Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 50155 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we’’, ‘‘us’’, 

and ‘‘our’’ refer to EPA. 

I. General Information 

A. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify this ANPR by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

B. Where Can I Get a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of the 

Advanced Notice of Proposed 

Rulemaking is available at http:// 

www.epa.gov/region09/air/navajo/ 

index.html#upcoming. Following 

signature by the EPA Regional 

Administrator, a copy of this extension 

notice will be posted at the same Web 

site. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: September 22, 2009. 

Jane Diamond, 

Acting Regional Administrator, Region IX. 

[FR Doc. E9–23633 Filed 9–29–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 080228322–8338–01] 

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: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes this rule to 

amend regulations supporting the North 

Pacific Groundfish Observer Program 

(Observer Program). This action is 

necessary to improve the operational 

efficiency of the 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 that provided through 

scientific research activities. The 

proposed rule is intended to promote 

the goals and objectives of the Fishery 

Management Plan (FMP) for Groundfish 

of the Bering Sea and Aleutian Islands 

Management Area and the FMP for 

Groundfish of the Gulf of Alaska. 

DATES: Written comments must be 

received by October 30, 2009 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by ‘‘RIN 0648– 

AW24,’’ by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: 907–586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to NMFS (see 

ADDRESSES) and by e-mail to 

DavidlRostker@omb.eop.gov or by fax 

to 202–395–7285. 

Copies of the Regulatory Impact 

Review/Initial Regulatory Flexibility 

Analysis (RIR/IRFA) prepared for this 

action may be obtained from the NMFS 

Alaska Region website at http:// 

alaskafisheries.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Brandee Gerke, 907–586–7228. 

SUPPLEMENTARY INFORMATION: 

Background 

NMFS manages the U.S. groundfish 

fisheries in the Exclusive Economic 

Zone (EEZ) of the Bering Sea and 

Aleutian Islands Management Area 

(BSAI) and Gulf of Alaska (GOA) under 

the FMP for Groundfish of the BSAI and 

the FMP for Groundfish of the GOA, 

respectively. The North Pacific Fishery 

Management Council (Council) 

prepared these FMPs pursuant to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA), 16 U.S.C. 1851–1891d. 

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 

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. 


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50156 Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 

This proposed rule would amend 

regulations at § 679.2 and § 679.50 

applicable to observer providers, 

observers, and industry required to 

carry observers. The proposed 

regulatory amendments are organized 

under six issues and would: remove 

regulations that are unnecessary, 

impractical to apply, or are considered 

to be unenforceable; revise regulations 

to explicitly 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 to NMFS, an exemplary copy of 

each of type of contract they enter into 

with observers and the fishing industry 

to NMFS. The Council selected a 

preferred alternative for each of these 

issues at its April 2008 meeting. This 

action is necessary to improve the 

operational efficiency of the existing 

Observer Program, as well as to improve 

the catch, bycatch, and biological data 

provided by observers for conservation 

and management of the North Pacific 

groundfish fisheries, including those 

provided through scientific research 

activities. 

Issue 1: Observer Certification and 

Observer Provider Permitting Process 

Persons seeking to provide observer 

services or work as an observer under 

§ 679.50 must obtain an observer 

provider permit or observer 

certification, respectively, from NMFS. 

The granting or denial of observer 

provider permits and observer 

certifications are discretionary agency 

actions. This proposed rule expands 

NMFS’ discretion to consider additional 

needs and objectives of the Observer 

Program and other relevant factors when 

considering whether or not to issue a 

new observer provider permit or 

observer certification. 

Existing regulations at § 679.50 

obligate NMFS to grant a provider 

permit to an applicant who submits a 

complete application, meets narrowlydefined criteria regarding criminal 

history and past performance on federal 

contracts, and has no conflict(s) of 

interest with the fishing industry. These 

regulations prevent NMFS from 

exercising its discretion to not issue 

permits when other concerns or 

inconsistencies with the Observer 

Program’s goals and objectives have 

been identified in a permit application. 

This proposed rule would expand 

NMFS’ discretion by broadening the 

conditions the observer provider permit 

application review board may consider 

in deciding whether or not to issue a 

new permit. Moreover, this proposed 

rule would remove the application 

evidentiary period at § 679.50(i)(1)(iv). 

This would allow NMFS to tailor a time 

period in which an applicant may 

provide additional information on a 

case-by-case basis. 

