Daily Rules, Proposed Rules, and Notices of the Federal Government
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted by mail to NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS, Alaska Region, 709 West 9th Street, Room 420A, Juneau, Alaska; and by email to
NMFS manages the U.S. groundfish fisheries of the exclusive economic zone off Alaska under the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA) and the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI). The FMPs were prepared by the North Pacific Fishery Management Council (Council) and approved by the Secretary of Commerce under authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
This action modifies the equipment and operational requirements for catcher/processor vessels (C/Ps) named on License Limitation Program (LLP) licenses with a Pacific cod catcher/processor hook-and-line endorsement for the Bering Sea, Aleutian Islands, or both Bering Sea and Aleutian Islands. These vessels are commonly known as “freezer longliners.” They also are defined as the “longline catcher processor subsector” in the 2005 Consolidated Appropriations Act (Pub. L. 108-447). In 2011, 33 vessels actively fished under the 37 LLP licenses that met the criteria for the longline C/P subsector. A description of LLP license requirements, management of the longline C/P subsector, and the development of monitoring and enforcement regulations applicable to the longline C/P subsector is described in more detail in the preamble to the proposed rule (77 FR 35925, June 15, 2012) and is not repeated here.
NMFS requires new monitoring and enforcement provisions applicable to vessels participating in the BSAI longline C/P subsector as a result of several pieces of legislation passed by Congress and recent changes to fishery management regulations, including (1) legislation that created a defined class of participants in the BSAI longline C/P subsector—the 2005 Consolidated Appropriations Act (Pub. L. 108-447), (2) regulatory amendments allocating a specific quantity of Pacific cod resources in the BSAI to the defined class of longline C/P subsector participants—detailed in the final rule implementing Amendment 85 to the BSAI FMP (74 FR 56728, November 3, 2009), and (3) legislation that allows BSAI longline C/P subsector participants to receive exclusive catch privileges—the Longline Catcher Processor Subsector Single Fishery Cooperative Act of 2010 (Pub. L. 111-335). In combination, these changes created the opportunity for the longline C/P subsector to form a voluntary fishing cooperative.
Under the voluntary cooperative, members in the longline C/P subsector allocate a proportion of the available Pacific cod resources among their members based on private contractual arrangements. The voluntary cooperative operates as a
Catch share programs create new demands for enhanced catch accounting, monitoring, and enforcement. They increase incentives for participants to misreport catch through unauthorized discards or inaccurate catch reports. If catch can be successfully misreported or underreported, the fishing season continues longer than it should, and the vessel owners and operators are able to catch more Pacific cod than are allocated to the subsector. The fact that the vessel owners and operators are fishing under a cooperative contract to maximize the harvest and value of the Pacific cod allocation for a given halibut PSC limit provides additional opportunities for them to communicate and cooperate to underreport catch.
The voluntary cooperative and the CDQ Program present NMFS with similar monitoring and enforcement challenges. Therefore, this action applies the same requirements to longline C/Ps operating in both the CDQ and non-CDQ fisheries. Maintaining the same monitoring measures ensures consistent methods of catch accounting, avoids confusion for observers, and reduces the risk of data processing or catch accounting errors that may occur if monitoring provisions change onboard a vessel while fishing. Additional detail on the need for enhanced monitoring requirements for catch share programs and management of the CDQ Program is provided in the preamble to the proposed rule (77 FR 35925, June 15, 2012) and not repeated here.
The proposed rule for this action was published in the
This action affects vessels in the longline C/P subsector when those vessels (1) operate in either the BSAI or GOA groundfish fisheries when directed fishing for Pacific cod is open in the BSAI, or (2) while the vessel is participating in the CDQ fisheries (“groundfish CDQ fishing”). Members of the subsector who do not intend to fish for Pacific cod in the BSAI or to conduct groundfish CDQ fishing during the upcoming calendar year may notify NMFS (“opt out”) and will not be subject to the enhanced monitoring requirements in that calendar year.
Members of the subsector who intend to fish for Pacific cod in the BSAI or to conduct groundfish CDQ fishing in the upcoming calendar year will be required to select one of two monitoring options: carry two observers so that all catch can be sampled, or carry one observer and use a motion-compensated scale to weigh Pacific cod before it is processed. NMFS has examined both options and determined that either option will improve catch accounting on the freezer longliners and provide the data needed to properly manage the Pacific cod and groundfish CDQ fisheries. Vessel owners will be required to select an option prior to November 1 for the upcoming calendar year. Once the selection is made, it will apply for the entire year and the vessel owner will not be able to change it during the year for which it was made.
