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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 110831549-2587-02]

RIN 0648-BB42

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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule and notice of approval of an FMP amendment.
SUMMARY: NMFS publishes regulations to implement Amendment 86 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 76 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (Amendments 86/76). Amendments 86/76 add a funding and deployment system for observer coverage to the existing North Pacific Groundfish Observer Program (Observer Program) and amend existing observer coverage requirements for vessels and processing plants. The new funding and deployment system allows NMFS to determine when and where to deploy observers according to management and conservation needs, with funds provided through a system of fees based on the ex-vessel value of groundfish and halibut in fisheries covered by the new system. This action is necessary to resolve data quality and cost equity concerns with the Observer Program's existing funding and deployment structure. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the Northern Pacific Halibut Act of 1982, the fishery management plans, and other applicable law.
DATES: Effective January 1, 2013.
ADDRESSES: 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 toOIRA_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 athttp://www.fishsafe.info/contactform.htmor by contacting the Seventeenth Coast Guard District safety coordinator athttp://www.uscg.mil/d17/,or by phone at 907-463-2810 or 907-463-2823.

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

NMFS manages the U.S. groundfish fisheries in the Exclusive Economic Zone (EEZ) of the Bering Sea and Aleutian Islands (BSAI) and the Gulf of Alaska (GOA) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) and the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), respectively. These fishery management plans are collectively referred to as “the FMPs.” The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

Management of the Pacific halibut fisheries in and off Alaska is governed by an international agreement, the Convention Between the United States of America and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention), which was signed in Ottawa, Canada, on March 2, 1953, and was amended by the Protocol Amending the Convention, signed in Washington, DC, on March 29, 1979. The Convention is implemented in the United States by the Northern Pacific Halibut Act of 1982.

The Notice of Availability for Amendments 86/76 published in theFederal Registeron March 14, 2012 (77 FR 15019), with a 60-day comment period that ended May 14, 2012. In compliance with section 313 of the MSA, NMFS held a public hearing on the proposed rule in each of the affected states—Alaska, Oregon, and Washington—during the mandatory 60-day comment period for the proposed rule (77 FR 22753, April 17, 2012; 77 FR 29961, May 2, 2012). The Secretary of Commerce approved Amendments 86/76 on June 7, 2012. The proposed rule to implement Amendments 86/76 published in theFederal Registeron April 18, 2012 (77 FR 23326). The 60-day comment period on the proposed rule ended June 18, 2012.

North Pacific Groundfish Observer Program

The Observer Program has an integral role in the management of North Pacific fisheries. The Observer Program was created with the implementation of the MSA in the mid-1970s and has evolved from primarily observing foreign fleets to observing domestic fleets. The Observer Program provides the regulatory framework for NMFS-certified observers (observers) to obtain information necessary for the conservation and management of the groundfish fisheries. The information collected by observers provides the best available scientific information for managing the fisheries and developing measures to minimize bycatch in furtherance of the purposes and national standards of the MSA. Observers collect biological samples and information on total catch and interactions with protected species. Managers use data collected by observers to monitor quotas, manage groundfish and prohibited species catch, and document and reduce fishery interactions with protected resources. Scientists use observer-collected data for stock assessments and marine ecosystem research.

Under the current structure, catcher vessels, catcher processors, and processing plant operators enter into direct contracts with observer providers to meet coverage requirements at § 679.50. Existing coverage requirements, based on vessel length and processing volume, are set at 30 percent or 100 percent, and vessels less than 60 ft. in length overall (LOA) and vessels fishing for halibut (halibut vessels) are exempt from observer coverage. Owners of smaller vessels pay observer costs that are disproportionately high relative to their earnings, and owners of vessels less than 60 ft. LOA and halibut vessels do not contribute to observer coverage costs. Furthermore, vessel and plant operators required to have 30-percent coverage determine when to carryobservers, which statistically biases the data collected.

Need for and Objectives of This Action

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

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

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

Summary of the Final Action

This action will reduce bias in observer data, authorize the collection of observer data in sectors that do not currently have any observer coverage requirements, allow fishery managers to provide observer coverage to respond to the management needs and circumstances of individual fisheries, and assess a broad-based fee which reflects the value a vessel or processor extracts from the fishery.

First, this final action expands the Observer Program to include groundfish vessels less than 60 ft. LOA and halibut vessels that have not been previously required to carry an observer.

Second, this final action restructures the observer deployment system by establishing two observer coverage categories: Partial and full. All groundfish and halibut vessels and processors will be included in one of these two categories.

NMFS requires fishing sectors in the full coverage category to have all operations observed. The full coverage category includes catcher/processors, motherships, and catcher vessels participating in a catch share program with a transferrable prohibited species catch (PSC) limit. Owners of vessels or processors in the full coverage category must arrange and pay for required observer coverage from a permitted observer provider. This final rule does not change the observer deployment or funding system for operations in the full coverage category.

The partial observer coverage category includes fishing sectors (vessels and processors) that will not be required to have an observer at all times. The partial coverage category includes catcher vessels, shoreside processors, and stationary floating processors when not participating in a catch share program with a transferrable PSC limit. Small catcher/processors that meet certain criteria will also be in the partial coverage category. NMFS will assign vessels in the partial coverage category to one of two distinct observer coverage selection pools: The trip selection or vessel selection pool.

