[Federal Register Volume 67, Number 235 (Friday, December 6, 2002)]
[Rules and Regulations]
[Pages 72595-72617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30694]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 020814193-2282-02; 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule to extend the applicability date of 
the existing regulations for the interim North Pacific Groundfish 
Observer Program (Observer Program), which otherwise expire December 
31, 2002, through 2007. This final rule also amends regulations 
governing the Observer Program. These changes 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: Amendments to Sec.  679.50 are effective December 31, 2002. 
Amendments to Sec.  Sec.  679.2, 679.79(a)(3), and 679.43(e) are 
effective January 1, 2003.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for 
this action may be obtained by contacting the Alaska Region, NMFS, P.O. 
Box 21668, Juneau, AK 99802, Attn: Lori Durall. Send comments on 
information collection requirements 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; or 
[email protected].

SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the 
exclusive economic zone off Alaska under the FMPs. The North Pacific 
Fishery Management Council (Council) prepared the FMPs under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), 16 U.S.C. 1801, et seq. Regulations 
governing U.S. fisheries and implementing the FMPs appear at 50 CFR 
parts 600 and 679.

Background

    Groundfish fisheries in waters of the Gulf of Alaska (GOA) and 
Bering Sea and 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. These 
quotas may be apportioned among areas, seasons, gear types, processor 
and catcher vessel sectors, cooperatives, and individual fishermen. 
Both retained and discarded catch are credited against these annual 
quotas, which generally 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 these purposes.
    Observer requirements have been in place in Alaska since the mid-
1970s, when the 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. Because 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 the 
Alaskan groundfish fisheries. A domestic Observer Program was developed 
by NMFS 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. Numerous changes to the Observer Program have 
been implemented to promote continued collection of quality data. These 
changes have ranged from relatively minor adjustments to the Program to 
changes that would address fundamental concerns. Minor adjustments, for 
example, may address logistic or data acquisition concerns. Changes 
that would address fundamental concerns, however, may address issues of 
data quality, the distribution of costs for observer coverage, and 
accountability of observer providers and observers for maintaining 
specified performance standards. Several attempts for long term 
restructuring of the Observer Program to address these fundamental 
issues have failed. One attempt to rectify these failures has been the 
Council's recommendation for establishment of an interim Observer 
Program in anticipation of developing a long term restructuring plan. 
The existing observer Program expires at the end of 2002.
    At its April 2002 meeting, the Council recommended an extension of 
the interim Observer Program through 2007, 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. As in past years, the Council's recommended action 
is intended to allow additional time for the development and analysis 
of alternatives that would address

[[Page 72596]]

numerous issues facing the Observer Program, including ways to improve 
the quality of data collected by observers and to redistribute costs 
for observer coverage. The Council intends to select and implement a 
preferred alternative to address those issues and concerns by January 
1, 2008. The Council's recommended action would also improve 
regulations governing observer and observer provider responsibilities 
through modifications and additions to existing observer and observer 
provider duties and obligations. This action would further increase the 
ability of NMFS to interact effectively with observers, fishermen, and 
processing plant employees by authorizing NMFS 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 these 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 contribute to 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 
misallocations resulting from the underharvest of total allowable catch 
(TAC). In recent years, the reliance on observer data for individual 
vessel accounting has been of particular importance in the management 
of the Western Alaska Community Development Quota (CDQ) program and 
American Fisheries Act (AFA) fisheries.
    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.
    On September 16, 2002, a proposed rule to extend the Observer 
Program through December 31, 2007, with modifications, was published in 
the Federal Register for a 30-day public review and comment period that 
ended October 11, 2002. Four letters of comments were received during 
the comment period that cumulatively contained 40 unique comments on 
the proposed rule. These comments and NMFS' responses are summarized 
under Response to Comments. The proposed rule discusses the history of 
the Observer Program, describes various attempts to modify its 
infrastructure to address long term concerns about data quality and 
accountability, and details descriptions of and justification for the 
changes to the Observer Program that are implemented under this action. 
These changes are summarized below.
    Initial Permitting or Certification Determination. This final rule 
establishes an application procedure for both observers and observer 
providers and creates 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 
certification or permit.
    The denial of an observer certification or observer provider permit 
will be appealable. The Alaska Region's Office of Administrative 
Appeals (OAA) will review denials for both observers and observer 
providers upon request. Each decision from the OAA will be referred to 
the Regional Administrator. If the Regional Administrator does not act 
to overturn the OAA decision within 30 days, the OAA decision becomes 
the final agency action. Final agency action can be further appealed to 
the U.S. District Court. The specific processes for appeals of a denial 
of an observer provider permit or an observer certification are 
summarized below (See Observer Provider Permit Application and Observer 
Certification Process).
    Permit vs. Certification for Observer Providers. This final rule 
changes 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 will 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.
    Observer Provider Permit Application Requirements. Under the final 
rule, 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 will not be required to submit a 
new application, and the owner(s) will be issued a permit based on 
their existing record. These observer providers will 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 must comply with all applicable 
regulations promulgated by NMFS while participating in the Observer 
Program. Former NMFS-certified providers need only comply with those 
regulations in force at the time of their participation in the program.
    Because accurate identification of the business' ownership is 
required for issuance of the permit, each existing NMFS-certified 
provider will be required to correct or update any changes to 
ownership, management, and/or contact information set forth under Sec.  
679.50(i)(1)(ii)(A)and (B) of this final rule within 30 days of 
receiving a permit. Subsequent changes in ownership of an observer 
provider that involve a new person will require the observer provider 
to submit a new permit application prior to the effective date of the 
new ownership arrangement.
    A new applicant for an observer provider permit will 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 applicable regulations; 
(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;

[[Page 72597]]

(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 are fully described and justified in 
the proposed rule (67 FR 58452, September 16, 2002) and are summarized 
below 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.
    (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.
    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 
the final rule at Sec.  679.50(i)(3). NMFS will provide an 
acknowledgment template form, which applicants may 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.
    (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, and the 
arrangements to be used to achieve such responsibilities and duties.
    The final rule also requires 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 final rule change. Signed statements from new board members or 
corporation officers under Sec.  679.50(i)(1)(ii)(C) or (D) also will 
be required (See changes from the proposed rule to the final rule). 
These requirements will help facilitate the communication between NMFS 
and observer providers and help ensure ongoing credibility and 
accountability of observer providers.
    Observer Provider Permit Application Evaluation. The Regional 
Administrator will appoint NMFS' staff members to a review board that 
will evaluate applications for an observer provider permit. The board 
will evaluate each application to determine whether it is complete and 
whether established criteria are met (see below). The board 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 will be used to evaluate an application are 
listed below; the proposed rule (57 FR 58452, September 16, 2002) 
explained why each criterion is needed.
    (1) Absence of conflict of interest. Observer providers cannot have 
a conflict of interest as defined under Sec.  679.50(i)(3) of this 
final rule.
    (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.
    (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.
    (4) Absence of any history of decertification as either an observer 
or observer provider.
    The review board will make an initial administrative determination 
to approve the application or provide 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 will issue an observer provider permit to the 
applicant. The applicant will then be authorized to provide observers 
to industry and will 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 will 
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 will 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. No right to administrative appeal 
for the OAA decision is available. 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 will be required to be 
exercised within 30 days. If the Regional Administrator does not act to 
overturn the OAA decision within 30 days, the OAA decision becomes the 
final agency action. Final agency actions can be further appealed to 
the U.S. District Court. As part of the change to this appeals process 
under this final rule, regulations at Sec.  679.43 are 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 will remain effective through December 31, 2007, unless: (1) 
the observer provider company has a new owner, which requires that a 
new permit application process be initiated under Sec.  
679.50(i)(1)(vi) of the final 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 
final rule; or (3) the permit issued to an observer provider is 
suspended or revoked under Sec.  679.50(i)(1)(viii) of the final rule.
    If a permit lapses after a period of 12 months of inactivity as 
described above,

[[Page 72598]]

