[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Proposed Rules]
[Pages 40380-40393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19644]
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DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960717195-6195-01; I.D. 070196E]
RIN 0648-AI95
Fisheries of the Exclusive Economic Zone Off Alaska; North
Pacific Fisheries Research Plan; Interim Groundfish Observer Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule that would implement Amendment 47
to the Fishery Management Plan for Groundfish of the Gulf of Alaska,
Amendment 47 to the Fishery Management Plan for the Groundfish Fishery
of the Bering Sea and Aleutian Islands Area (Groundfish FMPs), and
Amendment 6 to the Fishery Management Plan for the Commercial King and
Tanner Crab Fisheries in the Bering Sea and Aleutian Islands Area (Crab
FMP). This action also would repeal regulations implementing the North
Pacific Fisheries Research Plan (Research Plan). This action is
necessary to respond to the North Pacific Fishery Management Council's
(Council) recommendation to repeal the Research Plan and implement
Amendments 47 and 47 to the Groundfish FMPs to establish mandatory
groundfish observer coverage requirements through 1997. Amendment 6 to
the Crab FMP would remove reference to the Research Plan. This action
is intended to establish an Interim Groundfish Observer Program until a
long-term program that addresses concerns about observer data
integrity, equitable distribution of observer coverage costs,
[[Page 40381]]
and observer compensation and working conditions is recommended by the
Council and implemented by NMFS.
DATES: Comments must be received by September 16, 1996.
ADDRESSES: Comments should be sent to Ronald J. Berg, 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
W. 9th Street, Juneau, AK.
Copies of the Environmental Assessment/Regulatory Impact Review/
Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for the
proposed Interim Groundfish Observer Program may be obtained from the
North Pacific Fishery Management Council, Suite 306, 605 West 4th
Avenue, Anchorage, AK 99501-2252; telephone: 907-271-2809. Send
comments regarding burden estimates or any other aspect of the data
requirements, including suggestions for reducing the burdens, to NMFS
and to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Washington, D.C. 20503, Attn: NOAA Desk
Officer.
Copies of the Observer Plan and information regarding observer
qualifications, observer training/briefing requirements, and NMFS'
selection criteria for observer contractors are available from the
Observer Program Office, Alaska Fisheries Science Center, Building 4,
7600 Sand Point Way Northeast, Seattle, WA 98115, telephone: 206-526-
4197.
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 management area (BSAI) in the exclusive
economic zone are managed by NMFS under the Groundfish FMPs. The FMPs
were prepared by the Council under the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801, et seq.; Magnuson 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 are codified at
50 CFR part 620. Regulations that implement the Research Plan appear at
50 CFR part 679. The Crab FMP delegates management of the crab
resources in the BSAI to the State of Alaska (State) with Federal
oversight. Regulations necessary to carry out the Crab FMP appear at 50
CFR part 679.
A data collection program to obtain information necessary for
conservation and management of the groundfish fisheries was authorized
by regulations implementing Amendments 18 and 13 to the Groundfish FMPs
(54 FR 50386, December 6, 1989). One of the measures in Amendments 18
and 13 authorized a comprehensive U.S. fishery observer program. NMFS,
in consultation with the Council, prepared and implemented an Observer
Plan to implement provisions of that program (55 FR 4839; February 12,
1990; 56 FR 30874, July 8, 1991; 59 FR 22133, April 29, 1994). The
Alaska Board of Fisheries implemented a Shellfish Onboard Observer
Program for the king and Tanner crab fisheries off Alaska in April 1988
(5 AAC 39.645).
A final rule implementing the Research Plan was published in the
Federal Register (59 FR 46126, September 6, 1994), under the authority
of section 313 of the Magnuson Act, as amended by section 404 of the
High Seas Driftnet Fisheries Enforcement Act, Public Law 102-582. The
Research Plan requires that observers be stationed on certain fishing
vessels and U.S. fish processors participating in the BSAI groundfish,
GOA groundfish, and BSAI king and Tanner crab fisheries. These
requirements may be extended to the halibut fishery off Alaska.
Observers are deployed for the purpose of collecting data necessary for
the conservation, management, and scientific understanding of fisheries
under the Council's authority. The Research Plan also established a
system of fees to pay for the costs of implementing the Research Plan.
Minor additions and/or changes to the regulations implementing the
Research Plan were published in the Federal Register on January 9, 1995
(60 FR 2344); July 5, 1995 (60 FR 34904); and August 16, 1995 (60 FR
42470).
Full implementation of the Research Plan was delayed until 1997 (60
FR 66755; December 26, 1995) after the Council requested additional
time to reconsider certain elements of the Research Plan that it had
previously adopted. This action maintained 1995 observer coverage
requirements through 1996 and retained effectiveness of the following
sections of the Observer Plan: (1) Standards of observer conduct; and
(2) description, specifications, and work statement for certified
observer contractors, including conflict of interest standards for
NMFS-certified observers and contractors and conditions for contractor
and observer certification revocation.
At its December 1995 meeting, the Council requested that NMFS
repeal the Research Plan and pursue an alternative to the Research Plan
that would revert back to direct payment for observer services rather
than a fee-based program. The proposed repeal of the Research Plan is
explained further in an interim final rule published in the Federal
Register on March 28, 1996 (61 FR 13782), and in a notice of
availability published in the Federal Register on July 12, 1996 (61 FR
36702).
One alternative long-term observer program being considered by the
Council to supersede the Research Plan would require NMFS to contract
with a third party to serve as a liaison between persons requiring
observer services and companies providing those services. NMFS met with
the Council's newly named Observer Advisory Committee (OAC) in March
1996 to review the proposed Research Plan alternatives. The OAC
highlighted to the Council at its April 1996 meeting that even though
observer compensation and certain other costs were not currently
quantifiable, the third-party alternative would be more expensive than
the observer program prior to the Research Plan. At its April 1996
meeting, the Council reviewed a draft analysis of alternatives to the
Research Plan and determined that additional cost comparisons of these
alternatives must be completed before it adopts an alternative to the
Research Plan. The Council is scheduled to receive more information on
a long-term replacement to the Research Plan at its September 1996
meeting.
Existing observer coverage requirements under Amendment 1 to the
Research Plan are scheduled to expire on December 31, 1996. At its
April 1996 meeting, the Council adopted an Interim Groundfish Observer
Program that would supersede the Research Plan and authorize mandatory
groundfish observer coverage requirements through 1997. The Interim
Groundfish Observer Program would extend 1996 groundfish observer
coverage requirements as well as vessel and processor responsibilities
relating to the observer program. Proposed changes to the groundfish
observer program are described below. The Interim Groundfish Observer
Program would remain effective through December 31, 1997, unless
superseded by a long-term program that addresses concerns about
observer data integrity, equitable distribution of observer coverage
costs, observer compensation and working conditions, and other concerns
raised by the Council's OAC. Under this action, observer coverage
requirements for the BSAI king and Tanner crab fisheries would no
longer be specified in Federal regulations. Observer coverage
requirements for the crab fisheries
[[Page 40382]]
would revert back to a category 3 measure in the Crab FMP and would be
specified by the Alaska Board of Fisheries.
Elements of the Proposed Interim Groundfish Observer Program
1. Observer coverage requirements would apply to vessels issued a
Federal fisheries permit and processors issued a Federal processor
permit. Fishing operations by these vessels and processors in Federal
and state waters would be subject to Federal observer coverage
requirements. This applicability of the Observer Program would be
unchanged from the applicability of the domestic observer program
implemented prior to the Research Plan.
2. Current observer coverage requirements for groundfish vessels
and shoreside processors receiving groundfish would remain unchanged
and are set out in this proposed rule at Sec. 679.50 (c) and (d).
Participants in the groundfish fisheries would continue to be
responsible for making their own arrangements with certified observer
contractors and paying for required observer coverage.
3. The Director, Alaska Region, NMFS, (Regional Director) could
make inseason adjustments in observer coverage requirements similar to
the Research Plan. Any inseason adjustment would be based on specified
findings and implemented using the procedure for inseason adjustments
at Sec. 679.25(c). Similar to the Research Plan, any inseason
adjustment to observer coverage requirements would be published in the
Federal Register at least 10 calendar days prior to the effective date.
Regulations implementing the Regional Director's ability to make
inseason adjustments in observer coverage requirements are set out in
this proposed rule at Sec. 679.50(e).
4. Vessel and shoreside processor responsibilities would remain
unchanged. These regulations are set out in this proposed rule at
Sec. 679.50(f).
