Magnuson-Stevens Fishery Conservation and Management Act Provisions; Observer Health and Safety

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970829214-8090-02; I.D. 082097B]

RIN 0648-AJ76

Magnuson-Stevens Fishery Conservation and Management Act

Provisions; Observer Health and Safety

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS amends the regulations that pertain to fishery observers

and the vessels that carry them. This regulatory amendment implements

measures to ensure the adequacy and safety of fishing vessels that

carry observers. Owners and operators of fishing vessels that carry

observers are required to comply with guidelines, regulations, and

conditions in order to ensure that their vessels are adequate and safe

for the purposes of carrying an observer and allowing normal observer

functions.

DATES: Effective June 17, 1998.

ADDRESSES: Copies of the Regulatory Impact Review prepared for this

action may be obtained from NMFS, SF3, 1315 East-West Highway, Silver

Spring, MD 20910, Attn: William J. Bellows.

FOR FURTHER INFORMATION CONTACT: William J. Bellows, 301-713-2341.

SUPPLEMENTARY INFORMATION:

Background

The Magnuson-Stevens Fishery Conservation and Management Act

(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 Act (ESA), and

to monitor compliance with existing Federal regulations. In addition,

pursuant to the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.)

observers may be required in the South Pacific Tuna Fishery.

The Magnuson-Stevens Act directs that--

...the Secretary shall promulgate regulations, after notice and

opportunity for public comment, for fishing vessels that carry

observers. The regulations shall include guidelines for

determining--

(1) when a vessel is not required to carry an observer on board

because the facilities of such vessel for the quartering of an

observer, or for carrying out observer functions, are so inadequate

or unsafe that the health or safety of the observer or the safe

operation of the vessel would be jeopardized; and

(2) actions which vessel owners or operators may reasonably be

required to take to render such facilities adequate and safe.

A proposed rule to implement the required measures was published in

the Federal Register on September 22, 1997 (62 FR 49463), and invited

public comment through October 22, 1997. Several comments were received

late in the comment period requesting that the comment period be

extended. NMFS extended the comment period 30 days (62 FR 55774,

October 28, 1997).

Eleven letters of comment were received concerning the proposed

rule. Of these 11, eight expressed opposition to the rule or to

specific provisions in the rule, and one letter was signed by eight

individuals who represented different industry organizations. Two

letters expressed strong support for the rule, one of which was from an

observer organization with approximately 200 members. One letter

expressed neither opposition nor support but listed many problems that

observers face on the job.

Comment 1: The publication of the rule was inadequately

advertised/announced. It was not on any of the following notice

mediums: NMFS bulletin boards, NMFS press release, NMFS homepage, or

Alaska Region homepage. The commenter requested an extension of the 30-

day comment period.

[[Page 27214]]

Response: The proposed rule was published in the Federal Register

on September 22, 1997 (62 FR 49463). The comment period was extended

for 30 days and was announced by publication in the Federal Register on

October 28, 1997 (62 FR 55774). In addition to the October 28

publication of the extension of the comment period, both the proposed

rule and the extension of the comment period were posted on the NMFS

homepage and on the Alaska Region homepage during the extended comment

period.

Comment 2: The 30-day extension of the comment period is grossly

inadequate.

Response: NMFS disagrees. By extending the public comment period

by an additional 30 days, NMFS doubled the length of the original

comment period. NMFS believes that a 60-day public comment period is

adequate.

Comment 3: Observers are not qualified to make a judgement

regarding vessel safety.

Response: It is true that observers do not receive the same vessel

safety examination training that U.S. Coast Guard (USCG) personnel do.

However, NMFS observers are provided training that addresses vessel

safety. For example, in the North Pacific observer training, observers

are taught to look for obvious areas of non-compliance that may

jeopardize their safety. In addition to viewing several safety videos,

the observers are shown a set of ``safety tour'' slides in which they

are asked to look for items on a safety check list. Section

600.746(c)(3) has been added to the rule; this section encourages the

observer to check major safety items (as identified by the USCG) and to

briefly check the vessel's major spaces for especially hazardous

conditions. The intent of this rule is not to empower an observer as a

USCG enforcement official. Its purpose is to encourage an observer to

check the major safety items identified in Sec. 600.746(c)(3); if these

items are absent or unserviceable, the rule empowers the observer not

to sail with the vessel until those deficiencies are corrected. The

observer's pre-trip safety check will be made in accordance with

published USCG guidance on some of the most important items that would

be required in the event of an at-sea emergency.

