[Federal Register: November 1, 2007 (Volume 72, Number 211)]
[Rules and Regulations]
[Page 61815-61819]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no07-9]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 071023555-7555-01; I.D. 062906A]
RIN 0648-AU46
Magnuson-Stevens Act Provisions; General Provisions for Domestic
Fisheries; Observer Health and Safety
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS publishes this final rule to enhance the safety of
observers and the efficiency of their deployment. The purpose of the
final rule is to clarify prohibited actions regarding observers,
reinforce that an observer may not be deployed nor stay aboard an
unsafe vessel, clarify when a fishing vessel is inadequate for observer
deployment and how an owner or operator can resolve discrepancies,
clarify when the safety decal requirement applies, and provide for an
alternate NMFS safety equipment examination of certain small fishing
vessels. This final rule is necessary to maintain and enhance the
safety and effectiveness of fisheries observers in carrying out their
duties as authorized by the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) and the fishery management plans
and regulations adopted under the Magnuson-Stevens Act.
DATES: Effective December 3, 2007.
FOR FURTHER INFORMATION CONTACT: Lisa Desfosse at 301-713-2328.
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at the Office of the Federal Register's website at http://www.gpoaccess.gov/fr/index.html
.
Background
The Magnuson-Stevens Act, as amended (16 U.S.C. 1801 et seq.), the
Marine Mammal Protection Act, as amended (MMPA) (16 U.S.C. 1361 et
seq.), and the Atlantic Tunas Convention Act, as amended (ATCA) (16
U.S.C. 971 et seq.) authorize the Secretary of Commerce (Secretary) to
station observers aboard commercial fishing vessels to collect
scientific data required for fishery and protected species conservation
and management, to monitor incidental mortality and serious injury to
marine mammals and to other species listed under the Endangered Species
(ESA), and to monitor compliance with existing Federal regulations. In
addition, under the South Pacific Tuna Act of 1988 (SATA) (16 U.S.C.
973 et seq.), NMFS may require observers in the South Pacific tuna
fishery.
Regulations governing health and safety of observers are codified
at 50 CFR 600.725 and 600.746. They were first promulgated as a final
rule at 63 FR 27213, May 18, 1998. These amendments apply to any vessel
designated to carry an observer as part of a mandatory or a voluntary
observer program under the Magnuson-Stevens Act, the MMPA, the ATCA,
SPTA, or any other U.S. law.
This final rule clarifies and updates prohibitions; changes
paragraph headings to better reflect contents; clarifies communications
requirements; requires pre-trip vessel safety checks; clarifies that
corrective measures are required prior to an observer being deployed
aboard a vessel; adopts an alternate NMFS safety equipment examination
using a NMFS Pre-trip Safety Checklist for U.S. Coast Guard (USCG)
Category I vessels (vessels less than 26 ft. (8 m)) under certain
circumstances when a USCG Commercial Fishing Vessel (CFV) Safety
Examination cannot be conducted; and clarifies that observer safety
requirements apply from the time a vessel is notified of an observer
requirement, rather than on the day the fishing trip is scheduled to
begin. This action strengthens the ability of NMFS to assist with
observer program compliance issues.
Observer Samples
This final rule revises the prohibitions of Sec. 600.725 to
prohibit tampering with or destroying an observer's samples or
equipment, or interfering with a NMFS approved observer. This change
was necessary because observers reported fishing vessel crews
interfering with their sampling programs by throwing samples or
equipment overboard or otherwise destroying or tampering with them. The
changes also reflect that NMFS observers are now sometimes assigned to
shoreside plants.
Observer Safety
Paragraph (b) of Sec. 600.746 addresses observer safety, and the
heading is changed accordingly. Paragraph (b) stated that an observer
is not required to board, or stay aboard, a vessel that is inadequate
or unsafe as described in paragraph (c) of the section. The definition
was intended to allow the observer to subjectively decide whether to
board. This language could be interpreted to not allow an observer to
board a vessel to determine if the vessel is unsafe. The final rule
replaces the term ``is not required'' with, ``will not be deployed,''
clarifying the original intent of the regulation that observers not
depart in or stay aboard vessels inadequate for observer deployment.
Further, the term ``inadequate or unsafe'' is revised to ``inadequate
for observer deployment.'' This change clarifies that, while NMFS
cannot determine the absolute safety of a vessel, NMFS can require
standards of accommodation and safety on a vessel prior to an observer
deploying in that vessel.
