[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23325-23361]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8856]



[[Page 23325]]

Vol. 77

Wednesday,

No. 75

April 18, 2012

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 679





 Groundfish Fisheries of the Exclusive Economic Zone off Alaska and 
Pacific Halibut Fisheries; Observer Program; Proposed Rule

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

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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.

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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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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 Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) in the mid-1970s.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 value-based 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 two-category 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 NMFS-
certified 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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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 quota-based 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 observer-collected 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 
value-based 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 volume-based requirements would be removed from regulations, 
and NMFS would assign vessels and processors to either

[[Page 23329]]

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 at-sea 
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
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      Proposed Full Coverage Category Vessels and Processing Plants
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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 one-time 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.
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    \1\ In this proposed rule, a fishing year is a calendar year.
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    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

[[Page 23330]]

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.
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    \2\ The 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.
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    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 observer-collected 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

[[Page 23331]]

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 ex-vessel 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.

[[Page 23332]]

    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 auto-entered 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 auto-entered 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 auto-enter 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
------------------------------------------------------------------------
                                                       Non-FFP vessels
                                   FFP Vessels       (sablefish IFQ and
                                                     halibut IFQ or CDQ)
------------------------------------------------------------------------
Initial vessel list for       NMFS generates a      NMFS generates a
 upcoming year.                list of current FFP   list from current
                               vessels.              year landings.
Additions after December 1    Owners enter their    Operators enter
 of prior fishing year.        vessel information    their vessel
                               into the Deployment   information into
                               System within 30      the Deployment
                               days of FFP           System at least 30
                               issuance.             days prior to first
                                                     trip.
                             -------------------------------------------
Notification of selection      If in the initial vessel list, then owner
 pool (trip or vessel).           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-and-line 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

[[Page 23333]]

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 fast-paced 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 
NMFS-contracted 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

[[Page 23334]]

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 case-by-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         At least 72 hours
                               calendar quarter.     prior to trip.
When Operator Notified......  Prior to each         Prior to each trip.
                               calendar quarter.
How Operator Notified of      Via written           Via Deployment
 Selection.                    notification.         System.
Duration of Coverage........  For the first year    Fishing Trip.
                               of the program,
                               three months.
                               Subject to change
                               per annual
                               deployment plan.
Possible Electronic           Upon release from     No.
 Monitoring Option.            observer coverage
                               requirement.
Owner's or Operator's         If selected, must     Must notify NMFS at
 Notification Requirements.    provide access and    least 72 hours
                               comply with           prior to embarking
                               instructions          on a groundfish or
                               provided by the       halibut fishing
                               Deployment System     trip.
                               or the written
                               notification, as
                               applicable, to
                               obtain observer
                               coverage.
------------------------------------------------------------------------

    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

[[Page 23335]]

[GRAPHIC] [TIFF OMITTED] TP18AP12.000

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/observer-program.html, which is still relevant. Since then, NMFS and the 
International Pacific Halibut Commission jointly

[[Page 23336]]

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-and-line 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 ex-vessel 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

[[Page 23337]]

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 weight-based 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 ex-vessel 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 
Sec.  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 ex-vessel 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

[[Page 23338]]

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 ``non-
AFA 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 Sec.  679.32(c)(3)(i) 
from NMFS pursuant to Sec.  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 Sec.  
679.51(a)(2)(vi)(A). With one exception, existing level 2 and lead 
level 2 observer experience requirements at Sec.  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 Sec.  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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Catcher vessels using
    Fishery or vessel category            Trawl gear       ------------------------------------------------  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 Sec.  679.52) and observers (under 
proposed new Sec.  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 Sec.  679.50(j) (which would be amended to Sec.  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 Sec.  
679.50(j)(1)(v)(D), (the proposed new Sec.  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.

[[Page 23339]]

Observers would have to be certified according to the requirements of 
current paragraph Sec.  679.50(j) (which would be proposed new Sec.  
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 Sec.  600.746 and Sec.  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 ex-vessel 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 ex-
vessel 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 ex-vessel 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 post-season price settlements 
or retroactive payments in addition to assessments at the time of 
landing; account for non-monetary 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 Sec.  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 Sec.  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

[[Page 23340]]

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, non-pelagic trawl 
gear, and all other gear. Section 2.9.2 of the analysis (see ADDRESSES) 
describes the methods employed by the CFEC to estimate ex-vessel 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 ex-vessel 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 ex-vessel 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

[[Page 23341]]

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)
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 value-based 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
------------------------------------------------------------------------
                                    Is fish from the landing subject to
                                             the observer fee?
                                 ---------------------------------------
 If fish in the landing is from    If the vessel is    If the vessel is
the following fishery or species   not designated on   designated on an
                                  an FFP or required  FFP or required to
                                   to be designated    be designated on
                                       on an FFP            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 Sec.   679.20(a)
Includes:

[[Page 23342]]

 
     FMP groundfish       not applicable, an  Yes.
     landed while fishing for      FFP is required
     halibut IFQ, halibut CDQ,     to harvest these
     sablefish IFQ, or salmon      groundfish in the
     (troll) in the EEZ.           EEZ.
     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    No................  Yes.
 2a to part 679 that is
 harvested in Alaska State
 waters and subtracted from a
 total allowable catch limit
 specified under Sec.
 679.20(a).
Includes:
     FMP groundfish
     harvested in a parallel
     groundfish fishery as
     defined at Sec.   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  Yes...............  Yes.
 where harvested.
(4) Halibut IFQ or halibut CDQ,   Yes...............  Yes.
 regardless of where harvested.
(5) Groundfish listed in Table    No................  Yes.
 2a to part 679 that is
 harvested in the Alaska State
 waters, but is not subtracted
 from a total allowable catch
 limit specified under Sec.
 679.20(a).
Includes:
     Groundfish managed   No................  No.
     under State of Alaska
     guideline harvest levels,
     which currently include
     pollock, Pacific cod, and
     sablefish.
(6) Any groundfish or other       No................  No.
 species not listed in Table 2a
 to part 679, except halibut IFQ
 or CDQ halibut, regardless of
 where harvested.
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    No................  No.
 bait and not sold (disposition
 code 92).
------------------------------------------------------------------------