Each year, NMFS will develop an annual deployment plan that will describe how NMFS plans to deploy observers to vessels in the partial observer coverage category in the upcoming year. The annual deployment plan will describe the sampling design NMFS uses to generate unbiased estimates of total and retained catch, and catch composition in the groundfish and halibut fisheries. The annual deployment plan also will describe how NMFS will deploy observers to shoreside processing plants or stationary floating processors in the partial coverage category. Adjustments to the annual deployment plan would be made each year after a scientific evaluation of data collected under the restructured Observer Program to evaluate the impact of changes in observer deployment and identify areas where improvements are needed to collect the data necessary to conserve and manage the groundfish and halibut fisheries. Any adverse economic impacts and safety-related issues will also be considered through the annual deployment plan process, particularly with respect to expanding coverage to small vessels (less than 40 ft LOA). NMFS will post the annual deployment plan on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov).

This final rule establishes the Observer Declare and Deploy System (ODDS) as an Internet-based interface that provides information about observer deployment on vessels in the partial coverage category and facilitates communication among the owner or operator of a vessel in the partial observer coverage category, NMFS, and NMFS' contracted observer provider. The ODDS Web site ishttps://odds.afsc.noaa.gov.For those unable to use the Internet, access to ODDS also will be available by calling the NOAA Data Technician Office at 1-800-304-4846 (option # 1) or 907-586-7163.

Owners and operators of vessels in the trip selection pool will enter information about upcoming fishing trips into ODDS and receive information about whether a trip has been selected for observer coverage. Owners and operators of vessels in the vessel selection pool will be notified by letter from NMFS if they have been selected for observer coverage for a particular time period. Only those vessels selected for observer coverage will use ODDS to provide additional information to NMFS about whether they intend to fish in the selected time period and whether they can physically carry an observer on board the vessel.

ODDS was called the “Deployment System” in the preamble to the proposed rule. The preamble to the proposed rule also described the duration of coverage for vessels in the vessel selection pool as 3 months. In response to recommendations from the Council, the 2013 Observer Program Annual Deployment Plan has been adjusted and the duration of coverage in the vessel selection pool will be 2 months for the initial year of the program.

Third, this final rule creates a new observer funding system applicable to all vessels and shoreside processors in the partial observer coverage category. By creating two observer coverage categories with separate funding systems, this action addresses cost inequities with the existing Observer Program without imposing higher costs on operations that already pay for full observer coverage. Moreover, the potential implementation of future management programs with increased monitoring needs will not reduce the funds available to provide observer coverage for the fisheries as a whole.

A fee equal to 1.25 percent of the fishery ex-vessel value will be paid by partial coverage category participants to fund observer coverage in the partial coverage category. This fee is authorized by section 313 of the MSA. Vessels and processors in the full coverage category will continue to arrange and pay for observer services from a permitted observer provider.

NMFS will use Federal start-up funds in the first year of implementation (2013) to transition from the existing industry-funded/direct contract model to one where NMFS contracts with observer providers to deploy observers in partial coverage category sectors. In subsequent years, NMFS will use the observer fee proceeds collected from partial coverage category participants to pay for observer coverage in these sectors.

The proposed rule for this action (77 FR 23326; April 18, 2012) contains a thorough discussion of the history of the Observer Program, the restructured Observer Program, and details of requirements and provisions of the full and partial coverage categories. Those details are not repeated in this final rule unless relevant to a specific public comment. Changes from the proposed rule are detailed in the section “Changes from the Proposed Rule.”

Comments and Responses

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

General Program Comments

Comment 1:The Observer Program is an indispensable component in the successful management of Federal groundfish fisheries off Alaska, though we recognize that some portions of the existing program need adjustment. Thus, we support the approach in Amendments 86/76. This approach is fair and equitable and should facilitate the level of catch data and other information necessary to ensure responsible management and the long-term sustainability of the groundfish resources. The proposed amendments will improve upon a program that is already recognized as one of the most comprehensive and successful observer programs in the world.

Response:NMFS acknowledges this comment.

Comment 2:We applaud the restructured Observer Program that shares the costs of observer-collected catch and bycatch data, and observer deployment across all fisheries and vessel classes. This action will make the program equitable for all fishery participants and provide more statistically robust data.

Response:NMFS acknowledges this comment.

Comment 3:The restructured Observer Program is overdue and necessary for all sectors. We support the intent of the restructured Observer Program to remove bias and gather data from the currently unobserved fleet. We urge NMFS to implement a program that is not unreasonably burdensome, and does not substantially increase costs or interfere with existing business practices. It is imperative that the program respond quickly to the issues that will arise in covering an additional 1,200 vessels that will be included in the new program.

Response:NMFS acknowledges this comment.

Comment 4:On behalf of 300 individuals participating in fisheries in Prince William Sound and the GOA, most of whom operate vessels less than 60 ft. LOA, we oppose the proposed rule to restructure the Observer Program. We support the intent of the proposed rule. However, the proposed rule does not provide clear information on how the Observer Program will apply to small vessels.

Response:The preamble to the proposed rule contained a detailed explanation of how the Observer Program will apply to small vessels, specifically those vessels under 60 ft. LOA. The proposed rule details the instructions for small vessels to follow in order to find out whether and when they will be required to have an observer on board. Each year, the annual deployment plan will describe how observer coverage requirements will apply to small vessels. Small vessels are specifically addressed in the 2013 Observer Program Annual Deployment Plan. For 2013, small fixed gear vessels less that 40 ft LOA are in the “no selection” pool which means that they will not be selected for observer coverage. Based on the relative proportion of catch and fishing trips conducted by vessels less than 40 ft LOA, NMFS is not likely to deploy observers on vessels less that 40 ft LOA in the near future. NMFS would only expand coverage to vessels less than 40 ft. LOA if data collection needs warrant the deploying observers on those vessels. NMFS would make this decision in conjunction with the Council through the annual deployment plan process and after careful consideration of economic impacts and safety-related issues as well as public comments.