NMFS will issue an IAD to the permit holder stating that NMFS records 
indicate that the permit has lapsed and that the permit holder has the 
opportunity to appeal the determination. The IAD will also detail the 
appeals process available to the permit holder. Permit holders who 
appeal
    this IAD will be issued an interim permit so they can operate while 
their appeal is reviewed.
    Observer Provider Sanctions. This final rule changes the process 
for observer provider permit revocation or suspension from an 
administrative process conducted by the Observer Program Office and the 
Alaska Regional Office to an enforcement process. Exclusive use of the 
agency's enforcement process for permit sanctions will enhance the 
agency's ability to obtain compliance with its regulations and create a 
consistent permit suspension and revocation process. Under this 
process, 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 may issue a Notice of Violation and 
Assessment (NOVA) 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 NOVA and Notice of Permit Sanction procedures are established 
at 15 CFR part 904. This final rule removes 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 will cease to maintain a separate 
process for suspension or revocation of an observer provider permit. 
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 are required 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 processors 
in Alaska that harvest or process groundfish and require observer 
coverage. NMFS provides certification training throughout the calendar 
year, depending on the availability of trainers 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 will be considered to have met certification 
requirements under this final rule. NMFS will issue each of these 
observers a new certification and certification training endorsement 
prior to their first deployment after December 31, 2002, unless NMFS 
determines that the observer has not been deployed, performed sampling 
duties, and debriefed successfully in the preceding 18 months. Under 
the final rule, these observers would be required to obtain 
subsequently the appropriate endorsements (described below) to their 
certification prior to each subsequent deployment. These observers will 
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.
    Observer Certification Process. This final rule modifies existing 
procedures and adds certain new requirements. The Observer Program will 
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 final rule, NMFS will 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 certification training class; and (3) meet all 
pre-deployment requirements set forth in the final rule, including 
education requirements at Sec.  679.50(i)(2)(i)(A)(1) through (4), a 
signed statement that discloses any criminal convictions under Sec.  
679.50(i)(2)(x)(A)(1)(iv), and a physical examination as required under 
Sec.  679.50(i)(2)(x)(C).
    The observer provider is required to submit substantiating 
information for certification, with one exception, to NMFS at least 5 
business days prior to the beginning of a scheduled observer training. 
If the required observer information is not submitted 5 business 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 will be 
made by a certification official within the Observer Program, appointed 
by the Regional Administrator. As is current practice, certification 
will 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 will be verbally notified 
on or before the last day of training. Within 10 business days of the 
verbal notification, the candidate and his or her observer provider 
will be notified in writing. The written notification will 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 will 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.
    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 are amended under this 
final rule 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 will 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. This final rule replaces the current system of pre-
deployment certification with a system of certification endorsements. 
Under this action, observers will receive a certification that will 
expire with the expiration of the 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 
will be required to deploy as an observer:

[[Page 72599]]

    (1) Certification training endorsement. A certification training 
endorsement will signify the successful completion of the training 
course required to obtain observer certification. This endorsement will 
be granted with the initial issuance of an observer certification and 
will be required for any deployment as an observer in the BSAI or GOA 
groundfish fisheries. This endorsement will 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 will 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 will 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 will be 
required to receive a deployment endorsement to his or her 
certification prior to any subsequent deployments that year. An 
observer will 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 will be specified in writing by the Observer Program 
Office during the observer's most recent debriefing.
    (4) Level 2 and Level 2 ``Lead'' endorsements. Observers wishing to 
deploy aboard vessels participating in CDQ fisheries and in AFA 
fisheries as ``level 2'' observers currently are required to meet 
specific levels of observer experience and to successfully complete 
additional training to obtain a ``CDQ'' certification. Under this final 
rule, these requirements would not change, with one nomenclature 
exception. The term ``CDQ certification'' will 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 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 will be 
changed to an endorsement for the reasons stated above. Similar changes 
for current Level 2 ``lead'' observer certifications are made as well. 
A level 2 ``lead'' endorsement reflects specific experience on 
different types of vessels using different gear types.
    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 will require that an observer receive an evaluation by NMFS that 
indicates that the observer's performance met Observer Program 
expectations for the previous 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. The final rule will maintain initial observer suspension and 
decertification determinations within the purview of the Observer 
Program but moves appeals of these determinations to the OAA to provide 
more assurance of objectivity in final decision making. The Observer 
Program will 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 this final rule, the Regional Administrator will 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 will 
detail the reasons for and the terms of the action. The notice will 
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 suspension/decertification officer will create 
a written record. If the observer does not contest the proposal to 
decertify or suspend the certificate, the observer suspension/
decertification officer's initial decision will become final.
    If the observer wants to appeal an adverse initial determination by 
the observer suspension/decertification officer(s), the decision will 
be referred to the OAA. The OAA will 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 will 
be referred to the Regional Administrator. 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. The Regional Administrator will be required to exercise this 
discretion within 30 days. If the Regional Administrator does not act 
to overturn the OAA decision within 30 days, the OAA decision becomes 
the final agency action. Final agency actions can be further appealed 
to the U.S. District Court.
    The OAA system will 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 will 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 will continue to be handled by GCEL/AK, with 
appeals directed to ALJs. Successful prosecution of these cases will 
result in penal sanctions. Penal sanctions are those penalties that 
result from criminal prosecution or from civil prosecution that result 
in monetary fines.

[[Page 72600]]

 Predictably, given past experience, these will be very rare actions. 
Only one such observer case has been referred to GCEL/AK.
    Observer and Observer Provider Responsibilities. The final rule 
modifies existing observer and observer provider responsibilities to 
clarify NMFS' intent and to eliminate ambiguities. Five new observer 
provider responsibilities, described below, also are established to 
better address observer and observer provider performance issues of 
particular concern.
    New observer provider responsibilities. Five new provisions are 
established to require (1) that a new observer drug and alcohol policy 
provided by NMFS to observer providers is included in written contracts 
or contract addendums between observer providers and 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 be completed prior to an observer's 
assignment being changed; and (5) that observer providers provide 
observer candidates with a NMFS-produced pamphlet describing the duties 
of an observer. The NMFS-produced pamphlet describing the duties and 
working environment of the observer will be available prior to 2003 and 
will be required to be issued to observer candidates by observer 
providers during candidate interviews under this final rule.
    A full description of the new responsibilities and reasons for them 
are set forth in the preamble to the proposed rule (67 FR 58452, 
September 16, 2002) and are not repeated here. NMFS did propose an 
additional requirement, which is included in the final rule, that will 
require observer providers to have a signed written contract or 
contract addendum 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 final rule authorizes 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. NMFS 
expects this action to improve its 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, observers, and observer providers.
    The Magnuson-Stevens Act provisions authorizing collection of 
information for purposes of conservation and management of a fishery 
provide statutory authority to place observers aboard vessels. 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 final rule 
modifies the definition of an observer to include NMFS staff and 
individuals authorized by NMFS and provides 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.
    Staff observers will provide information that could be used to 
better train, support, and debrief groundfish observers. Staff observer 
deployments will 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. Further discussion and justification of this program 
is presented in the preamble to the proposed rule (67 FR 58452, 
September 16, 2002).
    Observer Coverage Requirements and Observer Procurement. This final 
rule requires vessels, shoreside processors, or stationary floating 
processors to carry NMFS staff or other individuals authorized by NMFS 
upon written request by the agency. These individuals will 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 will be made with consideration of 
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 will also be considered.
    A majority of staff deployments to vessels and processors are 
expected to satisfy requirements for observer coverage as specified in 
Sec. Sec.  679.7(f)(4) and 679.50(c) and (d). A determination on 
whether any staff deployment will meet coverage requirements for a 
specific vessel or processor will be made by NMFS in advance of each 
staff deployment. Notification of the determination will be made in 
writing to the vessel owner and/or operator, as well as to any observer 
provider contracted by the vessel to provide observer coverage. This 
determination largely will 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 do 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 may 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 also 
will notify affected observer providers to the extent that the 
deployment of NMFS staff or other authorized individuals would affect 
prior arrangements for observer coverage. NMFS will not have regulatory 
authority to order a vessel to port to commence such a deployment. 
However, a vessel selected for a deployment will be required to work 
with NMFS to develop deployment logistics. This will 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 will be responsible for

[[Page 72601]]

transportation and shoreside lodging costs associated with staff 
deployments.
    Requests for Staff Observers. Owners and operators of vessels, 
shoreside processors, and stationary floating processors, observers, 
and observer providers will be able to submit written requests for 
assistance from NMFS to improve observer data quality or resolve 
observer sampling issues. Fulfilling these requests will be at the 
discretion of NMFS, and requests will be evaluated according to 
specific needs and staff resources.

