23326 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 110831549–2180–01] 

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: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 86 to the 

Fishery Management Plan (FMP) for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI) and Amendment 76 to the FMP 

for Groundfish of the Gulf of Alaska 

(GOA), (collectively referred to as the 

FMPs). If approved, Amendments 86 

and 76 would 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 would allow 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 

(MSA), the FMPs, and other applicable 

law. 

DATES: Written comments must be 

received no later than 1700 hours, 

Alaska local time (A.L.T.) June 18, 2012. 

Per section 313 of the MSA, NMFS will 

conduct public hearings on the 

proposed rule in Oregon, Washington, 

and Alaska during the public comment 

period. Details on the time, place, and 

format of the public hearings will be 

provided in a subsequent Federal 

Register notice. 

ADDRESSES: You may submit comments, 

identified by FDMS Docket Number 

NOAA–NMFS–2011–0210, by any one 

of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal Web site at 

http://www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘Submit a Comment’’ 

icon, then enter NOAA–NMFS–2011– 

0210 in the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 

‘‘Submit a Comment’’ icon on the right 

of that line. 

• Mail: Address written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Mail comments to P.O. 

Box 21668, Juneau, AK 99802–1668. 

• Fax: Address written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Fax comments to 907– 

586–7557. 

• Hand delivery to the Federal 

Building: Address written comments to 

Glenn Merrill, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region NMFS, Attn: 

Ellen Sebastian. Deliver comments to 

709 West 9th Street, Room 420A, 

Juneau, AK. 

Comments must be submitted by one 

of the above methods to ensure that the 

comments are received, documented, 

and considered by NMFS. Comments 

sent by any other method, to any other 

address or individual, or received after 

the end of the comment period, may not 

be considered. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

will be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

Electronic copies of Amendment 86 to 

the FMP for Groundfish of the BSAI and 

Amendment 76 to the FMP for 

Groundfish of the GOA, and the 

Environmental Assessment/Regulatory 

Impact Review/Initial Regulatory 

Flexibility Analysis (EA/RIR/IRFA) 

prepared for this action may be obtained 

from http://www.regulations.gov or from 

the NMFS Alaska Region Web site at 

http://alaskafisheries.noaa.gov. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to NMFS (see 

ADDRESSES) and by email to 

OIRA_Submission@omb.eop.gov, 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 via phone 

at (907–463–2810), or (907–463- 2823). 

FOR FURTHER INFORMATION CONTACT: 

Brandee Gerke, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the U.S. groundfish fisheries in 

the Exclusive Economic Zone (EEZ) of 

the BSAI and GOA under the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area and the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (FMPs), respectively. 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 Council has submitted 

Amendments 86 and 76 for review by 

the Secretary of Commerce (Secretary) 

and a Notice of Availability of the FMP 

amendments was published in the 

Federal Register on March 14, 2012 (77 

FR 50), with comments on the FMP 

amendments invited through May 14, 

2012. 

Comments may address the FMP 

amendments, the proposed rule, or both, 

but must be received by 1700 hours, 

Alaska local time (A.L.T.) on June 18, 

2012, to be considered in the approval/ 

disapproval decision on the FMP 

amendments. All comments received at 

that time, whether specifically directed 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23327 

to the FMP amendments or to this 

proposed rule, will be considered in the 

approval/disapproval decision on the 

FMP amendments. 

Executive Summary 

Fishery-dependent data collected by 

observers onboard vessels and at 

processing plants provide the 

cornerstone for management and 

conservation in North Pacific 

groundfish fisheries. The North Pacific 

Groundfish Observer Program (Observer 

Program) was created with the 

implementation of the MagnusonStevens Fishery Conservation and 

Management Act (MSA) in the mid1970s.This proposed rule would 

implement a restructured funding and 

deployment system for observer 

coverage in North Pacific groundfish 

and halibut fisheries and extend 

observer coverage requirements to a 

broader range of vessels than are 

currently included in the North Pacific 

Groundfish Observer Program (Observer 

Program). This action would address 

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. 

Under the current structure, vessel and 

processing plant operators enter into 

direct contracts with observer providers 

to meet coverage requirements at 50 

CFR 679.50. Existing coverage 

requirements, based on vessel length 

and processing volume, are set at 30 

percent or 100 percent, and some 

vessels and processors are exempt from 

observer coverage. 

In October 2010, the North Pacific 

Fishery Management Council (Council) 

unanimously adopted a motion to 

restructure the Observer Program’s 

funding and deployment system. This 

proposed action would divide the 

Observer Program into two observer 

coverage categories—partial and full. 

All groundfish and halibut vessels and 

processors would be included in one of 

the categories. The partial observer 

coverage category would include fishing 

sectors (vessels and processors) that 

would not be required to have an 

observer at all times and the full 

observer coverage category would 

include fishing sectors required to have 

all of their operations observed. 

This proposed rule would restructure 

the funding and deployment system for 

all vessels, shoreside processors, and 

stationary floating processors in the 

partial observer coverage category. It 

would retain the existing funding and 

deployment system for operations in the 

full coverage category. Vessels and 

processors in the partial coverage 

category would pay to NMFS an 

observer fee based upon the ex-vessel 

value of fish landed (ex-vessel valuebased fee) for their observer coverage, 

per the authority granted by section 313 

of the MSA. By creating two observer 

coverage categories with separate 

funding and deployment systems, the 

proposed rule would address cost 

inequity and data quality concerns with 

the existing Observer Program structure 

without imposing higher costs on 

fishing sectors that already pay for full 

observer coverage. Moreover, the twocategory design would ensure that 

management programs with high 

observer coverage needs do not deplete 

the available funding for the partial 

coverage category fisheries. 

An observer fee equal to 1.25 percent 

of the fishery ex-vessel value would be 

assessed on partial coverage category 

participants to fund their observer 

coverage under the authority of section 

313 of the MSA. The 1.25 percent fee is 

estimated to generate revenue to fund 

observers for approximately 30 percent 

of the partial coverage category’s 

harvest. NMFS and its contractor(s) 

would deploy observers in partial 

coverage sectors according to a 

randomized design to generate 

statistically representative estimates of 

total and retained catch and catch 

composition. 

This proposed rule includes 

provisions for NMFS to develop and 

incorporate electronic video monitoring 

as a component of the restructured 

program. The MSA authorizes the use of 

collected fees for this purpose. Initially, 

NMFS would deploy electronic 

monitoring equipment on some vessels 

to learn more about the costs, benefits, 

and utility of video monitoring to 

optimize its use in the overall program. 

As discussed in this proposed rule, 

electronic video monitoring would 

likely not be available to all vessels who 

request video monitoring. 

This proposed rule assumes that 

federal start-up funds will be available 

to the agency to transition from the 

current system under which the 

industry contracts directly with and 

pays the observer providers for the costs 

of the observers to the proposed system 

under which NMFS would contract 

directly with observer providers to have 

observers deployed in the partial 

coverage category sectors. The proposed 

rule does not include a mechanism to 

collect start-up funds from industry. 

Under the proposed rule, each year, 

NMFS would prepare a report that 

reviews the progress of the 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 Council would review the 

annual report, monitor the program’s 

progress, and recommend appropriate 

adjustments that would be implemented 

through subsequent rules. 

Table of Contents 

I. Background 

II. Proposed Action 

A. Observer Coverage and Deployment: 

Full Coverage Category 

B. Observer Coverage and Deployment: 

Partial Coverage Category 

1. Funding 

2. Observer Deployment 

a. Entering Vessels Into the Deployment 

System 

b. Trip Selection Pool 

c. Vessel Selection Pool 

d. Release From Observer Coverage 

e. Comparison of Vessel and Trip Selection 

Pools 

f. Electronic Monitoring 

g. Vessels Initially Set-Aside From a 

Selection Pool 

C. Shoreside Processor and Stationary 

Floating Processor Observer Coverage 

D. Observer Coverage in CDQ Fisheries 

E. Observer Provider and Observer 

Responsibilities 

F. U.S. Coast Guard Safety Decal 

G. Ex-Vessel Value-Based Observer Fee 

1. Standard Ex-Vessel Prices 

2. Halibut and Sablefish Standard Prices 

3. Groundfish Standard Ex-Vessel Prices 

4. Confidential Data 

5. Landings Subject to an Observer Fee 

6. Fee Determination and Collection 

7. Payment Compliance 

8. Overpayment of Fees 

H. Federal Processor Permit and Registered 

Buyer Permits 

I. Annual Report and Review of the 

Deployment Plan and Fee Percentage 

J. Program Review 

K. Start-Up Funding 

L. Other Revisions 

M. Public Comment Topics 

III. Classification 

I. Background 

The Observer Program provides the 

regulatory framework for NMFScertified observers (observers) to obtain 

information necessary for the 

conservation and management of the 

groundfish fisheries managed under the 

FMPs. Regulations implementing the 

Observer Program at 50 CFR 679.50 

require observer coverage aboard 

catcher vessels, catcher/processors, 

motherships, and shoreside and 

stationary floating processors that 

participate in the groundfish fisheries 

off Alaska. These regulations also 

establish vessel, processor, and observer 

provider responsibilities relating to the 

Observer Program. 

Observer requirements for fisheries off 

Alaska have been in place since the 

mid-1970s, when the MSA was 

implemented and NMFS began to 

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23328 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

monitor U.S. EEZ foreign groundfish 

fisheries. The Secretary and the Council 

recognized that effective management of 

living marine resources requires the 

types of information that are either 

available only or most efficiently 

through an observer program. In 1989, 

the Council developed a domestic, 

industry-funded observer program that 

authorized the placement of observers 

on domestic fishing vessels and at 

shoreside processing plants 

participating in Alaskan groundfish 

fisheries in response to a large reduction 

in foreign fishing and an emergence of 

a domestic fleet. The domestic program 

was implemented in 1990 and foreign 

fishing ended in 1991. The domestic 

Observer Program was implemented 

through Amendment 18 to the GOA 

FMP and Amendment 13 to the BSAI 

FMP (54 FR 50386; December 6, 1989; 

and 55 FR 4839; February 12, 1990). 

Although requirements have increased 

for vessels and processors participating 

in limited access and individual quotabased fisheries (referred to as catch 

share programs), observer coverage 

requirements have remained mostly 

unchanged since approval of the 

Observer Program. 

The Observer Program has an integral 

role in the management of North Pacific 

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 fishery-dependent 

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. 

High quality observer-collected data 

are a cornerstone of Alaska groundfish 

fisheries management. However, the 

quality and utility of observer-collected 

data are deficient due to the current 

structure of procuring and deploying 

observers in those fisheries with less 

than 100 percent observer coverage 

requirements. Under the current 

program, coverage requirements vary 

according to vessel length or the 

quantity of fish processed, and vessels 

less than 60 ft. length overall (LOA) and 

vessels fishing for halibut are exempt 

from coverage. A vessel equal to or 

greater than 60 ft. LOA, but less than 

125 ft. LOA must carry an observer 

during at least 30 percent of its fishing 

days in a calendar quarter (30 percent 

coverage). Vessel owners and operators 

in the 30 percent coverage category 

choose when to carry observers, and 

fishery managers do not control when 

and where observers are deployed. 

Under the current program, owners of 

smaller vessels pay observer costs that 

are disproportionately high relative to 

their gross earnings. To address these 

concerns, the Council and NMFS have 

explored alternative program structures 

as part of four separate actions since the 

early 1990s. However, the Council 

identified problems with each of these 

actions. Only one alternative program 

structure was adopted (59 FR 46126; 

May 6, 1994), though, as explained in 

the EA/RIR/IRFA prepared for this 

action (see ADDRESSES) it was rescinded 

prior to full implementation (61 FR 

13782; March 28, 1996). While the 

Council was developing and 

considering options for an alternate 

program structure, the Council 

recommended, and the Secretary 

approved, several extensions of the 

Observer Program regulations. A 

thorough discussion of the history of the 

Observer Program, including past efforts 

to restructure and extend the Observer 

Program, is provided in the EA/RIR/ 

IRFA prepared for this action (see 

ADDRESSES), and is not repeated here. 

II. Proposed Action 

Section 313 of the MSA (16 U.S.C. 

1862) authorizes the Council to prepare 

a fisheries research plan that requires 

observers to be deployed in North 

Pacific fisheries and establishes a 

system of fees to pay the costs of 

observer coverage. The system of fees 

must be fair and equitable to all 

participants in the fisheries and may 

vary by fishery, management area, or 

observer coverage level. The fees may be 

expressed as a fixed amount reflecting 

actual observer costs or as a percentage 

of the unprocessed ex-vessel value of 

the fish and shellfish. Section 313 

provides that the fees may be applied to 

fish harvested under the jurisdiction of 

the Council, including the Northern 

Pacific halibut fishery. The fee 

percentage cannot exceed 2 percent of 

the ex-vessel value of fish harvested, 

and proceeds must only be used for 

costs directly incurred in carrying out 

the plan. Fee proceeds cannot be used 

to pay administrative overhead costs, 

although they may be used to station 

observers or electronic monitoring 

systems on vessels and in processing 

plants, and for inputting observercollected data. 

At its October 2010 meeting, the 

Council adopted a motion to restructure 

the Observer Program’s funding and 

deployment system. This proposed 

action would divide the Observer 

Program into two observer coverage 

categories—partial and full. All 

groundfish and halibut vessels and 

processors would be included in one of 

the categories. The partial observer 

coverage category would include fishing 

sectors (vessels and processors) that 

would not be required to have an 

observer at all times, and the full 

observer coverage category would 

include fishing sectors required to have 

all their operations observed. The 

Council’s motion and this proposed rule 

would restructure the funding and 

deployment system for all fisheries and 

shoreside processors in the partial 

observer coverage category and retain 

the existing funding and deployment 

system for operations in the full 

coverage category. Vessels and 

processors in the partial coverage 

category would pay an ex-vessel valuebased fee to NMFS for their observer 

coverage. By creating two separate 

categories of observer coverage with 

different funding and deployment 

systems, NMFS and the Council intend 

to address cost inequity and data quality 

concerns with the existing Observer 

Program structure without imposing 

higher costs on fishing sectors that 

currently pay for full observer coverage. 

Moreover, increased monitoring needs 

of future management programs would 

not reduce the funds available to 

provide observer coverage for the 

fisheries as a whole under the Council’s 

motion. 

A. Observer Coverage and Deployment: 

Full Coverage Category 

Since implementation of the domestic 

Observer Program in 1990, NMFS has 

required 100 percent observer coverage 

for vessels greater than or equal to 125 

ft. LOA and for shoreside processors or 

stationary floating processors that 

process at least 1,000 metric tons (mt) of 

groundfish during a calendar month. 

NMFS has increased observer coverage 

requirements since 1990 for vessels and 

processors in catch share programs with 

increased monitoring needs such as the 

Western Alaska Community 

Development Quota (CDQ) Program, the 

American Fisheries Act (AFA), 

Amendment 80 to the BSAI FMP, and 

the GOA Rockfish Program. Under the 

proposed rule, NMFS would base 

observer coverage requirements on data 

needs for specific management 

programs rather than requirements 

based on vessel length or processing 

volume. The current length and volumebased requirements would be removed 

from regulations, and NMFS would 

assign vessels and processors to either 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23329 

1 In this proposed rule, a fishing year is a calendar 

year. 

the partial or full coverage category 

based on NMFS’ data needs. 

Full observer coverage means that one 

or more observers is present at all times, 

(100 percent observer coverage). NMFS 

has determined that full observer 

coverage is needed in programs where 

catch is allocated to specific entities 

with quotas and limits of prohibited 

species catch, which must be discarded 

at-sea. Economic incentives exist for the 

industry to under report prohibited 

species catch discarded at-sea, 

especially in catch share programs 

where limits are placed on the amount 

of catch that may be retained and 

discarded. Therefore, the proposed rule 

would require full observer coverage on 

catcher vessels while they are fishing 

under a catch share program that has 

prohibited species catch limits. 

Under the current Observer Program, 

most catcher/processors and 

motherships are required to have one or 

two observers onboard at all times due 

to their participation in catch share 

programs. This proposed rule would not 

reduce the observer coverage currently 

required under those programs. 

This proposed rule would also require 

full observer coverage on all other 

catcher/processors and motherships to 

enhance the accuracy of NMFS’ catch 

accounting system. Currently, for 

catcher/processors with less than 100 

percent observer coverage, NMFS uses 

industry production reports to account 

for retained catch. NMFS uses discard 

rates from catcher/processors when 

there is an observer onboard to estimate 

at-sea discards for catcher/processors 

with less than 100 percent observer 

coverage. Catcher/processor vessels 

report the processed weight of their 

catch. On catcher/processors with less 

than 100 percent observer coverage, 

NMFS uses a product recovery rate to 

convert the retained processed weight to 

a whole-fish (round weight) weight 

equivalent. The application of product 

recovery rates for retained catch and atsea discard rates used for less than 100 

percent observed catcher/processor 

vessels to estimate their vessel’s catch 

and discards introduces error into 

NMFS’ catch accounting as discard rates 

may vary substantially among vessels. 

