NE Region Observer Providers Emergency Rule

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contractor employees’’ includes the following
individuals:
(1) United States citizens or residents;
(2) Individuals hired in the United States
or its possessions, regardless of citizenship;
and
(3) Local nationals and third country
nationals where contract performance takes
place in a country where there are no local
workers’ compensation laws.
(b) In preparing the cost proposal, the
bidder/offeror shall use the following rates in
computing the cost for DBA insurance:
Services @[contracting officer insert
current rate] of compensation; or
Construction @[contracting officer insert
current rate] of compensation.
(c) Bidders/offerors shall compute the total
compensation (direct salary plus differential,
but excluding per diem, housing allowance
and other miscellaneous allowances) to be
paid to covered contractor employees and the
cost of the DBA insurance in their bid/offer
using the foregoing rate. Bidders/offerors
shall include the estimated DBA insurance
costs in their proposed total fixed price or
estimated cost. However, the DBA insurance
costs shall be identified in a separate line
item in the bid/proposal.

(End of provision)
652.228–75 and 652.228–76

[Removed]

13. Sections 652.228–75 and 652.228–
76 are removed.

■

Dated: June 6, 2006.
Corey M. Rindner,
Procurement Executive, Bureau of
Administration, Department of State.
[FR Doc. E6–9502 Filed 6–15–06; 8:45 am]
BILLING CODE 4710–24–P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 060608158–6158–01; I.D.
051806E]
RIN 0648–AU47

Fisheries of the Northeastern United
States; Atlantic Sea Scallop Fishery;
Emergency Rule

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SUMMARY: NMFS is implementing an
observer service provider program for
the Atlantic sea scallop (scallop) fishery
including criteria for becoming an
approved observer service provider,
observer certification criteria,
decertification criteria, and observer

16:45 Jun 15, 2006

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Effective from June 16, 2006
through December 13, 2006. Comments
must be received at the appropriate
address or fax number (see ADDRESSES)
by 5 p.m., local time, on July 17, 2006.
ADDRESSES: Written comments should
be submitted by any of the following
methods:
• Mail: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, One Blackburn Drive,
Gloucester, MA 01930. Mark the outside
of the envelope, ‘‘Comments on Scallop
Emergency Action.’’
• Email: [email protected]
• Fax: (978) 281–9135
• Electronically through the Federal
e-Rulemaking portal: http//
www.regulations.gov.
Written comments regarding the
burden-hour estimate or other aspects of
the collection-of-information
requirement contained in this proposed
rule should be submitted to the Regional
Administrator at the address above and
by e-mail to
[email protected], or fax to
(202) 395–7285.
FOR FURTHER INFORMATION CONTACT:
Peter W. Christopher, Fishery Policy
Analyst, 978–281–9288; fax 978–281–
9135.
DATES:

Since
1999, NMFS has required scallop
vessels operating in Sea Scallop Access
Areas (Access Areas) to pay for observer
coverage. The Scallop FMP requires
vessel owners to provide advance
notification to NMFS of upcoming
scallop trips. This information is used to
select trips on which an at-sea observer
will be deployed. Observers were
deployed through a contractual
arrangement between NMFS and an
observer provider until June 2004. The
contractual arrangement was not
renewed at that time because of

SUPPLEMENTARY INFORMATION:

National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
interim rule and request for comments.
AGENCY:

VerDate Aug<31>2005

deployment logistics. Through this
emergency rule, NMFS is re-activating
the industry-funded observer program
implemented under the Atlantic Sea
Scallop Fishery Management Plan
(FMP) through a scallop total allowable
catch (TAC) and days-at-sea (DAS) setaside program that helps vessel owners
defray the cost of carrying observers.
Under this emergency action, scallop
vessel owners, operators, or vessel
managers are required to procure
certified fishery observers for specified
scallop fishing trips from an approved
observer service provider. This
emergency rule maintains the existing
requirements for scallop vessel owners
to pay for observers whether or not
scallop TAC or DAS set-aside is
available.

