[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69073-69076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20248]


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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 action extended.

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SUMMARY: This rule continues management measures implemented by a June 
16, 2006, emergency interim final rule that were set to expire on 
December 13, 2006. In the June 16, 2006, emergency action, NMFS 
implemented 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 
the emergency rule, NMFS re-activated 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 the 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. The 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. This extension of the 
emergency rule ensures that observers can continue to be deployed in 
the scallop fishery throughout the year.

DATES: The amendments in this rule to paragraphs (g), (h), and (i), are 
effective November 29, 2006, through June 11, 2007. The emergency rule 
published June 16, 2006 (71 FR 34842), is extended from December 13, 
2006, through June 11, 2007.

ADDRESSES: Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
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: On June 16, 2006, an emergency rule 
implemented an observer service provider certification program that 
enabled NOAA Fisheries Service to reactivate the Scallop FMP's observer 
set-aside program. The emergency rule was necessary to resolve an issue 
with the observer program that rendered the Scallop FMP's observer set-
aside program inoperable. Further, the Northeast Fisheries Science 
Center's (NEFSC's) FY 2006 level of funding for the observer program 
provided for only minimal coverage in the scallop fishery, and that is 
not expected to change in FY 2007. Additional background relative to 
the need for the action is included in the June 16, 2006, emergency 
rule, and is not repeated here.
    The emergency rule established a program that allows observer 
service providers to be certified by NOAA Fisheries Service to deploy 
observers on scallop vessels. Certified observer service providers are 
required to meet specified criteria in order to remain certified under 
the emergency rule. In addition, vessel owners are required to procure 
observers from an approved observer service provider and must pay for 
the observer. To help defray the

[[Page 69074]]

costs of the observer, vessel owners are provided either additional 
scallop catch allowances when fishing in the Scallop Access Areas or 
additional fishing Days-at-Sea (DAS) when fishing in open areas. The 
Area Access Program specifies a portion of the total projected scallop 
catch from each area as a set-aside to cover the observer costs, and 
vessels that carry observers are authorized to land additional scallops 
on such trips. These additional scallops are deducted from the access 
area set-aside for observers. An additional set-aside of DAS operates 
similarly to cover the observer costs for vessels fishing in open 
areas. Once the set-asides are exhausted, vessel owners are no longer 
allocated any set asides to offset the costs of observer coverage, but 
they are still required to pay for the cost of observers, as specified 
in the scallop regulations at Sec.  648.53(h)(1) and 648.60(d)(2).
    The initial June 16, 2006, emergency rule expires on December 13, 
2006, and is extended through June 11, 2007, by this action. Although 
there is less urgency for placing observers on scallop vessels in 
December through April, a lapse in coverage could compromise NOAA 
Fisheries Service's ability to gather complete fishing year data on the 
scallop fishery. In addition, turtles begin to move into the Mid-
Atlantic in the spring, and observer coverage in the early spring 
months of April and May could help document potential interactions. 
Finally, a very high amount of scallop fishing effort is expected to 
occur in the Elephant Trunk Access Area (ETAA), a Mid-Atlantic Scallop 
Access Area, which will open to scallop fishing on January 1, 2007. 
Observer coverage in that area upon opening will help document fishing 
activity, scallop catch, and bycatch.
    The justification for the extension of the emergency rule remains 
consistent with the Policy Guidelines for the Use of Emergency Rules 
(August 21, 1997, 62 FR 44422) because the continued NEFSC funding 
situation presents previously unforeseen circumstances that also 
present serious management problems to the fishery. The NEFSC does not 
expect that funding for the observer program will increase for 2007. 
Continued observer coverage in the scallop fishery is critical to 
document fishing activity, bycatch, and interactions with sea turtles 
throughout the fishing year.
    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).

