[Federal Register Volume 69, Number 8 (Tuesday, January 13, 2004)]
[Rules and Regulations]
[Pages 1951-1953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-696]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 030818203-3328-02; I.D. 071503D]
RIN 0648-AR32


Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish 
Observer Program

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to amend regulations governing the 
North Pacific Groundfish Observer Program (Observer Program). This 
action is necessary to provide added flexibility in the deployment of 
observers in the Exclusive Economic Zone (EEZ) off the coast of Alaska. 
This action is intended to ensure continued collection of high quality 
observer data. It is necessary to support 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) and to promote the goals and 
objectives contained in those FMPs.

DATES: Effective on February 12, 2004.

ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA) 
prepared for this regulatory action and the Environmental Assessment 
(EA) prepared for the Extension of the Interim North Pacific Groundfish 
Observer Program beyond 2002 may be obtained from the Alaska Region, 
NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.

FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska 
(GOA) and the Bering Sea and Aleutian Islands Management Area (BSAI) in 
the EEZ under the FMPs. The North Pacific Fishery Management Council 
(Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Regulations 
implementing the FMPs appear at 50 CFR part 679. General regulations 
that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
    The Council adopted, and NMFS approved and implemented, the Interim 
Groundfish Observer Program (Interim Program) in 1996 (61 FR 56425, 
November 1, 1996), which superseded the North Pacific Fisheries 
Research Plan (Research Plan). The requirements of the Interim Program 
were extended through 1998 (62 FR 67755, December 30, 1997), again 
through 2000 (63 FR 69024, December 15, 1998), again through 2002 (65 
FR 80381, December 21, 2000), and again through 2007 (67 FR 72595, 
December 6, 2002). The Interim Program provides the regulatory 
framework for the collection by observers of data necessary for the 
conservation and management of the groundfish fisheries managed under 
the FMPs. Further, it authorizes mandatory observer coverage 
requirements for vessels and shoreside processors, and establishes 
vessel, processor, and observer provider responsibilities relating to 
the Observer Program.
    A proposed rule to amend regulations governing housing requirements 
for observers deployed in the groundfish fisheries governed by the FMPs 
was published in the Federal Register on September 3, 2003 (68 FR 
52378), for a 30-day public review and comment period which ended 
October 3, 2003. NMFS received one letter of comment on the proposed 
rule, which is summarized and responded to in Response to Comments, 
below.
    A final rule to amend regulations governing observer coverage 
requirements for vessels and shoreside processors in the North Pacific 
Groundfish Fisheries was published in the Federal Register on January 
7, 2003 (68 FR 715). The intent of the final rule was to address 
concerns about: (1) Shoreside processor observer coverage; (2) 
shoreside processor observer logistics; (3) observer coverage 
requirements for vessels fishing with groundfish pot gear; and (4) 
confidentiality of observer personal information. This final rule is 
intended to correct and clarify specific provisions of the January 7 
rule.

Comments and Responses

    One letter of comment was received on the proposed rule that 
contained four unique comments. Comments are summarized and responded 
to here.
    Comment 1: The public should be able to comment on proposed rules 
through email.
    Response: NMFS will begin accepting email comments on February 2, 
2004.
    Comment 2: Honest observers should be hired and not work in 
collusion with fishermen.
    Response: NMFS has determined that reasonable housing for observers 
facilitates their ability to furnish unbiased data. Further, 
regulations at Sec.  679.50(j)(2)(i) describe limitations on conflict 
of interest. These include requirements that observers must have no 
direct financial interest in a North Pacific fishery managed by an FMP 
and may not serve on a vessel owned or operated by someone who had 
previously employed the observer. Further, regulations at Sec.  
679.50(j)(2)(ii) require observers to accurately sample

[[Page 1952]]

catch and record data according to the Observer Manual. Observers who 
do not perform duties according to the Observer Manual or who knowingly 
record information which is not factual are subject to actions which 
include suspension, decertification, and/or prosecution.
    Comment 3: NMFS should employ video technology to monitor shipboard 
and dockside operations.
    Response: To the extent video technology is related to improved 
observer working conditions, NMFS agrees. In addition, NMFS is 
researching alternative technology which may be suitable for monitoring 
components of the fisheries. The International Pacific Halibut 
Commission recently completed a study examining the feasibility of 
electronic monitoring systems in the Pacific halibut longline fleet 
operating off the coast of Alaska. If alternative technologies are 
feasible, efficient, and provide high quality data, then NMFS may 
incorporate such technology in future monitoring programs.
    Comment 4: NMFS should hire undercover investigators to keep 
fishermen and observers honest.
    Response: The NMFS Office of Law Enforcement (OLE) is charged with 
enforcement of the laws and regulations which govern fisheries off the 
coast of Alaska. They use various methods in their enforcement program, 
including undercover operations. Undercover operations are mainly used 
when other methods would not work for a specific situation, and are not 
undertaken lightly.

