69016 Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 

(k) Fish for or possess any Hawaii 

bottomfish or seamount groundfish 

MUS in the Hancock Seamounts 

Ecosystem Management Area, in 

violation of § 665.209. 

■ 4. Revise § 665.209 to read as follows: 

§ 665.209 Fishing moratorium at Hancock 

Seamounts. 

Fishing for, and possession of, Hawaii 

bottomfish and seamount groundfish 

MUS in the Hancock Seamounts 

Ecosystem Management Area is 

prohibited until the Regional 

Administrator determines that the 

armorhead stock is rebuilt. 

[FR Doc. 2010–28413 Filed 11–9–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080228322–91377–02] 

RIN 0648–AW24 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Observer 

Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues a final rule to 

amend regulations implementing the 

North Pacific Groundfish Observer 

Program (Observer Program). This 

action is necessary to improve the 

operational efficiency of the Observer 

Program, as well as to improve the 

catch, bycatch, and biological data 

collected by observers for conservation 

and management of the North Pacific 

groundfish fisheries, including those 

data collected through scientific 

research activities. The final rule is 

intended to promote the goals and 

objectives of the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

and the Fishery Management Plan for 

Groundfish of the Gulf of Alaska. 

DATES: Effective December 10, 2010, 

except the revision to the definition of 

a fishing day in § 679.2, which is 

effective on January 1, 2011. 

ADDRESSES: Electronic copies of the 

Regulatory Impact Review/Final 

Regulatory Flexibility Analysis (RIR/ 

FRFA) prepared for this action may be 

obtained from the NMFS Alaska Region 

Web site at http:// 

alaskafisheries.noaa.gov. Written 

comments regarding the burden-hour 

estimates or other aspects of the 

collection-of-information requirements 

contained in this 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, AK; and by e-mail 

to OIRA_Submission@omb.eop.gov or 

fax to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Brandee Gerke, 907–586–7228. 

SUPPLEMENTARY INFORMATION: 

Background 

NMFS manages the U.S. groundfish 

fisheries in the Exclusive Economic 

Zone of the Bering Sea and Aleutian 

Islands Management Area (BSAI) and 

Gulf of Alaska (GOA) under the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area and the Fishery 

Management Plan for Groundfish of the 

Gulf of Alaska (collectively, the FMPs), 

respectively. The North Pacific Fishery 

Management Council (Council) 

prepared the FMPs pursuant to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA). Regulations implementing the 

FMPs appear at 50 CFR part 679. 

General regulations that pertain to U.S. 

fisheries appear at subpart H of 50 CFR 

part 600. 

The Observer Program provides the 

administrative framework for observers 

to obtain information necessary for the 

conservation and management of the 

groundfish fisheries managed under the 

FMPs. Regulations implementing the 

Groundfish Observer Program at 

§ 679.50 require observer coverage 

aboard catcher vessels, catcher/ 

processors, motherships, and shoreside 

and stationary floating processors that 

participate in the groundfish fisheries 

off Alaska. These regulations also 

establish vessel, processor, and observer 

provider responsibilities relating to the 

Observer Program. 

This final rule amends regulations at 

§ 679.2 and § 679.50 applicable to 

observer providers, observers, and 

industry participants required to obtain 

observer services. The regulatory 

amendments are organized under six 

issues and will remove regulations that 

are either unnecessary or impractical to 

apply; revise regulations to allow 

observer providers to provide observers 

for exempted fishing permit-based and 

scientific research permit-based 

activities; add regulations to prohibit 

activities that result in nonrepresentative fishing behavior from 

counting toward an observer coverage 

day; require observer providers to report 

to NMFS information about the cost of 

providing observers; and establish a 

deadline when observer providers must 

submit copies of their contracts to 

NMFS, per the Council’s April 2008 

motion. This action is necessary to 

improve the operational efficiency of 

the existing Observer Program, as well 

as improve the catch, bycatch, and 

biological data provided by observers 

for conservation and management of the 

North Pacific groundfish fisheries, 

including data provided through 

scientific research activities. 

A detailed description of and 

justification for this final rule was 

presented in the preamble to the 

proposed rule (74 FR 50155, September 

30, 2009). A summary of the final rule 

is presented below. 

Issue 1: Observer Certification and 

Observer Provider Permitting Process 

This final rule clarifies NMFS’s 

discretionary authority to either grant or 

deny an initial observer certification or 

observer provider permit by allowing 

NMFS to consider additional needs and 

objectives of the Observer Program and 

other relevant factors when considering 

whether to issue a new observer 

provider permit or observer 

certification. In addition, the appeal 

process for unsuccessful observer 

candidates and observer provider 

applicants is removed from regulations. 

There is no statutory entitlement to 

receiving observer certification or an 

observer provider permit; thus, the 

granting or denial of observer 

certifications and observer provider 

permits are discretionary agency 

actions. In addition, the existing appeals 

process has rarely been invoked and 

requires substantial agency resources to 

fulfill. These actions will increase 

NMFS’s efficiency in granting or 

denying certifications and permits. 

NMFS reiterates that this action does 

not affect the ability of observers and 

observer providers to appeal any agency 

decision to revoke or sanction a 

certification or permit that already is 

issued. 

Issue 2: Observer Conduct 

This final rule removes Federal 

regulations that attempt to control 

observer behavior related to activities 

involving drugs, alcohol, and sexual 

conduct. NMFS’s observer conduct 

policies established in existing 

regulations are impractical to apply and 

unenforceable. Therefore, NMFS is 

removing these regulations. 


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Each observer provider will be 

required to develop and implement an 

observer conduct policy that address 

drugs, alcohol, and sexual conduct. 

Observer providers will be required to 

provide NMFS a copy of their conduct 

policies by February 1 of each year and 

to notify NMFS of a violation within 72 

hours after the provider determines that 

an observer violated the conduct policy. 

Issue 3: Providing Observers for 

Research Activities 

Regulatory revisions implemented by 

this final rule clarify that observer 

providers are allowed to provide 

observers or technical staff for purposes 

of exempted fishing permits, scientific 

research permits, or other NMFSsanctioned scientific research activities. 

While existing regulations do not 

specifically prohibit observer providers 

from providing observers or scientific 

data collectors in support of these 

activities, they are ambiguous as to 

whether these activities are allowed 

under the Observer Program’s conflict of 

interest regulation. 

Issue 4: Fishing Day Definition 

This final rule revises the regulatory 

definition of ‘‘fishing day’’ to clarify that 

an observer must be on board a vessel 

for all gear retrievals during the 24-hour 

period to count as a day of observer 

coverage. This revision is intended to 

prevent vessel operators from making 

fishing trips that do not reflect their 

normal fishing patterns as this nonrepresentative behavior biases the 

observer-collected information. The 

definition of ‘‘fishing day’’ is also revised 

to span from ‘‘noon to noon’’ rather than 

from ‘‘midnight to midnight’’ as 

currently defined. This revision is 

expected to provide a disincentive for 

operations to conduct nonrepresentative fishing for the sake of 

satisfying observer coverage 

requirements during daylight hours. 

The revision to the definition of a 

fishing day affects the calculation of 

days that an observer is onboard vessels 

greater than or equal to 60 ft length 

overall (LOA), but less than 125 ft LOA 

that are subject to 30 percent observer 

coverage requirements under § 679.50. 

