[Federal Register Volume 72, Number 211 (Thursday, November 1, 2007)]
[Rules and Regulations]
[Pages 61815-61819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21550]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 071023555-7555-01; I.D. 062906A]
RIN 0648-AU46


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: Final rule.

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SUMMARY: NMFS publishes this final rule to enhance the safety of 
observers and the efficiency of their deployment. The purpose of the 
final rule is to clarify prohibited actions regarding observers, 
reinforce that an observer may not be deployed nor stay aboard an 
unsafe vessel, clarify when a fishing vessel is inadequate for observer 
deployment and how an owner or operator can resolve discrepancies, 
clarify when the safety decal requirement applies, and provide for an 
alternate NMFS safety equipment examination of certain small fishing 
vessels. This final rule is necessary to maintain and enhance the 
safety and effectiveness of fisheries 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: Effective December 3, 2007.

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

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is also accessible via the Internet 
at the Office of the Federal Register's website at http://www.gpoaccess.gov/fr/index.html.

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.), 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 to 
marine mammals and to other species listed under the Endangered Species 
(ESA), and to monitor compliance with existing Federal regulations. In 
addition, under the South Pacific Tuna Act of 1988 (SATA) (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. They were first promulgated as a final 
rule at 63 FR 27213, May 18, 1998. These amendments apply to any vessel 
designated to carry an observer as part of a mandatory or a voluntary 
observer program under the Magnuson-Stevens Act, the MMPA, the ATCA, 
SPTA, or any other U.S. law.
    This final rule clarifies and updates prohibitions; changes 
paragraph headings to better reflect contents; clarifies communications 
requirements; requires pre-trip vessel safety checks; clarifies that 
corrective measures are required prior to an observer being deployed 
aboard a vessel; adopts an alternate NMFS safety equipment examination 
using a NMFS Pre-trip Safety Checklist for U.S. Coast Guard (USCG) 
Category I vessels (vessels less than 26 ft. (8 m)) under certain 
circumstances when a USCG Commercial Fishing Vessel (CFV) Safety 
Examination cannot be conducted; and clarifies that observer safety 
requirements apply from the time a vessel is notified of an observer 
requirement, rather than on the day the fishing trip is scheduled to 
begin. This action strengthens the ability of NMFS to assist with 
observer program compliance issues.

Observer Samples

    This final rule revises the prohibitions of Sec.  600.725 to 
prohibit tampering with or destroying an observer's samples or 
equipment, or interfering with a NMFS approved observer. This change 
was necessary because observers reported fishing vessel crews 
interfering with their sampling programs by throwing samples or 
equipment overboard or otherwise destroying or tampering with them. The 
changes also reflect that NMFS observers are now sometimes assigned to 
shoreside plants.

Observer Safety

    Paragraph (b) of Sec.  600.746 addresses observer safety, and the 
heading is changed accordingly. Paragraph (b) stated 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 allow the observer to subjectively decide whether to 
board. This language could be interpreted to not allow an observer to 
board a vessel to determine if the vessel is unsafe. The final rule 
replaces the term ``is not required'' 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'' is revised to ``inadequate 
for observer deployment.'' This change clarifies 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

    The regulations at Sec.  600.746(c) considered a vessel inadequate 
or unsafe for carrying an observer unless

[[Page 61816]]

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 rule amends 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.

Accommodations and Safety Requirements

    This final rule updates accommodations requirements at 50 CFR parts 
229, 285, 300, 600, 622, 635, 648, 660, and 679. Each NMFS region will 
provide information to vessel owners/operators in a manner appropriate 
to that region or fishery, as established by the appropriate Regional 
Administrator. The rule also clarifies that both the accommodations 
requirement and the USCG CFV Safety Examination requirement or 
alternate examination procedure set out in paragraph (h) of this 
section must be satisfied for the vessel to be considered adequate 
under the requirements of paragraph (c).

Vessel Requirement

    The rule revises Sec.  600.725 to include paragraph (w) ``Any 
vessel that is carrying one or more observers must maintain safe 
conditions for the protection of observers including compliance with 
all U.S. Coast Guard and other applicable rules, regulations, or 
statutes applicable to the vessel and which pertain to safe operation 
of the vessel.''

