[Federal Register Volume 59, Number 12 (Wednesday, January 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1188]
[[Page Unknown]]
[Federal Register: January 19, 1994]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 650
[Docket No. 930828-3324; I.D. 080593A]
RIN 0648-AC99
Atlantic Sea Scallop Fishery
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement the conservation and
management measures contained in Amendment 4 to the Fishery Management
Plan (FMP) for the Atlantic Sea Scallop Fishery. Amendment 4
substantially revises the management of the Atlantic Sea Scallop
Fishery, especially regarding effort control in the fishery, permits,
and reporting and recordkeeping requirements. The intent of this
Amendment is to reduce the fishing mortality rate to eliminate the
overfished condition of Atlantic sea scallops.
EFFECTIVE DATE: March 1, 1994.
ADDRESSES: Copies of Amendment 4, its regulatory impact review (RIR),
initial regulatory flexibility analysis (IRFA), and the final
supplemental environmental impact statement (FSEIS) are available from
Douglas Marshall, Executive Director, New England Fishery Management
Council, Suntaug Office Park, 5 Broadway (U.S. Rte. 1), Saugus, MA
01906-1097, telephone 617-565-8937. Copies of the Finance Handbook may
be obtained from Mr. Joseph Giza, Chief, Fiscal Policy and Quality
Assurance Branch, NOAA Financial Management Division, Caller Service
No. 8025, 20020 Century Boulevard, Germantown, Maryland 20874,
telephone 301-443-8795.
Comments regarding the burden-hour estimates or any other aspect of
the collection-of-information requirements contained in this final rule
should be sent to Richard B. Roe, Regional Director, One Blackburn
Drive, Gloucester, MA 01930, and the Office of Management and Budget
(OMB) (Attention NOAA Desk Officer), Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,
508-281-9273.
SUPPLEMENTARY INFORMATION:
Background
Amendment 4 to the Atlantic Sea Scallop Fishery Management Plan
(FMP) was prepared by the New England Fishery Management Council
(Council) in consultation with the Mid-Atlantic and South Atlantic
Fishery Management Councils, under the provisions of the Magnuson
Fishery Conservation and Management Act (Magnuson Act) as amended, 16
U.S.C. 1801 et seq. A notice of availability for the proposed Amendment
was published on August 10, 1993, (58 FR 42522) and a proposed
implementing rule was published on September 2, 1993, (58 FR 46606).
Approval of Amendment 4
Amendment 4 was approved on November 5, 1993. However, concerns
were raised about the potential for Amendment 4 to cause excessive
harvest of small sea scallops the first few years of implementation, if
a supplemental average minimum meat count measure were not included as
a management measure in the Amendment. The Assistant Administrator for
Fisheries, NOAA (AA), approved the Amendment, concurring with the
Regional Director who stated that the issue of increased mortality on
small scallops in the early years of the program was considered by the
Council during deliberations by the Plan Development Team (where
representatives of both the Northeast Fisheries Science Center and the
NMFS Northeast Regional Office participate), the Sea Scallop Oversight
Committee, and the Council. The rebuilding schedule and effort
reductions in the Amendment are designed to strike a balance between an
accelerated rate of recovery and the minimization of economic and
social disruption to the fishery.
Although the Amendment was approved, NMFS remains concerned about
the near-term level of protection of small sea scallops. This concern
is reflected in the Regional Director's approval letter to the Council,
dated November 5, 1993, which advised the Council that the Regional
Director will be carefully monitoring the initial impact of the
Amendment on fishing mortality rates of small sea scallops. If fishing
mortality rates increase beyond anticipated levels, the Council is
expected to implement immediately adjustments under the framework
measures of the Amendment to protect sea scallop stocks adequately.
Overfishing Definition
Amendment 4 includes a definition of overfishing and a
determination that the sea scallop resource is overfished. The preamble
to the proposed rule included the definition of overfishing. It is not
repeated here.
To reduce fishing mortality below the overfishing definition
threshold, the Council will reduce fishing effort by approximately 40
percent over seven years. Because the impact of effort controls and
gear restrictions on the resource is uncertain, the Council estimates
that actual effort reduction needed could be as low as 35 percent or as
high as 70 percent.
Approved Vessel Tracking System (VTS) Vendors
In the proposed rule for Amendment 4, NMFS requested that vendors
interested in having their VTS certified for use in this fishery submit
information showing that the VTS meets the specifications contained in
the proposed rule. NMFS has reviewed the information submitted by
several vendors and will make available to interested parties the names
and addresses of those vendors who appear to meet the specifications.
