[Federal Register Volume 63, Number 95 (Monday, May 18, 1998)]
[Rules and Regulations]
[Pages 27213-27218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13131]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 970829214-8090-02; I.D. 082097B]
RIN 0648-AJ76
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Observer Health and Safety
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS amends the regulations that pertain to fishery observers
and the vessels that carry them. This regulatory amendment implements
measures to ensure the adequacy and safety of fishing vessels that
carry observers. Owners and operators of fishing vessels that carry
observers are required to comply with guidelines, regulations, and
conditions in order to ensure that their vessels are adequate and safe
for the purposes of carrying an observer and allowing normal observer
functions.
DATES: Effective June 17, 1998.
ADDRESSES: Copies of the Regulatory Impact Review prepared for this
action may be obtained from NMFS, SF3, 1315 East-West Highway, Silver
Spring, MD 20910, Attn: William J. Bellows.
FOR FURTHER INFORMATION CONTACT: William J. Bellows, 301-713-2341.
SUPPLEMENTARY INFORMATION:
Background
The Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act), as amended (16 U.S.C. 1801 et seq.), the Marine
Mammal Protection Act, as amended (MMPA; 16 U.S.C. 1361 et seq.), and
the Atlantic Tunas Convention Act, as amended (ATCA; 16 U.S.C. 971 et
seq.) authorize the Secretary of Commerce (Secretary) to station
observers aboard commercial fishing vessels to collect scientific data
required for fishery and protected species conservation and management,
to monitor incidental mortality and serious injury to marine mammals
and to other species listed under the Endangered Species Act (ESA), and
to monitor compliance with existing Federal regulations. In addition,
pursuant to the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.)
observers may be required in the South Pacific Tuna Fishery.
The Magnuson-Stevens Act directs that--
...the Secretary shall promulgate regulations, after notice and
opportunity for public comment, for fishing vessels that carry
observers. The regulations shall include guidelines for
determining--
(1) when a vessel is not required to carry an observer on board
because the facilities of such vessel for the quartering of an
observer, or for carrying out observer functions, are so inadequate
or unsafe that the health or safety of the observer or the safe
operation of the vessel would be jeopardized; and
(2) actions which vessel owners or operators may reasonably be
required to take to render such facilities adequate and safe.
A proposed rule to implement the required measures was published in
the Federal Register on September 22, 1997 (62 FR 49463), and invited
public comment through October 22, 1997. Several comments were received
late in the comment period requesting that the comment period be
extended. NMFS extended the comment period 30 days (62 FR 55774,
October 28, 1997).
Eleven letters of comment were received concerning the proposed
rule. Of these 11, eight expressed opposition to the rule or to
specific provisions in the rule, and one letter was signed by eight
individuals who represented different industry organizations. Two
letters expressed strong support for the rule, one of which was from an
observer organization with approximately 200 members. One letter
expressed neither opposition nor support but listed many problems that
observers face on the job.
Comment 1: The publication of the rule was inadequately
advertised/announced. It was not on any of the following notice
mediums: NMFS bulletin boards, NMFS press release, NMFS homepage, or
Alaska Region homepage. The commenter requested an extension of the 30-
day comment period.
[[Page 27214]]
Response: The proposed rule was published in the Federal Register
on September 22, 1997 (62 FR 49463). The comment period was extended
for 30 days and was announced by publication in the Federal Register on
October 28, 1997 (62 FR 55774). In addition to the October 28
publication of the extension of the comment period, both the proposed
rule and the extension of the comment period were posted on the NMFS
homepage and on the Alaska Region homepage during the extended comment
period.
Comment 2: The 30-day extension of the comment period is grossly
inadequate.
Response: NMFS disagrees. By extending the public comment period
by an additional 30 days, NMFS doubled the length of the original
comment period. NMFS believes that a 60-day public comment period is
adequate.
Comment 3: Observers are not qualified to make a judgement
regarding vessel safety.
Response: It is true that observers do not receive the same vessel
safety examination training that U.S. Coast Guard (USCG) personnel do.