These regulations require vessels that 

participate for more than 3 fishing days 

in a directed fishery for groundfish in a 

calendar quarter to carry an observer 

during at least 30 percent of its fishing 

days in that calendar quarter and at all 

times during at least one fishing trip in 

that calendar quarter for each of 

groundfish fishery category in which the 

vessel participates. Because the 

calculation of the number of fishing 

days that must be observed is done on 

a calendar quarter basis, the revision to 

the definition of fishing day is effective 

on the first day of the next calendar 

quarter, which is January 2, 2011. 

Issue 5: Observer Cost Information 

NMFS is not a party to contracts 

between the industry and observer 

providers. Therefore, NMFS has not had 

access to information about the actual 

cost of deploying observers in the 

various sectors of the groundfish 

fisheries. The MSA authorizes the 

collection of fees from North Pacific 

fishery participants to pay for 

implementing a fisheries research plan, 

including observer coverage. More 

accurate information on the cost of the 

existing Observer Program would help 

the Council and NMFS determine 

appropriate fees and the extent of 

observer coverage afforded by those fees 

when a fee-based research plan is 

developed and implemented. This 

action requires observer providers to 

submit to NMFS copies of all individual 

invoices for observer coverage in the 

groundfish fisheries off Alaska to 

provide NMFS with information on the 

costs incurred by the groundfish fishing 

industry for the current Observer 

Program. Observer providers will be 

required to submit these invoices to 

NMFS on a monthly basis, and within 

45 days of the date of the invoice. 

Issue 6: Miscellaneous Revisions 

This final rule establishes a deadline 

by which observer providers must 

submit an exemplary copy of each type 

of contract between the provider and the 

observer, and between the provider and 

the vessel or plant operator requiring 

observer services in the groundfish 

fisheries off Alaska. The final rule also 

removes an incorrect reference to the 

Observer Program’s Web site from 

Federal regulations. 

Comments and Responses 

Detailed information on the 

management background and need for 

action is in the preamble to the 

proposed rule (74 FR 50155, September 

30, 2009). Comments on the proposed 

rule were invited through October 30, 

2009. NMFS received six submissions 

containing 25 separate public comments 

on the proposed rule. These comments 

are summarized and responded to 

below. 

Issue 1: Observer Certification and 

Observer Provider Permitting Process 

Comment 1: NMFS should continue 

to have a strong central role in the 

oversight of observer providers and 

observer procedures. NMFS’s oversight 

is necessary to ensure consistency 

throughout the program and maintain 

overall program integrity. 

Response: NMFS acknowledges 

support for its continued role in 

overseeing the permitting and 

responsibilities of observers and 

observer providers. 

Comment 2: Commenter supports 

NMFS’s efforts to expand its discretion 

to grant provider permits by tailoring 

the application time period according to 

the conditions encountered by each 

applicant. 

Response: NMFS acknowledges 

support for this regulatory revision. 

Comment 3: Commenter supports 

NMFS’s effort to alter the appeal forum 

for unsuccessful observer provider 

permit applicants and observer 

candidates. The current regulations are 

burdensome and ineffective. 

Response: NMFS acknowledges 

support for this regulatory revision. 

Comment 4: Eliminating the 

regulations regarding revocation and 

sanction procedures for observers and 

observer providers should better 

allocate agency resources while 

continuing to ensure the integrity of the 

Observer Program, and due process for 

observer providers and observers. 

Response: This rule does not 

eliminate regulations regarding 

revocation and sanction procedures for 

observer certifications and observer 

provider permits. It does remove the 

appeals process for unsuccessful 

observer candidates and observer 

provider applicants. 

Issue 2: Observer Conduct 

Comment 5: NMFS’s role in 

overseeing observer conduct under the 

proposed rule may hamper the ability of 

observer providers to effectively deal 

with employee conduct issues, which 

should be resolved directly by the 

observer providers themselves. Observer 

providers already have incentives to 

develop employment practices to cope 

with workplace issues, including drug 

and alcohol use and sexual misconduct. 

The role envisioned for NMFS under 

this new regulation is vague, as is the 

regulation it will replace. NMFS 

assesses observer performance and data 

quality, regardless of each observer’s 

behavior. If NMFS determines that an 

observer is unable to collect the quality 

of data demanded by the agency, then 

the observer should be decertified. 

NMFS should specify behaviors it 

believes are likely to impact data 

quality. Once these behaviors are 

identified, the observer providers could 

likely agree on how best NMFS should 

be involved, though as a general rule, 

employment practices need to be left to 


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the providers who actually employ 

observers. 

Response: NMFS believes that 

observer providers bear primary 

responsibility for establishing and 

implementing observer conduct 

policies. This rule will require observer 

providers to develop and implement an 

observer conduct policy and to provide 

a copy of the policy to NMFS. Further, 

this rule will require observer providers 

to inform NMFS of a violation of the 

observer provider’s policy within 72 

hours of determining that a violation 

occurred. 

NMFS agrees that an observer whose 

data do not meet the quality standards 

should be decertified. Although NMFS 

intends to continue reviewing observer 

performance, NMFS does not intend to 

intervene in any corrective process 

undertaken by a provider to resolve 

deficiencies with its employees unless 

these deficiencies directly affect data 

quality. 

It is important that NMFS is notified 

of violations of observer provider 

conduct policies so that NMFS can 

consider whether those violations 

adversely affect an observer’s ability to 

perform his or her duties, including the 

collection of quality data, or 

compromise workplace safety. NMFS 

will monitor each observer provider’s 

conduct policy to determine whether it 

helps to maintain a professional 

workforce. By keeping aware of observer 

providers’ conduct policies and the 

extent to which these policies are 

violated, NMFS may better advise 

observer providers of the most effective 

policies, and take further action as 

needed should a provider’s policy or 

ineffective implementation of its policy 

generate numerous cases of insufficient 

data quality. 

Comment 6: NMFS should inform all 

observer applicants during the training 

process: (1) That most U.S. fishing 

vessels have zero tolerance policies 

regarding the use or possession of drugs 

and alcohol; and (2) that violation of 

such policies may be grounds for 

removal from the vessel at the first 

reasonable opportunity or for refusal to 

grant permission to board the vessel in 

the first place. 

Response: It is NMFS’s practice to 

inform observer applicants of the zero 

tolerance policies for drugs and alcohol 

on board most U.S. fishing vessels and 

the consequences of violating these 

policies. NMFS will continue to 

emphasize this information in observer 

training. 

Comment 7: We acknowledge the 

difficulty for NMFS to enforce the 

observer conduct policy. However, 

because NMFS is responsible for the 

quality of information used to manage 

fisheries under its jurisdiction, NMFS 

must retain some level of observer 

conduct oversight, even if not through 

regulations and the administrative 

review process. The elimination of 

NMFS’s policy creates the potential for 

widely varying policies among 

providers, which could result in 

confusion among observers about what 

is permitted. NMFS should supply a 

standardized policy for observer 

providers to enforce. At the very least, 

the current policy provides guidance as 

to what is and is not acceptable 

behavior. 

