[Federal Register: September 30, 2009 (Volume 74, Number 188)]
[Proposed Rules]
[Page 50155-50161]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se09-13]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 080228322-8338-01]
RIN 0648-AW24
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: Proposed rule; request for comments.
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SUMMARY: NMFS proposes this rule to amend regulations supporting the
North Pacific Groundfish Observer Program (Observer Program). This
action is necessary to improve the operational efficiency of the
Observer Program, as well as improve the catch, bycatch, and biological
data provided by observers for conservation and management of the North
Pacific groundfish fisheries, including that provided through
scientific research activities. The proposed rule is intended to
promote the goals and objectives of the Fishery Management Plan (FMP)
for Groundfish of the Bering Sea and Aleutian Islands Management Area
and the FMP for Groundfish of the Gulf of Alaska.
DATES: Written comments must be received by October 30, 2009
ADDRESSES: Send comments to Sue Salveson, Assistant Regional
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS,
Attn: Ellen Sebastian. You may submit comments, identified by ``RIN
0648-AW24,'' by any one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal website at http://
www.regulations.gov.
Mail: P.O. Box 21668, Juneau, AK 99802.
Fax: 907-586-7557.
Hand delivery to the Federal Building: 709 West 9th
Street, Room 420A, Juneau, AK.
All comments received are a part of the public record and will
generally be posted to http://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe portable document file (pdf) formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to NMFS (see ADDRESSES) and by e-mail to
David_Rostker@omb.eop.gov or by fax to 202-395-7285.
Copies of the Regulatory Impact Review/Initial Regulatory
Flexibility Analysis (RIR/IRFA) prepared for this action may be
obtained from the NMFS Alaska Region website at http://
alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Brandee Gerke, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish fisheries in the Exclusive
Economic Zone (EEZ) of the Bering Sea and Aleutian Islands Management
Area (BSAI) and Gulf of Alaska (GOA) under the FMP for Groundfish of
the BSAI and the FMP for Groundfish of the GOA, respectively. The North
Pacific Fishery Management Council (Council) prepared these FMPs
pursuant to the Magnuson-Stevens Fishery Conservation and Management
Act (MSA), 16 U.S.C. 1851-1891d. 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 Observer Program provides the administrative framework for
observers to obtain information necessary for the conservation and
management of the groundfish fisheries managed under the FMPs.
Regulations implementing the Observer Program at Sec. 679.50 require
observer coverage aboard catcher vessels, catcher/processors,
motherships, and shoreside and stationary floating processors that
participate in the groundfish fisheries off Alaska. These regulations
also establish vessel, processor, and observer provider
responsibilities relating to the Observer Program.
[[Page 50156]]
This proposed rule would amend regulations at Sec. 679.2 and Sec.
679.50 applicable to observer providers, observers, and industry
required to carry observers. The proposed regulatory amendments are
organized under six issues and would: remove regulations that are
unnecessary, impractical to apply, or are considered to be
unenforceable; revise regulations to explicitly allow observer
providers to provide observers for exempted fishing permit-based and
scientific research permit-based activities; add regulations to
prohibit activities that result in non-representative fishing behavior
from counting toward an observer coverage day; require observer
providers to report to NMFS information about the cost of providing
observers; and establish a deadline when observer providers must submit
to NMFS, an exemplary copy of each of type of contract they enter into
with observers and the fishing industry to NMFS. The Council selected a
preferred alternative for each of these issues at its April 2008
meeting. This action is necessary to improve the operational efficiency
of the existing Observer Program, as well as to improve the catch,
bycatch, and biological data provided by observers for conservation and
management of the North Pacific groundfish fisheries, including those
provided through scientific research activities.
Issue 1: Observer Certification and Observer Provider Permitting
Process
Persons seeking to provide observer services or work as an observer
under Sec. 679.50 must obtain an observer provider permit or observer
certification, respectively, from NMFS. The granting or denial of
observer provider permits and observer certifications are discretionary
agency actions. This proposed rule expands NMFS' discretion to consider
additional needs and objectives of the Observer Program and other
relevant factors when considering whether or not to issue a new
observer provider permit or observer certification.
