[Federal Register Volume 73, Number 54 (Wednesday, March 19, 2008)]
[Proposed Rules]
[Pages 14748-14765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1055]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070817467-7863-01]
RIN 0648-AV90


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 19

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to approve and implement Framework 
Adjustment 19 (Framework 19) to the Atlantic Sea Scallop Fishery 
Management Plan (FMP) which was developed by the New England Fishery 
Management Council (Council). Framework 19 proposes the following 
management measures for the scallop fishery: Limited access scallop 
fishery specifications for 2008 and 2009 (open area days-at-sea (DAS) 
and Sea Scallop Access Area (access area) trip allocations); Elephant 
Trunk Access Area (ETAA) and Delmarva Access Area (Delmarva) in-season 
trip adjustment procedures; new Hudson Canyon Access Area (HCAA) 
measures; DAS allocation adjustments if an access area yellowtail 
flounder (yellowtail) total allowable catch (TAC) is caught; 
adjustments to the scallop overfishing definition; a prohibition on 
deckloading of scallops on access area trips; adjustments to the 
industry-funded observer program; a 30-day vessel monitoring system 
(VMS) power down provision; general category access area specifications 
for 2008 and 2009; and general category measures dependent on the 
implementation of Amendment 11 to the FMP as proposed by the Council, 
including a quarterly TAC, 2008 and 2009 general category quota 
allocations, and individual fishing quota (IFQ) permit cost recovery 
program requirements. NMFS will disapprove the Council's recommendation 
to eliminate the September 1 through October 31, ETAA seasonal closure, 
which was implemented under Framework 18 to the FMP to reduce sea 
turtle interactions with the scallop fishery. NMFS has determined that 
the Council's recommendation is not consistent with National Standard 2 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act).

DATES: Comments must be received by 5 p.m., local time, on April 8, 
2008.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
19 that describes the proposed action and other considered alternatives 
and provides a thorough analysis of the impacts of the proposed 
measures and alternatives. Copies of Framework 19, the EA, and the 
Initial Regulatory Flexibility Analysis (IRFA), are available upon 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council (Council), 50 Water Street, Newburyport, MA 01950.
    You may submit comments, identified by 0648-AV90, by any one of the 
following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9135, Attn: Ryan Silva.
    <bullet> Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope, ``Comments on Scallop Framework 19 
Proposed Rule.''

[[Page 14749]]

    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments. Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
proposed rule should be submitted to the Regional Administrator at the 
address above and by e-mail to <a href="/cdn-cgi/l/email-protection#397d584f505d666b564a4d525c4b7956545b175c5649175e564f"><span class="__cf_email__" data-cfemail="2165405748457e734e52554a4453614e4c430f444e510f464e57">[email protected]</span></a>, or fax to 
202-395-7285.

FOR FURTHER INFORMATION CONTACT: Ryan Silva, Cooperative Research 
Program Specialist, 978-281-9326; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The Council adopted Framework 19 on October 25, 2007, and submitted 
it to NMFS on November 8, 2007, for review and approval. Framework 19 
was developed and adopted by the Council in order to meet the FMP's 
requirement to adjust biennially the management measures for the 
scallop fishery. The FMP requires biennial adjustments to ensure that 
the measures meet the fishing mortality rate (F) and other goals of the 
FMP and achieve optimum yield (OY) from the scallop resource on a 
continuing basis. This rule proposes measures as adopted by the Council 
and described in detail here. The Council has reviewed the Framework 19 
proposed rule regulations as drafted by NOAA Fisheries Service, which 
included regulations proposed by NOAA Fisheries Service under the 
authority of section 305(d) of the Magnuson-Stevens Act, and deemed 
them to be necessary and consistent with section 303(c) of the 
Magnuson-Stevens Act.
    The Council recommended in Framework 19 to eliminate the September 
1 through October 31 ETAA seasonal closure, which was implemented under 
Framework 18 to the FMP to reduce sea turtle interactions with the 
scallop fishery. NMFS has deemed this measure as inconsistent with 
National Standard 2 of the Magnuson-Stevens Act. NMFS has determined 
that the Council's recommendation to eliminate the ETAA seasonal 
closure may not be justified given the information and analysis 
provided in the Framework 19 document and analysis, and therefore is 
not consistent with National Standard 2 of the Magnuson-Stevens Act. 
National Standard 2 specifies that conservation and management measures 
shall be based upon the best scientific information available. Although 
the Council considered scientific information, the information is not 
sufficient to justify removal of the seasonal closure adopted under 
Framework 18.

Open Area DAS Allocations

    To achieve optimum yield at the target F=0.20 for the scallop 
resource, limited access open area DAS allocations are required to be 
adjusted every 2 years. Since the calculation of overall F also 
includes the mortality in controlled access areas, the calculation of 
the open area DAS allocations depends on the access area measures, 
including the rotation schedule, management measures, and access area 
trip allocations. Framework 19 would implement the following vessel-
specific DAS allocations: Full-time vessels would be allocated 35 DAS 
in 2008 and 42 DAS in 2009; part-time vessels would be allocated 14 DAS 
in 2008 and 17 DAS in 2009; and occasional vessels would receive 3 DAS 
in 2008 and 3 DAS in 2009.
    Because Framework 19 will not be implemented by the start of the 
fishing year on March 1, 2008, and interim regulations that will be in 
effect at the start of the 2008 fishing year are inconsistent with 
proposed Framework 19 specifications, it is possible that scallop 
vessels may exceed their DAS allocations during the interim period 
between March 1, 2008, and the implementation of Framework 19. 
Therefore, any limited access open area DAS used in 2008 by a vessel 
that is above the final 2008 allocation for that vessel would be 
deducted from the vessel's 2009 DAS allocation.

Limited Access Trip Allocations, and Possession Limits for Scallop 
Access Areas

    In the 2008 fishing year, full-time scallop vessels would be 
allocated one trip in the Nantucket Lightship Access Area (NLCA), and 
four trips in the ETAA. A part-time scallop vessel would be allocated 
two trips, which could be taken as follows: One trip in the ETAA and 
one trip in the NLCA, or two trips in the ETAA. An occasional vessel 
would be allocated one trip which could be taken in either the NLCA or 
the ETAA. The 2008 limited access scallop possession limit for access 
area trips would be 18,000 lb (8,165 kg) for full-time and part-time 
vessels, and 7,500 lb (3,402 kg) for occasional vessels.
    In the 2009 fishing year, full-time scallop vessels would be 
allocated one trip in the Closed Area II Access Area (CAII), up to 
three trips in the ETAA, and up to 1 trip in Delmarva. A part-time 
scallop vessel would be allocated two trips, and could distribute these 
trips between the following access areas as follows: Up to two trips in 
the ETAA, up to one trip in CAII, and up to one trip in Delmarva 
(unless ETAA and/or Delmarva trips are reduced due to updated 
exploitable scallop biomass estimates). An occasional vessel would be 
allocated one trip, which could be taken in CAII, the ETAA, or Delmarva 
(unless ETAA and/or Delmarva trips are reduced due to updated 
exploitable scallop biomass estimates). The 2009 limited access scallop 
possession limit for access area trips would be 18,000 lb (8,165 kg) 
for full-time and part-time vessels, and 7,500 lb (3,402 kg) for 
occasional vessels.
    Although the Framework 19 document submitted to NMFS did not 
specify 2009 Delmarva trip options for part-time and occasional 
vessels, NMFS has interpreted this as an oversight, and has included 
Delmarva trip options for part-time and occasional vessels in 2009. 
ETAA and Delmarva trip allocations and possession limits in 2009 are 
subject to change per the proposed ETAA and Delmarva trip reduction 
procedures described below.
    Because Framework 19 will not be implemented by March 1, 2008, and 
interim regulations that will be in effect at the start of the 2008 
fishing year are inconsistent with proposed Framework 19 
specifications, it is possible that scallop vessels may fish in an 
access area that would otherwise be closed under Framework 19 during 
the interim period between March 1, 2008, and the implementation of 
Framework 19. Therefore, if a limited access vessel takes a 2008 Closed 
Area I Access Area (CAI) trip, one ETAA trip would be deducted from the 
vessel's 2009 allocation. Although the Council did not specify this 
measure in Framework 19, based on other Framework 19 measures adopted 
by the Council and the overall objectives of the FMP, NMFS proposed 
this measure under the authority of section 305(d) of the Magnuson-
Stevens Act.

[[Page 14750]]

Regulatory Procedure to Reduce 2009 ETAA and/or Delmarva Allocations

    ETAA and Delmarva specifications are based on 2007 scallop resource 
survey information, which was the best scientific information available 
when the Council established the proposed ETAA and Delmarva allocations 
for Framework 19. If 2008 ETAA and/or Delmarva survey data indicate 
that there is less estimated exploitable biomass of scallops in the 
ETAA and/or Delmarva for the 2009 fishing year, the Regional 
Administrator may reduce ETAA and/or Delmarva allocations to prevent 
overfishing.
    If a reduction in the ETAA is necessary, as dictated by pre-
determined thresholds detailed in Table 1, the Regional Administrator 
would publish a final rule consistent with the Administrative Procedure 
Act (APA) on or about December 1, 2008. If the ETAA exploitable biomass 
estimate is between 20,000 and 29,999 mt, part-time vessels would be 
authorized to take one trip in the ETAA at a reduced possession limit 
of 3,600 lb (1,633 kg), and one trip in the NLCA at the normal 
possession limit of 18,000 lb (8,165 kg). The reduced possession limit 
for part time vessels under this scenario results from the FMP 
structure, which allocates to part-time vessels 40 percent of what is 
allocated to a full-time vessel. If updated exploitable biomass 
information is not available so that a final rule pursuant to the APA 
cannot be published on or about December 1, 2008, no reductions would 
be made.

                                     Table 1--2009 ETAA Trip Reduction Table
----------------------------------------------------------------------------------------------------------------
                                                  Adjusted trips
                                                    (full-time,   Adjusted trips   Adjusted 2009   Adjusted 2009
        Exploitable biomass estimate (mt)           part-time,       (general      research set-   observer set-
                                                    occasional)      category)    aside TAC (mt)  aside TAC (mt)
----------------------------------------------------------------------------------------------------------------
30,000 or greater                                  No adjustment   No adjustment   No adjustment   No adjustment
20,000-29,999                                           2, 1*, 0            1473            0.24            0.12
10,000-19,000                                            1, 0, 0             982            0.16            0.08
Less than 10,000                                         0, 0, 0             491            0.08            0.04
----------------------------------------------------------------------------------------------------------------
*Part-time vessels may take one trip in the ETAA at a reduced possession limit of 3,600 lb (1,633 kg) and one
  trip in CAII or Delmarva (unless Delmarva trips are reduced); or one trip in CAII and one trip in Delmarva
  (unless Delmarva trips area reduced).

    In addition, if an updated estimate of overall F exceeds 0.29 in 
2008, then ETAA allocations would be reduced consistent with the 
reductions specified in Table 1 under exploitable biomass estimates of 
20,000-29,000 mt. If both the biomass and F thresholds were exceeded, 
the allocation level would be established using the biomass adjustment 
schedule.Under the same procedures and dates, if the Delmarva biomass 
for the 2009 fishing year is estimated to be below 10,000 mt, then the 
area would remain closed to scallop fishing for the 2009 fishing year, 
and no trips or set-aside would be authorized there.

New Hudson Canyon Rotational Management Area

    Due to the high concentration of small scallops in the HCAA, 
Framework 19, consistent with the FMP's area rotation program strategy 
to protect young scallop concentrations, would establish the HCAA as a 
rotational management area, and close the HCAA to all scallop fishing, 
including general category vessels, for at least the 2008 and 2009 
fishing years. The expected increase in exploitable biomass in the 
absence of F is expected to exceed 30 percent per year. The area could 
be considered again as an access area and re-open to fishing when the 
annual increase in exploitable biomass in the absence of fishing 
mortality is less than 15 percent per year.

Open Area DAS Adjustment if a Scallop Access Area Yellowtail TAC 
Allocated to the Scallop Fishery is Caught

    Under the Northeast Multispecies Fishery Management Plan, 10 
percent of the Southern New England (SNE) and Georges Bank (GB) 
yellowtail TACs are allocated to scallop vessels fishing in the NLCA, 
CAI, and CAII. If the SNE and/or GB yellowtail TAC is caught, the 
respective access area(s) are closed to further scallop fishing for the 
remainder of the fishing year. If a vessel has unutilized trip(s) in an 
access area closed by a scallop fishery yellowtail TAC, Framework 19 
would allocate additional open area DAS in a manner that maintains the 
F objectives of the FMP. This trip/DAS conversion would apply only to 
full-time vessels, and to occasional or part-time vessels that have no 
other available access areas in which to take their access area 
trip(s). Unused access area trip(s) would be converted to open area DAS 
so that scallop fishing mortality that would have resulted from the 
access area trip(s) would be equivalent to the scallop fishing 
mortality resulting from the open area DAS allocation. Consequently, if 
the NLCA or CAII is closed in 2008 or 2009, respectively, each vessel 
with unutilized trip(s) would be allocated a specific amount of 
additional open area DAS according to permit category. Full-time 
vessels would be allocated 7.7 DAS per unutilized trip in the NLCA and 
7.9 DAS per unutilized trip in CAII. Part-time vessels would receive 
the same DAS conversion as full-time vessels, as long as there was no 
other access area available for the vessel to take a trip(s) in. If an 
occasional vessel has no available access area in which to take its 
trip, it would be allocated converted DAS according to the most recent 
closure: 3.2 DAS if it was the NLCA, 3.3 DAS if it was CAII. Although 
the Council did not specify this measure regarding occasional vessels 
in Framework 19, based on other Framework 19 measures adopted by the 
Council and the overall objectives of the FMP, NMFS proposed this 
measure under the authority of section 305(d) of the Magnuson-Stevens 
Act.
    If a vessel has unused broken trip compensation trip(s) when an 
access area closes due to reaching a yellowtail TAC, it would be issued 
additional DAS in proportion to the un-harvested possession limit. For 
example, if a full-time vessel had an unused 9,000 lb (4,082 kg) NLCA 
compensation trip (half of the full possession limit) at the time of a 
NLCA yellowtail TAC closure, the vessel would be allocated 3.85 DAS 
(half of the 7.7 DAS that would be allocated for a full NLCA trip).

