[Federal Register Volume 71, Number 76 (Thursday, April 20, 2006)]
[Rules and Regulations]
[Pages 20346-20349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3754]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050722198-6084-02; I.D. 071805B]
RIN 0648-AS93


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 supporting the 
North Pacific Groundfish Observer Program (Observer Program). This 
action is necessary to revise requirements facilitating observer data 
transmission, improve support for observers, and provide consistency 
with current regulations. The final rule will promote the goals and 
objectives of the Fishery Management Plan for Groundfish of the Bering 
Sea and Aleutian Islands Management Area and the Fishery Management 
Plan for Groundfish of the Gulf of Alaska (FMPs).

DATES: Effective on May 22, 2006.

ADDRESSES: Copies of the Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (RIR/FRFA) prepared for this action may be 
obtained from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802, 
Attn: Records Officer, and the Alaska Region, NMFS, website at 
www.fakr.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to NMFS, Alaska Region, and by email to 
[email protected] or fax to 202-395-7285.

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

SUPPLEMENTARY INFORMATION:

Background

    NMFS manages the U.S. groundfish fisheries of the Bering Sea and 
Aleutian Islands Management Area (BSAI) and Gulf of Alaska (GOA) in the 
Exclusive Economic Zone under the FMPs. The North Pacific Fishery 
Management Council (Council) has prepared the FMPs pursuant to the 
Magnuson-Stevens Fishery Conservation and Management 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 current 
``interim'' Observer Program (Observer Program) in 1996 (61 FR 56425, 
November 1, 1996). The Observer Program was extended on four occasions: 
through 1998 (62 FR 67755, December 30, 1997), through 2000 (63 FR 
69024, December 15, 1998), through 2002 (65 FR 80381, December 21, 
2000), and through 2007 (67 FR 72595, December 6, 2002). The Observer 
Program develops regulations for the collection of information 
necessary for the conservation and management of the groundfish 
fisheries managed under the FMPs. Regulations implementing the Observer 
Program at Sec.  679.50 require observer coverage aboard catcher 
vessels, catcher/processors, motherships, and shoreside and stationary 
floating processors that participate in the groundfish fisheries off 
Alaska and establish vessel, processor, and observer provider 
responsibilities relating to the Observer Program.
    Timely electronic communication between the fishing industry and 
NMFS of catch reports submitted to NMFS by industry and observers is 
crucial to the effective in-season monitoring of groundfish quotas and 
protected species catch allowances. In July 1995, NMFS issued a final 
rule that required all catcher/processors, motherships, and shoreside 
processors that process groundfish to have computer hardware and 
software that would enable observers to send electronic data to NMFS 
(60 FR 34904, July 5, 1995). In October 2003, a final rule was 
published (68 FR 58038, October 8, 2003) that extended the requirements 
to all catcher vessels that are required to carry an observer whenever 
fishing.
    Regulations describing hardware and software requirements for 
electronic submission of observer reports are found at Sec.  
679.50(g)(1) and (g)(2). This electronic data submission and 
communications system is called the observer communications system 
(OCS, previously referred to as ``ATLAS''). This system consists of 
computers and communications equipment supplied by catcher vessels, 
catcher/processors, motherships, and shoreside or stationary floating 
processors, and custom software provided by NMFS. The OCS system allows 
observers to rapidly process and report the data they collect to NMFS. 
Its use on catcher vessels, catcher/processors, motherships, and 
shoreside or stationary floating processors has led to more timely and 
accurate fisheries data.
    The proposed rule for this action was published in the Federal 
Register on August 8, 2005 (70 FR 45638), with comments invited through 
September 7, 2005. NMFS received three letters of comment that 
contained five separate comments. Comments are summarized and responded 
to under Response to Comments, below.

