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Fisheries off West Coast States and in the Western Pacific; Pacific Coast Groundfish Fishery; Groundfish Observer Program

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 [Federal Register: September 10, 2003 (Volume 68, Number 175)]
[Proposed Rules]
[Page 53334-53342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se03-20]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 980702167; I.D. 031901A]
RIN 0648-AK26
 
Fisheries off West Coast States and in the Western Pacific; 
Pacific Coast Groundfish Fishery; 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 proposes to amend the regulations implementing the 
Pacific Coast Groundfish Fishery Management Plan (FMP) to provide for a 
mandatory, vessel-financed observer program on at-sea processing 
vessels. This action would require processing vessels to employ and pay 
for either one or two (depending on vessel length) NMFS-certified 
observers obtained from a third-party NMFS-permitted observer provider 
company while participating in the Pacific Coast groundfish fishery. 
The action also specifies certification and decertification 
requirements for observers, and defines the responsibilities of 
observers and processing vessels.
    This action is necessary to satisfy the standardized bycatch 
reporting methodology requirements of the 1996 Sustainable Fisheries 
Act amendments to the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). Under these requirements, a 
fishery management plan (FMP) must adopt a standardized reporting 
methodology for assessing the amount and kind of bycatch occurring in 
the fishery. In addition, this action will benefit fisheries 
conservation and management by providing information needed for 
enforcing fishery regulations, maintaining safe and adequate working 
conditions for observers, and establishing certification and 
performance standards for observers to ensure that quality data are 
available for managing the fishery.

DATES: Comments on this proposed rule must be received by October 10, 
2003.

ADDRESSES: Send comments to D. Robert Lohn, Administrator, Northwest 
Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle, 
WA 98115-0070, Attn: Becky Renko. Comments also may be sent via 
facsimile (fax) to 206-526-6736. Comments will not be accepted if 
submitted via e-mail or the Internet.
    Copies of the environmental assessment/regulatory impact review/
initial regulatory flexibility analysis (IRFA) may be obtained from the 
Pacific Fishery Management Council (Council) by writing to the Council 
at 7700 NE Ambassador Place, Portland, OR 97220, or by contacting Don 
McIsaac at 503-326-6352. Copies may also be obtained from William L. 
Robinson, Northwest Region, NMFS, 7600 Sand Point Way N.E., BIN C15700, 
Bldg. 1, Seattle, WA 98115-0070. Send comments regarding the reporting 
burden estimate or any other aspect of the collection-of-information 
requirements in this proposed rule to one of the NMFS addresses and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget (OMB), Washington, DC 00503 (Attn: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: William L. Robinson, Northwest Region, 
NMFS, telephone: 206-526-6140; fax: 206-526-6736; and e-mail: 
bill.robinson@noaa.gov or Svein Fougner, Southwest Region, NMFS, 
telephone: 562-980-4000; fax: 562-980-4047; and e-mail: 
svein.fougner@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

    This proposed rule is also accessible via the Internet at the 
Office of the Federal Register's website at http://www.gpoaccess.gov/
fr/index.html. Exit Disclaimer
    The Federal groundfish fishery off the Washington, Oregon, and 
California (WOC) coasts is managed pursuant to the Magnuson-Stevens Act 
and the

[[Page 53335]]

