[Federal Register Volume 79, Number 33 (Wednesday, February 19, 2014)]
[Proposed Rules]
[Pages 9592-9619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02576]
[[Page 9591]]
Vol. 79
Wednesday,
No. 33
February 19, 2014
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 660
Fisheries off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Trawl Rationalization Program; Catch Monitor Program;
Observer Program; Proposed Rule
Federal Register / Vol. 79 , No. 33 / Wednesday, February 19, 2014 /
Proposed Rules
[[Page 9592]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 130503447-4051-01]
RIN 0648-BD30
Fisheries off West Coast States; Pacific Coast Groundfish Fishery
Management Plan; Trawl Rationalization Program; Catch Monitor Program;
Observer Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This action would revise Pacific Coast Groundfish Fishery
regulations pertaining to certified catch monitors and certified
observers required for vessels in the Shorebased Individual Fishery
Quota Program, the Mothership Coop Program, the Catcher/Processor Coop
Program, and for processing vessels in the fixed gear or open access
fisheries. This action also specifies permitting requirements for
persons interested in providing certified observers and certified catch
monitor services; updates observer provider and vessels
responsibilities relative to observer safety; makes minor revisions
relative to administration of the programs, and proposes numerous
housekeeping measures. This action affects individuals serving as
certified catch monitors and observers, persons that provide certified
catch monitors and observers, vessels that are required to carry
certified observers, and persons that are required to employ the
services of certified catch monitors.
DATES: Submit comments on or before March 21, 2014.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2012-0218, by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov. www.regulations.gov/#!docketDetail;D=NOAA-NMFS-
2012-0218, NOAA-NMFS-2012-0218, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Fax: 206-526-6736; Attn: Becky Renko.
Mail: William W. Stelle, Jr., Regional Administrator, West
Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070;
Attn: Becky Renko.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to William W. Stelle Jr., Regional
Administrator, West Coast Region NMFS, 7600 Sand Point Way NE.,
Seattle, WA 98115-0070 and to the Office of Management and Budget (OMB)
by email to [email protected] or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Becky Renko, 206-526-6110; (fax) 206-
526-6736; [email protected].
SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery under
the Pacific Coast Groundfish Fishery Management Plan. The Pacific Coast
groundfish regulations establish frameworks for certified observers and
certified catch monitors. The framework for the certified observers
includes: Observer coverage requirements for vessels fishing or
processing in the shorebased Individual Fishery Quota (IFQ) program,
Mothership (MS) Coop Program, Catcher/processor (C/P Coop Program);
requirements for vessels to obtain observers from permitted observer
providers; certification eligibility and decertification requirements
for observers; and program related responsibilities for vessels,
certified observers, and permitted observer providers. Certified
observer coverage requirements are also specified for vessels
processing in the limited entry fixed gear and open access fisheries.
The framework for the certified-catch monitors includes: Catch monitor
coverage requirements for first receivers accepting shorebased IFQ
landings; requirements for first receivers to obtain catch monitors
from certified observer providers; certification and decertification
procedures for catch monitors and catch monitor providers; and program-
related responsibilities for first receivers, certified catch monitors,
and catch monitor providers. The regulations at 50 CFR 660.17 include
an application and approval process for catch monitor provider
certification. The catch monitor provider certification process is
comparable to the permitting process for observer providers in the
North Pacific Groundfish Observer Program.
This rule would remove the existing regulations requiring vessels
to obtain certified observers from permitted providers for the North
Pacific Groundfish Observer Program, and would establish provider
permitting requirements specific to the Pacific Coast groundfish
fishery. In addition, regulations specifying certification procedures
for catch monitor providers would be converted to permitting
procedures. Because some provider businesses in the Pacific Coast
groundfish fishery provide both observers and catch monitors, a
combined permitting process for observer and catch monitor providers
would be implemented at 50 CFR 660.18. For clarity, and to allow for a
common permitting process for providers, new definitions would be
added, existing definitions would be refined and observer program and
catch monitor program terminology would be consistently applied. A new
section would be added at 50 CFR 660.19 to consolidate the appeals
process for certified catch monitors, certified observers and permitted
providers. The appeals process would be available to them when they
receive an adverse certification or permit determination. In the
current regulations, there are separate appeals processes applicable to
the observer program and the catch monitor program.
This action would also revise regulatory text pertaining to
observer safety. Fishing vessel responsibilities relative to safety
would be revised to more closely align with the National Observer
Program provisions at 50 CFR 600.725 and 600.746, and the prohibitions
at 50 CFR 660.12(e) would be revised to clarify that a vessel required
to carry an observer is prohibited from fishing (including processing)
if NMFS, the observer provider, or the observer determines that the
vessel is inadequate or unsafe. In addition, the observer provider
responsibilities would require the use of the current Vessel Safety
checklists for pre-cruise checks and that any safety-related findings
be submitted to the Observer Program. Minor regulatory
[[Page 9593]]
changes in program administration and numerous housekeeping measures
are also proposed in this action.
Observer Provider and Catch Monitor Provider Permitting
Under current regulations, persons seeking to provide observer
services must have an observer provider permit issued under regulations
at 50 CFR 679.52 for the North Pacific groundfish fishery. Only those
persons that were permitted for the North Pacific groundfish fishery in
2010 may provide observers in the Pacific Coast Groundfish fishery. To
expedite implementation of the trawl rationalization program on January
1, 2011, it was necessary to pattern the Pacific Coast observer
provider regulations from the North Pacific groundfish regulations. At
that time, it was NMFS' intent that a process to issue permits for new
observer providers for the Pacific Coast groundfish fishery would be
implemented in a trailing rulemaking. With fewer than three persons
qualified to provide observers for the Pacific Coast groundfish fishery
in 2013, the current regulations should be revised so that new,
additional observer providers can receive permits and provide services
in the Pacific Coast groundfish fisheries.
At the Pacific Fishery Management Council's (Council) April 2012
meeting, the Council recommended draft regulations for certification
and decertification of observer providers establishing a process
similar to that currently in place for catch monitor providers.
Establishing regulations for the Pacific Coast groundfish fishery was
considered necessary to allow for the entry of new observer providers
separate from those that provide observers in the Alaska groundfish
fisheries. During the development of this rulemaking, NMFS gave further
consideration to the North Pacific Groundfish Observer Program
framework that requires observer providers obtain permits, rather than
certifications. Prior to 2003, the North Pacific groundfish fishery's
observer framework required that observer providers obtain
certifications. However, in 2002 the North Pacific groundfish fishery
observer regulations were revised and the certification process was
replaced with a permitting process (67 FR 72596; December 6, 2002).
Provider permits authorize persons to provide observer services and
are more business-oriented, granting permission to perform specific
activities. This is in contrast to a certification which is generally
used to grant permission to the holder to perform tasks providing some
minimum training. NMFS believes that the proposed process for
evaluation of observer provider applications and issuance of permits
has clear application requirements and evaluation criteria while
providing NMFS with flexibility and discretion in its decision whether
to issue the permit.
Under current regulations, persons who wish to provide catch
monitor services must obtain certification under regulations at 50 CFR
660.17. Regulations at Sec. 660.17 contain certification procedures
and regulations at Sec. 660.18 contain decertification procedures for
catch monitor providers. This action would replace the catch monitor
certification process with a permitting process, which is primarily a
nomenclature change. Although current regulations establish
certification and decertification procedures for catch monitor
providers, to date, all catch monitor providers have been permitted as
observer providers for the North Pacific Groundfish Observer Program.
Existing certified catch monitor providers would be ``grandfathered'';
issued permits in place of the current certification.
This action proposes a single, combined permit application process
for catch monitor and observer providers. The permit application
procedures would be similar to those used in the North Pacific
Groundfish Fishery Observer Program. New provider permits would be
obtained through an application process. Both new and grandfathered
permits would be renewed annually to ensure that the business
information was current and the permit holder continues to meet
eligibility criteria.
There are two types of endorsements that would be attached to a
provider permit; an observer endorsement and a catch monitor
endorsement. During the application process, new providers would
specify which endorsement(s) they are seeking. Provider permits must
have at least one endorsement and it must be appropriate for the
services being provided. A provider permit expires if it is not renewed
or when services have not been provided for a period of 12 months.
Providing a single application process reduces duplication for persons
that provide both observers and catch monitors.
Observer and catch monitor providers contribute an important
service to NMFS by recruiting, hiring, and deploying motivated
individuals to serve as observers and catch monitors. NMFS must ensure
that observer providers meet minimum requirements so that this
important service is consistently maintained. NMFS would, in its
discretion, issue permits to applicants who: Demonstrate that they
understand the scope of the regulations they will be held to; document
how they will comply with those regulations; demonstrate that they have
the business infrastructure necessary to carry out the job; are free
from conflict of interest; do not have past performance problems on a
Federal contract or any history of decertification as either an
observer or observer provider; and are free from criminal convictions
for certain serious offenses that could reflect on their ability to
carry out the role of application. Upon issuance of an observer
provider permit, an observer provider permit holder would be held
accountable for all applicable regulations promulgated by NMFS.
Provider applications may be submitted at any time during the year.
Once a complete application is received, NMFS' review process would
begin and take at least a month. Therefore, applicants would need to
plan accordingly. Applications submitted in the fourth quarter of any
given calendar year (October 1 to December 31) may not be processed
until the following year. The application process would be described in
regulation and include an application review by a board appointed by
NMFS, as well as permit eligibility standards. If necessary, the review
board would contact the applicant for further information. If the
applicant fails to meet the permitting criteria, a decision to deny an
application would be made and written notification provided to the
applicant. The written notice would describe why the application was
denied. The denial of an observer or catch monitor provider permit
application would constitute final agency action and an appeal for
further NMFS' review would not be available. However, an applicant who
is denied a permit may correct the original application's deficiencies
and submit a new application. NMFS would have discretion to either
grant or deny an issuance of a catch monitor or observer provider
permit.
Persons that provided observers and catch monitors in the 12 months
prior to the effective date of this rule will be issued a provider
permit without needing to submit an application. The existing record
regarding performance and the ability to provide observer or catch
monitor services would be adequate documentation. Existing providers
would not be required to submit a new application unless they were
seeking additional endorsements.
A permit issued to a catch monitor or observer provider would
remain effective until the expiration date on the
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permit, December 31 of that year, unless: An ownership change occurs
that requires application for a new permit; the permitted provider
ceases to deploy observers to groundfish fisheries during a period of
12 continuous months; or the permit issued to an observer provider is
suspended, revoked, or voided. To remain in effect in the subsequent
years, provider permits must be renewed prior to the December 31 permit
expiration date. If an existing provider fails to renew the provider
permit, the provider permit will expire on the permit expiration date.
NMFS will send a renewal form on or about October 1. The provider must
verify that all information is current and return the form by November
30, to be assured that there is no lapse in the permit. The purpose of
the annual renewal is to verify that the management, organizational,
and ownership structure is unchanged; to update provider contact
information; and to assure there are no new conflict of interests or
state or federal criminal convictions that could affect the wellbeing
of observers or catch monitors.
If a permit lapses after a period of 12 months of inactivity as
described above, NMFS would issue an Initial Administrative Decision
(IAD) to the permit holder stating that NMFS records indicate that the
permit had lapsed and that the permit holder has the opportunity to
appeal the determination. The IAD would also describe the appeals
process available to the permit holder. Permit for holders who appeal
this IAD would remain valid while during the appeal process.
Potential violations regarding observer or catch monitor providers,
including those serious enough to warrant possible suspension or
revocation of a provider's permit, would be forwarded to NMFS Office
for Law Enforcement (OLE) for investigation. Procedures governing
sanctions of permits are found at subpart D of 15 CFR Part 904.
Observer Safety
Under the Magnuson-Stevens Act National Standard 10, conservation
and management measures must promote the safety of human life at sea.
Consistent with that standard, NMFS has promulgated numerous regulatory
provisions designed to promote not just vessel safety, but observer
safety, as well. Current Pacific Coast groundfish regulations and
National Observer Program regulations at 50 CFR 600.746 require that
vessels carrying observers in the Pacific Coast groundfish fishery have
a valid Commercial Fishing Vessel Safety Decal certifying compliance
with regulations found in 33 CFR Chapter I and 46 CFR Chapter I, or in
mitigating circumstances a certificate of compliance issued pursuant to
46 CFR 28.710 or a valid certificate of inspection pursuant to 46
U.S.C. 3311.
On December 20, 2012 the Coast Guard and Maritime Act of 2012 was
signed. The Act requires significant changes in safety and survival
equipment requirements for commercial fishing industry vessels
including, fishing vessels and fish processing vessels. In anticipation
of regulatory changes at 46 CFR Chapter I, part 28, NMFS reviewed the
Pacific Coast groundfish regulations pertaining to observer safety. The
review found that safety related cross references were not consistent
throughout the regulations; that the observer provider responsibilities
did not clearly state that the most current observer vessel safety
checklist must be completed prior to an observer's first cruise or that
the checklist needed to be provided to the Observer Program; nor did
the regulations clearly state that a vessel is prohibited from fishing
if NMFS, the observer provider or the observer determine that a vessel
is unsafe or inadequate for an observer. This action proposes to revise
regulatory language pertaining to observer safety found under the
observer provider responsibilities (50 CFR 660.140(h)(2)(ix),
660.150(j)(5)(ix), 660.160 (g)(5)(ix)), vessel responsibilities
(Sec. Sec. 660.140(h)(2)(ii)(B), 660.150(j)(2)(ii)(B),
660.160(g)(2)(ii)(B), 660.216(e)(2), 660.316(e)(2)), and prohibitions
(Sec. Sec. 660.12(e) and 660.112).
Limited Entry Fixed Gear and Open Access Observer Requirements
Observer requirements in Sec. Sec. 660.216 and 660.316 would be
amended by this action. Regulation implementing the trawl
rationalization program (75 FR 32994, June 10, 2010) moved the observer
regulations from a general observer section that applied to all sectors
of the fishery to newly created sections for each fishing sector. The
reorganization resulted in unintended changes to the observer
requirements for the limited entry fixed gear and open access sectors.
Subsequent regulations reinstated coverage provisions for processing
vessels that had inadvertently been removed. However, revisions are
necessary to clarify which observer provisions apply to harvesting
vessels and which apply to processing vessels; for processing vessels,
the regulations would clearly state who had to be contacted to obtain a
certified observer. Safety provisions would be updated to be consistent
with the requirements described in the previous section.
Minor Regulatory Changes and Housekeeping Measures
Numerous minor non-substantive and housekeeping changes are being
proposed for improved Observer Program and Catch Monitor Program
administration. The changes involve removing outdated regulatory text,
adding clarification to existing text without changing the intended
meaning, and revising to ensure consistent use of terms throughout the
entire chapter. The proposed minor and housekeeping changes are
summarized below:
Proposed revisions to the Observer Program regulations at
Sec. 660.140 (Shorebased IFQ Program), Sec. 660.150 (MS Coop
Program), and Sec. 660.160 (C/P Coop Program) are intended to clarify
the existing policies and practices. These changes include: (1)
Revising communication requirements to reflect current practices; (2)
removing outdated reporting requirements; (3) adding descriptions of
transportation requirements for deployed observers; (4) revising
timelines on the issuance of an observer certification; (5) adding
components to observers certification requiring annual safety training
and fish identification testing; (6) broadening the statement
describing the required briefings so fishery specific briefings such
the briefing for the Pacific whiting fishery are explicitly required by
regulation; and (7) removing unnecessary requirements of the physician
statement for certified observers.
In the general prohibitions at Sec. 660.12, incorrect
references regarding cease fishing reports would be moved to the trawl
prohibitions at Sec. 660.112, and the remaining prohibitions would be
consolidated.
At Sec. 660.60, cross references are updated.
At Sec. 660.112, a prohibition relative to observer
coverage while a vessel is in port is simplified and linking text at
Sec. 660.140(h) is revised for clarity.
In Sec. 660.16, a table displaying current observer
coverage requirements would be revised to show the Observer Program
office overseeing the observers.
Proposed revisions to the Catch Monitor Program
regulations at Sec. 660.17 are intended to more clearly state the
current policies and practices. These changes include: (1) Revising
communication requirements to reflect current practices; (2) revising
language pertaining to the disclosure of catch monitor data to align
requirements other similar text in other paragraphs and
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sections; (3) removing unnecessary requirements of the physician
statement; (4) adding text to explain that a catch monitor
certification expires if the individual is not deployed for 12 months;
and (5) clarifying the provider policies regarding standards of conduct
consistent with those specified for observer providers.
In Sec. 660.16, paragraphs (d) and (e) are added, and in
Sec. 660.17, paragraphs (a) to (c) are added to make Observer Program
regulations Catch Monitor Program regulations consistent.