Revisions to OCS Regulations

    Observer Program staff periodically upgrade the software component 
of the OCS. Upgraded OCS software improves overall data quality. This 
action amends regulations that require catcher vessels, catcher/
processors, motherships, and shoreside or stationary floating 
processors carrying OCS equipment to install hardware upgrades to meet 
current technology standards necessary to support OCS software and 
facilitate its installation. Presently, regulations at Sec.  
679.50(g)(1)(iii)(B)(1) and (g)(2)(iii)(B)(1) require a minimum of a 
Windows 9x or NT compatible operating system, both of which are older, 
now unsupported operating systems. This action amends regulations at 
Sec.  679.50(g)(1)(iii)(B)(1) and (g)(2)(iii)(B)(1) to require a 
Windows 98 or more recent operating system such as Windows 2000, 
Millennium, or XP. NMFS believes Windows based operating systems are 
acceptable because the upgraded software component is only compatible 
with Windows based operating systems. The regulations also are revised 
to require catcher vessels, catcher/processors, motherships, and 
shoreside or stationary floating processors to provide for observers a 
personal computer with a functioning compact disc (CD) drive. 
Additionally, personal computers must have a minimum random access 
memory (RAM) of 256 megabytes.
    Personal computers must operate the larger, more sophisticated 
software and database programs provided by NMFS. The new NMFS software 
requires an upgraded operating system to function. The software now is 
stored on a CD medium, which facilitates easier and efficient 
installation. Windows 95 is no longer supported by the manufacturer, so 
newer Windows versions are necessary.

[[Page 20347]]

Other Revisions

    Regulations at Sec.  679.2 contain definitions for terms used 
elsewhere in part 679. Regulations at Sec.  679.50(c) describe observer 
coverage requirements for catcher vessels, catcher/processors, and 
motherships engaged in directed fishing for groundfish. However, in 
Sec.  679.2 the first paragraph of the current definition of ``directed 
fishing'' is included under the heading, ``With respect to groundfish 
recordkeeping and reporting.'' This action revises the heading of the 
first paragraph of the definition for ``directed fishing'' to read, 
``Unless otherwise indicated'' to clarify that the definition also 
applies to observer coverage regulations.
    Regulations at Sec.  679.28 describe requirements for scales, 
observer sampling stations, bins for volumetric estimates, and vessel 
monitoring system hardware. Section 679.28(g)(1) provides a general 
description of catch monitoring and control plans (CMCPs) and Sec.  
679.28(g)(4)(iii) describes a component of the NMFS inspection process 
for CMCPs. These sections incorrectly cite Sec.  679.28(g)(6) as the 
paragraph detailing catch monitoring and control standards, which are 
found in paragraph (g)(7). This action corrects this error by replacing 
the reference to paragraph (g)(6) in Sec.  679.28(g)(1) and (g)(4)(iii) 
with paragraph (g)(7).

Response to Comments

    NMFS received three letters of comment that contained five separate 
comments. The following summarizes and responds to these comments.
    Comment 1: Computer upgrades do not address occurrences of 
intentional misreporting by observers.
    Response: NMFS agrees. This action is intended to address data 
quality and timeliness issues associated with observer data entry and 
transmittal. Regulations governing observer conduct, including data 
reporting accuracy, are found at Sec.  679.50(j)(2). Those regulations 
are not being revised at this time.
    Comment 2: Observers should be held financially responsible if they 
are late to their assignments.
    Response: North Pacific groundfish observers are employed by 
observer providers. Vessel owners contract directly with observer 
providers for required observer services. Under this arrangement, 
observer providers are responsible for the timeliness of their 
employees when meeting contractual arrangements with a vessel owner. 
Regulations at Sec.  679.50(i)(2)(v) require an observer provider to 
provide its observer employees salaries and other benefits according to 
their employment contracts. Otherwise, NMFS does not intervene between 
observer providers and their observer employees on personnel issues.
    Comment 3: For flights to Dutch Harbor, airline baggage 
restrictions limit passengers to a maximum of two 50 pound bags per 
person. Passengers with additional baggage must agree to be voluntarily 
separated from their additional baggage. Observers typically fly with 
two personal bags and one 70 pound basket of sampling gear. Observers 
may be separated from their baggage and the proposed rule does not 
account for this restriction. Instead, NMFS and observer providers 
should work cooperatively with airline carriers to resolve this issue.
    Response: NMFS realizes observers may be separated from their gear 
because of aircraft weight and balance requirements. The proposed 
action would not regulate aircraft loading standards because NMFS does 
not have the authority to do so. Rather, the proposed action would have 
required that observer providers only deploy observers who had their 
gear and personal items with them at the time a vessel they are 
assigned to leaves port to go fishing. However, NMFS agrees that 
standard airline baggage restrictions could affect the ability of 
observer providers to deploy observers. NMFS recognizes that 
alternative solutions may exist that do not affect observer providers 
in this manner. As a result, NMFS has decided the revision to 
regulations governing observer deployment logistics will not be 
included in the final rule.
    Comment 4: If an observer is separated from his or her personal 
items and sampling gear, observer providers should be allowed to obtain 
a new set of sampling gear from NMFS and purchase clothes and personal 
items for the observer. In the past, these actions have not resulted in 
hardship for the observer.
    Response: NMFS agrees that less costly alternative solutions may 
exist that do not compromise an observer's safety, comfort, or ability 
to complete his or her duties. For example, NMFS has offices in Dutch 
Harbor and Kodiak, Alaska, that may be able to supply an observer with 
an additional set of gear. However, observers often embark after 
business hours, or from locations that do not have NMFS offices. In the 
past, observers have borrowed sampling gear from other observers. 
However, observers also are issued safety gear, including immersion 
suits and personal flotation devices (PFDs). NMFS staff regularly tests 
this safety equipment for defects, and each observer has an incentive 
to maintain his or her own personal gear. Borrowed or used safety 
equipment may not be properly tested or maintained. Safety equipment 
also is issued to observers based on their relative body size, and 
poorly fitted or maintained safety equipment could create a significant 
hazard for observers.
    Although observers may be able to purchase clothing and personal 
items from stores or borrow them from other observers, observers may 
not be able to borrow properly fitting clothes, a store may not be 
available to purchase clothing or personal items, or a store may not 
have the items needed. NMFS also is concerned that observers separated 
from their personal gear could be deployed without necessary personal 
items that cannot be borrowed or purchased, such as medication or spare 
glasses.
    NMFS is concerned about these issues and new solutions that the 
agency did not consider have been proposed through public comment. NMFS 
will work with observer providers to find alternative solutions to 
address situations when an observer is separated from his or her gear 
and personal items. If necessary, NMFS will propose regulatory measures 
to address these concerns in the future. Because NMFS is now aware of 
other possible solutions, NMFS is removing from this rule proposed 
revisions to observer provider responsibilities for observer deployment 
logistics.
    Comment 5: The commentor says observers being separated from their 
gear is a rare occurrence, but that the requirement to keep observers 
and gear together would have significant effects. For example, vessels 
may be kept from fishing if they must wait for an observer's gear to 
arrive. Additionally, observer providers may choose to deploy another 
observer rather than force a vessel to wait for an observer's gear. 
Through no fault of his or her own, the observer who was separated from 
his or her gear may lose a vessel assignment, and the observer provider 
would have already incurred the costs of deploying the observer.
    Response: NMFS agrees a vessel may be forced to seek an alternate 
observer if its assigned observer is separated from his or her gear. 
This situation is most likely to occur for larger vessels that are 
required to carry an observer at all times. These vessels typically 
depart from larger ports where additional observers are available. 
Smaller vessels usually use smaller ports and are required to carry an 
observer only 30 percent of their fishing days. Thus, the smaller 
vessels may be able to forego

[[Page 20348]]

observer coverage for a trip until the observer's gear and personal 
belongings arrive. These smaller ports also often are more remote and 
are less likely to be able to provide alternative gear and personal 
effects, as described above.
    Based on information from observer providers, an observer's airfare 
is typically passed on to the fishing company or companies using 
observer services. If an observer is separated from his or her gear and 
replaced by another observer, the observer provider has a financial 
incentive to arrange deployment for the observer on another vessel. 
NMFS believes that an observer separated from his or her gear would be 
assigned to another vessel or shoreside operation.
    While NMFS believes observers would not be affected in the manner 
described in the comment above, NMFS is removing from the final rule 
the proposed revisions to observer provider responsibilities for 
observer deployment logistics. Justification for removing this 
provision is included in the response to comments three and four.

Change from the Proposed Rule

    The proposed rule included a provision at Sec.  
679.50(i)(2)(vi)(A)(1) to require an observer provider to provide all 
necessary transportation, including arrangements and logistics, to 
ensure the observer and his or her gear and personal belongings arrive 
at the initial location of deployment and to all subsequent vessel and 
shoreside or stationary floating processor assignments during that 
deployment. For a variety of reasons, including incorrect routing of 
luggage or weight restrictions on airplanes, during travel to an 
assignment, an observer occasionally becomes separated from his or her 
personal belongings and gear necessary to conduct sampling duties. If 
this occurs, luggage normally will be delivered on a subsequent flight. 
Deploying an observer to a vessel without the observer's personal 
belongings or gear necessary to conduct sampling duties could 
compromise an observer's safety, comfort, and ability to complete his 
or her duties.
    NMFS received public comments that said the revision would create 
unforseen costs and logistical issues. These costs and logistical 
issues were not analyzed in the EA/RIR/IRFA prepared for this action. 
While NMFS is concerned about the safety and comfort of observers when 
they are separated from their gear, based on information from observers 
and observer providers, observer providers rarely deploy observers or 
ask observers to deploy without their own personal gear. NMFS will work 
with observer providers to address these situations. Solutions may 
exist that would impose less cost on observer providers and vessels 
than the options available under the proposed rule. NMFS may propose 
similar regulations in the future if an alternative acceptable solution 
is not found. For these reasons, the agency removed proposed revisions 
to regulations at Sec.  679.50(i)(2)(vi)(A)(1) described above from the 
final rule.

Classification

    The Administrator, Alaska Region, NMFS, determined that the 
regulatory amendment is necessary for the conservation and management 
of the groundfish fisheries off Alaska and that it is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    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 September 7, 
2005. No comments were received on the IRFA.
    NMFS prepared a final regulatory flexibility analysis (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 NMFS (see 
ADDRESSES). A summary of the analysis follows.
    This action requires vessels and shoreside or stationary floating 
processors already subject to OCS requirements to adopt hardware 
upgrades to meet current technology standards necessary to support the 
OCS software. This includes all motherships, catcher/processors, 
shoreside or stationary floating processors and catcher vessels 
required to carry an observer at all times. Additionally, the final 
rule includes several clarifications and corrections to current 
regulations. These actions are intended to revise requirements for the 
facilitation of observer data transmission, improve support for 
observers, and provide consistency with current regulations.
    Alternative 1 described in the EA/RIR/IRFA is the status quo 
alternative. Current regulations regarding computer hardware and 
software would remain in effect.
    Alternative 2 would: (1) require all catcher vessels, catcher/
processors, motherships, and shoreside or stationary floating 
processors currently subject to OCS requirements to upgrade their 
computing hardware to a minimum operating system of Windows 98 and 256k 
of RAM; (2) require observer providers to ensure observers are deployed 
with their personal belongings and gear; and (3) other non-substantive 
administrative changes to current regulations.
    In addition to the requirements in Alternative 2, Alternative 3 
would require all catcher vessels, catcher/processors, motherships, and 
shoreside or stationary floating processors currently subject to OCS 
requirements to upgrade their computer hardware to a CD drive.
    All motherships have gross revenues in excess of $3.5 million and 
are considered large entities. Data available for 2003, indicate that 
22 of the 82 catcher/processors active in the groundfish fisheries that 
year would be considered small entities. All five observer provider 
companies are considered small entities. Confidentiality restrictions 
require NMFS to report gross revenue information in aggregate of four 
or more entities. These restrictions prevent NMFS from reporting the 
number of catcher vessels and shoreside or stationary floating 
processors regulated under this action for small entities because each 
group is no larger than four.
    The preferred alternative reflects decisions, already incorporated 
into the Observer Program, to minimize the burden on small entities. 
Catcher vessels less than 60 feet (18.3 m) length overall, which 
include the greatest numbers of SBA defined small entities, are 
exempted from observer coverage. There were 740 of these vessels 
fishing hook and line, pot, and trawl gear in 2003. The exclusion of 
this large fleet of fishing vessels from the observer program has meant 
the sacrifice of information that would have been useful for fisheries 
management. The exclusion has been motivated by recognition that there 
are unique difficulties associated with placing observers on some of 
these small vessels. Requiring these small entities to carry observers 
may have placed an unreasonable and disproportional economic and 
operational burden on them.
    NMFS received public comment on the proposed rule saying that 
unforeseen costs and logistical issues would be created under a 
revision that would require observer providers to ensure observers are 
deployed with their personal belongings and gear. NMFS believes there 
is an opportunity to work with observer providers to address these 
situations, and this revision was removed from the final rule. Because 
all observer providers are

