[Federal Register Volume 69, Number 109 (Monday, June 7, 2004)]
[Rules and Regulations]
[Pages 31751-31758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12707]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket 980702167-4150-03; I.D. 031901A]

RIN 0648-AK26


Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; Groundfish Observer Program

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

ACTION: Interim final rule; request for comments.

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SUMMARY: NMFS is publishing this interim final rule to amend the 
regulations implementing the Pacific Coast Groundfish Fishery 
Management Plan (FMP) to provide for a mandatory, vessel-financed 
observer program on at-sea processing vessels.
    This action is necessary to satisfy the standardized bycatch 
reporting methodology requirements of the 1996 Sustainable Fisheries 
Act amendments to the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Effective July 7, 2004, except for Sec.  660 360(f)(3)(iv) which 
is effective 60 days after the date of publication in the Federal 
Register of a notice announcing approval of the Paperwork Reduction Act 
clearance request for this information collection.
    Comments are due by July 7, 2004.

ADDRESSES: You may submit comments, identified by (docket number and or 
RIN number), by any of the following methods:
     E-mail: [email protected]. Include (docket 
number and/or RIN number) in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 206-526-6736
     Mail: D. Robert Lohn, Administrator, Northwest Region, 
NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky 
Renko.
    Comments regarding the burden-hour estimates or other aspects of 
the collection-of-information requirements contained in this interim 
final rule may be submitted to Becky Renko, NMFS, Northwest Region, and 
to David Rostker, Office of Management and Budget (OMB), by e-mail at 
[email protected], or fax to 202-395-7285.
    Copies of the environmental assessment/regulatory impact review/
initial regulatory flexibility analysis (IRFA) may be obtained from the 
Pacific Fishery Management Council (Council) by writing to the Council 
at 7700 NE Ambassador Place, Portland, OR 97220, or by contacting Don 
McIsaac at 503-326-6352. Copies may also be obtained from William L. 
Robinson, Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, 
Bldg. 1, Seattle, WA 98115-0070.

FOR FURTHER INFORMATION CONTACT: William L. Robinson, Northwest Region, 
NMFS, telephone: 206-526-6140; fax: 206-526-6736; and e-mail: 
[email protected] or Svein Fougner, Southwest Region, NMFS, 
telephone: 562-980-4000; fax: 562-980-4047; and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This rule is also accessible via the Internet at the Office of the 
Federal Register's website at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    A proposed rule was published on September 10, 2003 (68 FR 53334), 
and public comment was requested through October 10, 2003. During the 
comment period, NMFS received one letter. The comments and responses 
are presented later in the preamble to this interim final rule. See the 
preamble to the proposed rule for additional information on the 
affected fishery and this rule.
    NMFS believes it is necessary to implement a mandatory observer 
program for the at-sea processing sector before the start of the 2004 
whiting fishery. However, new standards for how vessel-funded observer 
services may be paid have been established by NMFS. These new standards 
have resulted in this rule being published as an interim final rule 
rather than a final rule. As described later in the preamble, NMFS 
intends to publish a proposed and final rule before the start of the 
2005 whiting season to modify the program slightly from what is being 
defined by this interim final rule.

Background

    The Federal groundfish fishery off the Washington, Oregon, and 
California (WOC) coasts is managed pursuant to the Magnuson-Stevens Act 
and the Pacific Coast Groundfish FMP. The FMP

[[Page 31752]]