Comment 4: The rule's evaluation that there will be no significant

impact on a substantial number of small entities is wrong. If an

observer refuses to board a vessel that is safe in accordance with USCG

standards, the vessel could be delayed in departing long enough to miss

an important part of a short season, resulting in significant lost

opportunity to fish. The observer's refusal could be the result of poor

judgement, lack of expertise or training, or vindictiveness.

Response: NMFS has added language to the rule in

Sec. 600.746(c)(3) that is intended to minimize, if not eliminate, the

possibility of an observer making a decision, for whatever reason,

regarding a safe vessel that would delay its beginning legal fishing at

the optimum time. The above-mentioned section was added to the

regulations in order to give the observer detailed guidance regarding

the pre-trip safety check. In addition, this document makes it clear

that the observer's safety check is to confirm that the USCG safety

decal is current and to spot-check other safety items by conducting a

brief walk through the vessel's major spaces to check for obviously

hazardous conditions. NMFS believes that the training observers now

receive is adequate to enable an observer to conduct the pre-trip

safety check as discussed in the response to comment 3.

Comment 5: There are no provisions for redress and appeal in the

event that a vessel is unnecessarily detained or impacted.

Response: There are no specific procedures for redress or appeal

in these regulations. It would be redundant to include those legal

procedures here because they are available to anyone who considers that

he or she has experienced wrongful negative impact of any regulations.

As is suggested in the response to comment 17, when a vessel operator

disputes the observer's decision and is unable to reach a resolution,

the vessel operator should call the USCG and request reexamination of

the issue in dispute.

Comment 6: If the regulations were approved in the absence of USCG

regulations, they would be inadequate.

Response: They are not being approved in the absence of USCG

regulations. The intent of this rule is to build upon the USCG and

other safety regulations. The regulations intend to insure the safety

of observers at sea without duplicating USCG regulations, which are

designed to insure the safety of all persons on board fishing vessels.

Comment 7: All vessels carrying observers are required to have a

current safety decal; consequently, there is no basis for an observer

refusing to board a vessel.

Response: If the decal is valid (current) and if no safety

equipment has been lost, damaged, or is otherwise unserviceable, there

should be no safety-related reasons for an observer to refuse boarding.

If, on the other hand, the decal is current, but safety equipment is

missing or unserviceable, the observer is authorized not to board the

vessel.

Comment 8: The style of referring to other sections of the CFR is

difficult to read and understand. Furthermore, some of the sections

cited have not been written.

Response: This rule cites other sections of the CFR rather than

duplicating those sections in order to make the regulations published

in the Federal Register as concise as possible. NMFS wants the

regulations to refer to the most recent versions of the regulations

cited. If other agencies' regulations were repeated in NMFS'

regulations, it would be nearly impossible for NMFS to keep the

regulations current. By citing the other agencies' regulations, the

reference is always to the most recently amended regulation. All cited

sections have been written and published before they are incorporated

into the CFR except for citations to the rule being enacted through

this action. The regulatory text for this rule follows after this

preamble. Some changes may have been too recent to appear in the CFR

dated October 1996, which was the last-published CFR at the time that

the proposed rule was published.

Comment 9: USCG no longer performs no-cost inspections of

processor vessels.

Response: The commenter is correct. Processing vessels examined by

private organizations comprise the only category of fishing vessels

that pays to have inspections done. These for-fee inspections are in

lieu of USCG dock-side examinations but do not preclude at-sea

examinations by USCG. The inspections of processing vessels are

required whether observer safety rules are in effect or not.

Comment 10: This rulemaking is premature; ``neither the industry

nor NMFS is ready at this time to begin discussions on such rules.

Before that discussion can begin, NMFS first needs to develop

appropriate rules regarding onboard observers in all the other

fisheries in which they have been deemed necessary.''

