65 FR 179 pgs. 55495-55498 - Fisheries off West Coast States and in the WesternPacific; Pacific Coast Groundfish Fishery; Groundfish ObserverProgram
Type: PRORULEVolume: 65Number: 179Pages: 55495 - 55498
Docket number: [Docket 000301054-0227-02; I.D. 053000D]
FR document: [FR Doc. 00-23629 Filed 9-13-00; 8:45am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket 000301054-0227-02; I.D. 053000D]
RIN 0648-AN27
Fisheries off West Coast States and in the WesternPacific; Pacific Coast Groundfish Fishery; Groundfish ObserverProgram
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic andAtmospheric Administration (NOAA), Commerce.
ACTION:
Proposed rule: request for comments.
SUMMARY:
NMFS proposes to amend the regulations implementingthe Pacific Coast Groundfish Fishery Management Plan (FMP)to provide for an at-sea observation program on alllimited entry and open access catcher vessels. Thisproposed rule would require vessels in the groundfishfishery to carry observers when notified by NMFS or itsdesignated agent; establish notification requirements forvessels that may be required to carry observers, andestablish responsibilities and define prohibited actionsfor vessels that are required to carry observers. Theat-sea observation program is intended to improveestimates of total catch and fishing mortality.
DATES:
Comments on this proposed rule must be received byOctober 16, 2000.
ADDRESSES:
Send comments to William Stelle, Jr., Administrator,Northwest Region, NMFS, 7600 Sand Point Way N.E., BINC15700, Bldg. 1, Seattle, WA 98115-0070. Comments alsomay be sent via facsimile (fax) to 206-526-6736.Comments will not be accepted if submitted via e-mail orInternet. Copies of the Environmental Assessment/RegulatoryImpact Review/Initial Regulatory Flexibility Analysis (IRFA)may be obtained from the Pacific Fishery ManagementCouncil (Council) by writing to the Council at 2130 SWFifth Avenue, Suite 224, Portland OR 97201, or bycontacting Don McIsaac at 503-326-6352, or may beobtained from William L. Robinson, Northwest Region, NMFS,7600 Sand Point Way N.E., BIN C15700, Bldg. 1, Seattle,WA 98115-0070. Send comments regarding the reportingburden estimate or any other aspect of thecollection-of-information requirements in this proposed ruleto the NMFS address and to the Office of Informationand Regulatory Affairs, Office of Management and Budget(OMB), Washington, D.C. 00503 (Attn: NOAA Desk Officer).Send comments regarding any ambiguity or unnecessarycomplexity arising from the language used in this ruleto William Stelle, Jr.
FOR FURTHER INFORMATION CONTACT:
William L. Robinson, Northwest Region, NMFS,206-526-6140; fax: 206-526-6736 and e-mail:bill.robinson@noaa.gov or Svein Fougner, Southwest Region,NMFS, 562-980-4000; fax: 562-980-4047 and e-mail:svein.fougner@noaa.gov.
Electonic Access: This proposed rule alsois accessible via the Internet at the Office of theFederal Register's website athttp://www.access.gpo.gov/su-docs/aces/aces140.html.
SUPPLEMENTARY INFORMATION:
The U.S. groundfish fisheries off the Washington,Oregon, and California coasts are managed pursuant to theMagnuson Stevens Fishery Conservation and Management Act(Magnuson-Stevens Act)(16 U.S.C. 1801-1883) and the PacificCoast Groundfish FMP. Regulations implementing the FMPappear at 50 CFR part 660, subpart G. TheMagnuson-Stevens Act at 16 U.S.C. 1853(b)(8) provides thatan FMP may require that one or more observers (50 CFR600.10) be carried onboard a vessel of the United Statesengaged in fishing for species that are subject to theFMP, for the purpose of collecting data necessary forthe conservation and management of the fishery. ThePacific Coast Groundfish FMP provides that all fishingvessels operating in the groundfish fishery may berequired to accommodate on board observers for purposesof collecting scientific data. Under the Magnuson-StevensAct at 16 U.S.C. 1855(d), the Secretary of Commerce,acting through NMFS, has general responsibility to carryout any fishery management plan, and may promulgate suchregulations as may be necessary to discharge thisresponsibility.