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unresolved concerns regarding use of a
sole contractor to administer the
industry-funded observer program. The
prior contract arrangement had enabled
vessel owners to pay the observer
contractor directly for observer
deployments, with details of the
observer deployment requirements
specified through the contract. The
expiration of the contract arrangement
eliminated the mechanism that allowed
vessel owners to make these payments
and, in the absence of this contractual
program, NMFS did not require vessel
owners to pay for the cost of observers.
Thus, NMFS has not utilized the
observer set-aside program since 2004.
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, 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.
Through fiscal year (FY) 2005, the
Northeast Fisheries Science Center
(NEFSC) funded the necessary levels of
observer coverage in the sea scallop
fishery to evaluate bycatch of
groundfish and sea turtles by utilizing
observer funding that was carried over
from FY 2004. However, in FY 2006 the
NEFSC’s level of funding for the
observer program is sufficient to provide
only minimal observer coverage in the
scallop fishery. The NEFSC did not
receive its observer program budget
until February 2006 and has been
working to reconcile the shortfall ever
since. In April 2006 NMFS determined
that it could not reconcile the reduced
level of observer coverage in the scallop
fishery with available budget.
Consequently, without the program
established through this emergency rule,
observer coverage would be constrained
to levels below those recommended in
the Scallop FMP for precise estimates of
yellowtail flounder bycatch TAC in
Access Areas. In addition, the lower
level of coverage could make it more
difficult to monitor and estimate
interactions between the scallop fishery
and sea turtles in the Mid-Atlantic,
particularly during the June through
October period, when such interactions
are most likely.

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Despite the fact that the mechanism
that allowed vessel owners to make
payments for observer coverage became
inoperable in 2004, the New England
Fishery Management Council (Council)
has continued to establish specifications
for the fishery that include TAC and
DAS set-asides that could be harvested
on observed trips to offset the costs to
the industry of observer payments. The
existing scallop measures also specify
that the industry must pay for observers,
even if the set-asides have been
exhausted. Set-asides are specified in
the current scallop regulations, and in
proposed Framework 18 to the Scallop
FMP (71 FR 16091, March 30, 2006),
which is intended by the Council to
adjust the specifications for the 2006
and 2007 scallop fishing year. For
vessels fishing in the Area Access
Program, the Council has allocated a
portion of the total projected scallop
catch to defray the observer costs for
vessel owners. Scallop vessels that are
selected to carry observers will be
authorized to land additional scallops
on such trips to help offset the cost of
carrying the observer. Additional
scallops landed in excess of the amount
necessary to compensate for costs of
carrying an observer will be deducted
from the access area set-aside for
observers. A set-aside of DAS is also
allocated for scallop vessel owners who
pay for the cost of observers for
observed trips in open areas. The open
area DAS set-aside program is the same
as the TAC set-aside program, with the
exception that it allows DAS to accrue
at a reduced rate when a vessel carries
an observer, rather than providing
additional pounds of scallops to the
vessel to help defray the cost of carrying
the observer.
NMFS is implementing this
emergency final rule, pursuant to its
emergency action authority specified in
the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) at 16 U.S.C.
1855(c), because it is critical to enact a
program that will enable the industry to
utilize the observer set-aside specified
in the Scallop FMP no later than June
2006. The Area Access Program in the
NE Multispecies closed areas begins on
June 15th, with a requirement for
monitoring of yellowtail bycatch by
scallop vessels. Sea turtle interactions
with the scallop fishery are most
prevalent in the Mid-Atlantic between
June and October. The benefits of taking
emergency action through this final rule
without the opportunity for prior public
comment outweigh the adverse impacts
that could be expected if NMFS
proceeded under notice and comment

