[Federal Register Volume 65, Number 179 (Thursday, September 14, 2000)]
[Proposed Rules]
[Pages 55495-55498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23629]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket 000301054-0227-02; I.D. 053000D]
RIN 0648-AN27


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; 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 proposes to amend the regulations implementing the 
Pacific Coast Groundfish Fishery Management Plan (FMP) to provide for 
an at-sea observation program on all limited entry and open access 
catcher vessels. This proposed rule would require vessels in the 
groundfish fishery to carry observers when notified by NMFS or its 
designated agent; establish notification requirements for vessels that 
may be required to carry observers, and establish responsibilities and 
define prohibited actions for vessels that are required to carry 
observers. The at-sea observation program is intended to improve 
estimates of total catch and fishing mortality.

DATES: Comments on this proposed rule must be received by October 16, 
2000.

ADDRESSES: Send comments to William Stelle, Jr., Administrator, 
Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, 
Seattle, WA 98115-0070. Comments also may be sent via facsimile (fax) 
to 206-526-6736. Comments will not be accepted if submitted via e-mail 
or Internet. Copies of the Environmental Assessment/Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (IRFA) may be obtained 
from the Pacific Fishery Management Council (Council) by writing to the 
Council at 2130 SW Fifth Avenue, Suite 224, Portland OR 97201, or by 
contacting Don McIsaac at 503-326-6352, or may be obtained from William 
L. Robinson, Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN 
C15700, Bldg. 1, Seattle, WA 98115-0070. Send comments regarding the 
reporting burden estimate or any other aspect of the collection-of-
information requirements in this proposed rule to the NMFS address and 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget (OMB), Washington, D.C. 00503 (Attn: NOAA Desk 
Officer). Send comments regarding any ambiguity or unnecessary 
complexity arising from the language used in this rule to William 
Stelle, Jr.

FOR FURTHER INFORMATION CONTACT: William L. Robinson, Northwest Region, 
NMFS, 206-526-6140; fax: 206-526-6736 and e-mail: 
[email protected] or Svein Fougner, Southwest Region, NMFS, 562-
980-4000; fax: 562-980-4047 and e-mail: [email protected].
    Electonic Access: This proposed rule also is accessible via the 
Internet at the Office of the Federal Register's website at http://
www.access.gpo.gov/su--docs/aces/aces140.html.

SUPPLEMENTARY INFORMATION: The U.S. groundfish fisheries off the 
Washington, Oregon, and California coasts are managed pursuant to the 
Magnuson Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act)(16 U.S.C. 1801-1883) and the Pacific Coast Groundfish FMP. 
Regulations implementing the FMP appear at 50 CFR part 660, subpart G. 
The Magnuson-Stevens Act at 16 U.S.C. 1853(b)(8) provides that an FMP 
may require that one or more observers (50 CFR 600.10) be carried 
onboard a vessel of the United States engaged in fishing for species 
that are subject to the FMP, for the purpose of collecting data 
necessary for the conservation and management of the fishery. The 
Pacific Coast Groundfish FMP provides that all fishing vessels 
operating in the groundfish fishery may be required to accommodate on 
board observers for purposes of collecting scientific data. Under the 
Magnuson-Stevens Act at 16 U.S.C. 1855(d), the Secretary of Commerce, 
acting through NMFS, has general responsibility to carry out any 
fishery management plan, and may promulgate such regulations as may be 
necessary to discharge this responsibility.
    With the exception of the mid-water trawl fishery for Pacific 
whiting, most groundfish vessels sort their catch at sea and discard 
species that are in excess of cumulative trip limits, unmarketable, in 
excess of annual allocations, or incidentally caught non-groundfish 
species. Landed or retained catch is monitored by individual state fish 
ticket programs in Washington, Oregon, and California. However, because 
a portion of the catch is discarded at sea, there is no opportunity for 
NMFS or the states to monitor total catch (retained plus discarded 
catch) at onshore processing facilities. This lack of information on 
at-sea discards has resulted in imprecise estimates of total catch and 
fishing mortality.
    Discard information is needed to assess and account for total 
fishing mortality and to evaluate management measures, including 
rebuilding plans for overfished stocks. Discard estimates based on 
limited studies conducted in the mid-1980's, and information on species 
compositions in landings, are available for some groundfish species. 
For other species there is little or no discard information. During the 
past decade, there have been significant reductions in cumulative trip 
limits, and trip limits have been applied to increasing numbers of 
species. In light of these changes in the regulatory regime, doubt has 
been raised about the old discard estimates, which were based on data 
collected in the 1980's. Accurate estimates of discards are essential 
to computing total catch, and thus are an important component of any 
fishery conservation and management program. If the discard estimates 
are too high, harvest allocations may be set too low; if discard 
estimates are too low, then harvest allocations may be set too high, 
and the long-term health of the stock may be jeopardized.
    The Pacific Coast Groundfish FMP was developed by the Council and 
approved by NMFS in 1982. Since the early 1990's, the Council has 
regarded at-sea observers as a viable means to collect much-needed 
data. The Council's Groundfish Management Team has continually stressed 
the need for an on-board observer program to accurately assess total 
catch. Observers have been placed on a voluntary basis aboard offshore 
processing vessels (catcher/processors and motherships) in