Current regulations at 

§ 679.50(j)(1)(iv) provide an appeal 

forum to a candidate for observer 

certification who fails training to the 

extent that the program certification 

official determines that the candidate 

demonstrates ‘‘unresolvable 

deficiencies’’ and should not be allowed 

to re-enter a subsequent training class. 

Most candidates who fail the initial 

training are permitted to retake it. 

However, in the rare instance that a 

candidate’s performance is deficient to 

the extent he or she is unlikely to 

improve performance, the certification 

official can issue an Initial Agency 

Decision (IAD) denying readmission 

into a training class. The same appeal 

forum is provided at § 679.50(i)(1)(v) for 

an observer provider applicant who is 

denied an observer provider permit. As 

explained in the RIR/IRFA for this 

proposed rule, the appeal forum at 

§ 679.50(j)(1)(iv) has only been activated 

on two occasions and has not resulted 

in the subsequent certification of an 

observer candidate. One appeal resulted 

in the decision that an observer could 

retake training; however, that candidate 

never returned to training. When it has 

been activated, the appeal process 

requires both Observer Program staff 

and NOAA General Counsel to devote a 

substantial amount of time to the 

appeal. Moreover, the appellate forum 

process can consume up to a year before 

an appeal is resolved, a situation that 

does not facilitate an observer 

candidate’s interest in obtaining training 

and a certification for employment 

within reasonable time frame. 

Therefore, NMFS proposes to remove 

the appeal forum provided for observer 

candidates who fail training and who 

are notified that they may not retake the 

course, and for observer provider 

applicants whose permit applications 

are denied to better allocate scarce 

agency resources. This proposed rule 

does not affect the ability of observers 

and observer providers to appeal any 

decision to revoke or sanction a 

certification or permit that is already 

issued. 

Issue 2: Observer Conduct 

Current regulations at 

§ 679.50(j)(2)(ii)(D) attempt to control 

observer conduct so that certified 

observers present themselves 

professionally on vessels, at plants, at 

NMFS sites, and in fishing 

communities. NMFS has found these 

regulations impractical to apply and 

potentially unenforceable. For example, 

for NMFS to decertify an observer who 

has violated the Observer Program’s 

drug and alcohol policy, or the 

regulation that prohibits observers from 

engaging in physical sexual contact with 

personnel of the vessel or processing 

facility to which the observer is 

assigned, NMFS must establish 

connection between the unsanctioned 

behavior and the collection of reliable 

fisheries data. Proving that such a 

connection exists, especially in cases in 

which the unsanctioned behavior occurs 

outside of the workplace, can be very 

difficult. Moreover, some of the observer 

conduct regulations are vague and 

impractical to apply. For example, 

current regulations require observers to 

‘‘refrain from engaging in any activities 

that would reflect negatively on their 

image as professional scientists, on 

other observers, or on the Observer 

Program as a whole.’’ (50 CFR 

679.50(j)(2)(ii)(D).). The regulations offer 

observers no guidance as to the types of 

behavior that is prohibited, nor does 

NMFS have any practical means to 

enforce adherence to these vague 

standards. 

Due to the impracticality of applying 

these regulations and proving these 

connections, NMFS has determined that 

it should not attempt to regulate 

observer behavior that does not directly 

affect observer job performance and 

views the prescription of conduct 

standards as an employer responsibility. 

Therefore, NMFS proposes to remove 

current regulations at 

§ 679.50(j)(2)(ii)(D) that attempt to 

control observer behavior related to 

activities involving drugs, alcohol, and 

physical sexual conduct, and to remove 

references to the Observer Program’s 

drug and alcohol policies in the 

regulations. 

In recognition of the fact that drug 

and alcohol use and physical sexual 

activity while deployed may affect an 

observer’s ability to perform his or her 

duties and may compromise workplace 

safety, regulations would be revised to 

require each observer provider to have 

a policy addressing observer conduct 

and behavior related to drugs, alcohol, 

and physical sexual conduct. Each 

provider would be required to submit a 

copy of its policy to NMFS by February 

1 of each year. A requirement would be 

added under § 679.50(i)(2) that observer 

providers notify NMFS within 72 hours 

upon determination that an observer has 


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violated the provider’s conduct policy. 

This notification shall include the facts 

and circumstances of the violation. 