Response to Comments

    Four letters were received during the public review and comment 
period on the proposed rule. These letters contained 40 unique comments 
that are summarized and responded to below.
    Comment 1: The permit process for the observer providers needs to 
include observer input as part of the evaluation process. In our 
opinion, the permit is analogous to a Federal contract and services 
provided under such contracts are evaluated at regular intervals. We do 
not feel that a permitted provider should be exempt from similar 
evaluations.
    Response: NMFS disagrees that issuance of an observer provider 
permit is analogous to a Federal contract. NMFS does value the input 
from observers concerning the performance of their observer providers 
and has given observers the opportunity to provide that input through 
an anonymous exit survey at the end of each cruise. A portion of this 
survey questions observers specifically about their observer provider's 
performance. At least once a year, NMFS summarizes this information and 
reviews it with each provider. NMFS will continue this type of review 
under the new regulations. NMFS has not conducted formal evaluations of 
observer provider performance for many years and does not intend to 
begin doing so. NMFS will continue to address performance issues as 
they arise with individual providers. Comment 2: Previously, the 
regulations included a caveat to lower hiring standards if an 
insufficient number of applications were submitted from candidates with 
bachelor degrees. Is this regulation no longer applicable?
    Response: A December 30, 1997, final rule extended the Observer 
Program through 1998 and included a change to the non-codified elements 
of the Observer Program that outline observer qualifications. For 
prospective observers, the change established: (1) minimum education 
and experience requirements, (2) specific coursework and skills 
requirements, and (3) that candidates successfully complete a screening 
test of basic mathematics, algebra, and computer skills. Since this was 
a new, non-codified requirement, NMFS included a caveat that if a 
sufficient number of candidates meeting these requirements were not 
available, the observer provider could seek approval from NMFS to 
substitute individuals with either a senior standing in an acceptable 
major, or an Associate of Arts degree in fisheries, wildlife science, 
equivalent degree, or other relevant experience or training.
    The caveat was inserted to help providers during the transition to 
higher standards, but the education and experience requirements have 
been in place for over 4 years and NMFS feels the observer providers 
are finding and recruiting qualified applicants. For that reason, the 
non-codified exception to these requirements has been removed and is no 
longer applicable.
    Comment 3: At Sec.  679.50 (i)(2)(vii), the proposed rule states, 
``Unless alternative arrangements are approved by the Observer Program 
Office, an observer provider must not: (B) deploy an observer for more 
than 90 days;''. It would be useful to define when deployment time 
starts and stops. Our current understanding is that the countdown 
begins the day the observer boards his or her first vessel and ends the 
day the observer disembarks his or her last vessel. With the current 
wording, deployment time could be defined as starting when an observer 
leaves the site of their briefing for the field and continuing until 
they leave the field to debrief.
    Response: Deployment is defined at Sec.  679.2. The definition 
reads, ``Deployment means the period between an observer's arrival at 
the point of embarkation and the date the observer disembarks for 
travel to debriefing.'' To further clarify, arrival at the point of 
embarkation is when an observer boards his or her first vessel or 
arrives onsite at his or her first processor.
    Comment 4: We have requested that safety training for prior 
observers be modified to coincide with requirements of sea-going NMFS 
staff, other survey staff such as IPHC, or other observer programs. 
This request does not appear to be addressed in the proposed rule. We 
would like to see this policy modified within the Observer Program 
regardless of whether it appears in the final rule.
    Response: Safety training is an important priority in the Observer 
Program. In September and October 2002, NMFS held four meetings on 
observer safety to gather ideas. Participants in these meetings 
included representatives from the Association for Professional 
Observers, observers, observer providers, NMFS staff, and Observer 
Training Center (OTC) staff. Once compiled, the results of each meeting 
will be used to modify and improve the safety training observers 
receive. In addition, NMFS has been working with the OTC to evaluate 
observer training and to explore options for offering returning 
observers advanced training.
    Comment 5: Paragraph one on page 58468 of the proposed rule states, 
``The proposed regulation would require that observers complete a NMFS 
electronic vessel and/or processor survey prior to their final 
debriefing...'' Did you mean ``prior to being deployed in a non-
groundfish fishery?''
    Response: NMFS agrees that the proposed rule preamble language was 
not completely accurate. However, the proposed regulatory text did 
correctly require that observers complete a NMFS electronic vessel and/
or processor surveys before performing other jobs or duties which are 
not part of NMFS groundfish observer requirements.
    Comment 6: The proposed rule states development and implementation 
of research projects are a component that will justify NMFS placement 
of staff on board vessels. We support this justification but request 
the agency publish an annual report or summary of these projects. We 
have requested specific information on data needs and priorities from 
NMFS for almost a decade to no avail. Some people feel the lack of 
agency articulation regarding data needs is a major stumbling block in 
redesigning/restructuring the Observer Program.
    Response: If requested by the Council, NMFS will provide periodic 
reports on NMFS staff involvement in the development and implementation 
of research projects that this rule making will allow. NMFS may also 
pursue other outlets such as the Alaska Fisheries Science Center's 
Quarterly Report. The broader issue of requesting specific information 
on data needs and priorities is beyond the scope of this rule making. 
Nonetheless, NMFS is committed to working with the Council and other 
interested parties in providing information necessary to support long 
term planning for the Observer Program. Also see response to Comment 
30.
    Comment 7: It concerns us to find proposed regulations in the 
Federal Register that had previously been rejected, were significantly 
altered after being accepted by the Council, or were entirely new and 
not previously discussed in a public forum.

[[Page 72602]]

    Response: NMFS acknowledges that the development of regulatory text 
after Council action, and the subsequent agency and NOAA General 
Counsel review of draft text, resulted in numerous changes or additions 
to regulatory text to meet or clarify intent. NMFS disagrees that 
regulatory provisions were included in the proposed rule that had been 
``rejected'' by the Council. The opportunity for prior public notice 
and comment on the proposed regulations is intended to give additional 
opportunity for public review of policy and intent beyond the Council 
process and how that intent is incorporated in proposed rule making. 
While not all detailed issues may be addressed in the Council process, 
they must be addressed by NMFS during the public rule making process. 
This process complies with the Magnuson-Stevens Act, the Administrative 
Procedure Act, and other applicable law.
    Comment 8: Section 679.50 (h) Procurement of observer services. As 
written in the proposed rule, this regulation has no qualification or 
certification process for NMFS staff assigned to vessels. Significant 
potential exists for untrained individuals to be assigned to vessels in 
lieu of qualified observers.
    Response: It would serve no purpose for NMFS to deploy untrained 
individuals in lieu of observers. NMFS intends to deploy NMFS staff and 
other qualified persons who meet or exceed the requirements an observer 
must meet. Most if not all individuals being considered for deployment 
are former groundfish observers who currently train or debrief 
groundfish observers.
    Comment 9: Without a cap on the number of days NMFS can deploy 
staff on vessels, the possibility arises that NMFS could use this 
regulation to alter the Observer Program extensively without further 
deliberation in the Council process. The potential impact on free 
enterprise has not been considered, nor the enforcement and monitoring 
implications to the vessels.
    Response: NMFS presented several options to the Council that would 
have limited the number of annual deployment days. Following 
deliberation on these options, the Council selected no annual cap. NMFS 
does not have the budget or staff to extensively impact free enterprise 
with respect to providing observer services and intends to deploy NMFS 
staff or qualified persons in lieu of observers only when necessary. 
NMFS fails to see how the lack of a cap on NMFS deployments has 
enforcement and monitoring implications for vessels.
    Comment 10: We would like to request that NMFS notify the observer 
provider that a vessel they provide coverage for will be required to 
carry NMFS staff at the same time NMFS notifies the vessel or 
processor.
    Response: NMFS agrees that observer providers need as much advance 
notice as possible when a vessel or processor will carry NMFS staff in 
lieu of an observer. NMFS will make these notifications to observer 
providers.
    Comment 11: The owner and operator's right to contact NMFS in 
writing to request assistance in improving observer data quality and 
resolving observer issues at Sec.  679.50 (e)(3) should be extended to 
observers and observer providers.
    Response: Observers and observer providers may contact NMFS with 
requests and the appropriate changes have been made to Sec.  679.50 
(e)(3).
    Comment 12: In the preamble on page 58457 NMFS would require all 
observer applicants to meet all pre-deployment requirements established 
by the Observer Program. We are uncertain what these requirements are 
and how they would affect the observer providers and observers.
    Response: The preamble to the proposed rule states that 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. The pre-deployment requirements were described in the proposed 
rule in two places, at Sec.  679.50 (i)(2)(i)(A)(1-4) on page 58473 and 
Sec.  679.50 (i)(2)(x)(A)(1)(iv) and (i)(2)(x)(C) on page 58474. The 
preamble to the final rule clarifies that these requirements are set 
forth in regulations.
    Comment 13: NMFS states they will notify observer candidates in 
writing if the candidate fails the training class. We would like to 
request that NMFS also notify the observer providers in writing if an 
observer candidate fails.
    Response: NMFS has amended Sec.  679.50 (j)(1)(iii)(B)(4)(ii) to 
clarify NMFS' responsibilities if an observer candidate fails training. 
On or before the last day of training, NMFS will verbally notify the 
observer candidate whether he or she has failed training and also 
provide the reasons for failure. Within 10 business days, NMFS will 
notify the observer candidate in writing. The notification will 
indicate the reasons the candidate failed and whether the candidate can 
retake the training.
    NMFS is not able to provide either verbal or written notification 
of this type to observer providers under the Privacy Act unless the 
observer candidate has signed a written waiver authorizing the 
disclosure of this information to an observer provider. However, 
contract provisions between observer providers and observer candidates 
could include such a waiver so that NMFS could release this information 
to observer providers. Similarly, observer candidates could provide 
their observer provider any written correspondence from NMFS. Given 
Privacy Act constraints and options to observer providers to obtain 
this information under consent of an observer candidate, NMFS is not 
pursuing a regulatory change that would authorize the release of verbal 
or written notification to observer providers.
    Comment 14: Under the proposed regulation change an observer 
candidate will be notified whether he or she will be allowed to retake 
the training class should he or she fail training. We request that NMFS 
clarify the criteria for applicants retaking the NMFS training class.
    Response: Historically, NMFS has not allowed candidates to retake 
training if they failed the NMFS certification training. NMFS has 
allowed candidates to retake training if they withdrew from training to 
address personal issues that developed during the course of the 
training or to address deficiencies noted prior to the end of training. 
NMFS will continue to allow candidates who meet the two conditions 
noted above to retake training. Outside of those conditions, candidates 
may fail for a host of reasons ranging from behavior problems to lack 
of technical skills. For this reason, each observer candidate must be 
evaluated on a case-by-case basis taking into account the reasons 
behind their failure. Regardless of whether NMFS decides an observer 
can or cannot retake the certification training, NMFS' decision can be 
appealed by the observer under the new regulations.
    Comment 15: Under the proposed rule, NMFS would require observer 
providers to contact the Observer Program within 5 days after 
completion of an observer's deployment to schedule a debriefing. Please 
clarify if that is 5 calendar days or 5 business days?
    Response: NMFS has clarified the requirement at Sec.  
679.50(i)(2)(x)(E) as 5 business days.
    Comment 16: We would like clarification as to how NMFS-provided 
pamphlets and other literature describing observer duties and the 
Observer Program's drug and alcohol policy may be distributed to 
observer candidates. Does each candidate need to be mailed or faxed a 
hard copy or can

