Fisheries of the Exclusive Economic Zone Off Alaska; Extension of the Interim Groundfish Observer Program through 1998

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 970829216-7216-01; I.D. 073097B]

RIN 0648-AK15

Fisheries of the Exclusive Economic Zone Off Alaska; Extension of

the Interim Groundfish Observer Program through 1998

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule to implement a regulatory

amendment to extend with some minor revisions the current groundfish

observer coverage requirements and implementing regulations for the

North Pacific Groundfish Observer Program (Observer Program) that

expire December 31, 1997. This action is necessary to assure

uninterrupted observer coverage requirements through 1998. This

proposed rule also provides notice of proposed changes to observer

qualifications and observer training/briefing requirements, which are

non-codified elements of the Observer Program.

This action is intended to accomplish the objectives of the Fishery

Management Plan for Groundfish of the Gulf of Alaska and the Fishery

Management Plan for the Groundfish Fishery of the Bering Sea and

Aleutian Islands Area (FMPs).

DATES: Comments on the proposed rule must be received by October 20,

1997.

ADDRESSES: Comments should be sent to Chief, Fisheries Management

Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn:

Lori J. Gravel, or delivered to the Federal Building, 709 West 9th

Street, Juneau, AK. Copies of the Environmental Assessment/Regulatory

Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA)

prepared for the 1997 Interim Groundfish Observer Program may be

obtained from the Fisheries Management Division, Alaska Region, NMFS,

P.O. Box 21668, Juneau, AK 99802; telephone: 907-586-7228. Copies of

the Regulatory Impact Review/Initial Regulatory Flexibility

Analysis(RIR/IRFA) prepared for the proposed regulatory amendment also

may be obtained from this address.

FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

The U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the

Bering Sea and Aleutian Islands Area in the Exclusive Economic Zone are

managed by NMFS under the FMPs. The FMPs were prepared by the North

Pacific Fishery Management Council (Council) under the Magnuson-Stevens

Fishery Conservation and Management Act (Magnuson-Stevens Act) and are

implemented by regulations for the U.S. fisheries at 50 CFR part 679.

General regulations that also pertain to U.S. fisheries appear at

subpart H of 50 CFR part 600.

In 1996, the Council adopted and NMFS implemented the Interim

Groundfish Observer Program. The Interim Groundfish Observer Program

superseded the North Pacific Fisheries Research Plan and extended the

1996 mandatory groundfish observer requirements through 1997, unless

superseded by a long-term program that addresses concerns about

observer data integrity, equitable distribution of observer coverage

costs, and observer compensation and working conditions. NMFS continues

to pursue a long-term solution and is developing an alternative that

was supported by the Council at its June 1997 meeting. The Council is

scheduled to take final action on a long-term alternative at its

December 1997 meeting. Given that this alternative cannot be in place

by January 1, 1998, the current interim program must be extended to

assure uninterrupted observer coverage requirements.

At its June 1997 meeting, the Council unanimously requested NMFS to

extend through 1998 the current interim program, with minor revisions

recommended by NMFS. In addition, the Council recommended an adjustment

to the existing observer conflict-of-interest standard that prohibits a

person from serving as an observer if that person was employed in a

North Pacific fishery during the previous 12-month period. The Council

recommended a less restrictive standard that would prohibit an observer

from working on any vessel or at any shoreside processor owned or

operated by a person who previously employed the observer during the

previous 12-month period. Public testimony at the Council meeting

indicated that the current conflict-of-interest standard may be too

restrictive given that the interim observer program does not address

the issue of an adequate observer compensation package. Until the

observers are more adequately compensated, they may need to engage in

non-observer employment in North Pacific fisheries.

Proposed Regulatory Changes For The 1998 Interim Groundfish Observer

Program

A description of the regulatory provisions of the Interim

Groundfish Observer Program was provided in the preambles to the

proposed and final rules implementing this program (61 FR 40380, August

2, 1996; 61 FR 56425, November 1, 1996). Only minor changes from the

1997 regulations are being proposed for 1998. They are described and

justified below.

