AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to implement catch handling and monitoring requirements to allow Pacific halibut (halibut) bycatch to be sorted on the deck of trawl catcher/processors (C/Ps) and motherships participating in the non-pollock groundfish fisheries off Alaska. Halibut bycatch must be discarded and returned to the sea with a minimum of injury in the directed groundfish fisheries in the Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) management areas. This final action includes additional minor regulatory changes that improve consistency and clarity of existing regulations, removes unnecessary and outdated regulations, and updates cross references to reflect these new regulations. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan (FMP) for Groundfish of the GOA (GOA FMP), the FMP for Groundfish of the BSAI Management Area (BSAI FMP), and other applicable law.

DATES:

This rule is effective November 14, 2019.

ADDRESSES:

Electronic copies of the Regulatory Impact Review (referred to as the “Analysis”), the Categorical Exclusion prepared for this action, and the proposed rule may be obtained from https://www.regulations.gov or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/​region/​alaska.

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; by email to OIRA_Submission@omb.eop.gov; or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Joseph Krieger, 907-586-7228 or joseph.krieger@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Authority for Action

NMFS manages the groundfish fisheries in the exclusive economic zone under the GOA FMP and under the BSAI FMP. The North Pacific Fishery Management Council (Council) prepared these FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the Magnuson-Stevens Act are located at 50 CFR parts 600 and 679.

NMFS published the proposed rule for this action on April 16, 2019 (84 FR 15566), with comments invited through May 16, 2019.

NMFS received two letters with eight distinct comments during the comment period. A summary of these comments and the responses by NMFS are provided under the heading “Response to Comments” below.

II. Background

The International Pacific Halibut Commission (IPHC) and NMFS manage halibut fisheries through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (16 U.S.C. 773-773k). The IPHC adopts regulations governing the target fishery for halibut under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). For the United States, regulations governing the fishery for Pacific halibut developed by the IPHC are subject to acceptance by the Secretary of State with concurrence from the Secretary of Commerce. After acceptance by the Secretary of State and the Secretary of Commerce, NMFS publishes the IPHC regulations in the Federal Register as annual management measures pursuant to 50 CFR 300.62. The final rule implementing IPHC regulations for 2019 published on March 14, 2019 (84 FR 9243).

NMFS has implemented regulations that limit the amount of halibut bycatch in the directed groundfish fisheries in the BSAI and GOA. Regulations establish specific limits on the amount of halibut bycatch, prohibited species catch (PSC) limits, in specific groundfish fisheries in the BSAI and GOA. These PSC limits are based on the amount of halibut discard mortality estimated under specific monitoring procedures.

In recent years, catch limits for the commercial halibut fishery in the BSAI and GOA have declined in response to changing halibut stock conditions. Most recently, NMFS implemented Amendment 111 to the BSAI FMP (81 FR 24714, April 27, 2016) and Amendment 95 to the GOA FMP (79 FR 9625, February 20, 2014) to further reduce PSC limits for Pacific halibut in the BSAI and GOA groundfish fisheries.

In this action, NFMS implements regulations for catch handling and monitoring requirements to allow halibut bycatch to be sorted on the deck of trawl C/Ps and motherships when operating in the non-pollock groundfish fisheries off Alaska. The monitoring requirements have been developed and tested on vessels participating in the non-pollock groundfish fisheries. The harvest of non-pollock groundfish fisheries may be limited by existing halibut PSC limits, and participating vessels are operationally different than vessels participating in pollock fisheries. As such, the scope of this action is limited to vessels participating in the non-pollock groundfish fisheries. This final rule does not modify existing halibut PSC limits, but it does allow halibut to be discarded faster than allowed under current monitoring requirements, which could reduce halibut discard mortality. Reducing halibut discard mortality could maximize prosecution of the directed non-pollock groundfish fisheries that otherwise might be constrained by halibut PSC limits, and may also benefit vessels participating in the directed halibut fishery by returning more live halibut to the water.

This final rule will allow any trawl C/P or mothership operating in the non-pollock groundfish fishery to participate in deck sorting provided it adheres to all requirements. Three categories of C/Ps and motherships are most likely to participate in deck sorting in the non-pollock groundfish fisheries as their existing monitoring requirements are most similar to those included in this action: (1) Vessels operating in the non-pollock groundfish fisheries in the BSAI and GOA under the Amendment 80 Program (72 FR 52667, September 14, 2007); (2) vessels harvesting non-pollock groundfish in the BSAI under the Western Alaska Community Development Quota (CDQ) Program; and (3) C/Ps and motherships harvesting non-pollock groundfish in the BSAI trawl limited access sector (TLAS).

A. The Affected Fisheries

1. Amendment 80 Sector

The BSAI non-pollock groundfish fishery has been prosecuted mostly by a fleet of trawl C/Ps. These C/Ps are managed under the Amendment 80 Program. The Amendment 80 Program is a catch share program that allocates several BSAI non-pollock trawl species among fishing sectors, and facilitates the formation of harvesting cooperatives in the non-American Fisheries Act (AFA) trawl C/P sector. The AFA is a limited access program for Bering Sea pollock implemented by statute in 1998 (Pub. L. 105-277, 16 U.S.C. 1851 statutory note).