Physical fitness examinations and requirements of the physician
statements are currently being reviewed by the National Observer
Program. Modifications to the groundfish regulations being proposed at
Sec. Sec. 660.17(e)(1)(vii)(A), 660.140(h)(5)(xi)(B), and
660.150(j)(5)(xi)(B)(2) may be withdrawn or further modified in the
final rule pending the outcome of the review.
NMFS believes that the limitations on the conflict of interests for
observer and catch monitor providers are too narrow and increase the
risk that professional judgment or actions related to the interest of
observers or catch monitors would be unduly influenced by a secondary
interest in a fishing related business. Current regulations limit only
those businesses with a direct financial interest in a North Pacific
fishery managed pursuant to an FMP for the waters off the coast of
Alaska, Alaska state waters, or in a Pacific Coast fishery managed by
either the state or Federal Governments in waters off Washington,
Oregon, or California from being observer or catch monitor providers.
The only exception to these standards would be an allowance to provide
observer and catch monitor services. NMFS is considering whether to use
its authority under section 305(d) of the Magnuson Stevens Act (MSA) to
broaden the limitations to restrict providers from having a direct
financial interest in any federal or state managed fisheries with the
exception of an allowance to provide observers, catch monitor or other
biological sampling services. NMFS invites comments from the public on
this issue.
Classifications
Pursuant to section 304(b)(1)(A) and 305(d) of the MSA, the NMFS
has determined that this proposed rule is consistent with the
Groundfish FMP, the MSA, and other applicable law, subject to further
consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order12866.
NMFS has prepared an initial regulatory flexibility analysis (IRFA)
as required by section 603 of the Regulatory Flexibility Act (RFA). The
IRFA describes the economic impact this proposed rule would have on
small entities. The preamble contains a description of the action, why
it is considered, and the legal basis for this action (see the
beginning of this section in the preamble and the SUMMARY section of
the preamble). NMFS also prepared a Regulatory Impact Review (RIR) for
this action. A copy of the RIR/IRFA is available from NMFS (see
ADDRESSES). A summary of the IRFA, per the requirements of 5 U.S.C.
604(a) follows:
The Small Business Administration (SBA) has established size
criteria for all major industry sectors in the U.S., including fish
harvesting and fish processing businesses. A business involved in fish
harvesting is a small business if it is independently owned and
operated and not dominant in its field of operation (including its
affiliates), and if it has combined annual receipts not in excess of
$19 million for all its affiliated operations worldwide. The SBA
recently revised the small business size standards for some fishery
related businesses (78 FR 37398, June 20, 2013). The rule increased the
size standard for Finfish Fishing from $4.0 to 19.0 million, Shellfish
Fishing from $4.0 to 5.0 million, and Other Marine Fishing from $4.0 to
7.0 million, Id. at 37400 (Table 1). A seafood processor is a small
business if it is independently owned and operated, not dominant in its
field of operation, and employs 500 or fewer persons on a full-time,
part-time, temporary, or other basis, at all its affiliated operations
worldwide. Prior to SBA's recent changes to the size standards for
commercial harvesters, a business involved in both the harvesting and
processing of seafood products, also referred to as a catcher/processor
(CP), was considered a small business if it met the $4.0 million
criterion for commercial fish harvesting operations. In light of the
new size standards for commercial harvesters, NMFS is reviewing the
size standard for CPs. However, for purposes of this rulemaking, NMFS
is applying the $19 million standard because whiting CPs are involved
in the commercial harvest of finfish. A wholesale business servicing
the fishing industry is a small business if it employs 100 or fewer
persons on a full-time, part-time, temporary, or other basis, at all
its affiliated operations worldwide. For marinas and charter/party
boats, a small business is one with annual receipts, not in excess of
$7.0 million. There are no specific SBA defined size criteria for
observer providers. For this sector, NMFS Alaska Region has employed
the $7.0 million in gross annual receipts size standard based on SBA
standards associated with firms engaged in placing technical employees.
(See: http://alaskafisheries.noaa.gov/analyses/observer/ririrfa_soc_observer_0209.pdf)
This proposed rule affects current and future businesses that
supply observers for monitoring fishing and processing activities on a
vessel at-sea and catch monitors who observe and document offloads at
first receiver/processing plants on shore. The actions listed above are
intended to establish permitting requirements for businesses providing
certified observers and catch monitors; make regulations consistent
with The Coast Guard and Maritime Act of 2012; and make minor
administrative and housekeeping changes.
Currently, companies that supply observers have undergone the
permit processes used for North Pacific Fisheries. This proposed
rulemaking would create a new permitting process for Pacific groundfish
fisheries. Currently, businesses supplying catch monitors undergo a
certification process. This proposed rulemaking would convert this
process into a permitting process. Under the current process of
certification, potential providers submit an application and receive a
letter or approval or denial from NMFS. Under the proposed permit
process, potential providers will submit a similar application, but
will either receive a permit or a letter of denial. Providers that
existed during the 12 months prior to the rule will be grandfathered
into the new system. Rather than create two different permits, one for
supplying observers and one for supplying catch monitors, under the
proposed regulations there will only be one permit process. Under this
process, a company can request to have an observer endorsement or a
catch monitor endorsement or both. NMFS NWR currently has permitted
five observer provider companies: Alaskan Observers, Inc.; NWO, Inc.;
Saltwater Observers, Inc.; TechSea International; and MRAG Americas,
Inc. The principal activity of most of these companies has been to
provide observers for Alaska groundfish fisheries the North Pacific,
but they also provide observers for other fisheries such and the
Pacific Groundfish fishery. Regulations require observers in all
sectors and catch monitors at first landings/processing sites.
Therefore, this proposed rule
[[Page 9596]]
indirectly affects participants in the following: IFQ Program,
Mothership Coop Program, and Catcher/Processor Coop Program. Two
companies, Alaskan Observers, Inc. and Saltwater Observers, Inc., are
providing observers and monitors for the IFQ Program. The other sectors
may be using the other companies as they typically also fish off
Alaska. There are 144 shoreside vessel accounts, 36 mothership endorsed
limited entry permits, 6 mothership permits, 10 catcher/processor
permits, and 51shorebased first receiver site licenses. Taking into
account cross participation, multiple accounts, and affiliation between
entities, NMFS estimates that there are 145 fishery related entities
indirectly affected by these proposed regulations as they need to
acquire observers for their vessels and monitors for their shoreside
processing plants. Of these entities, 102 are ``small'' businesses.
This rule directly affects the five providers currently permitted to
operate in the fishery. NMFS considers these all small businesses (75
FR 69016 November 10, 2010).
The benefits from these regulations are largely administrative in
nature and minor in the context of the entire program. In terms of
economic effects, the main impact is requiring observer providers to
obtain a Pacific Groundfish Provider permit. These regulations will
allow for entry of new providers, separate from the five that have
provided observers in the Alaska groundfish fisheries. There will be an
administrative fee charged for issuing permits. NMFS projects these
fees to be about $165 for renewals and $550 for new permits.
Based on the discussion above, this proposed rule would not have a
significant economic effect on a substantial number of small entities.
This rulemaking is largely administrative in nature. There are no
significant alternatives to the proposed rule that accomplish the
stated objectives of applicable statutes, and that minimize the impact
of the proposed rule on small entities. The benefits of these
regulations include more understandable and less complex regulations
and the potential for increased provider companies in the fishery.
Additional companies may lower costs to fishing vessels and processors
and alleviate logistical/scheduling issues with providing observers and
monitors to the various ports. Nonetheless, for transparency purposes,
NMFS has prepared this IRFA. Through the rulemaking process associated
with this action, we are requesting comments on this conclusion.
This proposed rule contains a new collection-of-information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (PRA). This requirement has been submitted to OMB for
approval as revisions to OMB collection 0648-0619 and 0648-0500. The
estimated public reporting burden for OMB collection 0648-0619,
provider permit applications, is an average of 10 hours per response,
annual renewal of provider permits is estimated to average 2 hours per
response, and appeals of permits that have been expire after a period
of 12 continuous months during which no observers or catch monitors are
deployed average 4 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection information. NMFS estimates the public reporting burden for
OMB collection 0648-0500, the submission of vessel safety checklists,
averages 5 minutes per response.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to West
Coast Region at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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.
Pursuant to Executive Order 13175, this proposed rule was developed
after meaningful consultation and collaboration with tribal officials
from the area covered by the PCGFMP. Under the Magnuson-Stevens Act at
16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council
must be a representative of an Indian tribe with federally recognized
fishing rights from the area of the Council's jurisdiction. The
proposed regulations do not require the tribes to change from their
current practices.
NMFS issued Biological Opinions under the Endangered Species Act
(ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September
27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects
of the Pacific Coast Groundfish Fishery Management Plan (PCGFMP)
fisheries on Chinook salmon (Puget Sound, Snake River spring/summer,
Snake River fall, upper Columbia River spring, lower Columbia River,
upper Willamette River, Sacramento River winter, Central Valley spring,
California coastal), coho salmon (Central California coastal, southern
Oregon/northern California coastal), chum salmon (Hood Canal summer,
Columbia River), sockeye salmon (Snake River, Ozette Lake), and
steelhead (upper, middle and lower Columbia River, Snake River Basin,
upper Willamette River, central California coast, California Central
Valley, south/central California, northern California, southern
California). These biological opinions have concluded that
implementation of the PCGFMP for the Pacific Coast groundfish fishery
is not expected to jeopardize the continued existence of any endangered
or threatened species under the jurisdiction of NMFS, or result in the
destruction or adverse modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006
concluding that neither the higher observed bycatch of Chinook in the
2005 whiting fishery nor new data regarding salmon bycatch in the
groundfish bottom trawl fishery required a reconsideration of its prior
``no jeopardy'' conclusion. NMFS also reaffirmed its prior
determination that implementation of the Groundfish PCGFMP is not
likely to jeopardize the continued existence of any of the affected
ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon
Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as
threatened under the ESA. The 1999 biological opinion concluded that
the bycatch of salmonids in the Pacific whiting fishery were almost
entirely Chinook salmon, with little or no bycatch of coho, chum,
sockeye, and steelhead.
On December 7, 2012, NMFS completed a biological opinion concluding
that the groundfish fishery is not likely to jeopardize non-salmonid
marine species including listed eulachon, green sturgeon, humpback
whales, Steller sea lions, and leatherback sea turtles. The opinion
also concludes that the fishery is not likely to adversely modify
critical habitat for green sturgeon and leatherback sea
[[Page 9597]]
turtles. An analysis included in the same document as the opinion
concludes that the fishery is not likely to adversely affect green sea
turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales,
North Pacific right whales, blue whales, fin whales, sperm whales,
Southern Resident killer whales, Guadalupe fur seals, or the critical
habitat for Steller sea lions.
As Steller sea lions and humpback whales are also protected under
the Marine Mammal Protection Act (MMPA), incidental take of these
species from the groundfish fishery must be addressed under MMPA
section 101(a)(5)(E). On February 27, 2012, NMFS published notice that
the incidental taking of Steller sea lions in the West Coast groundfish
fisheries is addressed in NMFS' December 29, 2010 Negligible Impact
Determination and this fishery has been added to the list of fisheries
authorized to take Steller sea lions (77 FR 11493, Feb. 27, 2012). NMFS
is currently developing MMPA authorization for the incidental take of
humpback whales in the fishery.
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS)
issued a biological opinion concluding that the groundfish fishery will
not jeopardize the continued existence of the short-tailed albatross.
The FWS also concurred that the fishery is not likely to adversely
affect the marbled murrelet, California least tern, southern sea otter,
bull trout, nor bull trout critical habitat.
List of Subjects in 50 CFR Part 660
Fisheries, Fishing, and Indian fisheries.
Dated: February 3, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 660 is proposed
to be amended as follows:
PART 660--FISHERIES OFF WEST COAST STATES
0
1. The authority citation for part 660 is revised to read as follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and
16 U.S.C. 7001 et seq.
0
2. In Sec. 660.11:
0
a. Add definitions, in alphabetical order, for ``Catch Monitor Program
or Catch Monitor Program Office'', ``Catch monitor provider'', and
``Observer provider''; and
0
b. Revise the definitions for ``Observer Program or Observer Program
Office'' and ``Sustainable Fisheries Division or SFD'' to read as
follows:
Sec. 660.11 General definitions.
* * * * *
Catch Monitor Program or Catch Monitor Program Office means the
Catch Monitor Program Office of the West Coast Region, National Marine
Fisheries Service.
Catch monitor provider means any person or commercial enterprise
that is granted a permit by NMFS to provide certified catch monitors as
required in Sec. 660.140.
* * * * *
Observer Program or Observer Program Office means the Observer
Program Office of the Northwest Fisheries Science Center, National
Marine Fisheries Service, Seattle, Washington. Branch offices within
the Observer Program include the West Coast Groundfish Observer Program
and the At-Sea Hake Observer Program.
Observer provider means any person or commercial enterprise that is
granted a permit by NMFS to provide certified observers as required at
Sec. Sec. 660.140, 660.150, 660.160, 660.216 or 660.316.
* * * * *
Sustainable Fisheries Division or SFD means the Assistant Regional
Administrator of the Sustainable Fisheries Division, West Coast Region,
NMFS, or a designee.
* * * * *
0
3. In Sec. 660.12, revise paragraphs (e)(5) through (9) to read as
follows:
Sec. 660.12 General groundfish prohibitions.
* * * * *
(e) * * *
(5) Fish for, land, or process fish without observer coverage when
a vessel is required to carry an observer under subparts C through G of
this part.
(6) Fish when a vessel is required to carry an observer under
subparts C through G of this part if:
(i) The vessel is inadequate for observer deployment as specified
at Sec. 600.746 of this chapter;
(ii) The vessel does not maintain safe conditions for an observer
as specified at Sec. Sec. 660.140(h), 660.150(j), and 660.160(g); or
(iii) NMFS, the observer provider, or the observer determines the
vessel is inadequate or unsafe pursuant to vessel responsibilities to
maintain safe conditions as specified at Sec. Sec. 660.140(h),
660.150(j), and 660.160(g).
(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.
(8) Fail to meet the vessel responsibilities and observer coverage
requirements specified at Sec. Sec. 660.140(h), 660.150(j),
660.160(g), 660.216, or 660.316.
(9) Fail to meet the observer provider responsibilities specified
at Sec. Sec. 660.140(h), 660.150(j), 660.160(g), 660.216, or 660.316.
* * * * *
0
4. In Sec. 660.16, revise paragraph (a) and the table in paragraph (c)
and add paragraphs (d) and (e) to read as follows:
Sec. 660.16 Groundfish Observer Program.
(a) General. Vessel owners, operators, and managers are jointly and
severally responsible for their vessel's compliance with observer
requirements specified in this section and within Sec. Sec. 660.140,
660.150, 660.160, 660.216, or 660.316.
* * * * *
(c) * * *
------------------------------------------------------------------------
Regulation Observer program
West Coast groundfish fishery section branch office
------------------------------------------------------------------------
(1) Shorebased IFQ Program-- Sec. 660.140(h) West Coast
Trawl Fishery. Groundfish.
(2) MS Coop Program--Whiting Sec. 660.150(j)
At-sea Trawl Fishery.
A) Motherships............ ................. A) At-Sea Hake.
B) Catcher Vessels........ ................. B) West Coast
Groundfish.
(3) C/P Coop Program--Whiting Sec. 660.160(g) At-Sea Hake.
At-sea Trawl Fishery.
(4) Fixed Gear Fisheries...... Sec. 660.216...
A) Harvester vessels...... ................. A) West Coast
Groundfish.
B) Processing vessels..... ................. B) West Coast
Groundfish.
(5) Open Access Fisheries..... Sec. 660.316...
A) Harvester vessels...... ................. A) West Coast
Groundfish.
B) Processing vessels..... ................. B) West Coast
Groundfish.
------------------------------------------------------------------------
[[Page 9598]]
(d) Observer certifications and responsibilities. For the
Shorebased IFQ Program see Sec. 660.140(h), for the MS Coop Program
see Sec. 660.150(j), and, for the C/P Coop Program see Sec.
660.160(g).
(e) Application process to become an observer provider. See Sec.
660.18.
0
5. In Sec. 660.17:
0
a. Revise the section heading;
0
b. Remove paragraphs (b) and (d);
0
c. Redesignate paragraph (a) as (d), paragraph (c) as (e), and
paragraph (e) as (f).
0
d. Revise newly redesignated paragraphs (d), (e), (f)(1)(vii), (f)(2),
(f)(4) through (6), (f)(8)(i)(B), (C), and (F), (f)(9)(ii), and (f)(11)
through (13);
0
e. Add paragraphs (a) through (c) and (g) to read as follows.