[[Page 55496]]

the Pacific whiting fishery since 1991. From 1995 to 1998, a small 
number of groundfish trawl vessels participating in the Oregon Enhanced 
Data Collection research project voluntarily carried observers to 
monitor trip limit-induced discards and the bycatch of prohibited 
species. At its April 1999 meeting, the Council proposed development of 
an on-board observer program for all limited entry and open access 
vessels, with the goal of having a program ready for implementation in 
2000, if funding became available. At this same meeting, the Council 
agreed to consider the development of a regulatory program to support a 
mandatory observer program in the recreational charter boat fleet. Such 
a program would be addressed in a separate rulemaking. Regulations to 
support an observer program in the at-sea processing sector of the 
Pacific whiting fishery also will be submitted separately.
    Observers are a uniformly trained group of qualified technicians. 
They are stationed aboard vessels to gather conservation and management 
data that are too burdensome for vessel personnel to collect, and which 
would otherwise not be available for managing the fisheries or 
assessing interactions with non-groundfish species. The purposes of 
this rulemaking are to establish the obligations of vessels that will 
be required to carry observers; to safeguard the observers' well-being; 
and to provide for sampling conditions necessary for an observer to 
follow scientific sampling protocols and thereby maintain the integrity 
of observer data collections. Nationwide regulations addressing vessels 
with conditions that are unsafe or inadequate for purposes of carrying 
an observer are found at 50 CFR 600.746. Nationwide regulations 
applicable to observers are also found under ``General Prohibitions'' 
at 50 CFR 600.725 (o), (r), (s), (t), and (u).

 Biological Impacts

    The regulations proposed would have no direct biological or 
physical impacts on the environment. However, they would provide, in 
the long term, a positive biological effect. Data collected by 
observers would improve the quantity and quality of data available for 
stock assessments. The collected data also would provide fisheries 
managers with information needed to minimize the risks of overfishing 
groundfish and non-groundfish species, and to develop effective 
rebuilding plans for depleted stocks.

Socio-economic Impacts

    If the observer program receives $2 million of funding annually, 
15-20 observers could be deployed each year. With this level of 
funding, NMFS's would provide observer training and pay the direct 
costs of deploying observers including salaries, payroll taxes, 
employment insurance, medical insurance, pension, and travel costs. 
Observers would be employed directly by NMFS or through a NMFS 
procurement contract. The observers' employer would be required to 
provide protection and indemnity insurance to cover bodily injury or 
property damage claims that may result from actions of the observer.
    Each vessel within the sector(s) of the groundfish fleet designated 
for coverage would be required to carry an observer when notified by 
NMFS or its designated agent, and to keep NMFS or its designated agent 
informed of its fishing schedule, including anticipated departure dates 
and times. Additional time would be required in port for selected 
vessels to arrange for the required observer coverage. Vessels that are 
selected to carry an observer would be responsible for providing living 
quarters and food equivalent to that which is provided to the crew. 
Some of the smallest groundfish vessels may find that crew members are 
displaced because limited bunk space must be allocated to the observer.
    Observers may be expected to perform multiple duties including 
estimating total catch, sampling for catch and discard species 
composition, collecting biological data and specimens, and collecting 
data on interactions with non-groundfish species, the operation and 
characteristics of the vessel, and fishing effort. To allow the 
observer to follow sampling protocols, vessels will need to provide 
adequate sampling facilities and unobstructed access to catch. This may 
result in minimal increased handling time if sorting of the catch needs 
to be slowed or centralized to allow an observer to collect samples. 
Space requirements for analyzing and storing samples may reduce the 
available work and storage space for vessel activities. It is likely 
that the smallest groundfish vessels would be most affected by space 
requirements. However, without minimal sample space, data quality 
cannot be assured. If it is determined that a class of vessel is too 
small to accommodate an observer, alternative sampling, observation or 
monitoring methods may need to be considered by NMFS.
    The safety, health, and well-being of observers while stationed 
aboard fishing vessels is of the utmost importance. Accordingly, 
observer health and safety provisions at 50 CFR 600.725 and 600.746 
will apply. Should a vessel fail to meet the requirements at 50 CFR 
600.746, the vessel would not be permitted to fish until NMFS 
determined that the safety requirements were met and the required 
observer was aboard. The trip-limit management regime, currently used 
in most Pacific Coast groundfish fisheries, generally applies over one 
or 2-month periods. Therefore, lost catch opportunity is unlikely if 
the vessel is delayed. However, in derby-style fisheries, such as the 
three-tiered sablefish fishery, lost catch opportunity may result if 
the vessel is delayed. Advance planning would allow vessels to correct 
minor problems without delaying the fishing trip.