However, NMFS observers are provided training that addresses vessel
safety. For example, in the North Pacific observer training, observers
are taught to look for obvious areas of non-compliance that may
jeopardize their safety. In addition to viewing several safety videos,
the observers are shown a set of ``safety tour'' slides in which they
are asked to look for items on a safety check list. Section
600.746(c)(3) has been added to the rule; this section encourages the
observer to check major safety items (as identified by the USCG) and to
briefly check the vessel's major spaces for especially hazardous
conditions. The intent of this rule is not to empower an observer as a
USCG enforcement official. Its purpose is to encourage an observer to
check the major safety items identified in Sec. 600.746(c)(3); if these
items are absent or unserviceable, the rule empowers the observer not
to sail with the vessel until those deficiencies are corrected. The
observer's pre-trip safety check will be made in accordance with
published USCG guidance on some of the most important items that would
be required in the event of an at-sea emergency.
Comment 4: The rule's evaluation that there will be no significant
impact on a substantial number of small entities is wrong. If an
observer refuses to board a vessel that is safe in accordance with USCG
standards, the vessel could be delayed in departing long enough to miss
an important part of a short season, resulting in significant lost
opportunity to fish. The observer's refusal could be the result of poor
judgement, lack of expertise or training, or vindictiveness.
Response: NMFS has added language to the rule in
Sec. 600.746(c)(3) that is intended to minimize, if not eliminate, the
possibility of an observer making a decision, for whatever reason,
regarding a safe vessel that would delay its beginning legal fishing at
the optimum time. The above-mentioned section was added to the
regulations in order to give the observer detailed guidance regarding
the pre-trip safety check. In addition, this document makes it clear
that the observer's safety check is to confirm that the USCG safety
decal is current and to spot-check other safety items by conducting a
brief walk through the vessel's major spaces to check for obviously
hazardous conditions. NMFS believes that the training observers now
receive is adequate to enable an observer to conduct the pre-trip
safety check as discussed in the response to comment 3.
Comment 5: There are no provisions for redress and appeal in the
event that a vessel is unnecessarily detained or impacted.
Response: There are no specific procedures for redress or appeal
in these regulations. It would be redundant to include those legal
procedures here because they are available to anyone who considers that
he or she has experienced wrongful negative impact of any regulations.
As is suggested in the response to comment 17, when a vessel operator
disputes the observer's decision and is unable to reach a resolution,
the vessel operator should call the USCG and request reexamination of
the issue in dispute.
Comment 6: If the regulations were approved in the absence of USCG
regulations, they would be inadequate.
Response: They are not being approved in the absence of USCG
regulations. The intent of this rule is to build upon the USCG and
other safety regulations. The regulations intend to insure the safety
of observers at sea without duplicating USCG regulations, which are
designed to insure the safety of all persons on board fishing vessels.
Comment 7: All vessels carrying observers are required to have a
current safety decal; consequently, there is no basis for an observer
refusing to board a vessel.
Response: If the decal is valid (current) and if no safety
equipment has been lost, damaged, or is otherwise unserviceable, there
should be no safety-related reasons for an observer to refuse boarding.
If, on the other hand, the decal is current, but safety equipment is
missing or unserviceable, the observer is authorized not to board the
vessel.
Comment 8: The style of referring to other sections of the CFR is
difficult to read and understand. Furthermore, some of the sections
cited have not been written.
Response: This rule cites other sections of the CFR rather than
duplicating those sections in order to make the regulations published
in the Federal Register as concise as possible. NMFS wants the
regulations to refer to the most recent versions of the regulations
cited. If other agencies' regulations were repeated in NMFS'
regulations, it would be nearly impossible for NMFS to keep the
regulations current. By citing the other agencies' regulations, the
reference is always to the most recently amended regulation. All cited
sections have been written and published before they are incorporated
into the CFR except for citations to the rule being enacted through
this action. The regulatory text for this rule follows after this
preamble. Some changes may have been too recent to appear in the CFR
dated October 1996, which was the last-published CFR at the time that
the proposed rule was published.
Comment 9: USCG no longer performs no-cost inspections of
processor vessels.
