Federal Register / Vol. 72, No. 113 / Wednesday, June 13, 2007 / Rules and Regulations 32549 

such changes, adjustment shall be made in 

accordance with subparagraph (a)(4) or (a)(5) 

of this clause, as appropriate. 

(3) Comply with all CAS, including any 

modifications and interpretations indicated 

thereto contained in 48 CFR part 9905, in 

effect on the date of award of this contract 

or, if the Contractor has submitted cost or 

pricing data, on the date of final agreement 

on price as shown on the Contractor’s signed 

certificate of current cost or pricing data. The 

Contractor shall also comply with any CAS 

(or modifications to CAS) which hereafter 

become applicable to a contract or 

subcontract of the Contractor. Such 

compliance shall be required prospectively 

from the date of applicability to such contract 

or subcontract. 

(4)(i) Agree to an equitable adjustment as 

provided in the Changes clause of this 

contract if the contract cost is affected by a 

change which, pursuant to subparagraph 

(a)(3) of this clause, the Contractor is 

required to make to the Contractor’s 

established cost accounting practices. 

(ii) Negotiate with the Contracting Officer 

to determine the terms and conditions under 

which a change may be made to a cost 

accounting practice, other than a change 

made under other provisions of subparagraph 

(a)(4) of this clause; provided that no 

agreement may be made under this provision 

that will increase costs paid by the United 

States. 

(iii) When the parties agree to a change to 

a cost accounting practice, other than a 

change under subdivision (a)(4)(i) or (a)(4)(iv) 

of this clause, negotiate an equitable 

adjustment as provided in the Changes clause 

of this contract. 

(iv) Agree to an equitable adjustment as 

provided in the Changes clause of this 

contract, if the contract cost is materially 

affected by an OMB Circular A–21 

accounting principle amendment which, on 

becoming effective after the date of contract 

award, requires the Contractor to make a 

change to the Contractor’s established cost 

accounting practices. 

(5) Agree to an adjustment of the contract 

price or cost allowance, as appropriate, if the 

Contractor or a subcontractor fails to comply 

with an applicable Cost Accounting 

Standard, or to follow any cost accounting 

practice consistently and such failure results 

in any increased costs paid by the United 

States. Such adjustment shall provide for 

recovery of the increased costs to the United 

States, together with interest thereon 

computed at the annual rate established 

under section 6621(a)(2) of the Internal 

Revenue Code of 1986 (26 U.S.C. 6621(a)(2)) 

for such period, from the time the payment 

by the United States was made to the time 

the adjustment is effected. In no case shall 

the Government recover costs greater than 

the increased cost to the Government, in the 

aggregate, on the relevant contracts subject to 

the price adjustment, unless the Contractor 

made a change in its cost accounting 

practices of which it was aware or should 

have been aware at the time of price 

negotiations and which it failed to disclose 

to the Government. 

(b) If the parties fail to agree whether the 

Contractor or a subcontractor has complied 

with an applicable CAS or a CAS rule or 

regulation in 9903 and as to any cost 

adjustment demanded by the United States, 

such failure to agree will constitute a dispute 

under the Contract Disputes Act (41 U.S.C. 

601). 

(c) The Contractor shall permit any 

authorized representatives of the Government 

to examine and make copies of any 

documents, papers, or records relating to 

compliance with the requirements of this 

clause. 

(d) The Contractor shall include in all 

negotiated subcontracts which the Contractor 

enters into, the substance of this clause, 

except paragraph (b), and shall require such 

inclusion in all other subcontracts, of any 

tier, including the obligation to comply with 

all applicable CAS in effect on the 

subcontractor’s award date or if the 

subcontractor has submitted cost or pricing 

data, on the date of final agreement on price 

as shown on the subcontractor’s signed 

Certificate of Current Cost or Pricing Data, 

except that—

(1) If the subcontract is awarded to a 

business unit which pursuant to 9903.201–2 

is subject to other types of CAS coverage, the 

substance of the applicable clause set forth in 

9903.201–4 shall be inserted; and 

(2) This requirement shall apply only to 

negotiated subcontracts in excess of 

$500,000. 

(3) The requirement shall not apply to 

negotiated subcontracts otherwise exempt 

from the requirement to include a CAS clause 

as specified in 9903.201–1. 

(End of clause) 

[FR Doc. E7–11325 Filed 6–12–07; 8:45 am] 

BILLING CODE 3110–01–P 

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. 

