[Federal Register: June 13, 2007 (Volume 72, Number 113)]
[Rules and Regulations]
[Page 32549-32559]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jn07-12]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 070322065-7114-02; I.D. 030607C]
RIN 0648-AV39
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Amendment 13
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements Amendment 13 to the Atlantic Sea
Scallop Fishery Management Plan (Scallop FMP). Amendment 13 was
developed by the New England Fishery Management Council (Council) to
permanently re-activate the industry-funded observer program in the
Scallop 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. The following observer program management measures
are implemented by this rule: Requirements for becoming an approved
observer service provider; observer certification and decertification
criteria; and notification requirements for vessel owners and/or
operators. This action also requires scallop vessel owners, operators,
or vessel managers to procure certified fishery observers for specified
scallop fishing trips from an approved observer service provider.
Additionally, this action allows adjustments to the observer program to
be done through framework action.
DATES: Effective June 12, 2007.
ADDRESSES: Copies of Amendment 13, the public hearing document, and the
Initial Regulatory Flexibility Analysis (IRFA), are available upon
request from Paul J. Howard, Executive Director, New England Fishery
Management Council, 50 Water Street, Newburyport, MA 01950. These
documents are also available online at http://www.nefmc.org. Amendment
13 is categorically excluded from the requirement to prepare an
environmental assessment or an environmental impact statement. NMFS
prepared a Final Regulatory Flexibility Analysis (FRFA), which is
contained in the Classification section of the preamble of this final
rule. Copies of the FRFA and the Small Entity Compliance Guide are
available from the Regional Administrator, Northeast Regional Office,
NMFS, One Blackburn Drive, Gloucester, MA 01930-2298, and are also
available via the internet at http://www.nero.nmfs.gov.
Written comments regarding the burden-hour estimate or other
aspects of the collection-of-information requirement contained in this
final rule should be submitted to the Regional Administrator at the
address above and by e-mail to David_Rostker@omb.eop.gov, or fax to
202-395-7285.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, phone 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The Council adopted Amendment 13 to the Scallop FMP on February 7,
2007, and submitted it to NMFS on February 16, 2007, for review and
approval. The Council developed Amendment 13 to permanently re-active
the industry-funded scallop observer program implemented by NMFS via
emergency
[[Page 32550]]
rule in 2006. 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, an overfished species, 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. A proposed rule for Amendment 13 was
published on April 6, 2007 (72 FR 17076). The public comment period for
the proposed rule ended on May 7, 2007. The notice of availability for
the amendment published on March 19, 2007, and its required 60-day
comment period closed on May 18, 2007. This rule implements management
measures associated with the scallop observer program, which are
described in detail below.
Approved Management Measures
In the proposed rule, NMFS requested comments on all proposed
management measures. The approved management measures are discussed
below; no measures in Amendment 13 were disapproved. Details concerning
the development of these measures were presented in the preamble of the
proposed rule and are not repeated here.
Observer Service Provider Requirements
Amendment 13 allows any entity to become an observer service
provider if it meets the approval and responsibilities criteria.
Potential observer service providers are required to submit an
application containing detailed information such as contact
information, description of past experience with placing individuals in
remote field and/or marine environments, evidence of adequate insurance
to cover injury, liability and accidental death for observers during
employment, and proof of compensation for observers while employed that
meet or exceed Department of Labor guidelines. Entities interested in
being included on the list of NMFS-approved observer service providers
are required to submit an application with the information described in
the regulatory text of this action. Upon receipt of an application,
NMFS will provide all potential observer service providers with an
estimated number of observer sea days for the fishing year.
Additionally, a planned schedule of observer deployments will be posted
on this NOAA Web site: http://www.nefsc.noaa.gov/femad/fsb/. NMFS will
notify candidate observer service providers of their approval or
disapproval within 15 days of its receipt of their applications. If
approved, the observer service provider's name will be added to the
list of NMFS-approved observer service providers.
Observer service providers will be required to comply with all
observer support, deployment logistics and limitations, communication,
training, reporting, and conflict of interest requirements in the
regulatory text of this action. Observer service providers will also be
responsible for setting the daily cost of observer coverage on a
vessel. NMFS will continue to be responsible for determining the
reduced DAS accrual rate and TAC for the set-aside program to defray
the cost of observer coverage through biennial specifications. This
NMFS-approval process will maintain quality control of the data
collected, but will not have potential conflicts with augmentation of
appropriations law and policy.
