[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Proposed Rules]
[Pages 49198-49201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25011]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 970829216-7216-01; I.D. 073097B]
RIN 0648-AK15
Fisheries of the Exclusive Economic Zone Off Alaska; Extension of
the Interim Groundfish Observer Program through 1998
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues a proposed rule to implement a regulatory
amendment to extend with some minor revisions the current groundfish
observer coverage requirements and implementing regulations for the
North Pacific Groundfish Observer Program (Observer Program) that
expire December 31, 1997. This action is necessary to assure
uninterrupted observer coverage requirements through 1998. This
proposed rule also provides notice of proposed changes to observer
qualifications and observer training/briefing requirements, which are
non-codified elements of the Observer Program.
This action is intended to accomplish the objectives of the Fishery
Management Plan for Groundfish of the Gulf of Alaska and the Fishery
Management Plan for the Groundfish Fishery of the Bering Sea and
Aleutian Islands Area (FMPs).
DATES: Comments on the proposed rule must be received by October 20,
1997.
ADDRESSES: Comments should be sent to Chief, Fisheries Management
Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn:
Lori J. Gravel, or delivered to the Federal Building, 709 West 9th
Street, Juneau, AK. Copies of the Environmental Assessment/Regulatory
Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA)
prepared for the 1997 Interim Groundfish Observer Program may be
obtained from the Fisheries Management Division, Alaska Region, NMFS,
P.O. Box 21668, Juneau, AK 99802; telephone: 907-586-7228. Copies of
the Regulatory Impact Review/Initial Regulatory Flexibility
Analysis(RIR/IRFA) prepared for the proposed regulatory amendment also
may be obtained from this address.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the
Bering Sea and Aleutian Islands Area in the Exclusive Economic Zone are
managed by NMFS under the FMPs. The FMPs were prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) and are
implemented by regulations for the U.S. fisheries at 50 CFR part 679.
General regulations that also pertain to U.S. fisheries appear at
subpart H of 50 CFR part 600.
In 1996, the Council adopted and NMFS implemented the Interim
Groundfish Observer Program. The Interim Groundfish Observer Program
superseded the North Pacific Fisheries Research Plan and extended the
1996 mandatory groundfish observer requirements through 1997, unless
superseded by a long-term program that addresses concerns about
observer data integrity, equitable distribution of observer coverage
costs, and observer compensation and working conditions. NMFS continues
to pursue a long-term solution and is developing an alternative that
was supported by the Council at its June 1997 meeting. The Council is
scheduled to take final action on a long-term alternative at its
December 1997 meeting. Given that this alternative cannot be in place
by January 1, 1998, the current interim program must be extended to
assure uninterrupted observer coverage requirements.
At its June 1997 meeting, the Council unanimously requested NMFS to
extend through 1998 the current interim program, with minor revisions
recommended by NMFS. In addition, the Council recommended an adjustment
to the existing observer conflict-of-interest standard that prohibits a
person from serving as an observer if that person was employed in a
North Pacific fishery during the previous 12-month period. The Council
recommended a less restrictive standard that would prohibit an observer
from working on any vessel or at any shoreside processor owned or
operated by a person who previously employed the observer during the
previous 12-month period. Public testimony at the Council meeting
indicated that the current conflict-of-interest standard may be too
restrictive given that the interim observer program does not address
the issue of an adequate observer compensation package. Until the
observers are more adequately compensated, they may need to engage in
non-observer employment in North Pacific fisheries.
Proposed Regulatory Changes For The 1998 Interim Groundfish Observer
Program
A description of the regulatory provisions of the Interim
Groundfish Observer Program was provided in the preambles to the
proposed and final rules implementing this program (61 FR 40380, August
2, 1996; 61 FR 56425, November 1, 1996). Only minor changes from the
1997 regulations are being proposed for 1998. They are described and
justified below.