Sec. 660.17 Catch monitor program.
(a) General. The first receiver site license holder, the first
receiver site license authorized representative, facility operators and
managers are jointly and severally responsible for the first receiver
being in compliance with catch monitor requirements specified in this
section and at Sec. 660.140 (i).
(b) Purpose. The purpose of the Catch Monitor Program is to, among
other related matters, confirm that the IFQ landings are accurately
sorted, weighed and reported on electronic fish tickets.
(c) Catch monitor coverage requirements. Catch monitor coverage
requirements for the Shorebased IFQ Program are specified at Sec.
660.140(i).
(d) Catch monitor certification and responsibilities. Catch monitor
certification authorizes an individual to fulfill duties as specified
by NMFS while under the employ of a catch monitor provider.
(1) Catch monitor training certification. A training certification
signifies the successful completion of the training course required to
obtain catch monitor certification. This certification expires when the
catch monitor has not been deployed and performed sampling duties as
required by the Catch Monitor Program Office for a period of time,
specified by the Catch Monitor Program, after his or her most recent
debriefing. The certification is renewed by successful completion of
the training course.
(2) Catch Monitor Program annual briefing. Each catch monitor must
attend a briefing prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification is
obtained. To maintain a certification, a catch monitor must
successfully complete any required briefing specified by the Catch
Monitor Program. All briefing attendance, performance, and conduct
standards required by the Catch Monitor Program must be met prior to
any deployment.
(3) Catch monitor certification requirements. NMFS may certify
individuals who:
(i) Are employed by a catch monitor provider at the time of the
issuance of the certification and qualified, as described at paragraph
(f)(1)(i) through (viii) of this section and have provided proof of
qualifications to NMFS, through the catch monitor provider.
(ii) Have successfully completed catch monitor certification
training.
(A) Successful completion of training by an applicant consists of
meeting all attendance and conduct standards; meeting all performance
standards for assignments, tests, and other evaluation tools; and
completing all other training requirements established by the Catch
Monitor Program.
(B) If a candidate fails training, he or she will be notified in
writing on or before the last day of training. The notification will
indicate: The reasons the candidate failed the training; whether the
candidate can retake the training, and under what conditions.
(iii) Have not been decertified as an observer or catch monitor
under provisions in Sec. Sec. 660.17(g), and 660.140(h)(6),
660.150(j)(5), 660.160(g)(5) or 679.53(c).
(4) Maintaining the validity of a catch monitor certification.
After initial issuance, a catch monitor must keep their certification
valid by meeting all of the following requirements specified below:
(i) Successfully perform their assigned duties as described in the
Catch Monitor Manual or other written instructions from the Catch
Monitor Program.
(ii) Accurately record their data, write complete reports, and
report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(iii) Consistent with NOAA data confidentiality guidance, not
disclose data and observations made on board a vessel to any person
except the owner or operator of the observed vessel, an authorized
state or OLE officer, NMFS or the Catch Monitor Program; and, not
disclose data and observations made at a first receiver to any person
other than the first receiver site license holder, the first receiver
site license authorized representative, facility operators and
managers, an authorized state or OLE officer, NMFS or the Catch Monitor
Program.
(iv) Successfully complete any required briefings as prescribed by
the Catch Monitor Program.
(v) Successful completion of a briefing by a catch monitor consists
of meeting all attendance and conduct standards issued in writing at
the start of training; meeting all performance standards issued in
writing at the start of training for assignments, tests, and other
evaluation tools; and completing all other briefing requirements
established by the Catch Monitor Program.
(vi) Successfully meet all debriefing expectations including catch
monitor performance standards and reporting for assigned debriefings.
(vii) Submit all data and information required by the Catch Monitor
Program within the program's stated guidelines.
(viii) Have been deployed as a catch monitor within the 12 months
prior to any required briefing, unless otherwise authorized by the
Catch Monitor Program.
(e) Catch monitor standards of behavior. Catch monitors must do the
following:
(1) Perform authorized duties as described in training and
instructional manuals or other written and oral instructions provided
by the Catch Monitor Program.
(2) Accurately record and submit the required data, which includes
fish species composition, identification, sorting, and weighing
information.
(3) Write complete reports, and report accurately any observations
of suspected violations of regulations.
(4) Returns phone calls, emails, text messages, or other forms of
communication within the time specified by the Catch Monitor Program.
(5) Not disclose data and observations made on board a vessel to
any person except the owner or operator of the observed vessel, an
authorized officer, NMFS or the Catch Monitor Program; and, not
disclose data and observations made at a first receiver to any person
other than the first receiver site license holder, the first receiver
site license authorized representative, facility operators and managers
an authorized officer, NMFS or the Catch Monitor Program.
(f) * * *
(1) * * *
(vii) Have had health and physical fitness exams and been found to
be fit for the job duties and work conditions;
(A) Physical fitness exams shall be conducted by a medical doctor
who has been provided with a description of the job duties and work
conditions and who provides a written conclusion regarding the
candidate's fitness relative to the required duties and work
conditions. A signed and dated statement from a licensed physician that
he or she has physically examined a catch monitor or
[[Page 9599]]
catch monitor candidate. The statement must confirm that, based on that
physical examination, the catch monitor or catch monitor candidate does
not have any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the catch monitor or catch monitor candidate from performing his or her
duties satisfactorily. The physician's statement must be submitted to
the Catch Monitor Program office prior to certification of a catch
monitor. The physical exam must have occurred during the 12 months
prior to the catch monitor's or catch monitor candidate's deployment.
(B) Copies of ``certificates of insurance,'' that names the Catch
Monitor Program Coordinator as the ``certificate holder,'' shall be
submitted to the Catch Monitor Program Office by February 1 of each
year. 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 canceled.
(1) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(2) States Worker's Compensation as required.
(3) Commercial General Liability.
* * * * *
(2) Catch Monitor conduct and behavior. A catch monitor provider
must develop and maintain a policy addressing conduct and behavior for
their employees that serve as catch monitors.
(i) The policy shall address the following behavior and conduct
regarding:
(A) Catch monitor use of alcohol;
(B) Catch monitor, possession, or distribution of illegal drugs;
and
(C) Sexual contact with personnel off the vessels or processing
facility to which the catch monitor is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the catch monitor's official duties.
(ii) A catch monitor provider shall provide a copy of its conduct
and behavior policy to each observer candidate and to the Catch Monitor
Program by February 1 of each year.
* * * * *
(4) Catch monitors provided to a first receiver. (i) Must have a
valid catch monitor certification;
(ii) Must not have informed the catch monitor provider prior to the
time of assignment that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (f)(1)(vii)(A) of this
section that would prevent him or her from performing his or her
assigned duties; and
(iii) Must have successfully completed all Catch Monitor Program
required training and briefing before assignment.
(5) Respond to industry requests for catch monitors. A catch
monitor provider must provide a catch monitor for assignment pursuant
to the terms of the contractual relationship with the first receiver to
fulfill first receiver requirements for catch monitor coverage under
Sec. 660.140(i)(1). An alternate catch monitor must be supplied in
each case where injury or illness prevents the catch monitor from
performing his or her duties or where the catch monitor resigns prior
to completion of his or her duties. If the catch monitor provider is
unable to respond to an industry request for catch monitor coverage
from a first receiver for whom the catch monitor provider is in a
contractual relationship due to the lack of available catch monitors,
the catch monitor provider must report it to NMFS at least 4 hours
prior to the expected assignment time.
(6) Ensure that catch monitors complete duties in a timely manner.
Catch monitor providers must ensure that catch monitors employed by
that catch monitor provider do the following in a complete and timely
manner:
(i) Submit to NMFS all data, logbooks and reports as required under
the Catch Monitor Program deadlines.
(ii) Report for his or her scheduled debriefing and complete all
debriefing responsibilities.
* * * * *
(8) * * *
(i) * * *
(B) Has Internet access for Catch Monitor Program communications
and data submission;
(C) Remains available to OLE and the Catch Monitor Program until
the completion of the catch monitors' debriefing.
* * * * *
(F) While under contract with a catch monitor provider, each catch
monitor shall be provided with accommodations in accordance with the
contract between the catch monitor and the catch monitor provider. If
the catch monitor provider is responsible for providing accommodations
under the contract with the catch monitor, the accommodations must be
at a licensed hotel, motel, bed and breakfast, or other accommodations
that have an assigned bed for each catch monitor that no other person
may be assigned to for the duration of that catch monitor's stay.
* * * * *
(9) * * *
(ii) Not exceed catch monitor assignment limitations and workload
as outlined in Sec. 660.140(i)(3)(ii).
* * * * *
(11) Maintain communications with the Catch Monitor Program office.
A catch monitor provider must provide all of the following information
by electronic transmission (email), fax, or other method specified by
NMFS.
(i) Catch monitor training, briefing, and debriefing registration
materials. This information must be submitted to the Catch Monitor
Program at least 10 business days prior to the beginning of a scheduled
catch monitor certification training or briefing session.
(A) Training registration materials consist of the following:
(1) Date of requested training;
(2) A list of catch monitor candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender;
(3) A copy of each candidate's academic transcripts and resume;
(4) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(B) Briefing registration materials consist of the following:
(1) Date and type of requested briefing session;
(2) List of catch monitors to attend the briefing session, that
includes each catch monitor's full name (first, middle, and last
names);
(C) The Catch Monitor Program will notify the catch monitor
provider which catch monitors require debriefing and the specific time
period the catch monitor provider has to schedule a date, time, and
location for debriefing. The catch monitor provider must contact the
Catch Monitor Program within 5 business days by telephone to schedule
debriefings.
(1) Catch monitor providers must immediately notify the Catch
Monitor Program when catch monitors end their contract earlier than
anticipated.
(2) [Reserved]
(ii) Catch monitor provider contracts. If requested, catch monitor
providers must submit to the Catch Monitor Program a completed and
unaltered copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the catch monitor provider and those entities
requiring catch monitor services under Sec. 660.140(i)(1). Catch
monitor
[[Page 9600]]
providers must also submit to the Catch Monitor Program upon request, a
completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to catch monitor compensation or salary levels) between the
catch monitor provider and the particular entity identified by the
Catch Monitor Program or with specific catch monitors. The copies must
be submitted to the Catch Monitor Program via email, fax, or mail
within 5 business days of the request. Signed and valid contracts
include the contracts a catch monitor provider has with:
(A) First receivers required to have catch monitor coverage as
specified at paragraph Sec. 660.140(i)(1); and
(B) Catch monitors.
(iii) Change in catch monitor provider management and contact
information. A catch monitor provider must submit to the Catch Monitor
Program any change of management or contact information as required at
Sec. 660.18(h).
(iv) Catch monitor status report. Each Tuesday, catch monitor
providers must provide the Catch Monitor Program with an updated list
of deployments per Catch Monitor Program protocol. Deployment
information includes provider name, catch monitor last name, catch
monitor first name, trip start date, trip end date, status of catch
monitor, vessel name and vessel identification number, date monitored
offload, and first receiver assignment.
(v) Informational materials. Catch monitor providers must submit to
NMFS, if requested, copies of any information developed and used by the
catch monitor providers and distributed to first receivers, including,
but not limited to, informational pamphlets, payment notification, and
description of catch monitor duties.
(vi) Other reports. Reports of the following must be submitted in
writing to the Catch Monitor Program by the catch monitor provider via
fax or email address designated by the Catch Monitor Program within 24
hours after the catch monitor provider becomes aware of the
information:
(A) Any information regarding possible catch monitor harassment;
(B) Any information regarding any action prohibited under Sec.
660.12(f);
(C) Any catch monitor illness or injury that prevents the catch
monitor from completing any of his or her duties described in the catch
monitor manual; and
(D) Any information, allegations or reports regarding catch monitor
conflict of interest or breach of the standards of behavior described
in catch monitor provider policy.
(12) Replace lost or damaged gear. Lost or damaged gear issued to a
catch monitor by NMFS must be replaced by the catch monitor provider.
All replacements must be provided to NMFS and be in accordance with
requirements and procedures identified in writing by the Catch Monitor
Program.
(13) Confidentiality of information. A catch monitor provider must
ensure that all records on individual catch monitor performance
received from NMFS under the routine use provision of the Privacy Act
(5 U.S.C. 552a) or as otherwise required by law remain confidential and
are not further released to anyone outside the employ of the catch
monitor provider company to whom the catch monitor was contracted
except with written permission of the catch monitor.
(g) Certification and decertification procedures for catch
monitors. (1) Catch monitor certification official. The Regional
Administrator (or a designee) will designate a NMFS catch monitor
certification official who will make decisions on whether to issue or
deny catch monitor certification.
(2) Agency determinations on catch monitor certifications. (i)
Issuance of certifications. Certification may be issued upon
determination by the catch monitor certification official that the
candidate has successfully met all requirements for certification as
specified in Sec. 660.17(d).
(ii) Denial of a certification. The catch monitor certification
official will issue a written determination identifying the reasons for
denial of a certification.
(3) Limitations on conflict of interest for catch monitors. (i)
Catch monitors must not have a direct financial interest, other than
the provision of observer or catch monitor services, in a North Pacific
fishery managed pursuant to an FMP for the waters off the coast of
Alaska, Alaska state waters, or in a Pacific Coast fishery managed by
either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(A) Any ownership, mortgage holder, or other secured interest in a
vessel, first receiver, shorebased or floating stationary processor
facility involved in the catching, taking, harvesting or processing of
fish;
(B) Any business involved with selling supplies or services to any
vessel, first receiver, shorebased or floating stationary processing
facility; or
(C) Any business involved with purchasing raw or processed products
from any vessel, first receiver, shorebased or floating stationary
processing facilities.
(ii) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS or has interests that may be substantially affected by the
performance or nonperformance of the catch monitor's official duties.
(iii) May not serve as a catch monitor at any shoreside or floating
stationary processing facility owned or operated where a person was
previously employed in the last two years.
(iv) May not solicit or accept employment as a crew member or an
employee of a vessel, or shoreside processor while employed by a catch
monitor provider.
(v) Provisions for remuneration of catch monitors under this
section do not constitute a conflict of interest.
(4) Catch monitor decertification. (i) Catch monitor
decertification review official. The Regional Administrator (or a
designee) will designate a catch monitor decertification review
official(s), who will have the authority to review certifications and
issue IADs of decertification.
(ii) Causes for decertification. The catch monitor decertification
official may initiate decertification proceedings when it is alleged
that any of the following acts or omissions have been committed:
(A) Failed to satisfactorily perform the specified duties and
responsibilities;
(B) Failed to abide by the specified standards of conduct;
(C) Upon conviction of a crime or upon entry of a civil judgment
for:
(1) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties and responsibilities specified in this section;
(2) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(3) Commission of any other offense indicating a lack of integrity
or honesty that seriously and directly affects the fitness of catch
monitors.
(iii) Issuance of IAD. Upon determination that decertification is
warranted, the catch monitor decertification official will issue a
written IAD. The IAD will identify the specific reasons for the action
taken. Decertification is effective 30 calendar days after the date on
the IAD, unless there is an appeal.
(iv) Appeals. A certified catch monitor who receives an IAD that
suspends or revokes his or her catch
[[Page 9601]]
monitor certification may appeal the determination within 30 calendar
days after the date on the IAD to the Office of Administrative Appeals
pursuant to Sec. 660.19.
6. Revise Sec. 660.18 to read as follows.
Sec. 660.18 Observer and catch monitor provider permits and
endorsements.
(a) Provider permits. Persons seeking to provide observer or catch
monitor services must obtain a provider permit from NMFS before
providing certified catch monitors or certified observers for the
Shorebased IFQ Program, the MS Coop Program, the C/P Coop Program, or
for processing vessels in the fixed gear or open access fisheries.
There are two types of endorsements for provider permits, an observer
endorsement and a catch monitor endorsement. Provider permits must have
at least one endorsement and it must be appropriate for the services
being provided. Provider permits are obtained through an application
process and must be renewed annually to remain valid in the following
year. A provider permit expires if it is not renewed or when services
have not been provided for 12 consecutive months.
(b) Application process to become an observer or catch monitor
provider. (1) New provider applications. An applicant seeking a
provider permit may submit an application at any time during the
calendar year. Any provider permit issued during a given year will
expire on December 31. Applications must be submitted by fax or mail to
the West Coast Region Fisheries Permits Office 7600 Sand Point Way NE
Seattle, WA, 98115. Only complete applications will be considered for
approval by the review board.