With the exception of the mid-water trawl fishery forPacific whiting, most groundfish vessels sort their catchat sea and discard species that are in excess ofcumulative trip limits, unmarketable, in excess of annualallocations, or incidentally caught non-groundfish species.Landed or retained catch is monitored by individual statefish ticket programs in Washington, Oregon, andCalifornia. However, because a portion of the catch isdiscarded at sea, there is no opportunity for NMFS orthe states to monitor total catch (retained plusdiscarded catch) at onshore processing facilities. Thislack of information on at-sea discards has resulted inimprecise estimates of total catch and fishingmortality.
Discard information is needed to assess and accountfor total fishing mortality and to evaluate managementmeasures, including rebuilding plans for overfished stocks.Discard estimates based on limited studies conducted inthe mid-1980's, and information on species compositions inlandings, are available for some groundfish species. Forother species there is little or no discard information.During the past decade, there have been significantreductions in cumulative trip limits, and trip limitshave been applied to increasing numbers of species. Inlight of these changes in the regulatory regime, doubthas been raised about the old discard estimates, whichwere based on data collected in the 1980's. Accurateestimates of discards are essential to computing totalcatch, and thus are an important component of anyfishery conservation and management program. If thediscard estimates are too high, harvest allocations maybe set too low; if discard estimates are too low, thenharvest allocations may be set too high, and thelong-term health of the stock may be jeopardized.
The Pacific Coast Groundfish FMP was developed by theCouncil and approved by NMFS in 1982. Since the early1990's, the Council has regarded at-sea observers as aviable means to collect much-needed data. The Council'sGroundfish Management Team has continually stressed theneed for an on-board observer program to accuratelyassess total catch. Observers have been placed on avoluntary basis aboard offshore processing vessels(catcher/processors and motherships) in the Pacific whitingfishery since 1991. From 1995 to 1998, a small numberof groundfish trawl vessels participating in the OregonEnhanced Data Collection research project voluntarilycarried observers to monitor trip limit-induced discardsand the bycatch of prohibited species. At its April1999 meeting, the Council proposed development of anon-board observer program for all limited entry and openaccess vessels, with the goal of having a program readyfor implementation in 2000, if funding became available.At this same meeting, the Council agreed to consider thedevelopment of a regulatory program to support amandatory observer program in the recreational charterboat fleet. Such a program would be addressed in aseparate rulemaking. Regulations to support an observerprogram in the at-sea processing sector of the Pacificwhiting fishery also will be submitted separately.
Observers are a uniformly trained group of qualifiedtechnicians. They are stationed aboard vessels to gatherconservation and management data that are too burdensomefor vessel personnel to collect, and which wouldotherwise not be available for managing the fisheries orassessing interactions with non-groundfish species. Thepurposes of this rulemaking are to establish theobligations of vessels that will be required to carryobservers; to safeguard the observers' well-being;and to provide for sampling conditions necessary for anobserver to follow scientific sampling protocols andthereby maintain the integrity of observer datacollections. Nationwide regulations addressing vessels withconditions that are unsafe or inadequate for purposes ofcarrying an observer are found at 50 CFR 600.746.Nationwide regulations applicable to observers are alsofound under "General Prohibitions" at 50 CFR600.725 (o), (r), (s), (t), and (u).
Biological Impacts
The regulations proposed would have no directbiological or physical impacts on the environment.However, they would provide, in the long term, apositive biological effect. Data collected by observerswould improve the quantity and quality of data availablefor stock assessments. The collected data also wouldprovide fisheries managers with information needed tominimize the risks of overfishing groundfish andnon-groundfish species, and to develop effective rebuildingplans for depleted stocks.
