[Federal Register Volume 67, Number 179 (Monday, September 16, 2002)]
[Proposed Rules]
[Pages 58452-58477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22834]



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Part II





Department of Commerce





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National Oceanic Atmospheric Administration



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50 CFR Part 679



Fisheries of the Exclusive Economic Zone Off Alaska; Extend the Interim 
Groundfish Observer Program Through December 31, 2007, and Amend 
Regulations for the North Pacific Groundfish Observer Program; Proposed 
Rule

  Federal Register / Vol. 67, No. 179 / Monday, September 16, 2002 / 
Proposed Rules  

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DEPARTMENT OF COMMERCE

National Oceanic Atmospheric Administration

50 CFR Part 679

[Docket No. 020814193-2193-01; I.D. 070102C]
RIN 0648-AQ05


Fisheries of the Exclusive Economic Zone Off Alaska; Extend the 
Interim Groundfish Observer Program Through December 31, 2007, and 
Amend Regulations for the North Pacific Groundfish Observer Program

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS issues a proposed rule to extend through 2007 the 
existing regulations for the interim North Pacific Groundfish Observer 
Program (Observer Program), which otherwise expires December 31, 2002. 
This proposed rule would also amend regulations governing the Observer 
Program. These changes would clarify and improve observer certification 
and decertification processes; change the duties and responsibilities 
of observers and observer providers to eliminate ambiguities and 
strengthen the regulations; and grant NMFS the authority to place NMFS 
staff and other qualified persons aboard vessels and at shoreside or 
floating stationary plants to increase NMFS' ability to interact 
effectively with observers, fishermen, and processing plant employees. 
These parts of the action are necessary to improve Observer Program 
support of the management objectives of the Fishery Management Plan for 
the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and 
the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs) 
for those industry sectors already subject to such requirements. The 
intended effect is better managed fishery resources that result in the 
effective conservation of marine resources and habitat.

DATES: Comments on this proposed rule must be received by October 11, 
2002.

ADDRESSES:  Comments should be sent to Sue Salveson, Assistant 
Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori Gravel, or delivered to the Federal 
Building, 709 W 9th Street, Juneau, AK. Copies of the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) prepared for this proposed action also may be 
obtained from the same address. Send comments on information collection 
requests to NMFS and to OMB, Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC 20503 (Attn: 
NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT:  Sue Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    Groundfish fisheries in waters of the Gulf of Alaska (GOA) and 
Bering Sea Aleutian Islands management area (BSAI) are managed under 
quotas set annually for groundfish species and for several other 
species that the groundfish fishery is prohibited from retaining. 
Management programs have been implemented to allocate specified quotas 
among areas, seasons, gear types, processor and catcher vessel sectors, 
cooperatives, and individual fishermen. Annual quotas are based on 
stock assessments generated principally by NMFS and on recommendations 
from the North Pacific Fishery Management Council (Council). NMFS' 
Alaska Region is responsible for monitoring the progress of fisheries 
toward attainment of those quotas, and allocations thereof, and for 
closing the fisheries when quotas are reached. Stock assessments, quota 
monitoring, and management require collection of data from the fishery 
to account for all groundfish and prohibited species catch, including 
the portion of the catch that is discarded. North Pacific groundfish 
observers aboard vessels and at shoreside or floating stationary 
processors collect the data necessary for those purposes.
    Observer requirements have been in place in Alaska since the mid-
1970s, when the Magnuson Fishery Conservation and Management Act (later 
re-named the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act)) was implemented and monitoring and phasing out 
foreign groundfish fisheries in the U.S. Exclusive Economic Zone (EEZ) 
was a priority. As these foreign fisheries ended by 1991, the Observer 
Program infrastructure was changed to provide observer coverage for 
domestic vessels and shoreside processing plants participating in these 
Alaskan groundfish fisheries. A domestic Observer Program was developed 
by the Secretary in consultation with the Council and implemented 
through Amendment 18 to the GOA FMP and Amendment 13 to the BSAI FMP 
(54 FR 50386, December 6, 1989, and 55 FR 4839, February 12, 1990). The 
Observer Program established observer coverage requirements that have 
remained generally unchanged through 2002.
    High quality observer data are a cornerstone of Alaska groundfish 
fisheries management. However, NMFS' ability to maintain data quality 
assurance is constrained by several features of the current program 
structure. Concerns exist with allowing fishing companies to negotiate 
directly with observer companies for observer services because this 
creates a potential conflict of interest and reduces NMFS management 
controls over the observer companies' performance. Incentives for 
industry to use this procurement system to its advantage increase as 
observers assume greater responsibilities for monitoring individual 
vessel performance. Observer providers are under pressure to provide 
observers who meet their clients' needs rather than to focus on data 
quality assurance. Competitive pressure to reduce coverage costs to the 
industry keeps observer salaries low, resulting in reduced observer 
availability. Instability in the fishing and observer provider 
industries has created situations in the past where observers were not 
paid for work performed. Such circumstances adversely influence data 
quality by undermining observer morale and increasing observer work 
force turnover.
    NMFS has certified observer providers since 1990, but the current 
program structure prevents the agency from effectively monitoring 
provider operations to assess actual performance and to make necessary 
modifications. As a result, companies that may not meet Observer 
Program standards are allowed to continue business without significant 
risk of being decertified.
    The Council directed NMFS to address these concerns through 
development of an alternate program structure requiring all fishery 
participants to pay a fee toward observer coverage. Under this program, 
known as the Research Plan, NMFS would collect the fee and contract 
directly with observer companies, removing the direct link between the 
fishing industry and the observer providers. The Research Plan and 
collection of such a fee is authorized under Section 313 of the 
Magnuson-Stevens Act. The Council adopted the Research Plan in 1992, 
and NMFS approved and implemented this program in 1994.
    Industry concerns about the Research Plan arose during its 
development and subsequent implementation. These issues included: (1) 
Redistribution of

[[Page 58453]]

observer costs resulting from collection of fees based on a percentage 
of ex-vessel revenue; (2) no observer cost cap where additional 
observer coverage might be required in specified management programs; 
(3) limited coverage levels funded under the Research Plan that could 
constrain development of programs under consideration by the Council 
requiring increased observer coverage; and (4) increased costs of 
coverage due to contractual arrangements between NMFS and observer 
companies that would fall under the Service Contract Act (SCA).
    After consideration of these concerns, the Council voted to repeal 
the Research Plan in December 1995 and to refund the fees collected 
from the 1995 fisheries. The Council requested NMFS to develop a new 
plan to address the data integrity issues the Research Plan was 
intended to address. Under the new concept endorsed by the Council, a 
Joint Partnership Agreement (JPA) was developed during 1997 with the 
Pacific States Marine Fisheries Commission (PSMFC). Fishing operations 
would continue to pay coverage costs, but payment would be made to 
PSMFC, which would subcontract with observer companies for services.
    At its April 1996 meeting, the Council adopted an interim 
groundfish Observer Program, based on 1996 coverage requirements, that 
authorized mandatory groundfish observer coverage through 1997 in order 
to continue coverage requirements during the development of the JPA.
    PSMFC identified an unresolvable legal issue that forestalled 
efforts to proceed with the JPA. It determined that the risk of a 
lawsuit through its role as a third party to observer procurement 
arrangements would be too high, and NMFS could not sufficiently 
indemnify PSMFC against legal challenge. With the demise of the JPA, 
the Council, the Council's Observer Advisory Committee (OAC), and NMFS 
continued to advocate pursuit of an appropriate program structure that 
would address the issues that the Research Plan and the JPA were to 
resolve. During the interim period, the Observer Program was extended 
in 1998 with an expiration date of December 31, 2000.
    At its October 1999 meeting, the Council reconvened the OAC with a 
new chairman and membership. The Council charged the committee with 
reviewing the Observer Program in its entirety and developing 
appropriate alternatives to the current program to meet the needs and 
goals of the Council and NMFS, including those cited for the 
development of the Research Plan and the proposed JPA with PSMFC.
    In 2000, the interim Observer Program again was extended for two 
years with an expiration date of December 31, 2002. This action was 
approved with the expectation that a restructured program would be 
developed and implemented by that date. Although NMFS has been working 
with the OAC since March 2000 to develop an alternative program 
structure, little progress has been made, in large part due to 
limitations in existing statutory authority that would prohibit funding 
options other than those developed under the Research Plan. At its 
April 2002 meeting, the Council again adopted an extension of the 
interim Observer Program, as well as changes to the program to address 
several legal concerns, to clarify responsibilities of observers and 
observer providers and to authorize placement of NMFS staff aboard 
vessels or at shoreside or floating processors to support observer 
functions.
    This proposed action would extend the current interim program 
through December 31, 2007, to allow additional time for the development 
and analysis of alternatives that would address numerous issues facing 
the Observer Program, including the concern about conflict of interest 
eroding the quality of data collected by observers. The Council intends 
that a preferred alternative to address those issues and concerns will 
be selected and implemented by January 1, 2008.
    Further, this proposed action would improve regulations governing 
observer and observer provider responsibilities through modifications 
and additions to existing observer and observe provider duties and 
obligations. This action would further increase the ability of NMFS to 
interact effectively with observers, fishermen, and processing plant 
employees by granting NMFS authority to place NMFS staff and authorized 
individuals aboard groundfish and halibut vessels and at shoreside and 
stationary floating processors that require observer coverage.
    The objective of the proposed management actions is to ensure that 
the Observer Program will continue to perform and improve its critical 
scientific, conservation, and management functions. As noted above, 
data provided by the Observer Program are, collectively, a critical 
element in the conservation and management of groundfish, other living 
marine resources, and their habitat. These data are used for assessing 
the status of groundfish stocks, setting and monitoring groundfish 
quotas and allocations thereof, monitoring bycatch of non-groundfish 
species, assessing effects of the groundfish fishery on other living 
marine resources and their habitat, and assessing methods for improving 
the conservation and management of groundfish, of other living marine 
resources, and of their habitat. Additionally, management of the 
Western Alaska Community Development Quota (CDQ) program and American 
Fisheries Act (AFA) fisheries are structured to rely on observer data 
for individual vessel catch accounting. These data largely factor into 
the current level of confidence in the management of federally managed 
fisheries in Alaska. Accurate catch accounting results in prosecution 
of fisheries at harvest levels that better approach actual allocations 
without exceeding them, thereby maintaining resource management 
objectives and avoiding, to the extent practicable, losses of revenue 
from potential mis-allocations resulting from the underharvest of total 
allowable catch (TAC).
    Because of the critical uses of observer data, extending the 
Observer Program beyond 2002 is essential. Improvements to the Observer 
Program are necessary to address both perceived and actual sources of 
data quality problems. In the absence of observer data or of some 
equivalent alternative source of fishery data, NMFS cannot fulfill its 
conservation and management obligations, as prescribed under the 
Magnuson-Stevens Act and other law.
     Initial Permitting or Certification Determination.This proposed 
action seeks to establish through regulation an application format and/
or procedure for both observers and observer providers and to create a 
mechanism for an official, or board of officials, appointed by the 
Regional Administrator, Alaska Region, NMFS (Regional Administrator), 
to review applications, determine who meets the certification or 
permitting criteria, and issue the appropriate license. This action 
will also establish a permit application or certification appeals 
process independent from the Observer Program.
    Standards and criteria for issuance of certifications to observers 
or of permits to observer providers must be comprehensible and must 
describe clearly the certification/permitting procedures and 
requirements. This proposed action clearly establishes these 
requirements. If the applicant fails to meet the certification or 
permitting criteria, a decision to deny certification of an observer or 
an application for an observer provider permit must be issued in 
writing, including an explanation of

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the reasoning used in deciding to deny a certification or permit. 
Notice must be given to the applicant that the decision may be appealed 
upon request.
    The denial of an observer certification or observer provider permit 
application would be appealable. The Regional Administrator, Office of 
Administrative Appeals (OAA), would review denials for both observers 
and observer providers upon request. Each decision from the OAA would 
be referred to the Regional Administrator who would uphold or overturn 
the OAA and make the final agency determination. Any further appeal 
could be taken to the United States District Court. Processes for 
appeals are described below.
    Duration of an Observer's Certification or an Observer Provider's 
Permit.The duration of a permit or certification is determined by the 
agency. Several factors may influence this, including the 
administrative burden for issuing those permit or certification 
licenses, the character of the work being performed by the licensee, 
and the duration of the program under which the permit or certification 
is issued. Currently, an observer=s certification expires repeatedly 
over the course of his or her career. Observer provider certifications 
have been renewed by rulemaking in recent years. Detailed discussion of 
the duration of an observer's certification and an observer provider's 
permit is found below.
    Clarity of Performance Standards. This proposed action seeks to 
clarify language of observer and observer provider performance 
standards, including responsibilities and prohibitions, which are 
detailed below.
    Due Process in Permit or Certification Sanctions. Current 
regulations at Sec.  679.50 establish an appeals process in cases of 
observer or observer-provider certification suspension or 
decertification. These processes are administered within the same 
offices of the Observer Program Office and Alaska Regional Office that 
make the initial determinations for suspension and decertification. 
This proposed action seeks to establish through regulation appropriate 
independent appeals processes for both observers and observer 
providers.
    Administrative Record. Reviewers such as the OAA or a court must be 
able to ascertain both the facts and standards used by the Observer 
Program and the way it applied the standards to the facts of the 
individual case. While suspension or decertification records may be 
available to the public under the Freedom of Information Act (FOIA), 
subject to FOIA and Privacy Act restrictions, the observer or observer 
provider who is directly affected by an agency action should be 
provided with all records relevant to the decision record unless 
exempted.
    Permitting Procedures and Sanctions for North Pacific Groundfish 
Observer Providers. The proposed process for evaluation of observer 
provider applications and issuance of permits would be improved through 
clearer application requirements, defined evaluation criteria, an 
evidentiary period for submitting supplemental information, required 
written decisions by NMFS, and an administratively separate appeals 
process.
    Permit vs. Certification for Observer Providers. This proposed 
action would change the nomenclature for observer provider licensing 
that will result in the providers being ``permitted'', rather than 
``certified'' to provide observer services to industry. Just as 
commercial fishing is authorized by a permit, observer providers would 
receive a permit from the agency, clarifying the role of observer 
providers in the structure of NMFS fishery regulations. Whereas a 
certification grants permission to the holder to perform tasks with 
some minimum required training, a permit is more business-oriented, 
granting permission to perform activities that do not require training 
by the agency.
    Permit Application Requirements. Under the proposed action, new 
persons wishing to provide observer services in Alaska groundfish 
fisheries would be required to apply for a permit that authorizes this 
activity. Applications may be submitted at any time.
    Observer providers previously certified by NMFS to provide 
observers and who actively deployed observers in Alaska groundfish 
fisheries in 2002 would be considered to be qualified for these permits 
in 2003 by their demonstrated performance and their existing 
documentation on file. Such providers would not be required to submit a 
new application, and the owner(s) would be issued a permit based on 
their existing record. These observer providers would continue to be 
accountable for any violations of regulations that occurred while they 
were functioning as NMFS-certified observer providers prior to January 
1, 2003. Upon issuance of a new observer provider permit, these 
observer provider permit holders would be held accountable to all 
applicable regulations promulgated by NMFS while participating in the 
Observer Program. Former program participants, who were NMFS-certified 
providers, would be held accountable to only those regulations in force 
at the time of their participation in the program.
    Because accurate identification of the business' ownership would be 
required for issuance of the permit, each existing NMFS-certified 
provider would be required to correct or update any changes to 
ownership, management, and/or contact information within 30 days of 
receiving a permit under Sec.  679.50(i)(1)(ii)(A) of the proposed 
rule. Subsequent changes or expansions in ownership of an observer 
provider would require the original owner to submit a new application 
prior to the effective date of the new ownership arrangement.
    A new applicant for an observer provider permit would be required 
to submit a narrative application that contains information necessary 
for NMFS to evaluate the applicant to determine if he or she is 
qualified to be an observer provider. Observer providers contribute an 
important service to NMFS by recruiting, hiring, and deploying high-
quality individuals to serve as observers. NMFS must ensure that 
observer providers meet minimum requirements so that this important 
service is consistently maintained. NMFS would permit all applicants 
who: (1) demonstrate that they understand the scope of the regulations 
they will be held to; (2) document how they will comply with those 
regulations; (3) demonstrate that they have the business infrastructure 
necessary to carry out the job; (4) are free from conflict of interest; 
(5) do not have past performance problems on a Federal contract or any 
history of decertification as either an observer or observer provider; 
and (6) are free from criminal convictions for certain serious offenses 
that could reflect on their ability to carry out the role of an 
observer provider.
    Each application for an observer provider permit must contain 
several elements. These elements and an explanation of need are as 
follows:
    (A) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and staff. If the 
applicant is a corporation, the articles of incorporation must be 
provided. If the applicant is a partnership, the partnership agreement 
must be provided.
    This information is necessary to clearly identify the permit 
recipient, organization management, and appropriate contacts for 
particular

