area northeast of Kodiak Island to nonpelagic trawl 
gear and require gear modifications for nonpelagic trawl gear to reduce 
bycatch of Tanner crab in the GOA.
    The Council's October 2010 motion on Amendment 89 also included a 
recommendation to increase observer coverage to 100 percent for vessels 
using pot and nonpelagic trawl gear in areas of the Central GOA 
identified as important Tanner crab habitat. The Council did not know 
at the time it passed its final motions on Amendment 89 and this action 
which of the Council's recommendations might be approved and 
implemented first. The Council included the increased observer coverage 
requirements in Amendment 89 in case a restructured Observer Program 
was not approved.
    The Council did not include 100 percent observer coverage 
requirements for special management areas in its recommendations for 
restructuring the Observer Program, recognizing that NMFS would make 
decisions about the deployment of observers in the partial coverage 
category through the annual deployment plan.
    Therefore, this final rule does not establish observer coverage 
requirements for special management areas, like the areas identified in 
Amendment 89, and it does not direct that these areas be established in 
the annual deployment plan. Rather, this final rule provides NMFS with 
the ability to use a deployment plan to address deployment bias and 
therefore improve the underlying data used for estimating bycatch and 
discards of all species in the groundfish and halibut fisheries. 
Addressing this source of bias will improve the accuracy of data used 
to estimate Tanner crab bycatch in the GOA groundfish fisheries as a 
whole. In the future, the Council can request an analysis of the data 
used to estimate Tanner crab bycatch in the GOA groundfish fisheries. 
Based on that analysis, the Council could recommend adjustments to the 
deployment plan to improve these estimates.
    Comment 25: Gathering the best available scientific information to 
manage all North Pacific fisheries should be the goal of the annual 
deployment plan based on the available funds. Monitoring objectives 
should be the nexus for the annual deployment plan and not a means of 
hassling a particular gear type or particular fishery within a 
geographic area due to the latest political advocacy or media rhetoric. 
The ability to change the deployment plan annually allows for 
adjustments based on observer data needs if warranted.
    Response: NMFS acknowledges this comment.

Deploying Observers on Vessels in the Partial Coverage Category

    Comment 26: We support the proposed approach that NMFS would auto-
enter all partial coverage category vessels that are designated on an 
Federal Fisheries Permit (FFP) and all catcher vessels that are not 
designated on an FFP but that land sablefish IFQ or halibut IFQ or 
halibut Community Development Quota (CDQ) in a fishing year into ODDS. 
Since the vast majority of fishery participants are the same each year, 
the auto-selection removes the burden that everyone must register each 
year and narrows the registration focus to new participants only. The 
other positive for this approach is that NMFS will notify, in writing, 
operators of vessels that are auto entered into ODDS for the upcoming 
fishing year to indicate the applicable selection pool for his or her 
vessel (trip or vessel) and instructions for communicating with the 
Observer Program for the upcoming year. Because NMFS is selecting the 
participants and communicating directly with those selected, this is a 
great method for outreach to fishing vessels.
    Response: NMFS acknowledges this comment. Note that, in the 
proposed rule, NMFS called this system the ``Observer Declaration and 
Deployment System (Deployment System).'' In this final rule, NMFS has 
changed the name of the system to the ``Observer Declare and Deploy 
System (ODDS).''
    Also, note that NMFS is removing the requirement for new 
participants to register themselves in ODDS in this final rule; see 
also response to Comment 27.
    Comment 27: It is not feasible to require a vessel owner who has 
not previously fished halibut or sablefish IFQ to enter his or her 
information into ODDS at least 30 days prior to embarking on a fishing 
trip. Under the proposed regulations, a vessel operator would be 
constrained to using a vessel already entered into ODDS if his or her 
vessel breaks down close to the end of the halibut season and he or she 
has remaining quota to harvest.
    Response: NMFS agrees and removes the proposed requirements at 
Sec.  679.51(a)(1)(ii)(B) and (C), and Sec.  679.7(g)(7) from this 
final rule. The proposed regulations at Sec.  679.51(a)(1)(ii)(B) and 
(C) would have required holders of FFPs issued after December 1 and 
operators of vessels fishing for IFQ or CDQ on vessels that had not 
landed groundfish or halibut in the previous year to enter their vessel 
information into ODDS within 30 days of issuance of a new FFP or within 
30 days of embarking on his or her first fishing trip of the year. The 
proposed regulations at Sec.  679.7(g)(7) would have prohibited a 
person from embarking on a fishing trip without registering with ODDS.
    NMFS expects new entrants each year to be a relatively small group. 
In addition, the goal of the proposed rule was to have information 
about new

[[Page 70071]]

entrants in the partial observer coverage category entered into ODDS so 
that these vessels are considered for observer coverage as soon as 
possible. NMFS can identify these new entrants relatively quickly by 
monitoring the issuance of new FFPs and landings throughout the year 
and entering vessel information into ODDS as soon as the new entrants 
are identified. With these revisions to the final rule, NMFS will be 
making the initial registration of all vessels into ODDS based on 
information on FFPs or activity of vessels fishing for IFQ or CDQ, and 
no vessel owner or operator will be required to complete the initial 
registration of their vessel in ODDS. In addition, by NMFS undertaking 
the initial registration task, it may result in faster and more 
efficient entry of a new entrant's vessel information into ODDS.
    Once NMFS enters a new entrant into ODDS, NMFS will send the new 
entrant a letter with the vessel's assigned selection pool. For a 
vessel in the trip selection pool, the letter will provide instructions 
for registering fishing trips in ODDS. For a vessel in the vessel 
selection pool, the letter will notify the new entrant if the vessel 
has been selected for observer coverage.
    Comment 28: NMFS should monitor how permit holders designate their 
vessels in ODDS since permit holders will take measures to avoid being 
in the full coverage category. NMFS should include information on any 
avoidance measures that are detected in the annual report.
    Response: NMFS does not anticipate significant problems with permit 
holders incorrectly designating catcher/processors as catcher vessels 
on their FFPs to avoid observer coverage. NMFS can verify vessel 
operational information through data collected about catch and 
production and from other permits, such as License Limitation Program 
(LLP) permits and IFQ permits. NMFS will prepare and present the annual 
report for the Council on the performance of the restructured Observer 
Program in June of each year. The report will include any documented 
incidents of vessel operators taking actions to avoid observer coverage 
requirements.
    Comment 29: Placing observers on vessels in the partial coverage 
category at the proposed rate will be logistically impossible and more 
expensive than the funding will cover.
    Response: NMFS has not proposed a specific rate in this final rule 
at which the fishing fleet in the partial coverage category will be 
covered. As explained in Section 3.2 of the analysis, NMFS will deploy 
observers in the partial coverage category at a rate that available 
funding will allow. Each year, NMFS will determine the deployment rate 
for observers in this category in the annual deployment plan. NMFS 
expects that the observation of the fleet will be expensive and 
logistically challenging, but possible. The Observer Program has nearly 
three decades of experience deploying observers in remote locations 
throughout Alaska.
    This final rule establishes several provisions that allow NMFS to 
accommodate specific logistical challenges that are likely to occur, as 
explained in the section below called ``Release From Observer 
Coverage.'' Costs of deploying observers are discussed in the section 
below called ``Observer Fees and Costs.''
    Comment 30: Observers should be stationed in strategic communities 
throughout Alaska. This approach would greatly reduce program costs by 
eliminating unnecessary and expensive travel from deployment centers.
    Response: NMFS will make every effort to have observers available 
for trips selected for observer coverage and to work with vessel 
operators to minimize the disruption to vessel activities. NMFS agrees 
that strategic placement of observers in particular ports in advance of 
known fishing effort will more efficiently deploy observers with 
available funds.
    Comment 31: It is not a good use of limited funds to place an 
observer in small, remote processing plants that take low volumes of 
groundfish and infrequent deliveries.
    Response: As described in the 2013 Observer Program Annual 
Deployment Plan and the contract with the observer provider, NMFS 
determined that the priority for observer coverage in shoreside 
processing plants in the partial coverage category in 2013 is to 
collect genetic samples from salmon bycatch in pollock deliveries to 
plants in Kodiak. NMFS and the contracted observer provider will 
coordinate with the Kodiak plants about this observer coverage. NMFS 
does not intend to place observers in any other shoreside processing 
plant in the partial observer coverage category in 2013. In future 
years, NMFS, in consultation with the Council, will assess the 
priorities for observer coverage and available funds to determine if 
observers should be deployed to other processing plants in the partial 
coverage category.
    Comment 32: To maximize efficiency and reduce costs for deploying 
observers, NMFS should allow observers to observe vessels in the 
partial and full coverage categories without having to be debriefed 
between assignments in the different coverage categories.
    Response: NMFS disagrees. Section 3.2 of the analysis identified 
the potential for conflicts in interactions between the rules 
implemented to manage observers in the full coverage category and the 
contracts employed to manage observers in the partial coverage 
category. NMFS intends to ensure the financial integrity of the partial 
and full coverage categories by managing them separately so that such 
that costs are not transferred inappropriately between the two. 
Therefore, section C.3.3.14 of the ``Solicitation Request for Proposal 
AB133F-12-RP-0020'' states that ``[t]he Contractor must not: * * *. (d) 
assign an observer to vessels in the partial-coverage and full-coverage 
sectors within the same deployment.'' This provision of the contract 
will avoid a broad suite of potential conflicting overlaps between the 
two coverage categories as described in Section 3.2 of the analysis, 
while maintaining flexibility for observers and industry between 
deployments. A copy of the entire solicitation is available online at 
https://www.fbo.gov/index?s=opportunity&mode=form&id=dc897646db9de61f36682e5d32140c76&tab=core&_cview=1.

Vessel and Trip Selection Pools

    Comment 33: NMFS proposes that vessels in the vessel selection 
pool, which have never carried observers, will initially be required to 
carry an observer for all trips in a 3-month period. Vessels in the 
trip selection pool that have a history of successfully accommodating 
human observers have a less burdensome coverage level. NMFS notes that 
the vessel selection pool was developed to reduce the volume of trip 
notifications received by ODDS. No further explanation is given for the 
more burdensome observer coverage requirements for operations in the 
vessel selection pool. This is evidence that NMFS has not considered 
how operators of small vessels will notify NMFS of their trips or the 
cost effectiveness of deploying human observers on these vessels.
    Response: NMFS disagrees that the observer coverage requirements 
are more burdensome for vessels in the vessel selection pool. Section 
3.2.7.2 in the analysis outlines the rationale for distinguishing 
between trip selection, vessel selection, and no selection. NMFS notes 
that most small fixed gear vessels are in the ``no selection'' pool in 
the initial year of the restructured program, as detailed in the 2013 
Observer Program Annual Deployment

[[Page 70072]]

Plan. Based on the relative proportion of catch and fishing trips 
conducted by vessels less than 40 ft LOA, NMFS is not likely to deploy 
observers on vessels less that 40 ft LOA in the near future. NMFS would 
only expand coverage to vessels less than 40 ft. LOA if data collection 
needs warrant the deploying observers on those vessels. NMFS would make 
this decision in conjunction with the Council through the annual 
deployment plan process and after careful consideration of economic 
impacts and safety-related issues as well as public comments.
    Vessels in the vessel selection pool are selected for observer 
coverage for all trips that occur during a specific time period. 
Therefore, these vessels are relieved from the potential of being 
selected for observer coverage on a trip by trip basis. The preamble to 
the proposed rule described the duration of coverage for vessels in the 
vessel selection pool as 3 months. The initial duration of coverage was 
informed by industry members who commented through the Council's OAC 
that the duration needed to be long enough to prevent operators from 
avoiding coverage by simply not fishing for the period selected. 
However, comments on the proposed rule, the Council's OAC feedback, and 
Council recommendations on the 2013 Observer Program Annual Deployment 
Plan indicated that in the initial year of the program this duration of 
coverage could be burdensome for vessels that have never had observer 
coverage. In response, NMFS has adjusted the duration of coverage in 
the vessel selection pool to 2 months. Note that the duration of 
coverage is set through the annual deployment plan process and is not 
part of the implementing regulations. Therefore, no changes were 
necessary in the final rule.
    In the vessel selection pool, NMFS will notify by letter owners and 
operators of vessels that have been selected for observer coverage for 
all groundfish and halibut trips during a specified period of time. 
This design allows more time for coordination between the vessel owner 
or operator and the observer provider to ensure that an observer is 
available for all trips in the time period selected for observer 
coverage. NMFS built flexibility into the process for vessels selected 
for coverage in the vessel selection pool by providing instructions 
through ODDS for operators to coordinate with observer providers for 
required observer coverage rather than having the details of this 
process specified in regulation. This approach is similar to the 
process currently used for observer deployment in the full coverage 
category, where vessel operators coordinate directly with observer 
providers to obtain observers to meet their required coverage 
requirements without regulatory notification time frames.
    Operators in the vessel selection pool that are not selected for 
observer coverage will not be required to notify NMFS prior to each 
trip. In other words, for the initial year, the operators not selected 
will know they can fish for 2 months without an observer or 
notification requirements. Operators in the trip selection pool, on the 
other hand, are required to notify NMFS of each trip and they may be 
selected for observer coverage for any trip.
    Comment 34: The proposed rule lacks information about the 
responsibilities of operators in the vessel selection pool to obtain an 
observer, which indicates that NMFS has not adequately considered the 
operational aspects of placing observers on the currently unobserved 
fleet.
    Response: The proposed rule described the responsibilities for 
operators of the vessel selection pool, specifically that (1) NMFS 
would notify vessel owners or operators by mail if they were selected 
for observer coverage, (2) ODDS would provide instructions for 
operators of vessels selected for observer coverage to contact a NMFS-
contracted observer provider to discuss logistics for obtaining 
observer coverage, and (3) regulations at Sec.  679.51(a)(1)(ii)(B) 
require the owner or operator of a vessel selected for observer 
coverage to follow all instructions set forth by ODDS. Owners and 
operators of vessels in the trip selection pool are responsible for 
logging each trip individually and are notified through ODDS if a trip 
is selected for observer coverage. More detail is included in the 
regulations for specific steps and time limits associated with logging 
fishing trips.
    As described in the response to Comment 33, NMFS will notify by 
letter owners and operators of vessels in the vessel selection pool 
that have been selected for observer coverage and provide instructions 
for contacting the observer provider. This process allows more time for 
coordination between the vessel owner or operator and the observer 
provider to ensure that an observer is available for all trips in the 
time period selected for observer coverage.
    Comment 35: The regulations governing observer providers at Sec.  
679.52(b)(6) allow the provider to lodge an observer on the vessel 
prior to the vessel's initial departure from port and for 24 hours 
after return if at least one member of the vessel's crew is aboard. It 
is not clear how this regulation applies to vessels in the vessel 
selection pool or if NMFS' observer provider is authorized to require 
that the vessel operator remain aboard the vessel with the observer. 
Council discussion indicated that the observer provider would provide 
accommodation for observers before and after observed fishing trips.
    Response: Regulations at Sec.  679.52 of this final rule apply to 
observer providers for vessels requiring full coverage. This section 
includes Sec.  679.52(b)(6)(iv), which requires that ``[d]uring all 
periods an observer is housed on a vessel, the observer provider must 
ensure that the vessel operator or at least one crew member is 
aboard.'' NMFS has included a similar provision in its contract with 
the observer provider providing observers to vessels in the partial 
observer coverage category. Section C.3.3.4 of the ``Solicitation 
Request for Proposal AB133F-12-RP-0020'' states that the ``Contractor 
is responsible for all travel arrangements and expenses, appropriate 
lodging, and all expenses associated with deploying Observers to 
assigned vessels.'' Further, the solicitation states that the 
``Contractor can house an Observer on a vessel to which he or she is 
assigned prior to departure or disembarkation for a period not to 
exceed twenty-four hours. During all periods an observer is housed on a 
vessel, the Contractor must ensure that the vessel operator or at least 
one crew member is aboard.'' This contract provision does not give the 
contractor the authority to require a vessel operator to house an 
observer on board a vessel. It only provides the conditions that must 
be met if an observer provider and vessel operator choose to house an 
observer on board a vessel. A copy of the entire solicitation is 
available online at https://www.fbo.gov/index?s=opportunity&mode=form&id=dc897646db9de61f36682e5d32140c76&tab=core&_cview=1.
    Comment 36: Small vessels can reasonably take observers and should 
be required to do so.
    Response: NMFS acknowledges this comment.
    Comment 37: The presence of an observer on a small vessel will 
bring about changes on vessel operations. The small boat fleet has 
minimal accommodations for skipper and crew. Where vessels are family 
operations, the presence of an observer will be intrusive. In 
consequence, vessel operators are likely to take shorter trips, fish 
closer to town, operate in marginal weather, and make other operational

[[Page 70073]]

changes to mitigate the observer's impact. These operational changes 
have been identified in public testimony provided to the Council during 
the development of Amendments 86/76. Vessels with observers on board 
will not operate in ways typical of other, similar, vessels that are 
not carrying observers, and thus observer reports will provide a biased 
picture of overall fleet activity, and will affect the statistical 
reliability of the data. This should be discussed in the analysis.
    Response: NMFS acknowledges that the presence of an observer can be 
intrusive on any vessel and would not place an observer on board 
without a need for information necessary to support fisheries 
management. NMFS cannot control a vessel operator's behavior while a 
vessel is observed, but NMFS can monitor and evaluate the observed 
vessel and fleet activity to assess whether observations are 
representative of the fleet.
    NMFS considered this potential ``observer effect'' in the analysis 
(Section 3.2.7.1 and Appendix 8) and in the 2013 Observer Program 
Annual Deployment Plan. In the 2013 Observer Program Annual Deployment 
Plan, NMFS selected the initial 3-month coverage period in the vessel 
selection pool as a way to mitigate the potential for the ``observer 
effect.'' In essence, the period of observation is long enough such 
that abnormal fishing when observed would not be practical.
    A second solution to the potential ``observer effect'' noted by 
other commenters is to require 100 percent observer coverage on all 
vessels. NMFS disagrees. One hundred percent observer coverage on all 
vessels is not necessary to achieve the fishery management needs and 
would be costly and highly intrusive for small vessels.
    Comment 38: NMFS should consider expanding the vessel selection 
pool to larger vessels to ease logistical issues with trip selection. 
This would result in fewer vessels being monitored for longer periods.
    Response: NMFS will determine the size categories for the vessel 
selection and trip selection pools in the annual deployment plan 
process. For the 2013 Observer Program Annual Deployment Plan, NMFS 
analyzed landings data and identified groups of vessels with trips with 
similar total weights that could be identified by characteristics known 
before a trip begins. In addition, the vessel size categories took into 
consideration the nature of fishing trips undertaken by smaller 
vessels, which would place logistical constraints on observer 
deployment. NMFS plans to evaluate each year's coverage and make 
changes as necessary to best meet information needs. NMFS will make 
adjustments to which vessels are in which selection pool each year 
through the annual deployment plan.
    Comment 39: Operators need the ability to register more than one 
trip at a time, especially as many trips can be less than a day in 
duration.
    Response: NMFS agrees and has designed ODDS to allow up to three 
trips to be logged in the system, and up to six trips can be logged if 
they all will occur within a 72 hour period. NMFS demonstrated this 
system to industry members during the June 2012 Council meeting. 
Participants acknowledged that the system was able to effectively 
handle multiple trips. NMFS will monitor ODDS during the first year of 
implementation and can adjust the system in response to user comments.
    Comment 40: This final rule should provide a method for catcher 
vessels that deliver exclusively to tender vessels to obtain observers 
for trips selected for observer coverage. Over 70 percent of the 
Western GOA trawl pollock and fixed gear Pacific cod landings are 
delivered to tenders. Fishery participants need to be able to obtain an 
observer for required coverage without having to transit back to Sand 
Point or King Cove, Alaska, while vessels are in a race for fish; 
otherwise, NMFS will create a set of winners and losers based on 
whether a vessel is selected to carry an observer. One solution would 
be to adopt a common practice used in Kodiak where observers are 
transported to and from the fishing grounds by tenders to be deployed 
on fishing vessels.
    Response: NMFS agrees that requiring catcher vessels that deliver 
to tender vessels to return to port to obtain an observer would 
significantly impact the vessels' operations. Thus, NMFS modified the 
final rule in response to this comment to permit catcher vessels in the 
trip selection pool to remain on the fishing grounds while delivering 
to tender vessels. This modification is not required for vessels in the 
vessel selection pool because those vessels will be required to carry 
an observer on all trips for the required duration. Regulations at 
Sec.  679.51(a)(1)(ii)(C)(5) require that vessels selected for observer 
coverage in the trip selection pool carry an observer for the duration 
of the fishing trip. NMFS amended the definition of a ``fishing trip'' 
at Sec.  679.2 to add a definition specific to catcher vessels 
delivering to tender vessels. NMFS also revised the regulations at 
Sec.  679.51(a)(1) to include a new paragraph that requires a catcher 
vessel to make at least one delivery to a tender vessel to be subject 
to the fishing trip definition for catcher vessels delivering to tender 
vessels. Under this final rule, a fishing trip period would be defined 
as the period from the time the vessel departs from port until the 
vessel returns to port and requires that the catcher vessel make at 
least one delivery to a tender during the fishing trip.
    Comment 41: For the trip selection pool, ODDS needs to allow for 
changes to registered trip departures and times.
    Response: Trip departure information cannot be amended directly in 
ODDS for trips that have been selected for observer coverage. If the 
trip departure times need to be changed, the vessel owner or operator 
must contact the observer provider by email or phone, using the contact 
information provided in ODDS. This is necessary because the observer 
provider will start to make arrangements to get an observer to the 
vessel when they ODDS notifies then that the trip has been selected for 
observer coverage. Thus, changes or cancellation of a trip that has 
been selected for coverage must be coordinated directly with the 
observer provider to avoid unnecessary work and expense for all 
parties.
    Comment 42: Many combination troll and longline vessels harvest 
halibut near the end of a salmon trip. These trips are efficient and 
distribute longline effort away from coastal communities. If these 
vessels are required to carry an observer for the extent of the salmon 
trip, or to return to port to obtain an observer for the halibut 
portion of the trip, fleet costs will be increased substantially. Local 
depletion and conflict with the charter fleet will intensify. These 
costs are not evaluated in the analysis or mitigated in the proposed 
rule.
    Response: This issue was discussed during the development of the 
analysis, at the OAC, and at the Council. NMFS notes that many of the 
vessels at issue are less than 40 ft. LOA; these vessels will not be 
required to have an observer in the first year of the program under the 
2013 Observer Program Annual Deployment Plan. In the 2013 Observer 
Program Annual Deployment Plan, fixed gear vessels greater than or 
equal to 40 ft. LOA and less than 57.5 ft. LOA will be in the vessel 
selection pool, and they may be selected for observer coverage for a 3-
month period. If selected for coverage, the vessel owner or operator 
must notify the observer provider prior to each trip for which the 
vessel will be used to participate in fisheries in the partial observer 
coverage category (directed fishing for groundfish in federally managed 
or parallel fisheries

[[Page 70074]]

or fishing for sablefish IFQ or halibut IFQ or CDQ) in that period.
    NMFS expects that, as under the status quo, some trips will have 
low catch and/or bycatch and some will have high catch and/or bycatch. 
While it may not be the most efficient use of an observer to sample on 
these trips, it is necessary to include all trips in the pool to 
provide a representative sample. The sample design can only be based on 
variables that are known before a trip starts (i.e., whether a person 
decides to set gear for halibut mid-trip cannot be known before the 
trip begins).