1. Extend the effective period of 50 CFR 679.50 through December

31, 1998. The 1-year extension is intended to encompass the period of

time necessary for NMFS to develop a long-term

[[Page 49199]]

program that addresses concerns about observer data integrity and

observer compensation and working conditions.

2. Revise the conflict-of-interest regulation at

Sec. 679.50(h)(2)(i)(A)(4) to indicate that individuals may not serve

as observers on any vessel or at any shoreside processor owned or

operated by a person who previously employed the observer, for a period

of 12 consecutive months after being employed by that person. This

revision is less restrictive than the current regulation.

3. Expand the prohibition at Sec. 679.7(g)(1) to include sexual

harassment and bribery as unlawful interferences with an observer. The

proposed amendment would make the regulations consistent with section

307(1)(L) of the Magnuson-Stevens Act. NMFS notes that situations could

occur in which a person's (e.g., vessel owner/operator, shoreside

processor required to have observer coverage) offer of employment in a

North Pacific fishery to an observer carrying out observer duties could

constitute a bribe. Bribes and sexual harassment are prohibited under

section 307(1)(L) of the Magnuson-Stevens Act and can be prosecuted as

criminal offenses, punishable by fine and/or imprisonment.

4. Revise the 30-percent observer coverage requirement regulation

at Sec. 679.50(c)(vi) and (vii) to clarify that required coverage is

specific to the gear type. This means that observer coverage obtained

for a vessel using hook-and-line gear cannot be used to comply with

observer coverage requirements for the same vessel when it is used to

fish with pot gear.

5. Clarify the regulation at Sec. 679.50(i)(2)(xiv)(G) to alleviate

confusion on what information observer contractors currently are

required to submit to NMFS. The proposed clarification specifies that

an observer contractor must submit completed and unaltered copies of

signed and valid contracts with specific entities requiring observer

services or with specific observers to the Observer Program Office upon

request. Required copies of contracts must be submitted by mail or fax.

Types of signed and valid contracts include the contracts an observer

contractor has with: (a) vessels required to have 30-percent observer

coverage, (b) vessels required to have 100-percent observer coverage,

(c) shoreside processors required to have 30-percent observer coverage,

(d) shoreside processors required to have 100-percent observer

coverage, or (e) observers (to include contracts for the various

compensation or salary levels of observers, the levels being based on

observer experience).

6. Correct the regulation at Sec. 679.50(j)(7)(iv) that referenced

the wrong paragraph. The 1997 Interim Groundfish Observer Program

regulations at Sec. 679.50(j)(7)(iv) stated that ``[t]he appeals

officer must base the decision on the administrative records complied

under paragraphs (j)(5) or (i)(7) of this section, as appropriate.''

The correct references are to paragraphs (j)(5) or (j)(6). This

proposed revision replaces ``(i)(7)'' with ``(j)(6)''.

Non-codified Elements Of The Observer Program

Three elements of the 1997 Observer Program were not codified in

regulation: (1) Observer qualifications, (2) observer training/briefing

requirements, and (3) NMFS's selection criteria for observer

contractors. These elements were published in the Federal Register (61

FR 40380, August 2, 1996) and are available upon request. Although they

were not codified, they are viewed as a part of the rule and NMFS will

publish a notification in the Federal Register and provide an

opportunity for public comment prior to changing any of these elements.

NMFS proposes making minor revisions to two of the elements as follows:

1. Revise item ``B'' of the ``NMFS Observer Qualifications--

Education and Experience Standards'' to require observers to have taken

at least one course that used extensively dichotomous keys. During

training, observers spend approximately 15 hours of class time in fish

identification lectures and laboratories. Much of this time is spent

identifying fish to species using dichotomous keys. Observers with

previous course work using dichotomous keys are better able to apply

that training.

2. Revise the ``NMFS Observer Training/Briefing Requirements'' to

require all prior observers to complete a 4-day briefing prior to their

first deployment in any calendar year. One-day briefings would be

required prior to subsequent deployments within a calendar year.

