[Federal Register Volume 63, Number 95 (Monday, May 18, 1998)]
[Rules and Regulations]
[Pages 27213-27218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13131]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970829214-8090-02; I.D. 082097B]
RIN 0648-AJ76


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Observer Health and Safety

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS amends the regulations that pertain to fishery observers 
and the vessels that carry them. This regulatory amendment implements 
measures to ensure the adequacy and safety of fishing vessels that 
carry observers. Owners and operators of fishing vessels that carry 
observers are required to comply with guidelines, regulations, and 
conditions in order to ensure that their vessels are adequate and safe 
for the purposes of carrying an observer and allowing normal observer 
functions.

DATES: Effective June 17, 1998.
ADDRESSES: Copies of the Regulatory Impact Review prepared for this 
action may be obtained from NMFS, SF3, 1315 East-West Highway, Silver 
Spring, MD 20910, Attn: William J. Bellows.

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

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), as amended (16 U.S.C. 1801 et seq.), the Marine 
Mammal Protection Act, as amended (MMPA; 16 U.S.C. 1361 et seq.), and 
the Atlantic Tunas Convention Act, as amended (ATCA; 16 U.S.C. 971 et 
seq.) authorize the Secretary of Commerce (Secretary) to station 
observers aboard commercial fishing vessels to collect scientific data 
required for fishery and protected species conservation and management, 
to monitor incidental mortality and serious injury to marine mammals 
and to other species listed under the Endangered Species Act (ESA), and 
to monitor compliance with existing Federal regulations. In addition, 
pursuant to the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.) 
observers may be required in the South Pacific Tuna Fishery.
    The Magnuson-Stevens Act directs that--

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

    A proposed rule to implement the required measures was published in 
the Federal Register on September 22, 1997 (62 FR 49463), and invited 
public comment through October 22, 1997. Several comments were received 
late in the comment period requesting that the comment period be 
extended. NMFS extended the comment period 30 days (62 FR 55774, 
October 28, 1997).
    Eleven letters of comment were received concerning the proposed 
rule. Of these 11, eight expressed opposition to the rule or to 
specific provisions in the rule, and one letter was signed by eight 
individuals who represented different industry organizations. Two 
letters expressed strong support for the rule, one of which was from an 
observer organization with approximately 200 members. One letter 
expressed neither opposition nor support but listed many problems that 
observers face on the job.
     Comment 1: The publication of the rule was inadequately 
advertised/announced. It was not on any of the following notice 
mediums: NMFS bulletin boards, NMFS press release, NMFS homepage, or 
Alaska Region homepage. The commenter requested an extension of the 30-
day comment period.

[[Page 27214]]