This proposed rule therefore would 

place all catcher/processors and 

motherships participating in the 

groundfish or halibut fisheries in the 

full coverage category to eliminate 

NMFS’ need to use production reports 

based on product recovery rates to 

estimate retained catch and at-sea 

discard rates from other vessels to 

estimate discard rates for less than 100 

percent observed catcher/processors. 

TABLE 1—VESSELS AND PROCESSING PLANTS PROPOSED TO BE INCLUDED IN THE FULL OBSERVER COVERAGE

CATEGORY

Proposed Full Coverage Category Vessels and Processing Plants 

Catcher/processors (with limited exceptions noted below). 

Motherships. 

Catcher vessels while participating in: 

AFA or CDQ pollock fisheries. 

CDQ groundfish fisheries (except: sablefish; and pot or jig gear catcher vessels). 

Central GOA Rockfish Program fisheries. 

Inshore processors when receiving or processing Bering Sea pollock. 

Vessels and processing plants in the 

full observer coverage category would 

be required to carry or provide at least 

one observer on 100 percent of the days 

they harvest, receive, or process 

groundfish or halibut. The proposed 

rule would not modify observer 

coverage, experience, or workload 

requirements at 50 CFR 679.50 for AFA 

directed pollock fishery vessels in the 

Bering Sea (BS), catcher/processors and 

motherships in the pollock CDQ 

fisheries in the BSAI, trawl catcher/ 

processors while groundfish CDQ 

fishing, pot catcher/processors while 

CDQ fishing, catcher/processors and 

motherships in the Aleutian Islands (AI) 

pollock fishery, Amendment 80 vessels 

and non-AFA trawl catcher/processors, 

and Rockfish Program vessels. 

Under the current Observer Program, 

owners and operators of vessels and 

processing plants contract directly with 

NMFS-permitted observer providers to 

meet the observer coverage 

requirements at 50 CFR 679.50. The 

fishing industry pays the observer 

providers directly for the cost of 

carrying observers. NMFS is not a party 

to the contracts between the industry 

and observer providers for the provision 

of observer services. Under this 

proposed rule, vessels and processors in 

the full coverage category would 

continue to obtain observers through 

direct contracts with observer providers 

as under the current Observer Program. 

Responsibilities for observer providers 

and observers in the current regulations 

at 50 CFR 679.50(i) and (j) would 

remain substantively unchanged for the 

purposes of the full coverage category, 

although the numbering of the 

regulations would be modified. 

All catcher/processors would be 

included in the full coverage category, 

thus, a vessel would need to be 

classified as either a catcher/processor 

or a catcher vessel; sometimes vessels 

are registered as both. NMFS’ 

determination of whether a vessel is a 

catcher/processor or a catcher vessel for 

purposes of observer coverage would be 

based on the operation category 

designation on the vessel’s Federal 

Fishing Permit (FFP). A vessel 

designated as a catcher/processor at the 

beginning of a fishing year 1 would be 

classified as a catcher/processor for the 

entire fishing year for the purposes of 

observer coverage. If an FFP were 

amended during the fishing year to add 

a catcher/processor designation, that 

vessel would be assigned to the catcher/ 

processor category for the remainder of 

the calendar year for the purposes of 

observer coverage. Except for the onetime election noted below, the catcher/ 

processor designation would supersede 

the catcher vessel designation for 

vessels with both designations. Thus, a 

vessel with both a catcher/processor and 

a catcher vessel designation on the FFP 

would be assigned to the full coverage 

category for all fishing in that year, 

regardless of how the fishing was 

actually conducted. 

This proposed rule would increase 

observer coverage requirements for 

catcher/processors less than 125 ft. LOA 

to 100 percent of the days they harvest, 

take delivery of, or process groundfish 

or halibut. However, the proposed rule 

would allow owners of vessels less than 

60 ft. LOA with a history of catcher/ 

processor and catcher vessel activity in 

a single calendar year, and owners of 

catcher/processors with an average daily 

groundfish production of less than 5,000 

pounds in the most recent full calendar 

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23330 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

2The Council’s motion does not specify the 

period of time prior to 2010 that a vessel may 

qualify for this one-time election. NMFS proposes 

2003 as the lower bound for this time period 

because Catch Accounting System data are not 

available before 2003. 

year from January 2003 2 through 

January 2010, to make a one-time 

election as to whether their vessel will 

be in the partial observer coverage 

category or the full observer coverage 

category. For vessels less than 60 ft. 

LOA with catcher/processor and catcher 

vessel activity in the same year, the 

election would be effective as long as 

both operation categories are listed on 

the FFP. Should an operator amend 

their FFP to list only one operation type, 

the one-time election would no longer 

apply if the permit were subsequently 

amended again to list both operation 

types. The one-time election for catcher/ 

processors with an average daily 

production of less than 5,000 pounds in 

the most recent year of operation prior 

to 2010 would apply for the duration 

the FFP of the qualified vessel is issued 

to the person making the one-time 

election. Upon transfer of the vessel to 

a new person, the one-time election 

would be void and the catcher/ 

processor designation would be the 

default designation with a full observer 

coverage requirement if listed on the 

FFP. 

NMFS would verify a vessel’s 

eligibility for the one-time election with 

the official Catch Accounting System 

(CAS), which contains production 

information back to 2003. Owners of 

eligible vessels would be required to 

notify NMFS in writing of their observer 

coverage category choice at least thirty 

days prior to embarking on their first 

fishing trip under the new program so 

that vessels could be included in the 

partial coverage category selection pools 

(described below). If the vessel meets 

the above criteria and the owner 

neglects to make a one-time election 

prior to the vessel’s first trip, the 

catcher/processor designation would be 

the default designation. 

While developing the proposed rule, 

NMFS realized that some vessels used 

to harvest and freeze a minimal amount 

of whole fish meet the existing 

definition of a catcher/processor and so 

would be included in the proposed full 

coverage category. To better align 

observer coverage with the data needs 

from these vessels, this proposed rule 

would allow operators of catcher/ 

processors that process no more than 1 

mt of round weight equivalent 

groundfish on any day (to a maximum 

of 365 mt in a calendar year) to be 

included in the partial observer 

coverage category for the following year. 

This allowance is consistent with the 

existing catcher vessel definition for 

license limitation program groundfish. 

An operator of a catcher/processor that 

processes up to 1 mt of groundfish per 

day in the current calendar year would 

be eligible to follow the procedures for 

participating in the partial observer 

coverage category (described below) 

instead of the full observer coverage 

category for the following calendar year. 

NMFS proposes that owners of vessels 

that process up to 1 mt of groundfish 

per day could elect to be in the partial 

coverage category for the following year 

by registering with the Observer 

Declaration and Deployment System 

(Deployment System) that they 

processed no more than 365 mt of 

groundfish in the current calendar year. 

If a vessel processes more than 1 mt 

round weight equivalent per day in a 

calendar year, it would not be eligible 

to participate in the partial observer 

coverage category in the following year. 

Vessels that process halibut or more 

than 1 mt of round weight equivalent 

groundfish per day would be designated 

a catcher/processor for purposes of 

observer coverage category assignment. 

B. Observer Coverage and Deployment: 

Partial Coverage Category 

The partial observer coverage category 

would be composed of groundfish and 

halibut catcher vessels and shoreside 

and stationary floating processors 

required to carry or provide an observer 

for less than 100 percent of their 

operations. Operations that would be in 

the partial observer coverage category 

include all catcher vessels except while 

participating in fisheries requiring full 

observer coverage (see above) and all 

shoreside or stationary floating 

processors except while receiving 

deliveries of BS pollock. If a catcher 

vessel or shoreside processor 

participates in fisheries with full 

observer coverage requirements and 

fisheries with partial observer coverage 

requirements, the operator would be 

subject to the respective coverage 

requirements and may be subject to both 

coverage categories within a year. 

TABLE 2—VESSELS AND PROCESSING PLANTS PROPOSED TO BE INCLUDED IN THE PARTIAL OBSERVER COVERAGE

CATEGORY

Proposed partial coverage category vessels and processing plants 

Catcher vessels designated on an FFP when directed fishing for groundfish in federally managed or parallel fisheries, except those in the full 

coverage category. 

Catcher vessels when fishing for halibut individual fishing quota (IFQ) or CDQ. 

Catcher vessels when fishing for sablefish IFQ or fixed gear sablefish CDQ. 

Catcher/processors with a maximum daily production of 1 mt, if so elect. 

Catcher/processors meeting criteria above for one time election of coverage category, if so elect. 

Shoreside or stationary floating processors, except those in the full coverage category. 

The partial observer coverage category 

is designed to replace the fixed coverage 

levels currently specified in regulations 

with coverage designed to fit data needs 

for conservation and management, and 

to improve the quality of observercollected data among fleets where only 

a portion of the fishing and processing 

activity is observed. Under the proposed 

rule, vessels and processing plants in 

the partial coverage category would be 

assigned observer coverage through a 

NMFS deployment system with 

predetermined random selection 

probabilities. As described in section 

3.2.3 of the analysis (see ADDRESSES), 

the use of a randomized design to assign 

observers to individual trips or vessels 

addresses NMFS’ need to collect 

unbiased, representative data on catch 

and bycatch in the groundfish and 

halibut fisheries. The current program is 

limited as vessels and plants that are 

required to have 30 percent observer 

coverage select when to carry observers, 

which statistically biases estimates of 

catch and bycatch. Moreover, NMFS 

lacks catch and effort information from 

groundfish vessels less than 60 ft. LOA 

and halibut vessels of any length. This 

proposed rule would remove 

exemptions from observer coverage for 

halibut vessels and for groundfish 

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vessels less than 60 ft. LOA and 

implement a randomized observer 

deployment process to improve the 

probability that unbiased information 

on catch and bycatch can be collected. 

Operations in the partial coverage 

category would be randomly selected for 

observer coverage when fishing for 

halibut or when directed fishing for 

groundfish in the federally managed or 

State of Alaska (State) parallel 

groundfish fisheries. This proposed rule 

would define the commonly-used 

‘‘parallel groundfish fishery’’ term as a 

fishery that occurs in State waters, is 

open at the same time as Federal 

groundfish fisheries in Federal waters, 

and groundfish catch is deducted from 

the Federal total allowable catch (TAC). 

1. Funding 

Under the authority of section 313 of 

the MSA, the proposed rule would 

require participants in the partial 

coverage category to pay an ex-vessel 

value-based fee for observer coverage. 

The observer fee may be assessed 

against a subset of fishing vessels and 

processors, including those not required 

to carry an observer or electronic 

monitoring under the fisheries research 

plan (deployment plan). NMFS would 

use the ex-vessel value fee proceeds to 

contract with observer providers to 

deploy observers in the partial coverage 

category. Section 313 allows NMFS to 

use the fees to pay for stationing 

observers or electronic monitoring 

systems on board fishing vessels and 

fish processors. 

The maximum ex-vessel value fee 

authorized under section 313 is 2 

percent. In its October 2010 motion, the 

Council selected a fee of 1.25 percent. 

Under the ex-vessel value fee program, 

the fee amount would be paid by both 

vessels and processors in the partial 

coverage category. The Council’s and 

NMFS’ intent is for owners and 

operators of catcher vessels delivering to 

shoreside processors or stationary 

floating processors to split the fee 

liability 50/50 with the processor, such 

that each operation would pay 0.625 

percent of the total ex-vessel value of 

the landing. While the intent is that 

vessels and processors would be 

responsible for their portion of the exvessel value fee, the owner of a 

shoreside processor or a stationary 

floating processor named on a Federal 

Processing Permit (FFP) would be 

responsible for collecting the fee, 

including the vessel’s portion of the fee, 

at the time of landing and remitting the 

full fee amount to NMFS. However, 

because NMFS does not regulate 

business transactions between vessels 

and processors, the intended fee 

liability split would not be codified in 

Federal regulations. The proposed 

regulations provide that NMFS would 

hold the processor liable for payment of 

the entire fee. 

The proposed fee percentage (1.25 

percent) seeks to balance the need for 

revenue to support the Observer 

Program while minimizing impacts on 

the industry sectors included in the 

restructured program. The Council 

considered a fee of less than 2 percent 

of the fishery ex-vessel value on vessels 

less than 60 ft. LOA to minimize the 

costs to the smallest operations. 

However, in order to develop a fee 

program that would be fair and 

equitable across all sectors in the 

restructured program, the Council 

determined that the same fee percentage 

should apply to all restructured sectors 

as they all benefit from resulting 

observer data that is essential for 

conservation and management of the 

fisheries in which they participate. 

Section 4.3.3 of the analysis (see 

ADDRESSES) estimates a 1.25 percent fee 

would generate about $4.2 million per 

year, based on the estimated average of 

ex-vessel revenues from 2005 through 

2008, and fund over 9,000 observer 

days. The amount of revenue needed to 

support the minimum proposed 30 

percent at-sea observer coverage for the 

partial coverage category is estimated to 

be $3.8 million, which would fund 

8,093 observer days (see ADDRESSES). 

The estimate assumes that vessels less 

than 40 ft. LOA would not be observed, 

although they would be subject to the 

ex-vessel value fee and benefit from 

observer data collected on larger vessels. 

Vessels less than 40 ft. LOA would have 

zero probability of being selected for 

observer coverage in the initial year or 

years of the program; however, the 

criteria for no selection could change 

annually through an annual deployment 

plan. The Council determined that a 

1.25 percent fee would fund the 

necessary observer days to reach the 

target coverage, with a buffer equal to 

roughly 10 percent of the estimated 

revenue. In addition, a fee of 1.25 

percent would better ensure that an 

individual vessel or processor would 

not pay over the 2 percent maximum fee 

authorized in the MSA. Should the 

Council determine the 1.25 percent fee 

is insufficient or excessive following its 

review of the NMFS annual observer 

report to be prepared as part of this 

proposed action, the Council could 

adjust the fee percentage up or down 

through a subsequent regulatory action. 

2. Observer Deployment 

A primary goal of the restructured 

program is to attain unbiased fishery 

catch estimates by allowing NMFS to 

assign and deploy observers on vessels 

and plants that are currently unobserved 

or observed at a rate of 30 percent, using 

a random selection plan. The 

restructured Observer Program would 

require NMFS to efficiently allocate 

observer effort towards multiple 

objectives, such as estimating catch, 

bycatch, and protected species 

interactions, within the budget 

generated by ex-vessel value-based fee 

proceeds. By September 1 of each year, 

NMFS would complete an observer 

deployment plan containing projected 

observer coverage rates in the upcoming 

calendar year for the various sectors in 

the partial coverage category. The 

deployment plan would describe the 

methods by which vessels, plants, or 

individual fishing trips would be 

chosen for observer coverage. 

Two distinct observer coverage 

selection pools are proposed for vessels 

in the partial coverage category—fishing 

trip selection and vessel selection. 

NMFS would establish criteria for 

inclusion in the respective pools (i.e., 

vessel length and gear-type) to 

maximize efficiency in generating 

representative estimates of catch and 

bycatch given available funds and 

anticipated fishing effort. NMFS would 

specify the vessel-length and gear-type 

criteria for each selection pool in the 

annual deployment plan. 

a. Entering Vessels Into the Deployment 

System 

To properly allocate observer 

resources, NMFS would need to 

estimate the level of participation for 

each selection pool for the upcoming 

calendar year. The more accurate the 

projected fleet activity, the higher the 

likelihood of achieving planned 

coverage levels. NMFS presented its 

proposed plan for compiling a list of 

expected fishery participants to the 

Council’s Observer Advisory Committee 

in September, 2011 and to the Council 

in October, 2011. NMFS described a 

process whereby operators of vessels 

named on an Federal Fisheries Permit 

(FFP) would be required to enter their 

vessel information into the Deployment 

System by December 1 of the year prior 

to each fishing year in order to generate 

an accurate list of vessels that would 

participate in the fisheries in the 

upcoming year. However, NMFS 

amended this proposed provision to 

automate this process and provide 

latitude to vessel owners and operators, 

such that they would not be required to 

meet a December 1 entry deadline that 

they could be penalized for failing to 

meet. 

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As part of this proposed action, NMFS 

would establish the Deployment System 

as the communication platform among 

industry participants in the partial 

coverage category, the Observer 

Program, and contracted observer 

providers. The Deployment System 

would be available by Internet and 

phone. NMFS would provide 

instructions for accessing the 

Deployment System in the written 

notification to vessels that are autoentered into the selection pools. Access 

to the Deployment System would also 

be available through the NMFS Alaska 

Region Web site (see ADDRESSES). 

To generate a list of expected fishery 

participants for the upcoming calendar 

year, NMFS would auto-enter in the 

Deployment System (a) all partial 

coverage category vessels that are 

designated on an FFP and; (b) all 

catcher vessels that are not designated 

on an FFP but that land sablefish IFQ or 

halibut IFQ or CDQ in a fishing year. 

NMFS would notify in writing, 

operators of vessels that are entered into 

the Deployment System for the 

upcoming year to indicate the 

applicable selection pool for his or her 

vessel and instructions for 

communicating with the Observer 

Program for the upcoming year. 

