Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations 27213

ACTION: Correction to final rule

preamble.

SUMMARY: This document contains a

correction to the preamble of the final

rule on two-way end-of-train telemetry

devices (two-way EOTs) and certain

passenger train operations, which was

published on Friday, May 1, 1998 (63

FR 24130). The final rule specifically

addressed and clarified the applicability

of the existing two-way EOT

requirements to certain passenger train

operations where multiple units of

freight-type equipment, material

handling cars, or express cars are part of

a passenger train’s consist.

FOR FURTHER INFORMATION CONTACT:

James Wilson, Motive Power and

Equipment Division, Office of Safety,

RRS–14, FRA, 400 Seventh Street, SW,

Stop 25, Washington, DC 20590

(telephone 202–632–3367); or Thomas

Herrmann, Trial Attorney, Office of the

Chief Counsel, RCC–12, FRA, 400

Seventh Street, S.W., Stop 10,

Washington, D.C. 20590 (telephone

202–632–3178).

SUPPLEMENTARY INFORMATION:

Background

The ‘‘Regulatory Impact’’ portion of

the preamble to the final rule addressing

Executive Order 12866 and DOT

regulatory policies and procedures

stated that because the requirements

contained in the final rule clarify the

applicability of the two-way EOT

regulations to a specific segment of the

industry and generally reduce the

regulatory burden on these operators,

FRA concluded that the final rule did

not constitute a significant rule under

either Executive Order 12866 or DOT’s

policies and procedures. However, FRA

inadvertently omitted a statement that

the impact of the rule would be so

minimal that any further analysis was

not warranted.

Need for Correction

As published, the ‘‘Regulatory

Impact’’ portion of the preamble failed

to inform the public of FRA’s

determination that the impact of the

rule would be so minimal that any

further analysis was not warranted.

Thus, that portion of the preamble is in

need of clarification.

Correction

Accordingly, the publication on May

1, 1998 of the final rule on two-way

EOTs and certain passenger train

operations, which was contained in FR

Doc. 98–11408, is corrected as follows:

On page 24134 in the first column, at

the end of the paragraph headed

‘‘Executive Order 12866 and DOT

Regulatory Policies and Procedures,’’

the following sentence is added:

Furthermore, as the final rule is

intended to clarify the applicability of

the two-way EOT regulations and affects

a very limited number of passenger train

operations, FRA has determined that the

impact of the rule would be so minimal

that any further analysis was not

warranted.

Issued in Washington, D.C., on May 12,

1998.

S. Mark Lindsey,

Chief Counsel, Federal Railroad

Administration.

[FR Doc. 98–13127 Filed 5–15–98; 8:45 am]

BILLING CODE 4910–06–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 970829214–8090–02; I.D.

082097B]

RIN 0648–AJ76

Magnuson-Stevens Fishery

Conservation and Management Act

Provisions; Observer Health and

Safety

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS amends the regulations

that pertain to fishery observers and the

vessels that carry them. This regulatory

amendment implements measures to

ensure the adequacy and safety of

fishing vessels that carry observers.

Owners and operators of fishing vessels

that carry observers are required to

comply with guidelines, regulations,

and conditions in order to ensure that

their vessels are adequate and safe for

the purposes of carrying an observer and

allowing normal observer functions.

DATES: Effective June 17, 1998.

ADDRESSES: Copies of the Regulatory

Impact Review prepared for this action

may be obtained from NMFS, SF3, 1315

East-West Highway, Silver Spring, MD

20910, Attn: William J. Bellows.

FOR FURTHER INFORMATION CONTACT:

William J. Bellows, 301–713–2341.

SUPPLEMENTARY INFORMATION:

Background

The Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act), as amended

(16 U.S.C. 1801 et seq.), the Marine

Mammal Protection Act, as amended

(MMPA; 16 U.S.C. 1361 et seq.), and the

Atlantic Tunas Convention Act, as

amended (ATCA; 16 U.S.C. 971 et seq.)

authorize the Secretary of Commerce

(Secretary) to station observers aboard

commercial fishing vessels to collect

scientific data required for fishery and

protected species conservation and

management, to monitor incidental

mortality and serious injury to marine

mammals and to other species listed

under the Endangered Species Act

(ESA), and to monitor compliance with

existing Federal regulations. In addition,

pursuant to the South Pacific Tuna Act

of 1988 (16 U.S.C. 973 et seq.) observers

may be required in the South Pacific

Tuna Fishery.