     Response: The proposed rule was published in the Federal Register 
on September 22, 1997 (62 FR 49463). The comment period was extended 
for 30 days and was announced by publication in the Federal Register on 
October 28, 1997 (62 FR 55774). In addition to the October 28 
publication of the extension of the comment period, both the proposed 
rule and the extension of the comment period were posted on the NMFS 
homepage and on the Alaska Region homepage during the extended comment 
period.
     Comment 2: The 30-day extension of the comment period is grossly 
inadequate.
     Response: NMFS disagrees. By extending the public comment period 
by an additional 30 days, NMFS doubled the length of the original 
comment period. NMFS believes that a 60-day public comment period is 
adequate.
     Comment 3: Observers are not qualified to make a judgement 
regarding vessel safety.
     Response: It is true that observers do not receive the same vessel 
safety examination training that U.S. Coast Guard (USCG) personnel do. 
However, NMFS observers are provided training that addresses vessel 
safety. For example, in the North Pacific observer training, observers 
are taught to look for obvious areas of non-compliance that may 
jeopardize their safety. In addition to viewing several safety videos, 
the observers are shown a set of ``safety tour'' slides in which they 
are asked to look for items on a safety check list. Section 
600.746(c)(3) has been added to the rule; this section encourages the 
observer to check major safety items (as identified by the USCG) and to 
briefly check the vessel's major spaces for especially hazardous 
conditions. The intent of this rule is not to empower an observer as a 
USCG enforcement official. Its purpose is to encourage an observer to 
check the major safety items identified in Sec. 600.746(c)(3); if these 
items are absent or unserviceable, the rule empowers the observer not 
to sail with the vessel until those deficiencies are corrected. The 
observer's pre-trip safety check will be made in accordance with 
published USCG guidance on some of the most important items that would 
be required in the event of an at-sea emergency.
     Comment 4: The rule's evaluation that there will be no significant 
impact on a substantial number of small entities is wrong. If an 
observer refuses to board a vessel that is safe in accordance with USCG 
standards, the vessel could be delayed in departing long enough to miss 
an important part of a short season, resulting in significant lost 
opportunity to fish. The observer's refusal could be the result of poor 
judgement, lack of expertise or training, or vindictiveness.
     Response: NMFS has added language to the rule in 
Sec. 600.746(c)(3) that is intended to minimize, if not eliminate, the 
possibility of an observer making a decision, for whatever reason, 
regarding a safe vessel that would delay its beginning legal fishing at 
the optimum time. The above-mentioned section was added to the 
regulations in order to give the observer detailed guidance regarding 
the pre-trip safety check. In addition, this document makes it clear 
that the observer's safety check is to confirm that the USCG safety 
decal is current and to spot-check other safety items by conducting a 
brief walk through the vessel's major spaces to check for obviously 
hazardous conditions. NMFS believes that the training observers now 
receive is adequate to enable an observer to conduct the pre-trip 
safety check as discussed in the response to comment 3.
     Comment 5: There are no provisions for redress and appeal in the 
event that a vessel is unnecessarily detained or impacted.
     Response: There are no specific procedures for redress or appeal 
in these regulations. It would be redundant to include those legal 
procedures here because they are available to anyone who considers that 
he or she has experienced wrongful negative impact of any regulations. 
As is suggested in the response to comment 17, when a vessel operator 
disputes the observer's decision and is unable to reach a resolution, 
the vessel operator should call the USCG and request reexamination of 
the issue in dispute.
     Comment 6: If the regulations were approved in the absence of USCG 
regulations, they would be inadequate.
     Response: They are not being approved in the absence of USCG 
regulations. The intent of this rule is to build upon the USCG and 
other safety regulations. The regulations intend to insure the safety 
of observers at sea without duplicating USCG regulations, which are 
designed to insure the safety of all persons on board fishing vessels.
     Comment 7: All vessels carrying observers are required to have a 
current safety decal; consequently, there is no basis for an observer 
refusing to board a vessel.
     Response: If the decal is valid (current) and if no safety 
equipment has been lost, damaged, or is otherwise unserviceable, there 
should be no safety-related reasons for an observer to refuse boarding. 
If, on the other hand, the decal is current, but safety equipment is 
missing or unserviceable, the observer is authorized not to board the 
vessel.
     Comment 8: The style of referring to other sections of the CFR is 
difficult to read and understand. Furthermore, some of the sections 
cited have not been written.
     Response: This rule cites other sections of the CFR rather than 
duplicating those sections in order to make the regulations published 
in the Federal Register as concise as possible. NMFS wants the 
regulations to refer to the most recent versions of the regulations 
cited. If other agencies' regulations were repeated in NMFS' 
regulations, it would be nearly impossible for NMFS to keep the 
regulations current. By citing the other agencies' regulations, the 
reference is always to the most recently amended regulation. All cited 
sections have been written and published before they are incorporated 
into the CFR except for citations to the rule being enacted through 
this action. The regulatory text for this rule follows after this 
preamble. Some changes may have been too recent to appear in the CFR 
dated October 1996, which was the last-published CFR at the time that 
the proposed rule was published.
     Comment 9: USCG no longer performs no-cost inspections of 
processor vessels.
     Response: The commenter is correct. Processing vessels examined by 
private organizations comprise the only category of fishing vessels 
that pays to have inspections done. These for-fee inspections are in 
lieu of USCG dock-side examinations but do not preclude at-sea 
examinations by USCG. The inspections of processing vessels are 
required whether observer safety rules are in effect or not.
     Comment 10: This rulemaking is premature; ``neither the industry 
nor NMFS is ready at this time to begin discussions on such rules. 
Before that discussion can begin, NMFS first needs to develop 
appropriate rules regarding onboard observers in all the other 
fisheries in which they have been deemed necessary.''
     Response: This rule is required by the Magnuson-Stevens Act.
     Comment 11: It is unrealistically generous to require that 
accommodations be equivalent to those of the vessel's officers. 
Observers do not warrant treatment as officers.
     Response: This rule requires nothing specific regarding 
accommodations for observers. It merely refers to regulations already 
in place.
     Comment 12: Under the regulations that would be put in place by 
this rule, if all vessels were required to carry

