[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Rules and Regulations]
[Pages 56425-56438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27891]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 679
[Docket No. 960717195-6280-02; I.D. 070196E]
RIN 0648-AI95
Fisheries of the Exclusive Economic Zone Off Alaska; North
Pacific Fisheries Research Plan; Interim Groundfish Observer Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; technical amendment.
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SUMMARY: NMFS issues a final rule to implement Amendment 47 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska, Amendment
47 to the Fishery Management Plan for the Groundfish Fishery of the
Bering Sea and Aleutian Islands Area (Groundfish FMPs), Amendment 6 to
the Fishery Management Plan for the Commercial King and Tanner Crab
Fisheries in the Bering Sea and Aleutian Islands Area (Crab FMP), and a
technical amendment to clarify existing regulations that the observer
coverage requirements for catcher vessels participating in the
community development quota (CDQ) fisheries are in addition to the
observer coverage requirements for the open access groundfish
fisheries. This action also repeals regulations implementing the North
Pacific Fisheries Research Plan (Research Plan). This action is
necessary to respond to the North Pacific Fishery Management Council's
(Council) recommendation to repeal the Research Plan and implement
Amendments 47 and 47 to the Groundfish FMPs to establish mandatory
groundfish observer coverage requirements through 1997. Amendment 6 to
the Crab FMP removes reference to the Research Plan. This action
establishes an Interim Groundfish Observer Program until a long-term
program that addresses concerns about observer data integrity,
equitable distribution of observer coverage costs, and observer
compensation and working conditions is recommended by the Council and
implemented by NMFS.
EFFECTIVE DATE: January 1, 1997.
ADDRESSES: Copies of Amendments 47, 47, and 6 and the Environmental
Assessment/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (EA/RIR/FRFA) prepared for the amendments may be obtained from
the North Pacific Fishery Management Council, Suite 306, 605 West 4th
Avenue, Anchorage, AK 99501-2252; telephone: 907-271-2809. Send
comments regarding burden estimates or any other aspect of the data
requirements, including suggestions for reducing the burdens to NMFS
and to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Washington, D.C. 20503, Attn: NOAA Desk
Officer.
Copies of the information regarding observer qualifications,
observer training/briefing requirements, and NMFS' selection criteria
for observer contractors are available from the Observer Program
Office, Alaska Fisheries Science Center, Building 4, 7600 Sand Point
Way Northeast, Seattle, WA 98115, telephone: 206-526-4197.
FOR FURTHER INFORMATION CONTACT: Kim S. Rivera, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the
Bering Sea and Aleutian Islands management area (BSAI) in the exclusive
economic zone are managed by NMFS under the Groundfish FMPs. The FMPs
were prepared by the Council under the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801, et seq.; Magnuson Act) and are
implemented by regulations for the U.S. fisheries off Alaska at 50 CFR
part 679. General regulations that also pertain to U.S. fisheries are
codified at 50 CFR part 600. The Crab FMP delegates management of the
crab resources in the BSAI to the State of Alaska (State) with Federal
oversight. Regulations necessary to carry out the Crab FMP appear at 50
CFR part 679.
This action implements regulations authorized under Amendments 47
and 47 to the Groundfish FMPs and Amendment 6 to the Crab FMP. These
amendments were approved by NMFS on October 3, 1996, and authorize the
repeal of the Research Plan and the establishment of an Interim
Groundfish Observer Program for 1997.
A full description of and background information on the repeal of
the Research Plan and the establishment of an Interim Groundfish
Observer Program and its specific elements may be found in the preamble
to the proposed rule published in the Federal Register on August 2,
1996 (61 FR 40380), and in the EA/RIR prepared for this action.
Existing observer coverage requirements under Amendment 1 to the
Research Plan are scheduled to expire on December 31, 1996. At its
April 1996 meeting, the Council adopted an Interim Groundfish Observer
Program that would supersede the Research Plan and authorize mandatory
groundfish observer coverage requirements through 1997. The Interim
Groundfish Observer Program will extend 1996 groundfish observer
coverage requirements through 1997, unless superseded by a long-term
program that addresses concerns about observer data integrity,
equitable distribution of observer coverage costs, observer
compensation and working conditions, and other concerns raised by the
Council. Under this action, observer coverage requirements for the BSAI
king and Tanner crab fisheries will no longer be specified in Federal
regulations. Observer coverage requirements for the crab fisheries will
revert back to a Category 3 measure in the Crab FMP and will be
specified by the Alaska Board of Fisheries.
Except for the minor changes noted below, the elements of the
Interim Groundfish Observer Program as provided in the preamble of the
proposed rule are unchanged in this rule. Three elements of the Interim
Groundfish Observer Program will not be codified in regulation: (1)
Observer qualifications, (2) observer training/briefing requirements,
and (3) NMFS' selection criteria for observer contractors. These
elements were also provided in the preamble of the proposed rule and
are unchanged in the final rule. They are available upon request (see
ADDRESSES). Although they will not be codified, they are viewed as a
part of the program. Prior to proposing future changes to these three
elements, NMFS will publish a document in the Federal Register
describing the proposed change(s) and providing an opportunity for
public comment.
[[Page 56426]]
Removal of Interim Final Rule To Authorize the Refund of Research Plan
Fees
This action also serves as the final rule for the interim final
rule that established a refund procedure for the Research Plan fee
assessments collected in 1995 (61 FR 13782, March 28, 1996). Over $5.8
million in collected Research Plan fees and earned interest were
refunded to processors in May 1996. Because all funds in the North
Pacific Fishery Observer Fund have been returned, the regulations
implemented by the interim final rule are no longer necessary and are
removed by this final rule.
Technical Amendment
This action also implements a technical amendment to clarify
existing regulations that the observer coverage requirements for
catcher vessels participating in the CDQ pollock fisheries set forth at
Sec. 679.32(c) are in addition to the observer coverage requirements
for vessels participating in the open access groundfish fisheries as
set forth at Sec. 679.50. It was never NMFS' intent to reduce the
observer coverage in the open access groundfish fisheries because of
required observer coverage obtained for the CDQ pollock fishery. The
additional responsibilities and duties associated with monitoring the
CDQ pollock harvest necessitated an additional observer to share in the
increased work burden. The observer data collected in a CDQ fishery are
specific to that management regime and are not meant to replace the
observer data that are collected in the open access fishery. Observer
coverage that a vessel operator obtains to participate in CDQ fisheries
does not fulfill its observer coverage requirements for open access
groundfish fisheries.
Response to Comments
No written comments were received on the interim final rule that
invited comments through April 29, 1996. Public comment on the proposed
rule was invited through September 16, 1996. A public hearing
teleconference on the repeal of the Research Plan was held August 19,
1996, and no oral comments were received. One letter of no comment from
the U.S. Fish and Wildlife Service and one letter containing comments
were received within the comment period for the proposed rule. A
summary of the written comments and NMFS' response follow:
Comment 1. The requirement that qualified observers must have a
statistics course is not necessary. A familiarity with random sampling
is pertinent to an observer applicant's suitability to the job, but
this experience can be gained in field biology or even laboratory
biology work as well as in statistics course work. This requirement
could force observer contractors to refrain from hiring persons well
prepared for work as an observer.
Response. NMFS disagrees. NMFS believes that statistical course
work will provide an observer with the conceptual statistical skills/
background necessary to achieve program goals relating to sampling and
estimation. To maintain the integrity of observer data used for quota-
monitoring and other fishery management purposes, observers must employ
appropriate sampling techniques and understand the consequences of
failure to do so. Formal training in statistics is necessary to provide
this understanding.
NMFS requires prospective observers to have a bachelor's degree or
higher from an accredited college or university with a major in one of
the natural sciences. It is unlikely that an individual could fulfill
this degree requirement without taking a statistics course.
Comment 2. While the other insurance provisions that contractors
would be required to carry (at Sec. 679.50(i)(2)(xiv)(E)) protect
observers, Contractual General Liability (CGL) insurance protects
vessels, making its presence in this rulemaking peculiar. An observer
injured on a vessel that hasn't elected to pay for CGL coverage has no
fewer rights and no less protection than an observer injured on a
vessel that has elected to pay for it. Should an observer bring a suit
against a vessel that pays for CGL protection, then the contractor's
insurance company steps in to defend the vessel. If an observer brings
a suit against a vessel that doesn't pay for CGL protection, then the
vessel's insurance company defends the vessel. Either way, the observer
can bring suit. As an option to the proposed CGL coverage, NMFS should
consider the alternative of requiring a contractor to have the ability
to carry this coverage if a vessel requests it.
If NMFS' intent is to force contractors to carry this coverage for
all vessels, the industry should be made aware that they will be forced
to pay for this coverage. Costs presently range from $12-20 per day,
depending on vessel size and gear type, though these rates might change
if all vessels were forced to participate.
Response. CGL insurance was recommended by the Council-appointed
Insurance Technical Committee (ITC), which represents industry,
observer, and observer contractor interests. The ITC's objective was to
address the insurance coverage needs of vessels required to carry
observers as well as the insurance needs of observers and to formulate
a standardized insurance coverage package. CGL coverage is a necessary
part of a comprehensive standard package because it addresses insurance
needs of an affected group, the vessel operators required to carry
observers. NMFS concurs with the ITC recommendation, therefore, the
inclusion of CGL coverage is appropriate. The associated costs of the
insurance coverage package were understood to be borne by the affected
industry.