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 industryfunded observer program in the Scallop 

FMP through a scallop total allowable 

catch (TAC) and days-at-sea (DAS) setaside program that helps vessel owners 

defray the cost of carrying observers. 

The following observer program 

management measures are implemented 

by this rule: Requirements for becoming 

an approved observer service provider; 

observer certification and decertification 

criteria; and notification requirements 

for vessel owners and/or operators. This 

action also requires scallop vessel 

owners, operators, or vessel managers to 

procure certified fishery observers for 

specified scallop fishing trips from an 

approved observer service provider. 

Additionally, this action allows 

adjustments to the observer program to 

be done through framework action. 

DATES: Effective June 12, 2007. 

ADDRESSES: Copies of Amendment 13, 

the public hearing document, and the 

Initial Regulatory Flexibility Analysis 

(IRFA), are available upon request from 

Paul J. Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Newburyport, MA 

01950. These documents are also 

available online at http:// 

www.nefmc.org. Amendment 13 is 

categorically excluded from the 

requirement to prepare an 

environmental assessment or an 

environmental impact statement. NMFS 

prepared a Final Regulatory Flexibility 

Analysis (FRFA), which is contained in 

the Classification section of the 

preamble of this final rule. Copies of the 

FRFA and the Small Entity Compliance 

Guide are available from the Regional 

Administrator, Northeast Regional 

Office, NMFS, One Blackburn Drive, 

Gloucester, MA 01930–2298, and are 

also available via the internet at 

http://www.nero.nmfs.gov. 

Written comments regarding the 

burden-hour estimate or other aspects of 

the collection-of-information 

requirement contained in this final rule 

should be submitted to the Regional 

Administrator at the address above and 

by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

202–395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Nordeen, Fishery Policy Analyst, 

phone 978–281–9272, fax 978–281–

9135. 

SUPPLEMENTARY INFORMATION: 

Background 

The Council adopted Amendment 13 

to the Scallop FMP on February 7, 2007, 

and submitted it to NMFS on February 

16, 2007, for review and approval. The 

Council developed Amendment 13 to 

permanently re-active the industryfunded scallop observer program 

implemented by NMFS via emergency 


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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 yearround closed areas under the Northeast 

(NE) Multispecies FMP is of particular 

concern because the scallop fishery is 

constrained by a fishery-specific TAC of 

yellowtail flounder, an overfished 

species, which is part of the stock-wide 

yellowtail flounder TACs set by the NE 

Multispecies FMP to achieve specified 

mortality targets for the species. 

Observer coverage is also needed to 

monitor interactions of the scallop 

fishery with endangered and threatened 

sea turtles. A proposed rule for 

Amendment 13 was published on April 

6, 2007 (72 FR 17076). The public 

comment period for the proposed rule 

ended on May 7, 2007. The notice of 

availability for the amendment 

published on March 19, 2007, and its 

required 60-day comment period closed 

on May 18, 2007. This rule implements 

management measures associated with 

the scallop observer program, which are 

described in detail below. 

Approved Management Measures 

In the proposed rule, NMFS requested 

comments on all proposed management 

measures. The approved management 

measures are discussed below; no 

measures in Amendment 13 were 

disapproved. Details concerning the 

development of these measures were 

presented in the preamble of the 

proposed rule and are not repeated here. 

Observer Service Provider Requirements 

Amendment 13 allows any entity to 

become an observer service provider if 

it meets the approval and 

responsibilities criteria. Potential 

observer service providers are required 

to submit an application containing 

detailed information such as contact 

information, description of past 

experience with placing individuals in 

remote field and/or marine 

environments, evidence of adequate 

insurance to cover injury, liability and 

accidental death for observers during 

employment, and proof of compensation 

for observers while employed that meet 

or exceed Department of Labor 

guidelines. Entities interested in being 

included on the list of NMFS-approved 

observer service providers are required 

to submit an application with the 

information described in the regulatory 

text of this action. Upon receipt of an 

application, NMFS will provide all 

potential observer service providers 

with an estimated number of observer 

sea days for the fishing year. 

Additionally, a planned schedule of 

observer deployments will be posted on 

this NOAA Web site: http:// 

www.nefsc.noaa.gov/femad/fsb/. NMFS 

will notify candidate observer service 

providers of their approval or 

disapproval within 15 days of its receipt 

of their applications. If approved, the 

observer service provider’s name will be 

added to the list of NMFS-approved 

observer service providers. 