Response: The commenter is correct. Processing vessels examined by
private organizations comprise the only category of fishing vessels
that pays to have inspections done. These for-fee inspections are in
lieu of USCG dock-side examinations but do not preclude at-sea
examinations by USCG. The inspections of processing vessels are
required whether observer safety rules are in effect or not.
Comment 10: This rulemaking is premature; ``neither the industry
nor NMFS is ready at this time to begin discussions on such rules.
Before that discussion can begin, NMFS first needs to develop
appropriate rules regarding onboard observers in all the other
fisheries in which they have been deemed necessary.''
Response: This rule is required by the Magnuson-Stevens Act.
Comment 11: It is unrealistically generous to require that
accommodations be equivalent to those of the vessel's officers.
Observers do not warrant treatment as officers.
Response: This rule requires nothing specific regarding
accommodations for observers. It merely refers to regulations already
in place.
Comment 12: Under the regulations that would be put in place by
this rule, if all vessels were required to carry
[[Page 27215]]
observers, all vessels would have to undergo safety inspections. This
would mean the end of uninspected fishing vessels.
Response: Under the assumptions made by the commenter, it is true
that if all vessels were required to carry observers, all of them would
have to be examined. At the present time, however, not all vessels are
required to carry observers. NMFS wants fishing vessels carrying
observers to fish safely, and undergoing USCG safety examinations
promotes safety.
Comment 13: What is the authority under which regional
requirements governing observer accommodations might be developed? It
is possible that these regional requirements could have unintended
effects. For example, if the regional requirement deals with an issue
that is judged subjectively, such as the adequacy of accommodations or
food, the observer in applying that subjective judgement could keep a
safe vessel from fishing.
Response: The authorities under which regional requirements are
developed are the Magnuson-Stevens Act, the Marine Mammal Protection
Act, and the ESA. The addition of Sec. 600.746(c)(3) to the rule should
eliminate the problem of subjective judgement in conducting the
vessel's pre-trip safety check. It is not the intent of this rule to
develop regional requirements.
Comment 14: If a vessel has a valid USCG safety decal, there
should be no question concerning the vessel's safety. To then have an
observer, who has the authority to refuse to board the vessel because
of a safety deficiency, is double jeopardy.
Response: If a vessel has passed a USCG dock-side safety
examination, the regulations indicate that such vessel would be
considered safe with respect to the USCG regulations. However, it is
possible that some requirements with which the vessel was in compliance
at the time of the USCG safety examination may not be met at the time
of boarding by an observer for a specific trip. NMFS has added language
at Sec. 600.746(c)(3) that encourages the observer to examine some of
the most important items that would be required in the case of an
emergency at sea. This approach is consistent with that applied by USCG
in recognizing that changes in vessel safety may occur between the time
when a USCG safety decal is issued and the beginning of subsequent
fishing. NMFS notes that this rule gives an observer authority not to
board an unsafe or inadequate vessel. If such a vessel is operating in
a fishery with mandatory observer coverage, the result of the
observer's refusing to board might be that the vessel would not be
authorized to conduct fishing.
Comment 15: This rule cites other regulations already in place,
which suggests that regulations to effect safety are already in place.
That being the case, this rule will not change anything.
Response: This rule applies safety standards to all fisheries,
including those for which no other observer regulations are in place.
In fisheries with mandatory observer programs in place now, and for
those in which mandatory programs may be established, this rule makes
it a violation to fish without an observer aboard. This rule also
requires vessels to submit to an otherwise voluntary inspection program
to provide evidence of compliance with safety standards.
Comment 16: This rule is an attempt to exceed the authority
conveyed by the Magnuson-Stevens Act in that it goes beyond USCG
regulations by authorizing an observer to refuse to board an unsafe
vessel, thereby keeping the vessel from fishing legally. It goes beyond
what is necessary to provide a safe environment for an observer, and it
gives an observer authority that Congress gave to USCG.
Response: NMFS believes that the rule does not go beyond what is
required to provide a safe environment for observers and for other
persons aboard fishing vessels. The intent of the rule is not to
empower an observer with USCG enforcement official status; its intent
is to provide a safe vessel for an assigned observer. The NMFS rule
does not encroach on USCG authority to terminate a voyage. Rather, it
conditions a vessel's ability to fish safely by requiring compliance
with existing regulations enforced by the USCG. The authority to
regulate fishing activities properly rests with NMFS.