Release From Observer Coverage

    Comment 43: In the proposed rule, NMFS described a customized 
coordination process for vessels in the vessel selection pool including 
the ability for operators in the vessel selection pool to indicate 
whether an observer could be accommodated on his or her vessel. The 
proposed rule includes an option for the Observer Program to release 
the vessel from the observer requirement if warranted. A similar option 
should be extended to all vessels in the trip selection pool that are 
new to the Observer Program.
    Response: The final rule at Sec.  679.51(a)(1)(iii) allows the 
Observer Program to release a selected trip or a selected vessel from 
observer coverage on a case by case basis. This provision is unchanged 
from the proposed rule.
    Comment 44: NMFS should have a defined process to release vessels 
from the requirement to carry an observer when observers are not 
available. My crew and I once sat out a fishery due to the inability to 
get an observer. In advance of the fishery we invested a lot of time 
and money gearing up for the fishery. We contacted three observer 
companies about our intent to fish prior to publication of the final 
rule authorizing the fishery. When the rule published, we notified the 
observer companies and none were able to provide us with a qualified 
observer. We chose not to violate the law and sat tied up at the dock 
though we had a license and the season was open.
    Response: The NMFS Fisheries Monitoring and Analysis Division has 
discretion to release a selected trip from observer coverage. If 
observers are unavailable for any trip where observer coverage is 
required, the observer provider will coordinate with NMFS to request 
the release of the trip from the observer coverage requirement.
    Comment 45: The proposed rule says that vessel owners may petition 
NMFS for release from the observer coverage requirement, but it does 
not explain how the waiver process would accommodate different issues 
that might arise. The proposed rule does not indicate whether the 
waiver would be issued at the discretion of NMFS staff or the observer 
provider. NMFS, rather than the observer provider, should decide 
whether to release a selected vessel from the obligation to carry an 
observer. It is unclear what demands the release process will place on 
the vessel operator, or how much time it would take.
    Response: The final rule at Sec.  679.51(a)(1)(iii) authorizes the 
NMFS Fisheries Monitoring and Analysis Division to release a selected 
trip or a selected vessel from observer coverage on a case-by-case 
basis. NMFS would release a vessel from the required coverage only 
where an issue clearly warrants release. NMFS will document the 
decision to release vessels from the required coverage to ensure 
consistency in the exercise of its discretion. NMFS will coordinate 
with any vessel operator who indicates they are unable to accommodate 
an observer to schedule a visit to the vessel to evaluate the operators 
claim. The NMFS Fisheries Monitoring and Analysis Division has 
expertise in evaluating whether a vessel is safe for an observer and 
whether an observer could work effectively on the vessel. NMFS expects 
most vessel operators will be able to comply with the observer 
requirements. NMFS recognizes that many participants in the currently 
unobserved fleet may not want to take an observer, but that is not a 
valid reason for releasing vessels from required coverage. NMFS will 
report on the conditions the agency found warranted release from 
observer coverage and the number of releases it issued in its annual 
report to the Council. This information can help guide the Council and 
NMFS to modify regulations in a subsequent action, if warranted.
    Comment 46: NMFS's proposal to release vessels that are not suited 
to carrying an observer from monitoring requirements is not a solution 
to generating the data NMFS needs. NMFS will not be able to meet the 
monitoring goals of the halibut and sablefish fixed gear sector because 
the majority of the vessels will need to be released from the 
requirement to carry an observer. EM is the solution and releasing 
vessels is not an appropriate alternative.
    Response: NMFS agrees that releasing vessels from observer 
requirements is not a means to generate the data that NMFS needs for 
fisheries management and that excessive use of the authority to release 
vessels could compromise data integrity.
    NMFS expects that vessels selected for observer coverage will adapt 
and accommodate an observer when required. Many of the vessels in the 
halibut and sablefish IFQ sector are of a comparable size and 
configuration to other fixed gear vessels that currently carry 
observers. In addition, NMFS has considerable experience in other 
regions of the United States placing observers on small vessels. The 
National Observer program Web site at http://www.st.nmfs.noaa.gov/st4/nop/ provides links to regional observer programs with examples of 
small boat fleets that have been successfully and routinely observed. 
NMFS's experience is that most vessels are able to accommodate an 
observer when required.
    For NMFS's response to the EM portion of the comment and a more 
complete discussion of EM, please see the section below called 
``Electronic Monitoring.''
    Comment 47: While the proposed trip selection design is 
statistically robust, we have concerns that individual fishing 
operations may be affected if observers cannot be acquired in a timely 
manner for faster paced fisheries such as GOA pollock and GOA and BSAI 
Pacific cod. Vessels still compete in a ``race for fish'' for a portion 
of the available quota in these open-access groundfish fisheries. The 
pollock and Pacific cod fisheries are extremely faced paced and can be 
completed in a matter of days. Any slow down due to observer 
deployments will impact a vessel's ability to maximize profits during 
these short pulse fisheries.
    The suggestion in the proposed rule that a vessel can be released 
from a selected observer trip when an observer provider is unable to 
deploy an observer to the vessel within a day of the intended fishing 
trip departure is totally unacceptable. A vessel should be released 
from observer coverage requirements if an observer is not available by 
the time the vessel is ready to redeploy to the fishing grounds in 
fisheries where participants are racing for a portion of the quotas.
    We recommend a different deployment system than the proposed trip 
call-in method for the trawl sector. NMFS should identify the number of 
participants in these short pulse fisheries and acquire, in advance, 
the appropriate number of observers for the target observed rate.
    Response: It will be incumbent upon the observer provider to 
anticipate the level of observer effort required to monitor these fast-
paced fisheries and to have a sufficient pool of observers available in 
the key ports for rapid deployment. The ability for vessel

[[Page 70075]]

owners or operators to register multiple trips with ODDS will allow the 
observer provider to know, with ample notification, the trips for which 
a vessel will be required to carry an observer to ensure that an 
observer is available when the vessel is ready to embark. NMFS 
anticipates that the observer provider and vessel operator will be in 
continuous communication so that observer deployments can be as 
efficient and seamless as possible.
    Comment 48: Lack of a USCG Safety Decal or required safety 
equipment should not be an excuse to release a selected vessel from 
observer coverage.
    Response: NMFS will not consider the lack of a USCG Safety Decal or 
the required safety equipment as valid criteria to release a vessel 
from coverage. Vessels selected for coverage are responsible for 
obtaining the USCG Safety Decal in advance of the required coverage and 
for maintaining the safety equipment during the observer deployments 
(see Sec.  679.51(e)(1) of this final rule). Observers will not be 
placed on vessels that do not have a valid USCG Safety Decal. The 
inability of NMFS to place an observer on a vessel selected for 
observer coverage due to the lack of a valid USCG Safety Decal will not 
release the vessel owner and operator from the observer coverage 
requirement.
    Comment 49: Vessels that are released from carrying an observer 
should be required to carry a backup monitoring system such as vessel 
monitoring systems (VMS) or cameras.
    Response: This action restructures the funding and deployment 
system for the Observer Program. NMFS and the Council would need to 
pursue a separate rulemaking action to require VMS or cameras on 
vessels that cannot accommodate an observer. Alternate monitoring 
technologies may provide useful information for fisheries management 
and NMFS will work with the industry to further develop the potential 
for video monitoring to be a required monitoring element at a future 
time. For a more complete discussion of EM, please see the section 
below called ``Electronic Monitoring.''

Allowances for Catcher/Processors

    Comment 50: NMFS should modify the exceptions for small catcher/
processors or vessels that operate as both catcher vessels and catcher/
processors to be in the partial observer coverage category because the 
cost of full coverage for these small catcher/processors is a 
relatively high proportion of their income. Specific suggestions 
include (1) eliminate or extend the qualifying period for catcher/
processors less than 60 ft. LOA to elect their observer coverage 
category in Sec.  679.51(a)(2)(v); (2) increase the processing limit in 
Sec.  679.51(a)(2)(iv)(B) from 1 metric ton (mt) per day to 1,000 mt 
per year or to 4.5 mt per day (1,600 mt per year); or (3) eliminate the 
100 percent observer coverage requirement for catcher/processors 
carrying a maximum crew of 7.
    Response: NMFS acknowledges that the costs of observer coverage 
will increase for all catcher/processors that currently are required to 
carry observers less than 100 percent of their fishing days but that 
will be required to carry an observer 100 percent of their fishing days 
under the final rule. As described in the proposed rule, full coverage 
for all catcher/processors was recommended by NMFS and supported by the 
Council to improve the accuracy of accounting for catch by these 
vessels. Full coverage will allow NMFS to collect independently 
verifiable estimates of both retained catch and bycatch from each 
catcher/processor in the full coverage category instead of using 
industry reports to estimate retained catch by catcher/processors.
    The Council was aware of the increased cost of this provision of 
the final rule when it recommended the restructured observer program, 
and information about these costs is discussed in the analysis. 
Specifically, Appendix 7 provides a summary of the estimated costs of 
the preferred alternative (Alternative 3) by vessel category. These 
estimated costs do not necessarily reflect the actual cost increases to 
individual operations. Actual costs will vary depending on the number 
of observer days currently required versus those that will be required 
for these vessels under the full coverage category in the restructured 
Observer Program.
    In recognition of the relatively high cost of full coverage for 
smaller catcher/processors and the limited amount of catch and bycatch 
by these vessels, the final rule includes three allowances for catcher/
processors to be included in the partial observer coverage category 
rather than the full coverage category. First, under Sec.  
679.51(a)(2)(v), catcher/processors less than 60 ft. LOA with a history 
of catcher/processor and catcher vessel activity in a single year from 
January 1, 2003, through January 1, 2010, may make a one-time election 
as to whether the vessel will be in the full coverage or partial 
coverage category. Second, also under Sec.  679.51(a)(2)(v), any 
catcher/processor with an average daily groundfish production of less 
than 5,000 pounds round weight equivalent in the most recent full 
calendar year of operation from January 1, 2003, to January 1, 2010, 
may make a one-time election as to whether the vessel will be in the 
full coverage or partial coverage category. Third, under Sec.  
679.51(a)(2)(iv)(B), a catcher/processor that processes no more than 
one metric ton round weight of groundfish on any day (up to a maximum 
of 365 mt per year) may choose to be in the partial coverage category 
in the upcoming year.
    The first two exceptions allow a one-time choice of observer 
coverage category. The Council developed these two exceptions to 
provide an allowance to small catcher/processors that had already been 
operating in the groundfish and halibut fisheries off Alaska to select 
to be in the partial coverage category. The allowance was recommended 
in recognition of the relatively high cost of full coverage for the 
small catcher/processors and the relatively low amounts of catch taken 
by these operations. This exception is provided to vessel owners with a 
history of operations in the fishery to limit the number of small 
catcher/processors that are allowed to select to be in the partial 
coverage category and to limit this exception to vessels that were 
purchased or converted before the Council's final action in 2010.
    The third exception will be available for any catcher/processor 
that meets the threshold in any future year. NMFS added this exception 
to recognize an existing provision of the LLP (Sec.  
679.4(k)(3)(ii)(D)) that allows vessels less than or equal to 60 ft. 
LOA that process no more than 1 mt of round weight equivalent license 
limitation groundfish or crab on any day to be defined as a catcher 
vessel under the LLP. NMFS discussed this proposed provision with the 
Council and the OAC prior to publication of the proposed rule and there 
was no objection to the provision.
    Consideration of additional exceptions to the requirement for 
catcher/processors were not presented to the Council when it 
recommended Amendments 76/86 and were not considered in the analysis 
supporting this final rule. Proposed modifications to coverage 
requirements for catcher/processors should be addressed to the Council 
and, if the Council so recommends, be analyzed and subject to public 
comment and rulemaking.
    Comment 51: The proposed rule at Sec.  679.51(a)(2)(iv)(B) that 
allows catcher/processors that process no more than one metric ton 
round weight of groundfish on any day of a calendar year (up to a 
maximum of 365 mt in a calendar year) to be in the partial observer 
coverage category in the

[[Page 70076]]

following year will result in unnecessary regulatory discards. Vessel 
owners will discard catch to stay within the limit that allows them to 
be in the partial observer coverage category.
    Response: NMFS acknowledges that there is potential for vessels 
trying to meet the criteria for this allowance to discard catch. This 
allowance was created to provide catcher/processors with limited catch 
to be in the partial observer coverage to help control the costs of 
observer coverage for these vessels. Unfortunately, whenever a 
threshold is created that provides economic incentives to stay within 
the threshold, regulatory discards may occur. Although it is difficult 
to predict the number of vessels that may operate within the one metric 
ton processing limit, NMFS expects that only a few vessels will be 
qualified for this allowance and that the amount of regulatory discards 
will be limited. However, these vessels will be subject to partial 
observer coverage. NMFS will monitor the catch from these vessels and 
assess the impacts of this allowance. This information will be 
presented in the annual reports to the Council about the performance of 
the restructured Observer Program. The Council could choose to 
recommend an amendment to the Observer Program to address this concern.
    Comment 52: The regulations should allow American Fisheries Act 
(AFA) eligible catcher vessels participating in the Bering Sea cod 
fishery to select annually whether to participate in the full coverage 
category for all of their groundfish fisheries. The Bering Sea cod 
fishery for AFA eligible catcher vessels fits within the Council's 
intent for the fisheries that should be included in the full coverage 
category because they participate in a voluntary Intercooperative 
Agreement allocating cod and halibut PSC on an individual catcher 
vessel basis.
    As proposed, these catcher vessels are in the full coverage 
category while directed fishing for pollock in the Bering Sea, but in 
the partial observer coverage category for all of their other 
groundfish fishing. Many vessels that currently are in the 30 percent 
coverage category have voluntarily taken 100 percent observer coverage 
during the BSAI cod fishery so that observer data from a vessel can be 
used to estimate its halibut bycatch. The ability of these vessels to 
maintain 100 percent observer coverage is necessary to continue to 
improve on the conservation of halibut bycatch by this fleet through 
their Intercooperative Agreement.
    Response: NMFS acknowledges this comment, but such a revision to 
the proposed rule is beyond the scope of this action. As noted by the 
commenters, NMFS recommended and the Council agreed that catcher 
vessels should be in the full coverage category while they are fishing 
under a catch share program that has prohibited species catch limits. 
However, the analysis did not address proposals to include any other 
requirements for full coverage for catcher vessels or an allowance for 
voluntary participation in the full coverage category. Such additions 
to the full coverage category should be made through an amendment to 
regulations after further consideration of the purpose and need for 
such an action, consideration of alternatives, and an analysis of the 
impacts. The assignment of vessels to a particular coverage category 
has economic impacts on the vessel owner, on the amount of fees 
available to fund the partial coverage category, and on the contract 
NMFS has established for observer deployment. The rulemaking process 
allows for these impacts to be analyzed and for the public to comment 
prior to implementation of a change in coverage categories.

Exemptions From Observer Coverage

    Comment 53: The regulations should set a poundage threshold, such 
as 3,000 lbs, under which a vessel is exempt from observer coverage.
    Response: NMFS interprets this comment to recommend that vessels 
that land less than a certain amount of fish per year be exempt from 
the requirement to carry an observer. The Council did not recommend 
exemptions to observer coverage for specific vessel size classes or 
annual landings. However, some decisions about which vessels in the 
partial observer coverage category are excluded from observer 
deployment can be made through the annual deployment plan. NMFS 
analyzed landings information to arrive at minimum vessel length for 
inclusion in the vessel selection pool for the initial year of the 
program. Through its analysis, NMFS concluded that vessels less than 40 
ft. LOA was the break point below which the amount of harvest per trip 
differed from the amount of harvest per trip for vessels longer than 40 
ft. LOA. NMFS concluded that extending observer coverage to vessels 
less than 40 ft. LOA would not be necessary during the first year(s) of 
implementation to provide adequate fishery data. NMFS also would not 
place observers on catcher vessels using jig gear in the first year of 
the restructured program due to the low weight of fish harvested 
annually by this gear type relative to other gear types. Based on the 
relative proportion of catch and fishing trips conducted by vessels 
less than 40 ft LOA, NMFS is not likely to deploy observers on vessels 
less that 40 ft LOA in the near future. NMFS would only expand coverage 
to vessels less than 40 ft. LOA if data collection needs warrant the 
deploying observers on those vessels. NMFS would make this decision in 
conjunction with the Council through the annual deployment plan process 
and after careful consideration of economic impacts and safety-related 
issues as well as public comments.
    NMFS and the Council can consider additional options for exclusions 
from observer coverage under future annual deployment plans. However, 
any such exclusions would be made after analysis of the impacts of 
specific exclusions from observer coverage on the data necessary to 
conserve and manage the groundfish and halibut fisheries.
    Comment 54: NMFS should permanently exempt vessels less than 36 ft. 
LOA from the requirement to carry an observer. The restructured 
Observer Program is unacceptably onerous, expensive, and dangerous for 
the small vessel fleet. There is no space for an additional person, or 
their survival gear and personal kit, to work or sleep on these 
vessels. As well, most of these vessels do not have a bathroom.
    As the operator of a 33-ft. hook-and-line vessel, we cannot afford 
another tax to our bottom line. Moreover, the halibut quota has been 
reduced such that our vessel makes one trip per year. Thus, it would 
not be economically or statistically valuable to monitor our vessel 
with an observer or video monitoring. NMFS should use observation 
skiffs to monitor this fleet if a permanent exemption is not possible.
    Response: This final rule does not exempt any groundfish or halibut 
vessels from observer requirements based on vessel length. NMFS and the 
Council make observer deployment decisions through the annual 
deployment plan process. For 2013, NMFS will not require vessels less 
that 40 ft. LOA to take observers. Therefore, a 33-ft. hook-and-line 
vessel will not be required to carry an observer in the first year of 
the program, but could be required to carry one in subsequent years. 
Note that while vessels less than 40 ft. LOA will not be required to 
take observers in 2013, all vessels, regardless of size, will be 
assessed fees.
    Based on the relative proportion of catch and fishing trips 
conducted by vessels less than 40 ft LOA, NMFS is not likely to deploy 
observers on vessels less that 40 ft LOA in the near future. NMFS would 
only expand coverage to

[[Page 70077]]

vessels less than 40 ft. LOA if data collection needs warrant the 
deploying observers on those vessels. NMFS would make this decision in 
conjunction with the Council through the annual deployment plan process 
and after careful consideration of economic impacts and safety-related 
issues as well as public comments.
    NMFS agrees that space issues are exacerbated as vessel size 
decreases. If it is determined through the process that observer 
coverage should be expanded to small vessels, NMFS expects that vessels 
required to carry an observer will adapt to this requirement and ensure 
that the observer is adequately accommodated. NMFS has experience 
observing small vessels in other regions of the United States. The 
National Observer Program Web site (http://www.st.nmfs.noaa.gov/st4/nop/) provides links to regional observer programs with examples of 
small boat fleets that have been successfully and routinely observed. 
NMFS' experience is that vessels have adapted to an observer 
requirement in a variety of ways. Some have built additional 
accommodations, some have cleared off equipment from existing 
accommodations to make them available, and some have elected to leave 
crew ashore. NMFS also has experience where vessels have removed 
accommodations in an attempt to gain an exemption from observer 
coverage. Observers are trained to adapt to the conditions of the 
vessels which, at times, includes adapting to non-functional restrooms. 
Placing observers on smaller vessels requires accommodation by both 
vessel operators and observers.

Observer Fees and Costs

    Comment 55: The government is burdening us with the most expensive 
observer program possible.
    Response: NMFS acknowledges that observation is costly, but it is a 
necessary cost in an effective fisheries management program. Chapter 2 
of the analysis (see ADDRESSES) provides information on the costs 
associated with each of the alternatives considered. The restructured 
Observer Program is a well-reasoned approach providing a full coverage 
component paid directly by industry combined with a partial coverage 
component paid by fees assessed on partial coverage participants in an 
equitable manner. Section 313 of the MSA specifically limits the 
maximum amount of fees that may be assessed on industry participants at 
2 percent of the ex-vessel value of the fish harvested by vessels 
subject to partial coverage. This final rule establishes a fee of 1.25 
percent of the ex-vessel value of the fish harvested by vessels subject 
to partial coverage, which is below the maximum permissible. As noted 
in Chapter 2 of the analysis, the fee percentage established by this 
final rule was developed after weighing the potential costs on industry 
participants with the need to provide reliable and useful data.
    NMFS sought to reduce the costs of providing observers by creating 
a competitive and open bid process for observer providers to encourage 
efficient pricing for observer services. This process is described in 
Section 3.1 of the analysis and in the 2013 Annual Deployment Plan (see 
ADDRESSES). Federal contributions fund agency costs necessary to manage 
the restructured Observer Program. Therefore, NMFS has reduced costs 
for participants in the partial coverage category to the extent 
possible.
    Comment 56: The misleading assumptions in the economic analysis 
cause it to be inadequate. NMFS should update the economic analysis to 
address uncertainties about relying on halibut fisheries to supply half 
the funding for observer coverage in the partial coverage category. The 
value of the halibut IFQ fishery has changed since the analysis was 
prepared due to large declines in the halibut resource, and this 
undermines NMFS' ability to adequately fund the program.
    Response: The analysis provides historical data as a basis for 
analyzing and comparing the impacts of the alternatives and does not 
need to be updated to implement this final rule (see Chapter 2 of the 
analysis). The assumptions used in the economic analysis were developed 
through the analytical process, and reviewed and approved by the 
Council's Scientific and Statistical Committee.
    The Council accepted that variability will occur in the fee and 
cost components of the program and established a process to incorporate 
the best available scientific information on an annual basis to 
determine the observer coverage. Each year, the best available 
scientific information will be used to develop the annual deployment 
plan. Updates to the projected fee collection, observer costs, and 
number of observer days that can be obtained with the budget will be 
presented to the Council in the annual deployment plan or annual 
report.
    This final rule at Sec.  679.55 establishes the fixed fee 
percentage, the method for annually determining the ex-vessel value of 
groundfish and halibut landings, and the process for fee collection.
    The analysis recognized that ex-vessel values will vary, and the 
Council considered variability in annual ex-vessel gross revenues when 
recommending Amendments 86/76. This final rule at Sec.  679.55(d)(3)(A) 
establishes a three-year rolling average annual ex-vessel price to even 
out annual price changes in the groundfish and halibut fisheries.
    This final rule at Sec.  679.55(e) establishes a methodology to 
determine the ex-vessel prices for the halibut fishery that is similar 
to the methodology employed for the Halibut IFQ cost recovery fee at 
Sec.  679.45. Data gathered through this methodology were determined to 
be the best available for the fee collection component of this program.
    The number of observer days in the budget for an upcoming year is 
determined not just by the annual ex-vessel prices, but also the cost 
per observer day. This cost is determined by NMFS' contract with the 
observer provider and will be included in each year's annual deployment 
plan. The analysis also notes that the estimated costs per observer day 
used in the analysis will also vary over time.
    If NMFS and the Council determine that the fees collected pursuant 
to this final rule do not provide sufficient funding for an adequate 
number of observer days to collect data to monitor and enforce 
regulations imposed on these fisheries, the Council will review the fee 
percentage. Consideration of fee adjustment would result from 
information provided in the annual reports.
    Comment 57: The proposed action is not consistent with section 313 
of the MSA, which authorizes the Council to prepare a ``fisheries 
research plan'' that can require observers on board fishing vessels, 
including vessels participating in the North Pacific halibut fishery. 
Specifically, the proposed action is not consistent with the 
requirements that the fisheries research plan must be fair and 
equitable and take into consideration the operating requirements of the 
fisheries and the safety of observers and fishermen.
    Halibut and sablefish IFQ vessels harvest 12 percent of the 
groundfish in the GOA. The proposed rule would implement a fee 
collection system levying 67 percent of program costs on halibut and 
sablefish IFQ fishermen which is not ``fair and equitable'' to this 
fleet, unless an adequate portion of the funds collected from the fee 
are dedicated to integrating EM with the Observer Program.
    Response: NMFS disagrees. Under the previous pay-as-you-go system 
or daily