Pacific Coast Groundfish FMP. The FMP was developed by the Council. 
Regulations implementing the FMP appear at 50 CFR part 660 subpart G.
    The Magnuson-Stevens Act at 16 U.S.C. 1853(a)(11) requires each FMP 
to establish a standardized reporting methodology to assess the amount 
and type of bycatch occurring in the fishery. Further, at 16 U.S.C. 
1853(b)(8), the Magnuson-Stevens Act provides that an FMP may require 
that one or more observers be carried aboard a vessel of the United 
States engaged in fishing for species that are subject to an FMP, for 
the purpose of collecting data necessary for the conservation and 
management of the fishery. Placement of fishery observers on vessels at 
sea is acknowledged as an important method for collecting fisheries 
data. Therefore, the Pacific Coast Groundfish FMP provides that all 
catcher/processors and at-sea processing vessels operating in the 
groundfish fishery may be required to accommodate on board observers 
for purposes of collecting scientific data. Amendment 13 to the FMP 
also provides that vessels may be required to pay for observers. Under 
the Magnuson-Stevens Act at 16 U.S.C. 1855(d), the Secretary of 
Commerce, acting through NMFS, has general responsibility to carry out 
any fishery management plan and may promulgate such regulations as may 
be necessary to carry out this responsibility.
    The current regulations requiring observers in the Pacific Coast 
groundfish fishery (50 CFR 660.360) apply to catcher vessels, but not 
to processing vessels. So far, the only processing vessels 
participating in the fishery are large catcher/processors and 
motherships that also participate in the Alaskan pollock fisheries. 
This fishery is described in more detail below.
    The WOC at-sea Pacific whiting fishery is a mid-water trawl fishery 
that is currently composed of large catcher-processor and mothership 
vessels. The catcher-processors harvest and process catch while the 
motherships rely on smaller catcher vessels to deliver unsorted catch 
for processing. These large processing vessels primarily operate in the 
Alaskan pollock (Theragra chalocogramma) fisheries, but move south to 
the WOC to fish for whiting between pollock seasons. While they 
participate in the pollock fishery, they are subject to 50 CFR part 
679, which specifies requirements related to observer services for the 
North Pacific (Alaskan) Groundfish fisheries. The Alaska observer 
requirements have recently been revised, a proposed rule was published 
at 67 FR 58452 (September 16, 2002) and a final rule was published at 
67 FR 72595 (December 6, 2002).
    Under the Alaska observer program (as specified in the final 
Alaskan rule), vessels are required to employ and pay for NMFS-
certified observers that are provided by third-party observer provider 
companies operating under permits administered by the NMFS Alaska 
Region. The Alaska program contains rigorous qualification and 
performance standards both for observers and observer provider 
companies, and also contains processes for sanctioning observer 
provider company permits, as well as certifying and decertifying 
observers.
    In addition to the large processing vessels that also participate 
in the Alaskan fisheries, it is anticipated that some smaller vessels 
may enter the at-sea processing sector of the Pacific whiting fishery 
in the near future. Severe constraints for the non-whiting Pacific 
Coast groundfish fishery are expected to motivate catcher vessel 
operators to seek new opportunities. At-sea processing of Pacific 
whiting may represent one such opportunity. As catcher vessels, such 
vessels are currently required to carry observers under the observer 
regulations for the groundfish fishery at 50 CFR 660.360. However, as 
processing vessels, they would not be covered by the WOC observer 
requirements unless this proposed rule is adopted.
    Since 1991, the large at-sea whiting processing vessels have each 
voluntarily carried at least one NMFS-trained observer to provide data 
for estimating total landed catch and discards; monitoring the 
attainment of annual groundfish allocations; estimating catch rates of 
prohibited species; and assessing stock conditions. NMFS has come to 
depend on data from whiting observers to provide information critical 
to conservation and management of the marine resources.
    In recent years, observer data has also become increasingly 
important for monitoring incidental catch of overfished species and 
Endangered Species Act (ESA) listed salmonids. Some of the overfished 
species are taken as bycatch in the Pacific whiting fishery. Pacific 
whiting itself was declared overfished in 2002.
    For the most part, the at-sea whiting fishery has been monitored 
satisfactorily under the voluntary program. However, there is concern 
about the lack of data that would be available if at-sea processing 
vessels no longer voluntarily carried observers. With this in mind, at 
its April 1999 meeting the Council recommended that NMFS proceed with a 
regulatory package to provide for a mandatory observer program in the 
at-sea processing portion of the whiting fishery for vessels more than 
125 ft (38.1 m) in length. The Council's recommendation would have 
covered all the processing vessels that were participating in the 
whiting fishery at that time. In addition, on April 12, 2002, a Federal 
magistrate concluded in Pacific Marine Conservation Council, Inc. v. 
Evans, 200 F. Supp.2d 1194 (N.D. Calif. 2002), that the Pacific Coast 
Groundfish FMP fails to establish a legally adequate bycatch reporting 
methodology because it fails to establish either a mandatory or 
adequate observer program. By establishing mandatory observer 
requirements for the at-sea processing sector of the groundfish 
fishery, this proposed rule in part responds to the court's ruling.
    To assure the integrity and availability of observer data in the 
future, NMFS now proposes to establish a mandatory observer program and 
mandatory observer coverage levels for all at-sea processing vessels in 
the Pacific Coast groundfish fishery. At-sea processing is currently 
confined to the Pacific whiting fishery. The proposed rule requires at-
sea processing vessels greater than 125 ft (38.1 m) in length to carry 
two NMFS-certified observers while participating in the groundfish 
fishery. Vessels less than 125 ft (38.1 m) in length are required to 
carry one observer. Observers must be obtained, and paid for by the 
vessels, through third-party observer provider companies operating 
under permits issued by the NMFS Alaska Region. The proposed rule also 
specifies certification and decertification requirements for observers 
that will be administered by the Northwest Region of NMFS in Seattle, 
Washington, and defines the responsibilities of observers and 
processing vessels.

Observers

    Observers are a uniformly trained group of technicians whose 
objective is fisheries data gathering. Observers are stationed aboard 
vessels to gather independent data about the fish that are taken, 
harvested, received or processed by the vessel. Standardized sampling 
procedures, defined by NMFS, are intended to provide statistically 
reliable data for fleetwide monitoring of the fishery. The primary 
duties of an observer include: estimating catch weights; determining 
catch composition; collecting length and weight measurements, and 
determining sex distribution.
    To be an observer, applicants are required to have a bachelor's 
degree in fisheries, wildlife biology, or a related

[[Page 53336]]

field of biology or natural resource management. Observers must be 
capable of performing strenuous physical labor, and of working 
independently under difficult conditions without direct supervision. To 
date, only individuals who have successfully completed at least one 
cruise as an observer in the federal groundfish fishery off Alaska have 
been deployed as observers in the whiting fishery.
    Under the existing voluntary observer program, hiring procedures, 
minimum qualifications, certification requirements, responsibilities, 
or prohibited behaviors are not defined by regulations. In addition, 
there are no provisions that allow NMFS to sanction individuals who are 
found to have violated program requirements or unsatisfactorily 
performed the duties of an observer.
    Defining certification requirements and prohibited behaviors will 
ensure that observers are qualified, and understand their 
responsibilities and duties. Establishing a suspension/decertification 
process will allow NMFS to deal with observer performance or behavioral 
issues while allowing observers an opportunity to file an 
administrative appeal prior to a final determination.
    In small fleets, such as the at-sea catcher-processor and 
mothership sectors of the whiting fishery, a single observer's data 
collection represents a substantial portion of the data available to 
manage the fishery. As a result, poor quality data may have a strong 
influence on fleetwide estimates of total catch by species. Although 
poor performance by observers has not been a significant problem to 
date, it is important to have procedures available to address 
performance concerns in order to maintain data integrity.