The Magnuson-Stevens Act directs

that—

...the Secretary shall promulgate

regulations, after notice and opportunity for

public comment, for fishing vessels that carry

observers. The regulations shall include

guidelines for determining—

(1) when a vessel is not required to carry

an observer on board because the facilities of

such vessel for the quartering of an observer,

or for carrying out observer functions, are so

inadequate or unsafe that the health or safety

of the observer or the safe operation of the

vessel would be jeopardized; and

(2) actions which vessel owners or

operators may reasonably be required to take

to render such facilities adequate and safe.

A proposed rule to implement the

required measures was published in the

Federal Register on September 22, 1997

(62 FR 49463), and invited public

comment through October 22, 1997.

Several comments were received late in

the comment period requesting that the

comment period be extended. NMFS

extended the comment period 30 days

(62 FR 55774, October 28, 1997).

Eleven letters of comment were

received concerning the proposed rule.

Of these 11, eight expressed opposition

to the rule or to specific provisions in

the rule, and one letter was signed by

eight individuals who represented

different industry organizations. Two

letters expressed strong support for the

rule, one of which was from an observer

organization with approximately 200

members. One letter expressed neither

opposition nor support but listed many

problems that observers face on the job.

Comment 1: The publication of the

rule was inadequately advertised/

announced. It was not on any of the

following notice mediums: NMFS

bulletin boards, NMFS press release,

NMFS homepage, or Alaska Region

homepage. The commenter requested an

extension of the 30-day comment

period.
27214 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations

Response: The proposed rule was

published in the Federal Register on

September 22, 1997 (62 FR 49463). The

comment period was extended for 30

days and was announced by publication

in the Federal Register on October 28,

1997 (62 FR 55774). In addition to the

October 28 publication of the extension

of the comment period, both the

proposed rule and the extension of the

comment period were posted on the

NMFS homepage and on the Alaska

Region homepage during the extended

comment period.

Comment 2: The 30-day extension of

the comment period is grossly

inadequate.

Response: NMFS disagrees. By

extending the public comment period

by an additional 30 days, NMFS

doubled the length of the original

comment period. NMFS believes that a

60-day public comment period is

adequate.

Comment 3: Observers are not

qualified to make a judgement regarding

vessel safety.

Response: It is true that observers do

not receive the same vessel safety

examination training that U.S. Coast

Guard (USCG) personnel do. However,

NMFS observers are provided training

that addresses vessel safety. For

example, in the North Pacific observer

training, observers are taught to look for

obvious areas of non-compliance that

may jeopardize their safety. In addition

to viewing several safety videos, the

observers are shown a set of ‘‘safety

tour’’ slides in which they are asked to

look for items on a safety check list.

Section 600.746(c)(3) has been added to

the rule; this section encourages the

observer to check major safety items (as

identified by the USCG) and to briefly

check the vessel’s major spaces for

especially hazardous conditions. The

intent of this rule is not to empower an

observer as a USCG enforcement

official. Its purpose is to encourage an

observer to check the major safety items

identified in § 600.746(c)(3); if these

items are absent or unserviceable, the

rule empowers the observer not to sail

with the vessel until those deficiencies

are corrected. The observer’s pre-trip

safety check will be made in accordance

with published USCG guidance on some

of the most important items that would

be required in the event of an at-sea

emergency.

Comment 4: The rule’s evaluation that

there will be no significant impact on a

substantial number of small entities is

wrong. If an observer refuses to board a

vessel that is safe in accordance with

USCG standards, the vessel could be

delayed in departing long enough to

miss an important part of a short season,

resulting in significant lost opportunity

to fish. The observer’s refusal could be

the result of poor judgement, lack of

expertise or training, or vindictiveness.