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issues. Occasionally, operational and compliance problems arise with 
observer providers, and NMFS attempts to solve these problems at an 
early stage by contacting appropriate parties in the observer 
provider's organization. Organizational and management information 
helps NMFS minimize compliance problems with observer providers. When a 
business is based outside the United States, an authorized agent must 
be identified for the observer provider. An authorized agent means a 
person appointed and maintained within the United States who is 
authorized to receive and respond to any legal process issued in the 
United States to an owner or employee of an observer provider.
    (B) Contact information for the owner, authorized agent, and 
company information. This information includes mailing addresses, 
physical location of the company, telephone and fax numbers, and 
business e-mail address for each office and authorized agent.
    This information enables NMFS to communicate with the owner(s) for 
official correspondence as well as with contact persons for day-to-day 
operations at each of the applicant's locations.
    In addition, an applicant with ownership based outside of the 
United States would be required to identify an authorized agent and 
provide contact information for that agent, including mailing address, 
and phone and fax numbers where the agent can be contacted for official 
correspondence.
    (C) A signed acknowledgment, under penalty of perjury, from each 
owner, or owners, board members and officers, of a corporation, 
certifying that they are free from a conflict of interest as defined in 
50 CFR 679.50(i)(3).
    This acknowledgment will help ensure that NMFS provides permits 
only to applicants who are free from a conflict of interest and will 
ensure that the applicants are aware of this provision of the 
regulations. NMFS would provide an acknowledgment template form, which 
applicants could use to satisfy this part of the application.
    (D) A statement signed under penalty of perjury from each owner, or 
owners, board members and officers of a corporation, describing any 
criminal convictions, performance ratings on any Federal contracts held 
by the observer provider, and any previous decertification while 
working as an observer or observer provider.
    These declarations will help ensure that NMFS provides permits only 
to applicants who do not have a record of poor performance or certain 
criminal behavior. Although NMFS would not perform background checks 
unless compelling reasons dictated, screening such declarations will 
assist NMFS in permitting applicants who will help promote honesty and 
integrity in the Observer Program.
    (E) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to recruiting, hiring, deployment, 
and personnel administration.
    This background information would aid NMFS in determining how much 
assistance the provider would require to remain in compliance with the 
regulations. For example, one recent applicant had previous experience 
providing observers to Canada, but not to the United States, and NMFS 
worked with the applicant to ensure that it understood U.S. fisheries 
management processes and its obligations and responsibilities as an 
observer provider under NMFS regulations.
    (F) A description of the applicant's ability to carry out the 
responsibilities and duties of an observer provider, and the 
arrangements to be used to achieve such responsibilities and duties.
    This information would demonstrate the applicant's understanding of 
the regulations and the applicant's ability to comply with these 
regulations. NMFS views this information as a critical part of the 
application because each observer provider's compliance with regulatory 
responsibilities is important for the overall program to be successful. 
Specific explanations of how the applicant intends to comply with each 
component of the regulations would be required for a complete 
application.
    The importance of elements contained in paragraphs A and B 
necessitates that NMFS add a new responsibility for the observer 
providers. This new responsibility would require observer providers to 
notify and update NMFS through the Observer Program Office within 30 
days when any of the required elements listed in Sec.  
679.50(i)(1)(ii)(A) and (B) of the proposed rule change. This 
requirement will help facilitate the communication between NMFS and 
observer providers, which is necessary to ensure that NMFS and observer 
providers continue to work well together.
    Observer Provider Permit Application Evaluation. The Regional 
Administrator would appoint members from NMFS' staff to a review board 
that would evaluate applications for an observer provider permit. The 
board would evaluate each application to determine whether it is 
complete and whether established criteria are met (see below) and could 
seek further clarification from the applicant if necessary. Once the 
board's review is complete, it would make a determination on the 
application.
    The criteria that would be used to evaluate an application and an 
explanation of why each criterion is needed are:
    (1) Absence of conflict of interest. Observer providers cannot have 
a conflict of interest as defined under Sec.  679.50(i)(3) of the 
proposed rule. This provision is included as an evaluation criterion to 
ensure a permit is not granted to someone who would be in violation of 
NMFS' regulations. More importantly, this criterion and the conflict of 
interest regulations helps promote and preserve the integrity of the 
Observer Program.
    (2) Absence of criminal convictions related to embezzlement, theft, 
forgery, bribery, falsification, or destruction of records, making 
false statements or receiving stolen property; or the commission of any 
other offense indicating a lack of business integrity or business 
honesty that would seriously and directly affect the fitness of an 
applicant in providing observer services under this section. This 
evaluation criterion would help eliminate applicants who have a record 
of criminal behavior, which could raise questions about the integrity 
of the observer providers.
    (3) Performance ratings on a Federal contract. This evaluation 
criterion would help eliminate applicants with a history of past 
performance problems as a Federal contractor.NMFS believes that a past 
performance problem on a Federal contract should be a consideration in 
determining whether to grant an observer provider permit because of the 
further risk of failure as an observer provider. Observer provider 
failures are disruptive to the industry and to NMFS' groundfish 
management and are catastrophic to the individual observers employed by 
that provider. NMFS seeks to minimize that risk.
    (4) Absence of any history of decertification as either an observer 
or observer provider. NMFS believes that a previous decertification as 
an observer or observer provider should exclude an applicant from 
consideration because of the further risk of failure. Historically, 
only one NMFS-certified provider has been decertified, and this 
provision ensures that the persons involved would not seek to become 
permitted under this new system.
    The review board would make an initial administrative determination 
to approve the application or provide

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written notice of an evidentiary period for the applicant to provide 
additional information or evidence to support the application. If the 
review board approves the application, NMFS would issue an observer 
provider permit to the applicant. The applicant would then be 
authorized to provide observers to industry and would also be subject 
to the regulations governing observer providers.
    If the review board provides an applicant with written notice of an 
evidentiary period to provide further information, it would be due to 
the application being deficient in some manner. The written notice 
would identify where the application is deficient and provide the 
applicant with a 60-day period to provide additional information to 
correct the deficiency. After that 60-day period, the review board 
would review any additional material provided and issue an Initial 
Administrative Determination (IAD) that would either approve or deny 
the application.
    An applicant for an observer provider permit who is issued an IAD 
denying the application may appeal the determination to the OAA. Under 
existing regulations at Sec.  679.43, the OAA would review the appeal 
and make an independent judgement. There is no right to administrative 
appeal for the OAA decision. However, the Regional Administrator, on 
his or her own initiative, may overturn the OAA decision; in this case, 
the Regional Administrator's decision would become final agency action. 
This Regional Administrator discretion would be required to be 
exercised within 30 days. If the Regional Administrator did not act to 
overturn the OAA decision within 30 days, the OAA decision would become 
the final agency action. Final agency actions can be further appealed 
to the U.S. District Court. As part of the proposed changes to this 
appeals process, regulations at Sec.  679.43 would also be amended to 
provide for the establishment of an Address of Record for the observer 
provider applicant who wishes to appeal an adverse IAD.
    Observer Provider Permit Duration. A permit issued to an observer 
provider would remain effective through December 31, 2007, unless: (1) 
a new owner of the observer provider company requires that a new permit 
application process be initiated under Sec.  679.50(i)(1)(vi) of the 
proposed rule; (2) the permitted provider ceases to deploy observers to 
groundfish fisheries in the North Pacific during a period of 12 
continuous months under Sec.  679.50(i)(1)(vii) of the proposed rule; 
or (3) the permit issued to an observer provider is suspended or 
revoked under Sec.  679.50(i)(1)(viii) of the proposed rule.
    If a permit lapses after a period of 12 months of inactivity as 
described above, NMFS would issue an IAD to the permit holder stating 
that NMFS records indicate that the permit had lapsed and that the 
permit holder has the opportunity to appeal the determination. The IAD 
would also detail the appeals process available to the permit holder. 
Permit holders who appealed this IAD would be issued an interim permit 
so they could operate while their appeal was reviewed.
    Observer Provider Sanctions. Current regulations at Sec.  679.50(j) 
set forth the procedures for suspension and decertification of 
certified observer providers. These procedures currently are 
administered by the Alaska Regional Office in consultation with the 
Observer Program Office. Authority to hear appeals from such decisions 
also resides with the Regional Administrator. However, potential 
violations of performance standards by an observer provider are 
investigated by NMFS Enforcement and referred to General Counsel for 
Enforcement, Alaska Region (GCEL/AK). GCEL/AK may initiate civil 
prosecution proceedings and a Notice of Violation and Assessment (NOVA) 
may be issued to the provider. The NOVA advises the provider of the 
alleged violation and the monetary amount of the assessment. The NOVA 
also describes the appeals process, which is presided over by an 
Administrative Law Judge (ALJ).
    The Observer Program Office currently refers potential regulatory 
violations regarding observer providers, including those serious enough 
to warrant suspension or revocation of the provider's permit, to NMFS 
Enforcement for investigation. NMFS Enforcement develops the facts for 
a potential prosecutorial action and forwards the case to GCEL/AK, who 
makes prosecutorial decisions in consultation with the Observer Program 
Office. GCEL/AK issues NOVAS or Notices of Permit Sanctions (NOPS), 
depending on the severity of the violation, and its determination that 
a provider's permit to provide observers to the North Pacific 
groundfish industry should be suspended or revoked. The primary change 
in this action regarding observer provider permit sanctions is that 
permit revocation or suspension would be implemented through this 
enforcement process rather than through a separate administrative 
process conducted by the Observer Program Office and the Alaska 
Regional Office. Exclusive use of the agency=s enforcement process for 
permit sanctions would enhance the agency's ability to obtain 
compliance with its regulations and create a consistent permit 
suspension and revocation process.
    The NOVA and NOPS procedures are established at 15 CFR part 904. 
The agency proposes to remove all the observer provider suspension and 
decertification procedure regulations at Sec.  679.50, to the extent 
they are replaced by 15 CFR part 904. The Observer Program/Alaska 
Regional Office would not maintain its own process for suspension or 
revocation of an observer provider permit.Accordingly, the agency would 
not need a designated official for these actions. Under 15 CFR part 
904, appeals of enforcement actions are heard through an ALJ system. 
The ALJ is an entity independent from NOAA and the observer provider. 
The ALJ's decision is appealable to the U.S. District Court.
    Certification Requirements and Procedures for North Pacific 
Groundfish Observers. Individuals wishing to be certified as North 
Pacific Groundfish Observers currently are required by regulation to 
complete an observer training course and to meet other requirements 
established by the Observer Program Office. Such certification allows 
them to be deployed through private observer provider companies to 
vessels and plants in Alaska that harvest or process groundfish and 
require observer coverage. NMFS provides certification training 
throughout the calender year, depending on the availability of observer 
training sessions and training needs.
    Observers who completed sampling activities between June 30, 2001, 
and December 31, 2002, and have not since been decertified or had their 
certification suspended would be considered to have met certification 
requirements. NMFS would issue each of these observers a new 
certification and certification training endorsement prior to their 
first deployment after December 31, 2002. Under the proposed 
regulations these observers would be required to obtain subsequently 
the appropriate endorsements (described below) to their certification 
prior to each subsequent deployment. These observers would be subject 
to any enforcement actions for violations that occurred prior to 
January 1, 2003, as well as to all regulations governing observers 
beginning January 1, 2003.
    Certification Process. The proposed changes to regulations 
reorganize some current observer certification procedures and add some 
additional requirements. The Observer Program

[[Page 58457]]

would continue to require that new candidates for observer 
certification meet standards developed to ensure that individuals will 
be able to complete their duties and responsibilities and work safely 
in the marine environment. Under the proposed action, NMFS would 
certify individuals who:(1) meet any educational or other requirements 
for registration in an observer certification training class; (2) 
successfully complete the NMFS-approved observer training class; and 
(3) meet all pre-deployment requirements established by the Observer 
Program.
    Substantiating information for certification, with one exception, 
would be required to be submitted to NMFS by the observer provider at 
least 5 working days prior to the beginning of a scheduled observer 
training. If the required observer information is not submitted within 
5 working days prior to the beginning of a scheduled training session, 
the observer provider could still register a candidate for a subsequent 
training session, provided all relevant materials are submitted in a 
timely manner for that training session. The exception to the above 
submission deadline is that the required, signed statement from a 
licensed physician asserting that the observer candidate is in proper 
health and physical condition for the job must be submitted prior to 
certification. While individuals whose certification has expired 
previously can be re-certified by successfully completing specified 
requirements, an individual who has previously been decertified cannot 
obtain a new observer certification.
    The determination to either certify or deny certification would be 
made by a certification official within the Observer Program, appointed 
by the Regional Administrator. The certification official would be 
familiar with the content of the training sessions. As is current 
practice, certification would be issued when the candidate has 
demonstrated his or her abilities and has met all certification 
requirements.
    If a candidate fails training, he or she would be notified in 
writing on or before the last day of training. Such notification would 
indicate the reasons the candidate failed the training and whether the 
candidate would be allowed to retake the training. If the candidate is 
allowed to retake the training, the conditions for re-training would be 
specified in the notice. If a determination is made that the candidate 
may not pursue further training, notification will be in the form of an 
IAD denying certification. Observer providers would continue to be kept 
informed of developing issues that might cause denial of a 
certification, so they can better plan to meet their clients' needs.
    Candidates' appeals from an IAD to deny certification would be made 
to the OAA rather than to the Observer Program Office, as is the 
current practice. Regulations at Sec.  679.43 would be amended to 
provide for the establishment of an Address of Record for the observer 
or observer candidate who wishes to appeal an adverse IAD. A candidate 
who appeals the IAD and prevails would not receive certification until 
after the final resolution of that appeal. If unsuccessful, the 
candidate could further appeal to the U.S. District Court.
    Endorsements. Basic observer certification currently expires after 
each deployment, and additional training and briefing requirements 
exist to ``re-certify'' observers and ensure that they are prepared for 
each deployment. Additionally, observers are required to obtain an 
additional certification to qualify as observers in AFA and CDQ 
fisheries. These additional certifications are maintained by an 
observer's successful achievement of specified deployment standards. An 
observer's performance is evaluated by NMFS after each deployment.
    The proposed action would replace the current system of pre-
deployment certification with a system of certification endorsements. 
Under the proposed rule, observers would receive a certification that 
would expire with the expiration of the proposed interim Observer 
Program on December 31, 2007. To ensure that observers are properly 
prepared for each assignment, the following series of endorsements to 
the certification would be required to deploy as an observer:
    (1) Certification training endorsement. A certification training 
endorsement would signify the successful completion of the training 
course required to obtain observer certification. This endorsement 
would be granted with the initial issuance of an observer certification 
and would be required for any deployment as an observer in the Bering 
Sea and Aleutian Islands groundfish fisheries or in the Gulf of Alaska 
groundfish fisheries. This endorsement would expire when the observer 
has not been deployed and performed sampling duties as required by the 
Observer Program for a period of time, specified by the Observer 
Program Office, after his or her most recent debriefing. An observer 
may renew this endorsement by successfully completing the certification 
training course once more.
    (2) Annual general endorsements. Each observer would be required to 
obtain an annual general endorsement to his or her certification prior 
to his or her first deployment within any calendar year subsequent to a 
year in which a certification training endorsement is obtained. To 
obtain an annual general endorsement, an observer would be required to 
successfully complete the annual briefing requirements specified in 
writing by the Observer Program Office.
    (3) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or an annual briefing would be 
required to receive a deployment endorsement to his or her 
certification prior to any subsequent deployments that year. An 
observer would be able to obtain a deployment endorsement by 
successfully completing all pre-cruise briefing requirements, 
including, but not limited to, all briefing attendance requirements, 
and by maintaining all performance and conduct standards. These 
requirements would be specified in writing by the Observer Program 
Office during the observer's most recent debriefing.
    (4) Level 2 endorsements. Observers wishing to deploy aboard 
vessels participating in CDQ fisheries and in AFA fisheries as ``lead'' 
observers currently are required to meet specific levels of observer 
experience and to successfully complete additional training to obtain a 
``CDQ'' certification. Under this proposed action, these requirements 
would not change, with one nomenclature exception. The term ``CDQ 
certification'' would be changed to ``Level 2 endorsement'' on the 
observer's basic certification. This change reflects the similarities 
in the additional level of experience and training required to monitor 
the CDQ and AFA fisheries. The term ``Level 2'' is both more generic in 
terms of applicability to various fisheries management programs, 
specifically denoting an observer with a higher level of experience and 
training. The certification would be changed to an endorsement for the 
reasons stated above. Similar changes for ``Level 2'' ``lead'' observer 
certifications would be made.
    One minor change to criteria for obtaining the Level 2 endorsement 
is that an observer would be required to receive an evaluation rating 
that the observer has met NMFS' deployment expectations for his or her 
most recent deployment. Current regulations require a deployment rating 
of ``1'' or ``2'' (meets or exceeds NMFS' deployment expectations), but 
the Observer Program has changed its deployment rating system. This 
action would require that