Information on the requirements that apply to small vessels is included in the Final Regulatory Flexibility Analysis (FRFA) in this final rule. NMFS has also posted a small entity compliance guide on the NMFS Alaska Region Web site (http://alaskafisheries.noaa.gov) as a plain language guide to assist small entities, including the small vessels referred to by the commenter, in complying with this rule. In addition, NMFS will conduct outreach via direct mailing and community meetings to continue to communicate as widely as possible how the requirements of the restructured Observer Program apply to small vessels. For more information on NMFS's outreach activities, please see the section below called “Outreach.”

Comment 5:The restructured Observer Program is a waste of money and should not be implemented since there are other methods to collect information on bycatch. Halibut vessels are required to retain all rockfish, so there is a record of rockfish bycatch in the Individual Fishing Quota (IFQ) fleet. Halibut IFQ skippers should be required to document bycatch in their logbooks.

Response:NMFS disagrees. Observer coverage is necessary in the halibutfisheries off Alaska to collect unbiased and representative data on catch and bycatch in the halibut fisheries. The current standard used by NMFS to best obtain unbiased fishery dependent information is to deploy human observers to observe fishing operations. Human observers can collect data (e.g.,obtain biological samples and reliably identify species of fish) in an independent manner that currently cannot be collected through other means. NMFS agrees that collecting information through logbooks for vessels not currently required to maintain logbooks may be helpful additional information for NMFS, but such a requirement is outside the scope of this action, and does not directly address the purpose and need for this action.

Comment 6:To address all potential sources of bias in observer-collected data, NMFS needs to control the deployment of observers in both the partial and full coverage categories to completely eliminate the potential conflict of interest between vessel owners/operators and observer providers.

Response:NMFS acknowledges that, despite modifications to the Observer Program through this final rule, sources of bias or uncertainty in observer data will still exist as there are potentially many contributing factors. However, a central component to the purpose and need for this action is to correct one source of potential bias by giving NMFS control over the deployment of observers in the partial coverage category.

The deployment of observers in the full coverage category does not have this same potential bias concern because all fishing trips are observed. In the full coverage category, vessels still choose which of the four currently certified and active observer providers to work with and those providers are prohibited from responding to industry requests for specific observers. NMFS believes that the active observer providers in Alaska are in compliance with this requirement based on available information. Thus, NMFS does not agree that further modifications are needed so that NMFS controls the deployment of observers in the full coverage category.

Comment 7:The charter halibut fleet is unobserved and does not contribute to the cost of managing the fishery. The charter fleet should be monitored with electronic monitoring (EM) to understand the level of halibut mortality associated with charter fishing operations and should be required to pay observer fees.

Response:The Council did not identify the extension of observer fees, observer coverage, or EM to the charter halibut fleet in the purpose and need for the observer restructuring action; therefore, it was not included in the alternatives analyzed. The Council and NMFS will continue to review the data needed to conserve and manage the fisheries under its authority and, if appropriate, may consider developing and analyzing alternatives that would include the charter halibut fleet in the Observer Program.

Comment 8:NMFS should disapprove or delay implementation of the provisions authorizing deployment of observers on vessels in the vessel selection pool until a more detailed deployment plan is made available for full public comment and an EM alternative is sufficiently developed to allow implementation of an integrated EM program. However, NMFS should implement the fee collection and trip selection pool provisions of the proposed rule at this time.

Response:NMFS disagrees. Bifurcating implementation of this final rule is not warranted or necessary to achieve the goals of the commenter. First, this final rule does not preclude public comments on the annual deployment plan. The 2013 Observer Program Annual Deployment Plan is being developed concurrently with this final rule and was available for public comment prior to the publication of this final rule. For example, public comments during the development of the 2013 Observer Program Annual Deployment Plan led NMFS to not require observer coverage for vessels less than 40 ft. LOA in 2013, thereby delaying observer coverage on those vessels in the vessel selection pool. However, all vessels in the vessel selection pool, regardless of size, will contribute to the fee assessment upon implementation of this final rule.

Second, NMFS is providing for the limited use of EM equipment during 2013. In the future, NMFS can integrate EM into the Observer Program. NMFS is committed to continuing to develop EM in an effort to advance technological tools available to collect data about the groundfish and halibut fisheries. For a more complete discussion of EM, please see the subheading below called “Electronic Monitoring.”

Comment 9:The analysis fails to address Section 303 of the MSA which requires that each FMP describe the fishery, including “the cost likely to be incurred in management” and the “actual and potential revenues from the fishery.”

Response:This section of the MSA refers to requirement for FMPs, and the FMPs do include sections that describe both the fishery revenues (Section 4.3.2) and the costs of management (Section 6.2.1) for the respective groundfish fisheries, as a whole. These sections are periodically updated, generally in conjunction with the programmatic reconsideration of the FMPs, and are intended to provide a programmatic perspective on the groundfish fisheries. An annual report of fisheries revenues is also prescribed in the FMPs, which is included in the Economic Status of the Groundfish Fisheries Off Alaska. This information is a component of the annual Stock Assessment and Fishery Evaluation report (available on the Alaska Fisheries Science Center's Web site athttp://www.afsc.noaa.gov/REFM/stocks/assessments.htm).

Comment 10:NMFS needs to consider, as a reasonable alternative, 100 percent observer coverage for trawl fisheries as the best available scientific tool to minimize bycatch and bycatch mortality. If the purpose of restructuring the Observer Program is to address problems in the quality of data collected from trawl vessels in the 30-percent coverage category, NMFS should substantially increase observer coverage for the trawl fleet. The goal should not be even coverage across the whole fishing fleet, but to be able to collect more information from fisheries of concern.

This is necessary to comply with National Standards 2 and 9 of the MSA, as well as requirements of the National Environmental Policy Act (NEPA) to consider significant environmental impacts of a proposed action.

