[Federal Register Volume 74, Number 188 (Wednesday, September 30, 2009)]
[Proposed Rules]
[Pages 50155-50161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23606]


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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
    <bullet> Mail: P.O. Box 21668, Juneau, AK 99802.
    <bullet> Fax: 907-586-7557.
    <bullet> 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 
<a href="/cdn-cgi/l/email-protection#fbbf9a8d929fa4a994888f909e89bb949699d59e948bd59c948d"><span class="__cf_email__" data-cfemail="bbffdacdd2dfe4e9d4c8cfd0dec9fbd4d6d995ded4cb95dcd4cd">[email protected]</span></a> 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 Sec.  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.

[[Page 50156]]

    This proposed rule would amend regulations at Sec.  679.2 and Sec.  
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 non-representative 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 Sec.  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 Sec.  679.50 obligate NMFS to grant a 
provider permit to an applicant who submits a complete application, 
meets narrowly-defined 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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  679.50(i)(2) that observer 
providers notify NMFS within 72 hours upon determination that an 
observer has

[[Page 50157]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 cost-effectiveness 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 Sec.  
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

[[Page 50158]]

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 Sec.  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 Sec.  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 Sec.  679.50(c)(5)(i)(A). In 
developing this proposed rule it came to NMFS' attention that 
additional corrections to Sec.  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 Sec.  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

[[Page 50159]]

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-and-line 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 
Sec.  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 <a href="/cdn-cgi/l/email-protection#723613041b162d201d0106191700321d1f105c171d025c151d04"><span class="__cf_email__" data-cfemail="1a5e7b6c737e454875696e717f685a757778347f756a347d756c">[email protected]</span></a>, or fax to 202-395-
7285.

[[Page 50160]]

    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 Sec.  679.2, revise the definition of ``Fishing day'' to read 
as follows:


Sec.  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 Sec.  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:


Sec.  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 
Sec.  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

[[Page 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 NMFS-
approved scientific research activities, exempted educational 
activities, or exempted or experimental fishing as defined in Sec.  
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.
* * * * *


Sec.  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 Sec.
       679.50               Remove                Add          Frequency
------------------------------------------------------------------------
Newly redesignated         in paragraph         in paragraph       1
 (i)(2)(i)(C)(3)             (i)(2)(x)(C) of     (i)(2)(xi)(C) of
                                   this                 this
(i)(2)(ii)(A)           under paragraph      under paragraph       1
                        (i)(2)(x)(E) of     (i)(2)(xi)(E) of
                                   this                 this
Newly redesignated         in paragraph         in paragraph       1
 (i)(2)(iv)(B)               (i)(2)(x)(C) of     (i)(2)(xi)(C) of
                                   this                 this
Newly redesignated        in paragraphs        in paragraphs       1
 (i)(2)(vii)(B)             (i)(2)(vi)(C) and   (i)(2)(vii)(C) and
                       (i)(2)(vi)(D) of    (i)(2)(vii)(D) of
                                   this                 this
Newly redesignated            paragraph            paragraph       1
 (i)(2)(xi)(C)       (i)(2)(i)(B)(1) of      (i)(2)(i)(B) of
(j)(1)(iii)(B)(2)(i       at paragraphs        at paragraphs       1
 )                   (i)(2)(x)(A)(1)(iii  (i)(2)(xi)(A)(1)(ii
                                  ) and               i) and
(j)(1)(iii)(B)(2)(i        at paragraph         at paragraph       1
 i)                          (i)(2)(x)(C)        (i)(2)(xi)(C)
(j)(1)(iii)(B)(3)        and (i)(2)(x)(C)    and (i)(2)(xi)(C)     1
(j)(1)(iii)(B)(4)(i       the candidate        the candidate       1
 i)                          failed the   failed the training
                      training; whether          and whether
(j)(1)(iii)(B)(4)(i   in the form of an     in the form of a       1
 i)                         IAD denying              written
                                               determination
                                                     denying
(j)(3)(iii)                will issue a         will issue a       1
                     written IAD to the      written initial
                               observer       administrative
                                          determination (IAD)
                                             to the observer
------------------------------------------------------------------------

[FR Doc. E9-23606 Filed 9-29-09; 8:45 am]
BILLING CODE 3510-22-S


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