[[Page 70078]]

fee system, some smaller vessel operators faced observer costs that 
were disproportionately high relative to their revenue. Section 5.9 of 
the analysis explains that the Council was very concerned with 
minimizing impacts to small entities from including small vessels and 
halibut vessels in the observer program for the first time. The 
structure of the new fee system minimizes the impacts to small entities 
compared to the previous pay-as-you-go or daily fee systems.
    The intent of the new fee system is to fund coverage equitably and 
distribute coverage as needed to meet the information needs of NMFS and 
the Council for the fishery conservation and management. Section 313 of 
the MSA requires that the system of fees established to support a 
fisheries research plan to deploy observers in the North Pacific 
fisheries must be fair and equitable to all participants in the 
fisheries and may be expressed as a percentage of the unprocessed ex-
vessel value of the fish and shellfish.
    The ex-vessel based fee is fair and equitable because it is based 
on a standard measure of the value of the fishery resource harvested or 
processed by the participants and it applies regardless of whether a 
vessel or processor is required to carry an observer. Section 2.9.2.2.5 
of the analysis notes that an ex-vessel value fee is the most equitable 
method of funding observer coverage because it is based on the value of 
the resource each operation brings to market. An ex-vessel value fee is 
commensurate both to each operation's ability to pay and the benefits 
received from the fishery. The ex-vessel value of the catch is expected 
to fluctuate, as are the catch quotas.
    While the MSA authorizes the Council to vary the fee by fishery, 
management area, or observer coverage level, the Council recommended 
that a fixed fee percentage of 1.25 percent of ex-vessel value of 
landings was the most fair and equitable method to distribute the 
observer fee across the vessels and processors subject to the fee. 
Section 2.9.2.1 describes how the new fee system accomplishes one 
primary objective of Observer Program restructuring, that user fees not 
be directly linked to actual coverage levels when levels are less than 
100 percent. Consistent with fee program principles described in 
Section 2.9.2.2 of the analysis, fees collected from any particular 
fishery would not be spent monitoring that particular fishery.
    NMFS is committed to continuing to develop EM in an effort to 
advance technological tools available to collect data about the 
groundfish and halibut fisheries. For a more complete discussion of 
using observer fees to develop EM, please see the section below called 
``Electronic Monitoring.''
    Comment 58: The observer fee should be based on gross revenues 
rather than ex-vessel value of landed catch. Specifically, the observer 
fees should start at 1.25 percent for vessels with low gross revenues 
and increased to a maximum of 2.5 percent for vessels with high gross 
revenues.
    Response: Section 313(b)(2)(E) of the MSA requires that the 
observer fee ``be expressed as a fixed amount reflecting actual 
observer costs as described in subparagraph (A) or a percentage, not to 
exceed 2 percent, of the unprocessed ex-vessel value of the fish and 
shellfish harvested * * *.'' While the MSA does not require that the 
observer fee be based on ex-vessel value of the catch, it does require 
that if it is expressed as a percentage, that it not exceed 2 percent 
of the ex-vessel value of the catch. The Council had the option to vary 
the fee by fishery, management area, or observer coverage level. It 
considered an option for a lower fee percent for smaller vessels. 
However, it chose to initially apply a single fee percentage of 1.25 
percent of ex-vessel value to all landings subject to the observer fee. 
The rationale for an equivalent fee across all industry sectors was to 
be equitable to all participants impacted by the fee assessment. The 
Council will review the observer fee in the future and may decide to 
recommend modifying the fee percentage through subsequent notice-and-
comment rulemaking to adjust the fee percentage or how it is applied.
    Comment 59: Halibut and sablefish fisherman already pay the IFQ 
cost recovery fee. Adding another fee to our fleet for observer 
coverage is unacceptable.
    Response: The MSA authorizes NMFS to collect two distinct fees from 
participants in the fixed gear halibut and sablefish fisheries. The IFQ 
cost recovery fee and the observer fee support different management and 
information needs of NMFS and are not duplicative. For example, NMFS 
assesses a cost recovery fee for the Central GOA Rockfish Program and 
requires 100 percent observer coverage for catcher vessels 
participating in that program, and 200 percent observer coverage for 
catcher/processors to ensure adequate data collection in that LAPP (see 
the final rule for the Central GOA Rockfish Program (76 FR 81248; 
December 27, 2011)).
    The management fee referred to by the commenter is the IFQ cost 
recovery fee required under MSA section 304(d)(2)(A) to recover the 
actual costs directly related to the management, data collection, and 
enforcement of the IFQ Program. Furthermore, MSA section 
304(d)(2)(C)(i) notes that fees collected under this paragraph shall be 
in addition to any other fees charged under the MSA.
    The new fee implemented with this final rule is authorized by MSA 
section 313. The fee may be assessed at up to 2 percent of the ex-
vessel value of the unprocessed fish harvested under the jurisdiction 
of the Council, including the North Pacific halibut fishery. This fee 
is to be used to pay the combined costs of stationing observers, or EM 
equipment, on board fishing vessels and U.S. fish processors and 
inputting collected data. Through the fees, owners and operators 
compensate the Federal Government for the costs associated with 
managing fishery resources. Section 2.10.3 of the analysis described 
the potential effects of Observer Program fees on participants in the 
Halibut and Sablefish IFQ Program.
    Comment 60: The owner of a 48 ft. longline/troll combination vessel 
stated that he supports paying observer fees to improve the Observer 
Program if EM, the only viable option for his fleet, is included in the 
final rule.
    Response: Consistent with the proposed rule and the Council's 
recommendations for restructuring the Observer Program, the observer 
fee will be assessed on all halibut IFQ landings. Vessels in this fleet 
will be subject to observer coverage as determined by the annual 
deployment plan. For a complete discussion of EM, please see the 
section below called ``Electronic Monitoring.''
    Comment 61: Use a 3-year average price for groundfish to smooth out 
short term price fluctuations.
    Response: This final rule at Sec.  679.55(d)(3)(A) specifies that 
the groundfish standard ex-vessel prices will be calculated as a 3-year 
rolling average of standard prices for each species, port or port-
group, and gear. This provision is unchanged from the proposed rule.
    Comment 62: NMFS did not analyze the economic and social costs of 
deploying human observers in the small boat fleet or of carrying 
observers for vessel operators in the vessel selection pool (e.g., 
feeding an observer, insurance, displacing a crew member, or disrupting 
the character of family operations). These additional costs will lead 
to operations leaving the fishery, halibut and sablefish IFQ 
consolidation, and elimination of crew jobs.
    NMFS also did not assess the impacts on fishery revenues of 
deploying human observers in the small boat fleet. The economies of 
Alaskan fishing

[[Page 70079]]

communities will be hurt as the fleet contracts, and revenues to state 
and Federal governments would be reduced.
    Response: The analysis prepared for this action assesses the 
economic and social cost of deploying human observers in the small boat 
fleet and its impact on revenues in the fishery. Sections 2.10.6 and 
2.10.7 of the analysis evaluate impacts on fishery costs and revenues. 
NMFS acknowledges in Section 2.10.7 of the analysis that there may be 
negative impacts to specific fishing operations, crew members, 
communities, and state and Federal revenues, as described in the 
comment. In addition, the analysis notes that in some instances, 
harvesters' trip costs may increase, which may affect the ability of 
marginally profitable operations to remain in the fishery. 
Additionally, the number of crew positions could be reduced, and family 
operations may be disrupted, due to compliance with observer coverage 
requirements. This may also contribute to the likelihood that some 
operations will choose to leave the fishery. These changes may affect 
communities, specifically as some communities are negatively impacted 
by the potential redistribution of harvesting effort. While these 
issues are generally discussed, the analysis also notes that these 
costs or concerns will affect some members of industry and not others, 
and information is not available to determine the impacts of each 
situation. As a result, quantitative estimates of the impacts were not 
generated, and it is unlikely that quantitative data will be available 
in the future to estimate the value of changes in the character of 
family fishing operations that may occur as a result of carrying an 
observer.
    These concerns were presented to the Council, in the analysis and 
in public testimony, and the Council recommended removing vessels less 
than 40 ft. LOA from the vessel selection pool, at least for the first 
year of the program, under the 2013 Observer Program Annual Deployment 
Plan. The preamble to the proposed rule provides the specific rationale 
for limiting observer deployment to vessels less than 40 ft. LOA (77 FR 
23336; April 18, 2012). Based on the relative proportion of catch and 
fishing trips conducted by vessels less than 40 ft LOA, NMFS is not 
likely to deploy observers on vessels less that 40 ft LOA in the near 
future. NMFS would only expand coverage to vessels less than 40 ft. LOA 
if data collection needs warrant the deploying observers on those 
vessels. NMFS would make this decision in conjunction with the Council 
through the annual deployment plan process and after careful 
consideration of economic impacts and safety-related issues as well as 
public comments.
    Through the annual deployment plan process, industry participants 
can provide feedback directly to NMFS, the OAC, and the Council 
concerning the effects of observer coverage on their operations. These 
comments can be considered, as they were in the 2013 Annual Deployment 
Plan, when recommending coverage on specific vessel sizes in an annual 
deployment plan.
    Note that observers will be insured by their employer, as required 
in regulation for full coverage vessels and in the contract between 
NMFS and the observer provider for the partial coverage category. 
Observers are also covered by the Federal Employees Compensation Act, 
as identified in the analysis. This insurance coverage does not prevent 
any observer or observer provider from filing a suit for injuries that 
occur on a vessel. Thus, industry members may choose to protect 
themselves from lawsuits by obtaining additional liability insurance.

Outreach

    Comment 63: NMFS should conduct as much outreach as possible to the 
fishing and processing sectors that will be affected by the 
restructured Observer Program. As noted in the proposed rule, a total 
of 1,775 entities (including catcher vessels, catcher/processors, 
motherships, shorebased processors, stationary floating processors, and 
CDQ groups) are estimated to be directly regulated by the proposed 
action. Extensive outreach is needed to build awareness and 
understanding among the regulated community of the new requirements.
    Response: NMFS agrees that outreach to the fishing industry will be 
helpful in implementing the restructured Observer Program. NMFS has 
already conducted outreach meetings or public hearings in Kodiak AK, 
Sitka AK, Petersburg AK, Sand Point AK, Juneau, AK, Homer AK, Seattle 
WA, and Newport OR, in the process of developing this action with the 
Council, and to solicit comments on the proposed rule (77 FR 22753, 
April 17, 2012; 77 FR 29961, May 2, 2012). NMFS continued outreach 
efforts to industry participants and fishing communities prior to 
publication of the final rule through direct mailings to vessel owners 
in the partial observer coverage category. In addition, with the 
publication of the final rule, NMFS will conduct additional meetings in 
fishing communities to explain the program requirements, demonstrate 
ODDS, and answer questions. NMFS outreach is in addition to outreach by 
the Council and the activities of the OAC.
    Comment 64: NMFS should reach out to observers to explain how the 
restructured Observer Program will impact their work environment. This 
outreach should occur outside of the four-day briefings to ensure a 
smooth transition to the new program.
    Response: This action does not change the basic duties of observers 
when they are on board vessels. It does, however, expand the observer 
program to new, previously unobserved vessels. NMFS plans to address 
those work related issues either in existing training sessions or in 
trainings specifically required under the contract with the selected 
observer provider.

Observer Issues

    Comment 65: Adequate pay and professional treatment of observers 
from observer providers and NMFS is critical to the success of this 
program. NMFS should find a mechanism to link the agency with the 
welfare and professional standards of its observers.
    Response: Adequacy of observer pay is outside the scope of this 
action. Observers pay will be established in both the partial and full 
coverage categories by the observer providers, subject to other Federal 
and state laws, and in negotiation with their observer employees and 
unions, if applicable.
    Professional treatment of observers and professional behavior by 
observers is important to maintain high standards in the observer 
workforce. NMFS has established educational standards for all observers 
in the workforce and provides initial and recurrent job training to 
them. NOAA's Office of Law Enforcement provides support for a 
harassment free workplace for observers when deployed in Alaska. 
Observer provider companies have policies related to professional 
behavior and mechanisms for counseling, when appropriate, and/or 
progressive discipline for infractions of their policies. This action 
does not change the standards for professional treatment of observers.
    Comment 66: NMFS needs to be diligent about addressing observer 
harassment in previously unobserved fleets.
    Response: NMFS agrees that harassment of observers is not 
acceptable and will not be tolerated. Existing regulations at Sec.  
679.7(g) expressly prohibit observer harassment. These regulations are 
applicable to previously unobserved vessels that will now be required 
to carry observers. Harassment prevention is a top priority for NOAA's 
Office of Law Enforcement

[[Page 70080]]

as observers are essential to NMFS management efforts, but are in a 
vulnerable position by being placed as the lone NMFS representative on 
fishing vessels. NMFS has been placing observers on fishing vessels in 
Alaskan waters for over 30 years. NMFS' experience is that most 
observers are treated well by vessel owners and crew. However, 
exceptions occur and NMFS has law enforcement capacity to respond to 
reports of harassment and will continue to keep this as a priority. 
NMFS is also planning outreach efforts to newly observed fleets to 
ensure the participants are informed of the rules, including 
prohibitions against observer harassment.
    Comment 67: Standards of behavior that apply to observers 
fulfilling duties for operations in the full coverage category should 
be mandatory for observers assigned to vessels in the partial coverage 
category. This is necessary to protect the confidentiality of the data 
collected.
    Response: The regulations outline the standards of behavior that 
govern observers in the full coverage category. NMFS incorporated these 
standards into the contract that will govern the observers in the 
partial coverage category. All observers will continue to be required 
to protect the confidentiality of the data collected.

Electronic Monitoring

    Comment 68: NMFS failed to comply with the requirements of the 
Regulatory Flexibility Act to analyze an alternative of EM, which would 
have minimized the impact of the alternatives on small entities.
    Response: The Regulatory Flexibility Act (RFA) requires NMFS to 
prepare an initial regulatory flexibility analysis (IRFA) to describe 
the economic impact of the proposed rule on small entities, such as 
fishing vessel operations. The IRFA is required to include, among other 
things, ``a description of any significant alternatives to the proposed 
rule which accomplish the stated objectives of the applicable statutes 
and which minimize any significant economic impact of the proposed rule 
on small entities.'' The Council considered and fully analyzed 
alternatives, including the one that would have had the least cost on 
currently unobserved vessels, which was to make no changes in the 
current observer program. This alternative would have continued to 
require no observer coverage on vessels less than 60 ft. LOA or on the 
halibut fleet. This alternative does not meet the purpose and need for 
this action because it would not provide observer information from 
those vessels. Compliance with the RFA also requires preparation of a 
Final Regulatory Flexibility Analysis, which is included in the 
Classification section of this final rule.
    NMFS disagrees that EM in its current form is a reasonable 
alternative to a human observer that would accomplish the objectives 
for this action. NMFS is committed to continuing to develop EM in an 
effort to advance technological tools available to collect data about 
the groundfish and halibut fisheries.
    NMFS also notes that, under some circumstances, EM may not minimize 
costs to the industry. Current operational EM systems are in place in 
Alaska to meet specific objectives. However, the degree of burden 
existing EM systems can place on vessels can be considerable. For 
example, NMFS requires EM systems on many trawl catcher/processor 
vessels in Alaska where the system is designed to support compliance 
monitoring of crew sorting catch before it is sampled by the observer 
(see regulations at Sec.  679.28(i) and (j)). These EM systems serve as 
an aid to the observers on board, and can be used to document problems 
should follow-up enforcement action be necessary.
    In situations where EM is currently required, it places a burden on 
industry to ensure the EM systems are in place and continuously 
functional. If an EM system on board a trawl vessel fails, the system 
must either be repaired on board or the vessel must modify their 
operations to prohibit specific crew activities that sort catch, or the 
vessel must return to port to have the system repaired. Trawl vessels 
that fish without required EM are in violation of regulations and are 
subject to enforcement action. In these cases, industry carries the 
full cost of the EM systems and their maintenance.
    Comment 69: An electronic monitoring program is not included in the 
alternatives compared in the analysis, though it is noted that EM may 
be an option under a separate, future process. The Council approved a 
motion in June 2010 requesting that EM be developed and implemented as 
a tool for fulfilling observer coverage requirements in the 
restructured program. The analysis fails to consider how an at-sea 
monitoring program integrated with shore side observers, human 
observers on survey vessels, and EM can resolve the limitations of the 
existing Observer Program. Because other countries are using EM to 
collect at-sea monitoring data in fisheries similar to the halibut and 
groundfish fisheries off Alaska, NMFS' failure to include EM as an 
alternative for monitoring the vessel selection pool results in an 
unreasonable range of alternatives under NEPA.
    Response: The Council explicitly chose to not include EM as an 
alternative or option in Section 2.5 of the analysis prepared to 
support this action. The scope of this analysis, consistent with 
Council's problem statement, addresses specific problems with the 
existing Observer Program (1) there are no observer requirements for 
either the less than 60 ft. LOA groundfish sector or the commercial 
halibut sector, (2) coverage levels and deployment patterns cannot be 
effectively tailored to respond to current and future management needs 
and circumstances of individual fisheries, (3) fishery managers cannot 
control when and where observers are deployed, (4) many smaller vessels 
face observer costs that are disproportionately high relative to their 
gross earnings, and (5) complicated and rigid rules have led to 
observer availability and compliance problems. Consequently, the 
analysis examined alternative fee structures for various regions (BSAI 
or GOA) and fishing sectors to remedy the problems identified in the 
problem statement.
    The Council did provide guidance on the use of EM in June 2010, 
based on public testimony concerning the limited ability for some 
smaller vessels to carry an observer. Recognizing that section 313 of 
the MSA allows fees to be used for EM systems, the Council decided to 
actively explore EM as a potential alternative to human observers for 
specified types of vessels with the intent of having it available in 
the first year of implementation of the restructured Observer Program. 
The Council recognized that EM could be an alternative to a human 
observer only at such time as NMFS has the capability to deploy EM and 
effectively use the resulting data to meet sampling objectives. Section 
2.5 of the analysis stated that implementing an EM system for specific 
fisheries would likely require new Federal regulations, and would be 
addressed in a separate, subsequent analysis. Thus, this final rule 
does not implement an EM program as an alternative to human observers. 
The final rule includes an option for a vessel to indicate its 
willingness to carry EM equipment to help NMFS collect data. NMFS will 
continue to work to develop an EM program that is supported by 
performance standards and regulations over the longer term.
    Comment 70: National Standard 7 requires that conservation and 
management measures shall, where practicable, minimize costs. If there 
is

[[Page 70081]]

an alternative that accomplishes the same purposes for which an 
observer would otherwise be placed aboard a vessel and that alternative 
minimizes costs, then NMFS must either select that alternative or 
provide a substantive rationale for why that alternative was not 
selected. In the proposed rule, NMFS identifies that EM could reduce 
the economic burden of the restructured Observer Program on small 
entities. By failing to provide EM as an alternative to observers in 
the proposed rule, NMFS violates National Standard 7.
    Response: This action complies with National Standard 7 in that no 
other viable alternative minimizes costs while accomplishing the 
action's purpose. Although the Initial Regulatory Flexibility Analysis 
for Amendments 86/76 stated that EM ``could serve to reduce economic 
impacts on small entities by providing an alternative to carrying a 
human observer,'' EM in its current form is not a reasonable 
alternative to a human observer, for reasons described in more detail 
in the response to Comment 71. Therefore, EM was not included in the 
alternatives analyzed by the Council for this action.
    Comment 71: NMFS should reinstate the language in the draft 
proposed regulations, reviewed and approved by the Council in October 
2011, which would have required vessels selected for observer coverage 
in the vessel selection pool to have either an observer or EM system on 
board, with the final determination to be made by NMFS. In the proposed 
rule, Sec.  679.51(a)(1)(ii)(F)(2) was modified relative to the draft 
regulations to allow NMFS discretionary authority to provide EM 
equipment to a vessel owner or operator upon releasing the owner or 
operator from the requirement to carry an observer. Under the proposed 
regulations, there is no longer an obligation or an incentive for the 
vessel owner or operator to accept or use the EM equipment. This is a 
significant deviation from the Council's intent with respect to the 
implementation of this provision of the Observer Program. The 
development of EM has been an important element of this program for 
several years, both as an immediate priority for vessels greater than 
or equal to 40 ft. LOA and less than 57.5 ft. LOA that fish halibut and 
sablefish individual fishing quotas, as well as an independent tool in 
the long-run in the research plan.
    The use of EM is an important alternative to observers on smaller 
vessels that, because of logistical and economic challenges with 
accommodating an observer on board, may otherwise be released from 
observer coverage. NMFS should allow a vessel selected for coverage in 
the vessel selection pool that would otherwise be required to take an 
observer, to use an EM system instead (at NMFS' discretion). NMFS 
should include language in the final rule that would meet the Council's 
intent and avoid concerns identified by NMFS after the proposed rule 
was reviewed and approved by the Council.
    Response: NMFS agrees that EM is an important alternative for 
vessels that are physically impractical for human observation. NMFS 
also agrees that the Council's intent has been to implement an EM 
system in the first year of implementation of the restructured Observer 
Program. However, the Council and NMFS have recognized that NMFS must 
have the capability to deploy EM and effectively use the resulting data 
to meet sampling objectives before an EM system can be available as an 
alternative to a human observer. NMFS agrees the initial draft 
regulations reviewed by the Council in October 2011, would have allowed 
vessels selected for observer coverage in the vessel selection pool to 
have either a human observer or EM equipment on board for the duration 
of the selection. As explained in the preamble to the proposed rule as 
published in the Federal Register on April 18, 2012 (77 FR 23326), NMFS 
reviewed the initial draft rule and determined the rule should not 
require EM since NMFS has not yet developed performance standards or 
technical specifications for EM. Therefore, and as explained in the 
preamble to the proposed rule, NMFS proposed that the only observer 
requirement for a vessel selected for coverage would be that an 
observer be on board for the duration required.
    NMFS agrees that there may be scenarios where monitoring via video 
may provide helpful information to NMFS. However, NMFS has identified 
limitations with the existing EM technology and, at this point, has 
determined that the EM technology available is not an equivalent 
substitute to a human observer. These limitations have been discussed 
at the OAC over several years and are documented in OAC minutes that 
have been presented to the Council. For example, EM does not provide 
the biological information that human observers collect. Species 
identification can be difficult with EM and there are longer time lags 
until data are available for management relative to data collected by 
observers (e.g., observers summarize their results and transmit them to 
NMFS as needed, often daily). Electronic monitoring system reliability 
and susceptibility to tampering are other issues that need to be 
resolved. While pilot work is underway to resolve some of these issues, 
NMFS expects that the establishment of a comprehensive electronic data 
generating system supported by enforceable regulations could require 
several years.
    In October 2011, the Council recommended that the initial phase of 
an EM program focus on halibut and sablefish hook-and-line vessels from 
40 ft. LOA to 57.5 ft. LOA. Despite the limitations noted above, NMFS 
agrees that EM may be a helpful tool for gathering data to generate 
estimates of at-sea discards on previously unobserved vessels, 
particularly in the hook-and-line IFQ fisheries. Thus, as described in 
the response to Comment 71, NMFS is developing the capacity to deploy 
EM equipment on some vessels at the outset of the restructured Observer 
Program.
    NMFS is working to implement EM for use on hook-and-line vessels 
less than 57.5 ft. LOA on a voluntary basis, as well as to incorporate 
EM as an integrated component of the Observer Program over the longer-
term where technically and economically feasible. Lessons learned from 
prior fishery EM projects demonstrate the need to match the sampling 
objective with the system capabilities. The first-look at discards on 
small hook-and-line vessels where there is not a need for rapid data 
transmission is a good starting point. In 2013, NMFS will deploy EM 
equipment on those small hook-and-line vessels in the vessel selection 
pool that have indicated a willingness to carry EM equipment. NMFS 
recognizes the importance of industry support for an EM program. NMFS 
intends to continue to work collaboratively with industry and the 
Council to develop an EM program with detailed specifications and apply 
it where it meets information needs for effective fisheries management.
    In response to this comment, NMFS has revised the process for 
deploying EM equipment on vessels. In the 2013 Observer Program Annual 
Deployment Plan, NMFS may select small hook-and-line vessels from the 
pool of vessels fishing out of key ports, such as Kodiak, Homer, Sitka, 
and Petersburg, if the owner has indicated a willingness to carry EM 
equipment. Industry members conducting initial EM feasibility work 
recommended focusing EM efforts out of a few key ports. Any vessel 
operator who has indicated a willingness to carry EM equipment out of a 
key port may be selected for EM. However, given the developing state of 
EM and NMFS' current EM capacity, not all operators who indicate a 
willingness to carry EM