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 real-time. 
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 ex-vessel 
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,

[[Page 23343]]

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 web-based 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 web-application 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 web-based application at least 24 
hours after submitting a report to view the landing-specific 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

[[Page 23344]]

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 Sec.  679.4. To receive IFQ 
or CDQ halibut or IFQ sablefish, a person must possess a Registered 
Buyer permit (Sec.  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 Sec.  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 web-based 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 
Sec.  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

[[Page 23345]]

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 Sec.  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 Sec.  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

[[Page 23346]]

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
------------------------------------------------------------------------
                                                              Number of
                           Sector                               small
                                                               entities
------------------------------------------------------------------------
Halibut & sablefish IFQ \1\................................        1,411
Groundfish catcher vessels \2\.............................          125
Groundfish catcher/processors \2\..........................            6
Motherships \3\............................................            1
Shoreside processors & stationary floating processors......         ~146
CDQ groups.................................................            6
------------------------------------------------------------------------
\1\ Includes any vessel that fished halibut IFQ, sablefish IFQ, or
  halibut CDQ. An estimated 761 of these vessels also fished groundfish.
\2\ Groundfish catcher vessel and catcher/processor data represent an
  estimate of the number of vessels that fished groundfish and did not
  fish halibut or sablefish IFQ.
\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 no-
action 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 
hook-and-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 hook-and-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

[[Page 23347]]

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 ex-vessel 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 ex-vessel fee for all 
vessels and processors subject to the new funding and deployment 
system, all small entities, regardless of the sector in which they 
participate 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 
hail-in 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 Sec.  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 Sec.  679.5(l)(7)(i) such that, instead of listing all of the 
Registered Buyer identification data fields at Sec.  
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 Sec.  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

[[Page 23348]]

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


Sec.  679.1  Purpose and scope.

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


Sec.  679.2  Definitions.

* * * * *
    Catcher/processor (C/P) means, with respect to groundfish 
recordkeeping and reporting and subpart E of this part, a vessel that 
is used for catching fish and processing that fish.
* * * * *
    Decertification, as used in Sec.  679.53(c), means action taken by 
a decertifying official under Sec.  679.53(c)(3) to revoke 
certification of an observer or observer provider. An observer or 
observer provider whose certification is so revoked is decertified.
* * * * *
    Fishing Trip means: * * *
* * * * *
    (3) Groundfish and Halibut Observer Program. With respect to 
subpart E of this part, 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 Sec.  
679.51(a) or (b), or for other purposes of conservation and management 
of marine resources as specified by the Regional Administrator.
* * * * *
    Parallel groundfish fishery. With respect to subpart E of this 
part, parallel groundfish fishery means a fishery that occurs in waters 
of the State of Alaska (from 0 to 3 nm) adjacent to the BSAI or GOA 
management areas and open concurrently with Federal groundfish 
fisheries such that groundfish catch is deducted from the Federal Total 
Allowable Catch.
* * * * *
    4. In Sec.  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:


Sec.  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 Sec.  679.55 at the time of 
application must be paid.
    (v) A Registered Buyer permit is in effect from the first day of 
March in the year for which it is issued or from the date of issuance, 
whichever is later, through the end of the current annual cycle, unless 
it is revoked, suspended,

[[Page 23349]]

surrendered in accordance with paragraph (a)(9) of this section, or 
modified under Sec.  600.735 or Sec.  600.740 of this chapter.
* * * * *
    (f) * * * (1) Requirement. No shoreside processor of the United 
States, stationary floating processor, or CQE floating processor 
described at (f)(2) of this section may receive or process groundfish 
harvested in the GOA or BSAI unless the owner obtains a Federal 
processor permit (FPP) issued under this part. An FPP is issued without 
charge.
    (2) FPP application. To obtain, amend, or renew an FPP, the owner 
must complete an FPP application per the instructions at http://alaskafisheries.noaa.gov/ram.
    (i) For the FPP application to be considered complete, all fees due 
to NMFS under Sec.  679.55 at the time of application must be paid.
    (ii) Signature. The owner or authorized representative of the owner 
of the shoreside processor, stationary floating processor, or CQE 
floating processor must sign and date the application, certifying that 
all information is true, correct, and complete to the best of his/her 
knowledge and belief. If the application is completed by an authorized 
representative, proof of authorization must accompany the application.
* * * * *
    5. In Sec.  679.5, revise paragraph (l)(7)(i) to read as follows:


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

* * * * *
    (l) * * *
    (7) * * *
    (i) IFQ Registered Buyer Ex-vessel Volume and Value Report (IFQ 
Buyer Report)
    (A) Applicability. An IFQ Registered Buyer that operates as a 
shoreside processor and receives and purchases IFQ landings of 
sablefish or halibut or CDQ landings of halibut must submit annually to 
NMFS a complete IFQ Buyer Report as described in this paragraph (l) and 
as provided by NMFS for each reporting period, as described at Sec.  
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 retro-payments (correlated by 
IFQ species or CDQ halibut, landing month(s), and month of payment) 
made in the current year to IFQ, or to CDQ halibut permit holders for 
landings made during the previous calendar year;
    (ii) Electronic submittal. Certification, including the NMFS ID and 
password of the IFQ Registered Buyer; or
    (iii) Non-electronic submittal. Certification, including the 
printed name and signature of the individual 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 Sec.  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:


Sec.  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 Sec.  679.51(c) or Sec.  
679.51(d)(1)(ii), deploy observers in the full observer coverage 
category at Sec.  679.51(a)(2) and (b)(2) without an observer provider 
permit issued under Sec.  679.52(a).
* * * * *
    (g) Groundfish and Halibut Observer Program.
* * * * *
    (7) Embark on a fishing trip to directed fish for groundfish or to 
fish for halibut with hook-and-line gear without registering with the 
Observer Declaration and Deployment System per requirements at Sec.  
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 Sec.  
679.51(a)(1)(ii)(D)(2), or the vessel is selected for observer coverage 
per Sec.  679.51(a)(1)(ii)(E).
* * * * *
    7. In Sec.  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:


Sec.  679.32  Groundfish and halibut CDQ catch monitoring.