The Amendment 80 sector is composed of 28 C/Ps with history of harvesting non-pollock groundfish in the BSAI. The Amendment 80 cooperatives and vessels receive allocations of Pacific halibut and crab PSC limits while fishing in the BSAI to constrain bycatch, or unintended take, of these species while harvesting groundfish. These voluntary harvest cooperatives coordinate use of the target allocations, incidental catch allowances, and prohibited species allocations among active member vessels.

Some Amendment 80 vessels also participate in the Central GOA Rockfish Program (Rockfish Program). This final rule allows for vessels to deck sort halibut PSC while participating in the Rockfish Program (76 FR 81248, December 27, 2011).

2. BSAI TLAS

When the Amendment 80 Program was implemented, it allocated specific amounts of Amendment 80 species, including PSC species, to non-Amendment 80 vessels that comprise the BSAI TLAS. The BSAI TLAS includes AFA C/Ps, AFA catcher vessels, and other non-AFA catcher vessels. The BSAI TLAS comprises all the trawl vessels in the BSAI except the Amendment 80 C/Ps. The BSAI TLAS fishery provides harvesting opportunities of some Amendment 80 species by non-Amendment 80 vessels.

Under this final rule, AFA vessels will not be eligible to participate in halibut deck sorting when operating in pollock fisheries. However, vessels participating in the BSAI TLAS fishery—which may include AFA vessels—may choose to participate in halibut deck sorting when operating in non-pollock fisheries in the BSAI TLAS.

3. The CDQ Sector

The CDQ sector includes all trawl and non-trawl vessels that harvest groundfish under the CDQ Program. The CDQ Program consists of six different non-profit managing organizations (CDQ groups) representing different geographical regions in Alaska. Each CDQ group receives an apportionment of the halibut PSC limit as halibut prohibited species quota (PSQ), which is a specific amount of halibut that vessels fishing for that CDQ group may use in a year. The CDQ group manages the use of its halibut PSQ apportionment. The CDQ group has the responsibility to ensure that the vessels fishing its CDQ groundfish allocation do not use halibut PSQ in excess of the amount of the CDQ group's halibut PSQ.

B. Halibut PSC Management

Halibut PSC management is described in the preamble to the proposed rule for this action (84 FR 15566, April 16, 2019).

III. Current Monitoring Requirements

Current monitoring requirements are designed to allow observers to collect data and monitor for compliance as necessary for the conservation, management, and scientific understanding of the non-pollock groundfish trawl fisheries in the BSAI and GOA. Observers have sampled catch in the Alaska Federal groundfish fisheries since the early 1990s and have routinely collected lengths, weights, and viability metrics of the sampled catch. Amendment 80 C/Ps, C/Ps acting as motherships, and C/Ps managed under the Rockfish Program are required to carry two observers, one of which must have a lead level 2 endorsement for a C/P using trawl gear or mothership. A summary of monitoring requirements follows. Additional information is in the preamble to the proposed rule for this action (84 FR 15566, April 16, 2019).

NMFS uses observer data to provide reliable estimates of allocated species in catch share fisheries and reliable estimates of total catch and bycatch in non-catch share fisheries. Since 1999, vessels participating in groundfish catch share programs have been required to comply with additional monitoring requirements. Monitoring requirements may be imposed by NMFS or developed in consultation with the Council. These monitoring requirements are necessary because of the unique incentives to misreport catch that are created by the act of assigning quota, and therefore accountability, to individual entities (cooperatives or vessels). Vessels affected by this action participate in catch share and non-catch share fisheries including Amendment 80 Program, BSAI TLAS, and groundfish CDQ fisheries. Observer information is used in the NMFS Catch Accounting System to monitor catch of target and bycatch species on a daily basis. Current monitoring requirements for C/Ps and motherships participating in the non-pollock groundfish fisheries off Alaska vary, depending upon the specific fishery in which the vessel is participating. Each catch share program includes monitoring requirements designed to ensure that observer data produce reliable catch and bycatch estimates of allocated species.

A. Monitoring and Enforcement Tools

Before catch is sorted or discarded on any trawl vessel, at-sea observers must collect data necessary to estimate halibut and groundfish catch amounts. Current halibut discard requirements state that an observer must first have access to sample the catch prior to sorting and discard. Observers sample the species composition of catch, and NMFS estimates the ratio of halibut to groundfish from each haul sampled and applies it to the official total catch of groundfish for each sampled haul. Once the estimated halibut catch for every haul is calculated, discard mortality rates (DMRs) are applied to calculate the amount of halibut PSC mortality accrued.

B. Equipment Requirements

Current vessel equipment requirements are described in the preamble to the proposed rule for this action (84 FR 15566, April 16, 2019).

IV. Need for This Action

Amendment 111 to the BSAI FMP, published on April 27, 2016 (81 FR 24714), reduced halibut PSC limits in the BSAI groundfish fisheries in four groundfish sectors: The Amendment 80 sector; the BSAI TLAS (all non-Amendment 80 trawl fishery participants); the non-trawl sector (primarily hook-and-line C/Ps); and the CDQ Program. The purpose of Amendment 111 was to decrease BSAI halibut PSC to the extent practicable by the BSAI groundfish fisheries while continually achieving optimum yield from the BSAI groundfish fisheries.