[[Page 58458]]

an observer receive an evaluation by NMFS that indicated that the 
observer's performance met Observer Program expectations for that 
deployment.
    Observer Sanctions. Observer suspension and decertification 
proceedings currently occur entirely within the Observer Program, 
including both initial determinations on sanctions and appeals of those 
determinations. Only criminal proceedings against observers under 15 
CFR part 904 occur outside the Observer Program, with NMFS Enforcement, 
U.S. Department of Justice and NOAA General Counsel conducting those 
efforts. NMFS proposes to maintain initial observer suspension and 
decertification determinations within the purview of the Observer 
Program but would move appeals of these determinations to the OAA to 
provide more assurance of objectivity in final decision making. The 
Observer Program would continue to address less serious observer 
misconduct or poor performance issues through policies and procedures 
that currently are in practice. These written policies are available to 
observers during certification training and subsequently from the 
Observer Program Office upon request.
    Under the proposed action, the Regional Administrator would appoint 
an observer suspension/decertification officer or officers to review 
cases referred by Observer Program staff for suspension or 
decertification, or both, and to issue a written notice to the observer 
if NMFS intends to proceed with the action. If the action is pursued, 
this notice would detail the reasons for and the terms of the action. 
The notice would also indicate to the observer his or her right to 
appeal the decision and the procedure for filing such an appeal. The 
observer would have an opportunity to present documentation that would 
show mitigating circumstances or refute the evidence before the 
official. Under this procedure, the Observer Program Office would 
create a written record, but would not hold hearings. If the observer 
does not contest the proposal to decertify or suspend the certificate, 
the Observer Program's initial decision would become final.
    If the observer wanted to appeal an adverse initial determination 
by the Observer Program and the suspension decertification officer(s), 
the decision would be referred to the OAA. The OAA would provide a 
hearing officer who has special training in reviewing administrative 
records. Additionally, the OAA could preside over fact-finding 
hearings, hear testimony or review evidence and issue written decisions 
with determinations of factual issues and application of the 
regulations. The OAA's determination would be referred to the Regional 
Administrator, who can uphold or overturn the OAA's decision in making 
the final agency determination.
    The OAA system would provide an efficient mechanism for decisions 
on observer appeals, suited to observers' needs for a straight-forward 
procedure and for pursuing appeals and resolution. Rather than 
resulting in monetary fines, these cases result in administrative 
sanctions, which the OAA is appropriately prepared to address.
    The agency would continue to refer to NMFS' Alaska Enforcement 
Division (AED) certain cases for investigation that may involve serious 
observer misconduct, such as the exceptional cases where observers 
should be prosecuted for criminal offenses or receive monetary 
sanctions for egregious violations of the regulations. These would be 
instances of fraud, assault, or other more serious violations. 
Prosecution of these cases would continue to be handled by NOAA/GCEL/
AK, with appeals directed to ALJs. Successful prosecution of these 
cases would result in penal sanctions. Penal sanctions are those 
penalties that result from criminal prosecution or from civil 
prosecution that result in monetary fines. Predictably, given past 
experience, these would be very rare actions. Only one such observer 
case has been referred to GCEL/AK.
    Observer and Observer Provider Responsibilities. Several existing 
regulations at Sec.  679.50(i) and (j) that specify observer and 
observer provider responsibilities would be modified to clarify NMFS' 
intent and to eliminate ambiguities. Four new responsibilities, 
described below, are proposed to better address observer and observer 
provider performance issues of particular concern. Provisions in the 
proposed action that would increase NMFS' management controls over 
observer providers and observers would be expected to maintain or 
increase the quality of the data provided by the Observer Program.
    Modifications to existing responsibilities. Tables 1 and 2 contain 
side by side comparisons of existing regulatory text for observer and 
observer provider responsibilities with proposed modified regulatory 
text.

        Table 1.--Comparison of Existing and Proposed Regulatory Text Governing Observer Responsibilities
----------------------------------------------------------------------------------------------------------------
                                            Existing regulatory   Proposed citation       Proposed modified
   Current citation for 50 CFR 679.50              text           for 50 CFR 679.50        regulatory text
----------------------------------------------------------------------------------------------------------------
(h)(2)(ii)(A)...........................  Observers must             (j)(2)(ii) (A)  Observers must perform
                                           diligently perform                         their assigned duties as
                                           their assigned duties                      described in the Observer
                                                                                      Manual or other written
                                                                                      instructions from the
                                                                                      Observer Program Office.

[[Page 58459]]

 
(h)(2)(ii)(D)...........................  Observers must refrain      (j)(2)(ii)(D)  Observers must refrain from
                                           from engaging in any                       engaging in any illegal
                                           illegal actions or                         actions or any other
                                           any other activities                       activities that would
                                           that would reflect                         reflect negatively on
                                           negatively on their                        their image as
                                           image as professional                      professional scientists,
                                           scientists, on other                       on other observers, or on
                                           observers, or on the                       the Observer Program as a
                                           Observer Program as a                      whole. This includes, but
                                           whole. This includes,                      is not limited to:
                                           but is not limited                        (1) Violating the observer
                                           to: (1) Engaging in                        drug and alcohol policy
                                           excessive drinking of                      established by the
                                           alcoholic                                  Observer Program;
                                           beverages(2) Engaging                     (2) Engaging in the use,
                                           in the use or                              possession, or
                                           distribution of                            distribution of illegal
                                           illegal drugs; or (3)                      drugs;
                                           Becoming physically                       (3) Engaging in physical
                                           or emotionally                             sexual contact with
                                           involved with vessel                       personnel of the vessel or
                                           or processing                              processing facility to
                                           facility personnel.                        which the observer is
                                                                                      assigned, or with any
                                                                                      vessel or processing plant
                                                                                      personnel who may be
                                                                                      substantially affected by
                                                                                      the performance or
                                                                                      nonperformance of the
                                                                                      observer's official
                                                                                      duties.
----------------------------------------------------------------------------------------------------------------


   Table 2. Comparison of existing and proposed regulatory text governing observer provider responsibilities.
----------------------------------------------------------------------------------------------------------------
                                            Existing Regulatory   Proposed citation       Proposed Modified
          Current 50 CFR 679.50                    Text           for 50 CFR 679.50        Regulatory Text
----------------------------------------------------------------------------------------------------------------
(i)(2)(i)...............................  Recruiting,             (i)(2)(i) (A) and  Observer providers must
                                           evaluating, and                      (B)   provide qualified
                                           hiring qualified                           candidates to serve as
                                           candidates to serve                        observers. (A) To be
                                           as observers,                              qualified, a candidate
                                           including minorities                       must have:
                                           and women.                                (1) a Bachelor's degree or
                                                                                      higher from an accredited
                                                                                      college or university with
                                                                                      a major in one of the
                                                                                      natural sciences;
                                                                                     (2) have successfully
                                                                                      completed a minimum of 30
                                                                                      semester hours or
                                                                                      equivalent in applicable
                                                                                      biological sciences with
                                                                                      extensive use of
                                                                                      dichotomous keys in at
                                                                                      least one course;
                                                                                     (3) have successfully
                                                                                      completed at least one
                                                                                      undergraduate course each
                                                                                      in math and statistics
                                                                                      with a minimum of 5
                                                                                      semester hours total for
                                                                                      both;
                                                                                     and (4) computer skills
                                                                                      that enable the candidate
                                                                                      to work competently with
                                                                                      standard database software
                                                                                      and computer hardware. (B)
                                                                                      Prior to hiring an
                                                                                      observer candidate, the
                                                                                      observer provider must:
                                                                                     (1) provide to the
                                                                                      candidate copies of NMFS-
                                                                                      provided pamphlets
                                                                                      describing observer
                                                                                      duties;
                                                                                     and (2) provide to the
                                                                                      candidate a copy of the
                                                                                      Observer Program's drug
                                                                                      and alcohol policy.
                                                                                      Observer job pamphlets and
                                                                                      the drug and alcohol
                                                                                      policy are available from
                                                                                      the Observer Program
                                                                                      Office at the address
                                                                                      listed in paragraph (e)(3)
                                                                                      of this section.

[[Page 58460]]

 
(i)(2)(viii)............................  In cooperation with          (i)(2)(i)(C)  A written contract must
                                           vessel or processing                       exist between the observer
                                           facility owners,                           provider and each observer
                                           ensuring that all                          employed by the observer
                                           observers' in-season                       provider. The contract
                                           catch messages and                         must be signed by the
                                           other required                             observer and observer
                                           transmissions between                      provider prior to the
                                           observers and NMFS                         observer's deployment and
                                           are delivered to NMFS                      must contain the following
                                           within a time                              provisions for continued
                                           specified by the                           employment:
                                           Regional                                  (1) that the observer
                                           Administrator.                             comply with the Observer
                                                                                      Program's drug and alcohol
                                                                                      policy;
                                                                                     (2) that all the observer's
                                                                                      in-season catch messages
                                                                                      between the observer and
                                                                                      NMFS are delivered to the
                                                                                      Observer Program Office at
                                                                                      least every 7 days, unless
                                                                                      otherwise specified by the
                                                                                      Observer Program; and
                                                                                     (3) that the observer
                                                                                      completes in-person mid-
                                                                                      deployment data reviews,
                                                                                      unless:
                                                                                     (i) the observer is
                                                                                      specifically exempted by
                                                                                      the Observer Program, or
                                                                                     (ii) the observer does not
                                                                                      at any time during his or
                                                                                      her deployment travel
                                                                                      through a location where
                                                                                      Observer Program staff are
                                                                                      available for an in-person
                                                                                      data review. The written
                                                                                      contract must further
                                                                                      require that the observer
                                                                                      complete a phone or fax
                                                                                      mid-deployment data review
                                                                                      as described in the
                                                                                      Observer Manual.
(i)(2)(ix)..............................  Ensuring that                   (i)(2)(C)  A written contract must
                                           observers complete                         exist between the observer
                                           mid-deployment data                        provider and each observer
                                           reviews when                               employed by the observer
                                           required.                                  provider. The contract
                                                                                      must be signed by the
                                                                                      observer and observer
                                                                                      provider prior to the
                                                                                      observer's deployment and
                                                                                      must contain the following
                                                                                      provisions for continued
                                                                                      employment:
                                                                                     (1) that the observer
                                                                                      comply with the Observer
                                                                                      Program's drug and alcohol
                                                                                      policy;
                                                                                     (2) that all the observer's
                                                                                      in-season catch messages
                                                                                      between the observer and
                                                                                      NMFS are delivered to the
                                                                                      Observer Program Office at
                                                                                      least every 7 days, unless
                                                                                      otherwise specified by the
                                                                                      Observer Program; and
                                                                                     (3) that the observer
                                                                                      completes in-person mid-
                                                                                      deployment data reviews,
                                                                                      unless:
                                                                                     (i) the observer is
                                                                                      specifically exempted by
                                                                                      the Observer Program, or
                                                                                     (ii) the observer does not
                                                                                      at any time during his or
                                                                                      her deployment travel
                                                                                      through a location where
                                                                                      Observer Program staff are
                                                                                      available for an in-person
                                                                                      data review. The written
                                                                                      contract must further
                                                                                      require that the observer
                                                                                      complete a phone or fax
                                                                                      mid-deployment data review
                                                                                      as described in the
                                                                                      Observer Manual.

[[Page 58461]]

 
(i)(2)(x)...............................  Ensuring that                  (i)(2)(ii)  An observer provider must
                                           observers complete                         ensure that observers
                                           debriefing as soon as                      employed by it do the
                                           possible after the                         following in a complete
                                           completion of their                        and timely manner:
                                           deployment and at                         (A) once an observer is
                                           locations specified                        scheduled for a final
                                           by the Regional                            deployment debriefing
                                           Administrator.                             under paragraph
                                                                                      (i)(2)(ix)(E), submit to
                                                                                      NMFS all data, reports
                                                                                      required by the Observer
                                                                                      Manual, and biological
                                                                                      samples from the
                                                                                      observer's deployment by
                                                                                      the completion of the
                                                                                      electronic vessel and/or
                                                                                      processor survey(s);
                                                                                     (B) complete NMFS
                                                                                      electronic vessel and/or
                                                                                      processor surveys before
                                                                                      performing other jobs or
                                                                                      duties which are not part
                                                                                      of NMFS groundfish
                                                                                      observer requirements;
                                                                                     (C) report for his or her
                                                                                      scheduled debriefing, and
                                                                                      that the observer
                                                                                      completes all debriefing
                                                                                      responsibilities; and
                                                                                     (D) return all sampling and
                                                                                      safety gear to the
                                                                                      Observer Program Office.
(i)(2)(xi)..............................  Ensuring all data,             (i)(2)(ii)  An observer provider must
                                           reports, and                               ensure that observers
                                           biological samples                         employed by it do the
                                           from observer                              following in a complete
                                           deployments are                            and timely manner:
                                           complete and                              (A) once an observer is
                                           submitted to NMFS by                       scheduled for a final
                                           the time of                                deployment debriefing
                                           completion of the                          under paragraph
                                           debriefing survey.                         (i)(2)(ix)(E), submit to
                                                                                      NMFS all data, reports
                                                                                      required by the Observer
                                                                                      Manual, and biological
                                                                                      samples from the
                                                                                      observer's deployment by
                                                                                      the completion of the
                                                                                      electronic vessel and/or
                                                                                      processor survey(s);
                                                                                     (B) complete NMFS
                                                                                      electronic vessel and/or
                                                                                      processor surveys before
                                                                                      performing other jobs or
                                                                                      duties which are not part
                                                                                      of NMFS groundfish
                                                                                      observer requirements;
                                                                                     (C) report for his or her
                                                                                      scheduled debriefing, and
                                                                                      that the observer
                                                                                      completes all debriefing
                                                                                      responsibilities; and
                                                                                     (D) return all sampling and
                                                                                      safety gear to the
                                                                                      Observer Program Office.
(i)(2)(ii)..............................  Ensuring that only            (i)(2)(iii)  An observer provider must
                                           observers provide                          assign to vessels or
                                           observer services.                         shoreside or floating
                                                                                      processors only observers:
                                                                                     (A) with valid North
                                                                                      Pacific groundfish
                                                                                      observer certifications
                                                                                      and endorsements to
                                                                                      provide observer services;
                                                                                     (B) who have informed the
                                                                                      provider at the time of
                                                                                      embarkation that he or she
                                                                                      is not experiencing any
                                                                                      new physical ailments or
                                                                                      injury since submission of
                                                                                      the physician's statement
                                                                                      as required in paragraph
                                                                                      (i)(2)(ix)(C) of this
                                                                                      section that would prevent
                                                                                      him or her from performing
                                                                                      his or her assigned
                                                                                      duties; and
                                                                                     (C) who have successfully
                                                                                      completed all NMFS
                                                                                      required training and
                                                                                      briefing before
                                                                                      deployment.
(i)(2)(iii).............................  Providing observers as         (1)(2)(iv)  An observer provider must
                                           requested by vessels                       provide an observer for
                                           and processors to                          deployment as requested by
                                           fulfill vessel and                         vessels and processors to
                                           processor                                  fulfill vessel and
                                           requirements for                           processor requirements for
                                           observer coverage.                         observer coverage under
                                                                                      sections (c) and (d) of
                                                                                      this section. An alternate
                                                                                      observer must be supplied
                                                                                      in each case where injury
                                                                                      or illness prevents the
                                                                                      observer from performing
                                                                                      his or her duties or where
                                                                                      the observer resigns prior
                                                                                      to completion of his or
                                                                                      her duties.

