Fisheries of the Exclusive Economic Zone Off Alaska; North Pacific Fisheries Research Plan; Interim Groundfish Observer Program

DEPARTMENT OF COMMERCE

50 CFR Part 679

[Docket No. 960717195-6195-01; I.D. 070196E]

RIN 0648-AI95

Fisheries of the Exclusive Economic Zone Off Alaska; North

Pacific Fisheries Research Plan; Interim Groundfish Observer Program

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 that would implement Amendment 47

to the Fishery Management Plan for Groundfish of the Gulf of Alaska,

Amendment 47 to the Fishery Management Plan for the Groundfish Fishery

of the Bering Sea and Aleutian Islands Area (Groundfish FMPs), and

Amendment 6 to the Fishery Management Plan for the Commercial King and

Tanner Crab Fisheries in the Bering Sea and Aleutian Islands Area (Crab

FMP). This action also would repeal regulations implementing the North

Pacific Fisheries Research Plan (Research Plan). This action is

necessary to respond to the North Pacific Fishery Management Council's

(Council) recommendation to repeal the Research Plan and implement

Amendments 47 and 47 to the Groundfish FMPs to establish mandatory

groundfish observer coverage requirements through 1997. Amendment 6 to

the Crab FMP would remove reference to the Research Plan. This action

is intended to establish an Interim Groundfish Observer Program until a

long-term program that addresses concerns about observer data

integrity, equitable distribution of observer coverage costs,

and observer compensation and working conditions is recommended by the

Council and implemented by NMFS.

DATES: Comments must be received by September 16, 1996.

ence to the Research Plan. This action

is intended to establish an Interim Groundfish Observer Program until a

long-term program that addresses concerns about observer data

integrity, equitable distribution of observer coverage costs,

and observer compensation and working conditions is recommended by the

Council and implemented by NMFS.

DATES: Comments must be received by September 16, 1996.

ADDRESSES: Comments should be sent to Ronald J. Berg, 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

W. 9th Street, Juneau, AK.

Copies of the Environmental Assessment/Regulatory Impact Review/

Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for the

proposed Interim Groundfish Observer Program may be obtained from the

North Pacific Fishery Management Council, Suite 306, 605 West 4th

Avenue, Anchorage, AK 99501-2252; telephone: 907-271-2809. Send

comments regarding burden estimates or any other aspect of the data

requirements, including suggestions for reducing the burdens, to NMFS

and to the Office of Information and Regulatory Affairs, Office of

Management and Budget (OMB), Washington, D.C. 20503, Attn: NOAA Desk

Officer.

Copies of the Observer Plan and information regarding observer

qualifications, observer training/briefing requirements, and NMFS'

selection criteria for observer contractors are available from the

Observer Program Office, Alaska Fisheries Science Center, Building 4,

7600 Sand Point Way Northeast, Seattle, WA 98115, telephone: 206-526-

4197.

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

SUPPLEMENTARY INFORMATION:

Background

ding observer

qualifications, observer training/briefing requirements, and NMFS'

selection criteria for observer contractors are available from the

Observer Program Office, Alaska Fisheries Science Center, Building 4,

7600 Sand Point Way Northeast, Seattle, WA 98115, telephone: 206-526-

4197.

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 management area (BSAI) in the exclusive

economic zone are managed by NMFS under the Groundfish FMPs. The FMPs

were prepared by the Council under the Magnuson Fishery Conservation

and Management Act (16 U.S.C. 1801, et seq.; Magnuson 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 are codified at

50 CFR part 620. Regulations that implement the Research Plan appear at

50 CFR part 679. The Crab FMP delegates management of the crab

resources in the BSAI to the State of Alaska (State) with Federal

oversight. Regulations necessary to carry out the Crab FMP appear at 50

CFR part 679.

A data collection program to obtain information necessary for

conservation and management of the groundfish fisheries was authorized

by regulations implementing Amendments 18 and 13 to the Groundfish FMPs

(54 FR 50386, December 6, 1989). One of the measures in Amendments 18

and 13 authorized a comprehensive U.S. fishery observer program. NMFS,

in consultation with the Council, prepared and implemented an Observer

Plan to implement provisions of that program (55 FR 4839; February 12,

1990; 56 FR 30874, July 8, 1991; 59 FR 22133, April 29, 1994). The

Alaska Board of Fisheries implemented a Shellfish Onboard Observer

Program for the king and Tanner crab fisheries off Alaska in April 1988

(5 AAC 39.645)

fishery observer program. NMFS,

in consultation with the Council, prepared and implemented an Observer

Plan to implement provisions of that program (55 FR 4839; February 12,

1990; 56 FR 30874, July 8, 1991; 59 FR 22133, April 29, 1994). The

Alaska Board of Fisheries implemented a Shellfish Onboard Observer

Program for the king and Tanner crab fisheries off Alaska in April 1988

(5 AAC 39.645).

A final rule implementing the Research Plan was published in the

Federal Register (59 FR 46126, September 6, 1994), under the authority

of section 313 of the Magnuson Act, as amended by section 404 of the

High Seas Driftnet Fisheries Enforcement Act, Public Law 102-582. The

Research Plan requires that observers be stationed on certain fishing

vessels and U.S. fish processors participating in the BSAI groundfish,

GOA groundfish, and BSAI king and Tanner crab fisheries. These

requirements may be extended to the halibut fishery off Alaska.

Observers are deployed for the purpose of collecting data necessary for

the conservation, management, and scientific understanding of fisheries

under the Council's authority. The Research Plan also established a

system of fees to pay for the costs of implementing the Research Plan.

Minor additions and/or changes to the regulations implementing the

Research Plan were published in the Federal Register on January 9, 1995

(60 FR 2344); July 5, 1995 (60 FR 34904); and August 16, 1995 (60 FR

42470).

Full implementation of the Research Plan was delayed until 1997 (60

FR 66755; December 26, 1995) after the Council requested additional

time to reconsider certain elements of the Research Plan that it had

previously adopted. This action maintained 1995 observer coverage

requirements through 1996 and retained effectiveness of the following

sections of the Observer Plan: (1) Standards of observer conduct; and

ion of the Research Plan was delayed until 1997 (60

FR 66755; December 26, 1995) after the Council requested additional

time to reconsider certain elements of the Research Plan that it had

previously adopted. This action maintained 1995 observer coverage

requirements through 1996 and retained effectiveness of the following

sections of the Observer Plan: (1) Standards of observer conduct; and

(2) description, specifications, and work statement for certified

observer contractors, including conflict of interest standards for

NMFS-certified observers and contractors and conditions for contractor

and observer certification revocation.

At its December 1995 meeting, the Council requested that NMFS

repeal the Research Plan and pursue an alternative to the Research Plan

that would revert back to direct payment for observer services rather

than a fee-based program. The proposed repeal of the Research Plan is

explained further in an interim final rule published in the Federal

Register on March 28, 1996 (61 FR 13782), and in a notice of

availability published in the Federal Register on July 12, 1996 (61 FR

36702).

One alternative long-term observer program being considered by the

Council to supersede the Research Plan would require NMFS to contract

with a third party to serve as a liaison between persons requiring

observer services and companies providing those services. NMFS met with

the Council's newly named Observer Advisory Committee (OAC) in March

1996 to review the proposed Research Plan alternatives. The OAC

highlighted to the Council at its April 1996 meeting that even though

observer compensation and certain other costs were not currently

quantifiable, the third-party alternative would be more expensive than

the observer program prior to the Research Plan

et with

the Council's newly named Observer Advisory Committee (OAC) in March

1996 to review the proposed Research Plan alternatives. The OAC

highlighted to the Council at its April 1996 meeting that even though

observer compensation and certain other costs were not currently

quantifiable, the third-party alternative would be more expensive than

the observer program prior to the Research Plan. At its April 1996

meeting, the Council reviewed a draft analysis of alternatives to the

Research Plan and determined that additional cost comparisons of these

alternatives must be completed before it adopts an alternative to the

Research Plan. The Council is scheduled to receive more information on

a long-term replacement to the Research Plan at its September 1996

meeting.

Existing observer coverage requirements under Amendment 1 to the

Research Plan are scheduled to expire on December 31, 1996. At its

April 1996 meeting, the Council adopted an Interim Groundfish Observer

Program that would supersede the Research Plan and authorize mandatory

groundfish observer coverage requirements through 1997. The Interim

Groundfish Observer Program would extend 1996 groundfish observer

coverage requirements as well as vessel and processor responsibilities

relating to the observer program. Proposed changes to the groundfish

observer program are described below. The Interim Groundfish Observer

Program would remain effective through December 31, 1997, unless

superseded by a long-term program that addresses concerns about

observer data integrity, equitable distribution of observer coverage

costs, observer compensation and working conditions, and other concerns

raised by the Council's OAC. Under this action, observer coverage

requirements for the BSAI king and Tanner crab fisheries would no

longer be specified in Federal regulations. Observer coverage

requirements for the crab fisheries

would revert back to a category 3 measure in the Crab FMP and would be

specified by the Alaska Board of Fisheries.

sation and working conditions, and other concerns

raised by the Council's OAC. Under this action, observer coverage

requirements for the BSAI king and Tanner crab fisheries would no

longer be specified in Federal regulations. Observer coverage

requirements for the crab fisheries

would revert back to a category 3 measure in the Crab FMP and would be

specified by the Alaska Board of Fisheries.

Elements of the Proposed Interim Groundfish Observer Program

1. Observer coverage requirements would apply to vessels issued a

Federal fisheries permit and processors issued a Federal processor

permit. Fishing operations by these vessels and processors in Federal

and state waters would be subject to Federal observer coverage

requirements. This applicability of the Observer Program would be

unchanged from the applicability of the domestic observer program

implemented prior to the Research Plan.

2. Current observer coverage requirements for groundfish vessels

and shoreside processors receiving groundfish would remain unchanged

and are set out in this proposed rule at Sec. 679.50 (c) and (d).

Participants in the groundfish fisheries would continue to be

responsible for making their own arrangements with certified observer

contractors and paying for required observer coverage.

3. The Director, Alaska Region, NMFS, (Regional Director) could

make inseason adjustments in observer coverage requirements similar to

the Research Plan. Any inseason adjustment would be based on specified

findings and implemented using the procedure for inseason adjustments

at Sec. 679.25(c). Similar to the Research Plan, any inseason

adjustment to observer coverage requirements would be published in the

Federal Register at least 10 calendar days prior to the effective date.

Regulations implementing the Regional Director's ability to make

inseason adjustments in observer coverage requirements are set out in

this proposed rule at Sec. 679.50(e).

4. Vessel and shoreside processor responsibilities would remain

unchanged

son

adjustment to observer coverage requirements would be published in the

Federal Register at least 10 calendar days prior to the effective date.

Regulations implementing the Regional Director's ability to make

inseason adjustments in observer coverage requirements are set out in

this proposed rule at Sec. 679.50(e).

4. Vessel and shoreside processor responsibilities would remain

unchanged. These regulations are set out in this proposed rule at

Sec. 679.50(f).

5. The interim program would expand regulations governing the

Observer Program to include criteria and procedures for observer and

observer contractor certification, suspension, and decertification.