Response: NMFS has added language

to the rule in § 600.746(c)(3) that is

intended to minimize, if not eliminate,

the possibility of an observer making a

decision, for whatever reason, regarding

a safe vessel that would delay its

beginning legal fishing at the optimum

time. The above-mentioned section was

added to the regulations in order to give

the observer detailed guidance regarding

the pre-trip safety check. In addition,

this document makes it clear that the

observer’s safety check is to confirm that

the USCG safety decal is current and to

spot-check other safety items by

conducting a brief walk through the

vessel’s major spaces to check for

obviously hazardous conditions. NMFS

believes that the training observers now

receive is adequate to enable an

observer to conduct the pre-trip safety

check as discussed in the response to

comment 3.

Comment 5: There are no provisions

for redress and appeal in the event that

a vessel is unnecessarily detained or

impacted.

Response: There are no specific

procedures for redress or appeal in these

regulations. It would be redundant to

include those legal procedures here

because they are available to anyone

who considers that he or she has

experienced wrongful negative impact

of any regulations. As is suggested in

the response to comment 17, when a

vessel operator disputes the observer’s

decision and is unable to reach a

resolution, the vessel operator should

call the USCG and request

reexamination of the issue in dispute.

Comment 6: If the regulations were

approved in the absence of USCG

regulations, they would be inadequate.

Response: They are not being

approved in the absence of USCG

regulations. The intent of this rule is to

build upon the USCG and other safety

regulations. The regulations intend to

insure the safety of observers at sea

without duplicating USCG regulations,

which are designed to insure the safety

of all persons on board fishing vessels.

Comment 7: All vessels carrying

observers are required to have a current

safety decal; consequently, there is no

basis for an observer refusing to board

a vessel.

Response: If the decal is valid

(current) and if no safety equipment has

been lost, damaged, or is otherwise

unserviceable, there should be no

safety-related reasons for an observer to

refuse boarding. If, on the other hand,

the decal is current, but safety

equipment is missing or unserviceable,

the observer is authorized not to board

the vessel.

Comment 8: The style of referring to

other sections of the CFR is difficult to

read and understand. Furthermore,

some of the sections cited have not been

written.

Response: This rule cites other

sections of the CFR rather than

duplicating those sections in order to

make the regulations published in the

Federal Register as concise as possible.

NMFS wants the regulations to refer to

the most recent versions of the

regulations cited. If other agencies’

regulations were repeated in NMFS’

regulations, it would be nearly

impossible for NMFS to keep the

regulations current. By citing the other

agencies’ regulations, the reference is

always to the most recently amended

regulation. All cited sections have been

written and published before they are

incorporated into the CFR except for

citations to the rule being enacted

through this action. The regulatory text

for this rule follows after this preamble.

Some changes may have been too recent

to appear in the CFR dated October

1996, which was the last-published CFR

at the time that the proposed rule was

published.

Comment 9: USCG no longer performs

no-cost inspections of processor vessels.

Response: The commenter is correct.

Processing vessels examined by private

organizations comprise the only

category of fishing vessels that pays to

have inspections done. These for-fee

inspections are in lieu of USCG dockside examinations but do not preclude

at-sea examinations by USCG. The

inspections of processing vessels are

required whether observer safety rules

are in effect or not.

Comment 10: This rulemaking is

premature; ‘‘neither the industry nor

NMFS is ready at this time to begin

discussions on such rules. Before that

discussion can begin, NMFS first needs

to develop appropriate rules regarding

onboard observers in all the other

fisheries in which they have been

deemed necessary.’’

Response: This rule is required by the

Magnuson-Stevens Act.

Comment 11: It is unrealistically

generous to require that

accommodations be equivalent to those

of the vessel’s officers. Observers do not

warrant treatment as officers.

Response: This rule requires nothing

specific regarding accommodations for

observers. It merely refers to regulations

already in place.

Comment 12: Under the regulations

that would be put in place by this rule,

if all vessels were required to carry
Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations 27215

observers, all vessels would have to

undergo safety inspections. This would

mean the end of uninspected fishing

vessels.

Response: Under the assumptions

made by the commenter, it is true that

if all vessels were required to carry

observers, all of them would have to be

examined. At the present time, however,

not all vessels are required to carry

observers. NMFS wants fishing vessels

carrying observers to fish safely, and

undergoing USCG safety examinations

promotes safety.