Comment 3. Proposed regulations at Sec. 679.7(g)(2) prohibit
interference with the sampling procedure employed by an observer. These
regulations would require modifications to incline belts, bin openings,
and other physical characteristics of factories that hamper effective
sampling and would have a positive impact on observers if NMFS really
intends to require such modifications. Vessel owners are likely to see
any attempt to force the redesign of their processing areas as a sort
of outrageous and expensive interference with the way they do business.
If the regulations prove so unpopular with industry that NMFS declines
to follow through, there will be a corresponding negative impact on
observer morale.
Response. NMFS agrees that observer sampling of species and size
composition would be improved if a prohibition against physical,
mechanical, or other sorting that interferes with or biases the
sampling procedure employed by an observer is enforced. NMFS intends to
enforce this prohibition. Enforcement of this prohibition requires
adequate evidence and proof that the observer's sampling procedure was
interfered with or biased by physical, mechanical, or other sorting or
discarding of catch before sampling. If inclined belts, constrained bin
openings, or other physical structures result in sorting of catch after
an observer has had an opportunity to sample, then no violation has
occurred. If some physical or mechanical aspect of the processing
operation results in interference or biasing of the observer's sampling
procedure, then NMFS would take action.
Comment 4. The proposed rule does not change a regulation that
requires vessel operators to provide observers with accommodations
``that are equivalent to those provided for officers, engineers,
foremen, deck-bosses or other management level personnel of the
[[Page 56427]]
vessel.'' The commenter believes that NMFS has not enforced this
regulation and suggests that NMFS revise the regulation to a standard
it is willing to enforce. Observers who expect improved accommodations
based on their common sense reading of this regulation have been
disappointed. Observer morale would be better served if NMFS would say
what the agency really means; the regulation could also then apply to
all vessels, regardless of their size or gear type.
Response. NMFS believes the current regulation has contributed to
the improvement of observer accommodations on vessels. Prior to
regulations implementing the Research Plan (59 FR 46126; September 6,
1994) and requiring these ``management level'' accommodations for the
first time, observers were subject to accommodations that crew members
would not be subjected to. To reiterate a response to a comment
provided on the Research Plan final rule, the intent of this regulation
is to require a vessel operator to treat the observer with respect. The
observer should not be provided with accommodations less than those
provided for management personnel. At this time, NMFS has not developed
a performance standard for accommodations that could be applied to all
vessels, regardless of their size or gear type.
Comment 5. NMFS proposes that, if a person has been employed as a
paid crew member or employee in a North Pacific fishery, they may not
serve as an observer during the 12 consecutive months immediately
following their employment in the fishery. This 12-month ``cooling
off'' period following work in industry is unnecessary in that it is
not a safeguard against conflict of interest; rather, it seems more a
punishment. Because it is unnecessary, it places an unfair restriction
on observers, whose right to work should be infringed upon only with
good reason. Instead, the appearance of conflict of interest can be
avoided by prohibiting an observer employed previously by a fishing
company to work as an observer on that company's vessels or in that
company's plants.
Response. NMFS disagrees. Observers play a critical role in
fisheries management, and they, and the data they collect, must be
above reproach. Any conflict of interest, perceived or real, because of
employment as a crew member or employee in a North Pacific fishery in
the past 12 months must be avoided. NMFS chose a 12-month period as
being a reasonable amount of time to indicate a person's commitment to
the observer profession. NMFS will avoid certifying persons as
observers whose employment vacillated between the two fields.
Comment 6. The appearance of a conflict of interest would exist if
an observer lines up work aboard one of his/her assigned vessels or
plants while still under contract with an observer contractor. NMFS
should restrict such activity.
Response. NMFS agrees and is adding a regulation at
Sec. 679.50(h)(2)(i)(A)(5) that states observers may not solicit or
accept employment as a crew member or an employee of a vessel or
shoreside processor in a North Pacific fishery while they are under
contract with an observer contractor.
Comment 7. As proposed, Sec. 679.50(i)(2)(v)(B) states that a
deployment to a vessel or a shoreside processor cannot exceed 90 days
without approval from the Observer Program Office. This could be
misconstrued to allow a contractor to deploy an observer for hundreds
of days without seeking approval from NMFS, so long as that observer
didn't stay more than 90 days on any one assignment.
Response. NMFS agrees and has revised paragraph (B) to clearly
indicate that a deployment cannot exceed ninety days without approval
from the Observer Program Office. NMFS' intent is that an observer
return to port after a 90-day period for debriefing.
Comment 8. Proposed regulations at Sec. 679.50(i)(2)(v)(B) provide
an observer contractor with flexibility in placing observers in certain
situations with approval from the Observer Program Office. NMFS should
expand this flexibility to apply in all three of the guidelines for
observer placement set out under Sec. 679.50(i)(2)(v). For instance,
situations occur where vessels are operating for 95-105 days. If a
contractor were held to the proposed maximum of ninety-day observer
deployments, each vessel in that situation would require two separate
observers. Justifiable situations such as these warrant NMFS making
reasonable exceptions to the guidelines.
Response. NMFS agrees. In certain situations, flexibility is
warranted when it will not jeopardize Observer Program objectives and
the observer can successfully complete his or her duties. Regulations
at Sec. 679.50(i)(2)(v) have been revised to allow increased
flexibility with respect to observer deployments with approval from the
Observer Program Office.
Comment 9. As proposed, Sec. 679.50(i)(2)(v)(A) states that
observers must not be deployed on the same vessel for more than 90 days
in a 12-month period. This guideline should address shoreside
processors also. Reasons do not exist for treating vessels any
differently from shoreside processors, especially given the attempt to
strengthen observer conflict of interest standards evident elsewhere in
the proposed regulations.
Response. NMFS agrees and has revised the regulation at
Sec. 679.50(i)(2)(v)(A) to indicate that observers must not be deployed
on the same vessel or at the same shoreside processor more than 90 days
in a 12-month period.
Comment 10. Though NMFS does not directly employ observers, it
often places itself in the role of an observer's employer. NMFS
evaluates observer performance, and NMFS can, in effect, fire observers
for failing to perform. An employer is expected not only to make clear
to its employees what is expected of them, but also to inform them when
their work is falling short in ways that could jeopardize their
continued employment. The proposed decertification process at
Sec. 679.50(j) does not require NMFS to live up to this second basic
responsibility, even though NMFS has the opportunity to complete a
performance evaluation on observers in the field. NMFS should be more
accountable for the direction it gives, or doesn't give, to its
observers.
Response. NMFS reiterates that it certifies observers only. NMFS
does not employ observers. Observers are trained through an intensive
NMFS or NMFS-approved training program that includes detailed
information on observer duties and the myriad of methods to be used to
successfully complete observer assignments. NMFS reviews both the data
collected and the sampling procedures employed by an observer at a mid-
cruise review and at debriefing. NMFS makes every attempt and effort to
assist an observer with any problems and questions the observer has
regarding his or her deployment. Nevertheless, NMFS has overall
responsibility for data quality and NMFS reserves the right to
decertify observers for failure to perform required duties
satisfactorily or for violations of conflict of interest or conduct
standards.
Changes in the Final Rule from the Proposed Rule
This final rule has been revised from the proposed rule in the
following ways:
1. Definitions at Sec. 679.50(j)(3) relating to the decertification
process have been moved to Sec. 679.2. Other minor and non-substantive
revisions also were made in several places to maintain consistency with
the regulatory format of the recently consolidated regulations
governing the fisheries in Federal waters
[[Page 56428]]
off Alaska (50 CFR part 679, 61 FR 31228, June 19, 1996).
2. Regulations at Sec. 679.50(a) will cross-reference CDQ observer
coverage requirements at Sec. 679.32(c) to clarify NMFS' intent that
observer coverage requirements for catcher vessels participating in the
CDQ pollock fisheries are in addition to the observer coverage
requirements set forth at Sec. 679.50.
3. In Sec. 679.50(f)(1)(iii)(B) and Sec. 679.50(f)(2)(iii)(B), the
following changes have been made:
a. The reference to the motherships or shoreside processors
required to have specified communication equipment has been simplified
to reference those motherships or shoreside processors required to have
an additional observer as required at paragraph (c)(1)(iii) or (d)(3)
of this section. This change allows for the removal of redundant
language.
b. The communication equipment requirements of motherships or
shoreside processors that are required to carry a second observer has
been subdivided into two components. Paragraph (1) contains hardware
and software components and paragraph (2) contains the NMFS-supplied
software component. These changes are necessary to accommodate an
ongoing, but separate, development of hardware and NMFS-supplied
software requirements necessary to support submission of observer or
industry reports from processors to NMFS.
4. In response to public comment, an addition to the observer
conflict of interest standards in the proposed rule was made at
Sec. 679.50(h)(2)(i)(A)(5) to indicate that observers may not solicit
or accept employment as a crew member or an employee of a vessel or
shoreside processor in a North Pacific fishery while they are under
contract with an observer contractor.
5. In Sec. 679.50(i)(2)(v), the following changes have been made:
a. In response to public comment, the proposed rule at
Sec. 679.50(i)(2)(v) was revised to require placement of observers
according to the specified guidelines unless alternative arrangements
are approved by the Observer Program Office.
b. In response to public comment, Sec. 679.50(i)(2)(v)(A) was
revised to indicate that observers must not be deployed on the same
vessel or at the same shoreside processor for more than 90 days in a
12-month period.
c. In response to public comment, Sec. 679.50(i)(2)(v)(B) was
revised to clearly indicate that a deployment cannot exceed 90 days.