NMFS intends to use this information 

when assessing observer performance 

and quality of data collection. 

NMFS would not define standards for 

these policies; thus, providers would 

exercise discretion when developing 

their policies. However, NMFS 

continues to have an interest in the 

providers’ conduct policies. Thus, if 

NMFS determines that the providers’ 

policies lead to a negative impact on the 

quality of data collected by observers, 

NMFS would reconsider this action. If 

that occurs, NMFS would have to 

consider additional authorization and 

funding to institute an effective system 

to regulate observer conduct and 

behavior. 

Issue 3: Providing Observers for 

Research Activities 

Current regulations at § 679.50(i)(3)(i) 

prohibit observer providers from having 

a direct financial interest, other than the 

provision of observer services, in a 

North Pacific fishery managed under an 

FMP. However, observer providers have 

historically provided observers and 

‘‘scientific data collectors’’ to 

researchers operating under exempted 

fishing permits (EFPs) and scientific 

research permits (SRPs). While the 

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 conflict of 

interest regulation. This proposed rule 

would clarify that observer providers 

are not prohibited from supplying 

observers and scientific data collectors 

for fishing conducted pursuant to EFPs 

and for scientific research activities. 

Issue 4: Fishing Day Definition 

Regulations at § 679.50(c)(1)(v) 

require a catcher/processor or catcher 

vessel equal to or greater than 60 ft (18.3 

m) length overall (LOA), but less than 

125 ft (38.1 m) LOA, to carry an 

observer for at least 30 percent of its 

fishing days per calendar quarter and at 

all times during at least one fishing trip 

per calendar quarter while directed 

fishing for groundfish. A ‘‘fishing day’’ 

is defined at § 679.2 as a 24-hour period, 

from 0001 hours Alaska local time 

(A.l.t.) through 2400 hours A.l.t., in 

which fishing gear is retrieved and 

groundfish are retained. Under these 

regulations, an observer must be 

onboard a vessel only at some point, no 

matter how briefly, during a 24-hour 

period when fishing occurs and 

groundfish are retained, to count as a 

‘‘fishing day’’ for the purpose of 

observer coverage requirements. While 

many vessels operate with an observer 

as they would without an observer, 

NMFS suspects that others intentionally 

alter their fishing pattern to meet 

minimum observer coverage 

requirements. Often, these fishing 

events are not representative of normal 

fishing duration, location, and depth, 

and catch composition may vary 

significantly from that associated with 

the vessel’s normal, legitimate fishing 

pattern. These non-representative events 

bias the observer information NMFS 

relies on for effective management of the 

groundfish fisheries. 

NMFS’ Office of Law Enforcement has 

also documented instances in which 

vessel operators intentionally structure 

fishing activities to fish unobserved 

until late in the day, pick up an observer 

and make a short tow prior to midnight, 

make one more tow immediately after 

midnight, and then return the observer 

to port. Additional fishing activities 

then occur during the remainder of the 

second day, during which the observer 

is not onboard. Under the current 

regulations, this scenario counts for two 

‘‘observer’’ days and may result in 

biased observer data. 

To reduce the potential for biasing 

observer data, the proposed rule would 

revise the definition of ‘‘fishing day’’ at 

§ 679.2 to be 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. It will 

require that an observer 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 will not be considered 

fishing days, as is currently the case. 

This revision would reduce the costeffectiveness of making a fishing trip 

solely to manipulate observer coverage 

requirements. Revising the definition of 

the 24-hour period from the current 

midnight-to-midnight definition (from 

0001 hours through 2400 hours Alaska 

local time) to a noon to noon definition 

(1201 hours through 1200 hours Alaska 

local time) is intended to discourage 

vessels from making sets or tows solely 

for the purpose of obtaining observer 

coverage around the transitional hours 

from one fishing day to the next. 

Issue 5: Observer Cost Information 

Under the current system for Alaska 

groundfish fishery observer services, 

vessels and plants required to take 

observers under § 679.50 contract 

directly with certified observer 

providers. Because NMFS is not a party 

to the contracts, NMFS lacks 

information on the actual costs for 

observer coverage incurred by the 

groundfish fishery. Without this 

information, NMFS has had to rely on 

estimates of the average daily cost of 

observer coverage across all North 

Pacific groundfish fisheries to assess the 

economic effects of various management 

regimes on impacted entities. Industry 

has commented that although observer 

costs vary by region and sector, NMFS’ 

estimates do not take that variability 

into account. Several factors affect the 

daily cost of observer coverage; for 

example, deploying observers to remote 

locations for short periods of time 

results in higher costs per day than 

deploying observers to ports with 

regularly scheduled air service or in 

fisheries of substantial duration. NMFS’ 

analyses would be improved by the 

acquisition of actual cost information. 