[[Page 72603]]

this information be provided electronically (e.g., e-mail or web site)? 
We are also unsure what the content of the pamphlet on observer duties 
will be.
    Response: The informational pamphlet on observer duties and the 
Observer Program's drug and alcohol policy will be available in hard 
copy upon request and on the Observer Program's web site. NMFS agrees 
that this information can be provided to observer candidates 
electronically. The pamphlet on observer duties will describe what role 
observers fill, the job training, living and working conditions, 
observer job duties, and basic requirements to qualify as an observer.
    Comment 17: The proposed rule requires observer providers to 
distribute copies of the NMFS drug and alcohol policies to their 
observers. We are not opposed to having or distributing such policies, 
but we would like the opportunity to comment on such policies before 
distributing them.
    Response: NMFS solicited comments from a variety of sources and 
distributed a draft of the Drug and Alcohol policy to all observer 
providers on August 26, 2002. NMFS requested comments by September 15, 
2002, but no comments were received by the deadline. One observer 
provider commented after the deadline and their comments will be taken 
into account as we finalize the policy. If subsequent input on this 
policy suggest the policy should be modified, NMFS will consider doing 
so.
    Comment 18: The proposed rule requires a statement from observer 
(provider) applicants ``describing any criminal convictions'' by the 
applicant, which are later described in Sec.  679.50(i)(1)(iii)(A)(2) 
as: (i) embezzlement, theft, forgery, bribery, falsification, 
destruction of records, making false statements, receiving stolen 
property, or (ii) 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. While we 
understand the rationale behind this regulation, this was never 
discussed as part of the application process and we recommend it be 
removed from the rule.
    Response: Criminal conviction disclosure will be in place for 
persons wishing to become new observer providers and any new persons in 
the management, organizational structure, and ownership structure of an 
observer provider. Without this information, NMFS could not be assured 
of having knowledge of new applicants, managers or owners, and it is in 
the public interest for NMFS to screen these applicants. This screening 
process includes an evaluation of their criminal convictions because 
convictions relating to embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements or 
receiving stolen property could influence a person's ability to fulfill 
the expectations of an observer provider and predispose an applicant 
toward future compliance issues. Given these factors, NMFS needs to 
have the ability to assess persons relative to potential regulatory 
compliance issues and protect the fishing industry and observers from 
individuals whose credibility and accountability to the program are 
questionable. Also see response to Comment 7.
    Comment 19: In reference to observer candidates disclosing criminal 
convictions, we are concerned that this regulation, in its present 
form, has not been discussed with the observer providers. We are also 
concerned about the use and intent of this regulation. Will some 
applicants not be admitted to training and could prior observers lose 
their job? We would like to see specific information and guidelines as 
to how NMFS will use this information. The types of convictions an 
observer must disclose is vague, the regulation should be refined to 
include either felonies as discussed with the Council or be expanded 
similar to the observer provider disclosure.
    Response: This regulation was discussed at length during the 
Council process. Observers whose certification was current prior to 
this rule taking effect will not be required to disclose their history 
unless their certification lapses and they need to reapply for 
certification (see Sec.  679.50(j)(iii)). Applicant disclosure of 
criminal convictions will be used to screen applicants and may be 
grounds for not admitting individuals to training. NMFS received 
specific guidance from the Council on this issue and the Council motion 
suggested NMFS screen applicants on a case-by-case basis and that 
applicants disclose their past criminal record without regard to the 
type of conviction. The outcome of each screening will be based on the 
nature of the criminal conviction as it relates to the job NMFS expects 
observers to perform.
    Comment 20: Some of the background provided as supplementary 
information for this rule making is clearly out of date. For instance 
(from the proposed rule, pg. 58452), ``Competitive pressure to reduce 
coverage costs to the industry keeps observer salaries low, resulting 
in reduced observer availability.'' Observer salaries will range from 
$3,900 per month for new observers to $5,610 per month for experienced 
observers in 2003. Also, ``Instability in the fishing and observer 
provider industries has created situations in the past where observers 
were not paid for work performed.'' That would have been 1994 or so: if 
observer morale is still low, as the background alleges, events of 1994 
can not be blamed.
    Response: NMFS agrees that some of the issues experienced within 
the Observer Program in past years no longer appear to be a problem. 
However, we have no assurance that similar issues will not be 
encountered again in the future. A strong, credible Observer Program is 
of paramount importance to the monitoring and management of the North 
Pacific fishery resources. Recognition of this fact continues to 
provide the initiative for improvements to this program, including this 
final rule.
    Comment 21: The new permitting, certification, and decertification 
procedures for observers and observer providers appear in large part to 
be a continuation of current practice dressed up in new terminology. We 
want to point out that any new system of ``observer certification 
endorsements'' needs to be implemented in such a way as to allow the 
``certification official'' to issue these endorsements on the very 
afternoon an observer completes training or briefing. If the new system 
is not able to meet this time line, it will result in an Observer 
Program that is less efficient and less responsive to industry needs 
which will cost industry more money.
    Response: NMFS understands the need for timely decisions for all 
observer endorsements under the new system. The system will be set up 
such that the certification official can issue endorsements the same 
day observers successfully complete training or briefing, which will 
ensure they are available for immediate deployment.
    Comment 22: The proposed rule calls for providers to replace lost 
or damaged gear, but that raises the question as to whether gear that 
wears out due to normal use is also our responsibility. It would also 
be helpful if the Observer Program would provide us with a list of 
required and optional gear that NMFS provides for observers and with a 
list of vendors and replacement cost for each item in the event we need 
to purchase replacement gear. Would the observer provider replace the 
gear itself or simply reimburse NMFS? How and when will NMFS notify us 
that gear has been lost or damaged? We request that NMFS be required to 
notify providers within 5 business days of receiving an observer's gear 
of any items in need of

[[Page 72604]]

replacement. This will allow us to recoup costs from our observers if 
gear was lost or damaged due to negligence.
    Response: Upon request, NMFS can provide a list of required and 
optional gear that includes a list of accountable items. NMFS does not 
expect observer providers to replace gear that wears out due to normal 
use. NMFS does not have a way of accepting reimbursements for lost or 
damaged gear. Instead, observer providers are expected to purchase 
replacement gear and have it shipped to the nearest Observer Program 
facility. If an accountable gear item is lost or damaged NMFS will 
notify observer providers within 5 business days of learning 
accountable gear has been lost or damaged. Included with that 
notification will be a list of vendors and estimated cost for 
replacement.
    Comment 23: This proposed rule requires observer providers to 
provide observers as requested by vessels and processors who need to 
fulfill their observer coverage requirements. Will we be required to 
respond to any such request, even if it is made by a vessel who failed 
to pay us last year? By a vessel we abandoned as unsafe last month? By 
a vessel who calls only two weeks or two days before needing an 
observer? By a vessel with which we have no contract? The answer we 
will give to any of these questions is ``No'', but the question is, by 
so answering, will we be in violation? If the answer to that question 
is ``Yes'', then the proposed text needs to be re-written. We suggest 
the wording to this regulation be changed to, ``An observer provider 
must provide an observer for deployments as requested by vessels and 
processors, with which the provider has a current signed contract, to 
fulfill vessel and processor requirements...'' Similar wording was 
proposed in an earlier draft, but it has been changed. This change is 
necessary to protect the provider from being penalized for not 
providing observers for vessels that have not been offered a contract.
    Response: The proposed rule does not change existing regulatory 
text addressing the expectation that observer providers supply 
observers as requested by vessels and processors to fulfill industry 
observer coverage requirements. As in the past, NMFS and NOAA will take 
into account any and all mitigating factors (such as those outlined in 
the comment) prior to making a decision to pursue an enforcement action 
against an observer provider. While NMFS supports private contract 
arrangements between observer providers and their clientele, NMFS is 
not optimistic about a contract requirement being able to unilaterally 
assure industry that observers always will be available when necessary 
to satisfy coverage requirements, particularly if a lack of planning 
results in last minute requests. NMFS also recognizes countervailing 
needs of observer providers and vessel or processor owners and 
operators who require observer services to maintain compliance with 
observer coverage requirements. Observer providers cannot be forced to 
enter into a contract arrangement with a person they believe represents 
inappropriate business or safety risks. Conversely, industry members 
need assurance that observer services will be available when they need 
them so that fishing operations are not negatively impacted. NMFS is 
optimistic that the existing program can be enhanced in the future to 
address these issues and is working with the Council and its Observer 
Advisory Committee to develop alternatives for analysis.
    Comment 24: The proposed rule requires that a written contract 
exist between observer providers and observers. Most observers are 
currently employed by providers who have a contract with the Alaska 
Fisheries Division of the United Industrial Workers. These providers 
have contracts with the union, not with individual observers. To be 
accurate, the text should require either ``written contracts'' for non-
union providers or ``written contract addendums'' for union providers.
    Response: NMFS recognizes there are both union and non-union 
observer providers and has made a change to the regulation language at 
Sec.  679.50(i)(2)(i)(C) to include both contracts and contract 
addendums.
    Comment 25: During the Council process it was decided that language 
would be added that allows for observers to verbally agree to a 
contract extension. In some cases observers are working different 
contracts (i.e., ADF&G Shellfish, NMFS Marine Mammal). Observer 
providers may ask a prior observer to switch between assignments in the 
field. Providers should only be required to provide new contracts if 
there is a substantial change in contract language or during the first 
contract for a new calendar year. We suggest the language, ``The 
contract must be signed by the observer and observer provider prior to 
the observer's deployment...'' be replaced with, ``The contract must be 
signed by the observer and observer provider prior to the observer's 
initial deployment in a new calendar year...''
    Response: For each cruise an observer participates in it is 
important there be a signed contract or contract addendum between the 
observer and observer provider. As pointed out in Comment 24, not all 
observer providers have a contract with the union, therefore, without 
this regulation NMFS has no assurances that observers will have the 
protection of a contract. In addition, regulations such as Sec.  
679.50(i)(2)(v) rely on there being a contract between the observer and 
observer provider.
    Comment 26: Observers often line up work while they are traveling 
and without access to fax, e-mail, or mail. In addition, observers 
often arrive in Seattle and depart for Anchorage that same evening, and 
in such cases we should not be expected to get a contract addendum to 
them until they are already in briefing. In other cases, observers who 
have been granted a briefing waiver and are being deployed on an 
emergency basis (to take the place of an injured or ill observer for 
instance) do not stop in Seattle or Anchorage before reaching their 
port of embarkation. In these cases we should not be expected to get a 
contract addendum to them until early in their field deployment. As 
written, this requirement for a contract between an observer and their 
provider will decrease the flexibility we have developed to cope with 
unforseen coverage problems. We are bound by our contract with the 
union whether or not we have a signed addendum with an observer; as a 
union contractor, we find this regulation unnecessary.
    Response: Regulations at Sec.  679.50(i)(2)(C) require that a 
written contract must be signed prior to an observer's deployment. 
According to Sec.  679.2, a deployment begins upon arrival at the point 
of embarkation (see also response to Comment 3). Except for emergency 
situations, as outlined in the comment, obtaining a signed written 
contract should not be problematic for observer providers. At least one 
observer provider has an office in each of the major ports or cities 
observers travel through on their way to deployments (i.e., Anchorage, 
Seattle, Kodiak and Dutch Harbor). Given the fact that an observer must 
travel through at least one of these locations in order to reach a 
vessel or processor, NMFS believes observer providers will have ample 
opportunity to get a contract or contract addendum to observers prior 
to their deployment. See also response to Comments 24 and 25.
    Comment 27: We are opposed to the proposed regulation that NMFS 
would require observer providers to obtain a signed contract from the 
observer prior to deployment. We had a teleconference on this issue and 
after much discussion, NMFS said they would not pursue this