* * * * *
    (c) * * * (1) Sablefish CDQ fishing with fixed gear. (i) Observer 
Coverage.

[[Page 23350]]

Operators and owners of catcher vessels sablefish CDQ fishing must 
comply with observer coverage requirements at Sec.  679.51(a)(1). 
Operators and owners of catcher/processors sablefish CDQ fishing must 
comply with observer coverage requirements at Sec.  679.51(a)(2).
    (ii) Data sources used for CDQ catch accounting. NMFS will use the 
following data sources to account for catch made by vessels sablefish 
CDQ fishing with fixed gear:
    (2) * * *
    (i) * * *
    (A) Comply with observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (3) * * *
    (i) * * *
    (A) Catcher vessels using trawl gear and delivering sorted catch to 
a processor. * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (B) * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (C) * * *
    (1) Comply with the observer coverage requirements at Sec.  
679.51(a)(2).
* * * * *
    (D) Observed catcher vessels using nontrawl gear. Operators of 
vessels in this category must retain all CDQ species until they are 
delivered to a processor that meets the requirements of paragraph (d) 
of this section unless retention of groundfish CDQ species is not 
authorized under Sec.  679.4 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 Sec.  
679.51(b)(2) of this part.
    (2) * * *
    (i) Comply with observer coverage requirements at Sec.  
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 Sec.  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:


Sec.  679.50  Applicability.

    (a) General. (1) The operator of a vessel designated or required to 
be designated on a Federal fisheries permit (FFP) under Sec.  679.4(b); 
the operator of a processor designated or required to be designated on 
a Federal processor permit (FPP) under Sec.  679.4(f)(1) or a 
Registered Buyer permit under Sec.  679.4(d)(3); and the operator of a 
vessel used to harvest IFQ halibut, CDQ halibut, or IFQ sablefish must 
comply with this subpart. The owner of a vessel or a shoreside 
processor must ensure that the operator or manager complies with this 
subpart.
    (2) Exceptions. A catcher vessel that delivers only unsorted 
codends to a mothership is not subject to the requirements of this 
subpart.
    (3) For purposes of this subpart, halibut means CDQ and IFQ 
halibut.
    10. A new Sec.  679.51 is added to read as follows:


Sec.  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.

----------------------------------------------------------------------------------------------------------------
                                                                                               Shoreside and
            Program                   Catcher/       Catcher vessels      Motherships       stationary floating
                                     processors                                                 processors
----------------------------------------------------------------------------------------------------------------
Groundfish CDQ--Nontrawl Gear..  (a)(2)(vi)(A)(3)   (a)(2)(i)(C) hook- (a)(2)(vi)(A)(5).  (b)(1)
                                  through (4).       and-line;
                                                     (a)(1)(i) pot.
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   (a)(2)(i)(B).....  (b)(1)
                                                     (B).
Sablefish--CDQ and IFQ.........  (a)(2)(i)(A).....  (a)(1)(i)(A) and   (a)(2)(i)(B).....  (b)(1)
                                                     (B).
BS pollock--AFA and CDQ........  (a)(2)(vi)(B)(1)   (a)(2)(i)(C).....  (a)(2)(vi)(B)(1)   (b)(2)
                                  and (2).                              and (2).
Aleutian Islands pollock.......  (a)(2)(vi)(B)(3)   (a)(1)(i)(A).....  (a)(2)(vi)(B)(4).  (b)(1)
                                  through (4).
Rockfish Program...............  (a)(2)(vi)(D)....  (a)(2)(i)(C).....  N/A..............  (b)(1)
Amendment 80 vessels and Non-    (a)(2)(vi)(C)....  N/A..............  N/A..............  N/A
 AFA trawl catcher/processors
 fishing in the BSAI.
Vessels and processors           (a)(2)(i) and       (a)(1)(i)(A) and  (a)(2)(i)(B).....  (b)(1)
 participating in all other       (vi).              (B).
 BSAI and GOA groundfish
 fisheries.
----------------------------------------------------------------------------------------------------------------

     (a) Observer requirements for vessels--(1) Groundfish and halibut 
fishery partial observer coverage category--(i) Vessel classes in 
partial coverage category. Unless otherwise specified in paragraph 
(a)(2) of this section, the following catcher vessels are in the 
partial observer coverage category when fishing for halibut with hook-
and-line gear or when directed fishing for groundfish in a federally 
managed or parallel groundfish fishery, as defined at Sec.  679.2:
    (A) A catcher vessel designated on an FFP under Sec.  679.4(b)(1); 
or
    (B) A catcher vessel when fishing for halibut with hook-and-line 
gear and while carrying a person named on a permit issued under Sec.  
679.4(d)(1)(i), Sec.  679.4(d)(2)(i), or Sec.  679.4(e)(2), or for 
sablefish IFQ with hook-and-line or pot gear and while carrying a 
person named on a permit issued under Sec.  679.4(d)(1)(i) or Sec.  
679.4(d)(2)(i).
    (ii) Registration and notification of observer deployment. The 
Observer Declaration and Deployment System (Deployment System) is the 
communication platform for the partial observer coverage category by 
which

[[Page 23351]]

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 Sec.  679.2:
    (A) Catcher/processors;
    (B) Motherships; and
    (C) Catcher vessels while:
    (1) Directed fishing for pollock in the BS;
    (2) Using trawl gear or hook-and-line gear while groundfish CDQ 
fishing (see Sec.  679.2); or
    (3) Participating in the Rockfish Program.
    (ii) Observer coverage requirements. Unless subject to the partial 
observer coverage category per paragraph (a)(1)(i) of this section, a 
vessel listed in paragraphs (a)(2)(i)(A) through (C) of this section 
must have at least one observer aboard the vessel at all times. Some 
fisheries require additional observer coverage in accordance with 
paragraph (a)(2)(vi) of this section.
    (iii) Observer workload. The time required for an observer to 
complete sampling, data recording, and data communication duties per 
paragraph (a)(2) of this section may not exceed 12 consecutive hours in 
each 24-hour period.
    (iv) Catcher/processor classification. (A) For purposes of this 
subpart, a vessel is classified as a catcher/processor according to the 
operation designation on its FFP. A vessel designated as a catcher/
processor at any time during the calendar year is classified as a 
catcher/processor for the remainder of the calendar year.
    (B) An owner or operator of a catcher/processor that processes no 
more than one metric ton round weight of groundfish on any day, may 
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

