49198 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules

flounder permit and fishes exclusively

in state waters.

* * * * *

5. In § 648.103, paragraph (c) is

revised to read as follows:

§ 648.103 Minimum fish sizes.

* * * * *

(c) The minimum sizes in this section

apply to whole fish or to any part of a

fish found in possession, e.g., fillets,

except that party and charter vessels

possessing valid state permits

authorizing filleting at sea may possess

fillets smaller that the size specified if

all state requirements are met.

6. In § 648.104, paragraph (a)(1) is

revised, and paragraph (f) is added to

read as follows:

§ 648.104 Gear restrictions.

(a) * * * (1) Otter trawlers whose

owners are issued a summer flounder

permit and that land or possess 100 or

more lb (45.4 or more kg) of summer

flounder from May 1 through October

31, or 200 lb or more (90.8 kg or more)

of summer flounder from November 1

through April 30, per trip, must fish

with nets that have a minimum mesh

size of 5.5–inch (14.0–cm) diamond or

6.0–inch (15.2–cm) square mesh applied

throughout the body, extension(s), and

codend portion of the net.

* * * * *

(f) The minimum net mesh

requirement may apply to any portion of

the net. The minimum mesh size and

the portion of the net regulated by the

minimum mesh size may be adjusted

pursuant to the procedures in § 648.100.

[FR Doc. 97–24922 Filed 9–18–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 970829216–7216–01; I.D.

073097B]

RIN 0648-AK15

Fisheries of the Exclusive Economic

Zone Off Alaska; Extension of the

Interim Groundfish Observer Program

through 1998

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS issues a proposed rule

to implement a regulatory amendment

to extend with some minor revisions the

current groundfish observer coverage

requirements and implementing

regulations for the North Pacific

Groundfish Observer Program (Observer

Program) that expire December 31, 1997.

This action is necessary to assure

uninterrupted observer coverage

requirements through 1998. This

proposed rule also provides notice of

proposed changes to observer

qualifications and observer training/

briefing requirements, which are noncodified elements of the Observer

Program. This action is intended to accomplish

the objectives of the Fishery

Management Plan for Groundfish of the

Gulf of Alaska and the Fishery

Management Plan for the Groundfish

Fishery of the Bering Sea and Aleutian

Islands Area (FMPs).

DATES: Comments on the proposed rule

must be received by October 20, 1997.

ADDRESSES: Comments should be sent to

Chief, Fisheries Management Division,

Alaska Region, NMFS, P.O. Box 21668,

Juneau, AK 99802, Attn: Lori J. Gravel,

or delivered to the Federal Building, 709

West 9th Street, Juneau, AK. Copies of

the Environmental Assessment/

Regulatory Impact Review/Final

Regulatory Flexibility Analysis (EA/

RIR/FRFA) prepared for the 1997

Interim Groundfish Observer Program

may be obtained from the Fisheries

Management Division, Alaska Region,

NMFS, P.O. Box 21668, Juneau, AK

99802; telephone: 907–586–7228.

Copies of the Regulatory Impact

Review/Initial Regulatory Flexibility

Analysis(RIR/IRFA) prepared for the

proposed regulatory amendment also

may be obtained from this address.

FOR FURTHER INFORMATION CONTACT: Kim

S. Rivera, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

The U.S. groundfish fisheries of the

Gulf of Alaska (GOA) and the Bering Sea

and Aleutian Islands Area in the

Exclusive Economic Zone are managed

by NMFS under the FMPs. The FMPs

were prepared by the North Pacific

Fishery Management Council (Council)

under the Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act) and are

implemented by regulations for the U.S.

fisheries at 50 CFR part 679. General

regulations that also pertain to U.S.

fisheries appear at subpart H of 50 CFR

part 600. In 1996, the Council adopted and

NMFS implemented the Interim

Groundfish Observer Program. The

Interim Groundfish Observer Program

superseded the North Pacific Fisheries

Research Plan and extended the 1996

mandatory groundfish observer

requirements through 1997, unless

superseded by a long-term program that

addresses concerns about observer data

integrity, equitable distribution of

observer coverage costs, and observer

compensation and working conditions.

NMFS continues to pursue a long-term

solution and is developing an

alternative that was supported by the

Council at its June 1997 meeting. The

Council is scheduled to take final action

on a long-term alternative at its

December 1997 meeting. Given that this

alternative cannot be in place by

January 1, 1998, the current interim

program must be extended to assure

uninterrupted observer coverage

requirements.