Similarly, Amendment 95 to the GOA FMP, published on March 24, 2014 (79 FR 9625), reduced halibut PSC limits in the GOA groundfish fisheries in three sectors: The hook-and-line C/P sector, the hook-and-line catcher vessel sector, and the trawl sector. The purpose of Amendment 95 was to minimize halibut bycatch in the GOA to the extent practicable, while at the same time achieving optimum yield from the GOA groundfish fishery.

By reducing halibut PSC, the final rules for Amendment 111 and Amendment 95 aimed to increase harvest opportunities for the directed halibut fisheries. However, these reductions increased the potential for the halibut PSC limit to constrain the harvest of allocated species in groundfish fisheries, thereby potentially reducing the overall economic benefit of the fisheries if the directed fisheries were closed prior to harvesting all the allocated species.

Under current monitoring requirements for most vessels participating in the non-pollock groundfish fisheries, all halibut must be weighed along with the rest of the unsorted catch and made available for sampling by an observer prior to discard. This means that all halibut enter the fish bin and are weighed in the factory prior to observer data collection and discard, resulting in high DMRs. For several years, experiments conducted through Exempted Fishing Permits (EFPs) have tested procedures to reduce halibut discard mortality by sorting. Results from these EFPs suggest that substantial amounts of halibut can be returned to the water alive and provide for additional harvest opportunity for the directed halibut fisheries. See Section 1.3.5 of the Analysis for additional detail on halibut deck sorting EFPs.

In order to accurately account for halibut sorted on deck during EFP fishing, additional catch handling and monitoring requirements were necessary to ensure that an observer had access to all halibut sorted on deck, as well as all other catch in the factory, for the collection of data and sampling. These requirements were necessary to ensure that observer data resulted in reliable estimates of catch and bycatch, as well as mitigated safety risks due to additional time spent on deck.

V. This Final Rule

This final rule implements catch handling and monitoring requirements to allow halibut PSC to be sorted on the deck of trawl C/Ps and motherships participating in the non-pollock groundfish fisheries off Alaska. NMFS and EFP participants worked together to develop and test the monitoring and enforcement requirements required during EFP fishing and implemented with this final rule. These requirements allow halibut to be returned to the water faster while also ensuring that observer data continue to result in reliable estimates of halibut incidental catch rate and viability. Participation in halibut deck sorting is voluntary. However, any vessel choosing to participate in halibut deck sorting will be required to comply with all applicable monitoring requirements.

This final rule adds subpart K, § 679.120—Halibut Deck Sorting, to part 679 to specify halibut deck sorting catch handling and monitoring requirements. Additionally, existing catch handling and monitoring regulations are modified as necessary to be consistent with the catch handling and monitoring requirements included in this final rule. In addition to the primary action, this final rule also changes observer sampling station inspection requirements in Federal groundfish fisheries and makes minor changes to bin monitoring requirements for the Amendment 80 fleet. This final rule also makes minor changes in terminology, reorganizes regulatory text, and makes other technical changes that are described below.

A. Halibut Deck Sorting

This final rule defines the term “Halibut Deck Sorting” at § 679.2. The term “Halibut Deck Sorting” is used to specify the activity of separating or removing halibut from the catch on deck, prior to fish entering the fish bin.

1. Monitoring and Enforcement Tools

a. Observer Coverage

This final rule adds requirements at § 679.51(a)(2)(vi)(F) to specify observer coverage requirements for vessels participating in halibut deck sorting. Vessels are required to carry on board at least two observers at all times when participating in halibut deck sorting. One of these observers must be endorsed as a lead level 2 observer. More than two observer are required if the observer workload restriction would otherwise preclude sampling as required, such as if an observer was needed to work longer than a 12 hour shift in order to monitor halibut deck sorting and/or fish being passed over the flow scale in the factory.

b. Observer Access to Catch

This final rule establishes prohibitions specific to halibut deck sorting at § 679.7(e). These regulations specify that when a vessel participates in halibut deck sorting, fish must not be spilled from the codend; halibut must not be sorted, discarded, or weighed on a NMFS-approved scale unless an observer is present on deck; and the vessel is in compliance with the requirements of § 679.120, which describe the vessel, crew, and catch handling and monitoring requirements for participation in halibut deck sorting. In addition, § 679.7(e) prohibits catch from being weighed on flow scales in the factory when the observer is monitoring halibut deck sorting, unless three or more observers are present on the vessel and at least two observers are on duty. In these circumstances, one observer will be required to monitor deck-sorting while another observer will be required to monitor the flow scale in the factory.

c. Pre-Cruise Meeting

This final rule establishes requirements specific to halibut deck sorting at § 679.120(c) that require vessel owners and operators who choose to halibut deck sort to notify the North Pacific Observer Program (Observer Program) to schedule a pre-cruise meeting when they have an observer on board who has not previously been on board within the last 12 months. This meeting must minimally include the vessel operator or manager and any observer(s) assigned to the vessel. This requirement differs from pre-cruise meeting requirements under the EFP that did not require vessel owners and operators choosing to halibut deck sort to notify the Observer Program when they had on board an observer who had not previously been on board within the last 12 months.

d. Deck Safety Plan

This final rule adds requirements at § 679.120(d) to establish a Deck Safety Plan. Vessel owners and operators must develop an approved Deck Safety Plan prior to participating in halibut deck sorting. This Deck Safety Plan must be approved annually by NMFS. If the vessel owner or operator wishes to change an existing Deck Safety Plan, the vessel owner or operator may submit proposed changes in writing, and any changes must be approved by NMFS. Mandatory components of this Deck Safety Plan include a description of safe routes for the observer to access and/or leave the deck sampling station during gear retrieval and movement; description of hazardous areas and potentially hazardous conditions on deck the observer should be aware of; a list of personal protective equipment that must be worn by the observer while on deck; and a description of communication procedures to inform the observer when it is safe to access the deck, in order to ensure that the observer remains safe while working on the deck.

