[Federal Register: January 13, 2004 (Volume 69, Number 8)]
[Rules and Regulations]
[Page 1951-1953]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja04-14]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 030818203-3328-02; I.D. 071503D]
RIN 0648-AR32
Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish
Observer Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to amend regulations governing the
North Pacific Groundfish Observer Program (Observer Program). This
action is necessary to provide added flexibility in the deployment of
observers in the Exclusive Economic Zone (EEZ) off the coast of Alaska.
This action is intended to ensure continued collection of high quality
observer data. It is necessary to support the management objectives of
the Fishery Management Plan for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area and the Fishery Management Plan for
Groundfish of the Gulf of Alaska (FMPs) and to promote the goals and
objectives contained in those FMPs.
DATES: Effective on February 12, 2004.
ADDRESSES: Copies of the Final Regulatory Flexibility Analysis (FRFA)
prepared for this regulatory action and the Environmental Assessment
(EA) prepared for the Extension of the Interim North Pacific Groundfish
Observer Program beyond 2002 may be obtained from the Alaska Region,
NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228 or
jason.anderson@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska
(GOA) and the Bering Sea and Aleutian Islands Management Area (BSAI) in
the EEZ under the FMPs. The North Pacific Fishery Management Council
(Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). Regulations
implementing the FMPs appear at 50 CFR part 679. General regulations
that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
The Council adopted, and NMFS approved and implemented, the Interim
Groundfish Observer Program (Interim Program) in 1996 (61 FR 56425,
November 1, 1996), which superseded the North Pacific Fisheries
Research Plan (Research Plan). The requirements of the Interim Program
were extended through 1998 (62 FR 67755, December 30, 1997), again
through 2000 (63 FR 69024, December 15, 1998), again through 2002 (65
FR 80381, December 21, 2000), and again through 2007 (67 FR 72595,
December 6, 2002). The Interim Program provides the regulatory
framework for the collection by observers of data necessary for the
conservation and management of the groundfish fisheries managed under
the FMPs. Further, it authorizes mandatory observer coverage
requirements for vessels and shoreside processors, and establishes
vessel, processor, and observer provider responsibilities relating to
the Observer Program.
A proposed rule to amend regulations governing housing requirements
for observers deployed in the groundfish fisheries governed by the FMPs
was published in the Federal Register on September 3, 2003 (68 FR
52378), for a 30-day public review and comment period which ended
October 3, 2003. NMFS received one letter of comment on the proposed
rule, which is summarized and responded to in Response to Comments,
below.
A final rule to amend regulations governing observer coverage
requirements for vessels and shoreside processors in the North Pacific
Groundfish Fisheries was published in the Federal Register on January
7, 2003 (68 FR 715). The intent of the final rule was to address
concerns about: (1) Shoreside processor observer coverage; (2)
shoreside processor observer logistics; (3) observer coverage
requirements for vessels fishing with groundfish pot gear; and (4)
confidentiality of observer personal information. This final rule is
intended to correct and clarify specific provisions of the January 7
rule.
Comments and Responses
One letter of comment was received on the proposed rule that
contained four unique comments. Comments are summarized and responded
to here.
Comment 1: The public should be able to comment on proposed rules
through email.
Response: NMFS will begin accepting email comments on February 2,
2004.
Comment 2: Honest observers should be hired and not work in
collusion with fishermen.
Response: NMFS has determined that reasonable housing for observers
facilitates their ability to furnish unbiased data. Further,
regulations at Sec. 679.50(j)(2)(i) describe limitations on conflict
of interest. These include requirements that observers must have no
direct financial interest in a North Pacific fishery managed by an FMP
and may not serve on a vessel owned or operated by someone who had
previously employed the observer. Further, regulations at Sec.
679.50(j)(2)(ii) require observers to accurately sample
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catch and record data according to the Observer Manual. Observers who
do not perform duties according to the Observer Manual or who knowingly
record information which is not factual are subject to actions which
include suspension, decertification, and/or prosecution.
Comment 3: NMFS should employ video technology to monitor shipboard
and dockside operations.
Response: To the extent video technology is related to improved
observer working conditions, NMFS agrees. In addition, NMFS is
researching alternative technology which may be suitable for monitoring
components of the fisheries. The International Pacific Halibut
Commission recently completed a study examining the feasibility of
electronic monitoring systems in the Pacific halibut longline fleet
operating off the coast of Alaska. If alternative technologies are
feasible, efficient, and provide high quality data, then NMFS may
incorporate such technology in future monitoring programs.
Comment 4: NMFS should hire undercover investigators to keep
fishermen and observers honest.