[[Page 27215]]

observers, all vessels would have to undergo safety inspections. This 
would mean the end of uninspected fishing vessels.
     Response: Under the assumptions made by the commenter, it is true 
that if all vessels were required to carry observers, all of them would 
have to be examined. At the present time, however, not all vessels are 
required to carry observers. NMFS wants fishing vessels carrying 
observers to fish safely, and undergoing USCG safety examinations 
promotes safety.
     Comment 13: What is the authority under which regional 
requirements governing observer accommodations might be developed? It 
is possible that these regional requirements could have unintended 
effects. For example, if the regional requirement deals with an issue 
that is judged subjectively, such as the adequacy of accommodations or 
food, the observer in applying that subjective judgement could keep a 
safe vessel from fishing.
     Response: The authorities under which regional requirements are 
developed are the Magnuson-Stevens Act, the Marine Mammal Protection 
Act, and the ESA. The addition of Sec. 600.746(c)(3) to the rule should 
eliminate the problem of subjective judgement in conducting the 
vessel's pre-trip safety check. It is not the intent of this rule to 
develop regional requirements.
     Comment 14: If a vessel has a valid USCG safety decal, there 
should be no question concerning the vessel's safety. To then have an 
observer, who has the authority to refuse to board the vessel because 
of a safety deficiency, is double jeopardy.
     Response: If a vessel has passed a USCG dock-side safety 
examination, the regulations indicate that such vessel would be 
considered safe with respect to the USCG regulations. However, it is 
possible that some requirements with which the vessel was in compliance 
at the time of the USCG safety examination may not be met at the time 
of boarding by an observer for a specific trip. NMFS has added language 
at Sec. 600.746(c)(3) that encourages the observer to examine some of 
the most important items that would be required in the case of an 
emergency at sea. This approach is consistent with that applied by USCG 
in recognizing that changes in vessel safety may occur between the time 
when a USCG safety decal is issued and the beginning of subsequent 
fishing. NMFS notes that this rule gives an observer authority not to 
board an unsafe or inadequate vessel. If such a vessel is operating in 
a fishery with mandatory observer coverage, the result of the 
observer's refusing to board might be that the vessel would not be 
authorized to conduct fishing.
     Comment 15: This rule cites other regulations already in place, 
which suggests that regulations to effect safety are already in place. 
That being the case, this rule will not change anything.
     Response: This rule applies safety standards to all fisheries, 
including those for which no other observer regulations are in place. 
In fisheries with mandatory observer programs in place now, and for 
those in which mandatory programs may be established, this rule makes 
it a violation to fish without an observer aboard. This rule also 
requires vessels to submit to an otherwise voluntary inspection program 
to provide evidence of compliance with safety standards.
     Comment 16: This rule is an attempt to exceed the authority 
conveyed by the Magnuson-Stevens Act in that it goes beyond USCG 
regulations by authorizing an observer to refuse to board an unsafe 
vessel, thereby keeping the vessel from fishing legally. It goes beyond 
what is necessary to provide a safe environment for an observer, and it 
gives an observer authority that Congress gave to USCG.
     Response: NMFS believes that the rule does not go beyond what is 
required to provide a safe environment for observers and for other 