1. Extend the effective period of 50 CFR 679.50 through December
31, 1998. The 1-year extension is intended to encompass the period of
time necessary for NMFS to develop a long-term
[[Page 49199]]
program that addresses concerns about observer data integrity and
observer compensation and working conditions.
2. Revise the conflict-of-interest regulation at
Sec. 679.50(h)(2)(i)(A)(4) to indicate that individuals may not serve
as observers on any vessel or at any shoreside processor owned or
operated by a person who previously employed the observer, for a period
of 12 consecutive months after being employed by that person. This
revision is less restrictive than the current regulation.
3. Expand the prohibition at Sec. 679.7(g)(1) to include sexual
harassment and bribery as unlawful interferences with an observer. The
proposed amendment would make the regulations consistent with section
307(1)(L) of the Magnuson-Stevens Act. NMFS notes that situations could
occur in which a person's (e.g., vessel owner/operator, shoreside
processor required to have observer coverage) offer of employment in a
North Pacific fishery to an observer carrying out observer duties could
constitute a bribe. Bribes and sexual harassment are prohibited under
section 307(1)(L) of the Magnuson-Stevens Act and can be prosecuted as
criminal offenses, punishable by fine and/or imprisonment.
4. Revise the 30-percent observer coverage requirement regulation
at Sec. 679.50(c)(vi) and (vii) to clarify that required coverage is
specific to the gear type. This means that observer coverage obtained
for a vessel using hook-and-line gear cannot be used to comply with
observer coverage requirements for the same vessel when it is used to
fish with pot gear.
5. Clarify the regulation at Sec. 679.50(i)(2)(xiv)(G) to alleviate
confusion on what information observer contractors currently are
required to submit to NMFS. The proposed clarification specifies that
an observer contractor must submit completed and unaltered copies of
signed and valid contracts with specific entities requiring observer
services or with specific observers to the Observer Program Office upon
request. Required copies of contracts must be submitted by mail or fax.
Types of signed and valid contracts include the contracts an observer
contractor has with: (a) vessels required to have 30-percent observer
coverage, (b) vessels required to have 100-percent observer coverage,
(c) shoreside processors required to have 30-percent observer coverage,
(d) shoreside processors required to have 100-percent observer
coverage, or (e) observers (to include contracts for the various
compensation or salary levels of observers, the levels being based on
observer experience).
6. Correct the regulation at Sec. 679.50(j)(7)(iv) that referenced
the wrong paragraph. The 1997 Interim Groundfish Observer Program
regulations at Sec. 679.50(j)(7)(iv) stated that ``[t]he appeals
officer must base the decision on the administrative records complied
under paragraphs (j)(5) or (i)(7) of this section, as appropriate.''
The correct references are to paragraphs (j)(5) or (j)(6). This
proposed revision replaces ``(i)(7)'' with ``(j)(6)''.
Non-codified Elements Of The Observer Program
Three elements of the 1997 Observer Program were not codified in
regulation: (1) Observer qualifications, (2) observer training/briefing
requirements, and (3) NMFS's selection criteria for observer
contractors. These elements were published in the Federal Register (61
FR 40380, August 2, 1996) and are available upon request. Although they
were not codified, they are viewed as a part of the rule and NMFS will
publish a notification in the Federal Register and provide an
opportunity for public comment prior to changing any of these elements.
NMFS proposes making minor revisions to two of the elements as follows:
1. Revise item ``B'' of the ``NMFS Observer Qualifications--
Education and Experience Standards'' to require observers to have taken
at least one course that used extensively dichotomous keys. During
training, observers spend approximately 15 hours of class time in fish
identification lectures and laboratories. Much of this time is spent
identifying fish to species using dichotomous keys. Observers with
previous course work using dichotomous keys are better able to apply
that training.
2. Revise the ``NMFS Observer Training/Briefing Requirements'' to
require all prior observers to complete a 4-day briefing prior to their
first deployment in any calendar year. One-day briefings would be
required prior to subsequent deployments within a calendar year.