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rulemaking. The justification for this
emergency action is consistent with the
Policy Guidelines for the Use of
Emergency Rules (62 FR 44422, August
21, 1997) because the limited amount of
observer coverage for the scallop fishery
that is possible under the current
NEFSC funding situation is an
unforeseen circumstance that also
presents potentially serious
management problems to the fishery
that must be addressed as soon as
possible. The NEFSC did not receive its
observer program budget until February
2006 and NMFS determined in April
2006 that it could not reconcile the
reduced level of observer coverage in
the scallop fishery with available budget
and therefore initiated this emergency
rule. Much of the harvestable sea
scallop biomass is currently located
within areas closed to allow rebuilding
of groundfish stocks. In order to access
that scallop resource, the Area Access
Program established bycatch TACs for
the scallop fishery that maintain the
yellowtail flounder conservation
objectives of the NE Multispecies FMP.
Low levels of observer coverage for
scallop vessels fishing under the Area
Access Program would make it difficult
to monitor these yellowtail bycatch
TACs and to obtain data concerning the
scallop fishery’s interactions with sea
turtles.
This emergency action does not
impact other FMPs or fisheries in the
Northeast because other FMPs neither
require industry to fund observers nor
include provisions to defray the costs of
observers. Such programs would be
difficult, if not impossible, to administer
within the short timeframe statutorily
restricting emergency action under the
Magnuson-Stevens Act.
This emergency action re-activates the
industry-funded scallop observer
program. Scallop vessels are required to
procure observer coverage from a
NMFS-approved observer service
provider and to pay for the observer
coverage. This emergency rule
establishes criteria for being approved
by NMFS as an observer service
provider for the scallop fishery. Entities
interested in being included on the list
of NMFS-approved observer service
providers are required to submit an
application with the information
specified in the regulatory text of this
rule. Upon receipt of an application,
NMFS shall provide all potential
observer service providers with an
estimated number of observer sea days
for this fishing year under this program.
Additionally, a planned schedule of
observer deployments shall be posted
on this NOAA website http://
www.nefsc.noaa.gov/femad/fsb/. NMFS

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34843

will notify candidate observer service
providers of their approval or
disapproval within 15 days of NMFS’s
receipt of the application. This
emergency rule specifies observer
service provider requirements, as well
as observer requirements and
responsibilities to become certified as
an observer for the scallop fishery.
The scallop observer set-aside will
provide scallop vessel owners with
compensation for observer coverage up
to a specified limit, as specified in the
regulations for the scallop fishery. Once
the set-aside is exhausted, vessel owners
will no longer be compensated for
coverage but will still have to pay for
the cost of observers, as specified at
§§ 648.53(h)(1) and 648.60(d)(2).
Classification
The need to implement these
measures such that adequate observer
coverage is available to the scallop
fishery starting in June 2006, and to
avoid potential management problems,
constitutes good cause under authority
contained in 5 U.S.C. 553(d)(3), to waive
the 30–day delayed effective date, and
implement the emergency action upon
publication.
The emergency rule requires
immediate implementation because
without the measures in the emergency
rule, NMFS’s ability to monitor bycatch
of NE multispecies and endangered and
threatened sea turtles could be
compromised. The Access Areas open
on June 15 with yellowtail flounder
bycatch TACs that require close
monitoring. Reduced observer coverage
for scallop vessels fishing under the
Area Access Program particularly
hampers NMFS’s ability to monitor the
yellowtail flounder bycatch TACs,
which are a critical component of the
yellowtail flounder rebuilding program
under the NE Multispecies FMP. In
particular, the yellowtail flounder TAC
for the scallop fishery in the Access
Area within the Nantucket Lightship
Closed Area is only 31,544 lb (all catch,
including discards), which, given the
level of expected fishing effort in the
area, could be harvested quickly.
Without adequate observer coverage,
excessive yellowtail flounder catch
could result. Unless there is observer
coverage, NMFS may need to rely on
catch data from prior years to determine
when bycatch TACs are attained. Such
data may not be completely applicable
to the 2006 fishing year. This would
have immediate and/or long-term
negative impacts on the fishery
resources and the fishing industry due
to the implications of excessive harvest
levels of yellowtail flounder or closure
based on incomplete information. In