[[Page 23352]]

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 one-time 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 Sec.  
679.51(a)(2)(vi)(B)(2).
    (2) Catcher/processors using trawl gear and groundfish CDQ fishing. 
See Sec.  679.51(a)(2)(vi)(C).
    (3) Catcher/processors using hook-and-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 Sec.  
679.32(e), or NMFS approves an alternative fishing plan under Sec.  
679.32(c)(3)(ii)(F) authorizing the vessel to carry only one lead level 
2 observer. See Sec.  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 Sec.  
679.4(1)(2)(i) and using trawl gear in the BSAI. All Amendment 80 
vessels using any gear but dredge gear while directed fishing for 
scallops and catcher/processors not listed in Sec.  679.4(1)(2)(i) and 
using trawl gear in the BSAI must have aboard at least two observers 
for each day that the vessel is used to catch, process, or receive 
groundfish harvested in a federally managed or parallel groundfish 
fishery. 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 Sec.  679.82(e) must have at least two observers 
aboard for each day that the vessel is used to harvest or process fish 
in the West Yakutat District, Central GOA, or Western GOA management 
areas from July 1 through July 31. 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 Sec.  679.4(f)(1) is in the partial observer coverage 
category when receiving or processing groundfish harvested in federally 
managed or parallel groundfish fisheries, as defined at Sec.  679.2.
    (ii) Coverage. The manager of a shoreside processor or stationary 
floating processor must provide observers access to unsorted and sorted 
catch any time an observer is present at the facility.
    (2) Shoreside processor and stationary floating processor full 
observer coverage category. An AFA inshore processor is in the full 
observer coverage category.
    (i) Coverage level. An AFA inshore processor must provide an 
observer for each 12 consecutive-hour period of each calendar day 
during which the processor takes delivery of, or processes, groundfish 
harvested by a vessel engaged in a directed pollock fishery in the BS. 
An AFA inshore processor that, for more than 12 consecutive hours in

[[Page 23353]]

a calendar day, takes delivery of or processes pollock harvested in the 
BS directed pollock fishery must provide two observers for each such 
day.
    (ii) Multiple processors. An observer deployed to an AFA inshore 
processor may not be assigned to cover more than one processor during a 
calendar day in which the processor receives or processes pollock 
harvested in the BS directed pollock fishery.
    (iii) Observers transferring between vessels and processors. An 
observer transferring from an AFA catcher vessel to an AFA inshore 
processor may not be assigned to cover the AFA inshore processor until 
at least 12 hours after offload and sampling of the catcher vessel's 
delivery is completed.
    (c) NMFS employee observers. (1) Any vessel, shoreside processor, 
or stationary floating processor required to comply with observer 
coverage requirements under paragraphs (a) or (b) of this section or 
under Sec.  679.7(f)(4) must use, upon written notification by the 
Regional Administrator, a NMFS employee to satisfy observer coverage 
requirements as specified in paragraphs (a) and (b) of this section or 
for other conservation and management purposes as specified by the 
Regional Administrator.
    (2) Prior to deployment of a NMFS employee, the agency will provide 
written notification to the owner or operator of a vessel, shoreside 
processor, or stationary floating processor whether observer coverage 
credit will be granted for that deployment.
    (3) Vessel, shoreside processor, and stationary floating processor 
owners and operators, as well as observers and observer providers, may 
contact NMFS in writing to request assistance in improving observer 
data quality and resolving observer sampling issues. Requests may be 
submitted to: NMFS Observer Program Office, 7600 Sand Point Way NE., 
Seattle, WA 98115-0070 or transmitted by facsimile to 206-526-4066.
    (d) Procurement of observer services--(1) Full coverage category. 
(i) The owner of a vessel, shoreside processor, or stationary floating 
processor required to have full observer coverage under paragraphs 
(a)(2) and (b)(2) of this section must arrange and pay for observer 
services from a permitted observer provider.
    (ii) The owner of a vessel, shoreside processor, or stationary 
floating processor is required to arrange and pay for observer services 
directly from NMFS when the agency has determined and notified them 
under paragraph (c) of this section that the vessel, shoreside 
processor, or stationary floating processor shall use a NMFS employee 
or individual authorized by NMFS in lieu of, or in addition to, an 
observer provided through a permitted observer provider to satisfy 
requirements under paragraphs (a)(2) and (b)(2) of this section or for 
other conservation and management purposes.
    (2) Partial coverage category. The owner of a vessel in the partial 
observer coverage category per paragraph (a)(1) of this section must 
comply with instructions provided by 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 Sec.  679.52 is added to read as follows:


Sec.  679.52  Observer provider permitting and responsibilities.

    (a) Observer provider permit--(1) Permit. The Regional 
Administrator may issue a permit authorizing a person's participation 
as an observer provider for operations requiring full observer coverage 
per Sec.  679.51(a)(2) and (b)(2). Persons seeking to provide observer 
services under this section must obtain an observer provider permit 
from NMFS.

