[Federal Register Volume 62, Number 183 (Monday, September 22, 1997)]
[Proposed Rules]
[Pages 49463-49464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25013]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970829214-7214-01; I.D. 082097B]
RIN 0648-AJ76


Magnuson-Stevens Act Provisions; Observer Health and Safety

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 is proposing regulations that pertain to fishery 
observers and the vessels that carry them. The Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) as amended 
October 11, 1996, requires that the Secretary of Commerce (Secretary) 
promulgate regulations for ensuring the adequacy and safety of fishing 
vessels that carry observers. Owners and operators of fishing vessels 
that carry observers would be required to comply with guidelines, 
regulations, and conditions in order to ensure that their vessels are 
adequate and safe for the purposes of carrying an observer and allowing 
operation of normal observer functions.

DATES: Comments must be received by October 22, 1997.

ADDRESSES: Send comments to Gary Matlock, Director, Office of 
Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: William J. Bellows, 301-713-2341.

SUPPLEMENTARY INFORMATION:

Background

     The Magnuson-Stevens Act, as amended (16 U.S.C. 1801 et seq.), the 
Marine Mammal Protection Act, as amended (MMPA; 16 U.S.C. 1361 et 
seq.), and the Atlantic Tunas Convention Act, as amended (ATCA; 16 
U.S.C. 971 et seq.) authorize the Secretary to station observers aboard 
commercial fishing vessels to collect required scientific data for the 
purposes of fishery and protected species conservation and management, 
monitoring incidental mortality and serious injury to marine mammals 
and to other species listed under the Endangered Species Act (ESA), and 
monitoring compliance with existing Federal regulations. In addition, 
pursuant to the South Pacific Tuna Act of 1988 (SPTA; 16 U.S.C. 973 et 
seq.) observers may be required in the South Pacific Tuna Fishery.
    The majority of U.S. observer programs are mandatory under the 
MMPA, or have mandatory coverage authorized by fishery management plans 
developed under the Magnuson-Stevens Act. Under mandatory programs, 
observer coverage levels are either prescribed by legislation or there 
is a mandate to carry an observer if requested to do so by NMFS. 
Vessels fishing under one of these mandatory programs must have an 
observer(s) aboard in order to fish legally. Should such a vessel fail 
to meet the safety requirements as described in this rule, the vessel 
would not be permitted to fish until the safety requirements are met 
and the required observer(s) is/are aboard.
    While the majority of the observer programs are mandatory, a 
substantial amount of fishery data is collected through voluntary 
observer programs. Under these voluntary programs, vessel owners and 
operators have no legal obligation or requirement to carry an observer 
but voluntarily carry observers to collect data essential for making 
fishery conservation and management decisions. The safety, health, and 
well-being of observers while stationed aboard fishing vessels 
participating in both mandatory and voluntary programs are of great 
priority.
    The Magnuson-Stevens Act directs that

     * * *the Secretary shall promulgate regulations, after notice 
and opportunity for public comment, for fishing vessels that carry 
observers. The regulations shall include guidelines for 
determining--
    (1) when a vessel is not required to carry an observer on board 
because the facilities of such vessel for the quartering of an 
observer, or for carrying out observer functions, are so inadequate 
or unsafe that the health or safety of the observer or the safe 
operation of the vessel would be jeopardized; and
    (2) actions which vessel owners or operators may reasonably be 
required to take to render such facilities adequate and safe.

    This rule would apply to any vessel designated to carry an observer 
as part of a mandatory or a voluntary observer program under the 
Magnuson-Stevens Act, the MMPA, ATCA, SPTA, or any other U.S. law.
    This proposed rule would adopt U.S. Coast Guard (USCG) safety 
inspection standards as minimum requirements a vessel must meet to be 
deemed safe and adequate for the purposes of carrying observers. 
Vessels that carry observers would be required to undergo USCG safety 
inspections, display valid USCG inspection decals or certificates, and 
maintain safe conditions at all times an observer is aboard as well as 
during an observer's boarding and disembarking. In addition, vessels 
would be required to comply with applicable regional requirements 
governing observer accommodations which may address adequacy, health, 
and safety concerns beyond the scope of USCG standards.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce made the following certification to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities.

    The National Marine Fisheries Service estimates that there are a 
total of 1,600 vessels carrying observers in NMFS-regulated 
fisheries. Of these, approximately 1,200 (75%) fit the Small 
Business Administration's definition of small entity,

[[Page 49464]]

and none would be significantly affected by this rule. The proposed 
rule's requirements that a vessel submit to dockside safety 
inspections and display a decal or certificate demonstrating 
compliance with U.S. Coast Guard (USCG) safety regulations merely 
provide evidence that the vessel is in compliance with existing 
mandatory USCG safety regulations. The safety inspection would be 
performed at the dock at no cost to the vessel owner and would take 
approximately 4 hours. The vessel owner/operator would be able to 
schedule the inspection at a time that is convenient for the owner/
operator, such as when the vessel is at dock. Thus, this rule is not 
expected to result in any economic loss associated with lost days at 
sea or any other significant economic impacts on a substantial 
number of small entities.