[[Page 58462]]

 
(i)(2)(vi)..............................  Supplying alternate             (1)(2)(v)  An observer provider must
                                           observers or                               provide an observer for
                                           prospective observers                      deployment as requested by
                                           if one or more                             vessels and processors to
                                           observers are not                          fulfill vessel and
                                           approved by NMFS,                          processor requirements for
                                           fail to successfully                       observer coverage under
                                           complete observer                          sections (c) and (d) of
                                           training or briefing,                      this section. An alternate
                                           are injured and must                       observer must be supplied
                                           be replaced, or                            in each case where injury
                                           resign prior to                            or illness prevents the
                                           completion of duties.                      observer from performing
                                                                                      his or her duties or where
                                                                                      the observer resigns prior
                                                                                      to completion of his or
                                                                                      her duties.
(i)(2)(iv)..............................  Providing observers'            (i)(2)(v)  An observer provider must
                                           salary, and any other                      provide to its observer
                                           benefits and                               employees salaries and any
                                           personnel services in                      other benefits and
                                           a timely manner.                           personnel services in
                                                                                      accordance with the terms
                                                                                      of each observer's
                                                                                      contract.
(i)(2)(v)(A)............................  Observers must not be         (i)(2)(vii)  Unless alternative
                                           deployed on the same                       arrangements are approved
                                           vessel or at the same                      by the Observer Program
                                           shoreside processor                        Office, an observer
                                           or stationary                              provider must not:
                                           floating processor                        (A) deploy an observer on
                                           for more than 90 days                      the same vessel or at the
                                           in a 12-month period.                      same shoreside or
                                                                                      stationary floating
                                                                                      processor for more than 90
                                                                                      days in a 12-month period;
                                                                                     (B) deploy an observer for
                                                                                      more than 90 days;
                                                                                     (C) include in a single
                                                                                      deployment of an observer
                                                                                      assignments to more than
                                                                                      four vessels, including
                                                                                      groundfish and all other
                                                                                      vessels, and/or shoreside
                                                                                      processors; and
                                                                                     (D) move an observer from a
                                                                                      vessel or floating or
                                                                                      shoreside processor before
                                                                                      that observer has
                                                                                      completed his or her
                                                                                      sampling or data
                                                                                      transmission duties.
(i)(2)(v)(B)............................  A deployment cannot           (i)(2)(vii)  Unless alternative
                                           exceed 90 days.                            arrangements are approved
                                                                                      by the Observer Program
                                                                                      Office, an observer
                                                                                      provider must not:
                                                                                     (A) deploy an observer on
                                                                                      the same vessel or at the
                                                                                      same shoreside or
                                                                                      stationary floating
                                                                                      processor for more than 90
                                                                                      days in a 12-month period;
                                                                                     (B) deploy an observer for
                                                                                      more than 90 days;
                                                                                     (C) include in a single
                                                                                      deployment of an observer
                                                                                      assignments to more than
                                                                                      four vessels, including
                                                                                      groundfish and all other
                                                                                      vessels, and/or shoreside
                                                                                      processors; and
                                                                                     (D) move an observer from a
                                                                                      vessel or floating or
                                                                                      shoreside processor before
                                                                                      that observer has
                                                                                      completed his or her
                                                                                      sampling or data
                                                                                      transmission duties.

[[Page 58463]]

 
                                          ......................        (i)(2)(vii)  Unless alternative
(i)(2)(v)(C)............................  A deployment cannot                         arrangements are approved
                                           include assignments                        by the Observer Program
                                           to more than four                          Office, an observer
                                           vessels, shoreside,                        provider must not:
                                           and/or floating                           (A) deploy an observer on
                                           stationary                                 the same vessel or at the
                                           processors.                                same shoreside or
                                                                                      stationary floating
                                                                                      processor for more than 90
                                                                                      days in a 12-month period;
                                                                                     (B) deploy an observer for
                                                                                      more than 90 days;
                                                                                     (C) include in a single
                                                                                      deployment of an observer
                                                                                      assignments to more than
                                                                                      four vessels, including
                                                                                      groundfish and all other
                                                                                      vessels, and/or shoreside
                                                                                      processors; and
                                                                                     (D) move an observer from a
                                                                                      vessel or floating or
                                                                                      shoreside processor before
                                                                                      that observer has
                                                                                      completed his or her
                                                                                      sampling or data
                                                                                      transmission duties.
(i)(2)(xiii)............................  Monitoring observers'   .................  Deleted. This regulation
                                           performance to ensure                      was deleted because it was
                                           satisfactory                               replaced with more
                                           execution of duties                        specific observer provider
                                           by observers and                           responsibilities for
                                           conformance with                           oversight of particular
                                           NMFS' standards of                         observer activities and
                                           observer conduct.                          responsibilities.
(i)(2)(vii).............................  Maintaining                    (i)(2)(ix)  An observer provider must
                                           communications with                        have an employee
                                           observers at sea and                       responsible for observer
                                           shoreside facilities.                      activities on call 24
                                           Each observer                              hours a day to handle
                                           contractor must have                       emergencies involving
                                           an employee                                observers or problems
                                           responsible for                            concerning observer
                                           observer activities                        logistics, whenever
                                           on call 24 hours a                         observers are at sea,
                                           day to handle                              stationed at shoreside or
                                           emergencies involving                      floating processor
                                           observer logistics,                        facilities, in transit, or
                                           whenever observers                         in port awaiting vessel or
                                           are at sea, stationed                      processor reassignment.
                                           at shoreside
                                           facilities, in
                                           transit, or in port
                                           awaiting boarding.
(i)(2)(xiv).............................  Providing [the                  (i)(2)(x)  An observer provider must
                                           following]                                 provide all of the
                                           information to the                         following information to
                                           Observer Program                           the Observer Program
                                           Office by electronic                       Office by electronic
                                           transmission (e-                           transmission (e-mail),
                                           mail), fax, or other                       fax, or other method
                                           method specified by                        specified by NMFS.
                                           NMFS.
(i)(2)(xiv)(A)..........................  Observer training            (i)(2)(x)(A)  Observer training and
                                           registration                               briefing. Observer
                                           consisting of a list                       training and briefing
                                           of individuals to be                       registration materials.
                                           hired upon approval                        This information must be
                                           by NMFS and a copy of                      submitted to the Observer
                                           each person's                              Program Office at least 5
                                           academic transcripts,                      working days prior to the
                                           resume, and a                              beginning of a scheduled
                                           completed application                      observer certification
                                           to the observer                            training or briefing
                                           provider company for                       session. Registration
                                           observer employment.                       materials consist of the
                                           The list must include                      following:
                                           the person's name and                     (1) Observer training
                                           sex. The person's                          registration.
                                           social security                           (i) date of requested
                                           number is requested.                       training;
                                           Observer briefing                         (ii) a list of observer
                                           registration                               candidates by NMFS. The
                                           consisting of a list                       list must include each
                                           of the observer's                          candidate's full name
                                           name, requested                            (i.e., first, middle and
                                           briefing class, date                       last names), date of
                                           of class, and                              birth, and sex;
                                           briefing location. If                     (iii) a copy of each
                                           the Observer Program                       candidate's academic
                                           Office has excused an                      transcripts and resume;
                                           observer from                              and(iv) a statement signed
                                           attending a briefing,                      by the candidate under
                                           the briefing                               penalty of perjury which
                                           registration must                          discloses the candidate's
                                           also include the                           criminal convictions.
                                           names of observers                        (2) Observer briefing
                                           excused from                               registration.
                                           briefing, the date                        (i) date and type of
                                           the observer was                           requested briefing session
                                           excused and the name                       and briefing location;
                                           of the staff person                       (ii) list of observers to
                                           granting the excuse.                       attend the briefing
                                           This information must                      session. Each observer's
                                           be submitted to the                        full name (first, middle,
                                           Observer Program                           and last names) must be
                                           Office at least 5                          included.
                                           working days prior to
                                           the beginning of a
                                           scheduled observer
                                           certification
                                           training or briefing
                                           session.

[[Page 58464]]

 
(i)(2)(xiv)(B)..........................  Projected observer           (i)(2)(x)(B)  Projected observer
                                           assignments that                           assignments. Prior to the
                                           include the                                observer or observer
                                           observer's name;                           candidate's completion of
                                           vessel, shoreside                          the training or briefing
                                           processor, or                              session, the observer
                                           stationary floating                        provider must submit to
                                           processor assignment,                      the Observer Program
                                           type, and code; port                       Office a statement of
                                           of embarkation;                            projected observer
                                           target species; and                        assignments that include
                                           area of fishing. This                      the observer's name;
                                           information must be                        vessel, shoreside
                                           submitted to the                           processor, or stationary
                                           Observer Program                           floating processor
                                           Office prior to the                        assignment, gear type, and
                                           completion of the                          vessel/processor code;
                                           training or briefing                       port of embarkation;
                                           session.                                   target species; and area
                                                                                      of fishing.
(xiv) (F)...............................  Notification that,           (i)(2)(x)(C)  Physical examination. A
                                           based upon a physical                      signed and dated statement
                                           examination during                         from a licensed physician
                                           the 12 months prior                        that he or she has
                                           to an observer's                           physically examined an
                                           deployment, an                             observer or observer
                                           examining physician                        candidate. The statement
                                           has certified that an                      must confirm that, based
                                           observer does not                          on that physical
                                           have any health                            examination, the observer
                                           problems or                                or observer candidate does
                                           conditions that would                      not have any health
                                           jeopardize the                             problems or conditions
                                           observer's safety or                       that would jeopardize that
                                           the safety of others                       individual's safety or the
                                           while deployed, or                         safety of others while
                                           prevent the observer                       deployed, or prevent the
                                           from performing his                        observer or observer
                                           or her duties                              candidate from performing
                                           satisfactorily, and                        his or her duties
                                           that prior to                              satisfactorily. The
                                           examination, the                           statement must declare
                                           certifying physician                       that, prior to the
                                           was made aware of the                      examination, the physician
                                           dangerous, remote,                         was made aware of the
                                           and rigorous nature                        duties of an observer and
                                           of the work. This                          the dangerous, remote, and
                                           information,                               rigorous nature of the
                                           including the date of                      work by reading the NMFS-
                                           the physical                               prepared pamphlet,
                                           examination, must be                       provided to the candidate
                                           submitted prior to                         by the observer provider
                                           the completion of the                      as specified in paragraph
                                           training or briefing                       (i)(2)(i)(B)(1) of this
                                           session.                                   section. The physician's
                                                                                      statement must be
                                                                                      submitted to the Observer
                                                                                      Program Office prior to
                                                                                      certification of an
                                                                                      observer. The physical
                                                                                      exam must have occurred
                                                                                      during the 12 months prior
                                                                                      to the observer's or
                                                                                      observer candidate's
                                                                                      deployment. The
                                                                                      physician's statement will
                                                                                      expire 12 months after the
                                                                                      physical exam occurred. A
                                                                                      new physical exam must be
                                                                                      performed, and
                                                                                      accompanying statement
                                                                                      submitted, prior to any
                                                                                      deployment occurring after
                                                                                      the expiration of the
                                                                                      statement.
(xiv)(C)................................  Observer deployment/         (i)(2)(x)(D)  Observer deployment/
                                           logistics reports                          logistics reports. A
                                           that include the                           deployment/logistics
                                           observer's name,                           report must be submitted
                                           cruise number,                             by Wednesday, 4:30 pm
                                           current vessel,                            Pacific local time, of
                                           shoreside processor,                       each week with regard to
                                           or stationary                              each observer deployed by
                                           floating processor                         the observer provider
                                           assignment and code,                       during that week. The
                                           embarkation date, and                      deployment/logistics
                                           actual or estimated                        report must include the
                                           disembarkation dates.                      observer's name, cruise
                                           This information must                      number, current vessel,
                                           be submitted weekly                        shoreside processor, or
                                           as directed by the                         stationary floating
                                           Observer Program                           processor assignment and
                                           Office.                                    vessel/processor code,
                                                                                      embarkation date, and
                                                                                      estimated or actual
                                                                                      disembarkation dates. If
                                                                                      the observer is currently
                                                                                      not assigned to a vessel,
                                                                                      shoreside processor, or
                                                                                      stationary floating
                                                                                      processor, the observer's
                                                                                      location must be included
                                                                                      in the report.

[[Page 58465]]

 
(xiv)(D)................................  Observer debriefing          (i)(2)(x)(E)  Observer debriefing
                                           registration that                          registration. The observer
                                           includes the                               provider must contact the
                                           observer's name,                           Observer Program Office
                                           cruise number,                             within 5 days after the
                                           vessel, shorreside                         completion of an
                                           processor, or                              observer's deployment to
                                           floating stationary                        schedule a date, time and
                                           processor name (s)                         location for debriefing.
                                           and requested                              Observer debriefing
                                           debriefing date.                           registration information
                                                                                      must be provided at the
                                                                                      time of debriefing
                                                                                      scheduling and must
                                                                                      include the observer's
                                                                                      name, cruise number,
                                                                                      vessel, or shoreside or
                                                                                      stationary floating
                                                                                      processor name(s), and
                                                                                      requested debriefing date.
(xiv)(E)................................  Copies of                    (i)(2)(x)(F)  Certificates of Insurance.
                                           ``certificates of                          Copies of ``certificates
                                           insurance'', that                          of insurance'', that name
                                           name NMFS Observer                         the NMFS Observer Program
                                           Program leader as the                      leader as the
                                           ``certificate                              ``certificate holder'',
                                           holder''. The                              shall be submitted by
                                           certificates of                            February 1 of each year.
                                           insurance shall                            The certificates of
                                           verify the following                       insurance shall verify the
                                           coverage provisions                        following coverage
                                           and state that the                         provisions and state that
                                           insurance company                          the insurance company will
                                           will notify the                            notify the certificate
                                           certificate holder if                      holder if insurance
                                           insurance coverage is                      coverage is changed or
                                           changed or canceled.                       canceled: (1) Maritime
                                                                                      Liability to cover
                                                                                      ``seamen's'' claims under
                                                                                      the Merchant Marine Act
                                                                                      (Jones Act) and General
                                                                                      Maritime Law ($1 million
                                                                                      minimum).(2) Coverage
                                                                                      under the U.S. Longshore
                                                                                      and Harbor Workers'
                                                                                      Compensation Act ($1
                                                                                      million minimum).(3)
                                                                                      States Worker's
                                                                                      Compensation as
                                                                                      required.(4) Commercial
                                                                                      General Liability.