5. The interim program would expand regulations governing the
Observer Program to include criteria and procedures for observer and
observer contractor certification, suspension, and decertification.
Previously, these criteria and procedures were included in the Observer
Plan. Certification, suspension, and decertification criteria and
procedures now are included in this proposed rule at Sec. 679.50(h),
(i), and (j). The proposed criteria and procedures are essentially
unchanged from the provisions under the Observer Plan, except that:
a. Observer contractors certified by NMFS prior to January 1, 1997,
would receive a 1-year certification extension that expires December
31, 1997. The currently certified observer contractors would not have
time to go through a new certification process, nor would NMFS have
adequate time to carry out the administrative procedures necessary for
their recertification prior to implementation of the Observer Program
on January 1, 1997. Any certified observer contractor could be
decertified according to the decertification procedures that are set
out in this proposed rule.
b. Observers and observer contractors cannot have a direct
financial interest or a conflict of interest in any commercial fishery
in State or Federal waters off Alaska. The conflict of interest
standards in the Observer Plan were more narrowly applied to the
observed fishery.
c. Observer qualifications have been revised as follows and would
be available from the Observer Program Office (see ADDRESSES.):
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 and must also have
successfully completed at least one undergraduate course each in math
and statistics (minimum of 5 semester hours total). 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 successfully complete
any screening test(s) administered by NMFS. These tests would measure
basic math, 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 would
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 math, statistics, and computer skills requirements
reflect the increased responsibilities of observers and are similar to
the observer qualifications under the Research Plan, had it been fully
implemented. The observer qualifications are presented here to provide
an opportunity for public comment.
d. Training/briefing requirements for certification have been
revised as follows and would be available from the Observer Program
Office (See ADDRESSES.):
A. Observers who have completed a deployment must be recertified
prior to another deployment. Individuals whose last deployment was
within 12 months must complete a 2-day briefing and individuals whose
last deployment was 12 to 24 months ago must complete a 4-day briefing.
If 2 years have passed since the completion of an individual's last
deployment, he or she must complete the full training course.
B. If an observer remains undeployed from 1 to 3 months after
completion of training, the individual must complete a 2-day briefing.
If the individual is not deployed from 3 to 6 months after training, a
4-day briefing must be completed. If more than 6 months have passed
since the completion of training, the individual must retake the full
training course.
C. Briefings (2- or 4-day) expire after 1 month. Individuals may be
required to complete a 4-day briefing or the full training course if
deemed necessary by the Observer Program Office.
These recertification requirements are identical to those under the
Research Plan, had it been implemented and are presented here to
provide an opportunity for public comment.
e. Selection criteria for observer contractors would be used by
NMFS to gauge the adequacy of the applicant to provide observer
services. These criteria are unchanged from the Observer Plan and would
be available from the Observer Program Office (See ADDRESSES.). They
are presented here to provide an opportunity for public comment.
Applicants for observer contractor certification would be evaluated by
NMFS using the following criteria:
A. Ability to supply required observer services:
i. Methods to be used to recruit, evaluate, and select qualified
applicants to serve as observers.
[[Page 40383]]
ii. Methods to be used in establishing, organizing and performing
all logistics associated with the deployment of observers.
iii. Methods to be used in scheduling observers for certification
training or briefing, observer deployments, assignments to vessels and
shoreside facilities so that observer coverage and sampling
requirements are met.
iv. Provisions for communications with observers, vessels,
shoreside facilities, and NMFS to provide and exchange required
information on scheduling, weekly logistics reports, emergencies, and
instructions for observers, vessels, and shoreside facilities.
v. Methods to be used in monitoring observer performance, observer
work between vessels and upon return from sea or duty station, NMFS
debriefing upon completion of each deployment and final preparation and
submission of reports and data.
B. Expertise and capability of applicant's organization:
i. Technical competence of staff based on resumes of key personnel
that show their abilities, education, training, and experience in
relation to their proposed assignments and areas of responsibilities on
a particular project.
ii. Organizational structure including number of personnel to be
assigned, in categories of professional, technical, and clerical
positions, to each phase of the project including provisions for the
backup of each key staff member during planned and unplanned absences.
C. Expressed understanding of the purpose of the Observer Program,
the role of the observer contractor, and the important aspects of this
type of project that lead to successful performance of work.
D. Summaries of similar work recently completed, including
description of work and contact person and telephone number of client.
f. Observer contractors must provide a certificate of insurance
that verifies compliance with the insurance coverage recommendations of
the Council's Insurance Technical Committee. This coverage must include
the following provisions:
A. Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
B. Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
C. States Worker's Compensation as required.
D. Contractual General Liability.
g. Observer contractors would be required to submit information to
NMFS that would be used to: Coordinate and conduct effective and
efficient scheduling of observers for training, briefing, and
debriefing sessions, maintain an observer deployment database, and
monitor the requirements of a certified observer contractor. This
information would include:
A. A list of prospective observers to be hired upon approval by
NMFS and observer training/briefing registration.
B. Projected observer assignments.
C. Observer deployment/logistics reports.
D. Observer debriefing registration.
E. Notification that prospective observers have passed a physical
examination during the 12 months prior to deployment.
F. A copy of each type of signed and valid contract an observer
contractor has with vessels and shoreside processors requiring observer
services and with observers. Copies of signed and valid contracts with
specific entities requiring observer services or with specific
observers also may be requested.
G. Reports of observer harassment, concerns about vessel or
processor safety, or observer performance problems.
Observers' social security numbers are requested with the training/
briefing registration to provide a unique numerical identifier for each
observer. This information has been requested in the past and
observers' social security numbers are included in the existing
Observer Program database. Regulations for the information collection
are set out in this proposed rule at Sec. 679.50(i)(2)(xiv).
7. Criteria for the suspension and/or decertification of observers
or observer contractors include the following appeals process whereby
documentary evidence, disputes, and petitions may be submitted:
a. Within 30 days of receipt of a suspension or decertification
notice, observers and observer contractors may provide written
documentary evidence and argument in opposition to the notice. They are
also afforded the opportunity to submit additional evidence that was
previously unavailable and in some instances, may appear in person and
present witnesses.
b. Observers and observer contractors also may petition for review
of a suspension or decertification decision within 30 days after the
date the decision was served.
These criteria are unchanged from the Observer Plan. Regulations
for this information collection are set out in this proposed rule at
Sec. 679.50(k) (6), (7), and (8).
8. Observer contractors would be restricted in how they could
assign observers to vessels or shoreside processors in the following
ways:
a. Observers must not be deployed on the same vessel for more than
90 days in a 12-month period;
b. A deployment to a vessel or a shoreside processing facility
cannot exceed 90 days without approval from the Observer Program Office
(See ADDRESSES.); and
c. A deployment cannot include assignments to more than four
vessels and/or shoreside processors. NMFS began instituting these
policies in 1990 to reduce the likelihood of conflicts of interest and
to ensure that debriefings occurred more frequently, so that NMFS could
process the observers' collected fisheries data.
9. A revision to regulations at Sec. 679.7(g)(2) would clarify
NMFS' intent that fish sorting of any kind prior to observer sampling
procedures is prohibited. Concerns exist that mechanical and/or
physical sorting could be occurring. For example, modifications to the
angle and speed of incline belts in processing lines and bin openings
that restrict the flow of fish act effectively to sort fish prior to
observer sampling procedures. NMFS specifically requests comments on
what, if any, impact this clarification could have on vessel or
processor operations.
10. A prohibition at Sec. 679.7(f)(14) would be removed to maintain
consistency with the proposed removal of Research Plan regulations at
part 679. Section 679.7(f)(14) prohibits permitted registered buyers
required to obtain a Federal processor permit from transferring or
receiving sablefish harvested in Federal waters or halibut, unless the
person possesses a valid Federal processor permit. The intent of this
prohibition was to reinforce the requirement that all Research Plan
processors pay their fees in a timely manner and would thus be eligible
for a Federal processor permit. This prohibition is no longer necessary
because Research Plan fee collections have been terminated.