Observer Deployment Logistics

    This final rule amends the observer provider responsibility 
regulations to allow an observer to be housed: (1) On a stationary 
floating processor; (2) on a vessel he or she will be assigned to; (3) 
on a vessel for 24 hours following the completion of an offload when 
the observer has duties and is scheduled to disembark; and (4) on a 
vessel for 24 hours following the vessel's arrival in port when the 
observer is scheduled to disembark. In addition, this final rule makes 
two additional revisions to the proposed rule.
    Subsequent to publication of the January 7 final rule, Observer 
Program staff received comments from two separate observer providers 
concerned with their ability to effectively deploy observers under the 
current regulations at Sec.  679.50(i)(2)(vi). In order to account for 
potential logistics problems, both observer providers described a 
common practice whereby observers are flown to their port of departure 
3 or 4 days before the vessel is scheduled to depart. Flight 
cancellations and delays due to weather are common, so fishing 
companies often request that observers arrive prior to their 
anticipated departure date.
    Observers often arrive at their assigned vessel and encounter 
delays in the vessel's departure. Vessel operators often are unable to 
predict exactly when they will be able to leave port for a fishing trip 
due to weather, mechanical failure, labor disputes, and other 
unanticipated problems. These delays result in periods of time when an 
observer may be housed on an assigned vessel that is not traveling to 
fishing grounds or actively involved in fishing. These circumstances 
were not considered when promulgating the January 7 final rule.
    Current regulations at Sec.  679.50(i)(2)(vi) prevent observers 
from being housed on an assigned vessel until 24 hours before its 
departure time. The intent of regulations at Sec.  679.50(i)(2)(vi) is 
to avoid lodging an observer aboard a vessel on which he or she is not 
working or currently assigned. This action clarifies NMFS' intent by 
removing the 24 hour restriction and provides fishing operations 
increased flexibility to deal with these uncertainties, and observer 
providers improved opportunities to serve their customers.
    This action also provides for housing observers aboard stationary 
floating processors. Current regulations at Sec.  679.50(i)(2)(vi)(B) 
govern the housing requirements for observers assigned to shoreside 
processing facilities and for observers between vessel or shoreside 
assignments while still under contract to an observer provider. 
Observers commonly are deployed to stationary floating processors and 
catcher vessels delivering to stationary floating processors. 
Stationary floating processors often are in remote locations and 
observers commonly are housed on these stationary floating processors 
before, after, and in between catcher vessel assignments and while 
assigned to a stationary floating processor. This action extends the 
housing requirements to observers being deployed in these 
circumstances. Given the remoteness of these stationary floating 
processors, NMFS considers the practice of housing observers deployed 
to catcher vessels delivering to stationary floating processors 
reasonable. Accommodation requirements at Sec.  679.50(i)(2)(vi)(B) for 
observers being housed on stationary floating processors are the same 
as those for a licensed hotel, motel, bed and breakfast, or other 
shoreside accommodation.
    Further, this action clarifies two housing situations where the 
observer is scheduled to disembark the vessel. First, the observer 
could be housed on a vessel for up to 24 hours following the completion 
of an offload when the observer has duties and is scheduled to 
disembark after completing those duties. This accounts for assignments 
to catcher boats that target pollock, where the observer is required to 
monitor the offload for prohibited species. Second, the observer could 
be housed on a vessel for up to 24 hours following the vessel's arrival 
in port where the observer is scheduled to disembark. This accounts for 
assignments to all other vessels where the observer's duties are 
complete upon arrival to port.
    This action amends current regulations at Sec.  679.50(i)(2)(vi)(D) 
by removing unnecessary text. Existing regulations require that 
observers be provided housing within the standards outlined in the 
regulations. Therefore, alternative housing must be arranged if these 
standards are not met. The ancillary conditions previously contained in 
subparagraph (D) were interpretive and their removal does not change 
the intent of NMFS.
    NMFS identified two necessary changes from the proposed rule to the 
final rule. Section 679.50(i)(2)(vi)(A)(2) is changed to provide 
consistency with terminology used in Sec.  679.50(i)(2)(vi)(B) and (C). 
By changing text to require observer providers to provide lodging, per 
diem, and any other necessary services to observers assigned to vessels 
or shoreside or stationary floating processing facilities, the 
regulations are clarified and consistent with NMFS intent.
    During review of the final rule, NMFS determined that Sec.  
679.50(i)(2)(vi)(C)(1) of the proposed rule was ambiguous. NMFS 
recognizes that there may be logistical difficulties in the deployment 
of an observer and departure of the vessel. Further, NMFS determined 
that vessels would only pay for an observer for those days necessary to 
coordinate the observer's logistics and the vessel's departure plans. 
This text is modified to allow an observer to be housed on a vessel to 
which he or she is assigned prior to that vessel's departure from port.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA. The FRFA incorporates the IRFA and a summary 
of the analyses completed to support the action. A copy of this 
analysis is available from the NMFS (see ADDRESSES). The need for, and 
objectives of, this action are described