Observer service providers will be 

required to comply with all observer 

support, deployment logistics and 

limitations, communication, training, 

reporting, and conflict of interest 

requirements in the regulatory text of 

this action. Observer service providers 

will also be responsible for setting the 

daily cost of observer coverage on a 

vessel. NMFS will continue to be 

responsible for determining the reduced 

DAS accrual rate and TAC for the setaside program to defray the cost of 

observer coverage through biennial 

specifications. This NMFS-approval 

process will maintain quality control of 

the data collected, but will not have 

potential conflicts with augmentation of 

appropriations law and policy. 

Amendment 13 implements a few 

minor changes from the observer service 

provider requirements implemented by 

NMFS in 2006 via emergency rule. The 

cost of training/certifying scallop 

observers is borne by NMFS. To 

facilitate cost-effective training/ 

certification, Amendment 13 requires a 

minimum class size of eight observers, 

which may be split among multiple 

observer service providers, to be 

enrolled in the scallop observer training 

class operated by the Northeast 

Fisheries Observer Program (NEFOP). 

Training classes with fewer than eight 

participants will be delayed until at 

least eight participants are enrolled. 

Amendment 13 also requires that an 

approved observer service provider 

maintain in its employ at least eight 

observers that had been certified 

through the scallop observer training 

class operated by NEFOP. The 

emergency rule required that an 

observer’s first deployment shall be on 

a Scallop Access Area trip and that the 

resulting data be edited and approved 

by NMFS prior to any further 

deployments. Specifying details of new 

observer’s first deployment was 

designed to provide the necessary 

oversight to ensure the collection of 

timely and accurate data. However, 

NEFOP has learned that requiring an 

observer’s first deployment and the 

resulting data be edited and approved 

by NMFS, prior to any further 

deployments, is sufficient for quality 

control, and that requiring an observer’s 

first deployment be on a Scallop Access 

Area trip may limit the availability of 

observers to provide coverage on scallop 

trips to open areas. Therefore, the 

requirement that an observer’s first 

deployment and the resulting data be 

edited and approved by NMFS, prior to 

any further deployments, is 

implemented in this action, but the 

requirement that an observer’s first 

deployment shall be on a Scallop 

Access Area trip is not. 

Observer Certification Requirements 

Amendment 13 requires that 

employees of observer service providers 

must meet the NMFS National 

Minimum Eligibility Standards 

available at http://www.st.nmfs.gov/st4/ 

nop/ and must pass the NEFOP training 

course and be physically and mentally 

capable of carrying out the 

responsibilities of an observer. NMFS 

has the authority to review observer 

certification and issue observer 

certification probation and/or 

decertification if warranted. One minor 

addition to the observer certification 

requirements implemented by 

emergency rule is that Amendment 13 

requires that all observers hold a current 

Red Cross (or equivalent) 

cardiopulmonary resuscitation/first aid 

certificate. 

Removal/Decertification Requirements 

Amendment 13 specifies criteria and 

protocols for removal of an observer 

service provider from the list of NMFSapproved 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. 


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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 setaside 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 setaside 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 § 648.14, paragraph (h)(17) is 

revised to include the correct crossreference. 

In § 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 MagnusonStevens 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 industryfunded 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 MagnusonStevens Act to rebuild overfished stocks 

within a specified time period. 


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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 reactivate 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 setaside 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 setaside 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. 


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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 


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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 MidAtlantic 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 collectionof-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. 

■ For the reasons set out in the 

preamble, 50 CFR part 648 is 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 § 648.10, paragraph (b)(4) is 

revised to read as follows: 

§ 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. 

* * * * * 


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■ 3. In § 648.11, paragraph (a) is revised, 

and paragraphs (g), (h), and (i) are added 

to read as follows: 

§ 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 atsea 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 § 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 § 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 § 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 § 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 § 648.60, is 

required to comply with the following 

notification requirement. For each 

scallop trip, the vessel owner, operator, 

and/or manager shall notify NMFS by 

telephone, using the phone number 

provided by the Regional Administrator 

in the Small Entity Compliance Guide, 

and provide the following information: 

Vessel name and permit number; 

contact name and number; date and 

time of departure; port of departure; 

area to be fished (either open areas or 

the specific Sea Scallop Access Area); 

and whether fishing as a scallop dredge, 

scallop trawl, or general category vessel. 