At its June 1997 meeting, the Council

unanimously requested NMFS to extend

through 1998 the current interim

program, with minor revisions

recommended by NMFS. In addition,

the Council recommended an

adjustment to the existing observer

conflict-of-interest standard that

prohibits a person from serving as an

observer if that person was employed in

a North Pacific fishery during the

previous 12-month period. The Council

recommended a less restrictive standard

that would prohibit an observer from

working on any vessel or at any

shoreside processor owned or operated

by a person who previously employed

the observer during the previous 12-

month period. Public testimony at the

Council meeting indicated that the

current conflict-of-interest standard may

be too restrictive given that the interim

observer program does not address the

issue of an adequate observer

compensation package. Until the

observers are more adequately

compensated, they may need to engage

in non-observer employment in North

Pacific fisheries.

Proposed Regulatory Changes For The

1998 Interim Groundfish Observer

Program

A description of the regulatory

provisions of the Interim Groundfish

Observer Program was provided in the

preambles to the proposed and final

rules implementing this program (61 FR

40380, August 2, 1996; 61 FR 56425,

November 1, 1996). Only minor changes

from the 1997 regulations are being

proposed for 1998. They are described

and justified below.

1. Extend the effective period of 50

CFR 679.50 through December 31, 1998.

The 1-year extension is intended to

encompass the period of time necessary

for NMFS to develop a long-term

program that addresses concerns about
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules 49199

observer data integrity and observer

compensation and working conditions.

2. Revise the conflict-of-interest

regulation at § 679.50(h)(2)(i)(A)(4) to

indicate that individuals may not serve

as observers on any vessel or at any

shoreside processor owned or operated

by a person who previously employed

the observer, for a period of 12

consecutive months after being

employed by that person. This revision

is less restrictive than the current

regulation.

3. Expand the prohibition at

§ 679.7(g)(1) to include sexual

harassment and bribery as unlawful

interferences with an observer. The

proposed amendment would make the

regulations consistent with section

307(1)(L) of the Magnuson-Stevens Act.

NMFS notes that situations could occur

in which a person’s (e.g., vessel owner/

operator, shoreside processor required

to have observer coverage) offer of

employment in a North Pacific fishery

to an observer carrying out observer

duties could constitute a bribe. Bribes

and sexual harassment are prohibited

under section 307(1)(L) of the

Magnuson-Stevens Act and can be

prosecuted as criminal offenses,

punishable by fine and/or

imprisonment.

4. Revise the 30–percent observer

coverage requirement regulation at

§ 679.50(c)(vi) and (vii) to clarify that

required coverage is specific to the gear

type. This means that observer coverage

obtained for a vessel using hook-andline gear cannot be used to comply with

observer coverage requirements for the

same vessel when it is used to fish with

pot gear.

5. Clarify the regulation at

§ 679.50(i)(2)(xiv)(G) to alleviate

confusion on what information observer

contractors currently are required to

submit to NMFS. The proposed

clarification specifies that an observer

contractor must submit completed and

unaltered copies of signed and valid

contracts with specific entities requiring

observer services or with specific

observers to the Observer Program

Office upon request. Required copies of

contracts must be submitted by mail or

fax. Types of signed and valid contracts

include the contracts an observer

contractor has with: (a) vessels required

to have 30–percent observer coverage,

(b) vessels required to have 100–percent

observer coverage, (c) shoreside

processors required to have 30–percent

observer coverage, (d) shoreside

processors required to have 100–percent

observer coverage, or (e) observers (to

include contracts for the various

compensation or salary levels of

observers, the levels being based on

observer experience).

6. Correct the regulation at

§ 679.50(j)(7)(iv) that referenced the

wrong paragraph. The 1997 Interim

Groundfish Observer Program

regulations at § 679.50(j)(7)(iv) stated

that ‘‘[t]he appeals officer must base the

decision on the administrative records

complied under paragraphs (j)(5) or

(i)(7) of this section, as appropriate.’’

The correct references are to paragraphs

(j)(5) or (j)(6). This proposed revision

replaces ‘‘(i)(7)’’ with ‘‘(j)(6)’’.