Vessel owners and operators will also be required to provide observers with a copy of the NMFS-approved Deck Safety Plan and conduct a deck sorting safety meeting prior to embarking on a trip when any one of the following—observer, vessel operator, or key crew member that will be responsible for providing notification or reasonable assistance during halibut deck sorting—boards the vessel. All elements of the vessel's Deck Safety Plan must be reviewed with the observer during this meeting.

If NMFS disapproves a Deck Safety Plan, the vessel owner and operator may resubmit a revised Deck Safety Plan or file an administrative appeal as set forth under the administrative appeals procedures set out at 15 CFR part 906.

e. Vessel Operator Requirements

This final rule adds several requirements at § 679.120(e). Vessel operators must notify the observer on duty at least 15 minutes prior to bringing fish on board that halibut deck sorting will occur. From the time the vessel operator notifies the observer that halibut deck sorting will occur until the codend from that haul is opened on deck, the vessel operator may choose not to engage in halibut deck sorting. Catch in the factory cannot be weighed during halibut deck sorting activities unless, as explained above, an additional observer is available to complete data collection duties in the factory. Vessels will be required to devise and use a visual signal to communicate to the crew when catch may not be weighed during deck sorting activities.

Each vessel's Observer Sampling Station Inspection Report will indicate the time limit for halibut deck sorting activities. The time limit may be vessel specific and will be based on factors including, but not limited to, deck space and configuration, and the best available halibut viability information. This time limit begins when the codend is opened on deck and must not exceed the time limit indicated on the Observer Sampling Station Inspection Report. When the time limit is reached, all halibut deck sorting must stop. After the time limit for halibut deck sorting is reached, all halibut not sampled by the observer on deck must be transferred to the live tank(s) and passed over the flow scale in the factory. In the future, the time limit may change in order to account for changes in vessel configuration, sampling technologies, and as new information on halibut viability becomes available. Observer Sampling Station Inspection Reports will be issued annually by NMFS.

This final rule adds § 679.51(e)(1)(viii)(G) to require vessel operators to provide reasonable assistance to observers during halibut deck sorting. When halibut deck sorting, vessel operators and crew will be required to provide halibut sorted on the deck to the observer, in order to facilitate timely sampling by the observer and reduce delays in onboard factory processing of fish.

2. Equipment Requirements

a. Motion Compensated At-Sea Flow Scale and Observer Sampling Station

This final rule modifies existing catch weighing and data sources requirements at §§ 679.32(c)(3)(i)(C)(4), 679.63(a)(1), 679.84(c)(1), and 679.93(c)(1) to add catch weighing requirements for C/Ps and motherships participating in halibut deck sorting in the Amendment 80 sector, BSAI TLAS, CDQ sector, and Rockfish Program fisheries. These modifications remove the requirement for halibut sorted on deck to be weighed on a NMFS-approved flow scale prior to discard.

This final rule modifies regulations specifying methods used for CDQ catch estimation on C/Ps and motherships using trawl gear at § 679.32(c)(3)(ii)(C) to accurately describe catch accounting data sources including when halibut deck sorting occurs during groundfish CDQ fishing.

This final rule also modifies § 679.28(d)(9) to outline and define requirements for an observer deck sampling station that must be on board motherships and C/Ps participating in halibut deck sorting described at § 679.120. The observer deck sampling station must be located on deck and will be required in addition to the observer sampling station in the factory. The observer deck sampling station must meet specifications and requirements similar to the existing observer sampling station, with the exception that vessels participating in halibut deck sorting will be required to have only a single pathway for halibut to be conveyed to an observer at an observer deck sampling station, as well as a single point of discard after each work table that is visible to the observer collecting the data on discarded halibut.

b. Video Monitoring

This final rule adds video monitoring requirements for vessels participating in halibut deck sorting at § 679.28(l). Vessels are required to record and retain video for the entire trip where halibut deck sorting may occur. Vessels are also required to maintain full video coverage of all areas on deck where halibut may be sorted from the catch and/or discarded. This requirement differs from the permit conditions in the 2019 EFP that require vessels to record and retain video only while halibut deck sorting is occurring. As stated in existing regulations at § 679.28(e)(1)(v), the video data must be retained onboard the vessel for no less than 120 days after the date the video is recorded unless otherwise notified by NMFS

B. Additional Regulatory Changes

This final rule modifies § 679.28(i)(1) to remove a monitoring provision known as Option 2—line of sight option for bin monitoring standards. This monitoring option facilitated an observer's view of fish holding bins, but is no longer used; thus, this regulation is unnecessary.

This final rule also modifies §§ 679.28(d)(10) and 679.28(i)(5) to remove the requirements that restrict the validity of the observer sampling station, bin monitoring inspection and associated reports to 12 months from the date of the inspection allows for additional flexibility for the Observer Program to determine the exact length of the approval and potentially synchronize sampling station and bin monitoring inspections with other applicable equipment inspection requirements. This change reduces the need for vessels to schedule multiple in-person inspections at different times of the year, thereby reducing costs of complying with regulations.