The opportunity remains open for interested parties to submit their
information to the NMFS and to be added to the list of approved vendors
if it appears to the NMFS that they can meet the specifications. It is
not the intent of the NMFS to assure that the acquisition and
installation of a VTS unit from any one of these vendors meets the
requirement of this rule as specified at Sec. 650.25. Vessel owners
must demonstrate that the system purchased, from the list of approved
vendors, is capable of meeting the operational requirements of the
regulations by providing information on vessel position and vessel
status. It is the intent of the NMFS that until the vessel owner can
demonstrate to the satisfaction of the Regional Director that the VTS
unit is fully operational and is providing the required information to
the NMFS, the vessel owner/operator will not be eligible to receive a
permit unless the Regional Director authorizes the use of a call-in
system in accordance with Sec. 650.26(a)(3).
Effective Date of Management Measures
The specific management measures that will be used to achieve the
necessary reduction in fishing effort include the following: A
moratorium on most new entrants into the scallop fishery; allocations
of days-at-sea (DAS) that vessels may fish for scallops based on three
vessel groups (Full-time, Part-time, and Occasional); a requirement to
purchase and install a VTS unit for Full-time and Part-time vessels and
a call-in system for Occasional vessels to monitor DAS; permits for
vessel operators and dealers; an open access scallop permit for vessels
landing no more than 400 pounds (181.44 kg) of shucked scallops or no
more than 50 U.S. bushels (17.62 hl) of in-shell scallops per trip;
limitations on upgrading of vessel size and engine horsepower; a
prohibition on acquiring more than a 5 percent ownership interest in
the total number of limited access scallop vessels; mandatory reporting
for permitted vessels and dealers; crew-size limits; maximum dredge and
trawl sweep size restrictions; minimum ring and mesh size restrictions;
framework measures to adjust the effort control and other measures; a
minimum shell height restriction; and an annual option for vessels in
the Part-time or Occasional category to fish in the next higher vessel
group if they use only one dredge no more than 10.5 feet (3.2 m) in
width and their crew complement (including the operator) is five or
less. The preamble to the proposed rule described the management
measures and their rationale, which are not repeated here.
NMFS is implementing the measures in the Amendment and proposed
rule as of March 1, 1994, in order to provide opportunity for the
industry to convert to 3\1/4\ inch rings and acquire and install VTS
units; and because of the administrative burden imposed on the NMFS by
these collective measures, e.g., implementation of a VTS; the need to
issue thousands of new permits for operators, dealers and vessels; the
need to establish an appeal process for vessel owners who feel their
DAS allocation is in error and/or for vessels that do not qualify; and
the need to establish details of the recordkeeping and reporting
requirements required under Sec. 650.7 and the DAS monitoring set forth
in Sec. 650.25. While the VTS is being put in place and the initial
problems with that new system are being worked out, a call-in procedure
will be used to implement the DAS allocations. Existing regulations,
including the meat count measure, will remain in effect until March 1,
1994.
On March 1, 1994, the effective date of these regulations, all
scallop vessel owners and operators and all scallop dealers must have
an appropriate permit, as specified under Secs. 650.4, 650.5, and 650.6
in order to participate in the fishery. In order to ensure being issued
a permit, if eligible, by that date all owners, operators, and dealers
should apply for a permit as soon as possible. Application forms are
available now and NMFS will attempt to mail such forms to all known
scallop vessel owners and operators and scallop dealers as soon as
possible. Applications will be processed as received. Early
application, i.e., one filed before February 1, 1994, will help assure
that the permit is issued by March 1, 1994.
As provided in Sec. 650.26(a)(3), until any VTS vendor is approved
and the system is available, all permitted vessels fishing under the
DAS program must comply with the call-in notification provisions of
Sec. 650.26(b).
Comments and Responses
NMFS received comments on the proposed rule from one member of the
Congress of the United States, five fishing industry associations, and
eight individuals. All of the comments were carefully considered during
the formulation of the final rule. Specific comments are discussed and
responded to below.
Comment: A member of Congress of the United States and an
individual opposed the allocation of DAS because it takes Virginia,
North Carolina, and New Jersey fishermen longer to reach their fishing
grounds than it takes New England fishermen. These individuals offered
days fished or a total allowable catch as an alternative. The
commenters stated that the DAS rule gives a distinct advantage to one
area over another, whereas, days fished provides a level playing field
for all scallopers.