Response:The purpose of restructuring the Observer Program is to reduce bias in observer data, authorize the collection of observer data in sectors that do not currently have any observer coverage requirements, allow fishery managers to provide observer coverage to respond to the management needs and circumstances of individual fisheries, and assess a broad-based fee that reflects the value a vessel or processor extracts from the fishery.

The Council and NMFS did consider applying 100 percent observer coverage to the trawl fisheries, and rejected that alternative for the reasons described here and in Section 3.2 of the analysis. Under the restructured Observer Program, vessels will either be in the partial coverage or full coverage category. The Council and NMFS decide which vessels or sectors belong in the full coverage category based primarily on NMFS' inseason management needs, requirements for monitoring andenforcing limited access privilege programs (LAPPs), or Congressional mandates (described in Section 3.2.7.2 of the analysis, and page 23329 of the preamble to the proposed rule). Based on this information, the Council and NMFS placed trawl catcher vessels that are not fishing with transferable quotas and PSC limits in the partial coverage category. Note that observer coverage levels for the partial coverage category are flexible and not codified in regulation. NMFS can adjust coverage levels for specific sectors as needed, and within budgetary constraints, to best meet the needs of science and management.

NMFS disagrees that 100 percent observer coverage for trawl fisheries is necessary to comply with National Standard 2. National Standard 2 requires that conservation and management measures be based upon the best available scientific information. The analysis that supports this action used the best scientific information available to design the restructured Observer Program.

NMFS also disagrees that 100 percent observer coverage is necessary to obtain unbiased catch and bycatch estimates, and has designed a sampling plan for the partial coverage category to improve the reliability of data collection from vessels within this category (see Section 3.2 of the analysis for additional detail). Each year, NMFS will use the best available scientific information in the annual deployment plan to determine the amount of observer coverage in the partial coverage category. The annual deployment plan process provides flexibility to adjust scientific sampling methods from one year to the next as new information is acquired and management needs change. This flexibility is crucial for employing the best available science for data collection and greatly improves NMFS's ability to collect unbiased information on bycatch. The 2013 Observer Program Annual Deployment Plan, prepared for the initial year of the restructured Observer Program, describes how NMFS will deploy observers on all types of fishing operations. The deployment plan process is described in detail in the proposed rule (77 FR 23330; April 18, 2012), Section 3.2 of the analysis, and the 2013 Observer Program Annual Deployment Plan. These changes in observer deployment are intended to reduce possible sampling bias and thereby represent an important step to provide the best available scientific information to managers. Additionally, by maintaining sampling probabilities equal within the vessel and trip selection pools, over time, observer coverage levels in a given sector will be proportional to the relative magnitude of the fishing effort in that sector.

National Standard 9 requires that management and conservation measures, to the extent practicable, minimize bycatch or bycatch mortality. NMFS disagrees that increased observer coverage, as suggested by the commenter, will, in and of itself, minimize bycatch. The implementation of the restructured Observer Program should reduce bias and improve the statistical reliability of observer data. Better total catch accounting will improve bycatch data and contribute to conservation efforts, such as limiting bycatch to PSC limits. These environmental benefits are evaluated in the analysis (Sections 3.2.6, 4.3, and 6.1).

Comment 11:The environmental assessment (EA) prepared for the proposed rule fails to comply with the requirements of NEPA because (1) beneficial environmental impacts from increased observer coverage are not evaluated, (2) uncertainty in bycatch estimates is not evaluated, and (3) the public does not have meaningful opportunity to comment on aspects of the program that are delegated to the annual deployment plan review process. NMFS needs to establish a clear process that ensures public comment on the annual deployment plan. The proposed approach to have the plan presented to the Council in October of each year limits opportunity for meaningful public participation and does not provide sufficient time to adequately consider and comment on the deployment plan.

Response:NMFS disagrees that the EA fails to comply with the requirements of NEPA. The EA evaluates the environmental benefits of increased observer coverage and an improved scientific sampling design in Section 4.3.1. The EA evaluates the uncertainty in the bycatch estimates and how the restructured Observer Program reduces this uncertainty in Section 3.2. Uncertainty in the bycatch estimates will also be evaluated in the annual deployment plans, as explained in the 2013 Observer Program Annual Deployment Plan. Additionally, the aspects of the program deferred to the annual deployment plan were analyzed in Section 3.2 of the analysis, and the public had the opportunity to comment on that analysis during its development through the Council and rulemaking processes for this action.

The public does have a meaningful opportunity to comment on the annual deployment plans. NMFS has established a schedule for release, review, and discussion of the annual deployment plan that will provide the public with numerous opportunities to provide input to the Council and NMFS on the deployment plan. NMFS will release the annual deployment plan by September 1 of each year so that it is available for public review prior to the Plan Teams' meetings. Each year, the public will also have the opportunity to comment on the annual deployment plan when the Council reviews the annual report and annual deployment plan at its annual October meeting. The 2013 Observer Program Annual Deployment Plan was released for public comment in September 2012 and reviewed by the Council at its October 2012 meeting. Starting in 2013, the public will also have the opportunity to comment when NMFS presents an analysis of the deployment plan and issues raised at the June Council meeting. In addition, the public may comment directly to NMFS in writing on the deployment plan or any other aspect of NMFS' responsibilities or projects at any time.

Safety

Comment 12:A discretionary provision in section 303(b)(8) of the MSA allows FMPs to require that observers be carried on board fishing vessels, unless the facilities of the vessel are “so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized.” Most of the small vessels in the fixed gear fleet do not have operable toilets, an extra bunk, or hot water, and may not meet these criteria.