(3) Selection of scallop fishing trips 

for observer coverage. Based on 

predetermined coverage levels for 

various sectors of the scallop fishery 

that are provided by NMFS in writing to 

all observer service providers approved 

pursuant to paragraph (h) of this 

section, NMFS shall notify the vessel 

owner, operator, or vessel manager 

whether the vessel must carry an 

observer, or if a waiver has been 

granted, for the specified trip within 24 

hr of the vessel owner’s, operator’s, or 

vessel manager’s notification of the 

prospective trip, as specified in 

paragraph (g)(2) of this section. Any 

request to carry an observer may be 

waived by NMFS. All waivers for 

observer coverage shall be issued to the 

vessel by VMS so as to have on-board 

verification of the waiver. 

(4) Procurement of observer services 

by scallop vessels. (i) An owner of a 

scallop vessel required to carry an 

observer under paragraph (g)(3) of this 

section must arrange for carrying an 

observer certified through the observer 

training class operated by the Northeast 

Fisheries Observer Program (hereinafter 

NMFS/NEFOP certified) from an 

observer service provider approved by 

NMFS under paragraph (h) of this 

section. A list of approved observer 

service providers shall be posted on the 

NOAA/NEFOP Web site at http:// 

www.nefsc.noaa.gov/femad/fsb/. The 

owner, operator, or vessel manager of a 

vessel selected to carry an observer must 

contact the observer service provider 

and must provide at least 72-hr notice 

in advance of the fishing trip for the 

provider to arrange for observer 

deployment for the specified trip. 

(ii) An owner, operator, or vessel 

manager of a vessel that cannot procure 

a certified observer within 72 hr of the 

advance notification to the provider due 

to the unavailability of an observer, may 

request a waiver from NMFS from the 

requirement for observer coverage for 

that trip, but only if the owner, operator, 

or vessel manager has contacted all of 

the available observer service providers 

to secure observer coverage and no 

observer is available. NMFS shall issue 

such a waiver within 24 hr, if the 

conditions of this paragraph (g)(4)(ii) are 

met. 

(5) Owners of scallop vessels shall be 

responsible for paying the cost of the 

observer for all scallop fishing trips on 

which an observer is carried onboard 

the vessel, regardless of whether the 

vessel lands or sells sea scallops on that 

trip, and regardless of the availability of 

set-aside for an increased possession 

limit or reduced DAS accrual rate. The 

owners, operators, and/or managers of 

vessels that carry an observer may be 

compensated with a reduced DAS 

accrual rate for open area trips or 

additional scallop catch per day in 

access areas in order to help defray the 

cost of the observer, under the program 

specified in §§ 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. 


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(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) nonexempt 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 


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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 § 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 


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32558 Federal Register / Vol. 72, No. 113 / Wednesday, June 13, 2007 / Rules and Regulations 

substantially affected by the 

performance or nonperformance of the 

official duties of observer providers. 

(7) Removal of observer service 

provider from the list of approved 

observer service providers. An observer 

provider that fails to meet the 

requirements, conditions, and 

responsibilities specified in paragraphs 

(h)(5) and (h)(6) of this section shall be 

notified by NMFS, in writing, that it is 

subject to removal from the list of 

approved observer service providers. 

Such notification shall specify the 

reasons for the pending removal. An 

observer service provider that has 

received notification that it is subject to 

removal from the list of approved 

observer service providers may submit 

written information to rebut the reasons 

for removal from the list. Such rebuttal 

must be submitted within 30 days of 

notification received by the observer 

service provider that the observer 

service provider is subject to removal 

and must be accompanied by written 

evidence rebutting the basis for removal. 

NMFS shall review information 

rebutting the pending removal and shall 

notify the observer service provider 

within 15 days of receipt of the rebuttal 

whether or not the removal is 

warranted. If no response to a pending 

removal is received by NMFS within 30 

days of the notification of removal, the 

observer service provider shall be 

automatically removed from the list of 

approved observer service providers. 