6. The information that NMFS collects from observer contractors at
Sec. 679.50(i)(2)(xiv) has been amended to include the following items
that inadvertently were not included in the proposed regulations: A
copy of each person's application for observer employment, observer's
briefing location, date of each observer's physical examination, name
of any observer who has been excused by NMFS from a briefing, the date
the observer was excused, and the name of the NMFS staff person
granting the excuse.
7. Proposed regulations at Sec. 679.50(j)(5)(i)(C) and (j)(6)(i)(B)
were combined into a new paragraph at (j)(4)(iii). This change allows
for the removal of redundant language. Revisions to Paperwork Reduction
Act (PRA) References in 15 CFR 902.1(b).
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, OMB, for
each agency information collection. Section 902.1(b) identifies the
location of NOAA regulations for which OMB approval numbers have been
issued. Because this final rule revises recordkeeping and reporting
requirements, 15 CFR 902.1(b) is revised to: (1) Remove control number
0648-0280 that was approved for Research Plan information collection
and is no longer necessary, (2) retain control number 0648-0307 under
Sec. 679.50 as it pertains to the already approved electronic
transmission of observer data, and (3) reference correctly the new
control number 0648-0318.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated, to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Due to a reorganization in NMFS, the title, ``Director of the
Alaska Region'' has been changed to ``Administrator of the Alaska
Region''. The change has not yet been made in the regulations;
consequently, this rule uses the term `Director'.
Classification
The Director, Alaska Region, NMFS, has determined that Amendments
47, 47, and 6 are necessary for the conservation and management of the
groundfish fisheries of the BSAI and the GOA and that they are
consistent with the Magnuson Act and other applicable laws.
This rule has been determined to be not significant for purposes of
E.O. 12866.
NMFS prepared an FRFA as part of the RIR, which describes the
impact this rule is expected to have on small entities. Based on that
analysis, it was determined that this rule could have a significant
economic impact on a substantial number of small entities. Observer
costs are based on whether an observer is aboard a vessel and on
overall coverage needs. Higher costs are borne by those vessels and
shoreside processors that require higher levels of coverage. For
individual vessels, the impact would increase as the percentage of
observer costs relative to total exvessel value of catch increases. In
1995, about 400 vessels carried observers; of these vessels about 280
were catcher vessels. About one half of the catcher vessels equal to or
greater than 60 ft (18.3 m) LOA but less than 125 ft (38.1 m) LOA paid
observer costs that were equal to or less than 1 percent of the
exvessel value of catch. About 20 percent of vessels incurred observer
costs that ranged from 2 to almost 8 percent of the exvessel value of
catch. This proportion represents cost increases from Research Plan
costs that were limited to 2 percent of the exvessel value of catch.
For motherships and shoreside processors, the impact also would
increase as the percentage of observer costs relative to total exvessel
value of processed catch increases. In 1995, about 26 motherships and
shoreside processors carried observers. About 35 percent of these
processors incurred observer costs that ranged from 1 to 7 percent of
the exvessel value of catch received and processed from catcher
vessels. This proportion represents cost increases from the processor's
portion of Research Plan costs that were limited to 1 percent of the
exvessel value of catch. The Research Plan represented an alternative
to this rule which could minimize the economic impact on some small
entities. But for reasons already explained elsewhere (interim final
rule at 61 FR 13782, March 28, 1996; and a notice of availability of an
FMP amendment at 61 FR 36702, July 12, 1996), this rule repeals the
Research Plan. No comments were received on the initial IRFA. Copies of
the EA/RIR/FRFA can be obtained from NMFS (see ADDRESSES).
This rule contains a new collection-of-information requirement
subject to the PRA. The collection of this information has been
approved by OMB (OMB control number 0648-0318). The new information
requirement consists of certification applications for new observer
contractors, reports submitted by observer contractors to NMFS that
would be used by NMFS to facilitate Observer Program Office operations
and
[[Page 56429]]
to monitor the ongoing requirements of a certified observer contractor,
and appeals of suspension and/or decertification from observers and
observer contractors. The annual public reporting burden for this
collection of information is estimated to be: 60 hours per
certification application (a contractor would apply every 3 years); 3
minutes per certificate of insurance; 7 minutes per training/briefing
registration; 2 minutes per notification of observer physical
examination; 2 hours per physical examination; 7 minutes per projected
observer assignment; 7 minutes per weekly deployment/logistics report;
7 minutes per debriefing registration; 15 minutes per copies of 5
contracts; 2 hours per report of observer harassment, observer safety
concerns, or observer performance problems; 80 hours per suspension/
decertification appeal by an observer contractor (projected to occur
only once in 5 years); and 4 hours per suspension/decertification
appeal by an observer, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
This rule contains requirements for electronic transmission of observer
data by vessels and shoreside processors receiving pollock harvested in
the catcher vessel operational area. This information collection
already was approved by OMB (OMB control number 0648-0307). Send
comments regarding burden estimates or any other aspect of the data
requirements, including suggestions for reducing the burdens, to NMFS
and OMB (see ADDRESSES).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: October 24, 1996.
Gary Matlock,
Acting Assistant Administrator, National Marine Fisheries Service.
For the reasons set out in the preamble, and under the authority of
16 U.S.C. 773 et seq. and 16 U.S.C. 1801 et seq., 15 CFR chapter IX and
50 CFR chapter VI are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b), the table is amended by removing
in the left column under 50 CFR, the entries ``679.51'' and ``679.52''
and by removing in the right column the control numbers in
corresponding positions; and by revising the following entry to read as
follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * * *
50 CFR..................................................... ...........
* * * * *
679.50..................................................... 0307, 0318
* * * * *
50 CFR Chapter VI.......................................... ...........
------------------------------------------------------------------------
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
3. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq.
4. In Sec. 679.1, paragraph (f) is revised to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(f) Groundfish Observer Program (Applicable through December 31,
1997). Regulations in this part govern elements of the Groundfish
Observer Program for the BSAI groundfish and GOA groundfish fisheries
under the Council's authority (see subpart E of this part).
* * * * *
5. In Sec. 679.2, the following definitions are removed:
``Bimonthly'', paragraphs (3) and (4) of ``Catcher vessel'', ``Exvessel
price'', ``Fee percentage'', ``Research Plan'', ``Research Plan
fisheries'', ``Retained catch'', and ``Standard exvessel price''.
a. In Sec. 679.2, the following definitions are added in
alphabetical order to read as follows: ``Adequate evidence'',
``Affiliates'', ``Briefing'', ``Civil judgment'', ``Conviction'',
``Debriefing'', ``Decertification'', ``Decertification official'',
``Deployment'', ``Direct financial interest'', ``Indictment'', ``Legal
proceedings'', ``NMFS investigator'', ``North Pacific fishery'',
``Observer contractor'', ``Observer Program Office'', ``Preponderance
of the evidence'', ``Suspending official'', and ``Suspension''.
b. In Sec. 679.2, the following definitions are revised: ``Buying
station'', paragraph (3) of ``Catcher/processor'', paragraph (1) of
``Catcher vessel'', ``Fishing day'', paragraph (3) of ``Fishing trip'',
paragraph (2) of ``Mothership'', ``Observed or observed data'',
``Observer'', ``Processor'', ``Round weight or round-weight
equivalent'', and ``Shoreside processor''.
Sec. 679.2 Definitions.
* * * * *
Adequate evidence, for purposes of subpart E of this part, means
information sufficient to support the reasonable belief that a
particular act or omission has occurred.
* * * * *
Affiliates, for purposes of subpart E of this part, means business
concerns, organizations, or individuals are affiliates of each other
if, directly or indirectly, either one controls or has the power to
control the other, or a third party controls or has the power to
control both. Indicators of control include, but are not limited to,
interlocking management or ownership, identity of interests among
family members, shared facilities and equipment, common use of
employees, or a business entity organized following the
decertification, suspension, or proposed decertification of an observer
contractor that has the same or similar management, ownership, or
principal employees as the observer contractor that was decertified,
suspended, or proposed for decertification.
* * * * *
Briefing means a short (usually 2-4 day) training session that
observers must complete to fulfill certification requirements.
Buying station means a person or vessel that receives unprocessed
groundfish from a vessel for delivery at a different location to a
shoreside processor or mothership and that does not process those fish.
* * * * *
[[Page 56430]]
Catcher/processor * * *
(3) With respect to subpart E of this part, a processor vessel that
is used for, or equipped to be used for, catching fish and processing
that fish.
Catcher vessel * * *
(1) With respect to groundfish recordkeeping and reporting and
subpart E of this part, a vessel that is used for catching fish and
that does not process fish on board.
* * * * *
Civil judgment, for purposes of subpart E of this part, means a
judgment or finding of a civil offense by any court of competent
jurisdiction.
* * * * *
Conviction, for purposes of subpart E of this part, means a
judgment or conviction of a criminal offense by any court of competent
jurisdiction, whether entered upon a verdict or a plea, and includes a
conviction entered upon a plea of nolo contendere.
* * * * *
Debriefing means the post-deployment process that includes a one-
on-one interview with NMFS staff, a NMFS preliminary data review,
observer completion of all data corrections noted, observer preparation
of affidavits and reports, and completion of tasks related to
biological specimens or special projects.