Non-codified Elements Of The Observer

Program

Three elements of the 1997 Observer

Program were not codified in regulation:

(1) Observer qualifications, (2) observer

training/briefing requirements, and (3)

NMFS’s selection criteria for observer

contractors. These elements were

published in the Federal Register (61

FR 40380, August 2, 1996) and are

available upon request. Although they

were not codified, they are viewed as a

part of the rule and NMFS will publish

a notification in the Federal Register

and provide an opportunity for public

comment prior to changing any of these

elements. NMFS proposes making

minor revisions to two of the elements

as follows:

1. Revise item ‘‘B’’ of the ‘‘NMFS

Observer Qualifications—Education and

Experience Standards’’ to require

observers to have taken at least one

course that used extensively

dichotomous keys. During training,

observers spend approximately 15 hours

of class time in fish identification

lectures and laboratories. Much of this

time is spent identifying fish to species

using dichotomous keys. Observers with

previous course work using

dichotomous keys are better able to

apply that training.

2. Revise the ‘‘NMFS Observer

Training/Briefing Requirements’’ to

require all prior observers to complete a

4-day briefing prior to their first

deployment in any calendar year. Oneday briefings would be required prior to

subsequent deployments within a

calendar year. Additional briefing time

is required to fully prepare observers to

use the new observer electronic

reporting package (ATLAS), to review

any other regulatory or programmatic

changes on an annual basis, and to

engage in an annual review of species

identification, enabling observers to

complete more efficiently that aspect of

their duties.

The observer qualifications, as

proposed to be revised, are set forth

below. NMFS’ selection criteria for

observer contractors would remain

unchanged.

A. Prospective observers must have a

bachelor’s degree or higher from an

accredited college or university with a

major in one of the natural sciences.

B. Candidates must have a minimum

of 30 semester hours or equivalent in

applicable biological sciences with

extensive use of dichotomous keys in at

least one course. Candidates must also

have successfully completed at least one

undergraduate course in mathematics

and one in statistics worth a combined

total of at least 5 semester hours. In

addition, all applicants are required to

have computer skills that enable them to

work competently with standard

database software and computer

hardware.

C. Prospective observers are also

required to complete successfully any

screening test(s) administered by NMFS.

These tests would measure basic

mathematics, algebra, and computer

skills as well as other abilities necessary

for successful job performance.

D. If a sufficient number of candidates

meeting these educational prerequisites

is not available, the observer contractor

may seek approval from NMFS to

substitute individuals with either a

senior standing in an acceptable major,

or with an Associate of Arts (A.A.)

degree in fisheries, wildlife science, or

an equivalent.

E. If a sufficient number of

individuals meeting the above

qualifications is not available, the

observer contractor may seek approval

from NMFS to hire individuals with

other relevant experience or training.

F. To qualify for certification, all

prospective observers must undergo

safety and cold water survival training

that requires the prospective observers

to demonstrate their ability to properly

put on an immersion suit in a specified

time period, enter the water, travel

approximately 50 m to a ladder, and

climb out of the water.

The additional mathematics,

statistics, and computer skills

requirements reflect the increased

responsibilities of observers and are

similar to the observer qualifications

that would have been required under

the Research Plan, had it been fully

implemented. The NMFS observer

training/briefing requirements are set

forth below.

A. Observers who have completed a

deployment must be recertified prior to

another deployment. All observers will

be required to complete a 4-day briefing

prior to their first deployment in any

calendar year. One-day briefings will be

required prior to subsequent

deployments within a calendar year.
49200 Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules

Certification following 1– or 4-day

briefings will expire after 1 month if

deployment is delayed. Observers who

have not been deployed for a period of

18 months will be required to complete

a 3-week training course.

B. If an observer is not deployed

within 1 month after completion of

training, the individual must complete a

1-day briefing. If the observer is not

deployed within 3 months after training,

the individual must complete a 4-day

briefing. If the observer is not deployed

within 6 months after training, the

individual must retake the full training

course.

C. Observers may be required to

attend an additional 4-day briefing

based upon an evaluation of data

collected during their most recent

deployment.

Classification

This proposed rule has been

determined to be not significant for

purposes of E.O. 12866.

The proposed changes occurring

through this regulatory action are within

the scope of issues thoroughly analyzed

for the implementation of the 1997

Interim Groundfish Observer Program

(61 FR 56425, November 1, 1996).

Therefore, the EA/RIR/FRFA prepared

for the Interim Groundfish Observer

Program and the preambles to the

proposed and final rules implementing

that program (61 FR 40380, August 2,

1996; 61 FR 56425, November 1 1996)

are incorporated by reference into the

analysis prepared for this action. This

action is a necessary adjustment to the

rules governing the Interim Groundfish

Observer Program and will provide the

same benefits as listed in the EA/RIR/

FRFA for the Interim Groundfish

Observer Program, dated August 27,

1996. A copy of this analysis is available

from NMFS (see ADDRESSES). The

changes caused by this action are

consistent with the intent and purpose

of the Interim Groundfish Observer

Program.