This final rule includes a number of regulatory edits to improve clarity and consistency, and to remove unnecessary or out of date regulations. These modifications do not impact vessel operations. Section 679.28(b)(5)(v) is removed because it describes calibration and log requirement regulations for printed reports from the fault log that were applicable to 2015 only. This final rule adds the word “views” when describing display requirements for cameras at § 679.28(e)(1)(vii) and (e)(1)(viii)(A), and also updates the website address for the NMFS Alaska Region in § 679.28(e)(2).

Response to Comments

NMFS received two letters containing eight distinct comments on the proposed rule. A summary of relevant comments and NMFS' response follows. In addition to the written comments received from the public and the Council on the proposed rule, NMFS also received oral comments on the proposed rule during a public meeting held in Seattle, WA, on April 18, 2019 (84 FR 13252, April 4, 2019). The oral comments received during the public meeting mirrored the written comments and are included below.

Comment 1: We support the implementation of regulations to allow halibut deck sorting on trawl C/Ps and motherships participating in the non-pollock groundfish fisheries off Alaska.

Response: NMFS acknowledges the comment.

Comment 2: Observer data collection methodologies for halibut deck sorting in 2020 should be based on the observer data collection methodologies used in the 2019 EFP.

Response: NMFS acknowledges this comment. Deck sorting sampling protocols have been informed by many years of EFPs, and NMFS does not anticipate significant changes from 2019 sampling protocols in 2020.

Comment 3: NMFS should describe observer data collection procedures and methodologies that will be used in 2020 in its final rule response to comments.

Response: NMFS disagrees. The Council and NMFS have a long-established process for communicating observer data collection procedures through the Council's Fisheries Monitoring Advisory Committee (FMAC) and a series of annual documents prepared and presented by NMFS to the Council and the Council's FMAC, Science and Statistical Committee, and Advisory Panel. As stated in the preamble to the proposed rule, and the preamble to this final rule, observer data collection procedures are not directly regulated by this action. As stated in response to the previous comment, NMFS does not anticipate significant changes in observer data collection procedures from 2019 in 2020. However, defining one specific set of observer data collection procedures for one year (2020), in this final rule could differ from potential future changes in observer data collection procedures in future years. This could create confusion among fishery participants and is not a necessary component of this final rule.

NMFS intends to recommend that observer data collection procedures be added to the FMAC agenda for their September meeting. This would provide for public input of the observer data collection procedures and methodologies associated with halibut deck sorting that will be used in 2020.

Comment 4: In the future, changes to Observer data collection methodologies for halibut deck sorting should be developed in consultation with the Council to ensure that the primary objective of halibut mortality reduction is achieved. Additionally, NMFS should highlight any changes made to data collection methods during the year in its management report at the next Council meeting.

Response: NMFS agrees in part. The Council, in consultation with NMFS, designed and implemented the Observer Program to station observers and electronic monitoring systems on board commercial fishing vessels to collect data necessary for the conservation, management, and scientific understanding of the commercial groundfish and Pacific halibut fisheries of the BSAI and GOA management areas. Observers use scientific sampling protocols to collect fishery-dependent information, which can then be used to estimate total catch and interactions with protected species. Observer data collections have evolved over time as new data demands emerge. Deck sorting presents additional observer data collection requirements. Each year, NMFS publishes an Observer Sampling Manual (AFSC 2018),^[1] which contains the comprehensive sampling procedures and methods to be used by observers to collect fishery-dependent data.

NMFS agrees that the primary objective of the deck sorting program is to reduce halibut mortality, not maximize halibut mortality savings (via reduced vessel specific DMRs) for participating vessels. Data collection procedures will continue to be designed to accurately quantify the reduction in halibut mortality, the total catch of halibut, and the condition of halibut discarded within the workload limitations and data collection priorities set each year through the Council's groundfish plan team process. Data collection methods must balance data needs with what a single observer can accomplish while avoiding undue pressure on an observer to change their sampling to maximize halibut mortality savings.

As noted in the previous comment, the Council and NMFS have a public process for communicating observer data collection procedures through the Council's FMAC. For 2020, NMFS intends to recommend to the FMAC that deck sorting protocols be added to the agenda for its September 2019 meeting. This practice can be continued annually as needed. The Council's FMAC is the established committee dedicated to monitoring programs and fishery-dependent data collections. Minutes from each FMAC meeting are provided to the Council, and the FMAC reports directly to the Council. In addition, Section 679.51(c)(3) states that 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. Through these established processes, the public and stakeholders can receive information and provide input on all NMFS monitoring programs, including any new sampling procedures involving deck sorting. As such, it is not necessary for NMFS to provide updates about halibut deck sorting activities continually throughout the year at each Council meeting.

Comment 5: The time limit for halibut deck sorting should be specified in regulation and applied to all vessels participating in halibut deck sorting rather than including this time limit in each vessels annual deck sampling station inspection report as proposed.

