[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Proposed Rules]
[Pages 4226-4230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1444]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

RIN 0648-AU46
[Docket No. 070118011-7011-01; I.D. 062906A]


Magnuson-Stevens Act Provisions; General Provisions for Domestic 
Fisheries; Observer Health and Safety

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would enhance the safety of observers and 
the efficiency of their deployment. The proposed rule would clarify 
prohibited actions regarding observers, reinforce that an observer may 
not be deployed or stay aboard an unsafe vessel, clarify when a fishing 
vessel is inadequate for observer deployment and how an owner or 
operator can resolve discrepancies, improve communications between 
observer programs and fishing vessel owners and operators, and provide 
for an alternate safety equipment examination of certain small fishing 
vessels. This proposed rule is necessary to maintain and improve the 
safety and effectiveness of fishing vessel observers in carrying out 
their duties as authorized by the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) and the fishery management 
plans and regulations adopted under the Magnuson-Stevens Act.

DATES: Comments must be received by 5 p.m., EST, on March 1, 2007.

ADDRESSES: You may submit comments on this proposed rule or its Initial 
Regulatory Flexibility Analysis (IRFA), identified by 0648-AU46, by any 
of the following methods:
     E mail: [email protected]. Include in the subject line of 
the e mail comment the following document identifier: ``Observer Safety 
Measures.'' Comments sent via e mail, including all attachments, must 
not exceed a 10 megabyte file size.
     Federal e Rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Lisa Desfosse, Team Leader, National Observer 
Program, National Marine Fisheries Service, 1315 East-West Highway, Rm 
12525, Silver Spring, MD 20910
     Fax: 301-713-4137.
    Copies of the Regulatory Impact Review prepared for this action may 
be obtained from Lisa Desfosse. Requests should indicate whether paper 
copies or electronic copies on CD-ROM are preferred. These documents 
are also available at the following website: http://www.st.nmfs.noaa.gov/st4/nop/index.html.

FOR FURTHER INFORMATION CONTACT: Lisa Desfosse at 301-713-2328.

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Act, as amended; (16 U.S.C. 1801 et seq.), the 
Marine Mammal Protection Act, as amended (MMPA; 16 U.S.C. 1361 et 
seq.), the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531 et 
seq.), and the Atlantic Tunas Convention Act, as amended (ATCA; 16 
U.S.C. 971 et seq.) authorize the Secretary of Commerce (Secretary) to 
station observers aboard commercial fishing vessels to collect 
scientific data required for fishery and protected species conservation 
and management, to monitor incidental mortality and serious injury of 
marine mammals and other species listed under the ESA, and to monitor 
compliance with existing Federal regulations. In addition, under the 
South Pacific Tuna Act of 1988 (SPTA, 16 U.S.C. 973 et seq.), NMFS may 
require observers in the South Pacific Tuna Fishery.
    Regulations governing health and safety of observers are codified 
at 50 CFR 600.725 and 600.746. These

[[Page 4227]]

regulations apply to any vessel designated to carry an observer as part 
of a mandatory or a voluntary observer program under the Magnuson-
Stevens Act, MMPA, ESA, ATCA, SPTA, or any other U.S. law. The proposed 
rule is necessary to maintain and improve the safety and effectiveness 
of observers in carrying out their duties as authorized by the 
Magnuson-Stevens Act, and the fishery management plans and regulations 
adopted under the Magnuson-Stevens Act.
    Specifically, the proposed rule would clarify and update 
prohibitions, change paragraph headings to better reflect contents, 
make pre-trip vessel safety checks mandatory, adopt a NMFS alternate 
safety equipment examination using a vessel safety checklist of U.S. 
Coast Guard (USCG) safety requirements for vessels under 26 ft (8 m) in 
length under the limited circumstances in which a USCG Commercial 
Fishing Vessel (CFV) Safety Examination cannot be conducted, and change 
the observer safety requirements to apply from the time a vessel is 
notified that it has been selected to carry an observer, rather than 
commencing at the moment the observer begins boarding the vessel. The 
proposed rule would improve the clarity of the regulations for vessel 
owners and operators, strengthen the ability of NMFS to enforce 
observer safety requirements, reduce the likelihood and associated 
costs of delayed fishing trips or missed observer days at sea, and 
improve NMFS observer data by reducing vessel selection bias associated 
with missed observer trips and inability to cover smaller vessels.