(2) Contents of provider application. A complete application for a
provider permit shall contain the following:
(i) A statement indicating which endorsement the applicant is
seeking: observer provider, catch monitor provider or both
endorsements. A single application may be used to apply for both
endorsements.
(ii) Description of the management, organizational structure, and
ownership structure of the applicant's business, including
identification by name and general function of all controlling
management interests in the company, including but not limited to
owners, board members, officers, authorized agents, and other
employees. List all office locations and their business mailing
address, business phone and fax number, email addresses. If the
applicant is a corporation, the articles of incorporation must be
provided. If the applicant is a partnership, the partnership agreement
must be provided.
(iii) Provider contact information. (A) Name of applicant
organization. If the applicant organization is United States business
entity, include the state registration number.
(B) The primary business mailing address, phone and fax numbers
where the owner(s) can be contacted for official correspondence.
(iv) A narrative statement describing relevant direct or indirect
prior experience or qualifications the applicant may have that would
enable them to be a successful provider.
(A) For applicants seeking an observer provider endorsement, the
applicant should describe experience in placing individuals in remote
field and/or marine work environments. This includes, but is not
limited to, recruiting, hiring, deployment, and personnel
administration.
(B) For applicants seeking a catch monitor provider endorsement, a
narrative statement should identify prior relevant experience in
recruiting, hiring, deploying, and providing support for individuals in
marine work environments in the groundfish fishery or other fisheries
of similar scale.
(v) A narrative description of the applicant's ability to carry out
the required responsibilities and duties as described at Sec. Sec.
660.140(h), 660.150(j), and 660.160(g) for observer providers and/or
Sec. 660.17(f) for catch monitor providers.
(vi) A statement signed under penalty of perjury from each owner,
or owners, board members, and officers if a corporation, that they have
no conflict of interest as described in Sec. 660.18(c)(3).
(vii) A statement signed under penalty of perjury from each owner,
or owners, board members, and officers if a corporation, describing any
criminal convictions, Federal contracts they have had and the
performance rating they received on the contract, and previous
decertification action while working as an observer, observer provider,
or catch monitor provider.
(viii) NMFS may request additional information or clarification
from the applicants.
(c) Application evaluation. Complete applications will be forwarded
to Observer program and or the Catch Monitor Program for review and
evaluation.
(1) A provider permit application review board will be established
and be comprised of at least three members. The review board will
evaluate applications submitted under paragraph (a) of this section. If
the applicant is a corporation, the review board also will evaluate the
application criteria for each owner, or owners, board members, and
officers.
(2) The provider permit application will, at a minimum, be
evaluated on the following criteria:
(i) The applicant's ability to carry out the responsibilities and
relevant experience and qualifications.
(ii) Satisfactory performance ratings on any Federal contracts held
by the applicant.
(iii) Absence of any conflict of interest as defined for providers.
(iv) Absence of any relevant criminal convictions related to:
(A) Embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements or receiving stolen
property, or
(B) The commission of any other crimes of dishonesty, as defined by
state law or Federal law, that would seriously and directly affect the
fitness of an applicant in providing observer services under this
section;
(v) Absence of any history of decertification as an observer
provider;
(3) Limitations on conflict of interest for providers. Providers
must not have a direct financial interest, other than the provision of
observer or catch monitor services, in a North Pacific fishery managed
pursuant to an FMP for the waters off the coast of Alaska, Alaska state
waters, or in a Pacific Coast fishery managed by either the state or
Federal Governments in waters off Washington, Oregon, or California,
including but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a
vessel, first receiver, shorebased or floating stationary processor
facility involved in the catching, taking, harvesting or processing of
fish;
(ii) Any business involved with selling supplies or services to any
vessel, first receiver, shorebased or floating stationary processing
facility; or
(iii) Any business involved with purchasing raw or processed
products from any vessel, first receiver, shorebased or floating
stationary processing facilities.
(4) Existing providers. Businesses that provided observers and/or
catch monitors in the 12 months prior to [EFFECTIVE DATE OF FINAL RULE]
will be issued a provider permit without submission of an application.
This permit will be effective through December 31, 2014.
(i) Providers who deployed catch monitors in the Shorebased IFQ
Program in the 12 months prior to [EFFECTIVE DATE OF FINAL RULE] will
be issued a provider permit with a catch monitor provider endorsement
[[Page 9602]]
effective through December 31, 2014, except that a change in ownership
of an existing catch monitor provider after January 1, 2014, requires a
new permit application under this section.
(ii) Providers who deployed certified observers in the Pacific
Coast groundfish fishery in the 12 months prior to [EFFECTIVE DATE OF
FINAL RULE] will be issued a provider permit with an observer provider
endorsement effective through December 31, 2014, except that a change
in ownership of an existing observer provider after January 1, 2014,
requires a new permit application under this section.
(iii) To receive a provider permit for 2015 and beyond, the
existing providers must follow the provider permit renewal process set
forth in this section.
(d) Agency determination on an application. NMFS will send a
written determination to the applicant. If an application is approved,
NMFS will issue a provider permit with the approved endorsements. If an
application is denied, the basis for denial will be explained in the
written determination.
(e) Effective dates. The provider permit will be valid from the
effective date identified on the permit until the permit expiration
date of December 31. The provider permit must be renewed prior to
expiration to remain valid at the start of the following year.
(f) Expiration of the provider permit. (1) Expiration due to
inactivity. (i) A provider permit and endorsements will expire after a
period of 12 continuous months during which no observers or catch
monitors are deployed by the provider in the Pacific coast groundfish
fishery.
(ii) For permits that are endorsed for both observers and catch
monitors, the observer provider endorsement will expire after a period
of 12 continuous months during which no observers are deployed by the
provider and the catch monitor provider endorsement will expire after a
periods of 12 continuous months during which no catch monitors are
deployed by the provider.
(iii) The Regional Administrator will provide written notice to a
provider if NMFS' deployment records indicate that observer or catch
monitors have not been deployed as described in paragraph (f)(1)(i) and
(ii) of this section. If, after the provider has had an opportunity to
respond to the notice, NMFS concludes that expiration criteria have
been met, it will issue an IAD finding that the permit expired. A
provider that receives an IAD of permit expiration may appeal under
Sec. 660.19. A provider that appeals an IAD will be issued an
extension of the expiration date of the permit until after the final
resolution of the appeal.
(2) Expiration due to failure to renew. Provider permits must be
renewed every calendar year. Failure to renew will result in expiration
of the provider permit on December 31.
(3) Obtaining a new permit or endorsement following an expiration
or voided permit. A person holding an expired or void permit or
endorsement may reapply for a new provider permit or endorsement at any
time consistent with Sec. 660.18(b).
(g) Provider permit renewal process. To remain in effect in the
following year, provider permits must be renewed prior to the permit
expiration date.
(1) NMFS will mail a provider permit renewal form to existing
permit holders on or about October 1 each year.
(2) Providers who want to have their permits effective for January
1 of the following calendar year must submit their complete renewal
form to NMFS by November 30. For those permitted providers who do not
submit a complete renewal form by November 30, NMFS may not be able to
issue a new provider permit by January 1of the following calendar year,
and will issue the new provider permit as soon as practicable. If a
provider fails to renew the provider permit, the provider permit will
expire on December 31.
(3) Permitted providers as required under Sec. Sec. 660.140,
660.150, and 660.160 for the trawl fisheries will be required to
provide the following information relative to the 12 months prior to
submission of a renewal: for catch monitor endorsed providers, the
total number of individual catch monitors that attended training,
attended briefings, and deployed to a first reviewer; and for observer
endorsed providers, the total number of individual observers that
attended training, attended briefings, and deployed to a vessel. The
renewed permit will not be approved until NMFS has received all of the
information described in paragraph (g) of this section.
(h) Transferability. Neither a provider permit nor the endorsements
are transferable.
(1) Change in ownership or provider contact information. (i) Within
15 days of a change in the management, organizational structure, and
ownership structure involving a person being added to the ownership-
providers must notify NMFS SFD Permits Office and provide the
identification by name and general function of all controlling of the
applicant's business, including identification by name and general
function of all controlling management interests in the company,
including but not limited to owners, board members, officers,
authorized agents, and other employees. If the provider is a
corporation, the articles of incorporation must be provided. If the
provider is a partnership, the partnership agreement must be provided.
(ii) Within 30 days of a change in provider contact information the
provider must notify NMFS SFD Permits Office and provide the new
contact information.
(i) Provider permit sanctions. Procedures governing sanctions of
permits are found at subpart D of 15 CFR part 904.
(j) Permit fees. The Regional Administrator may charge fees to
cover administrative expenses related to issuance of permits including
initial issuance, renewal replacement, and appeals.
0
7. Add Sec. 660.19 to read as follows:
Sec. 660.19 Appeals process for catch monitors, observers, and
provider permits.
(a) Allowed appeals. This section describes the procedure for
appealing IADs described at Sec. Sec. 660.17(g), 660.18(f),
660.140(h), 660.150(j), and 660.160(g) for catch monitor
decertification, observer decertification and provider permit
expirations due to inactivity. Any person whose interest is directly
and adversely affected by an IAD may file a written appeal. For
purposes of this section, such person will be referred to as the
``applicant.''
(b) Appeals process. In cases where the applicant disagrees with
the IAD, the applicant may appeal that decision. Final decisions on
appeals of IADs will be made in writing by the Regional Administrator
or designee acting on behalf of the Secretary of Commerce and will
state the reasons therefore.
(1) Submission of appeals. (i) The appeal must be in writing and
comply with paragraph (b) of this section.
(ii) Appeals must be mailed or faxed to: National Marine Fisheries
Service, West Coast Region, Sustainable Fisheries Division, ATTN:
Appeals, 7600 Sand Point Way NE., Seattle, WA, 98115; Fax: 206-526-
6426; or delivered to National Marine Fisheries Service at the same
address.
(2) Timing of appeals. The appeal must be filed within 30 calendar
days after the determination is issued. The IAD becomes the final
decision of the Regional Administrator or designee acting on behalf of
the Secretary of Commerce if no appeal is filed within 30 calendar
days. The time period to submit an appeal begins with the date on the
IAD. If the last day of the time period is a Saturday, Sunday, or
Federal
[[Page 9603]]
holiday, the time period will extend to the close of business on the
next business day.
(3) Address of record. The address used by the applicant in initial
correspondence to NMFS concerning the application will be the address
used by NMFS for the appeal. Notifications and correspondence
associated with all actions affecting the applicant will be mailed to
the address of record unless the applicant provides NMFS, in writing,
an address change. NMFS bears no responsibility if NMFS sends a
notification or correspondence to the address of record and it is not
received because the applicant's actual address has changed without
notification to NMFS.
(4) Statement of reasons for appeals. Applicants must submit a full
written statement in support of the appeal, including a concise
statement of the reasons the IAD determination has a direct and adverse
effect on the applicant and should be reversed or modified. The
appellate officer will limit his/her review to the issues stated in the
appeal; all issues not set out in the appeal will be waived.
(5) Decisions on appeals. The Regional Administrator or designee
will issue a final written decision on the appeal which is the final
decision of the Secretary of Commerce.
0
8. In Sec. 660.60, revise paragraph (c)(1)(iv) to read as follows:
Sec. 660.60 Specifications and management measures.
* * * * *
(c) * * *
(1) * * *
(iv) List of IFQ species documented on Observer Program reporting
form. As specified at Sec. 660.140(h)(1)(i), to be exempt from
observer coverage while docked in port depends on documentation of
specified retained IFQ species on the Observer Program reporting form.
The list of IFQ species documented on the Observer Program form may be
modified on a biennial or more frequent basis under routine management
measures at Sec. 660.60(c)(1).
* * * * *
0
9. In Sec. 660.112,
0
a. Add paragraph (a)(3)(iv);
0
b. Revise paragraph (a)(4);
0
c. Remove paragraph (b)(1)(xiii);
0
d. Redesignate paragraphs (b)(1)(xiv), (b)(1)(xv), (b)(1)(xvi), and
(b)(1)(xvii) as (b)(1)(xiii), (b)(1)(xiv), (b)(1)(xv), and (b)(1)(xvi),
respectively, and revise newly redesignated paragraphs (b)(1)(xiii) and
(b)(1)(xiv); and
0
e. Revise paragraphs (d)(12), (d)(14), and (d)(15) to read as follows:
Sec. 660.112 Trawl fishery--prohibitions.
* * * * *
(a) * * *
(3) * * *
(iv) Fail to submit cease fishing reports specified at Sec. Sec.
660.113(c), 660.150(c), 660.160(c).
* * * * *
(4) Observers. * * * *
(i) Fish in the Shorebased IFQ Program, the MS Coop Program, or the
C/P Coop Program without observer coverage.
(ii) Fish in the Shorebased IFQ Program, the MS Coop Program, or
the C/P Coop Program if the vessel is inadequate or unsafe for observer
deployment as described at Sec. 660.12(e).
(iii) Fail to maintain observer coverage in port as specified at
Sec. 660.140(h)(1)(i).
* * * * *
(b) * * *
(1) * * *
(xiii) Discard or attempt to discard IFQ species/species group at
sea unless the observer has documented or estimated the discards.
(xiv) Begin a new fishing trip until all fish from an IFQ landing
have been offloaded from the vessel, consistent with Sec.
660.12(a)(11).
* * * * *
(d) * * *
(12) Sort or discard any portion of the catch taken by a catcher
vessel in the MS Coop Program before the catcher vessel observer
completes sampling of the catch, except for minor operational amounts
of catch lost by a catcher vessel provided the observer has accounted
for the discard (i.e., a maximized retention fishery).
* * * * *
(14) Take deliveries without a valid scale inspection report signed
by an authorized scale inspector on board the MS vessel.
(15) Sort, process, or discard catch delivered to MS vessels before
the catch is weighed on a scale that meets the requirements of Sec.
660.15(b), including the daily test requirements.
* * * * *
0
10. In Sec. 660.140,
0
a. Revise paragraphs (b)(2)(iv), (b)(2)(vi), (b)(2)(viii);
0
b. Revise paragraphs (h)(1), (h)(2)(i)(B), (h)(2)(ii)(B), (h)(3)
through (4), (h)(5)(ii)(B)(1) and (3), (h)(5)(iii)(D), (h)(5)(iv)(A)
and (B), (h)(5)(v), (h)(5)(vii)(A)(2) through (5), (h)(5)(ix),
(h)(5)(xi) through (xv), (h)(6)(i), (h)(6)(iii)(A), and (h)(6)(v)
through (ix);
0
c. Add paragraph (h)(2)(xi); and
0
d. Revise paragraphs (i)(2), (i)(3)(ii), (j)(2)(ii) through (iv),
(j)(3)(i), and (j)(4) to read as follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(b) * * *
(2) * * *
(iv) Provide unrestricted access to all areas where fish are or may
be sorted or weighed to catch monitors, NMFS staff, NMFS-authorized
personnel, or authorized officers at any time when a delivery of IFQ
species, or the processing of those species, is taking place.
* * * * *
(vi) Retain and make available to catch monitors, NMFS staff, NMFS-
authorized personnel, or authorized officers, all printed output from
any scale used to weigh catch, and any hand tally sheets, worksheets,
or notes used to determine the total weight of any species.
* * * * *
(viii) Ensure that sorting and weighing is completed prior to catch
leaving the area that can be monitored from the observation area
described in paragraph (i) of this section.
* * * * *
(h) * * * (1) Observer coverage requirements. (i) Coverage. The
following observer coverage pertains to certified observers obtained
from an observer provider permitted by NMFS.
(A) Any vessel participating in the Shorebased IFQ Program:
(1) Must carry a certified observer on any fishing trip from the
time the vessel leaves port and until the completion of landing (until
all catch from that fishing trip has been offloaded--see landing at
Sec. Sec. 660.11 and 660.60(h)(2)).
(2) Must carry an observer at any time the vessel is underway in
port, including transit between delivery points when fish is offloaded
at more than one IFQ first receiver.
(3) Is exempt from the requirement to maintain observer coverage as
specified in paragraph (h) of this section while remaining docked in
port when the observer makes available to the catch monitor an Observer
Program reporting form documenting the weight and number of bocaccio,
yelloweye rockfish, canary rockfish, and cowcod retained during that
trip and which documents any discrepancy the vessel operator and
observer may have in the weights and number of the overfished species,
unless modified inseason under routine management measures at Sec.
660.60(c)(1).
(B) Any vessel 125 ft (38.1 m) LOA or longer that is engaged in at-
sea processing must carry two certified observers, and any vessel
shorter than 125 ft (38.1 m) LOA that is engaged in at-sea processing
must carry one certified observer, each day that the
[[Page 9604]]
vessel is used to take, retain, receive, land, process, or transport
groundfish.