Existing regulations at Sec. 679.50 obligate NMFS to grant a
provider permit to an applicant who submits a complete application,
meets narrowly-defined criteria regarding criminal history and past
performance on federal contracts, and has no conflict(s) of interest
with the fishing industry. These regulations prevent NMFS from
exercising its discretion to not issue permits when other concerns or
inconsistencies with the Observer Program's goals and objectives have
been identified in a permit application. This proposed rule would
expand NMFS' discretion by broadening the conditions the observer
provider permit application review board may consider in deciding
whether or not to issue a new permit. Moreover, this proposed rule
would remove the application evidentiary period at Sec.
679.50(i)(1)(iv). This would allow NMFS to tailor a time period in
which an applicant may provide additional information on a case-by-case
basis.
Current regulations at Sec. 679.50(j)(1)(iv) provide an appeal
forum to a candidate for observer certification who fails training to
the extent that the program certification official determines that the
candidate demonstrates ``unresolvable deficiencies'' and should not be
allowed to re-enter a subsequent training class. Most candidates who
fail the initial training are permitted to retake it. However, in the
rare instance that a candidate's performance is deficient to the extent
he or she is unlikely to improve performance, the certification
official can issue an Initial Agency Decision (IAD) denying readmission
into a training class. The same appeal forum is provided at Sec.
679.50(i)(1)(v) for an observer provider applicant who is denied an
observer provider permit. As explained in the RIR/IRFA for this
proposed rule, the appeal forum at Sec. 679.50(j)(1)(iv) has only been
activated on two occasions and has not resulted in the subsequent
certification of an observer candidate. One appeal resulted in the
decision that an observer could retake training; however, that
candidate never returned to training. When it has been activated, the
appeal process requires both Observer Program staff and NOAA General
Counsel to devote a substantial amount of time to the appeal. Moreover,
the appellate forum process can consume up to a year before an appeal
is resolved, a situation that does not facilitate an observer
candidate's interest in obtaining training and a certification for
employment within reasonable time frame. Therefore, NMFS proposes to
remove the appeal forum provided for observer candidates who fail
training and who are notified that they may not retake the course, and
for observer provider applicants whose permit applications are denied
to better allocate scarce agency resources. This proposed rule does not
affect the ability of observers and observer providers to appeal any
decision to revoke or sanction a certification or permit that is
already issued.
Issue 2: Observer Conduct
Current regulations at Sec. 679.50(j)(2)(ii)(D) attempt to control
observer conduct so that certified observers present themselves
professionally on vessels, at plants, at NMFS sites, and in fishing
communities. NMFS has found these regulations impractical to apply and
potentially unenforceable. For example, for NMFS to decertify an
observer who has violated the Observer Program's drug and alcohol
policy, or the regulation that prohibits observers from engaging in
physical sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, NMFS must establish
connection between the unsanctioned behavior and the collection of
reliable fisheries data. Proving that such a connection exists,
especially in cases in which the unsanctioned behavior occurs outside
of the workplace, can be very difficult. Moreover, some of the observer
conduct regulations are vague and impractical to apply. For example,
current regulations require observers to ``refrain from engaging in any
activities that would reflect negatively on their image as professional
scientists, on other observers, or on the Observer Program as a
whole.'' (50 CFR 679.50(j)(2)(ii)(D).). The regulations offer observers
no guidance as to the types of behavior that is prohibited, nor does
NMFS have any practical means to enforce adherence to these vague
standards.
Due to the impracticality of applying these regulations and proving
these connections, NMFS has determined that it should not attempt to
regulate observer behavior that does not directly affect observer job
performance and views the prescription of conduct standards as an
employer responsibility. Therefore, NMFS proposes to remove current
regulations at Sec. 679.50(j)(2)(ii)(D) that attempt to control
observer behavior related to activities involving drugs, alcohol, and
physical sexual conduct, and to remove references to the Observer
Program's drug and alcohol policies in the regulations.
In recognition of the fact that drug and alcohol use and physical
sexual activity while deployed may affect an observer's ability to
perform his or her duties and may compromise workplace safety,
regulations would be revised to require each observer provider to have
a policy addressing observer conduct and behavior related to drugs,
alcohol, and physical sexual conduct. Each provider would be required
to submit a copy of its policy to NMFS by February 1 of each year. A
requirement would be added under Sec. 679.50(i)(2) that observer
providers notify NMFS within 72 hours upon determination that an
observer has
[[Page 50157]]
violated the provider's conduct policy. This notification shall include
the facts and circumstances of the violation. NMFS intends to use this
information when assessing observer performance and quality of data
collection.
