63460 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

■ B. In ALTERNATE I, revising the date 

to read NOV 2004, and removing ‘‘NPG’’

and adding ‘‘NPR’’ in its place.

1852.235–72 [Amended]

■ 18. Amend section 1852.235–72 by—

■ A. Revising the date of the clause to 

read NOV 2004; and

■ B. In paragraph (a)(4), removing 

‘‘NPG’’ and adding ‘‘NPR’’ in its place.

1852.242–73 [Amended]

■ 19. Amend section 1852.242–73 by—

■ A. Revising the date of the clause to 

read NOV 2004; and

■ B. In paragraph (a), removing ‘‘NPG’’

and adding ‘‘NPR’’ in its place.

1852.245–71 [Amended]

■ 20. Amend section 1852.245–71 by—

■ A. Revising the date of the clause to 

read NOV 2004; and

■ B. Revising ALTERNATE I to read as 

follows:

1852.245–73 Installation—Accountable 

Government Property.

* * * * *

Alternate I (NOV 2004) 

As prescribed in 1845.106–70(b)(4), 

substitute the following for paragraph 

(b)(1)(i) of the basic clause: 

(i) The contractor shall not utilize the 

installation’s central receiving facility 

for receipt of Contractor-acquired 

property. However, the Contractor shall 

provide listings suitable for establishing 

accountable records of all such property 

received, on a quarterly basis, to the 

Contracting Officer and the Supply and 

Equipment Management Officer.

[FR Doc. 04–24126 Filed 11–1–04; 8:45 am] 

BILLING CODE 7510–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648

[Docket No. 040809233–4289–02; I.D. 

080304B] 

RIN 0648–AR55

Fisheries of the Northeastern United 

States; Atlantic Sea Scallop Fishery 

and Northeast Multispecies Fishery; 

Framework 16 and Framework 39

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Final rule.

SUMMARY: NMFS implements 

concurrently Framework 16 to the 

Atlantic Sea Scallop Fishery 

Management Plan (Scallop FMP) and 

Framework 39 to the Northeast 

Multispecies FMP (Multispecies FMP) 

(Joint Frameworks) developed by the 

New England Fishery Management 

Council (Council). The Joint 

Frameworks establish Scallop Access 

Areas within Northeast (NE) 

multispecies Closed Area I (CAI), Closed 

Area II (CAII), and the Nantucket 

Lightship Closed Area (NLCA). The NE 

multispecies closed areas are closed 

year-round to all fishing that is capable 

of catching NE multispecies, including 

scallop fishing. The Joint Frameworks 

allow the scallop fishery to access the 

scallop resource within portions of the 

NE multispecies closed areas during 

specified seasons, and ensure that NE 

multispecies catches by scallop vessels 

are consistent with the Multispecies 

FMP. The Joint Frameworks also revise 

the Essential Fish Habitat (EFH) closed 

areas implemented under Amendment 

10 to the Scallop FMP (Amendment 10) 

in order to make the areas consistent 

with the EFH closures under the 

Multispecies FMP, as established by 

Amendment 13 to the Multispecies FMP 

(Amendment 13).

DATES: Effective November 2, 2004, 

except the amendments to 

§§ 648.10(b)(1)(iv); 648.59(b)(5)(ii), 

(c)(5)(ii), and (d)(5)(ii); and 648.60(g) 

which will be effective upon approval of 

reporting and recordkeeping 

requirements by OMB and upon 

subsequent publication in the Federal 

Register.

ADDRESSES: Copies of the Joint 

Frameworks, their Regulatory Impact 

Review (RIR), including the Initial 

Regulatory Flexibility Analysis (IRFA), 

and the Environmental Assessment (EA) 

are available on 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. NMFS prepared a Final 

Regulatory Flexibility Analysis (FRFA), 

which is contained in the Classification 

section of the preamble of this 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 estimates or other aspects 

of the collection-of-information 

requirements contained in this rule 

should be submitted to the Regional 

Administrator at One Blackburn Drive, 

Gloucester, MA 01930, and by e-mail to 

David_Rostker@omb.eop.gov, or fax to 

(202) 395–7285. 

Comments may also be submitted 

electronically through the Federal eRulemaking portal: http://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Peter W. Christopher, Fishery Policy 

Analyst, 978–281–9288; fax 978–281–

9135.

SUPPLEMENTARY INFORMATION: 

Background 

The Joint Frameworks were adopted 

by the Council on February 24, 2004. 

The Council initially submitted the Joint 

Frameworks and associated analyses on 

April 20, 2004, and a final revised 

submission was provided to NMFS on 

July 2, 2004. The Joint Frameworks were 

developed to establish Scallop Access 

Areas within the NE multispecies closed 

areas (CAI, CAII, and NLCA). The 

regulations that govern these NE 

multispecies closed areas prohibit 

fishing for scallops to prevent NE 

multispecies mortality, as scallop gear is 

capable of catching NE multispecies. 

The Scallop Access Area Program 

allows scallop vessels to have controlled 

access to these areas in order to harvest 

appropriately from the large biomass of 

scallops in the NE multispecies closed 

areas. 

Amendment 10, which was 

implemented by a final rule published 

June 23, 2004 (69 FR 35194) 

contemplated that a controlled access 

program for the NE multispecies closed 

areas would be incorporated into the 

area rotation program through 

scheduled openings of the areas. 

However, Amendment 10 did not 

include the detailed management 

measures, particularly with respect to 

NE multispecies bycatch, that were 

necessary to implement the access 

program under Amendment 10. In 

addition, in order to allow controlled 

access by scallop vessels to the NE 

multispecies closed areas, 

complementary action was necessary 

under the Multispecies FMP. In order to 

ensure that the management measures 

included in Amendment 13 and their 

environmental impacts were considered 

under the action to allow scallop fishing 

in the NE multispecies closed areas, the 

Council delayed action on the Joint 

Frameworks until Amendment 13 was 

completed by the Council (Amendment 

13 was implemented through a final 

rule published April 27, 2004 (69 FR 

22906)). As a result, the Council and 

NMFS ensured that the effects of 

allowing controlled access to the NE 

multispecies closed areas by the scallop 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63461

fleet would be fully considered in light 

of the overall impacts on NE 

multispecies under Amendment 13 and 

Amendment 10.

Finally, due to inconsistency between 

the Multispecies FMP and the Scallop 

FMP with respect to closures to protect 

EFH, the Joint Frameworks make the 

EFH closed areas the same in the 

Scallop FMP as in the Multispecies 

FMP. 

In the proposed rule, NMFS requested 

comment on all proposed measures, but 

specifically highlighted two issues 

about which NMFS had concerns. These 

were: Reallocation of Georges Bank (GB) 

yellowtail flounder (yellowtail) bycatch 

TAC to the Scallop Access Area 

Program after December 1 of each year; 

and dissemination of information by 

NMFS to trigger voluntary industry 

action to avoid bycatch. A discussion of 

these issues, including NMFS’s 

consideration of public comments on 

the issues, follows. 

1. Reallocation of GB Yellowtail Bycatch 

TAC 

This measure is being implemented 

through this final rule and is described 

in detail in Item 9 of this preamble. The 

measure requires that the Regional 

Administrator (RA) monitor catches of 

GB yellowtail reported by both scallop 

and NE multispecies vessels and, on or 

after December 1 each year, determine 

whether the GB yellowtail allocation for 

the Scallop Access Area can be 

increased without resulting in total 

catches above the overall allocation of 

GB yellowtail. NMFS expressed concern 

in the proposed rule that it may be too 

early in the multispecies fishing year, 

which begins on May 1 each year, to 

assess effectively the likelihood of 

attaining the overall GB yellowtail 

allocation; the NE multispecies fishery 

continues through April 30. In addition, 

NMFS stated that it may not be possible 

for the scallop fishery to utilize 

effectively an additional yellowtail 

allocation before the Scallop Access 

Areas close to scallop fishing on 

February 1 each year. NMFS received 

two comments in support of this 

measure; see comment 7 in the 

‘‘Comments and Responses’’ section of 

this final rule. After considering the 

Council’s rationale and public 

comments, NMFS has approved this 

measure because historical landings of 

yellowtail, including those in the 

current fishing year, could allow for 

projections in December, if data are 

found to be adequate. However, if data 

for projections are inadequate, the 

measure does not require an adjustment 

of the yellowtail bycatch TAC for the 

scallop fleet. Therefore, since this 

flexibility is built into the program, 

NMFS has included it in the measures 

implemented by this final rule. NMFS 

notes, however, that the timing of an 

adjustment is likely to limit additional 

catch of yellowtail and continuation of 

the scallop fishery to a very short 

period, since the Access Area season 

ends on January 31 of each year. 

2. Dissemination of Information by 

NMFS Triggering Voluntary Action by 

Industry To Avoid High Bycatch 

NMFS noted its concern in the 

proposed rule about a provision in the 

Joint Frameworks that encouraged 

NMFS to disseminate information on a 

real-time basis voluntarily provided by 

vessel operators about bycatch to the 

entire scallop fleet. The Council 

included the measure hoping that the 

scallop industry would avoid areas or 

times of high bycatch of yellowtail and 

other species and take voluntary action 

to reduce such bycatch based on 

information provided by vessel 

operators. While the Joint Frameworks 

document stated that either NMFS or 

the Council would distribute this 

information, the public comments on 

this measure indicate that commenters 

expect that NMFS would provide the 

full suite of information suggested by 

the Council (see Comment 8 in the 

‘‘Comments and Responses’’ section of 

this preamble). 

NMFS does not consider the Council’s 

request to implement this program to be 

a specific recommendation by the 

Council subject to approval or 

disapproval. Because the proposed 

system is merely a recommendation and 

is not fully developed, NMFS is not 

implementing this program at this time. 

The Council envisioned such a system 

would use the VMS units that are 

mandatory on scallop vessels. NMFS 

concludes that the costs of such 

dissemination of information to 

industry would be high and the benefits 

of such a voluntary program are 

uncertain. Although not included in any 

cost analysis in the EA, the cost of VMS 

messages is typically determined by the 

number of characters in the message. 

One 5-line message sent to all scallop 

vessels would cost thousands of dollars. 

To include sufficient information to be 

useful, messages about bycatch hotspots would need to be detailed. 

Whether the Council intended NMFS or 

the industry to pay for such messages, 

which was unspecified in the Joint 

Frameworks document, it is certain that, 

over the course of the fishing year, the 

cost of several messages would be 

substantial. NMFS recognizes that fullscale industry reaction to avoid bycatch 

could slow attainment of bycatch TACs 

and extend the scallop fishery. 

However, for such a program to be 

viable, more development is necessary, 

including full consideration of costs, 

benefits, regulatory requirements, full 

industry commitment, and incentives. 

Without such considerations, such a 

program cannot be expected to achieve 

its intended goals. Although NMFS is 

not required to and is not taking any 

specific action to follow the Council’s 

urging to disseminate bycatch 

information, NMFS intends to post 

landing, catch, and bycatch TAC reports 

on its web page. Such information will 

allow the industry to make adjustments 

in fishing practices. Finally, the scallop 

industry has full discretion to take 

voluntary action to avoid bycatch using 

information typically shared among 

vessels. 

Approved Management Measures 

The approved management measures 

that are applicable to the fishery within 

the Scallop Access Areas in CAI, CAII, 

and NLCA are summarized in Items 1–

13 below, and the remaining approved 

measures are described in Items 14–16. 

1. Scallop Access Areas 

Scallop Access Areas are 

implemented within portions of CAI, 

CAII, and NLCA. While the coordinates 

are specified in the regulations 

implemented by this final rule, the areas 

are generally described as the central 

portion of CAI, the southern portion of 

CAII, and the eastern portion of NLCA. 

The Scallop Access Areas are intended 

to focus scallop fishing in the most 

productive scallop areas to maximize 

scallop yield while minimizing bycatch 

of other species and impacts on EFH. 

2. Rotation of Access Areas 

Two of the three Scallop Access Areas 

will be open for access each fishing 

year. CAII and NLCA will be opened for 

the rest of the 2004 fishing year, 

followed by CAI and CAII in the 2005 

fishing year, and CAI and NLCA in the 

2006 fishing year. This cycle repeats 

beginning in the 2007 fishing year, 

unless modified by the Council through 

additional framework action or an 

amendment to the Scallop FMP. 

3. Number of Trips, DAS Charges, and 

Scallop Possession Limits 

The total DAS allocated for scallop 

Access Area fishing, the number of 

access trips into each area, the DAS 

charge per trip, and the scallop 

possession limit are specified for each 

Scallop Access Area. These measures 

are established for vessels issued 

limited access scallop permits according 

to permit category: Full-time, Part-time, 

63462 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

and Occasional. Vessels in each permit 

category are allocated a specific number 

of DAS for use in Scallop Access Areas, 

with a specified number of DAS charged 

for each area trip, regardless of actual 

trip length. In addition, the Joint 

Frameworks specify the maximum 

number of trips that can be made into 

any one Access Area, by vessel permit 

category. The Joint Frameworks also 

allocate a possession limit for trips into 

each Access Area.

The following tables provide the trip, 

DAS charges, and possession limits, by 

permit category and by year, through 

2006. The Hudson Canyon (HC) Access 

Area trip allocations, DAS charges, and 

possession limits are included in the 

table as part of the complete area 

rotation program implemented under 

Amendment 10. Part-time and 

Occasional scallop vessels have separate 

allocations for the HC Access Area in 

the 2004 fishing year because the 

possession limit and DAS charges are 

different between the Closed Area 

Access Areas and the HC Access Area.

TABLE 1.—TOTAL NUMBER OF ACCESS AREA TRIPS AND DAS CHARGE PER TRIP

Fishing year Access area 

Maximum 

trips per 

area and 

per vessel 

Total number of trips; and DAS charge per trip 

Full-time Part-time Occasional 

2004 ....................................... Closed Area II .................... 2 7 trips; 12 DAS ....... 2 trips; 11.2 DAS .... 1 trip; 7 DAS. 

Nantucket Lightship ............ 1

Hudson Canyon ................. 4 1 trip; 12 DAS ......... 1 trip; 12 DAS. 

2005 ....................................... Closed Area I ..................... 1 5 trips; 12 DAS ....... 2 trips; 12 DAS ....... 1 trip; 5 DAS. 

Closed Area II .................... 1

Hudson Canyon ................. 3

2006 ....................................... Closed Area I ..................... 1 2 trips; 12 DAS ....... 1 trip; 9.6 DAS ........ 1 trip; 2 DAS. 

Nantucket Lightship ............ 1

TABLE 2.—POSSESSION LIMITS BY AREA, FISHING YEAR, AND PERMIT CATEGORY

Fishing year Access area 

Possession limit 

Full-time Part-time Occasional 

2004 ............................... Closed Area II .................. 18,000 lb (8,165 kg) ........... 16,800 lb (7,620 kg) ........... 10,500 lb (4,763 kg). 

Nantucket Lightship 

Hudson Canyon 18,000 lb (8,165 kg) ........... 18,000 lb (8,165 kg). 

2005 ............................... Closed Area I ................... 18,000 lb (8,165 kg) ........... 18,000 lb (8,165 kg) ........... 7,500 lb (3,402 kg). 

Closed Area II 

Hudson Canyon 

2006 ............................... Closed Area I ................... 18,000 lb (8,165 kg) ........... 14,400 lb (6,532 kg) ........... 3,000 lb (1,361 kg). 

Nantucket Lightship 

4. Scallop TAC 

The management measures within the 

Scallop Access Areas are established to 

attain a target TAC of scallops as 

specified in the area rotation program 

established by Amendment 10. These 

TACs will be used to monitor fishing 

activity and determine whether to adjust 

fishing effort levels for future years. 

These TACs are also used to calculate 

TAC set-asides for research, observer 

coverage, and general category vessels. 

These TAC set-asides are established as 

absolute limits on the amount of 

scallops harvested during a specific 

activity, and that activity will cease 

when the set-aside TAC is attained. The 

overall target TACs for the scallop 

fishery are: (1) 8,395,203 lb (3,808 mt) 

for CAII and 7,718,384 lb (3,501 mt) for 

NLCA in the 2004 fishing year; (2) 

3,243,000 lb (1,471 mt) for CAI and 

7,698,542 lb (3,492 mt) for CAII in the 

2005 fishing year; and (3) 2,824,122 lb 

(1,281 mt) for CAI and 6,796,852 lb 

(3,083 mt) for NLCA in the 2006 fishing 

year. 

5. One-for-One Trip Exchanges 

The Joint Frameworks allow limited 

access vessels to exchange access area 

trips with other vessels. In the 2004 

fishing year, vessels are allowed to enter 

into agreements to exchange trips for 3 

months following implementation of the 

Joint Frameworks. After the 3-month 

period, vessel owners will not be 

allowed to negotiate exchanges of trips. 

In subsequent fishing years, owners may 

exchange trips until June 1 each year. 

Vessel owners are allowed to use trips 

authorized under the trip exchange 

program for the remainder of the fishing 

year. Because trip allocations, DAS 

charges, and possession limits differ 

between scallop permit categories, 

vessels must exchange only with vessels 

issued permits in the same scallop 

permit category. Since Occasional 

vessels are allocated only one trip, they 

are not eligible to exchange trips. 

6. General Category Access Provisions 

When reporting and recordkeeping 

requirements submitted to OMB for 

review have been approved, another 

final rule will be published to announce 

when vessels issued open-access general 

category scallop permits will be allowed 

to fish within the Scallop Access Areas 

subject to the restrictions specified 

below. This provision includes 

additional management restrictions in 

order to ensure accurate accounting of 

catch, and to ensure that general 

category fishing effort does not cause 

bycatch or excessive effort and mortality 

on scallops. The Joint Frameworks 

amend the Multispecies FMP to allow 

general category vessels to fish within 

the NE multispecies closed areas, where 

such fishing is otherwise prohibited. 