[[Page 70082]]

equipment will be provided EM equipment. NMFS expects that vessels 
selected for EM will work cooperatively with NMFS, as many members of 
the fleet view EM as the preferred tool for information gathering. 
Those vessels that are selected to carry EM equipment and that 
cooperate with NMFS and assist in meeting data quality standards will 
be eligible to carry EM equipment. At any time, vessel operators may 
retract their stated willingness to carry EM equipment. Conversely, 
NMFS may determine at any time that a vessel is not suited for carrying 
EM equipment.
    Comment 72: We oppose the restructured Observer Program until EM is 
provided as the preferred option for collecting at-sea catch and 
bycatch data on fixed gear halibut and sablefish vessels. We support 
the goals of the restructured Observer Program and are willing to pay a 
fair share of the future observer coverage costs. We are willing to 
provide at-sea data, but need a system that works for the fixed gear 
fleet. EM should be the preferred monitoring option for the fixed gear 
halibut and sablefish fleet starting in 2013.
    Response: The current standard within NMFS for obtaining unbiased 
fishery dependent information from fisheries is to deploy human 
observers to observe fishing operations and sample the catches brought 
on board. Observers provide many types of information to NMFS including 
catch and effort, catch composition in numbers and weights of species, 
biological samples, length frequency data, interactions with protected 
species, and information on compliance with regulations such as 
streamer line deployment. The observer information allows NMFS to meet 
multiple agency objectives. At this time, EM may assist NMFS in meeting 
some but not all of these objectives. See response to Comment 71 for 
more information about the limitations of EM in its current state. 
While EM has limitations, NMFS recognizes the potential for EM 
development. The use of this technology in observation has been 
addressed by the Council with input from the OAC. The OAC requested 
that NMFS continue to develop EM with a focus on small boat hook-and-
line fisheries where NMFS has no current in-season management 
responsibility. For 2013, NMFS has dedicated $200,000 for continued 
development of EM in Alaskan fisheries management and expects to deploy 
EM systems on cooperating vessels in 2013, the first year of the 
program.
    Comment 73: The pilot project conducted by industry in 
collaboration with NMFS from 2010 through 2012 demonstrates that there 
is substantial information available to NMFS to fully evaluate an 
effective EM alternative, develop necessary performance standards, 
resolve any outstanding issues with video data extraction, and include 
EM as an integrated alternative under the restructured Observer 
Program.
    Response: NMFS has worked with the Alaska Longline Fisherman's 
Association (ALFA) in its National Fish and Wildlife Foundation funded 
pilot work on EM. ALFA was able to demonstrate and gain experience with 
the practical aspects of deploying EM camera systems. They have 
demonstrated the ability to deploy these systems on the small boat 
Alaskan fleet, and they have resolved some reliability issues 
experienced by NMFS in past EM studies. However, the existing systems 
continue to have known limitations relative to NMFS' information needs. 
For example, none of the EM systems currently deployed in the North 
Pacific are able to collect biological data at-sea that are essential 
for assessing the biological condition of fishery resources.
    Comment 74: NMFS should resolve issues to fully utilize EM on 
vessels of any length due to safety, economic, and logistical concerns 
with deploying observers on fishing vessels. Fishermen work under 
perilous conditions but they have the choice about which vessels, 
fisheries, and weather conditions they will work in. Observers do not 
get that choice. An observer was lost at-sea off the coast of 
Washington in 2012. Some vessels less than 60 ft. LOA may be able to 
safely accommodate observers, however the conditions are highly 
variable among vessels. The Council did not adequately address the 
safety of human lives in designing this restructured Observer Program. 
Safety issues associated with the action may be alleviated through EM.
    Response: While NMFS disagrees that there are significant safety 
concerns with the proposed action, the agency acknowledges the inherent 
risk involved in the at-sea monitoring of fisheries by observers. An 
observer was lost off the coast of Washington in 2012, and two were 
lost in the domestic Observer Program in Alaska, one in 1990 in a 
vessel sinking, and one in 2008 in a fall and drowning while boarding a 
vessel alone at night. NMFS agrees that EM in lieu of an observer would 
reduce all risk to observers. However, EM in its current state does not 
provide the same reliable suite of timely fisheries dependent 
information which NMFS needs for fisheries management. Therefore, EM is 
not an acceptable substitute for fisheries observers at this time.
    Comment 75: EM must be available as a voluntary choice for any 
vessel selected for coverage.
    Response: NMFS and the Council did not envision that industry 
members would choose the type of observation on their vessels. NMFS has 
fishery dependent information needs from the commercial fisheries and 
this rule establishes the infrastructure to fund, and the requirement 
to take, an observer. After reviewing draft proposed regulatory 
language in October 2011, the Council reiterated its intent that NMFS 
determine which vessels may be afforded the opportunity to take EM. The 
preamble to the proposed rule makes it clear that EM may not be 
available to all vessels who request EM. Under this final rule, owners 
of vessels in the vessel selection pool will be given the opportunity 
to express their interest in taking EM. However, given the developing 
state of EM and NMFS' current EM capacity, not all operators who 
indicate a willingness to carry EM equipment will be provided EM 
equipment.
    Comment 76: The present EM technology is not a perfect fit for 
monitoring all vessels. However, with effort, cooperation, and funding 
the technology could be developed within a year to cover hook-and-line 
vessels. Fisheries with the need for real time management data may not 
be immediately suitable for EM but it is an obtainable goal for the 
hook-and-line sector. The proposed rule discussed general 
implementation of EM in the vessel selection pool, however a definitive 
timeline for executing EM is the only sufficient approach to ensure 
that NMFS develops this crucial management technology. In addition, 
because EM must be part of the Observer Program for the program to be 
successful, NMFS should build enough flexibility into the final rule so 
that the EM program can grow and develop through the annual deployment 
plan.
    Response: NMFS is taking a thoughtful and methodical approach to 
developing EM in Alaska and nationally. EM must provide information 
that is useful to fishery management in a cost effective manner. In 
Alaska, NMFS has conducted studies comparing EM and observer 
information that revealed the limitations of the existing technology. 
For example, please see ``Cahalan, J. A., B. M. Leaman, G. H. Williams, 
B. H. Mason, and W. A. Karp. 2010. Bycatch characterization in the 
Pacific halibut fishery: A field test of electronic monitoring 
technology. U.S. Dep. Commer., NOAA Tech. Memo.

[[Page 70083]]

NMFS-AFSC-213, 66 p.,'' available on the Alaska Fisheries Science 
Center Web site (http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-213.pdf).
    NMFS will be conducting additional work in Alaska in 2013 to 
advance the technology to make it more useful. Some objectives will 
never be met with EM (e.g., collecting biological samples at-sea, or 
identifying some species may not be reliable or cost-effective using 
video technology) so a combined approach of EM and observers may be the 
result. While NMFS is developing EM capacity in the initial year of the 
program, the agency will also provide a strategic planning document 
outlining ways that EM might be fully integrated into the Observer 
Program in the future and the steps that would be necessary to 
accomplish that. This document was requested by both the Council's OAC 
and the Council. Establishing a fully integrated EM system that would 
replace many tasks of a human observer would require subsequent rule 
making, the timing of which cannot be determined at this time.
    Comment 77: NMFS should develop an implementation plan for EM on 
groundfish vessels, including (1) a means for assessing both those 
protected species that are brought on board and those that are not, and 
(2) a means for analyzing the effectiveness of the EM at identifying 
the species, estimating the numbers, and characterizing the severity of 
injuries to protected species, whether they are or are not brought on 
board.
    Response: Protected species offer particular challenges for EM 
because interactions can be rare, the interaction can occur at or on 
various parts of the vessel, the interaction may not break the surface 
of the water, and identifying the species and any injuries to it may be 
difficult. When events are rare, large samples of EM footage, and 
possibly all footage, would need to be reviewed to detect rare events. 
For example, the British Columbia (BC) model of ``EM only'' reviews a 
small portion of the retrieved video as a validation check on required 
logbooks. Neither the logbooks nor the video check may be helpful to 
assess rare protected species interactions in the BC model. Of equal 
concern is where the interaction occurs. In hook-and-line operations, 
most video systems are focused on the line retrieval. If the 
interaction is outside the field of view of the camera, it will go 
undetected. It is possible to install wide angle cameras to increase 
the field of view, but it is unknown if wide angle cameras will provide 
the quality of images necessary to detect the interaction and identify 
the species encountered. Further work is needed to assess the ability 
of cameras to detect and identify protected resource interactions with 
fishing vessels. NMFS will consider protected resource interactions as 
one of the objectives to consider for EM observation.
    Comment 78: If EM is effective for monitoring small vessels, then 
cameras should be used to monitor all halibut vessels, including 
catcher/processors with existing 30 percent observer coverage 
requirements. This would reduce the cost and burden for vessel owners 
relative to carrying observers.
    Response: NMFS disagrees. The rationale for requiring full observer 
coverage on catcher/processors is outlined in the preamble to the 
proposed rule (77 FR 23329; April 18, 2012). This final rule includes 
three allowances for small catcher/processors to elect to be in the 
partial observer coverage category. Please see the section above called 
``Allowances for Catcher/Processors'' for more information. Outside of 
these allowances, NMFS did not consider establishing a length threshold 
to distinguish between full and partial coverage categories.
    Comment 79: If funding is limited for observers in the partial 
coverage category, it would be appropriate to maximize observer 
coverage on vessels using trawl gear and defer implementation of the 
program for most fixed gear vessels until EM is available to meet 
additional data collection needs form those fisheries.
    Response: NMFS disagrees. Funding will always be limiting in the 
partial coverage sector for some objectives. Focusing observer coverage 
on trawl vessels in the partial coverage category would fail to meet 
the purpose and need of this action to obtain data from fisheries that 
are not otherwise available. Focusing observer coverage on trawl 
vessels would directly counter the clear intent of the Council to 
extend observer coverage to previously unobserved portions of the 
fleet, and reduce bias in those portions of the fleet that are subject 
to partial coverage under the previous Observer Program.
    It is not clear if EM can meet most NMFS' objectives, or if it can 
do so in a cost effective manner. Currently, EM does not provide the 
information required to accurately assess discards at-sea or protected 
species interactions in a timely fashion, or have the ability to 
collect biological data. Deferring implementation of this final rule 
for the fixed gear fishery would not meet the purpose and need 
established for this action. Specifically, adopting the commenter's 
recommendation would not allow fishery managers to control when and 
where observers are deployed and would result in potential sources of 
bias that could jeopardize the statistical reliability of catch and 
bycatch data.
    Comment 80: NMFS should dedicate a portion of the observer fees 
collected from the halibut and sablefish fleet to fund the development 
and implementation of EM. Some commenters asserted that 15 percent of 
the fees should be dedicated to the implementation of EM.
    Response: NMFS is authorized to use observer fees collected under 
the authority of section 313 of the MSA for stationing observers and EM 
systems on board fishing vessels and U.S. fish processors. Observer 
fees across all fisheries will be pooled in one account and allocation 
of the fees between observers and EM will depend on the ability of 
observers or EM to meet information needs, and the respective cost of 
each. The amount dedicated may vary by year and could be less than or 
greater than the 15 percent allocation suggested by some commenters. 
NMFS may also add Federal appropriations to fund observers or EM and 
has done so with a fiscal year 2012 contribution of $4,200,000 for 
observers and $200,000 for EM development in Alaska. Development of EM 
in other NMFS regions also will help inform efforts in Alaska.
    Comment 81: NMFS should use Federal tax dollars instead of observer 
fees to fund the development and implementation of EM.
    Response: See response to Comment 81.
    Comment 82: EM is a very promising technology that has obvious 
applications in the partial coverage category. However, it is 
appropriate that NMFS is not proposing to replace observers with EM at 
this time. More information is needed about how EM will collect the 
data that currently is collected by observers.
    Response: NMFS acknowledges this comment.
    Comment 83: NMFS should expand the proposed definition of EM to 
include other technologies that could be used on vessels that are 
incapable of carrying an observer. Electronic options to observers such 
as VMS, electronic logbooks, and various electronic data loggers have 
proven to be effective monitoring tools in other fisheries and are 
often less expensive, more readily available, and easier to maintain 
than camera-based systems. Data from such alternative systems could 
also assist the agency in its efforts to develop or refine observer 
deployment strategies to ensure that observer sampling in the

[[Page 70084]]

partial coverage category is representative of total effort.
    Response: While NMFS did not propose a definition for ``electronic 
monitoring'' in the proposed rule, NMFS specifically referred to 
``electronic video monitoring'' in the preamble to the proposed rule, 
which was intended to imply that ``electronic monitoring'' was 
synonymous with video monitoring. However, NMFS agrees that EM is a 
broad topic and a range of electronic tools exist that can be used to 
meet monitoring objectives. These tools range from simple position 
recording, to electronic logbooks, to camera systems integrated with 
other vessel sensors. The right combination of electronic and human 
observation tools will depend on the information needs of NMFS in any 
particular application balanced by costs. NMFS is investing in EM 
systems in 2013 and is considering a range of technologies.
    Comment 84: VMS should be required on all vessels so that (a) NMFS 
knows where the entire fleet is fishing, not just the observed vessels; 
(b) vessel position is known enabling rescuers to better respond in the 
event of a vessel emergency; and (c) NOAA Office of Law Enforcement can 
cross-reference vessel position with observer reports.
    Response: NMFS disagrees that VMS requirements should be added to 
this final rule. VMS requirements were not part of the restructured 
Observer Program recommended by the Council and are not necessary to 
meet the purpose of the restructured Observer Program. NMFS requires 
VMS on a number of vessels, and the Council and NMFS may consider 
expansion of VMS requirements in a future action.
    Comment 85: The proposed rule defines ``observer'' as a human 
meeting certain qualifications; EM is completely missing from the 
definition. As a result, effective integration of EM will require 
additional Council action, analysis, and amendment of the Observer 
Program.
    Response: NMFS acknowledges this comment.

Changes From the Proposed Rule

    This final rule includes changes to particular sections of the 
regulatory text and amendatory instructions published in the proposed 
rule. These changes fall into four categories: (1) Changes to the 
proposed regulations in response to public comment, (2) revisions 
needed to accommodate changes made to 50 CFR part 679 by a rule 
published after the proposed rule for Amendments 86/76 was published, 
(3) additions of existing regulatory text inadvertently excluded in the 
proposed rule, and (4) minor editorial revisions and minor revisions to 
amendatory instructions.
    NMFS reviewed the regulatory changes proposed by public comment and 
determined that the following 2 changes are a logical outgrowth from 
the proposed rule and, while relatively minor, these changes improve 
the functioning of the restructured Observer Program. Additional detail 
on why NMFS has made each change from proposed to final rule is 
provided in the response to the applicable comment. This final rule 
includes the following 2 changes to the proposed regulations in 
response to public comment:

    1. For reasons explained in the response to Comment 40, NMFS 
amended the final rule to expand the ``fishing trip'' definition at 
Sec.  679.2 to include a definition specific to catcher vessels 
delivering to tender vessels. A fishing trip for a catcher vessel 
delivering to a tender will start when the vessel departs from a 
port until that vessel returns to a port in which a shoreside 
processor or stationary floating processor with a valid FPP is 
located. The provision specifying return to a port where a processor 
with a valid FPP is located is added to ensure that, if the vessel 
is observed, the vessel operator returns that observer to a port 
from which transportation is available. NMFS also revised Sec.  
679.51(a)(1) to include a new paragraph that requires a catcher 
vessel to make at least one delivery to a tender vessel to be 
subject to the fishing trip definition for catcher vessels 
delivering to tender vessels.
    2. For reasons explained in the response to Comment 27, NMFS 
removed the proposed requirements at Sec.  679.51(a)(1)(ii)(B) and 
(C) and Sec.  679.7(g)(7) from this final rule. These deletions 
remove proposed regulations that would have required holders of FFPs 
issued after December 1 and operators of vessels fishing for IFQ or 
CDQ on vessels that had not landed groundfish or halibut in the 
previous year to enter their vessel information into ODDS within 30 
days of issuance of a new FFP or within 30 days of embarking on his 
or her first fishing trip of the year. Removing Sec.  
679.51(a)(1)(ii)(B) and (C) required renumbering of Sec.  
679.51(a)(1)(ii) and correction of cross references to this 
paragraph in Sec.  679.7(g)(7) and subpart E.

    This final rule includes minor organizational changes that 
incorporate the Freezer Longline Monitoring and Enforcement (FLL M&E) 
final rule (77 FR 59053, September 26, 2012). The FLL M&E final rule 
modified equipment, operational, and observer coverage requirements for 
vessels 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. The FLL M&E final rule revised 
Sec. Sec.  679.5, 679.7, 679.28, 679.32, and 679.50 and added a new 
Sec.  679.100. The FLL M&E final rule was published after the Observer 
Program proposed rule. This Observer Program final rule restructures 
the Observer Program regulations and therefore must re-number 
applicable paragraphs from the FFL M&E final rule. If these changes 
were not made in this final rule, then the regulations would be 
inconsistent with the FFL M&E final rule, which would undermine the 
intent of that final rule and would be confusing to the regulated 
public. The revisions made in this Observer Program final rule to 
incorporate regulations implemented under the FLL M&E final rule are as 
follows:

    1. Paragraph (a)(2)(vi)(E) is added to Sec.  679.51. This 
paragraph includes the new observer coverage requirements for the 
longline catcher/processor subsector, which include a vessel option 
to carry two observers, or add flow scales and carry one observer. 
Text also is added to Sec.  679.51(a)(2)(vi)(A)(3) to reflect the 
requirement, implemented in the FLL M&E final rule, that these same 
observer coverage requirements apply while these vessels are 
groundfish CDQ fishing.
    2. In Sec.  679.53(a)(5)(v)(C), the number of sets is changed 
from 60 to 30 to reflect the reduction in the minimum number of sets 
required for lead level 2 certification that was implemented by the 
FLL M&E final rule.
    3. The proposed redesignation of Sec.  679.32(c)(3)(ii)(G) is 
removed because this paragraph was removed by the FLL M&E final 
rule.
    4. Associated cross references are revised.

    This final rule adds the following regulatory text that currently 
exists in part 679 but was inadvertently omitted in the proposed rule. 
These omissions were not described in the proposed rule preamble 
because they were inadvertently omitted. NMFS received no comments on 
the omitted regulations, indicating that the public did not notice that 
the proposed rule proposed to remove these paragraphs of regulatory 
text. Therefore, regulated entities should expect that the 
inadvertently omitted paragraphs remain in Federal regulations. Failure 
to correct these omissions would remove regulations that NMFS intends, 
and the public expects, to remain in effect. Failure to correct these 
omissions would undermine the effectiveness of the Observer Program and 
create confusion for the regulated entities. In addition, if these 
omitted regulatory provisions are not included at this time, this final 
rule will be incorrect and NMFS would have to publish a correction 
notice. The revisions made in this Observer Program final rule to 
replace inadvertently omitted regulatory text are as follows:

    1. Sec.  679.5 (l)(7)(i)(E) was inadvertently omitted from the 
proposed revisions to Sec.  679.5(l)(7)(i). This existing regulation 
defines the reporting period of the IFQ Buyer Report. No changes 
were proposed to this

[[Page 70085]]

paragraph in the proposed rule for Amendments 86/76.
    2. Requirements that currently exist at Sec.  679.50(c)(6)(i)(A) 
and (c)(7)(i)(C) state that at least one of the two observers 
required on Amendment 80 vessels, non-AFA trawl catcher/processors, 
and catcher/processors participating in the Rockfish Program be 
certified as a lead level 2 observer. These requirements for a lead 
level 2 observer in these fisheries were inadvertently excluded in 
the proposed rule. The proposed rule for Amendments 86/76 indicated 
that these requirements were intended to be included in the proposed 
rule. Specifically, on page 23329 of the proposed rule NMFS stated 
that ``[t]he proposed rule would not modify observer coverage, 
experience, or workload requirements at 50 CFR part 679.50 for * * * 
Amendment 80 vessels and non-AFA trawl catcher/processors, and 
Rockfish Program vessels.'' This is also consistent with Section 
2.10.3 of the analysis that notes that these vessels continue to be 
subject to existing management requirements, these include the need 
for at least one lead level 2 observer. Therefore, in this final 
rule, NMFS adds the lead level 2 requirements in newly renumbered 
Sec. Sec.  679.5l(a)(2)(vi)(C) and (D).
    3. In Sec.  679.5l, paragraphs (e)(1)(iv) through 
(e)(2)(iii)(B)(2), which are in current regulations as Sec.  
679.50(g)(1)(iv) through (g)(2)(iii)(B)(2), were inadvertently 
omitted from the renumbering of Sec.  679.51 in the proposed rule. 
These paragraphs address responsibilities of vessel operators and 
shoreside processor or a stationary floating processor operators 
required to carry observers or maintain observer coverage. The 
proposed rule for Amendments 86/76 indicated that these requirements 
were intended to be included in the proposed rule. Specifically, on 
page 23345 of the proposed rule, NMFS stated that ``Regulations that 
are substantively unchanged by this proposed rule include 
responsibilities for vessels and shoreside and stationary floating 
processors required to carry an observer or maintain observer 
coverage* * *.'' Page 23345 of the preamble to the proposed rule 
also stated that ``many of the existing regulations in subpart E to 
50 CFR 679 (subpart E) would not be modified by this proposed rule. 
However, revisions and additions under this proposed rule would 
result in the renumbering of all sections at Subpart E. As such, 
subpart E as it would be revised by this proposed rule is presented 
in its entirety in the regulatory text section. However, NMFS does 
not propose to amend regulations that are not within the scope of 
this proposed rule.'' This correction is consistent with the clear 
intent of the proposed rule, and corrects an error made when 
renumbering of Subpart E.
    4. In Sec.  679.52, paragraph (b)(5), which is in current 
regulations as Sec.  679.50(i)(2)(v), was inadvertently omitted from 
the proposed rule. NMFS added paragraph (b)(5) to the final rule, 
renumbered paragraphs (b)(6) to (b)(13), and corrected associated 
cross references. This paragraph addresses the requirement for 
observer providers to respond to industry requests for observers.
    5. This final rule corrects the removal of Sec.  
679.50(g)(2)(iv) from the Code of Federal Regulations (CFR) sometime 
between the October 2006 and October 2007 editions. This paragraph 
requires the manager of a shoreside processor or stationary floating 
processor to ``[a]llow observers free and unobstructed access to the 
shoreside processor's or stationary floating processor's holding 
bins, processing areas, freezer spaces, weight scales, warehouses, 
and any other space that may be used to hold, process, weigh, or 
store fish or fish products at any time.'' These requirements were 
implemented in 1990 (55 FR 4839; February 12, 1990). The paragraph 
appears in the October 2006 edition of the CFR. However, in the 
October 2007 edition of the CFR, Sec.  679.50(g)(2)(iv) no longer 
appears. No final rules implemented between October 2006 and October 
2007 removed or revised this paragraph. Therefore, NMFS reinstates 
this paragraph to the CFR in this final rule as Sec.  
679.5l(e)(2)(iv).

    This final rule includes the following minor editorial revisions 
and revisions to amendatory instructions:

    1. The proposed rule at Sec.  679.51(a)(1)(ii) defined a system 
for the registration and notification of observer deployment and 
called this system the ``Observer Declaration and Deployment System 
(Deployment System).'' In this final rule, NMFS has changed the name 
of the system to the ``Observer Declare and Deploy System (ODDS).''
    2. The amendatory instructions in the proposed rule would have 
incorrectly removed paragraph (3) of the definition of mothership. 
This final rule has the correct amendatory instructions to remove 
and reserve paragraph (2) of the definition of ``Mothership.''
    3. The amendatory instruction in the proposed rule for Sec.  
679.32(c)(3)(i)(A) proposed removing only the introductory text, but 
it should have proposed removing the entire paragraph. This 
paragraph contained operational requirements for catcher vessels 
without observers while groundfish CDQ fishing. As reflected in the 
proposed rule, the observer coverage requirements for these vessels 
is in new Sec.  679.51, and the retention requirements are in new 
Sec.  679.32(c)(3)(i)(A) and (D).
    4. The correction to NMFS' Web site address in Sec.  679.32(e) 
in the proposed rule is not included in the final rule because the 
Web site address has been revised.

    Finally, regulations at 15 CFR 902.1(b) are amended to display the 
control number assigned by the Director of the Office of Management and 
Budget (OMB) for the collection-of-information imposed by this rule. 
Section 3507(c)(B)(i) of the Paperwork Reduction Act requires that 
agencies inventory and display a current control number assigned by the 
Director, OMB, for each agency information collection. 15 CFR 902.1(b) 
identifies the location of NOAA regulations for which OMB approval 
numbers have been issued.

Classification

    The Administrator, Alaska Region, NMFS determined that this final 
rule is necessary for the conservation and management of the groundfish 
fisheries off Alaska and that it is consistent with the MSA, the 
Northern Pacific Halibut Act of 1982, and other applicable laws.

Executive Order 12866

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

Final Regulatory Flexibility Analysis

    This Final Regulatory Flexibility Analysis (FRFA) addresses the 
requirements of section 604(a) of the Regulatory Flexibility Act. An 
initial regulatory flexibility analysis (IRFA) was prepared and 
summarized in the Classification section of the preamble to the 
proposed rule (ADDRESSES). Pursuant to Section 604(a), A FRFA must 
contain:
    1. A succinct statement of the need for, and objectives of, the 
rule;
    2. A summary of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
summary 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. 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;
    4. A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record; and
    5. 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 one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The ``universe'' of entities to be considered in a FRFA generally 
includes only those small entities that can reasonably be expected to 
be directly regulated by the action. If the effects of the rule fall 
primarily on a distinct segment of the industry, or portion thereof 
(e.g., user group, gear

[[Page 70086]]

type, geographic area), that segment would be considered the universe 
for purposes of this analysis.
    In preparing a FRFA, an agency may provide either a quantifiable or 
numerical description of the effects of a rule (and alternatives to the 
rule), or more general descriptive statements, if quantification is not 
practicable or reliable.

Need for and Objectives of This Final Action

    The need for, and objectives of, this action are described in an 
earlier section of the preamble titled ``Need for and Objectives of the 
Action,'' and this description is not repeated here.