Proof of Examination
The regulations at Sec. 600.746(c) considered a vessel inadequate
or unsafe for carrying an observer unless
[[Page 61816]]
the vessel's owner or operator can: (1) show proof to NMFS of either a
current USCG CFV Safety Examination decal or a USCG certificate of
examination; and (2) notify NMFS of that compliance when requested.
This rule amends the current regulations to allow the owner or operator
to show proof of passing the USCG CFV Safety Examination when the decal
may have been lost due to window replacement, other repair, or
accident.
Accommodations and Safety Requirements
This final rule updates accommodations requirements at 50 CFR parts
229, 285, 300, 600, 622, 635, 648, 660, and 679. Each NMFS region will
provide information to vessel owners/operators in a manner appropriate
to that region or fishery, as established by the appropriate Regional
Administrator. The rule also clarifies that both the accommodations
requirement and the USCG CFV Safety Examination requirement or
alternate examination procedure set out in paragraph (h) of this
section must be satisfied for the vessel to be considered adequate
under the requirements of paragraph (c).
Vessel Requirement
The rule revises Sec. 600.725 to include paragraph (w) ``Any
vessel that is carrying one or more observers must maintain safe
conditions for the protection of observers including compliance with
all U.S. Coast Guard and other applicable rules, regulations, or
statutes applicable to the vessel and which pertain to safe operation
of the vessel.''
Vessel Pre-Trip Safety Check
The regulations at Sec. 600.746(c)(3) encourage, but do not
require, observers to use the pre-trip safety check, including the
check for USCG required safety equipment. A vessel may have met the
requirements for issuance of a current USCG CFV Safety Examination
decal, or passed an appropriate USCG inspection; however, the equipment
required for issuance of the decal or passing of the inspection may not
be present or in satisfactory condition prior to the initial deployment
of the observer.
This final rule will require that the vessel's captain or the
captain's designee accompany the observer in a safety check prior to
the initial deployment. The observer will use a checklist that includes
the six items listed in the regulation, plus items required by the USCG
and added by each observer program, in consultation with USCG, to be
fishery area and vessel specific. The vessel's captain or designee must
also accompany the observer in a walk through the vessel's spaces to
ensure that no obviously hazardous conditions exist about the vessel.
This pre-trip check may be incorporated into the vessel safety
orientation to be provided by a Federally documented vessel to the
observer as required by 46 CFR 28.270.
This final rule also clarifies at Sec. 600.746(f)(5) that an
emergency position indicating radio beacon (EPIRB), when required,
shall be registered to the vessel at its documented homeport and at
Sec. 600.746(f)(6) that survival craft, when required, ``shall have
sufficient capacity to accommodate the total number of persons,
including the observer(s), that will embark on the voyage.''
Corrective Measures
This final rule revises the current language of Sec. 600.746(d)
corrective measures to require that the vessel owner/operator selected
to carry an observer must comply with the safety requirements when the
vessel is notified. Additionally, this final rule clarifies that in a
voluntary program, it is the choice of the owner/operator of the vessel
whether to correct safety discrepancies and allow the vessel to carry
an observer.
Alternate NMFS Safety Equipment Examination
The current regulations do not allow for an alternative to the USCG
CFV Safety Examination in cases where NMFS observers are required to
board smaller vessels in remote areas (primarily in Alaska) in order to
carry out their duties. Their remote location precludes them from
traveling to a location where a CFV safety examination can be
performed, and USCG personnel, in certain circumstances, may not be
able to travel to all locations to conduct an examination. This final
rule revises Sec. 600.746 to allow a USCG Category I vessel (a vessel
less than 26 ft. (8 m.) in length) an alternative method for meeting
the safety requirement by passing an alternate NMFS safety equipment
examination that is consistent with the USCG CFV Safety Examination
standards for USCG Category I vessels. The alternate safety examination
would be conducted by a NMFS approved observer, NMFS employee, or an
authorized observer provider. This alternate NMFS safety equipment
examination (designed in consultation with USCG to be fishery-area-
specific) would only be available to USCG Category I vessels in a
remote location, and only for a period up to 30 days after date of
notification that the vessel is required to carry an observer.
Duration
This final rule revises Sec. 600.746(e) to Sec. 600.746 (h) and
amends the language by adding the phrase ``at the time of written or
verbal selection of the vessel to carry an observer'' by the observer
program. This clarifies that vessels are required to comply with the
observer safety requirements at the time their vessel is selected to
carry an observer, which may be days or weeks in advance of the actual
deployment date of an observer to the selected vessel. This will allow
NMFS to check vessels for compliance with the safety requirements prior
to the deployment of an observer.