Response: This rule is required by the Magnuson-Stevens Act.

Comment 11: It is unrealistically generous to require that

accommodations be equivalent to those of the vessel's officers.

Observers do not warrant treatment as officers.

Response: This rule requires nothing specific regarding

accommodations for observers. It merely refers to regulations already

in place.

Comment 12: Under the regulations that would be put in place by

this rule, if all vessels were required to carry

[[Page 27215]]

observers, all vessels would have to undergo safety inspections. This

would mean the end of uninspected fishing vessels.

Response: Under the assumptions made by the commenter, it is true

that if all vessels were required to carry observers, all of them would

have to be examined. At the present time, however, not all vessels are

required to carry observers. NMFS wants fishing vessels carrying

observers to fish safely, and undergoing USCG safety examinations

promotes safety.

Comment 13: What is the authority under which regional

requirements governing observer accommodations might be developed? It

is possible that these regional requirements could have unintended

effects. For example, if the regional requirement deals with an issue

that is judged subjectively, such as the adequacy of accommodations or

food, the observer in applying that subjective judgement could keep a

safe vessel from fishing.

Response: The authorities under which regional requirements are

developed are the Magnuson-Stevens Act, the Marine Mammal Protection

Act, and the ESA. The addition of Sec. 600.746(c)(3) to the rule should

eliminate the problem of subjective judgement in conducting the

vessel's pre-trip safety check. It is not the intent of this rule to

develop regional requirements.

Comment 14: If a vessel has a valid USCG safety decal, there

should be no question concerning the vessel's safety. To then have an

observer, who has the authority to refuse to board the vessel because

of a safety deficiency, is double jeopardy.

Response: If a vessel has passed a USCG dock-side safety

examination, the regulations indicate that such vessel would be

considered safe with respect to the USCG regulations. However, it is

possible that some requirements with which the vessel was in compliance

at the time of the USCG safety examination may not be met at the time

of boarding by an observer for a specific trip. NMFS has added language

at Sec. 600.746(c)(3) that encourages the observer to examine some of

the most important items that would be required in the case of an

emergency at sea. This approach is consistent with that applied by USCG

in recognizing that changes in vessel safety may occur between the time

when a USCG safety decal is issued and the beginning of subsequent

fishing. NMFS notes that this rule gives an observer authority not to

board an unsafe or inadequate vessel. If such a vessel is operating in

a fishery with mandatory observer coverage, the result of the

observer's refusing to board might be that the vessel would not be

authorized to conduct fishing.

Comment 15: This rule cites other regulations already in place,

which suggests that regulations to effect safety are already in place.

That being the case, this rule will not change anything.

Response: This rule applies safety standards to all fisheries,

including those for which no other observer regulations are in place.

In fisheries with mandatory observer programs in place now, and for

those in which mandatory programs may be established, this rule makes

it a violation to fish without an observer aboard. This rule also

requires vessels to submit to an otherwise voluntary inspection program

to provide evidence of compliance with safety standards.

Comment 16: This rule is an attempt to exceed the authority

conveyed by the Magnuson-Stevens Act in that it goes beyond USCG

regulations by authorizing an observer to refuse to board an unsafe

vessel, thereby keeping the vessel from fishing legally. It goes beyond

what is necessary to provide a safe environment for an observer, and it

gives an observer authority that Congress gave to USCG.

Response: NMFS believes that the rule does not go beyond what is

required to provide a safe environment for observers and for other

persons aboard fishing vessels. The intent of the rule is not to

empower an observer with USCG enforcement official status; its intent

is to provide a safe vessel for an assigned observer. The NMFS rule

does not encroach on USCG authority to terminate a voyage. Rather, it

conditions a vessel's ability to fish safely by requiring compliance

with existing regulations enforced by the USCG. The authority to

regulate fishing activities properly rests with NMFS.

Comment 17: If NMFS wants to require more than vessel-provided

personal flotation devices (PFDs) and safety briefings, it should

specifically identify the requirements that relate to observer safety

rather than to such other safety concerns as the environment. NMFS

should also consider which safety requirements warrant giving observers

``the extraordinary authority to prevent a vessel from undertaking a

fishing trip.''