persons aboard fishing vessels. The intent of the rule is not to 
empower an observer with USCG enforcement official status; its intent 
is to provide a safe vessel for an assigned observer. The NMFS rule 
does not encroach on USCG authority to terminate a voyage. Rather, it 
conditions a vessel's ability to fish safely by requiring compliance 
with existing regulations enforced by the USCG. The authority to 
regulate fishing activities properly rests with NMFS.
     Comment 17: If NMFS wants to require more than vessel-provided 
personal flotation devices (PFDs) and safety briefings, it should 
specifically identify the requirements that relate to observer safety 
rather than to such other safety concerns as the environment. NMFS 
should also consider which safety requirements warrant giving observers 
``the extraordinary authority to prevent a vessel from undertaking a 
fishing trip.''
     Response: NMFS is not giving greater significance to some USCG 
regulations than to others. NMFS is encouraging observers to check for 
compliance with existing regulations. A safety decal is considered to 
be evidence of compliance, but if there is other obvious non-
compliance, the observer has the option of not boarding the vessel. If 
the vessel operator disputes the observer's decision, which should be 
based upon published USCG guidance on some of the most important items 
that would be required in the event of an at-sea emergency, and no 
resolution is reached, the vessel operator should call the USCG to 
request reexamination of the issue in dispute. The addition of 
Sec. 600.746(c)(3) clarifies which items the observer should check at 
the time of boarding. The observer's pre-trip safety check will be made 
in accordance with published Coast Guard Guidance on some of the most 
important items that would be required in the event of an at-sea 
emergency. NMFS recognizes that, in some circumstances, an observer may 
raise a safety question that requires a vessel to wait for a USCG 
boarding before fishing. It is true that this could result in a loss of 
fishing days. In structuring the rule this way, NMFS had to weigh the 
impacts of this approach versus the impacts of alternative approaches. 
Just as there is a potential for a vindictive observer declining to 
board and thereby delaying a vessel's departure, other approaches would 
have raised the possibility of an observer being coerced into boarding 
a vessel that he or she believes is unsafe. Given the safety risks at 
issue and the probability that most safety violations will be easily 
remedied, e.g., replacing PFDs, NMFS determined that placing the 
presumptions in the selected manner was preferable.
    Whenever possible, vessel owners/operators are encouraged to 
arrange for the observer to make the pre-trip safety check in advance 
of the beginning of the planned fishing trip. In that way, there would 
be time to correct problems without delaying the trip's departure time.
     Comment 18: There are alternatives that would accomplish NMFS' 
objectives that were not considered by NMFS. One alternative is to 
provide an automatic waiver for those situations in which an observer 
refused to board a vessel for safety reasons. The waiver would be valid 
until the vessel had undergone a USCG inspection either at sea or in 
port. Alternative two would be to require that the safety determination 
be made by a NMFS enforcement agent who had completed the USCG training 
program for vessel safety inspections. Alternative three would be to 
determine which classes of vessels have consistently failed to provide 
safe working conditions for observers. Only those classes of vessels 
would be required to comply with the rule. Vessels with proven safety 
records would be exempt from the provisions of this rule.