was developed by the Council. Regulations implementing the FMP appear 
at 50 CFR part 660 subpart G.
    The Magnuson-Stevens Act at 16 U.S.C. 1853(a)(11) requires each FMP 
to establish a standardized reporting methodology to assess the amount 
and type of bycatch occurring in the fishery. Further, at 16 U.S.C. 
1853(b)(8), the Magnuson-Stevens Act provides that an FMP may require 
that one or more observers be carried aboard a U.S. vessel engaged in 
fishing for species that are subject to an FMP, for the purpose of 
collecting data necessary for the conservation and management of the 
fishery.
    Placement of fishery observers on vessels at sea is acknowledged as 
an important method for collecting fisheries data. Therefore, the 
Pacific Coast Groundfish FMP provides that all catcher-processors and 
at-sea processing vessels operating in the groundfish fishery may be 
required to accommodate on board observers for purposes of collecting 
scientific data. Amendment 13 to the FMP also provides that vessels may 
be required to pay for observers. Under the Magnuson-Stevens Act at 16 
U.S.C. 1855(d), the Secretary of Commerce, acting through NMFS, has 
general responsibility to carry out any fishery management plan and may 
promulgate such regulations as may be necessary to carry out this 
responsibility.
    The current regulations requiring observers in the Pacific Coast 
groundfish fishery (50 CFR 660.360) apply to catcher vessels, but not 
to processing vessels. NMFS is publishing this interim final rule to 
amend the regulations implementing the FMP to provide for a mandatory, 
vessel-financed observer program on at-sea processing vessels. This 
action would require processing vessels to pay for and carry either one 
or two (depending on vessel length) NMFS-certified observers obtained 
from a third-party NMFS-permitted observer provider company while 
participating in the Pacific Coast groundfish fishery. The action also 
specifies certification and decertification requirements for observers, 
and defines the responsibilities of observers and processing vessels.
    So far, the only processing vessels participating in the groundfish 
fishery are large catcher-processors and motherships that target 
Pacific whiting. The WOC at-sea Pacific whiting fishery is a mid-water 
trawl fishery that is currently composed of large catcher-processor and 
mothership vessels. The catcher-processors harvest and process catch 
while the motherships rely on smaller catcher vessels to deliver 
unsorted catch for processing.
    These large processing vessels primarily operate in the Alaskan 
pollock fisheries, but move south to the WOC to fish for whiting 
between pollock seasons. While they participate in the pollock fishery, 
they are subject to 50 CFR part 679, which specifies requirements 
related to observer services for the North Pacific (Alaskan) Groundfish 
fisheries. Under the Alaska observer program, vessels are required to 
carry and pay for NMFS-certified observers that are provided by third-
party observer provider companies operating under permits administered 
by the NMFS Alaska Region. The Alaska program contains qualification 
and performance standards both for observers and observer provider 
companies, and also contains processes for sanctioning observer 
provider company permits, as well as certifying and decertifying 
observers.
    It is anticipated that some smaller vessels may enter the at-sea 
processing sector of the Pacific whiting fishery in the near future. 
Severe harvest constraints for the non-whiting Pacific Coast groundfish 
fishery are expected to motivate catcher vessel operators to seek new 
opportunities. At-sea processing of Pacific whiting may represent one 
such opportunity. As processing vessels, they would not be required to 
carry observers under WOC observer requirements at 50 CFR 660.360, 
unless this rule is adopted.
    Since 1991, the large at-sea whiting processing vessels have each 
voluntarily carried at least one NMFS-trained observer to provide data 
for estimating total landed catch and discards; monitor the attainment 
of annual groundfish allocations; estimate catch rates of prohibited 
species; and to assess stock conditions. NMFS depends on these methods 
to manage the fishery.
    In recent years, observer data has also become increasingly 
important for monitoring incidental catch of overfished species and 
Endangered Species Act (ESA) listed salmonids. Several overfished 
species are taken as bycatch in the Pacific whiting fishery. Pacific 
whiting itself was declared overfished in 2002.
    For the most part, the at-sea whiting fishery has been monitored 
adequately under the voluntary program. However, there is concern about 
the lack of data that would be available if at-sea processing vessels 
no longer voluntarily carried observers. To assure the integrity and 
availability of observer data in the future, NMFS is establishing a 
mandatory observer program and mandatory observer coverage levels for 
all at-sea processing vessels in the Pacific Coast groundfish fishery.
    Observers are a uniformly trained group of technicians whose 
objective is gathering fisheries data. Observers are stationed aboard 
vessels to gather independent data about the fish that are taken, 
harvested, received or processed by the vessel. Standardized sampling 
procedures, defined by NMFS, are intended to provide reliable data for 
fleetwide monitoring of the fishery. The primary duties of an observer 
include: estimating catch weights, determining catch composition, 
collecting length and weight measurements, and determining sex 
distribution.
    This rule defines certification requirements and prohibited 
behaviors that will ensure that observers are qualified, and understand 
their responsibilities and duties. Establishing a suspension/
decertification process will allow NMFS to deal with observer 
performance or behavioral issues while providing observers an 
opportunity to file an administrative appeal, should they be 
recommended for decertification, prior to a final determination on 
their certification status.
    Under these regulations, owners and operators of fishing vessels 
that carry observers must comply with specific requirements in order to 
ensure that their vessels are adequate and safe for the purposes of 
carrying an observer. In addition to the national regulations, existing 
regulations specific to the treatment and well-being of Pacific coast 
groundfish observers at 50 CFR 660.360 will also apply to observers on 
board at-sea processing vessels.
    This rule includes requirements for each at-sea processing vessel 
over 125 ft (38.1 m) in length to carry two observers while 
participating in the fishery. Having two observers allows all or almost 
all hauls to be sampled. This rule will also require at-sea processing 
vessels less than 125 ft (38.1 m) in length to carry and pay for one 
observer, should they choose to enter the processing sector of the 
fishery.
    Because the large processing vessels process whiting twenty four 
hours per day, seven days a week, a single observer typically samples 
less than half of all hauls taken by an individual vessel. Requiring 
large processing vessels to carry two observers, and smaller vessels to 
carry one observer, is expected to improve the accuracy of catch 
projections and reduce the likelihood of overestimating or 
underestimating the harvested amounts of target and incidentally caught 
species. Data inaccuracies could affect the long-term biological 
stability and