(ii) Observer deployment limitations and workload. An observer must
not be deployed for more than 22 calendar days in a calendar month. The
Observer Program may issue waivers to allow observers to work more than
22 calendar days per month when it's anticipated one trip will last
over 20 days or for issues with observer availability due to illness or
injury of other observers. If an observer is unable to perform their
duties for any reason, the vessel is required to be in port within 36
hours of the last haul sampled by the observer.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be immediately reported to the Observer Program
and OLE by the observer provider. The observer must be available for an
interview with the Observer Program or OLE if necessary.
(2) * * *
(i) * * *
(B) Accommodations and food for trips of 24 hours or more must be
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or designee.
(ii) * * *
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311. Maintain safe conditions on the vessel for the protection of
observer(s) including adherence to all USCG and other applicable rules,
regulations, or statutes pertaining to safe operation of the vessel,
and provisions at Sec. Sec. 600.725 and 600.746 of this chapter.
* * * * *
(xi) Housing on vessel in port. During all periods an observer is
housed on a vessel, the vessel operator must ensure that at least one
crew member is aboard.
(3) Procurement of observer services. Owners of vessels required to
carry observers under paragraph (h)(1) of this section must arrange for
observer services from an observer provider, except that:
(i) Vessels are required to procure observer services directly from
the Observer Program when NMFS has determined and given notification
that the vessel must carry NMFS staff or an individual authorized by
NMFS in lieu of an observer provided by an observer provider.
(ii) Vessels are required to procure observer services directly
from the Observer Program and an observer provider when NMFS has
determined and given notification that the vessel must carry NMFS staff
and/or individuals authorized by NMFS, in addition to an observer
provided by an observer provider.
(4) Application to become an observer provider. See Sec. 660.18.
* * * * *
(5) * * *
(ii) * * *
(B) * * *
(1) That the observer will return all phone calls, emails, text
messages, or other forms of communication within the time specified by
the Observer Program;
* * * * *
(3) That every observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the West Coast
Groundfish Observer Training class.
(iii) * * *
(D) Immediately report to the Observer Program Office and the OLE
any refusal to board an assigned vessel.
(iv) * * * (A) Must have a valid West Coast Groundfish observer
certification with the required endorsements;
(B) Must not have informed the observer provider prior to the time
of embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement, as required in paragraph (h)(5)(xi)(B) of this
section that would prevent him or her from performing his or her
assigned duties; and
* * * * *
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage under paragraphs (h)(5)(xi)(D) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents an observer from performing his or her
duties or where an observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the observer
provider is in a contractual relationship due to the lack of available
observers by the estimated embarking time of the vessel, the observer
provider must report it to NMFS at least 4 hours prior to the vessel's
estimated embarking time.
* * * * *
(vii) * * *
(A) * * *
(2) Has a check-in system in which the observer is required to
contact the observer provider each time they depart and return to port
on a vessels.
(3) Remains available to OLE and the Observer Program until the
conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics to the initial location of deployment, to all subsequent
vessel assignments during that deployment, and to and from the location
designated for an observer to be interviewed by the Observer Program;
and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: Prior to their vessel's initial departure from
port; for a period not to exceed 24 hours following the completion of
an offload when the observer has duties and is scheduled to disembark;
or for a period not to exceed 24 hours following the vessel's arrival
in port when the observer is scheduled to disembark.
(ii) Otherwise, each observer between vessels, while still under
contract with an observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodation must be at a licensed hotel, motel, bed and breakfast, or
other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
* * * * *
(ix) Verify vessel's Commercial Fishing Vessel Safety Decal. An
observer provider must ensure that the observer completes a current
observer vessel safety checklist, and verify that a vessel has a valid
USCG Commercial Fishing Vessel Safety Decal as required under paragraph
(h)(2)(ii)(B) of this section prior to the observer embarking on the
first trip and before an observer may get underway aboard the vessel.
The provider must submit all vessel
[[Page 9605]]
safety checklists to the Observer Program, as specified by Observer
Program. One of the following acceptable means of verification must be
used to verify the decal validity:
(A) An employee of the observer provider, including the observer,
visually inspects the decal aboard the vessel and confirms that the
decal is valid according to the decal date of issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
* * * * *
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (email), fax, or other method specified by
NMFS.
(A) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 10 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(1) Training registration materials consist of the following:
(i) Date of requested training;
(ii) A list of observer candidates that includes each candidate's
full name (i.e., first, middle and last names), date of birth, and
gender;
(iii) A copy of each candidate's academic transcripts and resume;
(iv) A statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions;
(v) Length of each observer's contract.
(2) Briefing registration materials consist of the following:
(i) Date and type of requested briefing session;
(ii) List of observers to attend the briefing session, that
includes each observer's full name (first, middle, and last names);
(iii) Length of each observer's contract.
(3) Debriefing. The Observer Program will notify the observer
provider which observers require debriefing and the specific time
period the observer provider has to schedule a date, time, and location
for debriefing. The observer provider must contact the Observer Program
within 5 business days by telephone to schedule debriefings.
(i) Observer providers must immediately notify the observer program
when observers end their contract earlier than anticipated.
(ii) [Reserved]
(B) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the dangerous, remote, and rigorous nature of the work by reading
the NMFS-prepared information. The physician's statement must be
submitted to the Observer Program Office prior to certification of an
observer. The physical exam must have occurred during the 12 months
prior to the observer's or observer candidate's deployment.
(C) Certificates of insurance. Copies of ``certificates of
insurance,'' that name the Northwest Fisheries Science Center Observer
Program manager as the ``certificate holder,'' shall be submitted to
the Observer Program Office by February 1 of each year. 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 canceled.
(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 Worker's Compensation as required.
(4) Commercial General Liability.
(D) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (h)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office, upon
request, a completed and unaltered copy of the current or most recent
signed and valid contract (including all attachments, appendices,
addendums, and exhibits incorporated into the contract and any
agreements or policies with regard to observer compensation or salary
levels) between the observer provider and the particular entity
identified by the Observer Program or with specific observers. The
copies must be submitted to the Observer Program Office via email, fax,
or mail within 5 business days of the request. Signed and valid
contracts include the contracts an observer provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (h)(1)(i) of this section; and
(2) Observers.
(E) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program Office any
change of management or contact information as required at Sec.
660.18(h).
(F) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(G) Observer status report. Observer providers must provide NMFS
with an updated list of observer trips per Observer Program protocol.
Trip information includes observer provider name, observer last name,
observer first name, trip start date, trip end date, status of
observer, vessel name, and vessel identification number.
(H) Other information. Observer providers must submit to NMFS, if
requested, copies of any information developed and used by the observer
providers distributed to vessels, such as informational pamphlets,
payment notification, description of observer duties, etc.
(I) Other reports. Reports of the following must be submitted in
writing to the Observer Program Office by the observer provider via fax
or email address designated by the Observer Program Office within 24
hours after the observer provider becomes aware of the information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under Sec.
660.12(e); Sec. 660.112(a)(4); or Sec. 600.725(o), (t) and (u) of
this chapter;
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. Lost or damaged gear issued to
an
[[Page 9606]]
observer by NMFS must be replaced by the observer provider. All
replacements must be provided to NMFS and be in accordance with
requirements and procedures identified in writing by the Observer
Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act (U.S.C. 552a) or as otherwise required by law remain
confidential and are not further released to anyone outside the employ
of the observer provider company to whom the observer was contracted
except with written permission of the observer.
(xiv) Limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer or catch monitor services, in a North Pacific
fishery managed pursuant to an FMP for the waters off the coast of
Alaska, Alaska state waters, or in a Pacific Coast fishery managed by
either the state or Federal Governments in waters off Washington,
Oregon, or California, including, but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish;
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington; or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS, or who has interests that may be substantially
affected by the performance or non-performance of the official duties
of observer providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers.
(A) The policy shall address the following behavior and conduct
regarding:
(1) Observer use of alcohol;
(2) Observer use, possession, or distribution of illegal drugs in
violation of applicable law; and;
(3) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(B) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to: observers, observer
candidates and the Observer Program Office.
* * * * *
(6) * * * (i) Applicability. Observer certification authorizes an
individual to fulfill duties as specified in writing by the Observer
Program Office while under the employ of an observer provider and
according to certification requirements as designated under paragraph
(h)(6)(iii) of this section.
* * * * *
(iii) * * * (A) Initial certification. NMFS may certify individuals
who, in addition to any other relevant considerations:
(1) Are employed by an permitted observer provider at the time of
the of the certification is issued;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 679.52(b) of this
chapter regarding an observer candidate's health and physical fitness
for the job;
(ii) Meet all observer candidate education and health standards as
specified in Sec. 679.52(b) of this chapter; and
(iii) Have successfully completed NMFS-approved training as
prescribed by the Observer Program. Successful completion of training
by an observer applicant consists of meeting all attendance and conduct
standards issued in writing at the start of training; meeting all
performance standards issued in writing at the start of training for
assignments, tests, and other evaluation tools; and completing all
other training requirements established by the Observer Program.
(iv) Have not been decertified under paragraph (h)(6)(ix) of this
section, or pursuant to Sec. 679.53(c) of this chapter.
* * * * *
(v) Issuance of an observer certification. An observer
certification may be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (h)(6)(iii) of
this section. The following endorsements as prescribed by the Observer
Program must be obtained in addition to observer certification.
(A) West Coast Groundfish Observer Program training endorsement. A
training endorsement signifies the successful completion of the
training course required to obtain observer certification. This
endorsement expires when the observer has not been deployed and
performed sampling duties as required by the Observer Program Office
for a period of time, specified by the Observer Program, after his or
her most recent debriefing. The Observer can renew the endorsement by
successfully completing training once more.
(B) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training endorsement is
obtained. To obtain an annual general endorsement, an observer must
successfully complete the annual briefing, as specified by the Observer
Program. All briefing attendance, performance, and conduct standards
required by the Observer Program must be met.
(C) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment, as defined by
the Observer Program, after receiving a training endorsement or annual
general endorsement, must complete all applicable debriefing
requirements specified by the Observer Program. A deployment
endorsement is issued to observers who meet the performance standards
specified by the Observer Program. A deployment endorsement must be
obtained prior to any subsequent deployments for the remainder of that
calendar year. If a deployment endorsement is not issued, certification
training must be repeated.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
observer manual or other written instructions from the Observer
Program.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
[[Page 9607]]
(C) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(D) Successfully complete any required trainings or briefings as
prescribed by the Observer Program.
(E) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of briefing for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(F) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(G) Successfully meet Observer Program performance standards
reporting for assigned debriefings or interviews.
(H) Submit all data and information required by the Observer
Program within the program's stated guidelines.
(I) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services or catch monitor services, in a North
Pacific fishery managed pursuant to an FMP for the waters off the coast
of Alaska, Alaska state waters, or in a Pacific Coast fishery managed
by either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish;
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
or floating stationary processor owned or operated by a person who
employed the observer in the last two years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based or floating stationary processor
while employed by an observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their duties as described in the observer manual or
other written instructions from the Observer Program Office.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to the conservation of marine resources of their
environment.
(C) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification. (A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue IAD of observer certification suspension and/
or decertification.
(B) Causes for suspension or decertification. In addition to any
other supported basis connected to an observer's job performance, the
suspension and decertification official may initiate suspension or
decertification proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties as described or
directed by the Observer Program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of an IAD. Upon determination that suspension or
decertification is warranted, the suspension/decertification official
will issue a written IAD to the observer via certified mail at the
observer's most current address provided to NMFS. The IAD will identify
whether a certification is suspended or revoked and will identify the
specific reasons for the action taken. Decertification is effective 30
calendar days after the date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal the
determination within 30 calendar days after the date on the IAD to the
Office of Administrative Appeals pursuant to Sec. 660.19.
(i) * * *
(2) Procurement of catch monitor services. Owners or managers of
each IFQ first receiver must arrange for catch monitor services from a
catch monitor provider prior to accepting IFQ landings.
* * * * *
(3) * * *
(ii) The working hours of each individual catch monitor will be
limited as follows: the time required for a catch monitor to conduct
monitoring duties must not exceed 14 consecutive hours in any 24-hour
period with a maximum of 12 hours being work other than the summary and
submission of catch monitor data. In the same 24-hour period a catch
monitor must have a break that is a minimum of 8 consecutive hours.
* * * * *
(j) * * *
(2) * * *
(ii) Printed record. All scales identified in the catch monitoring
plan accepted by NMFS during the first receiver site license
application process, must produce a printed record as specified at
Sec. 660.15(c).
(iii) Scales that may be exempt from printed report. An IFQ first
receiver that receives no more than 200,000 pounds of groundfish in any
calendar month will be exempt from the requirement to produce a printed
record provided that:
(A) The first receiver has not previously operated under a catch
monitoring plan where a printed record was required;
(B) The first receiver ensures that all catch is weighed; and
[[Page 9608]]
(C) The catch monitor, NMFS staff, or authorized officer can verify
that all catch is weighed.
(iv) Retention of printed records. An IFQ first receiver must
maintain printouts on site until the end of the fishing year during
which the printouts were made consistent with Sec. 660.113(a)(2).
* * * * *
(3) * * *
(i) General. Ensure that all IFQ landings are sorted and weighed as
specified at Sec. 660.130(d) and in accordance with an approved catch
monitoring plan.
* * * * *
(4) Scale tests. All testing must meet the scale test standards
specified at Sec. 660.15(c).
* * * * *
0
11. In Sec. 660.150,
0
a. Revise paragraphs (b)(1)(ii), (j)(1)(i), (j)(1)(ii)(A), (j)(1)(iii),
(j)(2)(i)(A), (j)(2)(i)(B)(2), (j)(2)(ii) introductory text,
(j)(2)(ii)(B), (j)(2)(iii), (j)(2)(ix)(A) introductory text, (j)(2)(x)
introductory text, (j)(3), (j)(4), and (j)(5);
0
b. Add paragraph (j)(2)(xi) to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
* * * * *
(b) * * * (1) * * *
(ii) MS vessel responsibilities. The owner and operator of a MS
vessel must:
(A) Recordkeeping and reporting. Maintain a valid declaration as
specified at Sec. 660.13(d); and, maintain and submit all records and
reports specified at Sec. 660.113(c) including, economic data, scale
tests records, cease fishing reports, and cost recovery.
(B) Observers. As specified at paragraph (j) of this section,
procure observer services, maintain the appropriate level of coverage,
and meet the vessel responsibilities.
(C) Catch weighing requirements. The owner and operator of a MS
vessel must: Ensure that all catch is weighed in its round form on a
NMFS-approved scale that meets the requirements described in section
Sec. 660.15(b);
* * * * *
(j) * * * (1) * * * (i) Coverage. The following observer coverage
pertains to certified observers obtained from an observer provider
permitted by NMFS.
(A) MS vessels. Any vessel registered to an MS permit 125 ft (38.1
m) LOA or longer must carry two certified observers, and any vessel
registered to an MS permit shorter than 125 ft (38.1 m) LOA must carry
one certified observer, each day that the vessel is used to take,
retain, receive, land, process, or transport groundfish.
(B) Catcher vessels. Any vessel delivering catch to any MS vessel
must carry one certified observer each day that the vessel is used to
take groundfish.
(ii) * * * (A) MS vessels. The time required for the observer to
complete sampling duties must not exceed 12 consecutive hours in each
24-hour period.
* * * * *
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be reported to the Observer Program and OLE by
the observer provider. The observer must be available for an interview
with the Observer Program or OLE if necessary.
* * * * *
(2) * * *
(i) * * * (A) MS vessels. Provide accommodations and food that are
equivalent to those provided for officers, engineers, foremen, deck-
bosses or other management level personnel of the vessel.
(B) * * *
(2) Accommodations and food for trips of 24 hours or more must be
equivalent to those provided for the crew and must include berthing
space, a space that is intended to be used for sleeping and is provided
with installed bunks and mattresses. A mattress or futon on the floor
or a cot is not acceptable if a regular bunk is provided to any crew
member, unless other arrangements are approved in advance by the
Regional Administrator or designee.
* * * * *
(ii) Safe conditions. MS vessels and catcher vessels must:
* * * * *
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311. Maintain safe conditions on the vessel for the protection of
observer(s) including adherence to all USCG and other applicable rules,
regulations, or statutes pertaining to safe operation of the vessel,
and provisions at Sec. Sec. 600.725 and 600.746 of this chapter.
(iii) Computer hardware and software. MS vessels must:
(A) Provide hardware and software pursuant to regulations at
Sec. Sec. 679.51(e)(iii)(B) of the chapter.