Research Set-Aside (RSA) Allocations

    Two percent of each scallop access area quota and 2 percent of the 
DAS allocation is set aside as part of the Scallop RSA Program to fund 
scallop research and compensates participating vessels through the sale 
of scallops harvested under the research set-aside quota. The 2008 
research set-aside

[[Page 14751]]

access area allocations would be: NLCA--110,000 lb (50 mt); ETAA--
440,000 lb (200 mt). The 2009 research set-aside access area 
allocations would be: CAII--116,000 lb (53 mt); ETAA--324,000 lb (147 
mt); Delmarva--120,000 lb (54 mt). If 2008 ETAA and/or Delmarva survey 
data indicate that there is less estimated exploitable biomass of 
scallops in the ETAA and/or Delmarva, the 2009 RSA allocations in these 
areas would be reduced as specified in Table 1.
    The 2008 and 2009 research set-aside DAS allocations would be 235 
and 282, respectively.

Observer Set-Aside Allocations

    One percent of each scallop access area quota and 1 percent of the 
DAS allocation is set aside as part of the industry funded observer 
program to help defray the cost of carrying an observer. Scallop 
vessels on an observed DAS trip are charged a reduced DAS rate, 
currently 0.85 per DAS; scallop vessels on an observed access area trip 
are authorized to have an increased possession limit, currently 400 lb 
of shucked scallops per DAS.
    The 2008 access area observer set-aside allocations would be: 
NLCA-- 55,000 lb (25 mt); ETAA--222,000 lb (111mt). The 2009 access 
area observer set-aside allocations would be: CAII--58,000 lb (26 mt); 
ETAA--162,000 lb (73 mt); Delmarva--60,000 lb (27 mt). If 2008 ETAA 
and/or Delmarva survey data indicate that there is less estimated 
exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 
RSA allocations in these areas would be reduced as specified in Table 
1.
    The 2008 and 2009 DAS observer set-aside allocations would be 118 
and 141, respectively.

Adjustment of the Scallop Overfishing Definition

    The Council recommended a new overfishing definition based on 
results from the recent scallop stock assessment (SAW 45), which used a 
new model to characterize the scallop resource, including a new biomass 
target and threshold, and a new F threshold. Because the Council 
recommended the new reference points and a modified overfishing 
definition to reflect the new parameters, the Council also considered 
whether the current target of F=0.20 should be adjusted upward 
consistent with the F threshold adjustment. The overfishing threshold 
of F=0.29 is based on an assumption that F is spatially uniform. 
However, uniform F does not occur in the scallop fishery due to 
unfished biomass in closed areas and highly variable F's in open and 
access areas. In the case of highly non-uniform fishing effort, the F 
that maximizes yield per recruit will be less than the spatially 
uniform target (F=0.29). The Council was concerned that setting the F 
target at the typical 80 percent of the threshold (F=0.23) would result 
in localized overfishing in open areas. Therefore, the Council 
recommended keeping the target at F=0.20 in recognition that F is not 
uniformly distributed in the scallop fishery, and the resource is prone 
to localized overfishing, particularly in open areas. An F target of 
0.20 would help maintain a stable fishery rather than maximize 
individual catch on an annual basis, compared to higher F targets.
    In addition, based on the results of SAW 45, the Council 
recommended establishing scallop biomass reference points using 
absolute scallop meat biomass estimates instead of scallop resource 
survey indices, as in the past.
    Based on these recommendations, the scallop overfishing definition 
would be as follows: If stock biomass is equal to or greater than Bmax, 
as measured by an absolute value of scallop meat (mt) (currently 
estimated at 108,600 mt for scallops in the GB and Mid-Atlantic 
resource areas), overfishing occurs when F exceeds Fmax, currently 
estimated as 0.29. If the total stock biomass is below Bmax, 
overfishing occurs when F exceeds the level that has a 50-percent 
probability to rebuild stock biomass to Bmax in 10 years. The scallop 
stock is in an overfished condition when stock biomass is below \1/
2\Bmax and, in that case, overfishing occurs when F is above a level 
expected to rebuild the stock in 5 years, or when F is greater than 
zero when the stock is below \1/4\Bmax.
    The following table details the biomass and F reference points 
proposed by Framework 19.

            Table 2. Proposed Biomass and F Reference Points
------------------------------------------------------------------------
                                                   Target     Threshold
------------------------------------------------------------------------
Biomass                                          108,600 mt    54,300 mt
Fishing mortality (F)                                  0.29         0.20
------------------------------------------------------------------------

Prohibition on deckloading

    To minimize scallop discard mortality, no scallop vessel that is 
declared into the Area Access Program as specified in Sec.  648.60 
could possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of a Sea Scallop 
Access Area.

Adjustments to the Industry-funded Observer Program

    There are several proposed measures to improve the industry-funded 
observer program.
1. Proposed Measures Pertaining to Observer Service Providers
    Providers must respond to a fisherman's request for an observer, 
within 18 hr of the fisherman's call, to let him/her know if an 
observer is available.
    Providers must provide the NMFS Northeast Fishery Observer Program 
(NMFS/NEFOP) with an updated list of contact information for all 
observers that includes the observer identification number, observer's 
name, mailing address, email address, phone numbers, homeports or 
fisheries/trip types assigned, and must include whether or not the 
observer is ``in service,'' indicating when the observer has requested 
for leave and/or is not currently working for the industry-funded 
program.
    Providers must submit to NMFS/NEFOP, if requested, a copy of each 
type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and those entities requiring observer 
services;
    Providers must submit to NMFS/NEFOP, if requested, a copy of each 
type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and specific observers.
    Providers must submit to NMFS/NEFOP, if requested, copies of any 
information developed and used by the observer providers distributed to 
vessels, such as informational pamphlets, payment notification, 
description of observer duties, etc.
    Providers are required to charge vessel owners in a way that is 
consistent with the compensation received by the observed vessel. NMFS 
authorizes vessel compensation from the industry-funded observer set-
aside using VMS transmission data. For the purpose of compensating 
scallop vessels carrying an observer, NMFS would calculate the duration 
of the trip as the period from the first VMS polling position outside 
of the demarcation line at the beginning of the trip to the first VMS 
polling position inside of the demarcation line at the end of the trip. 
For example, if the first VMS polling position outside of the 
demarcation line of a vessel with an observer on an access area trip 
was 9:00 pm on the 1st, and the first VMS polling

[[Page 14752]]

position inside of the demarcation line at the end of the trip was at 
1:00 am on the 3rd, the duration of the trip equals 27 hr or 2 ``days'' 
(24 hr + 3 hr) for the purposes of observer set-aside compensation. 
Therefore, the provider would charge for 2 days of observer coverage. 
For observed open area DAS trips, ``day'' would be defined as a 24-hour 
period and portions of days would be pro-rated at an hourly charge. For 
example, for the trip described above, the provider would charge 1 day 
and 3 hr.
    Providers would no longer be required to maintain at least eight 
certified observers.
    Providers must provide NMF/NEFOP with observer contract data within 
24 hr of landing, and raw data within 72 hr of landing.
2. Proposed Measures Pertaining to Scallop Fishermen
    NMFS/NEFOP may take up to 72 hr to respond to a pre-sailing notice 
and, if selected to carry an observer, the observer provider may take 
up to 48 hr to respond to an observer deployment request. Currently, 
NMFS/NEFOP may take up to 24 hr to respond to a pre-sailing notice, and 
the observer service provider may take up to 72 hr to respond to an 
observer deployment request.
    Limited access trip notification calls can not be made more than 10 
days in advance of a trip, and not more than 10 trips may be called in 
at a time.
    General Category vessels making an access area trip(s) must call in 
with the same notice described above, but make weekly calls rather than 
daily calls. For example, a general category vessel could call in on 
Tuesday for all the trips it plans to take from the following Sunday 
through Saturday. The vessel would either get a waiver for that week, 
or be selected for observer coverage. If selected, a vessel could be 
required to carry an observer on up to two trips made that week.
    Vessel owners, operators, or managers are required to notify NMFS/
NEFOP of any trip plan changes at least 48 hr prior to vessel 
departure.
    Confirmation numbers for trip notification calls are valid for 48 
hr from the intended sail date.
    A vessel is prohibited from fishing in an access area without an 
observer waiver confirmation number specific to that trip and that was 
issued for the trip plan that was called in to NMFS.
3. Proposed Observer Program Observer Training Adjustments
    NMFS/NEFOP observer training sessions would no longer have a 
minimum class size of eight.
    An observer's first three deployments and the resulting data would 
be immediately edited and approved after each trip by NMFS/NEFOP, prior 
to any further deployments by that observer. If data quality is 
considered acceptable, the observer would be certified. If the data is 
not acceptable, the observer will not be certified.
    An observer provider would not deploy any observer on the same 
vessel for more than two consecutive multi-day trips and not more than 
twice in any given month for multi-day deployments.
    Providers would be required to provide at least 7 days advance 
notice to NMFS/NEFOP when requesting an observer training class.
    Prior to the end of an observer training course, the observer would 
be required to complete a cardiopulmonary resuscitation/first aid 
course.
4. DAS and TAC Compensation Rates
    The Council has recommended the DAS and TAC compensation rates be 
adjusted to more accurately reflect the costs associated with observed 
trips. NMFS will consider information included in Framework 19 and any 
other relevant fishery information and will notify scallop permit 
holders through a permit holder letter if an adjustment is made.

30-day VMS Power Down Provision for Scallop Vessels

    The proposed action would allow all scallop vessels to power down 
their VMS unit for a minimum of 30 days provided the vessel does not 
engage in any fisheries until the unit is turned back on. Such vessels 
would be required to obtain a letter of exemption from the Regional 
Administrator. This provision would provide more flexibility and would 
reduce operating costs for some scallop vessel owners that do not 
engage in fisheries for extended periods of time.

General Category Access Area Harvest Specifications for 2008 and 2009

    In 2008, the general category fishery would be allocated 5 percent 
of the overall NLCA and ETAA TACs, resulting in up to 667 trips in the 
NLCA, and up to 2,668 trips in the ETAA, respectively. If 2008 scallop 
resource surveys indicate a reduced exploitable scallop biomass, or 
overall 2008 scallop F exceeds 0.29, general category ETAA trip 
allocations would be subject to trip reduction procedures as specified 
under Table 1--2009 ETAA Trip Reduction Table.
    In 2009, the general category scallop fishery would be allocated 5 
percent of the overall ETAA and Delmarva TACs, resulting in up to 1,964 
trips and 728 trips, respectively. If updated 2008 scallop resource 
surveys indicate the exploitable biomass in Delmarva is less than 
10,000 mt, Delmarva would be closed for the 2009 fishing year, and no 
general category trips would be allocated. General category vessels 
would not be allocated any trips in CAII because of concerns that 
negligible fishing effort by general category vessels would occur 
there. Because general category vessels would receive overall TAC, the 
zero allocation in CAII would be offset by a higher percentage of 
overall catch in open areas.
    Because Framework 19 will not be implemented by the start of the 
2008 fishing year on March 1, 2008, and current regulations that will 
roll over into the 2008 fishing year are inconsistent with proposed 
Framework 19 specifications, it is possible that scallop vessels may 
exceed their allocation or fish in an area that would otherwise be 
closed under Framework 19. Therefore, if general category vessels take 
2008 CAI trips, a like number of ETAA trips as specified under default 
regulations would be deducted from the general category fleet in 2009. 
Although the Council did not address this scenario in their Framework 
19 document, and therefore did not recommend this adjustment procedure, 
NMFS is proposing this measure to remain consistent with the intent of 
the FMP. Although the Council did not specify this measure in Framework 
19, based on other Framework 19 measures adopted by the Council and the 
overall objectives of the FMP, NMFS proposed this measure under the 
authority of section 305(d) of the Magnuson-Stevens Act.