[[Page 20349]]

considered small entities, this change from the proposed rule to the 
final rule decreases the burden on small entities.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) that has been approved by 
OMB under control number OMB 0648-0330. Public reporting burden for 
catch monitoring and control plans (CMCP) are estimated to average 40 
hours per response, including 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 (see ADDRESSEES) and by e-mail to [email protected], or 
fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall 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.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 14, 2006.
James W. Balsiger,
Acting 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 part 679 continues to read as follows:

    Authority: 16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 
note; 3631 et seq.

0
2. In Sec.  679.2, in the definition of ``directed fishing'' paragraph 
(1) is revised to read as follows:


Sec.  679.2  Definitions.

* * * * *
    Directed fishing means:
    (1) Unless indicated otherwise, any fishing activity that results 
in the retention of an amount of a species or species group on board a 
vessel that is greater than the maximum retainable amount for that 
species or species group as calculated under Sec.  679.20.
* * * * *

0
3. In Sec.  679.28, paragraphs (g)(1) and (g)(4)(iii) are revised to 
read as follows:


Sec.  679.28  Equipment and operational requirements.

* * * * *
    (g) * * *
    (1) What is a CMCP? A CMCP is a plan submitted by the owner and 
manager of a processing plant, and approved by NMFS, detailing how the 
processing plant will meet the catch monitoring and control standards 
detailed in paragraph (g)(7) of this section.
* * * * *
    (4) * * *
    (iii) A proposed CMCP detailing how the processor will meet each of 
the performance standards in paragraph (g)(7) of this section.
* * * * *

0
4. In Sec.  679.50, paragraphs (g)(1)(iii)(B)(1) and (g)(2)(iii)(B)(1) 
are revised to read as follows:


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

* * * * *
    (g) * * *
    (1) * * *
    (iii) * * *
    (B) * * *
    (1) Hardware and software. Making available for use by the observer 
a personal computer in working condition that contains: a full Pentium 
120Mhz or greater capacity processing chip, at least 256 megabytes of 
RAM, at least 75 megabytes of free hard disk storage, a Windows 98 (or 
more recent) compatible operating system, an operating mouse, a 3.5-
inch (8.9 cm) floppy disk drive, and a readable CD ROM disk drive. The 
associated computer monitor must have a viewable screen size of at 
least 14.1 inches (35.8cm) and minimum display settings of 600 x 800 
pixels. The computer equipment specified in paragraph (g)(1)(iii)(B) of 
this section must be connected to a communication device that provides 
a point-to-point 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. Personal computers utilizing a 
modem must have at least a 28.8 kbs Hayes-compatible modem.
* * * * *
    (2) * * *
    (iii) * * *
    (B) * * *
    (1) Hardware and software. Making available for use by the observer 
a personal computer in working condition that contains: a full Pentium 
120Mhz or greater capacity processing chip, at least 256 megabytes of 
RAM, at least 75 megabytes of free hard disk storage, a Windows 98 (or 
more recent) compatible operating system, an operating mouse, a 3.5-
inch (8.9 cm) floppy disk drive, and a readable CD ROM disk drive. The 
associated computer monitor must have a viewable screen size of at 
least 14.1 inches (35.8cm) and minimum display settings of 600 x 800 
pixels. The computer equipment specified in paragraph (g)(2)(iii)(B) of 
this section must be connected to a communication device that provides 
a point-to-point 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. Personal computers utilizing a 
modem must have at least a 28.8 kbs Hayes-compatible modem.
* * * * *
[FR Doc. 06-3754 Filed 4-19-06; 8:45 am]
BILLING CODE 3510-22-S