(B) Provide the observer(s) access to a computer required under
paragraph (j)(2)(iii)(A) of this section, and that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(C) Ensure that the MS vessel has installed the most recent release
of NMFS data entry software or other approved software prior to the
vessel receiving, catching or processing IFQ species.
(D) Ensure that the communication equipment required in paragraph
(j)(2)(iii) of this section and that is used by observers to enter and
transmit data, is fully functional and operational. ``Functional''
means that all the tasks and components of the NMFS supplied, or other
approved, software described at paragraph (j)(2)(iii) of this section
and the data transmissions to NMFS can be executed effectively aboard
the vessel by the communications equipment.
* * * * *
(ix) * * * (A) MS vessels. To allow the observer to carry out
required duties, the vessel owner must provide an observer sampling
station that meets the following requirements:
* * * * *
(x) Transfer at sea. Observers may be transferred at-sea between MS
vessels, between MS vessels and C/P vessels, or between a MS vessel and
a catcher vessel. Transfers at-sea between catcher vessels is
prohibited. For transfers, both vessels must:
* * * * *
(xi) Housing on vessel in port. During all periods an observer is
housed on a vessel, the vessel operator must ensure that at least one
crew member is aboard.
* * * * *
(3) Procurement of observer services. (i) MS vessels. Owners of
vessels required to carry observers under paragraph (j)(1)(i) of this
section must arrange for observer services from an observer provider,
except that:
(A) Vessels are required to procure observer services directly from
the Observer Program when NMFS has determined and given notification
that the vessel must carry NMFS staff or an individual authorized by
NMFS in lieu of an observer provided by an observer provider.
(B) Vessels are required to procure observer services directly from
the Observer Program and an observer provider when NMFS has determined
and given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
an observer provider.
(ii) Catcher vessels. Owners of vessels required to carry observers
under paragraph (j)(1)(i) of this section must arrange for observer
services from an observer provider, except that:
[[Page 9609]]
(A) Vessels are required to procure observer services directly from
the Observer Program when NMFS has determined and given notification
that the vessel must carry NMFS staff or an individual authorized by
NMFS in lieu of an observer provided by an observer provider.
(B) Vessels are required to procure observer services directly from
the Observer Program and an observer provider when NMFS has determined
and given notification that the vessel must carry NMFS staff and/or
individuals authorized by NMFS, in addition to an observer provided by
an observer provider.
(4) Observer provider responsibilities. (i) Provide qualified
candidates to serve as observers. Observer providers must provide
qualified candidates to serve as observers. To be qualified, a
candidate must have:
(A) A Bachelor's degree or higher from an accredited college or
university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or
equivalent in applicable biological sciences with extensive use of
dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each
in math and statistics with a minimum of 5 semester hours total for
both; and
(D) Computer skills that enable the candidate to work competently
with standard database software and computer hardware.
(ii) Hiring an observer candidate. (A) MS vessels. (1) The observer
provider must provide the candidate a copy of NMFS-provided pamphlets,
information and other literature describing observer duties (i.e. the
At-Sea Hake Observer Program's Observer Manual) prior to hiring the
candidate. Observer job information is available from the Observer
Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(2) The observer provider must have a written contract or a written
contract addendum that is signed by the observer and observer provider
prior to the observer's deployment with the following clauses:
(i) That the observer will return all phone calls, emails, text
messages, or other forms of communication within the time specified by
the Observer Program;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties.
(B) Catcher vessels. (1) Provide the candidate a copy of NMFS-
provided pamphlets, information and other literature describing
observer duties, for example, the West Coast Groundfish Observer
Program's sampling manual. Observer job information is available from
the Observer Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(2) The observer provider must have a written contract or a written
contract addendum that is signed by the observer and observer provider
prior to the observer's deployment with the following clauses:
(i) That the observer will return all phone calls, emails, text
messages, or other forms of communication within the time specified by
the Observer Program;
(ii) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties; and
(iii) That the observer completes a basic cardiopulmonary
resuscitation/first aid course prior to the end of the Observer Program
Training class.
(iii) Ensure that observers complete duties in a timely manner. (A)
MS vessels. An observer provider must ensure that observers employed by
that observer provider do the following in a complete and timely
manner:
(1) Submit to NMFS all data, logbooks, and reports as required by
the observer manual;
(2) Report for his or her scheduled debriefing and complete all
debriefing responsibilities;
(3) Return all sampling and safety gear to the Observer Program
Office;
(4) Submit all biological samples from the observer's deployment by
the completion of the electronic vessel and/or processor survey(s); and
(5) Immediately report to the Observer Program Office and the OLE
any refusal to board an assigned vessel.
(B) Catcher vessels. An observer provider must ensure that
observers employed by that observer provider do the following in a
complete and timely manner:
(1) Submit to NMFS all data, logbooks, and reports and biological
samples as required under the Observer Program policy deadlines;
(2) Report for his or her scheduled debriefing and complete all
debriefing responsibilities;
(3) Return all sampling and safety gear to the Observer Program
Office; and
(4) Immediately report to the Observer Program Office and the OLE
any refusal to board an assigned vessel.
(iv) Observers provided to vessel. (A) MS vessels. Observers
provided to MS vessels:
(1) Must have a valid North Pacific groundfish observer
certification with required endorsements and an At-Sea Hake Observer
Program endorsement;
(2) Must not have informed the observer provider prior to the time
of embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(B) Catcher vessels. Observers provided to catcher vessels:
(1) Must have a valid West Coast Groundfish observer certification
with the required endorsements;
(2) Must have not informed the observer provider prior to the time
of embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement (required in paragraph (j)(4)(xi)(B)(2) of this
section) that would prevent him or her from performing his or her
assigned duties; and,
(3) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment pursuant to the terms
of the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified at paragraph (j)(1)(i) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents an observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the observer
provider is in a contractual relationship due to lack of available
observers by the estimated embarking time of the vessel, the observer
provider must report it to the Observer Program at least 4 hours prior
to the vessel's estimated embarking time.
[[Page 9610]]
(vi) Provide observer salaries and benefits. An observer provider
must provide to its observer employees salaries and any other benefits
and personnel services in accordance with the terms of each observer's
contract.
(vii) Provide observer deployment logistics. (A) MS vessels. An
observer provider must provide to each of its observers under contract:
(1) All necessary transportation, including arrangements and
logistics, to the initial location of deployment, to all subsequent
vessel assignments during that deployment, and to and from the location
designated for an observer to be interviewed by the Observer Program;
and
(2) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(3) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed 24 hours following the completion
of an offload when the observer has duties and is scheduled to
disembark; or
(iii) For a period not to exceed 24 hours following the vessel's
arrival in port when the observer is scheduled to disembark.
(iv) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations pursuant to the terms of
the contract between the observer provider and the observers. If the
observer provider is responsible for providing accommodations under the
contract with the observer, the accommodations must be at a licensed
hotel, motel, bed and breakfast, or other shoreside accommodations for
the duration of each period between vessel or shoreside assignments.
Such accommodations must include an assigned bed for each observer and
no other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
(B) Catcher vessels. An observer provider must ensure each of its
observers under contract:
(1) Has an individually assigned mobile or cell phone, in working
order, for all necessary communication. An observer provider may
alternatively compensate observers for the use of the observer's
personal cell phone or pager for communications made in support of, or
necessary for, the observer's duties.
(2) Has a check-in system in which the observer is required to
contact the observer provider each time they depart and return to port
on a vessel.
(3) Remains available to OLE and the Observer Program until the
conclusion of debriefing.
(4) Receives all necessary transportation, including arrangements
and logistics to the initial location of deployment, to all subsequent
vessel assignments during that deployment, and to and from the location
designated for an observer to be interviewed by the Observer Program;
and
(5) Receives lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(i) An observer under contract may be housed on a vessel to which
he or she is assigned: Prior to their vessel's initial departure from
port; for a period not to exceed 24 hours following the completion of
an offload when the observer has duties and is scheduled to disembark;
or for a period not to exceed 24 hours following the vessel's arrival
in port when the observer is scheduled to disembark.
(ii) Otherwise, each observer between vessels, while still under
contract with an observer provider, shall be provided with
accommodations in accordance with the contract between the observer and
the observer provider. If the observer provider is responsible for
providing accommodations under the contract with the observer, the
accommodations must be at a licensed hotel, motel, bed and breakfast,
or other shoreside accommodations that has an assigned bed for each
observer that no other person may be assigned to for the duration of
that observer's stay. Additionally, no more than four beds may be in
any room housing observers at accommodations meeting the requirements
of this section.
(viii) Observer deployment limitations. (A) MS vessels. Unless
alternative arrangements are approved by the Observer Program Office,
an observer provider must not:
(1) Deploy an observer on the same vessel more than 90 days in a
12-month period;
(2) Deploy an observer for more than 90 days in a single
deployment;
(3) Include more than four vessels assignments in a single
deployment, or
(4) Disembark an observer from a vessel before that observer has
completed his or her sampling or data transmission duties.
(B) Catcher vessels. Unless alternative arrangements are approved
by the Observer Program Office, an observer provider must not deploy an
observer on the same vessel more than 90 calendar days in a 12-month
period.
(ix) Verify vessel's Commercial Fishing Vessel Safety Decal. An
observer provider must ensure that the observer completes an observer
vessel safety checklist, and verify that a vessel has a valid USCG
Commercial Fishing Vessel Safety Decal as required under paragraph
(j)(2)(ii)(B) of this section prior to the observer embarking on the
first trip and before an observer may get underway aboard the vessel.
The provider must submit all vessel safety checklists to the Observer
Program, as specified by Observer Program policy. One of the following
acceptable means of verification must be used to verify the decal
validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
(x) Maintain communications with observers. An observer provider
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, in
transit, or in port awaiting vessel reassignment.
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (email), fax, or other method specified by
NMFS.
(A) Motherships. (1) Training and briefing registration materials.
The observer provider must submit training and briefing registration
materials to the Observer Program Office at least 5 business days prior
to the beginning of a scheduled observer at-sea hake training or
briefing session.
(i) Registration materials. Registration materials consist of the
date of requested training or briefing with a list of observers
including each observer's full name (i.e., first, middle and last
names).
(ii) Projected observer assignments. Prior to the observer's
completion of the training or briefing session, the observer provider
must submit to the Observer Program Office a statement of projected
observer assignments that include the observer's name; vessel, gear
type, and vessel/processor code; port of embarkation; and area of
fishing.
(2) Observer debriefing registration. The observer provider must
contact the At-Sea Hake Observer Program within 5 business days after
the completion of an
[[Page 9611]]
observer's deployment to schedule a date, time and location for
debriefing. Observer debriefing registration information must be
provided at the time of debriefing scheduling and must include the
observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(3) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(4) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, email address, and address.
(5) Other reports. Reports of the following must be submitted in
writing to the At-Sea Hake Observer Program Office by the observer
provider via fax or email address designated by the Observer Program
Office within 24 hours after the observer provider becomes aware of the
information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under Sec.
660.12(e); Sec. 660.112(a)(4); or Sec. 600.725(o), (t) and (u) of
this chapter;
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(B) Catcher vessels. An observer provider must provide all of the
following information by electronic transmission (email), fax, or other
method specified by NMFS.
(1) Observer training, briefing, and debriefing registration
materials. This information must be submitted to the Observer Program
Office at least 10 business days prior to the beginning of a scheduled
West Coast groundfish observer certification training or briefing
session.
(i) Training registration materials consist of the following: Date
of requested training; a list of observer candidates that includes each
candidate's full name (i.e., first, middle and last names), date of
birth, and gender; a copy of each candidate's academic transcripts and
resume; a statement signed by the candidate under penalty of perjury
which discloses the candidate's criminal convictions; and length of
observer contract.
(ii) Briefing registration materials consist of the following: Date
and type of requested briefing session; list of observers to attend the
briefing session, that includes each observer's full name (first,
middle, and last names); and length of observer contract.
(iii) The Observer Program will notify the observer provider which
observers require debriefing and the specific time period the observer
provider has to schedule a date, time, and location for debriefing. The
observer provider must contact the Observer Program within 5 business
days by telephone to schedule debriefings. Observer providers must
immediately notify the Observer Program when observers end their
contract earlier than anticipated.
(2) Physical examination. A signed and dated statement from a
licensed physician that he or she has physically examined an observer
or observer candidate. The statement must confirm that, based on that
physical examination, the observer or observer candidate does not have
any health problems or conditions that would jeopardize that
individual's safety or the safety of others while deployed, or prevent
the observer or observer candidate from performing his or her duties
satisfactorily. The statement must declare that, prior to the
examination, the physician was made aware of the duties of the observer
and the dangerous, remote, and rigorous nature of the work by reading
the NMFS-prepared information. The physician's statement must be
submitted to the Observer Program Office prior to certification of an
observer. The physical exam must have occurred during the 12 months
prior to the observer's or observer candidate's deployment.
(3) Certificates of insurance. Copies of ``certificates of
insurance,'' that names the Northwest Fisheries Science Center Observer
Program manager as the ``certificate holder,'' shall be submitted to
the Observer Program Office by February 1 of each year. 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 canceled.
(i) Maritime Liability to cover ``seamen's'' claims under the
Merchant Marine Act (Jones Act) and General Maritime Law ($1 million
minimum).
(ii) Coverage under the U.S. Longshore and Harbor Workers'
Compensation Act ($1 million minimum).
(iii) States Worker's Compensation as required.
(iv) Commercial General Liability.
(4) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (j)(1)(i) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(i) Vessels required to have observer coverage as specified at
paragraph (j)(1)(i) of this section; and
(ii) Observers.
(5) Change in observer provider management and contact information.
An observer provider must submit to the Observer Program office any
change of
[[Page 9612]]
management or contact information as required at Sec. 660.18(f).
(6) Biological samples. The observer provider must ensure that
biological samples are stored/handled properly prior to delivery/
transport to NMFS.
(7) Observer status report. Observer providers must provide NMFS
with an updated list of observer trip per Observer Program protocol.
Trip information includes observer provider name, observer last name,
observer first name, trip start date, trip end date, status of
observer, vessel name, and vessel identification number.
(8) Other information. An observer provider must submit to NMFS, if
requested, copies of any information developed and used by the observer
providers distributed to vessels, such as informational pamphlets,
payment notification, description of observer duties, etc.
(9) Other reports. Reports of the following must be submitted in
writing to the Observer Program Office by the observer provider via fax
or email address designated by the Observer Program Office within 24
hours after the observer provider becomes aware of the information:
(i) Any information regarding possible observer harassment;
(ii) Any information regarding any action prohibited under Sec.
660.12(e); Sec. 660.112(a)(4); or Sec. 600.725(o), (t) and (u) of
this chapter;
(iii) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(iv) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(v) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. Lost or damaged gear issued to
an observer by NMFS must be replaced by the observer provider. All
replacements must be provided to NMFS and be in accordance with
requirements and procedures identified in writing by the Observer
Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act under 5 U.S.C. 552a or as otherwise required by law remain
confidential and are not further released to anyone outside the employ
of the observer provider company to whom the observer was contracted
except with written permission of the observer.
(xiv) Limitations on conflict of interest. Observer providers must
meet limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services or catch monitor services, in a North
Pacific fishery managed pursuant to an FMP for the waters off the coast
of Alaska, Alaska state waters, or in a Pacific Coast fishery managed
by either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish,
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington, or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing activities that are
regulated by NMFS in the Pacific coast or North Pacific regions, or who
has interests that may be substantially affected by the performance or
nonperformance of the official duties of observer providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers. The policy shall address
the following behavior and conduct regarding:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs in
violation of applicable law; and
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to: Observers, observer
candidates and the Observer Program Office.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 of this
chapter or U.S. Coast Guard and other applicable rules, regulations,
statutes, or guidelines pertaining to safe operation of the vessel.
(5) Observer certification and responsibilities. (i) Applicability.
Observer certification authorizes an individual to fulfill duties as
specified in writing by the NMFS Observer Program Office while under
the employ of a NMFS-permitted observer provider and according to
certification endorsements as designated under paragraph (j)(6)(iii) of
this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certifications and endorsements.
(iii) Certification requirements. (A) Initial certification. NMFS
may certify individuals who, in addition to any other relevant
considerations:
(1) Are employed by an observer provider company permitted pursuant
to Sec. 660.16 at the time of the issuance of the certification;
(2) Have provided, through their observer provider:
(i) Information identified by NMFS at Sec. 679.52(b) of this
chapter regarding an observer candidate's health and physical fitness
for the job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.52(b) of this chapter and
(iii) Have successfully completed NMFS-approved training as
prescribed by the Observer Program. Successful completion of training
by an observer applicant consists of meeting all attendance and conduct
standards issued in writing at the start of training; meeting all
performance standards issued in writing at the start of training for
assignments, tests, and other evaluation tools; and completing all
other training requirements established by the Observer Program.