Amendment 13 implements a few minor changes from the observer
service provider requirements implemented by NMFS in 2006 via emergency
rule. The cost of training/certifying scallop observers is borne by
NMFS. To facilitate cost-effective training/certification, Amendment 13
requires a minimum class size of eight observers, which may be split
among multiple observer service providers, to be enrolled in the
scallop observer training class operated by the Northeast Fisheries
Observer Program (NEFOP). Training classes with fewer than eight
participants will be delayed until at least eight participants are
enrolled. Amendment 13 also requires that an approved observer service
provider maintain in its employ at least eight observers that had been
certified through the scallop observer training class operated by
NEFOP. The emergency rule required that an observer's first deployment
shall be on a Scallop Access Area trip and that the resulting data be
edited and approved by NMFS prior to any further deployments.
Specifying details of new observer's first deployment was designed to
provide the necessary oversight to ensure the collection of timely and
accurate data. However, NEFOP has learned that requiring an observer's
first deployment and the resulting data be edited and approved by NMFS,
prior to any further deployments, is sufficient for quality control,
and that requiring an observer's first deployment be on a Scallop
Access Area trip may limit the availability of observers to provide
coverage on scallop trips to open areas. Therefore, the requirement
that an observer's first deployment and the resulting data be edited
and approved by NMFS, prior to any further deployments, is implemented
in this action, but the requirement that an observer's first deployment
shall be on a Scallop Access Area trip is not.
Observer Certification Requirements
Amendment 13 requires that employees of observer service providers
must meet the NMFS National Minimum Eligibility Standards available at
http://www.st.nmfs.gov/st4/nop/ and must pass the NEFOP training course
and be physically and mentally capable of carrying out the
responsibilities of an observer. NMFS has the authority to review
observer certification and issue observer certification probation and/
or decertification if warranted. One minor addition to the observer
certification requirements implemented by emergency rule is that
Amendment 13 requires that all observers hold a current Red Cross (or
equivalent) cardiopulmonary resuscitation/first aid certificate.
Removal/Decertification Requirements
Amendment 13 specifies criteria and protocols for removal of an
observer service provider from the list of NMFS-approved observer
service providers and the probation and decertification of an observer.
Vessel Requirements
Amendment 13 specifies general requirements for scallop vessels,
notification procedures, and requirements of the vessel if it is
selected to carry an observer. Vessels are responsible for paying the
cost of an observer, regardless of whether the vessel lands or sells
scallops on that trip, and regardless of the availability of set-aside
TAC or reduced DAS accrual rate.
The emergency rule required that vessels contact NMFS prior to the
25th day of the month preceding the month in which it intends to fish.
This requirement was designed by NMFS to provide NEFOP with an estimate
of fishing effort to expect in the following month, so that observer
coverage needs could be met. However, NEFOP has found that it does not
need this provision to meet coverage needs; therefore, that
notification requirement is not implemented in Amendment 13.
[[Page 32551]]
Future Adjustments to the Observer Program
Lastly, Amendment 13 provides for a framework mechanism to
implement future adjustments to the scallop observer program. Under the
Scallop FMP, and in accordance with the Administrative Procedure Act,
the framework process allows for rulemaking to amend observer
requirements without the need to also amend the FMP. Currently,
adjustments to the observer program must be made through an amendment
to the Scallop FMP. Providing for a framework mechanism in the Scallop
FMP to make adjustments to measures implemented for the observer
program will allow the Council more flexibility to develop improvements
to the observer program.
Comments and Responses
NMFS received two comment letters on Amendment 13.
Comment 1: The first comment expressed concern about the lack of
Federal support for observer coverage of the scallop fishery. The
commenter stated that the Scallop FMP requirement that industry pay for
observer coverage was intended to provide observer coverage for trips
into Scallop Access Areas, but not observer coverage on trips into open
areas. The commenter acknowledged that the Scallop FMP's set-aside
program generally does have a positive economic effect. However, the
commenter cautioned that using the set-aside to pay for observer
coverage may become burdensome for the industry if the abundance or
price of scallops declines, especially for observer coverage in open
areas. Instead, the commenter proposed that NMFS use Federal funds to
pay for observer coverage in open area trips, to the extent that such
funding is available.
Response: The Scallop FMP requirement for industry to pay for
observer coverage and the level of set-aside available to help defray
the cost of observer coverage are not addressed in Amendment 13.