[[Page 31753]]

yield of whiting or incidentally caught species. The ESA terms and 
conditions for incidental take of chinook salmon in the whiting fishery 
are also more likely to be met.
    Under this interim final rule, at-sea processing vessels will be 
required to obtain their observers from third-party observer provider 
companies that are subject to the Alaskan regulations at 50 CFR 679.50. 
These are comprehensive regulations that provide for permitting and 
permit sanctions against the observer provider companies. These 
provisions are not duplicated in the WOC regulations, and the observer 
provider companies will continue to be regulated under the Alaska 
regulations by the NMFS Alaska Region. Therefore, this rule refers to 
the Alaskan requirements for observer providers, but does not repeat 
them in the WOC regulations.

Revised Standards for Vessel-Financed Observer Programs

    In May 2000, an independent review of the North Pacific Groundfish 
Observer Program examined the relationship between NMFS and certified 
observer providers. This review found that Alaskan contractor 
certification and decertification regulations leave observers and 
observer contracting companies vulnerable to pressures that jeopardize 
the quality and credibility of data. A separate document titled the 
2000 Management and Control Review of Observer Programs, addressed 
similar issues such as the perception of conflict of interest and data 
confidentiality. The competitive environment to supply observer 
services at the lowest costs has led to low observer renumeration, low 
observer morale and high observer turnover rates. Contractual 
relationships, including ``no-cost'' Federal contracts, are more likely 
to provide NMFS with the authority to hold contracting companies 
accountable for their performance. A federal contract allows service 
expectations to be defined for the observer provider. If service 
expectations are not met, NMFS may take remedial action, including 
termination of the agreement if necessary. In addition, a contract can 
be modified as necessary in a relatively short time period. The 
viability of such approaches have been evaluated and therefore, NMFS is 
discouraging the use of direct pay structure (where vessels pay the 
third-party observer providers directly for services) for observer 
services in new observer programs.
    This interim final rule is a temporary action. Because NMFS has 
established standards for new programs and discourages the use of 
direct pay structure for observer services the contents of this interim 
final rule will be changed through another proposed and final 
rulemaking. NMFS intends to publish a proposed and final rule before 
the start of the 2005 whiting season to modify the program slightly 
from what is being defined by this interim final rule. It is 
anticipated that the following sections which are being implemented by 
this action will be modified: section 50 CFR 660.303 (e) Procurement of 
observer services will require vessels to procure observer services 
from companies that have negotiated contractual agreements with NMFS; 
and 50 CFR 660.303 f) Observer certification and responsibilities will 
be removed from regulation and a similar set of qualifications, code of 
conduct, and performance requirements would be included in the service 
contract.