Response: NMFS believes that 

observer providers bear primary 

responsibility for developing and 

implementing observer conduct 

policies. However, NMFS has posted 

drug and alcohol policies on the Fishery 

Management and Analysis Division’s 

Web site (http://www.afsc.noaa.gov/ 

FMA/default.htm). NMFS intends to 

keep these policies posted to notify 

observers of NMFS’s expectations about 

use and possession of drugs and 

alcohol. NMFS will add information to 

the policies explaining that observer 

providers have their respective drug and 

alcohol policies to which their 

employees are subject. NMFS’s policies 

may also guide observer providers in 

development of their policies. 

Comment 8: NMFS should clarify 

why it has been impractical to enforce 

observer conduct before further 

reducing the agency’s responsibility for 

the welfare and conduct of observers. 

Zero tolerance policies for drugs and 

alcohol, similar to ones already imposed 

by many fishing companies on their 

crew, are appropriate for the work 

environment in Alaska’s fisheries, 

including its professional observers. 

Observers who violate alcohol policies 

damage the reputation of the observer 

profession. Alcohol use has been 

responsible for a range of distasteful and 

unsafe behavior between deployments 

and in employer-provided housing, 

demonstrating that observer providers 

are unable to effectively ensure 

compliance. Enforcing observer 

adherence to a professional code of 

conduct is of secondary importance to 

observer providers as their primary 

focus is fulfilling their business 

relationships with fishing companies. 

Response: NMFS must establish a link 

between the unsanctioned behavior and 

the collection of reliable fisheries data 

to take corrective action such as 

decertifying an observer. Such links are 

difficult to prove for observer code of 

conduct violations that occur outside of 

an observer’s working hours. Adherence 

to observer conduct expectations, 

especially at observer provider housing, 

is an observer provider responsibility. 

Drug and alcohol abuse that results in 

unacceptable and/or dangerous living 

situations for other observers between 

deployments should be reported to the 

observer provider at a minimum. During 

observer training, NMFS will continue 

to emphasize the zero tolerance drug 

and alcohol policy enforced by most 

U.S. fishing companies. 

Comment 9: NMFS should hold 

annual performance reviews of observer 

providers to ensure there is no collusion 

with the fishing industry and to ensure 

NMFS’s performance standards, 

including observer conduct standards, 

are being met. Reviews should be 

publicly available and should include a 

list of complaints made by observers 

against contractors, claims against 

observers, and should include how 

NMFS responded to these complaints. 

Response: NMFS does not hold 

contracts with observer provider 

companies and does not conduct 

performance reviews as would occur 

under a contract. However, NMFS 

regulates the responsibilities of observer 

providers through Federal regulations at 

50 CFR 679.50(i)(2). Observer providers 

are also subject to conflict of interest 

regulations at 50 CFR 679.50(i)(3). Noncompliance with these regulations is 

investigated by the NOAA Office of Law 

Enforcement (OLE). NOAA OLE can 

assess civil penalties directly against the 

violator in the form of Summary 

Settlements or refer the case to NOAA’s 

Office of General Counsel for 

Enforcement and Litigation (GCEL). 

GCEL can assess a civil penalty in the 

form of a Notice of Permit Sanctions or 

Notice of Violation and Assessment, or 

they can refer the case to the U.S. 

Attorney’s Office for criminal 

proceedings. 

Comment 10: NMFS should have 

enforceable conduct standards for 

observers that all observer providers are 

required to enforce because: 

• The business relationships between 

observer provider companies and 

fishing companies may make observer 

providers less inclined to investigate 

and enforce observer conduct violations; 

and 

• Fishing companies could make false 

claims against observers who, while 

carrying out their duties, cause 

inconveniences for the vessel operator 

or observer provider. 

Response: Current regulations specify 

conduct standards for North Pacific 

groundfish fishery observers (50 CFR 

679.50(j)(2)). As stated above, NMFS 

cannot enforce observer conduct 

standards that are unrelated to the 

collection of quality data for fisheries 


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Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 69019 

management. Through this action, 

NMFS is removing observer conduct 

regulations pertaining to use of drugs 

and alcohol and the prohibition of 

physical sexual contact with vessel 

personnel. However, several observer 

conduct standards, including 

prohibition of conflict of interest, 

remain in Federal regulations, and 

NMFS will continue to enforce 

compliance with these standards. 

Among other types of conduct, 

Federal regulations prohibit the 

impediment, intimidation, or 

interference with an observer (50 CFR 

679.7(g)). These regulations are 

designed to protect observers and allow 

them to freely perform their duties 

without harassment, which would 

include making false accusations against 

an observer. NMFS enforces these 

regulations to the fullest extent of the 

law. 

Comment 11: This proposed rule will 

weaken the protections of observers and 

an observer’s ability to carry out his or 

her duties to NMFS’s standards. 

Observer sampling to monitor quotas 

likely results in increased conflicts 

between vessel personnel and observers. 

This proposed rule will weaken the 

integrity of the Observer Program. 

Response: NMFS disagrees that the 

protections for observers, the ability of 

an observer to objectively do his or her 

job, or the integrity of the Observer 

Program will be weakened through the 

promulgation of this rule. This rule 

clarifies that the observer providers are 

responsible for ensuring that observers 

adhere to a professional code of conduct 

pertaining to drug and alcohol use and 

sexual conduct. This rule does not 

modify Federal regulations that prohibit 

assaulting, resisting, opposing, 

intimidating, sexually harassing, or 

bribing an observer, or interfering with 

an observer’s sampling or samples. 

Issue 3: Providing Observers for 

Research Activities 

Comment 12: NMFS received two 

comments in support of the regulatory 

amendment clarifying that observer 

providers can provide scientific data 

collectors in addition to observers. 

Response: NMFS acknowledges the 

support for this regulatory amendment. 

Comment 13: NMFS should consider 

including language for ‘‘catch monitors’’ 

in the event that the catch share policy 

being developed by NMFS includes this 

job category. 

Response: It is not prudent to add the 

term ‘‘catch monitor’’ to regulations 

implementing the Observer Program at 

this time, because this term has not been 

established nor defined for North Pacific 

groundfish fisheries and is not relevant 

to this final rule. 

Comment 14: The same standards that 

apply to observer deployments should 

apply to deployments of scientific data 

collectors for Experimental Fishing 

Permit (EFP) and Scientific Research 

Permit (SRP) projects, because 

researchers can influence who is hired 

by an observer provider to serve as a 

scientific data collector. Since much of 

the EFP and scientific research has 

implications for the fishing industry and 

is often partially funded by the industry, 

this could be perceived as a conflict of 

interest. These activities should be 

treated with the same code of conduct 

as in the Observer Program, including 

random placement of observers and 

public access to the data collected. 

Response: The decision to hire 

scientific data collectors is based on the 

nature of the experimental or scientific 

work being conducted. Sometimes data 

collectors are hired through an observer 

provider company. Data collected 

during EFP and SRP projects are neither 

submitted to NMFS nor incorporated 

into official catch accounting. As such, 

data collected during EFP and SRP 

projects are not considered to be 

‘‘observer information’’ and the scientific 

data collectors are not considered to be 

‘‘observers’’ as defined in the MSA. 

Therefore, regulations pertaining to 

observers, observer providers, or 

observer information do not apply to 

EFP or SRP projects. 

Issue 4: Fishing Day Definition 

Comment 15: Observer data need to 

be collected at times that are 

representative of an operation’s normal 

fishing activity. However, the proposed 

change to the fishing day definition will 

not sufficiently address the problem of 

vessel operators intentionally altering 

fishing activities while an observer is 

onboard. Instead, it merely shifts the 

start of the fishing day by 12 hours. 