NMFS prepared an IRFA as part of the

RIR, which describes the impact this

proposed rule would have on small

entities, if adopted. Based on the

analysis, it was determined that this

proposed rule could have a significant

economic impact on a substantial

number of small entities. A copy of this

analysis is available from the Council

(see ADDRESSES). Observer costs borne

by vessels and processors are based on

whether an observer is aboard a vessel

and on overall coverage needs. Higher

costs are borne by those vessels and

shoreside processors that require higher

levels of coverage. Most of the catcher

vessels participating in the groundfish

fisheries off Alaska and required to

carry observers (i.e., vessels 60 ft LOA

and longer) meet the definition of a

small entity under the RFA. In 1995,

about 270 catcher vessels carried

observers. These catcher vessels would

not be further economically impacted by

observer coverage levels because the

proposed rule would not implement any

changes in observer coverage levels.

Under the proposed rule, an observer

conflict-of-interest regulation would be

relaxed, thereby potentially creating

increased employment opportunities for

observers. Five observer contractors are

likely to be affected by this proposed

rule. All are considered small entities,

and none are likely to experience

significant economic impacts. Given

that observers are contracted employees

of observer contractors, this proposed

change could increase the economic

benefits realized by observer

contractors.

Although the proposed number of

observer briefing days required in a 12-

month period would increase from 2 to

4 under the proposed rule, the number

of observer briefing days required for

subsequent deployments within a

calendar year would decrease from 2 to

1. The net change in number of observer

briefing days is anticipated to be

minimal. The briefing day costs

(lodging, per diem) are approximately

$135–200 per day and are dependent on

the briefing location (Alaska or

Washington). The cost is borne by either

the observer or the observer contractor

and is dependent upon the specific

contractual arrangements between these

entities. The briefing day costs are

typically passed on from the observer or

the observer contractor to the vessel or

processor that is required to have the

observer coverage. In 1996, 384

observers (employed by five observer

contractors) were briefed for the North

Pacific groundfish fisheries.

The RFA requires that the IRFA

describe significant alternatives to the

proposed rule that accomplish the

stated objectives of the applicable

statutes and that minimize any

significant impact on small entities.

Consistent with the stated statutory

objectives, the IRFA must discuss

significant alternatives to the proposed

rule such as (1) establishing different

reporting requirements for small entities

that take into account the resources

available to small entities; (2)

consolidation or simplification of

reporting requirements; (3) the use of

performance rather than design

standards; and (4) allowing exemptions

from coverage for small entities.

Alternatives that addressed modifying

reporting requirements for small entities

or the use of performance rather than

design standards for small entities were

not considered by the Council or in this

analysis. Such alternatives are not

relevant to this proposed action and

would not mitigate the impacts on small

entities. Allowing exemptions for small

entities from this proposed action

would not be appropriate because the

objective to assure uninterrupted

observer coverage requirements through

1998 could not be achieved if small

entities were exempted.

The EA/RIR/FRFA prepared for the

Interim Groundfish Observer Program

(61 FR 56425, November 1, 1996)

included the North Pacific Fisheries

Research Plan (Research Plan) as an

alternative. However, the Research Plan

is no longer a viable alternative to the

proposed interim observer program. The

political and economic concerns that

led the Council to repeal the Research

Plan still exist. Furthermore, fees

collected in 1995 were refunded in early

1996 and if the Research Plan was

pursued as the preferred alternative,

start-up funding would have to be

collected again. Regulations

implementing the existing observer

program will expire at the end of 1997.

It is not feasible to implement a feebased observer program by the end of

this year, which would be necessary to

provide observer coverage for the 1998

groundfish fisheries. The preferred

alternative for an interim observer

program is the only option that could be

implemented by 1998 so that the

groundfish fisheries could commence

without interruption.

This proposed rule contains a revised

collection-of-information requirement

subject to the Paperwork Reduction Act

(PRA). This collection-of-information

requirement has been approved by the

Office of Management and Budget

(OMB) under OMB Control Number

0648–0318. The estimated current

burden for submission of observer

contract information is 15 minutes.

Public comment is sought regarding:

Whether this proposed collection of

information is necessary for the proper

performance of the functions of the

agency, including rather the information

has 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.

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
Federal Register / Vol. 62, No. 182 / Friday, September 19, 1997 / Proposed Rules 49201

to the requirements of the PRA, unless

that collection- of-information displays

a currently valid OMB control number.