Observer Samples and Observer Protection

    This proposed rule would expand the prohibitions of Sec.  600.725, 
revising paragraphs (t) and (u) to prohibit tampering with or 
destroying an observer's samples or equipment, or interfering with a 
NMFS approved observer. This change is necessary because observers have 
reported that fishing vessel crews have interfered with their sampling 
programs by throwing samples or equipment overboard or otherwise 
destroying or tampering with samples or equipment. The current 
regulations do not expressly prohibit tampering with samples or 
equipment. The changes would also reflect that NMFS observers are now 
sometimes assigned to shoreside plants by removing the words ``aboard a 
vessel.'' The proposed rule modifies paragraph (p) to reflect the 
addition of the NMFS alternative safety examination option and to 
clarify that passing safety examination conditions must be maintained.
    The proposed rule also adds paragraph (w), which makes it unlawful 
for a person to: ``fail to maintain safe conditions for the protection 
of observers including compliance with all USCG and other applicable 
rules, regulations, or statutes applicable to the vessel and which 
pertain to safe operation of the vessel.'' This language reinforces 
that vessel owners or operators are responsible for assuring that USCG 
regulations are followed at all times an observer is aboard their 
vessel.

Observer Safety

    The proposed rule changes the heading of Sec.  600.746(b) from 
``Observer Requirement'' to ``Observer Safety'' to better reflect the 
subject matter of the section. Currently, Sec.  600.746(b) states that 
an observer is not required to board, or stay aboard, a vessel that is 
inadequate or unsafe as described in paragraph (c) of the section. The 
definition was intended to provide the observer with discretion not to 
board a vessel. This language is open to misinterpretation in that it 
would seem not to allow an observer to board a vessel to determine if 
the vessel is unsafe. This action proposes to replace the term ``is not 
required'' and replace it with ``will not be deployed,'' clarifying the 
original intent of the regulation that observers not depart in or stay 
aboard vessels inadequate for observer deployment. Further, the term 
``inadequate or unsafe'' in these rules would be changed to 
``inadequate for observer deployment.'' This change would clarify that, 
while NMFS cannot determine the absolute safety of a vessel, NMFS can 
require standards of accommodation and safety on a vessel prior to an 
observer deploying in that vessel.

Proof of Examination

    Under the current regulations at Sec.  600.746(c), a vessel is 
inadequate or unsafe for carrying an observer unless the vessel's owner 
or operator can: (1) show proof to NMFS of either a current USCG CFV 
Safety Examination decal or a USCG certificate of examination; and (2) 
notify NMFS of that compliance when requested. This proposed rule would 
amend the current regulations to allow the owner or operator to show 
proof of passing the USCG CFV Safety Examination when the decal may 
have been lost due to window replacement, other repair, or accident. 
The proposed rule also adds language to paragraph (d)(1), clarifying 
that the decal must have been issued in the past two years, or at an 
interval consistent with current USCG regulations. This change is 
necessary to give the proposed rule flexibility in the event that USCG 
changes its safety decal inspection interval to a longer or shorter 
period.

Accommodations and Safety Requirements

    This proposed rule would update the accommodations requirement in 
the regulations. Each NMFS region will provide this information to 
vessel owners or operators in a manner appropriate to that region or 
fishery, as established by the appropriate Regional Administrator. The 
proposed rule would also clarify that both the accommodations 
requirement and either the USCG CFV Safety Examination requirement or 
alternate examination procedure set out in paragraph (g) of this 
section must be satisfied for the vessel to be considered adequate 
under the requirements of paragraph (c).

Vessel Pre-trip Safety Check

    Recent fishing vessel casualties have highlighted the importance of 
safety equipment in preventing or reducing the severity of accidents on 
board fishing vessels. The current regulations at Sec.  600.746(c)(3) 
encourage, but do not require, observers to use the pre-trip safety 
check, including the check for USCG required safety equipment. A vessel 
may have met the requirements for issuance of a current USCG CFV Safety 
Examination decal, or passed an appropriate USCG inspection. However, 
the equipment required for issuance of the decal or passing of the 
inspection may not be present or within its inspection parameters prior 
to the initial deployment of the observer (for example, the vessel may 
only have enough personal flotation devices for the crew, not including 
the observer).
    This proposed rule would require that the vessel's captain or the 
captain's designee accompany the observer in making a safety check to 
verify compliance with safety requirements prior to the initial 
observer deployment. The checklist used by the observer will include 
the six items listed in the current regulation, plus additional 
fishery-area and vessel specific items required by the USCG. The 
vessel's captain or designee would also accompany the observer in a 
walk through the vessel to ensure that no obviously hazardous 
conditions exist aboard the vessel. This pre-trip check may be 
incorporated into the vessel safety orientation provided by the vessel 
to the observer as required by 46 CFR 28.270.