Vessel operators will still have incentive 

to try to get small tows in at whatever 

time of day gets them the extra day of 

coverage. 

Response: NMFS acknowledges that 

the revised fishing day definition does 

not eliminate the potential for operators 

with a 30 percent observer coverage 

requirement to intentionally manipulate 

their observer coverage by altering their 

fishing behavior solely for the purpose 

of achieving required coverage levels. 

As noted in the RIR/IRFA prepared for 

this action (see ADDRESSES), the 

optimum resolution to the problem of 

vessels conducting non-representative 

fishing to meet 30 percent observer 

coverage requirements may be to 

restructure the service delivery model 

for the Observer Program such that 

NMFS would control when and where 

observers are deployed. NMFS and the 

Council are working on an analysis to 

evaluate alternatives for restructuring 

the Observer Program service delivery 

model, which may modify how fishing 

trips are selected for observer coverage. 

In the interim, NMFS expects the 

revision of the fishing day definition to 

reduce the extent to which fishing trips 

are modified solely to achieve observer 

coverage due to the economic 

disincentive of using daylight hours to 

return to port to drop off observers. 

NMFS also expects the requirement that 

an observer be on board a vessel for all 

retrievals in which groundfish are 

retained in a 24-hour period to increase 

the disincentive for either spending a 

full day conducting non-representative 

fishing, or to sacrifice a full day of 

fishing just to make one observer tow so 

that it counts towards a day of observer 

coverage. This action is intended to 

reduce the occurrence of nonrepresentative fishing behavior, though 

NMFS agrees that it will not eliminate 

the potential for manipulating the 

manner in which observer coverage is 

attained. 

Comment 16: To yield representative 

data, the requirement that 30 percent of 

an operation’s fishing activity be 

observed should be replaced with a 

requirement that 30 percent of the 

estimated total round weight of 

groundfish brought onboard be 

observed. It would be simple to track 

and estimate total round weight 

harvested by a vessel as current 

recordkeeping and reporting regulations 

require vessel operators to record the 

total estimated weight of groundfish 

brought onboard each day. This 

recommendation is similar to the 

approach adopted by NMFS to address 

non-representative fishing by vessels 

using pot gear. Observer coverage 

requirements previously based on 

fishing day are now based on pot 

counts. This proposed solution removes 

the opportunity for vessels to make 

observer tows which result in data that 

represents actual harvest. 

Response: Replacing the fishing day 

definition with a requirement that an 

observer observe 30 percent of an 

operation’s total catch or retained catch 

by round weight is unlikely to prevent 

operations from manipulating fishing 

behavior to meet observer coverage 

requirements. The alternative to base 

observer coverage requirements on 

harvest weight rather than fishing days 

was discussed and rejected by the 

Council’s Observer Advisory Committee 

in May 2007, because catch weight is 

estimated by vessel operators and 


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cannot be independently verified on 

catcher vessels or small catcher 

processors that discard fish at sea. 

Basing such a standard on retained 

catch weighed at the end of a fishing 

trip could exacerbate the generation of 

non-representative data from operations 

intentionally manipulating their discard 

amounts, recordkeeping and reporting, 

or other activities to meet coverage 

requirements. Observer data 

representing the actual spatial and 

temporal distribution of the fisheries are 

needed for reliable parameter estimates 

to manage the fisheries. 

Comment 17: NMFS should continue 

to pursue restructuring the Observer 

Program to randomize vessel selection 

and observer deployment on all vessels 

subject to less than 100 percent observer 

coverage. The revised fishing day 

definition in combination with a 

restructured Observer Program could 

virtually eliminate the potential for 

intentionally manipulating observer 

coverage requirements. 

Response: NMFS agrees that the 

optimum solution to this problem may 

be Observer Program restructuring. See 

response to Comment 15 above. 

Comment 18: Changing the fishing 

day definition from noon to noon 

increases the difficulty for vessel 

operators and observer providers to 

calculate observer coverage rates and 

does not eliminate the potential for the 

manipulation of observer coverage as 

intended. The requirement for the 

observer to be onboard for the full 24- 

hour period would solve the problem 

and there is no need to modify the 

definition of a day from 0001–2400 to 

1201–1200. 

Response: NMFS agrees that revising 

the fishing day definition does not 

prevent operations from manipulating 

the manner in which observer coverage 

requirements are met, and that 

modifying the fishing day definition 

from 0001–2400, to 1201–1200 creates 

the possibility for operations to merely 

shift the time of day in which they fish 

solely for observer coverage as 

discussed in the RIR/IRFA for this 

action (see ADDRESSES). However, the 

RIR/IRFA notes that fishery participants 

would be less likely to use the time 

period around noon to take observer 

tows because daylight hours correspond 

with better fishing. Anecdotal evidence 

suggests that participants would be less 

likely to attempt to manipulate the 

system during daylight hours because 

they would risk foregoing key fishing 

time. The extent of the economic 

disincentive for fishing solely for 

observer coverage during daylight hours 

cannot be quantified. NMFS agrees with 

the commenter that the component of 

the fishing day definition likely to have 

the largest impact on reducing fishing 

solely for observer coverage is the 

requirement that an observer be on 

board for the entire 24-hour period. 

NMFS expects the change in the time of 

the fishing day definition to reduce the 

practice of changing normal fishing 

operations to manipulate observer 

coverage. 

Comment 19: The proposed revision 

to the fishing day definition will reduce 

the intentional practice of ‘‘observer 

tows,’’ non-representative fishing 

activities that bias observer-collected 

data which form the basis of bycatch 

estimates and other scientific 

assessments. Because unbiased observer 

information is crucial to the proper 

management of fisheries in the North 

Pacific, this proposed action to reduce 

bias in observer data is an important 

step. 

Response: NMFS acknowledges the 

support for this amendment. 

Comment 20: NMFS should continue 

to monitor and record uncharacteristic 

fishing patterns following the 

implementation of this rule. 

Response: NMFS agrees. 

Issue 5: Observer Cost Information 

Comment 21: The requirement that 

observer provider invoices contain the 

name of the observer assigned to the 

vessel or plant would require observer 

providers to modify their business 

practices. Invoicing occurs at the 

beginning of a month for services in that 

month. It is not possible to reliably 

predict the name of the observer that 

will provide coverage to a particular 

vessel or plant over the course of the 

month. Adding the observer’s name to 

invoices would require duplication of 

billing process solely to comply with 

this requirement. Because existing 

regulations require observer providers to 

submit a weekly roster to NMFS 

containing the names and assignments 

of every observer, this requirement 

would create an additional burden to 

provide information already made 

available to NMFS by the observer 

provider. 

Response: NMFS agrees. NMFS 

proposed to have ‘‘observer name’’ 

provided on invoices submitted by 

observer providers to serve as an 

additional data field to link observer 

provider invoice information to 

Observer Program databases containing 

information about specific observer 

fishing trips or deployments. The ability 

to link observer provider invoice 

information to Observer Program 

databases is necessary to increase the 

level of detail for NMFS to analyze 

costs. For example, this would allow 

NMFS to know which target fishery is 

linked to a particular invoice. NMFS 

recognizes the difficulty that the 

requirement to include ‘‘observer name’’ 

would impose on observer providers. As 

discussed in the RIR/IRFA (see 

ADDRESSES), this action was designed 

with the objective of not modifying the 

existing billing practices of the directly 

regulated observer providers affected by 

this rule. While the inclusion of the 

observer’s name would aid in linking 

invoice information to the Observer 

Program database, it is not required to 

achieve this linkage. Because this 

provision would require observer 

providers to substantially modify their 

billing practices and therefore impose 

an additional burden, NMSF has 

modified the final rule to exclude the 

proposed requirement that observer 

provider invoices contain the name of 

the observer. 

