Fishery conservation and management: Northeastern United States fisheries— Atlantic sea scallop, 17076-17085 [E7-6489]

Agencies

• National Oceanic and Atmospheric Administration

[Federal Register: April 6, 2007 (Volume 72, Number 66)]
[Proposed Rules]               
[Page 17076-17085]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ap07-21]                         

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070322065-7065-01; 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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 
13 to the Atlantic Sea Scallop Fishery Management Plan (Scallop FMP). 
Amendment 13 was developed by the New England Fishery Management

[[Page 17077]]

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. Proposed measures for the 
observer service provider program in Amendment 13 include: Requirements 
for becoming an approved observer service provider; observer 
certification and decertification criteria; and notification 
requirements for vessel owners and/or operators. This proposed rule 
would require 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 proposed 
rule would allow adjustments to the observer program to be done through 
framework action. The measures in this proposed rule would enable NMFS 
to utilize the Scallop FMP's set-aside program that has been in place 
in the Scallop FMP since 1999. The set-aside program requires scallop 
vessel owners to pay for observers, whether or not scallop TAC or DAS 
set-aside is available, and compensates vessel owners with additional 
scallop catch or reduced DAS accrual rate if scallop TAC or DAS set-
aside is available. Observer coverage in the scallop fishery is 
necessary to monitor the bycatch of finfish and interactions with 
threatened and endangered species.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on May 7, 2007.

ADDRESSES: Copies of Amendment 13, the public hearing document, and the 
Initial Regulatory Flexibility Analysis (IRFA), are available on 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council (Council), 50 Water Street, Newburyport, MA 01950. 
These documents are also available online at https://www.nefmc.org. 

Amendment 13 is categorically excluded from the requirement to prepare 
an environmental assessment or an environmental impact statement.
    Written comments should be submitted by any of the following 
methods:
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope, ``Comments on Scallop Amendment 13 
Proposed Rule.''
     E-mail to the following address: 
ScallopAmendment13@noaa.gov. Include in the subject line of the e-mail 

comment the following document identifier: ``Comments on Scallop 
Amendment 13 Proposed Rule'';
     Fax: 978-281-9135
     Electronically through the Federal e-Rulemaking portal: 
http//https://www.regulations.gov.

    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
proposed rule should be submitted to the Regional Administrator at the 
address above and by e-mail to 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

    Since 1999, NMFS has required scallop vessels operating in Scallop 
Access Areas to pay for observer coverage. This provision operated 
effectively through a contractual arrangement with an observer provider 
until June 2004, when the Department of Commerce informed NMFS that it 
could not renew the contract without resolving possible conflicts with 
the Miscellaneous Receipts Act and policies regarding augmentation of 
appropriations. The contract arrangement had enabled vessel owners to 
pay the observer provider directly for observer deployments, with 
details of the observer deployment requirements specified through the 
contract. The expiration of the contract arrangement eliminated the 
mechanism allowing vessel owners to pay for observer coverage.
    Even though the mechanism allowing vessel owners to pay for 
observer coverage was inoperable, the Council continued to establish 
specifications for the scallop fishery that included set-asides (TAC 
and DAS, depending on fishing area) that could be harvested on observed 
trips to offset the cost to the industry of observers. Existing scallop 
regulations specify set-asides through February 29, 2008, and require 
that industry must pay for observer coverage, even if set-asides have 
been exhausted. For vessels fishing in the Scallop Access Areas, the 
Council has allocated a portion of the total projected scallop catch to 
defray the observer costs for vessel owners. Scallop vessels selected 
to carry observers on access area trips are authorized to land 
additional scallops on these observed trips to help offset the cost of 
the observer. An additional set-aside of a reduced DAS accrual rate is 
allocated to pay for the cost of observers on observed trips in open 
areas.
    Observer coverage in the scallop fishery is necessary to monitor 
groundfish bycatch, particularly yellowtail flounder bycatch in the 
Scallop Access Areas within the groundfish closed areas. It is also 
needed to monitor interactions between the scallop fishery and sea 
turtles. Through fiscal year (FY) 2005, the Northeast Fisheries Science 
Center (NEFSC) funded the necessary levels of observer coverage in the 
scallop fishery to evaluate bycatch of groundfish and sea turtles by 
utilizing carryover funding from FY 2004. However, in FY 2006, the 
NEFSC's level of funding for the observer program provided for only 
minimal observer coverage in the scallop fishery. This meant that 
observer coverage was constrained to levels less than what would be 
necessary for sufficient monitoring of the yellowtail flounder bycatch 
total allowable catch (TAC) in Scallop Access Areas and interactions 
between the scallop fishery and sea turtles in the Mid-Atlantic during 
June through October.
    To provide for sufficient observer coverage to monitor the scallop 
fishery, NMFS re-activated the industry-funded observer program, 
wherein scallop vessels would be required to procure observer coverage 
from a NMFS-approved observer provider, on June 16, 2006 (71 FR 34842), 
via emergency rule. The emergency rule established a program that 
allowed observer service providers meeting specified criteria to be 
approved by NMFS. NMFS-approved observer service providers were then 
able to deploy observers on scallop vessels. The emergency rule also 
established the requirement that vessel owners are required to procure 
observers from a NMFS-approved observer service provider, and must pay 
for the observer. The emergency rule was extended through June 11, 2007 
(71 FR 69073, November 29, 2006). Extending the emergency rule provided 
for observer coverage to continue to gather complete fishing year data 
on the scallop fishery and monitor fishery interactions with sea 
turtles in early spring.
    The Council developed Amendment 13 to permanently re-active the 
industry-funded scallop observer program implemented in 2006. At its 
February 6-8, 2007, meeting, the Council voted to adopt Amendment 13 
for submission to NMFS, and submitted the document and associated 
analyses on February 16, 2007. The Council held one public hearing on 
Amendment 13 on February 7, 2007, in Portsmouth, NH,