Summary of Comments and Responses
NMFS received several substantive comments from the public. Below
are summaries of significant public comments and the NMFS' responses
with proposed changes.
Comments Relating to Observer Safety
Comment 1: Safety has improved as a result of the observer health
and safety regulations, but some NMFS observer programs have had
difficulty requiring vessels to comply with the observer health and
safety regulations, e.g., lack of adequate bunk space to accommodate an
observer, and/or lack a survival craft of sufficient capacity to
accommodate all persons on the vessel, including the observer. We
believe the proposed deletions of 50 CFR 600.746(d) and (f) may in fact
exacerbate the problem. Regulations that direct NMFS to ensure that
vessels take corrective actions to come into compliance with the
accommodation and safety requirements, or else not fish, are not only
necessary, but should be strengthened. Otherwise, vessels that fail
safety examinations may have little incentive to correct deficiencies
before fishing. Accordingly, we strongly urge that 50 CFR 600.746(d)
and (f) be retained in the Final Rule and fully implemented to ensure
that the observer safety regulations achieve their intended effect.
Response: The language contained in 50 CFR 600.746(d) was in
conflict with the revised language in 50 CFR 600.746(e), which makes
clear that vessels are required to comply with the observer safety
requirements from the time the vessel is selected to carry an observer,
which may be days or weeks in advance of the actual deployment. The
language contained in 50 CFR
[[Page 61817]]
600.746(d) was deleted because it could be interpreted to mean
compliance is required only immediately prior to the observer boarding
the vessel and is inconsistent with the revisions in 50 CFR 600.746(e).
However, NMFS agrees with the comment with regard to the proposed
deletion of 50 CFR 600.746(f). NMFS agrees that this provision must be
retained to ensure that the observer safety regulations achieve their
intended effect and will reinstate this provision.
Comments Relating to Proof of Examination
Comment 2: The proposed rule adds language to paragraph (d)(1),
clarifying that the decal must have been issued in the past two years,
or at an interval consistent with current Coast Guard regulations. The
Commercial Fishing Vessel (CFV) dockside safety examination program was
expanded to fish catching vessels by Coast Guard policy only, on a
voluntary basis, making the statement partially inaccurate.
Response: NMFS agrees and will add, ``or policy'' so that paragraph
(d)(1) will read: `` clarifying that the decal must have been issued in
the past two years, or at an interval consistent with current Coast
Guard regulations or policy.''
Comments in Relating to Alternate Safety Equipment Examination
Comment 3: Certain NMFS observer programs have been unable to
successfully deploy observers on small vessels (< 26 feet) that do not
have access to USCG examiners in their area. Many of these fishing
sites are in very remote areas where USCG examiners are rarely
accessible. In these situations, an alternate safety equipment
examination performed either by the NMFS certified contract observer,
their employer, or a NMFS observer program employee, is reasonable. The
proposed regulatory text is vague and could be open to a broader
interpretation. It does not reference remote sites; instead it
references the unavailability of examiners or the unavailability of
transportation to or from an inspection station. It should be clear
that this alternate examination is not meant to apply to fishing
vessels in more populous areas where fishers may assert they tried to
schedule an examination yet could not.
Response: In the preamble, NMFS makes clear that the intent of the
proposed rule is to address vessels < 26 ft. in remote areas, primarily
in Alaska. This is the focus of the regulation, but the regulation
still provides flexibility to address other scenarios that may arise in
the future in other areas. To further clarify the proposed rule's
intent, in the first sentence of 50 CFR 600.746(g), NMFS will insert,
``If a vessel is under 26 ft. (8 m) in length, in a remote location,
and NMFS has determined that the USCG cannot provide a USCG Commercial
Fishing Vessel Safety Examination...''
Comments Relating to Display or Show Proof
Comment 4: While subparagraphs (3) and (4) adequately address the
fish processing vessels and fish tender vessels, respectively, there is
no mention of an alternative means to show proof for fish catching
vessels.
Response: NMFS agrees with this comment and in Sec. 600.746, will
renumber subparagraphs (3) and (4), to (i) and (ii). NMFS will also
add, (iii) ``For vessels not subject to (i) and (ii) above, a dockside
examination report form indicating the decal number and date and place
of issue.'' and place (i), (ii), and (iii) under subparagraph (2).
Comment 5: Commercial fishing industry vessels may undergo a safety
examination, but are not generally required to be inspected, unless
they are over a certain tonnage, also operate as a cargo vessel, or
also operate as a small passenger vessel. In such cases they may be
issued a certificate of inspection (COI). Currently, we know of no
fishing vessels that are required to be inspected.