Comment 22: We support gathering 

observer cost information through the 

collection of invoices. Invoices should 

also be included for research activities 

that involve observers and the Observer 

Program. 

Response: As explained in response to 

Comment 14, data collected during 

experimental or research activities are 

not considered ‘‘observer information,’’ 

nor are the scientific data collectors 

considered ‘‘observers’’ per the 

definition in the MSA. Therefore, 

regulations applicable to observers, 

observer providers, and observer 

information are not applicable to EFP or 

SRP cruises. 

Comment 23: Collection of observer 

provider invoices will improve analyses 

of Observer Program costs and benefits. 

This approach for collecting cost 

information will— 

• Ground-truth industry’s claims of 

overly burdensome economic impacts 

imposed by observer coverage costs; 

• Inform policies to ensure that 

observer costs do not present an undue 

burden to industry; and 

• Impose no additional burden on the 

regulated industry as this information is 

already collected and maintained on file 

with observer providers. 

Response: NMFS acknowledges 

support for this amendment. 

Other Comments 

Comment 24: Observers are not 

effective because they can be threatened 

with violence. 

Response: NMFS disagrees. Observers 

have provided valuable information for 

managing the groundfish fisheries off 

Alaska for over twenty years. See the 

response to Comment 10. 


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Comment 25: Cameras should be 

required on vessels, and vessels should 

not be allowed to fish without cameras. 

Response: This rule addresses 

administrative changes to the existing 

Observer Program regulations at 50 CFR 

679.50; it does not encompass 

alternative monitoring sources such as 

cameras. At its June 2010 meeting, the 

Council expressed its intent to pursue 

options for an electronic monitoring 

program to augment or replace observer 

coverage on specific vessels and to 

develop and implement such a program 

in coordination with the proposed 

restructured Observer Program under 

consideration by the Council. NMFS 

will be coordinating closely with the 

Council as options for expanded uses of 

electronic monitoring are developed. 

Changes From the Proposed Rule 

Four substantive changes were made 

in the final rule from the proposed rule. 

NMFS has made changes to Issue 2 

Observer Conduct, and Issue 5 Observer 

Cost Information. The changes under 

Issue 2 comprise two technical 

clarifications identified by NMFS. Two 

changes are also made to Issue 5: One 

resulting from public comment received 

on the proposed rule; and one 

facilitating collection of observer cost 

information on a continual basis 

consistent with the purpose and need 

for the action and with other economic 

data collection programs adopted by the 

Council and administered by NMFS. 

NMFS consulted with the Council on 

these changes during the December 

2009 meeting as required under Section 

304(b)(3) of the MSA. The Council 

concurred with all of NMFS’s proposed 

changes to the proposed rule. The 

changes are described below. 

Under Issue 2, this final rule clarifies 

that observer providers must implement 

their policies addressing observer 

conduct and behavior for their 

employees that serve as observers. The 

wording of the proposed rule might 

have been interpreted to require that 

observer providers merely develop and 

maintain a written policy addressing 

observer conduct and behavior for their 

employees. The final rule clarifies 

NMFS’s intent that observer providers 

are responsible for implementing their 

conduct policies, rather than just 

maintaining their written policies. 

Also under Issue 2, this final rule 

removes the deadline in the proposed 

rule that would have required observer 

providers to provide copies of their 

observer conduct policies to observer 

candidates and observers by February 1 

of each year. It is not practical for 

observer providers to comply with the 

proposed regulation, as all observer 

candidates and observers may not be 

known by February 1 of each year. This 

final rule retains the February 1 

deadline for observer providers to 

submit a copy of their conduct policies 

to the Observer Program Office; 

however, it does not specify a deadline 

for when observer conduct policies 

must be provided to observer candidates 

and observers, though this rule requires 

observers and observer candidates to be 

provided with the observer provider’s 

policy. 

Under Issue 5, the proposed rule 

would have required observer providers 

to submit copies of their invoices for 

services provided in the North Pacific 

groundfish fisheries to NMFS so that 

NMFS may understand the industry’s 

observer coverage costs. The proposed 

rule preserved the intent of the 

Council’s April 2008 motion and stated 

that observer providers would be 

required to submit to NMFS invoices on 

a monthly basis for a full calendar year 

every third year. The RIR/IRFA 

prepared for this action (see ADDRESSES) 

describes the minimal burden for 

observer providers to provide this 

information to NMFS and the 

shortcomings of an episodic data 

collection program. In the preamble to 

the proposed rule, NMFS expressed 

concerns with the proposed 3-year data 

collection interval. The preamble 

highlighted that a 3-year interval would 

delay NMFS’s ability to detect trends in 

observer coverage costs. Furthermore, a 

periodic data collection cycle would 

reduce the precision of any temporal 

variability evaluation. As noted in the 

preamble to the proposed rule, the 

Council’s preferred alternative would 

not allow for a complete, continuous 

overview of the industry’s observer 

costs due to the 3-year lapse between 

data collection cycles. Finally, a 3-year 

lapse in data collection cycles departs 

from NMFS’s other ongoing economic 

data collection programs, which collect 

economic data annually. When 

compared to other annual collection 

programs, a three-year collection cycle 

would be an anomaly and less robust. 

Although NMFS highlighted its 

concern with the Council’s 

recommendation to collect the monthly 

invoices every 3 years in the proposed 

rule, no public comment was received 

on this issue. Therefore, for the reasons 

described above and in the remainder of 

this paragraph, the final rule requires 

that observer providers submit copies of 

their invoices to NMFS on a monthly 

basis every year rather than on a 

monthly basis only every 3 years as 

stated in the proposed rule. Invoices are 

already maintained by providers and 

monthly submissions will provide 

timely information to assess the nature 

of change in observer costs for purposes 

of analyses of proposed fishery 

management and conservation actions. 

These assessments will become 

increasingly important if observer 

coverage in the future is provided under 

private contract arrangements between 

NMFS and observer providers; this 

approach would reflect a significant 

change in how observers are deployed 

and currently is under consideration by 

the Council. Invoices must be submitted 

to NMFS within 45 days of the date on 

the invoice. This provides a grace 

period between the time invoices are 

prepared and when they must be 

received by NMFS. 

Also under Issue 5, this final rule 

modifies the elements required to be 

submitted to NMFS on an observer 

provider’s invoice. The preamble to the 

proposed rule listed the items required 

to be contained on the invoices 

submitted to NMFS. In the preamble, 

the corresponding observer’s name was 

listed as a required invoice element; 

however ‘‘observer name’’ was 

inadvertently excluded from the 

regulatory text in the proposed rule. 