Comments and Responses

    One letter of comment was received from a private party. The letter 
contained numerous comments which are summarized and answered below.
    Comment 1: Observers should be independent and environmentally 
connected for the program to be credible.
    Response: NMFS believes that the qualification criteria specified 
in this regulation are adequate to ensure that the observers have the 
necessary skills, experience and independence to perform the required 
job duties.
    Comment 2: The observer's well being must be protected.
    Response: Provisions within this rule are specifically intended to 
ensure observer safety and safeguard their well being.
    Comment 3: There should be enforcement agents working undercover on 
these ships and video cameras should be required.
    Response: NMFS maintains a separate, trained enforcement division 
that employs enforcement methods as necessary to document suspected 
violations. In appropriate cases these methods may include use of 
undercover agents and electronic technology.
    Comment 4: The regulatory text should not contain the word ``may'' 
because that implies that the regulatory requirements are not 
mandatory.
    Response: The word ``may'' appears ten times in the regulatory text 
for this action. The word may has either been used to indicate that the 
observer or NMFS has a choice, or the word ``may'' has been used within 
the phrase ``may not'' to indicate the lack of choice by the observer. 
NMFS has determined that the word ``may'' has been used correctly 
throughout this document.
    Comment 5: The preamble text is incorrect in stating that small 
processing vessels may enter the at-sea processing sector. They either 
do or they don't enter, if they do then regulations should be in place 
to prevent them from overfishing.
    Response: At this time there are no small (less than 125 ft (38.1 
m)) vessels in the at-sea processing sector of the Pacific Coast 
groundfish fishery. However, under existing regulations such vessels 
could choose to enter the fishery. If, at a future date, a small 
processing vessel begins to process Pacific coast groundfish the 
regulations implemented by this rule would require them to carry an 
observer. Data provided by the observers will be used to estimate total 
catch in relation to the harvest specifications that are established 
during the harvest specification and management process. Overfished 
species rebuilding plans and harvest specifications and management 
measures necessary to prevent overfishing will be adopted through other 
rulemakings.
    Comment 6: A voluntary program is inadequate in fisheries where 
overfishing occurs.
    Response: To maintain a source of information for managing the 
Pacific coast groundfish resources, NMFS agrees that a mandatory 
observer program is necessary for at-sea processing vessels. The 
purpose of this action is to move from a voluntary observer program to 
a mandatory observer program with specified coverage levels.
    Comment 7: This action is being taken to avoid the Court order.
    Response: NMFS assumes that the commenter is referring to an April 
12, 2002, order in which a Federal magistrate concluded in Pacific 
Marine Conservation Council, Inc. v. Evans, 200 F. Supp.2d 1194 (N.D. 
Calif. 2002), that the Pacific Coast Groundfish FMP fails to establish 
a legally adequate bycatch reporting methodology because it fails to 
establish either a mandatory or adequate observer program. By 
establishing mandatory observer requirements for the at-sea processing 
sector of the groundfish fishery, the rule complies with the Court's 
ruling.
    Comment 8: The rule has no provisions to insure that observers will 
not be ``paid under the table'' or lie about fishing production, nor 
does the rule contain training requirements to keep the observer 
honest. Observers should be checked by undercover officers and fined at 
least $50,000 with

[[Page 31754]]

possible jail time of at least one year if they are caught lying.
    Response: This rule establishes standards of behavior for 
observers. These standards include the requirement to accurately record 
sample data and report any observations such as suspected violations. 
This rule also implements observer decertification procedures.
    Comment 9: From the preamble language in the proposed rule which 
states ``poor quality data may have a strong influence on fleetwide 
estimates of total catch by species,'' it appears that NMFS has been 
working with poor quality data in the at-sea processing sector. By 
continuing this program NMFS is taking no steps to improve the quality 
of data obtained from at-sea processing vessels.
    Response: The background information in the preamble that the 
commenter is referring to is in reference to the potential impacts 
under status quo if less than 100 percent of the processing vessels 
carry observers or if the data collected by observers is not provided 
to NMFS. The commenter is incorrect in assuming that the preamble text 
suggests that NMFS has been using poor quality data from the at-sea 
processing sector or that data obtained from the existing observer 
program is of poor quality or inadequate to meet management needs.