However, they were established after being considered in prior scallop
actions, particularly Amendment 10, the action that established the
current set-aside program in July 2004. Amendment 13 only establishes
the mechanism to allow the set-aside to be used; it does not adjust the
set-aside program. If this action is implemented, future adjustments to
the set-aside program, including adjustments evaluating the commenter's
concerns, could be implemented by framework action.
Comment 2: The second comment cautioned that a conflict of interest
can result from industry-funded observer programs, leading to
inaccurate and biased data. The commenter proposed camera surveillance
as a better means to collect data.
Response: NMFS concurs with the commenter that conflict of interest
is an important issue to consider when developing an industry-funded
observer program. Therefore, to minimize the likelihood that an
observer would develop ties to a vessel owner/operator and/or feel
pressured by a vessel owner/operator to misreport, Amendment 13
prohibits observer service providers from consecutively deploying the
same observer on the same vessel and from deploying an observer on the
same vessel more than twice a month. The Council did not consider
electronic monitoring for the scallop fishery in Amendment 13, but as
technology develops, electronic monitoring may be considered in a
future action.
Changes From the Proposed Rule
In Sec. 648.14, paragraph (h)(17) is revised to include the
correct cross-reference.
In Sec. 648.14, paragraph (i)(15) is added to clarify the
prohibition to be consistent with paragraph (h)(17).
Classification
The Administrator, Northeast Region, NMFS, determined that FMP
Amendment 13 is necessary for the conservation and management of the
Atlantic sea scallop fishery and that it is consistent with the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and other applicable laws.
NMFS approved Amendment 13 on May XX, 2007. A copy of the Amendment
is available from the Council and NMFS (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date for Amendment 13. Because Amendment 13
maintains a mechanism for an industry-funded observer program that has
been in place since last year, delaying the effective date of Amendment
13 would be more disruptive and would cause more economic and resource
conservation concerns than waiving the delay in effective date.
Amendment 13 permanently implements, with minor modifications, the
industry-funded scallop observer program implemented by NMFS through an
emergency rule in 2006. Observer coverage in the scallop fishery is
necessary to monitor groundfish bycatch, particularly yellowtail
flounder bycatch in the Scallop Access Areas. It is also needed to
monitor interactions between the scallop fishery and sea turtles,
especially in the Mid-Atlantic during June through October. The
emergency rule that implemented the industry-funded scallop observer
program in 2006 expires on June 11, 2007, and the Scallop Access Areas
open on June 15, 2007.
To prepare for the opening of the Scallop Access Areas, NMFS
recently completed a three-week training course for 20 observers for
the industry-funded scallop program. The cost of this training was
approximately $112,640 (approximately $5,632 per observer) and included
lodging, meals, travel, salary, leasing training vessels, safety
training, and security clearances. If there is a delay in effective
date of Amendment 13 and these observers are not able to work, they
will likely move on to other jobs and additional observers would need
to be found and trained. Because trained observers are valuable and
difficult to replace, it would take a minimum of three months to locate
and train additional observers. Additionally, there would be a loss of
income, potentially severe, for observer service providers who employ
industry-funded observers for the scallop fishery, if there is a delay
in effective date in Amendment 13 resulting in a lapse of an industry-
funded observer program.
NMFS's current and anticipated funding only provides for minimal
observer coverage in the scallop fishery. Delaying the implementation
of Amendment 13, and its provision for an industry-funded observer
coverage in the scallop fishery, would likely result in less than
sufficient observer coverage levels for monitoring the yellowtail
flounder bycatch in Scallop Access Areas when they open on June 15,
2007. Scallop Access Areas have restrictive yellowtail flounder bycatch
TACs that require close monitoring to achieve specified mortality
targets. Observer data are used to calculate yellowtail flounder catch
rates in these areas and catch rates are extrapolated to unobserved
trips. Observer coverage is essential in order to project TAC
attainment and close the Scallop Access Areas. Closing Scallop Access
Areas after the yellowtail flounder bycatch TACs for Scallop Access
Areas are exceeded could result in exceeding mortality targets for an
overfished stock, thereby slowing rebuilding of an overfished stock,
and potentially conflicting with requirements of National Standard 1 of
the Magnuson-Stevens Act to rebuild overfished stocks within a
specified time period.
[[Page 32552]]
Additionally, observer coverage to monitor interactions between the
scallop fishery and sea turtles is particularly important during June
through October. Sea turtles are known to occur in areas where the
scallop fishery operates during this period and sea turtle takes in
scallop trawl and dredge gear have been observed during these months.