NMFS would not define standards for these policies; thus, providers
would exercise discretion when developing their policies. However, NMFS
continues to have an interest in the providers' conduct policies. Thus,
if NMFS determines that the providers' policies lead to a negative
impact on the quality of data collected by observers, NMFS would
reconsider this action. If that occurs, NMFS would have to consider
additional authorization and funding to institute an effective system
to regulate observer conduct and behavior.
Issue 3: Providing Observers for Research Activities
Current regulations at Sec. 679.50(i)(3)(i) prohibit observer
providers from having a direct financial interest, other than the
provision of observer services, in a North Pacific fishery managed
under an FMP. However, observer providers have historically provided
observers and ``scientific data collectors'' to researchers operating
under exempted fishing permits (EFPs) and scientific research permits
(SRPs). While the regulations do not specifically prohibit observer
providers from providing observers or scientific data collectors in
support of these activities, they are ambiguous as to whether these
activities are allowed under the conflict of interest regulation. This
proposed rule would clarify that observer providers are not prohibited
from supplying observers and scientific data collectors for fishing
conducted pursuant to EFPs and for scientific research activities.
Issue 4: Fishing Day Definition
Regulations at Sec. 679.50(c)(1)(v) require a catcher/processor or
catcher vessel equal to or greater than 60 ft (18.3 m) length overall
(LOA), but less than 125 ft (38.1 m) LOA, to carry an observer for at
least 30 percent of its fishing days per calendar quarter and at all
times during at least one fishing trip per calendar quarter while
directed fishing for groundfish. A ``fishing day'' is defined at Sec.
679.2 as a 24-hour period, from 0001 hours Alaska local time (A.l.t.)
through 2400 hours A.l.t., in which fishing gear is retrieved and
groundfish are retained. Under these regulations, an observer must be
onboard a vessel only at some point, no matter how briefly, during a
24-hour period when fishing occurs and groundfish are retained, to
count as a ``fishing day'' for the purpose of observer coverage
requirements. While many vessels operate with an observer as they would
without an observer, NMFS suspects that others intentionally alter
their fishing pattern to meet minimum observer coverage requirements.
Often, these fishing events are not representative of normal fishing
duration, location, and depth, and catch composition may vary
significantly from that associated with the vessel's normal, legitimate
fishing pattern. These non-representative events bias the observer
information NMFS relies on for effective management of the groundfish
fisheries.
NMFS' Office of Law Enforcement has also documented instances in
which vessel operators intentionally structure fishing activities to
fish unobserved until late in the day, pick up an observer and make a
short tow prior to midnight, make one more tow immediately after
midnight, and then return the observer to port. Additional fishing
activities then occur during the remainder of the second day, during
which the observer is not onboard. Under the current regulations, this
scenario counts for two ``observer'' days and may result in biased
observer data.
To reduce the potential for biasing observer data, the proposed
rule would revise the definition of ``fishing day'' at Sec. 679.2 to
be a 24-hour period, from 1201 hours A.l.t. through 1200 hours A.l.t.,
in which fishing gear is retrieved and groundfish are retained. It will
require that an observer be on board for all gear retrievals during the
24-hour period in order to count as a day of observer coverage. Days
during which a vessel only delivers unsorted codends to a processor
will not be considered fishing days, as is currently the case.
This revision would reduce the cost-effectiveness of making a
fishing trip solely to manipulate observer coverage requirements.
Revising the definition of the 24-hour period from the current
midnight-to-midnight definition (from 0001 hours through 2400 hours
Alaska local time) to a noon to noon definition (1201 hours through
1200 hours Alaska local time) is intended to discourage vessels from
making sets or tows solely for the purpose of obtaining observer
coverage around the transitional hours from one fishing day to the
next.
Issue 5: Observer Cost Information
Under the current system for Alaska groundfish fishery observer
services, vessels and plants required to take observers under Sec.
679.50 contract directly with certified observer providers. Because
NMFS is not a party to the contracts, NMFS lacks information on the
actual costs for observer coverage incurred by the groundfish fishery.
Without this information, NMFS has had to rely on estimates of the
average daily cost of observer coverage across all North Pacific
groundfish fisheries to assess the economic effects of various
management regimes on impacted entities. Industry has commented that
although observer costs vary by region and sector, NMFS' estimates do
not take that variability into account. Several factors affect the
daily cost of observer coverage; for example, deploying observers to
remote locations for short periods of time results in higher costs per
day than deploying observers to ports with regularly scheduled air
service or in fisheries of substantial duration. NMFS' analyses would
be improved by the acquisition of actual cost information.