[[Page 27216]]

     Response: Alternative one would void the intent of the rule. It 
would not make the vessel safe for the observer on the fishing trip 
that the observer was assigned to observe. Furthermore, it could 
provide an opportunity for vessel operators to avoid taking observers 
by incurring safety violations, such as no PFD for the observer. By 
authorizing an observer to refuse to board an unsafe vessel and by 
making it illegal to fish without an observer in a mandatory observer 
fishery, there is a strong incentive for the vessel to meet all USCG 
safety regulations. Alternative two was considered and rejected. It is 
equally possible that a NMFS enforcement agent, like an observer, would 
discover a safety violation that would delay a vessel's fishing trip. 
This option would also create the risk of an observer having to board a 
vessel that he or she believes is unsafe. In addition, from a practical 
standpoint, the current work load for NMFS enforcement agents makes it 
impossible for them to undertake this responsibility and continue to 
perform other enforcement functions/duties. Alternative three is not 
feasible because vessel safety is an individual vessel issue not one 
that can be addressed by classes of vessels. 
    Comment 19: The rule does not analyze measures taken by regions.
     Response: It is not the intent of this rule to analyze measures 
taken by regions. That analysis is done at the time those measures are 
developed and proposed in the rulemaking process.
     Comment 20: One commenter believes that, should an observer refuse 
to board a vessel because of safety deficiencies, there could be legal 
implications beyond the simple issue of the USCG safety requirement and 
the vessel's fishing. ``After an observer has determined a vessel to be 
unsafe, a crew member injures themself [sic] in the factory. 
Considering the Jones Act, the lawyers would have a field day.''
     Response: NMFS believes this comment refers to the possible use of 
an observer's safety determinations as evidence in a law suit. As 
stated in the responses to comments 3 and 16, this rule is not intended 
to give observers the authority to make actual determinations as to a 
vessel's compliance with USCG regulations. Rather, it simply requires 
that a vessel, if its safety has been called into question, rectify the 
shortcoming or submit to a new USCG safety examination or inspection. 
If anything, this rule is likely to reduce the number of negligence 
claims because vessels with questionable safety issues will correct 
them or be reexamined by USCG before fishing.
     Comment 21: The USCG should be consulted.
     Response: The USCG was involved at every stage of development of 
this rule.
     Comment 22: One commenter raised specific issues about an observer 
who was terminated and who subsequently filed suit.
     Response: Because the case is before the court, it would be 
inappropriate for NMFS to respond at this time.

Changes From the Proposed Rule

    Four changes were made from the proposed rule. One was made in 
response to comments: A provision was added at Sec. 600.746(c)(3) to 
provide guidance on the scope of the observer's pre-trip safety check.
    Another change was made to clarify that USCG performs either an 
inspection or an examination: The words ``examination or inspection'' 
replaced ``inspection'' in Secs. 600.725(p), 600.746(c)(1), and 
600.746(d)(1) so that it is clear that either an examination or an 
inspection can be performed.
    The word ``Examination'' was inserted in Sec. 600.746(c)(1) in 
order to more clearly identify the Commercial Fishing Vessel Safety 
Examination decal.
    The word ``examine'' replaced ``inspect'' in Sec. 600.746(c)(2) in 
order to avoid confusion with USCG inspection.
    The observer's pre-trip safety check of a vessel that displays a 
current Commercial Fishing Vessel Safety Examination decal will 
normally consist of no more than a spot check of the equipment 
identified in Sec. 600.746(c)(3), i.e., PFDs/immersion suits; ring 
buoys; distress signals; fire extinguishing equipment; emergency 
position indicating radio beacon, when required; survival craft, when 
required; and a walk through major spaces. This walk-through is not 
intended to broaden the scope of the safety check. The safety check 
should be done expeditiously because the decal indicates that the 
vessel has already undergone an extensive dockside inspection.

Classification

    At the proposed rule stage, NMFS certified to the Assistant General 
Counsel for Legislation and Regulation, Department of Commerce and to 
the Chief Counsel for Advocacy, Small Business Administration that this 
action would not result in a significant economic impact on a 
substantial number of small entities. Comments received on the proposed 
rule suggested that small entities might experience a significant 
economic impact as a result of the rule. Based on this new information, 
NMFS decided to prepare a Final Regulatory Flexibility Analysis (FRFA). 
The FRFA concludes that the rule's authorization for an observer to 
refuse to board a vessel that the observer believes to be unsafe and 
the rule's requirement that a vessel required to carry an observer 
cannot legally fish without the observer make it possible that 
implementation of this rule could delay a vessel's departure for a 
fishing trip. Because of variations in the structures of different 
fisheries' mandatory observer programs and in the structures of the 
different fishery management regimes, the fact that an observer refused 
to board would not necessarily mean that the vessel would lose fishing 
time as might be the case in those fisheries where vessels are allowed 
a limited number of days fishing per year. It is not possible to 
estimate accurately how many, if any, vessels would lose days at sea as 
a result of this rule. Therefore, there is at least a theoretical 
possibility that 20 percent of the affected small entities could 
experience a significant economic impact.
    In addition to the preferred alternative, which is the alternative 
that is implemented by this rule, NMFS considered several other 
alternatives. One of them would have been to take no action. Under this 
approach, vessels that carry observers would be required to comply with 
the same safety standards that would be applicable under the preferred 
alternative, but there would be no guidance to interested parties as to 
how to conduct a pre-trip safety check nor would there be any means by 
which an observer could quickly ascertain whether the vessel was in 
compliance with applicable USCG regulations. If the agency were to 
adopt the no-action alternative, the Congressional mandate in the 
Magnuson-Stevens Act would not be effected. In addition, there would be 
continued risk of unsafe conditions on board vessels to which observers 
were assigned.
    Another alternative would have prescribed new national standards 
for a wide range of safety and accommodations issues. Basic standards 
for determining a vessel's safety and adequacy would be based on USCG 
safety requirements and NMFS regional observer requirements as is the 
case in the first alternative. In addition to those basic USCG 
standards, this alternative would result in new regulations addressing 
a wide range of accommodation issues, such as quality of food, which, 
if not met, would authorize an observer not to board a fishing vessel. 
The observer would be authorized to make the pre-trip safety check to 
determine whether or not he/