[[Page 72605]]

regulation. This proposed regulation was not included in the changes 
proposed to the Council so they have not had an opportunity to comment 
on it.
    Response: NMFS would like to clarify. The meeting referred to in 
the comment occurred on November 7, 2001, which was very early on in 
the regulatory process. At this meeting NMFS agreed to not pursue a 
requirement that observer providers have a signed contract with each 
observer before the observer enters training or briefing. NMFS agreed 
to this for the reasons outlined in Comment 26. The regulation was 
resurrected in a new format, which requires a signed contract prior to 
deployment, as the regulations were developed for reasons outlined in 
the response to Comment 25. See also response to Comment 7.
    Comment 28: In the section of the proposed regulations that deals 
with new physical ailments prior to observer deployment, we believe the 
word ``not'' has been misplaced. We believe the regulation should read, 
``An observer provider must assign to vessels or shoreside or floating 
processors only observers: who have not informed the observer provider 
at the time of embarkation that he or she is experiencing any new 
physical ailments or injury since submission of the physician's 
statement...'' By rewording the regulation observers will only be 
required to contact their provider if there is a problem, which will 
cut down on unnecessary communication expenses and free up time better 
spent dealing with observers who have informed us of an illness or 
injury. We think it is a mistake to single out ``physical'' ailments 
for reporting. Mental illness needs to be included in whatever language 
is settled upon.
    Response: NMFS agrees and has made the necessary word change and 
added mental illness to Sec.  679.50(i)(2)(iii)(B).
    Comment 29: Observers are responsible for informing us in a timely 
manner if they are sick or injured, and we are responsible for having 
their illness or injury addressed before they return to work, whether 
on the same or another vessel. Under our approach, medical personnel 
determine whether an observer can work or not. Usually the medical 
personnel and the observer are in agreement as to the observer's 
fitness, but where there is disagreement, the situation is most likely 
to be one where the observer thinks they can go on working, but medical 
staff disagree. The proposed text, which would allow the provider to 
take an observer's word as to their fitness, could lead us to deploy 
observers who are less fit as a group than the observers who get 
deployed under our current approach.
    Response: NMFS agrees. See response to comment 28.
    Comment 30: We view this regulatory package as yet another short-
term band-aid for problems that require a long-term solution. The 
background statement indicates the Observer Advisory Committee and 
Council have failed to develop a new plan. The agency needs to take the 
lead to revamp the Observer Program by instituting the Research Plan 
(or something similar) with or without the Council's approval. The 
Council process has not produced a solution in over a decade; why 
should we expect this to change within the next five years?
    Response: NMFS agrees that long term solutions to several 
longstanding issues within the Observer Program have been difficult to 
identify, develop, and implement. NMFS recognizes that a leadership 
role exists for the agency in providing long term changes to the 
Observer Program and is committed to refocusing effort toward this 
goal. NMFS recognizes, however, that effective change will require 
support from the Council and intends to work within the public Council 
process to develop and ultimately implement necessary changes. 
Notwithstanding lack of action since repeal of the Research Plan in 
1995, we remain optimistic that meaningful changes can and will be 
pursued over the next 5-year period.
    Comment 31: The proposed rule states, ``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.'' This language is confusing since many vessels 
require 100 percent observer coverage and the general prohibitions of 
the Magnuson-Stevens Act (MSA) at Sec.  600.725(s) state that vessels 
may not ``fish without an observer when the vessel is required to carry 
an observer.'' The proposed rule seems to conflict with the MSA.
    Response: NMFS would like to clarify statements made in the 
preamble to the proposed rule. 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. From 
the perspective of the Coast Guard, this program is voluntary as the 
Coast Guard does not require commercial fishing vessels to undergo 
these inspections. NMFS, however, mandates otherwise in regulations 
that require fishing vessels carrying observers to obtain a Coast Guard 
inspection in order to be issued a valid commercial fishing vessel 
safety decal. Thus, while the Coast Guard program is voluntary, 
obtaining a valid safety decal is mandatory under NMFS regulations for 
vessels carrying observers. NMFS disagrees that this approach conflicts 
with the Magnuson-Stevens Act.
    Comment 32: While we would prefer that staff be able to verify 
fishing vessel safety decals, it just is not possible for staff to be 
in every single port where we deploy observers. If an observer verifies 
the decal, will that alone meet this NMFS requirement? If our records 
indicated that an observer verified the decal last week or last month 
and that it is still current, does that suffice, or does the next 
observer need to call it in too? Would it be more efficient to have 
safety decal information provided by the Observer Program and/or the 
Coast Guard about who has current stickers and/or safety concerns/
complaints?
    Response: On page 58467 of the proposed rule, NMFS outlined who 
could verify fishing vessel safety decals to satisfy this requirement. 
One of the options allows observer provider employees, including 
observers, to verify the presence of a valid decal and convey that 
information to the observer provider via phone, fax, or e-mail. As 
outlined above, this verification must be conveyed to the observer 
provider prior to the observer(s) embarking. A decal must be verified 
before every observer or set of observers embarks on a vessel. In 
addition to decals expiring, they can be revoked by the Coast Guard if 
safety violations are noted. For this reason, NMFS believes the most 
efficient way to verify safety decal information is for the observer 
provider to do it prior to each observer embarking on a vessel.
    Comment 33: A fishing vessel safety decal does not ensure a vessel 
is currently safe. Decals are good for two years! Having a Coast Guard 
safety decal is not an effective solution to the problem at hand. We 
feel the regulations should be strengthened on the backside of the 
issue. What steps does an observer provider take if an observer reports 
an unsafe vessel? Our policy has always been to support the observer 
should he or she decide not to board a vessel due to safety concerns.
    Response: NMFS agrees that having a valid fishing vessel safety 
decal does not guarantee a vessel is safe. However, it does mean that 
the vessel has undergone an inspection by Coast Guard personnel who are 
specialists in fishing vessel safety. If an observer reports an unsafe 
vessel to their provider, regulations at Sec.  679.50(i)(2)(x)(I)(3)