Classification

    This rule is being published as an interim final rule. NMFS expects 
to publish a final rule in time for the 2005 fishing season.
    NMFS prepared a final regulatory flexibility analysis (FRFA) that 
describes the economic impact this interim final rule will have on 
small entities. A description of the action, including why it is being 
considered and the legal basis for this action, are contained in the 
preamble. The FRFA is available from NMFS (see ADDRESSES) and a summary 
of the initial regulatory flexibility analysis (IRFA)follows:
    During the comment period for the proposed rule, NMFS received one 
letter containing numerous comments. None of these comments addressed 
the IRFA analysis or economic impacts of the proposed rule on small 
entities. This interim final rule does not duplicate, overlap, or 
conflict with other Federal rules.
    This action is necessary to satisfy the standardized bycatch 
reporting methodology requirements of the 1996 Sustainable Fisheries 
Act amendments to the Magnuson-Stevens Act. Under these requirements, 
an FMP must adopt a standardized reporting methodology for assessing 
the amount and kind of bycatch occurring in the fishery. In addition, 
this action will benefit fisheries conservation and management by 
providing information needed for enforcing fishery regulations, 
maintaining safe and adequate working conditions for observers, and 
establishing certification and performance standards for observers to 
ensure that quality data are available for managing the fishery.
    Three alternative actions that primarily differ in the number of 
mandatory observers that would be required to be carried were 
considered and analyzed. The alternatives considered included: 
Alternative 1, the status quo; Alternative 2, one observer, observer 
and observer provider certification/decertification procedures, vessel 
standards, and prohibitions; and Alternative 3 (the preferred 
alternative) two observers on vessels greater than 125 ft (38.1 m)in 
length or greater or one observer on vessels less than 125 ft (38.1 m), 
observer and observer provider certification/decertification 
procedures, vessel standards, and prohibitions.
    Under the status quo alternative, NMFS would continue to administer 
the program; vessels would voluntarily carry NMFS-trained observers; 
and businesses that are certified as observer providers for the Federal 
groundfish fishery off Alaska would pay the direct costs associated 
with carrying the observers. Alternatives 2 or 3 were similar in that 
they specified certification and decertification requirements for 
observers; defined the responsibilities of observers and processing 
vessels; and required that mandatory NMFS-certified observers be 
obtained from NMFS-permitted observer provider companies. The 
difference between Alternatives 2 and 3 was in the number of observers 
each processing vessels would be required to carry. The regulatory 
package that has been prepared for this interim final rule is based on 
Alternative 3 in which each processing vessel would carry one or two 
NMFS-certified observers, depending on the vessel's length. An 
alternative with no observer coverage was considered but not analyzed 
because of biological concerns.
    The Council's April 1999 recommendation was to require each 
processing vessel to carry one observer (Alternative 2). However NMFS 
preferred alternative, Alternative 3, would require processing vessels 
equal to or greater than 125 ft (38.1 m) in length to carry two NMFS-
certified observers while participating in the groundfish fishery and 
vessels less than 125 ft (38.1 m) in length would be required to carry 
one observer. Since 2001, under the status quo alternative (Alternative 
1) all processors have carried two observers. To date, no at-sea 
processors under 125 ft (38.1 m) in length have participated in the 
fishery.
    To the extent possible, the proposed regulations are consistent 
with existing regulations for observers in the Alaska groundfish 
fisheries which are found at 50 CFR part 679. This has been done to 
minimize the burden on industry participants and to maintain a program 
that is similar to the existing voluntary program.
    Approximately seven WOC groundfish catcher-processors and five 
mothership processors will be affected by this interim final rule. The 
Small Business Administration guidelines for fishing firms uses a 
$3,000,000 gross revenue threshold to separate small from large 
operations. In the application to any one firm, the $3,000,000 
threshold considers income to all affiliated operations. NMFS records 
indicate that the gross annual revenue for each of the catcher-
processor and mothership operations operating in the WOC exceeds 
$3,000,000, therefore, the vessels are not considered small businesses. 
In 1998 the average catcher-processor and mothership operations gross 
revenue exceeded $15,000,000.
    Between 15 and 20 at-sea catcher vessels participate in the 
mothership sector of the fishery annually. These companies are all 
assumed to be small businesses. This rulemaking is not expected to have 
any direct impacts on catcher vessels and minimal or no direct impact 
on the business that they conduct with the mothership processors 
because they fall under the comprehensive observer program. A separate 
rule published on April 24, 2001 (66 FR 20609), established an observer 
program for catcher vessels in the groundfish fishery off Washington, 
Oregon, and California
    Projected reporting, recordkeeping and compliance requirements 
include the process by which an observer could appeal decertification. 
This is a narrative document that is voluntarily submitted by observers 
and would not require special skills or training. This interim final 
rule does not specify recordkeeping requirements for observer 
providers; however NMFS assumes that information needed for training/
briefing registration, monitoring deployment/logistics, scheduling 
debriefings, and identifying observer harassment, observer safety 
concerns, or observer performance problems will continue to be 
voluntarily submitted by observer providers.

[[Page 31755]]