Additional briefing time is required to fully prepare observers to use
the new observer electronic reporting package (ATLAS), to review any
other regulatory or programmatic changes on an annual basis, and to
engage in an annual review of species identification, enabling
observers to complete more efficiently that aspect of their duties.
The observer qualifications, as proposed to be revised, are set
forth below. NMFS' selection criteria for observer contractors would
remain unchanged.
A. Prospective observers must have a bachelor's degree or higher
from an accredited college or university with a major in one of the
natural sciences.
B. Candidates must have a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course. Candidates must also have
successfully completed at least one undergraduate course in mathematics
and one in statistics worth a combined total of at least 5 semester
hours. In addition, all applicants are required to have computer skills
that enable them to work competently with standard database software
and computer hardware.
C. Prospective observers are also required to complete successfully
any screening test(s) administered by NMFS. These tests would measure
basic mathematics, algebra, and computer skills as well as other
abilities necessary for successful job performance.
D. If a sufficient number of candidates meeting these educational
prerequisites is not available, the observer contractor may seek
approval from NMFS to substitute individuals with either a senior
standing in an acceptable major, or with an Associate of Arts (A.A.)
degree in fisheries, wildlife science, or an equivalent.
E. If a sufficient number of individuals meeting the above
qualifications is not available, the observer contractor may seek
approval from NMFS to hire individuals with other relevant experience
or training.
F. To qualify for certification, all prospective observers must
undergo safety and cold water survival training that requires the
prospective observers to demonstrate their ability to properly put on
an immersion suit in a specified time period, enter the water, travel
approximately 50 m to a ladder, and climb out of the water.
The additional mathematics, statistics, and computer skills
requirements reflect the increased responsibilities of observers and
are similar to the observer qualifications that would have been
required under the Research Plan, had it been fully implemented. The
NMFS observer training/briefing requirements are set forth below.
A. Observers who have completed a deployment must be recertified
prior to another deployment. All observers will be required to complete
a 4-day briefing prior to their first deployment in any calendar year.
One-day briefings will be required prior to subsequent deployments
within a calendar year.
[[Page 49200]]
Certification following 1- or 4-day briefings will expire after 1 month
if deployment is delayed. Observers who have not been deployed for a
period of 18 months will be required to complete a 3-week training
course.
B. If an observer is not deployed within 1 month after completion
of training, the individual must complete a 1-day briefing. If the
observer is not deployed within 3 months after training, the individual
must complete a 4-day briefing. If the observer is not deployed within
6 months after training, the individual must retake the full training
course.
C. Observers may be required to attend an additional 4-day briefing
based upon an evaluation of data collected during their most recent
deployment.
Classification
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The proposed changes occurring through this regulatory action are
within the scope of issues thoroughly analyzed for the implementation
of the 1997 Interim Groundfish Observer Program (61 FR 56425, November
1, 1996). Therefore, the EA/RIR/FRFA prepared for the Interim
Groundfish Observer Program and the preambles to the proposed and final
rules implementing that program (61 FR 40380, August 2, 1996; 61 FR
56425, November 1 1996) are incorporated by reference into the analysis
prepared for this action. This action is a necessary adjustment to the
rules governing the Interim Groundfish Observer Program and will
provide the same benefits as listed in the EA/RIR/FRFA for the Interim
Groundfish Observer Program, dated August 27, 1996. A copy of this
analysis is available from NMFS (see ADDRESSES). The changes caused by
this action are consistent with the intent and purpose of the Interim
Groundfish Observer Program.
NMFS prepared an IRFA as part of the RIR, which describes the
impact this proposed rule would have on small entities, if adopted.
Based on the analysis, it was determined that this proposed rule could
have a significant economic impact on a substantial number of small
entities. A copy of this analysis is available from the Council (see
ADDRESSES). Observer costs borne by vessels and processors are based on
whether an observer is aboard a vessel and on overall coverage needs.