    This action has been determined to be not significant for purposes 
of E.O. 12866.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

    Dated: September 15, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service
    For the reasons set forth in the preamble, 50 CFR part 600 is 
proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for 50 CFR part 600 continues to read as 
follows:

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

    2. Section 600.725 is amended by redesignating (p) as (t), adding 
new paragraphs (p), (q), (r), (s), and (u) and revising newly 
redesignated paragraph (t) to read as follows:


Sec. 600.725  General prohibitions.

* * * * *
    (p) Fail to submit to a USCG safety inspection when required by 
NMFS pursuant to Sec. 600.746.
    (q) Fail to display a Commercial Fishing Vessel Safety decal or a 
valid certificate of compliance or inspection pursuant to Sec. 600.746.
    (r) Fail to provide to an observer, a NMFS employee, or a 
designated observer provider information that has been requested 
pursuant to Sec. 600.746, or fail to allow an observer, a NMFS 
employee, or a designated observer provider to inspect any item 
described at Sec. 600.746.
    (s) To fish without an observer when the vessel is required to 
carry an observer.
    (t) Assault, resist, oppose, impede, intimidate, or interfere with 
a NMFS-approved observer aboard a vessel.
    (u) Prohibit or bar by command, impediment, threat, coercion, or 
refusal of reasonable assistance, an observer from conducting his or 
her duties aboard a vessel.
    3. In subpart H, Sec. 600.746 is added to read as follows:


Sec. 600.746  Observers.

    (a) Applicability. This section applies to any fishing vessel 
required to carry an observer as part of a mandatory observer program 
or carrying an observer as part of a voluntary observer program under 
the Magnuson-Stevens Act, MMPA (16 U.S.C. 1361 et seq.), the ATCA (16 
U.S.C. 971 et seq.), the South Pacific Tuna Act of 1988 (SPTA; 16 
U.S.C. 973 et seq.), or any other U.S. law.
    (b) Observer requirement. An observer is not required to board, or 
stay aboard, a vessel that is unsafe or inadequate as described in 
paragraph (c).
    (c) Inadequate or unsafe vessels. (1) A vessel is inadequate or 
unsafe for purposes of carrying an observer and allowing operation of 
normal observer functions if it does not comply with the applicable 
regulations regarding observer accommodations (see 50 CFR parts 229, 
285, 300, 600, 622, 648, 660, 678, and 679) or if it has not passed a 
USCG safety inspection. A vessel that has passed a USCG safety 
inspection must display one of the following:
    (i) A current Commercial Fishing Vessel Safety Decal, issued within 
the last 2 years, that certifies compliance with regulations found in 
33 CFR Chapter I and 46 CFR Chapter I;
    (ii) A certificate of compliance issued pursuant to 46 CFR 28.710; 
or
    (iii) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
    (2) Upon request by an observer, a NMFS employee, or a designated 
observer provider, a vessel owner/operator must provide correct 
information concerning any item relating to any safety or accommodation 
requirement prescribed by law or regulation. A vessel owner or operator 
must also allow an observer, a NMFS employee, or a designated observer 
provider to visually inspect any such item.
    (d) Corrective measures. If a vessel is inadequate or unsafe for 
purposes of carrying an observer and allowing operation of normal 
observer functions, NMFS may require the vessel owner or operator 
either to:
    (1) Submit to and pass a USCG safety inspection; or
    (2) Correct the deficiency that is rendering the vessel inadequate 
or unsafe (e.g., if the vessel is missing one personal flotation device 
(PFD), the owner or operator could be required to obtain an additional 
one), before that vessel is authorized to fish in fisheries with 
mandatory observer coverage requirements.
    (e) Timing. The requirements of this section apply both at the time 
of the observer's boarding, at all times the observer is aboard, and at 
the time the observer is disembarking from the vessel.
    (f) Effect of inadequate or unsafe status. A vessel that would 
otherwise be required to carry an observer but is inadequate or unsafe 
for purposes of carrying an observer and allowing operation of normal 
observer functions is prohibited from fishing without observer coverage 
unless NMFS waives the observer requirement.
[FR Doc. 97-25013 Filed 9-19-97; 8:45 am]
BILLING CODE 3510-22-F