Vessel Pre-Trip Safety Check

    The 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 in satisfactory condition prior to the initial deployment 
of the observer.
    This final rule will require that the vessel's captain or the 
captain's designee accompany the observer in a safety check prior to 
the initial deployment. The observer will use a checklist that includes 
the six items listed in the regulation, plus items required by the USCG 
and added by each observer program, in consultation with USCG, to be 
fishery area and vessel specific. The vessel's captain or designee must 
also accompany the observer in a walk through the vessel's spaces to 
ensure that no obviously hazardous conditions exist about the vessel. 
This pre-trip check may be incorporated into the vessel safety 
orientation to be provided by a Federally documented vessel to the 
observer as required by 46 CFR 28.270.
    This final rule also clarifies at Sec.  600.746(f)(5) that an 
emergency position indicating radio beacon (EPIRB), when required, 
shall be registered to the vessel at its documented homeport and at 
Sec.  600.746(f)(6) that survival craft, when required, ``shall have 
sufficient capacity to accommodate the total number of persons, 
including the observer(s), that will embark on the voyage.''

Corrective Measures

    This final rule revises the current language of Sec.  600.746(d) 
corrective measures to require that the vessel owner/operator selected 
to carry an observer must comply with the safety requirements when the 
vessel is notified. Additionally, this final rule clarifies that in a 
voluntary program, it is the choice of the owner/operator of the vessel 
whether to correct safety discrepancies and allow the vessel to carry 
an observer.

Alternate NMFS 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) in order to 
carry out their duties. Their remote location precludes them from 
traveling to a location where a CFV safety examination can be 
performed, and USCG personnel, in certain circumstances, may not be 
able to travel to all locations to conduct an examination. This final 
rule revises Sec.  600.746 to allow a USCG Category I vessel (a vessel 
less than 26 ft. (8 m.) in length) an alternative method for meeting 
the safety requirement by passing an alternate NMFS safety equipment 
examination that is consistent with the USCG CFV Safety Examination 
standards for USCG Category I vessels. The alternate safety examination 
would be conducted by a NMFS approved observer, NMFS employee, or an 
authorized observer provider. This alternate NMFS safety equipment 
examination (designed in consultation with USCG to be fishery-area-
specific) would only be available to USCG Category I vessels in a 
remote location, and only for a period up to 30 days after date of 
notification that the vessel is required to carry an observer.

Duration

    This final rule revises Sec.  600.746(e) to Sec.  600.746 (h) and 
amends the language by adding the phrase ``at the time of written or 
verbal selection of the vessel to carry an observer'' by the observer 
program. This clarifies that vessels are required to comply with the 
observer safety requirements at the time their vessel is selected to 
carry an observer, which may be days or weeks in advance of the actual 
deployment date of an observer to the selected vessel. This will allow 
NMFS to check vessels for compliance with the safety requirements prior 
to the deployment of an observer.

Summary of Comments and Responses

    NMFS received several substantive comments from the public. Below 
are summaries of significant public comments and the NMFS' responses 
with proposed changes.

Comments Relating to Observer Safety

    Comment 1: Safety has improved as a result of the observer health 
and safety regulations, but some NMFS observer programs have had 
difficulty requiring vessels to comply with the observer health and 
safety regulations, e.g., lack of adequate bunk space to accommodate an 
observer, and/or lack a survival craft of sufficient capacity to 
accommodate all persons on the vessel, including the observer. We 
believe the proposed deletions of 50 CFR 600.746(d) and (f) may in fact 
exacerbate the problem. Regulations that direct NMFS to ensure that 
vessels take corrective actions to come into compliance with the 
accommodation and safety requirements, or else not fish, are not only 
necessary, but should be strengthened. Otherwise, vessels that fail 
safety examinations may have little incentive to correct deficiencies 
before fishing. Accordingly, we strongly urge that 50 CFR 600.746(d) 
and (f) be retained in the Final Rule and fully implemented to ensure 
that the observer safety regulations achieve their intended effect.
    Response: The language contained in 50 CFR 600.746(d) was in 
conflict with the revised language in 50 CFR 600.746(e), which makes 
clear that vessels are required to comply with the observer safety 
requirements from the time the vessel is selected to carry an observer, 
which may be days or weeks in advance of the actual deployment. The 
language contained in 50 CFR