Higher costs are borne by those vessels and shoreside processors that
require higher levels of coverage. Most of the catcher vessels
participating in the groundfish fisheries off Alaska and required to
carry observers (i.e., vessels 60 ft LOA and longer) meet the
definition of a small entity under the RFA. In 1995, about 270 catcher
vessels carried observers. These catcher vessels would not be further
economically impacted by observer coverage levels because the proposed
rule would not implement any changes in observer coverage levels.
Under the proposed rule, an observer conflict-of-interest
regulation would be relaxed, thereby potentially creating increased
employment opportunities for observers. Five observer contractors are
likely to be affected by this proposed rule. All are considered small
entities, and none are likely to experience significant economic
impacts. Given that observers are contracted employees of observer
contractors, this proposed change could increase the economic benefits
realized by observer contractors.
Although the proposed number of observer briefing days required in
a 12-month period would increase from 2 to 4 under the proposed rule,
the number of observer briefing days required for subsequent
deployments within a calendar year would decrease from 2 to 1. The net
change in number of observer briefing days is anticipated to be
minimal. The briefing day costs (lodging, per diem) are approximately
$135-200 per day and are dependent on the briefing location (Alaska or
Washington). The cost is borne by either the observer or the observer
contractor and is dependent upon the specific contractual arrangements
between these entities. The briefing day costs are typically passed on
from the observer or the observer contractor to the vessel or processor
that is required to have the observer coverage. In 1996, 384 observers
(employed by five observer contractors) were briefed for the North
Pacific groundfish fisheries.
The RFA requires that the IRFA describe significant alternatives to
the proposed rule that accomplish the stated objectives of the
applicable statutes and that minimize any significant impact on small
entities. Consistent with the stated statutory objectives, the IRFA
must discuss significant alternatives to the proposed rule such as (1)
establishing different reporting requirements for small entities that
take into account the resources available to small entities; (2)
consolidation or simplification of reporting requirements; (3) the use
of performance rather than design standards; and (4) allowing
exemptions from coverage for small entities. Alternatives that
addressed modifying reporting requirements for small entities or the
use of performance rather than design standards for small entities were
not considered by the Council or in this analysis. Such alternatives
are not relevant to this proposed action and would not mitigate the
impacts on small entities. Allowing exemptions for small entities from
this proposed action would not be appropriate because the objective to
assure uninterrupted observer coverage requirements through 1998 could
not be achieved if small entities were exempted.
The EA/RIR/FRFA prepared for the Interim Groundfish Observer
Program (61 FR 56425, November 1, 1996) included the North Pacific
Fisheries Research Plan (Research Plan) as an alternative. However, the
Research Plan is no longer a viable alternative to the proposed interim
observer program. The political and economic concerns that led the
Council to repeal the Research Plan still exist. Furthermore, fees
collected in 1995 were refunded in early 1996 and if the Research Plan
was pursued as the preferred alternative, start-up funding would have
to be collected again. Regulations implementing the existing observer
program will expire at the end of 1997. It is not feasible to implement
a fee-based observer program by the end of this year, which would be
necessary to provide observer coverage for the 1998 groundfish
fisheries. The preferred alternative for an interim observer program is
the only option that could be implemented by 1998 so that the
groundfish fisheries could commence without interruption.
This proposed rule contains a revised collection-of-information
requirement subject to the Paperwork Reduction Act (PRA). This
collection-of-information requirement has been approved by the Office
of Management and Budget (OMB) under OMB Control Number 0648-0318. The
estimated current burden for submission of observer contract
information is 15 minutes.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including rather the information has
practical utility; the accuracy of the burden estimate; ways to enhance
the quality, utility, and clarity of the information to be collected;
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection-of-information subject
[[Page 49201]]
to the requirements of the PRA, unless that collection- of-information
displays a currently valid OMB control number.
Since the repeal of the Research Plan and at the direction of the
Council, NMFS has been developing a long-term alternative program
structure to address the problems identified with the current observer
program structure. The Council is scheduled to take final action at its
December 1997 meeting.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: September 15, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
2. In Sec. 679.7, paragraph (g)(1) is revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(g) * * *
(1) Forcibly assault, resist, oppose, impede, intimidate, sexually
harass, bribe, or interfere with an observer.