Classification

    NMFS prepared an IRFA that describes the impact this proposed rule, 
if adopted, would have on small entities. The IRFA is intended to aid 
the agency in considering all reasonable regulatory alternatives that 
would minimize the economic impact on affected small entities. A copy 
of this analysis is available from the NMFS or the Council (see 
ADDRESSES).
    Impacts of this proposed rulemaking on the individual vessel depend 
on the nature and size of the program and the coverage approach that is 
chosen--all vessels in the groundfish fleet or a small portion of the 
vessels. If 20 observers are deployed annually, the number of vessels 
that could potentially carry an observer is estimated to range between 
60 (3 percent of all small entities) and 967 (46 percent of all small 
entities). A smaller number of vessels could be affected if the 
coverage strategy is for each observer to sample only one limited entry 
vessel over an entire cumulative trip limit period, then when the 
coverage strategy is for observers to sample all open access and 
limited entry vessel trips at random, assuming a vessel carries an 
observer for no more than one trip. The costs to the individual vessel 
are expected to range between $157 and $3334, depending on the coverage 
strategy and the number of days fished per year. An upper value of 
$11,044 per vessel is an extreme that would only occur if a vessel 
fished every day of the year and carried an observer at all times. It 
is most likely that the open access and limited entry groundfish fleets 
would be divided into sectors based on criteria such as gear type, 
fishing period, geographical location, or fishing strategy. Each sector 
may be required to have a different level

[[Page 55497]]

of observer coverage. Sectors with the greatest annual catch of 
groundfish or those that most frequently interact with priority 
species, for which there is a serious need for information, could be 
required to have a substantially higher proportion of observer coverage 
than the other sectors.
    The analysis assumes that only vessels that carry an observer would 
bear the burden. Among the 2,116 vessels in the open access and limited 
entry groundfish fisheries that could be selected to bear the cost to 
carry an observer, there are substantial differences in terms of the 
annual ex-vessel value of their catch, and therefore in the burden 
imposed.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). These requirements has 
been submitted to OMB for approval. Public reporting burden for these 
collections of information is estimated to average 5 minutes to make a 
toll-free call to provide either notification of departure on a fishing 
trip or notification of intent to cease participating in the fishery. 
This estimate includes the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Public comment is sought regarding: whether this proposed 
collections of information are necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have 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. Send comments on 
these or any other aspects of the collection of information to NMFS 
(see ADDRESSES) and to OMB (Attn: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall a 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. NMFS issued Biological Opinions 
(BOs) under the Endangered Species Act on August 10, 1990, November 26, 
1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 
15, 1999 pertaining to the impacts of the groundfish fishery on 
Sacramento River winter chinook, Snake River fall chinook, Snake River 
spring/summer chinook, Central Valley spring chinook, California 
coastal chinook, Puget Sound chinook, lower Columbia River chinook, 
upper Willamette River chinook, upper Columbia River spring chinook, 
Hood Canal summer run chum, Columbia River chum, Central California 
coastal coho, Oregon coastal coho, Snake River sockeye, Ozette Lake 
sockeye, southern California steelhead, south-central California 
steelhead, central California coast steelhead, upper Columbia River 
steelhead, Snake River Basin steelhead, lower Columbia River steelhead, 
California Central Valley steelhead, upper Willamette River steelhead, 
middle Columbia River steelhead, Umpqua River cutthroat trout, and the 
southwest Washington/Columbia cutthroat trout. The biological opinions 
concluded that implementation of the FMP for the Pacific Coast 
Groundfish Fishery is not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat. If implemented, this proposed rule 
would be within the scope of these consultations. Because the impacts 
of this action fall within the scope of the impacts considered in these 
BOs, additional consultations on these species are not required for 
this action.
    This action implements a data collection program and is not 
expected to result in any adverse effects on marine mammals. This 
proposed rule has been determined to be significant for purposes of 
Executive Order 12866. The President has directed Federal agencies to 
use plain language in their communications with the public, including 
regulations. To comply with this directive, we seek public comment on 
any ambiguity or unnecessary complexity arising from the language used 
in this rule. Send comments to William Stelle, Jr. (see ADDRESSES).