[[Page 72606]]

require the observer provider to report any concerns about vessel 
safety or marine casualty to the Observer Program within 24 hours. NMFS 
has a long history of working with the Coast Guard to investigate and 
correct safety issues. Observer providers and other entities are 
encouraged to forward specific safety suggestions to the Coast Guard. 
Also see response to Comment 4.
    Comment 34: NMFS should focus on improving the communication 
between NMFS, providers, USCG, and vessels to create a database of 
safety issues. NMFS must notify providers if observers or NMFS staff 
raise safety concerns about a vessel. NMFS should develop training 
protocols to ensure observers can verify vessel safety. The proposed 
regulation on verifying fishing vessel safety decals does not 
adequately address the issue, and it will be difficult to enforce. It 
seems the main purpose of this regulation is to protect NMFS' liability 
interests and not the real issue of vessel safety.
    Response: NMFS has worked very closely with the Coast Guard, NMFS 
Enforcement, observer providers, and the fishing industry when vessel 
safety issues arise. This cooperation will continue in the future. NMFS 
continues to develop observer safety training and works in cooperation 
with the Coast Guard to ensure observers are able to identify and 
verify safety equipment when they board a vessel. Safety issues 
identified by NMFS staff and observers are documented and passed on to 
the appropriate authorities for resolution. Specific recommendations on 
how to improve observer safety are welcome. Also see responses to 
Comment 4 and Comments 31 - 33.
    Comment 35: The regulation requiring mid-cruise data reviews has 
been debated endlessly, and we agree with the final wording in 
principle, but we request it be amended to read, ``The observer does 
not at any time during their deployment travel through a location where 
Observer Program staff are available and able to complete in a timely 
manner an in-person data review.'' We are concerned that if NMFS staff 
are not able to complete mid-cruises in a timely manner (e.g., due to 
office closures, observers arriving in Anchorage after business hours, 
etc.) that observers, vessels, and observer providers will be forced to 
wait. We would also like NMFS to clarify that the observer providers 
will not have to change their normal logistics if doing so would 
adversely affect the deployment of observers. For example, there will 
be situations where an observer will fly through Anchorage but only to 
make a connecting flight to another port.
    Response: As worded, this regulation states that NMFS staff must be 
available for an observer to complete an in-person mid-deployment data 
review. If an observer will be traveling on a weekend, holiday, or 
after business hours through a location where the Observer Program has 
staff, NMFS has committed to making staff available for in-person mid-
deployment data reviews. NMFS staff expect observer providers to advise 
them in advance in these situations. If after such notification NMFS 
staff are not available, the observer provider would be required to 
ensure their observer complete a phone or fax mid-deployment data 
review as described in the observer manual. In certain situations it 
may be necessary for NMFS to affect normal deployment logistics if an 
observer's errors were so egregious that the agency felt they could 
only be dealt with in-person. NMFS does not believe this will happen 
very often, but affecting logistics for an in-person data review would 
be in the public's interest if it does.
    Comment 36: In the preamble, NMFS states, ``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 
is true of pollock but not of cod, rockfish, flatfish, etc. In its 
current form, this topic has not been addressed and will place 
unnecessary financial burden on both observer providers and industry.
    Response: The preamble language of the proposed rule was too vague 
and did not adequately describe the new regulation. However, the 
regulatory text was correct. At Sec.  679.50(i)(2)(vii)(D) the 
regulations state, ``An observer provider must not: (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.'' NMFS asserts that in the pollock fishery an observer samples 
the catch typically as it enters the plant, but observers delivering 
from other fisheries typically do not have duties at the plant other 
than transmitting their data to NMFS. The regulation clearly describes 
that observers must be allowed to sample and transmit their data, 
neither of which will place an unnecessary burden on observer providers 
or industry.
    Comment 37: There was no discussion of a NMFS-provided pamphlet to 
be distributed to physicians by the observer provider at any time 
during the Council process. We have not had time to review this 
regulation with the Council or NMFS and are uncertain what function it 
would serve. We feel it would duplicate unnecessarily information that 
is already provided to observers, observer providers, and physicians. 
We request this regulation be removed for proper review.
    Response: NMFS did not specifically discuss the distribution of the 
pamphlet to physicians with the Council. NMFS did, however, discuss the 
necessity for this pamphlet to be distributed to potential observers. 
The purpose of the pamphlet, in part, is to provide consistent, factual 
information about observing to observer candidates so that they can 
make an informed decision as to whether observing is for them. NMFS 
feels that physicians, who judge an observer candidate's fitness for 
this job, should have that same information. Regulations at Sec.  
679.50(i)(2)(x)(C) require 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...'' NMFS feels 
distribution of the NMFS-provided pamphlet to physicians by observer 
providers is the most effective way to ensure they make informed 
decisions on observer fitness. See also response to Comment 16.
    Comment 38: Within the proposed regulation at Sec.  
679.50(j)(2)(ii)(D)(3) we are unclear what ``substantially affected'' 
means in this context. For example, if an observer has a boyfriend/
girlfriend that works on a vessel, can the observer be deployed to a 
different vessel within the same fishing company? Please clarify and 
provide examples.
    Response: If the performance or non-performance of an observer's 
duties would benefit or harm the value or substance of vessel or 
processing plant personnel or the profits such individuals receive, it 
would meet the definition of ``substantially affected.'' NMFS 
encourages observer providers to seek guidance from NMFS for unique 
situations to better ensure that conflict of interest standards are not 
violated.
    Comment 39: With respect to observer provider responsibilities in 
the proposed rule, item 2 under Sec.  679.50(i)(2)(i)(C) requires the 
observer's signed contract to contain, as a condition of continued 
employment, a provision that catch messages be submitted to the 
Observer Program at least every 7 days. If an observer has been 
deployed to shoreside fisheries and is not able to submit their catch 
message prior to their next assignment (due to waiting for a fish 
ticket, paperwork not complete, no access to communications equipment 
at the plant,

[[Page 72607]]

etc.) and the observer is deployed to a vessel that will not return to 
port within seven days so the catch message may be submitted, is the 
observer in breach of contract? We request NMFS clarify what ``unless 
otherwise specified by the Observer Program'' means as it relates to 
this proposed wording.
    Response: NMFS has specified that catch messages be received at 
least every 7 days because that schedule typically satisfies the quota 
tracking needs. In certain situations (e.g., a fishery is about to 
close), NMFS requests that observers submit their catch messages twice 
per week or daily to allow for a more exact estimation of when fishing 
needs to cease before the quota is exceeded. The wording, ``unless 
otherwise specified by the Observer Program'' is necessary to 
accommodate more frequent data needs in these situations. As outlined 
in the comment, situations exist when an observer cannot submit their 
catch message at least every 7 days, and NMFS fully understands this. 
When catch messages are not being received at least every 7 days, NMFS 
will examine the situation and make a determination as to whether the 
observer is being negligent in the performance of their duties and 
therefore not fulfilling an element of their contract. This information 
will be provided to the observer provider.
    Comment 40: NMFS would like to require that observer providers 
submit in a weekly deployment/logistics report the location of 
unassigned observers. This is another new requirement added with no 
previous discussion. We would like NMFS to provide information as to 
why this is important and how it will be used. An unassigned observer's 
location may change several times before the next weekly report is 
submitted. Why does NMFS need to know where these individuals are?
    Response: Following the Council process and during the development 
of these regulations, NMFS recognized that groundfish observers work as 
observers in other fisheries and sometimes have breaks in the middle of 
a cruise. NMFS also recognized that it did not always know where these 
observers were. At times NMFS needs to locate these individuals to get 
data that has not been received, correct data that may be erroneous, or 
put them in contact with NMFS Enforcement for a violation they 
witnessed. While NMFS understands than an observer's location may be in 
flux, the agency feels it is important to know where observers with an 
open cruise are or at least have an idea of where they are throughout 
their cruise so they may be contacted.

Changes From the Proposed rule to the Final Rule

    Several changes from the proposed rule to the final rule are 
implemented under this action. These changes and the reasons for them 
are listed below.

------------------------------------------------------------------------
                                      FINAL RULE
 PROPOSED RULE CITATION AND TEXT   CITATION AND TEXT  REASONS FOR CHANGE
------------------------------------------------------------------------
Sec.   679.50(e)(3)               Sec.                Changed as a
Vessel, shoreside processor, and   679.50(e)(3).       response to
 stationary floating processor    Vessel, shoreside    Comment 11 and an
 owners and operators may          processor, and      update to the
 contact NMFS in writing to        stationary          mailing address
 request assistance in improving   floating            of the NMFS
 observer data quality and         processor owners    Observer program
 resolving observer sampling       and operators, as
 issues. Requests may be           well as observers
 submitted to: NMFS Observer       and observer
 Program Office, 7600 Sand Point   providers may
 Way NE, BIN C15700 Building 4,    contact NMFS in
 Seattle, Washington 98115-0070    writing to
 or transmitted by facsimile to    request
 206-526-4066.                     assistance in
                                   improving
                                   observer data
                                   quality and
                                   resolving
                                   observer sampling
                                   issues. Requests
                                   may be submitted
                                   to: NMFS Observer
                                   Program Office,
                                   P.O. Box 15700,
                                   Seattle,
                                   Washington 98115-
                                   0070 or
                                   transmitted by
                                   facsimile to 206-
                                   526-4066..
Sec.   679.50(e)(1), (h), and     Replace the term    The proposed rule
 (h)(1)-(2)                        ``carry'' with      terminology
                                   ``use''.            referring to
                                                       vessels and
                                                       shoreside
                                                       processors
                                                       ``carrying''
                                                       observers or NMFS
                                                       staff or
                                                       individuals
                                                       authorized by
                                                       NMFS, is not
                                                       technically
                                                       correct with
                                                       respect to
                                                       shoreside
                                                       processors. Thus,
                                                       replacing word
                                                       ``used'' with
                                                       ``carry'' in the
                                                       regulatory text
                                                       will more
                                                       uniformly apply
                                                       to both vessels
                                                       and shoreside
                                                       processors.
Sec.   679.50(h)(1) and (2)       Add the phrase      This addition is
                                   ``or for other      necessary to
                                   conservation and    acknowledge that
                                   management          the possibility
                                   purposes'' to the   exists that the
                                   end of each         deployment of
                                   paragraph.          NMFS staff or an
                                                       individual
                                                       authorized by
                                                       NMFS may result
                                                       in deployments to
                                                       vessels or
                                                       processors beyond
                                                       those currently
                                                       required at Sec.
                                                        679.50(c) and
                                                       (d), or Sec.
                                                       679.7(f)(4).
                                                       Vessels and
                                                       processors
                                                       currently not
                                                       required to carry
                                                       observers under
                                                       Sec.   679.50(c)
                                                       and (d) or Sec.
                                                       679.7(f)(4) would
                                                       not be subject to
                                                       deployment of
                                                       NMFS staff or
                                                       other authorized
                                                       individuals for
                                                       purposes of
                                                       paragraph (h) of
                                                       this section in
                                                       this final rule.