Comment 17: If NMFS wants to require more than vessel-provided
personal flotation devices (PFDs) and safety briefings, it should
specifically identify the requirements that relate to observer safety
rather than to such other safety concerns as the environment. NMFS
should also consider which safety requirements warrant giving observers
``the extraordinary authority to prevent a vessel from undertaking a
fishing trip.''
Response: NMFS is not giving greater significance to some USCG
regulations than to others. NMFS is encouraging observers to check for
compliance with existing regulations. A safety decal is considered to
be evidence of compliance, but if there is other obvious non-
compliance, the observer has the option of not boarding the vessel. If
the vessel operator disputes the observer's decision, which should be
based upon published USCG guidance on some of the most important items
that would be required in the event of an at-sea emergency, and no
resolution is reached, the vessel operator should call the USCG to
request reexamination of the issue in dispute. The addition of
Sec. 600.746(c)(3) clarifies which items the observer should check at
the time of boarding. The observer's pre-trip safety check will be made
in accordance with published Coast Guard Guidance on some of the most
important items that would be required in the event of an at-sea
emergency. NMFS recognizes that, in some circumstances, an observer may
raise a safety question that requires a vessel to wait for a USCG
boarding before fishing. It is true that this could result in a loss of
fishing days. In structuring the rule this way, NMFS had to weigh the
impacts of this approach versus the impacts of alternative approaches.
Just as there is a potential for a vindictive observer declining to
board and thereby delaying a vessel's departure, other approaches would
have raised the possibility of an observer being coerced into boarding
a vessel that he or she believes is unsafe. Given the safety risks at
issue and the probability that most safety violations will be easily
remedied, e.g., replacing PFDs, NMFS determined that placing the
presumptions in the selected manner was preferable.
Whenever possible, vessel owners/operators are encouraged to
arrange for the observer to make the pre-trip safety check in advance
of the beginning of the planned fishing trip. In that way, there would
be time to correct problems without delaying the trip's departure time.
Comment 18: There are alternatives that would accomplish NMFS'
objectives that were not considered by NMFS. One alternative is to
provide an automatic waiver for those situations in which an observer
refused to board a vessel for safety reasons. The waiver would be valid
until the vessel had undergone a USCG inspection either at sea or in
port. Alternative two would be to require that the safety determination
be made by a NMFS enforcement agent who had completed the USCG training
program for vessel safety inspections. Alternative three would be to
determine which classes of vessels have consistently failed to provide
safe working conditions for observers. Only those classes of vessels
would be required to comply with the rule. Vessels with proven safety
records would be exempt from the provisions of this rule.
[[Page 27216]]
Response: Alternative one would void the intent of the rule. It
would not make the vessel safe for the observer on the fishing trip
that the observer was assigned to observe. Furthermore, it could
provide an opportunity for vessel operators to avoid taking observers
by incurring safety violations, such as no PFD for the observer. By
authorizing an observer to refuse to board an unsafe vessel and by
making it illegal to fish without an observer in a mandatory observer
fishery, there is a strong incentive for the vessel to meet all USCG
safety regulations. Alternative two was considered and rejected. It is
equally possible that a NMFS enforcement agent, like an observer, would
discover a safety violation that would delay a vessel's fishing trip.
This option would also create the risk of an observer having to board a
vessel that he or she believes is unsafe. In addition, from a practical
standpoint, the current work load for NMFS enforcement agents makes it
impossible for them to undertake this responsibility and continue to
perform other enforcement functions/duties. Alternative three is not
feasible because vessel safety is an individual vessel issue not one
that can be addressed by classes of vessels.
Comment 19: The rule does not analyze measures taken by regions.
Response: It is not the intent of this rule to analyze measures
taken by regions. That analysis is done at the time those measures are
developed and proposed in the rulemaking process.
Comment 20: One commenter believes that, should an observer refuse
to board a vessel because of safety deficiencies, there could be legal
implications beyond the simple issue of the USCG safety requirement and
the vessel's fishing. ``After an observer has determined a vessel to be
unsafe, a crew member injures themself [sic] in the factory.