The MSA authorizes the collection of fees from North Pacific
fishery participants to pay for implementing a fisheries research plan,
including observer coverage. More accurate information on the cost of
the existing observer program would help the Council and NMFS determine
appropriate fees and the extent of observer coverage afforded by those
fees when a fee-based research plan is developed and implemented.
This proposed rule would require observer providers to submit to
NMFS copies of all individual invoices for observer coverage in the
North Pacific groundfish fishery. Every third year would be a reporting
year for submitting invoices. Observer providers would be required to
submit these invoices to NMFS for a full calendar year in each
reporting year. If the program were implemented in 2010, providers
would be required to submit copies of actual invoices during 2010.
Invoices would be submitted again in the next reporting year (e.g.,
2013, 2016, 2019).
The Council recommended that observer providers submit copies of
actual invoices to NMFS because these are less burdensome than
requiring the providers to prepare and submit summarized expense
reports; it allows NMFS to understand the full cost of providing
observer coverage in the groundfish fisheries off Alaska; it provides
for verifiable data; and it allows for increased flexibility in data
analysis compared to requiring summarized information from providers.
The RIR/IRFA for this action recognizes that under this alternative the
primary burden for data-entry and analysis would be shifted from the
observer providers to NMFS. However, this alternative would provide
NMFS with independently verifiable
[[Page 50158]]
information and enhanced analytical flexibility over collecting
summarized expense reports from the observer providers because NMFS
will be able to confirm the number of days an observer was deployed to
a particular vessel and bin the raw invoice information as analytical
needs dictate.
As these invoices contain proprietary business information, NMFS
will consider this information as business confidential information
afforded the protections of section 402 of the MSA. Accordingly, NMFS
will collect and maintain this information as it does with other
confidential data, and will limit access to unaggregated invoice
information to NMFS staff.
The Council also recommended a three-year invoice submission cycle
to accommodate ongoing data collection while minimizing the reporting
burden on observer providers. NMFS has found shortcomings with the
three-year data collection cycle preferred by the Council, as it would
delay NMFS' ability to detect trends in observer coverage costs and
limit the precision in evaluating the temporal variability of these
costs. The Council's preferred alternative would not allow for a
complete, continuous overview of the industry's Observer Program costs
due to the three-year lapse between data collection cycles; however, it
would provide information that NMFS currently needs and lacks. The
Council could revisit this issue in the future should NMFS and the
Council determine that data are needed more frequently from observer
providers.
During a reporting year, within 45 days of the invoice date,
observer providers would be required to submit to NMFS a copy of each
invoice for services provided that year. NMFS seeks public comment on
this submission deadline to help determine if this time period is
reasonable for observer providers to provide copies of invoices to
NMFS. Invoices shall include the following information: the name of
each individual catcher/processor, catcher vessel, mothership,
stationary floating processor, or shoreside processing plant to which
the invoice applies; the name of the observer who worked aboard each
catcher/processor, catcher vessel, mothership, stationary floating
processor, or shoreside processing plant; the dates of service for each
observer on each catcher/processor, catcher vessel, mothership,
stationary floating processor, or shoreside processing plant; the rate
charged in dollars per day for observer services; the total charge for
observer services (number of days multiplied by daily rate); the amount
charged for air transportation; and the amount charged for other
expenses, such as ground transportation, lodging, or excess baggage.
These charges would be required to be separated and identified.
Issue 6: Miscellaneous Revisions
The proposed rule would establish a deadline by which observer
providers must submit to NMFS an exemplary copy of a contract between
the provider and the observer and the provider and the vessel or plant
operator requiring observer service in the groundfish fisheries off
Alaska. Existing regulations at Sec. 679.50 require the submission of
these contracts; however no deadline is specified. This proposed rule
would establish a submission deadline of February 1 of each year, which
corresponds with the deadline for submitting certificates of insurance
required by Sec. 679.50(i)(2)(x)(F). This issue was referenced as
Issue 7 in the RIR/IRFA; however, the Council selected the ``no
action'' alternative for Issue 6. Thus, for the purposes of this
proposed rulemaking, this miscellaneous revision now comprises Issue 6.