Response: NMFS is not giving greater significance to some USCG

regulations than to others. NMFS is encouraging observers to check for

compliance with existing regulations. A safety decal is considered to

be evidence of compliance, but if there is other obvious non-

compliance, the observer has the option of not boarding the vessel. If

the vessel operator disputes the observer's decision, which should be

based upon published USCG guidance on some of the most important items

that would be required in the event of an at-sea emergency, and no

resolution is reached, the vessel operator should call the USCG to

request reexamination of the issue in dispute. The addition of

Sec. 600.746(c)(3) clarifies which items the observer should check at

the time of boarding. The observer's pre-trip safety check will be made

in accordance with published Coast Guard Guidance on some of the most

important items that would be required in the event of an at-sea

emergency. NMFS recognizes that, in some circumstances, an observer may

raise a safety question that requires a vessel to wait for a USCG

boarding before fishing. It is true that this could result in a loss of

fishing days. In structuring the rule this way, NMFS had to weigh the

impacts of this approach versus the impacts of alternative approaches.

Just as there is a potential for a vindictive observer declining to

board and thereby delaying a vessel's departure, other approaches would

have raised the possibility of an observer being coerced into boarding

a vessel that he or she believes is unsafe. Given the safety risks at

issue and the probability that most safety violations will be easily

remedied, e.g., replacing PFDs, NMFS determined that placing the

presumptions in the selected manner was preferable.

Whenever possible, vessel owners/operators are encouraged to

arrange for the observer to make the pre-trip safety check in advance

of the beginning of the planned fishing trip. In that way, there would

be time to correct problems without delaying the trip's departure time.

Comment 18: There are alternatives that would accomplish NMFS'

objectives that were not considered by NMFS. One alternative is to

provide an automatic waiver for those situations in which an observer

refused to board a vessel for safety reasons. The waiver would be valid

until the vessel had undergone a USCG inspection either at sea or in

port. Alternative two would be to require that the safety determination

be made by a NMFS enforcement agent who had completed the USCG training

program for vessel safety inspections. Alternative three would be to

determine which classes of vessels have consistently failed to provide

safe working conditions for observers. Only those classes of vessels

would be required to comply with the rule. Vessels with proven safety

records would be exempt from the provisions of this rule.

[[Page 27216]]

Response: Alternative one would void the intent of the rule. It

would not make the vessel safe for the observer on the fishing trip

that the observer was assigned to observe. Furthermore, it could

provide an opportunity for vessel operators to avoid taking observers

by incurring safety violations, such as no PFD for the observer. By

authorizing an observer to refuse to board an unsafe vessel and by

making it illegal to fish without an observer in a mandatory observer

fishery, there is a strong incentive for the vessel to meet all USCG

safety regulations. Alternative two was considered and rejected. It is

equally possible that a NMFS enforcement agent, like an observer, would

discover a safety violation that would delay a vessel's fishing trip.

This option would also create the risk of an observer having to board a

vessel that he or she believes is unsafe. In addition, from a practical

standpoint, the current work load for NMFS enforcement agents makes it

impossible for them to undertake this responsibility and continue to

perform other enforcement functions/duties. Alternative three is not

feasible because vessel safety is an individual vessel issue not one

that can be addressed by classes of vessels.

Comment 19: The rule does not analyze measures taken by regions.

Response: It is not the intent of this rule to analyze measures

taken by regions. That analysis is done at the time those measures are

developed and proposed in the rulemaking process.

Comment 20: One commenter believes that, should an observer refuse

to board a vessel because of safety deficiencies, there could be legal

implications beyond the simple issue of the USCG safety requirement and

the vessel's fishing. ``After an observer has determined a vessel to be

unsafe, a crew member injures themself [sic] in the factory.

Considering the Jones Act, the lawyers would have a field day.''

Response: NMFS believes this comment refers to the possible use of

an observer's safety determinations as evidence in a law suit. As

stated in the responses to comments 3 and 16, this rule is not intended

to give observers the authority to make actual determinations as to a

vessel's compliance with USCG regulations. Rather, it simply requires

that a vessel, if its safety has been called into question, rectify the

shortcoming or submit to a new USCG safety examination or inspection.