Decertification, as used in Sec. 679.50(j), means action taken by a
decertifying official under Sec. 679.50(j)(7) to revoke indefinitely
certification of observers or observer contractors under this section;
an observer or observer contractor whose certification is so revoked is
decertified.
Decertifying official, for purposes of subpart E of this part,
means a designee authorized by the Regional Director to impose
decertification.
Deployment means the period between an observer's arrival at the
point of embarkation and the date the observer disembarks for travel to
debriefing.
Direct financial interest means any source of income to, or capital
investment or other interest held by, an individual, partnership, or
corporation or an individual's spouse, immediate family member or
parent that could be influenced by performance or non-performance of
observer or observer contractor duties.
* * * * *
Fishing day means a 24-hour period, from 0001 hours A.l.t. through
2400 hours A.l.t., in which fishing gear is retrieved and groundfish
are retained. Days during which a vessel only delivers unsorted codends
to a processor are not fishing days.
* * * * *
Fishing trip * * *
(3) With respect to subpart E of this part, one of the following
time periods:
(i) For a vessel used to process groundfish or a catcher vessel
used to deliver groundfish to a mothership, a weekly reporting period
during which one or more fishing days occur.
(ii) For a catcher vessel used to deliver groundfish to other than
a mothership, the time period during which one or more fishing days
occur that starts on the day when fishing gear is first deployed and
ends on the day the vessel offloads groundfish, returns to an Alaskan
port, or leaves the EEZ off Alaska and adjacent waters of the State of
Alaska.
* * * * *
Indictment, for purposes of subpart E of this part, means
indictment for a criminal offense. An information or other filing by
competent authority charging a criminal offense must be given the same
effect as an indictment.
* * * * *
Legal proceedings, for purposes of subpart E of this part, means
any civil judicial proceeding to which the Government is a party or any
criminal proceeding. The term includes appeals from such proceedings.
* * * * *
Mothership * * *
(2) With respect to subpart E of this part, a processor vessel that
receives and processes groundfish from other vessels and is not used
for, or equipped to be used for, catching groundfish.
* * * * *
NMFS investigator, for purposes of subpart E of this part, means a
designee authorized by the Regional Director to conduct investigations
under this section.
* * * * *
North Pacific fishery means any commercial fishery in state or
Federal waters off Alaska.
Observed or observed data refers to data collected by observers
(see Sec. 679.21(f)(7) and subpart E of this part).
Observer means any individual that is awarded NMFS certification to
serve as an observer under this part, is employed by an observer
contractor for the purpose of providing observer services to vessels or
shoreside processors under this part, and is acting within the scope of
his/her employment.
Observer contractor means any person that is awarded NMFS
certification to provide observer services to vessels and shoreside
processors under subpart E and who contracts with observers to provide
these services.
Observer Program Office means the administrative office of the
Groundfish Observer Program located at Alaska Fisheries Science Center
(see ADDRESSES, part 600).
* * * * *
Preponderance of the evidence, for purposes of subpart E of this
part, means proof by information that, compared with that opposing it,
leads to the conclusion that the fact at issue is more probably true
than not.
* * * * *
Processor means any shoreside processor, catcher/processor,
mothership, any person who receives groundfish from fishermen for
commercial purposes, any fisherman who transfers groundfish outside of
the United States, and any fisherman who sells fish directly to a
restaurant or to an individual for use as bait or personal consumption.
* * * * *
Round weight or round-weight equivalent, for purposes of this part,
means the weight of groundfish calculated by dividing the weight of the
primary product made from that groundfish by the PRR for that primary
product as listed in Table 3 of this part, or, if not listed, the
weight of groundfish calculated by dividing the weight of a primary
product by the standard PRR as determined using the best available
evidence on a case-by-case basis.
* * * * *
Shoreside processor means any person or vessel that receives
unprocessed groundfish, except catcher/processors, motherships, buying
stations, restaurants, or persons receiving groundfish for personal
consumption or bait.
* * * * *
Suspending official, for purposes of subpart E of this part, means
a designee authorized by the Regional Director to impose suspension.
Suspension, as used in Sec. 679.50, means action taken by a
suspending official under Sec. 679.50(j) to suspend certification of
observers or observer contractors temporarily until a final decision is
made with respect to decertification.
* * * * *
6. In Sec. 679.4, paragraph (g) is removed and paragraphs
(f)(1)(i), (f)(1)(ii), and (f)(2)(ii) are revised to read as follows:
Sec. 679.4 Permits.
* * * * *
(f) Federal Processor permit--(1) General--(i) Applicability. In
addition to the permit and licensing
[[Page 56431]]
requirements in paragraphs (b) and (d) of this section, and except as
provided in paragraph (f)(1)(ii) of this section, a processor of
groundfish must have a Federal processor permit issued by the Regional
Director.
(ii) Exception. Any fisherman who transfers groundfish outside the
United States, or any fisherman who sells groundfish directly to a
restaurant or to an individual for use as bait or for personal
consumption is not required to have a Federal processor permit.
* * * * *
(2) * * *
(ii) The fishery or fisheries for which the permit is requested.
* * * * *
7. In Sec. 679.5, paragraph (a)(2) is revised to read as follows:
Sec. 679.5 Recordkeeping and reporting.
(a) * * *
(2) Applicability, Federal processor permit. Any processor that
retains groundfish is responsible for complying with the applicable
recordkeeping and reporting requirements of this section.
* * * * *
8. In Sec. 679.7, paragraph (b)(1) is removed, paragraphs (b)(2)
through (b)(4) are redesignated as paragraphs (b)(1) through (b)(3)
respectively, paragraph (f)(14) is removed, paragraphs (f)(15) and
(f)(16) are redesignated as paragraphs (f)(14) and (f)(15)
respectively, paragraphs (g)(5) through (g)(7) are removed, paragraphs
(g)(3), (g)(4), (g)(8), and (g)(9) are redesignated as paragraphs
(g)(4), (g)(5), (g)(6), and (g)(7) respectively, a new paragraph (g)(3)
is added, and paragraphs (a)(3), (g)(2), and newly redesignated
paragraph (g)(7) are revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(a) * * *
(3) Groundfish Observer Program. Fish for or process groundfish
except in compliance with the terms of the Groundfish Observer Program
as provided by subpart E of this part.
* * * * *
(g) Groundfish Observer Program. * * *
(2) Interfere with or bias the sampling procedure employed by an
observer, including physical, mechanical, or other sorting or
discarding of catch before sampling.
(3) Tamper with, destroy, or discard an observer's collected
samples, equipment, records, photographic film, papers, or personal
effects without the express consent of the observer.
* * * * *
(7) Require, pressure, coerce, or threaten an observer to perform
duties normally performed by crew members, including, but not limited
to, cooking, washing dishes, standing watch, vessel maintenance,
assisting with the setting or retrieval of gear, or any duties
associated with the processing of fish, from sorting the catch to the
storage of the finished product.
9. In Sec. 679.21, paragraph (c)(3) is revised to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(c) * * *
(3) Exemption. Motherships and shoreside processors that are not
required to obtain observer coverage during a month under
Sec. 679.50(c) and (d) are not required to retain salmon.
* * * * *
10. Subpart E is revised to read as follows:
Subpart E--Groundfish Observer Program
Sec. 679.50 Groundfish Observer Program applicable through December
31, 1997.
(a) General. Operators of vessels possessing a Federal fisheries
permit under Sec. 679.4(b)(1) and processors that possess a Federal
processor permit under Sec. 679.4(f)(1), must comply with this section.
The owner of a fishing vessel subject to this part or a processor
subject to this part must ensure that the operator or manager complies
with this section and is jointly and severally liable for such
compliance. Observer coverage requirements specified under this section
are in addition to observer coverage requirements specified at
Sec. 679.32(c) for vessel operators and processors participating in CDQ
fisheries.
(b) Purpose. The purpose of the Groundfish Observer Program is to
allow observers to collect Alaska fisheries data deemed by the Regional
Director to be necessary and appropriate for management, compliance
monitoring, and research of groundfish fisheries and for the
conservation of marine resources or their environment.
(c) Observer requirements for vessels. (1) Observer coverage is
required as follows:
(i) A mothership of any length that processes 1,000 mt or more in
round weight or round-weight equivalent of groundfish during a calendar
month is required to have an observer aboard the vessel each day it
receives or processes groundfish during that month.
(ii) A mothership of any length that processes from 500 mt to 1,000
mt in round weight or round-weight equivalent of groundfish during a
calendar month is required to have an observer aboard the vessel at
least 30 percent of the days it receives or processes groundfish during
that month.
(iii) Each mothership that receives pollock harvested by catcher
vessels in the catcher vessel operational area during the second
pollock season that starts on September 1 under Sec. 679.23(e)(2) is
required to have a second observer aboard, in addition to the observer
required under paragraphs (c)(1) (i) and (ii) of this section, for each
day of the second pollock season until the chum salmon savings area is
closed under Sec. 679.21(e)(7)(vi), or October 15, whichever occurs
first.
(iv) A catcher/processor or catcher vessel 125 ft (38.1 m) LOA or
longer must carry an observer during 100 percent of its fishing days
except for a vessel fishing for groundfish with pot gear as provided in
paragraph (c)(1)(vii) of this section.