[[Page 58466]]

 
(I)(2)(ix)(G)...........................  A completed and              (i)(2)(x)(G)  Copies of contracts with
                                           unaltered copy of                          observer providers and
                                           each type of signed                        observers. Observer
                                           and valid contract                         providers must submit to
                                           (including all                             the Observer Program
                                           attachments,                               Office a completed and
                                           appendices,                                unaltered copy of each
                                           addendums, and                             type of signed and valid
                                           exhibits incorporated                      contract (including all
                                           into the contract) an                      attachments, appendices,
                                           observer contractor                        addendums, and exhibits
                                           has with those                             incorporated into the
                                           entities requiring                         contract) between the
                                           observer services                          observer provider and
                                           under paragraphs (c)                       those entities requiring
                                           and (d) of this                            observer services under
                                           section and with                           paragraphs (c) and (d) of
                                           observers. Completed                       this section. Observer
                                           and unaltered copies                       providers must also submit
                                           of signed and valid                        to the Observer Program
                                           contracts with                             Office upon request, a
                                           specific entities                          completed and unaltered
                                           requiring observer                         copy of a signed and valid
                                           services or with                           contract (including all
                                           specific observers                         attachments, appendices,
                                           must be submitted to                       addendums, and exhibits
                                           the Observer Program                       incorporated into the
                                           upon request. Types                        contract and any
                                           of signed and valid                        agreements or policies
                                           contracts include the                      with regard to observer
                                           contracts an observer                      compensation or salary
                                           provider has with:(1)                      levels) between the
                                           vessels required to                        observer provider and the
                                           have observer                              particular entity
                                           coverage as specified                      identified by the Observer
                                           at paragraphs                              Program or with specific
                                           (c)(1)(i) and (iv) of                      observers. Said copies
                                           this section; (2)                          must be submitted to the
                                           vessels required to                        Observer Program Office
                                           have observer                              via fax or mail at the
                                           coverage as specified                      address or fax number
                                           at paragraphs                              listed in paragraph (e)(3)
                                           (c)(1)(ii), (v), and                       of this section. Signed
                                           (vii) of this                              and valid contracts
                                           section;(3) shoreside                      include the contracts an
                                           processors or                              observer provider has
                                           stationary floating                        with:(1) vessels required
                                           processors required                        to have observer coverage
                                           to have observer                           as specified at paragraphs
                                           coverage as specified                      (c)(1)(i) and (iv) of this
                                           at paragraph (d)(1)                        section; (2) vessels
                                           of this section;(4)                        required to have observer
                                           shoreside or                               coverage as specified at
                                           stationary floating                        paragraphs (c)(1)(ii),
                                           processors required                        (v), and (vii) of this
                                           to have observer                           section; (3) shoreside
                                           coverage as specified                      processors or stationary
                                           at paragraph (d)(2)                        floating processors
                                           of this section (5)                        required to have observer
                                           Observers (to include                      coverage as specified at
                                           contracts for the                          paragraph (d)(1) of this
                                           various compensation                       section; and (4) shoreside
                                           or salary levels of                        processors or stationary
                                           observers....).                            floating processors
                                                                                      required to have observer
                                                                                      coverage as specified at
                                                                                      paragraph (d)(2) of this
                                                                                      section.(5) Observers.
(xiv)(H)................................  Reports of observer          (i)(2)(x)(I)  Reports of the following
                                           harassment, concerns                       must be submitted in
                                           about vessel safety,                       writing to the Observer
                                           or observer                                Program Office by the
                                           performance problems                       observer provider via fax
                                           must be submitted                          or email address
                                           within 24 hours after                      designated by the Observer
                                           the observer                               Program within 24 hours
                                           contractor becomes                         after the observer
                                           aware of the problem.                      provider becomes aware of
                                                                                      the information:(1) any
                                                                                      information regarding
                                                                                      possible observer
                                                                                      harassment; (2) any
                                                                                      information regarding any
                                                                                      action prohibited pursuant
                                                                                      to 679.7(g) or 600.725(o),
                                                                                      (t) and (u); (3) any
                                                                                      concerns about vessel or
                                                                                      processor safety;(4) any
                                                                                      observer illness or injury
                                                                                      that prevents the observer
                                                                                      from completing any of his
                                                                                      or her duties described in
                                                                                      the Observer Manual; and
                                                                                      (5) any information,
                                                                                      allegations or reports
                                                                                      regarding observer
                                                                                      conflict of interest or
                                                                                      breach of the standards of
                                                                                      behavior described at
                                                                                      (h)(2)(i) or (ii).
(i)(2)(xii).............................  Ensuring that all              (i)(2)(xi)  Replacement of lost or
                                           sampling and safety                        damaged gear. An observer
                                           gear are returned to                       provider must replace all
                                           the Observer Program                       lost or damaged gear and
                                           Office and that any                        equipment issued by NMFS
                                           gear and equipment                         to an observer under
                                           lost or damaged by                         contract to that provider.
                                           observers is replaced                      All replacements must be
                                           according to NMFS                          in accordance with
                                           requirements.                              requirements and
                                                                                      procedures identified in
                                                                                      writing by the Observer
                                                                                      Program.
----------------------------------------------------------------------------------------------------------------


[[Page 58467]]

    New observer provider responsibilities. The Council voted to add 
five new provisions to the observer provider responsibilities. The 
provisions would ensure (1) that a new observer drug and alcohol policy 
is included in observer provider contracts with observers; (2) that 
observer providers verify valid U.S. Coast Guard vessel safety decals 
before placing an observer aboard; (3) that limitations placed upon 
reassignment of observers to vessels and/or processors be followed; (4) 
that observer duties are completed prior to any employment of the 
observer by providers for work in crab or other non-groundfish 
fisheries; and (5) that observer providers implement NMFS observer 
candidate interview standards and provide observer candidates with a 
NMFS-produced pamphlet describing the duties of an observer. This 
proposed action would implement four of these five responsibilities and 
partially implement the fifth responsibility. The NMFS' observer 
candidate interview standards have not yet been developed. When NMFS 
presented this issue to the Council at the Council's April 2002 
meeting, the interview standards were perceived as policy guidance that 
could be developed prior to implementation of the proposed rule. 
Subsequently, NOAA General Counsel determined that such guidance must 
be specified as regulatory requirements. These requirements could not 
be developed within the timeframe necessary to accommodate this 
proposed rule and would, therefore, be implemented in later rulemaking, 
once development of the standards is complete. The NMFS-produced 
pamphlet describing the duties and working environment of the observer 
could be developed in a timely manner for implementation and would be 
required to be issued to observer candidates by observer providers 
during candidate interviews under this proposed rule.
    The needs for the new responsibilities proposed here are as 
follows:
    (1) Observer Drug and Alcohol Policy. Misuse of alcohol and drugs 
by observers is a problem because such misuse can cause safety problems 
and interfere with work. The possession, use, or distribution of 
illegal drugs is a cause for particular concern to NMFS not only for 
safety and performance reasons, but also for the reason that NMFS 
cannot condone such illegal actions. All observer providers currently 
have a drug and alcohol abuse policy as part of their observer-hiring 
agreement. However, these policies vary, and NMFS would like to ensure 
consistency among them. This action would require observer providers to 
include in their contracts with observers a provision that observers 
will abide by the Observer Program's drug and alcohol policy.
    NMFS is in the process of developing an appropriate drug and 
alcohol policy in consultation with, and for adoption by, observer 
providers. NMFS expects to minimize alcohol and drug abuse by observers 
under this policy and intends for it to be reasonable and practical for 
the observer providers to implement. NMFS expects that the providers 
would implement this policy as part of their standard business 
practices and employee relations.
    (2) U.S. Coast Guard vessel safety decal verification.Observer 
safety is the highest priority of the Observer Program. Vessels 
carrying observers are required under regulations at Sec.  
679.50(f)(1)(ii) to have on board a valid commercial fishing vessel 
safety decal issued by the Coast Guard. However, obtaining this decal 
through a Coast Guard inspection is a voluntary program, and vessels 
are not prevented from operating without one. Therefore, not all 
vessels carry the decal. Observers are instructed to check for the 
safety decal before they board the vessel, but this important task 
sometimes may be overlooked. NMFS believes that the observer providers 
must bear some responsibility for ensuring a safe working environment 
for their observers. This action would require observer providers to 
verify that the vessel has a valid USCG safety decal prior to placing 
an observer on board.
    Such verification by the observer provider entails either of the 
following:(1) obtaining from the vessel owner or operator a copy of the 
Coast Guard documentation of the safety inspection and issuance of the 
decal; or (2) observer provider employees, including observers, would 
communicate to their employer via phone, fax, or email that they have 
physically inspected the vessel's Coast Guard safety decal and 
confirmed that it is valid according to the date issued.
    (3) Observer reassignment limitations. Observers on vessels 
delivering to shoreside or floating processors have occasionally been 
unable to complete their sampling duties. This occurs when observers 
were either immediately reassigned to other vessels upon arrival at a 
processor, or the vessel they worked aboard offloaded into a temporary 
holding tank at the plant and left before the holding tank was emptied. 
The duties of an observer aboard a vessel delivering to a shoreside or 
floating processor are complete only when the vessel has finished 
offloading its catch and the observer has sampled that catch as it 
flows past the observer on a conveyor, typically, as the fish enters 
the plant. This problem has been addressed in the past through Observer 
Program policy, through which NMFS requested that observer providers 
allow observers time to complete their processor sampling duties before 
they returned to sea or are reassigned to another vessel or processor. 
While observer providers largely have complied with this request, NMFS 
believes that a regulation is prudent in order to avoid the possibility 
of non-compliance in the future. Therefore, this proposed action would 
require observer providers to allow observers the time necessary to 
complete their sampling and data transmission duties before 
reassignment to another vessel or processor.
    This requirement would not have a noticeable effect on observer 
logistics because of current observer provider compliance with NMFS' 
request. In the future, however, it could require some observer 
providers to hire extra observers to meet the observer coverage needs 
of the shoreside catcher vessel fleet in some ports such as Kodiak, 
during the peak of the shoreside pollock season. NMFS and the industry 
would benefit from receiving more complete and higher-quality data.
    (4) Observer completion of duties. Occasionally, observers 
temporarily are assigned by their observer providers to observe in 
other fisheries, such as the Bering Sea crab fishery, during the middle 
of a 90-day groundfish deployment. The change in work environment and 
sampling methodologies can contribute to the degradation of an 
observer's ability to recall during final debriefing the details of his 
or her groundfish sampling efforts. This may result in decreased data 
quality. This proposed rule would require observer providers to ensure 
that observers complete their NMFS electronic vessel and/or processor 
surveys, which are a part of each observer debriefing following a 
groundfish deployment, before performing other jobs or duties that 
constitute no part of NMFS' groundfish requirements.
    All Observer Program field offices are equipped with computers for 
observers to use in completing their electronic vessel and/or processor 
surveys. The time it takes to complete a survey depends on the location 
of the computer that is being used. The fastest computer time is in 
Anchorage, usually 1 to 3 hours per survey, followed by Kodiak (1 to 4 
hours per survey) and Dutch Harbor (1 to 6 hours per survey). Computer 
time for completing surveys does not have to

[[Page 58468]]

be pre-scheduled with the Observer Program Office but can be done on a 
drop-in basis.
    The proposed regulation would require that observers complete a 
NMFS electronic vessel and/or processor survey prior to their final 
debriefing, which would help observers to ``preserve'' their memory of 
what happened on a particular vessel or processor. This would aid them 
in completing their final debriefing and data check at the completion 
of their deployment.
    An additional requirement, which was not presented to the Council, 
but is considered necessary, would be added to observer provider 
responsibilities. This new responsibility would require observer 
providers to have a signed written contract with each observer prior to 
each deployment. Most observer providers already follow this practice. 
However, this provision is necessary to ensure the observer's 
protection against potential non-payment for work performed and as 
added insurance of observer compliance with certain assigned duties and 
requirements.
     Authority to Place NMFS' Staff and Individuals Authorized by NMFS 
as Observers on Vessels, Shoreside Processors, and Stationary Floating 
Processors. This proposed action would provide regulatory authority to 
NMFS to deploy staff and individuals authorized by NMFS as observers on 
fishing vessels and at shoreside processors and stationary floating 
processors that currently are required to carry NMFS-certified 
observers. This action is necessary to improve the ability of observers 
to operate successfully in these environments, resulting in more 
effective monitoring of groundfish harvest, bycatch, and impacts to 
protected species and the marine environment for conservation and 
management purposes. This action would be expected to improve the 
working relationship with industry and improve sampling conditions and 
support for observers in the field by allowing for more interaction and 
collaboration among NMFS staff, industry, and observers.
    Statutory authority to place observers aboard vessels is provided 
by the Magnuson-Stevens Act to collect information for purposes of 
conservation and management of a fishery. However, current regulations 
at Sec.  679.2 define an observer as ``any individual who is awarded 
NMFS certification to serve as an observer under this part, is employed 
by an observer contractor (provider) for the purpose of providing 
observer services to vessels, shoreside processors, or stationary 
floating processors under this part, and is acting within the scope of 
his/her employment.'' This proposed action would modify the definition 
of an observer to include NMFS staff or individuals authorized by NMFS 
and would provide the regulatory authority to deploy staff to vessels 
or processors to perform observer duties or collect related information 
to be used for the conservation and management of marine resources. 
Examples of non-NMFS staff that could be issued a letter of 
authorization by NMFS for such deployments include the University of 
Alaska Anchorage Observer Training Center staff and individuals to 
perform scientific or observer-related research projects.
    Groundfish observers in Alaska operate in challenging and variable 
environments, and staff observer deployments would enable NMFS to 
maintain a working knowledge of observer duties and conditions that 
would allow the agency to address concerns raised by industry, observer 
providers, and observers in the field. This would allow NMFS to deploy 
staff observers under circumstances deemed necessary by NMFS, rather 
than only when requests for assistance are received from industry. 
Under current regulations, industry requests may be limited because 
credit toward observer coverage requirements cannot be granted, even 
when deployed NMFS staff could perform observer functions in lieu of an 
observer provided by a private observer provider.
    Staff observers would provide information that could be used to 
better train, support, and debrief groundfish observers. Staff observer 
deployments would be used to improve fisheries conservation and 
management through:(1) solving sampling issues specific to individual 
vessels, shoreside processors, or stationary floating processors; (2) 
creating new sampling protocols; (3) developing and implementing 
research projects; (4) maintaining knowledge of current vessel, 
shoreside processor, or stationary floating processors operations; and 
(5) providing on-site training for an observer(s) employed by an 
observer provider.
    Solving Sampling Issues Specific to Individual Vessels, Shoreside 
Processors, or Stationary Floating Processors. NMFS' staff observer 
deployments are necessary to resolve many vessel and/or fishery 
specific sampling issues that observers encounter at sea. NMFS 
currently works to resolve certain issues through written 
communications or dockside meetings. NMFS would be better able to 
address observer-related issues by placing staff or individuals 
authorized by NMFS in actual working conditions experienced by 
observers. Such deployments would increase the ability of NMFS to work 
with industry, observers, and observer providers to resolve the many 
issues that face the stakeholders in the Alaska groundfish fisheries 
and foster a more cooperative working relationship with better informed 
industry participants.
    Creating New Sampling Protocols. As Alaska's groundfish fisheries 
continue to change and management is modified, observer sampling 
protocols will likely need to be adjusted. This would require NMFS to 
field test new data collection protocols and adjust current protocols. 
Staff observer deployments would also allow the agency to keep abreast 
of the limitations and strengths of observer data and to give NMFS the 
opportunity to work alongside industry and observers when developing 
new sampling protocols. A cooperative approach would give industry and 
observers the opportunity to provide input in this process.
    Developing and Implementing Research Projects. The Observer Program 
completes 10 to 13 special projects each year geared toward satisfying 
specific data needs of NMFS and its constituents. Not all observers are 
assigned to these projects, but each project requires specialized 
training and instruction in methods outside those an observer normally 
would employ. NMFS' ability to deploy its staff or individuals 
authorized by it to complete some of these projects or to develop 
sampling protocols for future projects would greatly enhance its 
ability to collect this highly valued data. Staff deployments would 
also afford NMFS the opportunity to discuss the specifics of projects 
with industry and to gain industry input during the course of the 
study.
    Maintaining Knowledge of Current Vessel, Shoreside Processor, or 
Stationary Floating Processors Operations. NMFS trainers and observer 
debriefers, and trainers from the University of Alaska Anchorage 
Observer Training Center must maintain an in-depth, up-to-date 
knowledge of observer duties and the variable working conditions under 
which observers are deployed. A hiring requirement for such staff is 
that they must be former observers. However, with the constantly 
changing environment in which observers work, extreme difficulties 
exist in remaining up-to-date with first-hand knowledge of actual 
working conditions. Deploying NMFS' staff and other authorized 
individuals as observers and in other