Response: The Council analyzed the days fished system before
deciding on the DAS program, using the NMFS weighout database, and
determined that DAS is a fair reflection of a vessel's historical time
at sea because it takes into consideration the number of days a vessel
spent traveling to and from the fishing grounds. The Council also
determined the database could not accurately show actual days fishing.
However, the final rule includes a measure that would allow the
adoption of a days-fished system through a regulatory amendment, if
data become available to support such a system.
Comment: Two industry associations requested an extension of the
comment period to October 28, 1993, because the proposed rule was
published in the Federal Register on September 2, 1993, and their
associations did not receive a copy of the rule until the third week in
September 1993.
Response: The Magnuson Act requires the Secretary of Commerce
(Secretary) to follow a mandated time schedule for approval of a plan
amendment once it has been submitted by a Fishery Management Council.
On July 30, 1993, the New England Fishery Management Council submitted
its plan amendment to NMFS, thereby triggering under the Magnuson Act
the 95-day time period in which the Secretary must approve or
disapprove the amendment. Because of this limited time frame to
consider and respond to public comment and prepare the final rule for
publication, NMFS allows for 45 days of public comment. NMFS believes
the 45 days given for comment are adequate.
Comment: Two industry associations stated that they do not support
staggering of implementation dates for measures contained in the
amendment and recommend that the meat count system remain in effect
until all management measures contained in Amendment 4 are implemented.
Response: The final rule retains the meat count measure until the
new measures are implemented.
Comment: Two industry associations commented that the requirement
to submit applications for Operator permits 30 days prior to the date
on which the permits are desired is unreasonable and recommended
issuing permits locally or by FAX.
Response: Due to the projected initial volume of applications for
Operator permits required under Amendment 4, the NMFS needs the
flexibility to take 30 days to process and mail permits. However, NMFS
will make every effort to process permits sooner. NMFS will make
available permit applications well in advance of March 1, 1994, in
order to maximize the likelihood that all participants in the scallop
fishery will have the ability to obtain a permit before March 1, 1994.
Comment: One industry association commented that the requirement to
provide written notice of changes in application information sections
for Vessel, Operator, and Dealer permits was ambiguous and recommended
that the changes be sent by registered or certified mail.
Response: The sections have been rewritten and now require that
within 15 days after a change in the application information, a written
report of the change be submitted and received by the Regional
Director. Requiring all changes to be sent by registered or certified
mail would be too burdensome. Nevertheless, permit holders could choose
to send the notice of change by registered or certified mail, return
receipt requested, if they want to verify that timely notification
occurred.
Comment: Two industry associations and three individuals requested
that the requirement of no more than double links between rings of a
scallop dredge be changed to allow the placement of a new link between
any two worn out ones or that the requirement be limited only to the
apron of the dredge.
Response: Requiring double links between rings throughout the
entire dredge is necessary to insure the escapement of small sea
scallops in order to mitigate the impact of removing the meat-count-
age-of-entry requirement. The NMFS recognizes that this may require
some change in industry practices but considers these measures to be
necessary to the overall success of the management program.
Comment: Two industry associations commented that the vessel
recording and reporting requirements were burdensome and unnecessary.
Response: A mandatory real-time data collection system including
census coverage is necessary to assess the effectiveness of the new
management measures and to make the necessary adjustments through the
framework system.
Comment: An industry association objected to the requirement, under
the recordkeeping and reporting requirements of Sec. 650.7 (a)(1) and
(b)(1), to provide any other information required by the Regional
Director.
Response: This requirement provides NMFS the flexibility to obtain
the information necessary for management, and is not open-ended since
the Regional Director must demonstrate that any additional data
requested is necessary to manage the fishery.
Comment: An individual objected to the prohibition on transferring
scallops at sea because it would not allow the transfer of sea scallop
product to freezer vessels at sea.
Response: The transfer prohibition reflects the Council intent to
control and equalize the amount of fishing pressure associated with
allocated DAS. From an enforcement perspective, the prohibition is
considered critical because it would be difficult to detect violations
unless all transfers are prohibited.
Comment: Two industry associations requested that the at-sea
observer requirements under Sec. 650.28 be deleted because the
provisions of this section were not clear regarding observer and vessel
responsibilities.