Previously, these criteria and procedures were included in the Observer

Plan. Certification, suspension, and decertification criteria and

procedures now are included in this proposed rule at Sec. 679.50(h),

(i), and (j). The proposed criteria and procedures are essentially

unchanged from the provisions under the Observer Plan, except that:

a. Observer contractors certified by NMFS prior to January 1, 1997,

would receive a 1-year certification extension that expires December

31, 1997. The currently certified observer contractors would not have

time to go through a new certification process, nor would NMFS have

adequate time to carry out the administrative procedures necessary for

their recertification prior to implementation of the Observer Program

on January 1, 1997. Any certified observer contractor could be

decertified according to the decertification procedures that are set

out in this proposed rule.

b. Observers and observer contractors cannot have a direct

financial interest or a conflict of interest in any commercial fishery

in State or Federal waters off Alaska. The conflict of interest

standards in the Observer Plan were more narrowly applied to the

observed fishery.

c. Observer qualifications have been revised as follows and would

be available from the Observer Program Office (see ADDRESSES.):

A

d observer contractors cannot have a direct

financial interest or a conflict of interest in any commercial fishery

in State or Federal waters off Alaska. The conflict of interest

standards in the Observer Plan were more narrowly applied to the

observed fishery.

c. Observer qualifications have been revised as follows and would

be available from the Observer Program Office (see ADDRESSES.):

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 and must also have

successfully completed at least one undergraduate course each in math

and statistics (minimum of 5 semester hours total). 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 successfully complete

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

basic math, 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

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 would

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 math, statistics, and computer skills requirements

reflect the increased responsibilities of observers and are similar to

the observer qualifications under the Research Plan, had it been fully

implemented. The observer qualifications are presented here to provide

an opportunity for public comment.

d. Training/briefing requirements for certification have been

revised as follows and would be available from the Observer Program

Office (See ADDRESSES.):

A. Observers who have completed a deployment must be recertified

prior to another deployment. Individuals whose last deployment was

within 12 months must complete a 2-day briefing and individuals whose

last deployment was 12 to 24 months ago must complete a 4-day briefing.

If 2 years have passed since the completion of an individual's last

deployment, he or she must complete the full training course.

B. If an observer remains undeployed from 1 to 3 months after

completion of training, the individual must complete a 2-day briefing.

If the individual is not deployed from 3 to 6 months after training, a

4-day briefing must be completed. If more than 6 months have passed

since the completion of training, the individual must retake the full

training course.

C. Briefings (2- or 4-day) expire after 1 month

erver remains undeployed from 1 to 3 months after

completion of training, the individual must complete a 2-day briefing.

If the individual is not deployed from 3 to 6 months after training, a

4-day briefing must be completed. If more than 6 months have passed

since the completion of training, the individual must retake the full

training course.

C. Briefings (2- or 4-day) expire after 1 month. Individuals may be

required to complete a 4-day briefing or the full training course if

deemed necessary by the Observer Program Office.

These recertification requirements are identical to those under the

Research Plan, had it been implemented and are presented here to

provide an opportunity for public comment.

e. Selection criteria for observer contractors would be used by

NMFS to gauge the adequacy of the applicant to provide observer

services. These criteria are unchanged from the Observer Plan and would

be available from the Observer Program Office (See ADDRESSES.). They

are presented here to provide an opportunity for public comment.

Applicants for observer contractor certification would be evaluated by

NMFS using the following criteria:

A. Ability to supply required observer services:

i. Methods to be used to recruit, evaluate, and select qualified

applicants to serve as observers.

ii. Methods to be used in establishing, organizing and performing

all logistics associated with the deployment of observers.

iii. Methods to be used in scheduling observers for certification

training or briefing, observer deployments, assignments to vessels and

shoreside facilities so that observer coverage and sampling

requirements are met.

iv. Provisions for communications with observers, vessels,

shoreside facilities, and NMFS to provide and exchange required

information on scheduling, weekly logistics reports, emergencies, and

instructions for observers, vessels, and shoreside facilities.

v

ing, observer deployments, assignments to vessels and

shoreside facilities so that observer coverage and sampling

requirements are met.

iv. Provisions for communications with observers, vessels,

shoreside facilities, and NMFS to provide and exchange required

information on scheduling, weekly logistics reports, emergencies, and

instructions for observers, vessels, and shoreside facilities.

v. Methods to be used in monitoring observer performance, observer

work between vessels and upon return from sea or duty station, NMFS

debriefing upon completion of each deployment and final preparation and

submission of reports and data.

B. Expertise and capability of applicant's organization:

i. Technical competence of staff based on resumes of key personnel

that show their abilities, education, training, and experience in

relation to their proposed assignments and areas of responsibilities on

a particular project.

ii. Organizational structure including number of personnel to be

assigned, in categories of professional, technical, and clerical

positions, to each phase of the project including provisions for the

backup of each key staff member during planned and unplanned absences.

C. Expressed understanding of the purpose of the Observer Program,

the role of the observer contractor, and the important aspects of this

type of project that lead to successful performance of work.

D. Summaries of similar work recently completed, including

description of work and contact person and telephone number of client.

f. Observer contractors must provide a certificate of insurance

that verifies compliance with the insurance coverage recommendations of

the Council's Insurance Technical Committee. This coverage must include

the following provisions:

A. Maritime Liability to cover ``seamen's'' claims under the

Merchant Marine Act (Jones Act) and General Maritime Law ($1 million

minimum).

B. Coverage under the U.S. Longshore and Harbor Workers'

Compensation Act ($1 million minimum).

C

ompliance with the insurance coverage recommendations of

the Council's Insurance Technical Committee. This coverage must include

the following provisions:

A. Maritime Liability to cover ``seamen's'' claims under the

Merchant Marine Act (Jones Act) and General Maritime Law ($1 million

minimum).

B. Coverage under the U.S. Longshore and Harbor Workers'

Compensation Act ($1 million minimum).

C. States Worker's Compensation as required.

D. Contractual General Liability.

g. Observer contractors would be required to submit information to

NMFS that would be used to: Coordinate and conduct effective and

efficient scheduling of observers for training, briefing, and

debriefing sessions, maintain an observer deployment database, and

monitor the requirements of a certified observer contractor. This

information would include:

A. A list of prospective observers to be hired upon approval by

NMFS and observer training/briefing registration.

B. Projected observer assignments.

C. Observer deployment/logistics reports.

D. Observer debriefing registration.

E. Notification that prospective observers have passed a physical

examination during the 12 months prior to deployment.

F. A copy of each type of signed and valid contract an observer

contractor has with vessels and shoreside processors requiring observer

services and with observers. Copies of signed and valid contracts with

specific entities requiring observer services or with specific

observers also may be requested.

G. Reports of observer harassment, concerns about vessel or

processor safety, or observer performance problems.

Observers' social security numbers are requested with the training/

briefing registration to provide a unique numerical identifier for each

observer. This information has been requested in the past and

observers' social security numbers are included in the existing

Observer Program database. Regulations for the information collection

are set out in this proposed rule at Sec. 679.50(i)(2)(xiv).

7

ervers' social security numbers are requested with the training/

briefing registration to provide a unique numerical identifier for each

observer. This information has been requested in the past and

observers' social security numbers are included in the existing

Observer Program database. Regulations for the information collection

are set out in this proposed rule at Sec. 679.50(i)(2)(xiv).

7. Criteria for the suspension and/or decertification of observers

or observer contractors include the following appeals process whereby

documentary evidence, disputes, and petitions may be submitted:

a. Within 30 days of receipt of a suspension or decertification

notice, observers and observer contractors may provide written

documentary evidence and argument in opposition to the notice. They are

also afforded the opportunity to submit additional evidence that was

previously unavailable and in some instances, may appear in person and

present witnesses.

b. Observers and observer contractors also may petition for review

of a suspension or decertification decision within 30 days after the

date the decision was served.

These criteria are unchanged from the Observer Plan. Regulations

for this information collection are set out in this proposed rule at

Sec. 679.50(k) (6), (7), and (8).

8. Observer contractors would be restricted in how they could

assign observers to vessels or shoreside processors in the following

ways:

a. Observers must not be deployed on the same vessel for more than

90 days in a 12-month period;

b. A deployment to a vessel or a shoreside processing facility

cannot exceed 90 days without approval from the Observer Program Office

(See ADDRESSES.); and

c. A deployment cannot include assignments to more than four

vessels and/or shoreside processors. NMFS began instituting these

policies in 1990 to reduce the likelihood of conflicts of interest and

to ensure that debriefings occurred more frequently, so that NMFS could

process the observers' collected fisheries data.

9

without approval from the Observer Program Office

(See ADDRESSES.); and

c. A deployment cannot include assignments to more than four

vessels and/or shoreside processors. NMFS began instituting these

policies in 1990 to reduce the likelihood of conflicts of interest and

to ensure that debriefings occurred more frequently, so that NMFS could

process the observers' collected fisheries data.

9. A revision to regulations at Sec. 679.7(g)(2) would clarify

NMFS' intent that fish sorting of any kind prior to observer sampling

procedures is prohibited. Concerns exist that mechanical and/or

physical sorting could be occurring. For example, modifications to the

angle and speed of incline belts in processing lines and bin openings

that restrict the flow of fish act effectively to sort fish prior to

observer sampling procedures. NMFS specifically requests comments on

what, if any, impact this clarification could have on vessel or

processor operations.

10. A prohibition at Sec. 679.7(f)(14) would be removed to maintain

consistency with the proposed removal of Research Plan regulations at

part 679. Section 679.7(f)(14) prohibits permitted registered buyers

required to obtain a Federal processor permit from transferring or

receiving sablefish harvested in Federal waters or halibut, unless the

person possesses a valid Federal processor permit. The intent of this

prohibition was to reinforce the requirement that all Research Plan

processors pay their fees in a timely manner and would thus be eligible

for a Federal processor permit. This prohibition is no longer necessary

because Research Plan fee collections have been terminated.

Three elements of the proposed Interim Groundfish Observer Program

would not be codified in regulation: (1) Observer qualifications, (2)

observer training/briefing requirements, and (3) NMFS' selection

criteria for observer contractors. These elements are available upon

request

ocessor permit. This prohibition is no longer necessary

because Research Plan fee collections have been terminated.

Three elements of the proposed Interim Groundfish Observer Program

would not be codified in regulation: (1) Observer qualifications, (2)

observer training/briefing requirements, and (3) NMFS' selection

criteria for observer contractors. These elements are available upon

request. Although they would not be codified, they are viewed as a part

of the rule and are presented in the preamble specifically to provide

opportunity for public comment. Prior to proposing future changes to

these three elements, NMFS would publish a

notice in the Federal Register describing the proposed change(s) and

providing an opportunity for public comment.

Classification

Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish

regulations proposed by a Council within 15 days of receipt of an FMP

amendment and regulations. At this time, NMFS has not determined that

the FMP amendments this rule would implement are consistent with the

national standards, other provisions of the Magnuson Act, and other

applicable laws. NMFS, in making that determination, will take into

account the data, views, and comments received during the comment

period.

This proposed rule has been determined to be not significant for

purposes of E.O. 12866.