Response: NMFS disagrees. There are several operational considerations involved with setting discard time limits. NMFS designs observer sampling methods using the best available data and needs to preserve the ability to make changes as new information becomes available. The 35-minute time limit for halibut deck sorting used in the 2019 EFP was an operational choice, and was not set strictly from data collected from previous years of the EFP. Further, specified halibut deck sorting time limits in regulation would require a rulemaking to make any changes. By not specifying the halibut deck sorting time limit in regulation, NMFS in coordination with public input received by fishery participants, the Council, and the Council's subsidiary bodies has the flexibility to revise the time limit using new information or adapting to new fishing or catch handling situations that may arise in consultation with the public. NMFS makes data-driven decisions on sampling protocols, and at this time there are no data to demonstrate that the time limit should be something other than 35 minutes. Therefore, NMFS does not intend to make changes to this time limit for 2020.

Vessel-specific time limits may become necessary to ensure that differences in fishing practices and catch handling techniques can be considered in setting deck sorting time limits. Further, including the time limit on the Observer Sampling Station Inspection Reports ensures that the operator has this information in writing from NMFS and that all observer-related requirements are in a single document for the vessel operator.

As responses to comments 2, 3 and 4 indicated, changes to observer data collection procedures can be vetted through established public processes, beginning with the FMAC. The Council typically requests the FMAC to review changes to observer sampling procedures but the Council may decide to directly take up any specific issues that are on the FMAC's agenda.

Comment 6: Proposed regulations at §§ 679.7(e)(12) and 679.28(l) would prohibit deck sorting for the remainder of a trip if any of the video monitoring systems fail during the course of a trip. These regulations should be revised to be the same as how camera failures are handled under the 2019 EFP.

Response: NMFS disagrees with this comment. As stated in the preamble to the proposed rule, video monitoring is necessary to verify that all halibut sorted on deck from each haul is accounted for accurately. Under a regulated program, recorded video is a primary compliance monitoring tool that NOAA Office of Law Enforcement uses to verify compliance with catch handling and monitoring requirements during halibut deck sorting. Accurate accounting of halibut is a critical component of this deck sorting program as is described in detail in Section 4.1.1 of the Analysis. Video must be recorded for all hauls when halibut deck sorting occurs. Video monitoring requirements are also in place to protect observers deployed on these vessels from potential harassment and to guard against possible biasing of observer data. Sections 4.1.2 and 4.2.2 of the Analysis provide additional detail on enforcement concerns related to halibut deck sorting.

During the course of halibut deck sorting under the EFP, NOAA Office of Law Enforcement has noted EFP participant actions that would be considered violations under a fully regulated program but were outside of their enforcement responsibilities under the EFP. Instead, these violations were reported to NMFS and solutions were developed based on discussions with EFP participants. If a participant was routinely found in violation of EFP parameters, they would then be excluded from the EFP altogether.

In addition, allowing vessels to resume deck sorting without video monitoring could effectively prevent NOAA Office of Law Enforcement from enforcing other video monitoring requirements associated with halibut deck sorting and could create a disincentive for vessels to maintain their video monitoring equipment in good working order. In other words, if a vessel were allowed to continue to deck sort halibut when its video monitoring system stopped working properly, what motivation would there be to repair the system?

This requirement will not prevent the vessel from fishing altogether if all or part of its video monitoring system malfunctions. If a deck camera fails, the vessel will be required only to stop halibut deck sorting activities until the system is repaired.

Comment 7: Proposed regulations at § 679.28(l)(1) requiring a vessel to “Record and retain video for an entire trip when halibut deck sorting may occur” would create a violation any time a system breaks during a trip with any deck sorting. These regulations should be revised to clarify the intent that a breakdown of video cameras on deck would not be an automatic violation.

Response: NFMS acknowledges this comment. As stated in the proposed rule, these video monitoring requirements are needed to ensure that all halibut collected from an individual haul can be tracked and accounted for once on the vessel. Similar to the response in Comment 6, video monitoring is a primary tool that NOAA Office of Law Enforcement relies on under the regulated program. If a component of the video monitoring system breaks or is otherwise rendered inoperable, that vessel will be required to terminate halibut deck sorting activities until the video monitoring system is repaired.

NMFS does not intend to apply the interpretation that a vessel will be in violation any time a system breaks during a trip with any deck sorting. If the video monitoring system is not working properly, §§ 679.28(l) and 679.7(e)(12) require that all halibut deck sorting activities be terminated until such a time that the system is repaired. In these cases, the vessel will be required to retain video recordings from the time when the video monitoring system was functional. The language in § 679.28(l)(1) is consistent with other video monitoring requirements that require vessels to record and retain video throughout the extent of various specified fishing activities (see § 678.28(j) and (k)). From an enforcement perspective, consistencies in the intent and language of comparable regulations is critical to ensure compliance and enforceability of applicable regulations. For these and the preceding reasons, NMFS disagrees with the comment to revise the regulatory language at § 679.28(l)(1).

Comment 8: The proposed regulations at § 679.120(d)(1)(iv) reference a new requirement for deck safety plans to list personal protective equipment that must be worn by the observer while on deck. Clarification of the intent for these regulations and whether they overlap with equipment NFMS supplies and directions it gives to its observers would avoid confusion and unintended issues that could arise on vessels.

Response: NMFS acknowledges this comment. The intent of this section is to outline the requirements that must be described and detailed in the NMFS-approved Deck Safety Plan. One of those requirements is that the Deck Safety Plan must contain a list of personal protective equipment that the observer(s) must wear while on deck. Different vessels will have different personal protective equipment requirements that the vessel operator will report in the Deck Safety Plan. NMFS recognizes that vessels have differing requirements and that the vessel operator is best suited to determine what equipment is appropriate for their deck-based activities.