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 proposed rule would require 

observer providers to submit to NMFS 

copies of all individual invoices for 

observer coverage in the North Pacific 

groundfish fishery. Every third year 

would be a reporting year for submitting 

invoices. Observer providers would be 

required to submit these invoices to 

NMFS for a full calendar year in each 

reporting year. If the program were 

implemented in 2010, providers would 

be required to submit copies of actual 

invoices during 2010. Invoices would be 

submitted again in the next reporting 

year (e.g., 2013, 2016, 2019). 

The Council recommended that 

observer providers submit copies of 

actual invoices to NMFS because these 

are less burdensome than requiring the 

providers to prepare and submit 

summarized expense reports; it allows 

NMFS to understand the full cost of 

providing observer coverage in the 

groundfish fisheries off Alaska; it 

provides for verifiable data; and it 

allows for increased flexibility in data 

analysis compared to requiring 

summarized information from 

providers. The RIR/IRFA for this action 

recognizes that under this alternative 

the primary burden for data-entry and 

analysis would be shifted from the 

observer providers to NMFS. However, 

this alternative would provide NMFS 

with independently verifiable 


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50158 Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 

information and enhanced analytical 

flexibility over collecting summarized 

expense reports from the observer 

providers because NMFS will be able to 

confirm the number of days an observer 

was deployed to a particular vessel and 

bin the raw invoice information as 

analytical needs dictate. 

As these invoices contain proprietary 

business information, NMFS will 

consider this information as business 

confidential information afforded the 

protections of section 402 of the MSA. 

Accordingly, NMFS will collect and 

maintain this information as it does 

with other confidential data, and will 

limit access to unaggregated invoice 

information to NMFS staff. 

The Council also recommended a 

three-year invoice submission cycle to 

accommodate ongoing data collection 

while minimizing the reporting burden 

on observer providers. NMFS has found 

shortcomings with the three-year data 

collection cycle preferred by the 

Council, as it would delay NMFS’ 

ability to detect trends in observer 

coverage costs and limit the precision in 

evaluating the temporal variability of 

these costs. The Council’s preferred 

alternative would not allow for a 

complete, continuous overview of the 

industry’s Observer Program costs due 

to the three-year lapse between data 

collection cycles; however, it would 

provide information that NMFS 

currently needs and lacks. The Council 

could revisit this issue in the future 

should NMFS and the Council 

determine that data are needed more 

frequently from observer providers. 

During a reporting year, within 45 

days of the invoice date, observer 

providers would be required to submit 

to NMFS a copy of each invoice for 

services provided that year. NMFS seeks 

public comment on this submission 

deadline to help determine if this time 

period is reasonable for observer 

providers to provide copies of invoices 

to NMFS. Invoices shall include the 

following information: the name of each 

individual catcher/processor, catcher 

vessel, mothership, stationary floating 

processor, or shoreside processing plant 

to which the invoice applies; the name 

of the observer who worked aboard each 

catcher/processor, catcher vessel, 

mothership, stationary floating 

processor, or shoreside processing plant; 

the dates of service for each observer on 

each catcher/processor, catcher vessel, 

mothership, stationary floating 

processor, or shoreside processing plant; 

the rate charged in dollars per day for 

observer services; the total charge for 

observer services (number of days 

multiplied by daily rate); the amount 

charged for air transportation; and the 

amount charged for other expenses, 

such as ground transportation, lodging, 

or excess baggage. These charges would 

be required to be separated and 

identified. 

Issue 6: Miscellaneous Revisions 

The proposed rule would establish a 

deadline by which observer providers 

must submit to NMFS an exemplary 

copy of a contract between the provider 

and the observer and the provider and 

the vessel or plant operator requiring 

observer service in the groundfish 

fisheries off Alaska. Existing regulations 

at § 679.50 require the submission of 

these contracts; however no deadline is 

specified. This proposed rule would 

establish a submission deadline of 

February 1 of each year, which 

corresponds with the deadline for 

submitting certificates of insurance 

required by § 679.50(i)(2)(x)(F). This 

issue was referenced as Issue 7 in the 

RIR/IRFA; however, the Council 

selected the ‘‘no action’’ alternative for 

Issue 6. Thus, for the purposes of this 

proposed rulemaking, this 

miscellaneous revision now comprises 

Issue 6. 