General category vessels are subject to 

the following restrictions: 

a. A possession limit of 400 lb (181.4 

kg) of shucked or 50 U.S. bushel (17.6 

hl) of in-shell scallops per trip. 

b. A set-aside TAC for general 

category vessels, equal to 2 percent of 

the overall scallop TAC for each Scallop 

Access Area, requiring general category 

vessels to stop fishing in the specific 

Scallop Access Area once the set-aside 

TAC is reached. The general category 

set-aside TACs for 2004, 2005, and 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63463

2006, are as follows: (1) 2004; 167,904 

lb (76 mt) in CAII and 154,368 lb (70 mt) 

in NLCA; (2) 2005; 64,860 lb in CAI and 

153,971 lb (70 mt) in CAII; and (3) 2006; 

56,482 lb in CAI and 135,937 lb (62 mt) 

in NLCA. 

c. A limit on the number of trips that 

the general category fleet can take into 

the Scallop Access Areas, requiring 

general category vessels to stop fishing 

in the specific Scallop Access Area once 

the total number of allowed trips is 

reached. The limits on the number of 

trips general category vessels may take 

for 2004, 2005, and 2006, are as follows: 

(1) 2004; 420 trips in CAII and 386 trips 

in NLCA; (2) 2005; 162 trips in CAI and 

385 trips in CAII; and (3) 2006; 141 trips 

in CAI and 340 trips in NLCA. 

d. A requirement to install and use a 

NMFS-certified VMS in order to notify 

NMFS when a vessel plans to fish in a 

Scallop Access Area. 

e. A prohibition on retaining or 

landing NE multispecies, with a 

requirement to report all catch of 

yellowtail, including discards, so that it 

can be counted against the yellowtail 

TAC for the scallop fishery. This 

restriction is consistent with the 

provisions for general category vessels 

fishing in other exempted fisheries 

under the Multispecies FMP. 

f. A requirement to carry at-sea 

observers when requested. 

g. VMS reporting of scallop and 

yellowtail catch to monitor fishery 

activity and bycatch. (These 

requirements are also required of 

limited access scallop vessels). 

h. A requirement that scallop dredge 

gear used within a Scallop Access Area 

be constructed with rings with a 

minimum diameter of 4 inches (10.2 

cm) (Amendment 10 imposed this 

requirement for General category vessels 

fishing in open areas, but delayed the 

implementation of the requirement until 

December 23, 2004). Dredge width for 

general category vessels cannot exceed 

10.5 ft (3.2 m).

Access by general category vessels is 

not effective upon publication of this 

rule because of compliance and 

reporting requirements that require time 

for this sector of the industry to 

purchase VMS units and prepare for 

new compliance requirements. In 

addition, NMFS is awaiting approval by 

OMB of the reporting and recordkeeping 

requirements associated with these 

provisions. Therefore, the Access Area 

restriction for general category vessels 

will be made effective on the date of 

publication in the Federal Register

indicating that OMB has approved the 

reporting requirements which will allow 

access and require compliance with the 

measures upon notification. 

7. Gear Restrictions 

Scallop vessels fishing within the 

Scallop Access Areas in CAI, CAII, and 

NLCA are required to use scallop dredge 

gear only. The minimum diameter for 

rings used in the scallop dredge is 4 

inches (10.2 cm). Amendment 10 

imposed the minimum ring size 

requirement for Limited Access vessels 

fishing in the HC Access Area, but 

delayed the requirement in the open 

areas until December 23, 2004. 

8. Scallop Access Area Season 

The CAI, CAII, and NLCA Scallop 

Access Areas are open to scallop fishing 

from June 15 through January 31 each 

year. 

9. Yellowtail Catch Limits 

The Scallop Access Area program is 

subject to a TAC for yellowtail set at 10 

percent of the total TAC established in 

Amendment 13 for each yellowtail 

stock. Two percent of this scallop 

fishery yellowtail bycatch TAC (i.e., 2 

percent of the 10-percent bycatch TAC, 

or 0.2 percent of the overall yellowtail 

TAC) is set aside for limited access 

scallop vessels to harvest during 

approved research, as described below. 

The TAC governing the Scallop Access 

Area fishery is, therefore, equal to 9.8 

percent of the overall yellowtail TAC for 

each stock. The following table specifies 

the yellowtail bycatch TAC and 

yellowtail research TAC set-aside.

Yellowtail stock Controlled access area Fishing year 

Access area bycatch TAC (10 

percent of total 

TAC) 

Controlled access fishery 

TAC (9.8 percent of total 

TAC) 

Research TAC 

Southern New England ................................ Nantucket Lightship ......... 2004 154,764 lb ........

(70.7 mt) 

152,780 lb ........

(69.3 mt) 

3,086 lb. 

(1.4 mt). 

2005 436,956 lb ........

(198.2 mt) 

428,138 lb ........

(194.2 mt) 

8,818 lb. 

(4.0 mt). 

2006 733,037 lb ........

(332.5 mt) 

718,266 lb ........

(325.9 mt) 

14,771 lb. 

(6.7 mt). 

GB ................................................................ Closed Area I and Closed 

Area II combined.

2004 1,322,774 lb .....

(600 mt) 

1,296,318 lb .....

(588 mt) 

26,455 lb. 

(12 mt). 

2005 (1) ...................... (1) ...................... (1) 

2006 (1) ...................... (1) ...................... (1) 

1To be updated annually according to the specifications procedure associated with the U.S./Canada Resource Sharing Understanding under 

the NE multispecies regulations. 

All scallop vessels (including general 

category vessels) fishing in the Scallop 

Access Areas are required to report all 

yellowtail catches (all catch, including 

discards) and all catch is counted 

toward the TAC. When the yellowtail 

TAC established for a Scallop Access 

Area is attained, the scallop fishery in 

the affected access area will be closed 

and any remaining access area trips will 

be redirected into open areas, as 

explained in Item 10 below. 

The Multispecies FMP established a 

TAC for yellowtail under the U.S./

Canada Resource Sharing 

Understanding in the Eastern U.S./

Canada Area, and the NE multispecies 

fishery within the area closes when the 

TAC is projected to be fully attained. If 

the U.S./Canada yellowtail TAC is fully 

attained, scallop trips within the 

Scallop Access Areas in the Eastern 

U.S./Canada Area (CAI and CAII) may 

continue, though retention of yellowtail 

will be prohibited, until the yellowtail 

catches by scallop vessels fully attain 

the scallop fishery’s yellowtail set-aside. 

At that time, the scallop fishery in the 

Scallop Access Areas will be closed and 

any remaining access area trips shall be 

redirected into open areas, as explained 

in Item 10 below. Any vessel that has 

declared and began a trip into the area 

for which the closure applies when the 

closure notice is made will be allowed 

to complete that trip. NMFS expects that 

projections of closure dates will ensure 

that remaining trips will not result in 

63464 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

the yellowtail bycatch TAC being 

exceeded. 

NMFS will monitor the landings of 

scallops and yellowtail through vessel 

VMS reports, dealer reports, and at-sea 

observer reports and take appropriate 

action based on projections of whether 

the yellowtail harvest will be achieved. 

If available information is sufficient to 

make a projection shortly after 

December 1 each year that the catch of 

yellowtail by scallop vessels fishing in 

the Scallop Access Area is below the 

yellowtail TAC set for the GB yellowtail 

stock, and if the overall GB yellowtail 

TAC is not projected to be harvested in 

the remainder of the fishing year, the 

RA may enact measures to increase the 

Scallop Access Area yellowtail TAC 

allocated to scallop vessels fishing in 

the Scallop Access Area. The yellowtail 

TAC may be increased only if such 

increase is not expected to cause the 

yellowtail TAC under the Multispecies 

FMP to be exceeded. 

The Joint Frameworks establish a setaside of 2 percent of the yellowtail TAC 

allocated for the Scallop Access Area for 

the harvest of yellowtail during research 

approved under the existing scallop 

research TAC set-aside program. If 

research fishing that is conducted 

within the Scallop Access Areas is 

approved, a small amount of yellowtail 

shall be allocated for catch by the 

vessels involved in the research activity. 

This is intended to enable researchers to 

conduct their activities, even if the 

overall yellowtail TAC has been 

attained. Without this research setaside, scallop research approved as part 

of the scallop TAC set-aside program 

would be prohibited if the Scallop 

Access Area were closed due to 

attainment of the yellowtail TAC.

10. Trip Re-allocation if Scallop Access 

Area Is Closed 

If the yellowtail TAC is fully attained, 

the Scallop Access Areas will be closed 

before limited access scallop vessels 

have taken all of their NE multispecies 

closed area access trips. If the scallop 

access areas are closed before vessels 

have taken all of their allocated trips in 

the area, limited access scallop vessels 

will be allowed to take the same number 

of unused NE multispecies closed area 

Access Area program trips in open 

areas, up to the lesser of the following: 

(1) The difference in the number of 

equivalent DAS allowed for the affected 

Access Area and the number of DAS 

charged to a vessel for trips taken into 

the affected Access Area; or (2) the 

difference between open area DAS 

allocations specified in this rule with 

access and the 2004 default DAS 

allocation or open area DAS allocations 

prior to implementation of the Joint 

Frameworks (i.e., DAS allocations 

without access to the NE multispecies 

closed areas as specified in Amendment 

10). The following table summarizes the 

maximum number of DAS that a vessel 

may fish in open areas if the Access 

Area closes prior to completion of all 

trips.

Permit category 2004 2005 2006

Open Area DAS prior to the Joint Frameworks ................... Full-time .............................................................................. 162 117 152

Part-time .............................................................................. 125 47 61

Occasional .......................................................................... 15 10 13

Open Area DAS under the Joint Frameworks ..................... Full-Time ............................................................................. 42 40 67

Part-time .............................................................................. 17 16 27

Occasional .......................................................................... 4 3 6

Difference in DAS allocations .............................................. Full-time .............................................................................. 20 77 85

Part-time .............................................................................. 8 31 34

Occasional .......................................................................... 1 7 7

Maximum number of additional DAS to be used in Open 

Areas after Access Area Closure.

Full-time .............................................................................. 20 24 24

Part-time .............................................................................. 8 24 9.6

Occasional .......................................................................... 1 5 2

Maximum number of additional DAS to be used in Open 

Areas after Access Area Closure, including traded trips.

Full-time .............................................................................. 20 60 24

Part-time .............................................................................. 8 48 9.6

Occasional .......................................................................... 1 5 2

1DAS implemented on September 15, 2004, under the default DAS adjustment as part of Amendment 10. 

The maximum number of DAS will 

only be available to a vessel if it has 

taken no trips in the Access Area prior 

to its closure. If a vessel has taken any 

trips into the Access Area, the 

maximum number of DAS that can be 

used in open areas will be deducted by 

the number of DAS charged for each trip 

in the Access Area. Trips acquired 

through a one-for-one trip exchange may 

also be used in open areas if a NE 

multispecies closed area Access Area 

closes. For example, a Full-time scallop 

vessel with two unused trips into the 

CAII Scallop Access Area in the 2004 

fishing year when the Access Area 

closes can fish an additional 20 DAS in 

open areas. A Full-time scallop vessel 

with one remaining trip into the CAII 

Scallop Access Area in the 2004 fishing 

year when the Access Area closes can 

fish an additional 12 DAS in open areas. 

If a vessel owner has increased the 

number of trips that his/her vessel may 

take in a Scallop Access Area through 

one-for-one trips exchanges with other 

vessel owners, the vessel may also use 

those trips in open areas when the 

Scallop Access Area fishery in a NE 

multispecies closed area has closed. For 

example, a Full-time scallop vessel that 

has traded away two HC trips and 

received two additional CAII trips in 

2005 could fish up to 48 additional DAS 

in the open areas if the CAII Scallop 

Access Area fishery closes before the 

vessel has taken any trips in CAII. 

11. Finfish Possession Limits 

Limited access scallop vessels fishing 

in a Scallop Access Area are restricted 

to a possession limit of 1,000 lb (453.6 

kg) of all NE multispecies combined, 

including a maximum of 100 lb (45.4 kg) 

of cod, provided it is retained for 

personal use only. No cod may be sold 

from a scallop vessel participating in the 

Access Area program, and all cod 

possessed on board must be head-on 

and gutted for ease of enforcement. 

Limited Access scallop vessels are 

restricted to existing possession limits 

for haddock, monkfish, and yellowtail. 

As explained above, yellowtail is further 

managed through the establishment of 

Scallop Access Area TACs, and 

possession of yellowtail will be 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63465

prohibited when those TACs are 

attained. 

12. At-Sea Observer Coverage 

One percent of the scallop target TAC 

is set aside and available to help defray 

the cost of at-sea observers deployed on 

scallop vessels. Observers will collect 

information on catch and discards of 

scallops and other species including 

incidental catch of other finfish and sea 

turtles. Observer reports will provide 

information that will be used to monitor 

the yellowtail catch relative to the TAC 

for yellowtail, and for estimation of 

bycatch of other finfish and sea turtles. 

Vessels are allowed to catch extra 

scallops under the TAC set-aside, to 

help pay for the cost of carrying an 

observer on the vessel. This measure 

mirrors the observer set-aside 

established in Amendment 10, and is 

part of the Council’s standardized 

bycatch reporting methodology. 

The amount of observer coverage 

resulting from the 1-percent TAC is 

estimated to provide observer coverage 

for approximately 9–20 percent of trips 

allocated in CAI, 12–19 percent of the 

trips taken in CAII, and 11–25 percent 

of the trips taken in the NLCA. The 

Council estimated that this amount of 

observer coverage would reduce 

variability in bycatch estimates for 

yellowtail, other finfish, and sea turtles, 

in order to provide more accurate and 

statistically sound bycatch estimates 

than would otherwise be achieved 

without the additional coverage. 

13. Expanded Reporting Requirements 

All scallop vessels fishing in the 

Scallop Access Areas are required to 

report their catches (landings and 

discards) of scallops and yellowtail 

using VMS. Yellowtail reporting is 

critical to ensure accurate monitoring of 

the yellowtail TACs. The reports will be 

submitted via VMS on a daily basis. 

14. Modified EFH Closure Areas 

Amendment 10 established some 

areas within the NE multispecies closed 

areas as EFH closed areas in order to 

protect EFH from adverse effects of 

scallop fishing. This action modifies 

those areas to make them identical to 

those implemented under Amendment 

13. These areas, some of which extend 

beyond the boundaries of the NE 

multispecies closed areas, are intended 

to more effectively protect EFH by 

establishing consistent area closures 

under the Scallop and Multispecies 

FMPs. 

15. DAS Allocation Changes

Amendment 10 established a default 

measure to increase the DAS allocated 

to limited access scallop vessels fishing 

in open areas, which took effect 

September 15, 2004. The Joint 

Frameworks include a measure that 

specifies that vessels that use any of 

these additional DAS are prohibited 

from fishing in any Scallop Access Area 

until March 1, 2005. Vessels owners 

who have not used any of the additional 

DAS allocated on September 15, 2004, 

are eligible to fish in the Scallop Access 

Areas, which voids the allocation of the 

additional DAS in the open areas. 

16. Corrections and Clarifications 

This final rule includes corrections 

and clarifications to the scallop 

regulations, and a new prohibition on 

the sale of scallops and multispecies 

from federally permitted vessels to 

dealers that have not been issued 

Federal dealer permits. This prohibition 

clarifies that it is illegal for crew 

members of federally permitted vessels 

to sell scallops and multispecies to 

dealers that have not been issued 

Federal dealer permits. 

Comments and Responses 

NMFS received five comment letters 

on the Joint Frameworks, from three 

individuals, the Council, an industry 

representative, and the State of Maine. 

The comments raised concerns 

regarding general category provisions, 

impacts on multispecies vessels fishing 

in the multispecies closed area Access 

Areas, and overall provisions of the 

Joint Frameworks. No responses are 

included for comments that pertained to 

aspects of the Scallop FMP that were 

not measures included in the proposed 

rule (including alternative area rotation 

schemes, evaluation of scallop dredge 

ring size, scientific basis for scallop 

management under Amendment 7 to the 

Scallop FMP, one-to-one trip exchanges, 

DAS and possession limit charges in 

access areas, and industry review of 

recorded observer data). 

Comment 1: One commenter did not 

specifically address the proposed 

action, but rather indicated general 

support for marine protected areas, 

reduction of commercial quotas in 

general, better enforcement of fisheries 

regulations, and the need for protection 

of the public fishery resource. 

Response: Although NMFS 

acknowledges the importance of the 

issues raised by the commenter, they do 

not specifically relate to the proposed 

rule. The Joint Frameworks are intended 

to complete the area rotation program 

approved and implemented as part of 

Amendment 10 by allowing controlled 

scallop fishing within the NE 

multispecies closed areas. In addition, 

the Joint Frameworks rectify an 

inconsistency between the Multispecies 

FMP and Scallop FMP with respect to 

EFH closed areas by making the areas 

the same in each FMP. 

Comment 2: One individual 

commented that the Joint Frameworks 

do not address market considerations 

for 20- to 40-count scallops because the 

Scallop FMP strives to achieve harvest 

of only the largest scallops. 

Response: The Joint Frameworks, and 

fishery management in general under 

the Magnuson-Stevens Act, are not 

designed to control or manage market 

conditions. The area rotation program, 

expanded by the Area Access Program 

included in the Joint Frameworks, 

strives to achieve (OY) from the scallop 

resource as required by the MagnusonStevens Act. 

Comment 3: One individual 

questioned why water temperature and 

lunar tide cycles were not considered in 

determining seasons for the NE 

multispecies closed area access 

program. 

Response: The commenter does not 

explain how or why these factors should 

have been used to determine access 

program seasons. NMFS is unaware of 

any studies on these environmental 

conditions that would enable or require 

the Council to incorporate these factors 

into management programs for scallops 

or NE multispecies. 