General Category Measures Dependent on Amendment 11 to the FMP 
(Amendment 11)

    Several measures in Framework 19 are dependent on the 
implementation of Amendment 11 as proposed (72 FR 71315, December 17, 
2007). The primary intent of Amendment 11 is to reduce fishing capacity 
in the general category fishery by establishing a limited entry program 
that would include three permit categories; IFQ, Northern Gulf of Maine 
Management Area (NGOM), and incidental. Framework 19 proposed 
regulations have been drafted under the assumption that Amendment 11 
will be implemented as proposed. The following measures in Framework 19

[[Page 14753]]

are contingent on the implementation of Amendment 11 as currently 
proposed: Allocation of 10 percent of the overall scallop TAC in 2008 
(and 2009 if the IFQ program is not implemented by March 1, 2009), and 
5 percent in 2009 and beyond; a quarterly hard TAC for the directed 
general category scallop fishery for the 2008 scallop fishing year; a 
separate 0.5-percent TAC allocation of the overall scallop TAC in 2009 
and beyond for full-time, part-time, or occasional vessels that qualify 
for an IFQ permit; cost recovery payment procedures for IFQ permit 
holders that land IFQ scallops; 2008 and 2009 NGOM TACs; and incidental 
catch target TACs for 2008 and 2009. The legal basis and rationale for 
these measures are described in the proposed rule for Amendment 11 and 
are not repeated here. The following provides details on the specific 
allocations and other specifications for the Amendment 11 measures.

1. Quarterly TAC

    Framework 19 would allocate approximately 10 percent of the overall 
2008 scallop TAC to the general category fishery. The quarterly TAC 
would be effective during the transitional period as the IFQ program is 
implemented, which is scheduled for the start of the 2009 fishing year. 
Framework 19 would allocate 35 percent (1,523,375 lb (690.99 mt)) of 
the 2008 directed general category annual TAC to Quarter 1, 40 percent 
(1,741,000 lb, (789.70 mt)) to Quarter 2, 15 percent (652,875 lb, 
(296.14 mt)) to Quarter 3, and 10 percent (435,250 lb (197.43 mt)) to 
Quarter 4. If any portion of the Quarter 1 TAC is not caught, the 
remainder would be rolled over into Quarter 3; if any portion of the 
Quarter 2 TAC is not caught, it would be rolled over into Quarter 4. 
Open area, access area, and NGOM scallop landings by directed general 
category trips would count against the quarterly TACs. Consequently, if 
a quarterly TAC is caught, all directed general category scallop 
fishing would cease for the remainder of the quarter; including access 
area, and open areas, but excluding the NGOM. If the Quarter 1 TAC 
(March 1-May 31) is exceeded, those pounds would be removed from 
Quarters 3 and/or 4.

2. IFQ Allocation

    Amendment 11 proposes to establish a separate IFQ allocation for 
full-time, part-time, or occasional scallop vessels that qualify for an 
IFQ permit. Starting with the first year of the IFQ program in 2009, 
the pool of IFQ vessels that do not qualify for a full-time, part-time, 
or occasional scallop permit would be allocated 5 percent of the 
overall scallop TAC; and the pool of full-time, part-time, or 
occasional vessels that qualify for an IFQ permit would be allocated 
0.5 percent of the overall scallop TAC.
    General category vessels that qualify for an IFQ permit in 2009 
would be allocated 5 percent of the overall scallop TAC as follows: 
1,182,500 lb (536.37 mt) from open areas, 785,700 lb (356.79 mt) from 
ETAA, and 291,000 lb (13.20 mt) from Delmarva. Full-time, part-time, 
and occasional scallop vessels that qualify for an IFQ permit in 2009 
would be allocated 225,950 lb (112.96 mt) from open areas.
    In the event that implementation of the IFQ program is delayed 
beyond the start of the 2009 fishing year (March 1, 2009), the IFQ 
scallop fishery would be allocated 10 percent of the overall scallop 
TAC and be divided among quarters as described in the preceding 
section.

3. Cost Recovery

    NMFS is required by the Magnuson-Stevens Act to recover the costs 
directly related to the management, data collection and analysis, and 
enforcement of IFQ programs such as the one proposed by Amendment 11. 
Under section 304(d)(2)(A) of the Magnuson-Stevens Act, the Secretary 
of Commerce is authorized to collect a fee, not to exceed 3 percent of 
the ex-vessel value of fish harvested, to recover these costs. 
Therefore, a scallop IFQ vessel would incur a cost recovery fee 
liability for every landing of scallops. The IFQ permit holder that 
landed the IFQ scallops would be responsible for submitting this 
payment to NMFS once per year. The ex-vessel value of scallops used to 
calculate the cost-recovery fees due for a fishing year would be based 
on an average of the ex-vessel value of all general category scallops 
landed between March 1 and September 30 of the initial year of the IFQ 
program, and October 1 through September 30 of each year thereafter. 
The Amendment 11 proposed rule proposed to require IFQ permit owners 
that transferred IFQ scallops (transferor) to another IFQ vessel 
(transferee) as part of the IFQ scallop transfer program to submit a 
cost recovery fee for scallops landed by the transferee. However, upon 
further evaluation, Framework 19 would adjust this requirement; the 
transferee, and not the transferor, would be required to submit the 
cost recovery fee. The administrative burden would be the same, if not 
greater, if the IFQ transferor, and not the transferee, were required 
to submit the cost recovery fee. This adjustment would also reduce the 
cost recovery administrative burden of NMFS.
    Payment of the cost recovery fee would be a permit condition that 
must be met before permits could be renewed. On or about October 30 of 
each year, NMFS would mail a cost recovery bill for the IFQ fee 
incurred by each IFQ vessel to each IFQ permit holder. Owners of IFQ 
vessels would be required to submit payment by January 1 of each year. 
An IFQ scallop vessel's permit would not be renewed (i.e., not issued) 
by NMFS until payment for the prior year's fees is received in full. 
Bills would also be made available electronically via the internet. Fee 
liabilities due January 1 would be for the previous cost recovery 
period (October 1 --September 30 of the year preceding the January 1 
due date). For example, for scallops landed October 1, 2009 -- 
September 30, 2010, NMFS would issue a cost recovery bill on or about 
October 30, 2010, and the IFQ permit holder would be required to submit 
the cost recovery fee by January 1, 2011. If an IFQ permit holder does 
not pay, or pays less than the full amount due, the vessel's IFQ permit 
would not be renewed.
    Disputes regarding fee liabilities would be resolved through an 
administrative appeal procedure. If an IFQ permit holder makes a timely 
payment to NMFS of an amount less than the fee liability NMFS has 
determined, the IFQ permit holder would have the burden of 
demonstrating that the fee amount submitted is correct and that the fee 
calculated by NMFS is incorrect. If, upon preliminary review of the 
accuracy and completeness of a fee payment, NMFS determines the IFQ 
permit holder has not paid the amount due in full, NMFS would notify 
the IFQ permit holder by letter. NMFS would explain the discrepancy and 
the IFQ permit holder would have 30 days to either pay the amount that 
NMFS has determined should be paid, or provide evidence that the amount 
paid was correct. The IFQ permit for the vessel would not be renewed 
until the payment discrepancy is resolved. If the IFQ permit holder 
submits evidence in support of his/her payment, NMFS would evaluate it 
and, if there is any remaining disagreement as to the appropriate IFQ 
fee, prepare a Final Administrative Determination (FAD). The FAD would 
set out the facts, discuss those facts within the context of the 
relevant agency policies and regulations, and make a determination as 
to the appropriate disposition of the matter. A FAD would be the final 
agency action. If the FAD determines

[[Page 14754]]

that the IFQ permit holder is out of compliance, the IFQ scallop permit 
in question would not be renewed until the conditions established by 
the FAD are met. If the FAD determines that the IFQ permit holder owes 
additional fees, and if the IFQ permit holder has not paid such fees, 
all IFQ permit(s) held by the IFQ permit holder would not be renewed 
until the required payment is received by NMFS. If NMFS does not 
receive such payment within 30 days of the issuance of the final agency 
action, NMFS would refer the matter to the appropriate authorities 
within the U.S. Treasury for purposes of collection, and the vessel's 
IFQ permit(s) would remain invalid. If NMFS does not receive such 
payment prior to the end of the fishing year, the IFQ permit would be 
considered voluntarily abandoned.
    Cost recovery payments would be made electronically via the Federal 
web portal, www.pay.gov, or other internet sites as designated by the 
Regional Administrator. Instructions for electronic payment would be 
made available on both the payment website and the paper bill. Payment 
options may include payment via a credit card (the Regional 
Administrator would specify in the cost recovery bill acceptable credit 
cards) or direct ACH (automated clearing house) withdrawal from a 
designated checking account. Payment by check could be authorized by 
the Regional Administrator if the Regional Administrator has determined 
that electronic payment is not possible (for example, if the 
geographical area or an individual(s) is affected by catastrophic 
conditions).
    NMFS would create an annual IFQ report and provide it to the owner 
of the IFQ permit. The report would include quarterly and annual 
information regarding the amount and value of IFQ scallops landed 
during the fishing year, the associated cost recovery fees, and the 
status of those fees. This report would also detail the costs incurred 
by NMFS, including the calculation of the recoverable costs for the 
management, enforcement, and data collection, incurred by NMFS during 
the fishing year.

4. NGOM TACS

    Framework 19 proposes a 70,000-lb (31,751-kg) annual NGOM TAC for 
the 2008 and 2009 fishing years.

5. Scallop Incidental Catch Target TAC

    Framework 19 proposes a 50,000-lb (22,680-kg) scallop incidental 
catch target TAC for the 2008 and 2009 fishing years to account for 
mortality from this component of the fishery and to ensure that F 
targets are not exceeded.

Status of Framework 19 if Amendment 11 is Not Implemented as Proposed

    Several measures in Framework 19 are dependent on the 
implementation of Amendment 11 as proposed. If Amendment 11 is not 
implemented, the general category scallop fishery would remain an open 
access fishery; any individual could obtain a permit for a vessel. 
Vessels would be limited to the 400-lb (181-kg) possession limit if 
they have a 1B permit; vessels with a 1A permit would be restricted to 
a 40 (18-kg) pound possession limit. Limited access vessels would be 
permitted to fish under general category rules when not on a DAS. 
General category vessels would be permitted to fish in access areas up 
to a maximum number of trips assigned through biennial frameworks such 
as Framework 19. The total level of catch from this component of the 
fishery would not be restricted.

Classification

    At this time, NMFS has not determined that this proposed rule is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable law. NMFS, in making that determination, will take 
into account the data, views, and comments received during the comment 
period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). Public reporting burden for these collections of information are 
estimated to average as follows:
    1. Service provider observer contact information reports--5 min per 
response;
    2. Service provider observer availability reports--1 min per 
response;
    3. Copies of service provider outreach materials--30 min per 
response;
    4. Copies of service provider contracts--30 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 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 the 
Regional Administrator as specified in ADDRESSES above, and by e-mail 
to <a href="/cdn-cgi/l/email-protection#2064415649447f724f53544b4552604f4d420e454f500e474f56"><span class="__cf_email__" data-cfemail="561237203f3209043925223d332416393b347833392678313920">[email protected]</span></a> or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA), and consists of the discussion and analyses in 
the preamble to this action and the analyses of this action and its 
impacts in Framework 19. The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section of the preamble 
and in the SUMMARY. A complete description of the economic impacts of 
the Framework 19 measures and alternatives is provided in Section 5.4 
of the EA for Framework 19, and the details are not provided in this 
summary.

Description and Estimate of Number of Small Entities to Which the Rule 
Would Apply

    The vessels in the Atlantic sea scallop fishery are all considered 
small business entities and, therefore, there is no disproportionate 
impact on large and small entities. All of the vessels grossed less 
than $3.5 million according to dealer data for the 2004 to 2006 scallop 
fishing years. Annual total revenue averaged over $1 million in the 
2005 fishing year, and about $881,990 in the 2006 fishing year, per 
limited access vessel. Total revenues per vessel, including revenues 
from species other than scallops, exceeded these amounts, but were less 
than $3 million per vessel. Average scallop revenue per general 
category vessel was $88,702 in 2005 and $66,785 in the 2006 fishing 
years. Average total revenue per general category vessel, including 
revenue from species other than scallops, exceeded $250,000 in the 2005 
and 2006 fishing years. Average revenues per vessel were lower in the 
2006 fishing year for all permit categories because of lower scallop 
prices.