Two other miscellaneous revisions analyzed under this issue in the
RIR/IRFA have been subsequently removed from the proposed rule. The
first minor revision would have corrected an erroneous reference to
observer workload restrictions at Sec. 679.50(c)(5)(i)(A). In
developing this proposed rule it came to NMFS' attention that
additional corrections to Sec. 679.50(c)(5) were needed. Thus, this
reference will be corrected in a separate rule making and is not
addressed in this proposed rule. The other miscellaneous revision
included in the RIR/IRFA would have corrected references to NMFS'
Alaska Fisheries Science Center, Fisheries Monitoring and Analysis
Division website throughout the regulations at Sec. 679.50, as the
existing reference is now invalid. Because website references and
content are subject to change, NMFS is proposing to exclude references
to the Fisheries Monitoring and Analysis Division website from the
regulations. This revision under Issue 6 is expected to have the
intended effect of the Council's motion as the erroneous references
will be revised in the regulations.
Classification
Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant
Administrator has determined that this proposed rule is consistent with
the regulatory amendment, other provisions of the MSA, and other
applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact this proposed rule, if adopted,
would have on small entities. A description of the action, why it is
being considered, and the legal basis for this action are contained at
the beginning of this section in the preamble and in the SUMMARY
section of the preamble. A summary of the analysis follows. A copy of
this analysis is available from NMFS (see ADDRESSES).
The IRFA for this proposed action describes in detail the reasons
why this action is being proposed; describes the objectives and legal
basis for the proposed rule; describes and estimates the number of
small entities to which the proposed rule would apply; describes any
projected reporting, recordkeeping, or other compliance requirements of
the proposed rule; identifies any overlapping, duplicative, or
conflicting Federal rules; and describes any significant alternatives
to the proposed rule that accomplish the stated objectives of the MSA
and any other applicable statutes that would minimize any significant
adverse economic impact of the proposed rule on small entities.
The description of the proposed action, its purpose, and its legal
basis are described elsewhere in the preamble and are not repeated
here. The directly regulated entities are different under the different
issues addressed in this proposed rule. Because the RFA is applicable
only to businesses, non-profit organizations, and governments,
observers fall outside of the RFA's scope, and are therefore not
discussed in the IRFA.
Five observer provider companies are currently holding observer
provider permits and are active in the North Pacific. These entities
would be directly regulated by the proposed actions under Issues 2, 3,
5 and 6. All of the current observer provider companies are considered
small entities under the RFA. The potential number of small observer
provider firms that may be interested in obtaining a permit to provide
observer services in the future would be regulated under Issue 1.
However, the potential number of observer provider firms cannot be
estimated, and because they represent a future scenario, they are not
considered
[[Page 50159]]
directly regulated under the proposed action.
Trawl and hook-and-line catcher vessels (CVs) and catcher
processors (CPs) subject to the 30 percent observer coverage
requirements would be directly regulated by the proposed action in
Issue 4. Trawl and hook-and-line CVs between 60 feet and 125 feet LOA
and hook-and-line CPs between 60 feet and 125 feet LOA in the BSAI and
GOA, with the exception of vessels participating in specific programs
that require 100 percent observer coverage, would be directly regulated
by actions under Issue 4. AFA trawl CVs subject to the 30 percent
observer coverage requirements are categorized as large entities for
the purpose of the RFA due to their affiliation with one another
through the American Fisheries Act (AFA) pollock harvest cooperatives.
The table below summarizes all of the potentially directly
regulated small entities, by sector, under Issue 4 of the proposed
action. The IRFA likely overestimates the number of directly regulated
small entities. NMFS does not have access to data on ownership and
other forms of affiliation for most segments of the fishing industry
operating off Alaska, nor does NMFS have information on the combined
annual gross receipts for each entity by size. Absent these data, a
more precise characterization of the size composition of the directly
regulated entities impacted by this action cannot be offered.
Table 1. Estimate of the Number of Small Entities Potentially Directly
Regulated by Issue 4 of the Proposed Action.
------------------------------------------------------------------------
Sector 2006 2007
------------------------------------------------------------------------
Observer Providers 5 5
Trawl CV >60' and <=125' 39 23
Trawl CP >60' and <=125' 12 10
H&L CV >60' and <=125' 97 74
H&L CP >60' and <=125' 11 11
------------------------------------------------------------------------
Proposed actions under Issue 2 and Issue 5 would require additional
recordkeeping and reporting requirements for the five observer
providers currently supplying services to the Observer Program. Issue 6
actions would impose a deadline for submission of information that is
already required of observer providers under existing regulations.