NMFS prepared an IRFA as part of the regulatory impact review,

which describes the impact this proposed rule would have on small

entities, if adopted. Based on that analysis, it was determined that

this proposed rule could, if issued in final, have a significant

economic impact on a substantial number of small entities. Observer

costs 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. For

individual vessels, the impact would increase as the percentage of

observer costs relative to total exvessel value of catch increases

omic impact on a substantial number of small entities. Observer

costs 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. For

individual vessels, the impact would increase as the percentage of

observer costs relative to total exvessel value of catch increases. In

1995, about 400 vessels carried observers; of these vessels about 280

were catcher vessels. About one half of the catcher vessels equal to or

greater than 60-ft (18.3-meters (m)) length overall (LOA) but less than

125-ft (38.1-m) LOA paid observer costs that were equal to or less than

1 percent of the exvessel value of catch. About 20 percent of vessels

incurred observer costs that ranged from 2 to almost 8 percent of the

exvessel value of catch. This represents cost increases from Research

Plan costs that were limited to 2 percent of the exvessel value of

catch. For motherships and shoreside processors, the impact also would

increase as the percentage of observer costs relative to total exvessel

value of processed catch increases. In 1995, about 26 motherships and

shoreside processors carried observers. About 35 percent of these

processors incurred observer costs that ranged from 1 to 7 percent of

the exvessel value of catch received and processed from catcher

vessels. This represents cost increases from the processor's portion of

Research Plan costs that were limited to 1 percent of the exvessel

value of catch. The Research Plan represents an alternative to this

proposed rule which could minimize the economic impact on some small

entities. But for reasons already explained elsewhere (this preamble;

61 FR 13782, March 28, 1996; and 61 FR 36702, July 12, 1996), this

proposed rule would repeal the Research Plan. Copies of the EA/RIR/IRFA

can be obtained from NMFS (see ADDRESSES)

vessel

value of catch. The Research Plan represents an alternative to this

proposed rule which could minimize the economic impact on some small

entities. But for reasons already explained elsewhere (this preamble;

61 FR 13782, March 28, 1996; and 61 FR 36702, July 12, 1996), this

proposed rule would repeal the Research Plan. Copies of the EA/RIR/IRFA

can be obtained from NMFS (see ADDRESSES).

This proposed rule contains a new collection-of-information

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

collection of information has been submitted to OMB for approval. The

new information requirement consists of certification applications for

new observer contractors, reports submitted by observer contractors to

NMFS that would be used by NMFS to facilitate Observer Program Office

operations and to monitor the ongoing requirements of a certified

observer contractor, and appeals of suspension and/or decertification

from observers and observer contractors. The annual public reporting

burden for this collection of information is estimated to be: 60 hours

per certification application (a contractor would apply every 3 years);

3 minutes per certificate of insurance; 7 minutes per training/briefing

registration; 2 minutes per notification of observer physical

examination; 2 hours per physical examination; 7 minutes per projected

observer assignment; 7 minutes per weekly deployment/logistics report;

7 minutes per debriefing registration; 15 minutes per copies of five

contracts; 2 hours per report of observer harassment, observer safety

concerns, or observer performance problems; 80 hours per suspension/

decertification appeal by an observer contractor (projected to occur

only once in 5 years); and 4 hours per suspension/decertification

appeal by an observer, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information

observer performance problems; 80 hours per suspension/

decertification appeal by an observer contractor (projected to occur

only once in 5 years); and 4 hours per suspension/decertification

appeal by an observer, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

This proposed rule contains requirements for electronic transmission of

observer data by vessels and shoreside processors receiving pollock

harvested in the catcher vessel operational area. This information

collection already was approved by OMB (OMB control number 0648-0307).

Send comments regarding burden estimates or any other aspect of the

data requirements, including suggestions for reducing the burdens, to

NMFS and OMB (see ADDRESSES).

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 to the

requirements of the PRA, unless that collection of information displays

a currently valid OMB control number.

List of Subjects in 50 CFR Part 679

Fisheries, Reporting and recordkeeping requirements.

Dated: July 29, 1996.

Charles Karnella,

Acting, Program Management Officer, 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. and 1801 et seq.

2. In Sec. 679.1, paragraph (f) is revised to read as follows:

Sec. 679.1 Purpose and scope.

* * * * *

.

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. and 1801 et seq.

2. In Sec. 679.1, paragraph (f) is revised to read as follows:

Sec. 679.1 Purpose and scope.

* * * * *

(f) Groundfish Observer Program. Regulations in this part govern

elements of the Groundfish Observer Program for the BSAI groundfish and

GOA groundfish fisheries under the Council's authority (see subpart E

of this part).

* * * * *

3. In Sec. 679.2, the following definitions are removed:

``Bimonthly'', ``Exvessel price'', ``Fee percentage'', ``Research

Plan'', ``Research Plan fisheries'', `` Retained catch'', and

``Standard exvessel price''.

a. In Sec. 679.2, the following definitions are added:

``Briefing'', ``Debriefing'', ``Deployment'', ``Direct financial

interest'', ``North Pacific fishery'', ``Observer contractor'', and

``Observer Program Office'',.

b. In Sec. 679.2, the following definitions are revised: ``Buying

station'', paragraph (3) of ``Catcher/processor'', paragraph (1) of

``Catcher vessel'', ``Fishing day'', paragraph (3) of ``Fishing trip'',

paragraph (2) or ``Mothership'', ``Observed or observed data'',

``Observer'', ``Processor'', ``Round weight or round-weight

equivalent'', and ``Shoreside processor''.

Sec. 679.2 Definitions.

* * * * *

Briefing means a short (usually 2-4 day) training session that

observers must complete to fulfill certification requirements.

Buying station means a person or vessel that receives unprocessed

groundfish from a vessel for delivery at a different location to a

shoreside processor or mothership and that does not process those fish.

* * * * *

Catcher/processor * * *

(3) With respect to subpart E of this part, a processor vessel that

is used for, or equipped to be used for, catching fish and processing

that fish.

Catcher vessel * * *

means a person or vessel that receives unprocessed

groundfish from a vessel for delivery at a different location to a

shoreside processor or mothership and that does not process those fish.

* * * * *

Catcher/processor * * *

(3) With respect to subpart E of this part, a processor vessel that

is used for, or equipped to be used for, catching fish and processing

that fish.

Catcher vessel * * *

(1) With respect to groundfish recordkeeping and reporting and

subpart E of this part, a vessel that is used for catching fish and

that does not process fish on board.

* * * * *

Debriefing means the post-deployment process that includes a one-

on-one interview with NMFS staff, a NMFS preliminary data review,

observer completion of all data corrections noted, observer preparation

of affidavits and reports, and completion of tasks related to

biological specimens or special projects.

Deployment means the period between an observer's arrival at the

point of embarkation and the date the observer disembarks for travel to

debriefing.

Direct financial interest means any source of income to, or capital

investment or other interest held by, an individual, partnership, or

corporation or an individual's spouse, immediate family member or

parent that could be influenced by performance or non-performance of

observer or observer contractor duties.

* * * * *

Fishing day means a 24-hour period, from 0001 A.l.t. through 2400

A.l.t., in which fishing gear is retrieved and groundfish are retained.

Days during which a vessel only delivers unsorted codends to a

processor are not fishing days.

* * * * *

Fishing trip * * *

(3) With respect to subpart E of this part, one of the following

time periods:

f

observer or observer contractor duties.

* * * * *

Fishing day means a 24-hour period, from 0001 A.l.t. through 2400

A.l.t., in which fishing gear is retrieved and groundfish are retained.

Days during which a vessel only delivers unsorted codends to a

processor are not fishing days.

* * * * *

Fishing trip * * *

(3) With respect to subpart E of this part, one of the following

time periods:

(i) For a vessel used to process groundfish or a catcher vessel

used to deliver groundfish to a mothership, a weekly reporting period

during which one or more fishing days occur.

(ii) For a catcher vessel used to deliver groundfish to other than

a mothership, the time period during which one or more fishing days

occur that starts on the day when fishing gear is first deployed and

ends on the day the vessel offloads groundfish, returns to an Alaskan

port, or leaves the EEZ off Alaska and adjacent waters of the State of

Alaska.

* * * * *

Mothership * * *

(2) With respect to subpart E of this part, a processor vessel that

receives and processes groundfish from other vessels and is not used

for, or equipped to be used for, catching groundfish.

* * * * *

North Pacific fishery means any commercial fishery in State or

Federal waters off Alaska.

Observed or observed data refers to data collected by observers

(see Sec. 679.21(f)(7) and subpart E of this part).

Observer means any individual that is awarded NMFS certification to

serve as an observer under this part, is employed by an observer

contractor for the purpose of providing observer services to vessels or

shoreside processors under this part, and is acting within the scope of

his/her employment.

Observer contractor means any person that is awarded NMFS

certification to provide observer services to vessels and shoreside

processors under subpart E and who contracts with observers to provide

these services

ed by an observer

contractor for the purpose of providing observer services to vessels or

shoreside processors under this part, and is acting within the scope of

his/her employment.

Observer contractor means any person that is awarded NMFS

certification to provide observer services to vessels and shoreside

processors under subpart E and who contracts with observers to provide

these services.

Observer Program Office means the administrative office of the

Groundfish Observer Program located at Alaska Fisheries Science Center,

Building 4, 7600 Sand Point Way Northeast, Seattle, WA 98115,

telephone: 206-526-4197.

* * * * *

Processor means any shoreside processor, catcher/processor,

mothership, any person who receives groundfish from fishermen for

commercial purposes, any fisherman who transfers groundfish outside of

the United States, and any fisherman who sells fish directly to a

restaurant or to an individual for use as bait or personal consumption.

* * * * *

Round weight or round-weight equivalent, for purposes of this part,

means the weight of groundfish calculated by dividing the weight of the

primary product made from that groundfish by the PRR for that primary

product as listed in Table 3 of this part, or, if not listed, the

weight of groundfish calculated by dividing the weight of a primary

product by the standard PRR as determined using the best available

evidence on a case-by-case basis.

* * * * *

Shoreside processor means any person or vessel that receives

unprocessed groundfish, except catcher/processors, motherships, buying

stations, restaurants, or persons receiving groundfish for personal

consumption or bait.

* * * * *

4. In Sec. 679.4, paragraph (g) is removed and paragraphs

(f)(1)(i), (f)(1)(ii), and (f)(2)(ii) are revised to read as follows:

Sec. 679.4 Permits.

* * * * *

(f) Federal Processor permit--(1) General--(i) Applicability. In

addition to the permit and licensing requirements in paragraphs (b) and

tations, restaurants, or persons receiving groundfish for personal

consumption or bait.

* * * * *

4. In Sec. 679.4, paragraph (g) is removed and paragraphs

(f)(1)(i), (f)(1)(ii), and (f)(2)(ii) are revised to read as follows:

Sec. 679.4 Permits.

* * * * *

(f) Federal Processor permit--(1) General--(i) Applicability. In

addition to the permit and licensing requirements in paragraphs (b) and

(d) of this section, and except as provided in paragraph (f)(1)(ii) of

this section, a processor of groundfish must have a Federal processor

permit issued by the Regional Director.