(iv) Have not been decertified under paragraph (j)(5)(ix) of this
section, or pursuant to Sec. 679.53(c) of this chapter.
(B) [Reserved]
(iv) Denial of a certification. The NMFS observer certification
official will issue a written determination denying observer
certification if the candidate
[[Page 9613]]
fails to successfully complete training, or does not meet the
qualifications for certification for any other relevant reason.
(v) Issuance of an observer certification. An observer
certification will be issued upon determination by the observer
certification official that the candidate has successfully met all
requirements for certification as specified at paragraph (j)(6)(iii) of
this section. The following endorsements must be obtained, in addition
to observer certification, in order for an observer to deploy.
(A) MS vessels. (1) North Pacific Groundfish Observer Program
certification training endorsement. A certification training
endorsement signifies the successful completion of the training course
required to obtain observer certification. This endorsement expires
when the observer has not been deployed and performed sampling duties
as required by the Observer Program Office for a period of time,
specified by the Observer Program, after his or her most recent
debriefing. The observer can renew the endorsement by successfully
completing certification training once more.
(2) North Pacific Groundfish Observer Program annual general
endorsements. Each observer must obtain an annual general endorsement
to their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a certification training
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) North Pacific Groundfish Observer Program deployment
endorsements. Each observer who has completed an initial deployment
after certification or annual briefing must receive a deployment
endorsement to their certification prior to any subsequent deployments
for the remainder of that year. An observer may obtain a deployment
endorsement by successfully completing all pre-cruise briefing
requirements. The type of briefing the observer must attend and
successfully complete will be specified in writing by the Observer
Program during the observer's most recent debriefing.
(4) At-Sea Hake Observer Program endorsements. A Pacific whiting
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(i) Have a valid North Pacific groundfish observer certification;
(ii) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment; successfully complete any
required briefings as prescribed by the Observer Program; and comply
with all of the other requirements of this section.
(B) Catcher vessels. The following endorsements as prescribed by
the Observer Program must be obtained in addition to observer
certification, in order for an observer to deploy.
(1) West Coast Groundfish Observer Program training endorsement. A
training endorsement signifies the successful completion of the
training course required to obtain observer certification. This
endorsement expires when the observer has not been deployed and
performed sampling duties as required by the Observer Program office
for a period of time, specified by the Observer Program, after his or
her most recent debriefing. The observer can renew the endorsement by
successfully completing training once more.
(2) West Coast Groundfish Observer Program annual general
endorsement. Each observer must obtain an annual general endorsement to
their certification prior to his or her first deployment within any
calendar year subsequent to a year in which a training certification
endorsement is obtained. To obtain an annual general endorsement, an
observer must successfully complete the annual briefing, as specified
by the Observer Program. All briefing attendance, performance, and
conduct standards required by the Observer Program must be met.
(3) West Coast Groundfish Observer Program deployment endorsement.
Each observer who has completed an initial deployment, as defined by
the Observer Program, after receiving a training endorsement or annual
general endorsement, must complete all applicable debriefing
requirements specified by the Observer Program. A deployment
endorsement is issued to observers who meet the performance standards
specified by the Observer Program. A deployment endorsement must be
obtained prior to any subsequent deployments for the remainder of that
calendar year. If a deployment endorsement is not issued, certification
training must be repeated.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) MS vessels. (1) Successfully perform their assigned duties as
described in the observer manual or other written instructions from the
Observer Program.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) 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 an authorized officer or NMFS.
(4) Successfully complete any required briefings as prescribed by
the At-Sea Hake Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(6) Successfully meet all debriefing expectations including meeting
Observer Program performance standards reporting for assigned
debriefings or interviews.
(7) Submit all data and information required by the Observer
Program within the program's stated guidelines.
(B) Catcher vessels. After initial issuance, an observer must keep
their certification valid by meeting all of the following requirements
specified below:
(1) Successfully perform their assigned duties as described in the
observer manual or other written instructions from the Observer
Program.
(2) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(3) 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 an authorized officer or NMFS.
(4) Successfully complete any required trainings or briefings as
prescribed by the Observer Program.
(5) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct
[[Page 9614]]
standards issued in writing at the start of training; meeting all
performance standards issued in writing at the start of training for
assignments, tests, and other evaluation tools; and completing all
other briefing requirements established by the Observer Program.
(6) Hold current basic cardiopulmonary resuscitation/first aid
certification as per American Red Cross Standards.
(7) Successfully meet all expectations in all debriefings including
reporting for assigned debriefings or interviews and meeting program
standards.
(8) Submit all data and information required by the observer
program within the program's stated guidelines.
(9) Meet the minimum annual deployment period of 3 months at least
once every 12 months.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services or catch monitor services, in a North
Pacific fishery managed pursuant to an FMP for the waters off the coast
of Alaska, Alaska state waters, or in a Pacific Coast fishery managed
by either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish;
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
(B) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who either conducts activities that are regulated by
NMFS in the Pacific coast or North Pacific regions or has interests
that may be substantially affected by the performance or nonperformance
of the observers' official duties.
(C) May not serve as observers on any vessel or at any shore-based
or floating stationary processor owned or operated by a person who
employed the observer in the last two years.
(D) May not solicit or accept employment as a crew member or an
employee of a vessel or shore-based or floating stationary processor
while employed by an observer provider.
(E) Provisions for remuneration of observers under this section do
not constitute a conflict of interest.
(viii) Standards of behavior. Observers must:
(A) Perform their assigned duties as described in the observer
manual or other written instructions from the Observer Program Office.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(D) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification. (A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review observer
certifications and issue IADs of observer certification suspension and/
or decertification.
(B) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has not met applicable
standards, including any of the following:
(i) Failed to satisfactorily perform duties of observers as
specified in writing by the NMFS Observer Program; or
(ii) Failed to abide by the standards of conduct for observers,
including conflicts of interest;
(2) Upon conviction of a crime or upon entry of a civil judgment
for:
(i) Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the NMFS Observer Program;
(ii) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property;
(iii) Commission of any other offense indicating a lack of
integrity or honesty that seriously and directly affects the fitness of
observers.
(C) Issuance of an IAD. Upon determination that suspension or
decertification is warranted, the suspension/decertification official
will issue a written IAD to the observer via certified mail at the
observer's most current address provided to NMFS. The IAD will identify
whether a certification is suspended or revoked and will identify the
specific reasons for the action taken. Decertification is effective 30
calendar days after the date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes his or her observer certification may appeal the
determination within 30 calendar days after the date on the IAD to the
Office of Administrative Appeals pursuant to Sec. 660.19.
* * * * *
0
12. In Sec. 660.160,
0
a. Revise paragraphs (b)(1)(ii) introductory text, (b)(1)(ii)(C),
(g)(1), (g)(2)(ii)(B), (g)(2)(iii), (g)(2)(ix) introductory text, and
(g)(3);
0
b. Add paragraph (g)(2)(xi);
0
c. Remove paragraph (g)(4);
0
d. Redesignate paragraphs (g)(5) and (g)(6) as (g)(4) and (g)(5);
0
e. Revise newly redesignated paragraphs (g)(4)(ii), (g)(4)(iii)(A) and
(E), (g)(4)(iv) and (v), (g)(4)(vii), (g)(4)(ix), (g)(4)(xi) through
(xvi), (g)(5)(i) and (ii), (g)(5)(iii)(A)(2), (g)(5)(v)(D), (g)(5)(vi),
(g)(5)(vii)(A), and (g)(5)(viii) and (ix) to read as follows:
Sec. 660.160 Catcher/processor (C/P) Coop Program.
* * * * *
(b) * * *
(1) * * *
(ii) C/P vessel responsibilities. The owner and operator of a C/P
vessel must:
* * * * *
(C) Catch weighing requirements. The owner and operator of a C/P
vessel must ensure that all catch is weighed in its round form on a
NMFS-approved scale that meets the requirements described in Sec.
660.15(b).
* * * * *
(g) * * * (1) Observer coverage requirements. (i) Coverage. The
following observer coverage pertains to certified observers obtained
from an observer provider permitted by NMFS. Any vessel registered to a
C/P-endorsed limited entry trawl permit that is 125 ft (38.1 m) LOA or
longer must carry two certified observers, and any vessel registered to
a C/P-endorsed limited entry trawl permit that is shorter than 125 ft
(38.1 m) LOA must carry one certified observer, each day that the
vessel is used to take, retain, receive, land, process, or transport
groundfish.
(ii) Observer workload. The time required for the observer to
complete
[[Page 9615]]
sampling duties must not exceed 12 consecutive hours in each 24-hour
period.
(iii) Refusal to board. Any boarding refusal on the part of the
observer or vessel must be reported to the Observer Program and OLE by
the observer provider. The observer must be available for an interview
with the Observer Program or OLE if necessary.
(2) * * *
(ii) * * *
(B) Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311. Maintain safe conditions on the vessel for the protection of
observer(s) including adherence to all USCG and other applicable rules,
regulations, or statutes pertaining to safe operation of the vessel,
and provisions at Sec. Sec. 600.725 and 600.746 of this chapter.
(iii) Computer hardware and software. C/P vessels must:
(A) Provide hardware and software pursuant to regulations at Sec.
679.51(e)(iii)(B) of this chapter.
(B) Provide the observer(s) access to a computer required under
paragraph (g)(2)(iii) of this section that is connected to a
communication device that provides a point-to-point connection to the
NMFS host computer.
(C) Ensure that the C/P vessel has installed the most recent
release of NMFS data entry software, or other approved software prior
to the vessel receiving, catching or processing IFQ species.
(D) Ensure that the communication equipment required in paragraph
(g)(2)(iii) of this section and used by observers to enter and transmit
data, is fully functional and operational. ``Functional'' means that
all the tasks and components of the NMFS supplied, or other approved,
software described at paragraph (g)(2)(iii) of this section and the
data transmissions to NMFS can be executed effectively aboard the
vessel by the communications equipment.
* * * * *
(ix) Sampling station and operational requirements for C/P vessels.
This paragraph (g)(2)(ix) contains the requirements for observer
sampling stations. To allow the observer to carry out the required
duties, the vessel owner must provide an observer sampling station that
meets the following requirements:
* * * * *
(xi) Housing on vessel in port. During all periods an observer is
housed on a vessel, the vessel operator must ensure that at least one
crew member is aboard.
* * * * *
(3) Procurement of observer services. Owners of vessels required to
carry observers under paragraph (g)(1) of this section must arrange for
observer services from an observer provider permitted by NMFS, except
that:
(i) Vessels are required to procure observer services directly from
the Observer Program when NMFS has determined and given notification
that the vessel must carry NMFS staff or an individual authorized by
NMFS in lieu of an observer provided by an observer provider.
(ii) Vessels are required to procure observer services directly
from the Observer Program and an observer provider when NMFS has
determined and given notification that the vessel must carry NMFS staff
and/or individuals authorized by NMFS, in addition to an observer
provided by an observer provider.
* * * * *
(4) * * *
(ii) Hiring an observer candidate. (A) The observer provider must
provide the candidate a copy of NMFS-provided pamphlets, information
and other literature describing observer duties (i.e. the At-Sea Hake
Observer Program's Observer Manual) prior to hiring an observer
candidate. Observer job information is available from the Observer
Program Office's Web site at http://www.nwfsc.noaa.gov/research/divisions/fram/observer/index.cfm.
(B) The observer provider must have a written contract or a written
contract addendum that is signed by the observer and observer provider
prior to the observer's deployment with the following clauses:
(1) That the observer will return all phone calls, emails, text
messages, or other forms of communication within the time specified by
the Observer Program;
(2) That the observer inform the observer provider prior to the
time of embarkation if he or she is experiencing any new mental illness
or physical ailments or injury since submission of the physician's
statement as required as a qualified observer candidate that would
prevent him or her from performing their assigned duties.
(iii) * * *
(A) Submit to NMFS all data, logbooks and reports as required by
the observer manual;
* * * * *
(E) Immediately report to the Observer Program Office and the OLE
any refusal to board an assigned vessel.
(iv) Observers provided to vessel. Observers provided to C/P
vessels:
(A) Must have a valid North Pacific groundfish observer
certification with required endorsements and an At-Sea Hake Observer
Program endorsement;
(B) Must not have informed the observer provider prior to the time
of embarkation that he or she is experiencing a mental illness or a
physical ailment or injury developed since submission of the
physician's statement that would prevent him or her from performing his
or her assigned duties; and
(C) Must have successfully completed all NMFS required training and
briefing before deployment.
(v) Respond to industry requests for observers. An observer
provider must provide an observer for deployment as requested pursuant
to the contractual relationship with the vessel to fulfill vessel
requirements for observer coverage specified under paragraph (g)(1) of
this section. An alternate observer must be supplied in each case where
injury or illness prevents the observer from performing his or her
duties or where the observer resigns prior to completion of his or her
duties. If the observer provider is unable to respond to an industry
request for observer coverage from a vessel for whom the observer
provider is in a contractual relationship due to lack of available
observers by the estimated embarking time of the vessel, the observer
provider must report it to the Observer Program at least 4 hours prior
to the vessel's estimated embarking time.
* * * * *
(vii) Provide observer deployment logistics. An observer provider
must provide to each of its observers under contract:
(A) All necessary transportation, including arrangements and
logistics, to the initial location of deployment, to all subsequent
vessel assignments during that deployment, and to and from the location
designated for an observer to be interviewed by the Observer Program;
and
(B) Lodging, per diem, and any other services necessary to
observers assigned to fishing vessels.
(1) An observer under contract may be housed on a vessel to which
he or she is assigned:
(i) Prior to their vessel's initial departure from port;
(ii) For a period not to exceed 24 hours following the completion
of an offload when the observer has duties and is scheduled to
disembark; or
(iii) For a period not to exceed 24 hours following the vessel's
arrival in
[[Page 9616]]
port when the observer is scheduled to disembark.
(2) [Reserved]
(C) An observer under contract who is between vessel assignments
must be provided with shoreside accommodations in accordance with the
contract between the observer and the observer provider. If the
observer provider is providing accommodations, it must be at a licensed
hotel, motel, bed and breakfast, or other shoreside accommodations for
the duration of each period between vessel or shoreside assignments.
Such accommodations must include an assigned bed for each observer and
no other person may be assigned that bed for the duration of that
observer's stay. Additionally, no more than four beds may be in any
room housing observers at accommodations meeting the requirements of
this section.
* * * * *
(ix) Verify vessel's Commercial Fishing Vessel Safety Decal. An
observer provider must ensure that the observer completes an observer
vessel safety checklist, and verify that a vessel has a valid USCG
Commercial Fishing Vessel Safety decal as required under paragraph
(h)(2)(ii)(B) of this section prior to the observer embarking on the
first trip and before an observer may get underway aboard the vessel.
The provider must submit all vessel safety checklists to the Observer
Program, as specified by Observer Program policy. One of the following
acceptable means of verification must be used to verify the decal
validity:
(A) The observer provider or employee of the observer provider,
including the observer, visually inspects the decal aboard the vessel
and confirms that the decal is valid according to the decal date of
issuance; or
(B) The observer provider receives a hard copy of the USCG
documentation of the decal issuance from the vessel owner or operator.
* * * * *
(xi) Maintain communications with the Observer Program Office. An
observer provider must provide all of the following information by
electronic transmission (email), fax, or other method specified by
NMFS.
(A) Observer training and briefing. Observer training and briefing
registration materials must be submitted to the Observer Program Office
at least 5 business days prior to the beginning of a scheduled observer
at-sea hake training or briefing session. Registration materials
consist of the following: The date of requested training or briefing
with a list of observers including each observer's full name (i.e.,
first, middle and last names).
(B) Observer debriefing registration. The observer provider must
contact the Observer Program within 5 business days after the
completion of an observer's deployment to schedule a date, time and
location for debriefing. Observer debriefing registration information
must be provided at the time of debriefing scheduling and must include
the observer's name, cruise number, vessel name(s) and code(s), and
requested debriefing date.
(C) Observer provider contracts. If requested, observer providers
must submit to the Observer Program Office a completed and unaltered
copy of each type of signed and valid contract (including all
attachments, appendices, addendums, and exhibits incorporated into the
contract) between the observer provider and those entities requiring
observer services under paragraph (g)(1) of this section. Observer
providers must also submit to the Observer Program Office upon request,
a completed and unaltered copy of the current or most recent signed and
valid contract (including all attachments, appendices, addendums, and
exhibits incorporated into the contract and any agreements or policies
with regard to observer compensation or salary levels) between the
observer provider and the particular entity identified by the Observer
Program or with specific observers. The copies must be submitted to the
Observer Program Office via fax or mail within 5 business days of the
request. Signed and valid contracts include the contracts an observer
provider has with:
(1) Vessels required to have observer coverage as specified at
paragraph (g)(1) of this section; and
(2) Observers.