Delaying the implementation of Amendment 13 would also likely result in
less than sufficient observer coverage to document interactions between
the scallop fishery and sea turtles in June, and perhaps July. Even
though compliance with the Endangered Species Act (ESA) does not
require observer coverage in the Mid-Atlantic scallop fishery because
of mandatory gear modifications, observer coverage of the scallop
fishery continues to provide important information to advance knowledge
of how, where, and to what extent ESA-listed sea turtles interact with
dredge and trawl gear used in the scallop fishery.
Lastly, the management effects of having minimal observer coverage
in the scallop fishery during June, and possibly July could result in
negative economic impacts on the scallop industry for the 2007 fishing
year. Scallop harvest from Scallop Access Areas is a substantial source
of income for the scallop fleet. Should these areas close earlier than
necessary because of less reliable data on yellowtail flounder bycatch,
the fleet would experience reduced fishing opportunities and reduced
harvest.
For these reasons, there is good cause to waive the 30-day delay in
effectiveness for Amendment 13. The need for this waiver is due to the
timing of the amendment's submission by the Council to NMFS. Amendment
13 was adopted by the Council on February 7, 2007, and was submitted to
NMFS for review and approval on February 16, 2007. The notice of
availability for the amendment published on March 19, 2007, and its
required 60-day comment period closed on May 18, 2007. The proposed
rule for Amendment 13 published on April 6, 2007, and its 30-day
comment period closed on May 7, 2007.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the IRFA, a summary of the significant issues raised
by public comment in response to the IRFA, NMFS responses to those
comments, and the corresponding economic analyses prepared for
Amendment 13. The contents of these incorporated documents are not
repeated in detail here. A copy of Amendment 13 and the IRFA are
available upon request (see ADDRESSES).
Statement of Need for This Action
The objective of this action is to re-activate the industry-funded
observer program for the scallop fishery. Observer coverage is
necessary in the scallop fishery to monitor bycatch of finfish and
interactions with endangered and threatened species. The need for this
action is to provide a mechanism to approve observer service providers
so that the set-aside program can be utilized to help defray costs of
carrying the necessary level of observers in the scallop fishery. A
complete description of the reasons why this action is being
implemented, and the objectives of and legal basis for this action, is
contained in the preamble to the proposed rule (72 FR 17076, April 6,
2007) and is not repeated here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
As discussed in the preamble, an industry representative commented
that the Scallop FMP requirement for industry to pay for observer
coverage was intended to provide observer coverage for trips into
Scallop Access Areas, but not observer coverage on trips into open
areas. The commenter acknowledged that the Scallop FMP's set-aside
program generally does have a positive economic effect. However, the
commenter cautioned that using the set-aside to pay for observer
coverage may become burdensome for the industry if the abundance or
price of scallops declines, especially for observer coverage in open
areas. The Scallop FMP requirement for industry to pay for observer
coverage and the level of set-aside available to help defray the cost
of observer coverage are not addressed in Amendment 13. However, they
were considered in prior scallop actions, particularly Amendment 10,
the action that established the current set-aside program in July 2004.
Amendment 13 only implements administrative tools to allow the set-
aside to be used; it does not adjust the set-aside program. If this
action is implemented, future adjustments to the set-aside program,
including adjustments evaluating the commenter's concerns, could be
implemented by framework action. No changes to the proposed rule were
made as a result of this comment.
Description of Small Entities to Which This Action Will Apply
The vessels in the scallop fishery could all be considered small
business entities because all of them grossed less than $4 million,
according to the dealer data, for 2004 to 2006. This action will affect
vessels with limited access and general category scallop permits.
According to the recent permit data, there were 318 vessels that
obtained full-time limited access permits in 2006, including 55 small-
dredge and 14 scallop trawl permits. In the same year, there were also
32 part-time and 1 occasional limited access permit in the scallop
fishery. In addition, 2,501 permits were issued to vessels in the open
access general category and over 500 of these vessels landed scallops
during the last 2 years. These numbers could change as the fishing year
progresses. There are no large entities participating in this fishery,
as defined in section 601 of the RFA. Therefore, there are no
disproportionate economic impacts on small entities.
Description of Reporting, Recordkeeping, and Other Compliance
Requirements
This action does not contain any new collection-of-information,
reporting, recordkeeping, or other compliance requirements. It does not
duplicate, overlap, or conflict with any other Federal rules. This
final rule maintains collection-of-information requirements subject to
the Paperwork Reduction Act (PRA), previously approved under control
number 0648-0546 in conjunction with the emergency action.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
Approved Action
Previous scallop regulatory actions established provisions that
impose some cost on vessels that participate in the scallop fishery by
requiring vessels to carry and pay for observers on some trips.
