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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 15 CFR Part 902
          - 50 CFR Part 648
          - [Docket No. 050520137-5268-03; I.D. 050905F]
          - RIN 0648-AT10

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

# ACTION:

Final rule; delay of effective date.

# SUMMARY:

This final rule clarifies certain requirements and delays the effective date for the implementation of some of the measures specified in Framework 17 to the Atlantic Sea Scallop Fishery Management Plan (Framework 17), which was developed and submitted by the New England Fishery Management Council (Council) and approved by NMFS. The measures require that vessels issued a general category scallop permit, and that land or intend to land over 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) of unshucked scallops, install and operate vessel monitoring systems (VMS) in order to provide more complete monitoring of the general category scallop fleet. Delay of the October 21, 2005, effective date is necessary to allow sufficient time for vessel owners to purchase, install, and activate VMS required under Framework 17. The new effective date is December 1, 2005.

# DATES:

The amendments in this rule are effective December 1, 2005. The effective date of the amendments to 50 CFR 648.4(a)(2)(ii), 648.9(c)(1) and (c)(2), 648.10(b)(1)(iv), and 648.14(i)(11) and (12), 648.52(c), and 15 CFR 902.1 published August 22, 2005, at 70 FR 48860, is delayed until December 1, 2005.

# ADDRESSES:

                        Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to Patricia A. Kurkul, Regional Administrator (RA), NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930, and to the Office of Management and Budget (OMB) by e-mail at                         *David_Rostker@omb.eop.gov*                         or by fax to (202) 395-7285.                    
      ( print page 61234)    
                        Copies of Framework 17, its 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*.                    

# FOR FURTHER INFORMATION CONTACT:

Peter Christopher, Fishery Policy Analyst, (978) 281-9288, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

## Background

                    Framework 17 was adopted by the Council on February 1, 2005, and submitted to NMFS on March 11, 2005, with a supplement submitted on April 4, 2005. A proposed rule for Framework 17 was published in the                     **Federal Register**                     on June 2, 2005 (70 FR 32282), with a comment period ending on June 17, 2005. The final rule for Framework 17 was published in the                     **Federal Register**                     on August 22, 2005 (70 FR 48860). Details about the measures established through Framework 17 are discussed in detail in those documents and are not repeated here.                

Framework 17 requires all general category vessels that land, or intend to land, more than 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) of unshucked scallops, to install and operate a VMS onboard the vessel. The use of VMS is expected to assist NMFS monitor general category vessel activity and facilitate the enforcement of the possession limit regulations. Because of the cost of installing and operating VMS, the requirement may also help NMFS distinguish the active fleet of general category vessels that target scallops from the inactive fleet of permitted vessels. Since VMS will provide better data for fishery management, the data is of particular importance to help identify areas that are more frequently targeted by small vessels fishing outside of the typical scallop fishing areas (e.g., inshore areas of the Gulf of Maine). The transmission of location information through VMS could also assist U.S. Coast Guard search and rescue operations by automatically tracking vessel position.

In order to administer and effectively enforce the new VMS requirement for general category vessels, Framework 17 established a new general category scallop permit designation under NMFS's Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), section 305(d) authority. Framework 17 requires vessel owners requesting general category scallop permits to determine whether they will fish under the non-VMS general category vessel permit, which authorizes the possession of up to 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) of unshucked scallops, or under the VMS general category vessel permit, which authorizes the possession of up to 400 lb (181.44 kg) of shucked or 50 bu (17.62 hL) of unshucked scallops. Vessel owners who have not submitted a completed application for a VMS general category vessel permit by December 1, 2005, will be issued a non-VMS general category vessel permit at that time. Vessel owners may change from one general scallop permit category to another within 45 days of the issuance of the new general category vessel permit.

The response by general category scallop vessels for purchase and installation of VMS units has been higher than expected by the Council and NMFS. Marine electronics dealers that install VMS units are reportedly having difficulty meeting the higher than expected purchase and installation demand. In order to provide a reasonable period of time for vessel owners to come into compliance with the new requirements, and to avoid a disruption in fishing activity by general category scallop vessels, this action delays the effective date of the provisions related to the new VMS requirements until December 1, 2005. The prior effective date of October 21, 2005, did not allow sufficient time to come into compliance. Without an extension of the effective date, vessels intending to fish for more than 40 lb (18.14 kg) of shucked scallops or 5 bu (176.2 L) of unshucked scallops would be prohibited from doing so until they are able to install and activate a VMS, or be subject to an enforcement action through no fault of their own. This rule also clarifies that, in order to be issued the VMS general category vessel permit, a vessel owner is required to either submit a copy of the vendor's installation receipt or provide verification of vendor activation from a NMFS-approved VMS vendor.