An owner or operator would be 

required to manually enter in the 

Deployment System any vessel not autoentered into a selection pool prior to 

embarking on a trip to directed fish for 

groundfish or to fish for halibut. An 

owner of a vessel designated on an FFP 

that is issued after December 1 of the 

year prior to the fishing year would be 

required to enter his or her vessel 

information into the Deployment 

System within 30 days of issuance of 

the FFP. While an FFP is issued to 

specific a vessel, a permit to harvest IFQ 

and halibut CDQ is issued to a person 

and no vessel is named on the permit. 

Thus, operators of non-FFP vessels that 

are not auto-entered into the 

Deployment System due to a lack of 

prior year fishing activity would need to 

enter their vessel information into the 

Deployment System at least thirty days 

prior to embarking on a fishing trip for 

sablefish IFQ or halibut IFQ or CDQ to 

be entered into a selection pool. In this 

case, the Deployment System would 

notify the operator as to the selection 

pool into which the vessel is entered. 

NMFS requests public comment on the 

process proposed for NMFS to autoenter vessels with fishing activity in a 

preceding year and the process 

proposed for vessel owners or operators 

to manually enter their vessel 

information due to issuance of a new 

FFP. 

TABLE 3—DEPLOYMENT SYSTEM ENTRY PROCESS FOR VESSELS DESIGNATED ON AN FFP AND VESSELS NOT

DESIGNATED ON AN FFP 

FFP Vessels Non-FFP vessels 

(sablefish IFQ and halibut IFQ or CDQ) 

Initial vessel list for upcoming year .................... NMFS generates a list of current FFP vessels NMFS generates a list from current year landings. 

Additions after December 1 of prior fishing year Owners enter their vessel information into the 

Deployment System within 30 days of FFP 

issuance.

Operators enter their vessel information into 

the Deployment System at least 30 days 

prior to first trip. 

Notification of selection pool (trip or vessel) ...... If in the initial vessel list, then owner or operator notified in writing from NMFS. If added after 

the initial list, then owner or operator notified via the Deployment System. 

b. Trip Selection Pool 

NMFS would select individual fishing 

trips using the Deployment System for 

observer coverage in the trip selection 

pool. Initially, trips taken by hook-andline and pot vessels 57.5 ft. LOA or 

greater and all trawl vessels in the 

partial coverage category would 

comprise the trip selection pool. NMFS 

would further subdivide the trip 

selection pool into groups with similar 

traits (sampling strata) and assign a 

specific sampling rate to each stratum to 

minimize the variance, and thus 

increase certainty, in observer-derived 

catch estimates. In subsequent years, 

NMFS would review the suitability of 

the sampling strata and rates and make 

necessary adjustments to the strata 

through the annual deployment plan. 

Operators of vessels in the trip 

selection pool would be required to 

contact the Deployment System by 

phone or Internet (hail-in) at least 72 

hours in advance of embarking on a 

fishing trip for halibut or directed 

fishing for groundfish. Upon hailing-in, 

the vessel operator would be prompted 

to enter information about the departure 

location and duration of the upcoming 

fishing trip. The Deployment System 

would determine the sampling stratum 

for each vessel by the vessel’s 

identification number and information 

provided in the user’s Deployment 

System account (FFP or Alaska 

Department of Fish and Game [ADF&G] 

number). A determination as to whether 

the trip is or is not selected for observer 

coverage would be generated during the 

web session or call through a random 

process that would be described in the 

annual deployment plan. The vessel 

operator would be notified of the result 

(affirmative or negative for observer 

coverage) by the Deployment System, 

and the unique call identification 

number (receipt) would be provided. 

For selected trips, the Deployment 

System would provide the vessel 

operator with instructions on how to 

coordinate with an observer provider to 

obtain the required observer coverage as 

well as notify observer-provider(s) 

contracted by NMFS of trips subject to 

observer coverage. The observer 

provider would work with the vessel 

operator to coordinate observer logistics 

in a manner consistent with the current 

observer deployment system. Operators 

would be prohibited from embarking on 

a trip selected for observer coverage 

without an observer, unless the 

Observer Program released the selected 

trip from observer coverage due to 

extenuating circumstances (e.g., the 

observer provider is unable to deploy an 

observer to the vessel within a day of 

the intended fishing trip departure). 

A notification period of 72 hours prior 

to a fishing trip departure is proposed 

to allow the observer provider sufficient 

time to deploy an observer to the port 

of embarkation. NMFS recognizes that a 

longer notification window is preferable 

for observer providers to make 

arrangements to deploy an observer to 

the port indicated by the vessel operator 

and a shorter notification window is 

preferable for vessel operators, whose 

fishing plans may change over the 

course of a week. Existing regulations 

for similar observer deployment systems 

in Northeast and Western Pacific 

fisheries at 50 CFR 648.85 and 665.205, 

respectively, require operators to notify 

NMFS 72 hours in advance of an 

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intended fishing trip. NMFS considers 

that for the affected North Pacific 

groundfish and halibut fisheries 72 

hours is a reasonable compromise 

between the need for an observer 

provider to have advanced notice of a 

selected trip and the operator’s desire 

for flexibility in their fishing plans. An 

operator would not be required to wait 

72 hours to embark on a trip that is 

registered with the Deployment System 

and not selected for observer coverage; 

rather they could depart at will. Further, 

an operator could embark on a fishing 

trip selected for observer coverage when 

the observer is on board, which could be 

less than 72 hours in some cases. Thus, 

NMFS proposes a prior-notification 

period of 72 hours and notes that there 

is a possibility that an observer could be 

deployed in less than 72 hours. 

However, that would not be guaranteed. 

NMFS recognizes several factors that 

could result in the failure of a vessel to 

commence a trip as planned, such as a 

mechanical breakdown or weather 

delay. Vessel operators may also alter 

fishing plans to avoid having to take an 

observer on a particular trip if selected 

for coverage. The delay or cancellation 

of a selected fishing trip would not 

result in an automatic release from 

observer coverage. NMFS would make 

an observer available to a vessel for up 

to 48 hours past the departure date and 

time of the fishing trip that was selected 

by the Deployment System. After 48 

hours, if an operator has not embarked 

on a selected trip, the trip would be 

invalidated by the Deployment System 

and the observer could be deployed to 

another vessel. If a selected trip is 

cancelled by the operator or invalidated 

by the Deployment System, the observer 

coverage requirement would apply to 

the vessel’s next trip. The vessel 

operator would be required to register a 

new trip with the Deployment System 

and wait for an observer to be available 

before embarking on the new trip. 

NMFS proposes the maximum 48-hour 

delay to provide some room for 

unexpected delays while avoiding the 

cost of paying for an observer to wait in 

port for more than two days before 

embarking on a trip. 

Observer coverage would be required 

for the entire fishing trip if selected in 

the trip selection pool. The ‘‘fishing 

trip’’ definition at 50 CFR 679.2 specific 

to vessels in the partial coverage 

category of the groundfish and halibut 

Observer Program would be revised to 

refer to the period of time between 

when a catcher vessel departs a port to 

harvest fish until the offload of all fish 

from that vessel. With the exception of 

regulatory discards, a fishing trip would 

be prohibited from commencing with 

fish aboard. The revised definition is 

intended to match the information 

entered into the Deployment System by 

the operator about the planned fishing 

trip departure time and to ensure that 

all fishing events and harvest from an 

entire trip are observed when selected. 

The ‘‘fishing day’’ definition at 50 CFR 

679.2 would be removed from 

regulations as observer coverage would 

no longer be required as a portion of the 

days fished by an operation in a 

calendar quarter. 

NMFS recognizes that some operators 

would not know their exact departure 

plans 72 hours in advance of some fastpaced fisheries. To address this 

uncertainty, vessel operators would be 

able to register more than one trip at a 

time with the Deployment System. The 

opportunity for the operator to register 

and enter information about multiple 

trips would inform them if any of their 

trips in a fast-paced open access fishery, 

such as the pollock or Pacific cod 

fisheries in the GOA, are selected for 

observer coverage. The observer 

provider would be notified of the 

registered trips that are selected for 

coverage so that logistics to deploy an 

observer could be arranged in advance. 

Moreover, NMFS and the observer 

provider contractor(s) would need to 

put observers on stand-by in the 

departure ports for deployment into 

fast-paced fisheries. Doing so would 

prevent the interruption of a vessel’s 

fishing activity or the need for the 

Observer Program to release selected 

fishing trips from observer coverage. 

c. Vessel Selection Pool 

The vessel selection pool is proposed 

as an alternate to the trip selection pool. 

Vessel selection would reduce the 

volume of trip notifications received by 

the Deployment System. Further, vessel 

selection would increase NMFS’ ability 

to deploy observers on small, fixed gear 

vessels, which would otherwise be 

logistically challenging under a trip 

selection protocol. Initially, vessels 

greater than or equal to 40 ft. LOA but 

less than 57.5 ft. LOA using fixed gear 

to fish groundfish or halibut would 

comprise the vessel selection pool. 

Vessel criteria for inclusion in the vessel 

selection pool would be specified in 

annual deployment plans. 

Vessels with an FFP or vessels used 

to harvest IFQ or CDQ halibut would be 

included in a selection pool. For the 

vessel selection pool, NMFS would 

randomly choose a subset of vessels 

based on either the FFP number or a 

combination of ADF&G registration 

number and planned fishing activity to 

observe for a predetermined time 

period. 

Vessel operators required to manually 

enter their vessel information into the 

Deployment System would be notified 

by the Deployment System as to 

whether or not their vessel is selected 

for observer coverage. The Deployment 

System would provide instructions for 

the operator of a vessel selected for 

observer coverage to contact a NMFScontracted observer provider to discuss 

logistics for obtaining observer coverage. 

The proposed rule would require 

operators to comply with the 

instructions provided by the 

Deployment System. For vessels that are 

auto-entered into the vessel selection 

pool, NMFS would indicate in the 

written notification whether or not a 

vessel is selected for observer coverage 

and would include instructions for the 

owner or operator to coordinate with the 

Observer Program and the contracted 

observer provider for required observer 

coverage. 

For the vessel selection pool, the time 

period for which a selected vessel 

would be required to carry an observer 

would be specified in the annual 

deployment plan, in the Deployment 

System, and in the written notification 

sent out to non-FFP vessel operators. In 

section 3.7.2.3 of the analysis (see 

ADDRESSES), a period of 3 months was 

proposed as the initial vessel selection 

duration. Under that scenario, an 

observer would be required on every 

fishing trip while the vessel is directed 

fishing for groundfish or halibut over a 

3-month period. Initially, the 3-month 

period would correspond to a quarter of 

the calendar year. A vessel selected in 

the first ‘‘block’’ of 3 months would 

return to the pool of vessels eligible for 

random selection and could be selected 

again in the following blocks. The 

potential for re-selection is referred to as 

‘‘sampling with replacement.’’ Sampling 

with replacement ensures that each 

selected sample is independent of the 

others so that each vessel has an equal 

probability of being selected on any 

given draw. Under the assumption that 

the vessels registered in the selection 

system represent similar entities, this 

randomization would protect against 

bias so that representative estimates of 

fishery catch from observer-collected 

data are generated. Given the large 

number of vessels expected in the pool, 

successive selections of the same vessel 

are unlikely but possible. The majority 

of vessels in the vessel selection system 

would be hook-and-line vessels 

participating in halibut IFQ and CDQ, 

and sablefish IFQ fisheries. In the 

future, the vessel selection time period 

could be adjusted through the annual 

deployment plan to match logical 

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increments of the fishing season and to 

ensure that operators of vessels selected 

are not choosing their fishing trip dates 

to avoid carrying an observer. 

NMFS anticipates logistical 

complexities related to deploying 

observers on vessels less than 57.5 ft. 

LOA, and coordination between NMFS 

and vessel operators would be needed to 

successfully deploy observers with 

minimal impact to the vessel’s normal 

operations. Vessels less than 57.5 ft. 

LOA have not previously been subject to 

observer coverage. Due to NMFS’ 

limited experience with individual, less 

than 57.5 ft. LOA vessels, since they 

previously were unobserved vessels, 

NMFS expects vessel owners and 

operators to have justified concerns 

about crew and observer safety and 

displacement of crew members to carry 

an observer. When possible in the 

coordination process, at the request of 

the vessel owner or operator, the 

observer and a NMFS program 

coordinator may visit the vessel, meet 

with the captain and crew, and 

familiarize themselves with how an 

observer would sample aboard a 

particular vessel. At its discretion, 

NMFS could provide electronic 

monitoring equipment to the owner or 

operator for use on the vessel. 

As a first step in coordination, upon 

first login to the Deployment System, 

vessel operators would indicate their 

assessment as to whether or not an 

observer could be accommodated 

aboard their vessel. The operator would 

be prompted to enter the reason why an 

observer could not be accommodated 

(e.g., lack of space for an observer to 

sample) if so indicated. A program 

coordinator may visit any vessel 

selected for observer coverage where the 

operator indicated that an observer 

could not be accommodated to verify 

this assessment. If NMFS determined 

that the vessel was unsuitable to carry 

an observer, the Observer Program, in its 

discretion, could release the vessel from 

the requirement to be observed for the 

duration of the selection period. 

d. Release From Observer Coverage 

Any determination to release a 

selected vessel from observer coverage 

during the selected time period would 

be made on a case-by-case basis by the 

Observer Program. There are a variety of 

reasons for which a selected vessel or 

fishing trip could be released from 

observer coverage. For example, 

inclement weather could prevent an 

observer from getting into a port where 

a selected vessel is located. In that case, 

NMFS would work with the observer 

contractor to evaluate the situation and, 

if warranted, grant a release from 

coverage to prevent undue interruption 

to a vessel’s operations. As it is 

impossible to anticipate every situation, 

the decision to grant a release or not 

grant a release will be made on a caseby-case basis. The Observer Program 

would document the reasons and 

evidence the decision-maker relied on 

to make the decision to grant or deny a 

release and, if a release is granted, the 

duration for which the vessel is released 

from coverage. NMFS recognizes that 

the decision process on observer 

coverage releases needs to be efficient to 

limit impacts (such as delays) on the 

fishing community. Observer Program 

staff would inform the vessel operator 

via phone or email of its decision to 

release, or not, a selected vessel or trip 

from coverage and note the release in 

the corresponding trip information in 

the Deployment System. Information on 

release occurrences, and the reasons for 

them, would be included in future 

reporting on Observer Program 

operations to the Council. NMFS 

anticipates that the Contracting Officer 

Technical Representative (COTR) 

assigned to this contract will make these 

release decisions initially. The COTR 

would work on an ‘‘on call’’ basis to 

ensure the decisions are made in a 

timely manner. As experience is gained 

with the program and the reasons for 

releases are better understood, NMFS 

may be able to delegate routine releases 

to the observer contractor, with 

appropriate documentation as to the 

reasons, to ensure program efficiency. 

e. Comparison of Vessel and Trip 

Selection Pools 

TABLE 4—PRIMARY DISTINCTIONS BETWEEN THE PROPOSED VESSEL AND TRIP SELECTION POOLS

Vessel selection pool Trip selection pool 

Selected Unit ...................................................... Vessel .............................................................. Fishing Trip. 

When Selected ................................................... Prior to each calendar quarter ......................... At least 72 hours prior to trip. 

When Operator Notified ..................................... Prior to each calendar quarter ......................... Prior to each trip. 

How Operator Notified of Selection .................... Via written notification ...................................... Via Deployment System. 

Duration of Coverage ......................................... For the first year of the program, three 

months. Subject to change per annual deployment plan. 

Fishing Trip. 

Possible Electronic Monitoring Option ............... Upon release from observer coverage requirement. No. 

Owner’s or Operator’s Notification Requirements.If selected, must provide access and comply 

with instructions provided by the Deployment System or the written notification, as 

applicable, to obtain observer coverage. 

Must notify NMFS at least 72 hours prior to 

embarking on a groundfish or halibut fishing 

trip. 

The following diagram depicts the 

proposed vessel and trip selection 

process within the Deployment System, 

upon completion of the vessel entry process, either through auto-entry or 

manual-entry described above: 

BILLING CODE 3510–22–P 

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BILLING CODE 3510–22–C 

f. Electronic Monitoring 

NMFS is encouraged by emerging 

technological developments that enable 

the use of electronic monitoring when 

its use is cost effective and can provide 

NMFS and the Council information 

needed to meet a management objective. 

NMFS and the Council have been 

engaged in electronic monitoring 

development for several years, and they 

jointly conducted a 2008 workshop and 

produced a report available at http:// 

alaskafisheries.noaa.gov/npfmc/ 

conservation-issues/observerprogram.html, which is still relevant. 

Since then, NMFS and the International 

Pacific Halibut Commission jointly 


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conducted research comparing the use 

of electronic monitoring video systems 

and observers in hook-and-line 

fisheries. A full report of that study, 

‘‘Bycatch characterization in the Pacific 

halibut fishery: a field test of electronic 

monitoring technology,’’ is available at 

the North Pacific Fisheries Research 

Board Web site at: http:// 

project.nprb.org/. NMFS is currently 

assisting industry efforts funded 

through a National Fish and Wildlife 

Foundation grant to further develop and 

operationalize electronic monitoring 

technology for use on small hook-andline vessels where human observation 

can be challenging, and, at times, 

impossible. 