Summary of Significant Issues Raised During Public Comment

    The proposed rule was published on April 18, 2012 (77 FR 23326), 
and was accompanied by an IRFA prepared pursuant to Section 603 of the 
Regulatory Flexibility Act. The comment period on the proposed rule 
ended on June 18, 2012. In addition, pursuant to section 313 of the 
MSA, NMFS conducted public hearings on the proposed rule in Oregon, 
Washington, and Alaska during the public comment period on the proposed 
rule.
    NMFS received 85 unique comments on the proposed rule and the 
analysis. The comments and NMFS' responses are summarized earlier in 
this final rule. Comments with reference to the impact of the proposed 
action on directly regulated small entities, or to the IRFA, cover the 
following topics: (a) Integrating small entities into the program 
(Comment 4); (b) safety concerns for small vessels (Comments 12 through 
16); (c) using electronic monitoring as an alternative because of cost, 
safety, or other benefits to small entities, or to comply with the 
Regulatory Flexibility Act (Comments 19, 68, 70 through 73, 76, and 
78); (d) releasing or exempting vessels from observer coverage 
(Comments 43 through 45, 47, 53, and 54); (e) applying reduced observer 
coverage requirements to small catcher/processors (Comments 50, and 
51); (f) analyzing and modifying the action to reduce costs for small 
entities (Comments 37, 40, 42, and 62); (g) relating the size of the 
observer recovery fee to vessel gross revenues (Comment 58); and (h) 
considering the impact of vessel selection pool observer coverage 
requirements on small vessels (Comments 33 through 35). None of these 
comments required NMFS make changes from the proposed to the final 
rule.
    NMFS is addressing the majority of the concerns expressed by small 
entities through outreach and communication about the restructured 
Observer Program. Additionally, NMFS addressed many of the concerns 
expressed in public comments in the 2013 Observer Program Annual 
Deployment Plan. Specifically, through the annual deployment plan 
process, NMFS removed small fixed gear vessels from the vessel 
selection pool and reduced the amount of time a vessel in the vessel 
selection pool will be required carry an observer from 3 months to 2 
months. NMFS made these changes in direct response to concerns by small 
entites.
    This final rule includes changes to the regulatory text and 
amendatory instructions published in the proposed rule. These changes 
fall into four categories: (1) Changes to the proposed regulations in 
response to public comment, (2) revisions needed to accommodate changes 
made to 50 CFR part 679 by a rule published after the proposed rule for 
Amendments 86/76 was published, (3) additions of existing regulatory 
text inadvertently not included in the proposed rule, and (4) minor 
editorial revisions and minor revisions to amendatory instructions. 
These changes are described in detail in the section of this preamble 
titled ``Changes from the Proposed Rule'' which immediately precedes 
this classifications section; that description is not repeated here.

Number and Description of Directly Regulated Small Entities

    For purposes of an FRFA, the U.S. Small Business Administration has 
established size criteria for all major industry sectors in the United 
States, including fish harvesting and fish processing businesses. 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. A seafood processor is a small business if it is 
independently owned and operated, not dominant in its field of 
operation (including affiliates) and employs 500 or fewer persons, on a 
full-time, part-time, temporary, or other basis, at all its affiliated 
operations, worldwide. A more detailed explanation of the size criteria 
may be found in the IRFA prepared for this action (ADDRESSES).
    This final action would directly regulate entities that harvest or 
process groundfish and halibut in Federal waters of the BSAI and GOA 
and vessels holding an FFP and harvesting groundfish in State waters 
that are accounted for under a Federal TAC. This specifically includes 
landings of (1) groundfish in the parallel fisheries in State waters, 
as that term is defined at Sec.  679.2, (2) groundfish incidental to 
harvest in State Guideline Harvest Level fisheries (Pacific cod, 
pollock, sablefish), and (3) groundfish incidental to harvest of 
halibut or sablefish IFQ in State waters. The six CDQ groups in the 
BSAI will also be directly regulated by this action. Refer to the RIR 
for detailed descriptions of each fishing sector by area, gear type, 
and program (see ADDRESSES).
    A total of 1,775 entities (including catcher vessels, catcher/
processors, motherships, shoreside processors, stationary floating 
processors, and CDQ groups) are estimated to be directly regulated by 
this final action. Of the directly regulated entities, 80 are estimated 
to be large. The table below (Table 1) summarizes all of the 
potentially directly regulated small entities, by sector, under this 
final action. Table 1 uses data from 2008, the same year used to assess 
the impact on directly regulated entities in the IRFA. Table 1 likely 
overestimates the number of directly regulated small entities. NMFS 
does not have access to data on ownership and other forms of 
affiliation for most segments of the fishing industry operating off 
Alaska. Absent these data, a more precise characterization of the size 
composition of the directly regulated entities impacted by this action 
cannot be offered. A more detailed description on the information and 
methods used to estimate the number of small entities is also provided 
in the IRFA prepared for the proposed rule and is not repeated here 
(see ADDRESSES).
    Table 1. Estimated number of small entities potentially directly 
regulated by this final action based on 2008 landings data. The total 
number of entities is additive such that a vessel or processor cannot 
appear in more than one category.

------------------------------------------------------------------------
                                                               Estimated
                                                               number of
                           Sector                                small
                                                               entities
------------------------------------------------------------------------
Halibut & sablefish IFQ \1\.................................       1,411
Groundfish catcher vessels \2\..............................         125
Groundfish catcher/processors \2\...........................           6
Motherships \3\.............................................           1
Shoreside processors & stationary floating processors.......         146
CDQ groups..................................................           6
------------------------------------------------------------------------
\1\ Includes any vessel that fished halibut IFQ, sablefish IFQ, or
  halibut CDQ. An estimated 761 of these vessels also fished groundfish.
\2\ Groundfish catcher vessel and catcher/processor data represent an
  estimate of the number of vessels that fished groundfish and did not
  fish halibut or sablefish IFQ.

[[Page 70087]]

 
\3\ Catcher/processors that acted as a catcher/processor and a
  mothership during 2008 are included in the catcher/processor category.
  The mothership category includes vessels that only operated as a
  mothership in 2008.

Recordkeeping and Reporting Requirements

    This final rule requires operators of vessels subject to the trip 
selection pool in the partial observer coverage category to register 
with ODDS at least 72 hours prior to embarking on a fishing trip to 
fish for halibut or directed fish for groundfish (see regulations at 
Sec.  679.51(a)). Operators of vessels in the vessel selection pool are 
required to coordinate with NMFS' observer provider as described in the 
instructions provided by the ODDS to arrange for observer coverage when 
the vessel is selected for coverage. No new reporting requirements 
apply to operators of vessels in the full observer coverage category or 
operators of shoreside processors and stationary floating processors to 
obtain required observer coverage.
    Landings information submitted by managers of shoreside processors 
and stationary floating processors under existing recordkeeping and 
reporting regulations are used to assess the observer fee liability for 
each landing. Managers of shoreside processors and stationary floating 
processors can access reports generated by NMFS' web-based application 
for a statement of the observer fee liability associated with each 
landing.
    This final rule modifies Sec.  679.5 to add a reporting requirement 
for IFQ Registered Buyers. Registered buyers who purchase CDQ halibut 
are required to report annually, the monthly total weight of CDQ 
halibut landed and purchased by the Registered Buyer, the monthly total 
price paid for CDQ halibut purchased by the Registered Buyer, and the 
monthly total amount paid for any retro-payments of CDQ halibut. 
Existing recordkeeping and reporting requirements for IFQ Registered 
Buyers continue to apply.
    This final rule modifies reporting requirements applicable to IFQ 
Registered Buyers at Sec.  679.5(l)(7)(i). This final rule requires 
that the IFQ Register Buyer submit the information instructed on the 
report form, instead of listing all of the data fields at Sec.  
679.5(l)(7)(i)(C)(1). This final rule revises regulations at Sec.  
679.5(l)(7)(i) to instruct a Registered Buyer to submit his or her 
completed report to the address provided on the report form. This final 
action removes the mailing address listed in regulation at Sec.  
679.5(l)(7)(i)(D) to allow for current address information to be 
provided on the form, rather than in regulation.
    This final rule requires that all vessels selected for observer 
coverage pass a USCG Commercial Fishing Vessel Safety Examination and 
document that process with a U.S. Coast Guard Safety Decal prior to an 
observer boarding the vessel. A partial exemption may be allowed for 
vessels less than 26 ft. LOA in remote locations. This inspection is a 
new requirement for vessels less than 60 ft. LOA. These requirements 
are detailed in U.S. Coast Guard Regulations at 33 CFR Chapter I and 46 
CFR Chapter I.
    No professional skills are necessary for the vessel or trip 
selection requirement or for scheduling the safety inspection. Limited 
professional skills would be necessary for preparation and submittal of 
the ex-vessel fees to NMFS, as NMFS would invoice the processor with 
the total amount.

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

    The Council considered five alternatives for this action, one no-
action and four action alternatives, and two options that could apply 
to the action alternatives. A complete description of these 
alternatives and the impacts of these alternatives is provided in the 
analysis prepared for this final action and is briefly summarized here 
(see ADDRESSES). Alternative 1 is the status quo; Alternative 2 
restructured observer coverage for vessels and processors in the GOA, 
and for vessels less than 60 ft. LOA and those fishing halibut IFQ in 
the BSAI; Alternative 3 restructured observer coverage for those 
vessels and processors that were required to have less than 100 percent 
observer coverage, and retained the existing management system for 
those vessels and processors required to have 100 percent or greater 
coverage; Alternative 4 restructured coverage requirements for all 
vessel and processor operations, required a daily fee for those 
operations required to have 100 percent or greater coverage, and an ex-
vessel value fee for those operations required to have less than 100 
percent coverage; Alternative 5 restructured coverage for all vessels 
and processors, and established an ex-vessel fee to fund the program.
    The Council also considered two options under the four action 
alternatives to establish fees. The first option considered 
establishing a 1.25 percent ex-vessel fee on vessel revenues to fund 
the program, the second option would have established a 1.25 percent 
ex-vessel fee, but provide that smaller vessels would be subject to a 
lesser fee.
    The preferred alternative, Alternative 3, was determined to best 
meet the purpose and need for the proposed action, and the objectives 
of the restructured program outlined in the problem statement. 
Alternative 3 modifies observer deployment for all operations currently 
receiving less than 100 percent observer coverage, including vessels 
participating in the less than 60 ft. LOA groundfish sector and the 
halibut sector. The analysis clearly identifies those sectors as the 
sectors with the most acute data quality concerns, lack of adequate 
data, and disproportionate costs for observer coverage relative to 
other fishing sectors. By comparison, Alternative 2 only restructures 
the observer program for the GOA groundfish and halibut fisheries and 
the vessels in the less than 60 ft. groundfish sector and halibut 
sector in the BSAI. Under this alternative, the 30 percent coverage 
requirements would still apply for vessels operating in the BSAI that 
are currently subject to the 30 percent requirement. Thus, Alternative 
2 does not capture all of the sectors that have less than 100 percent 
observer coverage requirements as is the case under Alternative 3. 
Alternative 4 is similar to Alternative 3, except that it increases 
costs to vessel operators, relative to Alternatives 2 and 3 by 
requiring they pay a daily fee to NMFS, instead of observer providers. 
The analysis indicates that Alternative 4 does not provide additional 
observer coverage compared to Alternative 3 for this additional cost. 
Alternative 5 does not appear to provide sufficient revenue to meet the 
same level of observer coverage that is estimated to be provided under 
Alternative 3.
    All of the action alternatives included assessing a fee and 
deploying observers on halibut vessels and vessels less than 60 ft. LOA 
in the GOA and the BSAI, which are likely to comprise the majority of 
the small entities affected by this rule. Impacts of this fee and 
observer coverage on small entities are described in Section 5 of the 
analysis (see ADDRESSES). During deliberations on the preferred 
alternative implemented by this final rule (Alternative 3), the Council 
was concerned with minimizing impacts to small entities, providing 
equity within the program, and increasing data quality, by including 
small vessels and halibut vessels in the Observer Program for the first 
time. No significant alternatives to this final action that meet the 
purpose and need and objectives for the action have been identified. 
This final rule and the 2013 Observer

[[Page 70088]]

Program Annual Deployment plan include several provisions that are 
intended to reduce economic impacts on small entities.
    Observer deployment among vessels in the partial coverage category 
differs for the smallest vessels. In the initial year(s) of the 
restructured program, NMFS proposes that catcher vessels using jig gear 
and catcher vessels less than 40 ft. LOA using pot or hook-and-line 
gear would not be selected to carry an observer. NMFS estimates that 
all of these vessels are likely to be small entities. Catcher vessels 
greater than or equal to 40 ft. LOA but less than 57.5 ft. LOA using 
pot or hook-and-line gear would be in the vessel selection pool. 
Vessels in the vessel selection pool could be randomly selected to 
carry an observer for a specified period of time. Vessels in the ``no 
selection'' pool would be required to pay the fee for landings subject 
to the new program, though they would not incur other direct or 
indirect costs of carrying an observer to the same extent as operators 
of vessels with higher probability of selection.
    This final rule includes a provision that limits observer coverage 
requirements, and associated costs, for some small catcher/processors. 
Under the preferred alternative implemented by this rule, all catcher/
processors would be placed in the full coverage category and operate 
under the status quo system funding and deployment system. Thus, 
groundfish and halibut catcher/processors less than 60 ft. LOA that 
have not been subject to observer coverage requirements would now be 
required to have 100 percent coverage under direct contracts with 
observer providers. An exception to this requirement to allows 
operators of catcher/processor vessels less than 60 ft. LOA with a 
history of operations as a catcher/processor and catcher vessel in a 
single year, or any catcher/processor vessel with an average daily 
production of less than 5,000 pounds in the most recent full calendar 
year of operation prior to January 1, 2010, to make a one-time election 
to be in the partial observer coverage category with the ex-vessel 
revenue fee structure or the full observer coverage category with the 
status quo funding system. This limited exemption to the full coverage 
requirements could reduce costs on these catcher/processors, so long as 
they elect to be in the partial coverage category.
    The Council selected a 1.25 percent ex-vessel fee for all vessels 
and processors subject to the new funding and deployment system. Under 
the authority of section 313 of the MSA, the Council could have 
recommended a maximum of a 2 percent fee on all vessels and processors 
subject to a fee under the Observer Program. The Council chose a fee of 
1.25 percent of ex-vessel value to balance the costs of vessel and 
processors operations with the amount necessary to collect adequate 
data in the partial coverage category.
    The Council considered, but did not adopt, an option that would 
establish an ex-vessel value fee equal to half of that selected under 
the preferred alternative to be assessed on all halibut IFQ landings 
and on groundfish landings from vessels less than 40 ft., less than 50 
ft., or less than 60 ft. LOA. An estimated 61 groundfish catcher 
vessels less than 60 ft. LOA and almost the entire IFQ fleet (great 
than 1,400 vessels) would have been assessed a reduced fee under this 
option, based on 2008 data. However, the Council chose to apply the 
same fee percentage to all sectors in the partial observer coverage 
category, to develop a fair and equitable fee program across all 
sectors subject to the new funding and deployment system. Because the 
Council selected, and this final rule implements, a 1.25 percent ex-
vessel fee for all vessels and processors subject to the new funding 
and deployment system, all small entities, regardless of the sector in 
which they participate, will benefit from a reduced fee relative to the 
maximum 2 percent fee that was under consideration.
    With the exception of the provisions discussed above, there do not 
appear to be significant alternatives to the proposed action that 
accomplish the stated objectives, are consistent with applicable 
statutes, and that would minimize the economic impact of the proposed 
rule on small entities. The Council recognized that costs of observer 
coverage could be minimized or eliminated for small entities (indeed, 
entities of all sizes) through a Federal subsidy program for observer 
coverage in the North Pacific, similar to federally funded observer 
subsidy programs in other regions of the United States. However, 
because the Council cannot appropriate Federal funds, an alternative 
for full Federal funding of observer coverage in the North Pacific was 
not included by the Council.

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 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.
    NMFS has posted a small entity compliance guide on the NMFS Alaska 
Region Web site (http://alaskafisheries.noaa.gov) as a plain language 
guide to assist small entities in complying with this rule. Contact 
NMFS to request a hard copy of the guide (see ADDRESSES).

Collection-of-Information Requirements

    This rule contains collection-of-information requirements subject 
to review and approval by OMB under the Paperwork Reduction Act (PRA). 
These requirements have been approved by OMB. The collections are 
listed below by OMB control number.
OMB Control No. 0648-0206
    Public reporting burden per response is estimated to average 21 
minutes for Federal Processor Permit application; and 21 minutes for 
Federal Fisheries Permit application.
OMB Control No. 0648-0272
    Public reporting burden per response is estimated to average 30 
minutes for Registered Buyer Permit application.
OMB Control No. 0648-0318
    Public reporting burden per response is estimated to average 30 
minutes for Observer Fee and receipt of the observer fee liability 
generated with each landing; 2 hours for registration with the Observer 
Declare and Deploy System; 4 hours for appeals; 60 hours for 
Application for an observer provider permit; 30 minutes for Industry 
request for assistance in improving observer data quality issues; 60 
hours for Application for an observer provider permit;15 minutes for 
Update to provider information; 15 minutes for Observer candidates' 
college transcripts and disclosure statements, observer candidate; 15 
minutes for Observer candidates' college transcripts and disclosure 
statements, observer provider; 5 minutes for Notification of observer 
physical examination, Observer Providers; 7 minutes for Projected 
observer assignments; 7 minutes for Observer briefing registration; 40 
hours for Observer Conduct and Behavior policy; 15 minutes for Copies 
of contracts; 30 minutes for Copies of invoices; 7 minutes for Observer 
deployment/logistics reports; 7 minutes for Observer debriefing 
registration; 12 minutes for Certificate of insurance; 2 hours for

[[Page 70089]]

Other reports concerning observer harassment, safety concerns, or other 
factors that may affect the completion of an observer's duties.
OMB Control No. 0648-0398
    Public reporting burden per response is estimated to average 2 
hours for Registered Buyer Ex-vessel Value and Volume Report (Buyer 
Report).
    Public reporting burden includes 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 [email protected], 
or fax to 202-395-7285.
    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.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: November 15, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, NMFS amends 15 CFR part 
902 and 50 CFR part 679 as follows:

TITLE 15--COMMERCE AND FOREIGN TRADE

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority:  44 U.S.C. 3501 et seq.


0
2. In Sec.  902.1, in the table in paragraph (b), under the entry ``50 
CFR:''
0
a. Add an entry in alphanumeric order for ``679.7(a)(3)'';
0
b. Add an entry in alphanumeric order for ``679.7(g)'';
0
c. Remove entry for ``679.32(c) and (e)'';
0
d. Add an entry in alphanumeric order for ``679.32(c)(1) and (2)'';
0
e. Add an entry in alphanumeric order for `679.32(c)(3)'';
0
f. Revise entry for ``679.32(d)'';
0
g. Add an entry in alphanumeric order for ``679.32(e)'';
0
h. Remove entry for ``679.50'';
0
i. Add an entry in alphanumeric order for ``679.50(a)''; and
0
j. Add entries for ``679.51''; ``679.52''; ``679.53''; ``679.54''; and 
``679.55.''
    The additions and revisions read as follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

----------------------------------------------------------------------------------------------------------------
  CFR part or section where the
      information collection                 Current OMB control number (all numbers begin with 0648-)
      requirement is located
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
50 CFR:
 
                                                  * * * * * * *
679.7(a)(3)......................  -0318
 
                                                  * * * * * * *
679.7(g).........................  -0318
 
                                                  * * * * * * *
679.32(c)(1) and (2).............  -0318
679.32(c)(3).....................  -0269 and -0318
679.32(d)........................  -0269, -0318, and -0330
679.32(e)........................  -0269
 
                                                  * * * * * * *
679.50(a)........................  -0206, -0269, and -0272
679.51...........................  -0206, -0269, -0272, -0318, -0401, -0513, -0545, -0565
679.52...........................  -0318
679.53...........................  -0318
679.54...........................  -0318
679.55...........................  -0206, -0272, -0318
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

TITLE 50--WILDLIFE AND FISHERIES

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

0
3. 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.; 
and Pub. L. 108-447.


0
4. In Sec.  679.1, revise paragraph (f) to read as follows:


Sec.  679.1  Purpose and scope.

* * * * *
    (f) Groundfish and Halibut Observer Program. Regulations in this 
part govern elements of the Groundfish and Halibut Observer Program.
* * * * *

0
5. In Sec.  679.2,
0
a. Remove the definitions for ``Fishing day'' and ``Legal 
proceedings'';
0
b. Remove and reserve paragraph (2) of the definition for 
``Mothership'';
0
c. Revise the definitions for ``Catcher/processor (C/P),'' 
``Decertification,'' paragraph (3) of ``Fishing Trip,'' and 
``Observer''; and

[[Page 70090]]

0
d. Add a definition for ``Parallel groundfish fishery'' in alphabetical 
order to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Catcher/processor (C/P) means, with respect to groundfish 
recordkeeping and reporting and subpart E of this part, a vessel that 
is used for catching fish and processing that fish.
* * * * *
    Decertification, as used in Sec.  679.53(c), means action taken by 
a decertifying official under Sec.  679.53(c)(3) to revoke 
certification of an observer or observer provider. An observer or 
observer provider whose certification is so revoked is decertified.
* * * * *
    Fishing Trip means: * * *
* * * * *
    (3) Groundfish and Halibut Observer Program. With respect to 
subpart E of this part, one of the following periods:
    (i) For a catcher vessel delivering to a shoreside processor or 
stationary floating processor, the period of time that begins when a 
catcher vessel departs a port to harvest fish until the offload or 
transfer of all fish from that vessel.
    (ii) For a catcher vessel delivering to a tender vessel, the period 
of time that begins when a catcher vessel departs from port to harvest 
fish until the vessel returns to a port in which a shoreside processor 
or stationary floating processor with a valid FPP is located.
* * * * *
    Observer means any
    (1) Individual employed by a permitted observer provider or a NMFS 
observer provider for the purpose of serving in the capacity of an 
observer aboard vessels and at shoreside processors or stationary 
floating processors under this part; or
    (2) NMFS employee deployed at the direction of the Regional 
Administrator or individual authorized by NMFS, aboard a vessel or at a 
shoreside processor or stationary floating processor for the purpose of 
serving in the capacity of an observer as required for vessels, 
shoreside processors, or stationary floating processors under Sec.  
679.51(a) or (b), or for other purposes of conservation and management 
of marine resources as specified by the Regional Administrator.
* * * * *
    Parallel groundfish fishery. With respect to subpart E of this 
part, parallel groundfish fishery means a fishery that occurs in waters 
of the State of Alaska (from 0 to 3 nm) adjacent to the BSAI or GOA 
management areas and opens concurrently with Federal groundfish 
fisheries such that groundfish catch is deducted from the Federal Total 
Allowable Catch.
* * * * *

0
6. In Sec.  679.4,
0
a. Redesignate paragraphs (d)(3)(iv) and (d)(3)(v) as paragraphs 
(d)(3)(v) and (d)(3)(vi), respectively;
0
b. Revise paragraph (d)(3)(iii), newly redesignated (d)(3)(v), and 
paragraphs (f)(1) and (f)(2); and
0
c. Add a new paragraph (d)(3)(iv) to read as follows:


Sec.  679.4  Permits.