Vessels

    In recent years, approximately twelve processing vessels, have 
annually participated in the WOC at-sea whiting fishery. There are 
currently no regulations that require at-sea processors to provide safe 
and adequate working conditions for observers. Operational or 
mechanical barriers can easily prevent an observer from sampling 
according to the protocols defined by NMFS. The observer's ability to 
accomplish their duties, and thereby maintain data integrity, requires 
that the vessel provide: (1) notification of fish being brought aboard, 
(2) access to unsorted catch, (3) sufficient time to collect a sample, 
and (4) adequate space in which to collect and work up samples. When 
there are no regulatory requirements defining the conditions necessary 
for an observer to carry out their duties, individual operations may 
intentionally or inadvertently neglect to provide these necessities.
    Observer health and safety is of primary importance to NMFS. 
Instituting a mandatory observer program will ensure that the health 
and safety standards specified at 50 CFR 600.725 and 600.746 will apply 
to whiting observers. Under these regulations, owners and operators of 
fishing vessels that carry observers must comply with specific 
requirements in order to ensure that their vessels are adequate and 
safe for the purposes of carrying an observer. In addition to the 
national regulations, existing regulations specific to the treatment 
and well being of Pacific coast groundfish observers at 50 CFR 660.360 
will also apply to observers on board at-sea processing vessels.

Observer Coverage

    This proposed rule includes requirements for each at-sea processing 
vessel over 125 feet (38.1 m) in length to carry two observers while 
participating in the fishery and each at-sea processing vessel less 
than 125 feet (38.1 m) in length to carry one observer while 
participating in the fishery. Since 1991, all processing vessels 
participating in the at-sea whiting fishery have voluntarily carried at 
least one observer. Since mid-1997, when the Department of Justice 
approved allocation of quota shares among members of the Whiting 
Conservation Cooperative, all catcher-processors have generally carried 
two observers on a voluntary basis. Having two observers allows all or 
almost all hauls to be sampled. This level of sampling also provides 
the Whiting Conservation Cooperative members with additional data for 
managing their voluntary quota program among vessels that are members 
of the Cooperative.
    In contrast, the mothership sector did not begin carrying two 
observers until 2000. Beginning in 2000, most motherships in the sector 
chose to increase their observer coverage to obtain additional data for 
estimating incidental catch of salmon and overfished species. Since 
2001 all motherships have carried two observers. The treaty Indian 
tribal mothership, which processes catch taken by catcher vessels 
harvesting the Makah tribal whiting allocation, has typically carried 
two observers since 1996.
    Because the large whiting processing vessels process whiting twenty 
four hours per day, seven days a week, a single observer typically 
samples less than half of all hauls taken by an individual vessel. 
Requiring two observers would increase the number of observed hauls and 
is likely to increase the proportion of each individual haul that is 
sampled. The increased sampling coverage provided by two observers is 
necessary to increase the precision in estimates of incidentally caught 
species. Having more precise estimates is especially important for 
infrequently occurring species (those that are encountered in large 
numbers in only a few hauls or occurring in low numbers in most hauls) 
such as ESA listed salmon and overfished groundfish species.
    Requiring each vessel to carry two observers deviates from the 
Council's April 1999 recommendation to require one observer per 
processing vessel. As discussed above, requiring each processing vessel 
to carry two observers will provide the data necessary for monitoring 
the fishery. Because all processors have carried two observers since 
2001, this change from the Council's 1999 recommendation is not 
expected to be controversial nor to increase economic impacts upon the 
large processing vessels.
    The proposed rule also requires at-sea processing vessels less than 
125 ft (38.1 m) in length to carry one observer, should they choose to 
enter the processing sector of the fishery. This would be a new 
regulatory requirement for small vessels operating as processors. 
Currently, NMFS funds the observer program for similar sized catcher 
vessels, and the vessels themselves are not required to pay for 
anything but food and incidentals for the observers. Under this 
proposed rule the small processing vessels would be required to pay for 
their observer coverage.

Biological Impacts

    Requiring large processing vessels to carry two observers, and 
smaller vessels to carry one observer, is expected to improve the 
accuracy of catch projections and reduce the likelihood of 
overestimating or underestimating the harvested amounts of target and 
incidentally caught species. Data inaccuracies could affect the long-
term biological stability and yield of whiting or incidentally caught 
species. The ESA terms and conditions for incidental take of chinook 
salmon in the whiting fishery are also more likely to be met.

Socio-Economic Impacts

    NMFS believes this action will benefit management of the Pacific 
whiting fishery by providing information needed for enforcement of 
fishery regulations. Regulations at 15 CFR part 905 preclude

[[Page 53337]]

NMFS from using information collected by voluntarily carried observers 
for enforcing regulations under the Magnuson-Stevens Act, Marine Mammal 
Protection Act, or ESA. Without mandatory observer coverage 
requirements, NMFS ability to address serious violations of fishery 
regulations is hindered.
    At-sea processing vessels operating in the whiting fishery 
generally participate in the Alaska groundfish fisheries during the 
same calendar year, and are subject to Federal observer regulations at 
50 CFR 679.50. These vessels also participate in the restricted access 
fisheries in Alaska, which require certified observer sampling 
stations. In developing observer regulations for the WOC whiting 
fisheries, the Alaskan observer regulations have been duplicated as 
much as possible, recognizing differences in Pacific coast groundfish 
fisheries, management strategies and objectives, and uses of observer 
data. Requirements in this proposed rule are not expected to create a 
significant burden on any vessel that is in compliance with the Alaskan 
regulations.
    Because all large processors currently carry two observers 
voluntarily, mandating them to carry two observers is not expected to 
place an additional economic burden on processing vessels. The costs of 
carrying an observer during whiting season is about $300 per day. On 
average in 2001, each vessel fished for 31 days (ranging from 9-118 
days). At $300 per day, the average cost to the vessel for each 
observer was $9,300 (ranging from $3,950 - $36,650) during the 2001 
whiting season. In addition, training and debriefing costs would have 
been approximately $1,250 per observer. Applying $0.035 per pound (the 
average ex-vessel value of whiting to the Oregon shore-based fishery in 
July in 2001) to the average round weight of whiting processed per 
vessel in 2001 (7,705 mt) the cost of one observer would be on the 
order of 1.6 percent of the ex-vessel value of the whiting harvest, and 
would be double, 3.1 percent of the ex-vessel value of the whiting 
harvest if the vessel carried two observers.
    With respect to smaller vessels that might enter the fishery as 
processors, nothing is known about the economics of their potential 
operations. Observer costs would be fixed, and would be the same as for 
the larger vessels, except that smaller vessels would only be required 
to carry one observer.
    Observer certification requirements for the WOC whiting fishery 
have been patterned after those for the Alaskan groundfish fisheries 
contained in the Alaskan proposed rule at 67 FR 58452 (September 16, 
2002). Regulations defining standards of observer conduct, and 
providing for suspension and revocation of observer certifications are 
also consistent with those used for the Federal groundfish fishery off 
Alaska. Some minor adjustments have been made to adapt the regulations 
to the WOC fishery. Also, a simplified appeals procedure limited to the 
needs of this particular observer program has been provided. The Alaska 
appeals procedure is an omnibus procedure that encompasses numerous 
types of agency actions, and is more elaborate than is necessary to 
accommodate the needs of the WOC observer program. An expected annual 
cost burden of $8 per observer is the cost estimated for the time 
required for observers to prepare appeals of initial administrative 
decisions on certifications, suspensions, or decertifications. This is 
expected to affect, at a maximum, 5 percent of the WOC observers per 
year.
    Under this proposed rule, at-sea processing vessels will be 
required to obtain their observers from third-party observer provider 
companies that are subject to the Alaskan regulations at 50 CFR part 
679.50. These are comprehensive regulations that provide for permitting 
and permit sanctions against the observer provider companies. These 
provisions are not duplicated in the WOC regulations, the observer 
provider companies will be regulated under the Alaska regulations by 
the NMFS Alaska Region. Therefore, the proposed action refers to the 
Alaskan requirements for observer providers, but does not repeat them 
in the WOC regulations.