Three elements of the proposed Interim Groundfish Observer Program
would not be codified in regulation: (1) Observer qualifications, (2)
observer training/briefing requirements, and (3) NMFS' selection
criteria for observer contractors. These elements are available upon
request. Although they would not be codified, they are viewed as a part
of the rule and are presented in the preamble specifically to provide
opportunity for public comment. Prior to proposing future changes to
these three elements, NMFS would publish a
[[Page 40384]]
notice in the Federal Register describing the proposed change(s) and
providing an opportunity for public comment.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of an FMP
amendment and regulations. At this time, NMFS has not determined that
the FMP amendments this rule would implement are consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS prepared an IRFA as part of the regulatory impact review,
which describes the impact this proposed rule would have on small
entities, if adopted. Based on that analysis, it was determined that
this proposed rule could, if issued in final, have a significant
economic impact on a substantial number of small entities. Observer
costs 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. For
individual vessels, the impact would increase as the percentage of
observer costs relative to total exvessel value of catch increases. In
1995, about 400 vessels carried observers; of these vessels about 280
were catcher vessels. About one half of the catcher vessels equal to or
greater than 60-ft (18.3-meters (m)) length overall (LOA) but less than
125-ft (38.1-m) LOA paid observer costs that were equal to or less than
1 percent of the exvessel value of catch. About 20 percent of vessels
incurred observer costs that ranged from 2 to almost 8 percent of the
exvessel value of catch. This represents cost increases from Research
Plan costs that were limited to 2 percent of the exvessel value of
catch. For motherships and shoreside processors, the impact also would
increase as the percentage of observer costs relative to total exvessel
value of processed catch increases. In 1995, about 26 motherships and
shoreside processors carried observers. About 35 percent of these
processors incurred observer costs that ranged from 1 to 7 percent of
the exvessel value of catch received and processed from catcher
vessels. This represents cost increases from the processor's portion of
Research Plan costs that were limited to 1 percent of the exvessel
value of catch. The Research Plan represents an alternative to this
proposed rule which could minimize the economic impact on some small
entities. But for reasons already explained elsewhere (this preamble;
61 FR 13782, March 28, 1996; and 61 FR 36702, July 12, 1996), this
proposed rule would repeal the Research Plan. Copies of the EA/RIR/IRFA
can be obtained from NMFS (see ADDRESSES).
This proposed rule contains a new collection-of-information
requirement subject to the Paperwork Reduction Act (PRA). This
collection of information has been submitted to OMB for approval. The
new information requirement consists of certification applications for
new observer contractors, reports submitted by observer contractors to
NMFS that would be used by NMFS to facilitate Observer Program Office
operations and to monitor the ongoing requirements of a certified
observer contractor, and appeals of suspension and/or decertification
from observers and observer contractors. The annual public reporting
burden for this collection of information is estimated to be: 60 hours
per certification application (a contractor would apply every 3 years);
3 minutes per certificate of insurance; 7 minutes per training/briefing
registration; 2 minutes per notification of observer physical
examination; 2 hours per physical examination; 7 minutes per projected
observer assignment; 7 minutes per weekly deployment/logistics report;
7 minutes per debriefing registration; 15 minutes per copies of five
contracts; 2 hours per report of observer harassment, observer safety
concerns, or observer performance problems; 80 hours per suspension/
decertification appeal by an observer contractor (projected to occur
only once in 5 years); and 4 hours per suspension/decertification
appeal by an observer, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
This proposed rule contains requirements for electronic transmission of
observer data by vessels and shoreside processors receiving pollock
harvested in the catcher vessel operational area. This information
collection already was approved by OMB (OMB control number 0648-0307).
Send comments regarding burden estimates or any other aspect of the
data requirements, including suggestions for reducing the burdens, to
NMFS and OMB (see ADDRESSES).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects in 50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: July 29, 1996.
Charles Karnella,
Acting, Program Management Officer, 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. and 1801 et seq.
2. In Sec. 679.1, paragraph (f) is revised to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(f) Groundfish Observer Program. Regulations in this part govern
elements of the Groundfish Observer Program for the BSAI groundfish and
GOA groundfish fisheries under the Council's authority (see subpart E
of this part).
* * * * *
3. In Sec. 679.2, the following definitions are removed:
``Bimonthly'', ``Exvessel price'', ``Fee percentage'', ``Research
Plan'', ``Research Plan fisheries'', `` Retained catch'', and
``Standard exvessel price''.
a. In Sec. 679.2, the following definitions are added:
``Briefing'', ``Debriefing'', ``Deployment'', ``Direct financial
interest'', ``North Pacific fishery'', ``Observer contractor'', and
``Observer Program Office'',.
b. In Sec. 679.2, the following definitions are revised: ``Buying
station'', paragraph (3) of ``Catcher/processor'', paragraph (1) of
``Catcher vessel'', ``Fishing day'', paragraph (3) of ``Fishing trip'',
paragraph (2) or ``Mothership'', ``Observed or observed data'',
``Observer'', ``Processor'', ``Round weight or round-weight
equivalent'', and ``Shoreside processor''.
Sec. 679.2 Definitions.
* * * * *
Briefing means a short (usually 2-4 day) training session that
observers must complete to fulfill certification requirements.
[[Page 40385]]
Buying station means a person or vessel that receives unprocessed
groundfish from a vessel for delivery at a different location to a
shoreside processor or mothership and that does not process those fish.
* * * * *
Catcher/processor * * *
(3) With respect to subpart E of this part, a processor vessel that
is used for, or equipped to be used for, catching fish and processing
that fish.
Catcher vessel * * *
(1) With respect to groundfish recordkeeping and reporting and
subpart E of this part, a vessel that is used for catching fish and
that does not process fish on board.
* * * * *
Debriefing means the post-deployment process that includes a one-
on-one interview with NMFS staff, a NMFS preliminary data review,
observer completion of all data corrections noted, observer preparation
of affidavits and reports, and completion of tasks related to
biological specimens or special projects.
Deployment means the period between an observer's arrival at the
point of embarkation and the date the observer disembarks for travel to
debriefing.
Direct financial interest means any source of income to, or capital
investment or other interest held by, an individual, partnership, or
corporation or an individual's spouse, immediate family member or
parent that could be influenced by performance or non-performance of
observer or observer contractor duties.
* * * * *
Fishing day means a 24-hour period, from 0001 A.l.t. through 2400
A.l.t., in which fishing gear is retrieved and groundfish are retained.
Days during which a vessel only delivers unsorted codends to a
processor are not fishing days.
* * * * *
Fishing trip * * *
(3) With respect to subpart E of this part, one of the following
time periods:
(i) For a vessel used to process groundfish or a catcher vessel
used to deliver groundfish to a mothership, a weekly reporting period
during which one or more fishing days occur.
(ii) For a catcher vessel used to deliver groundfish to other than
a mothership, the time period during which one or more fishing days
occur that starts on the day when fishing gear is first deployed and
ends on the day the vessel offloads groundfish, returns to an Alaskan
port, or leaves the EEZ off Alaska and adjacent waters of the State of
Alaska.
* * * * *
Mothership * * *
(2) With respect to subpart E of this part, a processor vessel that
receives and processes groundfish from other vessels and is not used
for, or equipped to be used for, catching groundfish.
* * * * *
North Pacific fishery means any commercial fishery in State or
Federal waters off Alaska.
Observed or observed data refers to data collected by observers
(see Sec. 679.21(f)(7) and subpart E of this part).
Observer means any individual that is awarded NMFS certification to
serve as an observer under this part, is employed by an observer
contractor for the purpose of providing observer services to vessels or
shoreside processors under this part, and is acting within the scope of
his/her employment.
Observer contractor means any person that is awarded NMFS
certification to provide observer services to vessels and shoreside
processors under subpart E and who contracts with observers to provide
these services.
Observer Program Office means the administrative office of the
Groundfish Observer Program located at Alaska Fisheries Science Center,
Building 4, 7600 Sand Point Way Northeast, Seattle, WA 98115,
telephone: 206-526-4197.
* * * * *
Processor means any shoreside processor, catcher/processor,
mothership, any person who receives groundfish from fishermen for
commercial purposes, any fisherman who transfers groundfish outside of
the United States, and any fisherman who sells fish directly to a
restaurant or to an individual for use as bait or personal consumption.
* * * * *
Round weight or round-weight equivalent, for purposes of this part,
means the weight of groundfish calculated by dividing the weight of the
primary product made from that groundfish by the PRR for that primary
product as listed in Table 3 of this part, or, if not listed, the
weight of groundfish calculated by dividing the weight of a primary
product by the standard PRR as determined using the best available
evidence on a case-by-case basis.
* * * * *
Shoreside processor means any person or vessel that receives
unprocessed groundfish, except catcher/processors, motherships, buying
stations, restaurants, or persons receiving groundfish for personal
consumption or bait.
* * * * *
4. In Sec. 679.4, paragraph (g) is removed and paragraphs
(f)(1)(i), (f)(1)(ii), and (f)(2)(ii) are revised to read as follows:
Sec. 679.4 Permits.
