[Federal Register: November 29, 2006 (Volume 71, Number 229)]
[Rules and Regulations]
[Page 69073-69076]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29no06-14]
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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 David_Rostker@omb.eop.gov, 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
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1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 648.11 [Amended]
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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