Under the increased observer coverage monitoring option, the vessel owner and operator will be required to carry two observers and provide an observer sampling station meeting location and space requirements. The vessel operator will be required to use an electronic logbook to report catch at all times during that year. One of the two observers must have a lead level 2 certification. The observers must have the opportunity to sample all sets. A lead level 2 observer must meet minimum time-at-sea requirements. The level 2 requirement ensures that observers have experience at sea; the “lead” requirement ensures that they have had experience with longline or pot gear and that, having taken at least two cruises, they have experience with various fixed-gear operations. Because the data collected by observers is directly used to debit quota accounts, the observer estimates are carefully reviewed and scrutinized by catch share participants. NMFS has found that observers with prior experience with a specific gear type are more likely to collect usable data for quota management.
Under the scales monitoring option, the vessel owner and operator will be required to use a NMFS-approved scale to weigh all Pacific cod, provide and maintain a NMFS-approved electronic monitoring system to monitor sorting and weighing of Pacific cod, carry one lead level 2 observer, and provide an observer sampling station meeting location and space requirements. Each set must be weighed and recorded separately. NMFS will use the weight of all catch that passes over the scale to account for Pacific cod catch. The vessel operator will be required to use an
This action also reduces the experience requirements for lead level 2 observers to address concerns raised by the observer providers about a potential shortage of observers as a result of this action. Reducing the experience requirements will increase the pool of qualified lead level 2 observers. The number of sampled sets required for lead level 2 qualification is reduced from 60 sampled sets to 30 sampled sets.
Finally, this action removes the allowance for an “alternative fishing plan” under the CDQ Program. Because this action will standardize the monitoring options for longline C/Ps in both the CDQ and non-CDQ fisheries, the alternative fishing plan regulations are no longer necessary.
NMFS received 3 letters of comment from fishing organizations and 2 letters of comment from the general public addressing 13 distinct topics related to the proposed rule. A summary of the relevant comments and NMFS' responses, follows. No changes were made to the proposed rule as a result of these comments.
Section 1.3.4 of the EA/RIR (see
Methods exist to obtain, train, and retain the needed lead level 2 observers as explained in section 1.3.4 of the EA/RIR (see
The observer employment market will play a crucial role in ensuring that enough lead level 2 observers are created and mobilized to meet the quantity demanded. Based on the analysis prepared for this action, NMFS anticipates that there will be enough lead level 2 observers to meet the requirements of this monitoring program.
NMFS agrees that the freezer longline fleet's observer usage may change from year to year as the TAC changes, or from vessel to vessel depending on the distribution of allocations within the voluntary cooperative. However, in its analysis of the anticipated future demand for observers, NMFS made projections assuming a fleet of the current size fishing for an entire year. This assumption is conservative, because some vessels do not fish the entire year to accommodate changes in crews, maintenance, and product offloads.
The modifications to revise the number of sets per day and the total number of days fished did not change the result of NMFS's analysis of the availability of lead level 2 observers. Therefore, no change in the regulations was made based on this comment.
NMFS cannot delay the implementation of the lead level 2 requirement without delaying all the monitoring requirements in this program. The lead level 2 requirement is an essential component to the suite of monitoring tools created to manage the voluntary cooperative. Without this component the monitoring program will not function as intended. NMFS must implement these monitoring measures as soon as practicable because this fleet has already formed a voluntary cooperative and to achieve the objectives identified in the purpose and need statement.
NMFS will continue to monitor the number of observers that become lead level 2 qualified in the fixed gear fleet in the partial coverage category of the restructured observer program. NMFS could reconsider the monitoring requirements for the freezer longline fleet if there is a future shortage of lead level 2 observers. Any modification to the monitoring provisions in this rule would require a new analysis and rule making. The current best information available to NMFS does not support changes to the proposed rule.
However, NMFS believes that, in general, wages are an important motivator for work effort. Increased wages are likely to motivate existing lead level 2 observers to work longer seasons, encourage existing observers within the Alaska Region to become fixed gear lead level 2 observers, and to draw qualified biologists, including observers from other regions, into the pool of North Pacific fixed gear lead level 2 observers. Increased wages for observer providers will also be necessary to encourage providers to incur the costs required in nurturing new lead level 2 observers. NMFS acknowledges that paying higher wages to lead level 2 observers will reduce the economic benefits freezer longline operators obtain from their cooperative fishing arrangements.