Placing an observer on a small vessel creates safety issues that were not sufficiently addressed in the analysis. Longstanding safety concerns include: (1) Limited deck space on small vessels; (2) hazards created by tight groundline; (3) the observer displacing traditional positions at the rail to assist the roller man; (4) distractions caused by an observer placed in front of the roller man; (5) increased pitch and roll on small vessels leading to seasickness and risk to observers and crew; (6) limited available space in life rafts; and (7) increasing the risk that vessels will fish in marginal conditions in order to avoid losing observer coverage.

Response:NMFS disagrees that the presence of an observer presents an additional risk to the safe operation of small vessels or that the analysis did not adequately address safety concerns associated with this action. This final rule at § 679.51(e)(1) maintains existing regulations that all vessels subject to the requirement to carry an observer maintain safe conditions on the vessel.This requirement is intended to ensure that safety issues, such as those raised by the commenter, are addressed by the vessel operator. In addition, NMFS trains observers to work safely at sea, and the training addresses the issues noted in this comment.

Section 6.1 of the analysis addressed consistency with National Standard 10 (section 301(a)(10) of the MSA) in general terms. National Standard 10 requires that conservation and management measures shall, to the extent practicable, promote the safety of human life at sea. Section 3.2.7.3 of the analysis considered safety issues and specifically addressed the types of factors that would be considered in determining whether to deploy an observer on a vessel in the vessel selection pool (defined in the 2013 Observer Program Annual Deployment Plan as fixed gear vessels greater than or equal to 40 ft. LOA and less than 57.5 ft. LOA). Vessels in the vessel selection pool are the participants in the fixed gear fleet referred to by the commenter. The analysis determined that the more flexible contracting model allows NMFS to adequately consider safety issues when deploying observers on vessels that may be difficult or dangerous to work on, recognizing that there are cases in which a vessel's deck layout or operations may cause safety and logistical concerns due to lack of suitable workspace. The analysis lists the key factors NMFS would consider in determining whether to place an observer on a vessel in the vessel selection pool. Key factors include, but are not limited to, the amount of available deckspace, the size of the crew, the weather at the time of deployment, and the adequacy of berthing space.

There are many ways in which a vessel can adapt to safely accommodate an observer. However, if a vessel operator believes that the vessel is unsafe to carry an observer, he or she may identify their reasons and request that NMFS release them from carrying an observer. Requests for release from observer coverage would prompt a vessel inspection by NMFS to assess the safety and/or logistical concerns. For a more complete discussion of releasing a vessel from observer coverage, please see the subheading below called “Release from Observer Coverage.”

NMFS acknowledges that there is an increased risk to observers due to increased observer days at sea in Alaska and that sea-going vessels engaged in fishing have inherent known workplace risks. Recognizing that some risks to observers may be exacerbated on smaller vessels, NMFS is requiring the observer provider to place only experienced observers on vessels in the vessel selection pool. Specifically, section C.2.2.2.1 of the “Solicitation Request for Proposal AB133F-12-RP-0020” states that “* * * observers deployed to vessels in the vessel selection pool must have prior experience as an observer in the Groundfish Observer Program and must be in good standing with the Groundfish Observer Program; this requirement doesn't apply to observers going to vessels in the trip selection pool.” A copy of the entire solicitation is available online athttps://www.fbo.gov/index?s=opportunity&mode=form&id=dc897646db9de61f36682e5d32140c76&tab=core&_cview=1

Comment 13:Vessels less than 60 ft. LOA were exempted from previous human observer programs, in part because of safety concerns.

Response:NMFS disagrees. The 1990 Observer Plan first established the length-based category of vessels which would not be requested to carry an observer (i.e.,vessels less than 60 ft. LOA). Limiting observer coverage to vessels 60 ft. LOA or greater was based on a determination that the information that would be received from observers on these vessels would not justify the costs imposed on vessel operators or the costs that would be imposed on NMFS. This determination was based on an assessment of the costs of deploying an observer using the only available observer procurement method at that time, which required vessels to contract directly with observer providers to meet coverage levels fixed in regulation. The analysis developed for, and the proposed rules to implement, Amendment 18 to the GOA FMP (54 FR 50386; December 6, 1989) and Amendment 13 to the BSAI FMP (55 FR 4839; February 12, 1990) that first established length-based observer requirements specifically assumed that, at a minimum, all vessels greater than 50 ft. LOA would be able to accommodate an observer.

Comment 14:Various sections of the MSA require consideration of safety (e.g.,National Standard 10, section 303, section 313). The placement of observers on board vessels causes safety issues by replacing experienced crew members and by interfering with vessel operations and thereby violating National Standard 10. The National Standard 10 guidelines (§ 600.355) identify ways to reduce adverse safety impacts, including “[a]voiding management measures that require hazardous at-sea inspections or enforcement if other comparable enforcement could be accomplished as effectively” (50 CFR 600.355(e)(5)).

Response:NMFS disagrees. National Standard 10 states that conservation and management measures shall, to the extent practicable, promote the safety of human life at sea (Section 303(a)(10) of the MSA). Neither National Standard 10 nor the guidelines preclude the placement of observers, and NMFS does not agree that the placement of observers on board vessels causes safety issues, as there are many ways in which a vessel can adapt to safely accommodate an observer.

Vessels that carry observers are required to have a valid U.S. Coast Guard (USCG) Commercial Fishing Vessel Safety Decal, which ensures the vessel is current and in compliance with USCG safety equipment requirements. Compliance with the safety requirements is not a new requirement of this rule, as all vessels, with few exceptions, must comply with the USCG requirements, regardless of whether they carry an observer (see Section 3.2.8 of the analysis). Observers inspect the vessel when they board to ensure that the required safety equipment is in place, and they will not remain on board a vessel where the decal is absent or the equipment is no longer present or current.