Socio-economic Impacts
If the observer program receives $2 million of fundingannually, 15-20 observers could be deployed each year.With this level of funding, NMFS's would provide observertraining and pay the direct costs of deploying observersincluding salaries, payroll taxes, employment insurance,medical insurance, pension, and travel costs. Observerswould be employed directly by NMFS or through a NMFSprocurement contract. The observers' employer wouldbe required to provide protection and indemnity insuranceto cover bodily injury or property damage claims thatmay result from actions of the observer.
Each vessel within the sector(s) of the groundfishfleet designated for coverage would be required to carryan observer when notified by NMFS or its designatedagent, and to keep NMFS or its designated agent informedof its fishing schedule, including anticipated departuredates and times. Additional time would be required inport for selected vessels to arrange for the requiredobserver coverage. Vessels that are selected to carry anobserver would be responsible for providing livingquarters and food equivalent to that which is providedto the crew. Some of the smallest groundfish vesselsmay find that crew members are displaced because limitedbunk space must be allocated to the observer.
Observers may be expected to perform multiple dutiesincluding estimating total catch, sampling for catch anddiscard species composition, collecting biological data andspecimens, and collecting data on interactions withnon-groundfish species, the operation and characteristicsof the vessel, and fishing effort. To allow theobserver to follow sampling protocols, vessels will needto provide adequate sampling facilities and unobstructedaccess to catch. This may result in minimal increasedhandling time if sorting of the catch needs to beslowed or centralized to allow an observer to collectsamples. Space requirements for analyzing and storingsamples may reduce the available work and storage spacefor vessel activities. It is likely that the smallestgroundfish vessels would be most affected by spacerequirements. However, without minimal sample space, dataquality cannot be assured. If it is determined that aclass of vessel is too small to accommodate an observer,alternative sampling, observation or monitoring methods mayneed to be considered by NMFS.
The safety, health, and well-being of observers whilestationed aboard fishing vessels is of the utmostimportance. Accordingly, observer health and safetyprovisions at 50 CFR 600.725 and 600.746 will apply.Should a vessel fail to meet the requirements at 50 CFR600.746, the vessel would not be permitted to fish untilNMFS determined that the safety requirements were met andthe required observer was aboard. The trip-limitmanagement regime, currently used in most Pacific Coastgroundfish fisheries, generally applies over one or2-month periods. Therefore, lost catch opportunity isunlikely if the vessel is delayed. However, inderby-style fisheries, such as the three-tiered sablefishfishery, lost catch opportunity may result if the vesselis delayed. Advance planning would allow vessels tocorrect minor problems without delaying the fishingtrip.
Classification
NMFS prepared an IRFA that describes the impact thisproposed rule, if adopted, would have on small entities.The IRFA is intended to aid the agency in consideringall reasonable regulatory alternatives that would minimizethe economic impact on affected small entities. A copyof this analysis is available from the NMFS or theCouncil (see ADDRESSES ).
Impacts of this proposed rulemaking on the individualvessel depend on the nature and size of the program andthe coverage approach that is chosen-all vessels inthe groundfish fleet or a small portion of the vessels.If 20 observers are deployed annually, the number ofvessels that could potentially carry an observer isestimated to range between 60 (3 percent of all smallentities) and 967 (46 percent of all small entities). Asmaller number of vessels could be affected if thecoverage strategy is for each observer to sample onlyone limited entry vessel over an entire cumulative triplimit period, then when the coverage strategy is forobservers to sample all open access and limited entryvessel trips at random, assuming a vessel carries anobserver for no more than one trip. The costs to theindividual vessel are expected to range between $157 and$3334, depending on the coverage strategy and the numberof days fished per year. An upper value of $11,044 pervessel is an extreme that would only occur if a vesselfished every day of the year and carried an observer atall times. It is most likely that the open access andlimited entry groundfish fleets would be divided intosectors based on criteria such as gear type, fishingperiod, geographical location, or fishing strategy. Eachsector may be required to have a different level ofobserver coverage. Sectors with the greatest annual catchof groundfish or those that most frequently interact withpriority species, for which there is a serious need forinformation, could be required to have a substantiallyhigher proportion of observer coverage than the othersectors.