## Classification

The RA determined that Framework Adjustment 17 is necessary for the conservation and management of the Atlantic sea scallop fishery and is consistent with the Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The AA had determined that good cause exists to waive prior notice and opportunity for public comment pursuant to 5 U.S.C 553(b)(B) because it would be impracticable and contrary to the public interest. Given the imminence of the effective date, seeking prior public comment on this temporary stay would have been impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. Since electronics dealers cannot meet the higher than expected demand for VMS units, vessels would not be able to comply with the VMS requirements by the October 21, 2005, effective date. Through no fault of their own, vessels that would have otherwise complied with the October 21, 2005, effective date, but could not acquire VMS units, would be prohibited from fishing for more than 40 lb (18.14 kg) of shucked scallops or 5 bu (176.2 L) of unshucked scallops or would be subject to enforcement action. In addition, the revised regulatory text in this rule clarifies that vessel owners can install VMS units themselves as long as activation of the VMS through the vendor is verified. In conversations with owners who have sought installation from a vendor, but have not yet been able to get their VMS units installed, NMFS has learned that some owners are able to install the units themselves. Accordingly, the revised regulatory text in this rule clarifies that vessel owners can install VMS units themselves as long as approved vendors subsequently provide proof of activation. This will speed up the process of allowing all vessels seeking VMS units to have them installed in the most timely fashion, and may move vessel owners who cannot self-install up in the queue, thereby ensuring that all affected vessels are in compliance in the shortest timeframe possible. Any delay of this clarification will undermine its purpose of bringing the most vessels into compliance in the shortest time possible.

                    Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601*et seq.*, are inapplicable.                

This final rule modifies the effective date for new collection-of-information requirements approved by OMB under the Paperwork Reduction Act (PRA). These new requirements apply to general category scallop vessels only (the requirements already exist for and/or do not apply to other scallop vessels). Public reporting burdens for these collections of information are estimated to average as follows:
      ( print page 61235)    
1. Purchase and installation of VMS units, OMB control number 0648-0529 (1 hr per response);

2. Verification of VMS units, OMB control number 0648-0529 (5 min per response);

3. Notification and application for appropriate general category permit designation, OMB control number 0648-0529 (30 min per response);

4. VMS power-down notification, OMB control number 0648-0529 (2 min per response); and

5. VMS re-power and trip notification, OMB control number 0648-0529 (2 min per response).

These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

                    Public comment is sought regarding: Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and to OMB (see                     **ADDRESSES**                    ).                

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

# List of Subjects in 50 CFR Part 648

      - Fisheries
      - Fishing
      - Recordkeeping and reporting requirements

Dated: October 18, 2005.

James W. Balsiger,

Acting 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 § 648.4, paragraphs (a)(2)(ii)(B) through (E) are revised to read as follows: 

§ 648.4

(a) * * *

(2) * * *

(ii) * * *

                            (B)                             *VMS general scallop permit.*                             To possess or land more than 40 lb (18.14 kg) of shucked meats or 5 bu (176.2 L) of in-shell scallops, but no more than 400 lb (181.44 kg) of shucked meats, or 50 bu (17.62 hL) of in-shell scallops, a vessel must apply for and be issued a VMS general scallop permit. Issuance of a VMS general scallop permit requires the vessel owner to submit a copy of the vendor's installation receipt or provide verification of vendor activation from a NMFS-approved VMS vendor as described in § 648.9.                        

                            (C)                             *Vessels without general scallop permits.*                             No scallop permit is required for a vessel that possesses or lands up to 40 lb (18.14 kg) of shucked meats or 5 bu (176.2 L) of in-shell scallops per trip, provided such scallops are not, or are not intended to be, sold, traded or bartered.                        

                            (D)                             *General scallop permit category designation.*                             The owner of a vessel issued a general scallop permit for the 2005 fishing year is required to complete and submit an application to the Regional Administrator for the permit specified in paragraph (a)(2)(ii)(B) of this section. There is a 30-day processing period for vessel permit applications, thus, to ensure that permits are issued by the effective date of these requirements, such applications should be submitted by November 1, 2005. Vessels shall be issued the appropriate permit category by December 1, 2005, based on the application submitted by the vessel owner. Initial general scallop permit category designations are effective December 1, 2005. A vessel owner who fails to submit either a copy of the vendor's installation receipt from a NMFS-approved VMS vendor as described in 648.9 or provide proof of vendor activation of the VMS unit by December 1, 2005, shall automatically be issued the non-VMS general scallop permit. If no application is received by December 1, 2005, for vessels previously issued a general scallop permit for the 2005 fishing year, such vessels shall be reissued non-VMS general scallop permits. Vessel owners may request a change in permit category for their general category vessel no later than January 15, 2006. Requests to change categories must include a complete application as described above.                        

                            (E)                             *General scallop permit restrictions.*                             A vessel may be issued a general scallop permit in only one category during a fishing year. The owners of a vessel issued a general scallop permit must elect a permit category upon the vessel's permit application and shall have one opportunity to request a change in its permit category by submitting an application to the Regional Administrator within 45 days of the effective date of the vessel's permit. After that date, the vessel must remain in that permit category for the duration of the fishing year.                        

* * * * *

[FR Doc. 05-21179 Filed 10-19-05; 11:56 am]

BILLING CODE 3510-22-S