Classification

    This proposed rule has been determined to be not significant for 
the purpose of Executive Order 12866.
    NMFS prepared an IRFA that describes the economic impact this 
proposed rule, if adopted, would have on small entities. The IRFA is 
available from NMFS (see ADDRESSES). A summary of the IRFA follows:
    A description of the action, why it is being considered, and the 
legal basis for this action are contained in the SUMMARY and at the 
beginning of this section of this proposed rule. This proposed rule 
does not duplicate, overlap, or conflict with other Federal rules.
    Three alternative actions were considered and analyzed. The 
alternatives included: (1) the status quo, (2) one observer, observer 
and observer provider certification/decertification procedures, vessel 
standards, and prohibitions, and (3) two observers, observer and 
observer provider certification/decertification procedures, vessel 
standards, and prohibitions.
    Under the preferred alternative, processing vessels would be 
required to employ and pay for either one or two (depending on vessel 
length) NMFS-certified observers obtained from a third-party NMFS-
permitted observer provider company while participating in the Pacific 
Coast groundfish fishery. The action also specifies certification and 
decertification requirements for observers, and defines the 
responsibilities of observers and processing vessels. To the extent 
possible the proposed regulations are consistent with existing 
regulations for observers in the Alaska groundfish fisheries which are 
found at 50 CFR part 679. This has been done to minimize the burden on 
industry participants and to maintain a program that is similar to the 
existing voluntary program.
    Processing vessels would be required to employ and pay for either 
one or two (depending on vessel length) NMFS-certified observers 
obtained from a third-party NMFS-permitted observer provider company 
while participating in the Pacific Coast groundfish fishery.
    Due to biological concerns, a no observer alternative was not 
considered. If the whiting allocation is greatly exceeded or there are 
substantial discards of other species that go unmeasured, the long-term 
biological stability and yield of whiting or incidentally-caught 
species may be affected. Without accurate and timely information, the 
risk of error associated with fishery management decisions will 
increase.
    Under the status quo (Alternative 1), NMFS would continue to 
administer the program; vessels would continue to voluntarily carry 
NMFS-trained observers; businesses that are certified as observer 
providers for the Federal groundfish fishery off Alaska would continue 
to pay the direct costs associated with carrying the observers.
    The Council's April 1999 recommendation was to require each 
processing vessel to carry one observer (Alternative 2). However NMFS 
preferred option, Alternative 3, would require processing vessels equal 
to or greater than 125 ft (38.1 m) in length to carry two NMFS-
certified observers while participating in the groundfish fishery and 
vessels less than 125 ft (38.1 m) in length would be required to carry 
one observer. Having two observers on large processors increases the 
number of observed hauls and is likely to increase the proportion of 
each individual haul that is sampled. The increased sampling

[[Page 53338]]