[[Page 61817]]

600.746(d) was deleted because it could be interpreted to mean 
compliance is required only immediately prior to the observer boarding 
the vessel and is inconsistent with the revisions in 50 CFR 600.746(e).
    However, NMFS agrees with the comment with regard to the proposed 
deletion of 50 CFR 600.746(f). NMFS agrees that this provision must be 
retained to ensure that the observer safety regulations achieve their 
intended effect and will reinstate this provision.

Comments Relating to Proof of Examination

    Comment 2: The proposed rule 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 Coast Guard regulations. The 
Commercial Fishing Vessel (CFV) dockside safety examination program was 
expanded to fish catching vessels by Coast Guard policy only, on a 
voluntary basis, making the statement partially inaccurate.
    Response: NMFS agrees and will add, ``or policy'' so that paragraph 
(d)(1) will read: `` clarifying that the decal must have been issued in 
the past two years, or at an interval consistent with current Coast 
Guard regulations or policy.''

Comments in Relating to Alternate Safety Equipment Examination

    Comment 3: Certain NMFS observer programs have been unable to 
successfully deploy observers on small vessels (<26 feet) that do not 
have access to USCG examiners in their area. Many of these fishing 
sites are in very remote areas where USCG examiners are rarely 
accessible. In these situations, an alternate safety equipment 
examination performed either by the NMFS certified contract observer, 
their employer, or a NMFS observer program employee, is reasonable. The 
proposed regulatory text is vague and could be open to a broader 
interpretation. It does not reference remote sites; instead it 
references the unavailability of examiners or the unavailability of 
transportation to or from an inspection station. It should be clear 
that this alternate examination is not meant to apply to fishing 
vessels in more populous areas where fishers may assert they tried to 
schedule an examination yet could not.
    Response: In the preamble, NMFS makes clear that the intent of the 
proposed rule is to address vessels <26 ft. in remote areas, primarily 
in Alaska. This is the focus of the regulation, but the regulation 
still provides flexibility to address other scenarios that may arise in 
the future in other areas. To further clarify the proposed rule's 
intent, in the first sentence of 50 CFR 600.746(g), NMFS will insert, 
``If a vessel is under 26 ft. (8 m) in length, in a remote location, 
and NMFS has determined that the USCG cannot provide a USCG Commercial 
Fishing Vessel Safety Examination...''

Comments Relating to Display or Show Proof

    Comment 4: While subparagraphs (3) and (4) adequately address the 
fish processing vessels and fish tender vessels, respectively, there is 
no mention of an alternative means to show proof for fish catching 
vessels.
    Response: NMFS agrees with this comment and in Sec.  600.746, will 
renumber subparagraphs (3) and (4), to (i) and (ii). NMFS will also 
add, (iii) ``For vessels not subject to (i) and (ii) above, a dockside 
examination report form indicating the decal number and date and place 
of issue.'' and place (i), (ii), and (iii) under subparagraph (2).
    Comment 5: Commercial fishing industry vessels may undergo a safety 
examination, but are not generally required to be inspected, unless 
they are over a certain tonnage, also operate as a cargo vessel, or 
also operate as a small passenger vessel. In such cases they may be 
issued a certificate of inspection (COI). Currently, we know of no 
fishing vessels that are required to be inspected.
    Response: The intent of subparagraph (d) (3) (4) (modified to (i) 
and (ii)), is to address alternate means to show proof of a decal for 
observers deployed on fish processing and tending vessels. The language 
has been revised to also address fishing vessels, (iii) For vessels not 
subject to (i) and (ii) above, a dockside examination report form 
indicating the decal number and date and place of issue.

Classification

    NMFS has determined that this final rule 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.