The Council’s Observer Advisory 

Committee (Committee) assessed 

electronic monitoring at its March 2011 

meeting, considered the potential, and 

some of the limitations, of the current 

state of electronic monitoring 

technology relative to Alaskan fisheries 

management issues. The Committee 

noted that there are existing operational 

electronic monitoring systems using 

cameras in a surveillance capacity on 

several catcher/processors in the North 

Pacific groundfish fisheries off Alaska. 

In those applications, electronic 

monitoring is stable and functions as 

another set of eyes for an observer to see 

areas that are blocked from their line of 

sight, and to provide a preserved record 

of vessel activities when the observer is 

not present. However, data collected by 

these surveillance systems are not 

routinely extracted for fisheries 

management. 

NMFS seeks to develop capacity, both 

in and out of house, for video 

deployment, review, and information 

extraction at the inception of the 

restructured program. NMFS presented 

an initial draft of regulations to 

implement the restructured Observer 

Program to the Committee in September 

2011 and to the Council at its October 

2011 meeting. The initial draft 

regulations included a provision that 

would have required vessels selected for 

coverage in the vessel selection pool to 

have either an observer or an electronic 

monitoring system onboard the vessel 

for the duration of the selection. Upon 

further review, concerns were raised 

about the legality of requiring electronic 

monitoring on vessels since NMFS has 

not yet developed performance 

standards or technical specifications for 

electronic monitoring. Subsequently, 

this provision was revised such that the 

only observer requirement for a vessel 

selected for coverage would be that an 

observer be onboard for the duration 

required. Upon release from the 

requirement to carry an observer 

(described above), NMFS may provide 

an electronic monitoring system for use 

on a vessel if the operator coordinates 

with NMFS to make his or her vessel 

available for evaluation and installation 

of electronic monitoring equipment. 

However, NMFS would not have the 

authority to require a vessel to carry 

electronic monitoring equipment as part 

of this proposed rule. 

The Council passed a motion at its 

October 2011 meeting which noted that 

NMFS will need to prioritize vessels 

that are suited for electronic monitoring 

and that initial efforts to use electronic 

video monitoring as a substitute for an 

observer would focus on hook-and-line 

vessels less than 57.5 ft. LOA fishing for 

halibut and sablefish IFQ. A lag is 

expected between the collection and 

review of camera-collected catch 

composition data; therefore, the 

Committee and Council recommended 

halibut and sablefish IFQ vessels greater 

than or equal to 40 ft. LOA but less than 

57.5 ft. LOA for initial eligibility for 

electronic monitoring as NMFS does not 

rely on data collected at-sea for inseason 

management of these fisheries. 

Electronic video monitoring for catch 

composition is still under development 

and the existing technology will likely 

improve with further refinement. NMFS 

encourages vendors to continue to 

develop the capacity to deploy and 

service electronic monitoring systems 

for Federal fisheries off Alaska. 

Dependent on funding, NMFS will look 

to develop the capacity to deploy 

electronic monitoring in all cases where 

it would be the best alternative for 

information collection. 

g. Vessels Initially Set Aside From a 

Selection Pool 

Under the proposed deployment 

system, NMFS would determine, on an 

annual basis, which vessel categories 

would be subject to the trip selection 

pool and which would be subject to the 

vessel selection pool. The fraction of 

each pool that is observed will depend 

on data needed for management of the 

fisheries and on the revenue generated 

for observer coverage through the exvessel value-based observer fee. Section 

3.2.10 of the analysis describes the 

sequential development of the observer 

deployment design, ranging from a pilot 

design based on a minimal amount of 

prior information about the fisheries, to 

full optimization designed to minimize 

the variance in catch estimates. The 

process employed by NMFS to allocate 

observer coverage would become more 

precise over time as information is 

collected under the randomized design, 

permitting estimates of variance within 

and among vessel categories. Thus, from 

year to year, the criteria for which 

partial coverage category vessels are in 

each pool may be adjusted to increase 

the sampling efficiency. The coverage 

rates may also vary among selection 

pools, and the probability of selection 

from some vessel categories may be low 

to none. 

NMFS analyzed landings information 

to arrive at a minimum vessel length for 

inclusion in the vessel selection pool for 

the initial year of the restructured 

program. Full details are provided in 

section 3.2.7 of the analysis (see 

ADDRESSES). NMFS grouped historic 

data on total landed weight by vessel 

properties that are known before a trip 

begins (e.g., vessel length and gear type). 

It was important to group landing data 

by known vessel properties since 

observers are deployed prior to a 

landing and properties such as the target 

species are determined after the fishing 

trip. NMFS sought to maximize the 

sampling efficiency and precision in the 

resulting estimates by defining vessel 

length and gear type groups to minimize 

the variation in landed weight within a 

group and maximize the variation in 

landed weight between groups. The first 

grouping property was ‘‘gear type’’ due 

to large differences in landed weight 

between trawl and fixed (hook-and-line 

and pot) gear. The second grouping 

property was vessel length with a break 

in landed weights from vessels below 

and above 57.5 ft. LOA. Since there 

were no trawl vessels below 57.5 ft. 

LOA, this effectively separated trawl 

vessels. However, there were a large 

number of fixed gear vessels less than 

57.5 ft. LOA. Landings made in 2007 

and 2008 from vessels up to 57.5 ft. 

LOA using fixed gear were further 

analyzed to determine the vessel length 

where the amount of fish harvested per 

trip was significantly lower than the 

amount harvested by larger vessels. 

Section 3.2.7.2 of the analysis (see 

ADDRESSES) concluded that a vessel 

length of 39 ft. LOA was the break point 

below which the amount of harvest per 

trip was different than the amount of 

harvest per trip for larger vessels. NMFS 

rounded that length up to 40 ft. LOA as 

a vessel length below which observers 

would not be deployed in the initial 

year(s) of the program. 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. 

Consistent with existing observer 

coverage requirements, the operator of a 

groundfish catcher vessel delivering an 

unsorted cod end to a mothership 

would not be required to notify NMFS 

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of his or her intent to embark on a 

fishing trip, carry an observer, or pay 

the ex-vessel value-based fee. The catch 

from these vessels would continue to be 

sampled by the observer aboard the 

mothership. Under the proposed rule 

the mothership operator would continue 

to contract directly with an observer 

provider for the required coverage. 

Groundfish or halibut landings from 

catcher vessels in the partial coverage 

category that is retrieved (sorted) 

onboard the catcher vessel before 

delivery to the mothership would be 

subject to the fee assessment and 

observer coverage under the new 

funding and deployment system. 

Vessels designated on an FFP would 

be included in observer coverage 

requirements when directed fishing for 

groundfish in federally managed or 

State parallel groundfish fisheries; 

however, they would not be required to 

carry an observer or hail-in to the 

Deployment System when participating 

in groundfish fisheries that are managed 

by the State in State waters where 

harvests are not deducted from the 

Federal TAC. Finally, with the 

exception of vessels fishing halibut and 

sablefish IFQ or halibut CDQ, vessels 

without an FFP would not be required 

to comply with Federal observer 

coverage requirements. 

C. Shoreside Processor and Stationary 

Floating Processor Observer Coverage 

With three exceptions, existing 

observer coverage requirements for 

shoreside processors and stationary 

floating processors are based on the 

weight of groundfish delivered to the 

plant each month. A plant that receives 

at least 1,000 mt of groundfish in a 

month is required to have an observer 

present at the facility each day it 

processes or receives groundfish. A 

plant that receives between 500 mt and 

1,000 mt of groundfish in a month is 

required to have an observer at the 

facility at least 30 percent of the days it 

processes or receives groundfish. Plants 

that receive less than 500 mt of 

groundfish in a month are not required 

to have an observer. The duties of 

observers in plants consist of 

compliance monitoring (e.g., verifying 

delivery weights recorded by scales), 

identifying and counting salmon 

bycatch in certain fisheries, and 

collection of biological samples to meet 

various science and management 

objectives. 

Exceptions to the existing weightbased observer requirements for plants 

include plants receiving CDQ 

groundfish or species harvested under 

the GOA Rockfish Program and AFA 

inshore processors receiving pollock 

from the BSAI. These plants are 

required to have an observer present at 

all times while these deliveries are 

being received or processed. When 

receiving BS pollock or GOA Rockfish 

Program deliveries, each plant is 

required to have a Catch Monitoring and 

Control Plan (CMCP) that defines how 

fish will be sorted and weighed during 

these deliveries. In these fisheries, the 

plant observer is responsible for 

confirming that a plant’s activities 

conform to its stated CMCP. 

Consistent with the dual coverage 

categories for vessels, the proposed rule 

would create two observer coverage 

categories for shoreside and stationary 

floating processing plants—full and 

partial. Classification in the coverage 

categories would be based on fishery 

management and monitoring needs and 

would replace existing requirements 

based on the weight of fish processed 

per month. The role of observers in 

plants in the partial coverage category 

would remain compliance monitoring, 

composition sampling as needed and 

biological information collection. With 

the exception of plants when receiving 

BS pollock (AFA and CDQ), all 

shoreside and stationary floating plants 

possessing a Federal Processing Permit 

(FPP) would be included in the partial 

coverage category and would pay the exvessel value-based fee to NMFS for their 

observer coverage. NMFS would deploy 

observers directly and plant operators 

would no longer contract with observer 

providers for their coverage. 

The new funding and deployment 

system proposed by this rule would 

allow NMFS to deploy observers in 

plants in a randomized fashion 

according to management needs. The 

increased flexibility in observer 

deployment relative to the current 

program expected through the proposed 

funding and deployment system would 

eliminate the need for plants to be 

observed 100 percent of the days they 

receive or process groundfish. Deliveries 

of BS pollock harvested by AFA and 

CDQ vessels are the exception, and full 

coverage would continue to be required 

for plants when taking deliveries of BS 

pollock as observers are needed to 

conduct a full census of incidentally 

harvested Chinook salmon. All other 

deliveries could be adequately 

monitored for compliance and 

biological data collection at a rate of less 

than 100 percent through a randomized 

sampling design. Based on this 

rationale, the proposed rule would 

remove the current requirements for 100 

percent observer coverage for shoreside 

processing plants and stationary floating 

processor plants receiving groundfish 

CDQ, GOA Rockfish Program, and AI 

pollock deliveries. 

Processing plants would be in the full 

coverage category when receiving BS 

pollock and would contract directly for 

their observer coverage with permitted 

observer providers under the existing 

Observer Program funding and 

deployment system. These same plants 

would be in the partial coverage 

category for all other groundfish and 

halibut deliveries. 

Observers in the processing plants in 

the partial coverage category would be 

assigned to multiple shoreside plants 

under a randomized design to fulfill 

NMFS’ monitoring needs. Unlike the 

two-pool selection and hail-in system 

for vessels, there would not be such a 

selection system and notification 

requirement for shoreside plants. 

Observers would be assigned to ports 

and randomly assigned by NMFS to 

offloads as they occur using the existing 

operation notification requirements at 

§ 679.50 for shoreside processors and 

stationary floating processors which 

require managers to notify observers of 

planned facility operations and 

expected receipt of groundfish prior to 

receipt of those fish. NMFS would 

notify a plant when it is randomly 

selected for coverage. An observer 

would be assigned to a plant for the 

duration of a randomly selected offload. 

The probability of selection for an 

observed offload would vary according 

to the types of deliveries a plant 

receives. The probability of selection 

would be higher for plants that receive 

deliveries from the GOA Rockfish 

Program due to the need for rapid 

turnaround and transmission of data. 

Random assignment of observers to 

plants would maximize the efficiency of 

the plant observer and increase the 

likelihood that biological samples are 

taken throughout the fishing season, 

thus providing an unbiased estimate of 

the fleet’s catch as required for stock 

assessments. Actual sample sizes 

(number of deliveries observed or 

number of biological samples obtained) 

and resulting sampling fractions 

(observed vs. total deliveries) would 

depend on the amount of revenue 

generated in prior years from the exvessel value-based fee and the number 

of trips completed in the fishing year. 

D. Observer Coverage in CDQ Fisheries 

Observer coverage requirements for 

vessels participating in the groundfish 

and halibut CDQ fisheries would be 

structured to comply with section 

305(i)(1)(B)(iv) of the MSA, which 

requires that the harvest of allocations 

under the CDQ program for fisheries 

with IFQs or fishing cooperatives shall 

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be regulated no more restrictively than 

for other participants in the applicable 

non-CDQ sector. This requirement is 

described in more detail in a final rule 

implementing regulatory amendments 

to comply with this provision (77 FR 

6492; February 8, 2012). Observer 

coverage requirements for vessels 

halibut CDQ fishing and fixed gear 

sablefish CDQ fishing would be the 

same as requirements that apply for the 

halibut and fixed gear sablefish IFQ 

Programs. Catcher/processors would be 

in the full coverage category, and 

catcher vessels would be in the partial 

coverage category. Observer coverage 

requirements for vessels pollock CDQ 

fishing would be the same as the 

requirements that apply to vessels 

directed fishing for pollock in the BS 

under the AFA. Catcher/processors, 

motherships, and catcher vessels would 

be in the full coverage category. 

Observer coverage requirements for 

catcher/processors using trawl gear in 

the CDQ fisheries for species other than 

pollock would be the same as the 

requirements that apply to the ‘‘nonAFA trawl catcher/processors’’ under 

the Amendment 80 Program. These 

catcher/processors would be in the full 

coverage category. 

If a voluntary cooperative exists in a 

non-CDQ sector, the same observer 

coverage requirements that apply to 

these vessels while they are fishing 

under a voluntary cooperative would 

apply while they are participating in 

CDQ fisheries. A voluntary cooperative 

currently exists among the catcher/ 

processors using hook-and-line gear to 

harvest Pacific cod in the BSAI. If the 

voluntary cooperative receives an 

exemption from the operational 

requirements at § 679.32(c)(3)(i) from 

NMFS pursuant to § 679.32(e), the 

catcher/processors in the voluntary 

cooperative, when CDQ fishing, would 

be required to comply with the same 

observer coverage requirements that 

apply to them in the non-CDQ fisheries. 

Under this proposed rule, these catcher/ 

processors would be in the full coverage 

category for both their non-CDQ and 

CDQ fishing. 

Additional experience requirements 

for observers in some of the CDQ 

fisheries would be maintained, as 

described in proposed new 

§ 679.51(a)(2)(vi)(A). With one 

exception, existing level 2 and lead 

level 2 observer experience 

requirements at § 679.50 would be 

required for CDQ vessel observers in the 

full coverage category. The one 

exception is that catcher/processors 

using hook-and-line gear that participate 

in a voluntary cooperative in a non-CDQ 

fishery would not be subject to these 

additional requirements while CDQ 

fishing, if NMFS approved such an 

exemption for these vessels under 

§ 679.32(e). 

The only remaining vessel categories 

in the CDQ fisheries that were not 

covered by the CDQ regulation of 

harvest final rule are catcher vessels 

participating in CDQ fisheries for 

groundfish other than sablefish or 

pollock. NMFS proposes to place 

catcher vessels using pot or jig gear in 

the CDQ fisheries in the partial observer 

coverage category because halibut 

prohibited species catch by these 

vessels does not accrue against the 

halibut prohibited species catch limit. 

Catcher vessels using hook-and-line gear 

or trawl gear would be placed in the full 

coverage category because their 

prohibited species bycatch accrues 

against the CDQ group’s transferable 

prohibited species bycatch allocations. 

TABLE 5—OBSERVER COVERAGE REQUIREMENTS THAT WOULD APPLY TO VESSELS PARTICIPATING IN THE GROUNDFISH

AND HALIBUT CDQ FISHERIES UNDER THIS PROPOSED RULE

Fishery or vessel category Trawl gear 

Catcher vessels using 

Catcher/ 

processors Motherships Hook-and-line 

gear 

Pot or jig 

gear 

Are in the following observer coverage categories: 

Halibut CDQ ................................................................................ n/a ................ partial ........... n/a ................ full ................ n/a. 

Sablefish CDQ ............................................................................. full ................ partial ........... partial ........... full ................ n/a. 

Pollock CDQ ................................................................................ full ................ n/a ................ n/a ................ full ................ full. 

Other Groundfish CDQ ................................................................ full ................ full ................ partial ........... full ................ full. 

E. Observer Provider and Observer 

Responsibilities 

Current responsibilities for observer 

providers and observers are detailed in 

the regulations at 50 CFR 679.50(i) and 

(j). This proposed rule would retain 

these requirements and responsibilities 

for observer providers (under proposed 

new § 679.52) and observers (under 

proposed new § 679.53) serving 

operations in the full coverage category. 

The current responsibilities would not 

apply to observer providers and 

observers serving the partial coverage 

category. For the partial coverage 

category, NMFS would contract with 

observer providers instead of issuing 

permits to them as under the current 

Observer Program. NMFS’ contracts 

with providers would include a 

statement of work with performance 

measures. The Federal contracts would 

stipulate the time frame of the contract, 

set minimum observer pay and benefit 

requirements, observer deployment 

logistics and limitations, limitations on 

conflict of interest, communications 

with observers and with NMFS, 

requirements to provide qualified 

observers in a timely manner, and other 

aspects to ensure high quality observer 

data are available for management. 