Comment 13: What is the authority

under which regional requirements

governing observer accommodations

might be developed? It is possible that

these regional requirements could have

unintended effects. For example, if the

regional requirement deals with an issue

that is judged subjectively, such as the

adequacy of accommodations or food,

the observer in applying that subjective

judgement could keep a safe vessel from

fishing.

Response: The authorities under

which regional requirements are

developed are the Magnuson-Stevens

Act, the Marine Mammal Protection Act,

and the ESA. The addition of

§ 600.746(c)(3) to the rule should

eliminate the problem of subjective

judgement in conducting the vessel’s

pre-trip safety check. It is not the intent

of this rule to develop regional

requirements.

Comment 14: If a vessel has a valid

USCG safety decal, there should be no

question concerning the vessel’s safety.

To then have an observer, who has the

authority to refuse to board the vessel

because of a safety deficiency, is double

jeopardy.

Response: If a vessel has passed a

USCG dock-side safety examination, the

regulations indicate that such vessel

would be considered safe with respect

to the USCG regulations. However, it is

possible that some requirements with

which the vessel was in compliance at

the time of the USCG safety examination

may not be met at the time of boarding

by an observer for a specific trip. NMFS

has added language at § 600.746(c)(3)

that encourages the observer to examine

some of the most important items that

would be required in the case of an

emergency at sea. This approach is

consistent with that applied by USCG in

recognizing that changes in vessel safety

may occur between the time when a

USCG safety decal is issued and the

beginning of subsequent fishing. NMFS

notes that this rule gives an observer

authority not to board an unsafe or

inadequate vessel. If such a vessel is

operating in a fishery with mandatory

observer coverage, the result of the

observer’s refusing to board might be

that the vessel would not be authorized

to conduct fishing.

Comment 15: This rule cites other

regulations already in place, which

suggests that regulations to effect safety

are already in place. That being the case,

this rule will not change anything.

Response: This rule applies safety

standards to all fisheries, including

those for which no other observer

regulations are in place. In fisheries

with mandatory observer programs in

place now, and for those in which

mandatory programs may be

established, this rule makes it a

violation to fish without an observer

aboard. This rule also requires vessels to

submit to an otherwise voluntary

inspection program to provide evidence

of compliance with safety standards.

Comment 16: This rule is an attempt

to exceed the authority conveyed by the

Magnuson-Stevens Act in that it goes

beyond USCG regulations by

authorizing an observer to refuse to

board an unsafe vessel, thereby keeping

the vessel from fishing legally. It goes

beyond what is necessary to provide a

safe environment for an observer, and it

gives an observer authority that

Congress gave to USCG.

Response: NMFS believes that the

rule does not go beyond what is

required to provide a safe environment

for observers and for other persons

aboard fishing vessels. The intent of the

rule is not to empower an observer with

USCG enforcement official status; its

intent is to provide a safe vessel for an

assigned observer. The NMFS rule does

not encroach on USCG authority to

terminate a voyage. Rather, it conditions

a vessel’s ability to fish safely by

requiring compliance with existing

regulations enforced by the USCG. The

authority to regulate fishing activities

properly rests with NMFS.

Comment 17: If NMFS wants to

require more than vessel-provided

personal flotation devices (PFDs) and

safety briefings, it should specifically

identify the requirements that relate to

observer safety rather than to such other

safety concerns as the environment.

NMFS should also consider which

safety requirements warrant giving

observers ‘‘the extraordinary authority

to prevent a vessel from undertaking a

fishing trip.’’