The analysis assumes that only vessels that carry anobserver would bear the burden. Among the 2,116 vesselsin the open access and limited entry groundfish fisheriesthat could be selected to bear the cost to carry anobserver, there are substantial differences in terms ofthe annual ex-vessel value of their catch, and thereforein the burden imposed.
This proposed rule contains collection-of-informationrequirements subject to review and approval by the Officeof Management and Budget (OMB) under the Paperwork ReductionAct (PRA). These requirements has been submitted to OMBfor approval. Public reporting burden for thesecollections of information is estimated to average 5minutes to make a toll-free call to provide eithernotification of departure on a fishing trip ornotification of intent to cease participating in thefishery. This estimate includes the time for reviewinginstructions, searching existing data sources, gatheringand maintaining the data needed, and completing andreviewing the collection of information.
Public comment is sought regarding: whether thisproposed collections of information are necessary for theproper performance of the functions of the agency,including whether the information shall have practicalutility, the accuracy of the burden estimate, ways toenhance the quality, utility, and clarity of theinformation to be collected, and ways to minimize theburden of the collection of information, including throughthe use of automated collection techniques or other formsof information technology. Send comments on these or anyother aspects of the collection of information to NMFS(see ADDRESSES ) and to OMB (Attn: NOAA DeskOfficer).
Notwithstanding any other provision of the law, noperson is required to respond to, nor shall a person besubject to a penalty for failure to comply with, acollection of information subject to the requirements ofthe PRA, unless that collection of information displays acurrently valid OMB Control Number. NMFS issuedBiological Opinions (BOs) under the Endangered Species Acton August 10, 1990, November 26, 1991, August 28, 1992,September 27, 1993, May 14, 1996, and December 15, 1999pertaining to the impacts of the groundfish fishery onSacramento River winter chinook, Snake River fall chinook,Snake River spring/summer chinook, Central Valley springchinook, California coastal chinook, Puget Sound chinook,lower Columbia River chinook, upper Willamette Riverchinook, upper Columbia River spring chinook, Hood Canalsummer run chum, Columbia River chum, Central Californiacoastal coho, Oregon coastal coho, Snake River sockeye,Ozette Lake sockeye, southern California steelhead,south-central California steelhead, central California coaststeelhead, upper Columbia River steelhead, Snake RiverBasin steelhead, lower Columbia River steelhead, CaliforniaCentral Valley steelhead, upper Willamette River steelhead,middle Columbia River steelhead, Umpqua River cutthroattrout, and the southwest Washington/Columbia cutthroattrout. The biological opinions concluded thatimplementation of the FMP for the Pacific CoastGroundfish Fishery is not expected to jeopardize thecontinued existence of any endangered or threatenedspecies under the jurisdiction of NMFS, or result in thedestruction or adverse modification of critical habitat.If implemented, this proposed rule would be within thescope of these consultations. Because the impacts ofthis action fall within the scope of the impactsconsidered in these BOs, additional consultations on thesespecies are not required for this action.
This action implements a data collection program andis not expected to result in any adverse effects onmarine mammals. This proposed rule has beendetermined to be significant for purposes of ExecutiveOrder 12866. The President has directed Federal agenciesto use plain language in their communications with thepublic, including regulations. To comply with thisdirective, we seek public comment on any ambiguity orunnecessary complexity arising from the language used inthis rule. Send comments to William Stelle, Jr. (see ADDRESSES ).
List of Subjects in 50 CFR Part 660
Administrative practice and procedure, American Samoa,Fisheries, Fishing, Guam, Hawaiian Natives, Indians,Northern Mariana Islands, Reporting and recordkeepingrequirements.
Dated: September 7, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries,National Marine Fisheries Service.