[[Page 23354]]

    (2) New observer provider. An applicant seeking an observer 
provider permit must submit a completed application by fax or mail to 
the Observer Program Office at the address listed at Sec.  
679.51(c)(3).
    (3) Contents of application. An application for an observer 
provider permit shall consist of a narrative that contains the 
following:
    (i) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and other 
employees. If the applicant is a corporation, the articles of 
incorporation must be provided. If the applicant is a partnership, the 
partnership agreement must be provided.
    (ii) Contact information--(A) Owner(s) information. The permanent 
mailing address, phone and fax numbers where the owner(s) can be 
contacted for official correspondence.
    (B) Business information. Current physical location, business 
mailing address, business telephone and fax numbers, and business email 
address for each office.
    (C) Authorized agent. For an observer provider with ownership based 
outside the United States, identify an authorized agent and provide 
contact information for that agent including mailing address and phone 
and fax numbers where the agent can be contacted for official 
correspondence. An authorized agent means a person appointed and 
maintained within the United States who is authorized to receive and 
respond to any legal process issued in the United States to an owner or 
employee of an observer provider. Any diplomatic official accepting 
such an appointment as designated agent waives diplomatic or other 
immunity in connection with the process.
    (iii) A statement signed under penalty of perjury from each owner, 
or owners, board members, and officers if a corporation, that they have 
no conflict of interest as described in paragraph (c) of this section.
    (iv) A statement signed under penalty of perjury from each owner, 
or owners, board members, and officers if a corporation, describing any 
criminal convictions, Federal contracts they have had and the 
performance rating they received on the contract, and previous 
decertification action while working as an observer or observer 
provider.
    (v) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of an observer provider as set out under 
paragraph (b) of this section, and the arrangements to be used.
    (4) Application evaluation. (i) The Regional Administrator will 
establish an observer provider permit application review board, 
comprised of NMFS employees, to review and evaluate an application 
submitted under paragraph (a) of this section. The review board will 
evaluate the completeness of the application, the application's 
consistency with needs and objectives of the observer program, or other 
relevant factors. If the applicant is a corporation, the review board 
also will evaluate the following criteria for each owner, or owners, 
board members, and officers:
    (A) Absence of conflict of interest as defined under paragraph (c) 
of this section;
    (B) Absence of criminal convictions related to:
    (1) Embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements or receiving stolen 
property, or
    (2) The commission of any other crimes of dishonesty, as defined by 
Alaska State law or Federal law, that would seriously and directly 
affect the fitness of an applicant in providing observer services under 
this section;
    (C) Satisfactory performance ratings on any Federal contracts held 
by the applicant; and
    (D) Absence of any history of decertification as either an observer 
or observer provider;
    (ii) [Reserved]
    (5) Agency determination on an application. NMFS will send a 
written determination to the applicant. If an application is approved, 
NMFS will issue an observer provider permit to the applicant. If an 
application is denied, the reason for denial will be explained in the 
written determination.
    (6) Transferability. An observer provider permit is not 
transferable. An observer provider that experiences a change in 
ownership that involves a new person must submit a new permit 
application and cannot continue to operate until a new permit is issued 
under this paragraph.
    (7) Expiration of observer provider permit. (i) An observer 
provider permit will expire after a period of 12 continuous months 
during which no observers are deployed by the provider under this 
section to the North Pacific groundfish or halibut industry.
    (ii) The Regional Administrator will provide a written initial 
administrative determination (IAD) of permit expiration to an observer 
provider if NMFS' deployment records indicate that the observer 
provider has not deployed an observer during a period of 12 continuous 
months. An observer provider who receives an IAD of permit expiration 
may appeal under Sec.  679.43. An observer provider that appeals an IAD 
will be issued an extension of the expiration date of the permit until 
after the final resolution of the appeal.
    (8) Sanctions. Procedures governing sanctions of permits are found 
at subpart D of 15 CFR part 904.
    (b) Responsibilities of observer providers. An observer provider 
that supplies observers for operations requiring full observer coverage 
per Sec.  679.51(a)(2) and (b)(2) must:
    (1) Provide qualified candidates to serve as observers. (i) To be a 
qualified candidate an individual must have:
    (A) A Bachelor's degree or higher from an accredited college or 
university with a major in one of the natural sciences;
    (B) Successfully completed a minimum of 30 semester hours or 
equivalent in applicable biological sciences with extensive use of 
dichotomous keys in at least one course;
    (C) Successfully completed at least one undergraduate course each 
in math and statistics with a minimum of 5 semester hours total for 
both; and
    (D) Computer skills that enable the candidate to work competently 
with standard database software and computer hardware.
    (ii) Prior to hiring an observer candidate, the observer provider 
must provide to the candidate copies of NMFS-prepared pamphlets and 
other information describing observer duties.
    (iii) For each observer employed by an observer provider, either a 
written contract or a written contract addendum must exist that is 
signed by the observer and observer provider prior to the observer's 
deployment and that includes the following conditions for continued 
employment:
    (A) That all the observer's in-season catch messages between the 
observer and NMFS are delivered to the Observer Program Office at least 
every 7 days, unless otherwise specified by the Observer Program;
    (B) That the observer completes in-person mid-deployment data 
reviews, unless:
    (1) The observer is specifically exempted by the Observer Program, 
or

[[Page 23355]]

    (2) The observer does not at any time during his or her deployment 
travel through a location where an Observer Program employee is 
available for an in-person data review and the observer completes a 
phone or fax mid-deployment data review as described in the observer 
manual; and
    (C) The observer informs the observer provider prior to the time of 
embarkation if he or she is experiencing any new mental illness or 
physical ailments or injury since submission of the physician's 
statement as required in paragraph (b)(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 Sec.  
679.51(e)(1)(ii)(B)(1) before the vessel with an observer aboard may 
depart. One of the following acceptable means of verification must be 
used to verify the decal validity:
    (i) An employee of the observer provider, including the observer, 
visually inspects the decal aboard the vessel and confirms that the 
decal is valid according to the decal date of issuance; or
    (ii) The observer provider receives a hard copy of the USCG 
documentation of the decal issuance from the vessel owner or operator.