Comments and Responses to the June 16, 2006, Emergency Interim Final 
Rule

    Comment 1: An environmental organization commented that NMFS must 
have tight control over the observer providers under the emergency 
action in order to ensure that appropriate quality control and 
accountability is built into the observer service provider program. The 
commenter suggests that NMFS must establish a contractual agreement 
with the provider.
    Response: NMFS recognizes the need to establish necessary and tight 
controls over the observer service providers. However, the execution of 
a contractual agreement between NMFS and the observer provider was 
determined to be inconsistent, at this time, with augmentation of 
appropriations law and policy. However, NMFS believes that the 
requirements that are imposed on observer providers in order for them 
to remain certified allow NMFS to maintain sufficient quality and 
accountability of the observer providers. If the restrictive 
requirements are not met, the observer service provider risks 
decertification.
    Comment 2: An environmental organization commented that only one 
observer service provider should be approved in order to avoid 
inefficiencies and management challenges that could result from having 
multiple observer providers.
    Response: To ensure fair and equitable opportunities to the public, 
in the absence of contracting authority for this type of service, NMFS 
determined that it could not limit the participation to one observer 
provider.
    Comment 3: An environmental organization commented that NMFS needs 
to make sure that it uses a method for obtaining money from the 
commercial fishing industry that does not lead to overfishing, 
increased interaction with sea turtles, or equity issues among 
fishermen.
    Response: It is not clear how the exchange of funds to pay for 
observers would influence overfishing, interactions with sea turtles, 
or equity issues. None of the funds exchanged under the program are 
handled by NMFS. The vessel's owner, or vessel manager pays the 
observer provider directly, based on a fee and payment mechanism 
established by the observer service provider. NMFS uses a random 
sampling design to assign observers to a vessel on a trip by trip and 
vessel by vessel basis. The random observer deployment ensures that 
bias is not built into observer coverage and helps provide equity 
across the fleet. Further, an observer would be restricted from 
deploying on the same vessel on a frequent basis in order to avoid 
sampling bias.
    Comment 4: An industry representative commented that NMFS must 
ensure that adequate and careful observer protocols must be followed 
under the emergency rule to ensure that the observers provide accurate 
information on yellowtail flounder bycatch in the access areas, in 
particular to avoid premature closure of the access areas. The 
representative urged NMFS to consider and address methodological issues 
promptly and to work with the industry to resolve potential problems 
with inadequate observer coverage or inaccurate information.
    Response: NMFS acknowledges these concerns and notes that the 
emergency rule requires observer providers to employ observers that are 
fully trained by the Northeast Fisheries Observer Program (NEFOP) and 
that follow observer protocols established by the NEFOP.
    Comment 5: An industry representative commented that its 
organization hoped to be able to work with NMFS and the observer 
providers

[[Page 69075]]

to work out practical issues that may arise from the program, such as 
billing logistics and affordability concerns related to catch rates and 
available set-aside.
    Response: NMFS welcomes industry input on issues such as available 
set-aside and allocated compensation amounts. NMFS notes that in 
setting the scallop compensation amount, it must balance available set-
aside with the cost of the observer and the amount of compensation that 
will enable a high number of trips to be observed and compensated. If 
the compensation amounts are set too high, the set-aside will run out 
sooner than if they are set lower. As a result, vessels would be 
required to carry observers and would not be compensated after the set-
aside is exhausted. If the compensation is set too low, many scallop 
trips may not be able to recover enough funds to offset the observer 
costs. With respect to payment logistics, how vessels arrange payment 
for observers with the observer providers is between the vessel owner, 
vessel manager, or settlement house, and the observer provider. NMFS 
does not have any financial relationship with the observer provider for 
the purpose of deploying observers on scallop vessels and cannot 
therefore determine the mechanism for the exchange of funds.

Changes from June 16, 2006, Emergency Interim Final Rule

    NMFS determined that some of the section references within the June 
16, 2006, emergency were incorrect. Corrections to the following 
references have been made in this extension:
    In Sec.  648.11, paragraph (g)(1), a reference to paragraph (g)(2) 
of that section is changed to (g)(3) of that section, and a reference 
to paragraph (g)(5) of that section is changed to (g)(4)(ii) of that 
section.
    In Sec.  648.11, paragraph (h)(3)(vi), a reference to paragraph 
(h)(2) of that section is revised to paragraph (h)(5) of that section.
    In Sec.  648.11, paragraph (h)(7)(ii), a reference to paragraph 
(h)(3) of that section is revised to paragraph (h)(6) of that section.
    In Sec.  648.11, paragraph (i)(5), a reference to paragraph (i)(3) 
of that section is revised to paragraphs (i)(1) through (3) of that 
section.

Classification

    Because this rule merely extends the emergency action already in 
place, for which public comment was accepted and considered, NOAA finds 
it is impracticable and contrary to the public interest to provide any 
additional notice and opportunity for public comment under 5 U.S.C. 
553(b)(B) prior to publishing the emergency rule. Waving prior notice 
and comment allows the observer service provider certification program 
to remain in place, thereby allowing the NOAA Fisheries Service 
observer program to provide uninterrupted observer coverage to the 
scallop fishery, which avoids any gaps in collecting data about this 
fishery. Continued observer coverage in the scallop fishery is critical 
to accurately and consistently document fishing activity, bycatch, and 
interactions with sea turtles throughout the fishing year. For these 
reasons, the need to extend these measures to assure that there is no 
lapse in observer coverage in the scallop fishery, also 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.
    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: November 22, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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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.  648.11  [Amended]

0
2. Section 648.11 is amended as follows:

[[Page 69076]]

    A. In paragraph (g)(1), remove ``paragraph (g)(2)'' the last time 
it appears and add ``paragraph (g)(3)'', and remove ``paragraphs (g)(3) 
and (5) of this section'' and add ``paragraphs (g)(3) and (g)(4)(ii) of 
this section.''
    B. In paragraph (h)(3)(vi), remove ``paragraph (h)(2) of this 
section'' and add ``paragraph (h)(5) of this section.''
    C. In paragraph (h)(7)(ii), remove `` paragraph (h)(3) of this 
section;'' and add ``paragraph (h)(6) of this section;''
    D. In paragraph (i)(5), remove ``paragraph (i)(3) of this 
section,'' and add ``paragraphs (i)(1) through (3) of this section,''
[FR Doc. E6-20248 Filed 11-28-06; 8:45 am]
BILLING CODE 3510-22-S