[[Page 14755]]

    The proposed regulations would affect all Federal scallop vessels. 
The Amendment 11 and Framework 19 documents provide extensive 
information on the number, port, state, and size of vessels and small 
businesses that would be affected by the proposed regulations. In 2007, 
there were 346 full-time, 33 part-time, and 1 occasional limited access 
scallop permits issued, and 2,332 general category permits issued to 
vessels in the open access general category fishery: 915 category 1B 
permits, and 1,417 category 1A incidental catch permits.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains several new collection-of-information, 
reporting, and recordkeeping requirements. The following describes 
these requirements.
1. Observer Contact List
    Observer service providers would be required to provide and 
maintain an updated list of contact information for all observers. This 
would facilitate the ability of NMFS/NEFOP to contact observers. 
Maintaining an up-to-date observer contact list is estimated to entail 
5 min per response, 12 responses per year, for a total of 1 burden hour 
annually. These updates do not have any associated miscellaneous costs.
2. Observer Availability List
    Service providers would be required to provide and maintain a 
listing of whether or not the observer is ``in service,'' indicating 
when the observer has requested leave and/or is not currently working 
for the industry-funded program. This would facilitate the ability of 
NMFS/NEFOP to confirm observer availability. Maintaining an up-to-date 
observer availability list is estimated to entail 1 min per response, 
300 responses per year, for a total of 5 burden hr annually. These 
updates do not have any associated miscellaneous costs.
3. Copies of Observer Service Provider Materials
    Service providers would be required to submit to NMFS/NEFOP, if 
requested, copies of any materials developed and distributed to 
vessels, such as informational pamphlets, payment notification, 
description of observer duties, etc. This would allow NMFS/NEFOP to 
ensure that information distributed to industry is accurate and in 
keeping with the objectives of the observer program. It is estimated 
that NMFS/NEFOP would request copies of service provider outreach 
materials once a year. It is estimated it would take 30 min to submit 
this information, for a total burden of 1 hour. It is estimated the 
service providers would incur a total of $5 in mailing fees to submit 
these materials.
4. Copies of Observer Service Provider Contracts
    Service providers would be required to submit to NMFS/NEFOP, if 
requested, a copy of each type of signed and valid contract (including 
all attachments, appendices, addendums, and exhibits incorporated into 
the contract) between the observer provider and those entities 
requiring observer services. This would allow NMFS/NEFOP to ensure 
contractual information is accurate and in keeping with the objectives 
of the observer program and help resolve disagreements between industry 
and the service provider. It is estimated that NMFS/NEFOP would request 
copies of service provider contracts once a year. It is estimated it 
would take 30 min to submit this information, for a total burden of 1 
hour. It is estimated the service providers would incur a total of $5 
in mailing fees to submit these materials.

Summary of the Aggregate Economic Impacts

    In the event that Framework 19 is not approved and implemented by 
the start of the 2008 scallop fishing year (March 1, 2008), measures 
and allocations that are specified in the present regulations (Part 648 
Subpart D) would roll over into the 2008 fishing year and beyond, 
unless superseded by subsequent specifications.
    The long-term overall economic effects of the proposed measures are 
estimated to be slightly positive on revenues; an average of about a 
0.5-percent increase per year during 2008-2021.
    Average overall annual scallop revenue for a limited access vessel 
is estimated to increase by 1.3 percent in the 2008 fishing year and by 
6.2 percent in the 2009 fishing year compared to no action. Because 
fishing costs are estimated to decline due to fewer DAS used in the 
access areas and the open areas, the impacts on the net revenue and 
vessel profits would be positive, with a 2.1-percent increase in 
fishing year 2008 and a 6-percent increase in fishing year 2009 
(Section 5.4.2.2).
    The economic impacts of the proposed alternative for the general 
category fleet would be positive because the general category TAC would 
be higher under the preferred alternative compared to the no action 
alternative. As a result, average scallop revenues and profits for 
general category vessels are expected to be higher for the preferred 
alternative compared to no action.
    However, the level of general category TAC would be lower than 
general category scallop landings in recent years, resulting in 
negative short-term economic impacts. These short-term impacts are due 
to measures proposed in Amendment 11 that would establish a limited 
entry program for the general category fishery, thereby reducing 
general category fishing effort and landings. Since Framework 19 does 
not propose any changes to measures proposed by Amendment 11, the 
impacts to the general category limited entry program are not analyzed 
here. Section 7.9 of the Environmental Impact Statement for Amendment 
11 provides a comprehensive analysis of the economic impacts of the 
general category limited entry program on small business entities. 
These analyses indicate that, despite the negative impacts in the 
short-term, the medium to long-term economic impacts of the limited 
entry program are expected to be positive for the scallop fishery as a 
whole.
    The overall economic impacts of general category measures proposed 
by Framework 19 are not expected to be significantly different from the 
impacts analyzed in Amendment 11. Amendment 11 analyzed the economic 
impacts by assuming that the general category TAC would be 5 million lb 
(2,2668 mt) in 2008 and 2.5 million lb (1,134 mt) in 2009. The 
preferred option in Framework 19 would result in a lower TAC: About 4.3 
million lb (1,950 mt) TAC in 2008 and 2.2 million lb (998 mt) TAC in 
2009. Although these amounts exceed potential TAC levels under the no 
action alternative, they are slightly less than the landings by the 
general category vessels in recent years. Landings by vessels that had 
a general category permit before the control date and that are expected 
to fish in 2008 were 4.6 million lb (2,087 mt) in 2006. The vessels 
that are expected to qualify for the limited access general category 
program, and thus fish in 2009, landed about 2.4 million lb (1,089 mt). 
Therefore, short-term economic impacts of the general category TAC 
would be negative on the general category fleet to the extent that the 
overall TAC prevents these vessels from landing the amount of scallops 
they would catch without such a constraint. Again, those distributional 
impacts were analyzed in Amendment 11 (Sections 5.4.8.5, 5.4.8.6 and 
5.4.13). However, a limited access

[[Page 14756]]

general category fishery would have positive economic impacts over the 
medium to long term on the vessels that qualify for general category 
limited access permits and for limited access vessels by preventing 
overfishing of the scallop resource and the dissipation of profits by 
uncontrolled entry and effort into the general category fishery.
    Other proposed Framework 19 measures, such as the general category 
quarterly hard TAC, 5-percent access area allocation for general 
category vessels, observer program improvements, a 30-day VMS power 
down provision, NGOM hard TAC, and yellowtail TAC adjustments, are 
expected to provide additional positive impacts by providing vessels 
the opportunity to reduce fishing costs and increase revenues from 
scallop fishing.
    Because the intent of framework actions are to make minor 
adjustments to an FMP, and not major program changes, the council, in 
some cases where the adjustment measure was deemed minor, only 
considered one alternative versus a no action alternative.

Economic Impacts of the Proposed Measures and Alternatives

1. GB Access Area Schedule Revision
    Framework 19 would adjust the GB access area schedule so that the 
NLCA would be open in 2008 and CAII would be open in 2009. The proposed 
action to revise the GB access area schedule is expected to have 
positive economic impacts by providing access to areas with more 
scallop biomass. This would help increase yield, landings, and revenues 
from the fishery both in the short and the long term, benefiting both 
limited access and general category vessels. The only alternative is 
the no action option, which would provide access in 2008 to CAI instead 
of the NLCA. Due to low biomass, CAI would not likely support a fleet-
wide trip allocation. Consequently, since both the NLCA and CAII have 
higher scallop concentrations than CAI, the proposed alternative would 
result in higher economic benefits than the no action alternative.
2. DAS Conversion and Yellowtail TAC
    The proposed action to allocate additional open area DAS if an 
access area closes due to the attainment of a scallop yellowtail TAC 
would continue under the no action alternative, but the values would be 
changed to reflect current fishery and resource conditions. The 
proposed DAS conversion rates would be higher than those under no 
action because scallop biomass in the NLCA and CAII is lower than when 
the no action DAS conversion rates were established. This DAS 
conversion measure helps minimize lost revenue that would result from a 
yellowtail TAC closure. Although this measure would have positive 
economic impacts on scallop vessels that lost access area trip(s), they 
would likely receive less revenue from the DAS due to the access area 
trip to DAS conversion rate, which is based on scallop fishing 
mortality, not trip revenue. The conversion rate was established so 
that scallop mortality from the additional DAS would be equivalent to 
the scallop mortality from an access area. Scallops in open areas are 
generally smaller than scallops in access areas. No alternatives, other 
than maintaining conversion rates that are currently in the 
regulations, were considered. The proposed higher DAS conversion rates 
would result in higher economic benefits than no action.
3. HCAA Trip Expiration
    The proposed no action alternative to allow all un-used 2005 HCAA 
trips to expire on February 29, 2008, instead of the rejected 
alternative of extending them to May 31, 2008, could have negative 
economic impacts on those vessels that could not take an economically 
viable trip to HCAA due to the poor resource conditions in this area. 
But these negative impacts are on 2007 fishing year revenues, not 
projected revenues under Framework 19. Landings per unit effort (LPUE) 
could improve in early 2007 and could provide some vessels incentive to 
take their trips rather than let them expire, minimizing these negative 
impacts. The proposed alternative to extend the trip expiration 
deadline to May 31, 2008, could reduce the negative impacts compared to 
no action. However, extending the duration of Hudson Canyon trips until 
May 31, 2008, could have negative impacts on future scallop yields 
resulting in negative long-term economic impacts.
4. ETAA and Delmarva Schedule
    The proposed no action alternative to provide access to the ETAA in 
2008 and 2009 and Delmarva in 2009 would have positive economic impacts 
on both limited access and general category vessels because this area 
has more scallop biomass compared to areas such as open areas and CAI. 
The procedure to reduce trips would help prevent overfishing, and thus 
have positive impacts on the scallop resource, and on the long term 
landings and revenues of scallop vessels. There are no alternatives 
under the current FMP that would generate higher benefits for the 
scallop vessels. The only alternative is the no action, which would 
allocate fewer ETAA trips and zero Delmarva trips.
5. Access Area Crew Limits
    The proposed no action alternative would continue to allow a vessel 
to carry any number of crew on an access area trip. No crew limit would 
give vessels the most flexibility, potentially reducing total fishing 
costs, and would therefore have positive economic impacts on scallop 
vessels. The alternative option would restrict the crew size to eight 
or nine persons. This would potentially help reduce scallop mortality 
and control effort, with positive impacts on the scallop resource, 
landings, and revenues over the long term. On the other hand, limiting 
crew size would reduce a vessel's flexibility and increase trip costs. 
Therefore, the economic benefits of this alternative are expected to be 
small compared to the proposed alternative.
6. In-Shell Possession Limit
    The proposed action would prohibit any scallop vessel on an access 
area trip from possessing more than 50 U.S. bu (17.6 hL) of in-shell 
scallops. This prohibition would help prevent scallop discard 
mortality, and therefore result in higher yields, revenues, and 
economic benefits. There are no alternatives that would generate higher 
benefits for the scallop vessels. The only alternative is the no action 
which would continue to allow deckloading and result in lower economic 
benefits compared to the proposed action alternative.
7. Research and Observer Set-Asides
    The proposed no action alternative would continue to set-aside 2 
percent of the scallop TAC for the research set-aside program and 1 
percent of the scallop TAC for the industry-funded observer set-aside 
program. These set-asides are expected to have indirect economic 
benefits for the scallop fishery by improving scallop information and 
data made possible by research and the observer program. There are no 
alternatives that would generate higher benefits for scallop vessels.
8. DAS Allocations and Access Areas Trip Allocations
    The proposed open area DAS allocations are expected to prevent 
overfishing in open areas and to have positive economic impacts on 
scallop vessels when combined with controlled access area allocations. 
Framework 19 would implement the following vessel-specific DAS 
allocations: Full-time

[[Page 14757]]