[[Page 58469]]

capacities would keep staff current with the rigors of working at sea, 
allow for increased industry outreach and an opportunity to assist 
industry with questions regarding observer duties, improve NMFS' 
ability to make recommendations regarding sampling and special 
projects, and increase observer and industry confidence in observer 
training and debriefing. All these benefits would serve to enhance the 
effectiveness, efficiency, and capabilities of the Observer Program.
    Providing On-Site Training for an Observer(s) Employed by an 
Observer Provider. Deploying NMFS' staff and individuals authorized by 
NMFS to work with contracted observers would provide an opportunity to 
mentor new observers and assist observers working under difficult 
sampling conditions. Each observer goes through an intensive 3-week 
training prior to their first deployment, but covering every sampling 
situation he or she may encounter is not possible. Having the ability 
to place staff with an observer to resolve sampling issues and provide 
on-site training would benefit the observer and improve data quality in 
certain situations. Staff would be able to use their knowledge to help 
observers develop sampling protocols for their specific sampling 
environment. This information could also be used during debriefing and 
to develop new training materials.
    Observer Coverage Requirements and Observer Procurement. This 
proposed action would require vessels, shoreside processors, or 
stationary floating processors to carry a NMFS staff observer upon 
written request by the agency. These individuals would be deployed in 
lieu of, or in addition to, observers procured through private observer 
provider companies. Determinations regarding the most appropriate use 
of staff observers would be made with consideration to observer 
accounts of sampling difficulty, alternative ways to collect data, and 
improvements that could be made on vessels and at processing facilities 
that would facilitate data collection and enhance data quality. 
Evaluation of observer sampling protocols related to new or existing 
management and research needs would also be considered.
    A majority of staff deployments to vessels and processors would be 
expected to satisfy requirements for observer coverage as specified in 
Sec.  679.50(c) and (d). A determination on whether any staff 
deployment will meet coverage requirements for a specific vessel or 
processor would be made by NMFS in advance of each staff deployment. 
Notification of the determination would be made in writing to the 
vessel owner and/or operator. This determination largely would be based 
on whether NMFS' staff or individuals authorized by NMFS are deployed 
to perform the duties of an observer. If the duties of the deployed 
staff observer did not include complete collection of data normally 
performed by an observer procured through a permitted observer provider 
for purposes of meeting regulatory coverage requirements, the staff 
observer deployment could not be used to satisfy observer coverage 
requirements.
    The Observer Program would work with vessels and processors that 
are selected to carry NMFS staff or an individual authorized by NMFS to 
determine when and where deployments would begin and end. NMFS would 
not have regulatory authority to order a vessel to port to commence 
such a deployment. However, a vessel selected for a deployment would be 
required to work with NMFS to develop deployment logistics. This would 
include communicating vessel schedule and logistics to NMFS. NMFS does 
not intend to alter fishing operations or schedules in order to 
facilitate these deployments, and NMFS would be responsible for 
transportation and shoreside lodging costs associated with staff 
deployments.
    Industry Requests for Staff Observers. Owners and operators of 
vessels, shoreside processors, and stationary floating processors would 
be able to submit written requests for assistance from NMFS to improve 
observer data quality or resolve observer sampling issues. Fulfilling 
these requests would be at the discretion of NMFS, and requests would 
be evaluated according to specific needs and staff resources.

Classification

    This proposed rule contains collection-of-information requirements 
subject to the PRA and which have been approved by OMB under OMB 
control number 0648-0318. These requirements and their associated 
burden estimates per response are:60 hours for application for a new 
observer provider permit; 15 minutes for observer candidates' copies of 
college transcripts and disclosure statements; 15 minutes for observer 
provider, observer candidates' copies of college transcripts and 
disclosure statements; 5 minutes for notice of observer 
physicalexamination; 2 hours for observer time for a physical 
examination; 7 minutes for notice of projected observer assignment; 7 
minutes for submission of information to register observers for 
different types of briefing sessions; 12 minutes for certificate for 
insurance; 15 minutes for copies of different types of contracts; 7 
minutes for weekly deployment/logistics report; 7 minutes for notice of 
observer debriefing registration; and 2 hours for report of observer 
harassment, observer safety concerns, or observer performance problems.
    This proposed rule also contains new or revised requirements that 
have been submitted to OMB for approval. These requirements and their 
associated burden estimates per response are: 30 minutes for Industry 
Request for Assistance in Improving Observer Data Quality Issues; 15 
minutes for the addition of permit information updates by observer 
providers to keep permit information current; 40 hours for the observer 
provider appeals process if a provider disagrees with agency action to 
deny issuance of a permit; and 20 hours for an observer candidate's 
appeal if denied certification.
    The response times include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. 
Send comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, to 
NMFS and OMB (see ADDRESSES).
    Public comment is sought regarding:whether this proposed collection 
of information is 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.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to 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.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS prepared an RIR/IRFA, which describes the impact this proposed 
rule would have on small entities, if adopted. A copy of this analysis 
is also available from NMFS (see ADDRESSES).
    Based on information provided by observer providers and a salary 
range for

[[Page 58470]]

observers that approximates the 2001 unionized salary rate, the total 
cost per observer day is estimated at $350, although industry has 
indicated that it sometimes pays more than $350/day for an observer. 
Costs vary on a case-by-case basis depending on duration of observer 
coverage and observer logistics. Per day costs for observers are 
expected to increase for 2003 and 2004 due to salary increases and 
increased insurance costs for observer providers.
    An estimate of 36,500 observer deployment days per year and the 
previously cited estimated cost per observer day results in total 
annual industry costs for observer coverage of $13 million and $13.3 
million in 2002 and 2003, respectively, not including the additional 
insurance costs. Under the proposed action, observer providers would 
continue to provide approximately the current level of observers 
services or about 36,500 observer deployment days per year. 
Continuation of the current program structure would guarantee that NMFS 
will continue to have access, in a timely manner, to the data that are 
necessary for the continued effective conservation and management of 
BSAI and GOA groundfish and other marine assets.
    Under the proposed action, observer costs are based on whether or 
not an observer is aboard and on overall coverage needs. Higher costs 
are borne by those vessels and plants that require higher levels of 
coverage. Estimates indicate that for catcher vessels, observer cost as 
a percent of groundfish ex-vessel revenue, in 2000, averaged a low of 
1.5 percent for trawlers between 60 ft (18.3 m) and 124 ft (37.8 m) 
length overall (LOA), and a high of 3.5 percent for pot gear vessels 
greater than 124 ft (37.8 m) LOA. For catcher/processors, observer cost 
as a percent of groundfish product revenue, in 2000, averaged a low of 
0.5 percent for surimi trawlers, and a high of 2.0 percent for 
longliners greater than 124 ft (37.8 m) LOA. The estimates also suggest 
that some differences in these averages exist for vessels that only 
fished in either the GOA or BSAI.
    The corresponding estimate for shoreside processors is 0.3 percent. 
For fishing vessels in each of the two observer coverage categories 
(i.e., 30 percent or 100 percent coverage), the direct observer cost as 
a percent of groundfish ex-vessel (product) revenue for catcher 
(catcher/processor) vessels decreases as its average revenue per day 
increases. Therefore, to the extent that revenue per day in a 
particular fishery is correlated with vessel size, smaller vessels tend 
to have a larger observer cost burden, relative to their groundfish 
revenue.
    The proposed action is expected to increase the quality of the data 
provided by the Observer Program. This would result in more informed 
decisions and, therefore, improvements concerning the conservation and 
management of BSAI and GOA groundfish. The data quality effects of each 
element of this proposed action or of all the elements combined cannot 
be quantified. The same is true of the potential benefits from improved 
conservation and management. However, each element was selected to 
decrease one or more deficiencies of the current Observer Program 
regulations.
    The proposed action would clarify and strengthen the duties and 
responsibilities of observer providers and observers. This would have 
an added benefit of improved enforcement of the regulations for 
observer providers and observers. This action would be expected to 
benefit observer providers by improving communications and the working 
relationships among the industry, observer providers, observers, and 
Observer Program Office staff.
    Provisions in the proposed action that would increase NMFS 
management controls over observer providers and observers would be 
expected to maintain or increase the quality of the data provided by 
the Observer Program. Overall, these improvements would be expected to 
increase the direct cost of observer coverage to the industry, improve 
the quality of the data provided by the Observer Program, and improve 
communications and the working relationships among the industry, 
observer providers, observers, and Observer Program Office staff. The 
increase in direct costs is expected to be minimal because the cost 
effects of the individual elements will be partially offsetting. A 
marginal increase in the total cost of providing observers would be 
expected. Some of the proposed changes would increase costs for 
observer providers but others would decrease them. Observers are not 
expected to be subject to additional costs from this proposed action.
    The proposed action would increase Observer Program Office, NOAA 
General Counsel, and NMFS Enforcement collective annual costs by 
approximately $0.3 million. However, some of this additional cost would 
be justified to improve compliance even if none of the proposed changes 
were made.
    Costs associated with placing NMFS staff observers, including 
individuals authorized by NMFS to act as staff observers, are 
summarized as follows. This proposed regulatory action would not limit 
the number of days NMFS could deploy staff or individuals authorized by 
NMFS each year. At present funding and staffing levels, NMFS estimates 
that it is capable of 500 days per year and that only about 150 
deployment days per year would occur that would not be credited toward 
required observer coverage days. At 500 days, NMFS estimates it would 
expend approximately $75,000 per year for transportation, per diem, and 
overtime.
    The amount of savings or additional costs would depend on the 
length of a deployment and the annual number of days that staff are 
deployed in lieu of observers. At current rates for contracted 
observers, if 350 observer deployment days provided by observer 
providers and their observers were replaced with observer days provided 
by NMFS, the fishing industry would save approximately $115,000 a year 
(approximate cost for observers, airfare, and meals). That industry 
savings would translate into a loss for observer providers and 
observers, but it would be less than 1 percent of their annual revenue. 
The fishing industry would incur the cost of feeding an additional 
person onboard for those 150 days that NMFS would not provide observer 
coverage. Based on industry estimates of the cost per day to feed crew, 
that cost would be less than $4,000. The opportunity cost of providing 
bunk space would vary by deployment.
    An Initial Regulatory Flexibility Analysis (IRFA) was conducted in 
accordance with the Regulatory Flexibility Act of 1980 and the Small 
Business Regulatory Enforcement Fairness Act of 1996. The Regulatory 
Flexibility Act was designed to place the burden on government to 
review all regulations to ensure that, while accomplishing their 
intended purposes, they do not unduly inhibit the ability of small 
entities to compete.
    In the IRFA the proposed alternatives could affect the following 
estimated numbers of small regulated entities: 38 small catcher/
processors, zero motherships, 5 processing plants, 31 catcher vessels 
with 100 percent observer coverage, 389 catcher vessels with 30 percent 
observer coverage, 6 CDQ groups representing 65 western Alaska 
communities, and 5 currently operating observer providers.
    The Regulatory Flexibility Act requires that the IRFA describe 
significant alternatives to the proposed rule that accomplish the 
stated objectives of the applicable statutes and minimize any impact on 
small entities. The IRFA must discuss significant alternatives to the 
proposed rule such as:(1) establishing different reporting

[[Page 58471]]

requirements for small entities that take into account the resources 
available to small entities, (2) consolidating or simplifying of 
reporting requirements, (3) using performance rather than design 
standards, and (4) allowing exemptions from coverage for small 
entities.
    The 'no action' alternative, or status quo, was rejected because it 
would have resulted in expiration of the Observer Program after 
December 31, 2001. This would be unacceptable in view of the importance 
of the Observer Program. The preferred alternative establishes a 
program expiration date of December 31, 2007. An alternative was 
considered that would establish a program with no expiration date. This 
alternative was rejected because it lacked a specific component of the 
preferred alternative, i.e., having a specific time frame to encourage 
more fundamental improvements to the Observer Program at little or no 
cost.
    The proposed changes include clarification of regulatory language 
through elimination of ambiguities and streamlining administrative 
processes and reporting requirements. Allowing exemptions from this 
proposed action for the small entities that are currently required to 
carry observers, beyond efforts to minimize impacts as described below, 
would not be appropriate, because the objective to ensure uninterrupted 
observer coverage requirements beyond 2002 could not be achieved if 
small entities were exempted.
    However, this action incorporates the overall implementation of the 
interim Observer Program, which includes measures that minimize the 
significant economic impacts of observer coverage requirements on at 
least some small entities. Vessels less than 60 ft (18.3 m) LOA are not 
required to carry an observer while fishing for groundfish. Similarly, 
vessels 60 ft (18.3 m) and longer, but less than 125 ft (38.1 m) LOA, 
have lower levels of observer coverage than those 125 ft (38.1 m) LOA 
and above. All pot vessels over 60 ft (18.3 m) are required to have 30 
percent observer coverage for all fishing days in a calendar quarter. 
The lower requirement for pot vessels was established in recognition of 
low bycatch rates, but benefits are realized by small entities in the 
pot fishery, as well. Shoreside or floating stationary processors that 
process less than 1,000 mt/month of groundfish have lower observer 
coverage requirements than those that process 1,000 mt/month or more. 
Shoreside or floating stationary processors that process less than 500 
mt/month of groundfish are not required to maintain any observer 
coverage in that month. These requirements, which have been 
incorporated into the requirements of the North Pacific Groundfish 
Observer Program since its inception in 1989, effectively mitigate the 
economic impacts on some small entities without significantly adversely 
affecting the implementation of the conservation and management 
responsibilities imposed by the FMPs and the Magnuson-Stevens Act.
     Further exemption of small entities from the proposed action was 
achieved in selecting the preferred alternative with the option that 
restricted granting NMFS authority to place staff and individuals 
authorized by NMFS to act as staff observers only on vessels already 
subject to observer coverage requirements. In 2000, 1,140 groundfish 
vessels less than 60 ft (18.3 m) LOA participated in the groundfish 
fishery and 494 halibut fishing vessels that were not part of the 
groundfish fleet. Most of these vessels are expected to be small 
entities. One option included under each of the alternatives would have 
granted NMFS the authority to place staff and individuals authorized by 
NMFS to act as staff observers on groundfish or halibut vessels less 
than 60 ft (18.3 m) LOA. However, this option was not adopted as a 
preferred alternative because of the burdens that this would place on 
that sector of the fleet. That sector of the fleet is not currently 
required to carry an observer at any time during fishing activities.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated:August 29, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory ProgramsNational 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.  679.2, the definition for ``Observer Contractor'' is 
removed; the definition for ``Observer'' is revised, and the definition 
of ``Observer Provider'' is added in alphabetical order to read as 
follows:


Sec.  679.2  Definitions.

    Observer means any
    (1) individual awarded NMFS observer certification to carry out 
observer responsibilities under this part, who is employed by an 
observer provider for the purposes of providing observer services to 
vessels, shoreside processors or stationary floating processors under 
this part; or
    (2) NMFS staff, or other individual authorized by NMFS, deployed at 
the direction of the Regional Administrator aboard vessels or at 
shoreside processors or stationary floating processors for purposes of 
providing observer services as required for vessels, shoreside 
processors or stationary floating processors under Sec.  679.50(c) or 
(d), or for other purposes of conservation and management of marine 
resources as specified by the Regional Administrator.
* * * * *
    Observer Provider means any person or commercial enterprise that is 
granted a permit by NMFS to provide observer services to vessels, 
shoreside processors, or stationary floating processors for observer 
coverage credit as required in subpart E.
* * * * *

    3. In Sec.  679.7, paragraph (a)(3) is revised to read as follows:


Sec.  679.7  Prohibitions.

* * * * *
    (a) * * *
    (3) Groundfish Observer Program. (i) Fish or process groundfish 
except in compliance with the terms of the Groundfish Observer Program 
as provided by subpart E of this part.
    (ii) Except where observer services are provided by NMFS staff or 
other individuals authorized by NMFS under Sec.  679.50(e), provide 
observer services to the North Pacific Groundfish fisheries without an 
observer provider permit issued under Sec.  679.50(i)(1).
* * * * *

    4. In Sec.  679.43, paragraph (e) is revised to read as follows:


Sec.  679.43  Determinations and appeals.