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: September 7, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 660 as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
     2. In Sec.  660.302, add the definitions for ``Active sampling 
unit,'' and ``Vessel manager,'' in alphabetical order, to read as 
follows:


Sec. 660.302   Definition.

    Active sampling unit means a portion of the groundfish fleet in 
which an observer coverage plan is being applied.
* * * * *
    Vessel manager means a person or group of persons whom the vessel 
owner has given authority to oversee all or a portion of groundfish 
fishing activities aboard the vessel.

     3. In Sec.  660.306, paragraph (y) is added to read as follows:


Sec. 660.306   Prohibitions.

* * * * *
    (y) Groundfish observer program. (1) Forcibly assault, resist, 
oppose, impede, intimidate, harass, sexually harass, bribe, or 
interfere with an observer.
    (2) Interfere with or bias the sampling procedure employed by an 
observer, including either mechanically or physically sorting or 
discarding 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.
    (4) Harass an observer by conduct that:
    (i) Has sexual connotations,
    (ii) Has the purpose or effect of interfering with the observer's 
work performance, and/or
    (iii) Otherwise creates an intimidating, hostile, or offensive 
environment. In determining whether conduct constitutes harassment, the 
totality of the circumstances, including the nature of the conduct and 
the context in which it occurred, will be considered. The determination 
of the legality of a particular action will be made from the facts on a 
case-by-case basis.
    (5) Fish for, land, or process fish without observer coverage when 
a vessel is required to carry an observer under Sec.  660.360(c).
    (6) 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

[[Page 55498]]

associated with the processing of fish, from sorting the catch to the 
storage of the finished product.
    (7) Fail to provide departure or cease fishing reports specified at 
Sec.  660.360(c)(2).
    (8) Fail to meet the vessel responsibilities specified at Sec.  
660.360(d).

    4. Section 660.360 is added to subpart G to read as follows:


 Sec. 660.360   Groundfish observer program.