Additional briefing time is required to fully prepare observers to use

the new observer electronic reporting package (ATLAS), to review any

other regulatory or programmatic changes on an annual basis, and to

engage in an annual review of species identification, enabling

observers to complete more efficiently that aspect of their duties.

The observer qualifications, as proposed to be revised, are set

forth below. NMFS' selection criteria for observer contractors would

remain unchanged.

A. Prospective observers must have a bachelor's degree or higher

from an accredited college or university with a major in one of the

natural sciences.

B. Candidates must have a minimum of 30 semester hours or

equivalent in applicable biological sciences with extensive use of

dichotomous keys in at least one course. Candidates must also have

successfully completed at least one undergraduate course in mathematics

and one in statistics worth a combined total of at least 5 semester

hours. In addition, all applicants are required to have computer skills

that enable them to work competently with standard database software

and computer hardware.

C. Prospective observers are also required to complete successfully

any screening test(s) administered by NMFS. These tests would measure

basic mathematics, algebra, and computer skills as well as other

abilities necessary for successful job performance.

D. If a sufficient number of candidates meeting these educational

prerequisites is not available, the observer contractor may seek

approval from NMFS to substitute individuals with either a senior

standing in an acceptable major, or with an Associate of Arts (A.A.)

degree in fisheries, wildlife science, or an equivalent.

E. If a sufficient number of individuals meeting the above

qualifications is not available, the observer contractor may seek

approval from NMFS to hire individuals with other relevant experience

or training.

F. To qualify for certification, all prospective observers must

undergo safety and cold water survival training that requires the

prospective observers to demonstrate their ability to properly put on

an immersion suit in a specified time period, enter the water, travel

approximately 50 m to a ladder, and climb out of the water.

The additional mathematics, statistics, and computer skills

requirements reflect the increased responsibilities of observers and

are similar to the observer qualifications that would have been

required under the Research Plan, had it been fully implemented. The

NMFS observer training/briefing requirements are set forth below.

A. Observers who have completed a deployment must be recertified

prior to another deployment. All observers will be required to complete

a 4-day briefing prior to their first deployment in any calendar year.

One-day briefings will be required prior to subsequent deployments

within a calendar year.

[[Page 49200]]

Certification following 1- or 4-day briefings will expire after 1 month

if deployment is delayed. Observers who have not been deployed for a

period of 18 months will be required to complete a 3-week training

course.

B. If an observer is not deployed within 1 month after completion

of training, the individual must complete a 1-day briefing. If the

observer is not deployed within 3 months after training, the individual

must complete a 4-day briefing. If the observer is not deployed within

6 months after training, the individual must retake the full training

course.

C. Observers may be required to attend an additional 4-day briefing

based upon an evaluation of data collected during their most recent

deployment.

Classification

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

The proposed changes occurring through this regulatory action are

within the scope of issues thoroughly analyzed for the implementation

of the 1997 Interim Groundfish Observer Program (61 FR 56425, November

1, 1996). Therefore, the EA/RIR/FRFA prepared for the Interim

Groundfish Observer Program and the preambles to the proposed and final

rules implementing that program (61 FR 40380, August 2, 1996; 61 FR

56425, November 1 1996) are incorporated by reference into the analysis

prepared for this action. This action is a necessary adjustment to the

rules governing the Interim Groundfish Observer Program and will

provide the same benefits as listed in the EA/RIR/FRFA for the Interim

Groundfish Observer Program, dated August 27, 1996. A copy of this

analysis is available from NMFS (see ADDRESSES). The changes caused by

this action are consistent with the intent and purpose of the Interim

Groundfish Observer Program.

NMFS prepared an IRFA as part of the RIR, which describes the

impact this proposed rule would have on small entities, if adopted.

Based on the analysis, it was determined that this proposed rule could

have a significant economic impact on a substantial number of small

entities. A copy of this analysis is available from the Council (see

ADDRESSES). Observer costs borne by vessels and processors are based on

whether an observer is aboard a vessel and on overall coverage needs.