[[Page 17078]]

in conjunction with the Council's February meeting.

Proposed Measures

    To provide for observer coverage in the scallop fishery when the 
Scallop Access Areas re-open on June 15, 2007, and into the future, 
this action would permanently re-activate the industry-funded scallop 
observer program that was implemented in 2006 via emergency rule. Like 
the emergency rule, this action would require scallop vessels to 
procure observer coverage from a NMFS-approved observer service 
provider. This action proposes criteria to be met in order for an 
entity to be approved by NMFS as an observer service provider, proposes 
the requirements for certification and decertification of observers for 
the scallop fishery, and proposes vessel notification requirements. 
Lastly, this action proposes to provide a framework mechanism to 
implement future adjustments to the scallop observer program.
    Observer program requirements proposed in this action were 
developed to provide for the accurate and timely collection of unbiased 
data and to minimize conflict of interest issues. The proposed 
requirements were also designed to be consistent with national NMFS 
observer standards and were based upon NMFS observer program 
requirements in Alaskan fisheries, but modified to meet the needs and 
objectives of the Northeast Regional Office (NERO) and NEFSC. Since 
implementation via emergency rule in June 2006, the proposed industry-
funded observer program has been successful, as it provided sufficient 
observer coverage for the scallop fishery and allowed NMFS to maintain 
sufficient operational standards and data quality control.

Observer Service Provider Requirements

    This proposed action would allow any entity to become an observer 
service provider if it meets the proposed approval and responsibilities 
criteria. Potential observer service providers would be 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 
would be required to submit an application with the information 
proposed in the regulatory text of this action. Upon receipt of an 
application, NMFS would provide all potential observer service 
providers with an estimated number of observer sea days for this 
fishing year under the proposed program. Additionally, a planned 
schedule of observer deployments would be posted on this NOAA website: 
https://www.nefsc.noaa.gov/femad/fsb/. NMFS would 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 would be added to the list of NMFS-approved 
observer service providers.
    Observer service providers would be required to comply with all 
observer support, deployment logistics and limitations, communication, 
training, reporting, and conflict of interest requirements proposed in 
the regulatory text of this action. Observer service providers would 
also be responsible for setting the daily cost of observer coverage on 
a vessel. NMFS would 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 
proposed NMFS-approval process would maintain quality control of the 
data collected, but would not have potential conflicts with 
augmentation of appropriations law and policy.
    This action proposes a few minor changes from the observer service 
provider requirements implemented by emergency rule. The cost of 
training/certifying scallop observers is borne by NMFS. To facilitate 
cost-effective training/certification, this action proposes that a 
minimum class size of eight observers, which may be split among 
multiple observer service providers, be required for the scallop 
observer training class operated by the Northeast Fisheries Observer 
Program (NEFOP). Training classes with fewer than eight participants 
would be delayed until at least eight participants were enrolled. This 
action also proposes that an approved observer service provider would 
be required to maintain in its employ at least eight observers that had 
been certified through the scallop observer training class operated by 
NEFOP. The emergency rule implemented an observer service provider 
requirement 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 proposed in this 
action, but the requirement that an observer's first deployment shall 
be on a Scallop Access Area trip is not proposed in this action.

Observer Certification Requirements

    This action proposes that employees of observer service providers 
must meet the NMFS National Minimum Eligibility Standards available at 
https://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 this 
action proposes that all observers would be required hold a current Red 
Cross (or equivalent) cardiopulmonary resuscitation certificate.

Removal/Decertification Requirements

    This proposed action would specify 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

    Proposed in this action are 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 a 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

[[Page 17079]]

provide NEFOP with a 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, NMFS is not proposing that notification requirement 
in this action.