Moreover, observer qualifications, 

training requirements, and performance 

expectations would be defined in 

contracts with observer providers such 

that the contents of the existing 

§ 679.50(j) (which would be amended to 

§ 679.53) would not apply to observer 

services provided through direct 

government contracts. Instead of the 

level 2 observer and lead level 2 

observer endorsements currently 

stipulated through regulations at 

§ 679.50(j)(1)(v)(D), (the proposed new 

§ 679.53(a)(5)(iv)), qualification 

requirements for observers serving in 

the partial observer coverage category 

would be specified in NMFS’ contracts 

with observer providers. NMFS expects 

this will increase NMFS’ ability to 

match observer skill with sampling 

complexity and provide NMFS with 

increased flexibility to respond to 

changing fisheries management needs, 

which is a primary objective of 

restructuring. 

NMFS recognizes that an observer 

provider could simultaneously contract 

directly with NMFS and the industry 

and thereby be subject to different 

requirements under the two different 

funding and deployment systems. 

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Observers would have to be certified 

according to the requirements of current 

paragraph § 679.50(j) (which would be 

proposed new § 679.53) to observe full 

coverage category fisheries while 

observers working for providers in the 

partial coverage category would have 

different performance requirements and 

would not have a certification per se. 

F. U.S. Coast Guard Safety Decal 

Current regulations at § 600.746 and 

§ 679.50 require all vessels to pass a 

U.S. Coast Guard Commercial Fishing 

Vessel Safety Examination prior to 

carrying an observer. This requirement 

would pertain to all vessels that would 

be required to carry an observer under 

this proposed rule. The existing 

exemption for vessels less than 26 ft. 

LOA in remote locations would be 

maintained under this proposed rule; all 

other vessels without a valid safety 

decal would continue to be considered 

inadequate for carrying an observer. 

Observers are instructed not to board a 

vessel if the safety decal is absent or 

expired. An operator’s obligation to 

carry an observer when selected would 

not be obviated for lack of a valid safety 

decal, rather, the operator would be 

prohibited from embarking on a selected 

trip. Therefore, it behooves any vessel 

eligible to be selected for observer 

coverage to undergo a U.S. Coast Guard 

safety equipment examination prior to 

being selected to carry an observer to 

avoid potential fishing delays for lack of 

a current safety decal. Once issued, the 

decal is valid for 2 years. Dockside 

examinations for U.S. Coast Guard 

safety decals may be arranged by 

contacting the U.S. Coast Guard (see 

ADDRESSES). 

G. Ex-Vessel Value-Based Observer Fee 

Observer coverage in the proposed 

partial coverage category would be 

funded through revenue generated from 

an ex-vessel value-based fee. The 

Council approved a 1.25 percent exvessel value-based observer fee to be 

paid by all groundfish and halibut 

vessels and processors for landings and 

fish subject to the observer fee. 

Examples of these landings and fish are 

described in a later section. Section 

2.9.2 of the analysis (see ADDRESSES) 

describes which observer deployment 

costs are authorized and which would 

be intended to be covered with the exvessel value fee proceeds, and which 

costs NMFS would fund through agency 

contributions. NMFS would prepare an 

annual report on the financial aspects of 

the restructured program and the 

revenues provided by the 1.25 percent 

ex-vessel fee. The Council would review 

the 1.25 percent ex-vessel value fee 

percentage after completion of the 

second year of observer deployment in 

the restructured program. The Council 

could revise the fee assessment 

percentage in a subsequent rule at any 

time, upon evaluation of program 

revenues and costs, observer coverage 

levels, fishery management objectives, 

and future deployment plans. This 

report would be provided to the Council 

at the same time NMFS would provide 

the annual deployment plan. 

Ex-vessel value refers to the price 

paid to fishermen for their raw, 

unprocessed catch. The objective of the 

ex-vessel value-based fee is to collect 

1.25 percent of the ex-vessel value of 

each groundfish and halibut landing 

from operations in the partial coverage 

category. NMFS applied several 

principles to develop proposed methods 

to derive the ex-vessel value of 

groundfish and halibut landings for 

purposes of the observer fee. The exvessel value fee should be: broad-based 

such that all fishery partial coverage 

category participants pay a share; fair 

and equitable among participants; easy 

to collect without undue burden on 

participants; assessed on any postseason price settlements or retroactive 

payments in addition to assessments at 

the time of landing; account for nonmonetary exchange of fish or other 

forms of compensation; and assessed on 

weight equivalents used to debit quotas 

(e.g., round weight for groundfish and 

headed and gutted weight for halibut). 

Observer fees would not be linked to the 

actual level of observer coverage for 

individual vessels and plants as it is 

under the current program. Instead, 

each participant in the partial coverage 

category would pay an equal percentage 

of the value they derive from the 

groundfish and halibut fisheries to 

contribute toward the cost of collecting 

observer data for conservation and 

management of the fisheries as a whole. 

1. Standard Ex-Vessel Prices 

NMFS would annually establish 

standard ex-vessel prices for species 

subject to the observer fee. These prices 

would be used in assessing fees and in 

estimating the total ex-vessel value of 

the fisheries for the coming year. To 

avoid new reporting requirements for 

participants in the partial coverage 

category, NMFS would use existing 

reports and ex-vessel value 

determinations to establish standard 

prices for groundfish and halibut 

landings for purposes of the observer 

fee. Proposed data sources for ex-vessel 

price information are NMFS’ halibut 

and sablefish IFQ Buyer Report, and the 

State of Alaska’s Commercial Fishery 

Entry Commission’s (CFEC) gross 

revenue data, which are based on the 

Commercial Operator Annual Report 

(COAR) and ADF&G fish tickets. Section 

2.9.2 of the analysis (see ADDRESSES) 

describes the data sources evaluated by 

NMFS to develop the proposed fee 

derivation method. 

2. Halibut and Sablefish Standard Prices 

NMFS collects IFQ cost recovery fees 

at the start of each year to recover costs 

incurred by the agency for IFQ program 

management in the previous year. 

Regulations at § 679.5(l)(7)(i)(B) require 

an IFQ Registered Buyer, that also 

operates as a shoreside processor and 

receives and purchases IFQ landings of 

sablefish or halibut, to submit annually 

to NMFS a complete IFQ Buyer Report 

by October 15 of the year the Registered 

Buyer receives IFQ fish. The IFQ Buyer 

Report includes information on the 

pounds purchased and values paid 

(with price adjustments) for each IFQ 

species by port or port group and 

month. Information provided through 

the IFQ Buyer Reports is used to 

generate standard prices for ex-vessel 

value-based cost recovery fees collected 

under the authority of the MSA section 

304(d)(2)(A). 

Regulations at § 679.45(c)(2)(i) require 

the Regional Administrator to publish 

IFQ standard prices during the last 

quarter of each calendar year. The 

standard prices are calculated in U.S. 

dollars per IFQ equivalent pound for 

IFQ halibut and IFQ sablefish landings 

made during the year. IFQ equivalent 

pound(s) is the weight (in pounds) for 

an IFQ landing, calculated as the round 

weight for sablefish and headed and 

gutted net weight for halibut. 

Under the proposed rule, volume and 

value data collected on the IFQ Buyer’s 

report would be used to calculate the 

standard ex-vessel prices to determine 

the value in the following year for 

purposes of the observer fee for halibut 

IFQ and CDQ landings, sablefish IFQ 

landings, and sablefish landings that 

accrue against the fixed gear sablefish 

CDQ allocation by catcher vessels in the 

partial coverage category. Observer fees 

would be assessed on all landings in a 

year to pay for observer coverage in the 

following year. 

Catcher vessels harvesting halibut 

CDQ would be in the partial observer 

coverage category, and landings of 

halibut CDQ by these vessels would be 

subject to the observer fee. However, 

because halibut CDQ is not yet included 

in a cost recovery program, no data 

about the ex-vessel value of halibut CDQ 

is currently collected by NMFS. 

Therefore, this proposed rule would 

require that Registered Buyers submit, 

on the IFQ Buyer Report, the pounds 

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purchased and values paid for halibut 

CDQ. These additional data about 

halibut CDQ would not be used to 

calculate standard ex-vessel prices for 

the IFQ cost recovery program. 

However, the data for both halibut IFQ 

and halibut CDQ would be combined by 

NMFS to calculate an average annual 

standard ex-vessel price for halibut by 

port or port-group for the observer fee. 

While the standard ex-vessel prices for 

halibut IFQ for the cost recovery 

program are calculated monthly by port 

or port-group, the observer fee standard 

ex-vessel prices would be calculated as 

a single annual average for halibut IFQ 

and halibut CDQ combined, by port or 

port-group. 

Catcher vessels harvesting fixed gear 

sablefish CDQ would be in the partial 

observer coverage category and landings 

of fixed gear sablefish CDQ by these 

vessels would be subject to the observer 

fee. NMFS proposes to use existing data 

collected about the pounds purchased 

and values paid for sablefish IFQ to 

calculate the standard ex-vessel prices 

to determine the observer fee liability 

for fixed gear sablefish CDQ. NMFS 

does not propose to require Registered 

Buyers to submit additional information 

about sablefish CDQ on the IFQ Buyer 

Report because, unlike sablefish IFQ, 

fixed gear sablefish CDQ is not required 

to be delivered to a Registered Buyer. 

The standard ex-vessel prices used to 

determine the observer fee for halibut 

and fixed gear sablefish would be 

published in the Federal Register in the 

annual notice of standard ex-vessel 

prices that will apply to groundfish and 

halibut landings subject to the observer 

fee. Under the IFQ cost recovery 

program, data from ports are combined 

to protect confidentiality in cases where 

price information is provided by less 

than three processors. The port and port 

groups used to collect the observer fee 

under this proposed rule could be 

different from the ports or port groups 

used to collect cost recovery fees 

because the observer fee is an annual 

price, thus, the number of buyers and 

harvesters in a port may allow 

information to be reported where it 

would be confidential for some or all of 

the individual months. 

3. Groundfish Standard Ex-Vessel Prices 

NMFS would calculate standard 

prices for all groundfish, except fixed 

gear sablefish, by averaging the most 

recent annual prices from the State of 

Alaska’s CFEC for their gross earnings 

estimates by the applicable species, port 

of landing, and gear combinations. 

Three gear categories would be 

established: pelagic trawl gear, nonpelagic trawl gear, and all other gear. 

Section 2.9.2 of the analysis (see 

ADDRESSES) describes the methods 

employed by the CFEC to estimate exvessel prices based initially on landings 

data from ADF&G fish tickets and 

ultimately refined with information 

from the COAR. The COAR contains 

statewide buying and production 

information and is generally considered 

the best routinely collected information 

to determine the ex-vessel value of 

groundfish harvested from waters off 

Alaska. The COAR is completed by the 

first buyers of fish harvested from State 

and Federal waters off the coast of 

Alaska. Post-season price adjustments 

and bonuses paid to harvesters are 

required to be reported in the COAR. 

The report is due to the ADF&G by April 

1 of the year after the fishing occurred. 

The standard, average price would be 

weighted by the amount of pounds at 

each price for each species, port, and 

gear combination. 

CFEC ex-vessel prices are available in 

the fall of the year following the year the 

fishing occurred. Thus, in any given 

year, it is not possible to base ex-vessel 

fee liabilities on standard prices that are 

less than two years old. For example, 

the most recent standard prices 

available for the determination of 

liabilities in 2013 will be those from 

2011. Notwithstanding this limitation, 

the COAR data were determined to 

comprise the best available information 

to establish the ex-vessel value of the 

groundfish fisheries off Alaska. 

The proposed approach to establish 

the ex-vessel value for the purpose of 

the observer fee would apply price 

information from earlier years to current 

year harvest volumes. Fish prices and 

harvest volumes vary annually. Thus, a 

value estimate based on price 

information from earlier years would 

not equate to the true ex-vessel value for 

a particular year. As noted, a 2-year lag 

would occur between the date fish are 

landed and when standard prices for 

those landings are applied. Section 

2.9.2.2.4 of the analysis (see ADDRESSES) 

shows potential impacts of the time lag 

on the ex-vessel value estimated with 

prior-year and current-year information 

from 2001 through 2009. The time 

lagged ex-vessel value estimate was 

lower than the actual ex-vessel value 

over most of the years considered. Thus, 

while it would be possible for the exvessel value fee to exceed 1.25 percent 

of the actual ex-vessel value in a 

particular year, over two to three years, 

the 1.25 percent fee percentage would 

likely not be exceeded. 

The effect of averaging the standard 

price estimates over multiple years was 

evaluated in section 2.9.2.2.4 of the 

analysis (see ADDRESSES) as a way to 

stabilize interannual variability in fish 

prices and thus, ex-vessel value fees and 

resulting revenue for observer coverage. 

Increasing the period of time over which 

prices are averaged decreases the effect 

of a price that is substantially different 

from other years on the average price. 

Using fewer years for the average price 

allows the price to respond more 

quickly to increases or decreases in exvessel price. Three, five, and seven-year 

averages were considered in section 

2.9.2.2.4 of the analysis (see 

ADDRESSES). The Council balanced the 

need to use recent and relevant data 

against the need to reduce the possible 

undue influence of unusual annual 

values, and selected the 3-year average 

as part of its preferred alternative. Thus, 

standard groundfish (except fixed gear 

sablefish) ex-vessel prices for observer 

fees would be the 3-year average of the 

price estimated for each species, gear, 

and port combination. 

4. Confidential Data 

Standard prices that would apply to 

groundfish and halibut landings in the 

upcoming year would be published in 

the Federal Register each December. 

NMFS would adhere to applicable 

guidance for protecting confidentiality 

of data submitted to or collected by 

NMFS, and for shared ADF&G/CFEC 

and NOAA data, as prescribed by a 

Reciprocal Data Access Agreement 

(1999) which meet or exceed the 

stringent confidential data handling and 

disclosure. Therefore, pursuant to 

guidance restricting disclosure of 

confidential data, but allowing 

disclosure of aggregated data, NMFS 

would not publish any price 

information that would permit the 

identification of an individual or 

business. For example, at least four 

persons would need to make landings of 

a species with a particular gear type at 

each port in order for NMFS to publish 

those price data at the level of 

individual ports. Price data that would 

be confidential due to the 4-person 

minimum would be aggregated by 

subarea in the BSAI (BS subarea and AI 

subarea) and by regulatory area in the 

GOA (Eastern GOA, Central GOA, and 

Western GOA). If confidentiality 

requirements are still not met by 

aggregating prices across ports at the 

subarea or regulatory area level, they 

would be aggregated at the level of GOA 

and BSAI or statewide. 

5. Landings Subject to an Observer Fee 

Vessels and processors subject to the 

proposed action commonly participate 

in fisheries managed under State or 

Federal jurisdiction. Most federally 

managed fisheries occur in the EEZ and 

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most fisheries managed by the State 

occur in waters within 3 nm of the 

coast, although some federally managed 

fisheries occur in State waters and vice 

versa. This rule proposes to distinguish 

between fish harvested in fisheries in 

State and Federal waters where catch is 

subtracted from the Federal TAC and 

fish harvested in State-managed 

fisheries in State waters where catch is 

subtracted from a guideline harvest 

level (GHL). 

Groundfish which accrue against a 

Federal TAC are those listed in Table 2a 

to part 679. The current list of 

groundfish species in Table 2a to part 

679 is shown in Table 6 below. These 

are the groundfish species that would be 

subject to the observer fee. Table 2a to 

part 679 is amended periodically to 

reflect species added or removed from 

management under the FMPs. In the 

future, the observer fee would apply to 

the list of groundfish species in Table 2a 

to part 679 at the time of landing, which 

may differ from the list in Table 6 

below. 