[[Page 27217]]

she would board the vessel. In mandatory observer programs, a fishing 
vessel would not be permitted to fish legally without an observer. This 
alternative is not the preferred alternative because of the degree to 
which an observer would be authorized to make subjective, qualitative 
determinations. Furthermore, because of the variability of working 
conditions on fishing vessels, some vessels could not reasonably or 
economically meet the expectations of all observers. Therefore, the 
risk of this alternative resulting in delays of fishing trips is 
greater than that of the preferred alternative.
    The last alternative that NMFS considered would have prescribed 
basic standards for determining safety and adequacy as described in the 
preferred alternative, but either the National Marine Fisheries Service 
or an authorized observer contractor would have been authorized to make 
the pre-trip safety check to determine whether or not the observer 
would board the vessel. In mandatory observer programs, a fishing 
vessel would not be permitted to fish legally without an observer. This 
alternative would have used the same evaluation criteria (USCG dockside 
safety examination, pre-trip safety check, presence of a current 
Commercial Fishing Vessel Safety Decal, etc.) as the preferred 
alternative but would give NMFS and/or an authorized observer 
contractor the authority to decide whether a vessel is safe and 
adequate. The rationale for this approach is that it would avoid 
putting the observer into a situation where vessel owner, operator, and 
crew might exert pressure to coerce the observer to declare the vessel 
safe despite conditions that the observer believed to be unsafe. It 
would also avoid the potential for a ``vindictive'' observer to abuse 
discretion in making safety checks. The benefit of having NMFS or an 
authorized observer contractor make the safety and adequacy decision is 
that it would avoid putting the additional pressure on an observer of 
potentially having to tell a captain and crew with whom he/she would be 
spending time at sea that a fishing trip would be delayed. However, 
this alternative would also have the potential to delay a fishing 
voyage pending safety resolution. It is just as possible that a NMFS 
employee or observer contractor would discover safety issues in need of 
attention as an observer would. In addition, under this alternative, an 
observer who believes a vessel to be unsafe may be instructed to board 
because NMFS or the observer contractor believes the vessel to be safe. 
There would also be costs to NMFS and/or the observer contractor in the 
form of having a representative on site each time an observer boarded a 
vessel. NMFS and/or the observer contractor would also experience the 
cost of training employees to make the pre-trip safety check. This 
alternative is not preferred because it would put a third party in a 
position of judging a vessel's safety and perhaps of forcing an 
observer aboard an unsafe vessel.
    In addition to these alternatives, one commenter suggested two 
additional alternatives: The first would have provided an automatic 
waiver for those situations in which an observer refused to board a 
vessel for safety reasons. The waiver would be valid until the vessel 
had undergone a USCG inspection either at sea or in port. This 
alternative would have voided the intent of the rule. It would not make 
the vessel safe for the observer on the fishing trip that the observer 
was assigned to observe. Furthermore, it could provide an opportunity 
for vessel operators to avoid taking observers by incurring safety 
violations, such as no PFD for the observer. The other suggested 
alternative would be to determine which classes of vessels have 
consistently failed to provide safe working conditions for observers. 
Only those classes of vessels would be required to comply with the 
rule. Vessels with proven safety records would be exempt from the 
provisions of this rule. This approach is not feasible because vessel 
safety is an individual vessel issue not one that can be addressed by 
classes of vessels.
    NMFS tried to mitigate the potential impact of the rule by using 
objective standards for the observer's pre-trip safety check in the 
form of the published USCG guidance about the most important items that 
would be required in the event of an at-sea emergency. This particular 
alternative was chosen because it seemed to be an appropriate balance 
between the objectives of increasing observer safety and minimizing the 
risk of negative economic impact on vessels.
    This action has been determined to be not significant for purposes 
of E.O. 12866.