If anything, this rule is likely to reduce the number of negligence

claims because vessels with questionable safety issues will correct

them or be reexamined by USCG before fishing.

Comment 21: The USCG should be consulted.

Response: The USCG was involved at every stage of development of

this rule.

Comment 22: One commenter raised specific issues about an observer

who was terminated and who subsequently filed suit.

Response: Because the case is before the court, it would be

inappropriate for NMFS to respond at this time.

Changes From the Proposed Rule

Four changes were made from the proposed rule. One was made in

response to comments: A provision was added at Sec. 600.746(c)(3) to

provide guidance on the scope of the observer's pre-trip safety check.

Another change was made to clarify that USCG performs either an

inspection or an examination: The words ``examination or inspection''

replaced ``inspection'' in Secs. 600.725(p), 600.746(c)(1), and

600.746(d)(1) so that it is clear that either an examination or an

inspection can be performed.

The word ``Examination'' was inserted in Sec. 600.746(c)(1) in

order to more clearly identify the Commercial Fishing Vessel Safety

Examination decal.

The word ``examine'' replaced ``inspect'' in Sec. 600.746(c)(2) in

order to avoid confusion with USCG inspection.

The observer's pre-trip safety check of a vessel that displays a

current Commercial Fishing Vessel Safety Examination decal will

normally consist of no more than a spot check of the equipment

identified in Sec. 600.746(c)(3), i.e., PFDs/immersion suits; ring

buoys; distress signals; fire extinguishing equipment; emergency

position indicating radio beacon, when required; survival craft, when

required; and a walk through major spaces. This walk-through is not

intended to broaden the scope of the safety check. The safety check

should be done expeditiously because the decal indicates that the

vessel has already undergone an extensive dockside inspection.

Classification

At the proposed rule stage, NMFS certified to the Assistant General

Counsel for Legislation and Regulation, Department of Commerce and to

the Chief Counsel for Advocacy, Small Business Administration that this

action would not result in a significant economic impact on a

substantial number of small entities. Comments received on the proposed

rule suggested that small entities might experience a significant

economic impact as a result of the rule. Based on this new information,

NMFS decided to prepare a Final Regulatory Flexibility Analysis (FRFA).

The FRFA concludes that the rule's authorization for an observer to

refuse to board a vessel that the observer believes to be unsafe and

the rule's requirement that a vessel required to carry an observer

cannot legally fish without the observer make it possible that

implementation of this rule could delay a vessel's departure for a

fishing trip. Because of variations in the structures of different

fisheries' mandatory observer programs and in the structures of the

different fishery management regimes, the fact that an observer refused

to board would not necessarily mean that the vessel would lose fishing

time as might be the case in those fisheries where vessels are allowed

a limited number of days fishing per year. It is not possible to

estimate accurately how many, if any, vessels would lose days at sea as

a result of this rule. Therefore, there is at least a theoretical

possibility that 20 percent of the affected small entities could

experience a significant economic impact.

In addition to the preferred alternative, which is the alternative

that is implemented by this rule, NMFS considered several other

alternatives. One of them would have been to take no action. Under this

approach, vessels that carry observers would be required to comply with

the same safety standards that would be applicable under the preferred

alternative, but there would be no guidance to interested parties as to

how to conduct a pre-trip safety check nor would there be any means by

which an observer could quickly ascertain whether the vessel was in

compliance with applicable USCG regulations. If the agency were to

adopt the no-action alternative, the Congressional mandate in the

Magnuson-Stevens Act would not be effected. In addition, there would be

continued risk of unsafe conditions on board vessels to which observers

were assigned.

Another alternative would have prescribed new national standards

for a wide range of safety and accommodations issues. Basic standards

for determining a vessel's safety and adequacy would be based on USCG

safety requirements and NMFS regional observer requirements as is the

case in the first alternative. In addition to those basic USCG

standards, this alternative would result in new regulations addressing

a wide range of accommodation issues, such as quality of food, which,

if not met, would authorize an observer not to board a fishing vessel.