(v) A catcher/processor or catcher vessel equal to or greater than
60 ft (18.3 m) LOA, but less than 125 ft (38.1 m) LOA, that
participates for more than 3 fishing days in a directed fishery for
groundfish in a calendar quarter must carry an observer during at least
30 percent of its fishing days in that calendar quarter and at all
times during at least one fishing trip in that calendar quarter for
each of the groundfish fishery categories defined under paragraph
(c)(2) of this section in which the vessel participates.
(vi) A catcher/processor or catcher vessel fishing with hook-and-
line gear that is required to carry an observer under paragraph
(c)(1)(v) of this section must carry an observer at all times during at
least one fishing trip in the Eastern Regulatory Area of the GOA during
each calendar quarter in which the vessel participates in a directed
fishery for groundfish in the Eastern Regulatory Area.
(vii) A catcher/processor or catcher vessel equal to or greater
than 60 ft (18.3 m) LOA fishing with pot gear that participates for
more than 3 fishing days in a directed fishery for groundfish in a
calendar quarter must carry an observer during at least 30 percent of
its fishing days in that calendar quarter and at all times during at
least one fishing trip in a calendar quarter for each of the groundfish
fishery categories defined under paragraph (c)(2) of this section in
which the vessel participates.
(2) Groundfish fishery categories requiring separate coverage.
Directed fishing for groundfish, during any fishing trip, that results:
[[Page 56432]]
(i) Pollock fishery. In a retained catch of pollock that is greater
than the retained catch of any other groundfish species or species
group that is specified as a separate groundfish fishery under this
paragraph (c)(2).
(ii) Pacific cod fishery. In a retained catch of Pacific cod that
is greater than the retained catch of any other groundfish species or
species group that is specified as a separate groundfish fishery under
this paragraph (c)(2).
(iii) Sablefish fishery. In a retained catch of sablefish that is
greater than the retained catch of any other groundfish species or
species group that is specified as a separate groundfish fishery under
this paragraph (c)(2).
(iv) Rockfish fishery. In a retained aggregate catch of rockfish of
the genera Sebastes and Sebastolobus that is greater than the retained
catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph (c)(2).
(v) Flatfish fishery. In a retained aggregate catch of all flatfish
species, except Pacific halibut, that is greater than the retained
catch of any other groundfish species or species group that is
specified as a separate groundfish fishery under this paragraph (c)(2).
(vi) Other species fishery. In a retained catch of groundfish that
does not qualify as a pollock, Pacific cod, sablefish, rockfish, or
flatfish fishery as defined under paragraphs (c)(2) (i) through (v) of
this section.
(3) Assignment of vessels to fisheries. At the end of any fishing
trip, a vessel's retained catch of groundfish species or species groups
for which a TAC has been specified under Sec. 679.20, in round weight
or round-weight equivalent, will determine to which fishery category
listed under paragraph (c)(2) of this section the vessel is assigned.
(i) Catcher/processors. A catcher/processor will be assigned to a
fishery category based on the retained groundfish catch composition
reported on the vessel's weekly production report submitted to the
Regional Director under Sec. 679.5(i).
(ii) Catcher vessel delivery in Federal waters. A catcher vessel
that delivers to a mothership in Federal waters will be assigned to a
fishery category based on the retained groundfish catch composition
reported on the weekly production report submitted to the Regional
Director for that week by the mothership under Sec. 679.5(i).
(iii) Catcher vessel delivery in Alaska State waters. A catcher
vessel that delivers groundfish to a shoreside processor or to a
mothership processor vessel in Alaska State waters will be assigned to
a fishery category based on the retained groundfish catch composition
reported on one or more ADF&G fish tickets as required under Alaska
Statutes at A.S. 16.05.690.
(d) Observer requirements for shoreside processors. Observer
coverage is required as follows. A shoreside processor that:
(1) Processes 1,000 mt or more in round weight or round weight
equivalent of groundfish during a calendar month is required to have an
observer present at the facility each day it receives or processes
groundfish during that month.
(2) Processes 500 mt to 1,000 mt in round weight or round-weight
equivalent of groundfish during a calendar month is required to have an
observer present at the facility at least 30 percent of the days it
receives or processes groundfish during that month.
(3) Offloads pollock at more than one location on the same dock and
has distinct and separate equipment at each location to process those
pollock and that receives pollock harvested by catcher vessels in the
catcher vessel operational area during the second pollock season that
starts on September 1, under Sec. 679.23(e)(2), is required to have an
observer, in addition to the observer required under paragraphs (d) (1)
and (2) of this section, at each location where pollock is offloaded,
for each day of the second pollock season until the chum salmon savings
area is closed under Sec. 679.21(e)(7)(vi), or October 15, whichever
occurs first.
(e) Inseason adjustments in observer coverage requirements.
(1) The Regional Director may adjust the observer coverage
requirements set out under paragraphs (c) and (d) of this section at
any time to improve the accuracy, reliability, and availability of
observer data, so long as the changes are based on one or more of the
following:
(i) A finding that fishing methods, times, or areas, or catch or
bycatch composition for a specific fishery or fleet component have
changed significantly, or are likely to change significantly.
(ii) A finding that such modifications are necessary to improve
data availability or quality in order to meet specific fishery
management objectives.
(2) Procedure. Observer coverage requirements may be adjusted in
accordance with Sec. 679.25(c). NMFS must publish changes in observer
coverage requirements in the Federal Register, with the reasons for the
changes and any special instructions to vessels or shoreside processors
required to carry observers, at least 10 calendar days prior to their
effective date.
(f) Responsibilities--(1) Vessel responsibilities. An operator of a
vessel required to carry one or more observers must:
(i) Accommodations and food. Provide, at no cost to observers or
the United States, accommodations and food on the vessel for the
observer or observers that are equivalent to those provided for
officers, engineers, foremen, deck-bosses or other management level
personnel of the vessel.
(ii) Safe conditions. (A) Maintain safe conditions on the vessel
for the protection of observers including adherence to all U.S. Coast
Guard and other applicable rules, regulations, or statutes pertaining
to safe operation of the vessel.
(B) Have on board:
(1) A valid Commercial Fishing Vessel Safety Decal issued within
the past 2 years that certifies compliance with regulations found in 33
CFR Chapter I and 46 CFR Chapter I;
(2) A certificate of compliance issued pursuant to 46 CFR 28.710;
or
(3) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
(iii) Transmission of data. Facilitate transmission of observer
data by:
(A) Observer use of equipment. Allowing observers to use the
vessel's communication equipment and personnel, on request, for the
entry, transmission, and receipt of work-related messages, at no cost
to the observers or the United States.
(B) Communication equipment requirements--(1) Hardware and
software. Ensuring that each mothership that is required to have a
second observer aboard under paragraph (c)(1)(iii) of this section, is
equipped with INMARSAT Standard A satellite communication capabilities
and cc:Mail remote. The operator of each mothership shall also make
available for the observers' use the following equipment compatible
therewith and having the ability to operate the NMFS-supplied data
entry software program: A personal computer with a 486 or greater
capacity processing chip, a DOS 3.0, or a successor version of DOS with
10 megabytes free hard disk storage, and 8 megabytes RAM.
(2) NMFS-supplied Software. Ensuring that each mothership that is
required to have a second observer aboard under paragraph (c)(iii) of
this section, obtains the data entry software provided by the Regional
Director for use by the observer.
(C) Functional and operational equipment. Ensuring that the
communication equipment that is on motherships as specified at
paragraph
[[Page 56433]]
(f)(1)(iii)(B) of this section, and that is used by observers to enter
and transmit data, is fully functional and operational.
(iv) Vessel position. Allow observers access to, and the use of,
the vessel's navigation equipment and personnel, on request, to
determine the vessel's position.
(v) Access. Allow observers free and unobstructed access to the
vessel's bridge, trawl or working decks, holding bins, processing
areas, freezer spaces, weight scales, cargo holds, and any other space
that may be used to hold, process, weigh, or store fish or fish
products at any time.
(vi) Prior notification. Notify observers at least 15 minutes
before fish are brought on board, or fish and fish products are
transferred from the vessel, to allow sampling the catch or observing
the transfer, unless the observers specifically request not to be
notified.
(vii) Records. Allow observers to inspect and copy the vessel's
DFL, DCPL, product transfer forms, any other logbook or document
required by regulations, printouts or tallies of scale weights, scale
calibration records, bin sensor readouts, and production records.
(viii) Assistance. Provide all other reasonable assistance to
enable observers to carry out their duties, including, but not limited
to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observers with a safe work area adjacent to the
sample collection site.
(C) Collecting bycatch when requested by the observers.
(D) Collecting and carrying baskets of fish when requested by
observers.
(E) Allowing observers to determine the sex of fish when this
procedure will not decrease the value of a significant portion of the
catch.
(ix) Transfer at sea. (A) Ensure that transfers of observers at sea
via small boat or raft are carried out during daylight hours, under
safe conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are
transferred, such that the observers can collect personal belongings,
equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure
the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the
small boat or raft in which any transfer is made.
(2) Shoreside processor responsibilities. A manager of a shoreside
processor must do the following:
(i) Safe conditions. Maintain safe conditions at the shoreside
processing facility for the protection of observers by adhering to all
applicable rules, regulations, or statutes pertaining to safe operation
and maintenance of the processing facility.