* * * * *
(f) Federal Processor permit--(1) General--(i) Applicability. In
addition to the permit and licensing requirements in paragraphs (b) and
(d) of this section, and except as provided in paragraph (f)(1)(ii) of
this section, a processor of groundfish must have a Federal processor
permit issued by the Regional Director.
(ii) Exception. Any fisherman who transfers groundfish outside the
United States, or any fisherman who sells groundfish directly to a
restaurant or to an individual for use as bait or for personal
consumption is not required to have a Federal processor permit.
(2) * * *
(ii) The fishery or fisheries for which the permit is requested.
* * * * *
5. In Sec. 679.5, paragraph (a)(2) is revised to read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(2) Applicability, Federal processor permit. Any processor that
retains groundfish is responsible for complying with the applicable
recordkeeping and reporting requirements of this section.
* * * * *
6. In Sec. 679.7, paragraph (b)(1) is removed, paragraphs (b)(2)
through (b)(4) are redesignated as paragraphs (b)(1) through (b)(3),
respectively, paragraph (f)(14) is removed, paragraph (f)(15) is
redesignated as paragraph (f)(14), paragraphs (g)(5) through (g)(7) are
removed, paragraphs (g)(3) and (g)(4) are redesignated as paragraphs
(g)(4) and (g)(5), respectively, a new paragraph (g)(3) is added,
paragraphs (g)(8) and (g)(9) are redesignated as paragraphs (g)(6) and
(g)(7), respectively, and paragraphs (a)(3), (g)(2), and newly
redesignated paragraph (g)(7) are revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(a) * * *
(3) Groundfish Observer Program. Fish for groundfish except in
compliance with the terms of the Groundfish Observer Program as
provided by subpart E of this part.
* * * * *
(g) * * *
[[Page 40386]]
(2) Interfere with or bias the sampling procedure employed by an
observer, including physical, mechanical, or other sorting or
discarding of catch before sampling.
(3) Tamper with, destroy, or discard an observer's collected
samples, equipment, records, photographic film, papers, or personal
effects without the express consent of the observer. * * *
(7) Require, pressure, coerce, or threaten an observer to perform
duties normally performed by crew members, including, but not limited
to, cooking, washing dishes, standing watch, vessel maintenance,
assisting with the setting or retrieval of gear, or any duties
associated with the processing of fish, from sorting the catch to the
storage of the finished product.
* * * * *
7. In Sec. 679.21, paragraph (c)(3) is revised to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(c) * * *
(3) Exemption. Motherships and shoreside processors that are not
required to obtain observer coverage during a month under Sec. 679.50
(c) and (d) are not required to retain salmon.
* * * * *
8. Subpart E is revised to read as follows:
Subpart E--Groundfish Observer Program
Sec.
679.50 Groundfish Observer Program
Subpart E--Groundfish Observer Program
Sec. 679.50 Groundfish Observer Program applicable through December
31, 1997.
(a) General. Operators of vessels possessing a Federal fisheries
permit under Sec. 679.4(b)(1) and processors that possess a Federal
processor permit under Sec. 679.4(f)(1), must comply with this section.
The owner of a fishing vessel subject to this part or a processor
subject to this part must ensure that the operator or manager complies
with this section and is jointly and severally liable for such
compliance.
(b) Purpose. The purpose of the Groundfish Observer Program is to
allow observers to collect Alaska fisheries data deemed by the Regional
Director to be necessary and appropriate for management, compliance
monitoring, and research of groundfish fisheries and for the
conservation of marine resources or their environment.
(c) Observer requirements for vessels. (1) Observer coverage is
required as follows:
(i) A mothership of any length that processes 1,000 mt or more in
round weight or round-weight equivalent of groundfish during a calendar
month is required to have an observer aboard the vessel each day it
receives or processes groundfish during that month.
(ii) A mothership of any length that processes from 500 mt to 1,000
mt in round weight or round-weight equivalent of groundfish during a
calendar month is required to have an observer aboard the vessel at
least 30 percent of the days it receives or processes groundfish during
that month.
(iii) Each mothership that receives pollock harvested by catcher
vessels in the catcher vessel operational area during the second
pollock season that starts on August 15 under Sec. 679.23(e)(2) is
required to have a second observer aboard, in addition to the observer
required under paragraphs (c)(1) (i) and (ii) of this section, for each
day of the second pollock season until the chum salmon savings area is
closed under Sec. 679.21(e)(7)(vi), or October 15, whichever occurs
first.
(iv) A catcher/processor or catcher vessel 125 ft (38.1 m) LOA or
longer must carry an observer during 100 percent of its fishing days
except for a vessel fishing for groundfish with pot gear as provided in
paragraph (c)(1)(vii) of this section.
(v) A catcher/processor or catcher vessel equal to or greater than
60 ft (18.3 m) LOA, but less than 125 ft (38.1 m) LOA, 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 in that calendar quarter and at all
times during at least one fishing trip in that calendar quarter for
each of the groundfish fishery categories defined under paragraph
(c)(2) of this section in which the vessel participates.
(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 at all times during at
least one fishing trip in the Eastern Regulatory Area of the Gulf of
Alaska during each calendar quarter in which the vessel participates in
a directed fishery for groundfish in the Eastern Regulatory Area.
(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 in that calendar quarter and at all times during at
least one fishing trip in a calendar quarter for each of the groundfish
fishery categories defined under paragraph (c)(2) of this section in
which the vessel participates.
(2) Groundfish fishery categories requiring separate coverage--(i)
Pollock fishery. Directed fishing for groundfish that results in a
retained catch of pollock, during any fishing trip, that is greater
than the retained catch of any other groundfish species or species
group that is specified as a separate groundfish fishery under this
paragraph (c)(2).
(ii) Pacific cod fishery. Directed fishing for groundfish that
results in a retained catch of Pacific cod, during any fishing trip,
that is greater than the retained catch of any other groundfish species
or species group that is specified as a separate groundfish fishery
under this paragraph (c)(2).
(iii) Sablefish fishery. Directed fishing for groundfish that
results in a retained catch of sablefish, during any fishing trip, that
is greater than the retained catch of any other groundfish species or
species group that is specified as a separate groundfish fishery under
this paragraph (c)(2).
(iv) Rockfish fishery. Directed fishing for groundfish that results
in a retained aggregate catch of rockfish of the genera Sebastes and
Sebastolobus, during any fishing trip, that is greater than the
retained catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph (c)(2).
(v) Flatfish fishery. Directed fishing for groundfish that results
in a retained aggregate catch of all flatfish species, except Pacific
halibut, during any fishing trip, that is greater than the retained
catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph (c)(2).
(vi) Other species fishery. Directed fishing for groundfish that
results in a retained catch of groundfish, during any fishing trip,
that does not qualify as a pollock, Pacific cod, sablefish, rockfish,
or flatfish fishery as defined under paragraphs (c)(2) (i) through (v)
of this section.
(3) Assignment of vessels to fisheries. At the end of any fishing
trip, a vessel's retained catch of groundfish species or species groups
for which a TAC has been specified under Sec. 679.20, in round weight
or round-weight equivalent, will determine to which fishery category
listed under paragraph (c)(2) of this section the vessel is assigned.
(i) Catcher/processors. A catcher/processor will be assigned to a
fishery category based on the retained groundfish catch composition
reported
[[Page 40387]]
on the vessel's weekly production report submitted to the Regional
Director under Sec. 679.5(i).
(ii) Catcher vessel delivery in Federal waters. A catcher vessel
that delivers to a mothership in Federal waters will be assigned to a
fishery category based on the retained groundfish catch composition
reported on the weekly production report submitted to the Regional
Director for that week by the mothership under Sec. 679.5(i).
(iii) Catcher vessel delivery in Alaska State waters. A catcher
vessel that delivers groundfish to a shoreside processor or to a
mothership processor vessel in Alaska State waters will be assigned to
a fishery category based on the retained groundfish catch composition
reported on one or more ADF&G fish tickets as required under Alaska
Statutes at A.S. 16.05.690.
(d) Observer requirements for shoreside processors. Observer
coverage is required as follows:
(1) A shoreside processor that processes 1,000 mt or more in round
weight or round-weight equivalent of groundfish during a calendar month
is required to have an observer present at the facility each day it
receives or processes groundfish during that month.
(2) A shoreside processor that processes 500 mt to 1,000 mt in
round weight or round-weight equivalent of groundfish during a calendar
month is required to have an observer present at the facility at least
30 percent of the days it receives or processes groundfish during that
month.