TABLE 6—GROUNDFISH THAT CURRENTLY ACCRUE AGAINST FEDERAL

TACS AND WOULD BE SUBJECT TO

THE OBSERVER FEE ASSESSMENT

Species and Species Code 

Atka mackerel (193) 

Pacific cod (110) 

Pollock (270) 

Octopus (870) 

Squid (875) 

Flatfish, any other flatfish species without 

separate codes (120) 

Alaska plaice (133) 

Arrowtooth flounder (121) 

Bering flounder (116) 

Kamchatka flounder (117) 

Starry flounder (129) 

Greenland turbot (134) 

Sablefish, blackcod (710) 

Sculpins (160) 

SHARKS 

Pacific sleeper shark (692) 

Salmon shark (690) 

Spiny dogfish (691) 

Other sharks (689) 

SKATES 

Whiteblotched skate (705) 

Aleutian skate (704) 

TABLE 6—GROUNDFISH THAT CURRENTLY ACCRUE AGAINST FEDERAL

TACS AND WOULD BE SUBJECT TO

THE OBSERVER FEE ASSESSMENT— 

Continued 

Species and Species Code 

Alaska skate (703) 

Big skate (702) 

Longnose skate (701) 

Other skates, any other skate species without separate codes (700) 

SOLE 

Butter sole (126) 

Dover sole (124) 

English sole (128) 

Flathead sole (122) 

Petrale sole (131) 

Rex sole (125) 

Rock sole (123) 

Sand sole (132) 

Yellowfin sole (127) 

ROCKFISH 

Aurora (185) 

Black—BSAI only (142) 

Blackgill (177) 

Blue—BSAI only (167) 

Bocaccio (137) 

Canary (146) 

Chilipepper (178) 

China (149) 

Copper (138) 

Darkblotched (159) 

Dusky (172) 

Greenstriped (135) 

Harlequin (176) 

Northern (136) 

Pacific ocean perch (141) 

Pygmy (179) 

Quillback (147) 

Redbanded (153) 

Redstripe (158) 

Rosethorn (150) 

Rougheye (151) 

Sharpchin (166) 

Shortbelly (181) 

Shortraker (152) 

Silvergray (157) 

Splitnose (182) 

Stripetail (183) 

Thornyhead, all Sebastolobus species, (143) 

Tiger (148) 

Vermilion (184) 

Widow (156) 

Yelloweye (145) 

Yellowmouth (175) 

Yellowtail (155) 

The objective of the observer fee 

assessment is to levy a fee on all 

landings accruing against the Federal 

TAC made by vessels that are subject to 

Federal regulations and not included in 

the full coverage category. Therefore, a 

fee would only be assessed on landings 

from vessels designated on an FFP or 

from vessels landing IFQ or CDQ halibut 

or IFQ sablefish. Within the subset of 

vessels subject to the observer fee, only 

landings accruing against the Federal 

TAC would be included in the fee 

assessment. Table 7 provides additional 

information about which landings 

would and would not be subject to the 

observer fee. 

If a vessel is designated on an FFP, 

the only groundfish landings that would 

not be subject to the ex-vessel valuebased fee are landings of Pacific cod, 

pollock, and sablefish accruing against 

the State GHL, or landings of groundfish 

species that do not accrue against a 

Federal TAC (those not listed in Table 

2a to part 679, such as lingcod or dark 

rockfish, or groundfish retained as bait 

and not sold). Groundfish accruing 

against a Federal TAC and landed in 

conjunction with GHL Pacific cod, 

pollock, or sablefish would be included 

in the observer fee assessment if 

delivered by a vessel named on an FFP 

and excluded from the observer fee 

assessment if the vessel does not 

possess an FFP. 

If a vessel is being used to conduct 

fishing that does not require that vessel 

be named on an FFP, then none of the 

groundfish, other than sablefish IFQ, 

landed by that vessel would be subject 

to the observer fee assessment, even if 

those groundfish are listed in Table 2a 

to part 679 and accrue against a Federal 

TAC. Landings of IFQ or CDQ halibut or 

IFQ sablefish by vessels in the partial 

observer coverage category would be 

subject to the observer fee even if those 

vessels were conducting fishing that did 

not require an FFP. 

TABLE 7—LANDINGS THAT WOULD BE SUBJECT TO THE OBSERVER FEE ASSESSMENT FOR VESSELS WITH AND WITHOUT

AN FFP 

If fish in the landing is from the following fishery or species 

Is fish from the landing subject to the observer fee? 

If the vessel is not designated on 

an FFP or required to be 

designated on an FFP 

If the vessel is designated on 

an FFP or required to be 

designated on an FFP 

(1) Groundfish listed in Table 2a to part 679 (FMP groundfish) that is 

harvested in the EEZ and subtracted from a total allowable catch 

limit specified under § 679.20(a) 

Includes: 

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23342 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

TABLE 7—LANDINGS THAT WOULD BE SUBJECT TO THE OBSERVER FEE ASSESSMENT FOR VESSELS WITH AND WITHOUT

AN FFP—Continued 

If fish in the landing is from the following fishery or species 

Is fish from the landing subject to the observer fee? 

If the vessel is not designated on 

an FFP or required to be 

designated on an FFP 

If the vessel is designated on 

an FFP or required to be 

designated on an FFP 

• FMP groundfish landed while fishing for halibut IFQ, halibut 

CDQ, sablefish IFQ, or salmon (troll) in the EEZ.

not applicable, an FFP is required 

to harvest these groundfish in 

the EEZ.

Yes. 

• Groundfish CDQ. 

• Demersal shelf rockfish in the Southeast Outside District of the 

GOA. 

• Black rockfish and blue rockfish in the BSAI. 

• FMP groundfish sold for bait (disposition code = 62). 

(2) Groundfish listed in Table 2a to part 679 that is harvested in Alaska State waters and subtracted from a total allowable catch limit 

specified under § 679.20(a).

No .................................................. Yes. 

Includes: 

• FMP groundfish harvested in a parallel groundfish fishery as 

defined at § 679.2. 

• FMP groundfish landed while fishing for halibut IFQ, halibut 

CDQ, sablefish IFQ, or salmon (troll) in Alaska State waters. 

• Groundfish CDQ harvested in Alaska State waters. 

• Demersal shelf rockfish caught in Alaska State waters adjacent 

to the Southeast Outside District of the GOA. 

• FMP groundfish that are non-target species harvested while 

fishing in a State of Alaska guideline harvest level (GHL) fishery 

for pollock, Pacific cod, or sablefish. 

• FMP groundfish sold for bait (disposition code = 62). 

(3) Sablefish IFQ, regardless of where harvested .................................. Yes ................................................. Yes. 

(4) Halibut IFQ or halibut CDQ, regardless of where harvested ............ Yes ................................................. Yes. 

(5) Groundfish listed in Table 2a to part 679 that is harvested in the 

Alaska State waters, but is not subtracted from a total allowable 

catch limit specified under § 679.20(a).

No .................................................. Yes. 

Includes: 

• Groundfish managed under State of Alaska guideline harvest 

levels, which currently include pollock, Pacific cod, and sablefish. 

No .................................................. No. 

(6) Any groundfish or other species not listed in Table 2a to part 679, 

except halibut IFQ or CDQ halibut, regardless of where harvested.

No .................................................. No. 

Includes: 

• Lingcod. 

• Black rockfish and blue rockfish in the GOA. 

• Dark rockfish in the GOA and BSAI. 

• Salmon caught in the troll fishery. 

(7) FMP groundfish retained as bait and not sold (disposition code 92) No .................................................. No. 

6. Fee Determination and Collection 

Under this proposed action, the 1.25 

percent ex-vessel value fee liability 

would be split between processors or 

Registered Buyers and vessel owners or 

operators, although the split would not 

be in regulation. The processor or 

Registered Buyer would collect the 

vessel operator’s observer fee liability at 

landing and remit the fee to NMFS on 

an annual basis. The fee liability would 

be determined by multiplying the 

standard price for groundfish by the 

round weight equivalent for each 

species and gear combination, and the 

standard price for halibut by the headed 

and gutted weight equivalent. The fee 

liability for each landing would be 1.25 

percent of the sum of the individual 

species/gear combination amounts. 

Information submitted to NMFS by 

processors and Registered Buyers via 

eLandings would be used to determine 

the fee liability for each landing. 

eLandings is the web-based data entry 

component of the Interagency Electronic 

Reporting System that allows 

processors, Registered Buyers, and 

others to submit, edit, and summarize 

landings, production, discard, and 

disposition data. When reports of catch 

and production are submitted via 

eLandings they are available to NMFS, 

the International Pacific Halibut 

Commission, and ADF&G in near realtime. Registered buyers who do not 

process any groundfish and are not able 

to use eLandings use an alternate 

electronic reporting system (the 

‘‘legacy’’ IFQ system). If Registered 

Buyers need to make changes to IFQ 

reports then they are required to file 

manual landing reports with NMFS and 

that information is entered into the 

halibut and sablefish IFQ accounting 

system by NMFS contractors. 

Under existing regulations, processors 

and Registered Buyers enter delivery 

information including the weight of 

each species of fish in the landing into 

eLandings or, in some cases for halibut 

and sablefish, through an alternate 

electronic reporting system or manual 

landing report to NMFS. Originally, 

NMFS envisioned that the standard exvessel prices would be entered into 

eLandings at the beginning of each year. 

Further, that eLandings would be 

programmed to calculate the fee liability 

for each landing based on the landing 

weights entered by the processor for 

each species and the pre-programmed 

prices. However, upon further review, 

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NMFS has determined that the 

information entered by processors in 

eLandings does not provide all of the 

information necessary to determine if a 

landing is subject to the observer fee. 

Specifically, eLandings is not designed 

to perform some functions of NMFS’ 

CAS that are needed to determine if 

landings of fish harvested in State 

waters accrue against the Federal TAC 

or the GHL and thus whether or not the 

landing would be subject to the observer 

fee. These determinations are made 

through NMFS’ CAS and the State’s 

examination of landing reports (ADF&G 

fish tickets). Although NMFS could 

program eLandings to allow the 

processor to designate whether the 

groundfish from a landing accrued 

against a Federal TAC, the processor 

may not have all of the information to 

make that determination and could 

inadvertently assign catch to the wrong 

category, thereby generating inaccurate 

information about the observer fee 

liability associated with the landing. In 

addition, halibut IFQ and CDQ landings 

or sablefish IFQ landings reports 

submitted via the legacy reporting 

system or manual landing report do not 

always get entered into eLandings, so 

information about the fee liability 

associated with each landing could not 

be provided to the Registered Buyer via 

eLandings for these landings. 

As an alternative to providing fee 

liability information through eLandings, 

NMFS would develop a separate webbased application that would assess 

each landing report submitted via 

eLandings and each manual landing 

entered into the IFQ landing database 

and determine if the landing is subject 

to the observer fee and, if it is, which 

groundfish in the landing is subject to 

the observer fee. For any groundfish or 

halibut subject to the observer fee, the 

web-application would apply the 

appropriate standard ex-vessel prices for 

the species, gear type, and port, and 

calculate the observer fee liability 

associated with the landing. All 

processors and Registered Buyers would 

have access to the web-application 

through a user id and password issued 

by NMFS. This information generally 

would be available within 24 hours of 

the time that the landing report was 

submitted via eLandings or the manual 

landing report was submitted to NMFS. 

NMFS would expedite the availability 

of observer fee calculations for halibut 

to the extent possible to accommodate 

the common practice of rapid 

settlements between buyers and 

harvesters for halibut landings. 

Processors would deduct the harvester’s 

fee liability from their payment and add 

the processor’s portion of the fee 

liability. Reports, such as a receipt of 

the fee liability for each landing, would 

be available through the observer fee 

web-application. Processors could 

provide a copy of these reports to 

harvesters for their records. The 

information generated by this webapplication also would provide the 

annual billing for the processors and 

Registered Buyers. The fee remittal 

process would be as follows: 

1. Annually, NMFS would publish a 

standard price per pound by port, 

species, and gear type in the Federal 

Register. 

2. NMFS would program the most 

recent standard prices into an observer 

fee web-based application at the 

beginning of each year. 

3. Processors would enter the delivery 

information and the pounds of each 

species landed into eLandings. 

4. The observer fee web-application 

would evaluate the landings report and 

calculate the fee liability for the landing. 

This information will generally be 

available within 24 hours of receipt of 

the report. 

5. Processors could access the webbased application at least 24 hours after 

submitting a report to view the landingspecific observer fee liability 

information and to print a copy of the 

fee liability report for harvesters. 

6. Processors would withhold the 

vessel operator’s portion and self-collect 

the processor’s portion of the observer 

fee liability. 

7. By January 15 of each year, NMFS 

would invoice processors for the total 

fee liability determined by the sum of 

the fees reported by the observer fee 

web-application for each processor for 

the prior calendar year. 

8. Processors would remit the fees to 

NMFS electronically by February 15. 

9. NMFS would audit the payments to 

ensure all liabilities are paid in full. 

The Council requested that NMFS 

determine, during the development of 

the regulations, whether current-year 

ex-vessel prices could be used to 

determine the ex-vessel observer fee 

using a billing system similar to the 

halibut and sablefish IFQ cost recovery 

fee program to collect fees from 

processors and harvesters. NMFS 

continues to propose the method by 

which shoreside processors and 

Registered Buyers would be informed in 

December of the standard ex-vessel 

prices that would apply for landings in 

the upcoming year, and billed in the 

beginning of the next calendar year for 

all landings in the prior year. The 

standard ex-vessel prices would be 

established by using data reported on 

the COAR and the IFQ Registered 

Buyer’s Report. Section 2.9.2 of the 

analysis (see ADDRESSES) explains why 

basing the ex-vessel value fee on 

current-year prices would not be 

feasible and that standard prices based 

on prior years’ data would need to be 

established to determine the ex-vessel 

value of landings for purposes of the 

observer fee. A fee collection system 

similar to the one used to collect cost 

recovery fees for IFQ halibut and 

sablefish would require processors to 

submit a buyer’s report to NMFS that 

would virtually duplicate the 

information collected through the 

COAR. This would also require NMFS 

to duplicate the process used by the 

State CFEC to estimate gross earnings 

and arrive at standard prices. Moreover, 

a fundamental component of the 

proposed observer fee is that shoreside 

processors and Registered Buyers would 

collect half of the fee liability from 

fishermen at the time of landing. This 

collection can only be done if the 

shoreside processors and fishermen 

know the amount of the fee liability 

associated with each landing at the time 

of landing. This would not be possible 

using current year’s prices, because 

these prices are not available until the 

end of the year, or in the case of data 

from the COAR, until late the next year. 

Using current years’ prices would 

require NMFS to invoice each vessel 

operator and shoreside processor in the 

partial coverage category, rather than 

just the shoreside processors and 

Registered Buyers thereby increasing 

NMFS’ administrative costs 

substantially. 

7. Payment Compliance 

An FPP or Registered Buyer permit 

holder who has incurred a fee liability 

would be required to pay the fee to 

NMFS by February 15 of the year 

following the calendar year in which the 

landing was made. Full payment of the 

observer fee liability would be required 

before NMFS would issue a new or 

renewed FPP or Registered Buyer 

permit. 

If an FPP or Registered Buyer permit 

holder (permit holder) makes a timely 

payment to NMFS of an amount less 

than the fee liability NMFS estimated, 

the permit holder would have the 

burden of demonstrating that the fee 

amount submitted is correct. If, upon 

preliminary review of the accuracy and 

completeness of a fee payment and the 

Fee Submission Form, NMFS 

determines the permit holder has not 

paid a sufficient amount, NMFS would 

notify the permit holder by letter. NMFS 

would explain the discrepancy and the 

permit holder would have 30 days to 

either pay the remaining amount that 

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23344 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

NMFS determined should be paid or 

provide evidence that the amount paid 

is correct. In the meantime, any 

applications for new or renewed FPP or 

Registered Buyer Permits for the permit 

holder would be deemed incomplete 

and would not be approved by NMFS. 

If the permit holder submits evidence 

in support of his or her payment, NMFS 

will evaluate it and, if there is any 

remaining disagreement as to the 

appropriate observer fee, prepare an 

Initial Administrative Determination 

(IAD). The IAD would set out the facts, 

discuss those facts within the context of 

the relevant agency policies and 

regulations, and make a determination 

as to the appropriate disposition of the 

matter. A permit holder disagreeing 

with the IAD could appeal an IAD 

through the NMFS Office of 

Administrative Appeals as described in 

existing regulations at 50 CFR 679.43. 

An IAD that is not appealed within 60 

days of issuance to the NMFS Office of 

Administrative Appeals, would become 

a final agency action. 

During the pendency of the appeal 

proceedings outlined here, the following 

conditions would exist: The application 

for new or renewed FPPs or Registered 

Buyer Permits would not be approved 

by NMFS, so the FPP or Registered 

Buyer permit holder could not receive 

or process groundfish harvested from 

the BSAI or GOA, or IFQ or CDQ halibut 

or IFQ sablefish, respectively, unless 

they could do so under valid permits 

not associated with the fee liability 

dispute. An FPP or Registered Buyer 

Permit holder could pay the disputed 

fee difference under protest in order to 

allow NMFS to approve pending permit 

applications. If the final agency action 

determines that the permit holder owes 

additional fees and if the permit holder 

has not paid such fees, NMFS would 

deem any future, new FPP or Registered 

Buyer permit applications to be 

incomplete. If NMFS does not receive 

such payment within 30 days of the 

issuance of the final agency action, 

NMFS would refer the matter to the 

appropriate authorities within the U.S. 

Treasury for purposes of collection. 

Non-renewal of an FPP or Registered 

Buyer permit would not affect the 

permit holder’s liability for observer 

fees incurred while they possessed or 

were required to possess an FPP or 

Registered Buyer permit. 

8. Overpayment of Fees 

Upon issuance of final agency action, 

any amount submitted by an FPP or 

Registered Buyer permit holder to 

NMFS in excess of the observer fee 

liability determined to be due by the 

final agency action would 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. 

H. Federal Processor Permit and 

Registered Buyer Permits 

Shoreside processors and stationary 

floating processors are required to 

possess a FPP to receive or process 

groundfish harvested in the GOA or 

BSAI per existing regulations at § 679.4. 