vessels would be allocated 35 DAS in 2008 and 42 DAS in 2009; part-time 
vessels would be allocated 14 DAS in 2008 and 17 DAS in 2009; and 
occasional vessels would receive 3 DAS for each year. Except for the no 
action alternatives, other alternatives would result in slightly higher 
revenues and profits compared to the preferred action during 2008-2009. 
Alternatives with higher DAS allocations would provide higher short-
term revenues, but could be offset by lower DAS allocations in future 
years as the result of lower exploitable scallop biomass. The proposed 
action would allocate fewer open area DAS compared to the no action in 
both the 2008 and 2009 fishing years, but it would allocate more trips 
to access areas. As a result, the proposed action would generate higher 
benefits than the no action alternative.
9. General Category Quarterly TAC
    Amendment 11 proposes to establish an IFQ limited entry program for 
the general category scallop fishery starting in 2009. The 2008 fishing 
year would be a transition year as IFQ shares are established. The 
proposed action would distribute the 2008 general category quota 
allocation into quarters to minimize derby-style fishing. This measure 
would have positive economic impacts over the long-term for vessels 
that qualify for the general category limited entry program. Although 
management of the general category fishery by a quarterly hard TAC 
during the transition period to an IFQ program would create some derby-
style fishing, the quarterly TACs would reduce derby fishing and lessen 
the negative economic impacts associated with derby fishing. The 
proposed alternative (Option A) would allocate 35 percent (1,056,563 
lb, (475.25 mt) of the 2008 directed general category annual TAC to 
Quarter 1, 40 percent (1,207,750 lb, (547.83 mt)) to Quarter 1, 15 
percent (452,813 lb, (205.39 mt)) to Quarter 1, and 10 percent (301,875 
lb, (136.93 mt)) to Quarter 4. Quarters 1 and 2 would be allocated 75 
percent of the TAC because general category access area trips primarily 
occur in those quarters. Unused TAC from Quarter 1 would roll over to 
Quarter 3, and unused TAC from Quarter 2 would roll over to the fourth 
quarter, thereby ensuring the full benefit of the scallop TAC is 
realized. There is no alternative to the proposed action (no action) 
alternative to allocate 10 percent of the overall 2008 scallop TAC to 
the general category fishery. However, Option B would distribute a 
greater percentage of the quarterly 10-percent hard TAC to the first 
and second quarters (85 percent) and less (15 percent) to the last two 
quarters, reducing the derby fishing in the first two quarters but 
increasing it in the last two quarters. This option is not expected to 
have larger positive economic impacts on the general category fishery 
compared to the proposed action (Option A).
10. General Category Access Area Allocations
    The proposed action to allocate 5 percent of the scallop access 
area TACs in the 2008 and 2009 fishing years is expected to have 
positive economic impacts on the general category vessels compared to 
the no action allocation of 2 percent. In 2008, the general category 
fishery would be allocated 5 percent of the overall NLCA and ETAA TACs, 
resulting in up to 665 trips in the NLCA, and up to 2,662 trips in the 
ETAA. In 2009, the general category scallop fishery would be allocated 
5 percent of the overall ETAA and Delmarva TACs, resulting in up to 
1,967 trips and 726, respectively. General category vessels would not 
be allocated any trips in CAII.
    Because access areas are more productive and have higher LPUE than 
open areas, it would take less fishing time to catch the 400-lb (181-
kg) possession limit. As a result, fishing costs would be lower and 
profits would be higher for trips taken in the access areas when 
compared to open areas. Since most general category vessels do not fish 
in CAII, zero percent allocation for this area would increase open area 
landings and overall revenues of the general category fishery. The 
alternative option would allocate 2 percent of the 2008 and 5 percent 
of the 2009 access area TACs, which would likely have less economic 
benefits for general category vessels.
11. IFQ Cost Recovery
    Framework 19 would implement a cost recovery program that would 
collect 3 percent of the ex-vessel value of scallop product landed to 
recover the costs directly related to management, data collection and 
analysis, and enforcement of the general category IFQ program as 
mandated by the Magnuson-Stevens Act. The preferred alternative 
estimates total scallop landings would be 45.9 million lb (20,820 mt) 
in 2009. With ex-vessel prices estimated from $7.55--$8.30, a 3-percent 
cost recovery would likely range from $519,818 to $571,455 in 2009. The 
positive economic impacts of the IFQ program for the general category 
limited access qualifiers are expected to exceed the costs of this cost 
recovery program. There are no other alternative options to the 
proposed cost recovery program and the no action alternative would be 
inconsistent with the Magnuson-Stevens Act.
12. NGOM TAC
    Amendment 11 would establish a NGOM Management Area that would be 
managed under a hard quota system. Framework 19 would establish the 
NGOM annual specifications. The proposed NGOM TAC is expected to have 
positive economic impacts for vessels that do not qualify for limited 
access IFQ permit but do qualify for a NGOM permit because it would 
allow them to land scallops in this area during favorable resource 
conditions. The proposed hard TAC of 70,000 lb (32 mt) is expected to 
generate more than $500,000 in scallop revenue for NGOM vessels in 
2008-2009. The Council discussed higher TACs for the NGOM, but none 
were considered consistent with Amendment 11 and therefore were 
rejected and not analyzed.
13. Incidental Scallop Catch Target TAC
    Amendment 11 includes a provision that the FMP should consider the 
level of mortality from incidental catch and remove that from the 
projected total catch before allocations are made to general category 
and limited access fisheries. The proposed action to remove incidental 
scallop catch before making allocations to limited access and directed 
general category vessels would ensure F targets are not exceeded, and 
thus would have positive impacts on the resource, scallop yield, and on 
the revenues and profits of scallop vessels. Framework 19 would 
establish the incidental catch target TAC for the 2008 and 2009 fishing 
years. The target TAC would be established at 50,000 lb (22.68 mt) per 
year in 2008 and 2009. This measure is based on an estimate of 
incidental catch and therefore, no alternatives were considered.
14. Overfishing Definition Adjustment
    The Council recommended a new overfishing definition based on 
results from the recent scallop stock assessment (SAW 45) which used a 
new model to characterize the scallop resource, including a new biomass 
target and threshold, as well as a new F threshold. The proposed action 
to adjust the overfishing definition would have positive impacts on the 
scallop resource, scallop landings, revenues and profits of scallop 
vessels over the long term by more accurately defining the biomass 
reference points and appropriate F threshold based on the biomass 
reference points. Maintaining the F target at the precautionary level 
of

[[Page 14758]]

F=0.20 would also reduce the risk of localized overfishing in open 
areas. The Council also considered maintaining the current overfishing 
definition but, for the reasons stated, the new overfishing definition 
would provide greater benefits to the fishery. The alternative that 
would increase the F target is less precautionary. Although it would 
increase landings and economic benefits over the short term, it could 
result in overfishing and lower long-term economic benefits.
15. Observer Program Improvements
    Framework 19 includes several proposed measures that would improve 
oversight and administration of the scallop observer program. Measures 
include: Greater oversight by NNMFS/NEFOP of observer availability; 
observer provider materials and contracts; closer correlation between 
service provider fees and observer set-aside compensation rates; 
adjusted general category access area trip notification requirements; 
and observer notification and observer waiver requirements, among 
others. The proposed action would have positive economic impacts by 
improving the administration and reducing the cost burden of the 
observer program on scallop vessels by improving observer program 
efficiency and by making provider fees more commensurate with observer 
set-aside compensation rates. The no action alternatives would not 
include observer program improvements, and therefore, would not 
facilitate the effectiveness and efficiency of the industry-funded 
observer program.
16. HCAA Rotational Management Area
    The proposed action would establish the HCAA as a rotational 
management area and close it for at least the 2008 and 2009 fishing 
years to protect young scallops. This is expected to have positive 
economic impacts by reducing mortality and increasing yield from this 
area over the long term. As a rotational closed area, the HCAA is 
expected to provide for increased economic benefits to the scallop 
industry, consistent with the area rotation program. The foundation of 
the area rotation program is to increase yield from the scallop 
resource and increase overall benefits. Two different boundary 
alternatives for HCAA were considered but not selected by the Council. 
These alternative closures would slightly increase the revenues and 
economic benefits for the scallop vessels compared to the proposed HCAA 
closure boundaries, but would allocate fewer open-area DAS in the 2008 
fishing year.
17. 30-day VMS Power Down Provision
    The proposed action to implement a 30-day VMS power down provision 
would reduce the burden on vessel-owners to maintain a transmitting VMS 
on their vessel for long periods when it is not fishing. This provision 
would have some positive economic impacts by reducing vessel operation 
costs. There are no other alternatives other than no action which does 
not allow vessels to power down the VMS unit.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 12, 2008.
John Oliver,
Deputy Assistant Administrator For Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be 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. The following revision to Sec.  648.4 is based on the proposed 
rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 71315, 
December 17, 2007). In Sec.  648.4 revise paragraph (a)(2)(ii)(H) to 
read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (2) * * *
    (ii) * * *
    (H) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section. Applications for a LAGC permit described in paragraph 
(a)(2)(ii) of this section must be postmarked no later than [date 90 
days from the date the Amendment 11 Final Rule is published in the 
Federal Register]. Applications for LAGC permits that are not 
postmarked on or before [date 90 days from the date the Final Rule is 
published in the Federal Register] may be denied and returned to the 
sender with a letter explaining the denial. Such denials may not be 
appealed and shall be the final decision of the Department of Commerce. 
If NMFS determines that the vessel owner has failed to pay a cost 
recovery fee in accordance with the cost recovery requirements 
specified at Sec.  648.53(h)(4)(ii), the IFQ permit shall not be 
renewed.
    3. In Sec.  648.9, paragraph (c)(2)(i)(B) is revised to read as 
follows:


Sec.  648.9  VMS requirements.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (B) For vessels fishing with a valid NE multispecies limited access 
permit, a valid surfclam and ocean quahog permit specified at Sec.  
648.4(a)(4), or an Atlantic sea scallop permit, the vessel owner signs 
out of the VMS program for a minimum period of 30 consecutive days by 
obtaining a valid letter of exemption pursuant to paragraph (c)(2)(ii) 
of this section, the vessel does not engage in any fisheries until the 
VMS unit is turned back on, and the vessel complies with all conditions 
and requirements of said letter; or
* * * * *
    4. In Sec.  648.11, paragraphs (g)(2), (g)(3), (g)(4)(i), 
(g)(4)(ii), (g)(5), (h)(5)(i), (h)(5)(iv), (h)(5)(vi), (h)(5)(vii)(A), 
and (h)(5)(vii)(E) are revised, and paragraphs (h)(5)(vii)(G) through 
(h)(5)(vii)(J) are added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (g) * * *
    (2) Vessel notification procedures--(i) Limited access vessels. 
Limited access vessel owners, operators, or managers shall notify NMFS/
NEFOP by telephone not more than 10 days prior to the beginning of any 
scallop trip of the time, port of departure, open area or specific Sea 
Scallop Access Area to be fished, and whether fishing as a scallop 
dredge, scallop trawl, or general category vessel.
    (ii) General category vessels. General category vessel owners, 
operators, or managers must notify the NMFS/NEFOP by telephone by 0001 
hr of the Wednesday preceding the week (Monday through Sunday) they 
intend to start a scallop trip. If selected, up to two Sea Scallop 
Access Area trips that start during the specified week (Monday through 
Sunday) can be selected to be covered by an observer. NMFS/NEFOP must 
be notified by the owner, operator, or vessel manager of any trip plan 
changes.
    (3) Selection of scallop trips for observer coverage. Based on 
predetermined coverage levels for various permit categories and areas 
of the scallop fishery that are provided by NMFS in writing to all 
observer service providers approved pursuant to paragraph (h) of this 
section, NMFS shall notify the vessel owner, operator, or vessel 
manager whether the vessel must carry an observer, or if a waiver has 
been granted, for the specified scallop trip, within 72 hr of the 
vessel owner's, operator's, or vessel manager's notification of the 
prospective scallop trip, as specified in paragraph (g)(2) of

[[Page 14759]]

this section. Any request to carry an observer may be waived by NMFS. 
All waivers for observer coverage shall be issued to the vessel by VMS 
so as to have on-board verification of the waiver. A vessel may not 
fish in an area with an observer waiver confirmation number that does 
not match the scallop trip plan that was called in to NMFS. 
Confirmation numbers for trip notification calls are only valid for 48 
hr from the intended sail date; and
    (4) * * *
    (i) An owner of a scallop vessel required to carry an observer 
under paragraph (g)(3) of this section must arrange for carrying an 
observer certified through the observer training class operated by the 
NMFS/NEFOP from an observer service provider approved by NMFS under 
paragraph (h) of this section. The observer service provider will 
notify the vessel owner, operator, or manager within 18 hr whether they 
have an available observer. A list of approved observer service 
providers shall be posted on the NMFS/NEFOP Web site at http://www.nefsc.noaa.gov/femad/fsb/. The observer service provider may take 
up to 48 hr to arrange for observer deployment for the specified 
scallop trip.
    (ii) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 48 hr of the advance notification 
to the provider due to the unavailability of an observer may request a 
waiver from NMFS/NEFOP from the requirement for observer coverage for 
that trip, but only if the owner, operator, or vessel manager has 
contacted all of the available observer service providers to secure 
observer coverage and no observer is available. NMFS/NEFOP shall issue 
such a waiver within 24 hr, if the conditions of this paragraph 
(g)(4)(ii) are met. If NMFS/NEFOP does not respond within 24 hr, the 
vessel may depart on the trip without a waiver.
    (5) Owners of scallop vessels shall be responsible for paying the 
cost of the observer for all scallop trips on which an observer is 
carried onboard the vessel, regardless of whether the vessel lands or 
sells sea scallops on that trip, and regardless of the availability of 
set-aside for an increased possession limit or reduced DAS accrual 
rate. The owners of vessels that carry an observer may be compensated 
with a reduced DAS accrual rate for open area scallop trips or 
additional scallop catch per day in Sea Scallop Access Areas in order 
to help defray the cost of the observer, under the program specified in 
Sec. Sec.  648.53 and 648.60.
    (i) Observer service providers shall establish the daily rate for 
observer coverage on a scallop vessel on an Access Area trip or open 
area DAS scallop trip consistent with paragraphs (g)(5)(i)(A) and (B), 
respectively, of this section.
    (A) Access Area trips. For purposes of determining the daily rate 
for an observed scallop trip in a Sea Scallop Access Area, providers 
must calculate the duration of the trip as the period from the first 
VMS polling position outside of the demarcation line at the beginning 
of the trip to the first VMS polling position inside of the demarcation 
line at the end of the trip. The daily rate of compensation equates to 
each 24 hour period or part of a 24 hour period of such trip. For 
example, if the first VMS polling position outside of the demarcation 
line of a vessel with an observer on an access area trip was 9 p.m. on 
the first day of the month, and the first VMS polling position inside 
of the demarcation line at the end of the trip was at 1 a.m. on the 
third day of the month, the duration of the trip equals 28 hr or 2 
``days'' (24 hr (first day) + 4 hr (second day), because it is part of 
the next 24-hr period) for the purposes of access area observer set-
aside compensation.
    (B) Open area scallop trips. For observed open area DAS scallop 
trips, providers shall prorate portions of days at an hourly charge, 
such that, for the example in paragraph (g)(5)(i)(A) of this section, 
the provider would charge 1 day and 4 hr for the observed trip.
    (ii) NMFS shall determine any reduced DAS accrual rate and the 
amount of additional pounds of scallops per day fished in a Sea Scallop 
Access Area for the applicable fishing year based on the economic 
conditions of the scallop fishery, as determined by best available 
information. Vessel owners and observer service providers shall be 
notified through the Small Entity Compliance Guide of any DAS accrual 
rate changes and any changes in additional pounds of scallops 
determined by the Regional Administrator to be necessary. Vessel owners 
and observer providers shall be notified by NMFS of any adjustments.
* * * * *
    (h) * * *
    (5) * * *
    (i) An observer service provider must provide observers certified 
by NMFS/NEFOP pursuant to paragraph (i) of this section for deployment 
in the sea scallop fishery when contacted and contracted by the owner, 
operator, or vessel manager of a vessel fishing in the scallop fishery, 
unless the observer service provider does not have an available 
observer within 48 hr of receiving a request for an observer from a 
vessel owner, operator, and/or manager, or refuses to deploy an 
observer on a requesting vessel for any of the reasons specified at 
paragraph (h)(5)(viii) of this section. An observer's first three 
deployments and the resulting data shall be immediately edited and 
approved after each trip, by NMFS/NEFOP, prior to any further 
deployments by that observer.
* * * * *
    (iv) Observer deployment limitations. Unless alternative 
arrangements are approved by NMFS, an observer provider must not deploy 
any observer on the same vessel for more than two consecutive multi-day 
trips, and not more than twice in any given month for multi-day 
deployments.
* * * * *
    (vi) Observer training requirements. The following information must 
be submitted to NMFS/NEFOP to request a certified observer training 
class at least 7 days prior to the beginning of the proposed training 
class: Date of requested training; a list of observer candidates; 
observer candidate resumes; and a statement signed by the candidate, 
under penalty of perjury, that discloses the candidate's criminal 
convictions, if any. All observer trainees must complete a basic 
cardiopulmonary resuscitation/first aid course prior to the end of a 
NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a 
candidate for training if the candidate does not meet the minimum 
qualification requirements as outlined by NMFS National Minimum 
Eligibility Standards for observers as described in paragraph (i)(1) of 
this section.
    (vii) * * *
    (A) Observer deployment reports. The observer service provider must 
report to NMFS/NEFOP when, where, to whom, and to what fishery (open or 
closed area) an observer has been deployed, within 24 hr of the 
observer's departure. The observer service provider must ensure that 
the observer reports back to NMFS its Observer Contract (OBSCON) data, 
as described in the certified observer training, within 12 hr of 
landing. OBSCON data are to be submitted electronically or by other 
means as specified by NMFS. The observer service provider shall provide 
the raw (unedited) data collected by the observer to NMFS within 72 hr, 
which should be within 4 business days of the trip landing.
* * * * *
    (E) Observer availability report. The observer service provider 
must report to NMFS any occurrence of inability to respond to an 
industry request for