coverage provided by two observers is necessary to increase the 
precision in estimates of incidentally caught species. Having more 
precise estimates is especially important for infrequently occurring 
species (those that are encountered in large numbers in only a few 
hauls or occurring in low numbers in most hauls) such as ESA listed 
salmon and overfished groundfish species. Since 2001, all processors 
have carried two observers and all processing vessels proposed to carry 
two observers. To date, no at-sea processors under 125 ft (38.1 m) or 
less have participated in the fishery.
    This proposed rule is necessary to satisfy the standardized bycatch 
reporting methodology requirements of the 1996 Sustainable Fisheries 
Act amendments to the Magnuson-Stevens Act. The Magnuson-Stevens Act at 
16 U.S.C. 1853(a)(11) requires each FMP to establish a standardized 
reporting methodology to assess the amount and type of bycatch 
occurring in the fishery. Further, at 16 U.S.C. 1853(b)(8), the 
Magnuson-Stevens Act provides that an FMP may require that one or more 
observers be carried aboard a vessel of the United States engaged in 
fishing for species that are subject to an FMP, for the purpose of 
collecting data necessary for the conservation and management of the 
fishery. The Pacific Coast Groundfish FMP provides that all catcher/
processors and at-sea processing vessels operating in the groundfish 
fishery may be required to accommodate on board observers for purposes 
of collecting scientific data. Amendment 13 to the FMP also provides 
that vessels may be required to pay for observers. This action would 
require processing vessels to employ and pay for either one or two 
(depending on vessel length) NMFS-certified observers obtained from a 
third-party NMFS-permitted observer provider company while 
participating in the Pacific Coast groundfish fishery. The action also 
specifies certification and decertification requirements for observers, 
and defines the responsibilities of observers and processing vessels. 
To the extent possible, the proposed regulations are consistent with 
existing regulations for observers in the Alaska groundfish fisheries, 
which are found at 50 CFR part 679. This has been done to minimize the 
burden on industry participants and to maintain a program that is 
similar to the existing voluntary program.
    In April 1999, the Council recommended moving forward with 
certification and decertification requirements for observer providers. 
Therefore, an alternative to regulations that would have defined the 
responsibilities of observer providers was included in the National 
Environmental Policy Act analysis. However, since April 1999, NMFS has 
discussed an alternative to regulations that would have the 
responsibilities of contracting companies via the Government 
contracting process with a statement of work or possibly a contract at 
``no-cost.'' The viability of a government procurement contract needs 
further research to determine if the contracting process would allow 
the use of such a mechanism for whiting observers.
    Approximately seven WOC groundfish catcher/processors and five 
mothership processors will be affected by this proposed rulemaking. The 
Small Business Administration guidelines for fishing firms uses a 
$3,000,000 gross revenue threshold to separate small from large 
operations. In the application to any one firm, the $3,000,000 
threshold considers income to all affiliated operations. NMFS records 
indicate that the gross annual revenue for each of the catcher/
processor and mothership operations operating in the WOC exceeds 
$3,000,000 and are therefore not considered small businesses. On 
average in 1998 the catcher/processor and mothership operations gross 
revenue was more than $15,000,000.
    Between fifteen and twenty catcher vessels participate in the 
fishery annually, these companies are all assumed to be small 
businesses. This rulemaking is expected to have minimal impacts on the 
business that catcher vessels conduct with the mothership processors. A 
separate final rule to establish an observer program for catcher 
vessels in the groundfish fishery off Washington, Oregon, and 
California was published on April 24, 2001 (66 FR 20609).
    Projected reporting, recordkeeping and compliance requirements 
include the information for an appeal to an observer decertification. 
This is a narrative document that is voluntarily submitted by observers 
and would not require special skills or training. The proposed rule 
does not specify recordkeeping requirements for observer providers; 
however NMFS assumes that information needed for training/briefing 
registration, monitoring deployment/logistics, scheduling debriefings, 
and identifying observer harassment, observer safety concerns, or 
observer performance problems will continue to be voluntarily submitted 
by observer providers.
    A catcher-processor or mothership 125 ft (38.1 m) in length or 
longer will be required to carry two NMFS-certified observers, and a 
catcher-processor or mothership shorter than 125 ft (38.1 m) in length 
will be required to carry one NMFS-certified observer. Requiring this 
level of observer coverage creates no additional burden to fishery 
participants than is currently incurred under status quo, because 
vessels currently carry two observers on a voluntary basis. Mandatory 
coverage provisions are expected to benefit the observer providers by 
insuring that each vessel will continue to carry two observers in the 
future as is currently done. Similarly, observers are expected benefit 
by having continued employment opportunities. Requiring 2 observers 
increases the number of hauls sampled and reduces the variability in 
total catch estimates. This is most important for estimating total 
catch of infrequently or rare occurring species which are incidentally 
caught with whiting. If smaller processing vessels (125 ft or less) 
(38.1 m) should enter the fishery in the future, one observer should be 
able to provide adequate sampling coverage. Therefore, the additional 
burden of two observers was determined to be unnecessary.
    Because most vessels voluntarily follow the Alaska observer 
requirements under status quo, maintaining these provisions while 
participating in the whiting fishery would not create a substantial 
burden on the individual processing vessels, providing they are in 
compliance with the Alaska regulations. The proposed sample station 
requirements are consistent with those required for the Alaska 
restricted access fisheries. In recent years, all of the processing 
vessels that participated in the whiting fishery have had certified 
observer sample stations for the restricted access fisheries in Alaska, 
therefore the WOC requirements are not expected to place an additional 
burden on these vessels.
    Requiring observers to adhere to the same standards as they are 
required to follow when they are deployed in Alaska creates only a 
small burden on the observers. The annual cost burden on whiting 
observers is expected to be $240 and are the costs related to the 
appeals process for certification, suspension and decertification, 
which are only expected to affect 5 percent of the WOC observers per 
year.
    This proposed rule contains collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). These requirements have 
been submitted to OMB for approval.
    Notwithstanding any other provisions of law, no person is required 
to respond to nor shall a person be subject to a

[[Page 53339]]

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.
    The estimated time for observers to obtain college transcripts and 
prepare a disclosure statement regarding criminal convictions is 15 
minutes per response. The estimated time for observers to submit 
documentary evidence or to petition a rejected certification, 
suspension or decertification decision is 4 hours per response. 
Although the proposed rule does not contain requirements specific to 
the observer contracting companies, these companies do submit 
information to NMFS. The estimated time for this collection is as 
follows: training/briefing registration lists: 7 minutes per response; 
notification of physical examinations: 2 minutes per response; time 
required for physical exam: 2 hours; lists of projected observer 
assignments: 7 minutes per response; weekly logistics reports: 7 
minutes per response; debriefing registration materials: 7 minutes per 
response; and reports on observer harassment, safety or performance 
concerns: 2 hours per response. All estimates of annual response time 
include time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection information.
    Public comment is sought regarding whether these proposed 
collections of information are necessary for the proper performance of 
the functions of the agency and whether the information shall have 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS (see ADDRESSES) and to OMB at the 
Office of Information and Regulatory Affairs, OMB, Washington, DC 20503 
(Attn: NOAA Desk Officer).
    NMFS issued Biological Opinions (BOs) under the ESA on August 10, 
1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 
1996, and December 15, 1999, pertaining to the effects of the 
groundfish fishery on chinook salmon (Puget Sound, Snake River spring/
summer, Snake River fall, upper Columbia River spring, lower Columbia 
River, upper Willamette River, Sacramento River winter, Central Valley, 
California coastal), coho salmon (Central California coastal, southern 
Oregon/northern California coastal, Oregon coastal), chum salmon (Hood 
Canal, Columbia River), sockeye salmon (Snake River, Odette Lake), and 
steelhead (upper, middle and lower Columbia River, Snake River Basin, 
upper Willamette River, central California coast, California Central 
Valley, south-central California, northern California, and southern 
California).
    This action implements a data collection program and is not 
expected to jeopardize the continued existence of any endangered or 
threatened species under the jurisdiction of NMFS, or result in the 
destruction or adverse modification of critical habitat or result in 
any adverse effects on marine mammals.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Administrative practice and procedure, American Samoa, Fisheries, 
Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, 
Reporting and recordkeeping requirements.