(ii) Operations information. Notify the observers, as requested, of
the planned facility operations and expected receipt of groundfish
prior to receipt of those fish.
(iii) Transmission of data. Facilitate transmission of observer
data by:
(A) Observer use of equipment. Allowing observers to use the
shoreside processor's communication equipment and personnel, on
request, for the entry, transmission, and receipt of work-related
messages, at no cost to the observers or the United States.
(B) Communication equipment requirements--(1) Hardware and
software. Ensuring that each shoreside processor that is required to
have an additional observer under paragraph (d)(3) of this section,
makes available to the observer the following equipment or equipment
compatible therewith: A personal computer with a 486 or greater
capacity processing chip with at least a 9600-baud modem and a
telephone line. The personal computer must be equipped with a mouse,
Windows version 3.1, or a program having the ability to operate the
NMFS-supplied data entry software program, 10 megabytes free hard disk
storage, and 8 megabytes RAM.
(2) NMFS-supplied software. Ensuring that each shoreside processor
that is required to have an additional observer under paragraph (d)(3)
of this section, obtains the data entry software provided by the
Regional Director for use by the observer.
(C) Functional and operational equipment. Ensuring that the
communication equipment that is in the shoreside processor as specified
at paragraph (f)(2)(iii)(B) of this section and that is used by
observers to transmit data is fully functional and operational.
(iv) Access. Allow observers free and unobstructed access to the
shoreside processor's holding bins, processing areas, freezer spaces,
weight scales, warehouses, and any other space that may be used to
hold, process, weigh, or store fish or fish products at any time.
(v) Document access. Allow observers to inspect and copy the
shoreside processor's DCPL, product transfer forms, any other logbook
or document required by regulations; printouts or tallies of scale
weights; scale calibration records; bin sensor readouts; and production
records.
(vi) Assistance. Provide all other reasonable assistance to enable
the observer to carry out his or her duties, including, but not limited
to:
(A) Assisting the observer in moving and weighing totes of fish.
(B) Cooperating with product recovery tests.
(C) Providing a secure place to store baskets of sampling gear.
(g) Procurement of observer services. Owners of vessels or
shoreside processors required to carry observers under paragraphs (c)
and (d) of this section must arrange for observer services from an
observer contractor or contractors. A list of observer contractors is
available upon request from the Observer Program Office.
(h) Certification and decertification of observers--(1)
Certification of observers--(i) Requirements. NMFS will certify
individuals who:
(A) Meet education and/or experience standards available from the
Observer Program Office.
(B) Have successfully completed a NMFS-approved observer training
and/or briefing as prescribed by NMFS and available from the Observer
Program Office.
(C) Have not been suspended or decertified under paragraph (j) of
this section.
(ii) Term. An observer's certification expires upon completion of a
deployment. Observers can be decertified or suspended by NMFS under
paragraph (j) of this section.
(2) Standards of observer conduct--(i) Conflict of interest.
(A) Observers:
(1) May not have a direct financial interest, other than the
provision of observer services, in a North Pacific fishery, including,
but not limited to, vessels or shoreside facilities involved in the
catching or processing of the products of the fishery, concerns selling
supplies or services to these vessels or shoreside facilities, or
concerns purchasing raw or processed products from these vessels or
shoreside facilities.
(2) May not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts activities that are regulated by NMFS,
or who has interests that may be substantially affected by the
performance or nonperformance of the observers' official duties.
(3) May not serve as observers on any vessel or at any shoreside
facility owned or operated by a person who previously employed the
observers.
[[Page 56434]]
(4) May not serve as observers during the 12 consecutive months
immediately following the last day of the observer's employment in a
North Pacific fishery.
(5) May not solicit or accept employment as a crew member or an
employee of a vessel or shoreside processor in a North Pacific fishery
while under contract with an observer contractor.
(B) Provisions for remuneration of observers under this section do
not constitute a conflict of interest under this paragraph (h)(2).
(ii) Standards of behavior. Observers must avoid any behavior that
could adversely affect the confidence of the public in the integrity of
the Observer Program or of the government, including but not limited to
the following:
(A) Observers must diligently perform their assigned duties.
(B) Observers must accurately record their sampling data, write
complete reports, and report honestly any suspected violations of
regulations relevant to conservation of marine resources or their
environment that are observed.
(C) Observers must not disclose collected data and observations
made on board the vessel or in the processing facility to any person
except the owner or operator of the observed vessel or processing
facility, an authorized officer, or NMFS.
(D) Observers must refrain from engaging in any illegal actions or
any other activities that would reflect negatively on their image as
professional scientists, on other observers, or on the Observer Program
as a whole. This includes, but is not limited to:
(1) Engaging in excessive drinking of alcoholic beverages;
(2) Engaging in the use or distribution of illegal drugs; or
(3) Becoming physically or emotionally involved with vessel or
processing facility personnel.
(i) Certification and decertification of observer contractors--(1)
Certification of observer contractors--(i) Application. An applicant
seeking to become an observer contractor must submit an application to
the Regional Director describing the applicant's ability to carry out
the responsibilities and duties of an observer contractor as set out in
paragraph (i)(2) of this section and the arrangements and methods to be
used. Observer contractors certified prior to January 1, 1997, are
exempt from submitting an application.
(ii) Selection. The Regional Director may select one or more
observer contractors based on the information submitted by applicants
under paragraph (i)(1)(i) of this section and on other selection
criteria that are available from the Observer Program Office.
(iii) Term. Observer contractors will be certified through December
31, 1997. Observer contractors can be decertified or suspended by NMFS
under paragraph (j) of this section.
(2) Responsibilities and duties of observer contractors include but
are not limited to the following:
(i) Recruiting, evaluating, and hiring qualified candidates to
serve as observers, including minorities and women.
(ii) Ensuring that only observers provide observer services.
(iii) Providing observers as requested by vessels and processors to
fulfill requirements under paragraphs (c) and (d) of this section.
(iv) Providing observers' salary, benefits and personnel services
in a timely manner.
(v) Providing all logistics to place and maintain the observers
aboard the fishing vessels or at the site of the processing facility.
This includes all travel arrangements, lodging and per diem, and any
other services required to place observers aboard vessels or at
processing facilities. Unless alternative arrangements are approved by
the Observer Program Office:
(A) Observers must not be deployed on the same vessel or at the
same shoreside processor for more than 90 days in a 12-month period.
(B) A deployment cannot exceed 90 days.
(C) A deployment cannot include assignments to more than four
vessels and/or shoreside processors.
(vi) Supplying alternate observers or prospective observers if one
or more observers or prospective observers are not approved by NMFS,
fail to successfully complete observer training or briefing, are
injured and must be replaced, or resign prior to completion of duties.
(vii) Maintaining communications with observers at sea and
shoreside facilities. Each observer contractor must have an employee
responsible for observer activities on call 24 hours a day to handle
emergencies involving observers, or problems concerning observer
logistics, whenever observers are at sea, stationed at shoreside
facilities, in transit, or in port awaiting boarding.
(viii) In cooperation with vessel or processing facility owners,
ensuring that all observers' in-season catch messages and other
required transmissions between observers and NMFS are delivered to NMFS
within a time specified by the Regional Director.
(ix) Ensuring that observers complete mid-deployment data reviews
when required.
(x) Ensuring that observers complete debriefing as soon as possible
after the completion of their deployment and at locations specified by
the Regional Director.
(xi) Ensuring all data, reports, and biological samples from
observer deployments are complete and submitted to NMFS at the time of
the debriefing interview.
(xii) Ensuring that all sampling and safety gear are returned to
the Observer Program Office and that any gear and equipment lost or
damaged by observers is replaced according to NMFS requirements.
(xiii) Monitoring observers' performance to ensure satisfactory
execution of duties by observers and observer conformance with NMFS'
standards of observer conduct under paragraph (h)(2) of this section.
(xiv) Providing the following information to the Observer Program
Office by electronic transmission (e-mail) or by fax.
(A) Observer training registration consisting of a list of
individuals to be hired upon approval by NMFS and a copy of each
person's academic transcripts, resume, and application for observer
employment. The list must include the person's name and sex. The
person's social security number is requested. Observer briefing
registration consisting of a list of the observer's name, requested
briefing class date, and briefing location. If the Observer Program
Office has excused an observer from attending a briefing, the briefing
registration must also include the names of observers excused from
briefing, the date the observer was excused, and the name of the NMFS
staff person granting the excuse. This information must be submitted to
the Observer Program Office at least 5 working days prior to the
beginning of a scheduled observer certification training or briefing
session.
(B) Projected observer assignments that include the observer's
name; vessel or shoreside processor assignment, type, and code; port of
embarkation; target species; and area of fishing. This information must
be submitted to the Observer Program Office prior to the completion of
the training or briefing session.
(C) Observer deployment/logistics reports that include the
observer's name, cruise number, current vessel or shoreside processor
assignment and code, embarkation date, and estimated and actual
disembarkation dates. This information must be submitted weekly
[[Page 56435]]
as directed by the Observer Program Office.
(D) Observer debriefing registration that includes the observer's
name, cruise number, vessel or shoreside processor name(s), and
requested debriefing date.
(E) Copies of ``certificates of insurance'' that name the NMFS
Observer Program Task Leader as a ``certificate holder''. The
certificates of insurance shall verify the following coverage
provisions and state that the insurance company will notify the
certificate holder if insurance coverage is changed or cancelled:
(1) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(2) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(3) States Workers' Compensation as required.