During the public comment period one 

observer provider commented that it 

would have to substantially modify its 

billing practice to include ‘‘observer 

name’’ on a monthly invoice, as it bills 

clients at the beginning of the month, 

before an observer is selected and 

assigned to the client (see Comment 21, 

above). Because this element would 

impose a substantial compliance burden 

on the observer provider, and because it 

is not imperative for NMFS to have the 

observer’s name on the invoice to 

conduct economic analyses, ‘‘observer 

name’’ is not included in the list of 

required invoice elements in the final 

rule. Also see response to Comment 21. 

Classification 

The Administrator, Alaska Region, 

NMFS determined that this final rule is 

necessary for the conservation and 

management of the groundfish fisheries 

off Alaska and that it is consistent with 

the Magnuson-Stevens Act and other 

applicable law. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared, as required by 

section 604(a) of the Regulatory 

Flexibility Act (RFA). The FRFA 

incorporates the initial regulatory 

flexibility analysis (IRFA) and provides 

a summary of the analyses completed to 

support the action. A copy of this 

analysis is available from NMFS (see 

ADDRESSES). 


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Need for, and Objectives of, the Rule 

The need for, and objectives of, this 

final rule are described in the preamble. 

Significant Issues Raised by Public 

Comment on the IRFA 

No public comments were received 

specifically on the IRFA. However, one 

change was made to the final rule in 

response to a comment from an observer 

provider (a small entity). See response 

to Comment 21. 

Description and Number of Small 

Entities to Which the Final Rule Would 

Apply 

The directly regulated entities are 

different under the various issues 

addressed in this final rule. Since the 

RFA is applicable to businesses, nonprofit organizations, and governments, 

observers fall outside of the scope of the 

RFA. Therefore, Issue 1, which affects 

observers only, is not discussed in the 

FRFA. 

Five companies hold observer 

provider permits and are active in the 

North Pacific. These entities will be 

directly regulated by revisions 

implemented under Issues 2, 3, 5, and 

6 of this final rule. As explained in the 

FRFA, all of the current observer 

provider companies are considered 

small entities under the RFA. Small 

observer provider firms that in the 

future obtain a permit to provide 

observer services will be regulated by 

observer provider permitting and 

responsibility regulations revised by 

this final rule; however, the potential 

number of these firms cannot be 

estimated and they are not considered 

directly regulated under this action. 

Trawl and hook-and-line catcher 

vessels (CV) and catcher/processors (CP) 

subject to 30 percent observer coverage 

requirements will be directly regulated 

by the revision to the definition of 

‘‘fishing day’’ under Issue 4 in this final 

rule. In the BSAI and GOA, with several 

exceptions for vessels participating in 

specific programs, these include trawl 

and hook-and-line catcher vessels 

between 60 feet and 125 feet length 

overall (LOA), and hook-and-line CPs 

between 60 feet and 125 feet LOA. 

American Fisheries Act (AFA) 

(16 U.S.C. 1851 note) trawl CVs subject 

to 30 percent observer coverage 

requirements are categorized as large 

entities for the purpose of the RFA 

under the principles of affiliation, as 

they are part of the AFA pollock harvest 

cooperatives. The table below lists the 

number of directly regulated small 

entities, by sector, that may be affected 

by the revised ‘‘fishing day’’ definition. 

The FRFA likely overestimates the 

number of directly regulated small 

entities. NMFS does not have access to 

data on ownership and other forms of 

affiliation for most segments of the 

fishing industry operating off Alaska, 

nor does NMFS have information on the 

combined annual gross receipts for each 

entity by size. Absent these data, a more 

precise characterization of the size 

composition of the directly regulated 

entities impacted by this action cannot 

be offered. 

ESTIMATE OF THE NUMBER OF SMALL

ENTITIES POTENTIALLY DIRECTLY

REGULATED BY ISSUE 4 OF THE

FINAL RULE: 

Sector 

Number 

of small 

entities 

Trawl CV > 60′ and ≤ 125′ ............ 22 

Trawl CP > 60′ and ≤ 125′ ............ 1 

Hook and Line CV > 60′ and 

≤ 125′ ......................................... 78 

Hook and Line CP > 60′ and 

≤ 125′ ......................................... 2 

Projected Reporting, Recordkeeping, 

and Other Compliance Requirements 

Actions under Issue 2 and Issue 5 

include additional recordkeeping and 

reporting requirements for the five 

observer providers currently supplying 

services to the Observer Program. 

Regulatory amendments made under 

Issue 6 impose a deadline for 

submission of information that is 

already required of observer providers 

in existing regulations. 

Revised regulations under Issue 2 

require observer providers to have and 

implement a policy related to observer 

alcohol, drugs, and sexual contact; 

provide NMFS a copy of the conduct 

policy by February 1, of each year; and 

to notify NMFS of a violation of the 

observer provider’s policy within 72 

hours after the provider determines that 

an observer violated a conduct policy, 

including the underlying facts and 

circumstances of the violation. Current 

regulations at § 679.50(i)(2)(x)(I) require 

an observer provider to notify NMFS of 

other types of conduct violations within 

24 hours of becoming aware of the 

alleged violation; this final rule does not 

substantially alter that reporting 

requirement. It may take 20 minutes or 

less for an employee of the observer 

provider company to report this 

information to NMFS, as fax or email 

are acceptable means of communication. 

Compliance costs under Issue 4 will 

be somewhat reduced by the delay in 

effectiveness to January 1, 2011. The 

revision to the definition of a fishing 

day affects the calculation of days that 

an observer is onboard vessels greater 

than or equal to 60 ft LOA, but less than 

125 ft LOA that are subject to 30 percent 

observer coverage requirements under 

§ 679.50. Effectiveness of this change in 

definition is delayed to the first day of 

the next calendar quarter, which is 

January 2, 2011. This will delay any 

costs associated with the need for more 

observer coverage days each quarter for 

vessels in the 30 percent observer 

coverage category as a result of the 

change in the definition of a fishing day. 

It also will reduce any administrative 

costs associated with the additional 

complexity that would have been 

caused by changing the method for 

calculating observer coverage days in 

the middle of a calendar quarter. 

Under Issue 5, this final rule requires 

observer providers to submit copies of 

billing invoices to NMFS once a month 

on a continual basis. This recordkeeping 

and reporting requirement will not 

require observer providers to modify or 

interpret their billing invoices. 

Under Issue 6, existing regulations are 

modified by imposing a February 1 

deadline for observer providers to 

submit to NMFS each type of contract 

they have entered into with observers or 

the fishing industry. Because 

regulations already require observer 

provider companies to submit this 

information to NMFS, and because most 

observer provider companies have been 

submitting this information by February 

1 in the past, this regulatory amendment 

should impose virtually no additional 

net burden on the observer provider 

companies. 

Reason for Selecting the Alternatives in 

the Final Rule 

The preferred alternative for each 

issue was selected as the least 

economically burdensome alternative 

that met the purpose and need for action 

based upon the analysis in the RIR/IRFA 

and FRFA (See ADDRESSES). The 

Council selected the only action 

alternative available under Issues 1, 2, 3, 

and 6. Issues 1 and 6 do not affect small 

entities. The preferred alternative under 

Issue 2, regarding observer conduct 

policies, is expected to have a minimal 

cost to observer providers, as described 

above. Issue 3, clarifying that observer 

providers may provide observers or 

scientific data collectors for research, 

does not impost costs on small entities. 

Revisions to the definition of a fishing 

day under Issue 4 could increase costs 

for vessel owners in some cases because 

they may need to take longer fishing 

trips under the revised definition. 