[[Page 72608]]

 
Sec.   679.50(i)(1)(v)            Sec.                This revision
(v) Agency determination on an     679.50(i)(1)(v).    simply reflects a
 application--(A) Approval of an  (v) Agency           technical edit to
 application. If an IAD is made    determination on    clarify
 to approve the application, the   an application--    regulatory text.
 observer provider permit          (A) Approval of
 application review board will     an application.
 issue an observer provider        Upon
 permit to the applicant upon      determination by
 determination by the review       the review board
 board that the application is     that the
 complete and all evaluation       application is
 criteria are met.                 complete and all
                                   evaluation
                                   criteria are met,
                                   an IAD is made to
                                   approve the
                                   application and
                                   the observer
                                   provider permit
                                   application
                                   review board will
                                   issue an observer
                                   provider permit
                                   to the applicant..
Sec.   679.50(i)(2)(i)(B)(2)      Sec.                Changed as a
Provide to the candidate a copy    679.50(i)(2)(i)(B   response to
 of the Observer Program's drug    )(2).               Comment 16 to
 and alcohol policy. Observer     Provide to the       clarify that
 job pamphlets and the drug and    candidate a copy    Observer Program
 alcohol policy are available      of the Observer     documents and
 from the Observer Program         Program's drug      policy guidance
 Office at the address listed in   and alcohol         also can be
 paragraph (e)(3) of this          policy. Observer    obtained from the
 section.                          job pamphlets and   Observer Program
                                   the drug and        website.
                                   alcohol policy
                                   are available
                                   from the Observer
                                   Program Office at
                                   the address
                                   listed in
                                   paragraph (e)(3)
                                   of this section
                                   or at the
                                   Observer
                                   Program's web
                                   site at http://www.afsc.noaa.gov/refm/observers/default.htm..
Sec.   679.50(i)(2)(i)(C)         Sec.                Changed as a
A written contract must exist      679.50(i)(2)(i)(C   response to
 between the observer provider     ).                  Comment 24
 and each observer employed by    For each observer
 the observer provider. The        employed by an
 contract must be signed by the    observer
 observer and observer provider    provider, either
 prior to the observer's           a written
 deployment and must contain the   contract or a
 following provisions for          written contract
 continued employment:             addendum must
                                   exist that is
                                   signed by the
                                   observer and
                                   observer provider
                                   prior to the
                                   observer's
                                   deployment and
                                   that must
                                   contains the
                                   following
                                   provisions for
                                   continued
                                   employment:.
Sec.   679.50(i)(2)(iii)(B)       Sec.                Changed as a
Who have informed the provider     679.50(i)(2)(iii)   response to
 at the time of embarkation that   (B).                Comment 28. A
 he or she is not experiencing    Who have not         similar provision
 any new physical ailments or      informed the        also was added to
 injury since submission of the    provider prior to   the list of
 physician's statement as          at the time of      responsibilities
 required in paragraph             embarkation that    of observer
 (i)(2)(ix)(C) of this section     he or she is not    providers at Sec.
 that would prevent him or her     experiencing a
 from performing their assigned    mental illness or   679.50(i)(2)(i)(C
 duties; and                       a physical          )(4) that
                                   ailment or injury   requires
                                   developed since     providers to
                                   submission of the   include a
                                   physician's         provision in
                                   statement, as       their contract or
                                   required in         contract addendum
                                   paragraph           with observers
                                   (i)(2)(ix)(C) of    that observers
                                   this section,       inform them of
                                   that would          any newly
                                   prevent him or      developed mental
                                   her from            or physical
                                   performing his or   aliment prior to
                                   her assigned        embarkation.
                                   duties; and.
Sec.  679.50(i)(2)(x)(E)          Sec.  679.50(i)(2)  Changed as a
Observer debriefing                (x)(E).             response to
 registration. The observer       Observer             Comment 15.
 provider must contact the         debriefing
 Observer Program within 5 days    registration. The
 after the completion of an        observer provider
 observer's deployment             must contact the
                                   Observer Program
                                   within 5 business
                                   days after the
                                   completion of an
                                   observer's
                                   deployment.
Sec.   679.50(i)(2)(x)(G)         Sec.   679.50 (i)   The revision to
Copies of contracts with           (2) (x) (G).        the heading of
 observer providers and           Copies of observer   this paragraph
 observers.                        provider            (G) is edited to
                                   contracts with      more accurately
                                   entities            reflect the
                                   requiring           content of the
                                   observer services   regulatory text
                                   and with            in this paragraph
                                   observers..
Sec.   679.50(i)(2)(x)(H)         Sec.                Changes in
Change in observer provider        679.50(i)(2)(x)(H   observer provider
 management and contact            ).                  management
 information. An observer         Change in observer   information,
 provider must submit              provider            including changes
 notification of any change to     management and      to board members
 the information submitted on      contact             or corporate
 the provider's permit             information.        officers who
 application under paragraph       Except for          provide input
 (i)(1)(ii)(A) or (B) of this      changes in          into company
 section. Within 30 days of the    ownership           decisions and
 effective date of such change,    addressed under     operating
 this information must be          paragraph           protocol, must be
 submitted by fax or mail to the   (i)(1)(vi) of       assessed relative
 Observer Program Office at the    this section, an    to potential
 address listed in paragraph       observer provider   conflict of
 (e)(3) of this section.           must submit         interest and
                                   notification of     culpability as
                                   any other change    set forth under
                                   to the              (i)(1)(ii)(C) and
                                   information         (D). This is
                                   submitted on the    necessary for the
                                   provider's permit   same reasons this
                                   application under   information is
                                   paragraph           important in the
                                   (i)(1)(ii)(A)       original observer
                                   through (D) of      provider
                                   this section.       application
                                   Within 30 days of   process.
                                   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.
                                   Any information
                                   submitted under
                                   (i)(1)(ii)(C) or
                                   (i)(1)(ii)(D) of
                                   this section will
                                   be subject to
                                   NMFS review and
                                   determinations
                                   under (i)(1)(iii)
                                   through (viii) of
                                   this section..

[[Page 72609]]