This final rule does not alter the amount or type of equipment provided to observers by NMFS or their observer providers. Observers should already possess all required personal protective equipment prior to embarking on the vessel. The Observer Program currently provides observers with personal floatation vests, hard hats and hearing protection. In the event that an observer loses or damages their equipment, the vessel may be asked to provide a temporary spare if they are able in order to allow for continued halibut deck sorting activities. This final rule does not change the personal protective equipment that observers are already required to wear, which is described in the annual observer sampling manual (AFSC 2019).

OMB Revisions to PRA References in 15 CFR 902.1(b)

Section 3507(c)(B)(i) of the Paperwork Reduction Act (PRA) requires that agencies inventory and display a current control number assigned by the Director of the Office of Management and Budget (OMB), for each agency's 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 and revises collection-of-information requirements, 15 CFR 902.1(b) is revised to reference correctly the sections resulting from this final rule.

Changes From Proposed to Final Rule

NMFS made three changes to this final rule. The first change adds the words “participating in” to the applicability definition at § 679.120(a) so that it now reads “The owner and operator of a mothership or catcher/processor using trawl gear in the non-pollock groundfish fisheries in the Gulf of Alaska and the Bering Sea and Aleutian Islands Management Area must comply with the requirements of this section when participating in halibut deck sorting as defined at § 679.2.”. This change reduces ambiguity associated with when catch handling and monitoring requirements for halibut deck sorting apply.

The second change removes a duplicate comma in the last sentence in § 679.28(d)(10)(iii)(A).

The third change added the word “annually” to the submission requirement for the Deck Safety Plan at § 679.120(d)(1). It now reads “Annually submit and have an approved Deck Safety Plan prior to participating in halibut deck sorting. The owner and operator must comply with all the requirements described in the NMFS-approved Deck Safety Plan.” This change clarifies that the owner and operator of a vessel choosing to deck sort halibut must annually submit a Deck Safety Plan for approval by NMFS. This requirement was described in detail in the preamble of the proposed rule but was not clearly stated the regulatory text.

These changes do not substantively modify the regulations as proposed.

VI. Classification

Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the BSAI and GOA FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for the 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 that this final rule will not have a significant economic impact on a substantial number of small entities. NMFS published a proposed rule on April 16, 2019 (84 FR 15566). An initial regulatory flexibility analysis (IRFA) was prepared and included in the “Classification” section of the proposed rule. The comment period closed on May 16, 2016. No comments were received on the IRFA or regarding this certification.

The factual basis for certification is described below. This action implements catch handling and monitoring requirements to allow halibut PSC to be sorted on the deck of trawl C/Ps and motherships participating in the non-pollock groundfish fisheries off Alaska. These requirements build upon existing monitoring and enforcement requirements and are designed to allow halibut to be returned to the sea faster while also ensuring that observer data continue to result in reliable estimates of halibut incidental catch rate and viability. Participation in halibut deck sorting will be voluntary. However, any vessel operator choosing to participate in halibut deck sorting will be required to comply with all applicable monitoring requirements.

In addition to the primary action, this action also changes observer sampling station inspection requirements in Federal groundfish fisheries and makes minor changes to bin monitoring requirements in the Amendment 80 fleet. This action also makes minor changes in terminology, reorganizes regulatory text, and makes other technical changes. The IRFA identified 40 C/Ps, owned by 10 firms, whose owners and operators will potentially be directly regulated by this action. A review of ownership affiliations, and resulting aggregate revenue, reveals that the combined revenue of all but one of the co-owned C/Ps in each of the 10 fishing corporations that own these C/Ps exceeded the $11.0 million commercial fishing business revenue threshold and are, thus, considered large entities for purposes of the Regulatory Flexibility Act (RFA). In addition to the one directly regulated small C/P identified in the IRFA, three businesses that operate motherships may not exceed the fish processing business employee threshold of 750 employees and may be considered directly regulated small entities.

Although one C/P-owning firm potentially directly regulated by this action is a small entity under the RFA, the vessel's participation in the formal deck sorting program is doubtful given current operations and constraints. However, if this C/P did choose to sort halibut PSC on deck in the future, they would do so voluntarily and only if the benefits of accounting for reduced halibut mortality outweigh the costs of compliance with program requirements. This statement is also true for the three mothership corporations that are potentially directly regulated small entities under this action.

This action also directly regulates the owners and operators of C/Ps and motherships subject to requirements for line of sight bin monitoring and timing of the observer sampling stations. However, this element of this final rule will not affect the one C/P that is a small entity because unsorted fish are not held below deck in bins on this vessel. In addition, none of these vessels have used line of sight bin monitoring since 2011, and then only in conjunction with other still available monitoring options. Therefore, revisions to bin monitoring regulations and slight relaxation of regulations affecting the timing of observer sampling will not impose any additional costs or restrictions or create any impacts that would be considered significant adverse economic impacts on small entities.

For all of these reasons, this action is not expected to have a significant economic impact on a substantial number of small entities. As a result, a final regulatory flexibility analysis is not required and none has been prepared.

