Memo explaining why program was operating in violation

Explaining why this violation of the Paperwork Reduction Act took place (April 16,
2009)
Instructions: 3 f., of the 83I Form, Check "Existing collection" if the collection has
been in use without ever having received OMB approval. If you check this block, your
request should be accompanied by a memo explaining why this violation of the
Paperwork Reduction Act took place.
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NMFS observer programs provide the only reliable or most effective method for
obtaining information that is critical for meeting NMFS’ responsibilities for the
conservation and management of living marine resources. The Magnuson-Stevens
Fishery Conservation and Management Act (MSA), the Endangered Species Act (ESA),
and the Marine Mammal Protection Act (MMPA) authorize NMFS to place observers on
fishing vessels.
Most of the information collected by the observer programs is obtained through “direct
observation by an employee or agent of the sponsoring agency or through
nonstandardized oral communication in connection with such direct observations".
Under the Paperwork Reduction Act regulations at 5 C.F.R. 1320.3((h)(3), such
information is not subject to the PRA. There was confusion on NMFS' part as to whether
all observer program operations were essentially exempt from the requirements of the
PRA. The confusion was in part due to the understanding that, because observers could
not complete their observations safely, effectively, and efficiently without asking predeployment logistical questions, gear and safety questions, and observer performance
questions, such questions were also exempt. As recently as 2005, an exchange between
NOAA/NMFS and OMB during the reauthorization of the Magnuson-Stevens Act (MSA)
contributed to NMFS’ long standing confusion on this issue. Ambiguity concerning what
information is obtained through “nonstandardized oral communication in connection with
such direct observations" also contributed to that confusion.
However, after a recent review of this issue, NOAA and DOC General Counsels agreed
to the following (1) certain questions that NOAA/NMFS was asking are covered by the
PRA and should have gone through the OMB review and approval process; (2) only
"facts or opinions obtained through direct observation by an employee or agent of the
sponsoring agency or through nonstandardized oral communication in connection with
such direct observations" are not subject to the PRA; (3) NOAA MSA observers who are
employed by vessel operators are agents of NOAA for the purposes of the PRA; and (4)
NOAA is pursuing a prudent course of action in seeking OMB approval as quickly as
possible.