The decision to remove the observer 

service provider from the list, either 

after reviewing a rebuttal, or 

automatically if no timely rebuttal is 

submitted, shall be the final decision of 

the Department of Commerce. Removal 

from the list of approved observer 

service providers may not prevent such 

observer service provider from obtaining 

an approval in the future if a new 

application is submitted that 

demonstrates that the reasons for 

removal are remedied. Certified 

observers under contract with an 

observer service provider that has been 

removed from the list of approved 

service providers must complete their 

assigned duties for any scallop trips on 

which the observers are deployed at the 

time the observer service provider is 

removed from the list of approved 

observer service providers. An observer 

service provider removed from the list 

of approved observer service providers 

is responsible for providing NMFS with 

the information required in paragraph 

(h)(5)(vii) of this section following 

completion of the trip. NMFS may 

consider, but is not limited to, the 

following in determining if an observer 

service provider may remain on the list 

of approved observer service providers: 

(i) Failure to meet the requirements, 

conditions, and responsibilities of 

observer service providers specified in 

paragraphs (h)(5) and (h)(6) of this 

section; 

(ii) Evidence of conflict of interest as 

defined under paragraph (h)(6) of this 

section; 

(iii) Evidence of criminal convictions 

related to: 

(A) Embezzlement, theft, forgery, 

bribery, falsification or destruction of 

records, making false statements or 

receiving stolen property; or 

(B) The commission of any other 

crimes of dishonesty, as defined by state 

law or Federal law, that would seriously 

and directly affect the fitness of an 

applicant in providing observer services 

under this section; 

(iv) Unsatisfactory performance 

ratings on any Federal contracts held by 

the applicant; and 

(v) Evidence of any history of 

decertification as either an observer or 

observer provider. 

(i) Observer certification. (1) To be 

certified, employees or sub-contractors 

operating as observers for observer 

service providers approved under 

paragraph (h) of this section must meet 

NMFS National Minimum Eligibility 

Standards for observers. NMFS National 

Minimum Eligibility Standards are 

available at the National Observer 

Program Web site: http:// 

www.st.nmfs.gov/st4/nop/. 

(2) Observer training. In order to be 

deployed on any scallop vessel, a 

candidate observer must have passed a 

NMFS/NEFOP Sea Scallop Fisheries 

Observer Training course. If a candidate 

fails training, the candidate shall be 

notified in writing on or before the last 

day of training. The notification will 

indicate the reasons the candidate failed 

the training. A candidate that fails 

training shall not be able to enroll in a 

subsequent class. Observer training 

shall include an observer training trip, 

as part of the observer’s training, aboard 

a scallop vessel with a trainer. A 

certified observer’s first deployment and 

the resulting data shall be immediately 

edited, and approved, by NMFS prior to 

any further deployments of that 

observer. 

(3) Observer requirements. All 

observers must: 

(i) Have a valid NMFS/NEFOP 

fisheries observer certification pursuant 

to paragraph (i)(1) of this section; 

(ii) Be physically and mentally 

capable of carrying out the 

responsibilities of an observer on board 

scallop vessels, pursuant to standards 

established by NMFS. Such standards 

are available from NMFS Web site 

specified in paragraph (g)(4) of this 

section and shall be provided to each 

approved observer service provider; 

(iii) Have successfully completed all 

NMFS-required training and briefings 

for observers before deployment, 

pursuant to paragraph (i)(2) of this 

section; and 

(iv) Hold a current Red Cross (or 

equivalent) cardiopulmonary 

resuscitation/first aid certification. 

(4) Probation and decertification. 

NMFS has the authority to review 

observer certifications and issue 

observer certification probation and/or 

decertification as described in NMFS 

policy found on the Web site at: 

http://www.nefsc.noaa.gov/femad/fsb/. 

(5) Issuance of decertification. Upon 

determination that decertification is 

warranted under paragraphs (i)(1) 

through (3) of this section, NMFS shall 

issue a written decision to the observer 

containing the decertification and to the 

approved observer service provider via 

certified mail at their most current 

address provided to NMFS. The 

decision shall identify whether a 

certification is revoked and shall 

identify the specific reasons for the 

action taken. Decertification is effective 

immediately as of the date of issuance, 

unless the decertification official notes 

a compelling reason for maintaining 

certification for a specified period and 

under specified conditions. 

Decertification is the final decision of 

the Department of Commerce. 

■ 4. In § 648.14, paragraph (h)(17) is 

revised and (i)(15) is added to read as 

follows: 

§ 648.14 Prohibitions. 

* * * * * 

(h) * * * 

(17) Fail to comply with the 

notification requirements specified in 

§ 648.11(g)(2) or refuse or fail to carry an 

observer after being requested to carry 

an observer by the Regional 

Administrator or Regional 

Administrator’s designee. 