    This interim final rule contains collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA). The 
estimated time for observers to obtain college transcripts and prepare 
a disclosure statement regarding criminal convictions is 15 minutes per 
response. The estimated time for observers to submit documentary 
evidence or to petition a rejected certification, suspension or 
decertification decision is 4 hours per response. Although this interim 
final rule does not contain requirements specific to the observer 
contracting companies, these companies do submit information to NMFS. 
The estimated time for this collection is as follows: training/briefing 
registration lists: 7 minutes per response; notification of physical 
examinations: 2 minutes per response; time required for physical exam: 
2 hours; lists of projected observer assignments: 7 minutes per 
response; weekly logistics reports: 7 minutes per response; debriefing 
registration materials: 7 minutes per response; and reports on observer 
harassment, safety or performance concerns: 2 hours per response. All 
estimates of annual response time include time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information. These requirements have been submitted to OMB 
for approval.
    Public comment is sought regarding whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency and whether the information shall have 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including the use of automated collection techniques or other forms of 
information technology. Send comments on these or other aspects of the 
collection-of-information to NMFS Northwest Region at the ADDRESSES 
above and e-mail to David Rostker e-mail at [email protected], or 
fax to 202-395-7285.
    Notwithstanding any other provisions of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the PRA unless that collection of information displays a currently 
valid OMB Control Number.
    This interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    NMFS issued Biological Opinions under the ESA on August 10, 1990, 
November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, 
and December 15, 1999 pertaining to the effects of the groundfish 
fishery on chinook salmon (Puget Sound, Snake River spring/summer, 
Snake River fall, upper Columbia River spring, lower Columbia River, 
upper Willamette River, Sacramento River winter, Central Valley spring, 
California coastal), coho salmon (Central California coastal, southern 
Oregon/northern California coastal), chum salmon (Hood Canal summer, 
Columbia River), sockeye salmon (Snake River, Ozette Lake), and 
steelhead (upper, middle and lower Columbia River, Snake River Basin, 
upper Willamette River, central California coast, California Central 
Valley, south-central California, northern California, southern 
California). During the 2000 Pacific whiting season, the whiting 
fisheries exceeded the chinook bycatch amount specified in the Pacific 
whiting fishery Biological Opinion's (whiting BO) (December 15, 1999) 
incidental take statement estimate of 11,000 fish, by approximately 500 
fish. In the 2001 whiting season, however, the whiting fishery's 
chinook bycatch was about 7,000 fish, which approximates the long-term 
average. After reviewing data from, and management of, the 2000 and 
2001 whiting fisheries (including industry bycatch minimization 
measures), the status of the affected listed chinook, environmental 
baseline information, and the incidental take statement from the 1999 
whiting BO, NMFS determined in a letter dated April 25, 2002, that a 
re-initiation of the 1999 whiting BO was not required. NMFS has 
concluded that implementation of the FMP for the Pacific Coast 
groundfish fishery is not expected to jeopardize the continued 
existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat. This action is within the scope of 
these consultations.
    This interim final rule was developed after meaningful consultation 
and collaboration with the tribal representative on the Council. These 
representatives agreed with the provisions that apply to tribal 
vessels. Therefore this action is consistent with the requirements of 
Executive Order 13175.

List of Subjects in 50 CFR Part 660

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

    Dated: May 28, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as 
follows:

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

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  660.302, add the following definitions ``Direct financial 
interest,'' ``IAD,'' and ``Observer Program Office,'' in alphabetical 
order to read as follows:


Sec.  660.302  Definitions.

* * * * *
    Direct financial interest means any source of income to or capital 
investment or other interest held by an individual, partnership, or 
corporation or an individual's spouse, immediate family member or 
parent that could be influenced by performance or non-performance of 
observer duties.
* * * * *
    IAD means Initial Agency Decision.
* * * * *
    Observer Program Office means the Observer Program Office of the 
Northwest Fishery Science Center, National Marine Fisheries Service, 
Seattle, Washington.
* * * * *

0
3. In Sec.  660.303, paragraph (b) is revised to read as follows:


Sec.  660.303  Reporting and recordkeeping.

* * * * *
    (b) Any person who is required to do so by the applicable state law 
must make and/or file, retain, or make available any and all reports 
(i.e., logbooks, fish tickets, etc.) of groundfish harvests and 
landings containing all data, and in the exact manner, required by the 
applicable state law.
* * * * *


0
4. In Sec.  660.360, paragraphs (c)(1), (d)(1)(i), (d)(3)(ii), (iii), 
(d)(9),(e), and (f) are added; paragraphs (g), (h), and (i) are 
removed; paragraph (j) is redesignated as paragraph (g); and newly 
redesignated paragraphs (g)(1)(iii) through (vii) are added to read as 
follows:


Sec.  660.360  Groundfish observer program.

* * * * *

[[Page 31756]]