Comment 4: One individual 

commented that vessels should be 

allowed to sell all marketable fish 

caught during scallop fishing as a way 

to reduce bycatch, and stated that the 

1,000 lb (453.6 kg) possession limit for 

multispecies does not promote bycatch 

reduction in the scallop fishery. 

Response: Allowing landing of all 

marketable fish could promote nonselective fishing and result in higher 

fishing mortality on NE multispecies 

stocks. The 1,000 lb (453.6 kg) 

possession limit for multispecies is 

intended to encourage scallop vessels to 

stay away from high concentrations of 

yellowtail and other multispecies, 

thereby reducing bycatch and slowing 

or preventing attainment of the 

yellowtail bycatch TAC by the scallop 

fishery. 

Comment 5: One individual 

questioned whether vessels issued a NE 

multispecies permit and a general 

category scallop permit fishing within a 

NE multispecies Special Access 

Program (SAP) that overlaps with a 

scallop Access Area would be 

constrained by the restrictions on 

general category vessels included in the 

Joint Frameworks. 

Response: In the provisions 

applicable to vessels with general 

category scallop permits, the Council 

63466 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

made no distinction for vessels fishing 

for multispecies in an approved SAP 

that overlaps with a Scallop Access 

Area. Therefore, in any scallop fishing 

year that a NE multispecies closed area 

Scallop Access Area is open to scallop 

fishing, all general category vessels must 

comply with the Scallop Access Area 

provisions and requirements, and are 

subject to a limit on the number of trips 

taken and scallop TAC that can be 

harvested. A vessel with both a general 

category scallop permit and a 

multispecies permit that is fishing in a 

SAP may elect not to enroll in the 

Scallop Area Access Program, but may 

not harvest any scallops during that trip. 

In any scallop fishing year that a NE 

Multispecies closed area Scallop Access 

Area is closed to scallop fishing, a 

multispecies vessel issued a general 

category permit and fishing in an 

approved SAP that overlaps with the 

Scallop Access Area may possess, 

retain, and land up to 400 lb (181.4 kg) 

of scallops on each trip. NMFS has 

made changes to the regulations in the 

proposed rule to clarify this; these 

changes are explained in the ‘‘Changes 

from Proposed to Final Rule’’ portion of 

the preamble of this final rule. 

Comment 6: While the State of Maine 

Department of Marine Resources (DMR) 

commented in favor of the Joint 

Frameworks as a whole, it expressed 

concern about restrictions on general 

category vessels. DMR commented that 

the VMS requirement for general 

category scallop vessels should be 

accompanied with a possession limit 

increase to 800 lb (362.9 kg) for trips 

over 24 hours to help absorb the cost of 

the VMS units. DMR also commented 

that the amount of TAC set-aside of 

scallops available to general category 

scallop vessels should be increased from 

2 percent to 5 percent because allocating 

98 percent of the TAC to limited access 

vessels is excessive. Finally, DMR 

commented that allowing limited access 

scallop vessels to possess up to 100 lb 

(45.4 kg) of cod per trip is not 

appropriate, given the poor stock status 

of GB cod, and that it is discriminatory 

because such personal use provision is 

not allowed for any other fishery, 

including the general category scallop 

fishery. 

Response: NMFS does not have the 

discretion to implement a higher general 

category possession limit or to modify 

the TAC set-aside allocation because it 

can only approve or disapprove 

measures submitted by the Council in 

this framework action. NMFS’s review 

of the Council’s analysis in the EA 

indicates that the 400 lb (181.4 kg) 

possession limit will provide 

compensation for costs of the VMS units 

on only a few trips, should general 

category vessels fish in the Access 

Areas. The general category possession 

restrictions are consistent with other 

exemptions for general category vessels 

under the Multispecies FMP. The 

Council adequately justified that the 100 

lb (45.4 kg) possession limit of cod 

would help minimize discards of cod 

and would have negligible impact on 

the cod stocks and goals and objectives 

of the Multispecies FMP.

Comment 7: The Council and an 

industry representative commented in 

favor of the GB yellowtail TAC 

adjustment procedure that authorizes 

the RA to increase the GB yellowtail 

TAC for scallop vessels participating in 

the Scallop Access Area program on or 

after December 1 each year. The Council 

stated that the rationale and analysis in 

the Joint Frameworks document 

demonstrated that an adjustment on or 

after December 1 of a fishing year could 

be reasonably made. The Council 

reiterated that the rationale included 

considerations of the progress of the 

CAII Yellowtail SAP (which has already 

been closed to fishing for the remainder 

of the 2004 fishing year); anticipated 

seasonal patterns in yellowtail flounder 

catches under Amendment 13; and 

effects on levels of yellowtail TAC in 

subsequent years. The industry 

representative noted that the provision 

enables the RA to use discretion 

concerning the adequacy of the data 

used to make any projection and to 

decline to make an adjustment if 

information is insufficient. The industry 

representative stated that, if the overall 

GB yellowtail TAC is underutilized by 

the multispecies fleet, the adjustment 

process would provide for additional 

harvest of scallops within this 

conservative management scheme. 

Therefore, the industry representative 

urged NMFS to approve the measure. 

Response: After considering these 

comments, NMFS has determined that 

sufficient discretion is given to the RA 

to adjust or maintain the yellowtail TAC 

level for scallop vessels based on the 

sufficiency of information available at 

the time. Historical and current 

multispecies fishery status demonstrates 

that, in some years, sufficient 

information may exist for the RA to 

determine whether or not to adjust the 

TAC; the RA is under no obligation to 

make the adjustment if data are 

insufficient. Although NMFS is 

concerned that scallop vessels may have 

very little time left in the Access Area 

season to utilize additional TAC if it is 

adjusted in December, it has approved 

the measure and included it in this final 

rule. 

Comment 8: The Council and the 

industry representative commented in 

favor of the request for NMFS to 

disseminate information to trigger 

voluntary action by the scallop industry 

to avoid bycatch. The Council 

questioned the lack of regulatory 

language in the proposed rule regarding 

the measure, but acknowledged the 

difficulty in drafting a regulation for a 

voluntary program. Nevertheless, the 

Council urged NMFS to disseminate 

bycatch-related information as 

frequently as necessary via letter to 

permit holders and notices to mariners. 

The Council commented that such 

action could go a long way to help the 

Scallop FMP achieve OY, by giving 

vessels information they need to avoid 

high catches of yellowtail and prevent 

attainment of the bycatch TAC. The 

industry representative commented that 

the dissemination of information 

through VMS is a responsibility of 

NMFS, and that such information is 

necessary to ensure that the fishery 

achieves OY. The commenter stated 

that, if NMFS does not make such data 

available, it will hinder responsible, 

careful harvesting of scallops that 

underpinned the 1999 and 2000 access 

programs. The commenter stated that 

the costs of not minimizing yellowtail 

bycatches would be enormous, and 

urged NMFS to undertake efforts to 

implement such real-time alerts because 

the measures will benefit the industry 

over time. However, the commenter 

concluded by recognizing the difficulty 

in initiating such measures and noted 

that the Access Area Program is more 

important to industry than this 

proposed voluntary program. 

Response: NMFS does not consider 

the Council’s request to disseminate 

bycatch information to be a specific 

measure in the Joint Frameworks that is 

subject to approval or disapproval. 

Therefore, in exercising its discretion, 

NMFS has determined that this 

provision would have excessive costs 

and minimal benefits, for reasons 

outlined thoroughly in the preamble 

section of this final rule. NMFS 

encourages voluntary action by industry 

to reduce bycatch but will not establish 

a program to disseminate the 

information recommended by the 

Council at this time. 

Comment 9: An industry 

representative urged NMFS to enact the 

Area Access Program so that access to 

the NE multispecies closed areas can 

occur this fishing year. The commenter 

noted several aspects of the program 

that he stated should be reconsidered in 

the future: Reconsideration of allowing 

access to only two of the three NE 

multispecies closed areas per year; the 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63467

target fishing mortality rate for the Area 

Access Program; the effects of the long 

term closure status of the NE 

multispecies closed areas on 

appropriate scallop fishing mortality 

rates; seasons for accessing the NE 

multispecies closed areas; bycatch rates 

in the general category vessel sector; 

and elimination of the limitation on the 

period allowed for one-for-one exchange 

of Access Area trips. 

Response: The measures proposed by 

the Council as part of the Joint 

Frameworks have been approved and 

are implemented through this final rule. 

Some measures that the commenter 

highlighted were also adopted as part of 

Amendment 10. NMFS notes that any 

changes would have to be developed by 

the Council in a future Scallop FMP 

amendment or framework. 

Comment 10: An industry 

representative commented that 

authorization of a compensation trip for 

a broken trip in an Access Area should 

not be at the discretion of the Regional 

Administrator and that all broken trip 

requests should be granted an 

authorized compensation trip. 

Response: This final rule provides 

that a trip may be terminated for any 

reason, as deemed necessary by the 

owner or operator. The provision 

designed by the Council requires NMFS 

to review landings from trips terminated 

early in order to determine the scallop 

possession limit for the compensation 

trip. 

Comment 11: An industry 

representative commented that general 

category vessels should be restricted to 

using only dredge gear in the Scallop 

Access Areas. 

Response: The restrictions on general 

category vessels as proposed by the 

Council were intended to be consistent 

with the provisions of the Gulf of Maine 

Scallop Dredge Exemption Area 

included in the Multispecies FMP 

regulations. NMFS has reviewed these 

provisions, agrees with the comment, 

and has made appropriate changes in 

this final rule to be consistent with the 

Council’s intent, as specified in section 

4.1.3 of the document supporting the 

Joint Frameworks (see ADDRESSES). 

Comment 12: An industry 

representative commented that the 

system to re-allocate trips when the 

yellowtail bycatch TAC is harvested for 

an area does not appropriately account 

for traded trips and is not an accurate 

representation of the system approved 

by the Council. 

Response: NMFS has reviewed the 

Council’s document and has compared 

it to the system included in the 

proposed rule, and concludes that the 

commenter has raised valid concerns. 

The program recommended by the 

Council, and described in section 

4.1.4.1 of the document supporting the 

Joint Frameworks (see ADDRESSES), 

included a provision to use a maximum 

number of unused Access Area trips in 

open areas, up to a maximum amount of 

DAS, including trips acquired through 

one-for-one trip exchanges. NMFS has 

made revisions to the regulations in the 

proposed rule to accurately implement 

the measure as adopted by the Council. 

The changes are explained in the 

‘‘Changes from Proposed Rule to Final 

Rule’’ section of this final rule. 

Comment 13: An industry 

representative commented that the trip 

notification requirements for vessels 

participating in the Area Access 

Program are unnecessarily complex and 

not necessary. In particular, the 

commenter suggested elimination of the 

requirement that vessel owners notify 

NMFS of potential access area trips by 

the 25th day of the month preceding the 

month in which the trips would be 

taken.

Response: The notification 

requirements have been part of the Area 

Access Program since its creation. The 

Council may revise or eliminate these 

notification requirements in the future if 

they are deemed to be no longer 

necessary. Currently, the information is 

necessary to allow for planning of 

observer deployment in the scallop 

fishery. Therefore, the notification 

requirement remains in this final rule as 

part of the Area Access Program, as 

approved under Amendment 10. 

Comment 14: An industry 

representative commented that the VMS 

restrictions for general category vessels 

provide an additional opportunity to 

these vessels to participate in the Area 

Access Program in the NE multispecies 

closed areas. 

Response: A detailed response to this 

comment is provided in the response to 

comments section of the FRFA in the 

preamble of this final rule. In summary, 

the IRFA supports the statements of the 

commenter because it concludes that 

the costs of requiring VMS on general 

category vessels would be offset by the 

benefits of gaining access to the NE 

multispecies closed areas. 

Comment 15: The Council 

commented that the proposed rule 

misrepresented the observer coverage 

provision approved by the Council. 

Specifically, the proposed rule specified 

that NMFS would provide and fund atsea observers on 5 percent of the trips 

in the NE multispecies closed areas, and 

implies that coverage levels from TAC 

set-aside would be 4, 0, and 7 percent 

of the trips in CAI, CAII, and the NLCA, 

respectively. The Council commented 

that the approved provision excluded 

the NMFS-funded coverage and that the 

TAC set-aside would cover 

approximately 9–20 percent, 12–19 

percent, and 11–25 percent of the trips 

in CAI, CAII, and the NLCA. 

Response: Although the Joint 

Frameworks document did not present 

this information clearly, NMFS has 

concluded that the Council’s comment 

is correct. The Council’s specified 

coverage levels are reflected in the 

preamble of this final rule. 

Comment 16: The Council and an 

industry representative provided 

suggestions on how to clarify the 

regulations in this final rule. 

Response: Those changes that NMFS 

agreed are necessary and appropriate are 

described in the ‘‘Changes from 

Proposed Rule to Final Rule’’ section of 

the preamble of this final rule. The 

following suggested changes were not 

made for the reasons described below. 

Comment 16a: An industry 

representative commented that the 

haddock possession limit described in 

§ 648.60(a)(5)(ii)(B) unnecessarily 

constrains the haddock possession limit 

outside of the Access Area seasons and 

appears to place no other limit on the 

possession of haddock. 

Response: The period when haddock 

possession is prohibited for scallop 

dredge vessels under the NE 

multispecies regulations (§ 648.86(a)(2)) 

overlaps the Access Area season from 

January 1 through January 31, and from 

June 15 through June 30. Section 

648.60(a)(5)(ii)(B) therefore specifies 

that no haddock may be possessed by 

scallop vessels during the entire period 

specified in § 648.86(a)(2). Without the 

specific seasons identified in 

§ 648.60(a)(5)(ii)(B), the regulation 

retains flexibility should the Access 

Area seasons change in the future. 

Section 648.60(a)(5)(ii)(B) also 

accurately depicts the haddock 

possession limit for the remainder of the 

season. Therefore, no regulatory text 

revision has been made. 

Comment 16b: An industry 

representative commented that the 

regulatory text in § 648.60(a)(5)(ii)(C) 

should include a provision that vessels 

on a Scallop Access Area trip when the 

fishery is projected to be closed due to 

the harvest of the yellowtail TAC are 

allowed to continue the trip. 

Response: Vessels that have initiated 

an Access Area Program trip to a NE 

multispecies closed area prior to 

notification of closure of the Access 

Area would be allowed to finish that 

trip. NMFS will project the date that the 

bycatch TAC is expected to be attained 

so that vessels will have sufficient 

notice of the closure date. NMFS also 

63468 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

expects to be able to use area-specific 

trip declarations to help project the date 

that it expects the bycatch TAC to be 

harvested and to identify vessels that 

have initiated a trip prior to notice of 

the closure being made. 

Comment 16c: An industry 

representative commented that 

§ 648.85(c) refers to limited access 

scallopers harvesting yellowtail up to 

the quota, but makes no mention of 

yellowtail bycatch by general category 

vessels. 

Response: Section 648.85(c) pertains 

to limited access vessels fishing in the 

Access Areas. Although that paragraph 

has been clarified to specify limited 

access vessels, no further changes are 

necessary. Section 648.60(a)(5)(iii)(B)(2) 

specifies that general category vessels 

may not possess any other species of 

fish on an Access Area trip, although 

general category vessels are required to 

report catch of yellowtail, as required in 

§ 648.60(a)(9). All yellowtail catch will 

be counted against the TAC. 

Comment 16d: An industry 

representative commented that vessels 

should be allowed to transit Access 

Areas after leaving another Access Area, 

and that § 648.60(a)(4) should reflect 

this allowance. 

Response: NMFS recognizes that a 

direct transit route may lead a vessel 

across another Access Area and has 

therefore included a revised transiting 

allowance in the regulations in 

§ 648.59(e). 

Comment 16e: The Council 

commented that the text in 

§ 648.85(c)(3) should be clarified by 

including language about publication of 

a notice in the Federal Register in 

accordance with the Administrative 

Procedure Act. 

Response: No change to the 

regulations are necessary since the 

paragraph references the requirement to 

publish a notice in the Federal Register, 

which is fully described in 

§ 648.85(a)(3)(iv)(C)(3). 

Changes From the Proposed Rule to 

Final Rule 

In addition to minor editorial changes 

to the proposed rule, the following 

changes have been made in this final 

rule. 

Language has been added to 

§ 648.10(b)(1)(iv); and 

§§ 648.59(b)(5)(ii), (c)(5)(ii), and 

(d)(5)(ii), and 648.60(a)(3)(iii), (a)(5)(iii), 

(a)(6)(iii) are reserved to reflect the 

delay in effectiveness for general 

category provisions associated with the 

Scallop Area Access Program until OMB 

has approved the associated reporting 

and recordkeeping requirements. 

In § 648.14, paragraphs (i)(14) through 

(16) have been added to prohibit vessels 

issued general category permits from 

fishing in an Access Area when it is 

closed due to harvesting the scallop or 

yellowtail bycatch TAC, or if general 

category vessels have taken the 

allocated number of trips in a specific 

area. 

In § 648.51, a prohibition on trawl 

gear use by general category vessels in 

NE multispecies closed area Access 

Areas, except vessels issued a NE 

multispecies limited access permit and 

fishing in an approved SAP while under 

NE multispecies DAS and not enrolled 

in the Scallop Area Access Program, has 

been added in response to a comment 

submitted by an industry representative. 

In § 648.53, paragraph (b)(4) has been 

revised to eliminate duplicate paragraph 

numbering and to allow unused trips 

resulting from an exchange with another 

vessel to be used in open areas if the 

yellowtail TAC in the area has been 

harvested. This change has been made 

in response to a comment submitted by 

an industry representative.

In § 648.53, paragraphs (b)(4)(ii)(A), 

(B), and (C) are revised to clarify the 

number of trips vessels may take in 

Scallop Access Areas. 