During and after a trip on a vessel, observers will report safety concerns to NMFS and the USCG and will document any marine casualties that have occurred, following the USCG definition of marine casualty. NMFS' experience through observer programs has been that the presence of an observer has improved safety awareness within the observed fleets, increased the issuance of USCG safety inspections, improved reporting of marine casualties, and rarely, but importantly, brought manifestly unsafe vessel conditions to the attention of USCG personnel who were authorized to take corrective action. Additionally, observers board vessels with their own safety gear, including a currently inspected survival suit and personal locator beacon.

Comment 15:The proposed rule may reduce safety if vessels in the trip selection pool are prompted to fish marginal or un-safe weather to avoid losing their observer for that trip to another vessel. This impact on safety is contrary to previous Council actions and National Standard 10 of the MSA.

Response:The selection for observer coverage does not compel an operator to fish in bad weather. NMFS expects that vessel operators will continue to make prudent decisions regarding fishing in weather regardless of the observer coverage requirement.

NMFS recognizes that weather may delay fishing trips and factored that into the design of the deployment system balanced with the knowledge that some operators will attempt to avoid meeting the required coverage. For vessels in the trip selection pool, if the operator has complied with the notification requirements at § 679.51(a)(1), this final rule at § 679.51(a)(1)(ii)(C)(4) provides a 48-hour window for delaying a trip from scheduled departure. If a departure must be delayed beyond 48 hours, that trip could be cancelled in coordination with the observer provider and an observer will be required on that vessel's next trip.

Comment 16:Small boat operations in the GOA and BSAI are constrained by weather. During the spring and fall, halibut vessels often wait in port for 7 to 10 days for good weather and often leave on short notice to take advantage of favorable weather. Failure to take advantage of a weather window can be costly. Additionally, flights to remote ports in Alaska are routinely canceled and delayed due to poor weather conditions. As such, deploying observers on vessels in the vessel selection pool will be extremely problematic and may cause costly interruptions to fishing operations. The proposed rule is silent relative to accommodating the small boat fleet on this issue.

Response:NMFS recognizes that weather delays in fishing do occur, and the Council and NMFS considered this in the design of the program and in the proposed and final rule. NMFS expects that small boat operations will be more susceptible to weather delays, and that there will be a subsequent cost to the overall program as a result. NMFS also agrees that flights to ports in Alaska can be challenging due to weather. This challenge is most acute in remote areas. However, NMFS does need data from remote areas and small vessels and will attempt to observe remote locations when a vessel or trip operating out of a remote area is selected.

The proposed rule and final rule establish a process to address small vessel weather delays. Vessels in the vessel selection pool that are selected for observer coverage will coordinate with the observer provider to ensure that observers are available when and where vessels are departing for fishing. The process of coordinating directly with the observer provider will enable flexibility for vessels and observer providers to work together regarding weather delays. This process is similar to the process that vessels in the full coverage category currently undergo with observer providers. Based on that experience, NMFS does not anticipate costly interruptions to fishing operations or releases from observer requirements due to weather delays. If no observer is available, the observer provider will coordinate with NMFS Fisheries Monitoring and Analysis Division. NMFS Fisheries Monitoring and Analysis Division may release the vessel from the observer coverage requirement for that trip under § 679.51(a)(1)(iii) of this final rule.

Standardized Bycatch Reporting

Comment 17:Amendments 86/76, the proposed rule, and the analysis are not consistent with the requirements of section 303(a)(11) of the MSA that the FMPs establish a standardized bycatch reporting methodology.

Response:NMFS disagrees. The standardized reporting methodology is unaffected by this action and is outside the scope of this rulemaking. MSA section 303(a)(11) requires that an FMP establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery. Bycatch in the BSAI and GOA groundfish fisheries is estimated through the Catch Accounting System (CAS), which is described in Section 3.2.4.2 of the BSAI FMP and the GOA FMP. The CAS is the NMFS Alaska Region's standardized bycatch reporting methodology. The methods NMFS uses to estimate bycatch through the CAS are further described in “Cahalan, J., J. Mondragon, and J. Gasper. 2010. Catch Sampling and Estimation in the Federal Groundfish Fisheries Off Alaska. U.S. Dep. Commer., NOAA Tech. Memo.NMFS-AFSC-205,42 p.” This publication is available on the NMFS Alaska Region's Web site (http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-205.pdf).

In addition, NMFS' estimates of bycatch in the groundfish fisheries managed under the FMPs are reported on the NMFS Alaska Region's Web site (http://www.alaskafisheries.noaa.gov/sustainablefisheries/catchstats.htm) and in periodic reports such as: “National Marine Fisheries Service. 2011. U.S. National Bycatch Report. W. A. Karp, L. L. Desfosse, S. G. Brooke, Editors. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-F/SPO-117E, 508 p.” (This publication is available online:http://www.nmfs.noaa.gov/by_catch/bycatch_nationalreport.htm).

As described in the FMPs, the CAS uses observer data and data submitted by the fishing industry to estimate prohibited species catch and at-sea discards, which are two components of bycatch. The use of observer data is further described in Section 3.2.4.1 of the BSAI FMP and the GOA FMP, which were amended by Amendments 86/76 to reflect restructuring of the observer program. The purpose of Amendments 86/76 is to improve the quality of data collected by observers in the groundfish and halibut fisheries off Alaska. Observer data are the primary source of information used by NMFS to estimate bycatch. Therefore, Amendments 86/76 and this final rule improve NMFS' ability to estimate bycatch, strengthen the standardized bycatch reporting methodology, and support the intent of section 303(a)(11) of the MSA.