Response: The NMFS Office of Law Enforcement (OLE) is charged with
enforcement of the laws and regulations which govern fisheries off the
coast of Alaska. They use various methods in their enforcement program,
including undercover operations. Undercover operations are mainly used
when other methods would not work for a specific situation, and are not
undertaken lightly.
Observer Deployment Logistics
This final rule amends the observer provider responsibility
regulations to allow an observer to be housed: (1) On a stationary
floating processor; (2) on a vessel he or she will be assigned to; (3)
on a vessel for 24 hours following the completion of an offload when
the observer has duties and is scheduled to disembark; and (4) on a
vessel for 24 hours following the vessel's arrival in port when the
observer is scheduled to disembark. In addition, this final rule makes
two additional revisions to the proposed rule.
Subsequent to publication of the January 7 final rule, Observer
Program staff received comments from two separate observer providers
concerned with their ability to effectively deploy observers under the
current regulations at Sec. 679.50(i)(2)(vi). In order to account for
potential logistics problems, both observer providers described a
common practice whereby observers are flown to their port of departure
3 or 4 days before the vessel is scheduled to depart. Flight
cancellations and delays due to weather are common, so fishing
companies often request that observers arrive prior to their
anticipated departure date.
Observers often arrive at their assigned vessel and encounter
delays in the vessel's departure. Vessel operators often are unable to
predict exactly when they will be able to leave port for a fishing trip
due to weather, mechanical failure, labor disputes, and other
unanticipated problems. These delays result in periods of time when an
observer may be housed on an assigned vessel that is not traveling to
fishing grounds or actively involved in fishing. These circumstances
were not considered when promulgating the January 7 final rule.
Current regulations at Sec. 679.50(i)(2)(vi) prevent observers
from being housed on an assigned vessel until 24 hours before its
departure time. The intent of regulations at Sec. 679.50(i)(2)(vi) is
to avoid lodging an observer aboard a vessel on which he or she is not
working or currently assigned. This action clarifies NMFS' intent by
removing the 24 hour restriction and provides fishing operations
increased flexibility to deal with these uncertainties, and observer
providers improved opportunities to serve their customers.
This action also provides for housing observers aboard stationary
floating processors. Current regulations at Sec. 679.50(i)(2)(vi)(B)
govern the housing requirements for observers assigned to shoreside
processing facilities and for observers between vessel or shoreside
assignments while still under contract to an observer provider.
Observers commonly are deployed to stationary floating processors and
catcher vessels delivering to stationary floating processors.
Stationary floating processors often are in remote locations and
observers commonly are housed on these stationary floating processors
before, after, and in between catcher vessel assignments and while
assigned to a stationary floating processor. This action extends the
housing requirements to observers being deployed in these
circumstances. Given the remoteness of these stationary floating
processors, NMFS considers the practice of housing observers deployed
to catcher vessels delivering to stationary floating processors
reasonable. Accommodation requirements at Sec. 679.50(i)(2)(vi)(B) for
observers being housed on stationary floating processors are the same
as those for a licensed hotel, motel, bed and breakfast, or other
shoreside accommodation.
Further, this action clarifies two housing situations where the
observer is scheduled to disembark the vessel. First, the observer
could be housed on a vessel for up to 24 hours following the completion
of an offload when the observer has duties and is scheduled to
disembark after completing those duties. This accounts for assignments
to catcher boats that target pollock, where the observer is required to
monitor the offload for prohibited species. Second, the observer could
be housed on a vessel for up to 24 hours following the vessel's arrival
in port where the observer is scheduled to disembark. This accounts for
assignments to all other vessels where the observer's duties are
complete upon arrival to port.
This action amends current regulations at Sec. 679.50(i)(2)(vi)(D)
by removing unnecessary text. Existing regulations require that
observers be provided housing within the standards outlined in the
regulations. Therefore, alternative housing must be arranged if these
standards are not met. The ancillary conditions previously contained in
subparagraph (D) were interpretive and their removal does not change
the intent of NMFS.
NMFS identified two necessary changes from the proposed rule to the
final rule. Section 679.50(i)(2)(vi)(A)(2) is changed to provide
consistency with terminology used in Sec. 679.50(i)(2)(vi)(B) and (C).
By changing text to require observer providers to provide lodging, per
diem, and any other necessary services to observers assigned to vessels
or shoreside or stationary floating processing facilities, the
regulations are clarified and consistent with NMFS intent.
During review of the final rule, NMFS determined that Sec.
679.50(i)(2)(vi)(C)(1) of the proposed rule was ambiguous. NMFS
recognizes that there may be logistical difficulties in the deployment
of an observer and departure of the vessel. Further, NMFS determined
that vessels would only pay for an observer for those days necessary to
coordinate the observer's logistics and the vessel's departure plans.