* * * * *
3. In Sec. 679.50, the section heading, paragraphs (c)(1)(vi) and
(vii), (h)(2)(i)(A)(4), (i)(1)(iii), introductory text of (i)(2)(xiv),
(i)(2)(xiv)(G), and (j)(7)(iv) are revised to read as follows:
Sec. 679.50 Groundfish Observer Program applicable through December
31, 1998.
* * * * *
(c) * * *
(1) * * *
(vi) A catcher/processor or catcher vessel fishing with hook-and-
line gear that is required to carry an observer under paragraph
(c)(1)(v) of this section must carry an observer during at least one
entire fishing trip using hook-and-line gear in the Eastern Regulatory
Area of the GOA during each calendar quarter in which the vessel
participates in a directed fishery for groundfish in the Eastern
Regulatory Area using hook-and-line gear.
(vii) A catcher/processor or catcher vessel equal to or greater
than 60 ft (18.3 m) LOA fishing with pot gear that participates for
more than 3 fishing days in a directed fishery for groundfish in a
calendar quarter must carry an observer during at least 30 percent of
its fishing days while using pot gear in that calendar quarter and
during at least one entire fishing trip using pot gear in a calendar
quarter for each of the groundfish fishery categories defined under
paragraph (c)(2) of this section in which the vessel participates.
* * * * *
(h) * * *
(2) * * *
(i) * * *
(A) * * *
(4) May not serve as observers on any vessel or at any shoreside
processor owned or operated by a person who previously employed the
observer, for a period of 12 consecutive months after being employed by
that person.
* * * * *
(i) * * *
(1) * * *
(iii) Term. Observer contractors will be certified through December
31, 1998. Observer contractors can be decertified or suspended by NMFS
under paragraph (j) of this section.
(2) * * *
(xiv) Providing the following information to the Observer Program
Office by electronic transmission (e-mail), fax, or other method
specified by NMFS.
* * * * *
(G) A completed and unaltered copy of each type of signed and valid
contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract) an observer contractor has
with those entities requiring observer services under paragraphs (c)
and (d) of this section and with observers. Completed and unaltered
copies of signed and valid contracts with specific entities requiring
observer services or with specific observers must be submitted to the
Observer Program Office upon request. Types of signed and valid
contracts include the contracts an observer contractor has with:
(1) Vessels required to have observer coverage as specified at
paragraphs (c)(1)(i) and (iv) of this section,
(2) Vessels required to have observer coverage as specified at
paragraphs (c)(1)(ii), (v), and (vii) of this section,
(3) Shoreside processors required to have observer coverage as
specified at paragraph (d)(1)(i) of this section,
(4) Shoreside processors required to have observer coverage as
specified at paragraph (d)(1)(ii) of this section,
(5) Observers (to include contracts for the various compensation or
salary levels of observers, the levels being based on observer
experience).
Required copies of contracts must be submitted by mail or faxed to:
NMFS Observer Program Office, 7600 Sandpoint Way Northeast, Seattle, WA
98115-0070; fax number 206-526-4066.
* * * * *
(j) * * *
(7) * * *
(iv) If the appeals officer grants review based on the written
petition, he or she may request further written explanation from
observers, observer contractors, or the decertifying officer or
suspending officer. The appeals officer will then render a written
decision to affirm, modify, or terminate the suspension or
decertification or return the matter to the suspending or decertifying
official for further findings. The appeals officer must base the
decision on the administrative records compiled under paragraphs (j)(5)
or (j)(6) of this section, as appropriate. The appeals officer will
serve the decision on observers or observer contractors and any
affiliates involved, personally or by certified mail, return receipt
requested, at the last known residence or place of business.
* * * * *
[FR Doc. 97-25011 Filed 9-18-97; 8:45 am]
BILLING CODE 3510-22-F