Higher costs are borne by those vessels and shoreside processors that

require higher levels of coverage. Most of the catcher vessels

participating in the groundfish fisheries off Alaska and required to

carry observers (i.e., vessels 60 ft LOA and longer) meet the

definition of a small entity under the RFA. In 1995, about 270 catcher

vessels carried observers. These catcher vessels would not be further

economically impacted by observer coverage levels because the proposed

rule would not implement any changes in observer coverage levels.

Under the proposed rule, an observer conflict-of-interest

regulation would be relaxed, thereby potentially creating increased

employment opportunities for observers. Five observer contractors are

likely to be affected by this proposed rule. All are considered small

entities, and none are likely to experience significant economic

impacts. Given that observers are contracted employees of observer

contractors, this proposed change could increase the economic benefits

realized by observer contractors.

Although the proposed number of observer briefing days required in

a 12-month period would increase from 2 to 4 under the proposed rule,

the number of observer briefing days required for subsequent

deployments within a calendar year would decrease from 2 to 1. The net

change in number of observer briefing days is anticipated to be

minimal. The briefing day costs (lodging, per diem) are approximately

$135-200 per day and are dependent on the briefing location (Alaska or

Washington). The cost is borne by either the observer or the observer

contractor and is dependent upon the specific contractual arrangements

between these entities. The briefing day costs are typically passed on

from the observer or the observer contractor to the vessel or processor

that is required to have the observer coverage. In 1996, 384 observers

(employed by five observer contractors) were briefed for the North

Pacific groundfish fisheries.

The RFA requires that the IRFA describe significant alternatives to

the proposed rule that accomplish the stated objectives of the

applicable statutes and that minimize any significant impact on small

entities. Consistent with the stated statutory objectives, the IRFA

must discuss significant alternatives to the proposed rule such as (1)

establishing different reporting requirements for small entities that

take into account the resources available to small entities; (2)

consolidation or simplification of reporting requirements; (3) the use

of performance rather than design standards; and (4) allowing

exemptions from coverage for small entities. Alternatives that

addressed modifying reporting requirements for small entities or the

use of performance rather than design standards for small entities were

not considered by the Council or in this analysis. Such alternatives

are not relevant to this proposed action and would not mitigate the

impacts on small entities. Allowing exemptions for small entities from

this proposed action would not be appropriate because the objective to

assure uninterrupted observer coverage requirements through 1998 could

not be achieved if small entities were exempted.

The EA/RIR/FRFA prepared for the Interim Groundfish Observer

Program (61 FR 56425, November 1, 1996) included the North Pacific

Fisheries Research Plan (Research Plan) as an alternative. However, the

Research Plan is no longer a viable alternative to the proposed interim

observer program. The political and economic concerns that led the

Council to repeal the Research Plan still exist. Furthermore, fees

collected in 1995 were refunded in early 1996 and if the Research Plan

was pursued as the preferred alternative, start-up funding would have

to be collected again. Regulations implementing the existing observer

program will expire at the end of 1997. It is not feasible to implement

a fee-based observer program by the end of this year, which would be

necessary to provide observer coverage for the 1998 groundfish

fisheries. The preferred alternative for an interim observer program is

the only option that could be implemented by 1998 so that the

groundfish fisheries could commence without interruption.

This proposed rule contains a revised collection-of-information

requirement subject to the Paperwork Reduction Act (PRA). This

collection-of-information requirement has been approved by the Office

of Management and Budget (OMB) under OMB Control Number 0648-0318. The

estimated current burden for submission of observer contract

information is 15 minutes.

Public comment is sought regarding: Whether this proposed

collection of information is necessary for the proper performance of

the functions of the agency, including rather the information has

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 through the use of automated collection techniques or other

forms of information technology.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection-of-information subject

[[Page 49201]]

to the requirements of the PRA, unless that collection- of-information

displays a currently valid OMB control number.

Since the repeal of the Research Plan and at the direction of the

Council, NMFS has been developing a long-term alternative program

structure to address the problems identified with the current observer

program structure. The Council is scheduled to take final action at its

December 1997 meeting.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: September 15, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 679 is

proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for 50 CFR part 679 continues to read as

follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.