Considering the Jones Act, the lawyers would have a field day.''
Response: NMFS believes this comment refers to the possible use of
an observer's safety determinations as evidence in a law suit. As
stated in the responses to comments 3 and 16, this rule is not intended
to give observers the authority to make actual determinations as to a
vessel's compliance with USCG regulations. Rather, it simply requires
that a vessel, if its safety has been called into question, rectify the
shortcoming or submit to a new USCG safety examination or inspection.
If anything, this rule is likely to reduce the number of negligence
claims because vessels with questionable safety issues will correct
them or be reexamined by USCG before fishing.
Comment 21: The USCG should be consulted.
Response: The USCG was involved at every stage of development of
this rule.
Comment 22: One commenter raised specific issues about an observer
who was terminated and who subsequently filed suit.
Response: Because the case is before the court, it would be
inappropriate for NMFS to respond at this time.
Changes From the Proposed Rule
Four changes were made from the proposed rule. One was made in
response to comments: A provision was added at Sec. 600.746(c)(3) to
provide guidance on the scope of the observer's pre-trip safety check.
Another change was made to clarify that USCG performs either an
inspection or an examination: The words ``examination or inspection''
replaced ``inspection'' in Secs. 600.725(p), 600.746(c)(1), and
600.746(d)(1) so that it is clear that either an examination or an
inspection can be performed.
The word ``Examination'' was inserted in Sec. 600.746(c)(1) in
order to more clearly identify the Commercial Fishing Vessel Safety
Examination decal.
The word ``examine'' replaced ``inspect'' in Sec. 600.746(c)(2) in
order to avoid confusion with USCG inspection.
The observer's pre-trip safety check of a vessel that displays a
current Commercial Fishing Vessel Safety Examination decal will
normally consist of no more than a spot check of the equipment
identified in Sec. 600.746(c)(3), i.e., PFDs/immersion suits; ring
buoys; distress signals; fire extinguishing equipment; emergency
position indicating radio beacon, when required; survival craft, when
required; and a walk through major spaces. This walk-through is not
intended to broaden the scope of the safety check. The safety check
should be done expeditiously because the decal indicates that the
vessel has already undergone an extensive dockside inspection.
Classification
At the proposed rule stage, NMFS certified to the Assistant General
Counsel for Legislation and Regulation, Department of Commerce and to
the Chief Counsel for Advocacy, Small Business Administration that this
action would not result in a significant economic impact on a
substantial number of small entities. Comments received on the proposed
rule suggested that small entities might experience a significant
economic impact as a result of the rule. Based on this new information,
NMFS decided to prepare a Final Regulatory Flexibility Analysis (FRFA).
The FRFA concludes that the rule's authorization for an observer to
refuse to board a vessel that the observer believes to be unsafe and
the rule's requirement that a vessel required to carry an observer
cannot legally fish without the observer make it possible that
implementation of this rule could delay a vessel's departure for a
fishing trip. Because of variations in the structures of different
fisheries' mandatory observer programs and in the structures of the
different fishery management regimes, the fact that an observer refused
to board would not necessarily mean that the vessel would lose fishing
time as might be the case in those fisheries where vessels are allowed
a limited number of days fishing per year. It is not possible to
estimate accurately how many, if any, vessels would lose days at sea as
a result of this rule. Therefore, there is at least a theoretical
possibility that 20 percent of the affected small entities could
experience a significant economic impact.
In addition to the preferred alternative, which is the alternative
that is implemented by this rule, NMFS considered several other
alternatives. One of them would have been to take no action. Under this
approach, vessels that carry observers would be required to comply with
the same safety standards that would be applicable under the preferred
alternative, but there would be no guidance to interested parties as to
how to conduct a pre-trip safety check nor would there be any means by
which an observer could quickly ascertain whether the vessel was in
compliance with applicable USCG regulations. If the agency were to
adopt the no-action alternative, the Congressional mandate in the
Magnuson-Stevens Act would not be effected. In addition, there would be
continued risk of unsafe conditions on board vessels to which observers
were assigned.