As discussed in section 1.3.4 of the EA/RIR (see
• Catch share programs create new incentives for operators to circumvent management measures. These incentives can be addressed in part by deploying experienced observers with specialized experience with the gear being deployed. In recent years, observer reports of harassment and intimidation in the freezer longline sector have increased. NMFS believes that, at least partly as a response to the new cooperative arrangements, vessel owners and operators are becoming more interested in haul-by-haul observer data in the freezer longline sector. As a result, some vessel operators are pressuring observers to change sample numbers, sample more, sample less, or sample differently. Experienced observers are more likely to identify vessel operator and crew actions that lead to sampling of unrepresentative sets, be more confident in their sampling decisions, and withstand pressure, particularly when only one observer may be on board.
• Performances issues with new observers can impact NMFS' monitoring of scale performance; of halibut prohibited species catch (PSC) and viability; and of all discard estimates, including Pacific cod. Experienced observers are familiar with different vessel layouts and operations. They can adapt quickly to vessel-specific conditions when assigned to a new freezer longliner. New observers or observers with little experience on fixed gear vessels need extra time to develop the best sampling techniques for that specific vessel. Lack of experience results in unsampled sets or lower data quality. Observers with experience aboard a fixed gear vessel should be able to quickly familiarize themselves with a new vessel and establish an unbiased sampling protocol.
• The scales option requires that only Pacific cod be weighed on the flow scale. Flow scales will be new to freezer longliners and NMFS believes that the sole observer must be a lead level 2 in order to detect and minimize problems that could occur. An observer with this level of experience should have the skills necessary to solve sampling and data collection problems in this new monitoring program. An observer unfamiliar with fixed gear operations will have difficulty determining if the scale is being used correctly. An experienced observer can address scale performance issues with the responsible vessel representatives prior to disembarking the vessel.
As noted in the responses to comments 7 and 10, NMFS the decision to require a lead level 2 observer is not related to requirements in other rationalized fisheries. NMFS acknowledges that the experience gained from these other fisheries has demonstrated the need for lead level 2 observers to address incentives to misreport catch. NMFS determined that requiring observers that have the most experience and knowledge of fishing operations aboard fixed gear vessels was essential to ensure this new and unique program functions as anticipated.
No changes to the regulations were made based on public comment. However, NMFS has identified two minor issues that require revisions to the proposed rule. First, this final rule does not include the proposed rule revisions to §§ 679.51, 679.53, and 679.32(c)(3)(i)(E)(
Second, this final rule corrects an error made in § 679.32(c)(3)(i)(F)(
Section 3507(c)(B)(i) of the PRA requires that agencies inventory and display a current control number assigned by the Director, OMB, for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule adds a collection-of-information for recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to reference correctly the new sections resulting from this final rule.
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law.
Pursuant to 5 U.S.C.553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on the correction to § 679.32(c)(3)(i)(F)(
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a
This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB). The collection-of-information requirements are presented below by OMB control number.
The reporting requirements for the C/P longline or pot gear daily cumulative logbook (DCPL) are removed for certain C/Ps with this final rule; the electronic logbook (see OMB 0648-0515) is used in place of the DCPL by freezer longliners (C/Ps) named on LLP licenses endorsed to catch and process Pacific cod at sea with hook-and-line gear in the BSAI.
The Observer Program requirements are mentioned in this final rule; however, the public reporting burden for this collection-of-information is not directly affected by this final rule.
Public reporting burden is estimated to average 30 minutes for Pacific Cod Monitoring Option or Opt-out Notification Form; 2 hours for Inspection Request for an Electronic Monitoring System; 6 minutes for At-Sea Scales Inspection Request; 2 minutes for notification to observers of at-sea scale tests; 45 minutes for Record of Daily Flow Scale Test; 1 minute for printed output from at-sea scale; and 2 hours for Observer Sampling Station Inspection Request.
LLP license requirements are mentioned in this final rule; however, the public reporting burden for this collection-of-information is not directly affected by this final rule.
Public reporting burden is estimated to average 15 minutes for eLogbook registration and 41 minutes per active response and 5 minutes per inactive response for the C/P longline and pot gear eLogbook.
These reporting burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Reporting and recordkeeping requirements.
Alaska, Fisheries, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, NMFS amends 15 CFR Chapter IX and 50 CFR Chapter VI as follows:
44 U.S.C. 3501
(b) * * *
16 U.S.C. 773
(f) * * *
(1) * * *
(c) * * *
(1) For vessel owners and operators subject to § 679.100(a), to use the vessel as a catcher/processor to conduct directed fishing for Pacific cod with hook-and-line gear in the BSAI or to conduct groundfish CDQ fishing.