For the reasons set out in the preamble, NMFSproposes to amend 50 CFR part 660 as follows:
PART 660-FISHERIES OFF WEST COAST STATES AND INTHE WESTERN PACIFIC
1. The authority citation for part 660 continuesto read as follows:
Authority:
16 U.S.C. 1801 et seq.
2. In § 660.302, add the definitions for"Active sampling unit," and "Vesselmanager," in alphabetical order, to read asfollows:
§ 660.302 Definition.
Active sampling unit means a portion ofthe groundfish fleet in which an observer coverage planis being applied.
Vessel manager means a person or group ofpersons whom the vessel owner has given authority tooversee all or a portion of groundfish fishing activitiesaboard the vessel.
3. In § 660.306, paragraph (y) is added toread as follows:
§ 660.306 Prohibitions.
(y) Groundfish observer program. (1)Forcibly assault, resist, oppose, impede, intimidate,harass, sexually harass, bribe, or interfere with anobserver.
(2) Interfere with or bias the sampling procedureemployed by an observer, including either mechanically orphysically sorting or discarding catch before sampling.
(3) Tamper with, destroy, or discard an observer'scollected samples, equipment, records, photographic film,papers, or personal effects without the express consentof the observer.
(4) Harass an observer by conduct that:
(i) Has sexual connotations,
(ii) Has the purpose or effect of interfering withthe observer's work performance, and/or
(iii) Otherwise creates an intimidating, hostile, oroffensive environment. In determining whether conductconstitutes harassment, the totality of the circumstances,including the nature of the conduct and the context inwhich it occurred, will be considered. The determinationof the legality of a particular action will be madefrom the facts on a case-by-case basis.
(5) Fish for, land, or process fish without observercoverage when a vessel is required to carry an observerunder § 660.360(c).
(6) Require, pressure, coerce, or threaten an observerto perform duties normally performed by crew members,including, but not limited to, cooking, washing dishes,standing watch, vessel maintenance, assisting with thesetting or retrieval of gear, or any duties associatedwith the processing of fish, from sorting the catch tothe storage of the finished product.
(7) Fail to provide departure or cease fishingreports specified at § 660.360(c)(2).
(8) Fail to meet the vessel responsibilities specifiedat § 660.360(d).
4. Section 660.360 is added to subpart G to readas follows:
§ 660.360 Groundfish observer program.
(a) General. The owner of a vesselsubject to this part must ensure that the vesseloperator and vessel manager comply with this section.The vessel owner, operator, and vessel manager arejointly and severally responsible for such compliance.
(b) Purpose. The purpose of theGroundfish Observer Program is to allow observers tocollect fisheries data deemed by the Northwest RegionalAdministrator, NMFS to be necessary and appropriate formanagement, compliance monitoring, and research in thegroundfish fisheries and for the conservation of livingmarine resources and their habitat.
(c) Observer coverage requirements- (1) At-sea processors. [Reserved]
(2) Catcher vessels. For the purposes ofthis section catcher vessels include all vessels usingopen access or limited entry gear that take and retain,possess or land groundfish at a processor(s) as definedat § 660.302. When NMFS notifies the vessel owner,operator, permit holder, or the vessel manager of anyrequirement to carry an observer, the vessel may nottake and retain, possess or land any groundfish withoutcarrying an observer.
(i) Departure report. Not less than 24hours before departing on a fishing trip, the owner,operator, or vessel manager of each vessel that isrequired to carry an observer, or that is operating ina segment of the fleet that NMFS has identified as anactive sampling unit, must provide NMFS or its designatedagent with notification as specified by NMFS.
(ii) Cease fishing report. Not more than24 hours after ceasing the taking and retaining ofgroundfish with limited entry or open access gear inorder to leave the fishery management area or to fishfor species not managed under the Pacific CoastGroundfish Fishery Management Plan, the owner, operator,or vessel manager of each vessel that is required tocarry an observer or that is operating in a segment ofthe fleet that NMFS has identified as an active samplingunit must provide NMFS or its designated agent withnotification as specified by NMFS.