To receive IFQ or CDQ halibut or IFQ 

sablefish, a person must possess a 

Registered Buyer permit (§ 679.4). 

Currently, both FPPs and Registered 

Buyer permits are issued for a 3-year 

period which begins on January 1 of the 

first year and ends on December 31 of 

the third year. Under this proposed rule, 

shoreside and stationary floating 

processors and Registered Buyers would 

be required to submit the balance of the 

observer fee liability to NMFS by 

February 15 in the year after the 

landings occurred. To match the 

observer fee payment schedule 

proposed by this action, NMFS proposes 

to modify the current 3-year FPP and 

Registered Buyer permit cycles to an 

annual cycle, running from March 1 

through the last day of February. 

The effective FPP duration is not 

specified in regulations; however the 

effective duration for a Registered Buyer 

permit is specified as the date it is 

issued through the end of the current 3- 

year permit cycle. NMFS proposes to 

amend regulations at § 679.4(d)(3) such 

that a Registered Buyer permit would be 

effective until the date of expiration 

rather than a cycle of specified duration. 

The effective duration for FPPs and 

Registered Buyer permits would be from 

the latter of March 1 or the date of 

issuance, through the end of February; 

although these dates would not be 

codified in regulations consistent with 

the existing regulations for the FPP 

effective duration. 

The proposed rule would require that 

a permit holder pay his or her observer 

fee liability in order to meet the 

requirement to submit a complete 

permit application. FPP or Registered 

Buyer Permits could be renewed online 

at the time the permit holder submits 

electronic payment to NMFS for their 

observer fee liability, or at any time 

thereafter. The fee payment and permit 

renewal application would be webbased and would allow the user to print 

their FPP or Registered Buyer Permit 

upon payment of observer fee. The 

process for new FPP and Registered 

Buyer Permit applications would be 

unchanged from the existing regulations 

at § 679.4; as well, the process for 

modifying a permit would remain 

unchanged from the process in the 

existing regulations. 

The proposed rule would remove 

regulations at 50 CFR 679.5 (f)(2)(i) 

through (iv) which state the information 

that must be provided on the FPP 

application as these fields are provided 

on the application and are not necessary 

to list in the regulatory text. The 

regulations would be amended to refer 

the applicant to the Web site where the 

application can be accessed. This 

proposed rule would also amend 50 

CFR 679.5(f)(2)(v) by requiring the 

owner or operator of a shoreside 

processor or shoreside floating 

processor to certify that the information 

on the application is true, correct, and 

complete when signing and dating his 

or her application for a new, amended, 

or renewed FPP. 

NMFS would not issue a renewed FPP 

or Registered Buyer permit if a liable 

party fails to pay their observer fee 

liability. Shoreside and stationary 

floating processors and Registered 

Buyers would continue to be prohibited 

from receiving groundfish harvested 

from the BSAI or GOA, or IFQ or CDQ 

halibut without a valid permit. 

Section 2.9.2.2.3 of the analysis (see 

ADDRESSES) prepared for this action 

noted that NMFS would suspend or 

revoke FPPs or Registered Buyer permits 

if a holder failed to pay their observer 

fee liability; no changes were proposed 

for the 3-year effective duration in the 

Council analysis for FPPs and 

Registered Buyer permits. In 

development of this proposed rule, 

NMFS identified administrative and 

enforcement efficiencies that could be 

accomplished through a modification to 

the effective duration for FPPs and 

Registered Buyer permits from a 3-year 

cycle to an annual cycle to coincide 

with the observer fee collection cycle. 

This proposed amendment was not part 

of the Council’s motion, but rather was 

identified by NMFS as a way to increase 

efficiencies in program administration. 

I. Annual Report and Review of the 

Deployment Plan and Fee Percentage 

Per the Council’s motion, NMFS 

would release a completed report by 

September 1 of each year. The annual 

report would contain detailed 

information on the financial aspects of 

the program and the annual deployment 

plan—the proposed stratum and 

coverage rates for the deployment of 

observers in the following calendar year. 

Prior to September, the Council may 

request its Observer Advisory 

Committee, Groundfish Plan Teams, or 

Scientific and Statistical Committee to 

review and comment on a draft of the 

annual report. NMFS would consult 

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with the Council each year on the 

deployment plan for the upcoming year. 

The Council would select a meeting for 

the annual report consultation that 

provides sufficient time for Council 

review and input to NMFS. The Council 

would likely need to schedule this 

review for its October meeting. The 

Council would not formally approve or 

disapprove the annual report, including 

the deployment plan, but NMFS would 

consult with the Council on the annual 

report to provide an opportunity for 

Council input. The final deployment 

plan would be developed per NMFS’ 

discretion to meet data needs for 

conservation and management. 

NMFS would include information on 

how industry participants have adapted 

to the new program in the annual report. 

The Council could revise the fee 

assessment percentage or other aspects 

of the observer regulations through 

rulemaking after it had an opportunity 

to evaluate program revenues and costs, 

observer coverage levels, fishery 

management objectives, and future 

sampling and observer deployment 

plans. 

J. Program Review 

Beginning five years after 

implementation of this proposed action, 

the Council would assess whether the 

goals and objectives leading to these 

proposed modifications to the Observer 

Program have been achieved. Per the 

Council’s motion, implementation is 

considered the first year of observer 

deployment under the new program. 

K. Start-Up Funding 

Start-up funds would need to be 

available for NMFS to contract with 

observer providers for observer coverage 

in the partial coverage category. Funds 

equal to or greater than the full cost of 

a contractual task order must be on 

deposit in the North Pacific Fishery 

Observer Fund (NPOF) for the task order 

to be assigned to a contractor. 

Government-contracted work cannot 

commence until a task order is assigned. 

Currently, there are no funds in the 

NPOF. In the out-years of the modified 

Observer Program, revenues for 

contracts for the partial coverage 

category would be provided through the 

ex-vessel fee, thus, a one-time action is 

needed to fund the transition from 

direct industry contracts with observer 

providers to government contracts with 

observer providers. Potential ways to 

fund the first year of the new 

deployment system include: Collecting 

ex-vessel fees from partial coverage 

category participants for a period of 

time prior to issuing contracts and 

deploying observers under the new 

system; Federal contributions to the 

NPOF, if available; or a combination of 

Federal funding and industry fees. 

The Council recommended that, in 

the absence of a Federal contribution for 

start-up funds for the new system, 

vessels and processors subject to the 

1.25 percent ex-vessel fee assessment 

under the proposed action would 

continue to pay for their observer 

coverage required under the existing 

regulations at § 679.50. These vessels 

and processors would pay the difference 

between their ex-vessel value fee 

liability under the new system and the 

actual observer coverage costs they 

incurred to comply with existing 

observer coverage requirements at 

§ 679.50. It was noted in section 3.3 of 

the analysis (see ADDRESSES) that one to 

three years after publication of the final 

rule may be required to collect sufficient 

revenue to deploy observers under the 

new funding and deployment system 

using this approach. The Council’s 

motion noted that, if available, Federal 

funding would be used towards the 

initial deployment of observers under 

the new deployment system and would 

offset the amount of fees collected from 

industry to transition to the new 

deployment system. 

NMFS proposes to use Federal funds 

to pay for the first year of observer 

coverage for the partial coverage 

category and anticipates that funds will 

be available for this purpose. Federal 

funding would assist the transition of 

one industry-funded Observer Program 

to an alternate industry-funded 

Observer Program and accelerate the 

ability for NMFS to address 

longstanding concerns with data quality 

and cost equity in operations that are 

observed at a rate of less than 100 

percent. This approach would also 

preclude the need for NMFS to calculate 

and collect the difference of an 

operation’s observer costs under the 

status quo system and the associated 

rulemaking for that one-time event. This 

proposed rule does not include the 

additional regulations that would be 

needed to collect start-up funds from 

industry and to specify how vessels and 

processors would pay the difference 

between their ex-vessel value fee 

liability under the new system and the 

actual observer coverage costs they 

incurred to comply with existing 

observer coverage requirements in the 

transition year or years. 

L. Other Revisions 

Because the proposed rule retains the 

existing funding and deployment 

system for the full observer coverage 

category, 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, which are the 

sections where the regulatory text is 

unchanged from the existing regulations 

in subpart E. 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 

and provisions for release of observer 

data to the public. The following 

sections would only be modified to 

make them specific to operations in the 

full coverage category: ‘‘Procurement of 

observer services,’’ ‘‘observer provider 

permitting and responsibilities,’’ and 

‘‘observer certification and 

responsibilities.’’ 

M. Public Comment Topics 

NMFS invites public comment on all 

aspects of this proposed rule to 

implement Amendments 86 and 76 to 

the FMPs. Under this proposed rule, 

catcher/processors not meeting the 

limited exceptions to opt in to the 

partial coverage category would be in 

the full coverage category. Catcher/ 

processors using jig gear would be 

included in the full coverage category 

while catcher vessels using jig gear 

would not be required to carry an 

observer in the initial year(s) of the new 

program, and NMFS specifically 

requests the public to comment on this 

aspect of the proposed rule. 

III. Classification 

Pursuant to sections 304(b)(1)(A) of 

the MSA, the NMFS Assistant 

Administrator has determined that this 

proposed rule is consistent with the 

FMPs, other provisions of the MSA, and 

other applicable law, subject to further 

consideration of comments received 

during the public comment period. 

This proposed rule has been 

determined to not be significant for the 

purposes of Executive Order 12866. 

Regulatory Impact Review (RIR) 

An RIR was prepared to assess all 

costs and benefits of available regulatory 

alternatives. The RIR considers all 

quantitative and qualitative measures. A 

copy of this analysis is available from 

NMFS (see ADDRESSES). Amendments 

86 and 76 were chosen based on those 

measures that maximized net benefits to 

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23346 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

the affected participants in the BSAI 

and GOA groundfish and halibut 

fisheries. Specific aspects of the RIR are 

discussed below in the initial regulatory 

flexibility analysis (IRFA) section. 

Initial Regulatory Flexibility Analysis 

(IRFA) 

An IRFA was prepared, as required by 

section 603 of the Regulatory Flexibility 

Act (RFA). The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A description of the proposed action, 

why it is being considered, and the legal 

basis for this proposed action are 

contained at the beginning of this 

section and in the SUMMARY section of 

the preamble and not repeated here. A 

summary of the analysis follows. A copy 

of the complete analysis is available 

from NMFS (see ADDRESSES). 

The Small Business Act 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. 

Number and Description of Small 

Entities Regulated by the Proposed 

Action 

The proposed 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, (2) groundfish incidental 

to harvest in the State waters fisheries 

(Pacific cod, pollock, sablefish), and (3) 

groundfish incidental to harvest in the 

halibut or sablefish IFQ in State waters. 

Organizations to which direct 

allocations of groundfish are made 

would also be regulated by the proposed 

action. In the BSAI, this includes the six 

CDQ groups, the AFA fishing sectors 

(i.e., at-sea, inshore), and the catcher/ 

processor sector under BSAI FMP 

Amendment 80. Refer to the RIR for 

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 the proposed action. Of the 

directly regulated entities, 80 are 

estimated to be large. The table below 

summarizes all of the potentially 

directly regulated small entities, by 

sector, under the proposed action. The 

IRFA 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, nor does 

NMFS have information on the 

combined annual gross receipts for each 

entity by size. Absent these data, a more 

precise characterization of the size 

composition of the directly regulated 

entities impacted by this action cannot 

be offered. 

TABLE 8—ESTIMATED NUMBER OF

SMALL ENTITIES POTENTIALLY DIRECTLY REGULATED BY THE PROPOSED 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

Sector 

Number of 

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. 2Groundfish 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. 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. 

Duplicate, Overlapping, or Conflicting 

Federal Rules 

No duplication, overlap, or conflict 

between this proposed action and 

existing Federal rules has been 

identified. 

Description of Significant Alternatives 

to the Proposed Action That Minimize 

Adverse Impacts on Small Entities 

The Council considered five 

alternatives for this action, one noaction and four action alternatives, and 

two options that could apply to the 

action alternatives. 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 the 

smallest of the small entities affected by 

this proposed rule. Impacts of this 

proposed rule on small entities are 

described in section 5 of the analysis 

(see ADDRESSES). During deliberations 

on the preferred alternative, the Council 

was mutually 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. While significant alternatives 

to the proposed action meeting these 

RFA criteria have not been identified, 

several provisions included in the 

proposed action were included with the 

expectation that they may reduce 

economic impacts on small entities. 

The proposed 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 hookand-line gear would not be selected to 

carry an observer. Catcher vessels 

greater than or equal to 40 ft. LOA but 

less than 57.5 ft. LOA using pot or hookand-line gear would be subject to a 

vessel selection pool, in which they 

could be randomly selected to carry an 

observer for a specified period of time. 

Vessels in the ‘‘no selection’’ and vessel 

selection pools would be required to 

pay the ex-vessel value observer 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 selection 

probabilities. 

At its June 2010 meeting, upon 

hearing public testimony about the 

limited ability for some smaller vessels 

to carry an observer, and recognizing 

that the proposed action provides a 

funding mechanism for electronic 

monitoring, the Council approved a 

motion for NMFS to make electronic 

monitoring available as an alternative 

tool for fulfilling observer coverage 

requirements. The electronic monitoring 

option would not change the funding 

mechanism or fee amount proposed in 

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this action, but could serve to reduce 

economic impacts on small entities by 

providing an alternative to carrying a 

human observer. 

The Council included a provision for 

some flexibility for small catcher/ 

processors that would be included in 

the new funding and deployment 

system. Under the Council’s preferred 

alternative, 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. To minimize impacts on 

these entities, the Council included the 

provision for catcher/processor vessels 

less than 60 ft. LOA with a history of 

both catcher/processor and catcher 

vessel activity 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 as to 

whether they will be in the partial 

observer coverage category with the exvessel revenue fee structure or the full 

observer coverage category with the 

status quo funding system. 

The Council considered, but did not 

adopt Option 1, which 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 (greater than 1,400 

vessels) would have been assessed a 

reduced fee under Option 1, based on 

2008 data. However, upon deliberations, 

and premised on the concept that all 

sectors benefit from the resulting data, 

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 a 1.25 percent exvessel 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 or vessel size, 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, or lobby 

Congress for additional funds, an 

alternative for full Federal taxpayer 

funding of observer coverage in the 

North Pacific was not included by the 

Council. 

Recordkeeping and Reporting 

Requirements 

If a new FFP is issued after December 

1 of the year prior to the upcoming 

fishing year, owners of vessels in the 

partial observer coverage category 

would be required to enter their vessel 

information into the Deployment 

System within 30 days of the FFP 

issuance date. A vessel owner or 

operator intending to land halibut IFQ 

or CDQ or sablefish IFQ would be 

required to enter their vessel 

information into the Deployment 

System at least 30 days prior to 

embarking on his or her first halibut or 

sablefish IFQ trip of the fishing year if 

the vessel did not land halibut IFQ or 

CDQ or sablefish IFQ in the preceding 

year. Operators of vessels subject to the 

trip selection pool in the partial 

observer coverage category per this 

proposed rule would be required to hailin to the Deployment System at least 72 

hours prior to embarking on a fishing 

trip to fish for halibut or directed fish 

for groundfish. Operators of vessels in 

the vessel selection pool would be 

required to coordinate with NMFS’ 

observer contractors per instructions 

provided by the Deployment System to 

arrange for observer coverage when the 

vessel is selected for coverage. No new 

reporting requirements are proposed for 

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 

regulations current at the time, would 

be used to assess the observer fee 

liability for each landing. Managers of 

shoreside processors and stationary 

floating processors would access reports 

generated by NMFS’ web-based 

application for a statement of the 

observer fee liability associated with 

each landing. 

Proposed changes to § 679.5 would 

add a reporting requirement to IFQ 

Registered Buyers. Registered buyers 

who purchase CDQ halibut would be 

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 would also continue 

to apply. 

This proposed rule would also modify 

the information requirements listed at 

§ 679.5(l)(7)(i) such that, instead of 

listing all of the Registered Buyer 

identification data fields at 

§ 679.5(l)(7)(i)(C)(1), the regulations 

would refer to the information 

instructed on the report form. In this 

manner, a regulatory amendment would 

not be required to change the data fields 

on the report form if a new field is 

added, or a superfluous field removed at 

a future date. The regulations would 

also be revised to instruct a Registered 

Buyer to submit his or her completed 

report to the address provided on the 

report form. The mailing address at 

§ 679.5(l)(7)(i)(D) would be removed to 

allow for current address information to 

be provided on the form, rather than in 

regulations, to prevent the need for a 

regulatory amendment, should the 

address change in the future. 

Collection-of-Information Requirements 

This proposed rule contains 

collection-of-information requirements 

subject to review and approval by Office 

of Management and Budget (OMB) 

under the Paperwork Reduction Act 

(PRA). These requirements have been 

submitted to OMB for approval. Public 

reporting burden is provided below by 

OMB collection 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 

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fee liability generated with each 

landing; 2 hours for registration with the 

Alaska Observer Deployment 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 

Other reports (of problems). 