2. In Sec. 679.7, paragraph (g)(1) is revised to read as follows:

Sec. 679.7 Prohibitions.

* * * * *

(g) * * *

(1) Forcibly assault, resist, oppose, impede, intimidate, sexually

harass, bribe, or interfere with an observer.

* * * * *

3. In Sec. 679.50, the section heading, paragraphs (c)(1)(vi) and

(vii), (h)(2)(i)(A)(4), (i)(1)(iii), introductory text of (i)(2)(xiv),

(i)(2)(xiv)(G), and (j)(7)(iv) are revised to read as follows:

Sec. 679.50 Groundfish Observer Program applicable through December

31, 1998.

* * * * *

(c) * * *

(1) * * *

(vi) A catcher/processor or catcher vessel fishing with hook-and-

line gear that is required to carry an observer under paragraph

(c)(1)(v) of this section must carry an observer during at least one

entire fishing trip using hook-and-line gear in the Eastern Regulatory

Area of the GOA during each calendar quarter in which the vessel

participates in a directed fishery for groundfish in the Eastern

Regulatory Area using hook-and-line gear.

(vii) A catcher/processor or catcher vessel equal to or greater

than 60 ft (18.3 m) LOA fishing with pot gear that participates for

more than 3 fishing days in a directed fishery for groundfish in a

calendar quarter must carry an observer during at least 30 percent of

its fishing days while using pot gear in that calendar quarter and

during at least one entire fishing trip using pot gear in a calendar

quarter for each of the groundfish fishery categories defined under

paragraph (c)(2) of this section in which the vessel participates.

* * * * *

(h) * * *

(2) * * *

(i) * * *

(A) * * *

(4) May not serve as observers on any vessel or at any shoreside

processor owned or operated by a person who previously employed the

observer, for a period of 12 consecutive months after being employed by

that person.

* * * * *

(i) * * *

(1) * * *

(iii) Term. Observer contractors will be certified through December

31, 1998. Observer contractors can be decertified or suspended by NMFS

under paragraph (j) of this section.

(2) * * *

(xiv) Providing the following information to the Observer Program

Office by electronic transmission (e-mail), fax, or other method

specified by NMFS.

* * * * *

(G) A completed and unaltered copy of each type of signed and valid

contract (including all attachments, appendices, addendums, and

exhibits incorporated into the contract) an observer contractor has

with those entities requiring observer services under paragraphs (c)

and (d) of this section and with observers. Completed and unaltered

copies of signed and valid contracts with specific entities requiring

observer services or with specific observers must be submitted to the

Observer Program Office upon request. Types of signed and valid

contracts include the contracts an observer contractor has with:

(1) Vessels required to have observer coverage as specified at

paragraphs (c)(1)(i) and (iv) of this section,

(2) Vessels required to have observer coverage as specified at

paragraphs (c)(1)(ii), (v), and (vii) of this section,

(3) Shoreside processors required to have observer coverage as

specified at paragraph (d)(1)(i) of this section,

(4) Shoreside processors required to have observer coverage as

specified at paragraph (d)(1)(ii) of this section,

(5) Observers (to include contracts for the various compensation or

salary levels of observers, the levels being based on observer

experience).

Required copies of contracts must be submitted by mail or faxed to:

NMFS Observer Program Office, 7600 Sandpoint Way Northeast, Seattle, WA

98115-0070; fax number 206-526-4066.

* * * * *

(j) * * *

(7) * * *

(iv) If the appeals officer grants review based on the written

petition, he or she may request further written explanation from

observers, observer contractors, or the decertifying officer or

suspending officer. The appeals officer will then render a written

decision to affirm, modify, or terminate the suspension or

decertification or return the matter to the suspending or decertifying

official for further findings. The appeals officer must base the

decision on the administrative records compiled under paragraphs (j)(5)

or (j)(6) of this section, as appropriate. The appeals officer will

serve the decision on observers or observer contractors and any

affiliates involved, personally or by certified mail, return receipt

requested, at the last known residence or place of business.

* * * * *

[FR Doc. 97-25011 Filed 9-18-97; 8:45 am]

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