[[Page 23356]]

    (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 Sec.  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 Sec.  679.51(c)(3). Signed and 
valid contracts include the contracts an observer provider has with:
    (A) Vessels required to have observer coverage as specified at 
Sec.  679.51(a)(2);
    (B) Shoreside processors or stationary floating processors required 
to have observer coverage as specified at Sec.  679.51(b)(2); and
    (C) Observers.
    (viii) Observer provider invoices. A certified observer provider 
must submit to the Observer Program Office a copy of all invoices for 
observer coverage required or provided pursuant to Sec.  679.51(a)(2) 
and Sec.  679.51(b)(2).
    (A) A copy of the invoices must be received by the Observer Program 
Office within 45 days of the date on the invoice and must include all 
reconciled and final charges.
    (B) Invoices must contain the following information:
    (1) Name of each catcher/processor, catcher vessel, mothership, 
stationary floating processor, or shoreside

[[Page 23357]]

processing plant to which the invoice applies;
    (2) Dates of service for each observer on each catcher/processor, 
catcher vessel, mothership, stationary floating processor, or shoreside 
processing plant. Dates billed that are not observer coverage days must 
be identified on the invoice;
    (3) Rate charged in dollars per day (daily rate) for observer 
services;
    (4) Total charge for observer services (number of days multiplied 
by daily rate);
    (5) Amount charged for air transportation; and
    (6) Amount charged by the provider for any other observer expenses, 
including but not limited to: Ground transportation, excess baggage, 
and lodging. Charges for these expenses must be separated and 
identified.
    (ix) Change in observer provider management and contact 
information. Except for changes in ownership addressed under paragraph 
(a)(6) of this section, an observer provider must submit notification 
of any other change to the information submitted on the provider's 
permit application under paragraphs (a)(3)(i) through (iv) of this 
section. Within 30 days of the effective date of such change. The 
information must be submitted by fax or mail to the Observer Program 
Office at the address listed in Sec.  679.51(c)(3). Any information 
submitted under (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 Sec.  
679.7(g) or Sec.  600.725(o), (t), and (u) of this chapter;
    (3) Any concerns about vessel safety or marine casualty under 46 
CFR 4.05-1 (a)(1) through (7), or processor safety;
    (4) Any observer illness or injury that prevents the observer from 
completing any of his or her duties described in the observer manual; 
and
    (5) Any information, allegations or reports regarding observer 
conflict of interest or failure to abide by the standards of behavior 
described in Sec.  679.53(b)(1) through (b)(2), or;
    (B) Within 72 hours after the observer provider determines that an 
observer violated the observer provider's conduct and behavior policy 
described at paragraph (b)(3)(i) of this section; these reports shall 
include the underlying facts and circumstances of the violation.
    (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 Sec.  679.51(a)(2) or 
(b)(2), or scientific data collector and observer services to support 
NMFS-approved scientific research activities, exempted educational 
activities, or exempted or experimental fishing as defined in Sec.  
600.10 of this chapter.
    (2) Must not have a direct financial interest, other than the 
provision of observer or scientific data collector services, in a North 
Pacific fishery managed under an FMP or the Halibut Act for the waters 
off Alaska, including, but not limited to:
    (i) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside processor or stationary floating processor facility 
involved in the catching or processing of fish,
    (ii) Any business involved with selling supplies or services to any 
vessel, shoreside processor, or stationary floating processor 
participating in a fishery managed pursuant to an FMP or the Halibut 
Act in the waters off Alaska, or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, shoreside processor, or stationary floating 
processor participating in a fishery managed pursuant to an FMP or the 
Halibut Act in the waters off Alaska.
    (3) Must assign observers without regard to any preference by 
representatives of vessels, shoreside processors, or stationary 
floating processors other than when an observer will be deployed.
    (4) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts fishing or fish processing activities 
that are regulated by NMFS, or who has interests that may be 
substantially affected by the performance or nonperformance of the 
official duties of the observer provider.
    12. A new Sec.  679.53 is added to read as follows:


Sec.  679.53  Observer certification and responsibilities.

    (a) Observer Certification--(1) Applicability. Observer 
certification authorizes an individual to fulfill duties for operations 
requiring full observer coverage per Sec.  679.51(a)(2) and (b)(2) as 
specified in writing by the NMFS Observer Program Office while under 
the employ of an observer provider permitted under Sec.  679.52(a) and 
according to certification endorsements as designated under paragraph 
(a)(5) of this section.
    (2) Observer certification official. The Regional Administrator 
will designate a NMFS observer certification official who will make 
decisions for the Observer Program on whether to issue or deny observer 
certification.
    (3) Certification requirements. NMFS may certify an individual who, 
in addition to any other relevant considerations:
    (i) Is employed by a permitted observer provider company at the 
time of the issuance of the certification;
    (ii) Has provided, through their observer provider:
    (A) Information identified by NMFS at Sec.  679.52(b)(10)(i)(A)(3) 
and (4) and in writing from the Observer Program; and
    (B) Information identified by NMFS at Sec.  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 Sec.  
679.52(b)(1)(i) and Sec.  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

[[Page 23358]]