(3) Each shoreside processor that offloads pollock at more than one
location on the same dock and has distinct and separate equipment at
each location to process those pollock and that receives pollock
harvested by catcher vessels in the catcher vessel operational area
during the second pollock season that starts on August 15, under
Sec. 679.23(e), is required to have an observer, in addition to the
observer required under paragraphs (d) (1) and (2) of this section, at
each location where pollock is offloaded, for each day of the second
pollock season until the chum salmon savings area is closed under
Sec. 679.21(e)(7)(vi), or October 15, whichever occurs first.
(e) Inseason adjustments in observer coverage requirements. (1) The
Regional Director may adjust the observer coverage requirements set out
under paragraphs (c) and (d) of this section at any time to improve the
accuracy, reliability, and availability of observer data, so long as
the standards of the Magnuson Act and other applicable Federal
regulations are met, and the changes are based on one or more of the
following:
(i) Adjustment. A finding that fishing methods, times, or areas, or
catch or bycatch composition for a specific fishery or fleet component
have significantly changed, or are likely to change significantly.
(ii) A finding that such modifications are necessary to improve
data availability or quality in order to meet specific fishery
management objectives.
(2) Procedure. The procedure for an inseason adjustment of observer
coverage requirements will comply with Sec. 679.25(c). No change to
observer coverage requirements may be implemented under this paragraph
(e) until NMFS has published changes in observer coverage requirements
in the Federal Register, with the reasons for the changes and any
special instructions to vessels or shoreside processors required to
carry observers, at least 10 calendar days prior to their effective
date.
(f) Responsibilities--(1) Vessel responsibilities. An operator of a
vessel required to carry one or more observers must provide the
following:
(i) Accommodations and food. Provide, at no cost to observers or
the United States, accommodations and food on the vessel for the
observer or observers that are equivalent to those provided for
officers, engineers, foremen, deck-bosses or other management level
personnel of the vessel.
(ii) Safe conditions. (A) Maintain safe conditions on the vessel
for the protection of observers by adhering to all U.S. Coast Guard and
other applicable rules, regulations, or statutes pertaining to safe
operation of the vessel.
(B) Have onboard:
(1) A valid Commercial Fishing Vessel Safety Decal issued within
the past 2 years that certifies compliance with regulations found in
Titles 33 CFR Chapter I and 46 CFR Chapter I;
(2) A certificate of compliance issued pursuant to 46 CFR 28.710;
or
(3) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
(iii) Transmission of data. Facilitate transmission of observer
data by:
(A) Allowing observers to use the vessel's communication equipment
and personnel, on request, for the entry, transmission, and receipt of
work-related messages, at no cost to the observers or the United
States.
(B) Ensuring that each mothership that receives pollock harvested
in the catcher vessel operational area during the pollock season that
starts on August 15, under Sec. 679.23(e), is equipped with INMARSAT
Standard A satellite communication capabilities, cc:Mail remote, and
the data entry software provided by the Regional Director for use by
the observer. The operator of each mothership shall also make available
for the observers' use the following equipment compatible therewith and
having the ability to operate the NMFS-supplied data entry software
program: A personal computer with a 486 or better processing chip, a
DOS 3.0, or better operating system with 10 megabytes free hard disk
storage, and 8 megabytes RAM.
(C) Ensuring that the communication equipment that is on
motherships as specified at paragraph (f)(1)(iii)(B) of this section,
and that is used by observers to transmit data, is fully functional and
operational.
(iv) Vessel position. Allow observers access to, and the use of,
the vessel's navigation equipment and personnel, on request, to
determine the vessel's position.
(v) Access. Allow observers free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observers at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer, unless the observers specifically request not to be
notified.
(vii) Records. Allow observers to inspect and copy the vessel's
DFL, DCPL, product transfer forms, any other logbook or document
required by regulations, printouts or tallies of scale weights, scale
calibration records, bin sensor readouts, and production records.
(viii) Assistance. Provide all other reasonable assistance to
enable observers to carry out their duties, including, but not limited
to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observers with a safe work area adjacent to the
sample collection site.
(C) Collecting bycatch when requested by the observers.
(D) Collecting and carrying baskets of fish when requested by
observers.
(E) Allowing observers to determine the sex of fish when this
procedure will not decrease the value of a significant portion of the
catch.
(ix) Transfer at sea. (A) Ensure that transfers of observers at sea
via small boat or raft are carried out during
[[Page 40388]]
daylight hours, under safe conditions, and with the agreement of
observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can collect personal belongings,
equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the
small boat or raft in which any transfer is made.
(2) Shoreside processor responsibilities. A manager of a shoreside
processor must do the following:
(i) Safe conditions. Maintain safe conditions at the shoreside
processing facility for the protection of observers by adhering to all
applicable rules, regulations, or statutes pertaining to safe operation
and maintenance of the processing facility.
(ii) Operations information. Notify the observers, as requested, of
the planned facility operations and expected receipt of groundfish
prior to receipt of those fish.
(iii) Transmission of data. Facilitate transmission of observer
data by:
(A) Allowing observers to use the shoreside processor's
communication equipment and personnel, on request, for the entry,
transmission, and receipt of work-related messages, at no cost to the
observers or the United States.
(B) Ensuring that each shoreside processor that is required to have
observer coverage under paragraph (d)(3) of this section and that
receives pollock harvested in the catcher vessel operational area
during the pollock season that starts on August 15, under
Sec. 679.23(e), makes available to the observer the following equipment
or equipment compatible therewith: A personal computer with a minimum
of a 486 processing chip with at least a 9600-baud modem and a
telephone line. The personal computer must be equipped with a mouse,
Windows version 3.1, or a program having the ability to operate the
NMFS-supplied data entry software program, 10 megabytes free hard disk
storage, 8 megabytes RAM, and data entry software provided by the
Regional Director for use by the observers.
(C) Ensuring that the communication equipment that is in the
shoreside processor as specified at paragraph (f)(2)(iii)(B) of this
section, and that is used by observers to transmit data is fully
functional and operational.
(iv) Access. Allow observers free and unobstructed access to the
shoreside processor's holding bins, processing areas, freezer spaces,
weight scales, warehouses, and any other space that may be used to
hold, process, weigh, or store fish or fish products at any time.
(v) Document access. Allow observers to inspect and copy the
shoreside processor's DCPL, product transfer forms, any other logbook
or document required by regulations; printouts or tallies of scale
weights; scale calibration records; bin sensor readouts; and production
records.
(vi) Assistance. Provide all other reasonable assistance to enable
the observer to carry out his or her duties, including, but not limited
to:
(A) Assisting the observer in moving and weighing totes of fish.
(B) Cooperating with product recovery tests.
(C) Providing a secure place to store baskets of sampling gear.
(g) Procurement of observer services. Owners of vessels or
shoreside processors required to carry observers under paragraphs (c)
and (d) of this section must arrange for observer services from an
observer contractor or contractors. A list of observer contractors is
available upon request from the Observer Program Office.
(h) Certification and decertification of observers.--(1)
Certification of observers--(i) Requirements. NMFS will certify
individuals who:
(A) Meet education and/or experience standards available from the
Observer Program Office.
(B) Have successfully completed a NMFS-approved observer training
and/or briefing as prescribed by NMFS and available from the Observer
Program Office.
(C) Have not been suspended or decertified under paragraph (j) of
this section.
(ii) Term. An observer's certification expires upon completion of a
deployment. Observers can be decertified or suspended by NMFS under
paragraph (j) of this section.
(2) Standards of observer conduct--(i) Conflict of interest.
(A) Observers:
(1) May not have a direct financial interest in a North Pacific
fishery, other than the provision of observer services, including, but
not limited to, vessels or shoreside facilities involved in the
catching or processing of the products of the fishery, concerns selling
supplies or services to said vessels or shoreside facilities, or
concerns purchasing raw or processed products from said vessels or
shoreside facilities.
(2) May not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts activities that are regulated by NMFS,
or who has interests that may be substantially affected by the
performance or nonperformance of the observers' official duties.
(3) May not serve as observers on any vessel or at any shoreside
facility owned or operated by a person who previously employed the
observers.
(4) May not serve as observers during the 12 consecutive months
immediately following the last day of the observer's employment as paid
crew members or employees in a North Pacific fishery.
(B) Provisions for remuneration of observers under this section do
not constitute a conflict of interest under this paragraph (h)(2).
(ii) Standards of behavior. Observers must avoid any behavior that
could adversely affect the confidence of the public in the integrity of
the Observer Program or of the government, including but not limited to
the following:
(A) Observers must diligently perform their assigned duties.