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addition, adequate observer coverage to
monitor interactions between the
scallop fishery and sea turtles is
particularly important during June
through October because this is when
the turtles are in the same areas that the
scallop fishery takes place.
NMFS did not initiate the emergency
action earlier because it was pursuing
other solutions to the observer coverage
problems, including possible changes to
budget allocations. NMFS determined
that the emergency rule was necessary
only after making the determination that
it could not provide sufficient observer
coverage in the scallop fishery through
any other mechanism. The NEFSC did
not receive its observer program budget
until February 2006, and NMFS
determined in April 2006 that it could
not reconcile the reduced level of
observer coverage in the scallop fishery
with available budget. Subsequently, the
Northeast Regional Administrator
informed the Council’s Executive
Director during a coordinating meeting
that because of the budgetary
constraints, NMFS would be looking for
an administrative solution to activate
the observer set-aside program. Since
there was no formal Council response,
NMFS proceeded with the emergency
rule. NMFS proceeded with this
emergency rule with the intention of
implementing the action in June 2006 to
ensure that adequate observer coverage
could be placed in the scallop fishery in
order to monitor yellowtail flounder and
sea turtle bycatch.
For these reasons described above, the
Assistant Administrator for Fisheries,
NOAA also finds it is impracticable and
contrary to the public interest to provide
for prior notice and an opportunity for
public comment under 5 U.S.C.
553(b)(B) prior to publishing the
emergency rule.
This emergency rule has been
determined to be not significant for
purposes of Executive Order 12866.
This emergency rule is exempt from
the procedures of the Regulatory
Flexibility Act because the rule is issued
without opportunity for prior notice and
opportunity for public comment.
This rule contains new collection-ofinformation requirements approved
under emergency Paperwork Reduction
Act by the Office of management and
Budget (OMB) under the paperwork
Reduction Act (PRA). These new
requirements apply to entities interested
in becoming NMFS-approved observer
service providers and to those observer
service providers approved by NMFS
and providing observer services to the
scallop fishery. Public reporting burden
for these collections of information are
estimated to average as follows:

VerDate Aug<31>2005

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1. Application for approval of
observer service provider, OMB control
number 0648- 0546 (10 hr per response);
2. Applicant response to denial of
application for approval of observer
service provider, OMB control number
0648–0546 (10 hr per response);
3. Observer service provider request
for observer training OMB ι0648–0546
(30 min per response);
4. Observer deployment report, OMB
control number 0648–0546 (10 min per
response);
5. Observer availability report, OMB
control number 0648–0546 (10 min per
response);
6. Safety refusal report, OMB control
number 0648–0546 (30 min per
response);
7. Submission of raw observer data,
OMB control number 0648–0546 (5 min
per response);
8. Observer debriefing, OMB control
number 0648–0546 (2 hr per response);
9. Biological samples, OMB control
number 0648–0546 (5 min per
response);
10. Rebuttal of pending removal from
list of approved observer service
providers, OMB control number 0648–
0546 (8 hr per response);
11. Vessel request to observer service
provider for procurement of a certified
observer, OMB control number 0648–
0546 (25 min per response); and
12. Vessel request for waiver of
observer coverage requirement, OMB
control number 0648–0546 (5 min per
response).
These estimates include the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
information.
Public comment is sought regarding
whether this collection of information is
necessary for the proper performance of
the functions of the agency, including
whether the information shall have
practical utility; the accuracy of the
burden estimate; ways to enhance the
quality, utility, and clarity of the
information to be collected; and ways to
minimize the burden of the collection of
information, including through the use
of automated collection techniques or
other forms of information technology.
Send comments on these or any other
aspects of the collection of information
to NMFS and to OMB (see ADDRESSES).
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.