(ii) Exception. Any fisherman who transfers groundfish outside the

United States, or any fisherman who sells groundfish directly to a

restaurant or to an individual for use as bait or for personal

consumption is not required to have a Federal processor permit.

(2) * * *

(ii) The fishery or fisheries for which the permit is requested.

* * * * *

5. In Sec. 679.5, paragraph (a)(2) is revised to read as follows:

Sec. 679.5 Recordkeeping and reporting.

* * * * *

(a) * * *

(2) Applicability, Federal processor permit. Any processor that

retains groundfish is responsible for complying with the applicable

recordkeeping and reporting requirements of this section.

* * * * *

6. In Sec. 679.7, paragraph (b)(1) is removed, paragraphs (b)(2)

through (b)(4) are redesignated as paragraphs (b)(1) through (b)(3),

respectively, paragraph (f)(14) is removed, paragraph (f)(15) is

redesignated as paragraph (f)(14), paragraphs (g)(5) through (g)(7) are

removed, paragraphs (g)(3) and (g)(4) are redesignated as paragraphs

(g)(4) and (g)(5), respectively, a new paragraph (g)(3) is added,

paragraphs (g)(8) and (g)(9) are redesignated as paragraphs (g)(6) and

(g)(7), respectively, and paragraphs (a)(3), (g)(2), and newly

redesignated paragraph (g)(7) are revised to read as follows:

Sec. 679.7 Prohibitions.

* * * * *

s (g)(5) through (g)(7) are

removed, paragraphs (g)(3) and (g)(4) are redesignated as paragraphs

(g)(4) and (g)(5), respectively, a new paragraph (g)(3) is added,

paragraphs (g)(8) and (g)(9) are redesignated as paragraphs (g)(6) and

(g)(7), respectively, and paragraphs (a)(3), (g)(2), and newly

redesignated paragraph (g)(7) are revised to read as follows:

Sec. 679.7 Prohibitions.

* * * * *

(a) * * *

(3) Groundfish Observer Program. Fish for groundfish except in

compliance with the terms of the Groundfish Observer Program as

provided by subpart E of this part.

* * * * *

(g) * * *

(2) Interfere with or bias the sampling procedure employed by an

observer, including physical, mechanical, or other sorting or

discarding of catch before sampling.

(3) Tamper with, destroy, or discard an observer's collected

samples, equipment, records, photographic film, papers, or personal

effects without the express consent of the observer. * * *

(7) Require, pressure, coerce, or threaten an observer to perform

duties normally performed by crew members, including, but not limited

to, cooking, washing dishes, standing watch, vessel maintenance,

assisting with the setting or retrieval of gear, or any duties

associated with the processing of fish, from sorting the catch to the

storage of the finished product.

* * * * *

7. In Sec. 679.21, paragraph (c)(3) is revised to read as follows:

Sec. 679.21 Prohibited species bycatch management.

* * * * *

(c) * * *

(3) Exemption. Motherships and shoreside processors that are not

required to obtain observer coverage during a month under Sec. 679.50

(c) and (d) are not required to retain salmon.

* * * * *

8. Subpart E is revised to read as follows:

Subpart E--Groundfish Observer Program

Sec.

679.50 Groundfish Observer Program

Subpart E--Groundfish Observer Program

Sec. 679.50 Groundfish Observer Program applicable through December

31, 1997.

e processors that are not

required to obtain observer coverage during a month under Sec. 679.50

(c) and (d) are not required to retain salmon.

* * * * *

8. Subpart E is revised to read as follows:

Subpart E--Groundfish Observer Program

Sec.

679.50 Groundfish Observer Program

Subpart E--Groundfish Observer Program

Sec. 679.50 Groundfish Observer Program applicable through December

31, 1997.

(a) General. Operators of vessels possessing a Federal fisheries

permit under Sec. 679.4(b)(1) and processors that possess a Federal

processor permit under Sec. 679.4(f)(1), must comply with this section.

The owner of a fishing vessel subject to this part or a processor

subject to this part must ensure that the operator or manager complies

with this section and is jointly and severally liable for such

compliance.

(b) Purpose. The purpose of the Groundfish Observer Program is to

allow observers to collect Alaska fisheries data deemed by the Regional

Director to be necessary and appropriate for management, compliance

monitoring, and research of groundfish fisheries and for the

conservation of marine resources or their environment.

(c) Observer requirements for vessels. (1) Observer coverage is

required as follows:

(i) A mothership of any length that processes 1,000 mt or more in

round weight or round-weight equivalent of groundfish during a calendar

month is required to have an observer aboard the vessel each day it

receives or processes groundfish during that month.

(ii) A mothership of any length that processes from 500 mt to 1,000

mt in round weight or round-weight equivalent of groundfish during a

calendar month is required to have an observer aboard the vessel at

least 30 percent of the days it receives or processes groundfish during

that month.

red to have an observer aboard the vessel each day it

receives or processes groundfish during that month.

(ii) A mothership of any length that processes from 500 mt to 1,000

mt in round weight or round-weight equivalent of groundfish during a

calendar month is required to have an observer aboard the vessel at

least 30 percent of the days it receives or processes groundfish during

that month.

(iii) Each mothership that receives pollock harvested by catcher

vessels in the catcher vessel operational area during the second

pollock season that starts on August 15 under Sec. 679.23(e)(2) is

required to have a second observer aboard, in addition to the observer

required under paragraphs (c)(1) (i) and (ii) of this section, for each

day of the second pollock season until the chum salmon savings area is

closed under Sec. 679.21(e)(7)(vi), or October 15, whichever occurs

first.

(iv) A catcher/processor or catcher vessel 125 ft (38.1 m) LOA or

longer must carry an observer during 100 percent of its fishing days

except for a vessel fishing for groundfish with pot gear as provided in

paragraph (c)(1)(vii) of this section.

(v) A catcher/processor or catcher vessel equal to or greater than

60 ft (18.3 m) LOA, but less than 125 ft (38.1 m) LOA, 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 in that calendar quarter and at all

times during at least one fishing trip in that calendar quarter for

each of the groundfish fishery categories defined under paragraph

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

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

line gear that is required to carry an observer under paragraph

least

30 percent of its fishing days in that calendar quarter and at all

times during at least one fishing trip in that calendar quarter for

each of the groundfish fishery categories defined under paragraph

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

(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 at all times during at

least one fishing trip in the Eastern Regulatory Area of the Gulf of

Alaska during each calendar quarter in which the vessel participates in

a directed fishery for groundfish in the Eastern Regulatory Area.

(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 in that calendar quarter and at all times during at

least one fishing trip in a calendar quarter for each of the groundfish

fishery categories defined under paragraph (c)(2) of this section in

which the vessel participates.

(2) Groundfish fishery categories requiring separate coverage--(i)

Pollock fishery. Directed fishing for groundfish that results in a

retained catch of pollock, during any fishing trip, that is greater

than the retained catch of any other groundfish species or species

group that is specified as a separate groundfish fishery under this

paragraph (c)(2).

(ii) Pacific cod fishery. Directed fishing for groundfish that

results in a retained catch of Pacific cod, during any fishing trip,

that is greater than the retained catch of any other groundfish species

or species group that is specified as a separate groundfish fishery

under this paragraph (c)(2).

pecies

group that is specified as a separate groundfish fishery under this

paragraph (c)(2).

(ii) Pacific cod fishery. Directed fishing for groundfish that

results in a retained catch of Pacific cod, during any fishing trip,

that is greater than the retained catch of any other groundfish species

or species group that is specified as a separate groundfish fishery

under this paragraph (c)(2).

(iii) Sablefish fishery. Directed fishing for groundfish that

results in a retained catch of sablefish, during any fishing trip, that

is greater than the retained catch of any other groundfish species or

species group that is specified as a separate groundfish fishery under

this paragraph (c)(2).

(iv) Rockfish fishery. Directed fishing for groundfish that results

in a retained aggregate catch of rockfish of the genera Sebastes and

Sebastolobus, during any fishing trip, that is greater than the

retained catch of any other groundfish species or species group that is

specified as a separate groundfish fishery under this paragraph (c)(2).

(v) Flatfish fishery. Directed fishing for groundfish that results

in a retained aggregate catch of all flatfish species, except Pacific

halibut, during any fishing trip, that is greater than the retained

catch of any other groundfish species or species group that is

specified as a separate groundfish fishery under this paragraph (c)(2).

(vi) Other species fishery. Directed fishing for groundfish that

results in a retained catch of groundfish, during any fishing trip,

that does not qualify as a pollock, Pacific cod, sablefish, rockfish,

or flatfish fishery as defined under paragraphs (c)(2) (i) through (v)

of this section.

pecies or species group that is

specified as a separate groundfish fishery under this paragraph (c)(2).

(vi) Other species fishery. Directed fishing for groundfish that

results in a retained catch of groundfish, during any fishing trip,

that does not qualify as a pollock, Pacific cod, sablefish, rockfish,

or flatfish fishery as defined under paragraphs (c)(2) (i) through (v)

of this section.

(3) Assignment of vessels to fisheries. At the end of any fishing

trip, a vessel's retained catch of groundfish species or species groups

for which a TAC has been specified under Sec. 679.20, in round weight

or round-weight equivalent, will determine to which fishery category

listed under paragraph (c)(2) of this section the vessel is assigned.

(i) Catcher/processors. A catcher/processor will be assigned to a

fishery category based on the retained groundfish catch composition

reported

on the vessel's weekly production report submitted to the Regional

Director under Sec. 679.5(i).

(ii) Catcher vessel delivery in Federal waters. A catcher vessel

that delivers to a mothership in Federal waters will be assigned to a

fishery category based on the retained groundfish catch composition

reported on the weekly production report submitted to the Regional

Director for that week by the mothership under Sec. 679.5(i).

(iii) Catcher vessel delivery in Alaska State waters. A catcher

vessel that delivers groundfish to a shoreside processor or to a

mothership processor vessel in Alaska State waters will be assigned to

a fishery category based on the retained groundfish catch composition

reported on one or more ADF&G fish tickets as required under Alaska

Statutes at A.S. 16.05.690.

hership under Sec. 679.5(i).

(iii) Catcher vessel delivery in Alaska State waters. A catcher

vessel that delivers groundfish to a shoreside processor or to a

mothership processor vessel in Alaska State waters will be assigned to

a fishery category based on the retained groundfish catch composition

reported on one or more ADF&G fish tickets as required under Alaska

Statutes at A.S. 16.05.690.

(d) Observer requirements for shoreside processors. Observer

coverage is required as follows:

(1) A shoreside processor that processes 1,000 mt or more in round

weight or round-weight equivalent of groundfish during a calendar month

is required to have an observer present at the facility each day it

receives or processes groundfish during that month.

(2) A shoreside processor that processes 500 mt to 1,000 mt in

round weight or round-weight equivalent of groundfish during a calendar

month is required to have an observer present at the facility at least

30 percent of the days it receives or processes groundfish during that

month.