specify why the candidate failed the training and whether the candidate 
may retake the training. If a determination is made that the candidate 
may not pursue further training, notification will be in the form of a 
written determination denying certification, as specified under 
paragraph (a)(4)(i) of this section.
    (v) Have not been decertified under paragraph (c) of this section.
    (4) Agency determinations on observer certification--(i) Denial of 
certification. The NMFS observer certification official will issue a 
written determination denying observer certification if the candidate 
fails to successfully complete training, or does not meet the 
qualifications for certification for any other relevant reason.
    (ii) Issuance of an observer certification. An observer 
certification will be issued upon determination by the NMFS observer 
certification official that the candidate has successfully met all 
requirements for certification as specified in paragraph (a)(3) of this 
section.
    (5) Endorsements. The following endorsements must be obtained, in 
addition to observer certification, in order for an observer to deploy 
as indicated.
    (i) Certification training endorsement. A certification training 
endorsement signifies the successful completion of the training course 
required to obtain this endorsement. A certification training 
endorsement is required for any deployment as an observer in the Bering 
Sea and Aleutian Islands groundfish fisheries and the Gulf of Alaska 
groundfish fisheries or Halibut Act fisheries and will be granted with 
the initial issuance of an observer certification. This endorsement 
expires when the observer has not been deployed and performed sampling 
duties as required by the Observer Program for a period of time 
specified by the Observer Program after his or her most recent 
debriefing. In order to renew the endorsement, the observer must 
successfully retake the certification training. Observers will be 
notified of any changes to the endorsement expiration period prior to 
the effective date of the change.
    (ii) Annual general endorsement. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
initial deployment within any calendar year subsequent to a calendar 
year in which a certification training endorsement is obtained. To 
obtain an annual general endorsement, an observer must successfully 
complete the annual briefing, as specified by the Observer Program. All 
briefing attendance, performance, and conduct standards required by the 
Observer Program must be met.
    (iii) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or annual briefing must receive 
a deployment endorsement to their certification prior to any subsequent 
deployments for the remainder of that year. An observer may obtain a 
deployment endorsement by successfully completing all pre-cruise 
briefing requirements. The type of briefing the observer must attend 
and successfully complete will be specified in writing by the Observer 
Program during the observer's most recent debriefing.
    (iv) Level 2 endorsements. A certified observer may obtain a level 
2 endorsement to their certification. A level 2 endorsement is required 
for purposes of performing observer duties aboard vessels or stationary 
floating processors or at shoreside processors participating in 
fisheries as prescribed in Sec.  679.51(a)(2)(vi)(A) through (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 Sec.  679.51(a)(2) or (b)(2):
    (A) Must not have a direct financial interest, other than the 
provision of observer services, in a North Pacific fishery, including, 
but not limited to:
    (1) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside processor, or stationary floating processor facility 
involved in the catching or processing of fish,
    (2) Any business involved with selling supplies or services to any 
vessel, shoreside processor, or stationary floating processor 
participating in a North Pacific fishery, or
    (3) Any business involved with purchasing raw or processed products 
from any vessel, shoreside processor, or stationary floating processor 
participating in a North Pacific fishery.
    (B) May not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who either conducts activities that are regulated by 
NMFS or has interests that may be substantially affected by the 
performance or nonperformance of the observer's official duties.
    (C) May not serve as an observer on any vessel or at any shoreside 
or stationary floating processing facility owned or operated by a 
person who previously employed the observer.
    (D) May not solicit or accept employment as a crew member or an 
employee of a vessel, shoreside processor, or stationary floating 
processor in a North Pacific fishery while employed by an observer 
provider.
    (ii) Provisions for remuneration of observers under this section do 
not constitute a conflict of interest.
    (2) Standards of Behavior. An observer fulfilling duties for 
operations in the full observer coverage category per Sec.  
679.51(a)(2) or (b)(2) must:
    (i) Perform assigned duties as described in the Observer Manual or 
other written instructions from the Observer Program Office;
    (ii) Accurately record their sampling data, write complete reports, 
and report accurately any observations of suspected violations of 
regulations relevant to conservation of marine resources or their 
environment; and
    (iii) Not disclose collected data and observations made aboard the 
vessel or in the processing facility to any person except the owner or 
operator of the observed vessel or processing facility, an authorized 
officer, or NMFS.

[[Page 23359]]

    (c) Suspension and Decertification--(1) Suspension and 
decertification review official. The Regional Administrator will 
establish an observer suspension and decertification review 
official(s), who will have the authority to review observer 
certifications issued under paragraph (a) of this section and issue 
initial administrative determinations of observer certification 
suspension and/or decertification.
    (2) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification 
proceedings against an observer:
    (i) When it is alleged that the observer has committed any acts or 
omissions of any of the following:
    (A) Failed to satisfactorily perform the duties of an observer as 
specified in writing by the Observer Program; or
    (B) Failed to abide by the standards of conduct for an observer as 
prescribed under paragraph (b) of this section;
    (ii) Upon conviction of a crime or upon entry of a civil judgment 
for:
    (A) Commission of fraud or other violation in connection with 
obtaining or attempting to obtain certification, or in performing the 
duties as specified in writing by the Observer Program;
    (B) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, or 
receiving stolen property;
    (C) Commission of any other offense indicating a lack of integrity 
or honesty that seriously and directly affects the fitness of 
observers.
    (3) Issuance of initial administrative determination. Upon 
determination that suspension or decertification is warranted under 
paragraph (c)(2) of this section, the suspension/decertification 
official will issue a written initial administrative determination 
(IAD) to the observer via certified mail at the observer's most current 
address provided to NMFS under Sec.  679.43(e). The IAD will identify 
whether a certification is suspended or revoked and will identify the 
specific reasons for the action taken. If the IAD issues a suspension 
for an observer certification, the terms of the suspension will be 
specified. Suspension or decertification can be made effective upon 
issuance of the IAD in cases of willfulness or in cases in which public 
health, interest, or safety require such action. In such cases, the 
suspension/decertification official will state in the IAD that 
suspension or decertification is effective at time of issuance and the 
reason for the action.
    (4) Appeals. A certified observer who receives an IAD that suspends 
or revokes his or her observer certification may appeal pursuant to 
Sec.  679.43.
    13. A new Sec.  679.54 is added to read as follows:


Sec.  679.54  Release of observer data to the public.

    (a) Summary of weekly data. The following information collected by 
observers for each catcher/processor and catcher vessel during any 
weekly reporting period may be made available to the public:
    (1) Vessel name and Federal permit number.
    (2) Number of Chinook salmon and ``other salmon'' observed.
    (3) The ratio of total round weight of incidentally caught halibut 
or Pacific herring to the total round weight of groundfish in sampled 
catch.
    (4) The ratio of number of king crab or C. bairdi Tanner crab to 
the total round weight of groundfish in sampled hauls.
    (5) The number of observed trawl hauls or fixed gear sets.
    (6) The number of trawl hauls that were basket sampled.
    (7) The total weight of basket samples taken from sampled trawl 
hauls.
    (b) Haul-specific data. (1) The information listed in paragraphs 
(b)(1)(i) through (xiii) of this section and collected by observers 
from observed hauls on board vessels using trawl gear to participate in 
a directed fishery for groundfish other than rockfish, Greenland 
turbot, or Atka mackerel may be made available to the public:
    (i) Date.
    (ii) Time of day gear is deployed.
    (iii) Latitude and longitude at beginning of haul.
    (iv) Bottom depth.
    (v) Fishing depth of trawl.
    (vi) The ratio of the number of Chinook salmon to the total round 
weight of groundfish.
    (vii) The ratio of the number of other salmon to the total round 
weight of groundfish.
    (viii) The ratio of total round weight of incidentally caught 
halibut to the total round weight of groundfish.
    (ix) The ratio of total round weight of herring to the total round 
weight of groundfish.
    (x) The ratio of the number of king crab to the total round weight 
of groundfish.
    (xi) The ratio of the number of C. bairdi Tanner crab to the total 
round weight of groundfish.
    (xii) Sea surface temperature (where available).
    (xiii) Sea temperature at fishing depth of trawl (where available).
    (2) The identity of the vessels from which the data in paragraph 
(b)(1) of this section are collected will not be released.
    (c) Competitive harm. In exceptional circumstances, the owners and 
operators of vessels may provide to the Regional Administrator written 
justification at the time observer data are submitted, or within a 
reasonable time thereafter, that disclosure of the information listed 
in paragraphs (a) and (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 Sec.  679.55 is added to read as follows:


Sec.  679.55  Observer fees.