Response: A high level of monitoring is required to ensure the
effectiveness of the management program and to avoid imposing more
restrictive measures than necessary on the industry because of
insufficient data. This provision gives the Regional Director the
discretion to require a vessel to carry an observer to enhance data
collection, if necessary. In most cases where observer coverage is
considered necessary, the Regional Director will first attempt to
enlist voluntary participation. Observers would be provided through
existing NMFS observer programs. The vessel would not have to pay the
salary for the observer but would have to provide adequate
accommodations and food. Neither NMFS nor the government is responsible
for providing insurance coverage for the observer; each vessel should
provide appropriate coverage.
Comment: Two industry associations supported the framework measures
as described under Sec. 650.40.
Response: Comment noted.
Comment: An individual opposed, based on efficiency and safety
concerns, limiting scallop vessel crews to no more than nine people,
including the operator, while fishing under the scallop DAS program.
Response: Most scallop dredge vessels currently have their crew
members shuck scallop meats by hand while at sea. The amount and size
of scallops selected for shucking is a function of the crew size and
the catch rates. The crew size restriction reflects the Council's
intention to cap the fishing power of these vessels at sea by limiting
their processing (shucking) capacity. Currently, the average crew size
on sea scallop vessels is nine; in the past, crew sizes were larger but
this was a reflection of the condition of the resource. NMFS is not
aware of any data or information indicating that the limitation on crew
size will affect safety at sea.
Comment: An individual opposed the use of vessel landings in 1988
or 1989 as a criterion for limiting access to participation in the
fishery and stated that this measure does not meet the requirements of
the Magnuson Act.
Response: This requirement complies with the Magnuson Act for
establishing a system for limited access to a fishery. If a system for
limiting access to a fishery is included in a plan, the Magnuson Act
requires the Council and the Secretary to ``take into account'' such
factors as present participation in the fishery, historical fishing
practices and dependence on the fishery, and capability of vessels to
be used in other fisheries. The Council and NMFS considered all of
these factors in establishing criteria required to qualify for full
participation in the scallop fishery. A control date was announced on
March 2, 1989, which gave notice to participants and potential
participants of the fact that future participation in the fishery may
be limited for vessels that entered the fishery after the control date.
The purpose of the control date was to discourage speculative entry
into the fishery while development of Amendment 4 progressed. In
deciding to add the requirement that a vessel must have landed more
than 400 pounds of scallops on at least one trip in 1988-1989 in order
to be eligible to participate in the fishery, the Council was
addressing the factor of historical fishing practices and dependence on
the fishery. Later in its deliberations, the Council recognized that
not all participants may have received timely notice of the control
date and, therefore, allowed a limited exception for vessels purchased
after the control date if the vessels had any participation in the
fishery between 1982 and 1990. With respect to determining allocations
of DAS, the Council expanded historical participation to include 1985-
1990 in order to recognize longstanding historical dependence on the
fishery.
The rule also adopts a Council recommendation to establish an
exemption to the limited access fishery for vessels that land less than
400 pounds of scallops per day, in order to provide some opportunity
for small-scale operations and new entrants to participate in the
scallop fishery. Therefore, the Council's and NMFS's decision to rely
on the criteria contained in the final rule represents a balancing of
present and historical participation in the fishery with the need to
reduce fishing mortality by limiting the number of full-time
participants in the fishery.
Comment: One individual was opposed to the minimum ring size of
3\1/4\ inches and another individual stated that the ring size must
remain at 3\1/4\ inches. Both individuals were opposed to further
increases to 3\1/2\ inches under Sec. 650.21.
Response: This requirement is necessary to provide protection for
small scallops and to help control the amount of fishing mortality
associated with a DAS. This measure is designed to help mitigate the
impact of removal of the meat count which provides age-at-entry
controls. It is not expected, however, to afford age-at-entry
protection equal to the current meat count system.
Comment: Three industry associations and three individuals
commented about a currently ongoing ring size experimental study being
done under a Saltonstall/Kennedy grant and what impact it would have on
Amendment 4.
Response: NMFS contacted William D. DuPaul, Ph.D., of the Virginia
Institute of Marine Science, principal investigator on the experimental
study, regarding the comments received. He commented that the first
fishing trip of the experiment had recently been completed by a
commercial vessel out of the port of New Bedford and that the larger
rings allowed for significantly more escapement than the 3-inch rings
currently in use by the industry. DuPaul also commented that the study
is ongoing and that it is too early to draw any conclusions from the
one trip taken. Final results on the experiment are not expected until
work is completed in late winter of 1994. Therefore, NMFS has not
considered the preliminary results of the ongoing experiment for the
purposes of this rule.