    Dated: August 28, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposed to amend 50 
CFR part 660 as follows:

PART 660--FISHERIES OFF WEST COAST STATES AND IN THE WESTERN 
PACIFIC

    1. The authority citation for part 660 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  660.302, add the following definitions ``Direct 
financial interest,'', IAD,'' and ``Observer Program Office,'' in 
alphabetical order to read as follows:

Sec.  660.302  Definitions.

* * * * *
    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 duties.
* * * * *
    IAD means Initial Agency Decision.
* * * * *
    Observer Program Office means the Observer Program Office of the 
Northwest Fishery Science Center, National Marine Fisheries Service, 
Seattle, Washington.
* * * * *
    3. In Sec.  660.303, paragraph (b) is revised as follows:

Sec.  660.303  Reporting and recordkeeping.

* * * * *
    (b) Any person who is required to do so by the applicable state law 
must make and/or file, retain, or make available any and all reports 
(i.e., logbooks, fish tickets, etc.) of groundfish harvests and 
landings containing all data, and in the exact manner, required by the 
applicable state law.
* * * * *
    4. Section 660.360 is amended as follows:
    A. The text of paragraph (c)(1) is added;
    B. The text of paragraph (d)(1)(i) is added;
    C. Paragraph (d)(3)(ii) is revised;
    D. Paragraph (d)(3)(iii) is added;
    E. The text of paragraphs (d)(9) and (e) is added;
    F. Paragraph (f) is revised;
    G. Paragraphs (g),(h), and (i) are removed;
    H. Paragraph (j) is redesignated as paragraph (g); and
    I. Newly redesignated paragraphs (g)(1)(iii) through (vii) are 
revised.
    The added and revised text reads as follows:

Sec.  660.360  Groundfish observer program.

* * * * *
    (c) Observer coverage requirements--(1) At-sea processors. A 
catcher-processor or mothership 125 ft (38.1 m) LOA or longer must 
carry two NMFS-certified observers, and a catcher-processor or 
mothership shorter than 125 ft (38.1 m) LOA must carry one NMFS-
certified observer, each day that the vessel is used to take, retain, 
receive, land, process, or transport groundfish.
* * * * *
    (d) * * *
    (1) * * *
    (i) At-sea processors. Equivalent to those provided for officers, 
engineers, foremen, deck-bosses or other management level personnel of 
the vessel.
* * * * *
    (3) * * *
    (ii) Functional equipment. Ensuring that the vessel's 
communications equipment that is used by observers to enter and 
transmit data, is fully functional and operational.
    (iii) Hardware and software. At-sea processing vessels must provide 
hardware and software pursuant to

[[Page 53340]]