Response: NMFS is not giving greater

significance to some USCG regulations

than to others. NMFS is encouraging

observers to check for compliance with

existing regulations. A safety decal is

considered to be evidence of

compliance, but if there is other obvious

non-compliance, the observer has the

option of not boarding the vessel. If the

vessel operator disputes the observer’s

decision, which should be based upon

published USCG guidance on some of

the most important items that would be

required in the event of an at-sea

emergency, and no resolution is

reached, the vessel operator should call

the USCG to request reexamination of

the issue in dispute. The addition of

§ 600.746(c)(3) clarifies which items the

observer should check at the time of

boarding. The observer’s pre-trip safety

check will be made in accordance with

published Coast Guard Guidance on

some of the most important items that

would be required in the event of an atsea emergency. NMFS recognizes that,

in some circumstances, an observer may

raise a safety question that requires a

vessel to wait for a USCG boarding

before fishing. It is true that this could

result in a loss of fishing days. In

structuring the rule this way, NMFS had

to weigh the impacts of this approach

versus the impacts of alternative

approaches. Just as there is a potential

for a vindictive observer declining to

board and thereby delaying a vessel’s

departure, other approaches would have

raised the possibility of an observer

being coerced into boarding a vessel that

he or she believes is unsafe. Given the

safety risks at issue and the probability

that most safety violations will be easily

remedied, e.g., replacing PFDs, NMFS

determined that placing the

presumptions in the selected manner

was preferable.

Whenever possible, vessel owners/

operators are encouraged to arrange for

the observer to make the pre-trip safety

check in advance of the beginning of the

planned fishing trip. In that way, there

would be time to correct problems

without delaying the trip’s departure

time.

Comment 18: There are alternatives

that would accomplish NMFS’

objectives that were not considered by

NMFS. One alternative is to provide an

automatic waiver for those situations in

which an observer refused to board a

vessel for safety reasons. The waiver

would be valid until the vessel had

undergone a USCG inspection either at

sea or in port. Alternative two would be

to require that the safety determination

be made by a NMFS enforcement agent

who had completed the USCG training

program for vessel safety inspections.

Alternative three would be to determine

which classes of vessels have

consistently failed to provide safe

working conditions for observers. Only

those classes of vessels would be

required to comply with the rule.

Vessels with proven safety records

would be exempt from the provisions of

this rule.
27216 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations

Response: Alternative one would void

the intent of the rule. It would not make

the vessel safe for the observer on the

fishing trip that the observer was

assigned to observe. Furthermore, it

could provide an opportunity for vessel

operators to avoid taking observers by

incurring safety violations, such as no

PFD for the observer. By authorizing an

observer to refuse to board an unsafe

vessel and by making it illegal to fish

without an observer in a mandatory

observer fishery, there is a strong

incentive for the vessel to meet all

USCG safety regulations. Alternative

two was considered and rejected. It is

equally possible that a NMFS

enforcement agent, like an observer,

would discover a safety violation that

would delay a vessel’s fishing trip. This

option would also create the risk of an

observer having to board a vessel that he

or she believes is unsafe. In addition,

from a practical standpoint, the current

work load for NMFS enforcement agents

makes it impossible for them to

undertake this responsibility and

continue to perform other enforcement

functions/duties. Alternative three is

not feasible because vessel safety is an

individual vessel issue not one that can

be addressed by classes of vessels.

Comment 19: The rule does not

analyze measures taken by regions.

Response: It is not the intent of this

rule to analyze measures taken by

regions. That analysis is done at the

time those measures are developed and

proposed in the rulemaking process.

Comment 20: One commenter

believes that, should an observer refuse

to board a vessel because of safety

deficiencies, there could be legal

implications beyond the simple issue of

the USCG safety requirement and the

vessel’s fishing. ‘‘After an observer has

determined a vessel to be unsafe, a crew

member injures themself [sic] in the

factory. Considering the Jones Act, the

lawyers would have a field day.’’

Response: NMFS believes this

comment refers to the possible use of an

observer’s safety determinations as

evidence in a law suit. As stated in the

responses to comments 3 and 16, this

rule is not intended to give observers

the authority to make actual

determinations as to a vessel’s

compliance with USCG regulations.

Rather, it simply requires that a vessel,

if its safety has been called into

question, rectify the shortcoming or

submit to a new USCG safety

examination or inspection. If anything,

this rule is likely to reduce the number

of negligence claims because vessels

with questionable safety issues will

correct them or be reexamined by USCG

before fishing.

Comment 21: The USCG should be

consulted.

Response: The USCG was involved at

every stage of development of this rule.

Comment 22: One commenter raised

specific issues about an observer who

was terminated and who subsequently

filed suit.

Response: Because the case is before

the court, it would be inappropriate for

NMFS to respond at this time.