Based on the best scientific information available at this time,
however, there seems to be a correlation between ring size and size of
scallops retained by scallop dredges. Because removing the meat count
measure effectively removes all age-at-entry controls, the Council and
NMFS have determined that implementation of minimum ring size
requirements simultaneously with removal of the meat count measure is
critical to the achievement of the amendment's objectives. Failure to
provide some age-at-entry limitations could seriously jeopardize the
ability of the management measures to achieve plan objectives in the
time required.
Comment: Two individuals commented that vessel owners should be
allowed to combine limited access scallop permits and DAS allocations
on one vessel and that ownership interest should not be limited to 5
percent of the total number of scallop vessels qualifying under the
moratorium.
Response: National Standard 5, 16 U.S.C. 1851(a)(5), states that
conservation and management measures, where practicable, should promote
efficiency. This standard also provides, however, that the goals of
efficiency may be balanced against other factors such as social and
biologic. In its deliberations, the Council explicitly considered
possible gains in efficiency in allowing DAS to be combined, but
ultimately rejected such a measure because of socioeconomic concerns of
preserving current fishing practices and traditions at the outset of
the management program. The Council was concerned that allowing
combination or transfer of DAS allocations, at this time, may
precipitously lead to aggregation of fishing rights in the hands of a
few, thereby challenging the current type of fishing operations
associated with the northeast region. Moreover, it would be
impracticable to allow such fishing rights to be transferred, at this
time, before the effectiveness of the management measures could be
assessed. The Council did provide, however, that measures that may
enhance efficiency can be considered and adopted through the framework
procedure specified in the rule. NMFS concurs in the Council's
deliberations and conclusions concerning these measures.
Comment: Two industry associations were opposed to allowing changes
to the moratorium under the framework provisions of the regulations if
fishing mortality declines faster than anticipated.
Response: The rule does not pre-determine whether the moratorium
will be lifted. The rule provides only that the Council may consider
such a measure. If and when the Council considers such a measure, the
plan requires that it be subject to public comment and that commenters
have adequate opportunity to respond. If the Council decides to address
this subject under the framework specifications all interested parties
will be contacted and will have the opportunity to comment. The Council
could adopt such measures only if it can be demonstrated that they are
necessary to meet the goals and objectives of the FMP, including
socioeconomic goals.
Comment: An industry association was opposed to allowing changes to
the management measures through the framework specifications without
considering appropriate analysis.
Response: The Council must provide the appropriate rationale and
economic and biological analysis when determining whether adjustments,
or additional management measures, are necessary to meet the goals and
objectives of the rebuilding program of the FMP.
Comment: An industry association requested clarification of the
regulations relating to when a DAS starts and ends.
Response: Sec. 650.24(c)(2) has been modified to explain more
clearly how DAS accrue under both the VTS and the call-in monitoring
system.
Comment: An industry association requested that the Regional
Director send notices to permit holders regarding VTS performance
criteria and approval, including costs.
Response: In addition to publishing a list of approved VTS vendors
in the Federal Register, all sea scallop permit holders will receive
the information by letter from the Regional Director. As to costs,
vessel owners will have to contact the individual vendors.
Comment: An industry association questioned the necessity for VTS
vendors to have the capacity to archive vessel position histories and
suggested that the requirement, with its related cost imposed on a non-
fishing industry, is not within the realm of the Magnuson Act.
Response: This requirement only applies to vendors that volunteer
to meet the specifications and provide VTS units to vessels in the
fishery. The specification is necessary to comply with the Council's
intent to provide NMFS with the capability to monitor and enforce the
number of DAS used by each individual vessel issued DAS allocations.
Changes From the Proposed Rule
Changes were made to several sections of the proposed rule to
clarify the measures and to ensure consistency with other regulations.
In addition, substantive changes were made to the following sections:
In Sec. 650.2, the definitions for Authorized officer, Fishing, or
to fish, and NMFS were deleted because they are set forth in 50 CFR
part 620, which provides general Magnuson Act provisions.
In Sec. 650.2, the definition of an Operator was modified to add
the phrase ``or other individual on board'', to clarify further the
person in charge of the vessel while fishing.
In Sec. 650.2, the definition of a Vessel Tracking System was
modified to add the phrase ``as set forth in Sec. 650.25(a)(2) and
approved ``, to clarify further the meaning of a Vessel Tracking
System.