Two other miscellaneous revisions 

analyzed under this issue in the RIR/ 

IRFA have been subsequently removed 

from the proposed rule. The first minor 

revision would have corrected an 

erroneous reference to observer 

workload restrictions at 

§ 679.50(c)(5)(i)(A). In developing this 

proposed rule it came to NMFS’ 

attention that additional corrections to 

§ 679.50(c)(5) were needed. Thus, this 

reference will be corrected in a separate 

rule making and is not addressed in this 

proposed rule. The other miscellaneous 

revision included in the RIR/IRFA 

would have corrected references to 

NMFS’ Alaska Fisheries Science Center, 

Fisheries Monitoring and Analysis 

Division website throughout the 

regulations at § 679.50, as the existing 

reference is now invalid. Because 

website references and content are 

subject to change, NMFS is proposing to 

exclude references to the Fisheries 

Monitoring and Analysis Division 

website from the regulations. This 

revision under Issue 6 is expected to 

have the intended effect of the Council’s 

motion as the erroneous references will 

be revised in the regulations. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

MSA, the NMFS Assistant 

Administrator has determined that this 

proposed rule is consistent with the 

regulatory amendment, other provisions 

of the MSA, and other applicable law, 

subject to further consideration after 

public comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An initial regulatory flexibility 

analysis (IRFA) was prepared, as 

required by section 603 of the 

Regulatory Flexibility Act (RFA). The 

IRFA describes the economic impact 

this proposed rule, if adopted, would 

have on small entities. A description of 

the action, why it is being considered, 

and the legal basis for this action are 

contained at the beginning of this 

section in the preamble and in the 

SUMMARY section of the preamble. A 

summary of the analysis follows. A copy 

of this analysis is available from NMFS 

(see ADDRESSES). 

The IRFA for this proposed action 

describes in detail the reasons why this 

action is being proposed; describes the 

objectives and legal basis for the 

proposed rule; describes and estimates 

the number of small entities to which 

the proposed rule would apply; 

describes any projected reporting, 

recordkeeping, or other compliance 

requirements of the proposed rule; 

identifies any overlapping, duplicative, 

or conflicting Federal rules; and 

describes any significant alternatives to 

the proposed rule that accomplish the 

stated objectives of the MSA and any 

other applicable statutes that would 

minimize any significant adverse 

economic impact of the proposed rule 

on small entities. 

The description of the proposed 

action, its purpose, and its legal basis 

are described elsewhere in the preamble 

and are not repeated here. The directly 

regulated entities are different under the 

different issues addressed in this 

proposed rule. Because the RFA is 

applicable only to businesses, non-profit 

organizations, and governments, 

observers fall outside of the RFA’s 

scope, and are therefore not discussed 

in the IRFA. 

Five observer provider companies are 

currently holding observer provider 

permits and are active in the North 

Pacific. These entities would be directly 

regulated by the proposed actions under 

Issues 2, 3, 5 and 6. All of the current 

observer provider companies are 

considered small entities under the 

RFA. The potential number of small 

observer provider firms that may be 

interested in obtaining a permit to 

provide observer services in the future 

would be regulated under Issue 1. 

However, the potential number of 

observer provider firms cannot be 

estimated, and because they represent a 

future scenario, they are not considered 


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directly regulated under the proposed 

action. 

Trawl and hook-and-line catcher 

vessels (CVs) and catcher processors 

(CPs) subject to the 30 percent observer 

coverage requirements would be 

directly regulated by the proposed 

action in Issue 4. Trawl and hook-andline CVs between 60 feet and 125 feet 

LOA and hook-and-line CPs between 60 

feet and 125 feet LOA in the BSAI and 

GOA, with the exception of vessels 

participating in specific programs that 

require 100 percent observer coverage, 

would be directly regulated by actions 

under Issue 4. AFA trawl CVs subject to 

the 30 percent observer coverage 

requirements are categorized as large 

entities for the purpose of the RFA due 

to their affiliation with one another 

through the American Fisheries Act 

(AFA) pollock harvest cooperatives. 