Future Adjustments to the Observer Program

    Lastly, this action proposes 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 abbreviated rulemaking if the Secretary of 
Commerce finds good cause to waive the requirement for a proposed rule 
and opportunity for public comment. 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 would 
allow the Council more flexibility to develop improvements to the 
observer program.
    Public comments are being solicited on Amendment 13 and its 
incorporated documents through the end of the comment period, May 18, 
2007, stated in the notice of availability (NOA) for Amendment 13 (72 
FR 12749, March 19, 2007). Public comments on the proposed rule must be 
received by May 18, 2007, the end of the comment period specified in 
the NOA for Amendment 13, to be considered in the approval/disapproval 
decision on the amendment. All comments received by May 18, 2007, 
whether specifically directed to Amendment 13 or the proposed rule, 
will be considered in the approval/disapproval decision on Amendment 
13. Comments received after that date will not be considered in the 
decision to approve or disapprove Amendment 13. To be considered, 
comments must be received by close of business on the last day of the 
comment period.
    Current scallop observer program regulations, implemented via 
emergency rule, will expire on June 11, 2007. This action proposes to 
make minor modifications to those regulations and make them permanent.

Classification

    At this time, NMFS has not determined that the amendment this 
proposed rule would implement is consistent with the national standards 
of the Magnuson-Stevens Fishery Conservation and Management Act and 
other applicable laws. NMFS, in making that determination, will take 
into account the data, views, and comments received during the comment 
period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed 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 and 
currently under review for renewal. If approved by OMB, the 
requirements under 0648-0546 would remain in place even after the 
expiration of the emergency rule for use under the authority of 
Amendment 13, provided Amendment 13 is approved and implemented. 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.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section. A copy of this analysis is available from 
the Council (see ADDRESSES) or NMFS at https://www.nero.noaa.gov. A 

summary of the analysis follows:

Statement of Objective and Need

    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 
considered, and the objectives of and legal basis for this action, is 
contained in the preamble to this proposed rule and is not repeated 
here.

Description and Estimate of Number of Small Entities to Which the Rule 
Would Apply

    The vessels in the scallop fishery could be considered small 
business entities because all of them grossed less than $4 million, 
according to the dealer's data, for 2004 to 2006. The proposed action 
would 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

[[Page 17080]]

fishing year progresses. Based on this information, the proposed action 
is expected to have impacts on a substantial number of small entities. 
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 Projected 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. It 
maintains requirements approved in conjunction with the emergency 
action.

Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives

Proposed 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. This action re-activates the mechanism that allow 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 then 
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

[[Page 17081]]

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 proposed adjustment mechanism to 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
    The proposed action would permanently re-activate the industry-
funded observer program in the Scallop FMP through a set-aside program 
that would help vessel owners defray the cost of carrying observers. 
The alternatives to the proposed 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, closures to prevent interactions with sea 
turtles), 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 proposed rule would 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, 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 proposes 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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 2, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    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.
* * * * *
    3. In Sec.  648.11, paragraphs (a) introductory text and (a)(1) are 
revised, and paragraphs (g), (h), and (i) are revised 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 a NMFS 
certified fisheries observer. A vessel holding a permit for Atlantic 
sea scallops is subject to the additional requirements specified in 
paragraph (g) of this section.
    (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.
* * * * *
    (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

[[Page 17082]]

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 Area Access 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 Area Access 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 
provider approved pursuant to paragraph (h) of this section, NMFS shall 
notify the vessel owner, operator, or vessel manager whether the vessel 
must carry an observer, or if a waiver has been granted, 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 (herein after NMFS/NEFOP certified) from an observer 
service provider approved by NMFS under paragraph (h) of this section. 
A list of approved observer service providers shall be posted on the 
NOAA/NEFOP website at https://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.
    (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.

[[Page 17083]]

    (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 website specified in paragraph (g)(4) of this 
section and in any outreach information to the industry. Approved 
observer service providers shall be notified in writing and provided 
with any information pertinent to its participation in the sea scallop 
fishery observer program.
    (iii) An application shall be denied if NMFS determines that the 
information provided in the application is not complete or 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 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 website specified in paragraph (g)(4) of 
this section under the Sea Scallop Program, prior to any deployment 
and/or prior to NMFS observer certification training; and
    (D) Individually assigned communication equipment, in working 
order, such as a cell phone or pager, for all necessary communication. 
An observer service provider may alternatively compensate observers for 
the use of the observer's personal cell phone or pager for 
communications made in support of, or necessary for, the observer's 
duties.
    (iii) Observer deployment logistics. Each approved observer service 
provider must assign an available certified observer to a vessel upon 
request. Each approved observer service provider must provide for 
access by 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

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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 pm, Eastern Standard Time, of any day on which 
the provider is unable to respond to an industry request for observer 
coverage.
    (F) Other reports. The observer provider must report possible 
observer harassment, discrimination, concerns about vessel safety or 
marine casualty, 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 
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

[[Page 17085]]

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 
website: https://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 requirem