In Sec. 650.3, paragraph (b) was added to clarify the relationship
between state and Federal regulations for Atlantic sea scallops.
In Sec. 650.4, the narrative within the first paragraph and
paragraph (a) was modified to add the phrase ``and carry on board an
authorizing letter issued under Sec. 650.4(a)(9)(vi)(D),'' to clarify
how vessels appealing a denial of a limited access scallop permit may
continue to fish.
In Sec. 650.4, paragraph (a)(1)(i), the phrase ``and its owner''
was added in order to be consistent with following sections that refer
to both vessel and vessel owner.
In Sec. 650.4, paragraph (a)(1)(i)(D), the phrase ``and the vessel
meets the criteria described in paragraph (a)(4) of this section.'' was
deleted because it was not accurate.
In Sec. 650.4, paragraph (a)(1)(iii) and (d), the phrase
``Applications for limited access scallop permits under this section
will not be accepted after 12 months after the effective date of the
final regulations for Amendment 4.'' was replaced with ``Applications
for limited access scallop permits under this section will not be
accepted after December 31, 1994.'', to clarify that applications for
1994 permits must be received by the end of the calendar year.
In Sec. 650.4, paragraph (a)(4)(ii), the sentence ``For
undocumented vessels, net tonnage does not apply.'' was added to
clarify further the requirements for replacement vessels.
In Sec. 650.4, paragraph (a)(5)(ii) was modified to add the
sentence, ``This type of upgrade may be done separately from an engine
horsepower upgrade.'', in order to clarify further the requirements for
upgrading a vessel.
In Sec. 650.4, paragraph (a)(7) (i) and (ii), ``March 1, 1994,''
was added for clarification and consistency with the beginning
effective date of the moratorium on limited access scallop permits.
In Sec. 650.4, paragraph (a)(9)(vi), the heading was modified to
add the phrase ``of a limited access scallop permit denial'' in order
to clarify that the appeal process under this paragraph applies only to
limited access scallop permit denial. The paragraph was further
modified to add the phrase ``if the vessel has on board a letter of
authorization from the Regional Director'' to clarify the requirements
that vessels fishing under appeal must carry on board the letter issued
under Sec. 650.4(a)(9)(vi)(D).
In Sec. 650.4, paragraph (a)(9)(vi)(D) was modified to add the
sentence, ``If the appeal is denied, The Regional Director shall send a
notice of denial to the vessel owner; the authorizing letter becomes
invalid 5 days after receipt of the notice of denial.'', to clarify how
vessel owners will be notified in the event of a denial of the appeal
of a limited access scallop permit.
In Sec. 650.5, paragraph (c) was modified to add the sentence,
``Further, such operators must agree as a condition of this permit that
if the permit is suspended or revoked pursuant to 15 CFR part 904, the
operator cannot be on board any fishing vessel issued a Federal
Fisheries Permit or any vessel subject to Federal fishing regulations
while the vessel is at sea or engaged in offloading.'' This phrase was
included under Sec. 650.5(n) in the proposed rule and is repeated in
this section in the final rule to increase awareness of this provision.
In Sec. 650.5, paragraph (n) was modified to add the phrase ``while
the vessel is at sea or engaged in offloading'', to allow vessel
operators to conduct business activity on board a vessel when the
vessel is not engaged in any type of fishing activity.
In Sec. 650.6, paragraph (g) was modified to add the phrase, ``or
ownership changes,'' to clarify that the permit does not transfer with
the change in ownership of the business.
In Sec. 650.7, paragraph (a)(1) was modified to replace ``provide''
with ``mail'' to clarify the way in which the reports will be
submitted. The paragraph was further modified to contain the phrase,
``name and permit number of the vessels from which fish are landed or
received;'' and the sentence, ``If no fish is purchased during the
week, a report so stating must be submitted.'', to clarify reporting
requirements for dealers and to be consistent with the reporting
requirements of other regulations.
In Sec. 650.7, paragraph (a)(2) was modified to read, ``Required
data are the number of employees handling fishery products by month.
Reports for a given calendar year shall be submitted to: NMFS
Statistics, 166 Water Street, Woods Hole, MA 02543, and must be
postmarked by February 10 of the following year.'' This change further
details the requirements for this reporting requirement.
In Sec. 650.7, paragraph (a)(5) was modified to add the following
sentence, ``If no product was purchased during a week, a report so
stating must be submitted.''