* * * * *
    (d) * * *
    (3) * * *
    (iii) A Registered Buyer permit is issued on an annual cycle 
defined as March 1 through the end of February of the next calendar 
year, to persons that have a Registered Buyer application approved by 
the Regional Administrator.
    (iv) For the Registered Buyer application to be considered 
complete, all fees due to NMFS under Sec.  679.55 at the time of 
application must be paid.
    (v) A Registered Buyer permit is in effect from the first day of 
March in the year for which it is issued or from the date of issuance, 
whichever is later, through the end of the current annual cycle, unless 
it is revoked, suspended, surrendered in accordance with paragraph 
(a)(9) of this section, or modified under Sec.  600.735 or Sec.  
600.740 of this chapter.
* * * * *
    (f) * * *
    (1) Requirement. No shoreside processor of the United States, 
stationary floating processor, or CQE floating processor described at 
paragraph (f)(2) of this section may receive or process groundfish 
harvested in the GOA or BSAI unless the owner obtains a Federal 
processor permit (FPP) issued under this part. An FPP is issued without 
charge.
    (2) FPP application. To obtain, amend, or renew an FPP, the owner 
must complete an FPP application per the instructions at http://alaskafisheries.noaa.gov/ram.
    (i) For the FPP application to be considered complete, all fees due 
to NMFS under Sec.  679.55 at the time of application must be paid.
    (ii) Signature. The owner or authorized representative of the owner 
of the shoreside processor, stationary floating processor, or CQE 
floating processor must sign and date the application, certifying that 
all information is true, correct, and complete to the best of his/her 
knowledge and belief. If the application is completed by an authorized 
representative, proof of authorization must accompany the application.
* * * * *
0
7. In Sec.  679.5, revise paragraph (l)(7)(i) to read as follows:


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

* * * * *
    (l) * * *
    (7) * * *
    (i) IFQ Registered Buyer Ex-vessel Volume and Value Report (IFQ 
Buyer Report)--(A) Applicability. An IFQ Registered Buyer that operates 
as a shoreside processor and receives and purchases IFQ landings of 
sablefish or halibut or CDQ landings of halibut must submit annually to 
NMFS a complete IFQ Buyer Report as described in this paragraph (1) and 
as provided by NMFS for each reporting period, as described at 
paragraph (l)(7)(i)(E) of this section, in which the Registered Buyer 
receives IFQ fish or CDQ halibut.
    (B) Due date. A complete IFQ Buyer Report must be postmarked or 
received by the Regional Administrator not later than October 15 
following the reporting period in which the IFQ Registered Buyer 
receives the IFQ fish or CDQ halibut.
    (C) Information required. A complete IFQ Buyer Report must include 
the following information as instructed on the report form at http://alaskafisheries.noaa.gov/ram:
    (1) IFQ Registered Buyer identification.
    (2) Pounds purchased and values paid. (i) The monthly total 
weights, represented in IFQ equivalent pounds by IFQ species or CDQ 
halibut, that were landed at the landing port location and purchased by 
the IFQ Registered Buyer;
    (ii) The monthly total gross ex-vessel value, in U.S. dollars, of 
IFQ pounds, by IFQ species or CDQ halibut, that were landed at the 
landing port location and purchased by the IFQ Registered Buyer;
    (3) Value paid for price adjustments--(i) Retro-payments. The 
monthly total U.S. dollar amount of any retro-payments (correlated by 
IFQ species or CDQ halibut, landing month(s), and month of payment) 
made in the current year to IFQ, or to CDQ halibut permit holders for 
landings made during the previous calendar year;
    (ii) Electronic submittal. Certification, including the NMFS ID and 
password of the IFQ Registered Buyer; or
    (iii) Non-electronic submittal. Certification, including the 
printed name and signature of the individual

[[Page 70091]]

submitting the IFQ Buyer Report on behalf of the Registered Buyer, and 
date of signature.
    (D) Submittal. If applicable, the Registered Buyer must complete an 
IFQ Buyer Report and submit by mail or FAX to NMFS at the address 
provided on the form, or electronically to NMFS online at http://alaskafisheries.noaa.gov/ram.
    (E) Reporting period. The reporting period of the IFQ Buyer Report 
shall extend from October 1 through September 30 of the following year, 
inclusive.
* * * * *

0
8. In Sec.  679.7,
0
a. Redesignate paragraph (g)(7) as (g)(8);
0
b. Revise paragraph (a)(3) and paragraph (g) heading; and
0
c. Add a new paragraph (g)(7) to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (a) * * *
    (3) Groundfish and Halibut Observer Program. (i) Fish or process 
groundfish except in compliance with the terms of the Groundfish and 
Halibut Observer Program as provided by subpart E of this part.
    (ii) Except where observer services are provided by a NMFS employee 
or other individuals authorized by NMFS under Sec.  679.51(c) or Sec.  
679.51(d)(1)(ii), deploy observers in the full observer coverage 
category at Sec.  679.51(a)(2) and (b)(2) without an observer provider 
permit issued under Sec.  679.52(a).
* * * * *
    (g) Groundfish and Halibut Observer Program. * * *
* * * * *
    (7) Embark on a fishing trip to directed fish for groundfish or to 
fish for halibut with hook-and-line gear without carrying an observer 
if the fishing trip is selected for observer coverage per Sec.  
679.51(a)(1)(ii)(C)(2), or the vessel is selected for observer coverage 
per Sec.  679.51(a)(1)(ii)(D).
* * * * *

0
9. In Sec.  679.32,
0
a. Revise the section heading;
0
b. Remove paragraphs (c)(1) introductory text, (c)(3)(i)(A), and 
(c)(3)(ii)(A);
0
c. Redesignate paragraphs according to the following table;

----------------------------------------------------------------------------------------------------------------
       Redesignate paragraph(s)                                     As paragraph(s)
----------------------------------------------------------------------------------------------------------------
(c)(1)(i)............................  (c)(1)(ii)(A).
(c)(1)(ii)...........................  (c)(1)(ii)(B).
(c)(3)(i)(B) through (c)(3)(i)(F)....  (c)(3)(i)(A) through (c)(3)(i)(E), respectively.
(c)(3)(ii)(B) through (c)(3)(ii)(F)..  (c)(3)(ii)(A) through (c)(3)(ii)(E), respectively.
----------------------------------------------------------------------------------------------------------------

0
d. Revise newly redesignated paragraphs (c)(3)(i)(A) heading, 
(c)(3)(i)(A)(1), (c)(3)(i)(B)(1), (c)(3)(i)(C)(1), (c)(3)(i)(D), and 
(c)(3)(i)(E)(1);
0
e. Revise paragraphs (c)(2)(i)(A) and (d)(2)(i); and
0
f. Add paragraphs (c)(1)(i), (c)(1)(ii) heading and introductory text, 
and (d)(1)(iii) to read as follows:


Sec.  679.32  Groundfish and halibut CDQ catch monitoring.

* * * * *
    (c) * * *
    (1) * * *
    (i) Observer coverage. Operators and owners of catcher vessels 
sablefish CDQ fishing must comply with observer coverage requirements 
at Sec.  679.51(a)(1). Operators and owners of catcher/processors 
sablefish CDQ fishing must comply with observer coverage requirements 
at Sec.  679.51(a)(2).
    (ii) Data sources used for CDQ catch accounting. NMFS will use the 
following data sources to account for catch made by vessels sablefish 
CDQ fishing with fixed gear:
    (2) * * *
    (i) * * *
    (A) Comply with observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (3) * * *
    (i) * * *
    (A) Catcher vessels using trawl gear and delivering sorted catch to 
a processor. * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (B) * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (C) * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (D) Observed catcher vessels using nontrawl gear. Operators of 
vessels in this category must retain all CDQ species until they are 
delivered to a processor that meets the requirements of paragraph (d) 
of this section unless retention of groundfish CDQ species is not 
authorized under Sec.  679.4, discard of the groundfish CDQ or PSQ 
species is required under subpart B of this part, or, in waters within 
the State of Alaska, discard is required by laws of the State of 
Alaska. All of the halibut PSQ must be counted and sampled for length 
or weight by the observer.
    (E) * * *
    (1) 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 observer coverage requirements at Sec.  
679.51(a)(2)(vi)(A)(4); and
* * * * *
    (d) * * *
    (1) * * *
    (iii) Comply with observer coverage requirements at Sec.  
679.51(b)(2).
    (2) * * *
    (i) Comply with observer coverage requirements at Sec.  
679.51(b)(1).
* * * * *

0
10. Under part 679, revise subpart E heading to read as follows:

Subpart E--Groundfish and Halibut Observer Program

0
11. Revise Sec.  679.50 to read as follows:


Sec.  679.50  Applicability.

    (a) General. (1) The operator of a vessel designated or required to 
be designated on a Federal fisheries permit (FFP) under Sec.  679.4(b); 
the operator of a processor designated or required to be designated on 
a Federal processor permit (FPP) under Sec.  679.4(f)(1) or a 
Registered Buyer permit under Sec.  679.4(d)(3); and the operator of a 
vessel used to harvest IFQ halibut, CDQ halibut, or IFQ sablefish must 
comply with this subpart. The owner of a vessel or a shoreside 
processor must ensure that the operator or manager complies with this 
subpart.
    (2) Exceptions. A catcher vessel that delivers only unsorted 
codends to a mothership is not subject to the requirements of this 
subpart.
    (3) For purposes of this subpart, halibut means CDQ and IFQ 
halibut.
    (b) [Reserved]

0
12. A new Sec.  679.51 is added to Subpart E to read as follows:

[[Page 70092]]

Sec.  679.51  Observer requirements for vessels and plants.

    The table in paragraph (f) of this section provides a reference to 
the paragraphs in this section that contain observer coverage 
requirements for vessels, shoreside processors, and stationary floating 
processors participating in certain fishery programs. (a) Observer 
requirements for vessels--(1) Groundfish and halibut fishery partial 
observer coverage category--(i) Vessel classes in partial coverage 
category. Unless otherwise specified in paragraph (a)(2) of this 
section, the following catcher vessels are in the partial observer 
coverage category when fishing for halibut with hook-and-line gear or 
when directed fishing for groundfish in a federally managed or parallel 
groundfish fishery, as defined at Sec.  679.2:
    (A) A catcher vessel designated on an FFP under Sec.  679.4(b)(1); 
or
    (B) A catcher vessel when fishing for halibut with hook-and-line 
gear and while carrying a person named on a permit issued under Sec.  
679.4(d)(1)(i), Sec.  679.4(d)(2)(i), or Sec.  679.4(e)(2), or for 
sablefish IFQ with hook-and-line or pot gear and while carrying a 
person named on a permit issued under Sec.  679.4(d)(1)(i) or Sec.  
679.4(d)(2)(i).
    (ii) Registration and notification of observer deployment. The 
Observer Declare and Deploy System (ODDS) is the communication platform 
for the partial observer coverage category by which NMFS receives 
information about fishing plans subject to randomized observer 
deployment. Vessel operators provide fishing plan and contact 
information to NMFS and receive instructions through ODDS for 
coordinating with an observer provider for any required observer 
coverage. Access to ODDS is available through the NMFS Alaska Region 
Web site at http://alaskafisheries.noaa.gov.
    (A) Registration. NMFS will enter information into ODDS about all 
partial coverage category vessels that are designated on an FFP and all 
catcher vessels that are not designated on an FFP but that landed 
sablefish IFQ or halibut IFQ or CDQ in the previous or current year. 
Owners or operators are not responsible for initial registration of 
their vessel in ODDS.
    (B) Notification. Upon entry into ODDS, NMFS will notify the owner 
or operator as to whether his or her vessel is entered in either a 
``vessel'' or ``trip'' selection pool. Owners and operators must comply 
with all further instructions set forth by ODDS.
    (C) Trip selection pool. (1) A minimum of 72 hours prior to 
embarking on each fishing trip, the operator of a vessel in the trip 
selection pool must register the anticipated trip with ODDS.
    (2) When a fishing trip is registered with ODDS per paragraph 
(a)(1)(ii)(C)(1) of this section, the vessel operator will be notified 
by ODDS whether the trip is selected for observer coverage and a 
receipt number corresponding to this notification will be provided by 
ODDS. Trip registration is complete when the vessel operator receives a 
receipt number.
    (3) An operator may embark on a fishing trip registered with ODDS:
    (i) Not selected trip. At any time if ODDS indicates that the 
fishing trip is not selected for observer coverage.
    (ii) Selected trip. When an observer is aboard the vessel if ODDS 
indicates that the fishing trip is selected for observer coverage.
    (4) Delayed trip. A selected fishing trip not embarked upon within 
48 hours of the time specified in the registration with ODDS is 
invalidated. The operator must register any new trip in accordance with 
paragraph (a)(1)(ii)(C)(1) of this section.
    (5) Observer coverage duration. If selected, a vessel is required 
to carry an observer for the entire fishing trip.
    (i) A fishing trip selected for observer coverage may not begin 
until all previously harvested fish has been offloaded and an observer 
is aboard the vessel.
    (ii) An observer may not be transferred off a catcher vessel until 
the observer confirms that all fish from the observed fishing trip are 
offloaded.
    (iii) A vessel must make a minimum of one delivery to a tender 
vessel to be subject to paragraph (3)(ii) of the fishing trip 
definition at Sec.  679.2.
    (D) Vessel selection pool. (1) A vessel selected for observer 
coverage is required to have an observer on board for all groundfish 
and halibut fishing trips specified at paragraph (a)(1)(i) of this 
section for the time period indicated by ODDS.
    (2) At its discretion, NMFS may provide electronic monitoring 
equipment to a vessel owner or operator to use on a vessel. A vessel 
owner or operator must coordinate with NMFS to make the vessel 
available for evaluation and installation of electronic monitoring 
equipment if NMFS determines that electronic monitoring is appropriate.
    (iii) Release from observer coverage. The Observer Program may 
release a selected trip per paragraph (a)(1)(ii)(C) of this section or 
a selected vessel per paragraph (a)(1)(ii)(D) of this section, from 
observer coverage on a case-by-case basis.
    (2) Groundfish and halibut fishery full observer coverage 
category--(i) Vessel classes in the full coverage category. The 
following classes of vessels are in the full observer coverage category 
when harvesting halibut or when harvesting, receiving, or processing 
groundfish in a federally managed or parallel groundfish fishery, as 
defined at Sec.  679.2:
    (A) Catcher/processors;
    (B) Motherships; and
    (C) Catcher vessels while:
    (1) Directed fishing for pollock in the BS;
    (2) Using trawl gear or hook-and-line gear while groundfish CDQ 
fishing (see Sec.  679.2); or
    (3) Participating in the Rockfish Program.
    (ii) Observer coverage requirements. Unless subject to the partial 
observer coverage category per paragraph (a)(1)(i) of this section, a 
vessel listed in paragraphs (a)(2)(i)(A) through (C) of this section 
must have at least one observer aboard the vessel at all times. Some 
fisheries require additional observer coverage in accordance with 
paragraph (a)(2)(vi) of this section.
    (iii) Observer workload. The time required for an observer to 
complete sampling, data recording, and data communication duties per 
paragraph (a)(2) of this section may not exceed 12 consecutive hours in 
each 24-hour period.
    (iv) Catcher/processor classification. (A) For purposes of this 
subpart, a vessel is classified as a catcher/processor according to the 
operation designation on its FFP. A vessel designated as a catcher/
processor at any time during the calendar year is classified as a 
catcher/processor for the remainder of the calendar year.
    (B) An owner or operator of a catcher/processor that processes no 
more than one metric ton round weight of groundfish on any day, may be 
included in the partial observer coverage category in lieu of the full 
coverage category for the following calendar year.
    (v) One-time election of observer coverage category. The owner of a 
vessel less than 60 ft. LOA with a history of catcher/processor and 
catcher vessel activity in a single year from January 1, 2003, through 
January 1, 2010; or any catcher/processor with an average daily 
groundfish production of less than 5,000 pounds round weight equivalent 
in the most recent full calendar year of operation from January 1, 
2003, to January 1, 2010, may make a one-time election as to whether 
the vessel will be in the partial observer coverage category at 
paragraph (a)(1) of this section, or the full observer coverage 
category at

[[Page 70093]]

paragraph (a)(2) of this section. The daily groundfish production 
average is based on the number of days the vessel operated each year 
from January 1, 2003, through January 1, 2010.
    (A) Notification of election. The person named on the FFP for a 
vessel eligible for the one-time election must notify the Regional 
Administrator, NMFS, P.O. Box 21668, Juneau, AK 99802, of their 
election in writing, at least 30 days prior to embarking on his or her 
first fishing trip.
    (B) Default coverage category. If an owner forgoes the opportunity 
for the one-time election, the vessel will be assigned to the partial 
or full observer coverage category per paragraphs (a)(1)(i) or 
(a)(2)(i) of this section.
    (C) Effective duration. The one-time election is effective for:
    (1) The duration that both the catcher/processor and catcher vessel 
designations are listed on the FFP for vessels less than 60 ft. LOA; or
    (2) The duration the FFP is issued to the person named on the FFP 
at the time of the election for catcher/processors with an average 
daily production of less than 5,000 pounds round weight equivalent in 
the most recent full calendar year of operation from January 1, 2003, 
through January 1, 2010.
    (vi) Additional observer requirements--(A) CDQ fisheries. The owner 
or operator of a vessel must comply with the following requirements 
each day that the vessel is used to catch, process, deliver, or receive 
CDQ groundfish.
    (1) Catcher/processors using trawl gear and directed fishing for 
pollock CDQ in the BSAI and motherships taking deliveries from catcher 
vessels directed fishing for pollock CDQ in the BSAI. See paragraph 
(a)(2)(vi)(B)(2) of this section.
    (2) Catcher/processors using trawl gear and groundfish CDQ fishing. 
See paragraph (a)(2)(vi)(C) of this section.
    (3) Catcher/processors using hook-and-line gear and groundfish CDQ 
fishing. See paragraph (a)(2)(vi)(E) of this section.
    (4) Catcher/processors using pot gear for groundfish CDQ fishing. A 
catcher/processor using pot gear must have at least one lead level 2 
observer aboard the vessel. More than one observer must be aboard if 
the observer workload restriction would otherwise preclude sampling as 
required.
    (5) Motherships. A mothership that receives unsorted codends from 
catcher vessels groundfish CDQ fishing must have at least two level 2 
observers aboard the mothership, at least one of whom must be certified 
as a lead level 2 observer. More than two observers must be aboard if 
the observer workload restriction would otherwise preclude sampling as 
required.
    (B) BSAI pollock fisheries--(1) Listed AFA catcher/processors and 
AFA motherships. The owner or operator of a listed AFA catcher/
processor or AFA mothership must have aboard at least two observers, at 
least one of which must be certified as a lead level 2 observer, for 
each day that the vessel is used to catch, process, or receive 
groundfish. More than two observers must be aboard if the observer 
workload restriction would otherwise preclude sampling as required.
    (2) Pollock CDQ catcher/processors and motherships. The owner or 
operator of a catcher/processor or mothership used to catch, process, 
or receive pollock CDQ must comply with the observer coverage 
requirements in paragraph (a)(2)(vi)(B)(1) of this section for each day 
that the vessel is used to catch, process, or receive pollock CDQ.
    (3) Unlisted AFA catcher/processors. The owner or operator of an 
unlisted AFA catcher/processor must have aboard at least two observers 
for each day that the vessel is used to engage in directed fishing for 
pollock in the BSAI, or receive pollock harvested in the BSAI. At least 
one observer must be certified as a lead level 2 observer. When an 
unlisted AFA catcher/processor is not engaged in directed fishing for 
BSAI pollock and is not receiving pollock harvested in the BSAI, the 
observer coverage requirements at paragraph (a)(2)(ii) of this section 
apply.
    (4) AI directed pollock fishery catcher/processors and motherships. 
A catcher/processor participating in the AI directed pollock fishery or 
a mothership processing pollock harvested in the AI directed pollock 
fishery must have aboard at least two observers, at least one of which 
must be certified as a lead level 2 observer, for each day that the 
vessel is used to catch, process, or receive groundfish. More than two 
observers must be aboard if the observer workload restriction would 
otherwise preclude sampling as required.
    (C) Amendment 80 vessels and catcher/processors not listed in Sec.  
679.4(1)(2)(i) and using trawl gear in the BSAI. All Amendment 80 
vessels using any gear but dredge gear while directed fishing for 
scallops and catcher/processors not listed in Sec.  679.4(1)(2)(i) and 
using trawl gear in the BSAI must have aboard at least two observers 
for each day that the vessel is used to catch, process, or receive 
groundfish harvested in a federally managed or parallel groundfish 
fishery. At least one observer must be certified as a lead level 2 
observer. More than two observers are required if the observer workload 
restriction would otherwise preclude sampling as required.
    (D) Catcher/processors participating in the Rockfish Program--(1) 
Rockfish cooperative. A catcher/processor that is named on an LLP 
license that is assigned to a rockfish cooperative and is fishing under 
a CQ permit must have at least two observers aboard for each day that 
the vessel is used to catch or process fish in the Central GOA from May 
1 through the earlier of November 15 or the effective date and time of 
an approved rockfish cooperative termination of fishing declaration. At 
least one observer must be certified as a lead level 2 observer. More 
than two observers must be aboard if the observer workload restriction 
would otherwise preclude sampling as required.
    (2) Rockfish sideboard fishery for catcher/processors in a rockfish 
cooperative. A catcher/processor that is subject to a sideboard limit 
as described under Sec.  679.82(e) must have at least two observers 
aboard for each day that the vessel is used to harvest or process fish 
in the West Yakutat District, Central GOA, or Western GOA management 
areas from July 1 through July 31. At least one observer must be 
certified as a lead level 2 observer. More than two observers must be 
aboard if the observer workload restriction would otherwise preclude 
sampling as required.
    (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. More than two observers are 
required if the observer workload restriction would otherwise preclude 
sampling as required.
    (2) Scales option. If the vessel owner selects the scales option 
under Sec.  679.100(b)(2), one lead level 2 observer 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.
    (b) Observer requirements for shoreside processors and stationary

[[Page 70094]]

floating processors--(1) Shoreside processor and stationary floating 
processor partial observer coverage category. (i) Unless otherwise 
specified in paragraph (b)(2) of this section, a shoreside processor or 
a stationary floating processor designated or required to be designated 
on an FPP under Sec.  679.4(f)(1) is in the partial observer coverage 
category when receiving or processing groundfish harvested in federally 
managed or parallel groundfish fisheries, as defined at Sec.  679.2.
    (ii) Coverage. The manager of a shoreside processor or stationary 
floating processor must provide observers access to unsorted and sorted 
catch any time an observer is present at the facility.
    (2) Shoreside processor and stationary floating processor full 
observer coverage category. An AFA inshore processor is in the full 
observer coverage category.
    (i) Coverage level. An AFA inshore processor must provide an 
observer for each 12 consecutive-hour period of each calendar day 
during which the processor takes delivery of, or processes, groundfish 
harvested by a vessel engaged in a directed pollock fishery in the BS. 
An AFA inshore processor that, for more than 12 consecutive hours in a 
calendar day, takes delivery of or processes pollock harvested in the 
BS directed pollock fishery must provide two observers for each such 
day.
    (ii) Multiple processors. An observer deployed to an AFA inshore 
processor may not be assigned to cover more than one processor during a 
calendar day in which the processor receives or processes pollock 
harvested in the BS directed pollock fishery.
    (iii) Observers transferring between vessels and processors. An 
observer transferring from an AFA catcher vessel to an AFA inshore 
processor may not be assigned to cover the AFA inshore processor until 
at least 12 hours after offload and sampling of the catcher vessel's 
delivery is completed.
    (c) NMFS employee observers. (1) Any vessel, shoreside processor, 
or stationary floating processor required to comply with observer 
coverage requirements under paragraphs (a) or (b) of this section or 
under Sec.  679.7(f)(4) must use, upon written notification by the 
Regional Administrator, a NMFS employee to satisfy observer coverage 
requirements as specified in paragraphs (a) and (b) of this section or 
for other conservation and management purposes as specified by the 
Regional Administrator.
    (2) Prior to deployment of a NMFS employee, the agency will provide 
written notification to the owner or operator of a vessel, shoreside 
processor, or stationary floating processor whether observer coverage 
credit will be granted for that deployment.
    (3) Vessel, shoreside processor, and stationary floating processor 
owners and operators, as well as observers and observer providers, may 
contact NMFS in writing to request assistance in improving observer 
data quality and resolving observer sampling issues. Requests may be 
submitted to: NMFS Observer Program Office, 7600 Sand Point Way NE., 
Seattle, WA 98115-0070 or transmitted by facsimile to 206-526-4066.
    (d) Procurement of observer services--(1) Full coverage category. 
(i) The owner of a vessel, shoreside processor, or stationary floating 
processor required to have full observer coverage under paragraphs 
(a)(2) and (b)(2) of this section must arrange and pay for observer 
services from a permitted observer provider.
    (ii) The owner of a vessel, shoreside processor, or stationary 
floating processor is required to arrange and pay for observer services 
directly from NMFS when the agency has determined and notified them 
under paragraph (c) of this section that the vessel, shoreside 
processor, or stationary floating processor shall use a NMFS employee 
or individual authorized by NMFS in lieu of, or in addition to, an 
observer provided through a permitted observer provider to satisfy 
requirements under paragraphs (a)(2) and (b)(2) of this section or for 
other conservation and management purposes.
    (2) Partial coverage category. The owner of a vessel in the partial 
observer coverage category per paragraph (a)(1) of this section must 
comply with instructions provided by ODDS to procure observer coverage 
for the required duration.
    (e) Responsibilities--(1) Vessel responsibilities. An operator of a 
vessel required to carry one or more observers must:
    (i) Accommodations and food. Provide, at no cost to observers or 
the United States, accommodations and food on the vessel for the 
observer or observers that are equivalent to those provided for 
officers, engineers, foremen, deck-bosses, or other management level 
personnel of the vessel.
    (ii) Safe conditions. (A) Maintain safe conditions on the vessel 
for the protection of observers including adherence to all U.S. Coast 
Guard and other applicable rules, regulations, or statutes pertaining 
to safe operation of the vessel.
    (B) Have on board:
    (1) A valid Commercial Fishing Vessel Safety Decal issued within 
the past 2 years that certifies compliance with regulations found in 33 
CFR Chapter I and 46 CFR Chapter I;
    (2) A certificate of compliance issued pursuant to 46 CFR 28.710; 
or
    (3) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
    (iii) Transmission of data. Facilitate transmission of observer 
data by:
    (A) Observer use of equipment. Allowing observers to use the 
vessel's communications equipment and personnel, on request, for the 
confidential entry, transmission, and receipt of work-related messages, 
at no cost to the observers or the United States.
    (B) Communication equipment requirements. In the case of an 
operator of a catcher/processor, mothership, a catcher vessel 125 ft. 
LOA or longer (except for a vessel fishing for groundfish with pot 
gear), or a catcher vessel participating in the Rockfish Program:
    (1) Observer access to computer. Making a computer available for 
use by the observer. This computer must be connected to a communication 
device that provides a point-to-point connection to the NMFS host 
computer.
    (2) NMFS-supplied software. Ensuring that the catcher/processor, 
mothership, or catcher vessel specified in paragraph (e)(1) of this 
section has installed the most recent release of NMFS data entry 
software provided by the Regional Administrator, or other approved 
software.
    (3) Functional and operational equipment. Ensuring that the 
communication equipment required in paragraph (e)(1)(iii)(B) of this 
section and that is used by observers to enter and transmit data, is 
fully functional and operational. ``Functional'' means that all the 
tasks and components of the NMFS supplied, or other approved, software 
described at paragraph (e)(1)(iii)(B)(2) of this section and the data 
transmissions to NMFS can be executed effectively aboard the vessel by 
the communications equipment.
    (iv) Vessel position. Allow observers access to, and the use of, 
the vessel's navigation equipment and personnel, on request, to 
determine the vessel's position.
    (v) Access. Allow observers free and unobstructed access to the 
vessel's bridge, trawl or working decks, holding bins, processing 
areas, freezer spaces, weight scales, cargo holds, and any other space 
that may be used to hold, process, weigh, or store fish or fish 
products at any time.