[[Page 4228]]

    The proposed rule would also clarify that an emergency position 
indicating radio beacon (EPIRB), when required, must be registered to 
the vessel where it is located, and that survival craft, when required, 
must have sufficient capacity to accommodate the total number of 
persons, including the observer(s), that will embark on the voyage.

NMFS Alternate Safety Equipment Examination

    The current regulations do not allow for an alternative to the USCG 
CFV Safety Examination in cases where NMFS observers are required to 
board smaller vessels in remote areas (primarily in Alaska). Although 
these small vessels generally comply with the USCG CFV Safety 
Examination standards, their small size precludes them from traveling 
to a location where a CFV safety examination can be performed, and USCG 
personnel, in certain circumstances, may not be available to travel to 
all remote locations to conduct an examination. This proposed rule 
would provide an alternative method for vessels less than 26 ft (8 m) 
in length to meet the safety requirement by passing an alternate safety 
equipment examination that is consistent with the USCG safety standards 
for commercial fishing vessels under 26 ft. USCG safety requirements 
for commercial fishing vessels are at 46 CFR part 28. A NMFS approved 
observer, NMFS employee, or an authorized observer provider would 
conduct the alternate safety examination. This alternate safety 
examination would only be valid for the trip for which the vessel was 
selected to carry an observer. This alternate safety examination would 
allow observer programs to increase coverage of remote fisheries, which 
would provide more comprehensive scientific information. Vessels would 
still be required to comply with applicable regional requirements 
governing observer accommodations, which may address adequacy, health, 
and safety concerns beyond the scope of USCG standards.

Duration

    The current regulations at Sec.  600.746(e) state that the 
requirements of this section apply to the time of the observer's 
boarding, at all times the observer is aboard, and at the time the 
observer is disembarking from the vessel. This proposed rule would 
amend the current regulations by adding the phrase ``at the time of 
written or verbal selection of the vessel to carry an observer'' by the 
observer program. This would make it clear that vessels are required to 
comply with the observer safety requirements from the time the vessel 
is selected to carry an observer, which is days or weeks in advance of 
the actual deployment date of an observer to the selected vessel, until 
the observer disembarks the vessel at the end of the observed trip. 
This amendment should accelerate the process of placing observers 
aboard vessels, reduce vessel selection bias associated with missed 
observer trips, and reduce the costs of fishing trip delay by providing 
an additional assurance that the selected vessel complies with the 
regulations on the day the observed fishing trip is scheduled. It will 
also give NMFS authority to enforce the safety requirements prior to 
the deployment of an observer by, for example, checking vessels for 
compliance with safety requirements.

Classification

    NMFS has preliminarily determined that the rule is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    The proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Initial Regulatory Flexibility Analysis (IRFA)

    Section 603 of the Regulatory Flexibility Act (RFA) requires that 
NMFS prepare an IRFA describing the economic impact this proposed rule, 
if adopted, would have on small entities. These economic impacts are 
discussed below. A description of the action, why it is being 
considered, the objectives of, and the legal basis for this action are 
found in the Background and SUMMARY sections of the preamble. This rule 
does not duplicate, overlap, or conflict with any relevant federal 
rules. There are no reporting, recordkeeping, or other compliance costs 
associated with this rulemaking.

Description and Number of Entities Affected

    NMFS has defined all fish-harvesting or hatchery businesses that 
are independently owned and operated, not dominant in their field of 
operation, with annual receipts not in excess of $4,000,000, as small 
businesses. NMFS estimates that approximately 8,925 commercial fishing 
vessels could be required to carry an observer in NMFS-regulated 
fisheries. Current, precise data on the number of commercial fishing 
vessels that are ``small entities'' is not presently available because 
year-to-year participation by such entities in any given fishery is 
variable, due to economic, regulatory, climatic, and other forces. 
However, an estimate of 8,755-8,825 vessels was derived by combining 
the best estimates from data available to each of the regional 
programs.
    The proposed rule clarifies an existing NMFS requirement that 
vessels display a USCG CFV Safety Examination decal. The decal is 
obtained after passing a USCG inspection of the vessel for compliance 
with USCG safety regulations. The inspection is scheduled at a time 
convenient to the vessel owner or operator, and is free of charge 
(except to some processor vessels). NMFS has not identified any 
disproportionate economic impacts between small and large entities for 
this action. Furthermore, there are no disproportionate economic 
impacts among groups of entities based on types of gear, areas fished, 
or vessel size.

Preferred Alternative

    The benefits of the preferred alternative include increased safety 
for all crew members and observers. Potential costs to vessel owners or 
operators include the costs associated with putting the vessel in safe 
condition. However, this is already required by the existing NMFS 
regulations and is based on safety regulations promulgated and enforced 
by the USCG. Therefore, this rule should not impose new compliance 
costs.
    This proposed rule does not require that vessel operators expend 
more than the existing rules require (e.g. for the purchase of an 
additional personal floatation device). However, failure of a vessel to 
comply with this proposed rule may cause loss of fishing time. The cost 
of a lost fishing day will vary among fisheries. For example, a fishing 
day at sea in a multispecies fishery in the Northeast region has been 
valued at an average of $364, but this figure would vary in other 
fisheries, depending upon the value of the fishery, the type of 
management regime governing that fishery, and the degree to which a 
vessel derives its income from that fishery. The risk of loss of 
fishing time due to this proposed rule is minimal, because vessel 
owners are already required to comply with USCG safety regulations and 
to obtain a USCG CFV Safety Decal. NMFS anticipates that vessel owners 
will voluntarily ensure that their vessels comply with the safety 
requirements to avoid the loss of fishing time.
    Vessels would incur a small cost in allocating the captain or other 
crew member's time to accompany the

[[Page 4229]]

observer on the pre-trip safety check, but this could be readily 
integrated into existing procedures, such as the existing requirement 
to orient the observer to the vessel (46 CFR 28.270). Additional 
benefits of this proposed rule include the avoidance of the loss of 
human life and the economic costs of non-lethal injury.

``No Action'' and Other Alternatives

    Under the ``no action'' alternative to this proposed rule, no new 
costs would be incurred. However, the difference between the cost of 
``no action'' and the cost of the preferred alternative is minimal and 
NMFS believes that most of the affected vessels already voluntarily 
follow the USCG safety regulations and comply with the existing NMFS 
requirement for a USCG CFV Safety Decal.
    Another alternative discussed by NMFS is to allow the observer to 
assess, in addition to the safety requirements set out in the proposed 
rule, a range of considerations, such as food and accommodation 
quality, competence of the vessel captain and crew, and drug or alcohol 
use by the captain or crew. This option would broaden the safety 
protections of observers, but would also enable the observer to make 
subjective, individual determinations that not all vessels would be 
able to economically meet for all observers. The risk of loss of 
fishing days under this alternative is greater than the preferred 
alternative.
    Finally, NMFS considered making a NMFS employee or an authorized 
observer provider the judge of the adequacy of a vessel. NMFS does not 
believe that a NMFS employee or an observer provider is more likely to 
discover safety issues than the observer, so this alternative does not 
improve safety. This alternative also has the potential to increase the 
risk of lost fishing days while safety concerns are resolved, 
particularly if there is disagreement between the observer and NMFS or 
the observer provider about whether the vessel is adequate.
    A copy of the IRFA is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 24, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 600 is 
proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read as 
follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
    2. In Sec.  600.725, paragraphs (p), (t), and (u) are revised and 
paragraph (w) added to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (p) Fail to show proof of passing the USCG Commercial Fishing 
Vessel Safety Examination or the NMFS alternate safety equipment 
examination, or fail to maintain the vessel safety conditions necessary 
to pass the examination, when required by NMFS pursuant to Sec.  
600.746.
* * * * *
    (t) Assault, oppose, impede, intimidate, or interfere with a NMFS-
approved observer.
    (u)(1) Prohibit or bar by command, impediment, threat, coercion, 
interference, or refusal of reasonable assistance, an observer from 
conducting his or her duties as an observer; or
    (2) Tamper with or destroy samples or equipment.
* * * * *
    (w) Fail to maintain safe conditions for the protection of 
observers including compliance with all USCG and other applicable 
rules, regulations, or statutes applicable to the vessel and which 
pertain to safe operation of the vessel.
    3. In Sec.  600.746, paragraphs (b) through (f) are revised and 
paragraphs (g) and (h) are added to read as follows:


Sec.  600.746  Observers.