Issue 2 actions would require observer providers to have observer
policies related to alcohol, drugs, and sexual contact; provide NMFS a
copy of the conduct policy by February 1 of each year; and to notify
(including the underlying facts and circumstances) NMFS of a violation
of the observer provider's policies within 72 hours after the provider
determines that an observer violated a policy. Current regulations at
Sec. 679.50(i)(2)(x)(I) require observer providers to notify NMFS of
other types of conduct violations within 24 hours of becoming aware of
the alleged violation; thus, this proposed action does not
substantially alter that reporting requirement. It may take 20 minutes
or less for an employee of the observer provider company to report this
information to NMFS as fax or email are acceptable means of
communication.
The proposed rule under Issue 5 would require observer providers to
submit copies of billing invoices to NMFS for a full year, every third
year. This recordkeeping and reporting requirement will not require the
observer providers to modify or interpret their billing invoices.
Observer provider companies should incur minor costs associated with
copying and transmitting copies of their actual billing invoices to
NMFS under the proposed rule for Issue 5. NMFS estimates that
approximately six hours a year would be required for observer providers
to email their invoices to NMFS with no additional expenses anticipated
because observer providers have computers with internet access. If an
observer provider mails copies of his or her invoices to NMFS, it is
estimated to cost the observer provider approximately $48 per year for
paper, envelopes, and postage in addition to six hours of labor
expected for copying and mailing.
The proposed rule under Issue 6 slightly modifies existing
regulations by imposing a February 1 deadline for observer providers to
submit to NMFS each type of contract they have entered into with
observers or the fishing industry. Because regulations already require
observer provider companies to submit this information to NMFS, and
because most observer provider companies have been submitting this
information by February 1 in the past, this regulatory amendment should
impose virtually no additional net burden on the observer provider
companies.
The analysis revealed no Federal rules that would conflict with,
overlap, or be duplicated by the alternatives under consideration.
With regard to the economic burden of the proposed rule on small
entities, the Council selected the least economically burdensome
alternatives that met the purpose and need for action based upon the
analysis in the RIR and IRFA. The Council selected the only action
alternative under Issue 2 and Issue 6. There were three action
alternatives for Issue 5 and the Council selected the least
economically burdensome alternative for observer providers by rejecting
alternatives that would require providers to compile annual expense
reports summarized by fishery or expense category. The alternative that
would require observer providers to submit copies of invoices already
being prepared as part of their standard bookkeeping was determined to
be less burdensome than the other alternatives. The Council sought to
further reduce the economic burden on observer providers by requiring
them to submit copies of their invoices only once every three years.
Collection-of-Information
This proposed rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). This requirement has
been submitted to OMB for approval under OMB Control Number 0648-0318.
Public reporting burden is estimated to average 30 minutes per
individual response for Copies of Invoices; 15 minutes for Observer
Provider Contract Copies; two hours for Other Reports; 40 hours for
Appeals for Observer Provider Permit Expiration or Denial of Permit
(this item is removed with this action); and 40 hours for Observer
Conduct and Behavior Policy, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. The PRA package submitted for this proposed
rule estimated that it will cost each observer provider $1500 per
reporting year to comply with this information submission requirement.
Public comment is sought regarding whether this proposed collection
of information is necessary for the proper performance of the functions
of the agency, including 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
through 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 Alaska Region at the ADDRESSES
above, and e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-
7285.
[[Page 50160]]
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
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: September 24, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 679 as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108--447.
2. In Sec. 679.2, revise the definition of ``Fishing day'' to read
as follows:
Sec. 679.2 Definitions.
* * * * *
Fishing day means (for purposes of subpart E of this section) a 24-
hour period, from 1201 hours A.l.t. through 1200 hours A.l.t., in which
fishing gear is retrieved and groundfish are retained. An observer must
be on board for all gear retrievals during the 24-hour period in order
to count as a day of observer coverage. Days during which a vessel only
delivers unsorted codends to a processor are not fishing days.
* * * * *
3. In Sec. 679.50:
A. Remove and reserve paragraph (i)(1)(iii)(B) and remove
paragraphs (i)(1)(iv), (i)(2)(i)(C)(1), (j)(1)(iv)(B), and
(j)(2)(ii)(D).
B. Redesignate paragraphs (i)(1)(v) through (viii) as paragraphs
(i)(1)(iv) through (vii) respectively.
C. Redesignate paragraphs (i)(2)(i)(C)(2) through (4) as paragraphs
(i)(2)(i)(C)(1) through (3), respectively.
