Fisheries of the Exclusive Economic Zone Off Alaska: Groundfish Observer Program

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

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.

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.

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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

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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

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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

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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 60' and 60' and 60' and