[[Page 14760]]

observer coverage due to the lack of available observers by 5 p.m., 
Eastern Standard Time, of any day on which the provider is unable to 
respond to an industry request for observer coverage.
* * * * *
    (G) Observer status report. Providers must provide NMFS/NEFOP with 
an updated list of contact information for all observers that includes 
the observer identification number, observer's name, mailing address, 
email address, phone numbers, homeports or fisheries/trip types 
assigned, and must include whether or not the observer is ``in 
service,'' indicating when the observer has requested leave and/or is 
not currently working for the Industry-Funded program.
    (H) Providers must submit to NMFS/NEFOP, if requested, a copy of 
each type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and those entities requiring observer 
services.
    (I) Providers must submit to NMFS/NEFOP, if requested, a copy of 
each type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and specific observers.
    (J) Providers must submit to NMFS/NEFOP, if requested, copies of 
any information developed and used by the observer providers 
distributed to vessels, such as informational pamphlets, payment 
notification, description of observer duties, etc.
* * * * *
    5. The following revisions to Sec.  648.11 are based on the 
proposed rule for Amendment 11 (72 FR 71315, December 17, 2007). In 
Sec.  648.14, paragraphs (h)(27) and (i)(2)(iv) are revised, and 
paragraphs (h)(29), (i)(1)(xx), and (i)(2)(xvii) are added to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (h) * * *
    (27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of a Sea Scallop 
Access Area by a vessel that is declared into the Area Access Program 
as specified in Sec.  648.60.
* * * * *
    (29) Fish for, possess, or land scallops from any Sea Scallop 
Access Area without an observer on board, unless the vessel owner, 
operator, or manager has received a waiver to carry an observer for the 
specified trip and area fished.
    (i) * * *
    (1) * * *
    (xx) Fish for, possess, or land scallops in any Sea Scallop Access 
Area without an observer on board, unless the vessel owner, operator, 
or manager has received a waiver to carry an observer for the specified 
trip and area fished.
    (2) * * *
    (iv) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries a Sea Scallop 
Access Area by a vessel that is declared into the Area Access Program 
as specified in Sec.  648.60.
* * * * *
    (xvii) Fail to comply with cost recovery requirements as specified 
under Sec.  648.53(g)(4).
* * * * *
    6. The following revisions to Sec.  648.53 are based on the 
proposed rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 
71315, December 17, 2007). In Sec.  648.53 paragraphs (a), (b)(5)(i), 
(b)(5)(ii), (b)(6), (g)(1), (g)(2), and (h)(4) are revised, the table 
in paragraph (b)(4) introductory text is revised, paragraph (b)(4)(ii) 
is added and reserved, paragraph (b)(5)(iii) is removed and reserved, 
and paragraph (b)(4)(i) is added to read as follows.


Sec.  648.53  Target total allowable catch, DAS allocations, and 
Individual Fishing Quotas.

    (a) Target total allowable catch (TAC) for scallop fishery. The 
annual target total TAC for the scallop fishery shall be established 
through the framework adjustment process specified in Sec.  648.55. The 
annual target TAC shall include the TAC for all scallop vessels fishing 
in open areas and Sea Scallop Access Areas, but shall exclude the TAC 
established for the Northern Gulf of Maine Scallop Management Area as 
specified in Sec.  648.62. After deducting the total estimated 
incidental catch of scallops, as specified at Sec.  648.53(a)(9), by 
vessels issued incidental catch general category scallop permits, and 
limited access and limited access general category scallop vessels not 
declared into the scallop fishery, the annual target TAC for open and 
Sea Scallop Access Areas shall each be divided between limited access 
vessels, limited access vessels that are fishing under a limited access 
general category permit, and limited access general category vessels as 
specified in paragraphs (a)(3) through (a)(6) of this section. In the 
event that a framework adjustment does not implement an annual TAC for 
a fishing or part of a fishing year, the preceding fishing year's 
scallop regulations shall apply.
    (1) 2008 fishing year target TAC for scallop fishery. 20,140 mt.
    (2) 2009 fishing year target TAC for scallop fishery. 20,820 mt.
    (3) Access area TAC. The TAC for each access area specified in 
Sec.  648.59 shall be determined through the framework adjustment 
process described in Sec.  648.55 and shall be specified in Sec.  
648.59 for each access area. The TAC set-asides for observer coverage 
and research shall be deducted from the TAC in each Access Area prior 
to assigning the target TAC and trip allocations for limited access 
scallop vessels, and prior to allocating TAC to limited access general 
category vessels. The percentage of the TAC for each Access Area 
allocated to limited access vessels, limited access general category 
vessels, and limited access vessels fishing under limited access 
general category permits shall be specified in accordance with Sec.  
648.60 through the framework adjustment process specified in Sec.  
648.55.
    (4) Open area TAC for limited access vessels--(i) 2008 fishing 
year. For the 2008 fishing year, the target TAC for limited access 
vessels fishing under the scallop DAS program specified in this section 
is 6,274 mt, which is equal to 90 percent of the target TAC specified 
in accordance with this paragraph (a), minus the TAC for all access 
areas specified in accordance with paragraph (b)(5) of this section.
    (ii) 2009 fishing year. Beginning March 1, 2009, unless the 
implementation of the IFQ program is delayed beyond March 1, 2009, as 
specified in paragraph (a)(5) of this section, the target TAC for 
limited access vessels fishing under the scallop DAS program specified 
in this section is 7,458 mt, which is equal to 94.5 percent of the 
target TAC specified in accordance with this paragraph (a), minus the 
TAC for all access areas specified in accordance with paragraph (b)(5) 
of this section. The target TAC for limited access vessels fishing 
under the DAS program shall be used to determine the DAS allocation for 
full-time, part-time, and occasional scallop vessels will receive after 
deducting the DAS set-asides for observer coverage and research.
    (5) Open area TAC for IFQ scallop vessels--(i) 2008 fishing year. 
For the 2008 fishing year, IFQ scallop vessels, and limited access 
scallop vessels that are fishing under an IFQ scallop permit outside of 
the scallop DAS and Area Access programs, shall be allocated 10 percent 
of the annual target TAC specified in accordance with paragraph (a) of 
this section, which is 1,369 mt, minus the TAC for all access areas 
specified in accordance with paragraph (b)(7) of this section.

[[Page 14761]]

    (ii) 2009 fishing year and beyond for IFQ scallop vessels without a 
limited access scallop permit. For the 2009 fishing year, the TAC for 
IFQ scallop vessels without a limited access scallop permit shall be 
equal to 5 percent of the target TAC specified in accordance with this 
paragraph (a), minus the TAC for all access areas specified in 
accordance with paragraph (b)(5) of this section. Therefore, the 2009 
TAC for IFQ scallop vessels without a limited access scallop permit is 
536 mt. If the IFQ program implementation is delayed beyond March 1, 
2009, as specified in this paragraph (a)(7), the quarterly fleetwide 
TAC specified in paragraph (a)(8) of this section would remain in 
effect.
    (iii) 2009 fishing year and beyond for IFQ scallop vessels with a 
limited access scallop permit. For the 2009 fishing year, limited 
access scallop vessels that are fishing under an IFQ scallop permit 
outside of the scallop DAS and Area Access programs shall be allocated 
0.5 percent of the annual target TAC specified in accordance with this 
paragraph (a), which is 102 mt, minus the TAC for all access areas 
specified in accordance with paragraph (b)(5) of this section. If the 
IFQ program implementation is delayed beyond March 1, 2009, as 
specified in this paragraph (a)(7), the quarterly fleetwide TAC 
specified in paragraph (a)(8) of this section would remain in effect 
until March 1, 2010, or beyond if the IFQ program implementation is 
further delayed.
    (6) Northern Gulf of Maine Scallop Fishery. The TAC for the 
Northern Gulf of Maine Scallop Fishery shall be specified in accordance 
with ( 648.62, through the framework adjustment process specified in ( 
648.55. The Northern Gulf of Maine Scallop Fishery TAC is specified in 
Sec.  648.62(b)(1).
    (7) Delay of the IFQ program. If the IFQ program implementation is 
delayed beyond March 1, 2009, the quarterly fleetwide TAC would remain 
in effect. Under such a scenario, the overall IFQ fishery allocation of 
4,551,700 lb (2,065 mt) would be distributed as follows: Quarter 1--
1,593,095 (723 mt); Quarter 2--1,820,680 lb (826 mt), Quarter 3--
682,755 lb (310 mt), Quarter 4--455,170 lb (206 mt). If the Regional 
Administrator determines that the IFQ program cannot be implemented by 
March 1, 2009, NMFS shall inform all scallop vessel owners that the IFQ 
program shall not take effect.
    (8) Distribution of transition period TAC--(i) Allocation. For the 
2008 fishing year, and subsequent fishing years until the IFQ program 
is implemented as specified in paragraph (j) of this section, the TAC 
for IFQ scallop vessels shall be allocated as specified in paragraphs 
(a)(5) of this section into quarterly periods. The percentage 
allocations for each period allocated to the IFQ scallop vessels, 
including limited access vessels fishing under an IFQ scallop permit 
and vessels under appeal for an IFQ scallop permit pursuant to Sec.  
648.4(a)(2)(ii) shall be specified in the framework adjustment process 
as specified in Sec.  648.55 and are specified in the following table:

------------------------------------------------------------------------
               Quarter                 Percent             TAC
------------------------------------------------------------------------
I. March-May                              35    1,523,375 lb (475.25 mt)
II. June-August                           40    1,741,000 lb (547.83 mt)
III. September-November                   15      652,875 lb (205.39 mt)
IV. December-February                     10      435,250 lb (136.93 mt)
------------------------------------------------------------------------

    (ii) Deductions of landings. All landings by IFQ scallop vessels 
and limited access vessels fishing under an IFQ scallop permit shall be 
deducted from the TAC allocations specified in the table in paragraph 
(a)(8)(i) of this section.
    (9) Scallop incidental catch target TAC. The 2008 and 2009 
incidental catch target TACs for vessels with incidental catch scallop 
permits are 50,000 lb (22,680 kg) per year.
* * * * *
    (b) * * *
    (4) * * *

------------------------------------------------------------------------
                       DAS category                        2008  2009\1\
------------------------------------------------------------------------
Full-time                                                   35      42
Part-time                                                   14      17
Occasional                                                   3       3
------------------------------------------------------------------------
\1\ If the IFQ program implementation is delayed beyond March 1, 2009,
  the following 2009 DAS allocations will be: Full-time--37; part-time--
  15, occasional--3.