[[Page 70095]]

    (vi) Prior notification. Notify observers at least 15 minutes 
before fish are brought on board, or fish and fish products are 
transferred from the vessel, to allow sampling the catch or observing 
the transfer, unless the observers specifically request not to be 
notified.
    (vii) Records. Allow observers to inspect and copy the vessel's 
DFL, DCPL, product transfer forms, any other logbook or document 
required by regulations, printouts or tallies of scale weights, scale 
calibration records, bin sensor readouts, and production records.
    (viii) Assistance. Provide all other reasonable assistance to 
enable observers to carry out their duties, including, but not limited 
to:
    (A) Measuring decks, codends, and holding bins.
    (B) Providing the observers with a safe work area adjacent to the 
sample collection site.
    (C) Collecting bycatch when requested by the observers.
    (D) Collecting and carrying baskets of fish when requested by 
observers.
    (E) Allowing observers to determine the sex of fish when this 
procedure will not decrease the value of a significant portion of the 
catch.
    (F) Collecting all seabirds that are incidentally taken on the 
observer-sampled portions of hauls using hook-and-line gear or as 
requested by an observer during non-sampled portions of hauls.
    (ix) Transfer at sea. (A) Ensure that transfers of observers at sea 
are carried out during daylight hours, under safe conditions, and with 
the agreement of observers involved.
    (B) Notify observers at least 3 hours before observers are 
transferred, such that the observers can collect personal belongings, 
equipment, and scientific samples.
    (C) Provide a safe pilot ladder and conduct the transfer to ensure 
the safety of observers during transfers.
    (D) Provide an experienced crew member to assist observers in the 
small boat or raft in which any transfer is made.
    (2) Shoreside processor and stationary floating processor 
responsibilities. A manager of a shoreside processor or a stationary 
floating processor that is required to maintain observer coverage as 
specified under paragraph (d) of this section must:
    (i) Safe conditions. Maintain safe conditions at the shoreside 
processing facility for the protection of observers by adhering to all 
applicable rules, regulations, or statutes pertaining to safe operation 
and maintenance of the processing facility.
    (ii) Operations information. Notify the observers, as requested, of 
the planned facility operations and expected receipt of groundfish 
prior to receipt of those fish.
    (iii) Transmission of data. Facilitate transmission of observer 
data by:
    (A) Observer use of equipment. Allowing observers to use the 
shoreside processor's or stationary floating processor's communication 
equipment and personnel, on request, for the entry, transmission, and 
receipt of work-related messages, at no cost to the observers or the 
United States.
    (B) Communication equipment requirements--(1) Observer access to 
computer. Making a computer available for use by the observer. This 
computer must be connected to a communication device that provides a 
point-to-point connection to the NMFS host computer.
    (2) NMFS-supplied software. Ensuring that the shoreside or 
stationary floating processor specified in paragraph (e)(2) of this 
section has installed the most recent release of NMFS data entry 
software provided by the Regional Administrator, or other approved 
software.
    (3) Functional and operational equipment. Ensuring that the 
communication equipment required in paragraph (e)(2)(iii)(B) of this 
section and that is used by observers to enter and transmit data, is 
fully functional and operational. ``Functional'' means that all the 
tasks and components of the NMFS supplied, or other approved, software 
described at paragraph (e)(2)(iii)(B)(2) of this section and the data 
transmissions to NMFS can be executed effectively aboard the vessel by 
the communications equipment.
    (iv) Access. Allow observers free and unobstructed access to the 
shoreside processor's or stationary floating processor's holding bins, 
processing areas, freezer spaces, weight scales, warehouses, and any 
other space that may be used to hold, process, weigh, or store fish or 
fish products at any time.
    (v) Document access. Allow observers to inspect and copy the 
shoreside processor's or stationary floating processor's landing 
report, product transfer forms, any other logbook or document required 
by regulations; printouts or tallies of scale weights; scale 
calibration records; bin sensor readouts; and production records.
    (vi) Assistance. Provide all other reasonable assistance to enable 
the observer to carry out his or her duties, including, but not limited 
to:
    (A) Assisting the observer in moving and weighing totes of fish.
    (B) Providing a secure place to store sampling gear.
    (3) The owner of a vessel, shoreside processor, stationary floating 
processor, or buying station is responsible for compliance and must 
ensure that the operator or manager of a vessel, shoreside processor, 
or stationary floating processor required to maintain observer coverage 
under paragraphs (a) or (b) of this section complies with the 
requirements given in paragraphs (e)(1) and (e)(2) of this section.
    (f) Reference table for observer coverage requirements.

----------------------------------------------------------------------------------------------------------------
                                                                                                  Shoreside and
                                                                                                   stationary
             Program               Catcher/Processors    Catcher vessels        Motherships         floating
                                                                                                   processors
----------------------------------------------------------------------------------------------------------------
(1) Groundfish CDQ--Nontrawl      (a)(2)(vi)(E) hook-   (a)(2)(i)(C) hook-  (a)(2)(vi)(A)(5)..  (b)(1)
 Gear.                             and-line;            and-line;
                                   (a)(2)(vi)(A)(4)     (a)(1)(i) pot.
                                   pot.
(2) Groundfish CDQ--Trawl Gear..  (a)(2)(vi)(A)(1)...  (a)(2)(i)(C).......  (a)(2)(vi)(A)(5)..  (b)(1)
(3) Halibut--CDQ and IFQ........  (a)(2)(i)(A) or      (a)(1)(i)(A) and     (a)(2)(i)(B)......  (b)(1)
                                   (a)(2)(iv).          (B).
(4) Sablefish--CDQ and IFQ......  (a)(2)(i)(A) or      (a)(1)(i)(A) and     (a)(2)(i)(B)......  (b)(1)
                                   (a)(2)(iv).          (B).
(5) BS pollock--AFA and CDQ.....  (a)(2)(vi)(B)(1)     (a)(2)(i)(C).......  (a)(2)(vi)(B)(1)    (b)(2)
                                   and (2).                                  and (2).
(6) Aleutian Islands pollock....  (a)(2)(vi)(B)(3)     (a)(1)(i)(A).......  (a)(2)(vi)(B)(4)..  (b)(1)
                                   through (4).
(7) Rockfish Program............  (a)(2)(vi)(D)......  (a)(2)(i)(C).......  N/A...............  (b)(1)
(8) Amendment 80 vessels and Non- (a)(2)(vi)(C)......  N/A................  N/A...............  N/A
 AFA trawl catcher/processors
 fishing in the BSAI.

[[Page 70096]]

 
(9) Vessels and processors        (a)(2)(i) or (iv)..   (a)(1)(i)(A) and    (a)(2)(i)(B)......  (b)(1)
 participating in all other BSAI                        (B).
 and GOA groundfish fisheries.
----------------------------------------------------------------------------------------------------------------


0
13. A new Sec.  679.52 is added to subpart E to read as follows:


Sec.  679.52  Observer provider permitting and responsibilities.

    (a) Observer provider permit--(1) Permit. The Regional 
Administrator may issue a permit authorizing a person's participation 
as an observer provider for operations requiring full observer coverage 
per Sec.  679.51(a)(2) and (b)(2). Persons seeking to provide observer 
services under this section must obtain an observer provider permit 
from NMFS.
    (2) New observer provider. An applicant seeking an observer 
provider permit must submit a completed application by fax or mail to 
the Observer Program Office at the address listed at Sec.  
679.51(c)(3).
    (3) Contents of application. An application for an observer 
provider permit shall consist of a narrative that contains the 
following:
    (i) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and other 
employees. If the applicant is a corporation, the articles of 
incorporation must be provided. If the applicant is a partnership, the 
partnership agreement must be provided.
    (ii) Contact information--(A) Owner(s) information. The permanent 
mailing address, phone and fax numbers where the owner(s) can be 
contacted for official correspondence.
    (B) Business information. Current physical location, business 
mailing address, business telephone and fax numbers, and business email 
address for each office.
    (C) Authorized agent. For an observer provider with ownership based 
outside the United States, identify an authorized agent and provide 
contact information for that agent including mailing address and phone 
and fax numbers where the agent can be contacted for official 
correspondence. An authorized agent means a person appointed and 
maintained within the United States who is authorized to receive and 
respond to any legal process issued in the United States to an owner or 
employee of an observer provider. Any diplomatic official accepting 
such an appointment as designated agent waives diplomatic or other 
immunity in connection with the process.
    (iii) A statement signed under penalty of perjury from each owner, 
or owners, board members, and officers if a corporation, that they have 
no conflict of interest as described in paragraph (c) of this section.
    (iv) A statement signed under penalty of perjury from each owner, 
or owners, board members, and officers if a corporation, describing any 
criminal convictions, Federal contracts they have had and the 
performance rating they received on the contract, and previous 
decertification action while working as an observer or observer 
provider.
    (v) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of an observer provider as set out under 
paragraph (b) of this section, and the arrangements to be used.
    (4) Application evaluation. (i) The Regional Administrator will 
establish an observer provider permit application review board, 
comprised of NMFS employees, to review and evaluate an application 
submitted under paragraph (a) of this section. The review board will 
evaluate the completeness of the application, the application's 
consistency with needs and objectives of the observer program, or other 
relevant factors. If the applicant is a corporation, the review board 
also will evaluate the following criteria for each owner, or owners, 
board members, and officers:
    (A) Absence of conflict of interest as defined under paragraph (c) 
of this section;
    (B) Absence of criminal convictions related to:
    (1) Embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements or receiving stolen 
property, or
    (2) The commission of any other crimes of dishonesty, as defined by 
Alaska State law or Federal law, that would seriously and directly 
affect the fitness of an applicant in providing observer services under 
this section;
    (C) Satisfactory performance ratings on any Federal contracts held 
by the applicant; and
    (D) Absence of any history of decertification as either an observer 
or observer provider;
    (ii) [Reserved]
    (5) Agency determination on an application. NMFS will send a 
written determination to the applicant. If an application is approved, 
NMFS will issue an observer provider permit to the applicant. If an 
application is denied, the reason for denial will be explained in the 
written determination.
    (6) Transferability. An observer provider permit is not 
transferable. An observer provider that experiences a change in 
ownership that involves a new person must submit a new permit 
application and cannot continue to operate until a new permit is issued 
under this paragraph (a).
    (7) Expiration of observer provider permit. (i) An observer 
provider permit will expire after a period of 12 continuous months 
during which no observers are deployed by the provider under this 
section to the North Pacific groundfish or halibut industry.
    (ii) The Regional Administrator will provide a written initial 
administrative determination (IAD) of permit expiration to an observer 
provider if NMFS' deployment records indicate that the observer 
provider has not deployed an observer during a period of 12 continuous 
months. An observer provider who receives an IAD of permit expiration 
may appeal under Sec.  679.43. An observer provider that appeals an IAD 
will be issued an extension of the expiration date of the permit until 
after the final resolution of the appeal.
    (8) Sanctions. Procedures governing sanctions of permits are found 
at subpart D of 15 CFR part 904.
    (b) Responsibilities of observer providers. An observer provider 
that supplies observers for operations

[[Page 70097]]

requiring full observer coverage per Sec.  679.51(a)(2) and (b)(2) 
must:
    (1) Provide qualified candidates to serve as observers. (i) To be a 
qualified candidate an individual must have:
    (A) A Bachelor's degree or higher from an accredited college or 
university with a major in one of the natural sciences;
    (B) Successfully completed a minimum of 30 semester hours or 
equivalent in applicable biological sciences with extensive use of 
dichotomous keys in at least one course;
    (C) Successfully completed at least one undergraduate course each 
in math and statistics with a minimum of 5 semester hours total for 
both; and
    (D) Computer skills that enable the candidate to work competently 
with standard database software and computer hardware.
    (ii) Prior to hiring an observer candidate, the observer provider 
must provide to the candidate copies of NMFS-prepared pamphlets and 
other information describing observer duties.
    (iii) For each observer employed by an observer provider, either a 
written contract or a written contract addendum must exist that is 
signed by the observer and observer provider prior to the observer's 
deployment and that includes the following conditions for continued 
employment:
    (A) That all the observer's in-season catch messages between the 
observer and NMFS are delivered to the Observer Program Office at least 
every 7 days, unless otherwise specified by the Observer Program;
    (B) That the observer completes in-person mid-deployment data 
reviews, unless:
    (1) The observer is specifically exempted by the Observer Program, 
or
    (2) The observer does not at any time during his or her deployment 
travel through a location where an Observer Program employee is 
available for an in-person data review and the observer completes a 
phone or fax mid-deployment data review as described in the observer 
manual; and
    (C) The observer informs the observer provider prior to the time of 
embarkation if he or she is experiencing any new mental illness or 
physical ailments or injury since submission of the physician's 
statement as required in paragraph (b)(11)(iii) of this section that 
would prevent him or her from performing his or her assigned duties;
    (2) Ensure an observer completes duties in a timely manner. An 
observer provider must ensure that an observer employed by that 
observer provider performs the following in a complete and timely 
manner:
    (i) When an observer is scheduled for a final deployment debriefing 
under paragraph (b)(11)(v) of this section, submit to NMFS all data, 
reports required by the Observer Manual, and biological samples from 
the observer's deployment by the completion of the electronic vessel 
and/or processor survey(s);
    (ii) Complete NMFS electronic vessel and/or processor surveys 
before performing other jobs or duties that are not part of NMFS 
groundfish observer requirements;
    (iii) Report for his or her scheduled debriefing and complete all 
debriefing responsibilities; and
    (iv) Return all sampling and safety gear to the Observer Program 
Office.
    (3) Observer conduct. (i) An observer provider must develop, 
maintain, and implement a policy addressing observer conduct and 
behavior for their employees that serve as observers. The policy shall 
address the following behavior and conduct regarding:
    (A) Observer use of alcohol;
    (B) Observer use, possession, or distribution of illegal drugs; and
    (C) Sexual contact with personnel of the vessel or processing 
facility to which the observer is assigned, or with any vessel or 
processing plant personnel who may be substantially affected by the 
performance or non-performance of the observer's official duties.
    (ii) An observer provider shall provide a copy of its conduct and 
behavior policy:
    (A) To observers, observer candidates; and
    (B) By February 1 of each year to the Observer Program Office.
    (4) Assign observer to vessels and processors. An observer provider 
must assign to vessels or shoreside or floating processors only 
observers:
    (i) With valid North Pacific groundfish and halibut observer 
certifications and endorsements to provide observer services;
    (ii) Who have not informed the provider prior to the time of 
embarkation that he or she is experiencing a mental illness or a 
physical ailment or injury developed since submission of the 
physician's statement, as required in paragraph (b)(11)(iii) of this 
section that would prevent him or her from performing his or her 
assigned duties; and
    (iii) Who have successfully completed all NMFS required training 
and briefing before deployment.
    (5) Respond to industry requests for observers. An observer 
provider must provide an observer for deployment as requested by 
vessels and processors to fulfill vessel and processor requirements for 
observer coverage under Sec.  679.51(a) and (b). An alternate observer 
must be supplied in each case where injury or illness prevents the 
observer from performing his or her duties or where the observer 
resigns prior to completion of his or her duties.
    (6) Provide observer salaries and benefits. An observer provider 
must provide to its observer employees, salaries and any other benefits 
and personnel services in accordance with the terms of each observer's 
contract.
    (7) Provide observer deployment logistics. (i) An observer provider 
must provide to each observer it employs:
    (A) All necessary transportation, including arrangements and 
logistics, to the initial location of deployment, to all subsequent 
vessel and shoreside or stationary floating processor assignments 
during that deployment, and to the debriefing location when a 
deployment ends for any reason; and
    (B) Lodging, per diem, and any other necessary services necessary 
to observers assigned to fishing vessels or shoreside processing or 
stationary floating processing facilities.
    (ii) Except as provided in paragraph (b)(7)(iii) of this section, 
an observer provider must provide to each observer deployed to a 
shoreside processing facility or stationary floating processor, and 
each observer between vessel, stationary floating processor, or 
shoreside assignments while still under contract with an observer 
provider, shall be provided with accommodations at a licensed hotel, 
motel, bed and breakfast, stationary floating processor, or other 
shoreside accommodations for the duration of each shoreside assignment 
or period between vessel or shoreside assignments. Such accommodations 
must include an assigned bed for each observer and no other person may 
be assigned that bed for the duration of that observer's stay. 
Additionally, no more than four beds may be in any room housing 
observers at accommodations meeting the requirements of this section.
    (iii) An observer under contract may be housed on a vessel to which 
the observer is assigned:
    (A) Prior to the vessel's initial departure from port;
    (B) For a period not to exceed 24 hours following completion of an 
offload for which the observer has duties and is scheduled to 
disembark; or
    (C) For a period not to exceed 24 hours following the vessel's 
arrival in port when the observer is scheduled to disembark.
    (iv) During all periods an observer is housed on a vessel, the 
observer provider must ensure that the vessel

[[Page 70098]]

operator or at least one crew member is aboard.
    (v) Each observer deployed to a shoreside processing facility must 
be provided with individually assigned communication equipment in 
working order, such as a cell phone or pager, for notification of 
upcoming deliveries or other necessary communication. Each observer 
assigned to a shoreside processing facility located more than 1 mile 
from the observer's local accommodations shall be provided with 
motorized transportation that will ensure the observer's arrival at the 
processing facility in a timely manner such that the observer can 
complete his or her assigned duties.
    (8) Limit observer deployment. Unless alternative arrangements are 
approved by the Observer Program Office, an observer provider must not:
    (i) Deploy an observer on the same vessel or at the same shoreside 
or stationary floating processor for more than 90 days in a 12-month 
period;
    (ii) Deploy an observer for more than 90 days in a single 
deployment;
    (iii) Include in a single deployment of an observer, assignments to 
more than four vessels, including groundfish and all other vessels, 
and/or shoreside processors; or
    (iv) Move an observer from a vessel or stationary floating 
processor or shoreside processor before that observer has completed his 
or her sampling or data transmission duties.
    (9) Verify vessel USCG Safety Decal. An observer provider must 
verify that a vessel has a valid USCG Safety Decal as required under 
Sec.  679.51(e)(1)(ii)(B)(1) before the vessel with an observer aboard 
may depart. One of the following acceptable means of verification must 
be used to verify the decal validity:
    (i) An employee of the observer provider, including the observer, 
visually inspects the decal aboard the vessel and confirms that the 
decal is valid according to the decal date of issuance; or
    (ii) The observer provider receives a hard copy of the USCG 
documentation of the decal issuance from the vessel owner or operator.
    (10) Provide 24 hours a day communications with observers. An 
observer provider must have an employee responsible for observer 
activities on call 24 hours a day to handle emergencies involving an 
observer or problems concerning observer logistics, whenever an 
observer is at sea, stationed at a shoreside processor or stationary 
floating processor, in transit, or in port awaiting vessel or processor 
(re)assignment.
    (11) Provide information to the Observer Program Office. An 
observer provider must provide all the following information to the 
Observer Program Office by electronic transmission (email), fax, or 
other method specified by NMFS within the specified timeframes.
    (i) Registration materials. Observer training and briefing 
registration materials must be submitted to the Observer Program Office 
at least 5 business days prior to the beginning of a scheduled observer 
certification training or briefing session. Registration materials 
consist of the following:
    (A) Observer training registration, including:
    (1) Date of requested training;
    (2) A list of observer candidates. The list must include each 
candidate's full name (i.e., first, middle, and last names), date of 
birth, and gender;
    (3) A copy of each candidate's academic transcripts and resume; and
    (4) A statement signed by the candidate under penalty of perjury 
that discloses any criminal convictions of the candidate.
    (B) Observer briefing registration, including:
    (1) Date and type of requested briefing session and briefing 
location; and
    (2) List of observers to attend the briefing session. Each 
observer's full name (first, middle, and last names) must be included.
    (ii) Statement of projected observer assignments. Prior to the 
observer or observer candidate's completion of the training or briefing 
session, the observer provider must submit to the Observer Program 
Office a statement of projected observer assignments that includes the 
observer's name; vessel, shoreside processor, or stationary floating 
processor assignment, gear type, and vessel/processor code; port of 
embarkation; target species; and area of fishing.
    (iii) Physician's statement. A signed and dated statement from a 
licensed physician that he or she has physically examined an observer 
or observer candidate. The statement must confirm that, based on the 
physical examination, the observer or observer candidate does not have 
any health problems or conditions that would jeopardize their 
individual safety or the safety of others while the observer or 
observer candidate is deployed, or prevent the observer or observer 
candidate from performing his or her duties satisfactorily. The 
statement must declare that, prior to the examination, the physician 
read the NMFS-prepared pamphlet provided to the candidate by the 
observer provider as specified in paragraph (b)(1)(ii) of this section 
and was made aware of the duties of the observer as well as the 
dangerous, remote, and rigorous nature of the work. The physician's 
statement must be submitted to the Observer Program Office prior to 
certification of an observer. The physical exam must have occurred 
during the 12 months prior to the observer's or observer candidate's 
deployment. The physician's statement will expire 12 months after the 
physical exam occurred. A new physical exam must be performed, and 
accompanying statement submitted, prior to any deployment occurring 
after the expiration of the statement.
    (iv) Observer deployment/logistics report. A deployment/logistics 
report must be submitted by Wednesday, 4:30 p.m., Pacific local time, 
of each week with regard to each observer deployed by the observer 
provider during that week. The deployment/logistics report must include 
the observer's name, cruise number, current vessel, shoreside 
processor, or stationary floating processor assignment and vessel/
processor code, embarkation date, and estimated or actual 
disembarkation dates. The report must include the location of any 
observer employed by the observer provider who is not assigned to a 
vessel, shoreside processor, or stationary floating processor.
    (v) Observer debriefing registration. The observer provider must 
contact the Observer Program within 5 business days after the 
completion of an observer's deployment to schedule a date, time, and 
location for debriefing. Observer debriefing registration information 
must be provided at the time the debriefing is scheduled and must 
include the observer's name, cruise number, vessel, or shoreside or 
stationary floating processor assignment name(s) and code(s), and 
requested debriefing date.
    (vi) Certificates of insurance. Copies of ``certificates of 
insurance'' that name the NMFS Observer Program leader as the 
``certificate holder'' shall be submitted to the Observer Program 
Office by February 1 of each year. The certificates of insurance shall 
state that the insurance company will notify the certificate holder if 
insurance coverage is changed or canceled and verify the following 
coverage provisions:
    (A) Maritime Liability to cover ``seamen's'' claims under the 
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million 
minimum);
    (B) Coverage under the U.S. Longshore and Harbor Workers' 
Compensation Act ($1 million minimum);

[[Page 70099]]