Longer trips would require them to 

carry observers for more days than they 

do under current regulations and pay 


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more for observer coverage as a result of 

these additional observer days. 

However, the objective of the revised 

definition is to prevent vessel operators 

from making fishing trips that do not 

reflect their normal fishing patterns as 

this non-representative behavior biases 

the observer-collected information. 

Therefore, the additional costs that may 

be incurred by vessel owners are 

necessary to address a problem that 

potentially reduces the quality of 

observer data collected to manage the 

groundfish fisheries off Alaska. 

There were three action alternatives 

for Issue 5, and the Council selected the 

least economically burdensome 

alternative for observer providers by 

rejecting alternatives that would have 

required providers to compile annual 

expense reports summarized by fishery 

or expense category. The alternative that 

would require observer providers to 

submit copies of invoices already 

prepared as part of their standard 

bookkeeping was determined to be less 

burdensome on small entities than the 

other alternatives. 

The Council sought to further reduce 

the economic burden on observer 

providers by requiring them to submit 

copies of their invoices only on a 

monthly basis for a full calendar year 

every third year; however, in this final 

rule, observer providers are required to 

submit copies of their invoices to NMFS 

on a monthly basis every year, in line 

with their present accounting practices. 

Although this alternative is not the least 

economically burdensome on the 

observer providers, NMFS determined 

that it is necessary because a 3-year 

interval would delay NMFS’s ability to 

detect trends in observer coverage costs 

and a periodic data collection cycle 

would reduce the precision of any 

temporal variability evaluation. The 

additional economic burden on the 

observer providers is expected to be 

small because invoices are already 

maintained by providers and monthly 

submissions will provide timely 

information to assess the nature of 

change in observer costs for purposes of 

analyses of proposed fishery 

management and conservation actions. 

Collection-of-Information 

This rule contains a collection-ofinformation requirement subject to 

review and approval by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act (PRA). 

This requirement has been approved 

under OMB Control Number 0648–0318. 

Public reporting burden is estimated to 

average 30 minutes per individual 

response for Copies of Invoices; 15 

minutes for Observer Provider Contract 

Copies; two hours for Other Reports; 40 

hours for Appeals for Observer Provider 

Permit Expiration or Denial of Permit 

(this item is removed with this action); 

and 40 hours for Observer Conduct and 

Behavior Policy, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. The PRA analysis 

submitted with this rule estimates the 

economic impact on each observer 

provider to range from $148 to $622 per 

year for copying and submitting copies 

of billing invoices to NMFS depending 

on whether the invoices are submitted 

via e-mail or fax, respectively. The PRA 

analysis estimates a one-time expense of 

$1,025 for observer providers to develop 

observer conduct policies and submit 

copies of them to NMFS. This is likely 

an overestimate as all active groundfish 

observer providers in the North Pacific 

currently have drug policies and four of 

the five have alcohol policies. Send 

comments regarding this burden 

estimate, or any other aspect of this data 

collection, including suggestions for 

reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: November 4, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

679 as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 1. The authority citation for 50 CFR 

part 679 continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1801 et 

seq.; 3631 et seq.; Pub. L. 108–447. 

■ 2. In § 679.2, revise the definition of 

‘‘Fishing day’’ to read as follows: 

§ 679.2 Definitions. 

* * * * * 

Fishing day means (for purposes of 

subpart E of this part) a 24-hour period, 

from 1201 hours, A.l.t. through 1200 

hours, A.l.t., in which fishing gear is 

retrieved and groundfish are retained. 

An observer must be on board for all 

gear retrievals during the 24-hour period 

in order to count as a day of observer 

coverage. Days during which a vessel 

only delivers unsorted codends to a 

processor are not fishing days. 

* * * * * 

■ 3. In § 679.50: 

■ A. Remove and reserve paragraph 

(i)(1)(iii)(B) and remove paragraphs 

(i)(1)(iv), (i)(2)(i)(C)(1), (j)(1)(iv)(B), and 

(j)(2)(ii)(D). 

■ B. Redesignate paragraphs (i)(1)(v) 

through (viii) as paragraphs (i)(1)(iv) 

through (vii), respectively. 

■ C. Redesignate paragraphs 

(i)(2)(i)(C)(2) through (4) as paragraphs 

(i)(2)(i)(C)(1) through (3), respectively. 

■ D. Redesignate paragraphs (i)(2)(iii) 

through (xii) as paragraphs (i)(2)(iv) 

through (xiii), respectively. 

■ E. Redesignate newly redesignated 

paragraphs (i)(2)(xi)(H) and (I) as 

paragraphs (i)(2)(xi)(I) and (J), 

respectively, and further redesignate 

paragraphs (i)(2)(xi)(J)(1) through (5) as 

paragraphs (i)(2)(xi)(J)(1)(i) through (v), 

respectively. 

■ F. Redesignate paragraphs (i)(3)(i) 

through (iii) as paragraphs (i)(3)(ii) 

through (iv), respectively. 

■ G. Redesignate paragraph (j)(1)(iv)(C) 

as paragraph (j)(i)(iv)(B). 

■ H. Add paragraphs (i)(2)(iii), 

(i)(2)(xi)(H), (i)(2)(xi)(J)(1) introductory 

text, (i)(2)(xi)(J)(2), and (i)(3)(i). 

■ I. Revise paragraphs (i)(1)(i)(A), 

(i)(1)(iii)(A) introductory text, 

(i)(2)(i)(B), (j)(1)(iii)(B) introductory text, 

(j)(1)(iv)(A), (j)(2)(ii) introductory text, 

and (j)(2)(ii)(A) through (C). 

■ J. Revise newly redesignated 

paragraphs (i)(1)(iv), (i)(1)(vi)(B), 

(i)(2)(xi)(G) first sentence, (i)(2)(xi)(J) 

introductory text, (i)(2)(xi)(J)(1)(v), and 

(i)(3)(ii) introductory text. 

The revisions and additions read as 

follows: 

§ 679.50 Groundfish Observer Program. 

* * * * * 

(i) * * * 

(1)* * * 

(i) * * * 

(A) The Regional Administrator may 

issue a permit authorizing a person’s 

participation as an observer provider. 

Persons seeking to provide observer 

services under this section must obtain 

an observer provider permit from 

NMFS. 

* * * * * 

(iii) * * * 


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(A) The Regional Administrator will 

establish an observer provider permit 

application review board, composed of 

NMFS staff, to review and evaluate an 

application submitted under paragraph 

(i)(1) of this section. The review board 

will evaluate the completeness of the 

application, the application’s 

consistency with needs and objectives 

of the observer program, or other 

relevant factors, and the following 

criteria for each owner, or owners, board 

members, and officers if a corporation: 

* * * * * 

(iv) Agency determination on an 

application. NMFS will send a written 

determination to the applicant. If an 

application is approved, NMFS will 

issue an observer provider permit to the 

applicant. If an application is denied, 

the reason for denial will be explained 

in the written determination. 

* * * * * 

(vi) * * * 

(B) The Regional Administrator will 

provide a written initial administrative 

determination (IAD) to an observer 

provider if NMFS’s deployment records 

indicate that the permit has expired. An 

observer provider who receives an IAD 

of permit expiration may appeal under 

§ 679.43. A permit holder who appeals 

the IAD will be issued an extension of 

the expiration date of the permit until 

after the final resolution of that appeal. 