regulations at 50 CFR 679.50(f)(1)(iii)(B)(1) and 50 CFR 679.50(f)(2), 
as follows:
    (A) Providing for use by the observer a personal computer in 
working condition that contains a full Pentium 120 Mhz or greater 
capacity processing chip, at least 32 megabytes of RAM, at least 75 
megabytes of free hard disk storage, a Windows 9x or NT compatible 
operating system, an operating mouse, and a 3.5-inch (8.9 cm) floppy 
disk drive. The associated computer monitor must have a viewable screen 
size of at least 14.1 inches (35.8 cm) and minimum display settings of 
600 x 800 pixels. The computer equipment specified in this paragraph 
(A) must be connected to a communication devise that provides a modem 
connection to the NMFS host computer and supports one or more of the 
following protocols: ITU V.22, ITU V.22bis, ITU V.32, ITU V.32bis, or 
ITU V.34. Processors that use a modem must have at least a 28.8kbs 
Hayes-compatible modem. The above-specified hardware and software 
requirements do not apply to processors that do not process groundfish.
    (B) NMFS-supplied Software. Ensuring that each at-sea processing 
ship that is required to have two observers aboard obtains the data 
entry software provided by the Regional Administrator for use by the 
observer.
* * * * *
    (9) At-sea transfers to or from processing vessels. Processing 
vessels must;
    (i) 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.
    (ii) Notify observers at least 3 hours before observers are 
transferred, such that the observers can collect personal belongings, 
equipment, and scientific samples.
    (iii) Provide a safe pilot ladder and conduct the transfer to 
ensure the safety of observers during transfers.
    (iv) Provide an experienced crew member to assist observers in the 
small boat or raft in which any transfer is made.
    (e) Procurement of observer services by at-sea processing vessels. 
Owners of vessels required to carry observers under paragraph (c)(1) of 
this section must arrange for observer services from an observer 
provider permitted by the North Pacific Groundfish Observer Program 
under 50 CFR 679.50(i), except that:
    (1) Vessels are required to procure observer services directly from 
NMFS when NMFS has determined and given notification that the vessel 
must carry NMFS staff or an individual authorized by NMFS in lieu of an 
observer provided by a permitted observer provider.
    (2) Vessels are required to procure observer services directly from 
NMFS and a permitted observer provider when NMFS has determined and 
given notification that the vessel must carry NMFS staff or individuals 
authorized by NMFS, in addition to an observer provided by a permitted 
observer provider.
    (f) Observer certification and responsibilities--(1) Observer 
Certification--(i) Applicability. Observer certification authorizes an 
individual to fulfill duties as specified in writing by the NMFS 
Observer Program Office while under the employ of a NMFS-permitted 
observer provider and according to certification endorsements as 
designated under paragraph (f)(1)(v) of this section.
    (ii) Observer certification official. The Regional Administrator 
(or a successor) will designate a NMFS observer certification official 
who will make decisions for the Observer Program Office on whether to 
issue or deny observer certification.
    (iii) Certification requirements. NMFS will certify individuals 
who:
    (A) Are employed by an observer provider company permitted pursuant 
to 50 CFR 679.50 at the time of the issuance of the certification;
    (B) Have provided, through their observer provider,:
    (1) Information identified by NMFS at 50 CFR 679.50(i)(2) 
(x)(A)(1)(iii) and (iv); and
    (2) Information identified by NMFS at 50 CFR 679.50(1)(2)(i)(C) 
regarding the observer candidate's health and physical fitness for the 
job;
    (C) Meet all education and health standards as specified in 50 CFR 
679.50(i)(2)(i)(A) and (1)(2)(i)(C), respectively; and
    (D) Have successfully completed NMFS-approved training as 
prescribed by the Observer Program.
    (1) Successful completion of training by an observer applicant 
consists of meeting all attendance and conduct standards issued in 
writing at the start of training; meeting all performance standards 
issued in writing at the start of training for assignments, tests, and 
other evaluation tools; and completing all other training requirements 
established by the Observer Program.
    (2) If a candidate fails training, he or she will be notified in 
writing on or before the last day of training. The notification will 
indicate: the reasons the candidate failed the training; whether the 
candidate can retake the training, and under what conditions, or 
whether, the candidate will not be allowed to retake the training. If a 
determination is made that the candidate may not pursue further 
training, notification will be in the form of an IAD denying 
certification, as specified under paragraph (f)(1)(iv)(A) of this 
section.
    (E) Have not been decertified under paragraph (f)(3) of this 
section, or pursuant to 50 CFR 679.50.
    (iv) Agency determinations on observer certification--(A) Denial of 
a certification. The NMFS observer certification official will issue a 
written IAD denying observer certification when the observer 
certification official determines that a candidate has unresolvable 
deficiencies in meeting the requirements for certification as specified 
in paragraph (f)(1)(iii) of this section. The IAD will identify the 
reasons certification was denied and what requirements were deficient.
    (B) Appeals. A candidate who receives an IAD that denies his or her 
certification may appeal pursuant to paragraph (f)(4) of this section. 
A candidate who appeals the IAD will not be issued an interim observer 
certification, and will not receive a certification unless the final 
resolution of that appeal is in the candidate's favor.
    (C) Issuance of an observer certification. An observer 
certification will be issued upon determination by the observer 
certification official that the candidate has successfully met all 
requirements for certification as specified in paragraph (f)(1)(iii) of 
this section.
    (v) Endorsements. The following endorsements must be obtained, in 
addition to observer certification, in order for an observer to deploy.
    (A) Certification training endorsement. A certification training 
endorsement signifies the successful completion of the training course 
required to obtain observer certification. This endorsement expires 
when the observer has not been deployed and performed sampling duties 
as required by the Observer Program Office for a period of time, 
specified by the Observer Program, after his or her most recent 
debriefing. Renewal can be obtained by the observer successfully 
completing certification training once more. Observers will be notified 
of any changes to the endorsement expiration period prior to that 
change taking place.
    (B) Annual general endorsements. Each observer must obtain an 
annual general endorsement to their certification prior to his or her 
first deployment within any calendar year

[[Page 53341]]