In § 648.53(c)(2), the value of 9.5 DAS 

in 2006 has been changed to 9.6 DAS in 

2006, consistent with the Council’s 

approved measure and a comment 

submitted by the Council. 

In § 648.53, paragraph (h)(1) has been 

revised to specify that vessel owners are 

responsible for paying for the cost of 

carrying at-sea observers, regardless of 

whether or not DAS set-aside is 

available. 

In § 648.59, paragraph (a)(3), (b)(5)(i), 

(c)(5)(i), and (d)(5)(i) have been revised 

to clarify the number of trips that 

vessels may take in Scallop Access 

Areas. 

In § 648.59, paragraphs (b)(1), (c)(1), 

and (d)(1) have been revised to clarify 

that multispecies vessels fishing under 

multispecies DAS in an approved SAP 

may retain and land up to 400 lb (181.4 

kg) of scallops during the period that the 

Scallop Access Area is closed to scallop 

fishing. This is consistent with the Joint 

Frameworks, which did not prohibit 

this measure. This change was made in 

response to a comment by a member of 

the industry in order to clarify the 

regulations with respect to multispecies 

fisheries that overlap Scallop Access 

Areas. 

In § 648.59, paragraphs (b)(5)(ii), 

(c)(5)(ii), and (d)(5)(ii) have been revised 

to include two subparagraphs to clarify 

that multispecies vessels fishing under 

multispecies DAS in an approved SAP 

may continue fishing in an area that is 

also a Scallop Access Area if they have 

chosen to not enroll in the Area Access 

Program and do not possess scallops. 

In § 648.59, paragraph (e) has been 

revised to allow scallop vessels to 

transit an access area while steaming to 

or from another Access Area in response 

to a comment by an industry 

representative. The proposed rule 

would have prohibited such transiting, 

which is not necessary. 

In § 648.60, paragraph (a) has been 

revised to allow vessels issued NE 

multispecies and general category 

permits and fishing under multispecies 

DAS in an approved SAP to continue 

fishing in an area that is also a Scallop 

Access Area if they have chosen to not 

enroll in the Area Access Program and 

do not possess scallops. 

In § 648.60(a), references to 

§ 648.52(b) have been corrected to 

§ 648.52(a) in response to a comment by 

an industry representative. 

In § 648.60, paragraph (a)(3)(ii) has 

been revised to clarify the one-for-one 

trip exchange provisions in response to 

a comment by an industry 

representative. 

In § 648.60, paragraph (a)(4) has been 

revised to allow vessels to transit a 

Scallop Access Area while steaming to 

and from another Scallop Access Area. 

In § 648.60, paragraph (a)(5)(i) has 

been revised to clarify the appropriate 

possession limit for part-time vessels in 

the 2005 fishing year in response to 

comments submitted by the Council and 

an industry representative. The Joint 

Frameworks document included 

conflicting tables and, after consultation 

with Council staff, NMFS determined 

that the intent of the Council was clear 

that the possession limit for part-time 

vessels in 2005 should be 18,000 lb 

(8,165 kg), rather than 16,900 lb (7,666 

kg), consistent with a 1,500-lb (680-kg) 

per DAS catch rate. 

In § 648.60, paragraph (a)(5)(ii)(A) has 

been revised to reference NE 

multispecies possession restrictions in 

§ 648.83 to avoid inconsistency between 

fishery regulations. An industry 

representative commented that ‘‘whole 

and gutted’’ cod is ‘‘internally 

inconsistent.’’

In § 648.60, paragraphs (a)(5)(ii)(C)(2) 

and (3) are revised to allow the 

possession of 1,000 lb (453.6 kg) of NE 

multispecies combined. 

In § 648.60, paragraph (a)(9) has been 

added to implement reporting 

requirements approved by the Council 

and not included in the proposed rule. 

The Council and an industry 

representative commented that this 

portion of the regulations was omitted 

from the proposed rule and that the 

omission is inconsistent with the 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63469

measure approved by the Council, as 

described in section 4.1.9.1 of the 

document supporting the Joint 

Frameworks (see ADDRESSES). 

In § 648.60, paragraph (g) is added to 

reflect general category restrictions in 

NE multispecies closed area Scallop 

Access Areas. The restrictions included 

in this final rule in § 648.60(g) were 

included in the proposed rule 

throughout § 648.60, but have been 

moved to § 648.60(g) to allow the 

effectiveness of the measures to be 

delayed until OMB clears the reporting 

and recordkeeping requirements. 

Section 648.60(g) also allows 

multispecies vessels fishing under 

multispecies DAS in an approved SAP 

to continue fishing in an area that is also 

a Scallop Access Area if they have 

chosen to not enroll in the Area Access 

Program and do not possess scallops. 

In § 648.85, paragraph (c)(1)(ii)(2) has 

been revised to clarify the RA’s 

discretion in adjusting the yellowtail 

TAC for scallop vessels fishing in the 

Scallop Access Areas based on the 

sufficiency of data available to make an 

adjustment as soon after December 1 as 

possible. 

Classification 

The RA determined that the 

framework adjustments implemented by 

this rule are necessary for the 

conservation and management of the 

Atlantic sea scallop fishery and the NE 

multispecies fishery and are consistent 

with the Magnuson-Stevens Act and 

other applicable law. 

The Assistant Administrator for 

Fisheries, NOAA, finds that the 30-day 

delayed effective date required by 5 

U.S.C. 553 is inapplicable because this 

rule, with the exception of the Area 

Access Program measures for general 

category vessels which will be 

addressed in a subsequent rulemaking, 

relieves restrictions imposed on scallop 

vessels. Scallop vessels are currently 

prohibited from fishing in the NE 

multispecies closed areas: Closed Area I, 

Closed Area II, and the Nantucket 

Lightship Closed Area. This rule allows 

scallop vessels access to these areas on 

a three-year rotational basis. Access to 

these areas will allow scallopers to fish 

on greater concentrations and 

abundance of scallops than are now 

distributed throughout the open areas. 

This includes the revision to the 

boundaries of the EFH closed areas, as 

failure to implement that measure as 

part of the Area Access Program would 

render a portion of the NLCA Access 

Area unuseable until the new EFH 

closures go into effect. The revised EFH 

closed areas shift the boundaries of the 

closure in the NLCA, resulting in a 

larger access area. Because general 

category vessels will be required to 

comply with new reporting and 

recordkeeping requirements, including 

the use of VMS units that they will need 

to acquire, the measures allowing 

general category vessels to access the NE 

multispecies closed areas is delayed 

until OMB has approved the reporting 

and recordkeeping requirements 

associated with this action. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. 

NMFS, pursuant to section 604 of the 

Regulatory Flexibility Act (RFA), has 

prepared a FRFA in support of the Joint 

Frameworks. The FRFA describes the 

economic impact that this final rule, 

along with other non-preferred 

alternatives, will have on small entities. 

The FRFA incorporates the economic 

impacts and analysis summarized in the 

IRFA for the proposed rule to 

implement the Joint Frameworks (69 FR 

52470, August 26, 2004), the comments 

and responses in this final rule, and the 

corresponding economic analyses 

prepared for the Joint Frameworks (e.g., 

the EA and the RIR). The contents of 

these incorporated documents are not 

repeated in detail here. A copy of the 

IRFA, the RIR, and the EA are available 

upon request (see ADDRESSES). A 

description of the reasons why this 

action is being considered, the 

objectives of, and the legal basis for this 

final rule is found in the Joint 

Frameworks and the preamble to the 

proposed and final rules.

Description of Small Entities to Which 

the Proposed Rule Will Apply 

The measures proposed in the Joint 

Frameworks will impact vessels issued 

limited access and general category sea 

scallop vessel permits. All of these 

vessels are considered small business 

entities for purposes of the RFA because 

all of them grossed less than $3.5 

million according to the dealer reports 

for the 2001 and 2002 fishing years (the 

most recent complete fishing year 

landings information available). There 

are two main components of the scallop 

fleet: Vessels eligible to participate in 

the limited access sector of the fleet and 

vessels that participate in the open 

access general category sector of the 

fleet. Limited access vessels are issued 

permits to fish for scallops on a fulltime, part-time, or occasional basis. 

According to permit data from the 2003 

fishing year, there were 278 Full-time 

permits, 33 Part-time permits, and 10 

Occasional permits. In addition, there 

were 2,257 vessels issued permits to fish 

in the General category in 2003. Annual 

scallop revenue for the limited access 

sector averaged from $615,000 to 

$665,600 for Full-time vessels, $194,790 

to $209,750 for Part-time vessels, and 

$14,400 to $42,500 for Occasional 

vessels during the 2001 and 2002 

fishing years. Total revenues per vessel, 

including revenues from species other 

than scallops, exceeded these amounts, 

but were less than $3.5 million per 

vessel. 

Two criteria, disproportionality and 

profitability, were considered in 

determining the significance of 

regulatory impacts. The 

disproportionality criterion compares 

the effects of the regulatory action on 

small versus large entities. All of the 

vessels permitted to harvest sea scallops 

are considered to be small entities. The 

profitability criterion applies if the 

regulation significantly reduces profit 

for a substantial number of small 

entities. The IRFA concludes that this 

criterion does not apply. The basis for 

this conclusion is discussed at length in 

the Economic Impacts of the Proposed 

Action section of the IRFA summary in 

the preamble of the proposed rule. 

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 

One comment was received in 

response to the IRFA. No other 

comments related to the economic 

analyses presented in the IRFA or the 

EA. 

Comment: An industry representative 

commented that the VMS restrictions on 

general category vessels provide an 

additional opportunity for these vessels 

to participate in the Area Access 

Program in the NE multispecies closed 

areas. 

Response: The RFA requires NMFS to 

consider and describe the costs and 

benefits of proposed measures 

compared to alternative measures. 

While the IRFA did highlight the 

relatively high compliance costs 

associated with the new requirements 

for general category vessels to use VMS, 

NMFS concluded that ‘‘* * * the 

proposed access fishery for general 

category vessels expands those vessels’

flexibility and opportunity to fish in 

different areas’’ (69 FR 52470 at 52475, 

August 26, 2004) and ‘‘Without the 

requirements, however, it would be 

difficult to control scallop mortality and 

monitor bycatch, and it may not be 

possible to provide access to the NE 

multispecies closed areas by general 

category vessels. Although difficult to 

predict, the benefits of expanding 

63470 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

fishing opportunity for general category 

vessels could outweigh the cost of 

compliance with VMS, observer 

coverage, and other reporting 

requirements’’ (69 FR 52470 at 52478, 

August 26, 2004). The IRFA was 

consistent with the statements of the 

commenter. 

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 

The combined economic impacts of 

the Joint Frameworks are positive for 

the majority of small business entities in 

the scallop fishing industry. The 

economic analyses demonstrated, 

however, that from 2004 through 2007, 

the proposed action would produce 

slightly lower revenues per year, on 

average, compared to the no action 

alternative. Revenues under the 

proposed action are expected to be 

approximately $60,000 less for the 

entire scallop fleet than under the no 

action alternative. This is because, 

under no action, open area DAS would 

be higher in open areas for 2004 through 

2007 without access to the NE 

multispecies closed areas. Open area 

landings are not restricted by a 

possession limit, and total scallop 

landings would be higher than if vessels 

were restricted by the possession limits 

and TACs under the proposed Scallop 

Area Access program. The price of 

scallops would decline, offsetting the 

increase in landings compared to the 

proposed action. Access to the NE 

multispecies closed areas would have 

positive impacts, however, on producer 

benefits and gross profits of the scallop 

fishery compared to no action. Because 

of the expected higher scallop 

abundance in the NE multispecies 

closed areas, which should result in 

higher landings per unit effort (LPUE), 

the operating expenses per pound of 

scallops are expected to decline by 

almost 30 percent with access, and gross 

profits, calculated as gross revenues net 

of operating costs and crew shares, are 

estimated to increase by 18 percent. The 

long-term economic impacts of allowing 

access to the NE multispecies closed 

areas are expected to be positive, as 

well, compared to no action, increasing 

revenues and profits by nearly 2 percent 

and 23 percent, respectively, on average 

per year. Without access, initial higher 

landings are expected to eventually 

have negative impacts on scallop 

biomass, LPUE, and landings in future 

years, resulting in overall revenues and 

total benefits of $3.1 million and $47.2 

million, respectively, less than the 

proposed action.

NMFS implements the closed area 

access boundaries as proposed by the 

Council and in the proposed rule 

because, in comparison to the four NE 

multispecies closed area access 

boundary alternatives, the boundaries 

implemented in this rule offer the most 

economic benefits in the long-term 

while remaining consistent with 

measures to protect EFH and minimize 

bycatch. The economic impacts of this 

action and alternative Scallop Access 

Area boundaries are the same as those 

described in the aggregate impacts 

above because the analysis presumes 

that area boundaries are dependant on 

an overall access program. The specified 

areas for the NE multispecies closed 

area scallop access program have 

positive overall economic impacts on 

scallop vessels compared to the no 

action alternative, although short-term 

revenues are slightly lower than under 

the no action alternative. The third 

Scallop Access Area alternative (nonselected), which would restrict the 

amount of area opened for access, 

would result in the most negative 

impact, with a loss of $71,000 per year 

for the scallop fleet combined, on 

average, compared to the no action 

alternative. 

The EFH closed area alternative 

implemented in this action is consistent 

with both the Access Area boundaries 

and EFH closed areas implemented in 

prior Multispecies FMP actions. Other 

alternatives would have constrained the 

fishery, had lower economic benefits, or 

would have been inconsistent with EFH 

closures. 

The provision allowing scallop 

fishing using dredge gear only in the NE 

multispecies closed area Access 

Program was compared in the Joint 

Frameworks to an alternative that would 

have allowed trawl gear to be used by 

scallop vessels in the Access Areas. 

While prohibiting trawls is expected to 

have negative economic impacts on 

scallop trawl vessels, it was adopted 

because of benefits to the scallop fishing 

industry overall and the dredge gear 

sector. NMFS is implementing the 

prohibition on the use of trawl gear in 

the NE multispecies closed area, Area 

Access Program, because reduced 

finfish bycatch by scallop dredges will 

reduce the likelihood of attaining the 

yellowtail bycatch TAC, thus 

lengthening the fishery season, and 

contributing to higher revenues for the 

fleet. Scallop trawl vessels are capable 

of converting to dredge gear, allowing 

flexibility within the Area Access 

provisions. 

NMFS implements the yellowtail TAC 

measures included in this rule to 

minimize bycatch while maximizing 

flexibility and ensuring that the scallop 

vessels do not lose landings and 

revenue after a closure once a yellowtail 

TAC is harvested. Vessels will be able 

to take additional open area trips if they 

have unused NE multispecies closed 

area Access Area trips when the fishery 

closes due to harvesting the yellowtail 

TAC. Attainment of the yellowtail TAC 

without the trip reallocation provision 

could have left some of the scallop TAC, 

designed to achieve OY, from being 

harvested. The economic analysis is 

qualitative because it is not possible to 

determine when the yellowtail TAC 

could be harvested. Without a measure 

to ensure that yellowtail catches do not 

exceed the yellowtail TACs and comply 

with the U.S./Canada Resource Sharing 

Understanding, however, it would not 

have been possible to authorize scallop 

fishing in the NE multispecies closed 

areas. Therefore, the majority of the 

scallop vessels are expected to benefit 

from this measure, due to the 

opportunity provided to fish in those 

areas. The provision to allow an 

increase in the yellowtail TAC if a 

specified limit is not harvested by 

December 1 of each year is also 

expected to have positive impacts on 

vessels by potentially allowing scallop 

fishing operations to continue to higher 

levels of yellowtail catch. NMFS is not 

implementing the provision that would 

encourage voluntary actions by the 

scallop industry to direct fishing 

activity away from areas of high 

bycatch, through information provided 

by the industry and disseminated by 

NMFS. This measure would likely have 

excessive costs without certainty that it 

would result in the intended benefits. 

NMFS is implementing the NE 

multispecies possession limits proposed 

by the Council. This measure increases 

the possession limit of NE multispecies 

from 300 lb (136 kg) to 1,000 lb (453.6 

kg), and is expected to have positive 

economic impacts on the scallop vessels 

fishing in the NE multispecies closed 

areas. Therefore, these measures would 

have indirect economic benefits for the 

vessels in the scallop fishery. The 

possession limit of 100 lb (45.4 kg) of 

cod per trip for personal use may also 

have some positive economic impacts, 

compared to a zero possession limit, by 

allowing the retention of catch that 

could be used to offset some food costs 

on fishing trips. 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63471

NMFS is implementing the area 

access season (June 15 through January 

31) which is expected to have positive 

impacts on scallop vessels compared to 

the no action alternative. The season 

prohibits scallop fishing during months 

when many species of NE multispecies 

are at peak spawning activity, and as a 

result, it should ensure that access to 

the GB multispecies areas is consistent 

with conservation goals of the NE 

Multispecies FMP. By allowing 

simultaneous access to all of the Access 

Areas, the final action provides more 

flexibility to fishermen to maximize 

their landings and revenues from the 

closed areas. The season will likely have 

negative economic impacts compared to 

the alternative of a year-round fishery. 

However, year-round access poses a risk 

of finfish bycatch and bycatch mortality 

and may increase the likelihood of the 

scallop fishery catching the proposed 

yellowtail TAC sooner than would be 

the case with the seasonal restrictions. 

Bycatch TAC attainment would close 

the Access Area, thus reducing benefits 

derived from the higher valued scallop 

resource in the NE multispecies closed 

areas.

The final action maintains the 

existing sampling frequency that can be 

funded with a 1-percent TAC set-aside. 

The scallop industry may benefit from 

improved management that could result 

from more accurate fishery information. 

Although the TAC set-asides slightly 

reduce overall TAC available to all 

scallop vessels, the funds generated 

from the set-aside landings provide 

revenue to offset compliance costs for 

vessels carrying at-sea observers. 