Collection-of-Information Requirements

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) which has been approved by the Office of Management and Budget (OMB) under Control Number 0648-0318 (North Pacific Observer Program) and Control Number 0648-0330 (Alaska Region, Scale and Catch Weighing Requirements). The public reporting burden for these collection-of-information requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

OMB Control No. 0648-0318

This final rule requires vessel owners or operators of trawl C/Ps and motherships who choose to sort halibut PSC on deck to have a NMFS-approved Deck Safety Plan prior to participating in halibut deck sorting. Currently24 vessels have participated in halibut deck sorting with a fully developed Deck Safety Plan. NMFS estimates approximately three new vessels may choose to participate in deck sorting over the next three years. Public reporting burden for the development of a new Deck Safety Plan during the first (initial) year a vessel participates in halibut deck sorting is estimated to average 12 hours. After the first year, the public reporting burden for a respondent to modify or renew an existing Deck Safety Plan is estimated to be one hour.

For vessel owners or operators of trawl C/Ps and motherships who choose to sort halibut PSC on deck, the public reporting burden per response to notify the Observer Program by phone is estimated to be five minutes, the burden to notify the observer is estimated at two minutes, and appeal of a disapproved Deck Safety Plan is estimated at 4 hours.

OMB Control No. 0648-0330

When this action takes effect, 24 vessels will have participated in halibut deck sorting with installed deck video monitoring systems and observer deck sampling stations in compliance with regulations. NMFS estimates approximately three new vessels may choose to participate in deck sorting over the next three years. This final rule requires vessel owners or operators of trawl C/Ps and motherships who choose to sort halibut PSC on deck to install an observer sampling station on deck for use by the observer when deck sorting halibut. Public reporting burden for the installation of the observer deck sampling station during the first (initial) year a vessel participates in halibut deck sorting is estimated to average 12 hours. After the first year, annual maintenance of observer sampling stations both in the factory and on deck is expected to be minimal and will likely be done with other factory modifications initiated by the vessel to improve processing efficiency. Annual public reporting burden after the first year is estimated at one minute.

In addition, these vessels must install a deck sorting video monitoring system on deck. Public reporting burden for the installation of the video monitoring system is estimated to average 12 hours. After the first year, annual maintenance of the video monitoring system, including routine inspection and time required to call out for any needed repair, is estimated at one minute.

Public reporting burden for the Inspection Request for Observer Sampling Station, At-sea Scales, Video Monitoring Deck Sampling Station, and Deck Video Monitoring is estimated at 8 minutes.

Send comments on these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS Alaska Region (see ADDRESSES), and by email to OIRA_Submission@omb.eop.gov, or by fax to 202-395-5806.

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. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/​services_​programs/​prasubs.html.

List of Subjects

15 CFR Part 902

• Reporting and recordkeeping requirements

50 CFR Part 679

• Alaska
• Fisheries
• Pacific halibut
• Recordkeeping and reporting requirements

For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

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

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

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

2. In §  902.1, in the table in paragraph (b), under the entry “50 CFR”, add entries in alphanumeric order for “679.28(l)”, “679.120(b)”, and “679.120(c), (d), and (e)” to read as follows:

Title 50—Wildlife and Fisheries

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

3. The authority citation for 50 CFR part 679 continues to read as follows:

Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

4. In § 679.2, add a definition for “Halibut Deck Sorting” in alphabetical order to read as follows:

5. In § 679.7,

a. Amend paragraph (d)(4)(i)(B) by removing “§ 679.28(d)(8)” and adding in its place “§ 679.28(d)(10)”; and

b. Add paragraph (e).

The addition reads as follows:

6. In § 679.28,

a. Remove paragraph (b)(5)(v);

b. Redesignate paragraph (d)(9) as (d)(10);

c. Add new paragraph (d)(9);

d. Revise newly redesignated paragraph (d)(10) introductory text;

e. In newly redesignated paragraph (d)(10)(i) remove “ http://alaskafisheries.noaa.gov” and add in its place “https://alaskafisheries.noaa.gov”;

f. Revise newly redesignated paragraph (d)(10)(iii);

g. In paragraphs (e)(1)(vii) and (e)(1)(viii)(A), remove “cameras” and add in its place “camera views”;

h. In paragraph (e)(2), remove “ http://alaskafisheries.noaa.gov” and add in its place “https://alaskafisheries.noaa.gov”;

i. Revise paragraph (i)(1) introductory text;

j. Remove paragraph (i)(1)(ii);

k. Redesignate paragraph (i)(1)(iii) as (i)(1)(ii) and revise it;

l. Revise paragraphs (i)(2) and (5);

m. In paragraph (i)(3), remove “ http://alaskafisheries.noaa.gov” and add in its place “https://alaskafisheries.noaa.gov”; and

n. Add paragraph (l).

The revisions and additions to read as follows:

7. In § 679.32, revise paragraphs (c)(3)(i)(C)( 4) and (c)(3)(ii)(C) to read as follows:

8. In § 679.51, add paragraphs (a)(2)(vi)(F) and (e)(1)(viii)(G) to read as follows:

9. In § 679.63, revise paragraph (a)(1) to read as follows:

10. In § 679.84, revise paragraph (c)(1) to read as follows;

11. In § 679.93, revise paragraph (c)(1) to read as follows:

12. Add subpart K, consisting of §§ 679.120 and 679.121, to read as follows:

Subpart K—Halibut Deck Sorting

Footnotes