 
Sec.   679.50(i)(3)(iii)          Sec.                Many activities
Limitations on conflict of         679.50(i)(3)(iii).  are regulated by
 interest. Must not solicit or    Limitations on       NMFS, but only
 accept, directly or indirectly,   conflict of         regulated fishing
 any gratuity, gift, favor,        interest. Must      and fish
 entertainment, loan, or           not solicit or      processing
 anything of monetary value from   accept, directly    activities are
 anyone who conducts activities    or indirectly,      related to the
 that are regulated by NMFS, or    any gratuity,       conflict of
 who has interests that may be     gift, favor,        interest issue
 substantially affected by the     entertainment,      being considered.
 performance or nonperformance     loan, or anything   Thus, the
 of the official duties of         of monetary value   intended effect
 observer providers.               from anyone who     of this revision
                                   conducts fishing    to the proposed
                                   or fish             rule is to narrow
                                   processing          the scope of
                                   activities that     activities that
                                   are regulated by    could lead to
                                   NMFS, or who has    conflict of
                                   interests that      interest
                                   may be              concerns.
                                   substantially
                                   affected by the
                                   performance or
                                   nonperformance of
                                   the official
                                   duties of
                                   observer
                                   providers..
(j)(1)(iii)(A)                    (j)(1)(iii)(A)....  This change is
Existing Observers. Observers     Existing             necessary to
 who completed sampling            Observers.          limit automatic
 activities between June 30,       Observers who       re-certification
 2001, and December 31, 2002,      completed           to only those
 and have not had his or her       sampling            prior observers
 certification revoked during or   activities          who were deployed
 after that time period, will be   between June 30,    within the 18
 considered to have met            2001, and           months preceding
 certification requirements        December 31,        their first
 under this section. These         2002, and have      deployment after
 observers will be issued a new    not had his or      December 31,
 certification prior to their      her certification   2002. An 18-month
 first deployment after December   revoked during or   time frame is
 31, 2002.                         after that time     reasonable, given
                                   period, will be     the changes in
                                   considered to       fisheries and
                                   have met            fishery
                                   certification       regulations that
                                   requirements        typically occur
                                   under this          over this time
                                   section. These      period that could
                                   observers will be   affect the
                                   issued a new        applicability of
                                   certification       certification
                                   prior to their      training received
                                   first deployment    prior to 2003.
                                   after December
                                   31, 2002, unless
                                   NMFS determines
                                   that the observer
                                   has not been
                                   deployed, or has
                                   not performed
                                   sampling duties,
                                   or has not been
                                   debriefed
                                   successfully in
                                   the preceding 18
                                   months..
(j)(1)(iii)(B) (4) (ii)           (j)(1)(iii)(B)(4)(  Change in response
If a candidate fails training,     ii).                to Comment 13 and
 he or she will be notified in    If a candidate       to provide a more
 writing on or before the last     fails training,     realistic time
 day of training. The              he or she will be   frame for written
 notification will indicate: the   verbally notified   notification.
 reasons the candidate failed      of the
 the training; whether the         unsatisfactory
 candidate can retake the          status of his or
 training, and under what          her training in
 conditions, or; whether the       writing on or
 candidate will not be allowed     before the last
 to retake the training. If a      day of training.
 determination is made that the    Within 10
 candidate may not pursue          business days of
 further training, notification    the verbal
 will be in the form of an IAD     notification, the
 denying certification, as         observer
 specified under paragraph         candidate will be
 (j)(1)(iv)(A) of this section.    notified in
                                   writing. The
                                   written
                                   notification will
                                   indicate why the
                                   candidate failed
                                   the training;
                                   whether the
                                   candidate can
                                   retake the
                                   training, and
                                   whether the
                                   candidate may or
                                   may 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..
Sec.   679.50 (j) (1) (v) (A)     Sec.                Technical edit to
Certification training             679.50(j)(1)(v)(A   clarify the
 endorsement. A certification      )Certification      subject of the
 training endorsement signifies    training            regulatory text.
 the successful completion of      endorsement. A
 the training course required to   certification
 obtain observer certification.    training
 This endorsement is required* *   endorsement
 *                                 signifies the
                                   successful
                                   completion of the
                                   training course
                                   required to
                                   obtain observer
                                   certification
                                   this endorsement.
                                   A certification
                                   training
                                   endorsement is
                                   required ***.

[[Page 72610]]

 
Sec.   679.50 (j) (3) (iii)       Sec.                NMFS is revising
Issuance of initial                679.50(j)(3)(iii).  the proposed rule
 administrative determination.    Issuance of          regulatory text
 Upon determination that           initial             to more
 suspension or decertification     administrative      accurately
 is warranted under paragraph      determination.      reflect the
 (j)(3)(ii) of this section, the   Upon                specific legal
 suspension/decertification        determination       process for
 official will issue a written     that suspension     suspension and
 IAD to the observer via           or                  decertification
 certified mail at the             decertification     of certified
 observer's most current address   is warranted        observers at time
 provided to NMFS under Sec.       under paragraph     of issuance of an
 679.43(e). The IAD will           (j)(3)(ii) of       IAD under 5
 identify whether a                this section, the   U.S.C. 558.
 certification is suspended or     suspension/
 revoked and will identify the     decertification
 specific reasons for the action   official will
 taken. If the IAD issues a        issue a written
 suspension for an observer        IAD to the
 certification, the terms of the   observer via
 suspension will be specified.     certified mail at
 Suspension or decertification     the observer's
 is effective immediately as of    most current
 the date of issuance, unless      address provided
 the suspension/decertification    to NMFS under
 official notes a compelling       Sec.   679.43(e).
 reason for maintaining            The IAD will
 certification for a specified     identify whether
 period and under specified        a certification
 conditions.                       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
                                   can be made
                                   effective upon
                                   issuance of the
                                   IAD in cases of
                                   willfulness or
                                   those cases in
                                   which public
                                   health, interest,
                                   or safety require
                                   such actions. In
                                   such cases, the
                                   suspension/
                                   decertification
                                   official will
                                   state in the IAD
                                   that suspension
                                   or
                                   decertification
                                   is effective at
                                   time of issuance
                                   and the reason
                                   for the action..
------------------------------------------------------------------------

Classification

    This final rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act 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 
to provide copies of college transcripts and disclosure statements to 
their observer provider; 15 minutes for observer providers to submit to 
NMFS copies of observer candidates' college transcripts and disclosure 
statements; 5 minutes for notice of observer physical examination; 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; 2 hours for report of observer harassment, 
observer safety concerns, or observer performance problems; 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).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This rule has been determined to be not significant for purposes of 
Executive Order 12866.
    NMFS prepared a FRFA, which describes the impact this final rule 
may have on small entities. The FRFA incorporates the Initial 
Regulatory Flexibility Analysis (IRFA) and its findings. A copy of the 
FRFA is available from NMFS (see ADDRESSES). No comments on the IRFA 
were received during the comment period that would result in findings 
that differ from those previously described. A description of the 
impacts of this action on small entities was summarized in the proposed 
rule (67 FR 58452, September 16, 2002).

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Recordkeeping and reporting requirements.

    Dated: November 27, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is 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 who is awarded NMFS observer certification to carry 
out observer responsibilities under this part, and 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

[[Page 72611]]

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 of this part.
* * * * *

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

    5. In Sec.  679.50 make the following amendments:
    a. 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)(4)(vi)(C);
    b. 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);
    c. Revise the reference ``(h)(1)(i)(E)'' to read ``(j)(1)(v)(E)'' 
in paragraphs (c)(4)(iii), (c)(4)(v)(B), and (c)(4)(vi)(A).
    d. Revise the reference ``(h)(1)(i)(E)(1)'' to read 
``(j)(1)(v)(E)'' in paragraph (c)(6)(ii).
    e. Remove paragraph (j); redesignate paragraphs (e) through (i) as 
(f) through (j), respectively; add a new paragraph (e); and revise the 
section heading and the newly redesignated paragraphs (h), (i), and (j) 
to read as follows:


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 use, 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, as well as observers and observer providers, 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, P.O. Box 15700, 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 use 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 use 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 or for other conservation and management purposes.
    (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 use 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 or for other conservation and management 
purposes.
    (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.
    (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, except that 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. 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 (i)(1)(ii)(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

[[Page 72612]]

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 paragraph (i)(1) of 
this section. The board will be 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) Satisfactory 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. Upon determination by the review board that the 
application is complete and all evaluation criteria are met, an IAD is 
made to approve the application and the observer provider permit 
application review board will issue an observer provider permit to the 
applicant.
    (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 and 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 or at the Observer Program's 
web site at http://www.afsc.noaa.gov/refm/observers/default.htm.
    (C) For each observer employed by an observer provider, either a 
written

[[Page 72613]]

contract or a written contract addendum must exist that is signed by 
the observer and observer provider prior to the observer's deployment 
and that contains 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;
    (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 and the observer completes a phone or fax 
mid-deployment data review as described in the observer manual; and
    (4) The observer inform the observer provider prior to the time of 
embarkation if he or she is experiencing any new mental illness or 
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 their assigned duties;
    (ii) Ensure that observers complete duties in a timely manner: An 
observer provider must ensure that observers employed by that observer 
provider 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 not informed the provider prior to the time of 
embarkation that he or she is experiencing a mental illness or a 
physical ailment or injury developed 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.
    (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 in a single 
deployment;
    (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; or
    (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 business 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

[[Page 72614]]

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 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 business 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 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 observer provider contracts with entities requiring 
observer services and with 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 (c)(1)(iv) of this section;
    (2) Vessels required to have observer coverage as specified at 
paragraphs (c)(1)(ii), (c)(1)(v), and (c)(1)(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. 
Except for changes in ownership addressed under paragraph (i)(1)(vi) of 
this section, an observer provider must submit notification of any 
other change to the information submitted on the provider's permit 
application under paragraphs (i)(1)(ii)(A) through (D) 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. Any information 
submitted under (i)(1)(ii)(C) or (i)(1)(ii)(D) of this section will be 
subject to NMFS review and determinations under (i)(1)(iii) through 
(viii) 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 (h)(2)(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

[[Page 72615]]

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 fishing or fish processing 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 their 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, 
unless NMFS determines that the observer has not been deployed, or has 
not performed sampling duties, or has not been debriefed successfully 
in the preceding 18 months.
    (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) Meet all education and health standards as specified in 
paragraphs (i)(2)(i)(A) and (i)(2)(x)(C) of this section, respectively;
    (4) Have 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 all other training requirements 
established by the Observer Program.
    (ii) If a candidate fails training, he or she will be verbally 
notified of the unsatisfactory status of his or her training on or 
before the last day of training. Within 10 business days of the verbal 
notification, the observer candidate will be notified in writing. The 
written notification will indicate why the candidate failed the 
training; whether the candidate can 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 and 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 this endorsement. A certification training 
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

[[Page 72616]]

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 
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

[[Page 72617]]

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 can be made effective upon issuance of 
the IAD in cases of willfulness or those cases in which public health, 
interest, or safety require such actions. In such cases, the 
suspension/decertification official will state in the IAD that 
suspension or decertification is effective at time of issuance and the 
reason for the action.
    (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. 02-30694 Filed 12-2-02; 4:33 pm]
BILLING CODE 3510-22-S