(4) Contractual General Liability.
(F) Notification that, based upon a physical examination during the
12 months prior to an observer's deployment, an examining physician has
certified that an observer does not have any health problems or
conditions that would jeopardize the observer's safety or the safety of
others while deployed, or prevent the observer from performing his or
her duties satisfactorily, and that prior to examination, the
certifying physician was made aware of the dangerous, remote and
rigorous nature of the work. This information, including the date of
the physical examination, must be submitted prior to the completion of
the training or briefing session.
(G) A copy of each type of signed and valid contract an observer
contractor has with those entities requiring observer services under
paragraphs (c) and (d) of this section and with observers. Copies of
contracts with specific entities requiring observer services or with
specific observers must be submitted to the Observer Program Office
upon request.
(H) Reports of observer harassment, concerns about vessel or
processor safety, or observer performance problems must be submitted
within 24 hours after the observer contractor becomes aware of the
problem.
(3) Conflict of interest. Observer contractors:
(i) Must not have a direct financial interest, other than the
provision of observer services, in a North Pacific fishery, including,
but not limited to, vessels or shoreside facilities involved in the
catching or processing of the products of the fishery, concerns selling
supplies or services to these vessels or shoreside facilities, or
concerns purchasing raw or processed products from these vessels or
shoreside facilities.
(ii) Must assign observers without regard to any preference by
representatives of vessels and shoreside facilities based on observer
race, gender, age, religion, or sexual orientation.
(iii) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts activities that are regulated by NMFS,
or who has interests that may be substantially affected by the
performance or nonperformance of the official duties of observer
contractors.
(j) Suspension and Decertification Process--(1) Applicability. This
paragraph (j) sets forth the procedures for suspension and
decertification of observers and observer contractors under this
section.
(2) Policy. (i) NMFS must certify responsible and qualified
observers and observer contractors only. Suspension and decertification
are discretionary actions that, taken in accordance with this section,
are appropriate means to effectuate this policy.
(ii) The serious nature of suspension and decertification requires
that these actions be taken only in the public interest for the
promotion of fishery conservation and management and not for purposes
of punishment. NMFS may impose suspension or decertification only for
the causes and in accordance with the procedures set forth in this
section.
(iii) In addition to suspension and decertification, observers and
observer contractors who violate provisions of this part may be subject
to penalties, fines, and other sanctions as authorized by law.
(3) Public availability of suspension or decertification records.
Public availability of suspension or decertification records will
depend upon the provisions of the Freedom of Information Act and other
applicable law.
(4) Effect and timing of suspension or decertification. (i)
Observers or observer contractors decertified or suspended must not
provide services prescribed by this section to vessels and shoreside
processors.
(ii) Suspension and decertification actions may be combined and
imposed simultaneously.
(iii) Suspension or decertification of observer contractors
includes all divisions or other organizational elements of observer
contractors, unless the suspension or decertification decision is
limited by its terms to specific divisions or organizational elements.
The suspending or decertifying official may, at his or her sole
discretion, include any affiliates of observer contractors if they are
specifically named and given written notice of the suspension or
proposed decertification and an opportunity to respond under paragraph
(j)(5)(iii)(B) or (j)(6)(iii)(C) of this section.
(5) Suspension--(i) General. (A) The suspending official may, in
the public interest, suspend observers or observer contractors for any
of the causes in paragraph (j)(5)(ii) of this section, using the
procedures in paragraph (j)(5)(iii) of this section.
(B) Suspension may be imposed on the basis of adequate evidence,
pending the completion of investigation or legal proceedings, when NMFS
determines that immediate action is necessary. In assessing the
adequacy of the evidence, the suspending official should consider how
much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result.
(ii) Causes for suspension. The suspending official may suspend
observers or observer contractors:
(A) Upon a determination, based upon adequate evidence, that
observers or observer contractors committed any acts or omissions
constituting a cause for decertification under paragraph (j)(6)(ii) of
this section; or
(B) Upon indictment for any of the causes for decertification in
(j)(6)(ii)(A)(1) or (j)(6)(ii)(B)(1) of this section.
(iii) Procedures--(A) Review. The suspending official must review
all available evidence and must promptly determine whether or not to
proceed with suspension. The suspending official may refer the matter
to the NMFS investigator for further investigation, or to the
decertifying officer.
(B) Notice of suspension. When observers or observer contractors
and any specifically named affiliates are suspended, they must be
immediately advised personally or by certified mail, return receipt
requested, at the last known residence or place of business:
(1) That they have been suspended and that the suspension is based
on an indictment or other adequate evidence that observers or observer
contractors have committed acts or omissions constituting grounds for
suspension under (j)(5)(ii) of this section. Such acts or omissions may
be described in terms sufficient to place observers or observer
[[Page 56436]]
contractors on notice without disclosing NMFS' evidence.
(2) That the suspension is for a temporary period pending the
completion of an investigation and such decertification proceedings as
may ensue.
(3) Of the cause(s) relied upon under paragraph (j)(5)(ii) of this
section for imposing suspension.
(4) Of the effect of the suspension.
(5) That, within 30 days after receipt of the notice, the observers
or observer contractors may submit, in writing, documentary evidence
and argument in opposition to the suspension, including any additional
specific documentary evidence that raises a genuine dispute over the
material facts.
(6) That additional proceedings to determine disputed material
facts may be conducted unless:
(i) The action is based on an indictment; or
(ii) A determination is made, on the basis of NOAA General Counsel
advice, that the substantial interests of the government in pending or
contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(C) Dispute. For suspensions not based on an indictment, if NMFS
determines that the observers' or observer contractors' submission in
opposition raises a genuine dispute over facts material to the
suspension and if no determination has been made, on the basis of NOAA
General Counsel advice, that substantial interests of the government in
pending or contemplated legal proceedings based on the same facts as
the suspension would be prejudiced, the suspending official:
(1) Must afford observers or observer contractors an opportunity to
submit additional documentary evidence upon a showing that such
documentary evidence was unavailable during the 30-day period following
receipt of the notice of suspension.
(2) May, at his or her sole discretion, afford observers or
observer contractors an opportunity to appear in person, present
witnesses, and confront any person NMFS presents. The suspending
official must make an audio tape of the proceedings and make a copy
available at cost to observers or observer contractors upon request,
unless observers or observer contractors and NMFS, by mutual agreement,
waive the requirement for an audio tape.
(D) Suspending official's decision. (1) The suspending official's
decision must be based on all the information in the administrative
record, including any submission made by observers or observer
contractors on action based on an indictment:
(i) In which observers or observer contractors' submissions do not
raise a genuine dispute over material facts; or
(ii) In which additional proceedings to determine disputed material
facts have been denied on the basis of NOAA General Counsel advice.
(2) In actions in which additional proceedings are necessary as to
disputed material facts, written findings of fact must be prepared. The
suspending official must base the decision on the facts as found,
together with any information and argument submitted by observers or
observer contractors and any other information in the administrative
record.
(3) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part.
(4) The suspending official's decision must be made after the
conclusion of the proceedings with respect to disputed facts.
(5) Prompt written notice of the suspending official's decision to
affirm, modify, or terminate the notice of suspension issued under this
paragraph (j)(5) must be served on observers or observer contractors
and any affiliates involved, personally or by certified mail, return
receipt requested, at the last known residence or place of business.
(E) Period of suspension. (1) Suspension is for a temporary period
pending the completion of any investigation and any ensuing legal
proceedings or decertification proceedings, including any
administrative review under paragraph (j)(7) of this section, unless
sooner terminated by the suspending official or as provided under this
paragraph (j). If suspension is in effect, the decertifying official
will expedite any related decertification proceedings.
(2) If legal proceedings or decertification proceedings are not
initiated within 12 months after the date of the suspension notice, the
suspension must be terminated.
(F) Scope of suspension for observer contractors. The scope of
suspension must be the same as that for decertification under paragraph
(j)(6)(v), except that the procedures set out under paragraph (j)(5)
must be used in imposing suspension.
(6) Decertification--(i) General. The decertifying official may, in
the public interest, decertify observers or observer contractors for
any of the causes in paragraph (j)(6)(ii) of this section using the
procedures in paragraph (j)(6)(iii) of this section. The existence of a
cause for decertification does not necessarily require that observers
or observer contractors be decertified; the seriousness of the acts or
omissions and any mitigating factors should be considered in making any
decertification decision. The existence or nonexistence of any
mitigating factors is not necessarily determinative of an observers' or
observer contractors' present fitness. Accordingly, if a cause for
decertification exists, observers or observer contractors have the
burden of demonstrating, to the satisfaction of the decertifying
official, present fitness and that decertification is not necessary.
(ii) Causes for decertification--(A) Observers. (1) The
decertifying official may decertify observers for a conviction of or
civil judgment for the following:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties of observers as prescribed by NMFS;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property; or
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the present
fitness of observers.
(2) The decertifying official may decertify observers, based upon a
preponderance of the evidence, upon a determination that observers
have:
(i) Failed to satisfactorily perform the duties of observers as
prescribed by NMFS; or
(ii) Failed to abide by the standards of conduct for observers as
prescribed under paragraph (h)(2) of this section.