subsequent to a year in which a certification training endorsement is 
obtained. To obtain an annual general endorsement, an observer must 
successfully complete the annual briefing, as specified by the Observer 
Program. All briefing attendance, performance, and conduct standards 
required by the Observer Program must be met.
    (C) Deployment endorsements. Each observer who has completed an 
initial deployment after certification or annual briefing must receive 
a deployment endorsement to their certification prior to any subsequent 
deployments for the remainder of that year. An observer may obtain a 
deployment endorsement by successfully completing all pre-cruise 
briefing requirements. The type of briefing the observer must attend 
and successfully complete will be specified in writing by the Observer 
Program during the observer's most recent debriefing.
    (D) Pacific whiting fishery endorsements. A Pacific whiting fishery 
endorsement is required for purposes of performing observer duties 
aboard vessels that process groundfish at sea in the Pacific whiting 
fishery. A Pacific whiting fishery endorsement to an observer's 
certification may be obtained by meeting the following requirements:
    (1) Be a prior NMFS-certified observer in the groundfish fisheries 
off Alaska or the Pacific Coast, unless an individual with this 
qualification is not available;
    (2) Receive an evaluation by NMFS for his or her most recent 
deployment (if any) that indicated that the observer's performance met 
Observer Program expectations for that deployment;
    (3) Successfully complete a NMFS-approved observer training and/or 
whiting briefing as prescribed by the Observer Program; and
    (4) Comply with all of the other requirements of this section.
    (2) Standards of observer conduct--(i) Limitations on conflict of 
interest.
    (A) Observers:
    (1) Must not have a direct financial interest, other than the 
provision of observer services, in a North Pacific fishery managed 
pursuant to an FMP for the waters off the coast of Alaska, or in a 
Pacific Coast fishery managed by either the state or Federal 
governments in waters off Washington, Oregon, or California, including 
but not limited to,
    (i) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside or floating stationary processor facility involved in 
the catching, taking, harvesting or processing of fish,
    (ii) Any business involved with selling supplies or services to any 
vessel, shoreside or floating stationary processing facility; or
    (iii) Any business involved with purchasing raw or processed 
products from any vessel, shoreside or floating stationary processing 
facilities.
    (2) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who either conducts activities that are regulated by 
NMFS or 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 or 
floating stationary processing facility owned or operated by a person 
who previously employed the observers.
    (4) May not solicit or accept employment as a crew member or an 
employee of a vessel, shoreside processor, or stationary floating 
processor while employed by an observer provider.
    (B) Provisions for renumeration of observers under this section do 
not constitute a conflict of interest.
    (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 perform their assigned duties as described in 
the Observer Manual or other written instructions from the Observer 
Program Office.
    (B) Observers must accurately record their sampling data, write 
complete reports, and report accurately any observations of suspected 
violations of regulations relevant to conservation of marine resources 
or their environment.
    (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) Violating the drug and alcohol policy established by and 
available from the Observer Program;
    (2) Engaging in the use, possession, or distribution of illegal 
drugs; or
    (3) Engaging in physical sexual contact with personnel of the 
vessel or processing facility to which the observer is assigned, or 
with any vessel or processing plant personnel who may be substantially 
affected by the performance or non-performance of the observer's 
official duties.
    (3) Suspension and Decertification--(i) Suspension and 
decertification review official. The Regional Administrator (or a 
designee) will designate an observer suspension and decertification 
review official(s), who will have the authority to review observer 
certifications and issue initial administrative determinations of 
observer certification suspension and/or decertification.
    (ii) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification 
proceedings against an observer:
    (A) When it is alleged that the observer has committed any acts or 
omissions of any of the following:
    (1) Failed to satisfactorily perform the duties of observers as 
specified in writing by the NMFS Observer Program; or
    (2) Failed to abide by the standards of conduct for observers as 
prescribed under paragraph (f)(2) of this section;
    (B) Upon conviction of a crime or upon entry of a civil judgment 
for:
    (1) Commission of fraud or other violation in connection with 
obtaining or attempting to obtain certification, or in performing the 
duties as specified in writing by the NMFS Observer Program;
    (2) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, or 
receiving stolen property;
    (3) Commission of any other offense indicating a lack of integrity 
or honesty that seriously and directly affects the fitness of 
observers.
    (iii) Issuance of initial administrative determination. Upon 
determination that suspension or decertification is warranted under 
paragraph (f)(3)(ii) of this section, the suspension/decertification 
official will issue a written IAD to the observer via certified mail at 
the observer's most current address provided to NMFS. The IAD will 
identify whether a certification is suspended or revoked and will 
identify the specific reasons for the action taken. If the IAD issues a 
suspension for an observer certification, the terms of the suspension 
will be specified. Suspension or decertification is effective 
immediately as of the date of issuance, unless the suspension/
decertification official notes a compelling reason for maintaining 
certification for a specified period and under specified conditions.

[[Page 53342]]

    (iv) Appeals. A certified observer who receives an IAD that 
suspends or revokes his or her observer certification may appeal 
pursuant to paragraph (f)(4) of this section.
    (4) Appeals. (i) Decisions on appeals of initial administrative 
decisions denying certification to, or suspending, or decertifying, an 
observer, will be made by the Regional Administrator (or designated 
official).
    (ii) Appeals decisions shall be in writing and shall state the 
reasons therefor.
    (iii) An appeal must be filed with the Regional Administrator 
within 30 days of the initial administrative decision denying, 
suspending, or revoking the observer's certification.
    (iv) The appeal must be in writing, and must allege facts or 
circumstances to show why the certification should be granted, or 
should not be suspended or revoked, under the criteria in this section.
    (v) Absent good cause for further delay, the Regional Administrator 
(or designated official) will issue a written decision on the appeal 
within 45 days of receipt of the appeal. The Regional Administrator's 
decision is the final administrative decision of the Department as of 
the date of the decision.
    (g) * * *
    (1) * * *
    (iii) Minimum work space aboard at-sea processing vessels. The 
observer must have a working area of 4.5 square meters, including the 
observer's sampling table, for sampling and storage of fish to be 
sampled. The observer must be able to stand upright and have a work 
area at least 0.9 m deep in the area in front of the table and scale.
    (iv) Table aboard at-sea processing vessels. The observer sampling 
station must include a table at least 0.6 m deep, 1.2 m wide and 0.9 m 
high and no more than 1.1 m high. The entire surface area of the table 
must be available for use by the observer. Any area for the observer 
sampling scale is in addition to the minimum space requirements for the 
table. The observer's sampling table must be secured to the floor or 
wall.
    (v) Diverter board aboard at-sea processing vessels. The conveyor 
belt conveying unsorted catch must have a removable board (diverter 
board) to allow all fish to be diverted from the belt directly into the 
observer's sampling baskets. The diverter board must be located 
downstream of the scale used to weigh total catch. At least 1 m of 
accessible belt space, located downstream of the scale used to weight 
total catch, must be available for the observer's use when sampling.
    (vi) Other requirement for at-sea processing vessels. The sampling 
station must be in a well-drained area that includes floor grating (or 
other material that prevents slipping), lighting adequate for day or 
night sampling, and a hose that supplies fresh or sea water to the 
observer.
    (vii) Observer sampling scale. The observer sample station must 
include a NMFS-approved platform scale (pursuant to requirements at 50 
CFR 679.28(d)(5) with a capacity of at least 50 kg located within 1 m 
of the observer's sampling table. The scale must be mounted so that the 
weighing surface is no more than 0.7 m above the floor.
* * * * *
[FR Doc. 03-22570 Filed 9-9-03; 8:45 am]
BILLING CODE 3510-22-S

 
 

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