(B) Observers must accurately record their sampling data, write
complete reports, and report honestly any suspected violations of
regulations relevant to conservation of marine resources or their
environment that are observed.
(C) Observers must not disclose collected data and observations
made on board the vessel or in the processing facility to any person
except the owner or operator of the observed vessel or processing
facility, an authorized officer, or NMFS.
(D) Observers must refrain from engaging in any illegal actions or
any other activities that would reflect negatively on their image as
professional scientists, on other observers, or on the Observer Program
as a whole. This includes, but is not limited to:
(1) Engaging in excessive drinking of alcoholic beverages;
(2) Engaging in the use or distribution of illegal drugs; or
(3) Becoming physically or emotionally involved with vessel or
processing facility personnel.
(i) Certification and decertification of observer contractors--(1)
Certification of observer contractors--(i) Application. An applicant
seeking to become an observer contractor must submit an application to
the Regional Director describing the applicant's ability to carry out
the responsibilities and duties of an observer contractor as set out in
paragraph (i)(2) of this section and the arrangements and methods to be
used. Observer contractors certified prior to
[[Page 40389]]
January 1, 1997, are exempt from submitting an application.
(ii) Selection. The Regional Director may select one or more
observer contractors based on the information submitted by applicants
under paragraph (i)(1)(i) of this section and on other selection
criteria that are available from the Observer Program Office.
(iii) Term. Observer contractors will be certified through December
31, 1997. Observer contractors can be decertified or suspended by NMFS
under paragraph (j) of this section.
(2) Responsibilities and duties of observer contractors include but
are not limited to the following:
(i) Recruiting, evaluating, and hiring of qualified candidates to
serve as observers, including minorities and women.
(ii) Ensuring that only observers provide observer services.
(iii) Providing observer coverage as requested by vessels and
processors to fulfill requirements under paragraphs (c) and (d) of this
section.
(iv) Providing observers' salary, benefits and personnel services
in a timely manner.
(v) Providing all logistics to place and maintain the observers
aboard the fishing vessels or at the site of the processing facility.
This includes all travel arrangements, lodging and per diem, and any
other services required to place observers aboard vessels or at
processing facilities. Placement of observers must occur according to
the following:
(A) Observers must not be deployed on the same vessel for more than
90 days in a 12-month period.
(B) A deployment to a vessel or a shoreside processor cannot exceed
90 days without approval from the Observer Program Office.
(C) A deployment cannot include assignments to more than four
vessels and/or shoreside processors.
(vi) Supplying alternate observers or prospective observers if one
or more observers or prospective observers are rejected by NMFS, fail
to successfully complete observer training or briefing, are injured and
must be replaced, or resign prior to completion of duties.
(vii) Maintaining communications with observers at sea and
shoreside facilities. Each observer contractor must make arrangements
to have an employee responsible for observer activities on call 24
hours a day whenever they have observers at sea, stationed at shoreside
facilities, in transit, or in port awaiting boarding, to handle
emergencies involving observers, or problems concerning observer
logistics.
(viii) In cooperation with vessel or processing facility owners,
ensuring that all observers' in-season catch messages and other
required transmissions between observers and NMFS are delivered to NMFS
within a time specified by the Regional Director.
(ix) Ensuring that observers complete mid-deployment data reviews
when required.
(x) Ensuring that observers complete debriefing as soon as possible
after the completion of their deployment and at locations specified by
the Regional Director.
(xi) Ensuring all data, reports, and biological samples from
observer deployments are complete and submitted to NMFS at the time of
the debriefing interview.
(xii) Ensuring that all sampling and safety gear are returned to
the Observer Program Office and replacing any gear and equipment lost
or damaged by observers according to NMFS requirements.
(xiii) Monitoring observers' performance to ensure satisfactory
execution of duties by observers and observer conformance with NMFS'
standards of observer conduct under paragraph (h)(2) of this section.
(xiv) Providing the following information to the Observer Program
Office by electronic transmission (e-mail) or by fax at fax number 206-
526-4066.
(A) Observer training and briefing registration. Observer training
registration consisting of a list of individuals to be hired upon
approval by NMFS and a copy of each person's academic transcripts and
resume. The list must include the person's name and sex. The person's
social security number is requested. Observer briefing registration
consisting of a list of the observer's name and requested briefing
class date. This information must be submitted to the Observer Program
Office at least 5 working days prior to the beginning of a scheduled
observer certification training or briefing session.
(B) Projected observer assignments that include the observer's
name, vessel or shoreside processor assignment, vessel length and type,
port of embarkation, target species, and area of fishing. This
information must be submitted to the Observer Program Office prior to
the completion of the training or briefing session.
(C) Observer deployment/logistics reports that include the
observer's name, cruise number, current vessel or shoreside processor
assignment and code, embarkation date, and estimated and actual
disembarkation dates. This information must be submitted weekly as
directed by the Observer Program Office.
(D) Observer debriefing registration that includes the observer's
name, cruise number, vessel or shoreside processor name(s), and
requested debriefing date.
(E) Copies of ``certificates of insurance'' that name the NMFS
Observer Program Task Leader as a ``certificate holder''. The
certificates of insurance shall verify the following coverage
provisions and state that the insurance company will notify the
certificate holder if insurance coverage is changed or cancelled:
(1) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(2) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(3) States Worker's Compensation as required.
(4) Contractual General Liability.
(F) Notification that, based upon a physical examination during the
12 months prior to an observer's deployment, examining physicians have
certified that observers do not have any health problems or conditions
that would jeopardize their safety or the safety of others while
deployed, or prevent them from performing their duties satisfactorily,
and that prior to examination, the certifying physician was made aware
of the dangerous, remote and rigorous nature of the work. This
information must be submitted prior to the completion of the training
or briefing session.
(G) A copy of each type of signed and valid contract an observer
contractor has with those entities requiring observer services under
paragraphs (c) and (d) of this section and with observers. Copies of
contracts with specific entities requiring observer services or with
specific observers must be submitted to the Observer Program Office
upon request.
(H) Reports of observer harassment, concerns about vessel or
processor safety, or observer performance problems. These reports must
be submitted within 24 hours of when the observer contractor becomes
aware of the problem.
(3) Conflict of interest. (i) Observer contractors:
(A) Must not hold any direct financial interest in a North Pacific
fishery, other than the provision of observer services, including, but
not limited to, vessels or shoreside facilities involved in the
catching or processing of the products of the fishery, concerns selling
supplies or services to said vessels or shoreside
[[Page 40390]]
facilities, or concerns purchasing raw or processed products from said
vessels or shoreside facilities.
(B) Must assign observers without regard to any preference by
representatives of vessels and shoreside facilities based on observer
race, gender, age, religion, or sexual orientation.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts activities that are regulated by NMFS,
or who has interests that may be substantially affected by the
performance or nonperformance of the official duties of observer
contractors.
(j) Decertification Process--(1) Applicability. This paragraph (j)
sets forth the procedures for suspension and decertification of
observers and observer contractors under this section.
(2) Policy. (i) NMFS must certify responsible and qualified
observers and observer contractors only. Suspension and decertification
are discretionary actions that, taken in accordance with this section,
are appropriate means to effectuate this policy.
(ii) The serious nature of suspension and decertification requires
that these actions be taken only in the public interest for the
promotion of fishery conservation and management and not for purposes
of punishment. NMFS may impose suspension or decertification only for
the causes and in accordance with the procedures set forth in this
section.
(3) Definitions. (i) Adequate evidence means information sufficient
to support the reasonable belief that a particular act or omission has
occurred.
(ii) Affiliates means business concerns, organizations, or
individuals are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other, or a third
party controls or has the power to control both. Indicators of control
include, but are not limited to, interlocking management or ownership,
identity of interests among family members, shared facilities and
equipment, common use of employees, or a business entity organized
following the decertification, suspension, or proposed decertification
of an observer contractor that has the same or similar management,
ownership, or principal employees as the observer contractor that was
decertified, suspended, or proposed for decertification.
(iii) Civil judgment means a judgment or finding of a civil offense
by any court of competent jurisdiction.
(iv) Conviction means a judgment or conviction of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or a plea, and includes a conviction entered upon a plea of
nolo contendere.
(v) Decertification, as used in this paragraph (j) means action
taken by a decertifying official under paragraph (j)(8) of this section
to revoke indefinitely certification of observers or observer
contractors under this section; an observer or observer contractor
whose certification is so revoked is decertified.
(vi) Decertifying official means a designee authorized by the
Regional Director to impose decertification.