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. 

Public comment is sought regarding: 

Whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to NMFS at the 

ADDRESSES above, and email to 

OIRA_Submission@omb.eop.gov, 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 in 50 CFR Part 679 

Alaska, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: April 9, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 679 is proposed 

to be amended as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

1. The authority citation for 50 CFR 

part 679 continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 

1801 et seq.; 16 U.S.C. 3631 et seq.; Pub. L. 

108–447. 

2. In § 679.1, revise paragraph (f) to 

read as follows: 

§ 679.1 Purpose and scope. 

* * * * * 

(f) Groundfish and Halibut Observer 

Program. Regulations in this part govern 

elements of the Groundfish and Halibut 

Observer Program. 

* * * * * 

3. In § 679.2, 

a. Remove the definitions for ‘‘Fishing 

day’’ and ‘‘Legal proceedings’’; 

b. Revise the definitions for ‘‘Catcher/ 

processor (C/P)’’, ‘‘Decertification’’, 

‘‘Fishing Trip’’, ‘‘Mothership’’, and 

‘‘Observer’’; and 

c. Add a definition for ‘‘Parallel 

groundfish fishery’’ in alphabetical 

order to read as follows: 

§ 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 § 679.53(c), 

means action taken by a decertifying 

official under § 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, 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. 

* * * * * 

Mothership means a vessel that 

receives and processes groundfish from 

other vessels. 

* * * * * 

Observer means any 

(1) Individual employed by a 

permitted observer provider or a NMFS 

observer contractor 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 

§ 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 open 

concurrently with Federal groundfish 

fisheries such that groundfish catch is 

deducted from the Federal Total 

Allowable Catch. 

* * * * * 

4. In § 679.4, 

a. Redesignate paragraphs (d)(3)(iv) 

and (d)(3)(v) as paragraphs (d)(3)(v) and 

(d)(3)(vi), respectively, and paragraph 

(f)(2)(v) as (f)(2)(vi); 

b. Revise paragraph (d)(3)(iii) and 

newly redesignated (d)(3)(v); and 

c. Add paragraphs (d)(3)(iv) and 

(f)(2)(v) to read as follows: 

§ 679.4 Permits. 

* * * * * 

(d) * * * 

(3) * * * 

(iii) A Registered Buyer permit is 

issued on an annual cycle defined as 

March 1 through then 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 § 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, 

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surrendered in accordance with 

paragraph (a)(9) of this section, or 

modified under § 600.735 or § 600.740 

of this chapter. 

* * * * * 

(f) * * * (1) Requirement. No 

shoreside processor of the United States, 

stationary floating processor, or CQE 

floating processor described at (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 § 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. 

* * * * * 

5. In § 679.5, revise paragraph (l)(7)(i) 

to read as follows: 

§ 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 (l) and as provided by NMFS 

for each reporting period, as described 

at § 679.5(1)(7)(i)(E), 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 retropayments (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 

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. 

* * * * * 

6. In § 679.7, 

a. Redesignate paragraph (g)(7) as 

(g)(9); 

b. Revise paragraph (a)(3) and 

paragraph (g) heading; and 

c. Add paragraphs (g)(7) and (g)(8) to 

read as follows: 

§ 679.7 Prohibitions. 

* * * * * 

(a) * * * 

(2) * * * 

(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 

§ 679.51(c) or § 679.51(d)(1)(ii), deploy 

observers in the full observer coverage 

category at § 679.51(a)(2) and (b)(2) 

without an observer provider permit 

issued under § 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 

registering with the Observer 

Declaration and Deployment System per 

requirements at § 679.51(a)(1)(ii). 

(8) 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 

§ 679.51(a)(1)(ii)(D)(2), or the vessel is 

selected for observer coverage per 

§ 679.51(a)(1)(ii)(E). 

* * * * * 

7. In § 679.32, 

a. Remove paragraphs (c)(1) 

introductory text, (c)(3)(i)(A) 

introductory text, and (c)(3)(ii)(A); 

b. 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)(G) ................................................................ (c)(3)(ii)(A) through (c)(3)(ii)(F), respectively. 

c. 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), (c)(3)(i)(E)(1); 

d. Revise paragraphs (c)(2)(i)(A), 

(d)(2)(i), and (e)(3)(i)(A); and 

e. Add paragraphs (c)(1)(i), (c)(1)(ii) 

heading and introductory text, and 

(d)(1)(iii) to read as follows: 

§ 679.32 Groundfish and halibut CDQ 

catch monitoring. 

* * * * * 

(c) * * * (1) Sablefish CDQ fishing 

with fixed gear. (i) Observer Coverage. 

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Operators and owners of catcher vessels 

sablefish CDQ fishing must comply with 

observer coverage requirements at 

§ 679.51(a)(1). Operators and owners of 

catcher/processors sablefish CDQ 

fishing must comply with observer 

coverage requirements at § 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 § 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 § 679.51(a)(2). 

* * * * * 

(B) * * * 

(1) Comply with the observer coverage 

requirements at § 679.51(a)(2). 

* * * * * 

(C) * * * 

(1) Comply with the observer coverage 

requirements at § 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 § 679.4 of this 

part, 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) Each CDQ set on a vessel using 

nontrawl gear must be sampled by an 

observer for species composition and 

weight. 

* * * * * 

(d) * * * (1) * * * 

(iii) Comply with observer coverage 

requirements at § 679.51(b)(2) of this 

part. 

(2) * * * 

(i) Comply with observer coverage 

requirements at § 679.51(b)(1) of this 

part. 

* * * * * 

(e) * * * 

(3) * * * 

(i) * * * 

(A) Application form. The application 

to use alternative CDQ harvest 

regulations is available on the NMFS 

Alaska Region Web site at http:// 

alaskafisheries.noaa.gov. * * * 

* * * * * 

8. Under part 679, revise subpart E 

heading to read as follows: 

Subpart E—Groundfish and Halibut 

Observer Program 

9. In § 679.50, 

a. Remove and reserve paragraph (b) 

and remove paragraphs (c) through (i); 

and 

b. Revise section heading and 

paragraph (a) to read as follows: 

§ 679.50 Applicability. 

(a) General. (1) The operator of a 

vessel designated or required to be 

designated on a Federal fisheries permit 

(FFP) under § 679.4(b); the operator of a 

processor designated or required to be 

designated on a Federal processor 

permit (FPP) under § 679.4(f)(1) or a 

Registered Buyer permit under 

§ 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. 

10. A new § 679.51 is added to read 

as follows: 

§ 679.51 Observer requirements for 

vessels and plants. 

The following table 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. 

Program Catcher/processors Catcher vessels Motherships 

Shoreside and 

stationary floating processors 

Groundfish CDQ—Nontrawl Gear .................... (a)(2)(vi)(A)(3) through (4) (a)(2)(i)(C) hook-andline; (a)(1)(i) pot.(a)(2)(vi)(A)(5) ............ (b)(1) 

Groundfish CDQ—Trawl Gear ......................... (a)(2)(vi)(A)(1) ................... (a)(2)(i)(C) .................. (a)(2)(vi)(A)(5) ............ (b)(1) 

Halibut—CDQ and IFQ .................................... (a)(2)(i)(A) ......................... (a)(1)(i)(A) and (B) ..... (a)(2)(i)(B) .................. (b)(1) 

Sablefish—CDQ and IFQ ................................. (a)(2)(i)(A) ......................... (a)(1)(i)(A) and (B) ..... (a)(2)(i)(B) .................. (b)(1) 

BS pollock—AFA and CDQ ............................. (a)(2)(vi)(B)(1) and (2) ...... (a)(2)(i)(C) .................. (a)(2)(vi)(B)(1) and (2) (b)(2) 

Aleutian Islands pollock .................................... (a)(2)(vi)(B)(3) through (4) (a)(1)(i)(A) .................. (a)(2)(vi)(B)(4) ............ (b)(1) 

Rockfish Program ............................................. (a)(2)(vi)(D) ....................... (a)(2)(i)(C) .................. N/A ............................. (b)(1) 

Amendment 80 vessels and Non-AFA trawl 

catcher/processors fishing in the BSAI.

(a)(2)(vi)(C) ....................... N/A ............................. N/A ............................. N/A 

Vessels and processors participating in all 

other BSAI and GOA groundfish fisheries.

(a)(2)(i) and (vi) ................. (a)(1)(i)(A) and (B) ..... (a)(2)(i)(B) .................. (b)(1) 

(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 § 679.2: 

(A) A catcher vessel designated on an 

FFP under § 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 § 679.4(d)(1)(i), 

§ 679.4(d)(2)(i), or § 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 § 679.4(d)(1)(i) 

or § 679.4(d)(2)(i). 

(ii) Registration and notification of 

observer deployment. The Observer 

Declaration and Deployment System 

(Deployment System) is the 

communication platform for the partial 

observer coverage category by which 

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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 the Deployment 

System for coordinating with an 

observer contractor for any required 

observer coverage. Access to the 

Deployment System is available through 

the NMFS Alaska Region Web site at 

http://alaskafisheries.noaa.gov. 

(A) NMFS will automatically enter 

into the Deployment System for the 

following year 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 current year. NMFS will 

notify in writing, owners of vessels 

automatically entered into the 

Deployment System. The written 

notification will indicate the applicable 

selection pool. 

(B) If an FFP is issued after December 

1 of the year preceding the fishing year 

and the vessel is in the partial observer 

coverage category per paragraph 

(a)(1)(i)(A) of this section, the vessel 

owner must enter the vessel information 

into the Deployment System within 

thirty days of the FFP date of issuance. 

(C) The operator of a vessel in the 

partial observer coverage category per 

paragraph (a)(1)(i)(B) of this section 

must enter the vessel information into 

the Deployment System at least thirty 

days prior to embarking on his or her 

first fishing trip of the year for halibut 

or sablefish IFQ if the vessel did not 

land halibut or sablefish IFQ in the 

preceding year. 

(D) Upon entry into the Deployment 

System per paragraph (a)(1)(ii)(B) or (C) 

of this section, the Deployment System 

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 the Deployment System. 

(E) 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 the Deployment System. 

(2) When a fishing trip is registered 

with the Deployment System per 

paragraph (a)(1)(ii)(E)(1) of this section, 

the vessel operator will be notified by 

the Deployment System whether the trip 

is selected for observer coverage and a 

receipt number corresponding to this 

notification will be provided by the 

Deployment System. Trip registration is 

complete when the vessel operator 

receives a receipt number. 

(3) An operator may embark on a 

fishing trip registered with the 

Deployment System: 

(i) Not selected trip. At any time if the 

Deployment System indicates that the 

fishing trip is not selected for observer 

coverage. 

(ii) Selected trip. When an observer is 

aboard the vessel if the Deployment 

System 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 the Deployment System is 

invalidated. The operator must register 

any new trip in accordance with 

paragraph (a)(1)(ii)(E)(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. 

(F) Vessel Selection Pool. (1) A vessel 

selected for observer coverage is 

required to have an observer onboard for 

all groundfish and halibut fishing trips 

specified at paragraph (a)(1)(i) of this 

section for the time period indicated by 

the Deployment System. 

(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) The Observer Program may 

release a selected trip per paragraph 

(a)(1)(ii)(E) of this section or a selected 

vessel per paragraph (a)(1)(ii)(F)(1) 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 

§ 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 

§ 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 register 

with the Deployment System in 

accordance with paragraph (a)(1)(ii) of 

this section to 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 (a)(1) of this section, or the full 

observer coverage category at (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 

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least thirty days prior to embarking on 

his or her first fishing trip. 

(B) Default coverage category. If an 

owner forgoes the opportunity for a onetime election, the vessel will be 

assigned to the partial or full observer 

coverage category per (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 § 679.51(a)(2)(vi)(B)(2). 

(2) Catcher/processors using trawl 

gear and groundfish CDQ fishing. See 

§ 679.51(a)(2)(vi)(C). 

(3) Catcher/processors using hookand-line gear. A catcher/processor using 

hook-and-line gear and groundfish CDQ 

fishing must have at least two level 2 

observers aboard, at least one of whom 

must be a lead level 2 observer, unless 

the vessel is participating in a voluntary 

cooperative and exempted from this 

regulation under § 679.32(e), or NMFS 

approves an alternative fishing plan 

under § 679.32(c)(3)(ii)(F) authorizing 

the vessel to carry only one lead level 

2 observer. See § 679.53(a)(5)(v) for 

endorsement requirements for lead level 

2 observers. 

(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 harvest, 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 

§ 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 

§ 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. 

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 vessel 

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. More 

than two observers must be aboard if the 

observer workload restriction at 

paragraph (a)(2)(iii) of this section 

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 § 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. More 

than two observers must be aboard if the 

observer workload restriction would 

otherwise preclude sampling as 

required. 

(b) Observer requirements for 

shoreside processors and stationary 

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 § 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 § 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 

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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 § 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 the 

Deployment System 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) 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. 

(v) 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. 

11. A new § 679.52 is added to read 

as follows: 

§ 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 § 679.51(a)(2) and (b)(2). 

Persons seeking to provide observer 

services under this section must obtain 

an observer provider permit from 

NMFS. 

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(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 § 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. 

(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 § 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 

requiring full observer coverage per 

§ 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 inperson mid-deployment data reviews, 

unless: 

(1) The observer is specifically 

exempted by the Observer Program, or 

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(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 inperson data review and the observer 

completes a phone or fax middeployment 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)(10)(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)(10)(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)(10)(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) 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. 

(6) 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)(6)(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 a 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 

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. 

(7) 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. 

(8) Verify vessel safety decal. An 

observer provider must verify that a 

vessel has a valid USCG safety decal as 

required under § 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. 

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(9) 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. 

(10) 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); 

(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 § 679.51(a)(2) and (b)(2) 

of this part, 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 § 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 § 679.51(a)(2); 

(B) Shoreside processors or stationary 

floating processors required to have 

observer coverage as specified at 

§ 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 

§ 679.51(a)(2) and § 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 

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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 § 679.51(c)(3). Any information 

submitted under (a)(3)(iii) or (a)(3)(iv) of 

this section will be subject to NMFS 

review and determinations under (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 § 679.7(g) or 

§ 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 

§ 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. 

(11) 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. 

(12) 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 § 679.51(a)(2) 

or (b)(2), or scientific data collector and 

observer services to support NMFSapproved scientific research activities, 

exempted educational activities, or 

exempted or experimental fishing as 

defined in § 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. 

12. A new § 679.53 is added to read 

as follows: 

§ 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 § 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 § 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 

§ 679.52(b)(10)(i)(A)(3) and (4) and in 

writing from the Observer Program; and 

(B) Information identified by NMFS at 

§ 679.52(b)(10)(iii) regarding the 

observer candidate’s health and 

physical fitness for the job; 

(iii) Meet all education and health 

standards as specified in 

§ 679.52(b)(1)(i) and § 679.52(b)(10)(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 

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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 § 679.51(a)(2)(vi)(A) through (D). 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 60 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 § 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: 

(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 § 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. 

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(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 § 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 § 679.43. 

13. A new § 679.54 is added to read 

as follows: 

§ 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 

(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. 

14. A new § 679.55 is added to read 

as follows: 

§ 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 § 679.55(c) 

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 exvessel value of the groundfish and 

halibut landings subject to the observer 

fee. The method for determining the exvessel 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 

§ 679.51(a)(2) according to the following 

table: 

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If fish in the landing is from the following fishery or species: 

Is fish from the landing subject to the observer fee? 

If the vessel is not designated on 

an FFP or required to be 

designated on an FFP: 

If the vessel is designated on 

an FFP or required to be 

designated on an FFP: 

(1) Groundfish listed in Table 2a to this part that is harvested in the 

EEZ and subtracted from a total allowable catch limit specified 

under § 679.20(a),.

Not applicable, an FFP is required 

to harvest these groundfish in 

the EEZ.

Yes. 

(2) Groundfish listed in Table 2a to this part that is harvested in Alaska State waters, including in a parallel groundfish fishery, and subtracted from a total allowable catch limit specified under § 679.20(a).No .................................................. Yes. 

(3) Sablefish IFQ, regardless of where harvested .................................. Yes ................................................. Yes. 

(4) Halibut IFQ or halibut CDQ, regardless of where harvested ............ Yes ................................................. Yes. 

(5) Groundfish listed in Table 2a to this part that is harvested in Alaska State waters, but is not subtracted from a total allowable catch 

limit under § 679.20(a)..

No .................................................. No. 

(6) Any groundfish or other species not listed in Table 2a to part 679, 

except halibut IFQ or CDQ halibut, regardless of where harvested..

No .................................................. No. 

(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 § 679.5(p) and the 

shoreside processor or stationary 

floating processor landing report 

described at § 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 

§ 679.5(l)(7) to calculate the standard exvessel 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 exvessel 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-andgutted 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 

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 § 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 § 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 

§ 679.43. In any appeal of an IAD made 

under this section, a permit holder 

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specified in paragraph (a) of this section 

has the burden of proving his or her 

claim. 

[FR Doc. 2012–8856 Filed 4–12–12; 4:15 pm] 

BILLING CODE 3510–22–P 

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