Final Regulatory Flexibility Analysis (FRFA)

    Section 603 of the Regulatory Flexibility Act (RFA) requires that 
NMFS prepare a Final Regulatory Flexibility Analysis (FRFA) summarizing 
significant issues raised by the public comments in response to the 
Initial Regulatory Flexibility Analysis (IRFA). The agency's response 
to those comments and changes made to the rule as a result of the 
comments are below. There were no comments on the IRFA or the economic 
impacts of the rule. 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 of $4,000,000 or less, as small 
businesses. NMFS estimates that approximately 8,925 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 are not presently available because year-to-year participation 
by such entities in any given fishery is variable, due to economic, 
regulatory, climatic, and other factors. However, combining the best 
available data estimates from each of the regional observer programs 
derived an estimate of 8,755-8,825 vessels.
    The rule clarifies an existing NMFS requirement that vessels 
display a USCG CFV Safety Examination decal. The decal is obtained by 
passing a free (except to some processor vessels) examination of 
compliance with USCG safety regulations, that is scheduled at a time 
convenient to the vessel owner/operator. No disproportionate economic 
impacts between small and large entities were identified 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

    This final rule does not require that vessel operators expend more 
than the existing rules require (e.g., for the purchase of a larger 
life raft to accommodate an observer). However, failure of a vessel to 
comply with this rule may cause loss of fishing time. The cost of a 
lost fishing day varies among fisheries. For example, an average cost 
of a day-at-sea across all vessels 40-80 ft in length (i.e., all gears) 
in the Northeast in 2006 was $895, 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 the 
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

[[Page 61818]]

CFV Safety Decal when fishing in a federally permitted fishery that 
requires observer coverage. Therefore, this rule does not impose any 
new compliance costs.

``No Action'' and Other Alternatives

    Under the ``no action'' alternative to this 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 when fishing in a federally 
permitted fishery that requires observer coverage.
    A more detailed copy of this analysis is available from NMFS (see 
ADDRESSES).

List of Subjects in 50 CFR Part 600

    Fisheries, Fishery, Fishing vessels, Reporting and recordkeeping 
requirements.

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

    Dated: October 26, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 600 is amended as 
follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
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.

0
2. In Sec.  600.725, paragraphs (p), (t), and (u) are revised and 
paragraph (w) is 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 alternate NMFS 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 U.S. Coast Guard and other 
applicable rules, regulations, or statutes applicable to the vessel and 
which pertain to safe operation of the vessel.

0
3. In Sec.  600.746, paragraphs (b) through (f) are revised and 
paragraphs (g), (h), and (i) 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 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), or
    (2) Has not passed a USCG Commercial Fishing Vessel Safety 
Examination, or 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 a valid USCG Commercial Fishing Vessel Safety Examination decal that 
certifies compliance with regulations found in 33 CFR Chapter 1 and 46 
CFR Chapter 1, and which was issued within the last 2 years or at a 
time interval consistent with current USCG regulations or policy.
    (1) 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 following associated documentation as proof of the missing safety 
decal described in paragraph (d) of this section:
    (i) A certificate of compliance issued pursuant to 46 CFR 28.710;
    (ii) A certificate of inspection pursuant to 46 U.S.C. 3311; or
    (iii) For vessels not required to obtain the documents identified 
in (d)(1)(i) and (d)(1)(ii) of this section, a dockside examination 
report form indicating the decal number and date and place of issue.
    (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, shall be registered to the vessel at its documented homeport;
    (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 in a remote location, 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 vessel owner or operator is required to comply 
with the requirements of this section when the vessel owner or operator 
is notified orally or in writing by an observer, a

[[Page 61819]]

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.
    (i) Effect of inadequate status. A vessel that would otherwise be 
required to carry an observer, but is inadequate for the purposes of 
carrying an observer, as described in paragraph (c) of this section, 
and for allowing operation of normal observer functions, is prohibited 
from fishing without observer coverage.

[FR Doc. E7-21550 Filed 10-31-07; 8:45 am]
BILLING CODE 3510-22-S