    (C) States Worker's Compensation, as required; and
    (D) Commercial General Liability.
    (vii) Observer provider contracts. Observer providers must submit 
to the Observer Program Office a completed and unaltered copy of each 
type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and those entities requiring observer 
services under Sec.  679.51(a)(2) and (b)(2), by February 1 of each 
year. Observer providers must also submit to the Observer Program 
Office upon request, a completed and unaltered copy of the current or 
most recent signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract and 
any agreements or policies with regard to observer compensation or 
salary levels) between the observer provider and the particular entity 
identified by the Observer Program or with specific observers. Said 
copies must be submitted to the Observer Program Office via fax or mail 
within 5 business days of the request for the contract at the address 
or fax number listed in Sec.  679.51(c)(3). Signed and valid contracts 
include the contracts an observer provider has with:
    (A) Vessels required to have observer coverage as specified at 
Sec.  679.51(a)(2);
    (B) Shoreside processors or stationary floating processors required 
to have observer coverage as specified at Sec.  679.51(b)(2); and
    (C) Observers.
    (viii) Observer provider invoices. A certified observer provider 
must submit to the Observer Program Office a copy of all invoices for 
observer coverage required or provided pursuant to Sec.  679.51(a)(2) 
and Sec.  679.51(b)(2).
    (A) A copy of the invoices must be received by the Observer Program 
Office within 45 days of the date on the invoice and must include all 
reconciled and final charges.
    (B) Invoices must contain the following information:
    (1) Name of each catcher/processor, catcher vessel, mothership, 
stationary floating processor, or shoreside processing plant to which 
the invoice applies;
    (2) Dates of service for each observer on each catcher/processor, 
catcher vessel, mothership, stationary floating processor, or shoreside 
processing plant. Dates billed that are not observer coverage days must 
be identified on the invoice;
    (3) Rate charged in dollars per day (daily rate) for observer 
services;
    (4) Total charge for observer services (number of days multiplied 
by daily rate);
    (5) Amount charged for air transportation; and
    (6) Amount charged by the provider for any other observer expenses, 
including but not limited to: Ground transportation, excess baggage, 
and lodging. Charges for these expenses must be separated and 
identified.
    (ix) Change in observer provider management and contact 
information. Except for changes in ownership addressed under paragraph 
(a)(6) of this section, an observer provider must submit notification 
of any other change to the information submitted on the provider's 
permit application under paragraphs (a)(3)(i) through (iv) of this 
section. Within 30 days of the effective date of such change, the 
information must be submitted by fax or mail to the Observer Program 
Office at the address listed in Sec.  679.51(c)(3). Any information 
submitted under paragraphs (a)(3)(iii) or (a)(3)(iv) of this section 
will be subject to NMFS review and determinations under paragraphs 
(a)(4) through (7) of this section.
    (x) Other reports. Reports of the following must be submitted in 
writing to the Observer Program Office by the observer provider via fax 
or email:
    (A) Within 24 hours after the observer provider becomes aware of 
the following information:
    (1) Any information regarding possible observer harassment;
    (2) Any information regarding any action prohibited under Sec.  
679.7(g) or Sec.  600.725(o), (t), and (u) of this chapter;
    (3) Any concerns about vessel safety or marine casualty under 46 
CFR 4.05-1(a)(1) through (7), or processor safety;
    (4) Any observer illness or injury that prevents the observer from 
completing any of his or her duties described in the observer manual; 
and
    (5) Any information, allegations or reports regarding observer 
conflict of interest or failure to abide by the standards of behavior 
described in Sec.  679.53(b)(1) through (b)(2), or;
    (B) Within 72 hours after the observer provider determines that an 
observer violated the observer provider's conduct and behavior policy 
described at paragraph (b)(3)(i) of this section; these reports shall 
include the underlying facts and circumstances of the violation.
    (12) Replace lost or damaged gear. An observer provider must 
replace all lost or damaged gear and equipment issued by NMFS to an 
observer under contract to that provider. All replacements must be in 
accordance with requirements and procedures identified in writing by 
the Observer Program Office.
    (13) Maintain confidentiality of information. An observer provider 
must ensure that all records on individual observer performance 
received from NMFS under the routine use provision of the Privacy Act 
remain confidential and are not further released to anyone outside the 
employ of the observer provider company to whom the observer was 
contracted except with written permission of the observer.
    (c) Limitations on conflict of interest. Observer providers:
    (1) Are authorized to provide observer services under an FMP or the 
Halibut Act for the waters off Alaska as required in Sec.  679.51(a)(2) 
or (b)(2), or scientific data collector and observer services to 
support NMFS-approved scientific research activities, exempted 
educational activities, or exempted or experimental fishing as defined 
in Sec.  600.10 of this chapter.
    (2) Must not have a direct financial interest, other than the 
provision of observer or scientific data collector services, in a North 
Pacific fishery managed under an FMP or the Halibut Act for the waters 
off Alaska, including, but not limited to:
    (i) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside processor or stationary floating processor facility 
involved in the catching or processing of fish,
    (ii) Any business involved with selling supplies or services to any 
vessel, shoreside processor, or stationary floating processor 
participating in a fishery managed pursuant to an FMP or the Halibut 
Act in the waters off Alaska, or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, shoreside processor, or stationary floating 
processor participating in a fishery managed pursuant to an FMP or the 
Halibut Act in the waters off Alaska.
    (3) Must assign observers without regard to any preference by 
representatives of vessels, shoreside processors, or stationary 
floating processors other than when an observer will be deployed.
    (4) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts fishing or fish processing activities 
that are regulated by NMFS, or who has interests that may be 
substantially affected by the performance or nonperformance of the 
official duties of the observer provider.

0
14. A new Sec.  679.53 is added to subpart E to read as follows:

[[Page 70100]]

Sec.  679.53  Observer certification and responsibilities.

    (a) Observer certification--(1) Applicability. Observer 
certification authorizes an individual to fulfill duties for operations 
requiring full observer coverage per Sec.  679.51(a)(2) and (b)(2) as 
specified in writing by the NMFS Observer Program Office while under 
the employ of an observer provider permitted under Sec.  679.52(a) and 
according to certification endorsements as designated under paragraph 
(a)(5) of this section.
    (2) Observer certification official. The Regional Administrator 
will designate a NMFS observer certification official who will make 
decisions for the Observer Program on whether to issue or deny observer 
certification.
    (3) Certification requirements. NMFS may certify an individual who, 
in addition to any other relevant considerations:
    (i) Is employed by a permitted observer provider company at the 
time of the issuance of the certification;
    (ii) Has provided, through their observer provider:
    (A) Information identified by NMFS at Sec.  679.52(b)(11)(i)(A)(3) 
and (4) and in writing from the Observer Program; and
    (B) Information identified by NMFS at Sec.  679.52(b)(11)(iii) 
regarding the observer candidate's health and physical fitness for the 
job;
    (iii) Meet all education and health standards as specified in Sec.  
679.52(b)(1)(i) and Sec.  679.52(b)(11)(iii), respectively;
    (iv) Has successfully completed a NMFS-approved training as 
prescribed by the Observer Program.
    (A) Successful completion of training by an observer applicant 
consists of meeting all attendance and conduct standards issued in 
writing at the start of training; meeting all performance standards 
issued in writing at the start of training for assignments, tests, and 
other evaluation tools; and completing all other training requirements 
established by the Observer Program.
    (B) If a candidate fails training, he or she will be orally 
notified of the unsatisfactory status of his or her training on or 
before the last day of training. Within 10 business days of the oral 
notification, the Observer Program will notify the observer candidate 
in writing. The written notification will specify why the candidate 
failed the training and whether the candidate may retake the training. 
If a determination is made that the candidate may not pursue further 
training, notification will be in the form of a written determination 
denying certification, as specified under paragraph (a)(4)(i) of this 
section.
    (v) Have not been decertified under paragraph (c) of this section.
    (4) Agency determinations on observer certification--(i) Denial of 
certification. The NMFS observer certification official will issue a 
written determination denying observer certification if the candidate 
fails to successfully complete training, or does not meet the 
qualifications for certification for any other relevant reason.
    (ii) Issuance of an observer certification. An observer 
certification will be issued upon determination by the NMFS observer 
certification official that the candidate has successfully met all 
requirements for certification as specified in paragraph (a)(3) of this 
section.
    (5) Endorsements. The following endorsements must be obtained, in 
addition to observer certification, in order for an observer to deploy 
as indicated.
    (i) Certification training endorsement. A certification training 
endorsement signifies the successful completion of the training course 
required to obtain this endorsement. A certification training 
endorsement is required for any deployment as an observer in the Bering 
Sea and Aleutian Islands groundfish fisheries and the Gulf of Alaska 
groundfish fisheries or Halibut Act fisheries and will be granted with 
the initial issuance of an observer certification. This endorsement 
expires when the observer has not been deployed and performed sampling 
duties as required by the Observer Program for a period of time 
specified by the Observer Program after his or her most recent 
debriefing. In order to renew the endorsement, the observer must 
successfully retake the certification training. Observers will be 
notified of any changes to the endorsement expiration period prior to 
the effective date of the change.
    (ii) Annual general endorsement. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
initial deployment within any calendar year subsequent to a calendar 
year in which a certification training endorsement is obtained. To 
obtain an annual general endorsement, an observer must successfully 
complete the annual briefing, as specified by the Observer Program. All 
briefing attendance, performance, and conduct standards required by the 
Observer Program must be met.
    (iii) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or annual briefing must receive 
a deployment endorsement to their certification prior to any subsequent 
deployments for the remainder of that year. An observer may obtain a 
deployment endorsement by successfully completing all pre-cruise 
briefing requirements. The type of briefing the observer must attend 
and successfully complete will be specified in writing by the Observer 
Program during the observer's most recent debriefing.
    (iv) Level 2 endorsements. A certified observer may obtain a level 
2 endorsement to their certification. A level 2 endorsement is required 
for purposes of performing observer duties aboard vessels or stationary 
floating processors or at shoreside processors participating in 
fisheries as prescribed in Sec.  679.51(a)(2)(vi)(A) through (E). A 
level 2 endorsement to an observer's certification may be obtained if 
the observer meets the following requirements:
    (A) Previously served as an observer in the groundfish or halibut 
fisheries off Alaska and has completed at least 60 days of observer 
data collection;
    (B) Received an evaluation by NMFS for his or her most recent 
deployment that indicated the observer's performance met Observer 
Program expectations standards for that deployment; and
    (C) Complies with all the other requirements of this section.
    (v) An observer who has obtained a level 2 endorsement to his or 
her observer certification as specified in paragraph (a)(5)(iv) of this 
section may additionally receive a ``lead'' level 2 observer 
endorsement if the observer meets the following requirements:
    (A) A ``lead'' level 2 observer on a catcher/processor using trawl 
gear or a mothership must have completed two observer cruises 
(contracts) and sampled at least 100 hauls on a catcher/processor using 
trawl gear or on a mothership.
    (B) A ``lead'' level 2 observer on a catcher vessel using trawl 
gear must have completed two observer cruises (contracts) and sampled 
at least 50 hauls on a catcher vessel using trawl gear.
    (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.
    (b) Standards of observer conduct--(1) Limitations on conflict of 
interest. (i) An observer fulfilling duties for operations in the full 
observer coverage category per Sec.  679.51(a)(2) or (b)(2):
    (A) Must not have a direct financial interest, other than the 
provision of observer services, in a North Pacific fishery, including, 
but not limited to:

[[Page 70101]]

    (1) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside processor, or stationary floating processor facility 
involved in the catching or processing of fish,
    (2) Any business involved with selling supplies or services to any 
vessel, shoreside processor, or stationary floating processor 
participating in a North Pacific fishery, or
    (3) Any business involved with purchasing raw or processed products 
from any vessel, shoreside processor, or stationary floating processor 
participating in a North Pacific fishery.
    (B) May not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who either conducts activities that are regulated by 
NMFS or has interests that may be substantially affected by the 
performance or nonperformance of the observer's official duties.
    (C) May not serve as an observer on any vessel or at any shoreside 
or stationary floating processing facility owned or operated by a 
person who previously employed the observer.
    (D) May not solicit or accept employment as a crew member or an 
employee of a vessel, shoreside processor, or stationary floating 
processor in a North Pacific fishery while employed by an observer 
provider.
    (ii) Provisions for remuneration of observers under this section do 
not constitute a conflict of interest.
    (2) Standards of behavior. An observer fulfilling duties for 
operations in the full observer coverage category per Sec.  
679.51(a)(2) or (b)(2) must:
    (i) Perform assigned duties as described in the Observer Manual or 
other written instructions from the Observer Program Office;
    (ii) Accurately record their sampling data, write complete reports, 
and report accurately any observations of suspected violations of 
regulations relevant to conservation of marine resources or their 
environment; and
    (iii) Not disclose collected data and observations made aboard the 
vessel or in the processing facility to any person except the owner or 
operator of the observed vessel or processing facility, an authorized 
officer, or NMFS.
    (c) Suspension and decertification--(1) Suspension and 
decertification review official. The Regional Administrator will 
establish an observer suspension and decertification review 
official(s), who will have the authority to review observer 
certifications issued under paragraph (a) of this section and issue 
initial administrative determinations of observer certification 
suspension and/or decertification.
    (2) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification 
proceedings against an observer:
    (i) When it is alleged that the observer has committed any acts or 
omissions of any of the following:
    (A) Failed to satisfactorily perform the duties of an observer as 
specified in writing by the Observer Program; or
    (B) Failed to abide by the standards of conduct for an observer as 
prescribed under paragraph (b) of this section;
    (ii) Upon conviction of a crime or upon entry of a civil judgment 
for:
    (A) Commission of fraud or other violation in connection with 
obtaining or attempting to obtain certification, or in performing the 
duties as specified in writing by the Observer Program;
    (B) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, or 
receiving stolen property;
    (C) Commission of any other offense indicating a lack of integrity 
or honesty that seriously and directly affects the fitness of 
observers.
    (3) Issuance of initial administrative determination. Upon 
determination that suspension or decertification is warranted under 
paragraph (c)(2) of this section, the suspension/decertification 
official will issue a written initial administrative determination 
(IAD) to the observer via certified mail at the observer's most current 
address provided to NMFS under Sec.  679.43(e). The IAD will identify 
whether a certification is suspended or revoked and will identify the 
specific reasons for the action taken. If the IAD issues a suspension 
for an observer certification, the terms of the suspension will be 
specified. Suspension or decertification can be made effective upon 
issuance of the IAD in cases of willfulness or in cases in which public 
health, interest, or safety require such action. In such cases, the 
suspension/decertification official will state in the IAD that 
suspension or decertification is effective at time of issuance and the 
reason for the action.
    (4) Appeals. A certified observer who receives an IAD that suspends 
or revokes his or her observer certification may appeal pursuant to 
Sec.  679.43.

0
15. A new Sec.  679.54 is added to subpart E to read as follows:


Sec.  679.54  Release of observer data to the public.

    (a) Summary of weekly data. The following information collected by 
observers for each catcher/processor and catcher vessel during any 
weekly reporting period may be made available to the public:
    (1) Vessel name and Federal permit number.
    (2) Number of Chinook salmon and ``other salmon'' observed.
    (3) The ratio of total round weight of incidentally caught halibut 
or Pacific herring to the total round weight of groundfish in sampled 
catch.
    (4) The ratio of number of king crab or C. bairdi Tanner crab to 
the total round weight of groundfish in sampled hauls.
    (5) The number of observed trawl hauls or fixed gear sets.
    (6) The number of trawl hauls that were basket sampled.
    (7) The total weight of basket samples taken from sampled trawl 
hauls.
    (b) Haul-specific data. (1) The information listed in paragraphs 
(b)(1)(i) through (xiii) of this section and collected by observers 
from observed hauls on board vessels using trawl gear to participate in 
a directed fishery for groundfish other than rockfish, Greenland 
turbot, or Atka mackerel may be made available to the public:
    (i) Date.
    (ii) Time of day gear is deployed.
    (iii) Latitude and longitude at beginning of haul.
    (iv) Bottom depth.
    (v) Fishing depth of trawl.
    (vi) The ratio of the number of Chinook salmon to the total round 
weight of groundfish.
    (vii) The ratio of the number of other salmon to the total round 
weight of groundfish.
    (viii) The ratio of total round weight of incidentally caught 
halibut to the total round weight of groundfish.
    (ix) The ratio of total round weight of herring to the total round 
weight of groundfish.
    (x) The ratio of the number of king crab to the total round weight 
of groundfish.
    (xi) The ratio of the number of C. bairdi Tanner crab to the total 
round weight of groundfish.
    (xii) Sea surface temperature (where available).
    (xiii) Sea temperature at fishing depth of trawl (where available).
    (2) The identity of the vessels from which the data in paragraph 
(b)(1) of this section are collected will not be released.
    (c) Competitive harm. In exceptional circumstances, the owners and 
operators of vessels may provide to the Regional Administrator written 
justification at the time observer data are submitted, or within a 
reasonable time thereafter, that disclosure of the information listed 
in paragraphs (a) and

[[Page 70102]]

(b) of this section could reasonably be expected to cause substantial 
competitive harm. The determination whether to disclose the information 
will be made pursuant to 15 CFR 4.7.

0
16. A new Sec.  679.55 is added to subpart E to read as follows:


Sec.  679.55  Observer fees.

    (a) Responsibility. The owner of a shoreside processor or a 
stationary floating processor named on a Federal Processing Permit 
(FPP) or a person named on a Registered Buyer permit at the time of the 
landing subject to the observer fee as specified at paragraph (c) of 
this section must comply with the requirements of this section. 
Subsequent non-renewal of an FPP or a Registered Buyer permit does not 
affect the permit holder's liability for noncompliance with this 
section.
    (b) Observer fee liability determination. After each fishing year, 
the Regional Administrator will mail an observer fee liability invoice 
to each permit holder specified in paragraph (a) of this section for 
landings of groundfish and halibut subject to the observer fee. The 
observer fee liability invoice will provide a summary of the round 
pounds of groundfish and headed-and-gutted weight for halibut landed 
during the previous fishing year for each permit by species, landing 
port or port-group, and gear category. The total fee liability for each 
permit holder will be determined by applying the observer fee 
percentage in paragraph (f) of this section to the ex-vessel value of 
the groundfish and halibut landings subject to the observer fee. The 
method for determining the ex-vessel value of the groundfish and 
halibut landings subject to the observer fee is provided in paragraph 
(e) of this section. The fee liability will be assessed on the 
groundfish round weight and the headed-and-gutted weight for halibut.
    (c) Landings subject to the observer fee. The observer fee is 
assessed on landings by vessels not in the full observer coverage 
category described at Sec.  679.51(a)(2) according to the following 
table:

----------------------------------------------------------------------------------------------------------------
                                                      Is fish from the landing subject to the observer fee?
                                               -----------------------------------------------------------------
 If fish in the landing is from the following   If the vessel is not designated   If the vessel is designated on
              fishery or species:                 on an FFP or required to be        an FFP or required to be
                                                     designated on an FFP:            designated on an FFP:
----------------------------------------------------------------------------------------------------------------
(1) Groundfish listed in Table 2a to this part  Not applicable, an FFP is        Yes.
 that is harvested in the EEZ and subtracted     required to harvest these
 from a total allowable catch limit specified    groundfish in the EEZ.
 under Sec.   679.20(a).
(2) Groundfish listed in Table 2a to this part  No.............................  Yes.
 that is harvested in Alaska State waters,
 including in a parallel groundfish fishery,
 and subtracted from a total allowable catch
 limit specified under Sec.   679.20(a).
(3) Sablefish IFQ, regardless of where          Yes............................  Yes.
 harvested.
(4) Halibut IFQ or halibut CDQ, regardless of   Yes............................  Yes.
 where harvested.
(5) Groundfish listed in Table 2a to this part  No.............................  No.
 that is harvested in Alaska State waters, but
 is not subtracted from a total allowable
 catch limit under Sec.   679.20(a).
(6) Any groundfish or other species not listed  No.............................  No.
 in Table 2a to part 679, except halibut IFQ
 or CDQ halibut, regardless of where harvested.
----------------------------------------------------------------------------------------------------------------

     (d) Standard ex-vessel prices--(1) General. NMFS will publish the 
standard ex-vessel prices used to determine the observer fee in the 
upcoming year in the Federal Register during the last quarter of each 
calendar year. The standard ex-vessel prices will be described in U.S. 
dollars per equivalent round pound for groundfish and per equivalent 
headed-and-gutted weight for halibut.
    (2) Effective duration. The standard ex-vessel prices will remain 
in effect until revised by subsequent publication in the Federal 
Register.
    (3) Standard ex-vessel price determination and use--(i) Groundfish 
standard ex-vessel prices. Except as described in paragraph (d)(3)(ii) 
of this section, NMFS will calculate groundfish standard ex-vessel 
prices based on standardized ex-vessel nominal prices calculated using 
information submitted in the Commercial Operator's Annual Report 
described at Sec.  679.5(p) and the shoreside processor or stationary 
floating processor landing report described at Sec.  679.5(e)(5), as 
well as methods established by the State of Alaska's Commercial 
Fisheries Entry Commission.
    (A) Groundfish standard ex-vessel prices will be calculated as a 3-
year rolling average of standard prices for each species, port or port-
group, and gear.
    (B) Gear categories for groundfish standard ex-vessel prices are: 
Pelagic trawl gear, non-pelagic trawl gear, and non-trawl gear.
    (ii) Halibut and fixed gear sablefish standard ex-vessel prices. 
NMFS will use data submitted to NMFS on the IFQ Registered Buyer report 
under Sec.  679.5(l)(7) to calculate the standard ex-vessel prices for 
each year for halibut and fixed gear sablefish, by port or port group. 
These standard ex-vessel prices will be applied to landings of:
    (A) Halibut;
    (B) IFQ sablefish; and
    (C) Sablefish accruing against the fixed-gear sablefish CDQ 
allocation.
    (iii) Confidentiality. Standard ex-vessel prices will be aggregated 
among ports if fewer than four processors participate in a price 
category for any species and gear combination.
    (e) Determining the ex-vessel value of groundfish and halibut. The 
ex-vessel value of groundfish and halibut subject to the observer fee 
will be determined by applying the standard ex-vessel price published 
in the Federal Register in the year prior to the year in which the 
landing was made to the round weight of groundfish and the headed-and-
gutted weight of halibut landings subject to the observer fee.
    (f) Observer fee percentage. The observer fee percentage is 1.25 
percent.
    (g) Fee collection. A permit holder specified in paragraph (a) of 
this section, receiving a groundfish or halibut landing subject to the 
observer fee under paragraph (c) of this section, is responsible for 
collecting fees during the calendar year in which the groundfish or 
halibut is received.
    (h) Payment--(1) Payment due date. A permit holder specified in 
paragraph (a) of this section must submit his or her observer fee 
liability payment(s) to NMFS no later than February 15 of the

[[Page 70103]]

year following the calendar year in which the groundfish or halibut 
landings subject to the observer fee were made.
    (2) Payment recipient. Make electronic payment payable to NMFS.
    (3) Payment address. Payments must be made electronically through 
the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. 
Instructions for electronic payment will be provided on the payment Web 
site and on the observer fee liability invoice to be mailed to each 
permit holder.
    (4) Payment method. Payment must be made electronically in U.S. 
dollars by automated clearinghouse, credit card, or electronic check 
drawn on a U.S. bank account.
    (5) Underpayment of fee liability. (i) Under Sec.  679.4, an 
applicant will not receive a new or amended FPP or Registered Buyer 
permit until he or she submits a complete permit application. For the 
application to be considered complete, all fees required by NMFS must 
be paid.
    (ii) If a permit holder fails to submit full payment for the 
observer fee liability by the date described in paragraph (h)(1) of 
this section, the Regional Administrator may:
    (A) At any time thereafter send an initial administrative 
determination to the liable permit holder stating that the permit 
holder's estimated fee liability, as calculated by the Regional 
Administrator and sent to the permit holder pursuant to paragraph (b) 
of this section, is the amount of observer fee due from the permit 
holder.
    (B) Disapprove any issuance of an FPP or Registered Buyer permit to 
the applicant in accordance with Sec.  679.4.
    (iii) If payment is not received by the 30th day after the final 
agency action, the agency may pursue collection of the unpaid fees.
    (i) Overpayment of fee. Upon issuance of final agency action, any 
amount submitted to NMFS in excess of the observer fee liability 
determined to be due by the final agency action will be returned to the 
permit holder unless the permit holder requests the agency to credit 
the excess amount against the permit holder's future observer fee 
liability.
    (j) Appeals. A permit holder who receives an IAD may either pay the 
fee liability or appeal the IAD pursuant to Sec.  679.43. In any appeal 
of an IAD made under this section, a permit holder specified in 
paragraph (a) of this section has the burden of proving his or her 
claim.

0
17. In Sec.  679.100, revise paragraphs (b)(1)(i), (b)(1)(ii), and 
(b)(2)(i)(A) to read as follows:


Sec.  679.100  Applicability.

* * * * *
    (b) * * *
    (1) * * *
    (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).
* * * * *
    (2) * * *
    (i) * * *
    (A) The vessel is in compliance with observer coverage requirements 
described at Sec.  679.51(a)(2)(vi)(E)(2).
* * * * *

[FR Doc. 2012-28255 Filed 11-20-12; 8:45 am]
BILLING CODE 3510-22-P