(3) Each shoreside processor that offloads pollock at more than one

location on the same dock and has distinct and separate equipment at

each location to process those pollock and that receives pollock

harvested by catcher vessels in the catcher vessel operational area

during the second pollock season that starts on August 15, under

Sec. 679.23(e), is required to have an observer, in addition to the

observer required under paragraphs (d) (1) and (2) of this section, at

each location where pollock is offloaded, for each day of the second

pollock season until the chum salmon savings area is closed under

Sec. 679.21(e)(7)(vi), or October 15, whichever occurs first.

g the second pollock season that starts on August 15, under

Sec. 679.23(e), is required to have an observer, in addition to the

observer required under paragraphs (d) (1) and (2) of this section, at

each location where pollock is offloaded, for each day of the second

pollock season until the chum salmon savings area is closed under

Sec. 679.21(e)(7)(vi), or October 15, whichever occurs first.

(e) Inseason adjustments in observer coverage requirements. (1) The

Regional Director may adjust the observer coverage requirements set out

under paragraphs (c) and (d) of this section at any time to improve the

accuracy, reliability, and availability of observer data, so long as

the standards of the Magnuson Act and other applicable Federal

regulations are met, and the changes are based on one or more of the

following:

(i) Adjustment. A finding that fishing methods, times, or areas, or

catch or bycatch composition for a specific fishery or fleet component

have significantly changed, or are likely to change significantly.

(ii) A finding that such modifications are necessary to improve

data availability or quality in order to meet specific fishery

management objectives.

(2) Procedure. The procedure for an inseason adjustment of observer

coverage requirements will comply with Sec. 679.25(c). No change to

observer coverage requirements may be implemented under this paragraph

(e) until NMFS has published changes in observer coverage requirements

in the Federal Register, with the reasons for the changes and any

special instructions to vessels or shoreside processors required to

carry observers, at least 10 calendar days prior to their effective

date.

(f) Responsibilities--(1) Vessel responsibilities. An operator of a

vessel required to carry one or more observers must provide the

following:

changes in observer coverage requirements

in the Federal Register, with the reasons for the changes and any

special instructions to vessels or shoreside processors required to

carry observers, at least 10 calendar days prior to their effective

date.

(f) Responsibilities--(1) Vessel responsibilities. An operator of a

vessel required to carry one or more observers must provide the

following:

(i) Accommodations and food. Provide, at no cost to observers or

the United States, accommodations and food on the vessel for the

observer or observers that are equivalent to those provided for

officers, engineers, foremen, deck-bosses or other management level

personnel of the vessel.

(ii) Safe conditions. (A) Maintain safe conditions on the vessel

for the protection of observers by adhering to all U.S. Coast Guard and

other applicable rules, regulations, or statutes pertaining to safe

operation of the vessel.

(B) Have onboard:

(1) A valid Commercial Fishing Vessel Safety Decal issued within

the past 2 years that certifies compliance with regulations found in

Titles 33 CFR Chapter I and 46 CFR Chapter I;

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

or

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

(iii) Transmission of data. Facilitate transmission of observer

data by:

(A) Allowing observers to use the vessel's communication equipment

and personnel, on request, for the entry, transmission, and receipt of

work-related messages, at no cost to the observers or the United

States.

(B) Ensuring that each mothership that receives pollock harvested

in the catcher vessel operational area during the pollock season that

starts on August 15, under Sec. 679.23(e), is equipped with INMARSAT

Standard A satellite communication capabilities, cc:Mail remote, and

the data entry software provided by the Regional Director for use by

the observer

o the observers or the United

States.

(B) Ensuring that each mothership that receives pollock harvested

in the catcher vessel operational area during the pollock season that

starts on August 15, under Sec. 679.23(e), is equipped with INMARSAT

Standard A satellite communication capabilities, cc:Mail remote, and

the data entry software provided by the Regional Director for use by

the observer. The operator of each mothership shall also make available

for the observers' use the following equipment compatible therewith and

having the ability to operate the NMFS-supplied data entry software

program: A personal computer with a 486 or better processing chip, a

DOS 3.0, or better operating system with 10 megabytes free hard disk

storage, and 8 megabytes RAM.

(C) Ensuring that the communication equipment that is on

motherships as specified at paragraph (f)(1)(iii)(B) of this section,

and that is used by observers to transmit data, is fully functional and

operational.

(iv) Vessel position. Allow observers access to, and the use of,

the vessel's navigation equipment and personnel, on request, to

determine the vessel's position.

(v) Access. Allow observers free and unobstructed access to the

vessel's bridge, trawl or working decks, holding bins, processing

areas, freezer spaces, weight scales, cargo holds, and any other space

that may be used to hold, process, weigh, or store fish or fish

products at any time.

(vi) Prior notification. Notify observers at least 15 minutes

before fish are brought on board, or fish and fish products are

transferred from the vessel, to allow sampling the catch or observing

the transfer, unless the observers specifically request not to be

notified.

(vii) Records. Allow observers to inspect and copy the vessel's

DFL, DCPL, product transfer forms, any other logbook or document

required by regulations, printouts or tallies of scale weights, scale

calibration records, bin sensor readouts, and production records.

the vessel, to allow sampling the catch or observing

the transfer, unless the observers specifically request not to be

notified.

(vii) Records. Allow observers to inspect and copy the vessel's

DFL, DCPL, product transfer forms, any other logbook or document

required by regulations, printouts or tallies of scale weights, scale

calibration records, bin sensor readouts, and production records.

(viii) Assistance. Provide all other reasonable assistance to

enable observers to carry out their duties, including, but not limited

to:

(A) Measuring decks, codends, and holding bins.

(B) Providing the observers with a safe work area adjacent to the

sample collection site.

(C) Collecting bycatch when requested by the observers.

(D) Collecting and carrying baskets of fish when requested by

observers.

(E) Allowing observers to determine the sex of fish when this

procedure will not decrease the value of a significant portion of the

catch.

(ix) Transfer at sea. (A) Ensure that transfers of observers at sea

via small boat or raft are carried out during

daylight hours, under safe conditions, and with the agreement of

observers involved.

(B) Notify observers at least 3 hours before observers are

transferred, such that the observers can collect personal belongings,

equipment, and scientific samples.

(C) Provide a safe pilot ladder and conduct the transfer to ensure

the safety of observers during transfers.

(D) Provide an experienced crew member to assist observers in the

small boat or raft in which any transfer is made.

(2) Shoreside processor responsibilities. A manager of a shoreside

processor must do the following:

can collect personal belongings,

equipment, and scientific samples.

(C) Provide a safe pilot ladder and conduct the transfer to ensure

the safety of observers during transfers.

(D) Provide an experienced crew member to assist observers in the

small boat or raft in which any transfer is made.

(2) Shoreside processor responsibilities. A manager of a shoreside

processor must do the following:

(i) Safe conditions. Maintain safe conditions at the shoreside

processing facility for the protection of observers by adhering to all

applicable rules, regulations, or statutes pertaining to safe operation

and maintenance of the processing facility.

(ii) Operations information. Notify the observers, as requested, of

the planned facility operations and expected receipt of groundfish

prior to receipt of those fish.

(iii) Transmission of data. Facilitate transmission of observer

data by:

(A) Allowing observers to use the shoreside processor's

communication equipment and personnel, on request, for the entry,

transmission, and receipt of work-related messages, at no cost to the

observers or the United States.

(B) Ensuring that each shoreside processor that is required to have

observer coverage under paragraph (d)(3) of this section and that

receives pollock harvested in the catcher vessel operational area

during the pollock season that starts on August 15, under

Sec. 679.23(e), makes available to the observer the following equipment

or equipment compatible therewith: A personal computer with a minimum

of a 486 processing chip with at least a 9600-baud modem and a

telephone line. The personal computer must be equipped with a mouse,

Windows version 3.1, or a program having the ability to operate the

NMFS-supplied data entry software program, 10 megabytes free hard disk

storage, 8 megabytes RAM, and data entry software provided by the

Regional Director for use by the observers

with a minimum

of a 486 processing chip with at least a 9600-baud modem and a

telephone line. The personal computer must be equipped with a mouse,

Windows version 3.1, or a program having the ability to operate the

NMFS-supplied data entry software program, 10 megabytes free hard disk

storage, 8 megabytes RAM, and data entry software provided by the

Regional Director for use by the observers.

(C) Ensuring that the communication equipment that is in the

shoreside processor as specified at paragraph (f)(2)(iii)(B) of this

section, and that is used by observers to transmit data is fully

functional and operational.

(iv) Access. Allow observers free and unobstructed access to the

shoreside processor's holding bins, processing areas, freezer spaces,

weight scales, warehouses, and any other space that may be used to

hold, process, weigh, or store fish or fish products at any time.

(v) Document access. Allow observers to inspect and copy the

shoreside processor's DCPL, product transfer forms, any other logbook

or document required by regulations; printouts or tallies of scale

weights; scale calibration records; bin sensor readouts; and production

records.

(vi) Assistance. Provide all other reasonable assistance to enable

the observer to carry out his or her duties, including, but not limited

to:

(A) Assisting the observer in moving and weighing totes of fish.

(B) Cooperating with product recovery tests.

(C) Providing a secure place to store baskets of sampling gear.

(g) Procurement of observer services. Owners of vessels or

shoreside processors required to carry observers under paragraphs (c)

and (d) of this section must arrange for observer services from an

observer contractor or contractors. A list of observer contractors is

available upon request from the Observer Program Office.

tests.

(C) Providing a secure place to store baskets of sampling gear.

(g) Procurement of observer services. Owners of vessels or

shoreside processors required to carry observers under paragraphs (c)

and (d) of this section must arrange for observer services from an

observer contractor or contractors. A list of observer contractors is

available upon request from the Observer Program Office.

(h) Certification and decertification of observers.--(1)

Certification of observers--(i) Requirements. NMFS will certify

individuals who:

(A) Meet education and/or experience standards available from the

Observer Program Office.

(B) Have successfully completed a NMFS-approved observer training

and/or briefing as prescribed by NMFS and available from the Observer

Program Office.

(C) Have not been suspended or decertified under paragraph (j) of

this section.

(ii) Term. An observer's certification expires upon completion of a

deployment. Observers can be decertified or suspended by NMFS under

paragraph (j) of this section.

(2) Standards of observer conduct--(i) Conflict of interest.

(A) Observers:

(1) May not have a direct financial interest in a North Pacific

fishery, other than the provision of observer services, including, but

not limited to, vessels or shoreside facilities involved in the

catching or processing of the products of the fishery, concerns selling

supplies or services to said vessels or shoreside facilities, or

concerns purchasing raw or processed products from said vessels or

shoreside facilities.

(2) May not solicit or accept, directly or indirectly, any

gratuity, gift, favor, entertainment, loan, or anything of monetary

value from anyone who conducts activities that are regulated by NMFS,

or who has interests that may be substantially affected by the

performance or nonperformance of the observers' official duties.

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

facility owned or operated by a person who previously employed the

observers.

, favor, entertainment, loan, or anything of monetary

value from anyone who conducts activities that are regulated by NMFS,

or who has interests that may be substantially affected by the

performance or nonperformance of the observers' official duties.

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

facility owned or operated by a person who previously employed the

observers.

(4) May not serve as observers during the 12 consecutive months

immediately following the last day of the observer's employment as paid

crew members or employees in a North Pacific fishery.