Changes From the Proposed Rule

Four changes were made from the

proposed rule. One was made in

response to comments: A provision was

added at § 600.746(c)(3) to provide

guidance on the scope of the observer’s

pre-trip safety check.

Another change was made to clarify

that USCG performs either an inspection

or an examination: The words

‘‘examination or inspection’’ replaced

‘‘inspection’’ in §§ 600.725(p),

600.746(c)(1), and 600.746(d)(1) so that

it is clear that either an examination or

an inspection can be performed.

The word ‘‘Examination’’ was

inserted in § 600.746(c)(1) in order to

more clearly identify the Commercial

Fishing Vessel Safety Examination

decal.

The word ‘‘examine’’ replaced

‘‘inspect’’ in § 600.746(c)(2) in order to

avoid confusion with USCG inspection.

The observer’s pre-trip safety check of

a vessel that displays a current

Commercial Fishing Vessel Safety

Examination decal will normally consist

of no more than a spot check of the

equipment identified in § 600.746(c)(3),

i.e., PFDs/immersion suits; ring buoys;

distress signals; fire extinguishing

equipment; emergency position

indicating radio beacon, when required;

survival craft, when required; and a

walk through major spaces. This walkthrough is not intended to broaden the

scope of the safety check. The safety

check should be done expeditiously

because the decal indicates that the

vessel has already undergone an

extensive dockside inspection.

Classification

At the proposed rule stage, NMFS

certified to the Assistant General

Counsel for Legislation and Regulation,

Department of Commerce and to the

Chief Counsel for Advocacy, Small

Business Administration that this action

would not result in a significant

economic impact on a substantial

number of small entities. Comments

received on the proposed rule suggested

that small entities might experience a

significant economic impact as a result

of the rule. Based on this new

information, NMFS decided to prepare

a Final Regulatory Flexibility Analysis

(FRFA). The FRFA concludes that the

rule’s authorization for an observer to

refuse to board a vessel that the observer

believes to be unsafe and the rule’s

requirement that a vessel required to

carry an observer cannot legally fish

without the observer make it possible

that implementation of this rule could

delay a vessel’s departure for a fishing

trip. Because of variations in the

structures of different fisheries’

mandatory observer programs and in the

structures of the different fishery

management regimes, the fact that an

observer refused to board would not

necessarily mean that the vessel would

lose fishing time as might be the case in

those fisheries where vessels are

allowed a limited number of days

fishing per year. It is not possible to

estimate accurately how many, if any,

vessels would lose days at sea as a result

of this rule. Therefore, there is at least

a theoretical possibility that 20 percent

of the affected small entities could

experience a significant economic

impact.

In addition to the preferred

alternative, which is the alternative that

is implemented by this rule, NMFS

considered several other alternatives.

One of them would have been to take no

action. Under this approach, vessels that

carry observers would be required to

comply with the same safety standards

that would be applicable under the

preferred alternative, but there would be

no guidance to interested parties as to

how to conduct a pre-trip safety check

nor would there be any means by which

an observer could quickly ascertain

whether the vessel was in compliance

with applicable USCG regulations. If the

agency were to adopt the no-action

alternative, the Congressional mandate

in the Magnuson-Stevens Act would not

be effected. In addition, there would be

continued risk of unsafe conditions on

board vessels to which observers were

assigned.

Another alternative would have

prescribed new national standards for a

wide range of safety and

accommodations issues. Basic standards

for determining a vessel’s safety and

adequacy would be based on USCG

safety requirements and NMFS regional

observer requirements as is the case in

the first alternative. In addition to those

basic USCG standards, this alternative

would result in new regulations

addressing a wide range of

accommodation issues, such as quality

of food, which, if not met, would

authorize an observer not to board a

fishing vessel. The observer would be

authorized to make the pre-trip safety

check to determine whether or not he/
Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations 27217

she would board the vessel. In

mandatory observer programs, a fishing

vessel would not be permitted to fish

legally without an observer. This

alternative is not the preferred

alternative because of the degree to

which an observer would be authorized

to make subjective, qualitative

determinations. Furthermore, because of

the variability of working conditions on

fishing vessels, some vessels could not

reasonably or economically meet the

expectations of all observers. Therefore,

the risk of this alternative resulting in

delays of fishing trips is greater than

that of the preferred alternative.