    (c) Observer coverage requirements--(1) At-sea processors. A 
catcher-processor or mothership 125 ft (38.1 m) LOA or longer must 
carry two NMFS-certified observers, and a catcher-processor or 
mothership shorter than 125 ft (38.1 m) LOA must carry one NMFS-
certified observer, each day that the vessel is used to take, retain, 
receive, land, process, or transport groundfish.
* * * * *
    (d) * * *
    (1) * * *
    (i) At-sea processors. Equivalent to those provided for officers, 
engineers, foremen, deck-bosses or other management level personnel of 
the vessel.
* * * * *
    (3) * * *
    (ii) Functional equipment. Ensuring that the vessel's 
communications equipment, used by observers to enter and transmit data, 
is fully functional and operational.
    (iii) Hardware and software. At-sea processing vessels must provide 
hardware and software pursuant to regulations at 50 CFR 
679.50(f)(1)(iii)(B)(1) and 50 CFR 679.50(f)(2), as follows:
    (A) Providing for use by the observer a personal computer in 
working condition that contains a full Pentium 120 Mhz or greater 
capacity processing chip, at least 32 megabytes of RAM, at least 75 
megabytes of free hard disk storage, a Windows 9x or NT compatible 
operating system, an operating mouse, and a 3.5-inch (8.9 cm) floppy 
disk drive. The associated computer monitor must have a viewable screen 
size of at least 14.1 inches (35.8 cm) and minimum display settings of 
600 x 800 pixels. The computer equipment specified in this paragraph 
(A) must be connected to a communication device that provides a modem 
connection to the NMFS host computer and supports one or more of the 
following protocols: ITU V.22, ITU V.22bis, ITU V.32, ITU V.32bis, or 
ITU V.34. Processors that use a modem must have at least a 28.8kbs 
Hayes-compatible modem. The above-specified hardware and software 
requirements do not apply to processors that do not process groundfish.
    (B) NMFS-supplied software. Ensuring that each at-sea processing 
ship that is required to have two observers aboard obtains the data 
entry software provided by the Regional Administrator for use by the 
observer.
* * * * *
    (9) At-sea transfers to or from processing vessels. Processing 
vessels must:
    (i) Ensure that transfers of observers at sea via small boat or 
raft are carried out during daylight hours, under safe conditions, and 
with the agreement of observers involved.
    (ii) Notify observers at least 3 hours before observers are 
transferred, such that the observers can collect personal belongings, 
equipment, and scientific samples.
    (iii) Provide a safe pilot ladder and conduct the transfer to 
ensure the safety of observers during transfers.
    (iv) Provide an experienced crew member to assist observers in the 
small boat or raft in which any transfer is made.
    (e) Procurement of observer services by at-sea processing vessels. 
Owners of vessels required to carry observers under paragraph (c)(1) of 
this section must arrange for observer services from an observer 
provider permitted by the North Pacific Groundfish Observer Program 
under 50 CFR 679.50(i), except that:
    (1) Vessels are required to procure observer services directly from 
NMFS when NMFS has determined and given notification that the vessel 
must carry NMFS staff or an individual authorized by NMFS in lieu of an 
observer provided by a permitted observer provider.
    (2) Vessels are required to procure observer services directly from 
NMFS and a permitted observer provider when NMFS has determined and 
given notification that the vessel must carry NMFS staff or individuals 
authorized by NMFS, in addition to an observer provided by a permitted 
observer provider.
    (f) 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 (f)(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. NMFS will certify individuals 
who:
    (A) Are employed by an observer provider company permitted pursuant 
to 50 CFR 679.50 at the time of the issuance of the certification;
    (B) Have provided, through their observer provider:
    (1) Information identified by NMFS at 50 CFR 679.50(i)(2) 
(x)(A)(1)(iii) and (iv); and
    (2) Information identified by NMFS at 50 CFR 679.50(i)(2)(x)(C) 
regarding the observer candidate's health and physical fitness for the 
job;
    (C) Meet all education and health standards as specified in 50 CFR 
679.50(i)(2)(i)(A) and (1)(2)(x)(C), respectively; and
    (D) Have successfully completed NMFS-approved training as 
prescribed by the Observer Program.
    (1) 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.
    (2) If a candidate fails training, he or she will be notified in 
writing on or before the last day of training. The notification will 
indicate: the reasons the candidate failed the training; whether the 
candidate can retake the training, and under what conditions, or 
whether, the candidate will not be allowed to retake the training. If a 
determination is made that the candidate may not pursue further 
training, notification will be in the form of an IAD denying 
certification, as specified under paragraph (f)(1)(iv)(A) of this 
section.
    (E) Have not been decertified under paragraph (f)(3) of this 
section, or pursuant to 50 CFR 679.50.
    (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 (f)(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 paragraph (f)(4) of this section. 
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 (f)(1)(iii) of 
this section.

[[Page 31757]]