Response: The intent of subparagraph (d) (3) (4) (modified to (i)
and (ii)), is to address alternate means to show proof of a decal for
observers deployed on fish processing and tending vessels. The language
has been revised to also address fishing vessels, (iii) For vessels not
subject to (i) and (ii) above, a dockside examination report form
indicating the decal number and date and place of issue.
Classification
NMFS has determined that this final rule is consistent with the
Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Final Regulatory Flexibility Analysis (FRFA)
Section 603 of the Regulatory Flexibility Act (RFA) requires that
NMFS prepare a Final Regulatory Flexibility Analysis (FRFA) summarizing
significant issues raised by the public comments in response to the
Initial Regulatory Flexibility Analysis (IRFA). The agency's response
to those comments and changes made to the rule as a result of the
comments are below. There were no comments on the IRFA or the economic
impacts of the rule. There are no reporting, recordkeeping, or other
compliance costs associated with this rulemaking.
Description and Number of Entities Affected
NMFS has defined all fish-harvesting or hatchery businesses that
are independently owned and operated, not dominant in their field of
operation, with annual receipts of $4,000,000 or less, as small
businesses. NMFS estimates that approximately 8,925 vessels could be
required to carry an observer in NMFS-regulated fisheries. Current,
precise data on the number of commercial fishing vessels that are small
entities are not presently available because year-to-year participation
by such entities in any given fishery is variable, due to economic,
regulatory, climatic, and other factors. However, combining the best
available data estimates from each of the regional observer programs
derived an estimate of 8,755-8,825 vessels.
The rule clarifies an existing NMFS requirement that vessels
display a USCG CFV Safety Examination decal. The decal is obtained by
passing a free (except to some processor vessels) examination of
compliance with USCG safety regulations, that is scheduled at a time
convenient to the vessel owner/operator. No disproportionate economic
impacts between small and large entities were identified for this
action. Furthermore, there are no disproportionate economic impacts
among groups of entities based on types of gear, areas fished, or
vessel size.
Preferred Alternative
This final rule does not require that vessel operators expend more
than the existing rules require (e.g., for the purchase of a larger
life raft to accommodate an observer). However, failure of a vessel to
comply with this rule may cause loss of fishing time. The cost of a
lost fishing day varies among fisheries. For example, an average cost
of a day-at-sea across all vessels 40-80 ft in length (i.e., all gears)
in the Northeast in 2006 was $895, but this figure would vary in other
fisheries, depending upon the value of the fishery, the type of
management regime governing that fishery and the degree to which the
vessel derives its income from that fishery. The risk of loss of
fishing time due to this proposed rule is minimal, because vessel
owners are already required to comply with USCG safety regulations and
to obtain a USCG
[[Page 61818]]
CFV Safety Decal when fishing in a federally permitted fishery that
requires observer coverage. Therefore, this rule does not impose any
new compliance costs.
``No Action'' and Other Alternatives
Under the ``no action'' alternative to this rule, no new costs
would be incurred. However, the difference between the cost of ``no
action'' and the cost of the preferred alternative is minimal and NMFS
believes that most of the affected vessels already voluntarily follow
the USCG safety regulations and comply with the existing NMFS
requirement for a USCG CFV Safety Decal when fishing in a federally
permitted fishery that requires observer coverage.
A more detailed copy of this analysis is available from NMFS (see
ADDRESSES).
List of Subjects in 50 CFR Part 600
Fisheries, Fishery, Fishing vessels, Reporting and recordkeeping
requirements.
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
Dated: October 26, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 600 is amended as
follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In Sec. 600.725, paragraphs (p), (t), and (u) are revised and
paragraph (w) is added to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(p) Fail to show proof of passing the USCG Commercial Fishing
Vessel Safety Examination or the alternate NMFS safety equipment
examination, or fail to maintain the vessel safety conditions necessary
to pass the examination, when required by NMFS pursuant to Sec.
600.746.
* * * * *
(t) Assault, oppose, impede, intimidate, or interfere with a NMFS-
approved observer.
(u)(1) Prohibit or bar by command, impediment, threat, coercion,
interference, or refusal of reasonable assistance, an observer from
conducting his or her duties as an observer; or
(2) Tamper with or destroy samples or equipment.
* * * * *
(w) Fail to maintain safe conditions for the protection of
observers including compliance with all U.S. Coast Guard and other
applicable rules, regulations, or statutes applicable to the vessel and
which pertain to safe operation of the vessel.