Comment 18:A poorly designed standardized bycatch reporting methodology could result in significant environmental harm by failing to identify bycatch issues and the implications for at-risk populations such as halibut and Chinook salmon. The proposed rule does not adequately address these concerns, and the potential for significant environmental harm must be considered in an Environmental Impact Statement (EIS) rather than an EA.

Response:NMFS agrees that the standardized bycatch reporting methodology is integral to identifying bycatch issues and implications of groundfish fisheries for at-risk populations and has spent considerable effort in developing the methodology. However, as explained in the response to Comment 17, the standardized bycatch reporting methodology for the groundfish fisheries off Alaska is a separate matter from this observer restructuring action. Amendments 86/76, as implemented by this final rule, reduce bias and improve the quality of data collected by observers in the groundfish and halibut fisheries off Alaska. NMFS will use these data in the standardized bycatch reporting methodology to improve bycatch estimates.

NMFS prepared a FONSI (seeADDRESSES) for restructuring the Observer Program that describes in more detail why NMFS determined that the action will not significantly impact the quality of the human environment. Based on this FONSI, an environmental assessment is the appropriate NEPA analysis for this action and preparation of an EIS is not warranted.

Comment 19:Bycatch reporting methodologies under National Standard 9 of the MSA require a detailed analysis of data collection needs from different fisheries. However, the analysis exhibits a “one-sized-fits-all approach” to bycatch reporting and does not demonstrate that NMFS took a hard look at specific fishery sectors. NMFS shouldprovide further supporting analysis to discuss and compare data gaps and uncertainties from each fishery, define specific research objectives, and then assess what monitoring methods are most appropriate. If NMFS had adequately analyzed and prepared a bycatch assessment methodology, the inescapable conclusion would be that an EM program would best achieve data collection objectives for the small boat fixed gear fleet. The failure to consider fishery-specific needs is a major flaw of the proposed rule and its supporting analysis.

Response:NMFS disagrees. NMFS has conducted a detailed analysis of bycatch reporting methodologies, as described in response to Comment 17. The restructured Observer Program will improve the data collected and the analysis prepared for this action considers the fishery-specific data collection needs. Further consideration of fishery-specific data collection needs will also be addressed each year in the annual deployment plan.

NMFS disagrees that EM in its current form would best achieve data collection objectives for the small boat fixed gear fleet. NMFS is committed to continuing to develop EM in an effort to advance technological tools available to collect data about the groundfish and halibut fisheries. For a more complete discussion of EM, please see the subheading below titled “Electronic Monitoring.”

Comment 20:Develop and implement a method to obtain statistically reliable catch and bycatch estimates, particularly the bias in catch and bycatch estimates that would result from not observing the exempted vessels and gear types (i.e.,those using jig gear or those less than 40 ft. LOA using pot or hook-and-line gear).

Response:The scope of this action is limited to the funding and deployment of observers. The methods through which these data are used to make estimates are not part of Amendments 86/76 or this final rule. Therefore, this action does not prescribe how NMFS uses observer information to estimate bycatch, such as the use of specific statistical estimators, as discussed in the response to Comment 17.

However, NMFS agrees that it is important to understand bias associated with not selecting particular types of vessels in the partial coverage stratum. Chapter 3 and Appendix 10 of the analysis, and the 2013 Observer Program Annual Deployment Plan, describe the rationale for designating vessels in the partial coverage category that will not be observed in the initial year(s) of the program (vessels less that 40 ft LOA). The designations would likely change over time and bias would be one of the elements that NMFS will likely evaluate to make these decisions in the future. The analysis also provides a detailed description of bias in Chapter 3 and Appendix 8, and describes how NMFS will deploy observers to improve the data on fishing operation. These changes in observer deployment are intended to reduce possible sampling bias and thereby represent an important step to provide the best available scientific information to managers.

Annual Deployment Plan

Comment 21:The Council should have an opportunity to review and encourage consideration of its priorities for observer coverage through the annual deployment plan. The Council should not be constrained to only influencing the observer coverage through subsequent rulemaking as implied in the proposed rule preamble.

Response:As described in the Council's motion and the preamble to the proposed rule, each year NMFS will prepare a report that reviews the progress of the Observer Program, describes the financial aspects of the program, and includes a plan for observer coverage rates for the partial coverage category for the upcoming year (the annual deployment plan). The Council will review the annual deployment plan, monitor the program's progress, provide input to the annual deployment plan, and recommend appropriate adjustments to the program that would be implemented through rulemaking. The Council may also request that the Observer Advisory Committee (OAC), Groundfish and Crab Plan Teams, and Scientific and Statistical Committee review and comment on the annual deployment plan.

NMFS will release the annual deployment plan by September 1 of each year so that it is available prior to the September meetings of the Groundfish and Crab Plan Teams. NMFS will then present the annual deployment plan to the Council at its October meeting. Starting in 2013, NMFS also will prepare an annual report that analyzes the prior year's annual deployment plan and present that report at the June Council meeting. The time between June and October will allow the Council, public, and NMFS the opportunity to evaluate deployment methods for the upcoming year using information from the prior year's deployment.

Some aspects of observer deployment can be adjusted through the annual deployment plan, including the assignment of vessels to the selection pools or the allocation strategy used to deploy observers in the partial coverage category. To adjust the annual deployment plan, NMFS will analyze the scientific data collected and identify areas where improvements are needed to (1) collect the data necessary to manage the groundfish and halibut fisheries, (2) maintain the scientific goals of unbiased data collection, and (3) accomplish the most effective and efficient use of the funds collected through the observer fee. In addition, the Council may provide NMFS input on the priority of particular data collection goals and NMFS will consider adjustments to observer deployment that achieve those goals.