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List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: June 14, 2006.
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.
§ 648.10

[Amended]

2. In § 648.10, paragraphs (b)(4)(ii)
through (iv) are suspended.
■ 3. In § 648.11, paragraphs (a)(1) and
(a)(2) are suspended, and paragraphs
(a)(3), (g), (h), and (i) are added to read
as follows:
■

§ 648.11 At-sea sea sampler/observer
coverage.

(a) * * *
(3) The Regional Administrator may
request any vessel holding a permit for
Atlantic sea scallops, NE multispecies,
monkfish, skates, Atlantic mackerel,
squid, butterfish, scup, black sea bass,
bluefish, spiny dogfish, Atlantic herring,
tilefish, or Atlantic deep-sea red crab; or
a moratorium permit for summer
flounder; to carry a NMFS certified
fisheries observer. A vessel holding a
permit for Atlantic sea scallops is
subject to the additional requirements
specified in paragraph (g) of this
section.
*
*
*
*
*
(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
paragraphs (g)(2) of this section, except
that scallop vessels issued Occasional
scallop permits not participating in the
Area Access Program specified in
§ 648.60 may provide the specified
information to NMFS by calling NMFS.

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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, or
the vessel 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)(2) 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 owner, operator, or vessel
manager has been notified that the
vessel has received a waiver of the
observer requirement for that trip
pursuant to paragraphs (g)(3) and (5) 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, a vessel issued a
limited access permit fishing in open
areas or in the Sea Scallop Area Access
program specified in § 648.60, or a
vessel issued a general category scallop
permit and fishing in the Sea Scallop
Area Access program specified in
§ 648.60, is required to comply with the
following notification requirements:
(i) Prior to the 25th day of the month
preceding the month in which fishing
for scallops is to take place, the vessel
owner or operator must submit, through
the VMS e-mail messaging system,
notice of its intention to fish for
scallops, along with the following
information: Vessel name and permit
number, owner and operator’s name,
owner and operator’s phone numbers,
and number of trips anticipated for open
areas and each Sea Scallop Access Area
or open area in which it intends to fish.
General category vessels are required to
submit this information only for Sea
Scallop Access Area trips. The e-mail
address shall be provided to vessels in
a Small Entity Compliance Guide issued
by the Regional Administrator. The
Regional Administrator may waive this
notification period if it is determined
that there is insufficient time to provide
such notification prior to a Sea Scallop
Access Area opening or beginning of the
fishing year. Notification of this waiver
of a portion of the notification period
shall be provided to the vessel through
a permit holder letter issued by the
Regional Administrator.
(ii) For each scallop trip, the vessel
owner, operator, or vessel manager shall
notify NMFS by telephone, using the
phone number provided by the Regional

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Administrator in the Small Entity
Compliance Guide, and provide the
following information: Vessel Name;
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 fishing as a scallop dredge, scallop
trawl or general category vessel.
(3) Selection of scallop fishing trips
for observer coverage. Based on
predetermined coverage levels for
various sectors of the scallop fishery
that are provided by NMFS in writing to
all observer service provider approved
pursuant to paragraph (h) of this
section, NMFS shall notify the vessel
owner, operator, or vessel manager
whether the vessel must carry an
observer, or if a waiver has been
granted, on the specified trip within 24
hours of the vessel owner’s, operator’s,
or vessel manager’s notification of the
prospective trip as specified in
paragraph (g)(2)(ii) of this section. Any
request to carry an observer may be
waived by NMFS. With the exception of
vessels issued a non-VMS general
category scallop permit that are fishing
in an access area, all waivers for
observer coverage shall be issued to the
vessel by VMS so as to have on-board
verification of the waiver. Waivers for
vessels issued a non-VMS general
category scallop permit will be issued
by fax, if possible, or by phone if no fax
number is available.
(4) Procurement of observer services
by scallop vessels. (i) An owner of a
scallop vessel required to carry an
observer under paragraph (g)(3) of this
section must arrange for carrying an
observer certified through the observer
training class operated by the Northeast
Fisheries Observer Program (herein after
NMFS/NEFOP certified) from an
observer service provider approved by
NMFS under paragraph (h) of this
section. A list of approved observer
service providers shall be posted on the
NOAA/NEFOP website at 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 hours
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 hours 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