    (i) Limited access vessels that lawfully use more open area DAS in 
the 2008 fishing year than specified in this section shall have the DAS 
used in excess of the 2008 allocation specified in this paragraph 
(b)(4) deducted from their 2009 open area DAS allocation specified in 
paragraph (b)(2) of this section.
    (ii) [Reserved]
    (5) * * *
    (i) For each remaining complete trip in the Nantucket Lightship 
Access Area, a full-time and part-time vessel may fish an additional 
7.7 DAS in open areas and an occasional vessel may fish an additional 
3.2 DAS during the same fishing year. A complete trip is deemed to be a 
trip that is not subject to a reduced possession limit under the broken 
trip provision in Sec.  648.60(c). If a vessel has unused broken trip 
compensation trip(s), as specified in Sec.  648.60(c), when the 
Nantucket Lightship Access Area closes due to the yellowtail flounder 
bycatch TAC, it would be issued additional DAS in proportion to the 
unharvested possession limit. For example, if a full-time vessel had an 
unused 9,000-lb (4,082-kg) Nantucket Lightship Access Area compensation 
trip (half of the possession limit) at the time of a Nantucket 
Lightship Access Area yellowtail flounder bycatch TAC closure, the 
vessel would be allocated 3.85 DAS (half of 7.7 DAS).
    (ii) For each remaining complete trip in Closed Area II, a full-
time and part-time vessel may fish an additional 7.9 DAS in open areas 
and an occasional vessel may fish an additional 3.3 DAS during the same 
fishing year. A complete trip is deemed to be a trip that is not 
subject to a reduced possession limit under the broken trip provision 
in Sec.  648.60(c). If a vessel has unused Closed Area II broken trip 
compensation trip(s), as specified in Sec.  648.60(c), when Closed Area 
II closes due to the yellowtail flounder bycatch TAC, it would be 
issued additional DAS in proportion to the unharvested possession 
limit. For example, if a full-time vessel had an unused 9,000 lb (4,082 
kg) Closed Area II compensation trip (half of the possession limit) at 
the time of a Closed Area II yellowtail flounder bycatch TAC closure, 
the vessel would be allocated 3.95 DAS (half of 7.9 DAS).
    (6) 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.
* * * * *
    (g) * * *
    (1) DAS set-aside for observer coverage. As specified in paragraph 
(b)(2) of this section, to help defray the cost of carrying an 
observer, 1 percent of the total DAS shall 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 is 118 DAS for the 2008 
fishing year, and 141 DAS for the 2009 fishing year. If the IFQ program 
implementation is delayed beyond March 1, 2009, the 2009 DAS set-aside 
for observer coverage will be 124 DAS. Vessels carrying an observer 
shall be compensated with reduced DAS

[[Page 14762]]

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 shall be charged 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 shall be deducted from the observer DAS set-aside 
amount in the applicable fishing year. Utilization of the DAS set-aside 
shall be on a first-come, first-served basis. When the DAS set-aside 
for observer coverage has been utilized, vessel owners shall be 
notified that no additional DAS remain available to offset the cost of 
carrying observers. The obligation to carry and pay for an observer 
shall not be waived due to the absence of set-aside DAS allocations.
    (2) DAS set-aside for research. As specified in paragraph (b)(2) of 
this section, to help support the activities of vessels participating 
in certain research, as specified in Sec.  648.56; the DAS set-aside 
for research is 235 DAS for the 2008 fishing year, and 282 DAS for the 
2009 fishing year. If the IFQ program implementation is delayed beyond 
March 1, 2009, the 2009 DAS set-aside for research will be 241 DAS. 
Vessels participating in approved research shall be authorized to use 
additional DAS in the applicable fishing year. Notification of 
allocated additional DAS shall be provided through a letter of 
authorization, or Exempted Fishing Permit issued by NMFS, or shall be 
added to a participating vessel's open area DAS allocation, as 
appropriate.
* * * * *
    (h) * * *
    (4) IFQ cost recovery. The Secretary of Commerce is authorized to 
collect a fee, not to exceed 3 percent of the ex-vessel value of IFQ 
fish harvested, to recover the costs associated with of management, 
data collection, and enforcement of the IFQ program. The owner of a 
vessel issued an IFQ scallop permit and subject to the IFQ program 
specified in this paragraph (h), shall be responsible for paying the 
fee as required by NMFS in this paragraph (h)(4). An IFQ scallop vessel 
shall incur a cost recovery fee liability for every landing of IFQ 
scallops. The IFQ scallop permit holder shall be responsible for 
collecting his/her own fee liability for all of his/her IFQ scallop 
landings, and shall be responsible for submitting this payment to NMFS 
once per year.
    (i) Cost recovery fee determination. The ex-vessel value of 
scallops shall be determined as an average of the ex-vessel value, as 
determined by Northeast Federal dealer reports, of all IFQ scallops 
landed between March 1 and September 30 of the initial year of the IFQ 
scallop program, and from October 1 through September 30 of each year 
thereafter.
    (ii) Fee payment procedure. On or about October 31 of each year, 
NMFS shall mail a cost recovery bill to each IFQ scallop permit holder 
for the previous cost recovery period. An IFQ scallop permit holder who 
has incurred a fee liability must pay the fee to NMFS by January 1 of 
each year. Cost recovery payments shall be made electronically via the 
Federal web portal, www.pay.gov, or other internet sites as designated 
by the Regional Administrator. Instructions for electronic payment 
shall be available on both the payment website and the paper bill. 
Payment options shall include payment via a credit card, as specified 
in the cost recovery bill, or via direct automated clearing house (ACH) 
withdrawal from a designated checking account. Payment by check may be 
authorized by the Regional Administrator if the Regional Administrator 
has determined that electronic payment is not possible (for example, if 
the geographical area or an individual(s) is affected by catastrophic 
conditions).
    (iii) Payment compliance. An IFQ scallop permit holder that has 
incurred an IFQ cost recovery fee must pay the fee to NMFS by January 1 
of each year. If the cost recovery payment, as determined by NMFS, is 
not made by January 1, NMFS may deny the renewal of the IFQ scallop 
permit until full payment is received. If, upon preliminary review of 
the accuracy and completeness of a fee payment, NMFS determines the IFQ 
scallop permit holder has not paid the full amount due, NMFS shall 
notify the IFQ scallop permit holder by letter. NMFS shall explain the 
discrepancy and provide the IFQ scallop permit holder 30 days to either 
pay the amount specified by NMFS or to provide evidence that the amount 
paid was correct. If the IFQ scallop permit holder submits evidence in 
support of his/her payment, NMFS shall determine if there is any 
remaining disagreement as to the appropriate IFQ fee, and prepare a 
Final Administrative Determination (FAD). The FAD shall set out the 
facts, discuss those facts within the context of the relevant agency 
policies and regulations, and make a determination as to the 
appropriate disposition of the matter. A FAD shall be the final agency 
action, and, if the FAD determines that the IFQ scallop permit holder 
is out of compliance, the FAD shall require payment within 30 days. If 
a FAD is not issued until after the start of the fishing year, the IFQ 
scallop permit holder may be authorized by the Regional Administrator 
to fish under their IFQ scallop permit until the FAD is issued, at 
which point the permit holder will have 30 days to comply with the 
terms of the FAD or have his/her IFQ scallop permit suspended until 
such terms are met. If NMFS determines that the IFQ scallop permit 
holder owes additional fees for the previous cost recovery period, and 
the IFQ scallop permit has already been renewed, NMFS will issue a FAD, 
at which point the permit holder will have 30 days to comply with the 
terms of the FAD or have his/her IFQ scallop permit suspended until 
such terms are met. If such payment is not received within 30 days of 
issuance of the FAD, NMFS shall refer the matter to the appropriate 
authorities within the U.S. Treasury for purposes of collection, and no 
IFQ permit held by the permit holder will be renewed until the terms of 
the FAD are met. If NMFS determines that the conditions of the FAD have 
been met, the IFQ permit holder may renew the IFQ scallop permit(s). If 
NMFS does not receive full payment prior to the end of the fishing 
year, the IFQ scallop permit will be considered voluntarily abandoned, 
pursuant to Sec.  648.4(a)(2)(ii)(K), unless otherwise determined by 
the Regional Administrator.
* * * * *
    7. In Sec.  648.58, paragraph (a) is added and paragraph (b) is 
revised, and paragraphs (e) through (h) are removed:


Sec.  648.58  Rotational Closed Areas.

    (a) Hudson Canyon Closed Area. Through at least February 28, 2010, 
no vessel may fish for scallops in, or possess or land scallops from, 
the area known as the Hudson Canyon Closed Area. No vessel may possess 
scallops in the Hudson Canyon Closed Area, unless such vessel is only 
transiting the area as provided in paragraph (c) of this section. The 
Hudson Canyon Closed 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[deg]30'N.         73[deg]10'
                                                                     W.

[[Page 14763]]

 
H2                                       39[deg]30'N.         72[deg]30'
                                                                     W.
H3                                       38[deg]30'N.         73[deg]30'
                                                                     W.
H4                                       38[deg]50'N.         73[deg]30'
                                                                     W.
H5                                       38[deg]50'N.         73[deg]42'
                                                                     W.
H1                                       39[deg]30'N.         73[deg]10'
                                                                     W.
------------------------------------------------------------------------

    (b) Delmarva Closed Area. From January 1, 2007, through at least 
February 28, 2009, no vessel may fish for scallops in, or possess or 
land scallops from, the area known as the Delmarva Closed Area. No 
vessel may possess scallops in the Delmarva Closed Area, unless such 
vessel is only transiting the area as provided in paragraph (b) of this 
section. The Delmarva Closed 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
------------------------------------------------------------------------
DMV1                                     38[deg]10'N.         74[deg]50'
                                                                     W.
DMV2                                     38[deg]10'N.         74[deg]00'
                                                                     W.
DMV3                                     37[deg]15'N.         74[deg]00'
                                                                     W.
DMV4                                     37[deg]15'N.         74[deg]50'
                                                                     W.
DMV1                                     38[deg]10'N.         74[deg]50'
                                                                     W.
------------------------------------------------------------------------

    8. In Sec.  648.59, paragraph (e)(3) is removed and reserved, and 
paragraphs (a), (b)(5)(ii)(B), (c)(5)(ii)(B), (d)(5)(ii)(B), and 
(e)(6)(ii)(B) are revised to read as follows. The revisions to 
(c)(5)(ii)(B), (d)(5)(ii)(B), and (e)(6)(ii)(B) are based on the 
proposed rule for Amendment 11 to the Atlantic Sea Scallop FMP (72 FR 
71315, December 17, 2007).


Sec.  648.59  Sea Scallop Access Areas.

    (a) Delmarva Sea Scallop Access Area. (1) From March 1, 2009, 
through February 28, 2010, a vessel issued a scallop permit may fish 
for, possess, or land scallops in or from the area known as the 
Delmarva 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 Sec.  648.60.
    (2) The Delmarva 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
------------------------------------------------------------------------
DMV1                                     38[deg]10'N.         74[deg]50'
                                                                     W.
DMV2                                     38[deg]10'N.         74[deg]00'
                                                                     W.
DMV3                                     37[deg]15'N.         74[deg]00'
                                                                     W.
DMV4                                     37[deg]15'N.         74[deg]50'
                                                                     W.
DMV1                                     38[deg]10'N.         74[deg]50'
                                                                     W.
------------------------------------------------------------------------