Another alternative would have prescribed new national standards
for a wide range of safety and accommodations issues. Basic standards
for determining a vessel's safety and adequacy would be based on USCG
safety requirements and NMFS regional observer requirements as is the
case in the first alternative. In addition to those basic USCG
standards, this alternative would result in new regulations addressing
a wide range of accommodation issues, such as quality of food, which,
if not met, would authorize an observer not to board a fishing vessel.
The observer would be authorized to make the pre-trip safety check to
determine whether or not he/
[[Page 27217]]
she would board the vessel. In mandatory observer programs, a fishing
vessel would not be permitted to fish legally without an observer. This
alternative is not the preferred alternative because of the degree to
which an observer would be authorized to make subjective, qualitative
determinations. Furthermore, because of the variability of working
conditions on fishing vessels, some vessels could not reasonably or
economically meet the expectations of all observers. Therefore, the
risk of this alternative resulting in delays of fishing trips is
greater than that of the preferred alternative.
The last alternative that NMFS considered would have prescribed
basic standards for determining safety and adequacy as described in the
preferred alternative, but either the National Marine Fisheries Service
or an authorized observer contractor would have been authorized to make
the pre-trip safety check to determine whether or not the observer
would board the vessel. In mandatory observer programs, a fishing
vessel would not be permitted to fish legally without an observer. This
alternative would have used the same evaluation criteria (USCG dockside
safety examination, pre-trip safety check, presence of a current
Commercial Fishing Vessel Safety Decal, etc.) as the preferred
alternative but would give NMFS and/or an authorized observer
contractor the authority to decide whether a vessel is safe and
adequate. The rationale for this approach is that it would avoid
putting the observer into a situation where vessel owner, operator, and
crew might exert pressure to coerce the observer to declare the vessel
safe despite conditions that the observer believed to be unsafe. It
would also avoid the potential for a ``vindictive'' observer to abuse
discretion in making safety checks. The benefit of having NMFS or an
authorized observer contractor make the safety and adequacy decision is
that it would avoid putting the additional pressure on an observer of
potentially having to tell a captain and crew with whom he/she would be
spending time at sea that a fishing trip would be delayed. However,
this alternative would also have the potential to delay a fishing
voyage pending safety resolution. It is just as possible that a NMFS
employee or observer contractor would discover safety issues in need of
attention as an observer would. In addition, under this alternative, an
observer who believes a vessel to be unsafe may be instructed to board
because NMFS or the observer contractor believes the vessel to be safe.
There would also be costs to NMFS and/or the observer contractor in the
form of having a representative on site each time an observer boarded a
vessel. NMFS and/or the observer contractor would also experience the
cost of training employees to make the pre-trip safety check. This
alternative is not preferred because it would put a third party in a
position of judging a vessel's safety and perhaps of forcing an
observer aboard an unsafe vessel.
In addition to these alternatives, one commenter suggested two
additional alternatives: The first would have provided an automatic
waiver for those situations in which an observer refused to board a
vessel for safety reasons. The waiver would be valid until the vessel
had undergone a USCG inspection either at sea or in port. This
alternative would have voided the intent of the rule. It would not make
the vessel safe for the observer on the fishing trip that the observer
was assigned to observe. Furthermore, it could provide an opportunity
for vessel operators to avoid taking observers by incurring safety
violations, such as no PFD for the observer. The other suggested
alternative would be to determine which classes of vessels have
consistently failed to provide safe working conditions for observers.
Only those classes of vessels would be required to comply with the
rule. Vessels with proven safety records would be exempt from the
provisions of this rule. This approach is not feasible because vessel
safety is an individual vessel issue not one that can be addressed by
classes of vessels.
NMFS tried to mitigate the potential impact of the rule by using
objective standards for the observer's pre-trip safety check in the
form of the published USCG guidance about the most important items that
would be required in the event of an at-sea emergency. This particular
alternative was chosen because it seemed to be an appropriate balance
between the objectives of increasing observer safety and minimizing the
risk of negative economic impact on vessels.
This action has been determined to be not significant for purposes
of E.O. 12866.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fisheries, Fishing, Fishing vessels, Foreign relations,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Statistics.