Compliance costs associated with the observer coverage can be minimized
through the set-aside (i.e., TAC and DAS, depending on fishing area)
that will provide compensation to vessel owners that have paid for
observers.
[[Page 32553]]
This action re-activates the mechanism that allows vessels to offset
the costs of observer coverage and harvesting additional scallops from
the set-aside. The net impacts of the observer program on vessels that
participate in the scallop fishery will depend on scallop prices, trip
costs, observer costs, and the TAC or reduced DAS accrual rate provided
by NMFS. The analyses presented in Amendment 13 showed that, in some
circumstances, observer coverage could reduce crew and vessel income by
extending the trip and increasing the trip costs, especially for
vessels with a lower catch rate per DAS. But in most cases, overall
costs due to the observer coverage will be minimized, and may even
yield positive economic benefits, due to the compensation that would be
provided by NMFS.
The average total revenue for a general category vessel was
$139,755 for the first 11 months of the 2006 fishing year, $249,167 for
fishing year 2005, and $260,942 for fishing year 2004. Assuming that
the cost of an observer would be $800 per day-at-sea (or $33.30 per
hour, slightly higher than the $775 paid by vessels during the 2006
fishing year), average observer costs per general category vessel were
estimated to be about $1,440 per trip in 2006. A cost of $1,400 per
vessel for the year, assuming that each vessel carries an observer on
only one trip, would amount to about 1 percent of total revenue.
Similarly, the average total revenue of a limited access vessel was
$803,873 for the first 11 months of the 2006 fishing year, $1,072,991
for fishing year 2005, and $988,401 for fishing year 2004. Average
observer costs per limited access vessel were $6,560 per trip in 2006.
Again, assuming that each vessel carries an observer on only one trip,
observer cost would amount to less than 1 percent of the total revenue.
(These are the amounts paid to the observer provider and do not include
compensation through TAC or DAS set-asides.) Because of the set-aside,
compliance costs to scallop vessels are expected to be considerably
less than these amounts, under most circumstances. However, as
described previously, if there is no set-aside, or no remaining set-
aside, to help pay for the observer coverage, the vessels would be
responsible for paying the observer, regardless of whether the vessel
lands or sells scallops on that trip. This has been the process since
the set-aside program was implemented in 1999, but NMFS usually
distributes the set-aside such that the majority, if not all trips with
an observer aboard, are at least partially compensated.
Economic impacts on scallop vessels, under several scenarios for
both limited access and general category vessels, were analyzed in the
IRFA for Amendment 13. Scenarios are based on set variables (i.e., trip
costs, cost of observer, and the compensation (either TAC or DAS)
provided by NMFS for carrying an observer) and fluctuating variables
(i.e., landings per unit effort, price of scallops). While TAC
compensation is provided by NMFS, vessels must incur additional costs
to harvest the compensation TAC. Economic impacts on vessels in the
scallop fleet are analyzed in the IRFA by considering set variables,
fluctuating variables, and whether or not a vessel carries an observer
for a trip. Although the IRFA in Amendment 13 analyzes several
scenarios, the results are summarized as follows:
For limited access vessels, fluctuating variables in the
assumptions include: Landings per unit effort (LPUE) ranging from 1,800
lb (816.5 kg) per DAS to 800 lb (362.9 kg) per DAS and scallop price
ranging from $7.60 per lb to $6.00 per lb. Given the highest LPUE and
highest price, a vessel's income could be expected to increase by about
$9,280 with an observer onboard (from $61,560 without an observer, to
$70,840 with an observer). A vessel's crew income could be expected to
increase by about $10,722 with an observer (from $63,540 without an
observer, to $72,282 with an observer). The increase in income when
carrying an observer is due to the compensation for carrying an
observer, either additional pounds (400 lb (181.4 kg) per day) or DAS
(0.15 reduced accrual rate in open areas). With an LPUE of 800 lb
(362.9 kg) per DAS and a price of $7.60 per lb, a vessel's income could
be expected to decline by about $32 with an observer onboard (from
$24,624 without an observer to $24,592 with an observer). A vessel's
crew income could be expected to decline by about $1,619 with an
observer (from $19,566 without an observer, to $17,947 with an
observer). These decreases in income result from extended trip lengths
to catch the additional pounds to pay for an observer.