(B) Provisions for remuneration of observers under this section do

not constitute a conflict of interest under this paragraph (h)(2).

(ii) Standards of behavior. Observers must avoid any behavior that

could adversely affect the confidence of the public in the integrity of

the Observer Program or of the government, including but not limited to

the following:

(A) Observers must diligently perform their assigned duties.

(B) Observers must accurately record their sampling data, write

complete reports, and report honestly any suspected violations of

regulations relevant to conservation of marine resources or their

environment that are observed.

(C) Observers must not disclose collected data and observations

made on board the vessel or in the processing facility to any person

except the owner or operator of the observed vessel or processing

facility, an authorized officer, or NMFS.

(D) Observers must refrain from engaging in any illegal actions or

any other activities that would reflect negatively on their image as

professional scientists, on other observers, or on the Observer Program

as a whole. This includes, but is not limited to:

(1) Engaging in excessive drinking of alcoholic beverages;

(2) Engaging in the use or distribution of illegal drugs; or

(3) Becoming physically or emotionally involved with vessel or

processing facility personnel.

activities that would reflect negatively on their image as

professional scientists, on other observers, or on the Observer Program

as a whole. This includes, but is not limited to:

(1) Engaging in excessive drinking of alcoholic beverages;

(2) Engaging in the use or distribution of illegal drugs; or

(3) Becoming physically or emotionally involved with vessel or

processing facility personnel.

(i) Certification and decertification of observer contractors--(1)

Certification of observer contractors--(i) Application. An applicant

seeking to become an observer contractor must submit an application to

the Regional Director describing the applicant's ability to carry out

the responsibilities and duties of an observer contractor as set out in

paragraph (i)(2) of this section and the arrangements and methods to be

used. Observer contractors certified prior to

January 1, 1997, are exempt from submitting an application.

(ii) Selection. The Regional Director may select one or more

observer contractors based on the information submitted by applicants

under paragraph (i)(1)(i) of this section and on other selection

criteria that are available from the Observer Program Office.

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

31, 1997. Observer contractors can be decertified or suspended by NMFS

under paragraph (j) of this section.

(2) Responsibilities and duties of observer contractors include but

are not limited to the following:

(i) Recruiting, evaluating, and hiring of qualified candidates to

serve as observers, including minorities and women.

(ii) Ensuring that only observers provide observer services.

(iii) Providing observer coverage as requested by vessels and

processors to fulfill requirements under paragraphs (c) and (d) of this

section.

(iv) Providing observers' salary, benefits and personnel services

in a timely manner.

, evaluating, and hiring of qualified candidates to

serve as observers, including minorities and women.

(ii) Ensuring that only observers provide observer services.

(iii) Providing observer coverage as requested by vessels and

processors to fulfill requirements under paragraphs (c) and (d) of this

section.

(iv) Providing observers' salary, benefits and personnel services

in a timely manner.

(v) Providing all logistics to place and maintain the observers

aboard the fishing vessels or at the site of the processing facility.

This includes all travel arrangements, lodging and per diem, and any

other services required to place observers aboard vessels or at

processing facilities. Placement of observers must occur according to

the following:

(A) Observers must not be deployed on the same vessel for more than

90 days in a 12-month period.

(B) A deployment to a vessel or a shoreside processor cannot exceed

90 days without approval from the Observer Program Office.

(C) A deployment cannot include assignments to more than four

vessels and/or shoreside processors.

(vi) Supplying alternate observers or prospective observers if one

or more observers or prospective observers are rejected by NMFS, fail

to successfully complete observer training or briefing, are injured and

must be replaced, or resign prior to completion of duties.

(vii) Maintaining communications with observers at sea and

shoreside facilities. Each observer contractor must make arrangements

to have an employee responsible for observer activities on call 24

hours a day whenever they have observers at sea, stationed at shoreside

facilities, in transit, or in port awaiting boarding, to handle

emergencies involving observers, or problems concerning observer

logistics.

(viii) In cooperation with vessel or processing facility owners,

ensuring that all observers' in-season catch messages and other

required transmissions between observers and NMFS are delivered to NMFS

within a time specified by the Regional Director.

de

facilities, in transit, or in port awaiting boarding, to handle

emergencies involving observers, or problems concerning observer

logistics.

(viii) In cooperation with vessel or processing facility owners,

ensuring that all observers' in-season catch messages and other

required transmissions between observers and NMFS are delivered to NMFS

within a time specified by the Regional Director.

(ix) Ensuring that observers complete mid-deployment data reviews

when required.

(x) Ensuring that observers complete debriefing as soon as possible

after the completion of their deployment and at locations specified by

the Regional Director.

(xi) Ensuring all data, reports, and biological samples from

observer deployments are complete and submitted to NMFS at the time of

the debriefing interview.

(xii) Ensuring that all sampling and safety gear are returned to

the Observer Program Office and replacing any gear and equipment lost

or damaged by observers according to NMFS requirements.

(xiii) Monitoring observers' performance to ensure satisfactory

execution of duties by observers and observer conformance with NMFS'

standards of observer conduct under paragraph (h)(2) of this section.

(xiv) Providing the following information to the Observer Program

Office by electronic transmission (e-mail) or by fax at fax number 206-

526-4066.

(A) Observer training and briefing registration. Observer training

registration consisting of a list of individuals to be hired upon

approval by NMFS and a copy of each person's academic transcripts and

resume. The list must include the person's name and sex. The person's

social security number is requested. Observer briefing registration

consisting of a list of the observer's name and requested briefing

class date. This information must be submitted to the Observer Program

Office at least 5 working days prior to the beginning of a scheduled

observer certification training or briefing session

esume. The list must include the person's name and sex. The person's

social security number is requested. Observer briefing registration

consisting of a list of the observer's name and requested briefing

class date. This information must be submitted to the Observer Program

Office at least 5 working days prior to the beginning of a scheduled

observer certification training or briefing session.

(B) Projected observer assignments that include the observer's

name, vessel or shoreside processor assignment, vessel length and type,

port of embarkation, target species, and area of fishing. This

information must be submitted to the Observer Program Office prior to

the completion of the training or briefing session.

(C) Observer deployment/logistics reports that include the

observer's name, cruise number, current vessel or shoreside processor

assignment and code, embarkation date, and estimated and actual

disembarkation dates. This information must be submitted weekly as

directed by the Observer Program Office.

(D) Observer debriefing registration that includes the observer's

name, cruise number, vessel or shoreside processor name(s), and

requested debriefing date.

(E) Copies of ``certificates of insurance'' that name the NMFS

Observer Program Task Leader as a ``certificate holder''. The

certificates of insurance shall verify the following coverage

provisions and state that the insurance company will notify the

certificate holder if insurance coverage is changed or cancelled:

(1) Maritime Liability to cover ``seamen's'' claims under the

Merchant Marine Act (Jones Act) and General Maritime Law ($1 million

minimum).

(2) Coverage under the U.S. Longshore and Harbor Workers'

Compensation Act ($1 million minimum).

(3) States Worker's Compensation as required.

that the insurance company will notify the

certificate holder if insurance coverage is changed or cancelled:

(1) Maritime Liability to cover ``seamen's'' claims under the

Merchant Marine Act (Jones Act) and General Maritime Law ($1 million

minimum).

(2) Coverage under the U.S. Longshore and Harbor Workers'

Compensation Act ($1 million minimum).

(3) States Worker's Compensation as required.

(4) Contractual General Liability.

(F) Notification that, based upon a physical examination during the

12 months prior to an observer's deployment, examining physicians have

certified that observers do not have any health problems or conditions

that would jeopardize their safety or the safety of others while

deployed, or prevent them from performing their duties satisfactorily,

and that prior to examination, the certifying physician was made aware

of the dangerous, remote and rigorous nature of the work. This

information must be submitted prior to the completion of the training

or briefing session.

(G) A copy of each type of signed and valid contract an observer

contractor has with those entities requiring observer services under

paragraphs (c) and (d) of this section and with observers. Copies of

contracts with specific entities requiring observer services or with

specific observers must be submitted to the Observer Program Office

upon request.

(H) Reports of observer harassment, concerns about vessel or

processor safety, or observer performance problems. These reports must

be submitted within 24 hours of when the observer contractor becomes

aware of the problem.

bservers. Copies of

contracts with specific entities requiring observer services or with

specific observers must be submitted to the Observer Program Office

upon request.

(H) Reports of observer harassment, concerns about vessel or

processor safety, or observer performance problems. These reports must

be submitted within 24 hours of when the observer contractor becomes

aware of the problem.

(3) Conflict of interest. (i) Observer contractors:

(A) Must not hold any direct financial interest in a North Pacific

fishery, other than the provision of observer services, including, but

not limited to, vessels or shoreside facilities involved in the

catching or processing of the products of the fishery, concerns selling

supplies or services to said vessels or shoreside

facilities, or concerns purchasing raw or processed products from said

vessels or shoreside facilities.

(B) Must assign observers without regard to any preference by

representatives of vessels and shoreside facilities based on observer

race, gender, age, religion, or sexual orientation.

(C) Must not solicit or accept, directly or indirectly, any

gratuity, gift, favor, entertainment, loan, or anything of monetary

value from anyone who conducts activities that are regulated by NMFS,

or who has interests that may be substantially affected by the

performance or nonperformance of the official duties of observer

contractors.

(j) Decertification Process--(1) Applicability. This paragraph (j)

sets forth the procedures for suspension and decertification of

observers and observer contractors under this section.

lue from anyone who conducts activities that are regulated by NMFS,

or who has interests that may be substantially affected by the

performance or nonperformance of the official duties of observer

contractors.

(j) Decertification Process--(1) Applicability. This paragraph (j)

sets forth the procedures for suspension and decertification of

observers and observer contractors under this section.

(2) Policy. (i) NMFS must certify responsible and qualified

observers and observer contractors only. Suspension and decertification

are discretionary actions that, taken in accordance with this section,

are appropriate means to effectuate this policy.

(ii) The serious nature of suspension and decertification requires

that these actions be taken only in the public interest for the

promotion of fishery conservation and management and not for purposes

of punishment. NMFS may impose suspension or decertification only for

the causes and in accordance with the procedures set forth in this

section.

(3) Definitions. (i) Adequate evidence means information sufficient

to support the reasonable belief that a particular act or omission has

occurred.

(ii) Affiliates means business concerns, organizations, or

individuals are affiliates of each other if, directly or indirectly,

either one controls or has the power to control the other, or a third

party controls or has the power to control both. Indicators of control

include, but are not limited to, interlocking management or ownership,

identity of interests among family members, shared facilities and

equipment, common use of employees, or a business entity organized

following the decertification, suspension, or proposed decertification

of an observer contractor that has the same or similar management,

ownership, or principal employees as the observer contractor that was

decertified, suspended, or proposed for decertification.

(iii) Civil judgment means a judgment or finding of a civil offense

by any court of competent jurisdiction.

ness entity organized

following the decertification, suspension, or proposed decertification

of an observer contractor that has the same or similar management,

ownership, or principal employees as the observer contractor that was

decertified, suspended, or proposed for decertification.

(iii) Civil judgment means a judgment or finding of a civil offense

by any court of competent jurisdiction.