D. Redesignate paragraphs (i)(2)(iii) through (xii) as paragraphs
(i)(2)(iv) through (xiii), respectively.
E. Redesignate newly redesignated paragraphs (i)(2)(xi)(H) and (I)
as paragraphs (i)(2)(xi)(I) and (J), respectively, and further
redesignate paragraphs (i)(2)(xi)(J)(1) through (5) as paragraphs
(i)(2)(xi)(J)(1)(i) through (v), respectively.
F. Redesignate paragraphs (i)(3)(i) through (iii) as paragraphs
(i)(3)(ii) through (iv), respectively.
G. Redesignate paragraph (j)(1)(iv)(C) as paragraph (j)(i)(iv)(B).
H. Add paragraphs (i)(2)(iii), (i)(2)(xi)(H), (i)(2)(xi)(J)(1)
introductory text, (i)(2)(xi)(J)(2), and (i)(3)(i).
I. Revise paragraphs (i)(1)(i)(A), (i)(1)(iii)(A) introductory
text, (i)(2)(i)(B), (j)(1)(iii)(B) introductory text, (j)(1)(iv)(A),
(j)(2)(ii) introductory text, and (j)(2)(ii)(A) through (C).
J. Revise newly redesignated paragraphs (i)(1)(iv), (i)(1)(vi)(B),
(i)(2)(xi)(G) first sentence, (i)(2)(xi)(J) introductory text,
(i)(2)(xi)(J)(1)(v), and (i)(3)(ii) introductory text.
The revisions and additions read as follows:
Sec. 679.50 Groundfish Observer Program.
* * * * *
(i) * * *
(1)* * *
(i) * * *
(A) The Regional Administrator may issue a permit authorizing a
person's participation as an observer provider. Persons seeking to
provide observer services under this section must obtain an observer
provider permit from NMFS.
* * * * *
(iii) * * *
(A) The Regional Administrator will establish an observer provider
permit application review board, comprised of NMFS staff, to review and
evaluate an application submitted under paragraph (i)(1) of this
section. The review board will evaluate the completeness of the
application, the application's consistency with needs and objectives of
the observer program, or other relevant factors, and the following
criteria for each owner, or owners, board members, and officers if a
corporation:
* * * * *
(iv) Agency determination on an application. NMFS will send a
written determination to the applicant. If an application is approved,
NMFS will issue an observer provider permit to the applicant. If an
application is denied, the reason for denial will be explained in the
written determination.
* * * * *
(vi) * * *
(B) The Regional Administrator will provide a written initial
administrative determination (IAD) to an observer provider if NMFS'
deployment records indicate that the permit has expired. An observer
provider who receives an IAD of permit expiration may appeal under
Sec. 679.43. A permit holder who appeals the IAD will be issued an
extension of the expiration date of the permit until after the final
resolution of that appeal.
* * * * *
(2) * * *
(i) * * *
(B) Prior to hiring an observer candidate, the observer provider
must provide to the candidate copies of NMFS-provided pamphlets and
other literature describing observer duties.
* * * * *
(iii) Observer conduct. (A) An observer provider must develop and
maintain a policy addressing observer conduct and behavior for their
employees that serve as observers. The policy shall address the
following behavior and conduct regarding:
(1) Observer use of alcohol;
(2) Observer use, possession, or distribution of illegal drugs and;
(3) 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.
(B) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to:
(1) Observers, observer candidates and;
(2) The Observer Program Office.
* * * * *
(xi) * * *
(G) Observer provider contracts. Observer providers must submit to
the Observer Program Office a completed and unaltered copy of each type
of signed and valid contract (including all attachments, appendices,
addendums, and exhibits incorporated into the contract) between the
observer provider and those entities requiring observer services under
paragraphs (c) and (d) of this section, by February 1 of each year. * *
*
* * * * *
(H) Observer provider invoices. Beginning in 2010 and in every
third calendar year thereafter (e.g., 2013, 2016, 2019), certified
observer providers must submit to the Observer Program Office copies of
all invoices for observer coverage required or provided pursuant to
paragraphs (c) and (d) of this section.
(1) Copies of invoices must be received by the Observer Program
Office within 45 days of the date on the invoice and must include all
reconciled and final charges.