List of Subjects in 50 CFR Part 600

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

    Dated: May 12, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 600 is 
amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

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

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

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


Sec. 600.725 General prohibitions.

* * * * *
    (p) Fail to submit to a USCG safety examination when required by 
NMFS pursuant to Sec. 600.746.
    (q) Fail to display a Commercial Fishing Vessel Safety Examination 
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) Fish without an observer when the vessel is required to carry 
an observer.
    (t) Assault, 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 (16 U.S.C. 973 
et seq.), or any other U.S. law.
    (b) Observer requirement. An observer is not required to board, or 
stay aboard, a vessel that is unsafe or inadequate as described in 
paragraph (c) of this section.
    (c) Inadequate or unsafe vessels. (1) A vessel is inadequate or 
unsafe for

[[Page 27218]]

purposes of carrying an observer and allowing operation of normal 
observer functions if it does not comply with the applicable 
regulations regarding observer accommodations (see 50 CFR parts 229, 
285, 300, 600, 622, 648, 660, 678, and 679) or if it has not passed a 
USCG safety examination or inspection. A vessel that has passed a USCG 
safety examination or inspection must display one of the following:
    (i) A current Commercial Fishing Vessel Safety Examination decal, 
issued within the last 2 years, that certifies compliance with 
regulations found in 33 CFR, chapter I and 46 CFR, chapter I;
    (ii) A certificate of compliance issued pursuant to 46 CFR 28.710; 
or
    (iii) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
    (2) Upon request by an observer, a NMFS employee, or a designated 
observer provider, a vessel owner/operator must provide correct 
information concerning any item relating to any safety or accommodation 
requirement prescribed by law or regulation. A vessel owner or operator 
must also allow an observer, a NMFS employee, or a designated observer 
provider to visually examine any such item.
    (3) Pre-trip safety check. Prior to each observed trip, the 
observer is encouraged to briefly walk through the vessel's major 
spaces to ensure that no obviously hazardous conditions exist. In 
addition, the observer is encouraged to spot check the following major 
items for compliance with applicable USCG regulations:
    (i) Personal flotation devices/immersion suits;
    (ii) Ring buoys;
    (iii) Distress signals;
    (iv) Fire extinguishing equipment;
    (v) Emergency position indicating radio beacon (EPIRB), when 
required; and
    (vi) Survival craft, when required.
    (d) Corrective measures. If a vessel is inadequate or unsafe for 
purposes of carrying an observer and allowing operation of normal 
observer functions, NMFS may require the vessel owner or operator 
either to:
    (1) Submit to and pass a USCG safety examination or inspection; or
    (2) Correct the deficiency that is rendering the vessel inadequate 
or unsafe (e.g., if the vessel is missing one personal flotation 
device, the owner or operator could be required to obtain an additional 
one), before the vessel is boarded by the observer.
    (e) Timing. The requirements of this section apply both at the time 
of the observer's boarding, at all times the observer is aboard, and at 
the time the observer is disembarking from the vessel.
    (f) Effect of inadequate or unsafe status. A vessel that would 
otherwise be required to carry an observer, but is inadequate or unsafe 
for purposes of carrying an observer and for allowing operation of 
normal observer functions, is prohibited from fishing without observer 
coverage.
[FR Doc. 98-13131 Filed 5-15-98; 8:45 am]
BILLING CODE 3510-22-F