(vii) Indictment means indictment for a criminal offense. An
information or other filing by competent authority charging a criminal
offense must be given the same effect as an indictment.
(viii) Legal proceedings means any civil judicial proceeding to
which the Government is a party or any criminal proceeding. The term
includes appeals from such proceedings.
(ix) NMFS investigator means a designee authorized by the Regional
Director to conduct investigations under this section.
(x) Preponderance of the evidence means proof by information that,
compared with that opposing it, leads to the conclusion that the fact
at issue is more probably true than not.
(xi) Suspending official means a designee authorized by the
Regional Director to impose suspension.
(xii) Suspension, as used in this section, means action taken by a
suspending official under this paragraph (j) to suspend certification
of observers or observer contractors temporarily until a final decision
is made with respect to decertification.
(4) Public availability of suspension or decertification records.
Public availability of suspension or decertification records will
depend upon the provisions of the Freedom of Information Act and other
applicable law.
(5) Effect and timing of suspension or decertification. (i)
Observers or observer contractors decertified or suspended must not
provide services prescribed by this section to vessels and shoreside
processors.
(ii) Suspension and decertification actions may be combined and
imposed simultaneously.
(6) Suspension--(i) General. (A) The suspending official may, in
the public interest, suspend observers or observer contractors for any
of the causes in paragraph (j)(6)(ii) of this section, using the
procedures in paragraph (j)(6)(iii) of this section.
(B) Suspension is a serious action to be imposed on the basis of
adequate evidence, pending the completion of investigation or legal
proceedings, when NMFS determines that immediate action is necessary.
In assessing the adequacy of the evidence, the suspending official
should consider how much information is available, how credible it is
given the circumstances, whether or not important allegations are
corroborated, and what inferences can reasonably be drawn as a result.
(C) Suspension includes all divisions or other organizational
elements of observer contractors, unless the suspension decision is
limited by its terms to specific divisions or organizational elements.
The suspending official may include any affiliates of observer
contractors if they are specifically named and given written notice of
the suspension and an opportunity to respond.
(ii) Causes for suspension. (A) The suspending official may suspend
observers or observer contractors upon a determination, based upon
adequate evidence, that observers or observer contractors committed any
acts or omissions constituting a cause for decertification under
paragraph (j)(7)(ii) of this section.
(B) Indictment for any of the causes for decertification in
paragraphs (j)(7)(ii)(A)(1) or (j)(7)(ii)(B)(1) of this section
constitutes adequate evidence for suspension.
(iii) Procedures.--(A) Review. The suspending official must review
all available evidence and must promptly determine whether or not to
proceed with suspension. The suspending official may refer the matter
to the NMFS investigator for further investigation, or to the
decertifying officer.
(B) Notice of suspension. When observers or observer contractors
and any specifically named affiliates are suspended, they must be
immediately advised personally or by certified mail, return receipt
requested, at the last known residence or place of business:
(1) That they have been suspended and that the suspension is based
on an indictment or other adequate evidence that observers or observer
contractors have committed acts or omissions constituting grounds for
suspension under paragraph (j)(6)(ii) of this section. Such acts or
omissions may be described in terms sufficient to place observers or
observer contractors on notice without disclosing NMFS' evidence.
(2) That the suspension is for a temporary period pending the
completion of an investigation and such decertification proceedings as
may ensue.
[[Page 40391]]
(3) Of the cause(s) relied upon under paragraph (j)(6)(ii) of this
section for imposing suspension.
(4) Of the effect of the suspension.
(5) That, within 30 days after receipt of the notice, the observers
or observer contractors may submit, in writing, documentary evidence
and argument in opposition to the suspension, including any additional
specific documentary evidence that raises a genuine dispute over the
material facts.
(6) That additional proceedings to determine disputed material
facts will be conducted unless:
(i) the action is based on an indictment; or
(ii) a determination is made, on the basis of NOAA General Counsel
advice, that the substantial interests of the government in pending or
contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(C) Dispute. In actions not based on an indictment, if NMFS
determines that the observers' or observer contractors' submission in
opposition raises a genuine dispute over facts material to the
suspension and if no determination has been made, on the basis of NOAA
General Counsel advice, that substantial interests of the government in
pending or contemplated legal proceedings based on the same facts as
the suspension would be prejudiced, the suspending official:
(1) Must afford observers or observer contractors an opportunity to
submit additional documentary evidence upon a showing that such
documentary evidence was unavailable during the 30-day period following
receipt of the notice of suspension.
(2) May, at his or her sole discretion, afford observers or
observer contractors an opportunity to appear in person, present
witnesses, and confront any person NMFS presents. The suspending
official must make an audio tape of the proceedings and make a copy
available at cost to observers or observer contractors upon request,
unless observers or observer contractors and NMFS, by mutual agreement,
waive the requirement for an audio tape.
(D) Suspending official's decision. (1) The suspending official's
decision must be based on all the information in the administrative
record, including any submission made by observers or observer
contractors on action based on an indictment:
(i) in which observers or observer contractors' submission does not
raise a genuine dispute over material facts; or
(ii) in which additional proceedings to determine disputed material
facts have been denied on the basis of NOAA General Counsel advice.
(2) In actions in which additional proceedings are necessary as to
disputed material facts, written findings of fact must be prepared. The
suspending official must base the decision on the facts as found,
together with any information and argument submitted by observers or
observer contractors and any other information in the administrative
record.
(3) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part.
(4) The suspending official's decision must be made after the
conclusion of the proceedings with respect to disputed facts.
(5) Prompt written notice of the suspending official's decision to
affirm, modify or terminate the notice of suspension issued under this
paragraph (j)(6) must be served 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.
(E) Period of suspension. (1) Suspension must be for a temporary
period pending the completion of investigation and any ensuing legal
proceedings or decertification proceedings, including any
administrative review under paragraph (j)(8) of this section, unless
sooner terminated by the suspending official or as provided under this
paragraph (j). If suspension is in effect, the decertifying official
will expedite any related decertification proceedings.
(2) If legal proceedings or decertification proceedings are not
initiated within 12 months after the date of the suspension notice, the
suspension must be terminated.
(F) Scope of suspension for observer contractors. The scope of
suspension must be the same as that for decertification under paragraph
(j)(7)(v) of this section, except that the procedures set out under
paragraph (j)(6) of this section must be used in imposing suspension.
(7) Decertification--(i) General. (A) The decertifying official
may, in the public interest, decertify observers or observer
contractors for any of the causes in paragraph (j)(7)(ii) of this
section using the procedures in paragraph (j)(7)(iii) of this section.
The existence of a cause for decertification does not necessarily
require that observers or observer contractors be decertified; the
seriousness of the acts or omissions and any mitigating factors should
be considered in making any decertification decision. The existence or
nonexistence of any mitigating factors is not necessarily determinative
of an observers' or observer contractors' present fitness. Accordingly,
if a cause for decertification exists, observers or observer
contractors have the burden of demonstrating, to the satisfaction of
the decertifying official, present fitness and that decertification is
not necessary.
(B) Decertification of observer contractors includes all divisions
or other organizational elements of the observer contractor, unless the
decertification decision is limited by its terms to specific divisions
or organizational elements. The decertifying official may, at his or
her sole discretion, include any affiliates of observer contractors if
they are specifically named and given written notice of the proposed
decertification and an opportunity to respond under paragraph
(j)(7)(iii)(C) of this section.
(ii) Causes for decertification--(A) Observers. (1) The
decertifying official may decertify observers for a conviction of or
civil judgment for the following:
(i) Commission of fraud or a criminal offense in connection with
obtaining or attempting to obtain certification, or in performing the
duties of observers as prescribed by NMFS;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property; or
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the present
fitness of observers.
(2) The decertifying official may decertify observers, based upon a
preponderance of the evidence, upon a determination that observers
have:
(i) Failed to satisfactorily perform the duties of observers as
prescribed by NMFS; or
(ii) Failed to abide by the standards of conduct for observers as
prescribed under paragraph (h)(2) of this section.
(B) Observer contractors. (1) The decertifying official may
decertify observer contractors for a conviction of or civil judgment
for the following:
(i) Commission of fraud or a criminal offense in connection with
obtaining or attempting to obtain certification, or in performing the
responsibilities and duties of observer contractors as prescribed under
paragraph (i)(2) of this section;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property; or
[[Page 40392]]
(iii) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present fitness of observer contractors.