General category vessels are subject to the industry-funded
observer provisions only when fishing in Scallop Access Areas and are
compensated with additional pounds per trip. With a compensation of 400
lb (181.4 kg) per day, a vessel would cover observer costs of $1,600 by
fishing 2 days and landing 1,200 lb (544.3 kg) of scallops (400 lb
(181.4 kg) for the trip and 800 lb (362.9 kg) as compensation). At a
price of $6.00 per lb, the vessel would generate $7,200 revenue from
scallops, and would increase total crew income by $1,410 and vessel
income by $1,440. At a scallop price of $7.60 per lb, vessels and crews
could be expected to increase revenues even at a lower compensation
rate. By fishing more days, a vessel could experience even more gains
in revenue. For example, by fishing 3.5 days and receiving 1,600 lb
(725.7 kg) in compensation, total scallop revenue could increase to
$15,200 at a price of $7.60 per lb, increasing both crew and vessel
income by over $4,000. These positive impacts on vessels are due to the
fact that general category vessels are not allowed to land more than
400 lb (181.4 kg) on regular trips and, even at a price of $6.00 per
lb, a compensation amount of 400 lb (181.4 kg) could bring $2,400 in
revenue, exceeding the cost of the observer and trip costs. However, if
compensation pounds were set too low, or if prices decline below $6.00
per lb, the economic gains from compensation for carrying an observer
could decline.
Observer coverage would improve information that could be used to
reduce the amount of finfish bycatch and the level of sea turtle takes
in the scallop fishery. This could eliminate the need for more
conservative management measures in the future that may potentially
have adverse impacts on the scallop industry. For these reasons and the
reasons described above, the benefits of the observer program are
expected to exceed costs of this program and have positive economic
impacts on vessels participating in the scallop fishery.
The mechanism to allow adjustment of the observer program through
framework action could be used to reduce the differential impacts of
this program on some vessels, such as by implementing different TAC
amounts and DAS accrual rates for smaller vessels. The adjustments
through framework could also provide more flexibility to the program in
determining the amount of set-aside or the way the observer costs are
shared among the vessels in the scallop fleet.
Participation by potential observer service providers is voluntary
and, since no Federal action is requiring participation, further
assessment of the potential impacts on these entities is not required.
No significant quantifiable impacts on scallop prices and change in
benefits to the consumers are expected from this action, since the
observer program is not expected to impact scallop landings in a
significant way.
Non-Selected Alternatives
This action permanently re-activates the industry-funded observer
program in the Scallop FMP through a set-aside
[[Page 32554]]
program that helps vessel owners defray the cost of carrying observers.
The alternatives to this action do not provide for an industry-funded
observer program. Under the no action alternative, the emergency rule
would expire and no regulations would be implemented allowing for
funding in addition to that provided by NMFS under its existing
observer program. However, as discussed previously, NMFS's current and
anticipated funding would only provide for minimal observer coverage in
the scallop fishery. Therefore, under the no action alternative,
observer coverage levels would likely be less than sufficient for
monitoring the yellowtail flounder bycatch TAC in Scallop Access Areas
and interactions between the scallop fishery and sea turtles in the
Mid-Atlantic during June through October. Due to implications of having
minimal observer coverage (e.g., earlier closures based on less
reliable bycatch estimates), no action would likely result in negative
economic impacts (e.g., reduced fishing opportunity, reduced harvest)
for the scallop industry in both the short and long-term. Without an
industry-funded observer program, adequate observer coverage for the
scallop fishery could only occur if provided wholly by NMFS. However,
because of resource constraints, it is not realistically possible for
NMFS to wholly fund an adequate level of observer coverage for the
scallop fishery.
The set-aside program is already an established provision in the
scallop regulations and the measures in this final rule only establish
a mechanism to enable the set-asides to be utilized by the industry as
compensation for having paid for observer coverage. Measures to modify
and improve the set-aside program are outside the scope of Amendment
13. During the Council's public hearing on Amendment 13 and public
comment on the proposed rule, the scallop industry expressed concern
that the proposed action would not provide a complete solution to the
economic impacts associated with having to pay for observers under the
existing set-aside program. The scallop industry also acknowledged that
there were no other alternatives, besides the proposed and no action
alternatives, that could be considered in Amendment 13. Based on this
public input, this action also establishes a mechanism to allow future
modifications to the observer program to be implemented by framework
action. Providing for a framework mechanism in the Scallop FMP to make
adjustments to the observer program would allow more flexibility to
address industry's concerns with the program. Because of the
administrative nature of this action, there were no other reasonable
alternatives.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide was prepared.