* * * * *
    (b) Observer safety. An observer will not be deployed on, or stay 
aboard, a vessel that is inadequate for observer deployment as 
described in paragraph (c) of this section.
    (c) Vessel inadequate for observer deployment. A vessel is 
inadequate for observer deployment and allowing operation of normal 
observer functions if it:
    (1) Does not comply with the applicable regulations regarding 
observer accommodations (see 50 CFR parts 229, 285, 300, 600, 622, 635, 
648, 660, and 679);
    (2) Has not passed a USCG Commercial Fishing Vessel Safety 
Examination, or
    (3) For vessels less than 26 ft (8 m) in length, has not passed an 
alternate safety equipment examination, as described in paragraph (g) 
of this section.
    (d) Display or show proof. A vessel that has passed a USCG 
Commercial Fishing Vessel Safety Examination must display or show proof 
of one of the following:
    (1) A valid USCG Commercial Fishing Vessel Safety Examination decal 
certifying compliance with regulations found in 33 CFR chapter I and 46 
CFR chapter I, that will not expire before the end of the fishing trip, 
and issued within the last 2 years, or at a time interval consistent 
with current USCG regulations;
    (2) In situations of mitigating circumstances which may prevent a 
vessel from displaying a valid safety decal (broken window, etc.), 
NMFS, the observer, or NMFS' designated observer provider may accept 
the associated documentation as proof of the missing safety decal in 
paragraph (d)(1) of this section;
    (3) A certificate of compliance issued pursuant to 46 CFR 28.710;
    (4) A certificate of inspection pursuant to 46 U.S.C. 3311.
    (e) Visual inspection. Upon request by an observer, a NMFS 
employee, or a designated observer provider, a vessel owner or operator 
must provide correct information concerning any item relating to any 
safety or accommodation requirement prescribed by law or regulation, in 
a manner and according to a timeframe as directed by NMFS. A vessel 
owner or operator must also allow an observer, a NMFS employee, or a 
designated observer provider to visually examine any such item.
    (f) Vessel safety check. Prior to the initial deployment, the 
vessel owner or operator or the owner or operator's designee must 
accompany the observer in a walk through the vessel's major spaces to 
ensure that no obviously hazardous conditions exist. This action may be 
a part of the vessel safety orientation to be provided by the vessel to 
the observer as required by 46 CFR 28.270. The vessel owner or operator 
or the owner or operator's designee must also accompany the observer in 
checking the following major items as required by applicable USCG 
regulations:
    (1) Personal flotation devices/immersion suits;
    (2) Ring buoys;
    (3) Distress signals;
    (4) Fire extinguishing equipment;
    (5) Emergency position indicating radio beacon (EPIRB), when 
required, registered to the vessel where it is located;

[[Page 4230]]

    (6) Survival craft, when required, with sufficient capacity to 
accommodate the total number of persons, including the observer(s), 
that will embark on the voyage; and
    (7) Other fishery-area and vessel specific items required by the 
USCG.
    (g) Alternate safety equipment examination. If a vessel is under 26 
ft (8 m) in length, and NMFS has determined that the USCG cannot 
provide a USCG Commercial Fishing Vessel Safety Examination due to 
unavailability of inspectors or to unavailability of transportation to 
or from an inspection station, the vessel will be adequate for observer 
deployment if it passes an alternate safety equipment examination 
conducted by a NMFS certified observer, observer provider, or a NMFS 
observer program employee, using a checklist of USCG safety 
requirements for commercial fishing vessels under 26 ft (8 m) in 
length. Passage of the alternative examination will only be effective 
for the single trip selected for observer coverage.
    (h) Duration. The requirements of this section apply at the time 
the vessel owner or operator is notified orally or in writing by an 
observer, a NMFS employee, or a designated observer provider, that his 
or her vessel has been selected to carry an observer. The requirements 
of this section continue to apply through the time of the observer's 
boarding, at all times the observer is aboard, and at the time the 
observer disembarks from the vessel at the end of the observed trip.
[FR Doc. E7-1444 Filed 1-29-07; 8:45 am]
BILLING CODE 3510-22-S