Dated: May 12, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 600 is
amended as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
2. Section 600.725 is amended by redesignating paragraph (p) as
paragraph (t), adding paragraphs (p), (q), (r), (s), and (u), and
revising newly redesignated paragraph (t) to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(p) Fail to submit to a USCG safety examination when required by
NMFS pursuant to Sec. 600.746.
(q) Fail to display a Commercial Fishing Vessel Safety Examination
decal or a valid certificate of compliance or inspection pursuant to
Sec. 600.746.
(r) Fail to provide to an observer, a NMFS employee, or a
designated observer provider information that has been requested
pursuant to Sec. 600.746, or fail to allow an observer, a NMFS
employee, or a designated observer provider to inspect any item
described at Sec. 600.746.
(s) Fish without an observer when the vessel is required to carry
an observer.
(t) Assault, oppose, impede, intimidate, or interfere with a NMFS-
approved observer aboard a vessel.
(u) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or
her duties aboard a vessel.
3. In subpart H, Sec. 600.746 is added to read as follows:
Sec. 600.746 Observers.
(a) Applicability. This section applies to any fishing vessel
required to carry an observer as part of a mandatory observer program
or carrying an observer as part of a voluntary observer program under
the Magnuson-Stevens Act, MMPA (16 U.S.C. 1361 et seq.), the ATCA (16
U.S.C. 971 et seq.), the South Pacific Tuna Act of 1988 (16 U.S.C. 973
et seq.), or any other U.S. law.
(b) Observer requirement. An observer is not required to board, or
stay aboard, a vessel that is unsafe or inadequate as described in
paragraph (c) of this section.
(c) Inadequate or unsafe vessels. (1) A vessel is inadequate or
unsafe for
[[Page 27218]]
purposes of carrying an observer and allowing operation of normal
observer functions if it does not comply with the applicable
regulations regarding observer accommodations (see 50 CFR parts 229,
285, 300, 600, 622, 648, 660, 678, and 679) or if it has not passed a
USCG safety examination or inspection. A vessel that has passed a USCG
safety examination or inspection must display one of the following:
(i) A current Commercial Fishing Vessel Safety Examination decal,
issued within the last 2 years, that certifies compliance with
regulations found in 33 CFR, chapter I and 46 CFR, chapter I;
(ii) A certificate of compliance issued pursuant to 46 CFR 28.710;
or
(iii) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
(2) Upon request by an observer, a NMFS employee, or a designated
observer provider, a vessel owner/operator must provide correct
information concerning any item relating to any safety or accommodation
requirement prescribed by law or regulation. A vessel owner or operator
must also allow an observer, a NMFS employee, or a designated observer
provider to visually examine any such item.
(3) Pre-trip safety check. Prior to each observed trip, the
observer is encouraged to briefly walk through the vessel's major
spaces to ensure that no obviously hazardous conditions exist. In
addition, the observer is encouraged to spot check the following major
items for compliance with applicable USCG regulations:
(i) Personal flotation devices/immersion suits;
(ii) Ring buoys;
(iii) Distress signals;
(iv) Fire extinguishing equipment;
(v) Emergency position indicating radio beacon (EPIRB), when
required; and
(vi) Survival craft, when required.
(d) Corrective measures. If a vessel is inadequate or unsafe for
purposes of carrying an observer and allowing operation of normal
observer functions, NMFS may require the vessel owner or operator
either to:
(1) Submit to and pass a USCG safety examination or inspection; or
(2) Correct the deficiency that is rendering the vessel inadequate
or unsafe (e.g., if the vessel is missing one personal flotation
device, the owner or operator could be required to obtain an additional
one), before the vessel is boarded by the observer.
(e) Timing. The requirements of this section apply both at the time
of the observer's boarding, at all times the observer is aboard, and at
the time the observer is disembarking from the vessel.
(f) Effect of inadequate or unsafe status. A vessel that would
otherwise be required to carry an observer, but is inadequate or unsafe
for purposes of carrying an observer and for allowing operation of
normal observer functions, is prohibited from fishing without observer
coverage.
[FR Doc. 98-13131 Filed 5-15-98; 8:45 am]
BILLING CODE 3510-22-F