* * * * * 

(i) * * * 

(15) Fail to comply with the 

notification requirements specified in 

§ 648.11(g)(2) or refuse or fail to carry an 

observer after being requested to carry 

an observer by the Regional 

Administrator or Regional 

Administrator’s designee. 

* * * * * 

■ 5. In § 648.51, paragraphs (c)(4) and 

(e)(3)(iii) are added to read as follows: 

§ 648.51 Gear and crew restrictions. 

* * * * * 


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Federal Register / Vol. 72, No. 113 / Wednesday, June 13, 2007 / Rules and Regulations 32559 

(c) * * * 

(4) A certified at-sea observer is on 

board, as required by § 648.11(g). 

* * * * * 

(e) * * * 

(3) * * * 

(iii) A certified at-sea observer is on 

board, as required by § 648.11(g). 

* * * * * 

■ 6. In § 648.55, paragraph (e)(31) is 

revised, and paragraph (e)(32) is added 

to read as follows: 

* * * * * 

§ 648.55 Framework adjustments to 

management measures. 

(e) * * * 

(31) Modifications to provisions 

associated with observer set-asides; 

observer coverage; observer deployment; 

observer service provider; and/or the 

observer certification regulations. 

(32) Any other management measures 

currently included in the FMP. 

* * * * * 

■ 7. In § 648.60, paragraph (a)(2) is 

revised to read as follows: 

§ 648.60 Sea scallop area access program 

requirements. 

(a) * * * 

(2) Vessels participating in the Sea 

Scallop Access Area Program must 

comply with the trip declaration 

requirements specified in § 648.10(b)(4) 

and vessel notification requirements 

specified in § 648.11(g) for observer 

deployment. 

* * * * * 

[FR Doc. 07–2928 Filed 6–8–07; 2:52 pm] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 070213033–7033–01] 

RIN 0648–XA75 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Yellowfin Sole by 

Vessels Using Trawl Gear in the Bering 

Sea and Aleutian Islands Management 

Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is closing directed 

fishing for yellowfin sole by vessels 

using trawl gear in the Bering Sea and 

Aleutian Islands management area 

(BSAI). This action is necessary to 

prevent exceeding the third seasonal 

allowance of the 2007 halibut bycatch 

allowance specified for the trawl 

yellowfin sole fishery category in the 

BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), June 10, 2007, through 

1200 hrs, A.l.t., July 1, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Hogan, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The third seasonal allowance of the 

2007 halibut bycatch allowance 

specified for the trawl yellowfin sole 

fishery category in the BSAI is 49 metric 

tons as established by the 2007 and 

2008 final harvest specifications for 

groundfish in the BSAI (72 FR 9451, 

March 2, 2007). 

In accordance with § 679.21(e)(7)(v), 

the Administrator, Alaska Region, 

NMFS, has determined that the third 

seasonal allowance of the 2007 halibut 

bycatch allowance specified for the 

trawl yellowfin sole fishery category in 

the BSAI has been reached. 

Consequently, NMFS is closing directed 

fishing for yellowfin sole by vessels 

using trawl gear in the BSAI. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of directed fishing for 

yellowfin sole by vessels using trawl 

gear in the BSAI. NMFS was unable to 

publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of June 7, 2007. 

The AA also finds good cause to 

waive the 30–day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.21 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: June 7, 2007. 

James P. Burgess, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 07–2927 Filed 6–8–07; 2:52 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 070209029–7118–02; I.D. 

112906A] 

RIN 0648–AU58 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Observer 

Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues a final rule to 

amend regulations implementing the 

North Pacific Groundfish Observer 

Program (Observer Program). This 

action is necessary to avoid expiration 

of these regulations on December 31, 

2007, and ensure uninterrupted 

observer coverage in North Pacific 

groundfish fisheries. This action is 

intended to promote the goals and 

objectives of the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

and the Fishery Management Plan for 

Groundfish of the Gulf of Alaska 

(FMPs). 

DATES: Effective on July 13, 2007. 

ADDRESSES: Copies of the final 

Environmental Assessment/Regulatory 

Impact Review/Final Regulatory 

Flexibility Analysis (EA/RIR/FRFA) 

prepared for this action may be obtained 

from the NMFS Alaska Region, P.O. Box 

21668, Juneau, AK 99802, Attn: Ellen 

Sebastian, and on the NMFS Alaska 


sroberts on PROD1PC70 with RULES