The last alternative that NMFS

considered would have prescribed basic

standards for determining safety and

adequacy as described in the preferred

alternative, but either the National

Marine Fisheries Service or an

authorized observer contractor would

have been authorized to make the pretrip safety check to determine whether

or not the observer would board the

vessel. In mandatory observer programs,

a fishing vessel would not be permitted

to fish legally without an observer. This

alternative would have used the same

evaluation criteria (USCG dockside

safety examination, pre-trip safety

check, presence of a current Commercial

Fishing Vessel Safety Decal, etc.) as the

preferred alternative but would give

NMFS and/or an authorized observer

contractor the authority to decide

whether a vessel is safe and adequate.

The rationale for this approach is that it

would avoid putting the observer into a

situation where vessel owner, operator,

and crew might exert pressure to coerce

the observer to declare the vessel safe

despite conditions that the observer

believed to be unsafe. It would also

avoid the potential for a ‘‘vindictive’’

observer to abuse discretion in making

safety checks. The benefit of having

NMFS or an authorized observer

contractor make the safety and adequacy

decision is that it would avoid putting

the additional pressure on an observer

of potentially having to tell a captain

and crew with whom he/she would be

spending time at sea that a fishing trip

would be delayed. However, this

alternative would also have the

potential to delay a fishing voyage

pending safety resolution. It is just as

possible that a NMFS employee or

observer contractor would discover

safety issues in need of attention as an

observer would. In addition, under this

alternative, an observer who believes a

vessel to be unsafe may be instructed to

board because NMFS or the observer

contractor believes the vessel to be safe.

There would also be costs to NMFS and/

or the observer contractor in the form of

having a representative on site each

time an observer boarded a vessel.

NMFS and/or the observer contractor

would also experience the cost of

training employees to make the pre-trip

safety check. This alternative is not

preferred because it would put a third

party in a position of judging a vessel’s

safety and perhaps of forcing an

observer aboard an unsafe vessel.

In addition to these alternatives, one

commenter suggested two additional

alternatives: The first would have

provided an automatic waiver for those

situations in which an observer refused

to board a vessel for safety reasons. The

waiver would be valid until the vessel

had undergone a USCG inspection

either at sea or in port. This alternative

would have voided the intent of the

rule. It would not make the vessel safe

for the observer on the fishing trip that

the observer was assigned to observe.

Furthermore, it could provide an

opportunity for vessel operators to avoid

taking observers by incurring safety

violations, such as no PFD for the

observer. The other suggested

alternative would be to determine

which classes of vessels have

consistently failed to provide safe

working conditions for observers. Only

those classes of vessels would be

required to comply with the rule.

Vessels with proven safety records

would be exempt from the provisions of

this rule. This approach is not feasible

because vessel safety is an individual

vessel issue not one that can be

addressed by classes of vessels.

NMFS tried to mitigate the potential

impact of the rule by using objective

standards for the observer’s pre-trip

safety check in the form of the

published USCG guidance about the

most important items that would be

required in the event of an at-sea

emergency. This particular alternative

was chosen because it seemed to be an

appropriate balance between the

objectives of increasing observer safety

and minimizing the risk of negative

economic impact on vessels.

This action has been determined to be

not significant for purposes of E.O.

12866.

List of Subjects in 50 CFR Part 600

Administrative practice and

procedure, Confidential business

information, Fisheries, Fishing, Fishing

vessels, Foreign relations,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Statistics.

Dated: May 12, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set forth in the

preamble, 50 CFR part 600 is amended

as follows:

PART 600—MAGNUSON-STEVENS

ACT PROVISIONS

1. The authority citation for 50 CFR

part 600 continues to read as follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801

et seq.

2. Section 600.725 is amended by

redesignating paragraph (p) as

paragraph (t), adding paragraphs (p), (q),

(r), (s), and (u), and revising newly

redesignated paragraph (t) to read as

follows:

§ 600.725 General prohibitions.

* * * * *

(p) Fail to submit to a USCG safety

examination when required by NMFS

pursuant to § 600.746.