The table below summarizes all of the 

potentially directly regulated small 

entities, by sector, under Issue 4 of the 

proposed action. The IRFA likely 

overestimates the number of directly 

regulated small entities. NMFS does not 

have access to data on ownership and 

other forms of affiliation for most 

segments of the fishing industry 

operating off Alaska, nor does NMFS 

have information on the combined 

annual gross receipts for each entity by 

size. Absent these data, a more precise 

characterization of the size composition 

of the directly regulated entities 

impacted by this action cannot be 

offered. 

TABLE 1. ESTIMATE OF THE NUMBER

OF SMALL ENTITIES POTENTIALLY DIRECTLY REGULATED BY ISSUE 4 OF

THE PROPOSED ACTION. 

Sector 2006 2007 

Observer Providers 5 5 

Trawl CV >60’ and ≤125’ 39 23 

Trawl CP >60’ and ≤125’ 12 10 

H&L CV >60’ and ≤125’ 97 74 

H&L CP >60’ and ≤125’ 11 11 

Proposed actions under Issue 2 and 

Issue 5 would require additional 

recordkeeping and reporting 

requirements for the five observer 

providers currently supplying services 

to the Observer Program. Issue 6 actions 

would impose a deadline for submission 

of information that is already required 

of observer providers under existing 

regulations. Issue 2 actions would 

require observer providers to have 

observer policies related to alcohol, 

drugs, and sexual contact; provide 

NMFS a copy of the conduct policy by 

February 1 of each year; and to notify 

(including the underlying facts and 

circumstances) NMFS of a violation of 

the observer provider’s policies within 

72 hours after the provider determines 

that an observer violated a policy. 

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

require observer providers to notify 

NMFS of other types of conduct 

violations within 24 hours of becoming 

aware of the alleged violation; thus, this 

proposed action 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. 

The proposed rule under Issue 5 

would require observer providers to 

submit copies of billing invoices to 

NMFS for a full year, every third year. 

This recordkeeping and reporting 

requirement will not require the 

observer providers to modify or 

interpret their billing invoices. Observer 

provider companies should incur minor 

costs associated with copying and 

transmitting copies of their actual 

billing invoices to NMFS under the 

proposed rule for Issue 5. NMFS 

estimates that approximately six hours a 

year would be required for observer 

providers to email their invoices to 

NMFS with no additional expenses 

anticipated because observer providers 

have computers with internet access. If 

an observer provider mails copies of his 

or her invoices to NMFS, it is estimated 

to cost the observer provider 

approximately $48 per year for paper, 

envelopes, and postage in addition to 

six hours of labor expected for copying 

and mailing. 

The proposed rule under Issue 6 

slightly modifies existing regulations 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. 

The analysis revealed no Federal rules 

that would conflict with, overlap, or be 

duplicated by the alternatives under 

consideration. 

With regard to the economic burden 

of the proposed rule on small entities, 

the Council selected the least 

economically burdensome alternatives 

that met the purpose and need for action 

based upon the analysis in the RIR and 

IRFA. The Council selected the only 

action alternative under Issue 2 and 

Issue 6. 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 require 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 being prepared as part of their 

standard bookkeeping was determined 

to be less burdensome 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 

once every three years. 

Collection-of-Information 

This proposed rule contains a 

collection-of-information requirement 

subject to review and approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA). This requirement has been 

submitted to OMB for approval 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 package 

submitted for this proposed rule 

estimated that it will cost each observer 

provider $1500 per reporting year to 

comply with this information 

submission requirement. 

Public comment is sought regarding 

whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to NMFS 

Alaska Region at the ADDRESSES above, 

and e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

202–395–7285. 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
50160 Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 

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: September 24, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, NMFS proposes to amend 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 section) 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) * * * 

(A) The Regional Administrator will 

establish an observer provider permit 

application review board, comprised 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’ 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 and 

maintain 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 by February 1 of each 

year, to: 

(1) Observers, observer candidates 

and; 

(2) 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. 

Beginning in 2010 and in every third 

calendar year thereafter (e.g., 2013, 

2016, 2019), 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 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 50161 

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. 

* * * * * 

§ 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. E9–23606 Filed 9–29–09; 8:45 am] 

BILLING CODE 3510–22–S 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS