[Federal Register Volume 71, Number 116 (Friday, June 16, 2006)]
[Rules and Regulations]
[Pages 34842-34848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5504]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060608158-6158-01; I.D. 051806E]
RIN 0648-AU47


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Emergency Rule

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; emergency interim rule and request for 
comments.

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SUMMARY: NMFS is implementing an observer service provider program for 
the Atlantic sea scallop (scallop) fishery including criteria for 
becoming an approved observer service provider, observer certification 
criteria, decertification criteria, and observer deployment logistics. 
Through this emergency rule, NMFS is re-activating the industry-funded 
observer program implemented under the Atlantic Sea Scallop Fishery 
Management Plan (FMP) through a scallop total allowable catch (TAC) and 
days-at-sea (DAS) set-aside program that helps vessel owners defray the 
cost of carrying observers. Under this emergency action, scallop vessel 
owners, operators, or vessel managers are required to procure certified 
fishery observers for specified scallop fishing trips from an approved 
observer service provider. This emergency rule maintains the existing 
requirements for scallop vessel owners to pay for observers whether or 
not scallop TAC or DAS set-aside is available.

DATES: Effective from June 16, 2006 through December 13, 2006. Comments 
must be received at the appropriate address or fax number (see 
ADDRESSES) by 5 p.m., local time, on July 17, 2006.

ADDRESSES: Written comments should be submitted by any of the following 
methods:
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope, ``Comments on Scallop Emergency 
Action.''
     Email: [email protected]
     Fax: (978) 281-9135
     Electronically through the Federal e-Rulemaking portal: 
http//www.regulations.gov.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
proposed rule should be submitted to the Regional Administrator at the 
address above and by e-mail to [email protected], or fax to 
(202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: Since 1999, NMFS has required scallop 
vessels operating in Sea Scallop Access Areas (Access Areas) to pay for 
observer coverage. The Scallop FMP requires vessel owners to provide 
advance notification to NMFS of upcoming scallop trips. This 
information is used to select trips on which an at-sea observer will be 
deployed. Observers were deployed through a contractual arrangement 
between NMFS and an observer provider until June 2004. The contractual 
arrangement was not renewed at that time because of unresolved concerns 
regarding use of a sole contractor to administer the industry-funded 
observer program. The prior contract arrangement had enabled vessel 
owners to pay the observer contractor directly for observer 
deployments, with details of the observer deployment requirements 
specified through the contract. The expiration of the contract 
arrangement eliminated the mechanism that allowed vessel owners to make 
these payments and, in the absence of this contractual program, NMFS 
did not require vessel owners to pay for the cost of observers. Thus, 
NMFS has not utilized the observer set-aside program since 2004.
    Observer coverage in the scallop fishery is necessary to monitor 
the bycatch of finfish, including yellowtail flounder, skates, 
monkfish, cod, and other species. Monitoring of yellowtail flounder 
bycatch in the Scallop Access Areas within the year-round closed areas 
under the Northeast (NE) Multispecies FMP is of particular concern 
because the scallop fishery is constrained by a fishery-specific TAC of 
yellowtail flounder, which is part of the stock-wide yellowtail 
flounder TACs set by the NE Multispecies FMP to achieve specified 
mortality targets for the species. Observer coverage is also needed to 
monitor interactions of the scallop fishery with endangered and 
threatened sea turtles.
    Through fiscal year (FY) 2005, the Northeast Fisheries Science 
Center (NEFSC) funded the necessary levels of observer coverage in the 
sea scallop fishery to evaluate bycatch of groundfish and sea turtles 
by utilizing observer funding that was carried over from FY 2004. 
However, in FY 2006 the NEFSC's level of funding for the observer 
program is sufficient to provide only minimal observer coverage in the 
scallop fishery. The NEFSC did not receive its observer program budget 
until February 2006 and has been working to reconcile the shortfall 
ever since. In April 2006 NMFS determined that it could not reconcile 
the reduced level of observer coverage in the scallop fishery with 
available budget. Consequently, without the program established through 
this emergency rule, observer coverage would be constrained to levels 
below those recommended in the Scallop FMP for precise estimates of 
yellowtail flounder bycatch TAC in Access Areas. In addition, the lower 
level of coverage could make it more difficult to monitor and estimate 
interactions between the scallop fishery and sea turtles in the Mid-
Atlantic, particularly during the June through October period, when 
such interactions are most likely.

[[Page 34843]]

    Despite the fact that the mechanism that allowed vessel owners to 
make payments for observer coverage became inoperable in 2004, the New 
England Fishery Management Council (Council) has continued to establish 
specifications for the fishery that include TAC and DAS set-asides that 
could be harvested on observed trips to offset the costs to the 
industry of observer payments. The existing scallop measures also 
specify that the industry must pay for observers, even if the set-
asides have been exhausted. Set-asides are specified in the current 
scallop regulations, and in proposed Framework 18 to the Scallop FMP 
(71 FR 16091, March 30, 2006), which is intended by the Council to 
adjust the specifications for the 2006 and 2007 scallop fishing year. 
For vessels fishing in the Area Access Program, the Council has 
allocated a portion of the total projected scallop catch to defray the 
observer costs for vessel owners. Scallop vessels that are selected to 
carry observers will be authorized to land additional scallops on such 
trips to help offset the cost of carrying the observer. Additional 
scallops landed in excess of the amount necessary to compensate for 
costs of carrying an observer will be deducted from the access area 
set-aside for observers. A set-aside of DAS is also allocated for 
scallop vessel owners who pay for the cost of observers for observed 
trips in open areas. The open area DAS set-aside program is the same as 
the TAC set-aside program, with the exception that it allows DAS to 
accrue at a reduced rate when a vessel carries an observer, rather than 
providing additional pounds of scallops to the vessel to help defray 
the cost of carrying the observer.
    NMFS is implementing this emergency final rule, pursuant to its 
emergency action authority specified in the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) at 16 U.S.C. 
1855(c), because it is critical to enact a program that will enable the 
industry to utilize the observer set-aside specified in the Scallop FMP 
no later than June 2006. The Area Access Program in the NE Multispecies 
closed areas begins on June 15th, with a requirement for monitoring of 
yellowtail bycatch by scallop vessels. Sea turtle interactions with the 
scallop fishery are most prevalent in the Mid-Atlantic between June and 
October. The benefits of taking emergency action through this final 
rule without the opportunity for prior public comment outweigh the 
adverse impacts that could be expected if NMFS proceeded under notice 
and comment rulemaking. The justification for this emergency action is 
consistent with the Policy Guidelines for the Use of Emergency Rules 
(62 FR 44422, August 21, 1997) because the limited amount of observer 
coverage for the scallop fishery that is possible under the current 
NEFSC funding situation is an unforeseen circumstance that also 
presents potentially serious management problems to the fishery that 
must be addressed as soon as possible. The NEFSC did not receive its 
observer program budget until February 2006 and NMFS determined in 
April 2006 that it could not reconcile the reduced level of observer 
coverage in the scallop fishery with available budget and therefore 
initiated this emergency rule. Much of the harvestable sea scallop 
biomass is currently located within areas closed to allow rebuilding of 
groundfish stocks. In order to access that scallop resource, the Area 
Access Program established bycatch TACs for the scallop fishery that 
maintain the yellowtail flounder conservation objectives of the NE 
Multispecies FMP. Low levels of observer coverage for scallop vessels 
fishing under the Area Access Program would make it difficult to 
monitor these yellowtail bycatch TACs and to obtain data concerning the 
scallop fishery's interactions with sea turtles.
    This emergency action does not impact other FMPs or fisheries in 
the Northeast because other FMPs neither require industry to fund 
observers nor include provisions to defray the costs of observers. Such 
programs would be difficult, if not impossible, to administer within 
the short timeframe statutorily restricting emergency action under the 
Magnuson-Stevens Act.
    This emergency action re-activates the industry-funded scallop 
observer program. Scallop vessels are required to procure observer 
coverage from a NMFS-approved observer service provider and to pay for 
the observer coverage. This emergency rule establishes criteria for 
being approved by NMFS as an observer service provider for the scallop 
fishery. Entities interested in being included on the list of NMFS-
approved observer service providers are required to submit an 
application with the information specified in the regulatory text of 
this rule. Upon receipt of an application, NMFS shall provide all 
potential observer service providers with an estimated number of 
observer sea days for this fishing year under this program. 
Additionally, a planned schedule of observer deployments shall be 
posted on this NOAA website http://www.nefsc.noaa.gov/femad/fsb/. NMFS 
will notify candidate observer service providers of their approval or 
disapproval within 15 days of NMFS's receipt of the application. This 
emergency rule specifies observer service provider requirements, as 
well as observer requirements and responsibilities to become certified 
as an observer for the scallop fishery.
    The scallop observer set-aside will provide scallop vessel owners 
with compensation for observer coverage up to a specified limit, as 
specified in the regulations for the scallop fishery. Once the set-
aside is exhausted, vessel owners will no longer be compensated for 
coverage but will still have to pay for the cost of observers, as 
specified at Sec. Sec.  648.53(h)(1) and 648.60(d)(2).

Classification

    The need to implement these measures such that adequate observer 
coverage is available to the scallop fishery starting in June 2006, and 
to avoid potential management problems, constitutes good cause under 
authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed 
effective date, and implement the emergency action upon publication.
    The emergency rule requires immediate implementation because 
without the measures in the emergency rule, NMFS's ability to monitor 
bycatch of NE multispecies and endangered and threatened sea turtles 
could be compromised. The Access Areas open on June 15 with yellowtail 
flounder bycatch TACs that require close monitoring. Reduced observer 
coverage for scallop vessels fishing under the Area Access Program 
particularly hampers NMFS's ability to monitor the yellowtail flounder 
bycatch TACs, which are a critical component of the yellowtail flounder 
rebuilding program under the NE Multispecies FMP. In particular, the 
yellowtail flounder TAC for the scallop fishery in the Access Area 
within the Nantucket Lightship Closed Area is only 31,544 lb (all 
catch, including discards), which, given the level of expected fishing 
effort in the area, could be harvested quickly. Without adequate 
observer coverage, excessive yellowtail flounder catch could result. 
Unless there is observer coverage, NMFS may need to rely on catch data 
from prior years to determine when bycatch TACs are attained. Such data 
may not be completely applicable to the 2006 fishing year. This would 
have immediate and/or long-term negative impacts on the fishery 
resources and the fishing industry due to the implications of excessive 
harvest levels of yellowtail flounder or closure based on incomplete 
information. In

[[Page 34844]]

addition, adequate observer coverage to monitor interactions between 
the scallop fishery and sea turtles is particularly important during 
June through October because this is when the turtles are in the same 
areas that the scallop fishery takes place.
    NMFS did not initiate the emergency action earlier because it was 
pursuing other solutions to the observer coverage problems, including 
possible changes to budget allocations. NMFS determined that the 
emergency rule was necessary only after making the determination that 
it could not provide sufficient observer coverage in the scallop 
fishery through any other mechanism. The NEFSC did not receive its 
observer program budget until February 2006, and NMFS determined in 
April 2006 that it could not reconcile the reduced level of observer 
coverage in the scallop fishery with available budget. Subsequently, 
the Northeast Regional Administrator informed the Council's Executive 
Director during a coordinating meeting that because of the budgetary 
constraints, NMFS would be looking for an administrative solution to 
activate the observer set-aside program. Since there was no formal 
Council response, NMFS proceeded with the emergency rule. NMFS 
proceeded with this emergency rule with the intention of implementing 
the action in June 2006 to ensure that adequate observer coverage could 
be placed in the scallop fishery in order to monitor yellowtail 
flounder and sea turtle bycatch.
    For these reasons described above, the Assistant Administrator for 
Fisheries, NOAA also finds it is impracticable and contrary to the 
public interest to provide for prior notice and an opportunity for 
public comment under 5 U.S.C. 553(b)(B) prior to publishing the 
emergency rule.
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This emergency rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    This rule contains new collection-of-information requirements 
approved under emergency Paperwork Reduction Act by the Office of 
management and Budget (OMB) under the paperwork Reduction Act (PRA). 
These new requirements apply to entities interested in becoming NMFS-
approved observer service providers and to those observer service 
providers approved by NMFS and providing observer services to the 
scallop fishery. Public reporting burden for these collections of 
information are estimated to average as follows:
    1. Application for approval of observer service provider, OMB 
control number 0648- 0546 (10 hr per response);
    2. Applicant response to denial of application for approval of 
observer service provider, OMB control number 0648-0546 (10 hr per 
response);
    3. Observer service provider request for observer training OMB 
0648-0546 (30 min per response);
    4. Observer deployment report, OMB control number 0648-0546 (10 min 
per response);
    5. Observer availability report, OMB control number 0648-0546 (10 
min per response);
    6. Safety refusal report, OMB control number 0648-0546 (30 min per 
response);
    7. Submission of raw observer data, OMB control number 0648-0546 (5 
min per response);
    8. Observer debriefing, OMB control number 0648-0546 (2 hr per 
response);
    9. Biological samples, OMB control number 0648-0546 (5 min per 
response);
    10. Rebuttal of pending removal from list of approved observer 
service providers, OMB control number 0648-0546 (8 hr per response);
    11. Vessel request to observer service provider for procurement of 
a certified observer, OMB control number 0648-0546 (25 min per 
response); and
    12. Vessel request for waiver of observer coverage requirement, OMB 
control number 0648-0546 (5 min per response).
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information.
    Public comment is sought regarding whether this 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 NMFS and to OMB (see ADDRESSES).
    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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 14, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.


Sec.  648.10  [Amended]

0
2. In Sec.  648.10, paragraphs (b)(4)(ii) through (iv) are suspended.

0
3. In Sec.  648.11, paragraphs (a)(1) and (a)(2) are suspended, and 
paragraphs (a)(3), (g), (h), and (i) are added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

    (a) * * *
    (3) The Regional Administrator may request any vessel holding a 
permit for Atlantic sea scallops, NE multispecies, monkfish, skates, 
Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, 
spiny dogfish, Atlantic herring, tilefish, or Atlantic deep-sea red 
crab; or a moratorium permit for summer flounder; to carry a NMFS 
certified fisheries observer. A vessel holding a permit for Atlantic 
sea scallops is subject to the additional requirements specified in 
paragraph (g) of this section.
* * * * *
    (g) Atlantic sea scallop observer program--(1) General. Unless 
otherwise specified, owners, operators, and/or managers of vessels 
issued a Federal scallop permit under Sec.  648.4(a)(2), and specified 
in paragraph (b) of this section, must comply with this section and are 
jointly and severally responsible for their vessel's compliance with 
this section. To facilitate the deployment of at-sea observers, all sea 
scallop vessels issued limited access permits fishing in open areas or 
Sea Scallop Access Areas, and general category vessels fishing under 
the Sea Scallop Access Area program specified in Sec.  648.60, are 
required to comply with the additional notification requirements 
specified in paragraphs (g)(2) of this section, except that scallop 
vessels issued Occasional scallop permits not participating in the Area 
Access Program specified in Sec.  648.60 may provide the specified 
information to NMFS by calling NMFS.

[[Page 34845]]