    (a) Responsibility. The owner of a shoreside processor or a 
stationary floating processor named on a Federal Processing Permit 
(FPP) or a person named on a Registered Buyer permit at the time of the 
landing subject to the observer fee as specified at Sec.  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 ex-vessel value of 
the groundfish and halibut landings subject to the observer fee. The 
method for determining the ex-vessel value of the groundfish and 
halibut landings subject to the observer fee is provided in paragraph 
(e) of this section. The fee liability will be assessed on the 
groundfish round weight and the headed-and-gutted weight for halibut.
    (c) Landings subject to the observer fee. The observer fee is 
assessed on landings by vessels not in the full observer coverage 
category described at Sec.  679.51(a)(2) according to the following 
table:

[[Page 23360]]



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

     (d) Standard ex-vessel prices--(1) General. NMFS will publish the 
standard ex-vessel prices used to determine the observer fee in the 
upcoming year in the Federal Register during the last quarter of each 
calendar year. The standard ex-vessel prices will be described in U.S. 
dollars per equivalent round pound for groundfish and per equivalent 
headed-and-gutted weight for halibut.
    (2) Effective duration. The standard ex-vessel prices will remain 
in effect until revised by subsequent publication in the Federal 
Register.
    (3) Standard ex-vessel price determination and use--(i) Groundfish 
standard ex-vessel prices. Except as described in paragraph (d)(3)(ii) 
of this section, NMFS will calculate groundfish standard ex-vessel 
prices based on standardized ex-vessel nominal prices calculated using 
information submitted in the Commercial Operator's Annual Report 
described at Sec.  679.5(p) and the shoreside processor or stationary 
floating processor landing report described at Sec.  679.5(e)(5), as 
well as methods established by the State of Alaska's Commercial 
Fisheries Entry Commission.
    (A) Groundfish standard ex-vessel prices will be calculated as a 3-
year rolling average of standard prices for each species, port or port-
group, and gear.
    (B) Gear categories for groundfish standard ex-vessel prices are: 
pelagic trawl gear, non-pelagic trawl gear, and non-trawl gear.
    (ii) Halibut and fixed gear sablefish standard ex-vessel prices. 
NMFS will use data submitted to NMFS on the IFQ Registered Buyer report 
under Sec.  679.5(l)(7) to calculate the standard ex-vessel prices for 
each year for halibut and fixed gear sablefish, by port or port group. 
These standard ex-vessel prices will be applied to landings of:
    (A) Halibut;
    (B) IFQ sablefish, and;
    (C) Sablefish accruing against the fixed-gear sablefish CDQ 
allocation.
    (iii) Confidentiality. Standard ex-vessel prices will be aggregated 
among ports if fewer than four processors participate in a price 
category for any species and gear combination.
    (e) Determining the ex-vessel value of groundfish and halibut. The 
ex-vessel value of groundfish and halibut subject to the observer fee 
will be determined by applying the standard ex-vessel price published 
in the Federal Register in the year prior to the year in which the 
landing was made to the round weight of groundfish and the headed-and-
gutted weight of halibut landings subject to the observer fee.
    (f) Observer fee percentage. The observer fee percentage is 1.25 
percent.
    (g) Fee collection. A permit holder specified in paragraph (a) of 
this section, receiving a groundfish or halibut landing subject to the 
observer fee under paragraph (c) of this section, is responsible for 
collecting fees during the calendar year in which the groundfish or 
halibut is received.
    (h) Payment--(1) Payment due date. A permit holder specified in 
paragraph (a) of this section must submit his or her observer fee 
liability payment(s) to NMFS no later than February 15 of the year 
following the calendar year in which the groundfish or halibut landings 
subject to the observer fee were made.
    (2) Payment recipient. Make electronic payment payable to NMFS.
    (3) Payment address. Payments must be made electronically through 
the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. 
Instructions for electronic payment will be provided on the payment Web 
site and on the observer fee liability invoice to be mailed to each 
permit holder.
    (4) Payment method. Payment must be made electronically in U.S. 
dollars by automated clearinghouse, credit card, or electronic check 
drawn on a U.S. bank account.
    (5) Underpayment of fee liability. (i) Under Sec.  679.4, an 
applicant will not receive a new or amended FPP or Registered Buyer 
permit until he or she submits a complete permit application. For the 
application to be considered complete, all fees required by NMFS must 
be paid.
    (ii) If a permit holder fails to submit full payment for the 
observer fee liability by the date described in paragraph (h)(1) of 
this section, the Regional Administrator may:
    (A) At any time thereafter send an initial administrative 
determination to the liable permit holder stating that the permit 
holder's estimated fee liability, as calculated by the Regional 
Administrator and sent to the permit holder pursuant to paragraph (b) 
of this section, is the amount of observer fee due from the permit 
holder.
    (B) Disapprove any issuance of an FPP or Registered Buyer permit to 
the applicant in accordance with Sec.  679.4.
    (iii) If payment is not received by the 30th day after the final 
agency action, the agency may pursue collection of the unpaid fees.
    (i) Overpayment of fee. Upon issuance of final agency action, any 
amount submitted to NMFS in excess of the observer fee liability 
determined to be due by the final agency action will be returned to the 
permit holder unless the permit holder requests the agency to credit 
the excess amount against the permit holder's future observer fee 
liability.
    (j) Appeals. A permit holder who receives an IAD may either pay the 
fee liability or appeal the IAD pursuant to Sec.  679.43. In any appeal 
of an IAD made under this section, a permit holder

[[Page 23361]]

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