    (v) Endorsements. The following endorsements must be obtained, in 
addition to observer certification, in order for an observer to deploy.
    (A) Certification training endorsement. A certification training 
endorsement signifies the successful completion of the training course 
required to obtain 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. The observer can renew the endorsement by successfully 
completing certification training once more.
    (B) Annual general endorsements. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
first deployment within any calendar year subsequent to a year in which 
a certification training endorsement is obtained. To obtain an annual 
general endorsement, an observer must successfully complete the annual 
briefing, as specified by the Observer Program. All briefing 
attendance, performance, and conduct standards required by the Observer 
Program must be met.
    (C) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or annual briefing must receive 
a deployment endorsement to their certification prior to any subsequent 
deployments for the remainder of that year. An observer may obtain a 
deployment endorsement by successfully completing all pre-cruise 
briefing requirements. The type of briefing the observer must attend 
and successfully complete will be specified in writing by the Observer 
Program during the observer's most recent debriefing.
    (D) Pacific whiting fishery endorsements. A Pacific whiting fishery 
endorsement is required for purposes of performing observer duties 
aboard vessels that process groundfish at sea in the Pacific whiting 
fishery. A Pacific whiting fishery endorsement to an observer's 
certification may be obtained by meeting the following requirements:
    (1) Be a prior NMFS-certified observer in the groundfish fisheries 
off Alaska or the Pacific Coast, unless an individual with this 
qualification is not available;
    (2) Receive an evaluation by NMFS for his or her most recent 
deployment (if any) that indicated that the observer's performance met 
Observer Program expectations for that deployment;
    (3) Successfully complete a NMFS-approved observer training and/or 
whiting briefing as prescribed by the Observer Program; and
    (4) Comply with all of the other requirements of this section.
    (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, or in a 
Pacific Coast fishery managed by either the state or Federal 
governments in waters off Washington, Oregon, or California, 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; or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, shoreside or floating stationary processing 
facilities.
    (2) Must 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 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 (or a 
designee) will designate 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 (f)(2) of this section;
    (B) Upon conviction of a crime or upon entry of a civil judgment 
for:
    (i) 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;
    (ii) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, or 
receiving stolen property;
    (iii) Commission of any other offense indicating a lack of 
integrity or honesty

[[Page 31758]]

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 (f)(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. The IAD will 
identify whether a certification is suspended or revoked and will 
identify the specific reasons for the action taken. If the IAD issues a 
suspension for an observer certification, the terms of the suspension 
will be specified. Suspension or decertification is effective 
immediately as of the date of issuance, unless the suspension/
decertification official notes a compelling reason for maintaining 
certification for a specified period and under specified conditions.
    (iv) Appeals. A certified observer who receives an IAD that 
suspends or revokes his or her observer certification may appeal 
pursuant to paragraph (f)(4) of this section.
    (4) Appeals. (i) Decisions on appeals of initial administrative 
decisions denying certification to, or suspending, or decertifying, an 
observer, will be made by the Regional Administrator (or designated 
official).
    (ii) Appeals decisions shall be in writing and shall state the 
reasons therefor.
    (iii) An appeal must be filed with the Regional Administrator 
within 30 days of the initial administrative decision denying, 
suspending, or revoking the observer's certification.
    (iv) The appeal must be in writing, and must allege facts or 
circumstances to show why the certification should be granted, or 
should not be suspended or revoked, under the criteria in this section.
    (v) Absent good cause for further delay, the Regional Administrator 
(or designated official) will issue a written decision on the appeal 
within 45 days of receipt of the appeal. The Regional Administrator's 
decision is the final administrative decision of the Department as of 
the date of the decision.
    (g) * * *
    (1) * * *
    (iii) Minimum work space aboard at-sea processing vessels. The 
observer must have a working area of 4.5 square meters, including the 
observer's sampling table, for sampling and storage of fish to be 
sampled. The observer must be able to stand upright and have a work 
area at least 0.9 m deep in the area in front of the table and scale.
    (iv) Table aboard at-sea processing vessels. The observer sampling 
station must include a table at least 0.6 m deep, 1.2 m wide and 0.9 m 
high and no more than 1.1 m high. The entire surface area of the table 
must be available for use by the observer. Any area for the observer 
sampling scale is in addition to the minimum space requirements for the 
table. The observer's sampling table must be secured to the floor or 
wall.
    (v) Diverter board aboard at-sea processing vessels. The conveyor 
belt conveying unsorted catch must have a removable board (diverter 
board) to allow all fish to be diverted from the belt directly into the 
observer's sampling baskets. The diverter board must be located 
downstream of the scale used to weigh total catch. At least 1 m of 
accessible belt space, located downstream of the scale used to weight 
total catch, must be available for the observer's use when sampling.
    (vi) Other requirement for at-sea processing vessels. The sampling 
station must be in a well-drained area that includes floor grating (or 
other material that prevents slipping), lighting adequate for day or 
night sampling, and a hose that supplies fresh or sea water to the 
observer.
    (vii) Observer sampling scale. The observer sample station must 
include a NMFS-approved platform scale (pursuant to requirements at 50 
CFR 679.28(d)(5)) with a capacity of at least 50 kg located within 1 m 
of the observer's sampling table. The scale must be mounted so that the 
weighing surface is no more than 0.7 m above the floor.
* * * * *
[FR Doc. 04-12707 Filed 6-4-04; 8:45 am]
BILLING CODE 3510-22-S