(iv) Conviction means a judgment or conviction of a criminal

offense by any court of competent jurisdiction, whether entered upon a

verdict or a plea, and includes a conviction entered upon a plea of

nolo contendere.

(v) Decertification, as used in this paragraph (j) means action

taken by a decertifying official under paragraph (j)(8) of this section

to revoke indefinitely certification of observers or observer

contractors under this section; an observer or observer contractor

whose certification is so revoked is decertified.

(vi) Decertifying official means a designee authorized by the

Regional Director to impose decertification.

(vii) Indictment means indictment for a criminal offense. An

information or other filing by competent authority charging a criminal

offense must be given the same effect as an indictment.

(viii) Legal proceedings means any civil judicial proceeding to

which the Government is a party or any criminal proceeding. The term

includes appeals from such proceedings.

(ix) NMFS investigator means a designee authorized by the Regional

Director to conduct investigations under this section.

rds will

depend upon the provisions of the Freedom of Information Act and other

applicable law.

(5) Effect and timing of suspension or decertification. (i)

Observers or observer contractors decertified or suspended must not

provide services prescribed by this section to vessels and shoreside

processors.

(ii) Suspension and decertification actions may be combined and

imposed simultaneously.

(6) Suspension--(i) General. (A) The suspending official may, in

the public interest, suspend observers or observer contractors for any

of the causes in paragraph (j)(6)(ii) of this section, using the

procedures in paragraph (j)(6)(iii) of this section.

(B) Suspension is a serious action to be imposed on the basis of

adequate evidence, pending the completion of investigation or legal

proceedings, when NMFS determines that immediate action is necessary.

In assessing the adequacy of the evidence, the suspending official

should consider how much information is available, how credible it is

given the circumstances, whether or not important allegations are

corroborated, and what inferences can reasonably be drawn as a result.

(C) Suspension includes all divisions or other organizational

elements of observer contractors, unless the suspension decision is

limited by its terms to specific divisions or organizational elements.

The suspending official may include any affiliates of observer

contractors if they are specifically named and given written notice of

the suspension and an opportunity to respond.

(ii) Causes for suspension. (A) The suspending official may suspend

observers or observer contractors upon a determination, based upon

adequate evidence, that observers or observer contractors committed any

acts or omissions constituting a cause for decertification under

paragraph (j)(7)(ii) of this section.

(B) Indictment for any of the causes for decertification in

paragraphs (j)(7)(ii)(A)(1) or (j)(7)(ii)(B)(1) of this section

constitutes adequate evidence for suspension.

rver contractors upon a determination, based upon

adequate evidence, that observers or observer contractors committed any

acts or omissions constituting a cause for decertification under

paragraph (j)(7)(ii) of this section.

(B) Indictment for any of the causes for decertification in

paragraphs (j)(7)(ii)(A)(1) or (j)(7)(ii)(B)(1) of this section

constitutes adequate evidence for suspension.

(iii) Procedures.--(A) Review. The suspending official must review

all available evidence and must promptly determine whether or not to

proceed with suspension. The suspending official may refer the matter

to the NMFS investigator for further investigation, or to the

decertifying officer.

(B) Notice of suspension. When observers or observer contractors

and any specifically named affiliates are suspended, they must be

immediately advised personally or by certified mail, return receipt

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

(1) That they have been suspended and that the suspension is based

on an indictment or other adequate evidence that observers or observer

contractors have committed acts or omissions constituting grounds for

suspension under paragraph (j)(6)(ii) of this section. Such acts or

omissions may be described in terms sufficient to place observers or

observer contractors on notice without disclosing NMFS' evidence.

(2) That the suspension is for a temporary period pending the

completion of an investigation and such decertification proceedings as

may ensue.

(3) Of the cause(s) relied upon under paragraph (j)(6)(ii) of this

section for imposing suspension.

(4) Of the effect of the suspension.

(5) That, within 30 days after receipt of the notice, the observers

or observer contractors may submit, in writing, documentary evidence

and argument in opposition to the suspension, including any additional

specific documentary evidence that raises a genuine dispute over the

material facts.

r paragraph (j)(6)(ii) of this

section for imposing suspension.

(4) Of the effect of the suspension.

(5) That, within 30 days after receipt of the notice, the observers

or observer contractors may submit, in writing, documentary evidence

and argument in opposition to the suspension, including any additional

specific documentary evidence that raises a genuine dispute over the

material facts.

(6) That additional proceedings to determine disputed material

facts will be conducted unless:

(i) the action is based on an indictment; or

(ii) a determination is made, on the basis of NOAA General Counsel

advice, that the substantial interests of the government in pending or

contemplated legal proceedings based on the same facts as the

suspension would be prejudiced.

(C) Dispute. In actions not based on an indictment, if NMFS

determines that the observers' or observer contractors' submission in

opposition raises a genuine dispute over facts material to the

suspension and if no determination has been made, on the basis of NOAA

General Counsel advice, that substantial interests of the government in

pending or contemplated legal proceedings based on the same facts as

the suspension would be prejudiced, the suspending official:

(1) Must afford observers or observer contractors an opportunity to

submit additional documentary evidence upon a showing that such

documentary evidence was unavailable during the 30-day period following

receipt of the notice of suspension.

ts of the government in

pending or contemplated legal proceedings based on the same facts as

the suspension would be prejudiced, the suspending official:

(1) Must afford observers or observer contractors an opportunity to

submit additional documentary evidence upon a showing that such

documentary evidence was unavailable during the 30-day period following

receipt of the notice of suspension.

(2) May, at his or her sole discretion, afford observers or

observer contractors an opportunity to appear in person, present

witnesses, and confront any person NMFS presents. The suspending

official must make an audio tape of the proceedings and make a copy

available at cost to observers or observer contractors upon request,

unless observers or observer contractors and NMFS, by mutual agreement,

waive the requirement for an audio tape.

(D) Suspending official's decision. (1) The suspending official's

decision must be based on all the information in the administrative

record, including any submission made by observers or observer

contractors on action based on an indictment:

(i) in which observers or observer contractors' submission does not

raise a genuine dispute over material facts; or

(ii) in which additional proceedings to determine disputed material

facts have been denied on the basis of NOAA General Counsel advice.

(2) In actions in which additional proceedings are necessary as to

disputed material facts, written findings of fact must be prepared. The

suspending official must base the decision on the facts as found,

together with any information and argument submitted by observers or

observer contractors and any other information in the administrative

record.

(3) The suspending official may refer matters involving disputed

material facts to another official for findings of fact. The suspending

official may reject any such findings, in whole or in part.

(4) The suspending official's decision must be made after the

conclusion of the proceedings with respect to disputed facts.

erver contractors and any other information in the administrative

record.

(3) The suspending official may refer matters involving disputed

material facts to another official for findings of fact. The suspending

official may reject any such findings, in whole or in part.

(4) The suspending official's decision must be made after the

conclusion of the proceedings with respect to disputed facts.

(5) Prompt written notice of the suspending official's decision to

affirm, modify or terminate the notice of suspension issued under this

paragraph (j)(6) must be served 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.

(E) Period of suspension. (1) Suspension must be for a temporary

period pending the completion of investigation and any ensuing legal

proceedings or decertification proceedings, including any

administrative review under paragraph (j)(8) of this section, unless

sooner terminated by the suspending official or as provided under this

paragraph (j). If suspension is in effect, the decertifying official

will expedite any related decertification proceedings.

(2) If legal proceedings or decertification proceedings are not

initiated within 12 months after the date of the suspension notice, the

suspension must be terminated.

(F) Scope of suspension for observer contractors. The scope of

suspension must be the same as that for decertification under paragraph

in effect, the decertifying official

will expedite any related decertification proceedings.

(2) If legal proceedings or decertification proceedings are not

initiated within 12 months after the date of the suspension notice, the

suspension must be terminated.

(F) Scope of suspension for observer contractors. The scope of

suspension must be the same as that for decertification under paragraph

(j)(7)(v) of this section, except that the procedures set out under

paragraph (j)(6) of this section must be used in imposing suspension.

(7) Decertification--(i) General. (A) The decertifying official

may, in the public interest, decertify observers or observer

contractors for any of the causes in paragraph (j)(7)(ii) of this

section using the procedures in paragraph (j)(7)(iii) of this section.

The existence of a cause for decertification does not necessarily

require that observers or observer contractors be decertified; the

seriousness of the acts or omissions and any mitigating factors should

be considered in making any decertification decision. The existence or

nonexistence of any mitigating factors is not necessarily determinative

of an observers' or observer contractors' present fitness. Accordingly,

if a cause for decertification exists, observers or observer

contractors have the burden of demonstrating, to the satisfaction of

the decertifying official, present fitness and that decertification is

not necessary.

(B) Decertification of observer contractors includes all divisions

or other organizational elements of the observer contractor, unless the

decertification decision is limited by its terms to specific divisions

or organizational elements. The decertifying official may, at his or

her sole discretion, include any affiliates of observer contractors if

they are specifically named and given written notice of the proposed

decertification and an opportunity to respond under paragraph

onal elements of the observer contractor, unless the

decertification decision is limited by its terms to specific divisions

or organizational elements. The decertifying official may, at his or

her sole discretion, include any affiliates of observer contractors if

they are specifically named and given written notice of the proposed

decertification and an opportunity to respond under paragraph

(j)(7)(iii)(C) of this section.

(ii) Causes for decertification--(A) Observers. (1) The

decertifying official may decertify observers for a conviction of or

civil judgment for the following:

(i) Commission of fraud or a criminal offense in connection with

obtaining or attempting to obtain certification, or in performing the

duties of observers as prescribed by NMFS;

(ii) Commission of embezzlement, theft, forgery, bribery,

falsification or destruction of records, making false statements, or

receiving stolen property; or

(iii) Commission of any other offense indicating a lack of

integrity or honesty that seriously and directly affects the present

fitness of observers.

(2) The decertifying official may decertify observers, based upon a

preponderance of the evidence, upon a determination that observers

have:

(i) Failed to satisfactorily perform the duties of observers as

prescribed by NMFS; or

(ii) Failed to abide by the standards of conduct for observers as

prescribed under paragraph (h)(2) of this section.

(B) Observer contractors. (1) The decertifying official may

decertify observer contractors for a conviction of or civil judgment

for the following:

pon a determination that observers

have:

(i) Failed to satisfactorily perform the duties of observers as

prescribed by NMFS; or

(ii) Failed to abide by the standards of conduct for observers as

prescribed under paragraph (h)(2) of this section.

(B) Observer contractors. (1) The decertifying official may

decertify observer contractors for a conviction of or civil judgment

for the following:

(i) Commission of fraud or a criminal offense in connection with

obtaining or attempting to obtain certification, or in performing the

responsibilities and duties of observer contractors as prescribed under

paragraph (i)(2) of this section;

(ii) Commission of embezzlement, theft, forgery, bribery,

falsification or destruction of records, making false statements, or

receiving stolen property; or

(iii) Commission of any other offense indicating a lack of business

integrity or business honesty that seriously and directly affects the

present fitness of observer contractors.