The requirement to have a VMS 

onboard for all scallop vessels that fish 

in the closed area access program will 

increase the costs of fishing for 

occasional category vessels that have 

not yet participated in the Area Access 

Program and all vessels with general 

category permits (none of which 

previously participated in any Area 

Access Program). However, the 

alternative that prohibits access by these 

vessels would certainly constrain 

fishing opportunity and reduce 

revenues, potentially. NMFS therefore is 

implementing the measures as proposed 

to provide flexibility and opportunity 

for additional landings and revenues. 

NMFS is implementing the rotation 

strategy as proposed because it 

minimizes the risk of high yellowtail 

bycatch in the NLCA and, therefore, 

reduces the likelihood of scallop 

revenue loss from closure of access 

areas before the scallop closed area 

access program is complete. 

There are no changes to the 

possession limits and DAS trade-offs in 

the Joint Frameworks from those 

included in Amendment 10 for Fulltime vessels. Therefore, the economic 

impacts of area-specific DAS and trip 

allocations are within the range of 

impacts analyzed in Amendment 10. 

NMFS is implementing the change in 

the possession trips for the Part-time 

and Occasional vessels, however, in 

order to correct inequities in Access 

Area trip allocations. For example, 

under Amendment 10, part-time and 

occasional vessels both were allocated 

the same possession limit and trip 

allocation, despite a clear distinction in 

the effort levels intended for each 

category. This action makes the 

allocations for the part-time and 

occasional vessels proportional, similar 

to the DAS allocations prior to 

Amendment 10. Overall impacts of this 

adjustment during the 2004–2007 

period would be positive for part-time 

vessels, but negative for occasional 

vessels. However, NMFS cannot 

determine whether or not these access 

trips would be more profitable than 

open area trips under more restrictive 

DAS limitations. 

The Joint Frameworks modify the 

DAS and trip exchange option enacted 

in Amendment 10 to prevent 

administrative complications that could 

arise if trips with unequal possession 

limits were exchanged. Under this 

action, full-time vessels can trade only 

with another full-time vessel, and the 

trades between part-time and occasional 

vessels are similarly restricted. 

Although this measure is necessary to 

avoid management complications from 

unequal exchanges, it reduces the 

number of opportunities for trading 

trips. It may be especially difficult for 

part-time and occasional vessel owners 

to locate other owners willing to 

exchange trips because the vessels in 

the part-time and occasional category 

have the flexibility to use their 

controlled access trips in any Access 

Area up to the maximum number of 

trips allocated to each vessel. However, 

this flexibility reduces the need to 

exchange DAS allocations and is 

expected to mitigate some of the 

negative impacts resulting from the 

restriction. 

NMFS is implementing measures to 

allow general category vessels to access 

closed areas. This is expected to have 

positive impacts on the revenues of 

these vessels. Despite high compliance 

costs associated with VMS installation 

and operation requirements, the added 

fishing opportunity would provide for 

increased revenues compared to the 

alternative of not allowing access. The 

benefits of expanding fishing 

opportunity for general category vessels 

are expected outweigh the cost of 

compliance with VMS, observer 

coverage, and other reporting 

requirements for those vessels that 

choose to participate. 

Economic Impacts of Significant and 

Other Non-Selected Alternatives 

The Joint Frameworks considered 

several alternatives that could have had 

lower negative economic impact on 

scallop vessels, owners, operators, and 

crews. Specifically, the Council 

considered the following measures: (1) 

Allowing all gear types in the closed 

area access program; (2) alternatives for 

redirecting fishing effort from closed 

areas to open areas when the yellowtail 

bycatch TAC is harvested; (3) yearround access to the NE multispecies 

closed area access areas; and (4) 

exempting Occasional and general 

category vessels from VMS reporting 

requirements in the access areas. Each 

of these alternatives was considered in 

comparison with the measures included 

in the proposed rule and this final rule. 

NMFS has concluded that the measures 

would provide more revenues initially 

through increased scallop landings, or 

would have reduced compliance costs. 

However, NMFS has also concluded 

that these non-selected alternatives 

would likely offset the overall benefits 

for the scallop resource and industry 

and may not achieve the goals and 

objectives of the Scallop FMP or the 

requirements of the Magnuson-Stevens 

Act. 

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 RA and are also 

available from NMFS, Northeast Region 

(see ADDRESSES). 

This final rule contains new 

collection-of-information requirements 

subject to review and approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act (PRA). These requirements would 

63472 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

apply to general category vessels only, 

and have been submitted to OMB for 

approval. Public reporting burden for 

these collections of information are 

estimated to average as follows: 

1. Purchase and installation of VMS 

units, OMB #0648–0491 (1 hr per 

response); 

2. Verification of VMS units, OMB 

#0648–0491 (0.083 hr per response); 

3. Daily reporting via VMS without an 

at-sea observer on board, OMB #0648–

0491 (0.17 hr per response); 

4. Daily reporting via VMS with an atsea observer on board, OMB #0648–

0491 (0.17 hr per response); 

5. VMS notification of intent to fish 

on the 25th of the month preceding the 

intended trip, OMB #0648–0491 (0.033 

hr per response); 

6. VMS notification of scheduled 

Access Area trip 72 hr prior to 

departure, OMB #0648–0491 (0.033 hr 

per response); 

7. VMS notification of trip 1 hr prior 

to departure, OMB #0648–0491 (0.033 

hr per response); 

8. Polling of VMS units twice per 

hour, OMB #0648–0491 (0.0014 hr 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 proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to NMFS and 

to OMB (see ADDRESSES). 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB control number.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Recordkeeping and 

reporting requirements.

Dated: October 28, 2004. 

Rebecca Lent, 

Deputy Assistant Administrator for 

Regulatory Programs, 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 § 648.2, the definition for 

‘‘Bushel’’ is revised to read as follows:

§ 648.2 Definitions.

* * * * *

Bushel (bu) means a standard unit of 

volumetric measurement deemed to 

hold 1.88 ft3 (53.24 L) of surfclams or 

ocean quahogs in shell, or 1.24 ft3 (35.24 

L) of in-shell Atlantic sea scallops.

* * * * *

■ 3. In § 648.10, paragraphs (b)(1)(iv) and 

(v) are revised, and paragraph (b)(1)(vi) 

is added as follows:

§ 648.10 DAS notification requirements.

* * * * *

(b) * * *

(1) * * *

(iv) Effective upon approval of the 

reporting and recordkeeping 

requirements by OMB, a scallop vessel 

issued a general category scallop permit 

when fishing under the Sea Scallop 

Area Access Program specified under 

§ 648.60 and in the Sea Scallop Access 

Areas described in § 648.59(b) through 

(d); 

(v) A vessel issued a limited access 

NE multispecies, monkfish, Occasional 

scallop, or Combination permit, whose 

owner elects to provide the notifications 

required by this paragraph (b), unless 

otherwise authorized or required by the 

Regional Administrator under paragraph 

(d) of this section; 

(vi) A vessel issued a limited access 

NE multispecies permit electing to fish 

under the U.S./Canada Resource 

Sharing Understanding, as specified in 

§ 648.85(a).

* * * * *

■ 4. In § 648.14, paragraph (a)(57) 

introductory text and paragraphs 

(a)(57)(i), (i)(1), and (s) are revised and 

paragraphs (a)(97), (a)(163), (a)(164), 

(h)(34), (h)(35), and (i)(4) through (10) are 

added to read as follows:

§ 648.14 Prohibitions. 

(a) * * *

(57) Fish for or land per trip, or 

possess at any time prior to a transfer to 

another person for a commercial 

purpose, other than solely for transport, 

in excess of 400 lb (181.4 kg) shucked, 

or 50 bu (17.6 hl) in-shell scallops, 

unless: 

(i) The scallops were harvested by a 

vessel that has been issued and carries 

on board a limited access scallop permit 

and is fishing under scallop DAS; or

* * * * *

(97) Fail to comply with any of the 

provisions specified in § 648.56.

* * * * *

(163) Sell or transfer to another 

person for a commercial purpose, other 

than solely for transport, any NE 

multispecies harvested from the EEZ by 

a vessel issued a Federal NE 

multispecies permit, unless the 

transferee has a valid NE multispecies 

dealer permit. 

(164) Sell or transfer to another 

person for a commercial purpose, other 

than solely for transport, any Atlantic 

sea scallops harvested from the EEZ by 

a vessel issued a Federal Atlantic sea 

scallop permit, unless the transferee has 

a valid Atlantic sea scallop dealer 

permit.

* * * * *

(h) * * *

* * * * *

(34) Declare and initiate a trip into the 

areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register stating that the yellowtail 

flounder TAC has been harvested as 

specified in § 648.85(c). 

(35) Retain yellowtail flounder in the 

areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register stating that the yellowtail 

flounder TAC has been harvested as 

specified in § 648.85(c). 

(i) * * *

(1) Fish for or land per trip, or possess 

at any time, in excess of 400 lb (181.4 

kg) of shucked or 50 bu (17.6 hl) of inshell scallops.

* * * * *

(4) Refuse, or fail, to carry an observer 

after being requested to carry an 

observer by the Regional Administrator. 

(5) Fail to provide an observer with 

required food, accommodations, access, 

and assistance, as specified in § 648.11. 

(6) Fail to comply with the VMS 

requirements specified in §§ 648.10 and 

648.60. 

(7) Fail to comply with the 

requirements specified in § 648.60. 

(8) Declare and initiate a trip into the 

areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register stating that the general category 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63473

scallop TAC has been harvested as 

specified in § 648.60. 

(9) Declare and initiate a trip into the 

areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register stating that the number of 

general category trips have been taken 

as specified in § 648.60.

(10) Declare or initiate a trip into 

areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register stating that the yellowtail 

flounder TAC has been harvested as 

specified in § 648.85(c).

* * * * *

(s) Any person possessing or landing 

per trip, scallops in excess of 40 lb (18.1 

kg) of shucked, or 5 bu (176.1 L) of inshell scallops, at or prior to the time 

when those scallops are received or 

possessed by a dealer, is subject to all 

of the scallop prohibitions specified in 

this section, unless the scallops were 

harvested by a vessel without a scallop 

permit that fishes for scallops 

exclusively in state waters.

* * * * *

■ 5. In § 648.51, paragraph (f)(1) is 

revised to read as follows:

§ 648.51 Gear and crew restrictions.

* * * * *

(f) * * *

(1) A vessel issued a limited access 

scallop permit fishing for scallops under 

the scallop DAS allocation program may 

not fish with, possess on board, or land 

scallops while in possession of, trawl 

nets, unless such vessel has on board a 

valid letter of authorization or permit 

that endorses the vessel to fish for 

scallops with trawl nets. A limited 

access scallop vessel issued a valid 

letter of authorization or permit that 

endorses the vessel to fish for scallops 

with trawl nets, and general category 

scallop vessels enrolled in the Area 

Access Program as specified in 

§ 648.60(g), may not fish with trawl nets 

in the Access Areas specified in 

§ 648.59(b) through (d).

* * * * *

■ 6. In § 648.52, paragraphs (a), (b), and 

(c) are revised to read as follows:

§ 648.52 Possession and landing limits. 

(a) Owners or operators of vessels 

with a limited access scallop permit that 

have declared out of the DAS program 

as specified in § 648.10, or that have 

used up their DAS allocations, and 

vessels possessing a general scallop 

permit, unless exempted under the state 

waters exemption program described 

under § 648.54, are prohibited from 

fishing for or landing per trip, or 

possessing at any time, in excess of 400 

lb (181.4 kg) shucked, or 50 U.S. bu 

(17.6 hl) in-shell, scallops, with no more 

than one scallop trip of 400 lb (181.4 kg) 

of shucked, or 50 bu (17.6 hl) of in-shell 

scallops, allowable in any calendar day. 

(b) Owners or operators of vessels 

without a scallop permit, except vessels 

fishing for scallops exclusively in state 

waters, are prohibited from fishing for 

or landing per trip, or possessing at any 

time, more than 40 lb (18.1 kg) of 

shucked, or 5 bu (176.2 L) of in-shell 

scallops. Owners or operators of vessels 

without a scallop permit are prohibited 

from selling, bartering, or trading 

scallops harvested from Federal waters. 

(c) Owners or operators of vessels 

with a limited access scallop permit that 

have declared into the Sea Scallop Area 

Access Program as described in § 648.60 

are prohibited from fishing for or 

landing per trip, or possessing at any 

time, more than the sea scallop 

possession and landing limit specified 

in § 648.60(a)(5).

* * * * *

■ 7. In § 648.53, paragraphs (b)(1), (b)(2), 

(b)(4), (c), (d), and (h) are revised, and 

paragraph (b)(5) is added to read as 

follows:

§ 648.53 DAS allocations.

* * * * *

(b) * * *

(1) For fishing years after 2006, total 

DAS to be used in all areas other than 

those specified in § 648.59, will be 

specified through the framework 

process as specified in § 648.55. 

(2) Each vessel qualifying for one of 

the three DAS categories specified in the 

table in this paragraph (b)(2) (Full-time, 

Part-time, or Occasional) shall be 

allocated the maximum number of DAS 

for each fishing year it may participate 

in the open area limited access scallop 

fishery, according to its category, after 

deducting research and observer DAS 

set-asides from the total open area DAS 

allocation. A vessel whose owner/

operator has declared out of the scallop 

fishery, pursuant to the provisions of 

§ 648.10, or that has used up its 

maximum allocated DAS, may leave 

port without being assessed a DAS, as 

long as it does not fish for or land per 

trip, or possess at any time, more than 

400 lb (181.4 kg) of shucked or 50 bu 

(17.6 hL) of in-shell scallops and 

complies with all other requirements of 

this part. The annual open area DAS 

allocations for each category of vessel 

for the fishing years indicated, after 

deducting DAS for observer and 

research DAS set-asides, are as follows:

DAS category 2004 1 2005 2006

Full-time .................. 42 40 67

Part-time ................. 17 16 27

Occasional .............. 4 3 6

1 Not including additional DAS allocated as 

specified in paragraph (b)(4) of this section. 

* * * * *

(4) Additional 2004 DAS. (i) Effective 

September 15, 2004, DAS for the 2004 

fishing year increased by the following 

amounts:

DAS category 

2004 

DAS increase 

Full-time ........................................ 20

Part-time ....................................... 8

Occasional .................................... 1

(ii) If a limited access scallop vessel 

uses the Open Area DAS specified in 

paragraph (b)(4)(i) of this section, such 

vessel is not eligible to fish under the 

Area Access Program described in 

§ 648.60 until March 1, 2005. 

(iii) If a TAC for yellowtail flounder 

is harvested for an Access Area 

specified in § 648.59(b) through (d), and 

such area is closed to scallop fishing, a 

scallop vessel with remaining trips in 

the affected Access Area may fish any 

remaining trips in the open areas, with 

the following maximum DAS use limits: 

(A) A full-time vessel may fish up to 

20 DAS in 2004, 24 DAS in 2005, and 

24 DAS in 2006, not to exceed the 

maximum number of equivalent DAS 

charge per trip, as specified in 

§ 648.60(a)(3)(i), associated with the 

total number of unused Access Area 

trip(s). A full-time vessel that has 

acquired additional trips through a onefor-one trip exchange with another 

vessel may fish up to 60 DAS in 2005, 

subject to the maximum number of 

equivalent DAS associated with the total 

number of unused Access Area trip(s). 

(B) A part-time vessel may fish up to 

8 DAS in 2004, 12 DAS in 2005, and 9.6 

DAS in 2006, not to exceed the 

maximum number of equivalent DAS 

charge per trip, as specified in 

§ 648.60(a)(3)(i), associated with the 

total number of unused Access Area 

trip(s). A part-time vessel that has 

acquired an additional trip through a 

one-for-one trip exchange with another 

vessel may fish up to 24 DAS in 2005, 

subject to the maximum number of 

equivalent DAS associated with the total 

number of unused Access Area trip(s). 

(C) An occasional vessel may fish up 

to 1 DAS in 2004, 5 DAS in 2005, and 

2 DAS in 2006, not to exceed the 

maximum number of equivalent DAS 

charge per trip, as specified in 

§ 648.60(a)(3)(i), associated with the 

63474 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

total number of unused Access Area 

trip(s). 

(5) DAS allocations and other 

management measures are specified for 

each scallop fishing year, which begins 

on March 1 and ends on February 28 (or 

February 29), unless otherwise noted. 

For example, the 2005 fishing year 

refers to the period March 1, 2005, 

through February 28, 2006. 

(c) Sea Scallop Access Area DAS 

allocations. Limited access scallop 

vessels fishing in a Sea Scallop Access 

Area specified in § 648.59, under the 

Sea Scallop Area Access Program 

specified in § 648.60, are allocated a 

specific number of trips to fish only 

within the Sea Scallop Access Areas, 

with the number of DAS charged for 

each trip designated for each area 

regardless of actual trip length. The 

number of trips and DAS to be charged 

for each scallop permit category and 

fishing year through 2006 for each Sea 

Scallop Access Area are provided in 

paragraphs (c)(1) through (3) of this 

section. Limited access scallop vessels 

may fish a maximum number of trips 

and associated DAS in each Sea Scallop 

Access Area, as specified in 

§ 648.60(a)(3). In addition, limited 

access scallop vessels are allocated a 

maximum number of trips and DAS that 

can be used within any of the Scallop 

Access Areas. As an example, if the total 

number of trips that a scallop vessel 

may take is two trips, and there are two 

Sea Scallop Access Areas opened to 

controlled fishing, with Area A having 

a maximum of one trip and Area B 

having a maximum of two trips, the 

vessel may take one trip in Area A and 

one trip in Area B, or both of its total 

allocated trips in Area B. 