(B) Observer contractors. (1) The decertifying official may
decertify observer contractors for a conviction of or civil judgment
for the following:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
responsibilities and duties of observer contractors as prescribed under
paragraph (i)(2) of this section;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property; or
(iii) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present fitness of observer contractors.
(2) The decertifying official may decertify observer contractors,
based upon a preponderance of the evidence,
[[Page 56437]]
upon a determination that observer contractors have:
(i) Failed to satisfactorily perform the responsibilities and
duties of observer contractors as prescribed under paragraph (i)(2) of
this section; or
(ii) A conflict of interest as set out under paragraph (i)(3) of
this section.
(iii) Procedures--(A) Investigation and referral. NMFS personnel
must promptly report to the NMFS investigator matters appropriate for
further investigation. The NMFS investigator must investigate matters
so referred and submit the investigative material to the decertifying
official or, if appropriate, to the suspending official.
(B) Review. The decertifying official must review all available
evidence and must promptly determine whether or not to proceed with
decertification. The decertifying official may refer the matter to the
NMFS investigator for further investigation or, if appropriate, to the
suspending official.
(C) Notice of proposed decertification. If the decertifying
official determines to proceed with decertification, he or she must
serve a notice of proposed decertification upon observers or observer
contractors and any specifically named affiliates, personally or by
certified mail, return receipt requested, at the last known residence
or place of business, advising:
(1) That decertification is being considered.
(2) Of the reasons for the proposed decertification in terms
sufficient to put observers or observer contractors on notice of the
conduct or transaction(s) upon which it is based.
(3) Of the cause(s) relied upon under paragraph (j)(6)(ii) of this
section for proposing decertification.
(4) That, within 30 days after receipt of the notice, observers or
observer contractors may submit, in writing, documentary evidence and
argument in opposition to the proposed decertification, including any
additional specific documentary evidence that raises a genuine dispute
over the material facts.
(5) Of NMFS' procedures governing decertification decision making.
(6) Of the effect of the issuance of the notice of proposed
decertification.
(7) Of the potential effect of an actual decertification.
(D) Dispute. In actions not based upon a conviction or civil
judgment, if it is found that observers' or observer contractors'
submissions raise a genuine dispute over facts material to the proposed
decertification, the decertifying official:
(1) Must afford observers or observer contractors an opportunity to
submit additional documentary evidence upon a showing that such
documentary evidence was unavailable during the 30-day period following
receipt of the notice of proposed decertification.
(2) May, at his or her sole discretion, afford observers or
observer contractors an opportunity to appear in person, present
witnesses, and confront any person NMFS presents. The decertifying
official must make an audio tape of the proceedings and make a copy
available at cost to observers or observer contractors upon request,
unless observers or observer contractors and NMFS, by mutual agreement,
waive the requirement for an audio tape.
(E) Decertifying official's decision. (1) In actions based upon a
conviction or judgment, or in which there is no genuine dispute over
material facts, the decertifying official must make a decision on the
basis of all the information in the administrative record, including
any submission made by observers or observer contractors. The decision
must be made after receipt of any timely information and argument
submitted by observers or observer contractors.
(2) In actions in which additional proceedings are necessary as to
disputed material facts, written findings of fact must be prepared. The
decertifying official must base the decision on the facts as found,
together with any information and argument submitted by observers or
observer contractors and any other information in the administrative
record.
(3) The decertifying official may refer matters involving disputed
material facts to another official for findings of fact. The
decertifying official may reject any such findings, in whole or in
part.
(4) The decertifying official's decision must be made after the
conclusion of the proceedings with respect to disputed facts.
(5) In any action in which the proposed decertification is not
based upon a conviction or civil judgment, the cause for
decertification may be established by a preponderance of the evidence.
(F) Notice of decertifying official's decision. (1) If the
decertifying official decides to impose decertification, observers or
observer contractors and any affiliates involved must be given prompt
notice personally or by certified mail, return receipt requested, at
the last known residence or place of business. Such notice must:
(i) Refer to the notice of proposed decertification.
(ii) Specify the reasons for decertification.
(iii) Advise that the decertification is effective immediately,
unless the decertifying official determines that there is a compelling
reason for maintaining certification for a specified period under
conditions and restrictions necessary and appropriate to protect the
public interest or promote fishery conservation and management and
states the reasons in the notice.
(2) If decertification is not imposed, the decertifying official
must promptly notify observers or observer contractors and any
affiliates involved, by certified mail, return receipt requested, at
the last known residence or place of business.
(iv) Period of decertification. (A) Decertification must be in
force indefinitely or until rescinded.
(B) The decertifying official may rescind decertification, upon
observers' or observer contractors' request, supported by
documentation, for reasons such as:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
decertification was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the decertification was
imposed; or
(5) Other reasons the decertifying official deems appropriate.
(v) Scope of decertification. (A) The improper conduct of any
officer, director, shareholder, partner, employee, or other individual
associated with observer contractors may be imputed to the observer
contractors when the conduct occurred in connection with the
performance of duties for or on behalf of observer contractors, or with
observer contractors' knowledge, approval, or acquiescence. Observer
contractors' acceptance of the benefits derived from the conduct must
be evidence of such knowledge, approval, or acquiescence.
(B) The improper conduct of observer contractors may be imputed to
any officer, director, shareholder, partner, employee, or other
individual associated with observer contractors who participated in,
knew of, or had reason to know of the observer contractors' conduct.
(7) Administrative review of suspension or decertification.
(i) Observers or observer contractors may petition for review of a
suspension decision issued under paragraph (j)(5)(iii) of this section
or a decertification decision issued under paragraph (j)(6)(iii) of
this section within 30 days after the date the decision was served. The
petition must
[[Page 56438]]
be addressed to the appeals officer identified in the notice of
suspension or decertification. Any petitioned suspension will remain in
effect pending the appeals officer's written decision to affirm, modify
or terminate the suspension.
(ii) Administrative review is discretionary. Petitions for
discretionary review may be filed only upon one or more of the
following grounds:
(A) A finding of material fact is clearly erroneous based upon the
administrative record;
(B) A substantial and important question of policy or discretion is
involved; or
(C) A prejudicial error has occurred.
(iii) If the appeals officer declines review based on the written
petition, observers or observer contractors must be immediately advised
of the decision to decline review personally or by certified mail,
return receipt requested, at the last known residence or place of
business.
(iv) If the appeals officer grants review based on the written
petition, he or she may request further written explanation from
observers, observer contractors, or the decertifying officer or
suspending officer. The appeals officer will then render a written
decision to affirm, modify, or terminate the suspension or
decertification or return the matter to the suspending or decertifying
official for further findings. The appeals officer must base the
decision on the administrative records compiled under paragraphs (j)(5)
or (i)(7) of this section, as appropriate. The appeals officer will
serve the decision on observers or observer contractors and any
affiliates involved, personally or by certified mail, return receipt
requested, at the last known residence or place of business.
(v) An appeals officer's decision imposing suspension, or
decertification or an unpetitioned suspending, or decertifying
official's decision is the final administrative decision of the U.S.
Department of Commerce.
(k) Release of observer data to the public--(1) Summary of weekly
data. The following information collected by observers for each catcher
processor and catcher vessel during any weekly reporting period may be
made available to the public:
(i) Vessel name and Federal permit number.
(ii) Number of chinook salmon and ``other salmon'' observed.
(iii) The ratio of total round weight of halibut or Pacific herring
to the total round weight of groundfish in sampled catch.
(iv) The ratio of number of king crab or C. bairdi Tanner crab to
the total round weight of groundfish in sampled hauls.
(v) The number of observed trawl hauls or fixed gear sets.
(vi) The number of trawl hauls that were basket sampled.
(vii) The total weight of basket samples taken from sampled trawl
hauls.
(2) Haul-specific data. (i) The information listed in paragraphs
(k)(2)(i) (A) through (M) of this section and collected by observers
from observed hauls on board vessels using trawl gear to participate in
a directed fishery for groundfish other than rockfish, Greenland
turbot, or Atka mackerel may be made available to the public:
(A) Date.
(B) Time of day gear is deployed.
(C) Latitude and longitude at beginning of haul.
(D) Bottom depth.
(E) Fishing depth of trawl.
(F) The ratio of the number of chinook salmon to the total round
weight of groundfish.
(G) The ratio of the number of other salmon to the total round
weight of groundfish.
(H) The ratio of total round weight of halibut to the total round
weight of groundfish.
(I) The ratio of total round weight of herring to the total round
weight of groundfish.
(J) The ratio of the number of king crab to the total round weight
of groundfish.
(K) The ratio of the number of C. bairdi Tanner crab to the total
round weight of groundfish.
(L) Sea surface temperature (where available).
(M) Sea temperature at fishing depth of trawl (where available).
(ii) The identity of the vessels from which the data in paragraph
(k)(2)(i) of this section are collected will not be released.
(3) Competitive harm. In exceptional circumstances, the owners and
operators of vessels may provide to the Regional Director written
justification at the time observer data are submitted, or within a
reasonable time thereafter, that disclosure of the information listed
in paragraphs (k) (1) and (2) of this section could reasonably be
expected to cause substantial competitive harm. The determination
whether to disclose the information will be made pursuant to 15 CFR
4.7.
PART 679--[AMENDED]
11. In part 679, remove ``NMFS-certified'' wherever it occurs.
[FR Doc. 96-27891 Filed 10-31-96; 8:45 am]
BILLING CODE 3510-22-W