The guide will be sent to all holders of permits issued for the
Atlantic scallop fishery. In addition, copies of this final rule and
guide (i.e., permit holder letter) are available from the Regional
Administrator, Northeast Region (see ADDRESSES).
This final rule maintains collection-of-information requirements
subject to the PRA, previously approved under control number 0648-0546
in conjunction with the emergency action. These 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--10 hr per
response;
2. Applicant response to denial of application for approval of
observer service provider--10 hr per response;
3. Observer service provider request for observer training--30 min
per response;
4. Observer deployment report--10 min per response;
5. Observer availability report--10 min per response;
6. Safety refusal report--30 min per response;
7. Submission of raw observer data--5 min per response;
8. Observer debriefing--2 hr per response;
9. Biological samples--5 min per response;
10. Rebuttal of pending removal from list of approved observer
service providers--8 hr per response;
11. Vessel request to observer service provider for procurement of
a certified observer--25 min per response; and
12. Vessel request for waiver of observer coverage requirement--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. Send
comments regarding this burden estimate, or any other aspect of this
data collection, including suggestions for reducing the burden, to NMFS
(see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to
(202) 395-7285.
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 8, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
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.
0
2. In Sec. 648.10, paragraph (b)(4) is revised to read as follows:
Sec. 648.10 DAS and VMS notification requirements.
* * * * *
(b) * * *
(4) Atlantic sea scallop vessel VMS notification requirements. Less
than 1 hr prior to leaving port, the owner or authorized representative
of a scallop vessel that is required to use VMS as specified in
paragraph (b)(1) of this section must notify the Regional Administrator
by entering the appropriate VMS code that the vessel will be
participating in the scallop DAS program, Area Access Program, or
general category scallop fishery. VMS codes and instructions are
available from the Regional Administrator upon request.
* * * * *
[[Page 32555]]
0
3. In Sec. 648.11, paragraph (a) is revised, and paragraphs (g), (h),
and (i) are added to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
(a) 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 an 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.
(1) For the purpose of deploying at-sea observers, sea scallop
vessel owners are required to notify NMFS of scallop trips as specified
in paragraph (g) of this section. 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 accrual rate of DAS.
(2) [Reserved]
* * * * *
(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 paragraph (g)(2) of this section. 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, and/or 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)(3) 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 vessel owner,
operator, and/or manager has been notified that the vessel has received
a waiver of the observer requirement for that trip pursuant to
paragraphs (g)(3) and (g)(4)(ii) 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, the
owner, operator, or manager of a vessel issued a limited access permit
fishing in open areas or in the Sea Scallop Access Area program
specified in Sec. 648.60, or the owner, operator, or manager of a
vessel issued a general category scallop permit and fishing in the Sea
Scallop Access Area program specified in Sec. 648.60, is required to
comply with the following notification requirement. For each scallop
trip, the vessel owner, operator, and/or 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 and permit number; 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
whether 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
providers 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, for the
specified trip within 24 hr of the vessel owner's, operator's, or
vessel manager's notification of the prospective trip, as specified in
paragraph (g)(2) of this section. Any request to carry an observer may
be waived by NMFS. All waivers for observer coverage shall be issued to
the vessel by VMS so as to have on-board verification of the waiver.
(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 (hereinafter 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 Web site 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-hr 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 hr 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 hr, if the conditions of this paragraph (g)(4)(ii) are met.
(5) 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. The owners, operators, and/or managers of 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 any 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 any 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 be notified of any
such adjustments through a letter.
[[Page 32556]]
(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, 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 posted on NMFS's Web page, as specified in
paragraph (g)(4) of this section.
(2) [Reserved]
(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)(5) 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 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 (with resumes) on staff or a list of its training candidates
(with resumes) and a request for a NMFS/NEFOP Sea Scallop Observer
Training class. The NEFOP training has a minimum class size of eight
individuals; which may be split among multiple vendors requesting
training. Requests for training classes with fewer than eight
individuals will not be processed until further requests make up the
full training class size.
(x) An 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 by NMFS 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's Web site 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 their 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 NMFS
concludes that the applicant does not have the ability to perform the
duties and responsibilities of a sea scallop fishery observer service
provider. 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, in writing, 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 as an approved observer
service provider.