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above in the preamble and are not repeated here.
    The proposed rule was published in the Federal Register on 
September 3, 2003 (68 FR 52378). An Initial Regulatory Flexibility 
Analysis (IRFA) was prepared for the proposed rule, and described in 
the classifications section of the preamble to the rule. The public 
comment period ended on October 3, 2003. No comments were received on 
the IRFA.
    For this action, the small regulated entities include: (1) Fishing 
vessels with observer coverage requirements and total gross annual 
revenues of less than $3.5 million from all the operation's commercial 
activity taken together; (2) processing facilities with observer 
coverage requirements and fewer than 500 employees, when all their 
affiliated operations, worldwide, are combined; (3) the Community 
Development Quota groups; and (4) observer providers. Therefore, small 
regulated entities could number about 350, although this number 
declines to about 215 if the catcher vessels in the American Fisheries 
Act pollock cooperatives are excluded, as the Regulatory Flexibility 
Act ``affiliation'' criteria suggest they appropriately be.
    This regulation does not impose new recordkeeping or reporting 
requirements on the regulated small entities.
    The preferred alternative does not have any adverse impacts on 
small entities. The effective impacts of the preferred alternative 
relative to the status quo are to (1) clarify the regulatory basis for 
the current practice of housing catcher vessel observers on floating 
processors between deployments, and (2) provide fishing operations and 
observer providers with the ability to efficiently deal with the 
uncertainties associated with departure from port, such as mechanical 
problems or adverse weather conditions, in a manner fully compliant 
with regulations. In general, the information on operating behavior and 
costs that would make it possible to predict how fishermen and markets 
will react to the new regulation, and how their costs and revenues will 
change, is not available. However, in qualitative terms, the impacts of 
the preferred alternative are beneficial.
    The preferred alternative provides fishing operations with planning 
flexibility to deal with these uncertainties, and to give observer 
providers improved opportunities to serve their customers. The action 
would have an effect equivalent to the lengthening of a fishing trip. 
Observers would receive normal contracted compensation for the 
additional days. Regulations currently require vessels to provide food 
and accommodations to observers assigned to that vessel, just as they 
would for any other crew member. Since observers may not be housed on 
vessels they are not assigned to, vessels have an incentive to hire 
observers (and feed them) for only those days necessary for 
coordinating their departure from port.
    The status quo is the alternative to the preferred action. The 
status quo was rejected because it would not accomplish the objectives 
of the action. This alternative decreases the observer provider's 
ability to effectively deploy observers. In order to account for 
possible weather delays and other potential logistics problems, 
observer providers often send observers to their port of departure 
prior to their assigned vessel's scheduled departure. The uncertainties 
associated with departure from port and the economic costs associated 
with this uncertainty make this alternative less desirable than the 
preferred alternative. Because this alternative results in adverse 
impacts to small entities, this alternative was rejected.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: January 7, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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

0
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.

0
2. In Sec.  679.50, paragraphs (i)(2)(vi)(A)(2), (B), (C), and (D) are 
revised to read as follows:


Sec.  679.50  Groundfish Observer Program (effective through 12/31/07).

* * * * *
    (i) * * *
    (2) * * *
    (vi) * * *
    (A) * * *
    (2) Lodging, per diem, and any other services necessary to 
observers assigned to fishing vessels or shoreside or stationary 
floating processing facilities.
    (B) Except as provided in paragraphs (i)(2)(vi)(C) and 
(i)(2)(vi)(D) of this section, each observer deployed to a shoreside 
processing facility or stationary floating processor, and each observer 
between vessel, stationary floating processor or shoreside assignments 
while still under contract with a permitted observer provider, shall be 
provided with accommodations at a licensed hotel, motel, bed and 
breakfast, stationary floating processor, or other shoreside 
accommodations for the duration of each shoreside assignment or period 
between vessel or shoreside assignments. Such accommodations must 
include an assigned bed for each observer and no other person may be 
assigned that bed for the duration of that observer's stay. 
Additionally, no more than four beds may be in any room housing 
observers at accommodations meeting the requirements of this section.
    (C) An observer under contract may be housed on a vessel to which 
he or she is assigned:
    (1) Prior to their vessel's initial departure from port;
    (2) For a period not to exceed twenty-four hours following the 
completion of an offload when the observer has duties and is scheduled 
to disembark; or
    (3) For a period not to exceed twenty-four hours following the 
vessel's arrival in port when the observer is scheduled to disembark.
    (D) During all periods an observer is housed on a vessel, the 
observer provider must ensure that the vessel operator or at least one 
crew member is aboard.
* * * * *
[FR Doc. 04-696 Filed 1-12-04; 8:45 am]
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