    (3) 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 2009 in the Delmarva 
Access Area as specified in Sec.  648.60(a)(3)(i), unless the vessel 
owner has made an exchange with another vessel owner whereby the vessel 
gains a Delmarva Access Area trip and gives up a trip into another Sea 
Scallop Access Area, as specified in Sec.  648.60(a)(3)(ii), or unless 
the vessel is taking a compensation trip for a prior Delmarva Access 
Area trip that was terminated early, as specified in Sec.  648.60(c).
    (ii) General category vessels. (A) LAGC vessels are allocated 728 
Delmarva Access Area trips for the 2009 fishing year, unless otherwise 
adjusted according to Sec.  648.60(a)(3)(i)(E). Subject to the 
possession limit specified in Sec. Sec.  648.52(a) and (b) and 
648.60(g), a LAGC vessel may not enter, fish for, possess, or land sea 
scallops in or from the Delmarva Access Area once the Regional 
Administrator has provided notification in the Federal Register, in 
accordance with Sec.  648.60(g)(4), that 728 trips in the 2009 fishing 
year have been taken, in total, by all general category scallop 
vessels, unless transiting pursuant to paragraph (f) of this section. 
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 2009 fishing year.
    (b) * * *
    (5) * * *
    (ii) * * *
    (B) Except as provided in paragraph (b)(5)(ii)(C) of this section, 
subject to the possession limit specified in Sec. Sec.  648.52(a) and 
(b) and 648.60(g), and subject to the seasonal restrictions specified 
in paragraph (b)(4) of this section, an LAGC scallop vessel may not 
enter, fish for, possess, or land sea scallops in or from the Closed 
Area I Access Area through the 2009 fishing unless transiting pursuant 
to paragraph (f) of this section. If general category vessels take 2008 
Closed Area I Access Area trips, the same number of ETAA trips as 
specified in paragraph (e)(6)(ii)(B) of this section will be deducted 
from the LAGC fishery in 2009.
    (c) * * *
    (5) * * *
    (ii) * * *
    (B) Except as provided in paragraph (c)(5)(ii)(C) of this section, 
subject to the possession limits specified in Sec. Sec.  648.52(a) and 
(b), and 648.60(g), and subject to the seasonal restrictions specified 
in paragraph (c)(4) of this section, an LAGC scallop vessel may not 
enter in, or fish for, possess, or land sea scallops in or from the 
Closed Area II Access Area through the 2009 fishing unless transiting 
pursuant to paragraph (f) of this section.
    (d) * * *
    (5) * * *
    (ii) * * *
    (B) LAGC vessels are allocated 667 Nantucket Lightship Access Area 
trips for the 2008 fishing year. Except as provided in paragraph 
(d)(5)(ii)(C) of this section, subject to the possession limits 
specified in Sec. Sec.  648.52(a) and (b), and 648.60(g), an LAGC 
scallop vessel may not enter, 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 Sec.  648.60(g)(4), that the 667 trips allocated in the 
2008 fishing year are projected to be taken, in total, by all LAGC 
scallop vessels, unless transiting pursuant to paragraph (f) of this 
section. The Regional Administrator shall notify all LAGC scallop 
vessels of the date when the maximum number of allowed trips have been, 
or are projected to be, taken for the 2008 fishing year.
* * * * *
    (e) * * *
    (6) * * *
    (ii) * * *
    (B) LAGC vessels are allocated 2,668 Elephant Trunk Access Area 
trips for the 2008 fishing year, and 1,964 Elephant Trunk Access Area 
trips for the 2009 fishing year, unless otherwise adjusted according to 
Sec.  648.60(a)(3)(i)(E). Subject to the possession limits specified in 
Sec. Sec.  648.52(a) and (b), and 648.60(g), an LAGC scallop vessel may 
not enter in, or fish for, possess, or land sea scallops in or from the 
Elephant Trunk Sea Scallop Access Area once the Regional Administrator 
has provided notification in the Federal Register, in accordance with 
Sec.  648.60(g)(4), that the 2,668 trips allocated in the 2008 fishing 
year, or the 1,964 trips allocated to the 2009 fishing year are 
projected to be taken, in total, by all LAGC scallop vessels, unless 
transiting pursuant to paragraph (f) of this section. The Regional 
Administrator shall notify all LAGC scallop vessels of the date when 
the maximum number of allowed trips have been, or are projected to be, 
taken for the 2008 and 2009 fishing years.
* * * * *
    9. The revision in Sec.  648.60 paragraph (a) introductory text is 
based on the proposed rule for Amendment 11 (72 FR

[[Page 14764]]

71315, December 17, 2007) as follows. The revision in Sec.  648.60 
paragraph (a)(3)(i), (d)(1), and (e)(1) is revised based on current 
regulations as follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) A limited access scallop vessel may only fish in the Sea 
Scallop Access Areas specified in Sec.  648.59, subject to the seasonal 
restrictions specified in Sec.  648.59, provided the vessel complies 
with the requirements specified in paragraphs (a)(1) through (a)(9), 
and (b) through (f) of this section. An LAGC scallop vessel may fish in 
the Sea Scallop Access Areas specified in Sec.  648.59, subject to the 
seasonal restrictions specified in Sec.  648.59, provided the vessel 
complies with the requirements specified in paragraph (g) of this 
section.
* * * * *
    (3) * * *
    (i) Limited access vessel trips. (A) Except as provided in 
paragraph (c) of this section, and unless the number of trips is 
adjusted for the Elephant Trunk Access Area or the Delmarva Access Area 
as specified in paragraph (a)(3)(i)(F) of this section, paragraphs 
(a)(3)(i)(B) through (E) of this section specify the total number of 
trips that a limited access scallop vessel may take into Sea Scallop 
Access Areas during applicable seasons specified in Sec.  648.59. The 
number of trips per vessel in any one Sea Scallop Access Area may not 
exceed the maximum number of trips allocated for such Sea Scallop 
Access Area as specified in Sec.  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, been allocated a compensation trip pursuant to paragraph (c) 
of this section, or unless the Elephant Trunk Access Area trip 
allocations are adjusted as specified in Sec.  648.60(a)(3)(i)(F). If, 
during the interim period between March 1, 2008, and the implementation 
of the limited access Access Area trip allocations specified in this 
section, a limited access vessel takes a 2008 Closed Area I Access Area 
trip, one ETAA trip will be deducted from the vessel's 2009 allocation 
as specified in this section.
    (B) Full-time scallop vessels. In the 2008 fishing year, a full-
time scallop vessel may take four trips in the Elephant Trunk Access 
Area and one trip in the Nantucket Lightship Access Area. In the 2009 
fishing year, a full-time scallop vessel may take three trips in the 
Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) 
of this section), one trip in the Closed Area II Access Area, and one 
trip in the Delmarva Access Area (unless adjusted per paragraph 
(a)(3)(i)(F) of this section).
    (C) Part-time scallop vessels. In the 2008 fishing year, a part-
time scallop vessel may take one trip in the Nantucket Lightship Access 
Area and one trip in the Elephant Trunk Access Area (unless adjusted 
per paragraph (a)(3)(i)(F) of this section); or two trips in the 
Elephant Trunk Access Area. In the 2009 fishing year, a part-time 
scallop vessel is allocated two trips that may be distributed between 
access areas as follows: Up to two trips in the Elephant Trunk Access 
Area (unless adjusted per paragraph (a)(3)(i)(F) of this section), up 
to one trip in Closed Area II, and up to one trip in the Delmarva 
Access Area (unless adjusted per paragraph (a)(3)(i)(E) of this 
section).
    (D) Occasional scallop vessels. In the 2008 fishing year, an 
occasional scallop vessel may take one trip in the Nantucket Lightship 
Access Area or one trip in the Elephant Trunk Access Area. In the 2009 
fishing year, an occasional scallop vessel may take one trip in the 
Closed Area II Access Area or one trip in the Elephant Trunk Access 
Area (unless adjusted per paragraph (a)(3)(i)(F) of this section) or 
one trip in the Delmarva Access Area (unless adjusted per paragraph 
(a)(3)(i)(E) of this section).
    (E) Procedure for adjusting the number of 2009 fishing year trips 
in the Elephant Trunk and Delmarva Access Areas. (1) The Regional 
Administrator shall reduce the number of 2009 Elephant Trunk Access 
Area trips using the table in paragraph (a)(3)(i)(F)(2) of this section 
and/or Delmarva Access Area trips using the table in paragraph 
(a)(3)(i)(F)(3) of this section, provided that updated exploitable 
biomass projections are available with sufficient time to announce such 
an adjustment through publication of a final rule in the Federal 
Register, pursuant to the Administrative Procedure Act, on or about 
December 1, 2008. In addition, if an updated estimate of overall F 
exceeds 0.29 in 2008, then Elephant Trunk Access Area trip allocations 
will be reduced consistent with reductions as specified in the table in 
paragraph (a)(3)(i)(F)(2) of this section under exploitable biomass 
estimates of 20,000 -- 29,000 mt. If both the exploitable biomass and F 
thresholds are exceeded, the allocation level will be established using 
the exploitable biomass adjustment schedule. If information is not 
available in time for NMFS to publish a final rule on or about December 
1, 2008, no adjustment may be made. The exploitable biomass estimate 
necessary for any adjustment of the 2009 Elephant Trunk Access Area 
and/or Delmarva Access Area trip allocations shall be based on all 
available scientific surveys of scallops within the Elephant Trunk 
Access Area or Delmarva Access Area. Survey data must be used only if 
they are available with sufficient time for review and incorporation in 
the exploitable biomass estimate and they are determined to be 
scientifically sound. If no other surveys are available, the annual 
NOAA scallop resource survey shall be used to estimate exploitable 
scallop biomass for the Elephant Trunk Access Area.
    (2) Table of Elephant Trunk Access Area TAC and trip allocation 
adjustments based on exploitable biomass estimates and revised target 
TAC levels. If the exploitable biomass estimate is between 20,000 and 
29,999 mt, part-time vessels shall be authorized to take one trip in 
the Elephant Trunk Access Area at a reduced possession limit of 3,600 
lb (1,633 kg) and one trip in the Nantucket Lightship Access Area at 
the normal possession limit as specified at Sec.  648.60(a)(5); and 
occasional vessels may take one trip in the Elephant Trunk Access Area 
or one trip in the Nantucket Lightship Access Area with a normal 
possession limit of 7,500 lb (3,402 kg) as specified at Sec.  
648.60(a)(5). The following table specifies the adjustments that shall 
be made through the procedure specified in paragraph (a)(3)(i)(F)(1) of 
this section under various biomass estimates and adjusted 2009 TAC 
estimates:

----------------------------------------------------------------------------------------------------------------
                                                  Adjusted trips
                                                    (full-time,   Adjusted trips   Adjusted 2009   Adjusted 2009
        Exploitable biomass estimate (mt)           part-time,       (general      research set-   observer set-
                                                    occasional)      category)       aside TAC       aside TAC
----------------------------------------------------------------------------------------------------------------
30,000 or greater                                  No adjustment   No adjustment   No adjustment   No adjustment
20,000-29,999                                         2, 1*, 1**            1473            0.24            0.12
10,000-19,000                                            1, 0, 0             982            0.16            0.08

[[Page 14765]]

 
Less than 10,000                                         0, 0, 0             491            0.08            0.04
----------------------------------------------------------------------------------------------------------------
* Part-time vessels may take one trip in the Elephant Trunk Access Area at a reduced possession limit of 3,600
  lb (1,633 kg) and one trip in the NLCA with a possession limit of 18,000 lb (8,165 kg).
* * Occasional vessels may take 1 trip in the Nantucket Lightship Access Area or one trip in the Elephant Trunk
  Access Area.

    (3) Table of Delmarva Access Area TAC and trip allocation 
adjustments based on exploitable biomass estimates and revised target 
TAC levels. The following table specifies the adjustments that shall be 
made through the procedure specified in paragraph (a)(3)(i)(F)(1) of 
this section under various biomass estimates and adjusted 2009 target 
TAC estimates:

----------------------------------------------------------------------------------------------------------------
                                                  Adjusted trips
                                                    (full-time,   Adjusted trips   Adjusted 2009   Adjusted 2009
        Exploitable biomass estimate (mt)           part-time,       (general      research set-   observer set-
                                                    occasional)      category)       aside TAC       aside TAC
----------------------------------------------------------------------------------------------------------------
10,000 or greater                                  No adjustment   No adjustment   No adjustment   No adjustment
Less than 10,000                                           0,0,0               0               0               0
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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 in-
shell scallops.

------------------------------------------------------------------------
                                        Permit Category Possession Limit
             Fishing Year              ---------------------------------
                                        Full-time  Part-time  Occasional
------------------------------------------------------------------------
2008                                    18,000 lb  18,000 lb    7,500 lb
                                           (8,165     (8,165  (3,402 kg)
                                              kg)        kg)
2009                                    18,000 lb     18,000    7,500 lb
                                           (8,165      lb\1\  (3,402 kg)
                                              kg)     (8,165
                                                         kg)
------------------------------------------------------------------------
\1\ Unless reduced per Sec.   648.60(a)(3)(i)(E)(2)

* * * * *
    (d) Possession limit to defray costs of observers--(1) Observer 
set-aside limits by area--(i) Nantucket Lightship Access Area. For the 
2008 fishing year, the observer set-asides for the Nantucket Lightship 
Access Area is 55,000 lb (25 mt).
    (ii) Closed Area II Access Area. For the 2009 fishing year, the 
observer set-aside for the Closed Area II Access Area is 58,000 lb (26 
mt).
    (iii) Elephant Trunk Access Area. For the 2008 and 2009 fishing 
years, the observer set-aside for the Elephant Trunk Access Area is 
222,000 lb (101 mt), and 162,000 lb (73 mt), respectively, unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
    (iv) Delmarva Access Area. For the 2009 fishing year, the observer 
set-aside for the Delmarva Access Area is 60,000 lb (27 mt), unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
* * * * *
    (e) * * *
    (1) Research set-aside limits and number of trips by area--(i) 
Nantucket Lightship Access Area. For the 2008 fishing year, the 
research set-aside for the Nantucket Lightship Access Area is 110,000 
lb (50 mt).
    (ii) Closed Area II Access Area. For the 2009 fishing year, the 
research set-aside for the Closed Area II Access Area is 116,000 lb (53 
mt).
    (iii) Elephant Trunk Access Area. For the 2008 and 2009 fishing 
years, the research set-aside for the Elephant Trunk Access Area is 
440,000 lb (200 mt), and 324,000 lb (147 mt), respectively, unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
    (iv) Delmarva Access Area. For the 2009 fishing year, the research 
set-aside for the Delmarva Access Area is 120,000 lb (54 mt), unless 
the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) 
of this section.
* * * * *
    10. The following revision to Sec.  648.62 is based on the proposed 
rule for Amendment 11 (72 FR 71315, December 17, 2007). In Sec.  
648.62, paragraph (b)(1) is revised to read as follows.


Sec.  648.62  Northern Gulf of Maine (NGOM) scallop management area.

* * * * *
    (b) * * *
    (1) NGOM TAC. The TAC for the NGOM shall be 70,000 lb (31.8 mt) for 
both the 2008 and 2009 fishing years.
* * * * *
[FR Doc. 08-1055 Filed 3-14-08; 4:08 pm]
BILLING CODE 3510-22-S


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