Since the repeal of the Research Plan

and at the direction of the Council,

NMFS has been developing a long-term

alternative program structure to address

the problems identified with the current

observer program structure. The Council

is scheduled to take final action at its

December 1997 meeting.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and

recordkeeping requirements.

Dated: September 15, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 679 is proposed

to be amended 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., and 3631 et seq.

2. In § 679.7, paragraph (g)(1) is

revised to read as follows:

§ 679.7 Prohibitions.

* * * * *

(g) * * *

(1) Forcibly assault, resist, oppose,

impede, intimidate, sexually harass,

bribe, or interfere with an observer.

* * * * *

3. In § 679.50, the section heading,

paragraphs (c)(1)(vi) and (vii),

(h)(2)(i)(A)(4), (i)(1)(iii), introductory

text of (i)(2)(xiv), (i)(2)(xiv)(G), and

(j)(7)(iv) are revised to read as follows:

§ 679.50 Groundfish Observer Program

applicable through December 31, 1998.

* * * * *

(c) * * *

(1) * * *

(vi) A catcher/processor or catcher

vessel fishing with hook-and-line gear

that is required to carry an observer

under paragraph (c)(1)(v) of this section

must carry an observer during at least

one entire fishing trip using hook-andline gear in the Eastern Regulatory Area

of the GOA during each calendar quarter

in which the vessel participates in a

directed fishery for groundfish in the

Eastern Regulatory Area using hookand-line gear.

(vii) A catcher/processor or catcher

vessel equal to or greater than 60 ft (18.3

m) LOA fishing with pot gear that

participates for more than 3 fishing days

in a directed fishery for groundfish in a

calendar quarter must carry an observer

during at least 30 percent of its fishing

days while using pot gear in that

calendar quarter and during at least one

entire fishing trip using pot gear in a

calendar quarter for each of the

groundfish fishery categories defined

under paragraph (c)(2) of this section in

which the vessel participates.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(A) * * *

(4) May not serve as observers on any

vessel or at any shoreside processor

owned or operated by a person who

previously employed the observer, for a

period of 12 consecutive months after

being employed by that person.

* * * * *

(i) * * *

(1) * * *

(iii) Term. Observer contractors will

be certified through December 31, 1998.

Observer contractors can be decertified

or suspended by NMFS under paragraph

(j) of this section.

(2) * * *

(xiv) Providing the following

information to the Observer Program

Office by electronic transmission (email), fax, or other method specified by

NMFS.

* * * * *

(G) A completed and unaltered copy

of each type of signed and valid contract

(including all attachments, appendices,

addendums, and exhibits incorporated

into the contract) an observer contractor

has with those entities requiring

observer services under paragraphs (c)

and (d) of this section and with

observers. Completed and unaltered

copies of signed and valid contracts

with specific entities requiring observer

services or with specific observers must

be submitted to the Observer Program

Office upon request. Types of signed

and valid contracts include the

contracts an observer contractor has

with:

(1) Vessels required to have observer

coverage as specified at paragraphs

(c)(1)(i) and (iv) of this section,

(2) Vessels required to have observer

coverage as specified at paragraphs

(c)(1)(ii), (v), and (vii) of this section,

(3) Shoreside processors required to

have observer coverage as specified at

paragraph (d)(1)(i) of this section,

(4) Shoreside processors required to

have observer coverage as specified at

paragraph (d)(1)(ii) of this section,

(5) Observers (to include contracts for

the various compensation or salary

levels of observers, the levels being

based on observer experience).

Required copies of contracts must be

submitted by mail or faxed to: NMFS

Observer Program Office, 7600

Sandpoint Way Northeast, Seattle, WA

98115–0070; fax number 206–526–4066.

* * * * *

(j) * * *

(7) * * *

(iv) If the appeals officer grants review

based on the written petition, he or she

may request further written explanation

from observers, observer contractors, or

the decertifying officer or suspending

officer. The appeals officer will then

render a written decision to affirm,

modify, or terminate the suspension or

decertification or return the matter to

the suspending or decertifying official

for further findings. The appeals officer

must base the decision on the

administrative records compiled under

paragraphs (j)(5) or (j)(6) of this section,

as appropriate. The appeals officer will

serve the decision on observers or

observer contractors and any affiliates

involved, personally or by certified

mail, return receipt requested, at the last

known residence or place of business.

* * * * *

[FR Doc. 97–25011 Filed 9–18–97; 8:45 am]

BILLING CODE 3510–22–F