(D) Change in observer provider management and contact information.
Observer providers must submit notification of any other change to
provider contact information, including but not limited to, changes in
contact name, phone number, email address, and address.
(E) Other reports. Reports of the following must be submitted in
writing to the Observer Program Office by the observer provider via fax
or email address designated by the Observer Program Office within 24
hours after the observer provider becomes aware of the information:
(1) Any information regarding possible observer harassment;
(2) Any information regarding any action prohibited under
Sec. Sec. 660.12(e), 660.112 or 600.725(o), (t) and (u) of this
chapter;
(3) Any concerns about vessel safety or marine casualty under 46
CFR 4.05-1(a)(1) through (7);
(4) Any observer illness or injury that prevents the observer from
completing any of his or her duties described in the observer manual;
and
(5) Any information, allegations or reports regarding observer
conflict of interest or breach of the standards of behavior described
in observer provider policy.
(xii) Replace lost or damaged gear. Lost or damaged gear issued to
an observer by NMFS must be replaced by the observer provider. All
replacements must be provided to NMFS and be in accordance with
requirements and procedures identified in writing by the Observer
Program Office.
(xiii) Maintain confidentiality of information. An observer
provider must ensure that all records on individual observer
performance received from NMFS under the routine use provision of the
Privacy Act (5 U.S.C. 552a) or other applicable law remain confidential
and are not further released to anyone outside the employ of the
observer provider company to whom the observer was contracted except
with written permission of the observer.
(xiv) Limitations on conflict of interest. An observer provider
must meet limitations on conflict of interest. Observer providers:
(A) Must not have a direct financial interest, other than the
provision of observer services or catch monitor services, in a North
Pacific fishery managed pursuant to an FMP for the waters off the coast
of Alaska, Alaska state waters, or in a Pacific Coast fishery managed
by either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel or shoreside processor facility involved in the catching,
taking, harvesting or processing of fish;
(2) Any business involved with selling supplies or services to any
vessel or shoreside processors participating in a fishery managed
pursuant to an FMP in the waters off the coasts of Alaska, California,
Oregon, and Washington; or
(3) Any business involved with purchasing raw or processed products
from any vessel or shoreside processor participating in a fishery
managed pursuant to an FMP in the waters off the coasts of Alaska,
California, Oregon, and Washington.
(B) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed.
[[Page 9617]]
(C) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value except for compensation for providing observer services from
anyone who conducts fishing or fish processing 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 providers.
(xv) Observer conduct and behavior. An observer provider must
develop and maintain a policy addressing observer conduct and behavior
for their employees that serve as observers. The policy shall address
the following behavior and conduct:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs in
violation of applicable law; and
(C) Sexual contact with personnel of the vessel or processing
facility to which the observer is assigned, or with any vessel or
processing plant personnel who may be substantially affected by the
performance or non-performance of the observer's official duties.
(D) An observer provider shall provide a copy of its conduct and
behavior policy by February 1 of each year, to observers, observer
candidates, and the Observer Program Office.
(xvi) Refusal to deploy an observer. Observer providers may refuse
to deploy an observer on a requesting vessel if the observer provider
has determined that the requesting vessel is inadequate or unsafe
pursuant to those regulations described at Sec. 600.746 of this
chapter or U.S. Coast Guard and other applicable rules, regulations,
statutes, or guidelines pertaining to safe operation of the vessel.
(5) * * * (i) Applicability. Observer certification authorizes an
individual to fulfill duties as specified in writing by the Observer
Program Office while under the employ of an observer provider and
according to certification endorsements as designated under paragraph
(g)(5)(iii) of this section.
(ii) Observer certification official. The Regional Administrator
will designate a NMFS observer certification official who will make
decisions for the Observer Program Office on whether to issue or deny
observer certifications and endorsements.
(iii) * * *
(A) * * *
(2) Have provided, through their observer provider:
(i) Information set forth at Sec. 679.52(b) of this chapter
regarding an observer candidate's health and physical fitness for the
job;
(ii) Meet all observer education and health standards as specified
in Sec. 679.52(b) of this chapter; and
(iii) Have successfully completed NMFS-approved training as
prescribed by the Observer Program. Successful completion of training
by an observer applicant consists of meeting all attendance and conduct
standards issued in writing at the start of training; meeting all
performance standards issued in writing at the start of training for
assignments, tests, and other evaluation tools; and completing all
other training requirements established by the Observer Program.
(iv) Have not been decertified under paragraph (g)(5)(ix) of this
section, or pursuant to Sec. 679.53(c) of this chapter.
* * * * *
(v) * * *
(D) At-Sea Hake Observer Program endorsements. A Pacific whiting
fishery endorsement is required for purposes of performing observer
duties aboard vessels that process groundfish at sea in the Pacific
whiting fishery. A Pacific whiting fishery endorsement to an observer's
certification may be obtained by meeting the following requirements:
(1) Have a valid North Pacific groundfish observer certification;
(2) Receive an evaluation by NMFS for his or her most recent
deployment that indicated that the observer's performance met Observer
Program expectations for that deployment;
(3) Successfully complete any required briefings as prescribed by
the Observer Program; and
(4) Comply with all of the other requirements of this section.
(vi) Maintaining the validity of an observer certification. After
initial issuance, an observer must keep their certification valid by
meeting all of the following requirements specified below:
(A) Successfully perform their assigned duties as described in the
observer manual or other written instructions from the Observer
Program.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel or in the processing facility to any person except the owner or
operator of the observed vessel or an authorized officer or NMFS.
(D) Successfully complete any required briefings as prescribed by
the At-Sea Hake Observer Program.
(E) Successful completion of briefing by an observer applicant
consists of meeting all attendance and conduct standards issued in
writing at the start of training; meeting all performance standards
issued in writing at the start of training for assignments, tests, and
other evaluation tools; and completing all other briefing requirements
established by the Observer Program.
(F) Successfully meet all debriefing expectations including meeting
Observer Program performance standards reporting for assigned
debriefings or interviews.
(G) Submit all data and information required by the Observer
Program within the program's stated guidelines.
(vii) Limitations on conflict of interest. Observers:
(A) Must not have a direct financial interest, other than the
provision of observer services or catch monitor services, in a North
Pacific fishery managed pursuant to an FMP for the waters off the coast
of Alaska, Alaska state waters, or in a Pacific Coast fishery managed
by either the state or Federal Governments in waters off Washington,
Oregon, or California, including but not limited to:
(1) Any ownership, mortgage holder, or other secured interest in a
vessel, shore-based or floating stationary processor facility involved
in the catching, taking, harvesting or processing of fish;
(2) Any business involved with selling supplies or services to any
vessel, shore-based or floating stationary processing facility; or
(3) Any business involved with purchasing raw or processed products
from any vessel, shore-based or floating stationary processing
facilities.
* * * * *
(viii) Standards of behavior. Observers must:
(A) Perform their assigned duties as described in the observer
manual or other written instructions from the Observer Program Office.
(B) Accurately record their sampling data, write complete reports,
and report accurately any observations of suspected violations of
regulations relevant to conservation of marine resources or their
environment.
(C) Not disclose collected data and observations made on board the
vessel to any person except the owner or operator of the observed
vessel, an authorized officer, or NMFS.
(ix) Suspension and decertification. (A) Suspension and
decertification review official. The Regional Administrator (or a
designee) will designate an observer suspension and decertification
review official(s), who will have the authority to review
[[Page 9618]]
observer certifications and issue IADs of observer certification
suspension and/or decertification.
(B) Causes for suspension or decertification. The suspension/
decertification official may initiate suspension or decertification
proceedings against an observer:
(1) When it is alleged that the observer has committed any acts or
omissions of any of the following: Failed to satisfactorily perform the
duties of observers as specified in writing by the Observer Program; or
failed to abide by the standards of conduct for observers (including
conflicts of interest);
(2) Upon conviction of a crime or upon entry of a civil judgment
for: Commission of fraud or other violation in connection with
obtaining or attempting to obtain certification, or in performing the
duties as specified in writing by the Observer Program; commission of
embezzlement, theft, forgery, bribery, falsification or destruction of
records, making false statements, or receiving stolen property; or
commission of any other offense indicating a lack of integrity or
honesty that seriously and directly affects the fitness of observers.
(C) Issuance of an IAD. Upon determination that suspension or
decertification is warranted, the suspension/decertification official
will issue a written IAD to the observer via certified mail at the
observer's most current address provided to NMFS. The IAD will identify
whether a certification is suspended or revoked and will identify the
specific reasons for the action taken. Decertification is effective 30
calendar days after the date on the IAD, unless there is an appeal.
(D) Appeals. A certified observer who receives an IAD that suspends
or revokes the observer certification may appeal the determination
within 30 calendar days after the date on the IAD to the Office of
Administrative Appeals pursuant to Sec. 660.19.
* * * * *
0
13. In Sec. 660.216, revise paragraphs (a) through (d), (e)(2),
(e)(3)(i), and (f) to read as follows:
Sec. 660.216 Fixed gear fishery--observer requirements.
(a) Observer coverage requirements. (1) Harvesting vessels. When
NMFS notifies the owner, operator, permit holder, or the manager of a
harvesting vessel of any requirement to carry an observer, the
harvesting vessel may not be used to fish for groundfish without
carrying an observer.
(2) Processing vessels. Unless specified otherwise by the Observer
Program, any vessel 125 ft (38.1 m) LOA or longer that is engaged in
at-sea processing must carry two certified observers procured from a
permitted observer provider, and any vessel shorter than 125 ft (38.1
m) LOA that is engaged in at-sea processing must carry one certified
observer procured from an permitted observer provider, each day that
the vessel is used to take, retain, receive, land, process, or
transport groundfish. Owners of vessels required to carry observers
under this paragraph (a)(2) must arrange for observer services from a
permitted observer provider except when the Observer Program has
determined and given notification that the vessel must carry NMFS staff
or an individual authorized by NMFS in addition to or in lieu of an
observer provided by a permitted observer provider.
(b) Notice of departure basic rule. At least 24 hours (but not more
than 36 hours) before departing on a fishing trip, a harvesting vessel
that has been notified by NMFS that it is required to carry an
observer, or that is operating in an active sampling unit, must notify
NMFS (or its designated agent) of the vessel's intended time of
departure.
(1) Optional notice--weather delays. A harvesting vessel that
anticipates a delayed departure due to weather or sea conditions may
advise NMFS of the anticipated delay when providing the basic notice
described in paragraph (b) of this section. If departure is delayed
beyond 36 hours from the time the original notice is given, the vessel
must provide an additional notice of departure not less than 4 hours
prior to departure, in order to enable NMFS to place an observer.
(2) Optional notice--back-to-back fishing trips. A harvesting
vessel that intends to make back-to-back fishing trips (i.e., trips
with less than 24 hours between offloading from one trip and beginning
another), may provide the basic notice described in paragraph (b) of
this section for both trips, prior to making the first trip. A vessel
that has given such notice is not required to give additional notice of
the second trip.
(c) Cease fishing report. Within 24 hours of ceasing the taking and
retaining of groundfish, vessel owners, operators, or managers must
notify NMFS or its designated agent that fishing has ceased. This
requirement applies to any harvesting and processing vessel that is
required to carry an observer, or that is operating in a segment of the
fleet that NMFS has identified as an active sampling unit.
(d) Waiver. The West Coast Regional Administrator (or designee) may
provide written notification to the vessel owner stating that a
determination has been made to temporarily waive coverage requirements
because of circumstances that are deemed to be beyond the vessel's
control.
(e) * * *
(2) Safe conditions. Maintain safe conditions on the vessel for the
protection of observer(s) including adherence to all USCG and other
applicable rules, regulations, or statutes pertaining to safe operation
of the vessel, and provisions at Sec. Sec. 600.725 and 600.746 of this
chapter. Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(3) Observer communications. Facilitate observer communications by:
(i) Observer use of equipment. Allowing observer(s) 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 observer(s), the observer provider or NMFS.
* * * * *
(f) Observer sampling station. This paragraph (f) contains the
requirements for observer sampling stations. The vessel owner must
provide an observer sampling station that complies with this section so
that the observer can carry out required duties.
(1) Accessibility. The observer sampling station must be available
to the observer at all times.
(2) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
Unobstructed passage must be provided between the observer sampling
station and the location where the observer collects sample catch.
0
14. In Sec. 660.316, revise paragraphs (a) through (d), (e)(2),
(e)(3)(i), and (f) to read as follows:
Sec. 660.316 Open access fishery--observer requirements.
(a) Observer coverage requirements. (1) Harvesting vessels. When
NMFS notifies the owner, operator, permit holder, or the manager of a
harvesting vessel of any requirement to carry an observer, the
harvesting vessel may not be used to fish for groundfish without
carrying an observer.
(2) Processing vessels. Unless specified otherwise by the Observer
Program, any vessel 125 ft (38.1 m) LOA
[[Page 9619]]
or longer that is engaged in at-sea processing must carry two certified
observers procured from a permitted observer provider, and any vessel
shorter than 125 ft (38.1 m) LOA that is engaged in at-sea processing
must carry one certified observer procured from a permitted observer
provider, each day that the vessel is used to take, retain, receive,
land, process, or transport groundfish. Owners of vessels required to
carry observers under this paragraph (a)(2) must arrange for observer
services from a permitted observer provider except when the Observer
Program has determined and given notification that the vessel must
carry NMFS staff or an individual authorized by NMFS in addition to or
in lieu of an observer provided by a permitted observer provider.
(b) Notice of departure--basic rule. At least 24 hours (but not
more than 36 hours) before departing on a fishing trip, a harvesting
vessel that has been notified by NMFS that it is required to carry an
observer, or that is operating in an active sampling unit, must notify
NMFS (or its designated agent) of the vessel's intended time of
departure. Notice will be given in a form to be specified by NMFS.
(1) Optional notice--weather delays. A harvesting vessel that
anticipates a delayed departure due to weather or sea conditions may
advise NMFS of the anticipated delay when providing the basic notice
described in paragraph (b) of this section. If departure is delayed
beyond 36 hours from the time the original notice is given, the vessel
must provide an additional notice of departure not less than 4 hours
prior to departure, in order to enable NMFS to place an observer.
(2) Optional notice--back-to-back fishing trips. A harvesting
vessel that intends to make back-to-back fishing trips (i.e., trips
with less than 24 hours between offloading from one trip and beginning
another), may provide the basic notice described in paragraph (b) of
this section for both trips, prior to making the first trip. A vessel
that has given such notice is not required to give additional notice of
the second trip.
(c) Cease fishing report. Within 24 hours of ceasing the taking and
retaining of groundfish, vessel owners, operators, or managers must
notify NMFS or its designated agent that fishing has ceased. This
requirement applies to any harvesting or processing vessel that is
required to carry an observer, or that is operating in a segment of the
fleet that NMFS has identified as an active sampling unit.
(d) Waiver. The West Coast Regional Administrator (or designate)
may provide written notification to the vessel owner stating that a
determination has been made to temporarily waive coverage requirements
because of circumstances that are deemed to be beyond the vessel's
control.
(e) * * * * *
(2) Safe conditions. Maintain safe conditions on the vessel for the
protection of observer(s) including adherence to all USCG and other
applicable rules, regulations, or statutes pertaining to safe operation
of the vessel, and provisions at Sec. Sec. 600.725 and 600.746 of this
chapter. Have on board a valid Commercial Fishing Vessel Safety Decal
that certifies compliance with regulations found in 33 CFR chapter I
and 46 CFR chapter I, a certificate of compliance issued pursuant to 46
CFR 28.710 or a valid certificate of inspection pursuant to 46 U.S.C.
3311.
(3) * * *
(i) Observer use of equipment. Allowing observer(s) 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 observer(s), observer provider or NMFS.
* * * * *
(f) Observer sampling station. This paragraph (f) contains the
requirements for observer sampling stations. The vessel owner must
provide an observer sampling station that complies with this section so
that the observer can carry out required duties.
(1) Accessibility. The observer sampling station must be available
to the observer at all times.
(2) Location. The observer sampling station must be located within
4 m of the location from which the observer samples unsorted catch.
Unobstructed passage must be provided between the observer sampling
station and the location where the observer collects sample catch.
[FR Doc. 2014-02576 Filed 2-18-14; 8:45 am]
BILLING CODE 3510-22-P