(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 does not have an available observer
within 72 hr of receiving a request for an observer from a vessel
owner, operator, and/or manager, or refuses to deploy an observer on a
requesting vessel for any of the reasons specified at paragraph
(h)(5)(viii) of this section. An approved observer service provider
must maintain in its employ a minimum of eight NMFS/NEFOP certified
observers in order to remain approved. Should a service provider's
employed NMFS/NEFOP certified observers drop below eight, the provider
must supply the appropriate number of candidates to the next available
training class. Failure to do so shall be cause for suspension
[[Page 32557]]
of the provider's approved status, until rectified.
(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's Web site 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 industry 24 hr 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 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 hr
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/NEFOP when, where, to whom, and to
what fishery (open or closed area) an observer has been deployed,
within 24 hr of the observer's 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 hr 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 hr of the trip landing.
(B) Safety refusals. The observer service provider must report to
NMFS any trip for which the deployment of an observer has been refused
due to safety issues, e.g., failure to hold a valid USCG Commercial
Fishing Vessel Safety Examination Decal, or failure to meet the safety
requirements of the observer's pre-trip vessel safety checklist, within
24 hr of the refusal.
(C) Biological samples. The observer service provider must ensure
that biological samples, including whole marine mammals, sea 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, either in-person or via
phone, at NMFS's discretion, including NMFS Office for Law Enforcement,
for debriefing for at least 2 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 to do so 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 5:00 p.m., 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, or observer illness or injury; and any information,
allegations, or reports regarding observer conflict of interest or
breach of the standards of behavior, to NMFS/NEFOP within 24 hr of the
event or within 24 hr 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 hr 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 previous 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
[[Page 32558]]
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 written 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 rebutting the basis 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 within 30 days of the
notification of removal, 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 automatically if no
timely rebuttal is submitted, shall be the final decision of the
Department of Commerce. Removal from the list of approved observer
service providers may not 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)(6) 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
Web site: 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. A candidate that fails training shall not be able
to enroll in a subsequent class. Observer training shall include an
observer training trip, as part of the observer's training, aboard a
scallop vessel with a trainer. A certified observer's first deployment
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
Web site specified in paragraph (g)(4) of this section and shall be
provided to each approved observer service provider;
(iii) Have successfully completed all NMFS-required training and
briefings for observers before deployment, pursuant to paragraph (i)(2)
of this section; and
(iv) Hold a current Red Cross (or equivalent) cardiopulmonary
resuscitation/first aid certification.
(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 Web site
at: http://www.nefsc.noaa.gov/femad/fsb/.
(5) Issuance of decertification. Upon determination that
decertification is warranted under paragraphs (i)(1) through (3) of
this section, NMFS shall issue a written decision to the observer
containing the decertification and to the approved observer service
provider via certified mail at their 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 the Department of
Commerce.
0
4. In Sec. 648.14, paragraph (h)(17) is revised and (i)(15) is added
to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(h) * * *
(17) Fail to comply with the notification requirements specified in
Sec. 648.11(g)(2) or refuse or fail to carry an observer after being
requested to carry an observer by the Regional Administrator or
Regional Administrator's designee.
* * * * *
(i) * * *
(15) Fail to comply with the notification requirements specified in
Sec. 648.11(g)(2) or refuse or fail to carry an observer after being
requested to carry an observer by the Regional Administrator or
Regional Administrator's designee.
* * * * *
0
5. In Sec. 648.51, paragraphs (c)(4) and (e)(3)(iii) are added to read
as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
[[Page 32559]]
(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
6. In Sec. 648.55, paragraph (e)(31) is revised, and paragraph (e)(32)
is added to read as follows:
* * * * *
Sec. 648.55 Framework adjustments to management measures.
(e) * * *
(31) Modifications to provisions associated with observer set-
asides; observer coverage; observer deployment; observer service
provider; and/or the observer certification regulations.
(32) Any other management measures currently included in the FMP.
* * * * *
0
7. In Sec. 648.60, paragraph (a)(2) is revised to read as follows:
Sec. 648.60 Sea scallop area access program requirements.
(a) * * *
(2) Vessels participating in the Sea Scallop Access Area Program
must comply with the trip declaration requirements specified in Sec.
648.10(b)(4) and vessel notification requirements specified in Sec.
648.11(g) for observer deployment.
* * * * *
[FR Doc. 07-2928 Filed 6-8-07; 2:52 pm]
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