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34845

service providers to secure observer
coverage and no observer is available.
NMFS shall issue such a waiver within
24 hours, if the conditions of this
paragraph (g)(4)(ii) are met.
(5) 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 DAS accrual rate. 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 the
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 the 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 by
notified of any such adjustments
through a letter.
(6) When the available DAS or TAC
set-aside for observer coverage is
exhausted, vessels shall still be required
to carry an observer as specified in this
section and shall be responsible for
paying for the cost of the observer,
unless otherwise waived by NMFS, 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

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posted on NMFS’s web page as specified
in paragraph (g)(4) of this section.
(2) Existing observer service providers.
Observer service providers that
currently deploy certified observers in
the Northeast must submit an
application containing the information
specified in paragraph (h)(3) of this
section, excluding any information
specified in paragraph (h)(3) of this
section that has already been submitted
to NMFS.
(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)(2) 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

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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 a
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 on
staff or a list of its training candidates
(with resumes) and a request for a
NMFS/NEFOP Sea Scallop Observer
Training class (minimum class size of
eight).
(x) Am 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 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 website specified in paragraph
(g)(4) of this section and in any outreach
information to the industry. Approved
observer service providers shall be
notified in writing and provided with
any information pertinent to its
participation in the sea scallop fishery
observer program.
(iii) An application shall be denied if
NMFS determines that the information
provided in the application is not
complete or the evaluation criteria are
not met. NMFS shall notify the
applicant in writing of any deficiencies
in the application or information

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submitted in support of the application.
An applicant who receives a denial of
his or her application may present
additional information 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 reconsidered for being added to the list of
approved observer service providers.
(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
rufuses to deploy an observer on a
requesting vessel for any of the reasons
specified at paragraph (viii) of this
section.
(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 website
specified in paragraph (g)(4) of this
section under the Sea Scallop Program,
prior to any deployment and/or prior to
NMFS observer certification training;
and
(D) Individually assigned
communication equipment, in working
order, such as a cell phone or pager, for
all necessary communication. An
observer service provider may
alternatively compensate observers for
the use of the observer’s personal cell
phone or pager for communications
made in support of, or necessary for, the
observer’s duties.
(iii) Observer deployment logistics.
Each approved observer service
provider must assign an available
certified observer to a vessel upon
request. Each approved observer service
provider must provide for access by

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industry 24 hours 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
shall be on a scallop closed area trip 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 hours 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
when, where, to whom, and to what
fishery (open or closed area) an observer
has been deployed, within 24 hours of
their departure. The observer service
provider must ensure that the observer
reports back to NMFS its Observer
Contract (OBSCON) data, as described

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in the certified observer training, within
12 hours 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 hours of
the trip landing.
(B) Safety refusals. The observer
service provider must report to NMFS
any trip that has been refused due to
safety issues, e.g., failure to hold a valid
USCG Commercial Fishing Vessel Safety
Examination Decal or to meet the safety
requirements of the observer’s pre-trip
vessel safety checklist, within 24 hours
of the refusal.
(C) Biological samples. The observer
service provider must ensure that
biological samples, including whole
marine mammals, 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,
including NMFS Office for Law
Enforcement, for debriefing for at least
two 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 by NMFS.
(E) Observer availability report. The
observer service provider must report to
NMFS any occurrence of inability to
respond to an industry request for
observer coverage due to the lack of
available observers on staff by 5 pm,
Eastern Standard Time, of any day on
which the provider is unable to respond
to an industry request for observer
coverage.
(F) Other reports. The observer
provider must report possible observer
harassment, discrimination, concerns
about vessel safety or marine casualty,
observer illness or injury, and any
information, allegations, or reports
regarding observer conflict of interest or
breach of the standards of behavior must
be submitted to NMFS within 24 hours
of the event or within 24 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 hours 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.