This text is modified to allow an observer to be housed on a vessel to
which he or she is assigned prior to that vessel's departure from port.
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA. The FRFA incorporates the IRFA and a summary
of the analyses completed to support the action. A copy of this
analysis is available from the NMFS (see ADDRESSES). The need for, and
objectives of, this action are described
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above in the preamble and are not repeated here.
The proposed rule was published in the Federal Register on
September 3, 2003 (68 FR 52378). An Initial Regulatory Flexibility
Analysis (IRFA) was prepared for the proposed rule, and described in
the classifications section of the preamble to the rule. The public
comment period ended on October 3, 2003. No comments were received on
the IRFA.
For this action, the small regulated entities include: (1) Fishing
vessels with observer coverage requirements and total gross annual
revenues of less than $3.5 million from all the operation's commercial
activity taken together; (2) processing facilities with observer
coverage requirements and fewer than 500 employees, when all their
affiliated operations, worldwide, are combined; (3) the Community
Development Quota groups; and (4) observer providers. Therefore, small
regulated entities could number about 350, although this number
declines to about 215 if the catcher vessels in the American Fisheries
Act pollock cooperatives are excluded, as the Regulatory Flexibility
Act ``affiliation'' criteria suggest they appropriately be.
This regulation does not impose new recordkeeping or reporting
requirements on the regulated small entities.
The preferred alternative does not have any adverse impacts on
small entities. The effective impacts of the preferred alternative
relative to the status quo are to (1) clarify the regulatory basis for
the current practice of housing catcher vessel observers on floating
processors between deployments, and (2) provide fishing operations and
observer providers with the ability to efficiently deal with the
uncertainties associated with departure from port, such as mechanical
problems or adverse weather conditions, in a manner fully compliant
with regulations. In general, the information on operating behavior and
costs that would make it possible to predict how fishermen and markets
will react to the new regulation, and how their costs and revenues will
change, is not available. However, in qualitative terms, the impacts of
the preferred alternative are beneficial.
The preferred alternative provides fishing operations with planning
flexibility to deal with these uncertainties, and to give observer
providers improved opportunities to serve their customers. The action
would have an effect equivalent to the lengthening of a fishing trip.
Observers would receive normal contracted compensation for the
additional days. Regulations currently require vessels to provide food
and accommodations to observers assigned to that vessel, just as they
would for any other crew member. Since observers may not be housed on
vessels they are not assigned to, vessels have an incentive to hire
observers (and feed them) for only those days necessary for
coordinating their departure from port.
The status quo is the alternative to the preferred action. The
status quo was rejected because it would not accomplish the objectives
of the action. This alternative decreases the observer provider's
ability to effectively deploy observers. In order to account for
possible weather delays and other potential logistics problems,
observer providers often send observers to their port of departure
prior to their assigned vessel's scheduled departure. The uncertainties
associated with departure from port and the economic costs associated
with this uncertainty make this alternative less desirable than the
preferred alternative. Because this alternative results in adverse
impacts to small entities, this alternative was rejected.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: January 7, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 679 is amended as
follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 et seq.
0
2. In Sec. 679.50, paragraphs (i)(2)(vi)(A)(2), (B), (C), and (D) are
revised to read as follows:
Sec. 679.50 Groundfish Observer Program (effective through 12/31/07).
* * * * *
(i) * * *
(2) * * *
(vi) * * *
(A) * * *
(2) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels or shoreside or stationary
floating processing facilities.
(B) Except as provided in paragraphs (i)(2)(vi)(C) and
(i)(2)(vi)(D) of this section, each observer deployed to a shoreside
processing facility or stationary floating processor, and each observer
between vessel, stationary floating processor or shoreside assignments
while still under contract with a permitted observer provider, shall be
provided with accommodations at a licensed hotel, motel, bed and
breakfast, stationary floating processor, or other shoreside
accommodations for the duration of each shoreside assignment or period
between vessel or shoreside assignments. Such accommodations must
include an assigned bed for each observer and no other person may be
assigned that bed for the duration of that observer's stay.
Additionally, no more than four beds may be in any room housing
observers at accommodations meeting the requirements of this section.
(C) An observer under contract may be housed on a vessel to which
he or she is assigned:
(1) Prior to their vessel's initial departure from port;
(2) For a period not to exceed twenty-four hours following the
completion of an offload when the observer has duties and is scheduled
to disembark; or
(3) For a period not to exceed twenty-four hours following the
vessel's arrival in port when the observer is scheduled to disembark.
(D) During all periods an observer is housed on a vessel, the
observer provider must ensure that the vessel operator or at least one
crew member is aboard.
* * * * *
[FR Doc. 04-696 Filed 1-12-04; 8:45 am]
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