[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Proposed Rules]
[Pages 49198-49201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25011]


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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.

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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 
non-codified 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

[[Page 49199]]

program that addresses concerns about observer data integrity and 
observer compensation and working conditions.
    2. Revise the conflict-of-interest regulation at 
Sec. 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 Sec. 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 Sec. 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-and-line 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 Sec. 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 Sec. 679.50(j)(7)(iv) that referenced 
the wrong paragraph. The 1997 Interim Groundfish Observer Program 
regulations at Sec. 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. One-day 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.

[[Page 49200]]

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 fee-based 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

[[Page 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 Sec. 679.7, paragraph (g)(1) is revised to read as follows:


Sec. 679.7  Prohibitions.

* * * * *
    (g) * * *
    (1) Forcibly assault, resist, oppose, impede, intimidate, sexually 
harass, bribe, or interfere with an observer.
* * * * *
    3. In Sec. 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:


Sec. 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-and-line 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 hook-and-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 (e-mail), 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