(3) Vessels engaged in recreationalfishing. [Reserved]
(4) Waiver. The Northwest RegionalAdministrator may provide written notification to thevessel owner stating that a determination has been madeto temporarily waive coverage requirements because ofcircumstances that are deemed to be beyond the vessel'scontrol.
(d) Vessel responsibilities. An operatorof a vessel required to carry one or more observer(s)must:
(1) Accommodations and food. Provideaccommodations and food that are:
(i) At-sea processors. [Reserved]
(ii) Catcher vessels. equivalent to thoseprovided to the crew.
(2) Safe conditions. Maintain safeconditions on the vessel for the protection ofobserver(s) including adherence to all U.S. Coast Guardand other applicable rules, regulations, or statutespertaining to safe operation of the vessel, andprovisions at §§ 600.725 and 600.746.
(3) Observer communications. Facilitateobserver communications by:
(i) Observer use of equipment. Allowing observer(s) to use the vessel's communicationequipment and personnel, on request, for the entry,transmission, and receipt of work-related messages, at nocost to the observer(s) or the United States ordesignated agent.
(ii) Communication equipment requirements forat-sea processing vessels. [Reserved]
(4) Vessel position. Allow observer(s)access to, and the use of, the vessel's navigationequipment and personnel, on request, to determine thevessel's position.
(5) Access. Allow observer(s) free andunobstructed access to the vessel's bridge, trawl orworking decks, holding bins, processing areas, freezerspaces, weight scales, cargo holds, and any other spacethat may be used to hold, process, weigh, or store fishor fish products at any time.
(6) Prior notification. Notify observer(s)at least 15 minutes before fish are brought on board,or fish and fish products are transferred from thevessel, to allow sampling the catch or observing thetransfer, unless the observer specifically requests not tobe notified.
(7) Records. Allow observer(s) toinspect and copy any state or Federal logbook maintainedvoluntarily or as required by regulation.
(8) Assistance. Provide all otherreasonable assistance to enable observer(s) to carry outtheir duties, including, but not limited to:
(i) Measuring decks, codends, and holding bins.
(ii) Providing the observer(s) with a safe workarea.
(iii) Collecting bycatch when requested by theobserver(s).
(iv) Collecting and carrying baskets of fish whenrequested by the observer(s).
(v) Allowing the observer(s) to collect biologicaldata and samples when the procedure will not decreasethe value of a significant portion of the catch.
(vi) Providing adequate space for storage ofbiological samples.
(9) At-sea transfers to or from processingvessels. [Reserved]
(e) Procurement of observers services byat-sea processing vessels. [Reserved]
(f) Certification of observers in the at-seaprocessing vessels. [Reserved]
(g) Certification of observer contractors forat-sea processing vessels. [Reserved]
(h) Suspension and decertification process forobservers and observer contractors in the at-seaprocessing vessels. [Reserved]
(i) Release of observer data in the at-seaprocessing vessels. [Reserved]
(j) Sample station and operationalrequirements- (1) Observer sampling station. This paragraph contains the requirements for observersampling stations. The vessel owner must provide anobserver sampling station that complies with this sectionso that the observer can carry out required duties.
(i) Accessibility. The observer samplingstation must be available to the observer at all times.
(ii) Location. The observer samplingstation must be located within 4 m of the location fromwhich the observer samples unsorted catch. Unobstructedpassage must be provided between the observer samplingstation and the location where the observer collectssample catch.
(iii) Minimum work space aboard at-seaprocessing vessels. [Reserved]
(iv) Table aboard at-sea processingvessels. [Reserved]
(v) Scale hanger aboard at-sea processingvessels. [Reserved]
(vi) Diverter board aboard at-sea processingvessels. [Reserved]
(vii) Other requirements for at-sea processingvessels. [Reserved]
(2) Requirements for bins used to makevolumetric estimates on at-sea processing vessels. [Reserved]
(3) Operational requirements for at-seaprocessing vessels. [Reserved]
[FR Doc. 00-23629 Filed 9-13-00; 8:45am]
BILLING CODE: 3510-22 -S