0
3. In Sec. 600.746, paragraphs (b) through (f) are revised and
paragraphs (g), (h), and (i) are added to read as follows:
Sec. 600.746 Observers.
* * * * *
(b) Observer safety. An observer will not be deployed on, or stay
aboard, a vessel that is inadequate for observer deployment as
described in paragraph (c) of this section.
(c) Vessel inadequate for observer deployment. A vessel is
inadequate for observer deployment if it:
(1) Does not comply with the applicable regulations regarding
observer accommodations (see 50 CFR parts 229, 285, 300, 600, 622, 635,
648, 660, and 679), or
(2) Has not passed a USCG Commercial Fishing Vessel Safety
Examination, or for vessels less than 26 ft (8 m) in length, has not
passed an alternate safety equipment examination, as described in
paragraph (g) of this section.
(d) Display or show proof. A vessel that has passed a USCG
Commercial Fishing Vessel Safety Examination must display or show proof
of a valid USCG Commercial Fishing Vessel Safety Examination decal that
certifies compliance with regulations found in 33 CFR Chapter 1 and 46
CFR Chapter 1, and which was issued within the last 2 years or at a
time interval consistent with current USCG regulations or policy.
(1) In situations of mitigating circumstances, which may prevent a
vessel from displaying a valid safety decal (broken window, etc.),
NMFS, the observer, or NMFS' designated observer provider may accept
the following associated documentation as proof of the missing safety
decal described in paragraph (d) of this section:
(i) A certificate of compliance issued pursuant to 46 CFR 28.710;
(ii) A certificate of inspection pursuant to 46 U.S.C. 3311; or
(iii) For vessels not required to obtain the documents identified
in (d)(1)(i) and (d)(1)(ii) of this section, a dockside examination
report form indicating the decal number and date and place of issue.
(e) Visual inspection. Upon request by an observer, a NMFS
employee, or a designated observer provider, a vessel owner or operator
must provide correct information concerning any item relating to any
safety or accommodation requirement prescribed by law or regulation, in
a manner and according to a timeframe as directed by NMFS. A vessel
owner or operator must also allow an observer, a NMFS employee, or a
designated observer provider to visually examine any such item.
(f) Vessel safety check. Prior to the initial deployment, the
vessel owner or operator or the owner or operator's designee must
accompany the observer in a walk through the vessel's major spaces to
ensure that no obviously hazardous conditions exist. This action may be
a part of the vessel safety orientation to be provided by the vessel to
the observer as required by 46 CFR 28.270. The vessel owner or operator
or the owner or operator's designee must also accompany the observer in
checking the following major items as required by applicable USCG
regulations:
(1) Personal flotation devices/ immersion suits;
(2) Ring buoys;
(3) Distress signals;
(4) Fire extinguishing equipment;
(5) Emergency position indicating radio beacon (EPIRB), when
required, shall be registered to the vessel at its documented homeport;
(6) Survival craft, when required, with sufficient capacity to
accommodate the total number of persons, including the observer(s),
that will embark on the voyage; and
(7) Other fishery-area and vessel specific items required by the
USCG.
(g) Alternate safety equipment examination. If a vessel is under 26
ft (8 m) in length, and in a remote location, and NMFS has determined
that the USCG cannot provide a USCG Commercial Fishing Vessel Safety
Examination due to unavailability of inspectors or to unavailability of
transportation to or from an inspection station, the vessel will be
adequate for observer deployment if it passes an alternate safety
equipment examination conducted by a NMFS certified observer, observer
provider, or a NMFS observer program employee, using a checklist of
USCG safety requirements for commercial fishing vessels under 26 ft (8
m) in length. Passage of the alternative examination will only be
effective for the single trip selected for observer coverage.
(h) Duration. The vessel owner or operator is required to comply
with the requirements of this section when the vessel owner or operator
is notified orally or in writing by an observer, a
[[Page 61819]]
NMFS employee, or a designated observer provider, that his or her
vessel has been selected to carry an observer. The requirements of this
section continue to apply through the time of the observer's boarding,
at all times the observer is aboard, and at the time the observer
disembarks from the vessel at the end of the observed trip.
(i) Effect of inadequate status. A vessel that would otherwise be
required to carry an observer, but is inadequate for the purposes of
carrying an observer, as described in paragraph (c) of this section,
and for allowing operation of normal observer functions, is prohibited
from fishing without observer coverage.
[FR Doc. E7-21550 Filed 10-31-07; 8:45 am]
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