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34847

(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 pervious
observer deployments, provided the
observer service provider has received
prior written confirmation from NMFS
authorizing such refusal.
(6) Limitations on conflict of interest.
An observer service provider:
(i) Must not have a direct or indirect
interest in a fishery managed under
Federal regulations, including, but not
limited to, a fishing vessel, fish dealer,
fishery advocacy group, and/or fishery
research;
(ii) Must assign observers without
regard to any preference by
representatives of vessels other than
when an observer will be deployed; and
(iii) Must not solicit or accept,
directly or indirectly, any gratuity, gift,
favor, entertainment, loan, or anything
of monetary value from anyone who
conducts fishing or fishing related
activities that are regulated by NMFS, or
who has interests that may be
substantially affected by the
performance or nonperformance of the
official duties of observer providers.
(7) Removal of observer service
provider from the list of approved
observer service providers. An observer
provider that fails to meet the
requirements, conditions, and
responsibilities specified in paragraphs
(h)(5) and (h)(6) of this section shall be
notified by NMFS, in writing, that it is
subject to removal from the list of
approved observer service providers.
Such notification shall specify the
reasons for the pending removal. An
observer service provider that has
received notification that it is subject to
removal from the list of approved
observer service providers may submit
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 that clearly disproves the
reasons 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,
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 if no
rebuttal is submitted, shall be the final

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decision of NMFS and the Department
of Commerce. Removal from the list of
approved observer service providers
does not necessarily 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)(3) 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

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operating as observers for observer
service providers approved under
paragraph (h) of this section must meet
NMFS National Minimum Eligibility
Standards for observers. NMFS National
Minimum Eligibility Standards are
available at the National Observer
Program website: 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. Observer training shall
include an observer training trip, paid
for as part of the observer’s training,
aboard a scallop vessel with a trainer. A
certified observer’s first deployment
shall be on a scallop closed area trip 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 website
specified in paragraph (g)(4) of this
section and shall be provided to each
approved observer service provider; and
(iii) Have successfully completed all
NMFS-required training and briefings
for observers before deployment,
pursuant to paragraph (i)(2) of this
section.
(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 website at: http://
www.nefsc.noaa.gov/femad/fsb/.
(5) Issuance of decertification. Upon
determination that decertification is

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warranted under paragraph (i)(3) of this
section, NMFS shall issue a written
decision to decertify the observer to the
observer and approved observer service
providers via certified mail at the
observer’s 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
NMFS and the Department of Commerce
and may not be appealed.
■ 4. In § 648.51, paragraphs (c)(4) and
(e)(3)(iii) are added to read as follows:
§ 648.51

Gear and crew restrictions.

*

*
*
*
*
(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).
*
*
*
*
*
■ 5. In § 648.60, paragraphs (a)(2)(i) and
(ii) are suspended and paragraph
(a)(2)(iii) is added to read as follows:
§ 648.60 Sea scallop area access program
requirements.

(a) * * *
(2) * * *
(iii) Vessels participating in the Sea
Scallop Access Area Program must
comply with the trip declaration
requirements specified in § 648.11(g),
and each participating vessel owner or
operator shall declare a Sea Scallop
Access Area trip via VMS less than one
hour prior to the vessel leaving port, in
accordance with instructions provided
by the Regional Administrator.
*
*
*
*
*
[FR Doc. 06–5504 Filed 6–14–06; 1:03 pm]
BILLING CODE 3510–22–S

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