(1) Full-time scallop vessels may take 

seven trips into Scallop Access Areas in 

2004, five trips in 2005, and two trips 

in 2006. DAS charges are 12 DAS for 

each trip, regardless of trip length. 

(2) Part-time scallop vessels may take 

three trips into Scallop Access Areas in 

2004, two trips in 2005, and one trip in 

2006. DAS charges are 12 DAS for the 

Hudson Canyon Access Area and 11.2 

DAS for the Closed Area II and 

Nantucket Lightship Access Areas in 

2004, 12 DAS in 2005, and 9.6 DAS in 

2006. 

(3) Occasional scallop vessels may 

take two trips into Scallop Access Areas 

in 2004, one trip in 2005, and one trip 

in 2006. DAS charges are 12 DAS in 

2004 for the Hudson Canyon Access 

Area and 7 DAS for the Closed Area II 

or Nantucket Lightship Access Areas, 5 

DAS in 2005, and 2 DAS in 2006. 

(d) Adjustments in annual DAS 

allocations. Annual DAS allocations 

shall be established for 2 fishing years 

through biennial framework 

adjustments as specified in § 648.55. 

Except for DAS for the 2006 fishing 

year, if a biennial framework action is 

not undertaken by the Council and 

enacted by NMFS, the allocations from 

the most recent fishing year will 

continue. The Council must determine 

whether or not the 2006 DAS allocations 

specified in the table in paragraph (b)(2) 

of this section are sufficient to achieve 

OY. The 2006 DAS must be adjusted in 

the first biennial framework, initiated in 

2005, if it is determined that the 2006 

DAS allocations are unable to achieve 

OY in the 2006 fishing year. The 

Council may also adjust DAS allocations 

through a framework action at any time, 

if deemed necessary.

* * * * *

(h) DAS set-asides—(1) DAS set-aside 

for observer coverage. As specified in 

paragraph (b)(3) of this section, to help 

defray the cost of carrying an observer, 

1 percent of the total DAS will be set 

aside from the total DAS available for 

allocation, to be used by vessels that are 

assigned to take an at-sea observer on a 

trip other than an Area Access Program 

trip. The DAS set-aside for observer 

coverage for the 2004, 2005, and 2006 

fishing years are 117 DAS, 111 DAS, 

and 187 DAS, respectively. On 

September 15, 2004, the 2004 DAS setaside will increase by 54 DAS if a final 

rule is not published that allows access 

to the GB NE multispecies closed areas. 

Vessels carrying an observer will be 

compensated with reduced DAS accrual 

rates for each trip on which the vessel 

carries an observer. For each DAS that 

a vessel fishes for scallops with an 

observer on board, the DAS will accrue 

at a reduced rate based on an 

adjustment factor determined by the 

Regional Administrator on an annual 

basis, dependent on the cost of 

observers, catch rates, and amount of 

available DAS set-aside. The Regional 

Administrator shall notify vessel owners 

of the cost of observers and the DAS 

adjustment factor through a permit 

holder letter issued prior to the start of 

each fishing year. The number of DAS 

that are deducted from each trip based 

on the adjustment factor will be 

deducted from the observer DAS setaside amount in the applicable fishing 

year. Utilization of the DAS set-aside 

will be on a first-come, first-served 

basis. When the DAS set-aside for 

observer coverage has been utilized, 

vessel owners will be notified that no 

additional DAS remain available to 

offset the cost of carrying observers. The 

obligation to carry an observer will not 

be waived due to the absence of 

additional DAS allocation. Vessel 

owners shall be responsible for paying 

the cost of the observer, regardless of 

whether the vessel lands or sells sea 

scallops on that trip, and regardless of 

the availability of DAS set-aside. 

(2) DAS set-aside for research. As 

specified in paragraph (b)(3) of this 

section, to help support the activities of 

vessels participating in certain research, 

as specified in § 648.56; the DAS setaside for research for the 2004, 2005, 

and 2006 fishing years are 233 DAS, 223 

DAS, and 373 DAS, respectively. 

Vessels participating in approved 

research will be authorized to use 

additional DAS in the applicable fishing 

year. Notification of and additional DAS 

allocated will be provided through a 

letter of authorization, or Exempted 

Fishing Permit issued by NMFS, as 

appropriate.

■ 8. In § 648.55, paragraph (b) is revised 

to read as follows:

§ 648.55 Framework adjustments to 

management measures.

* * * * *

(b) The preparation of the SAFE 

Report shall begin on or about June 1, 

2005, for fishing year 2006, and on or 

about June 1 of the year preceding the 

fishing year in which measures will be 

adjusted. With the exception of the 2006 

fishing year, if the biennial framework 

action is not undertaken by the Council, 

or if a final rule resulting from a 

biennial framework is not published in 

the Federal Register with an effective 

date of March 1, in accordance with the 

Administrative Procedure Act, the 

measures from the most recent fishing 

year shall continue, beginning March 1 

of each fishing year.

* * * * *

■ 9. Section 648.59 is revised to read as 

follows:

§ 648.59 Sea Scallop Access Areas. 

(a) Hudson Canyon Sea Scallop 

Access Area. (1) Through February 28, 

2006, a vessel issued a limited access 

scallop permit may fish for, possess, and 

land scallops in or from, the area known 

as the Hudson Canyon Sea Scallop 

Access Area, described in paragraph 

(a)(2) of this section, only if the vessel 

is participating in, and complies with 

the requirements of, the area access 

program described in § 648.60. 

(2) The Hudson Canyon Sea Scallop 

Access Area is defined by straight lines 

connecting the following points in the 

order stated (copies of a chart depicting 

this area are available from the Regional 

Administrator upon request):

Point Latitude Longitude 

H1 ......................... 39°30′ N .. 73°10′ W 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63475

Point Latitude Longitude 

H2 ......................... 39°30′ N .. 72°30′ W 

H3 ......................... 38°30′ N .. 73°30′ W 

H4/ET4 .................. 38°50′ N .. 73°30′ W 

H5 ......................... 38°50′ N .. 73°42′ W 

H1 ......................... 39°30′ N .. 73°10′ W 

(3) Number of trips. Based on its 

permit category, a vessel issued a 

limited access scallop permit may fish 

no more than the maximum number of 

trips during 2004 and 2005 in the 

Hudson Canyon Access Area, as 

specified in the table at § 648.60(a)(3)(i), 

unless the vessel owner has made an 

exchange with another vessel owner 

whereby the vessel gains a Hudson 

Canyon Access Area trip and gives up 

a trip into another Sea Scallop Access 

Area, as specified in § 648.60(a)(3)(ii), or 

unless the vessel is taking a 

compensation trip for a prior Sea 

Scallop Access Area trip that was 

terminated early, as specified in 

§ 648.60(c). 

(b) Closed Area I Access Area. (1) 

Through February 28, 2005, and every 

third fishing year thereafter (i.e., 2007, 

2010, etc.) vessels issued scallop 

permits, except vessels issued a NE 

Multispecies permit and a general 

category scallop permit and fishing in 

an approved SAP under § 648.85 and 

under multispecies DAS, may not fish 

for, possess, or land scallops in or from, 

the area known as the Closed Area I 

Access Area, described in paragraph 

(b)(3) of this section. 

(2) Beginning March 1, 2005, through 

February 28, 2007, and for every 2-year 

fishing year period after each year the 

area is closed pursuant to paragraph 

(b)(1) of this section (i.e., the 2008 

through 2009 fishing years, and 2011 

through 2012 fishing years, etc.), and 

subject to the seasonal restrictions 

specified in paragraph (b)(4) of this 

section, a vessel issued a scallop permit 

may fish for, possess, and land scallops 

in or from, the area known as the Closed 

Area I Access Area, described in 

paragraph (c)(2) of this section, only if 

the vessel is participating in, and 

complies with the requirements of, the 

area access program described in 

§ 648.60. 

(3) The Closed Area I Access Area is 

defined by straight lines connecting the 

following points in the order stated 

(copies of a chart depicting this area are 

available from the Regional 

Administrator upon request):

Point Latitude Longitude 

CAIA1 ................... 41°26′ N .. 68°30′ W 

CAIA2 ................... 40°58′ N .. 68°30′ W 

CAIA3 ................... 40°55′ N .. 68°53′ W 

CAIA4 ................... 41°04.5′ N 69°01′ W 

Point Latitude Longitude 

CAIA1 ................... 41°26′ N .. 68°30′ W 

(4) Season. A vessel issued a scallop 

permit may not fish for, possess, or land 

scallops in or from, the area known as 

the Closed Area I Sea Scallop Access 

Area, described in paragraph (b)(3) of 

this section, except during the period 

June 15 through January 31 of each year 

the Closed Area I Sea Scallop Access 

Area is open to scallop vessels. 

(5) Number of trips—(i) Limited 

access vessels. Based on its permit 

category, a vessel issued a limited 

access scallop permit may fish no more 

than the maximum number of trips in 

the Closed Area I Access Area as 

specified in the table at § 648.60(a)(3)(i), 

unless the vessel owner has made an 

exchange with another vessel owner 

whereby the vessel gains a Closed Area 

I Access Area trip and gives up a trip 

into another Sea Scallop Access Area, as 

specified in § 648.60(a)(3)(ii), or unless 

the vessel is taking a compensation trip 

for a prior Sea Scallop Access Area trip 

that was terminated early, as specified 

in § 648.60(c). 

(ii) General category vessels. (A) 

Except as provided in paragraph 

(b)(5)(ii)(B) of this section, effective 

upon approval of reporting and 

recordkeeping requirements by OMB, 

subject to the possession limit specified 

in §§ 648.52(b) and 648.60(a)(5), and 

subject to the seasonal restrictions 

specified in paragraph (b)(4) of this 

section, a vessel issued a general 

category scallop permit, may not enter 

in, or fish for, possess, or land sea 

scallops in or from the Closed Area I 

Access Area once the Regional 

Administrator has provided notification 

in the Federal Register, in accordance 

with § 648.60(a)(8), that 162 trips in the 

2005 fishing year, and 141 trips in the 

2006 fishing year, have been taken, in 

total, by all general category scallop 

vessels. The Regional Administrator 

shall notify all general category scallop 

vessels of the date when the maximum 

number of allowed trips have been, or 

are projected to be, taken for the 2005 

and 2006 fishing years. 

(B) A vessel issued a NE Multispecies 

permit and a general category scallop 

permit that is fishing in an approved 

SAP under § 648.85 under multispecies 

DAS may fish in the Scallop Access 

Areas without being subject to the 

restrictions of paragraph (b)(5)(ii)(A) of 

this section provided that it has not 

enrolled in the Scallop Area Access 

program. Such vessel is prohibited from 

possessing scallops. 

(c) Closed Area II Access Area. (1) 

From March 1, 2006, through February 

28, 2007, and every third fishing year 

thereafter, (i.e., 2009, 2012, etc.) vessels 

issued scallop permits, except vessels 

issued a NE Multispecies permit and a 

general category scallop permit and 

fishing in an approved SAP under 

§ 648.85 and under multispecies DAS, 

may not fish for, possess, or land 

scallops in or from, the area known as 

the Closed Area II Access Area, 

described in paragraph (c)(3) of this 

section.

(2) From November 2, 2004, through 

February 28, 2006, and for every 2-year 

fishing year period after each year the 

area is closed pursuant to paragraph 

(c)(1) of this section (i.e., the 2007 

through 2008 fishing years, and 2010 

through 2011 fishing years, etc.) and 

subject to the seasonal restrictions 

specified in paragraph (c)(4) of this 

section, a vessel issued a scallop permit 

may fish for, possess, or land scallops in 

or from, the area known as the Closed 

Area II Sea Scallop Access Area, 

described in paragraph (c)(3) of this 

section, only if the vessel is 

participating in, and complies with the 

requirements of, the area access program 

described in § 648.60. 

(3) The Closed Area II Sea Scallop 

Access Area is defined by straight lines 

connecting the following points in the 

order stated (copies of a chart depicting 

this area are available from the Regional 

Administrator upon request):

Point Latitude Longitude 

CAIIA1 .................. 41°00′ N .. 67°20′ W 

CAIIA2 .................. 41°00′ N .. 66°35.8′ W 

CAIIA3 .................. 41°18.6′ N 66°24.8′ W 

CAIIA4 .................. 41°30′ N .. 66°34.8′ W 

CAIIA5 .................. 41°30′ N .. 67°20′ W 

CAIIA1 .................. 41°00′ N .. 67°20′ W 

(4) Season. A vessel issued a scallop 

permit may not fish for, possess, or land 

scallops in or from the area known as 

the Closed Area II Sea Scallop Access 

Area, described in paragraph (c)(3) of 

this section, except during the period 

June 15 through January 31 of each year 

the Closed Area II Access Area is open 

to scallop vessels. 

(5) Number of trips—(i) Limited 

access vessels. Based on its permit 

category, a vessel issued a limited 

access scallop permit may fish no more 

than the maximum number of trips in 

2004 and 2005 in the Closed Area II 

Access Area as specified in the table at 

§ 648.60(a)(3)(i), unless the vessel owner 

has made an exchange with another 

vessel owner whereby the vessel gains 

a Closed Area II Access Area trip and 

gives up a trip into another Sea Scallop 

Access Area, as specified in 

§ 648.60(a)(3)(ii), or unless the vessel is 

taking a compensation trip for a prior 

63476 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

Sea Scallop Access Area trip that was 

terminated early, as specified in 

§ 648.60(c). 

(ii) General category vessels. (A) 

Except as provided in paragraph 

(c)(5)(ii)(B) of this section, effective 

upon approval of reporting and 

recordkeeping requirements by OMB, 

subject to the possession limits 

specified in §§ 648.52(b) and 

648.60(a)(5), and subject to the seasonal 

restrictions specified in paragraph (c)(4) 

of this section, a vessel issued a general 

category scallop permit, may not enter 

in, or fish for, possess, or land sea 

scallops in or from the Closed Area II 

Access Area once the Regional 

Administrator has provided notification 

in the Federal Register, in accordance 

with § 648.60(a)(8), that 420 trips in the 

2004 fishing year, and 385 trips in the 

2006 fishing year, have been taken, in 

total, by all general category scallop 

vessels. The Regional Administrator 

shall notify all general category scallop 

vessels of the date when the maximum 

number of allowed trips have been, or 

are projected to be, taken for the 2004 

and 2005 fishing years. 

(B) A vessel issued a NE Multispecies 

permit and a general category scallop 

permit that is fishing in an approved 

SAP under § 648.85 under multispecies 

DAS may fish in the Scallop Access 

Areas without being subject to the 

restrictions of paragraph (c)(5)(ii)(A) of 

this section provided that it has not 

enrolled in the Scallop Area Access 

program. Such vessel is prohibited from 

possessing scallops. 

(d) Nantucket Lightship Access Area.

(1) From March 1, 2005, through 

February 28, 2006, and every third 

fishing year thereafter (i.e., 2008, 2011, 

etc.) vessels issued scallop permits, 

except vessels issued a NE Multispecies 

permit and a general category scallop 

permit and fishing in an approved SAP 

under § 648.85 and under multispecies 

DAS, may not fish for, possess, or land 

scallops in or from the area known as 

the Nantucket Lightship Access Area, 

described in paragraph (d)(3) of this 

section. 

(2) From November 2, 2004, through 

February 28, 2005, and from March 1, 

2006, through February 28, 2008, and 

for every 2-year fishing year period after 

each year the area is closed pursuant to 

paragraph (d)(1) of this section (i.e., the 

2009 through 2010 fishing years, and 

2012 through 2013 fishing years, etc.) 

and subject to the seasonal restrictions 

specified in paragraph (d)(4) of this 

section, a vessel issued a limited access 

scallop permit may fish for, possess, or 

land scallops in or from, the area known 

as the Nantucket Lightship Sea Scallop 

Access Area, described in paragraph 

(d)(3) of this section, only if the vessel 

is participating in, and complies with 

the requirements of, the area access 

program described in § 648.60. 

(3) The Nantucket Lightship Sea 

Scallop Access Area is defined by 

straight lines connecting the following 

points in the order stated (copies of a 

chart depicting this area are available 

from the Regional Administrator upon 

request):

Point Latitude Longitude 

NLAA1 .................. 40°50′ N .. 69°30′ W 

NLAA2 .................. 40°50′ N .. 69°00′ W 

NLAA3 .................. 40°20′ N .. 69°00′ W 

NLSS4 .................. 40°20′ N .. 69°30′ W 

NLAA1 .................. 40°50′ N .. 69°30′ W 

(4) Season. A vessel issued a scallop 

permit may not fish for, possess, or land 

scallops in or from the area known as 

the Nantucket Lightship Sea Scallop 

Access Area, described in paragraph 

(d)(3) of this section, except during the 

period June 15 through January 31 of 

each year the Nantucket Lightship 

Access Area is open to scallop fishing. 

(5) Number of trips—(i) Limited 

access vessels. Based on its permit 

category, a vessel issued a limited 

access scallop permit may fish no more 

than the maximum number of trips in 

the Nantucket Lightship Access Area as 

specified in the table at § 648.60(a)(3)(i), 

unless the vessel owner has made an 

exchange with another vessel owner 

whereby the vessel gains a Nantucket 

Lightship Access Area trip and gives up 

a trip into another Sea Scallop Access 

Area, as specified in § 648.60(a)(3)(ii), or 

unless the vessel is taking a 

compensation trip for a prior Sea 

Scallop Access Area trip that was 

terminated early, as specified in 

§ 648.60(c). 

(ii) General category vessels. (A) 

Except as provided in paragraph 

(d)(5)(ii)(B) of this section, effective 

upon approval of reporting and 

recordkeeping requirements by OMB, 

subject to the possession limits 

specified in §§ 648.52(b) and 

648.60(a)(5), a vessel issued a general 

category scallop permit, may not enter 

in, or fish for, possess, or land sea 

scallops in or from the Nantucket 

Lightship Access Area once the 

Regional Administrator has provided 

notification in the Federal Register, in 

accordance with § 648.60(a)(8), that 386 

trips in the 2004 fishing year, and 340 

trips in the 2006 fishing year, have been 

taken, in total, by all general category 

scallop vessels. The Regional 

Administrator shall notify all general 

category scallop vessels of the date 

when the maximum number of allowed 

trips have been, or are projected to be, 

taken for the 2004 and 2006 fishing 

years.

(B) A vessel issued a NE Multispecies 

permit and a general category scallop 

permit that is fishing in an approved 

SAP under § 648.85 under multispecies 

DAS may fish in the Scallop Access 

Areas without being subject to the 

restrictions of paragraph (d)(5)(ii)(A) of 

this section provided that it has not 

enrolled in the Scallop Area Access 

program. Such vessel is prohibited from 

possessing scallops. 

(e) Transiting. A sea scallop vessel 

that has not declared a trip into the Sea 

Scallop Area Access Program may enter 

in the Sea Scallop Access Areas 

described in paragraphs (a) through (c) 

of this section, and possess scallops not 

caught in the Sea Scallop Access Areas, 

for transiting purposes only provided 

the vessel’s fishing gear is stowed in 

accordance with § 648.23(b), or there is 

a compelling safety reason to be in such 

areas without such gear being stowed. A 

scallop vessel that has declared a trip 

into the Sea Scallop Area Access 

Program may transit a Scallop Access 

Area while steaming to or from another 

Scallop Access Area, provided the 

vessel’s fishing gear is stowed in 

accordance with § 648.23(b), or there is 

a compelling safety reason to be in such 

areas without such gear being stowed. A 

vessel may only transit the Closed Area 

II Access Area, as described in 

paragraph (d) of this section, if there is 

a compelling safety reason for transiting 

the area and the vessel’s fishing gear is 

stowed in accordance with § 648.23(b).

■ 10. Section 648.60 is revised to read as 

follows:

§ 648.60 Sea scallop area access program 

requirements. 

(a) A vessel issued a limited access 

scallop permit may only fish in the Sea 

Scallop Access Areas specified in 

§ 648.59, subject to the seasonal 

restrictions specified in § 648.59, when 

fishing under a scallop DAS, provided 

the vessel complies with the 

requirements specified in paragraphs 

(a)(1) through (a)(9) and (b) through (f) 

of this section. A vessel issued a general 

category scallop permit may only fish in 

the Hudson Canyon Sea Scallop Access 

Area specified in § 648.59(a), subject to 

the possession limit specified in 

§ 648.52(a), unless that vessel is fishing 

in an approved NE multispecies fishery 

SAP under NE multispecies DAS. 

(1) VMS. Each vessel participating in 

the Sea Scallop Access Area Program 

must have installed on board an 

operational VMS unit that meets the 

minimum performance criteria specified 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63477

in §§ 648.9 and 648.10, and paragraph 

(e) of this section. 

(2) Declaration. (i) Prior to the 25th 

day of the month preceding the month 

in which fishing is to take place, the 

vessel must submit a monthly report 

through the VMS e-mail messaging 

system of its intention to fish in any Sea 

Scallop Access Area, 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 each Sea Scallop Access 

Area in which it intends to fish. The 

Regional Administrator may waive a 

portion of this notification period for 

trips into the Sea Scallop Access Areas 

if it is determined that there is 

insufficient time to provide such 

notification prior to an access opening. 

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) In addition to the information 

required under paragraph (a)(2)(i) of this 

section, and for the purpose of selecting 

vessels for observer deployment, each 

participating vessel owner or operator 

shall provide notice to NMFS of the 

time, port of departure, and specific Sea 

Scallop Access Area to be fished, at 

least 72 hr, unless otherwise notified by 

the Regional Administrator, prior to the 

beginning of any trip into the Sea 

Scallop Access Area. 

(iii) To fish in a Sea Scallop Access 

Area, each participating vessel owner or 

operator shall declare a Sea Scallop 

Access Area trip via VMS less than one 

hr prior to the vessel leaving port, in 

accordance with instructions to be 

provided by the Regional Administrator. 

(3) Number of Sea Scallop Access 

Area trips—(i) Table of Limited Access 

Vessel trips. (A) Except as provided in 

paragraph (c) of this section, the table 

below summarizes the total number of 

trips and DAS charges for limited access 

scallop vessels to take into Sea Scallop 

Access Areas during applicable seasons 

specified in § 648.59:

Fishing year Access area 

Maximum 

trips per 

area and 

per vessel 

Maximum number of trips; and equivalent DAS charge per trip 

Full-time Part-time Occasional 

2004 ....................................... Closed Area II .................... 2 7 trips; 12 DAS ....... 2 trips; 11.2 DAS .... 1 trip; 7 DAS. 

Nantucket Lightship ............ 1 

Hudson Canyon ................. 4 ................................. 1 trip; 12 DAS ......... 1 trip; 12 DAS. 

2005 ....................................... Closed Area I ..................... 1 5 trips; 12 DAS ....... 2 trips; 12 DAS ....... 1 trip; 5 DAS. 

Closed Area II .................... 1

Hudson Canyon ................. 3

2006 ....................................... Closed Area I ..................... 1 2 trips; 12 DAS ....... 1 trip; 9.6 DAS ........ 1 trip; 2 DAS. 

Nantucket Lightship ............ 1

(B) A limited access scallop vessel 

fishing in Sea Scallop Access Areas may 

fish the maximum number of trips 

specified above according to the vessel’s 

category in any Sea Scallop Access 

Area, provided the number of trips in 

any one Sea Scallop Access Area does 

not exceed the maximum number of 

trips allocated for such Sea Scallop 

Access Area as specified in § 648.59, 

unless the vessel owner has exchanged 

a trip with another vessel owner for an 

additional Sea Scallop Access Area trip, 

as specified in paragraph (a)(3)(ii) of this 

section. The DAS specified in the table 

in this paragraph (a)(3)(i) shall be 

automatically deducted for each Sea 

Scallop Access Area trip. 

(ii) One-for-one area access trip 

exchanges. If the total number of trips 

allocated to a vessel into all Sea Scallop 

Access Areas combined is more than 

one, the owner of a vessel issued a 

limited access scallop permit may 

exchange, on a one-for-one basis, 

unutilized trips into one access area for 

another vessel’s unutilized trips into 

another Sea Scallop Access Area. Onefor-one exchanges may be made only 

between vessels with the same permit 

category. For example, a full-time vessel 

may not exchange trips with a part-time 

vessel and vice versa. Vessel owners 

must request the exchange of trips by 

submitting a completed Trip Exchange 

Form at least 15 days before the date on 

which the applicant desires the 

exchange to be effective, but no later 

than February 2, 2005, in 2004, and June 

1 of each year thereafter. Each vessel 

involved in an exchange is required to 

submit a completed Trip Exchange 

Form. Trip Exchange Forms will be 

provided by the Regional Administrator 

upon request. The Regional 

Administrator shall review the records 

for each vessel to confirm that each 

vessel has unutilized trips remaining to 

transfer. The transfer is not effective 

until the vessel owner(s) receive a 

confirmation in writing from the 

Regional Administrator that the trip 

exchange has been made effective. A 

vessel owner may exchange trips 

between two or more vessels under his/

her ownership. A vessel owner holding 

a Confirmation of Permit History is not 

eligible to exchange trips. 

(iii) [Reserved] 

(4) Area fished. While on a Sea 

Scallop Access Area trip, a vessel may 

not fish for, possess, or land scallops in 

or from outside the specific declared 

Sea Scallop Access Area during that 

trip, and may not enter or exit the 

specific declared Sea Scallop Access 

Area more than once per trip. A vessel 

on a Sea Scallop Access Area trip may 

not enter or be in another Sea Scallop 

Access Area on the same trip except 

such vessel may transit another Sea 

Scallop Access Area provided its gear is 

stowed in accordance with § 648.23(b). 

(i) Reallocation of trips into open 

areas. If the yellowtail flounder TAC 

allocated for a Scallop Access Area 

specified in § 648.59(b) through (d) has 

been harvested and such area has been 

closed, a vessel with trips remaining to 

be taken in such Access Areas may fish 

the remaining DAS associated with the 

unused trip(s) in Open Areas, up to the 

maximum DAS specified in 

§ 648.53(b)(4)(iii)(A) through (C). 

(ii) [Reserved] 

(5) Possession and landing limits—(i) 

Scallop possession limits. Unless 

authorized by the Regional 

Administrator as specified in 

paragraphs (c) and (d) of this section, 

after declaring a trip into a Sea Scallop 

Access Area, a vessel owner or operator 

of a limited access scallop vessel may 

fish for, possess, and land, per trip, 

scallops, up to the maximum amounts 

specified in the table in this paragraph 

(a)(5). No vessel fishing in the Sea 

Scallop Access Area may possess 

shoreward of the VMS demarcation line 

or land, more than 50 bu (17.6 hl) of inshell scallops.

63478 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

Fishing year Access area 

Possession limit 

Full-time Part-time Occasional 

2004 ............................... Closed Area II .................. 18,000 lb (8,165 kg) ........... 16,800 lb (7,620 kg) ........... 10,500 lb (4,763 kg). 

Nantucket Lightship 

Hudson Canyon 18,000 lb (8,165 kg) ........... 18,000 lb (8,165 kg). 

2005 ............................... Closed Area I ................... 18,000 lb (8,165 kg) ........... 18,000 lb (8,165 kg) ........... 7,500 lb (3,402 kg). 

Closed Area II 

Hudson Canyon 

2006 ............................... Closed Area I ................... 18,000 lb (8,165 kg) ........... 14,400 lb (6,532 kg) ........... 3,000 lb (1,361 kg). 

Nantucket Lightship 

(ii) NE multispecies possession limits 

and yellowtail flounder TAC. After 

declaring a trip into a Sea Scallop 

Access Area and fishing within the 

Access Areas described in § 648.59(b) 

through (d), and provided the vessel has 

been issued a Scallop NE Multispecies 

Possession Limit permit as specified in 

§ 648.4(a)(1)(ii), a vessel owner or 

operator of a limited access scallop 

vessel may fish for, possess, and land, 

per trip, up to a maximum of 1,000 lb 

(453.6 kg) of all NE multispecies 

combined, subject to the minimum 

commercial fish size restrictions 

specified in § 648.83(a)(2), and the 

additional restrictions for Atlantic cod, 

haddock, and yellowtail flounder 

specified in paragraphs (a)(5)(ii)(A) 

through (C) of this section. 

(A) Atlantic Cod. A vessel may bring 

onboard and possess only up to 100 lb 

(45.4 kg) of Atlantic cod per trip, 

provided such fish is intended for 

personal use only and cannot be not 

sold, traded, or bartered. 

(B) Haddock. Subject to the seasonal 

restrictions established under the Sea 

Scallop Area Access Program and 

specified in § 648.59(b)(4), (c)(4), and 

(d)(4), a vessel is prohibited from 

possessing or landing haddock from 

January 1 through June 30, but may 

possess and land haddock up to the 

overall possession limit of all NE 

multispecies combined, as specified in 

paragraph (a)(5)(ii) of this section for the 

rest of the Sea Scallop Area Access 

Program season. 

(C) Yellowtail flounder—(1) Yellowtail 

flounder TACs. Limited access scallop 

vessels participating in the Area Access 

Program and fishing within the Access 

Areas specified in § 648.59(b) through 

(d), are authorized to catch yellowtail 

flounder up to the TACs specified in 

§ 648.85(c) for the Closed Area I, Closed 

Area II, and Nantucket Lightship Access 

Scallop Areas. The Regional 

Administrator shall publish notification 

in the Federal Register in accordance 

with the Administrative Procedure Act, 

to notify scallop vessel owners that the 

scallop fishery portion of the TAC for a 

yellowtail flounder stock has been or is 

projected to be harvested by scallop 

vessels in any Access Area. Upon 

notification in the Federal Register that 

a TAC has been or is projected to be 

harvested, scallop vessels are prohibited 

from declaring and initiating a trip 

within the Access Area(s), where the 

TAC applies, for the remainder of the 

fishing year. The yellowtail flounder 

TACs allocated to scallop vessels may 

be increased by the Regional 

Administrator after December 1 of each 

year pursuant to § 648.85(c)(2). 

(2) SNE/MA yellowtail flounder 

possession limit. After declaring a trip 

into and fishing within the Nantucket 

Lightship Access Area described in 

§ 648.59(d), the vessel owner or operator 

of a limited access scallop vessel may 

fish for, possess, and land up to 250 lb 

(113.6 kg) per trip of yellowtail flounder 

between June 15 and June 30, and from 

July 1 through January 31, up to 1,000 

lb (453.6 kg) per trip subject to the 

amount of other NE multispecies 

onboard, provided the yellowtail 

flounder TAC as specified in 

§ 648.85(c)(i) has not been harvested. 

(3) GB yellowtail flounder possession 

limit. After declaring a trip into and 

fishing within the Closed Area I or 

Closed Area II Access Area described in 

§ 648.59(b) and (c), the vessel owner or 

operator of a limited access scallop 

vessel may fish for, possess, and land up 

to 1,000 lb (453.6 kg) per trip of 

yellowtail flounder subject to the 

amount of other NE multispecies 

onboard, provided the yellowtail 

flounder TAC specified in § 648.85(c) 

has not been harvested. If the yellowtail 

flounder TAC established for the 

Eastern U.S./Canada Area pursuant to 

§ 648.85(a)(2) has been or is projected to 

be harvested, as described in 

§ 648.85(a)(3)(iv)(C)(3), scallop vessels 

are prohibited from harvesting, 

possessing, or landing yellowtail 

flounder in or from the Closed Area I 

and Closed Area II Access Areas. 

(iii) [Reserved] 

(6) Gear restrictions. (i) The minimum 

ring size for dredge gear used by a vessel 

fishing on a Sea Scallop Access Area 

trip is 4 inches (10.2 cm) in diameter. 

Dredge or trawl gear used by a vessel 

fishing on a Sea Scallop Access Area 

trip must be in accordance with the 

restrictions specified in § 648.51(a) and 

(b). 

(ii) [Reserved] 

(7) Transiting. While outside a Sea 

Scallop Access Area on a Sea Scallop 

Access Area trip, the vessel must have 

all fishing gear stowed in accordance 

with § 648.23(b), unless there is a 

compelling safety reason to be in the 

area without gear stowed. 

(8) Off-loading restrictions. The vessel 

may not off-load its catch from a Sea 

Scallop Access Area trip at more than 

one location per trip. 

(9) Reporting. The owner or operator 

must submit reports through the VMS, 

in accordance with instructions to be 

provided by the Regional Administrator, 

for each day fished when declared in 

the Sea Scallop Area Access Program, 

including trips accompanied by a 

NMFS-approved observer. The reports 

must be submitted in 24-hour intervals, 

for each day beginning at 0000 hours 

and ending at 2400 hours. The reports 

must be submitted by 0900 hours of the 

following day and must include the 

following information: 

(i) Total pounds/kilograms of scallop 

meats kept, total number of tows and 

the Fishing Vessel Trip Report log page 

number. 

(ii) Total pounds/kilograms of 

yellowtail flounder kept and total 

pounds/kilograms of yellowtail flounder 

discarded. 

(iii) For each trip that the vessel has 

a NMFS approved observer on board, 

the total pounds/kilograms of scallop 

meats kept and the total pounds/

kilograms of yellowtail flounder caught 

on all tows that were observed by a 

NMFS approved observer. 

(b) Accrual of DAS. For each Sea 

Scallop Access Area trip, except as 

provided in paragraph (c) of this 

section, a vessel on a Sea Scallop Access 

Area trip shall have DAS specified in 

paragraph (a)(3) of this section deducted 

from its Access Area DAS allocation, 

regardless of the actual number of DAS 

used during the trip. 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63479

(c) Compensation for Sea Scallop 

Access Area trips terminated early. If a 

Sea Scallop Access Area trip is 

terminated before catching the allowed 

possession limit, the vessel may be 

authorized to fish an additional trip in 

the same Sea Scallop Access Area based 

on the conditions and requirements of 

paragraphs (c)(1) through (5) of this 

section. 

(1) The vessel owner/operator has 

determined that the Sea Scallop Access 

Area trip should be terminated early for 

reasons deemed appropriate by the 

operator of the vessel; 

(2) The amount of scallops landed by 

the vessel for the trip must be less than 

the maximum possession limit specified 

in paragraph (a)(5) of this section.

(3) The vessel owner/operator must 

report the termination of the trip prior 

to leaving the Sea Scallop Access Area 

by VMS email messaging, with the 

following information: Vessel name, 

vessel owner, vessel operator, time of 

trip termination, reason for terminating 

the trip (for NMFS recordkeeping 

purposes), expected date and time of 

return to port, and amount of scallops 

on board in pounds. 

(4) The vessel owners/operator must 

request that the Regional Administrator 

authorize an additional trip as 

compensation for the terminated trip by 

submitting a written request to the 

Regional Administrator within 30 days 

of the vessel’s return to port from the 

terminated trip. 

(5) The Regional Administrator must 

authorize the vessel to take an 

additional trip and must specify the 

amount of scallops that the vessel may 

land on such trip and the number of 

DAS charged for such trip, pursuant to 

the calculation in paragraphs (c)(5)(i) 

through (iii) of this section. Such 

authorization shall be made within 10 

days of receipt of the formal written 

request for compensation. 

(i) The number of DAS a vessel will 

be charged for an additional trip in the 

Sea Scallop Access Area shall be 

calculated as the difference between the 

number of DAS automatically deducted 

for the trip as specified in paragraph (b) 

of this section, and the sum of the 

following calculation: Two DAS, plus 

one DAS for each 10 percent increment 

of the overall possession limit on board. 

Pounds of scallops landed shall be 

rounded up to the nearest 10-percent 

increment. 

(ii) The amount of scallops that can be 

landed on an authorized additional Sea 

Scallop Access Area trip shall equal 

1,500 lb (680.4 kg) multiplied by the 

number of DAS to be charged for the 

resumed trip. 

(iii) The vessel that terminates a Sea 

Scallop Access Area trip and has been 

authorized to take an additional trip 

shall have the DAS charged for that trip, 

as determined under paragraph (c)(5)(i) 

of this section, deducted from its Sea 

Scallop Access Area DAS allocation 

specified in paragraph (a)(3) of this 

section, regardless of the actual number 

of DAS fished during the additional trip. 

Vessels that are authorized more than 

one additional trip for compensation for 

more than one terminated trip may 

combine the authorized trips into one, 

if all terminated trips occurred in the 

same Sea Scallop Access Area and 

provided the total possession limits do 

not exceed those specified in paragraph 

(a)(5) of this section. 

(d) Possession limit to defray costs of 

observers—(1) Observer set-aside limits 

by area—(i) Hudson Canyon Access 

Area. For 2004 and 2005, the observer 

set-asides for the Hudson Canyon 

Access Area are 187,900 lb (85.2 mt) 

and 149,562 lb (67.8 mt), respectively. 

(ii) Closed Area I Access Area. For the 

2005 and 2006 fishing years, the 

observer set-asides for the Closed Area 

I Access Area are 32,430 lb (15 mt) and 

28,241 lb (13 mt), respectively. 

(iii) Closed Area II Access Area. For 

the 2004 and 2005 fishing years, the 

observer set-asides for the Closed Area 

II Access Area are 83,952 lb (38 mt) and 

76,958 lb (35 mt), respectively. 

(iv) Nantucket Lightship Access Area. 

For the 2004 and 2006 fishing years, the 

observer set-asides for the Nantucket 

Lightship Access Area are 77,184 lb (35 

mt) and 67,968 lb (31 mt), respectively. 

(2) Increase in the possession limit to 

defray the costs of observers. The 

Regional Administrator may increase 

the sea scallop possession limit 

specified in paragraph (a)(5) of this 

section to defray costs of at-sea 

observers deployed on area access trips 

subject to the limits specified in 

paragraph (d)(1) of this section. Owners 

of scallop vessels shall be notified of the 

increase in the possession limit through 

a permit holder letter issued by the 

Regional Administrator. If the observer 

set-aside is fully utilized prior to the 

end of the fishing year, the Regional 

Administrator shall notify owners of 

scallop vessels that, effective on a 

specified date, the possession limit will 

be decreased to the level specified in 

paragraph (a)(5) of this section. Vessel 

owners shall be responsible for paying 

the cost of the observer, 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. 

(e) Possession limits and/or number of 

trips to defray the costs of sea scallop 

research—(1) Research set-aside limits 

and number of trips by area—(i) Hudson 

Canyon Access Area. For the 2004 and 

2005 fishing years, the research setasides for the Hudson Canyon Access 

Area are 375,800 lb (170.5 mt) and 

299,123 lb (135.7 mt), respectively. 

(ii) Closed Area I Access Area. For the 

2005 and 2006 fishing years, the 

research set-asides for the Closed Area 

I Access Area and 64,860 lb (29 mt) and 

56,482 lb (26 mt), respectively. 

(iii) Closed Area II Access Area. For 

the 2004 and 2005 fishing years, the 

research set-asides for the Closed Area 

II Access Area are 167,904 lb (76 mt) 

and 153,971 lb (70 mt), respectively. 

(iv) Nantucket Lightship Access Area. 

For the 2004 and 2006 fishing years, the 

research set-asides for the Nantucket 

Lightship Access Area are 154,368 lb 

(70 mt) and 135,937 lb (62 mt), 

respectively. 

(2) Increase of possession limit to 

defray the costs of sea scallop research. 

The Regional Administrator may 

increase the sea scallop possession limit 

specified in paragraph (a)(5) of this 

section or allow additional trips into a 

Sea Scallop Access Area to defray costs 

for approved sea scallop research up to 

the amount specified in paragraph (e)(1) 

of this section.

(3) Yellowtail flounder research TAC 

set-aside. Vessels conducting research 

approved under the process described 

in § 648.56, and in the Access Areas 

specified in § 648.59(b) through (d) may 

harvest yellowtail flounder up to the 

TACs specified in the table in this 

paragraph (e)(3), and subject to the 

possession limits specified in paragraph 

(a)(5)(ii)(C) of this section. If the TACs 

listed in the table in this paragraph 

(e)(3) are harvested, research may no 

longer be authorized in the applicable 

Access Area.

Yellowtail flounder stock Access area Fishing year Yellowtail flounder research TAC 

Southern New England ............................................................. Nantucket Lightship ................................. 2004 3,086 lb (1.4 mt). 

2005 8,818 lb (4.0 mt). 

2006 14,771 lb (6.7 mt). 

63480 Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 

Yellowtail flounder stock Access area Fishing year Yellowtail flounder research TAC 

GB ............................................................................................. Closed Area I and Closed Area II ........... 2004 26,455 lb (12 mt). 

2005 (1) 

2006 (1) 

To be established annually, according to the specification procedure described in § 648.85(a)(2). 

(f) VMS polling. For the duration of 

the Sea Scallop Area Access Program, as 

described in this section, all sea scallop 

vessels equipped with a VMS unit shall 

be polled at a minimum of twice per 

hour, regardless of whether the vessel is 

enrolled in the Sea Scallop Area Access 

Program. Vessel owners shall be 

responsible for paying the costs of 

polling twice per hour. 

(g) General category scallop vessels. 

(1) Effective upon approval of reporting 

and recordkeeping requirements by 

OMB, a vessel issued a general category 

scallop permit, except a vessel issued a 

NE Multispecies permit and a general 

category scallop permit that is fishing in 

an approved SAP under § 648.85 under 

multispecies DAS that has not enrolled 

in the general category Access Area 

fishery, may only fish in the Closed 

Area I, Closed Area II, and Nantucket 

Lightship Sea Scallop Access Areas 

specified in § 648.59(b) through (d), 

subject to the seasonal restrictions 

specified in § 648.59(b)(4), (c)(4), and 

(d)(4), and subject to the possession 

limit specified in § 648.52(a), and 

provided the vessel complies with the 

requirements specified in paragraphs 

(a)(1), (a)(2), (a)(6) through (a)(9), (d), (e), 

(f), and (g) of this section, and 

§ 648.85(c)(3)(ii). A vessel issued a NE 

Multispecies permit and a general 

category scallop permit that is fishing in 

an approved SAP under § 648.85 under 

multispecies DAS that has not enrolled 

in the Sea Scallop Area Access program 

as specified in paragraph (a)(2) is not 

subject to the restrictions and 

requirements specified in 

§ 648.59(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and 

this paragraph (g). 

(2) Gear restrictions. The combined 

dredge width in use by, or in possession 

on board, general category scallop 

vessels fishing in the Access Areas 

described in § 648.59(b) through (d) may 

not exceed 10.5 ft (3.2 m), measured at 

the widest point in the bail of the 

dredge. 

(3) Scallop TAC. General category 

vessels fishing in the Access Areas 

specified in § 648.59(b) through (d) are 

authorized to land scallops, subject to 

the possession limit specified in 

§ 648.52(a), up to the amount allocated 

to the scallop TACs for each Access 

Area specified below. If the scallop TAC 

for a specified Access Area has been, or 

is projected to be harvested, the 

Regional Administrator shall publish 

notification in the Federal Register, in 

accordance with the Administrative 

Procedure Act, to notify general 

category vessels that they may no longer 

fish within the specified Access Area. 

(i) Closed Area I Access Area. 64,840 

lb (29 mt) in 2005, and 56,482 lb (25.6 

mt) in 2006. 

(ii) Closed Area II Access Area. 

167,904 (76 mt) in 2004, and 153,971 lb 

(70 mt) in 2005. 

(iii) Nantucket Lightship Access Area. 

154,368 lb (70 mt) in 2004, and 135,937 

lb (62 mt) in 2006. 

(4) Possession Limits—(i) Scallops. A 

vessel issued a NE Multispecies permit 

and a general category scallop permit 

that is fishing in an approved SAP 

under § 648.85 under multispecies DAS 

that has not enrolled in the general 

category Access Area fishery is 

prohibited from possessing scallops. 

General category scallop vessels fishing 

in the Access Areas specified in 

§ 648.59(b) through (d) may possess 

scallops up to the possession limit 

specified in § 648.52(b), subject to a 

limit on the total number of trips that 

can be taken by all such vessels into the 

Access Areas, as specified in 

§ 648.59(b)(5)(ii), (c)(5)(ii), and (d)(5)(ii). 

If the number of trips allowed have been 

or are projected to be taken, the 

Regional Administrator shall publish 

notification in the Federal Register, in 

accordance with the Administrative 

Procedure Act, to notify general 

category vessels that they may no longer 

fish within the specified Access Area. 

(ii) Other species. Except for vessels 

issued a general category scallop permit 

and fishing under an approved NE 

multispecies SAP under NE 

multispecies DAS, general category 

vessels fishing in the Access Areas 

specified in § 648.59(b) through (d) are 

prohibited from possessing any other 

species of fish. 

(5) Number of trips. General category 

scallop vessels may not fish for, possess, 

or land scallops in or from the Access 

Areas specified in § 648.59(b) through 

(d) after the effective date of the 

notification published in the Federal 

Register, stating that the total number of 

trips specified in § 648.59(b)(5)(ii), 

(c)(5)(ii), and (d)(5)(ii) have been, or are 

projected to be, taken by general 

category scallop vessels.

■ 11. Section 648.61 is revised to read as 

follows:

§ 648.61 EFH closed areas. 

(a) No scallop fishing vessel may 

enter, fish in, or be in the EFH Closure 

Areas described in § 648.80(h)(1)(i) 

through (iv). A chart depicting these 

areas is available from the Regional 

Administrator upon request. 

(b) Transiting. A scallop vessel may 

transit the EFH Closure Areas, as 

defined in § 648.81(h)(1), provided that 

its gear is stowed in accordance with the 

provisions of § 648.23(b), and that it 

complies with the transiting restrictions 

for the Closed Area II Habitat Closure 

Area specified in § 648.81(b)(2)(iv).

■ 12. In § 648.81, paragraphs (a)(2)(vi), 

(b)(2)(v), and (c)(2)(iv) are added to read 

as follows:

§ 648.81 NE multispecies closed areas and 

measures to protect EFH. 

(a) * * *

(2) * * *

(vi) Fishing for scallops within the 

Closed Area I Access Area defined in 

§ 648.59(b)(3) during the season 

specified in § 648.59(b)(4), and pursuant 

to the provisions specified in § 648.60. 

(b) * * *

(2) * * *

(v) Fishing for scallops within the 

Closed Area II Access Area defined in 

§ 648.59(c)(3), during the season 

specified in § 648.59(c)(4), and pursuant 

to the provisions specified in § 648.60.

(c) * * *

(2) * * *

(iv) Fishing for scallops within the 

Nantucket Lightship Access Area 

defined in § 648.59(d)(3), during the 

season specified in § 648.59(d)(4), and 

pursuant to the provisions specified in 

§ 648.60.

* * * * *

■ 13. In § 648.85, paragraph (c) is added 

to read as follows:

§ 648.85 Special management programs.

* * * * *

(c) Scallop fishery closed area access 

program. Limited access scallop vessels 

operating under the Sea Scallop Area 

Access Program, as defined in § 648.59, 

and fishing in accordance with the 

regulations at § 648.60 may possess and 

Federal Register / Vol. 69, No. 211 / Tuesday, November 2, 2004 / Rules and Regulations 63481

land up to 1,000 lb (453.6 kg) of all NE 

multispecies combined, as provided in 

§ 648.60(a)(5)(ii), unless otherwise 

restricted in this section. 

(1) Yellowtail flounder bycatch TAC 

allocation. An amount of yellowtail 

flounder equal to 10 percent of the total 

yellowtail flounder TAC for each of the 

stock areas specified in paragraphs 

(c)(1)(i) and (c)(1)(ii) of this section may 

be harvested by scallop vessels subject 

to the restrictions of this paragraph. 

Limited access scallop vessels enrolled 

in the Sea Scallop Area Access Program 

and fishing within the Area Access 

areas defined at § 648.59(b) through (d) 

may harvest yellowtail flounder up to 

9.8 percent of the applicable yellowtail 

flounder TAC. Scallop vessels 

participating in approved research 

under the process described in § 648.56, 

and fishing in the Access Areas 

specified in § 648.59(b) through (d), may 

harvest 0.2 percent of the applicable 

yellowtail flounder TAC. The amount of 

yellowtail flounder that may be 

harvested in the 2004 through the 2006 

fishing years under this section shall be 

specified in a small entity compliance 

guide. The yellowtail flounder TAC setasides for research are specified in 

§ 648.60(e)(3). 

(i) SNE/MA yellowtail flounder. 

Limited access scallop vessels may 

harvest an amount of yellowtail 

flounder equal to 9.8 percent of the 

SNE/MA yellowtail flounder TAC from 

the Nantucket Lightship Closed Area 

Sea Scallop Access Area for each fishing 

year, unless otherwise prohibited under 

paragraph (c)(3) of this section. An 

amount of yellowtail flounder equal to 

0.2 percent of the SNE/MA yellowtail 

flounder bycatch TAC, as specified in 

paragraph (c)(1) of this section, is set 

aside to allow for the harvest of 

yellowtail flounder during research 

approved under the scallop research 

program specified in § 648.56 and 

conducted in the Access Areas specified 

in § 648.59(b) through (d). 

(ii) GB yellowtail flounder. Limited 

access scallop vessels may harvest an 

amount of yellowtail flounder up to 9.8 

percent of the GB yellowtail flounder 

TAC from the Closed Area I and Closed 

Area II Sea Scallop Access Areas, 

combined, for each fishing year, unless 

otherwise prohibited under paragraph 

(c)(3) of this section. An amount of 

yellowtail flounder equal to 0.2 percent 

of the GB yellowtail flounder TAC, as 

specified in paragraph (c)(1) of this 

section, is set aside to allow for the 

harvest of yellowtail flounder during 

research approved under the scallop 

research program specified in § 648.56. 

(2) Adjustments to the yellowtail 

flounder TAC allocation. If, on or after 

December 1 of each year, information is 

available to make an accurate projection 

of yellowtail catch through the end of 

the fishing year, and if the Regional 

Administrator projects that the total GB 

yellowtail flounder TAC for the NE 

multispecies fishery specified at 

§ 648.85(a)(2) will not be harvested by 

the end of the fishing year, and if the 

catch of yellowtail flounder in the Sea 

Scallop Area Access Program is below 

10 percent of the GB yellowtail flounder 

bycatch TAC specified in paragraph 

(c)(1) of this section, the Regional 

Administrator may, through rulemaking 

consistent with the Administrative 

Procedure Act, increase the yellowtail 

flounder bycatch TAC allocated to 

vessels participating in the Sea Scallop 

Area Access Program above 10 percent, 

provided that such increase will not 

result in exceeding the total GB 

yellowtail flounder TAC specified in 

§ 648.85(a)(2). 

(3) Possession restriction and closure 

when yellowtail flounder TAC has been 

harvested. (i) If the Regional 

Administrator determines that the GB 

yellowtail flounder TAC specified for 

the U.S./Canada Management Area 

under paragraph (a)(2) of this section 

has been harvested or is projected to be 

harvested, and notification has been 

published in the Federal Register, 

pursuant to paragraph (a)(3)(iv)(C)(3) of 

this section, but the yellowtail flounder 

bycatch TAC allocation for the GB stock 

specified under paragraph (c)(1)(ii) of 

this section has not been harvested, 

scallop vessels may continue to fish in 

the Sea Scallop Area Access Program, 

but may not retain or land yellowtail 

flounder, until the yellowtail flounder 

bycatch TAC is caught, as specified in 

paragraph (c)(3)(ii) of this section. All 

catch of yellowtail flounder must 

continue to be reported by scallop 

vessels fishing in Access Areas as 

required under § 648.60. 

(ii) If the Regional Administrator 

determines that the yellowtail flounder 

bycatch TAC allocation for the GB stock 

specified under paragraph (c)(1)(ii), of 

this section has been or is projected to 

be harvested, scallop vessels may not 

fish within the Closed Area I and II 

Access Areas for the remainder of the 

fishing year. The Regional 

Administrator shall publish notification 

in the Federal Register, in accordance 

with the Administrative Procedure Act, 

to notify vessels that they may no longer 

fish within the Closed Area I and II 

Access Areas for the remainder of the 

fishing year.

* * * * *

■ 14. In § 648.88, paragraph (c) is revised 

to read as follows:

§ 648.88 Multispecies open access permit 

restrictions.

* * * * *

(c) Scallop NE multispecies 

possession limit permit. With the 

exception of vessels fishing in the Sea 

Scallop Access Areas as specified in 

§ 648.59(b) through (d), a vessel that has 

been issued a valid open access scallop 

NE multispecies possession limit permit 

may possess and land up to 300 lb 

(136.1 kg) of regulated species when 

fishing under a scallop DAS allocated 

under § 648.53, provided the vessel does 

not fish for, possess, or land haddock 

from January 1 through June 30, as 

specified under § 648.86(a)(2)(i), and 

provided that the amount of yellowtail 

flounder on board the vessel does not 

exceed the trip limitations specified in 

§ 648.86(g), and provided the vessel has 

at least one standard tote on board. A 

vessel fishing in the Sea Scallop Access 

Areas as specified in § 648.59(b) through 

(d) is subject to the possession limits 

specified in § 648.60(a)(5)(ii).

* * * * *

[FR Doc. 04–24429 Filed 10–28–04; 4:14 pm] 

BILLING CODE 3510–22–P