The observer would be authorized to make the pre-trip safety check to

determine whether or not he/

[[Page 27217]]

she would board the vessel. In mandatory observer programs, a fishing

vessel would not be permitted to fish legally without an observer. This

alternative is not the preferred alternative because of the degree to

which an observer would be authorized to make subjective, qualitative

determinations. Furthermore, because of the variability of working

conditions on fishing vessels, some vessels could not reasonably or

economically meet the expectations of all observers. Therefore, the

risk of this alternative resulting in delays of fishing trips is

greater than that of the preferred alternative.

The last alternative that NMFS considered would have prescribed

basic standards for determining safety and adequacy as described in the

preferred alternative, but either the National Marine Fisheries Service

or an authorized observer contractor would have been authorized to make

the pre-trip safety check to determine whether or not the observer

would board the vessel. In mandatory observer programs, a fishing

vessel would not be permitted to fish legally without an observer. This

alternative would have used the same evaluation criteria (USCG dockside

safety examination, pre-trip safety check, presence of a current

Commercial Fishing Vessel Safety Decal, etc.) as the preferred

alternative but would give NMFS and/or an authorized observer

contractor the authority to decide whether a vessel is safe and

adequate. The rationale for this approach is that it would avoid

putting the observer into a situation where vessel owner, operator, and

crew might exert pressure to coerce the observer to declare the vessel

safe despite conditions that the observer believed to be unsafe. It

would also avoid the potential for a ``vindictive'' observer to abuse

discretion in making safety checks. The benefit of having NMFS or an

authorized observer contractor make the safety and adequacy decision is

that it would avoid putting the additional pressure on an observer of

potentially having to tell a captain and crew with whom he/she would be

spending time at sea that a fishing trip would be delayed. However,

this alternative would also have the potential to delay a fishing

voyage pending safety resolution. It is just as possible that a NMFS

employee or observer contractor would discover safety issues in need of

attention as an observer would. In addition, under this alternative, an

observer who believes a vessel to be unsafe may be instructed to board

because NMFS or the observer contractor believes the vessel to be safe.

There would also be costs to NMFS and/or the observer contractor in the

form of having a representative on site each time an observer boarded a

vessel. NMFS and/or the observer contractor would also experience the

cost of training employees to make the pre-trip safety check. This

alternative is not preferred because it would put a third party in a

position of judging a vessel's safety and perhaps of forcing an

observer aboard an unsafe vessel.

In addition to these alternatives, one commenter suggested two

additional alternatives: The first would have provided an automatic

waiver for those situations in which an observer refused to board a

vessel for safety reasons. The waiver would be valid until the vessel

had undergone a USCG inspection either at sea or in port. This

alternative would have voided the intent of the rule. It would not make

the vessel safe for the observer on the fishing trip that the observer

was assigned to observe. Furthermore, it could provide an opportunity

for vessel operators to avoid taking observers by incurring safety

violations, such as no PFD for the observer. The other suggested

alternative would be to determine which classes of vessels have

consistently failed to provide safe working conditions for observers.

Only those classes of vessels would be required to comply with the

rule. Vessels with proven safety records would be exempt from the

provisions of this rule. This approach is not feasible because vessel

safety is an individual vessel issue not one that can be addressed by

classes of vessels.

NMFS tried to mitigate the potential impact of the rule by using

objective standards for the observer's pre-trip safety check in the

form of the published USCG guidance about the most important items that

would be required in the event of an at-sea emergency. This particular

alternative was chosen because it seemed to be an appropriate balance

between the objectives of increasing observer safety and minimizing the

risk of negative economic impact on vessels.

This action has been determined to be not significant for purposes

of E.O. 12866.

List of Subjects in 50 CFR Part 600

Administrative practice and procedure, Confidential business

information, Fisheries, Fishing, Fishing vessels, Foreign relations,

Intergovernmental relations, Penalties, Reporting and recordkeeping

requirements, Statistics.

Dated: May 12, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set forth in the preamble, 50 CFR part 600 is

amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

1. The authority citation for 50 CFR part 600 continues to read as

follows:

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

2. Section 600.725 is amended by redesignating paragraph (p) as

paragraph (t), adding paragraphs (p), (q), (r), (s), and (u), and

revising newly redesignated paragraph (t) to read as follows:

Sec. 600.725 General prohibitions.