 All sea scallop vessels issued a VMS general category or Non-VMS 
general scallop permit that are participating in the Area Access 
Program specified in Sec.  648.60 are required to comply with the 
additional VMS notification requirements specified in paragraph (g)(2) 
of this section. When NMFS notifies the vessel owner, operator, or the 
vessel manager of any requirement to carry an observer on a specified 
trip in either an Access Area or Open Area as specified in paragraph 
(g)(2) of this section, the vessel may not fish for, take, retain, 
possess, or land any scallops without carrying an observer. Vessels may 
only embark on a scallop trip in open areas or Access Areas without an 
observer if the owner, operator, or vessel manager has been notified 
that the vessel has received a waiver of the observer requirement for 
that trip pursuant to paragraphs (g)(3) and (5) of this section.
    (2) Vessel notification procedures. For the purpose of determining 
if an observer will be deployed on a vessel for a specific trip, a 
vessel issued a limited access permit fishing in open areas or in the 
Sea Scallop Area Access program specified in Sec.  648.60, or a vessel 
issued a general category scallop permit and fishing in the Sea Scallop 
Area Access program specified in Sec.  648.60, is required to comply 
with the following notification requirements:
    (i) Prior to the 25th day of the month preceding the month in which 
fishing for scallops is to take place, the vessel owner or operator 
must submit, through the VMS e-mail messaging system, notice of its 
intention to fish for scallops, along with the following information: 
Vessel name and permit number, owner and operator's name, owner and 
operator's phone numbers, and number of trips anticipated for open 
areas and each Sea Scallop Access Area or open area in which it intends 
to fish. General category vessels are required to submit this 
information only for Sea Scallop Access Area trips. The e-mail address 
shall be provided to vessels in a Small Entity Compliance Guide issued 
by the Regional Administrator. The Regional Administrator may waive 
this notification period if it is determined that there is insufficient 
time to provide such notification prior to a Sea Scallop Access Area 
opening or beginning of the fishing year. Notification of this waiver 
of a portion of the notification period shall be provided to the vessel 
through a permit holder letter issued by the Regional Administrator.
    (ii) For each scallop trip, the vessel owner, operator, or vessel 
manager shall notify NMFS by telephone, using the phone number provided 
by the Regional Administrator in the Small Entity Compliance Guide, and 
provide the following information: Vessel Name; contact name and 
number; date and time of departure; port of departure; area to be 
fished (either open areas or the specific Sea Scallop Access Area), and 
fishing as a scallop dredge, scallop trawl or general category vessel.
    (3) Selection of scallop fishing trips for observer coverage. Based 
on predetermined coverage levels for various sectors of the scallop 
fishery that are provided by NMFS in writing to all observer service 
provider approved pursuant to paragraph (h) of this section, NMFS shall 
notify the vessel owner, operator, or vessel manager whether the vessel 
must carry an observer, or if a waiver has been granted, on the 
specified trip within 24 hours of the vessel owner's, operator's, or 
vessel manager's notification of the prospective trip as specified in 
paragraph (g)(2)(ii) of this section. Any request to carry an observer 
may be waived by NMFS. With the exception of vessels issued a non-VMS 
general category scallop permit that are fishing in an access area, all 
waivers for observer coverage shall be issued to the vessel by VMS so 
as to have on-board verification of the waiver. Waivers for vessels 
issued a non-VMS general category scallop permit will be issued by fax, 
if possible, or by phone if no fax number is available.
    (4) Procurement of observer services by scallop vessels. (i) An 
owner of a scallop vessel required to carry an observer under paragraph 
(g)(3) of this section must arrange for carrying an observer certified 
through the observer training class operated by the Northeast Fisheries 
Observer Program (herein after NMFS/NEFOP certified) from an observer 
service provider approved by NMFS under paragraph (h) of this section. 
A list of approved observer service providers shall be posted on the 
NOAA/NEFOP website at http://www.nefsc.noaa.gov/femad/fsb/. The owner, 
operator, or vessel manager of a vessel selected to carry an observer 
must contact the observer service provider and must provide at least 72 
hours notice in advance of the fishing trip for the provider to arrange 
for observer deployment for the specified trip.
    (ii) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 72 hours of the advance 
notification to the provider due to the unavailability of an observer, 
may request a waiver from NMFS from the requirement for observer 
coverage for that trip, but only if the owner, operator, or vessel 
manager has contacted all of the available observer service providers 
to secure observer coverage and no observer is available. NMFS shall 
issue such a waiver within 24 hours, if the conditions of this 
paragraph (g)(4)(ii) are met.
    (5) Unless otherwise notified by the Regional Administrator, owners 
of scallop vessels shall be responsible for paying the cost of the 
observer for all scallop fishing trips on which an observer is carried 
onboard the vessel, regardless of whether the vessel lands or sells sea 
scallops on that trip, and regardless of the availability of set-aside 
for an increased possession limit or reduced DAS accrual rate. Vessels 
that carry an observer may be compensated with a reduced DAS accrual 
rate for open area trips or additional scallop catch per day in Access 
Areas in order to help defray the cost of the observer, under the 
program specified in Sec. Sec.  648.53 and 648.60. Observer service 
providers are responsible for setting the daily rate for observer 
coverage on a vessel. NMFS shall determine the reduced DAS accrual rate 
and the amount of additional pounds of scallops per day fished in an 
access area for the applicable fishing year based on the economic 
conditions of the scallop fishery, as determined by best available 
information. Vessel owners and observer service providers shall be 
notified by Small Entity Compliance Guide of the DAS accrual rate and 
additional pounds of scallops determined by the Regional Administrator. 
The Regional Administrator may adjust the DAS accrual rate and 
additional pounds of scallops if necessary based on economic conditions 
of the scallop fishery. Vessel owners and observer providers shall by 
notified of any such adjustments through a letter.
    (6) When the available DAS or TAC set-aside for observer coverage 
is exhausted, vessels shall still be required to carry an observer as 
specified in this section and shall be responsible for paying for the 
cost of the observer, unless otherwise waived by NMFS, but shall not be 
authorized to harvest additional pounds or fish at a reduced DAS 
accrual rate.
    (h) Observer service provider approval and responsibilities--(1) 
General. An entity seeking to provide observer services to the Atlantic 
sea scallop fishery must apply for and obtain approval from NMFS 
following submission of a complete application to The Observer Program 
Branch Chief, 25 Bernard St Jean Drive, East Falmouth, MA 02536. A list 
of approved observer service providers shall be distributed to scallop 
vessel owners and shall be

[[Page 34846]]

posted on NMFS's web page as specified in paragraph (g)(4) of this 
section.
    (2) Existing observer service providers. Observer service providers 
that currently deploy certified observers in the Northeast must submit 
an application containing the information specified in paragraph (h)(3) 
of this section, excluding any information specified in paragraph 
(h)(3) of this section that has already been submitted to NMFS.
    (3) Contents of application. An application to become an approved 
observer service provider shall contain the following:
    (i) Identification 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 staff. 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.
    (ii) The permanent mailing address, phone and fax numbers where the 
owner(s) can be contacted for official correspondence, and the current 
physical location, business mailing address, business telephone and fax 
numbers, and business e-mail address for each office.
    (iii) A statement, signed under penalty of perjury, from each owner 
or owners, board members, and officers, if a corporation, that they are 
free from a conflict of interest as described under paragraph (h)(6) of 
this section.
    (iv) 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 or observer service 
provider.
    (v) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of a scallop fishery observer services 
provider as set out under paragraph (h)(2) of this section, and the 
arrangements to be used.
    (vii) Evidence of holding adequate insurance to cover injury, 
liability, and accidental death for observers during their period of 
employment (including during training). Workers' Compensation and 
Maritime Employer's Liability insurance must be provided to cover the 
observer, vessel owner, and observer provider. The minimum coverage 
required is $5 million. Observer service providers shall provide copies 
of the insurance policies to observers to display to the vessel owner, 
operator, or vessel manager, when requested.
    (viii) Proof that its observers, either contracted or employed by 
the service provider, are compensated with salaries that meet or exceed 
the Department of Labor (DOL) guidelines for observers. Observers shall 
be compensated as a Fair Labor Standards Act (FLSA) non-exempt 
employees. Observer providers shall provide any other benefits and 
personnel services in accordance with the terms of each observer's 
contract or employment status.
    (ix) The names of its fully equipped, NMFS/NEFOP certified 
observers on staff or a list of its training candidates (with resumes) 
and a request for a NMFS/NEFOP Sea Scallop Observer Training class 
(minimum class size of eight).
    (x) Am Emergency Action Plan (EAP) describing its response to an 
'at sea' emergency with an observer, including, but not limited to, 
personal injury, death, harassment, or intimidation.
    (4) Application evaluation. (i) NMFS shall review and evaluate each 
application submitted under paragraphs (h)(2) and (h)(3) of this 
section. Issuance of approval as an observer provider shall be based on 
completeness of the application, and a determination of the applicant's 
ability to perform the duties and responsibilities of a sea scallop 
fishery observer service provider as demonstrated in the application 
information. A decision to approve or deny an application shall be made 
by NMFS within 15 days of receipt of the application by NMFS.
    (ii) If NMFS approves the application, the observer service 
provider's name will be added to the list of approved observer service 
providers found on NMFS website specified in paragraph (g)(4) of this 
section and in any outreach information to the industry. Approved 
observer service providers shall be notified in writing and provided 
with any information pertinent to its participation in the sea scallop 
fishery observer program.
    (iii) An application shall be denied if NMFS determines that the 
information provided in the application is not complete or the 
evaluation criteria are not met. NMFS shall notify the applicant in 
writing of any deficiencies in the application or information submitted 
in support of the application. An applicant who receives a denial of 
his or her application may present additional information to rectify 
the deficiencies specified in the written denial, provided such 
information is submitted to NMFS within 30 days of the applicant's 
receipt of the denial notification from NMFS. In the absence of 
additional information, and after 30 days from an applicant's receipt 
of a denial, an observer provider is required to resubmit an 
application containing all of the information required under the 
application process specified in paragraph (h)(3) of this section to be 
re-considered for being added to the list of approved observer service 
providers.
    (5) Responsibilities of observer service providers. (i) An observer 
service provider must provide observers certified by NMFS/NEFOP 
pursuant to paragraph (i) of this section for deployment in the sea 
scallop fishery when contacted and contracted by the owner, operator, 
or vessel manager of a vessel fishing in the scallop fishery unless the 
observer service provider rufuses to deploy an observer on a requesting 
vessel for any of the reasons specified at paragraph (viii) of this 
section.
    (ii) An observer service provider must provide to each of its 
observers:
    (A) All necessary transportation, including arrangements and 
logistics, of observers to the initial location of deployment, to all 
subsequent vessel assignments, and to any debriefing locations, if 
necessary;
    (B) Lodging, per diem, and any other services necessary for 
observers assigned to a scallop vessel or to attend a NMFS/NEFOP Sea 
Scallop Observer Training class;
    (C) The required observer equipment, in accordance with equipment 
requirements listed on NMFS website specified in paragraph (g)(4) of 
this section under the Sea Scallop Program, prior to any deployment 
and/or prior to NMFS observer certification training; and
    (D) Individually assigned communication equipment, in working 
order, such as a cell phone or pager, for all necessary communication. 
An observer service 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.
    (iii) Observer deployment logistics. Each approved observer service 
provider must assign an available certified observer to a vessel upon 
request. Each approved observer service provider must provide for 
access by

[[Page 34847]]

industry 24 hours per day, 7 days per week, to enable an owner, 
operator, or manager of a vessel to secure observer coverage when 
requested. The telephone system must be monitored a minimum of four 
times daily to ensure rapid response to industry requests. Observer 
service providers approved under paragraph (h) of this section are 
required to report observer deployments to NMFS daily for the purpose 
of determining whether the predetermined coverage levels are being 
achieved in the scallop fishery.
    (iv) Observer deployment limitations. Unless alternative 
arrangements are approved by NMFS, an observer provider must not deploy 
any observer on the same vessel for two or more consecutive 
deployments, and not more than twice in any given month. A certified 
observer's first deployment shall be on a scallop closed area trip and 
the resulting data shall be immediately edited, and approved, by NMFS 
prior to any further deployments of that observer.
    (v) Communications with observers. An observer service 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, stationed 
shoreside, in transit, or in port awaiting vessel assignment.
    (vi) Observer training requirements. The following information must 
be submitted to NMFS to request a certified observer training class at 
least 30 days prior to the beginning of the proposed training class: 
Date of requested training;a list of observer candidates, with a 
minimum of eight individuals; observer candidate resumes; and a 
statement signed by the candidate, under penalty of perjury, that 
discloses the candidate's criminal convictions, if any. All observer 
trainees must complete a basic cardiopulmonary resuscitation/first aid 
course prior to the beginning of a NMFS/NEFOP Sea Scallop Observer 
Training class. NMFS may reject a candidate for training if the 
candidate does not meet the minimum qualification requirements as 
outlined by NMFS National Minimum Eligibility Standards for observers 
as described in paragraph (i)(1) of this section.
    (vii) Reports--(A) Observer deployment reports. The observer 
service provider must report to NMFS when, where, to whom, and to what 
fishery (open or closed area) an observer has been deployed, within 24 
hours of their departure. The observer service provider must ensure 
that the observer reports back to NMFS its Observer Contract (OBSCON) 
data, as described in the certified observer training, within 12 hours 
of landing. OBSCON data are to be submitted electronically or by other 
means as specified by NMFS. The observer service provider shall provide 
the raw (unedited) data collected by the observer to NMFS within 72 
hours of the trip landing.
    (B) Safety refusals. The observer service provider must report to 
NMFS any trip that has been refused due to safety issues, e.g., failure 
to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal 
or to meet the safety requirements of the observer's pre-trip vessel 
safety checklist, within 24 hours of the refusal.
    (C) Biological samples. The observer service provider must ensure 
that biological samples, including whole marine mammals, turtles and 
sea birds, are stored/handled properly and transported to NMFS within 7 
days of landing.
    (D) Observer debriefing. The observer service provider must ensure 
that the observer remains available to NMFS, including NMFS Office for 
Law Enforcement, for debriefing for at least two weeks following any 
observed trip. An observer that is at sea during the 2-week period must 
contact NMFS upon his or her return, if requested by NMFS.
    (E) Observer availability report. The observer service provider 
must report to NMFS any occurrence of inability to respond to an 
industry request for observer coverage due to the lack of available 
observers on staff by 5 pm, Eastern Standard Time, of any day on which 
the provider is unable to respond to an industry request for observer 
coverage.
    (F) Other reports. The observer provider must report possible 
observer harassment, discrimination, concerns about vessel safety or 
marine casualty, observer illness or injury, and any information, 
allegations, or reports regarding observer conflict of interest or 
breach of the standards of behavior must be submitted to NMFS within 24 
hours of the event or within 24 of learning of the event.
    (viii) Refusal to deploy an observer.--(A) An observer service 
provider may refuse to deploy an observer on a requesting scallop 
vessel if the observer service provider does not have an available 
observer within 72 hours of receiving a request for an observer from a 
vessel.
    (B) An observer service provider may refuse to deploy an observer 
on a requesting scallop vessel if the observer service provider has 
determined that the requesting vessel is inadequate or unsafe pursuant 
to the reasons described at Sec.  600.746.
    (C) The observer service provider may refuse to deploy an observer 
on a scallop vessel that is otherwise eligible to carry an observer for 
any other reason including failure to pay for pervious observer 
deployments, provided the observer service provider has received prior 
written confirmation from NMFS authorizing such refusal.
    (6) Limitations on conflict of interest. An observer service 
provider:
    (i) Must not have a direct or indirect interest in a fishery 
managed under Federal regulations, including, but not limited to, a 
fishing vessel, fish dealer, fishery advocacy group, and/or fishery 
research;
    (ii) Must assign observers without regard to any preference by 
representatives of vessels other than when an observer will be 
deployed; and
    (iii) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts fishing or fishing related 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.
    (7) Removal of observer service provider from the list of approved 
observer service providers. An observer provider that fails to meet the 
requirements, conditions, and responsibilities specified in paragraphs 
(h)(5) and (h)(6) of this section shall be notified by NMFS, in 
writing, that it is subject to removal from the list of approved 
observer service providers. Such notification shall specify the reasons 
for the pending removal. An observer service provider that has received 
notification that it is subject to removal from the list of approved 
observer service providers may submit information to rebut the reasons 
for removal from the list. Such rebuttal must be submitted within 30 
days of notification received by the observer service provider that the 
observer service provider is subject to removal and must be accompanied 
by written evidence that clearly disproves the reasons for removal. 
NMFS shall review information rebutting the pending removal and shall 
notify the observer service provider within 15 days of receipt of the 
rebuttal whether or not the removal is warranted. If no response to a 
pending removal is received by NMFS, the observer service provider 
shall be automatically removed from the list of approved observer 
service providers. The decision to remove the observer service provider 
from the list, either after reviewing a rebuttal, or if no rebuttal is 
submitted, shall be the final

[[Page 34848]]

decision of NMFS and the Department of Commerce. Removal from the list 
of approved observer service providers does not necessarily prevent 
such observer service provider from obtaining an approval in the future 
if a new application is submitted that demonstrates that the reasons 
for removal are remedied. Certified observers under contract with an 
observer service provider that has been removed from the list of 
approved service providers must complete their assigned duties for any 
scallop trips on which the observers are deployed at the time the 
observer service provider is removed from the list of approved observer 
service providers. An observer service provider removed from the list 
of approved observer service providers is responsible for providing 
NMFS with the information required in paragraph (h)(5)(vii) of this 
section following completion of the trip. NMFS may consider, but is not 
limited to, the following in determining if an observer service 
provider may remain on the list of approved observer service providers:
    (i) Failure to meet the requirements, conditions, and 
responsibilities of observer service providers specified in paragraphs 
(h)(5) and (h)(6) of this section;
    (ii) Evidence of conflict of interest as defined under paragraph 
(h)(3) of this section;
    (iii) Evidence of 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;
    (iv) Unsatisfactory performance ratings on any Federal contracts 
held by the applicant; and
    (v) Evidence of any history of decertification as either an 
observer or observer provider.
    (i) Observer certification. (1) To be certified, employees or sub-
contractors operating as observers for observer service providers 
approved under paragraph (h) of this section must meet NMFS National 
Minimum Eligibility Standards for observers. NMFS National Minimum 
Eligibility Standards are available at the National Observer Program 
website: http://www.st.nmfs.gov/st4/nop/.
    (2) Observer training. In order to be deployed on any scallop 
vessel, a candidate observer must have passed a NMFS/NEFOP Sea Scallop 
Fisheries Observer Training course. If a candidate fails training, the 
candidate shall be notified in writing on or before the last day of 
training. The notification will indicate the reasons the candidate 
failed the training. Observer training shall include an observer 
training trip, paid for as part of the observer's training, aboard a 
scallop vessel with a trainer. A certified observer's first deployment 
shall be on a scallop closed area trip and the resulting data shall be 
immediately edited, and approved, by NMFS prior to any further 
deployments of that observer.
    (3) Observer requirements. All observers must:
    (i) Have a valid NMFS/NEFOP fisheries observer certification 
pursuant to paragraph (i)(1) of this section;
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board scallop vessels, pursuant to 
standards established by NMFS. Such standards are available from NMFS 
website specified in paragraph (g)(4) of this section and shall be 
provided to each approved observer service provider; and
    (iii) Have successfully completed all NMFS-required training and 
briefings for observers before deployment, pursuant to paragraph (i)(2) 
of this section.
    (4) Probation and decertification. NMFS has the authority to review 
observer certifications and issue observer certification probation and/
or decertification as described in NMFS policy found on the website at: 
http://www.nefsc.noaa.gov/femad/fsb/.
    (5) Issuance of decertification. Upon determination that 
decertification is warranted under paragraph (i)(3) of this section, 
NMFS shall issue a written decision to decertify the observer to the 
observer and approved observer service providers via certified mail at 
the observer's most current address provided to NMFS. The decision 
shall identify whether a certification is revoked and shall identify 
the specific reasons for the action taken. Decertification is effective 
immediately as of the date of issuance, unless the decertification 
official notes a compelling reason for maintaining certification for a 
specified period and under specified conditions. Decertification is the 
final decision of NMFS and the Department of Commerce and may not be 
appealed.

0
4. In Sec.  648.51, paragraphs (c)(4) and (e)(3)(iii) are added to read 
as follows:


Sec.  648.51  Gear and crew restrictions.

* * * * *
    (c) * * *
    (4) A certified at-sea observer is on board, as required by Sec.  
648.11(g).
* * * * *
    (e) * * *
    (3) * * *
    (iii) A certified at-sea observer is on board, as required by Sec.  
648.11(g).
* * * * *

0
5. In Sec.  648.60, paragraphs (a)(2)(i) and (ii) are suspended and 
paragraph (a)(2)(iii) is added to read as follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) * * *
    (2) * * *
    (iii) Vessels participating in the Sea Scallop Access Area Program 
must comply with the trip declaration requirements specified in Sec.  
648.11(g), and each participating vessel owner or operator shall 
declare a Sea Scallop Access Area trip via VMS less than one hour prior 
to the vessel leaving port, in accordance with instructions provided by 
the Regional Administrator.
* * * * *
[FR Doc. 06-5504 Filed 6-14-06; 1:03 pm]
BILLING CODE 3510-22-S