(q) Fail to display a Commercial

Fishing Vessel Safety Examination decal

or a valid certificate of compliance or

inspection pursuant to § 600.746.

(r) Fail to provide to an observer, a

NMFS employee, or a designated

observer provider information that has

been requested pursuant to § 600.746, or

fail to allow an observer, a NMFS

employee, or a designated observer

provider to inspect any item described

at § 600.746.

(s) Fish without an observer when the

vessel is required to carry an observer.

(t) Assault, oppose, impede,

intimidate, or interfere with a NMFSapproved observer aboard a vessel.

(u) Prohibit or bar by command,

impediment, threat, coercion, or refusal

of reasonable assistance, an observer

from conducting his or her duties

aboard a vessel.

3. In subpart H, § 600.746 is added to

read as follows:

§ 600.746 Observers.

(a) Applicability. This section applies

to any fishing vessel required to carry an

observer as part of a mandatory observer

program or carrying an observer as part

of a voluntary observer program under

the Magnuson-Stevens Act, MMPA (16

U.S.C. 1361 et seq.), the ATCA (16

U.S.C. 971 et seq.), the South Pacific

Tuna Act of 1988 (16 U.S.C. 973 et seq.),

or any other U.S. law.

(b) Observer requirement. An observer

is not required to board, or stay aboard,

a vessel that is unsafe or inadequate as

described in paragraph (c) of this

section.

(c) Inadequate or unsafe vessels. (1) A

vessel is inadequate or unsafe for
27218 Federal Register / Vol. 63, No. 95 / Monday, May 18, 1998 /Rules and Regulations

purposes of carrying an observer and

allowing operation of normal observer

functions if it does not comply with the

applicable regulations regarding

observer accommodations (see 50 CFR

parts 229, 285, 300, 600, 622, 648, 660,

678, and 679) or if it has not passed a

USCG safety examination or inspection.

A vessel that has passed a USCG safety

examination or inspection must display

one of the following:

(i) A current Commercial Fishing

Vessel Safety Examination decal, issued

within the last 2 years, that certifies

compliance with regulations found in

33 CFR, chapter I and 46 CFR, chapter

I;

(ii) A certificate of compliance issued

pursuant to 46 CFR 28.710; or

(iii) A valid certificate of inspection

pursuant to 46 U.S.C. 3311.

(2) Upon request by an observer, a

NMFS employee, or a designated

observer provider, a vessel owner/

operator must provide correct

information concerning any item

relating to any safety or accommodation

requirement prescribed by law or

regulation. A vessel owner or operator

must also allow an observer, a NMFS

employee, or a designated observer

provider to visually examine any such

item.

(3) Pre-trip safety check. Prior to each

observed trip, the observer is

encouraged to briefly walk through the

vessel’s major spaces to ensure that no

obviously hazardous conditions exist. In

addition, the observer is encouraged to

spot check the following major items for

compliance with applicable USCG

regulations:

(i) Personal flotation devices/

immersion suits;

(ii) Ring buoys;

(iii) Distress signals;

(iv) Fire extinguishing equipment;

(v) Emergency position indicating

radio beacon (EPIRB), when required;

and

(vi) Survival craft, when required.

(d) Corrective measures. If a vessel is

inadequate or unsafe for purposes of

carrying an observer and allowing

operation of normal observer functions,

NMFS may require the vessel owner or

operator either to:

(1) Submit to and pass a USCG safety

examination or inspection; or

(2) Correct the deficiency that is

rendering the vessel inadequate or

unsafe (e.g., if the vessel is missing one

personal flotation device, the owner or

operator could be required to obtain an

additional one), before the vessel is

boarded by the observer.

(e) Timing. The requirements of this

section apply both at the time of the

observer’s boarding, at all times the

observer is aboard, and at the time the

observer is disembarking from the

vessel.

(f) Effect of inadequate or unsafe

status. A vessel that would otherwise be

required to carry an observer, but is

inadequate or unsafe for purposes of

carrying an observer and for allowing

operation of normal observer functions,

is prohibited from fishing without

observer coverage.

[FR Doc. 98–13131 Filed 5–15–98; 8:45 am]

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