* * * * *
    (e) Address of record-- General. NMFS will establish as the address 
of record the address used by the applicant in initial correspondence 
to the NMFS concerning the application. Notifications of all actions 
affecting the applicant after establishing an address of record will be 
mailed to that address, unless the applicant provides NMFS, in writing, 
with any changes to that address. NMFS bears no responsibility if a 
notification is sent to the address of record and is not received 
because the

[[Page 58472]]

applicant's actual address has changed without notification to NMFS.
* * * * *

    5. Amend Sec.  679.50 as follows:
    a. Paragraph (j) is removed; paragraphs (e) through (i) are 
redesignated as (f) through (j), respectively; a new paragraph (e) is 
added; and the newly redesignated paragraphs (h), (i), and (j) are 
revised to read as follows:
    b. Revise the references ``(h)(1)(i)(D) and (E)'' to read 
``(j)(1)(v)(D) and (E)'' in paragraphs (c)(4)(i), (c)(4)(ii), and 
(c)(4)(vi) (B), and (C);
    c. Revise the reference ``(h)(1)(i)(D)'' to read (j)(1)(v)(D) in 
paragraphs (c)(4)(iv), (c)(4)(v) (A), and (d)(4)(i);
    d. Revise the reference ``(h)(1)(i)(E) to read `` (j)(1)(v)(E)'' in 
paragrphs (c)(4)(iii), (c)(4)(v)(B), and (c)(4)(vi)(A);
    e. Revise the reference ``(h)(1)(i)(E)(1)'' to read 
``(j)(1)(v)(E)'' in paragraph (c)(6)(ii).


Sec.  679.50  Groundfish Observer Program applicable through December 
31, 2007.

* * * * *
    (e) NMFS staff observers. (1) Any vessel, shoreside processor, or 
stationary floating processor required to comply with observer coverage 
requirements under paragraph (c) or (d) of this section or under Sec.  
679.7(f)(4) must carry, upon written notification by the agency, NMFS 
staff or an individual authorized by NMFS for purposes of coverage 
requirements as specified in paragraphs (c) and (d) of this section or 
for other conservation and management purposes.
    (2) Prior to deployment of NMFS staff or individuals authorized by 
NMFS, the agency will provide written notification to the owner or 
operator of a vessel, shoreside processor, or stationary floating 
processor whether observer coverage credit will be granted for that 
deployment.
    (3) Vessel, shoreside processor, and stationary floating processor 
owners and operators may contact NMFS in writing to request assistance 
in improving observer data quality and resolving observer sampling 
issues. Requests may be submitted to:NMFS Observer Program Office, 7600 
Sand Point Way NE, BIN C15700 Building 4, Seattle, Washington 98115-
0070 or transmitted by facsimile to 206-526-4066.
    * * * * *
    (h) Procurement of observer services. Owners of vessels, shoreside 
processors, or stationary floating processors required to carry 
observers under paragraphs (c) and (d) of this section must arrange for 
observer services from a permitted observer provider, except that:
    (1) Owners of vessels, shoreside processors, or stationary floating 
processors are required to procure observer services directly from NMFS 
when the agency has determined and notified them under paragraph (e) of 
this section that their vessel, shoreside processor, or stationary 
floating processor will carry NMFS staff or an individual authorized by 
NMFS in lieu of an observer provided through a permitted observer 
provider to satisfy requirements under paragraphs (c) and (d) of this 
section.
    (2) Owners of vessels, shoreside processors, or stationary floating 
processors are required to procure observer services directly from NMFS 
and a permitted observer provider when NMFS has determined and notified 
them under paragraph (e) of this section, that their vessel, shoreside 
processor, or stationary floating processor will carry NMFS staff or 
individuals authorized by NMFS, in addition to an observer provided 
through an observer provider to satisfy requirements under paragraphs 
(c) and (d) of this section.
    (i) Observer provider permitting and responsibilities--(1) Observer 
provider permits--(i) General. (A) Persons seeking to provide observer 
services under this section must obtain an observer provider permit 
from NMFS.
    (B) New observer providers. An applicant seeking an observer 
provider permit must submit a completed application by fax or mail to 
the Observer Program Office at the address listed in paragraph (e)(3) 
of this section. A change in ownership of an existing observer provider 
after January 1, 2003, requires a new permit application under 
paragraph (i)(1)(vi) of this section if the change involves a new 
person.
    (C) Existing observer providers as of 2002. NMFS-certified 
providers who deployed observers under the North Pacific Groundfish 
Observer Program in 2002 are exempt from the requirement to apply for a 
permit and will be issued an observer provider permit. Such observer 
providers must submit to the Observer Program Office within 30 days of 
receiving the observer provider permit issued under this paragraph any 
changes or corrections regarding information required under paragraphs 
(i)(1)(ii)(A) and (B) of this section.
    (ii) Contents of application. An application for an observer 
provider permit shall consist of a narrative that contains the 
following:
    (A) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and staff. If the 
applicant is a corporation, the articles of incorporation must be 
provided. If the applicant is a partnership, the partnership agreement 
must be provided.
    (B) Contact information--(1) Owner(s) information. The permanent 
mailing address, phone and fax numbers where the owner(s) can be 
contacted for official correspondence.
    (2) Business information. Current physical location, business 
mailing address, business telephone and fax numbers, and business e-
mail address for each office.
    (3) Authorized agent. For observer providers with ownership based 
outside the United States, identify an authorized agent and provide 
contact information for that agent including mailing address and phone 
and fax numbers where the agent can be contacted for official 
correspondence. An authorized agent means a person appointed and 
maintained within the United States who is authorized to receive and 
respond to any legal process issued in the United States to an owner or 
employee of an observer provider. Any diplomatic official accepting 
such an appointment as designated agent waives diplomatic or other 
immunity in connection with the process.
    (C) A statement signed under penalty of perjury from each owner, or 
owners, board members, and officers if a corporation, that they are 
free from a conflict of interest as described under paragraph (i)(3) of 
this section.
    (D) A statement signed under penalty of perjury from each owner, or 
owners, board members, and officers if a corporation, describing any 
criminal convictions, Federal contracts they have had and the 
performance rating they received on the contract, and previous 
decertification action while working as an observer or observer 
provider.
    (E) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (F) A description of the applicant's ability to carry out the 
responsibilities and duties of an observer provider as set out under 
paragraph (i)(2) of this section, and the arrangements to be used.
    (iii) Application evaluation. (A) The Regional Administrator will 
establish an observer provider permit application review board to 
review and evaluate an application submitted under this paragraph 
(i)(1). The board will be

[[Page 58473]]

comprised of NMFS staff. Issuance of a permit will be based on the 
completeness of the applicant's application, as well as the following 
evaluation criteria for each owner, or owners, board members, and 
officers if a corporation:
    (1) Absence of conflict of interest as defined under paragraph 
(i)(3) of this section;
    (2) Absence of criminal convictions related to:
    (i) Embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements or receiving stolen 
property, or
    (ii) The commission of any other crimes of dishonesty, as defined 
by Alaska State law or Federal law that would seriously and directly 
affect the fitness of an applicant in providing observer services under 
this section;
    (3) Performance ratings on any Federal contracts held by the 
applicant; and
    (4) Absence of any history of decertification as either an observer 
or observer provider;
    (B) The evaluation by the review board will provide a basis for the 
board's initial agency determination (IAD) on whether the application 
is complete and all evaluation criteria are met.
    (iv) Evidentiary period. The observer provider permitting review 
board will specify, by letter via certified return-receipt mail, a 60-
day evidentiary period during which a candidate may provide additional 
information or evidence to support the application, if the application 
is found to be deficient.
    (v) Agency determination on an application--(A) Approval of an 
application. If an IAD is made to approve the application, the observer 
provider permit application review board will issue an observer 
provider permit to the applicant upon determination by the review board 
that the application is complete and all evaluation criteria are met.
    (B) Denial of an application. An application will be denied if the 
observer provider permit application review board determines that the 
information provided in the application was not complete or all the 
evaluation criteria were not met. The observer provider permit 
application review board will prepare and send a written IAD to the 
applicant upon evaluation of a completed application. The IAD will 
identify any deficiencies in the application or any information 
submitted in support of the application. An applicant who receives an 
IAD that denies his or her application may appeal under Sec.  679.43. 
An applicant who appeals the IAD will not be issued an interim observer 
provider permit. An applicant who appeals an IAD will not receive a 
permit unless the final resolution of that appeal is in favor of the 
applicant.
    (vi) Transferability. An observer provider permit is not 
transferable. An observer provider that experiences a change in 
ownership that involves a new person must submit a new permit 
application and cannot continue to operate until a new permit is issued 
under this paragraph.
    (vii) Expiration of Permit. (A) The observer provider permit will 
expire after a period of 12 continuous months during which no observers 
are deployed by the provider under this section to the North Pacific 
groundfish industry.
    (B) The Regional Administrator will provide a written determination 
to an observer provider if NMFS deployment records indicate that the 
permit has expired. An observer provider who receives a written IAD of 
permit expiration may appeal under Sec.  679.43. A permit holder who 
appeals the IAD will be issued an extension of the expiration date of 
the permit until after the final resolution of that appeal.
    (viii) Sanctions. Procedures governing sanctions of permits are 
found at subpart D of 15 CFR part 904.
    (2) Responsibilities of observer providers. Observer providers 
must:
    (i) Provide qualified candidates to serve as observers. (A) To be 
qualified, a candidate must have:
    (1) A Bachelor's degree or higher from an accredited college or 
university with a major in one of the natural sciences;
    (2) Successfully completed a minimum of 30 semester hours or 
equivalent in applicable biological sciences with extensive use of 
dichotomous keys in at least one course;
    (3) Successfully completed at least one undergraduate course each 
in math and statistics with a minimum of 5 semester hours total for 
both; and
    (4) Computer skills that enable the candidate to work competently 
with standard database software and computer hardware.
    (B) Prior to hiring an observer candidate, the observer provider 
must:
    (1) Provide to the candidate copies of NMFS-provided pamphlets and 
other literature describing observer duties; and
    (2) Provide to the candidate a copy of the Observer Program's drug 
and alcohol policy. Observer job pamphlets and the drug and alcohol 
policy are available from the Observer Program Office at the address 
listed in paragraph (e)(3) of this section.
    (C) A written contract must exist between the observer provider and 
each observer employed by the observer provider. The contract must be 
signed by the observer and observer provider prior to the observer's 
deployment and must contain the following provisions for continued 
employment:
    (1) That the observer comply with the Observer Program's drug and 
alcohol policy;
    (2) That all the observer's in-season catch messages between the 
observer and NMFS are delivered to the Observer Program Office at least 
every 7 days, unless otherwise specified by the Observer Program; and
    (3) That the observer completes in-person mid-deployment data 
reviews, unless:
    (i) The observer is specifically exempted by the Observer Program, 
or
    (ii) The observer does not at any time during their deployment 
travel through a location where Observer Program staff are available 
for an in-person data review. The written contract must further require 
that the observer complete a phone or fax mid-deployment data review as 
described in the observer manual.
    (ii) Ensure that observers complete duties in a timely manner: An 
observer provider must ensure that observers employed by it do the 
following in a complete and timely manner:
    (A) Once an observer is scheduled for a final deployment debriefing 
under paragraph (i)(2)(ix)(E) of this section, submit to NMFS all data, 
reports required by the Observer Manual, and biological samples from 
the observer's deployment by the completion of the electronic vessel 
and/or processor survey(s);
    (B) Complete NMFS electronic vessel and/or processor surveys before 
performing other jobs or duties which are not part of NMFS groundfish 
observer requirements;
    (C) Report for his or her scheduled debriefing and complete all 
debriefing responsibilities; and
    (D) Return all sampling and safety gear to the Observer Program 
Office.
    (iii) Observer vessel and processor assignment. An observer 
provider must assign to vessels or shoreside or floating processors 
only observers:
    (A) With valid North Pacific groundfish observer certifications and 
endorsements to provide observer services;
    (B) Who have informed the provider at the time of embarkation that 
he or she is not experiencing any new physical ailments or injury since 
submission of the physician's statement as required in paragraph 
(i)(2)(ix)(C) of this section

[[Page 58474]]

that would prevent him or her from performing their assigned duties; 
and
    (C) Who have successfully completed all NMFS required training and 
briefing before deployment.
    (iv) Response to industry requests for observers. An observer 
provider must provide an observer for deployment as requested by 
vessels and processors to fulfill vessel and processor requirements for 
observer coverage under sections (c) and (d) of this section. An 
alternate observer must be supplied in each case where injury or 
illness prevents the observer from performing his or her duties or 
where the observer resigns prior to completion of his or her duties.
    (v) Observer salaries and benefits. An observer provider must 
provide to its observer employees salaries and any other benefits and 
personnel services in accordance with the terms of each observer's 
contract.
    (vi) Observer deployment logistics. An observer provider must 
provide all logistics to place and maintain the observers aboard the 
fishing vessels or at the site of the processing facility. This 
includes all travel arrangements, lodging and per diem, and any other 
services required to place observers aboard vessels or at processing 
facilities.
    (vii) Observer deployment limitations. Unless alternative 
arrangements are approved by the Observer Program Office, an observer 
provider must not:
    (A) Deploy an observer on the same vessel or at the same shoreside 
or stationary floating processor for more than 90 days in a 12-month 
period;
    (B) Deploy an observer for more than 90 days;
    (C) Include in a single deployment of an observer assignments to 
more than four vessels, including groundfish and all other vessels, 
and/or shoreside processors; and
    (D) Move an observer from a vessel or floating or shoreside 
processor before that observer has completed his or her sampling or 
data transmission duties.
    (viii) Vessel safety decal verification. An observer provider must 
verify that a vessel has a valid USCG safety decal as required under 
paragraph (g)(1)(ii)(B) of this section before an observer may get 
underway aboard the vessel. One of the following acceptable means of 
verification must be used to verify the decal validity:
    (A) an employee of the observer provider, including the observer, 
visually inspects the decal aboard the vessel and confirms that the 
decal is valid according to the decal date of issuance; or
    (B) the observer provider receives a hard copy of the USCG 
documentation of the decal issuance from the vessel owner or operator.
    (ix) Communications with observers. An observer provider must have 
an employee responsible for observer activities on call 24 hours a day 
to handle emergencies involving observers or problems concerning 
observer logistics, whenever observers are at sea, stationed at 
shoreside or floating processor facilities, in transit, or in port 
awaiting vessel or processor reassignment.
    (x) Communications with the Observer Program Office. An observer 
provider must provide all of the following information to the Observer 
Program Office by electronic transmission (e-mail), fax, or other 
method specified by NMFS.
    (A) Observer training and briefing. Observer training and briefing 
registration materials. This information must be submitted to the 
Observer Program Office at least 5 working days prior to the beginning 
of a scheduled observer certification training or briefing session. 
Registration materials consist of the following:
    (1) Observer training registration, including:
    (i) Date of requested training;
    (ii) A list of observer candidates. The list must include each 
candidate's full name (i.e., first, middle and last names), date of 
birth, and sex;
    (iii) A copy of each candidate's academic transcripts and resume; 
and
    (iv) A statement signed by the candidate under penalty of perjury 
which discloses the candidate's criminal convictions.
    (2) Observer briefing registration, including:
    (i) Date and type of requested briefing session and briefing 
location; and
    (ii) List of observers to attend the briefing session. Each 
observer's full name (first, middle, and last names) must be included.
    (B) Projected observer assignments. Prior to the observer or 
observer candidate's completion of the training or briefing session, 
the observer provider must submit to the Observer Program Office a 
statement of projected observer assignments that include the observer's 
name; vessel, shoreside processor, or stationary floating processor 
assignment, gear type, and vessel/processor code; port of embarkation; 
target species; and area of fishing.
    (C) Physical examination. A signed and dated statement from a 
licensed physician that he or she has physically examined an observer 
or observer candidate. The statement must confirm that, based on that 
physical examination, the observer or observer candidate does not have 
any health problems or conditions that would jeopardize that 
individual's safety or the safety of others while deployed, or prevent 
the observer or observer candidate from performing his or her duties 
satisfactorily. The statement must declare that, prior to the 
examination, the physician was made aware of the duties of the observer 
and the dangerous, remote, and rigorous nature of the work by reading 
the NMFS-prepared pamphlet, provided to the candidate by the observer 
provider as specified in paragraph (i)(2)(i)(B)(1) of this section. The 
physician's statement must be submitted to the Observer Program Office 
prior to certification of an observer. The physical exam must have 
occurred during the 12 months prior to the observer's or observer 
candidate's deployment. The physician's statement will expire 12 months 
after the physical exam occurred. A new physical exam must be 
performed, and accompanying statement submitted, prior to any 
deployment occurring after the expiration of the statement.
    (D) Observer deployment/logistics reports. A deployment/logistics 
report must be submitted by Wednesday, 4:30 pm, Pacific local time, of 
each week with regard to each deployed observer deployed by the 
observer provider during that week. The deployment/logistics report 
must include the observer's name, cruise number, current vessel, 
shoreside processor, or stationary floating processor assignment and 
vessel/processor code, embarkation date, and estimated or actual 
disembarkation dates. If the observer is currently not assigned to a 
vessel, shoreside processor, or stationary floating processor, the 
observer's location must be included in the report.
    (E) Observer debriefing registration. The observer provider must 
contact the Observer Program within 5 days after the completion of an 
observer's deployment to schedule a date, time and location for 
debriefing. Observer debriefing registration information must be 
provided at the time of debriefing scheduling and must include the 
observer's name, cruise number, vessel, or shoreside or stationary 
floating processor assignment name(s) and code(s), and requested 
debriefing date.
    (F) Certificates of Insurance. Copies of ``certificates of 
insurance'', that name the NMFS Observer Program leader as the 
``certificate holder'', shall be submitted to the Observer Program 
Office by February 1 of each year. The certificates of insurance shall 
verify the following coverage provisions and state