Some adjustments to observer coverage will require regulatory amendments. For example, moving vessels or processors from the partial coverage category to the full coverage category, or vice versa, will require a regulatory amendment because the assignment of vessels to the full coverage category is specified in regulation based on criteria developed by the Council. The assignment of vessels or processors to a particular coverage category has economic impacts on the vessel owner or processor industry members, on the amount of fees available to fund the partial coverage category, and on the contract NMFS has established for observer deployment. The rulemaking process allows for these impacts to be analyzed and for the public to comment prior to implementation of a change in coverage categories.

Comment 22:We support the approach described in the proposed rule for vetting the annual deployment plan. The Council would have an opportunity to provide input on the annual report and the annual deployment plan, but would not formally approve or disapprove it.

Response:NMFS acknowledges this comment.

Comment 23:NMFS should establish observer coverage performance standards based on (1) precision targets for protected species catch estimates, which are no lower than a coefficient of variation (CV) of 30 percent; and (2) desired strata variances (CVs), rather than uniform coverage prescriptions that are driven by NMFS' budget. Budget constraints may limit NMFS' ability to meet its performance standards, but NMFS should be mindful of those standards and establish a prioritization process to achieve them even when funding is limited.

Response:NMFS agrees that performance standards, such as theacceptable amount of error (precision), represent an important and necessary step towards a fully optimized deployment of observers and is an appropriate goal. However, performance standards are not part of this final rule and are not required to implement a restructured Observer Program or achieve the purpose and need for this action.

However, NMFS will be able to use the information collected through this restructured Observer Program to develop performance standards after examining the data resulting from observer deployment under this final rule. As specified in Section 3.2.10 of the analysis, there are three obstacles towards implementing a fully optimized Observer Program: A lack of prior data, the definition of adequately ranked (weighted) performance standards, and the prioritization of objectives. The analysis also recognized the fact that the level of sampling necessary to generate a desired level of precision in an estimate varied widely depending on (among other things) the rarity of the item in question. Until NMFS has defined performance standards, NMFS plans to assign observers with equal probability to vessels or trips within a pool. This gives NMFS the ability to estimate the “observer deployment” effect, increase the accuracy of catch estimates, and increase the effectiveness of observer deployment and catch estimation processes. Please see the 2013 Observer Program Annual Deployment Plan for more information on this issue (seeADDRESSES).

Comment 24:The Council recently passed a motion to require 100 percent observer coverage to improve estimates of Tanner crab (Chionoecetes bairdi) bycatch in two areas of the GOA. Although the GOA catcher vessel trawl fleet is in the partial observer coverage category, NMFS must develop a method to have higher observer coverage in these areas.

Response:In October 2010 and April 2012, the Council recommended Amendment 89 to the GOA FMP. NMFS is preparing the notice of availability and proposed rule for that action. If approved, Amendment 89 would close an area northeast of Kodiak Island to nonpelagic trawl gear and require gear modifications for nonpelagic trawl gear to reduce bycatch of Tanner crab in the GOA.

The Council's October 2010 motion on Amendment 89 also included a recommendation to increase observer coverage to 100 percent for vessels using pot and nonpelagic trawl gear in areas of the Central GOA identified as important Tanner crab habitat. The Council did not know at the time it passed its final motions on Amendment 89 and this action which of the Council's recommendations might be approved and implemented first. The Council included the increased observer coverage requirements in Amendment 89 in case a restructured Observer Program was not approved.

The Council did not include 100 percent observer coverage requirements for special management areas in its recommendations for restructuring the Observer Program, recognizing that NMFS would make decisions about the deployment of observers in the partial coverage category through the annual deployment plan.

Therefore, this final rule does not establish observer coverage requirements for special management areas, like the areas identified in Amendment 89, and it does not direct that these areas be established in the annual deployment plan. Rather, this final rule provides NMFS with the ability to use a deployment plan to address deployment bias and therefore improve the underlying data used for estimating bycatch and discards of all species in the groundfish and halibut fisheries. Addressing this source of bias will improve the accuracy of data used to estimate Tanner crab bycatch in the GOA groundfish fisheries as a whole. In the future, the Council can request an analysis of the data used to estimate Tanner crab bycatch in the GOA groundfish fisheries. Based on that analysis, the Council could recommend adjustments to the deployment plan to improve these estimates.

Comment 25:Gathering the best available scientific information to manage all North Pacific fisheries should be the goal of the annual deployment plan based on the available funds. Monitoring objectives should be the nexus for the annual deployment plan and not a means of hassling a particular gear type or particular fishery within a geographic area due to the latest political advocacy or media rhetoric. The ability to change the deployment plan annually allows for adjustments based on observer data needs if warranted.

Response:NMFS acknowledges this comment.

Deploying Observers on Vessels in the Partial Coverage Category

Comment 26:We support the proposed approach that NMFS would auto-enter all partial coverage category vessels that are designated on an Federal Fisheries Permit (FFP) and all catcher vessels that are not designated on an FFP but that land sablefish IFQ or halibut IFQ or halibut Community Development Quota (CDQ) in a fishing year into ODDS. Since the vast majority of fishery participants are the same each year, the auto-selection removes the burden that everyone must register each year and narrows the registration focus to new participants only. The other positive for this approach is that NMFS will notify, in writing, operators of vessels that are auto entered into ODDS for the upcoming fishing year to indicate the applicable selection pool for his or her vessel (trip or vessel) and instructions for communicating with the Observer Program for the upcoming year. Because NMFS is selecting the participants and communicating directly with those selected, this is a great method for outreach to fishing vessels.

Response:NMFS acknowledges this comment. Note that, in the proposed rule, NMFS called this system the “Observer Declaration and Deployment System (Deplo