(2) The decertifying official may decertify observer contractors,
based upon a preponderance of the evidence, upon a determination that
observer contractors have:
(i) Failed to satisfactorily perform the responsibilities and
duties of observer contractors as prescribed under paragraph (i)(2) of
this section; or
(ii) A conflict of interest as set out under paragraph (i)(3) of
this section.
(iii) Procedures--(A) Investigation and referral. NMFS personnel
must promptly report to the NMFS investigator matters appropriate for
further investigation. The NMFS investigator must investigate matters
so referred and submit the investigative material to the decertifying
official or, if appropriate, to the suspending official.
(B) Review. The decertifying official must review all available
evidence and must promptly determine whether or not to proceed with
decertification. The decertifying official may refer the matter to the
NMFS investigator for further investigation or, if appropriate, to the
suspending official.
(C) Notice of proposed decertification. If the decertifying
official determines to proceed with decertification, he or she must
serve a notice of proposed decertification upon observers or observer
contractors and any specifically named affiliates, personally or by
certified mail, return receipt requested, at the last known residence
or place of business, advising:
(1) That decertification is being considered.
(2) Of the reasons for the proposed decertification in terms
sufficient to put observers or observer contractors on notice of the
conduct or transaction(s) upon which it is based.
(3) Of the cause(s) relied upon under paragraph (j)(7)(ii) of this
section for proposing decertification.
(4) That, within 30 days after receipt of the notice, observers or
observer contractors may submit, in writing, documentary evidence and
argument in opposition to the proposed decertification, including any
additional specific documentary evidence that raises a genuine dispute
over the material facts.
(5) Of NMFS' procedures governing decertification decision making.
(6) Of the effect of the issuance of the notice of proposed
decertification.
(7) Of the potential effect of an actual decertification.
(D) Dispute. In actions not based upon a conviction or civil
judgment, if it is found that observers' or observer contractors'
submission raises a genuine dispute over facts material to the proposed
decertification, the decertifying official:
(1) Must afford observers or observer contractors an opportunity to
submit additional documentary evidence upon a showing that such
documentary evidence was unavailable during the 30-day period following
receipt of the notice of proposed decertification.
(2) May, at his or her sole discretion, afford observers or
observer contractors an opportunity to appear in person, present
witnesses, and confront any person NMFS presents. The decertifying
official must make an audio tape of the proceedings and make a copy
available at cost to observers or observer contractors upon request,
unless observers or observer contractors and NMFS, by mutual agreement,
waive the requirement for an audio tape.
(E) Decertifying official's decision. (1) In actions based upon a
conviction or judgment, or in which there is no genuine dispute over
material facts, the decertifying official must make a decision on the
basis of all the information in the administrative record, including
any submission made by observers or observer contractors. The decision
must be made after receipt of any timely information and argument
submitted by observers or observer contractors.
(2) In actions in which additional proceedings are necessary as to
disputed material facts, written findings of fact must be prepared. The
decertifying official must base the decision on the facts as found,
together with any information and argument submitted by observers or
observer contractors and any other information in the administrative
record.
(3) The decertifying official may refer matters involving disputed
material facts to another official for findings of fact. The
decertifying official may reject any such findings, in whole or in
part.
(4) The decertifying official's decision must be made after the
conclusion of the proceedings with respect to disputed facts.
(5) In any action in which the proposed decertification is not
based upon a conviction or civil judgment, the cause for
decertification may be established by a preponderance of the evidence.
(F) Notice of decertifying official's decision. (1) If the
decertifying official decides to impose decertification, observers or
observer contractors and any affiliates involved must be given prompt
notice personally or by certified mail, return receipt requested, at
the last known residence or place of business. Such notice must:
(i) Refer to the notice of proposed decertification;
(ii) Specify the reasons for decertification; and
(iii) Advise that the decertification is effective immediately,
unless the decertifying official determines that there is a compelling
reason for maintaining certification for a specified period under
conditions and restrictions necessary and appropriate to protect the
public interest or promote fishery conservation and management and
states the reasons in the notice.
(2) If decertification is not imposed, the decertifying official
must promptly notify observers or observer contractors and any
affiliates involved, by certified mail, return receipt requested, at
the last known residence or place of business.
(iv) Period of decertification. (A) Decertification must be in
force indefinitely or until rescinded.
(B) The decertifying official may rescind decertification, upon
observers or observer contractors' request, supported by documentation,
for reasons such as:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
decertification was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the decertification was
imposed; or
(5) Other reasons the decertifying official deems appropriate.
(v) Scope of decertification. (A) The fraudulent, criminal, or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with observer
contractors may be imputed to the observer contractor when the conduct
occurred in connection with the individual's performance of duties for
or on behalf of observer contractors, or with observer contractors'
knowledge, approval, or acquiescence. Observer contractors' acceptance
of the benefits derived from the conduct must be evidence of such
knowledge, approval, or acquiescence.
(B) The fraudulent, criminal, or other seriously improper conduct
of observer contractors may be imputed to any officer, director,
shareholder, partner, employee, or other individual associated with
observer contractors who participated in, knew of, or had reason to
know of the contractors' conduct.
[[Page 40393]]
(8) Administrative review of suspension or decertification. (i)
Observers or observer contractors may petition for review of a
suspension decision issued under paragraph (j)(6)(iii) of this section
or a decertification decision issued under paragraph (j)(7)(iii) of
this section within 30 days after the date the decision was served. The
petition must be addressed to the appeals officer identified in the
notice of suspension or decertification. Any petitioned suspension will
remain in effect pending the appeals officer's written decision to
affirm, modify or terminate the suspension.
(ii) Administrative review is discretionary. Petitions for
discretionary review may be filed only upon one or more of the
following grounds:
(A) A finding of material fact is clearly erroneous based upon the
administrative record;
(B) A substantial and important question of policy or discretion is
involved; or
(C) A prejudicial error has occurred.
(iii) If the appeals officer declines review based on the written
petition, observers or observer contractors must be immediately advised
of the decision to decline review personally or by certified mail,
return receipt requested, at the last known residence or place of
business.
(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 paragraph (j)(6)
or (i)(7) 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.
(v) An appeals officer's decision imposing suspension or
decertification or an unpetitioned suspending or decertifying
official's decision is the final administrative decision of the U.S.
Department of Commerce.
(k) Release of observer data to the public--(1) Summary of weekly
data. The following information collected by observers for each catcher
processor and catcher vessel during any weekly reporting period may be
made available to the public:
(i) Vessel name and Federal permit number;
(ii) Number of chinook salmon and ``other salmon'' observed;
(iii) The ratio of total round weight of halibut or Pacific herring
to the total round weight of groundfish in sampled catch;
(iv) The ratio of number of king crab or C. bairdi Tanner crab to
the total round weight of groundfish in sampled hauls;
(v) The number of observed trawl hauls or fixed gear sets;
(vi) The number of trawl hauls that were basket sampled; and
(vii) The total weight of basket samples taken from sampled trawl
hauls.
(2) Haul-specific data. (i) The information listed in paragraphs
(k)(2)(i) (A) through (M) of this section and collected by observers
from observed hauls onboard vessels using trawl gear to participate in
a directed fishery for groundfish other than rockfish, Greenland
turbot, or Atka mackerel may be made available to the public:
(A) Date.
(B) Time of day gear is deployed.
(C) Latitude and longitude at beginning of haul.
(D) Bottom depth.
(E) Fishing depth of trawl.
(F) The ratio of the number of chinook salmon to the total round
weight of groundfish.
(G) The ratio of the number of other salmon to the total round
weight of groundfish.
(H) The ratio of total round weight of halibut to the total round
weight of groundfish.
(I) The ratio of total round weight of herring to the total round
weight of groundfish.
(J) The ratio of the number of king crab to the total round weight
of groundfish.
(K) The ratio of the number of C. bairdi Tanner crab to the total
round weight of groundfish.
(L) Sea surface temperature (where available).
(M) Sea temperature at fishing depth of trawl (where available).
(ii) The identity of the vessels from which the data in paragraph
(k)(2)(i) of this section are collected will not be released.
(3) Competitive harm. In exceptional circumstances, the owners and
operators of vessels may provide to the Regional Director written
justification at the time observer data are submitted, or within a
reasonable time thereafter, that disclosure of the information listed
in paragraphs (k) (1) and (2) of this section could reasonably be
expected to cause substantial competitive harm. The determination
whether to disclose the information will be made pursuant to 15 CFR
4.7.
Nomenclature Amendments
PART 679--[AMENDED]
9. In part 679, remove ``NMFS-certified'' wherever it occurs.
[FR Doc. 96-19644 Filed 7-30-96; 9:38 am]
BILLING CODE 3510-22-P