* * * * * 

(2) * * * 

(i) * * * 

(B) Prior to hiring an observer 

candidate, the observer provider must 

provide to the candidate copies of 

NMFS-provided pamphlets and other 

literature describing observer duties. 

* * * * * 

(iii) Observer conduct. (A) An 

observer provider must develop, 

maintain, and implement a policy 

addressing observer conduct and 

behavior for their employees that serve 

as observers. The policy shall address 

the following behavior and conduct 

regarding: 

(1) Observer use of alcohol; 

(2) Observer use, possession, or 

distribution of illegal drugs; and 

(3) Sexual contact with personnel of 

the vessel or processing facility to 

which the observer is assigned, or with 

any vessel or processing plant personnel 

who may be substantially affected by 

the performance or non-performance of 

the observer’s official duties. 

(B) An observer provider shall 

provide a copy of its conduct and 

behavior policy: 

(1) To observers, observer candidates; 

and 

(2) By February 1 of each year to the 

Observer Program Office. 

* * * * * 

(xi) * * * 

(G) Observer provider contracts. 

Observer providers must submit to the 

Observer Program Office a completed 

and unaltered copy of each type of 

signed and valid contract (including all 

attachments, appendices, addendums, 

and exhibits incorporated into the 

contract) between the observer provider 

and those entities requiring observer 

services under paragraphs (c) and (d) of 

this section, by February 1 of each year. 

* * * 

* * * * * 

(H) Observer provider invoices. 

Certified observer providers must 

submit to the Observer Program Office 

copies of all invoices for observer 

coverage required or provided pursuant 

to paragraphs (c) and (d) of this section. 

(1) Copies of invoices must be 

received by the Observer Program Office 

within 45 days of the date on the 

invoice and must include all reconciled 

and final charges. 

(2) Invoices must contain the 

following information: 

(i) Name of each individual catcher/ 

processor, catcher vessel, mothership, 

stationary floating processor, or 

shoreside processing plant to which the 

invoice applies; 

(ii) Dates of service for each observer 

on each catcher/processor, catcher 

vessel, mothership, stationary floating 

processor, or shoreside processing plant. 

Dates billed that are not observer 

coverage days shall be identified on the 

invoice; 

(iii) Rate charged in dollars per day 

(daily rate) for observer services; 

(iv) Total charge for observer services 

(number of days multiplied by daily 

rate); 

(v) Amount charged for air 

transportation; and 

(vi) Amount charged by the provider 

for any other observer expenses, 

including but not limited to: Ground 

transportation, excess baggage, and 

lodging. Charges for these costs must be 

separated and identified. 

* * * * * 

(J) Other reports. Reports of the 

following must be submitted in writing 

to the Observer Program Office by the 

observer provider via fax or email: 

(1) Within 24 hours after the observer 

provider becomes aware of the 

following information: 

* * * * * 

(v) Any information, allegations or 

reports regarding observer conflict of 

interest or failure to abide by the 

standards of behavior described at 

paragraph (j)(2)(i) or (j)(2)(ii) of this 

section, or; 

(2) Within 72 hours after the observer 

provider determines that an observer 

violated the observer provider’s conduct 

and behavior policy described at 

paragraph (i)(2)(iii)(A) of this section; 

these reports shall include the 

underlying facts and circumstances of 

the violation. 

* * * * * 

(3) * * * 

(i) Are authorized to provide observer 

services under an FMP for the waters off 

the coast of Alaska as required in this 

part, or scientific data collector and 

observer services to support NMFSapproved scientific research activities, 

exempted educational activities, or 

exempted or experimental fishing as 

defined in § 600.10 of this chapter. 

(ii) Must not have a direct financial 

interest, other than the provision of 

observer or scientific data collector 

services, in a North Pacific fishery 

managed under an FMP for the waters 

off the coast of Alaska, including, but 

not limited to: 

* * * * * 

(j) * * * 

(1) * * * 

(iii) * * * 

(B) New observers. NMFS may certify 

individuals who, in addition to any 

other relevant considerations: 

* * * * * 

(iv) * * * 

(A) Denial of a certification. The 

NMFS observer certification official will 

issue a written determination denying 

observer certification if the candidate 

fails to successfully complete training, 

or does not meet the qualifications for 

certification for any other relevant 

reason. 

* * * * * 

(2) * * * 

(ii) Standards of Behavior. Observers 

must: 

(A) Perform their assigned duties as 

described in the Observer Manual or 

other written instructions from the 

Observer Program Office; 

(B) Accurately record their sampling 

data, write complete reports, and report 

accurately any observations of 

suspected violations of regulations 

relevant to conservation of marine 

resources or their environment; and 

(C) Not disclose collected data and 

observations made on board the vessel 

or in the processing facility to any 

person except the owner or operator of 

the observed vessel or processing 

facility, an authorized officer, or NMFS. 

* * * * * 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 217 / Wednesday, November 10, 2010 / Rules and Regulations 69025 

§ 679.50 [Amended] 

■ 4. At each of the locations shown in 

the Location column, remove the phrase 

indicated in the ‘‘Remove’’ column and 

replace it with the phrase indicated in 

the ‘‘Add’’ column for the number of 

times indicated in the ‘‘Frequency’’ 

column. 

Location at § 679.50 Remove Add Frequency 

Newly redesignated (i)(2)(i)(C)(3) ............. in paragraph (i)(2)(x)(C) of this ................. in paragraph (i)(2)(xi)(C) of this ................ 1 

(i)(2)(ii)(A) .................................................. under paragraph (i)(2)(x)(E) of this .......... under paragraph (i)(2)(xi)(E) of this .......... 1 

Newly redesignated (i)(2)(iv)(B) ................ in paragraph (i)(2)(x)(C) of this ................. in paragraph (i)(2)(xi)(C) of this ................ 1 

Newly redesignated (i)(2)(vii)(B) ............... in paragraphs (i)(2)(vi)(C) and (i)(2)(vi)(D) 

of this.

in paragraphs (i)(2)(vii)(C) and 

(i)(2)(vii)(D) of this.

1 

Newly redesignated (i)(2)(xi)(C) ................ paragraph (i)(2)(i)(B)(1) of ........................ paragraph (i)(2)(i)(B) of ............................. 1 

(j)(1)(iii)(B)(2)(i) ......................................... at paragraphs (i)(2)(x)(A)(1)(iii) and ......... at paragraphs (i)(2)(xi)(A)(1)(iii) and ......... 1 

(j)(1)(iii)(B)(2)(ii) ......................................... at paragraph (i)(2)(x)(C) ........................... at paragraph (i)(2)(xi)(C) ........................... 1 

(j)(1)(iii)(B)(3) ............................................. and (i)(2)(x)(C) .......................................... and (i)(2)(xi)(C) ......................................... 1 

(j)(1)(iii)(B)(4)(ii) ......................................... the candidate failed the training; whether the candidate failed the training and 

whether.

1 

(j)(1)(iii)(B)(4)(ii) ......................................... in the form of an IAD denying .................. in the form of a written determination denying.1 

(j)(3)(iii) ...................................................... will issue a written IAD to the observer .... will issue a written initial administrative 

determination (IAD) to the observer.

1 

[FR Doc. 2010–28325 Filed 11–9–10; 8:45 am] 

BILLING CODE 3510–22–P 


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