(2) Invoices must contain the following information:
(i) Name of each individual catcher/processor, catcher vessel,
mothership, stationary floating processor, or shoreside processing
plant to which the invoice applies;
(ii) Dates of service for each observer on each catcher/processor,
catcher
[[Page 50161]]
vessel, mothership, stationary floating processor, or shoreside
processing plant. Dates billed that are not observer coverage days
shall be identified on the invoice;
(iii) Rate charged in dollars per day (daily rate) for observer
services;
(iv) Total charge for observer services (number of days multiplied
by daily rate);
(v) Amount charged for air transportation; and
(vi) Amount charged by the provider for any other observer
expenses, including but not limited to: ground transportation, excess
baggage, and lodging. Charges for these costs must be separated and
identified.
* * * * *
(J) Other reports. Reports of the following must be submitted in
writing to the Observer Program Office by the observer provider via fax
or email:
(1) Within 24 hours after the observer provider becomes aware of
the following information:
* * * * *
(v) Any information, allegations or reports regarding observer
conflict of interest or failure to abide by the standards of behavior
described at paragraph (j)(2)(i) or (j)(2)(ii) of this section, or;
(2) Within 72 hours after the observer provider determines that an
observer violated the observer provider's conduct and behavior policy
described at paragraph (i)(2)(iii)(A) of this section; these reports
shall include the underlying facts and circumstances of the violation.
* * * * *
(3) * * *
(i) Are authorized to provide observer services under an FMP for
the waters off the coast of Alaska as required in this part, or
scientific data collector and observer services to support NMFS-
approved scientific research activities, exempted educational
activities, or exempted or experimental fishing as defined in Sec.
600.10 of this chapter.
(ii) Must not have a direct financial interest, other than the
provision of observer or scientific data collector services, in a North
Pacific fishery managed under an FMP for the waters off the coast of
Alaska, including, but not limited to:
* * * * *
(j) * * *
(1) * * *
(iii) * * *
(B) New observers. NMFS may certify individuals who, in addition to
any other relevant considerations:
* * * * *
(iv) * * *
(A) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate fails to successfully complete training,
or does not meet the qualifications for certification for any other
relevant reason.
* * * * *
(2) * * *
(ii) Standards of Behavior. Observers must:
(A) Perform their assigned duties as described in the Observer
Manual or other written instructions from the Observer Program Office;
(B) 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 and;
(C) 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.
* * * * *
Sec. 679.50 [Amended]
4. At each of the locations shown in the Location column, remove
the phrase indicated in the ``Remove'' column and replace it with the
phrase indicated in the ``Add'' column for the number of times
indicated in the ``Frequency'' column.
------------------------------------------------------------------------
Location at Sec.
679.50 Remove Add Frequency
------------------------------------------------------------------------
Newly redesignated in paragraph in paragraph 1
(i)(2)(i)(C)(3) (i)(2)(x)(C) of (i)(2)(xi)(C) of
this this
(i)(2)(ii)(A) under paragraph under paragraph 1
(i)(2)(x)(E) of (i)(2)(xi)(E) of
this this
Newly redesignated in paragraph in paragraph 1
(i)(2)(iv)(B) (i)(2)(x)(C) of (i)(2)(xi)(C) of
this this
Newly redesignated in paragraphs in paragraphs 1
(i)(2)(vii)(B) (i)(2)(vi)(C) and (i)(2)(vii)(C) and
(i)(2)(vi)(D) of (i)(2)(vii)(D) of
this this
Newly redesignated paragraph paragraph 1
(i)(2)(xi)(C) (i)(2)(i)(B)(1) of (i)(2)(i)(B) of
(j)(1)(iii)(B)(2)(i at paragraphs at paragraphs 1
) (i)(2)(x)(A)(1)(iii (i)(2)(xi)(A)(1)(ii
) and i) and
(j)(1)(iii)(B)(2)(i at paragraph at paragraph 1
i) (i)(2)(x)(C) (i)(2)(xi)(C)
(j)(1)(iii)(B)(3) and (i)(2)(x)(C) and (i)(2)(xi)(C) 1
(j)(1)(iii)(B)(4)(i the candidate the candidate 1
i) failed the failed the training
training; whether and whether
(j)(1)(iii)(B)(4)(i in the form of an in the form of a 1
i) IAD denying written
determination
denying
(j)(3)(iii) will issue a will issue a 1
written IAD to the written initial
observer administrative
determination (IAD)
to the observer
------------------------------------------------------------------------
[FR Doc. E9-23606 Filed 9-29-09; 8:45 am]
BILLING CODE 3510-22-S