(2) The decertifying official may decertify observer contractors,

based upon a preponderance of the evidence, upon a determination that

observer contractors have:

(i) Failed to satisfactorily perform the responsibilities and

duties of observer contractors as prescribed under paragraph (i)(2) of

this section; or

(ii) A conflict of interest as set out under paragraph (i)(3) of

this section.

(iii) Procedures--(A) Investigation and referral. NMFS personnel

must promptly report to the NMFS investigator matters appropriate for

further investigation. The NMFS investigator must investigate matters

so referred and submit the investigative material to the decertifying

official or, if appropriate, to the suspending official.

(B) Review. The decertifying official must review all available

evidence and must promptly determine whether or not to proceed with

decertification. The decertifying official may refer the matter to the

NMFS investigator for further investigation or, if appropriate, to the

suspending official

investigative material to the decertifying

official or, if appropriate, to the suspending official.

(B) Review. The decertifying official must review all available

evidence and must promptly determine whether or not to proceed with

decertification. The decertifying official may refer the matter to the

NMFS investigator for further investigation or, if appropriate, to the

suspending official.

(C) Notice of proposed decertification. If the decertifying

official determines to proceed with decertification, he or she must

serve a notice of proposed decertification upon observers or observer

contractors and any specifically named affiliates, personally or by

certified mail, return receipt requested, at the last known residence

or place of business, advising:

(1) That decertification is being considered.

(2) Of the reasons for the proposed decertification in terms

sufficient to put observers or observer contractors on notice of the

conduct or transaction(s) upon which it is based.

(3) Of the cause(s) relied upon under paragraph (j)(7)(ii) of this

section for proposing decertification.

(4) That, within 30 days after receipt of the notice, observers or

observer contractors may submit, in writing, documentary evidence and

argument in opposition to the proposed decertification, including any

additional specific documentary evidence that raises a genuine dispute

over the material facts.

(5) Of NMFS' procedures governing decertification decision making.

(6) Of the effect of the issuance of the notice of proposed

decertification.

(7) Of the potential effect of an actual decertification.

(D) Dispute. In actions not based upon a conviction or civil

judgment, if it is found that observers' or observer contractors'

submission raises a genuine dispute over facts material to the proposed

decertification, the decertifying official:

ecision making.

(6) Of the effect of the issuance of the notice of proposed

decertification.

(7) Of the potential effect of an actual decertification.

(D) Dispute. In actions not based upon a conviction or civil

judgment, if it is found that observers' or observer contractors'

submission raises a genuine dispute over facts material to the proposed

decertification, the decertifying official:

(1) Must afford observers or observer contractors an opportunity to

submit additional documentary evidence upon a showing that such

documentary evidence was unavailable during the 30-day period following

receipt of the notice of proposed decertification.

(2) May, at his or her sole discretion, afford observers or

observer contractors an opportunity to appear in person, present

witnesses, and confront any person NMFS presents. The decertifying

official must make an audio tape of the proceedings and make a copy

available at cost to observers or observer contractors upon request,

unless observers or observer contractors and NMFS, by mutual agreement,

waive the requirement for an audio tape.

(E) Decertifying official's decision. (1) In actions based upon a

conviction or judgment, or in which there is no genuine dispute over

material facts, the decertifying official must make a decision on the

basis of all the information in the administrative record, including

any submission made by observers or observer contractors. The decision

must be made after receipt of any timely information and argument

submitted by observers or observer contractors.

(2) In actions in which additional proceedings are necessary as to

disputed material facts, written findings of fact must be prepared. The

decertifying official must base the decision on the facts as found,

together with any information and argument submitted by observers or

observer contractors and any other information in the administrative

record.

ted by observers or observer contractors.

(2) In actions in which additional proceedings are necessary as to

disputed material facts, written findings of fact must be prepared. The

decertifying official must base the decision on the facts as found,

together with any information and argument submitted by observers or

observer contractors and any other information in the administrative

record.

(3) The decertifying official may refer matters involving disputed

material facts to another official for findings of fact. The

decertifying official may reject any such findings, in whole or in

part.

(4) The decertifying official's decision must be made after the

conclusion of the proceedings with respect to disputed facts.

(5) In any action in which the proposed decertification is not

based upon a conviction or civil judgment, the cause for

decertification may be established by a preponderance of the evidence.

(F) Notice of decertifying official's decision. (1) If the

decertifying official decides to impose decertification, observers or

observer contractors and any affiliates involved must be given prompt

notice personally or by certified mail, return receipt requested, at

the last known residence or place of business. Such notice must:

(i) Refer to the notice of proposed decertification;

(ii) Specify the reasons for decertification; and

(iii) Advise that the decertification is effective immediately,

unless the decertifying official determines that there is a compelling

reason for maintaining certification for a specified period under

conditions and restrictions necessary and appropriate to protect the

public interest or promote fishery conservation and management and

states the reasons in the notice.

or decertification; and

(iii) Advise that the decertification is effective immediately,

unless the decertifying official determines that there is a compelling

reason for maintaining certification for a specified period under

conditions and restrictions necessary and appropriate to protect the

public interest or promote fishery conservation and management and

states the reasons in the notice.

(2) If decertification is not imposed, the decertifying official

must promptly notify observers or observer contractors and any

affiliates involved, by certified mail, return receipt requested, at

the last known residence or place of business.

(iv) Period of decertification. (A) Decertification must be in

force indefinitely or until rescinded.

(B) The decertifying official may rescind decertification, upon

observers or observer contractors' request, supported by documentation,

for reasons such as:

(1) Newly discovered material evidence;

(2) Reversal of the conviction or civil judgment upon which the

decertification was based;

(3) Bona fide change in ownership or management;

(4) Elimination of other causes for which the decertification was

imposed; or

(5) Other reasons the decertifying official deems appropriate.

(v) Scope of decertification. (A) The fraudulent, criminal, or

other seriously improper conduct of any officer, director, shareholder,

partner, employee, or other individual associated with observer

contractors may be imputed to the observer contractor when the conduct

occurred in connection with the individual's performance of duties for

or on behalf of observer contractors, or with observer contractors'

knowledge, approval, or acquiescence. Observer contractors' acceptance

of the benefits derived from the conduct must be evidence of such

knowledge, approval, or acquiescence

h observer

contractors may be imputed to the observer contractor when the conduct

occurred in connection with the individual's performance of duties for

or on behalf of observer contractors, or with observer contractors'

knowledge, approval, or acquiescence. Observer contractors' acceptance

of the benefits derived from the conduct must be evidence of such

knowledge, approval, or acquiescence.

(B) The fraudulent, criminal, or other seriously improper conduct

of observer contractors may be imputed to any officer, director,

shareholder, partner, employee, or other individual associated with

observer contractors who participated in, knew of, or had reason to

know of the contractors' conduct.

(8) Administrative review of suspension or decertification. (i)

Observers or observer contractors may petition for review of a

suspension decision issued under paragraph (j)(6)(iii) of this section

or a decertification decision issued under paragraph (j)(7)(iii) of

this section within 30 days after the date the decision was served. The

petition must be addressed to the appeals officer identified in the

notice of suspension or decertification. Any petitioned suspension will

remain in effect pending the appeals officer's written decision to

affirm, modify or terminate the suspension.

(ii) Administrative review is discretionary. Petitions for

discretionary review may be filed only upon one or more of the

following grounds:

(A) A finding of material fact is clearly erroneous based upon the

administrative record;

(B) A substantial and important question of policy or discretion is

involved; or

(C) A prejudicial error has occurred.

(iii) If the appeals officer declines review based on the written

petition, observers or observer contractors must be immediately advised

of the decision to decline review personally or by certified mail,

return receipt requested, at the last known residence or place of

business.

substantial and important question of policy or discretion is

involved; or

(C) A prejudicial error has occurred.

(iii) If the appeals officer declines review based on the written

petition, observers or observer contractors must be immediately advised

of the decision to decline review personally or by certified mail,

return receipt requested, at the last known residence or place of

business.

(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 paragraph (j)(6)

or (i)(7) 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.

(v) An appeals officer's decision imposing suspension or

decertification or an unpetitioned suspending or decertifying

official's decision is the final administrative decision of the U.S.

Department of Commerce.

(k) Release of observer data to the public--(1) Summary of weekly

data. The following information collected by observers for each catcher

processor and catcher vessel during any weekly reporting period may be

made available to the public:

(i) Vessel name and Federal permit number;

(ii) Number of chinook salmon and ``other salmon'' observed;

(iii) The ratio of total round weight of halibut or Pacific herring

to the total round weight of groundfish in sampled catch;

(iv) The ratio of number of king crab or C. bairdi Tanner crab to

the total round weight of groundfish in sampled hauls;

eriod may be

made available to the public:

(i) Vessel name and Federal permit number;

(ii) Number of chinook salmon and ``other salmon'' observed;

(iii) The ratio of total round weight of halibut or Pacific herring

to the total round weight of groundfish in sampled catch;

(iv) The ratio of number of king crab or C. bairdi Tanner crab to

the total round weight of groundfish in sampled hauls;

(v) The number of observed trawl hauls or fixed gear sets;

(vi) The number of trawl hauls that were basket sampled; and

(vii) The total weight of basket samples taken from sampled trawl

hauls.

(2) Haul-specific data. (i) The information listed in paragraphs

(k)(2)(i) (A) through (M) of this section and collected by observers

from observed hauls onboard vessels using trawl gear to participate in

a directed fishery for groundfish other than rockfish, Greenland

turbot, or Atka mackerel may be made available to the public:

(A) Date.

(B) Time of day gear is deployed.

(C) Latitude and longitude at beginning of haul.

(D) Bottom depth.

(E) Fishing depth of trawl.

(F) The ratio of the number of chinook salmon to the total round

weight of groundfish.

(G) The ratio of the number of other salmon to the total round

weight of groundfish.

(H) The ratio of total round weight of halibut to the total round

weight of groundfish.

(I) The ratio of total round weight of herring to the total round

weight of groundfish.

(J) The ratio of the number of king crab to the total round weight

of groundfish.

(K) The ratio of the number of C. bairdi Tanner crab to the total

round weight of groundfish.

(L) Sea surface temperature (where available).

(M) Sea temperature at fishing depth of trawl (where available).

(ii) The identity of the vessels from which the data in paragraph

the total round

weight of groundfish.

(J) The ratio of the number of king crab to the total round weight

of groundfish.

(K) The ratio of the number of C. bairdi Tanner crab to the total

round weight of groundfish.

(L) Sea surface temperature (where available).

(M) Sea temperature at fishing depth of trawl (where available).

(ii) The identity of the vessels from which the data in paragraph

(k)(2)(i) of this section are collected will not be released.

(3) Competitive harm. In exceptional circumstances, the owners and

operators of vessels may provide to the Regional Director written

justification at the time observer data are submitted, or within a

reasonable time thereafter, that disclosure of the information listed

in paragraphs (k) (1) and (2) of this section could reasonably be

expected to cause substantial competitive harm. The determination

whether to disclose the information will be made pursuant to 15 CFR

4.7.

Nomenclature Amendments

PART 679--[AMENDED]

9. In part 679, remove ``NMFS-certified'' wherever it occurs.

[FR Doc. 96-19644 Filed 7-30-96; 9:38 am]

BILLING CODE 3510-22-P