[[Page 58475]]

that the insurance company will notify the certificate holder if 
insurance coverage is changed or canceled.
    (1) Maritime Liability to cover ``seamen's'' claims under the 
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million 
minimum).
    (2) Coverage under the U.S. Longshore and Harbor Workers' 
Compensation Act ($1 million minimum).
    (3) States Worker's Compensation as required.
    (4) Commercial General Liability.
    (G) Copies of contracts with observer providers and observers.  
Observer providers must submit to the Observer Program Office a 
completed and unaltered copy of each type of signed and valid contract 
(including all attachments, appendices, addendums, and exhibits 
incorporated into the contract) between the observer provider and those 
entities requiring observer services under paragraphs (c) and (d) of 
this section. Observer providers must also submit to the Observer 
Program Office upon request, a completed and unaltered copy of the 
current or most recent signed and valid contract (including all 
attachments, appendices, addendums, and exhibits incorporated into the 
contract and any agreements or policies with regard to observer 
compensation or salary levels) between the observer provider and the 
particular entity identified by the Observer Program or with specific 
observers. Said copies must be submitted to the Observer Program Office 
via fax or mail within 5 business days of the request for the contract 
at the address or fax number listed in paragraph (e)(3) of this 
section. Signed and valid contracts include the contracts an observer 
provider 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 or stationary floating processors required 
to have observer coverage as specified at paragraph (d)(1) of this 
section;
    (4) Shoreside processors or stationary floating processors required 
to have observer coverage as specified at paragraph (d)(2) of this 
section; and
    (5) Observers.
    (H) Change in observer provider management and contact information. 
An observer provider must submit notification of any change to the 
information submitted on the provider's permit application under 
paragraph (i)(1)(ii)(A) or (B) of this section. Within 30 days of the 
effective date of such change, this information must be submitted by 
fax or mail to the Observer Program Office at the address listed in 
paragraph (e)(3) of this section.
    (I) Reports of the following must be submitted in writing to the 
Observer Program Office by the observer provider via fax or email 
address designated by the Observer Program Office within 24 hours after 
the observer provider becomes aware of the information:
    (1) Any information regarding possible observer harassment;
    (2) Any information regarding any action prohibited under Sec.  
679.7(g) or Sec.  600.725(o), (t) and (u);
    (3) Any concerns about vessel safety or marine casualty under 46 
CFR 4.05-1 (a)(1) through (7), or processor safety;
    (4) Any observer illness or injury that prevents the observer from 
completing any of his or her duties described in the observer manual; 
and
    (5) Any information, allegations or reports regarding observer 
conflict of interest or breach of the standards of behavior described 
at (h)(2)(i) or (ii) of this section.
    (xi) Replacement of lost or damaged gear. An observer provider must 
replace all lost or damaged gear and equipment issued by NMFS to an 
observer under contract to that provider. All replacements must be in 
accordance with requirements and procedures identified in writing by 
the Observer Program Office.
    (3) Limitations on conflict of interest. Observer providers:
    (i) Must not have a direct financial interest, other than the 
provision of observer services, in a North Pacific fishery managed 
under an FMP for the waters off the coast of Alaska, including, but not 
limited to,
    (A) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside or floating stationary processor facility involved in 
the catching, taking, harvesting or processing of fish,
    (B) Any business involved with selling supplies or services to any 
vessel, shoreside or floating stationary processing facility 
participating in a fishery managed pursuant to an FMP in the waters off 
the coast of Alaska, or
    (C) Any business involved with purchasing raw or processed products 
from any vessel, shoreside or floating stationary processing facilities 
participating in a fishery managed pursuant to an FMP in the waters off 
the coast of Alaska.
    (ii) Must assign observers without regard to any preference by 
representatives of vessels, shoreside processors, or floating 
stationary processors other than when an observer will be deployed.
    (iii) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts activities that are regulated by NMFS, 
or who has interests that may be substantially affected by the 
performance or nonperformance of the official duties of observer 
providers.
    (j) Observer certification and responsibilities--(1) Observer 
Certification--(i) Applicability. Observer certification authorizes an 
individual to fulfill duties as specified in writing by the NMFS 
Observer Program Office while under the employ of a NMFS-permitted 
observer provider and according to certification endorsements as 
designated under paragraph (j)(1)(v) of this section.
    (ii) Observer certification official. The Regional Administrator 
will designate a NMFS observer certification official who will make 
decisions for the Observer Program Office on whether to issue or deny 
observer certification.
    (iii) Certification requirements. (A) Existing Observers. Observers 
who completed sampling activities between June 30, 2001, and December 
31, 2002, and have not had his or her certification revoked during or 
after that time period, will be considered to have met certification 
requirements under this section. These observers will be issued a new 
certification prior to their first deployment after December 31, 2002.
    (B) New Observers. NMFS will certify individuals who:
    (1) Are employed by a permitted observer provider company at the 
time of the issuance of the certification;
    (2) Have provided, through their observer provider,:
    (i) Information identified by NMFS at paragraphs 
(i)(2)(x)(A)(1)(iii) and (iv) of this section and in writing from the 
Observer Program; and
    (ii) Information identified by NMFS at paragraph (i)(2)(x)(C) of 
this section regarding the observer candidate's health and physical 
fitness for the job;
    (3) Meets all education and health standards as specified in 
paragraphs (i)(2)(i)(A) and (i)(2)(x)(C) of this section, respectively;
    (4) Has successfully completed a NMFS-approved training as 
prescribed by the Observer Program.
    (i) Successful completion of training by an observer applicant 
consists of meeting all attendance and conduct standards issued in 
writing at the start of training; meeting all performance standards 
issued in writing at the start of training for assignments, tests, and 
other evaluation tools; and completing

[[Page 58476]]

all other training requirements established by the Observer Program.
    (ii) If a candidate fails training, he or she will be notified in 
writing on or before the last day of training. The notification will 
indicate: the reasons the candidate failed the training; whether the 
candidate can retake the training, and under what conditions, or; 
whether the candidate will not be allowed to retake the training. If a 
determination is made that the candidate may not pursue further 
training, notification will be in the form of an IAD denying 
certification, as specified under paragraph (j)(1)(iv)(A) of this 
section.
    (5) Have not been decertified under paragraph (j)(3) of this 
section.
    (iv) Agency determinations on observer certification--(A) Denial of 
a certification. The NMFS observer certification official will issue a 
written IAD denying observer certification when the observer 
certification official determines that a candidate has unresolvable 
deficiencies in meeting the requirements for certification as specified 
in paragraph (j)(1)(iii) of this section. The IAD will identify the 
reasons certification was denied and what requirements were deficient.
    (B) Appeals. A candidate who receives an IAD that denies his or her 
certification may appeal pursuant to Sec.  679.43 of this part. A 
candidate who appeals the IAD will not be issued an interim observer 
certification. A candidate who appeals an IAD will not receive a 
certification unless the final resolution of that appeal is in the 
candidate's favor.
    (C) Issuance of an observer certification. An observer 
certification will be issued upon determination by the observer 
certification official that the candidate has successfully met all 
requirements for certification as specified in paragraph (j)(1)(iii) of 
this section.
    (v) Endorsements. The following endorsements must be obtained, in 
addition to observer certification, in order for an observer to deploy 
as indicated.
    (A) Certification training endorsement. A certification training 
endorsement signifies the successful completion of the training course 
required to obtain observer certification. This endorsement is required 
for any deployment as an observer in the Bering Sea and Aleutian 
Islands groundfish fisheries and the Gulf of Alaska groundfish 
fisheries and will be granted with the initial issuance of an observer 
certification. This endorsement expires when the observer has not been 
deployed and performed sampling duties as required by the Observer 
Program Office for a period of time, specified by the Observer Program, 
after his or her most recent debriefing. Renewal can be obtained by the 
observer successfully completing certification training once more. 
Observers will be notified of any changes to the endorsement expiration 
period prior to that change taking place. Observers who have been 
issued certificates under paragraph (j)(1)(iii)(A) of this section will 
be issued a new certification training endorsement upon issuance of 
their observer certification prior to their first deployment after 
December 31, 2002.
    (B) Annual general endorsements. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
first deployment within any calendar year subsequent to a year in which 
a certification training endorsement is obtained. To obtain an annual 
general endorsement, an observer must successfully complete the annual 
briefing, as specified by the Observer Program. All briefing 
attendance, performance, and conduct standards required by the Observer 
Program must be met.
    (C) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or annual briefing must receive 
a deployment endorsement to their certification prior to any subsequent 
deployments for the remainder of that year. An observer may obtain a 
deployment endorsement by successfully completing all pre-cruise 
briefing requirements. The type of briefing the observer must attend 
and successfully complete will be specified in writing by the Observer 
Program during the observer's most recent debriefing.
    (D) Level 2 endorsements. A certified observer may obtain a Level 2 
endorsement to their certification. A Level 2 endorsement is required 
for purposes of performing observer duties aboard vessels or stationary 
floating processors or at shoreside processors participating in the CDQ 
or AFA fisheries as prescribed in paragraphs (c) and (d) of this 
section. A Level 2 endorsement to an observer's certification may be 
obtained by meeting the following requirements:
    (1) Be a prior observer in the groundfish fisheries off Alaska who 
has completed at least 60 days of observer data collection;
    (2) Receive an evaluation by NMFS for his or her most recent 
deployment that indicated that the observer's performance met Observer 
Program expectations for that deployment;
    (3) Successfully complete a NMFS-approved Level 2 observer training 
as prescribed by the Observer Program; and
    (4) Comply with all of the other requirements of this section.
    (E) An observer who has achieved a Level 2 endorsement to their 
observer certification as specified in paragraph (j)(1)(v) (D) of this 
section may additionally receive a Level 2 ``lead'' observer 
endorsement by meeting the following requirements:
    (1) A Level 2 ``lead'' observer on a catcher/processor using trawl 
gear or a mothership must have completed two observer cruises 
(contracts) and sampled at least 100 hauls on a catcher/processor using 
trawl gear or on a mothership.
    (2) A Level 2 ``lead'' observer on a catcher vessel using trawl 
gear must have completed two observer cruises (contracts) and sampled 
at least 50 hauls on a catcher vessel using trawl gear.
    (3) A Level 2 ``lead'' observer on a vessel using nontrawl gear 
must have completed two observer cruises (contracts) of at least 10 
days each and sampled at least 60 sets on a vessel using nontrawl gear.
    (vi) Expiration of a certification. The observer certification will 
expire on December 31, 2007.
    (2) Standards of observer conduct--(i) Limitations on conflict of 
interest. (A) Observers:
    (1) Must not have a direct financial interest, other than the 
provision of observer services, in a North Pacific fishery managed 
pursuant to an FMP for the waters off the coast of Alaska, including, 
but not limited to,
    (i) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside or floating stationary processor facility involved in 
the catching, taking, harvesting or processing of fish,
    (ii) Any business involved with selling supplies or services to any 
vessel, shoreside or floating stationary processing facility 
participating in a fishery managed pursuant to an FMP in the waters off 
the coast of Alaska, or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, shoreside or floating stationary processing 
facilities participating in a fishery managed pursuant to an FMP in the 
waters off the coast of Alaska.
    (2) May not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who either conducts activities that are regulated by 
NMFS or has interests that may be substantially affected by the

[[Page 58477]]

performance or nonperformance of the observers' official duties.
    (3) May not serve as observers on any vessel or at any shoreside or 
floating stationary processing facility owned or operated by a person 
who previously employed the observers.
    (4) May not solicit or accept employment as a crew member or an 
employee of a vessel, shoreside processor, or stationary floating 
processor in a North Pacific fishery while employed by an observer 
provider.
    (B) Provisions for remuneration of observers under this section do 
not constitute a conflict of interest.
    (ii) Standards of Behavior. Observers must avoid any behavior that 
could adversely affect the confidence of the public in the integrity of 
the Observer Program or of the government, including but not limited to 
the following:
    (A) Observers must perform their assigned duties as described in 
the Observer Manual or other written instructions from the Observer 
Program Office.
    (B) Observers must accurately record their sampling data, write 
complete reports, and report accurately any observations of suspected 
violations of regulations relevant to conservation of marine resources 
or their environment.
    (C) Observers must not disclose collected data and observations 
made on board the vessel or in the processing facility to any person 
except the owner or operator of the observed vessel or processing 
facility, an authorized officer, or NMFS.
    (D) Observers must refrain from engaging in any illegal actions or 
any other activities that would reflect negatively on their image as 
professional scientists, on other observers, or on the Observer Program 
as a whole. This includes, but is not limited to:
    (1) Violating the drug and alcohol policy established by and 
available from the Observer Program;
    (2) Engaging in the use, possession, or distribution of illegal 
drugs; or
    (3) Engaging in physical sexual contact with personnel of the 
vessel or processing facility to which the observer is assigned, or 
with any vessel or processing plant personnel who may be substantially 
affected by the performance or non-performance of the observer's 
official duties.
    (3) Suspension and Decertification--(i) Suspension and 
decertification review official. The Regional Administrator will 
establish an observer suspension and decertification review 
official(s), who will have the authority to review observer 
certifications and issue initial administrative determinations of 
observer certification suspension and/or decertification.
    (ii) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification 
proceedings against an observer:
    (A) When it is alleged that the observer has committed any acts or 
omissions of any of the following:
    (1) Failed to satisfactorily perform the duties of observers as 
specified in writing by the NMFS Observer Program; or
    (2) Failed to abide by the standards of conduct for observers as 
prescribed under paragraph (j)(2) of this section;
    (B) Upon conviction of a crime or upon entry of a civil judgement 
for:
    (1) Commission of fraud or other violation in connection with 
obtaining or attempting to obtain certification, or in performing the 
duties as specified in writing by the NMFS Observer Program;
    (2) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, or 
receiving stolen property;
    (3) Commission of any other offense indicating a lack of integrity 
or honesty that seriously and directly affects the fitness of 
observers.
    (iii) Issuance of initial administrative determination. Upon 
determination that suspension or decertification is warranted under 
paragraph (j)(3)(ii) of this section, the suspension/decertification 
official will issue a written IAD to the observer via certified mail at 
the observer's most current address provided to NMFS under Sec.  
679.43(e). The IAD will identify whether a certification is suspended 
or revoked and will identify the specific reasons for the action taken. 
If the IAD issues a suspension for an observer certification, the terms 
of the suspension will be specified. Suspension or decertification is 
effective immediately as of the date of issuance, unless the 
suspension/decertification official notes a compelling reason for 
maintaining certification for a specified period and under specified 
conditions.
    (iv) Appeals. A certified observer who receives an IAD that 
suspends or revokes his or her observer certification may appeal 
pursuant to Sec.  679.43.
* * * * *
[FR Doc. 02-22834 Filed 9-11-02; 2:48 pm]
BILLING CODE 3510-22-S