    (a) General. The owner of a vessel subject to this part must ensure 
that the vessel operator and vessel manager comply with this section. 
The vessel owner, operator, and vessel manager are jointly and 
severally responsible for such compliance.
    (b) Purpose. The purpose of the Groundfish Observer Program is to 
allow observers to collect fisheries data deemed by the Northwest 
Regional Administrator, NMFS to be necessary and appropriate for 
management, compliance monitoring, and research in the groundfish 
fisheries and for the conservation of living marine resources and their 
habitat.
    (c) Observer coverage requirements-- (1) At-sea processors. 
[Reserved]
    (2) Catcher vessels. For the purposes of this section catcher 
vessels include all vessels using open access or limited entry gear 
that take and retain, possess or land groundfish at a processor(s) as 
defined at Sec.  660.302. When NMFS notifies the vessel owner, 
operator, permit holder, or the vessel manager of any requirement to 
carry an observer, the vessel may not take and retain, possess or land 
any groundfish without carrying an observer.
    (i) Departure report. Not less than 24 hours before departing on a 
fishing trip, the owner, operator, or vessel manager of each vessel 
that is required to carry an observer, or that is operating in a 
segment of the fleet that NMFS has identified as an active sampling 
unit, must provide NMFS or its designated agent with notification as 
specified by NMFS.
    (ii) Cease fishing report. Not more than 24 hours after ceasing the 
taking and retaining of groundfish with limited entry or open access 
gear in order to leave the fishery management area or to fish for 
species not managed under the Pacific Coast Groundfish Fishery 
Management Plan, the owner, operator, or vessel manager of each vessel 
that is required to carry an observer or that is operating in a segment 
of the fleet that NMFS has identified as an active sampling unit must 
provide NMFS or its designated agent with notification as specified by 
NMFS.
    (3) Vessels engaged in recreational fishing. [Reserved]
    (4) Waiver. The Northwest Regional Administrator may provide 
written notification to the vessel owner stating that a determination 
has been made to temporarily waive coverage requirements because of 
circumstances that are deemed to be beyond the vessel's control.
    (d) Vessel responsibilities. An operator of a vessel required to 
carry one or more observer(s) must:
    (1) Accommodations and food. Provide accommodations and food that 
are:
    (i) At-sea processors. [Reserved]
    (ii) Catcher vessels. equivalent to those provided to the crew.
    (2) Safe conditions. Maintain safe conditions on the vessel for the 
protection of observer(s) including adherence to all U.S. Coast Guard 
and other applicable rules, regulations, or statutes pertaining to safe 
operation of the vessel, and provisions at Secs.  600.725 and 600.746.
    (3) Observer communications. Facilitate observer communications by:
    (i) Observer use of equipment. Allowing observer(s) 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 observer(s) or the United States or designated agent.
    (ii) Communication equipment requirements for at-sea processing 
vessels. [Reserved]
    (4) Vessel position. Allow observer(s) access to, and the use of, 
the vessel's navigation equipment and personnel, on request, to 
determine the vessel's position.
    (5) Access. Allow observer(s) 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.
    (6) Prior notification. Notify observer(s) 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 observer specifically requests not to be 
notified.
    (7) Records. Allow observer(s) to inspect and copy any state or 
Federal logbook maintained voluntarily or as required by regulation.
    (8) Assistance. Provide all other reasonable assistance to enable 
observer(s) to carry out their duties, including, but not limited to:
    (i) Measuring decks, codends, and holding bins.
    (ii) Providing the observer(s) with a safe work area.
    (iii) Collecting bycatch when requested by the observer(s).
    (iv) Collecting and carrying baskets of fish when requested by the 
observer(s).
    (v) Allowing the observer(s) to collect biological data and samples 
when the procedure will not decrease the value of a significant portion 
of the catch.
    (vi) Providing adequate space for storage of biological samples.
    (9) At-sea transfers to or from processing vessels. [Reserved]
    (e) Procurement of observers services by at-sea processing 
vessels.[Reserved]
    (f) Certification of observers in the at-sea processing 
vessels.[Reserved]
    (g) Certification of observer contractors for at-sea processing 
vessels. [Reserved]
    (h) Suspension and decertification process for observers and 
observer contractors in the at-sea processing vessels. [Reserved]
    (i) Release of observer data in the at-sea processing vessels. 
[Reserved]
    (j) Sample station and operational requirements-- (1) Observer 
sampling station. This paragraph contains the requirements for observer 
sampling stations. The vessel owner must provide an observer sampling 
station that complies with this section so that the observer can carry 
out required duties.
    (i) Accessibility. The observer sampling station must be available 
to the observer at all times.
    (ii) Location. The observer sampling station must be located within 
4 m of the location from which the observer samples unsorted catch. 
Unobstructed passage must be provided between the observer sampling 
station and the location where the observer collects sample catch.
    (iii) Minimum work space aboard at-sea processing vessels. 
[Reserved]
    (iv) Table aboard at-sea processing vessels. [Reserved]
    (v) Scale hanger aboard at-sea processing vessels. [Reserved]
    (vi) Diverter board aboard at-sea processing vessels. [Reserved]
    (vii) Other requirements for at-sea processing vessels. [Reserved]
    (2) Requirements for bins used to make volumetric estimates on at-
sea processing vessels. [Reserved]
    (3) Operational requirements for at-sea processing vessels. 
[Reserved]
[FR Doc. 00-23629 Filed 9-13-00; 8:45 am]
BILLING CODE: 3510-22 -S