Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 13, 32549-32559 [07-2928]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 113 (Wednesday, June 13, 2007)]
[Rules and Regulations]
[Pages 32549-32559]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2928]


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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 https://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 https://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: https://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 
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 
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 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.

[[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