* * * * *

(p) Fail to submit to a USCG safety examination when required by

NMFS pursuant to Sec. 600.746.

(q) Fail to display a Commercial Fishing Vessel Safety Examination

decal or a valid certificate of compliance or inspection pursuant to

Sec. 600.746.

(r) Fail to provide to an observer, a NMFS employee, or a

designated observer provider information that has been requested

pursuant to Sec. 600.746, or fail to allow an observer, a NMFS

employee, or a designated observer provider to inspect any item

described at Sec. 600.746.

(s) Fish without an observer when the vessel is required to carry

an observer.

(t) Assault, oppose, impede, intimidate, or interfere with a NMFS-

approved observer aboard a vessel.

(u) Prohibit or bar by command, impediment, threat, coercion, or

refusal of reasonable assistance, an observer from conducting his or

her duties aboard a vessel.

3. In subpart H, Sec. 600.746 is added to read as follows:

Sec. 600.746 Observers.

(a) Applicability. This section applies to any fishing vessel

required to carry an observer as part of a mandatory observer program

or carrying an observer as part of a voluntary observer program under

the Magnuson-Stevens Act, MMPA (16 U.S.C. 1361 et seq.), the ATCA (16

U.S.C. 971 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973

et seq.), or any other U.S. law.

(b) Observer requirement. An observer is not required to board, or

stay aboard, a vessel that is unsafe or inadequate as described in

paragraph (c) of this section.

(c) Inadequate or unsafe vessels. (1) A vessel is inadequate or

unsafe for

[[Page 27218]]

purposes of carrying an observer and allowing operation of normal

observer functions if it does not comply with the applicable

regulations regarding observer accommodations (see 50 CFR parts 229,

285, 300, 600, 622, 648, 660, 678, and 679) or if it has not passed a

USCG safety examination or inspection. A vessel that has passed a USCG

safety examination or inspection must display one of the following:

(i) A current Commercial Fishing Vessel Safety Examination decal,

issued within the last 2 years, that certifies compliance with

regulations found in 33 CFR, chapter I and 46 CFR, chapter I;

(ii) A certificate of compliance issued pursuant to 46 CFR 28.710;

or

(iii) A valid certificate of inspection pursuant to 46 U.S.C. 3311.

(2) Upon request by an observer, a NMFS employee, or a designated

observer provider, a vessel owner/operator must provide correct

information concerning any item relating to any safety or accommodation

requirement prescribed by law or regulation. A vessel owner or operator

must also allow an observer, a NMFS employee, or a designated observer

provider to visually examine any such item.

(3) Pre-trip safety check. Prior to each observed trip, the

observer is encouraged to briefly walk through the vessel's major

spaces to ensure that no obviously hazardous conditions exist. In

addition, the observer is encouraged to spot check the following major

items for compliance with applicable USCG regulations:

(i) Personal flotation devices/immersion suits;

(ii) Ring buoys;

(iii) Distress signals;

(iv) Fire extinguishing equipment;

(v) Emergency position indicating radio beacon (EPIRB), when

required; and

(vi) Survival craft, when required.

(d) Corrective measures. If a vessel is inadequate or unsafe for

purposes of carrying an observer and allowing operation of normal

observer functions, NMFS may require the vessel owner or operator

either to:

(1) Submit to and pass a USCG safety examination or inspection; or

(2) Correct the deficiency that is rendering the vessel inadequate

or unsafe (e.g., if the vessel is missing one personal flotation

device, the owner or operator could be required to obtain an additional

one), before the vessel is boarded by the observer.

(e) Timing. The requirements of this section apply both at 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.

(f) Effect of inadequate or unsafe status. A vessel that would

otherwise be required to carry an observer, but is inadequate or unsafe

for purposes of carrying an observer and for allowing operation of

normal observer functions, is prohibited from fishing without observer

coverage.

[FR Doc. 98-13131 Filed 5-15-98; 8:45 am]

BILLING CODE 3510-22-F