(1) In order to be approved by NMFS, the vessel owner and operator must provide an electronic monitoring system that include cameras, a monitor, and a digital video recorder that must—
(i) Provide sufficient resolution and field of view to monitor all areas where Pacific cod are sorted from the catch, all fish passing over the motion-compensated scale, and all crew actions in these areas.
(ii) Have sufficient data storage capacity to record all video data from an entire trip. Each frame of stored video data must record a time/date stamp in Alaska local time (A.l.t.).
(iii) Include at least one external USB (1.1 or 2.0) port or other removable storage device approved by NMFS.
(iv) Use commercially available software.
(v) Use color cameras, with a minimum of 470 TV lines of resolution, auto-iris capabilities, and output color video to the recording device with the ability to revert to black and white video output when light levels become too low for color recognition.
(vi) Record at a speed of no less than 5 frames per second at all times when Pacific cod are being sorted or weighed.
(2) NMFS staff, or any individual authorized by NMFS, must be able to view any footage from any point in the trip using a 16-bit or better color monitor that can display all cameras simultaneously and must be assisted by crew knowledgeable in the operation of the system.
(3) The vessel owner and operator must maintain the video data and make the data available to NMFS staff or any individual authorized by NMFS, upon request. The data must be retained onboard the vessel for no less than 120 days after the date the video is recorded, unless NMFS has notified the vessel owner in writing that the video data may be retained for less than this 120-day period.
(4) The vessel owner or operator must arrange for NMFS to inspect the electronic monitoring system and maintain a current NMFS-issued electronic monitoring system inspection report onboard the vessel at all times when the vessel is required to provide an approved electronic monitoring system.
(5) The vessel owner or operator must submit an Inspection Request for an Electronic Monitoring System to NMFS with all information fields accurately filled in. The application form is available on the NMFS Alaska Region Web site (
(ii) Any additional information requested by the Regional Administrator.
(7) Any change to the electronic monitoring system that would affect the system's functionality or ability to meet the requirements described at paragraph (k)(1) of this section must be submitted to, and approved by, NMFS in writing before that change is made.
(8) Inspections will be conducted on vessels tied to docks at Dutch Harbor, Alaska; Kodiak, Alaska; and in the Puget Sound area of Washington State.
(9) After an inspection, NMFS will issue an electronic monitoring system inspection report to the vessel owner, if the electronic monitoring system meets the requirements of paragraph (k) of this section. The electronic monitoring system report is valid for 12 months from the date it is issued by NMFS. The electronic monitoring system inspection report must be made available to the observer, NMFS personnel, or to an authorized officer upon request.
(c) * * *
(3) * * *
(i) * * *
(F) * * *
(c) * * *
(1) Unless otherwise specified in paragraphs (c)(4) through (8) of this section, observer coverage is required as follows:
(j) * * *
(1) * * *
(v) * * *
(E) * * *
The owner and operator of a vessel named on an LLP license with a Pacific cod catcher-processor hook-and-line endorsement for the Bering Sea, Aleutian Islands or both the Bering Sea and Aleutian Islands must comply with the requirements of this subpart.
(i) The vessel is in compliance with observer coverage requirements described at § 679.50(c)(8)(i).
(ii) The time required for an observer to complete sampling, data recording, and data communication duties may not exceed 12 consecutive hours in each 24-hour period.
(iii) An observer sampling station meeting the requirements at § 679.28(d) is available at all times, unless otherwise approved by NMFS.
(iv) All sets are made available for sampling by an observer.
(i) The vessel owner and operator must ensure that—
(A) The vessel is in compliance with observer coverage requirements described at § 679.50(c)(8)(ii).
(B) All Pacific cod brought onboard the vessel is weighed on a NMFS-approved scale in compliance with the scale requirements at § 679.28(b), and that each set is weighed and recorded separately.
(C) An observer sampling station meeting the requirements at § 679.28(d) is available at all times, unless otherwise approved by NMFS.
(D) The vessel is in compliance with the electronic monitoring requirements described at § 679.28(k).
(ii) NMFS will use the weight of all catch that passes over the scale for the purposes of accounting for Pacific cod catch.
(iii) At the time NMFS approves the scale used to weigh Pacific cod, NMFS will provide the vessel owner or operator with one of the following designations on the scale inspection report that will be used for catch accounting of Pacific cod for the duration of the approval period:
(d) During 2013, the vessel owner that has selected the increased observer coverage option under paragraph (b)(1) of this section may make a one-time change to the scales option as described under paragraph (b)(2) of this section. The owner must submit a completed notification form no later than May 1 to change monitoring options. The change in monitoring options will become effective June 10 and will remain effective until December 31.