In Sec. 650.9, paragraph (b)(1) was subdivided into paragraphs (i)
and (ii). Paragraph (b)(1)(ii) was added in order to clarify paragraph
(b)(1)(i) by prohibiting more than one trip per calendar day.
In Sec. 650.9, paragraph (b)(11), (b)(12), (b)(13), (b)(17), and
(c)(4), the phrase ``Possess on board or'' was added to clarify the
prohibition.
In Sec. 650.9, the following changes were made to clarify the
prohibitions. Paragraph (c) was subdivided into paragraphs (c)(1)
through (c)(7). Paragraph (d)(4) was changed to paragraph (d)(4)(i),
and a new paragraph, (d)(4)(ii), was added. Paragraphs (d)(10) through
(d)(15) were redesignated as paragraphs (d)(11) through (d)(16), and a
new paragraph (d)(10) was added.
In Sec. 650.20, paragraph (a) was modified to add the phrase,
``that may be landed, or possessed at or after landing,'' in order to
clarify that the minimum shell height size is not an at-sea measure.
Parallel changes were made to sections 650.20(b) and 650.9(a)(1) to
reflect this clarification.
In Sec. 650.21, paragraph (a) was modified to add the phrase ``in
possession of more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.2 l) of in-shell scallops, or fishing for scallops,''
to clarify that certain trawl gear restrictions are also possession
restrictions applicable to any vessel possessing more than 40 pounds of
shucked scallops or 5 bushels of in-shell scallops. Similar changes
were made to Sec. 650.21(a) (1)-(2) and Sec. 650.9(b)(8).
In Sec. 650.21, paragraph (b) was modified by deleting the phrase
``holding a Federal sea scallop permit under Sec. 650.4 and'' and
adding the phrases ``of more than 40 pounds (18.14 kg) of shucked
scallops or 5 U.S. bushels (176.2 l) of in-shell scallops'' and all
vessels issued limited access scallop permits and fishing under the DAS
allocation program,'' to clarify that the dredge restrictions apply to
all dredge vessels in possession of more than 40 pounds of shucked
scallops or 5 bushels of in-shell scallops. In Sec. 650.21, paragraphs
(b) (1)-(3) were modified to add the phrase ``in use by or in
possession of such vessels'' to clarify that the dredge restrictions
are possession restrictions also. The corresponding prohibition
sections to these restrictions, Sec. 650.9, paragraphs (b) (11)-(15)
and Sec. 650.9, paragraphs (c) (2)-(6), were changed accordingly to
reflect these clarifications.
In Sec. 650.21, paragraph (b)(iii), the sentence, ``The ring size
will be the average of the measurements of any series of 20 consecutive
rings.'' was deleted. This provision had been added by NMFS with the
intent of facilitating enforcement. However, upon further
consideration, it was determined that allowing an average minimum ring
size would necessitate difficult and problematic measuring requirements
and possibly would not be consistent with the Council's intent that no
rings should be less than 3\1/4\ inches. NMFS is developing a standard
measuring device and procedures to determine minimum ring sizes and
will publish a description of such device and procedures in the Federal
Register.
In Sec. 650.21, paragraph (e) was modified to add the phrase, ``in
addition to or notwithstanding other restrictions in this Part'' to
clarify that vessels operating under the small dredge program are still
subject to other restrictions in Sec. 650 unless modified by the
special provisions of this section.
In Sec. 650.24, paragraph (c)(2)(ii) was expanded to clarify the
process for counting days at sea under the call-in system.
In Sec. 650.24, paragraph (f)(6) was modified to add the phrase
``if the vessel has on board an authorizing letter from the Regional
Director''.
In Sec. 650.25, paragraph (b) was modified to cross reference
correctly the call-in procedures described in Sec. 650.26(b).
In Sec. 650.26, paragraph (a) was modified to correctly cross
reference the small dredge program in Sec. 650.21(e).
In Sec. 650.26, paragraphs (a)(1) and (a)(2) were modified to
indicate that the Regional Director is to be notified ``through the
VTS''.
In Sec. 650.26, paragraph (a)(3) was modified to add the phrase
``or not functional''.
In Sec. 650.26, paragraph (b) was modified to add language that is
more specific regarding the call-in notification requirements of the
vessel owner or authorized representative.
In Sec. 650.26, paragraphs (b)(2) and (b)(4), the requirement that
vessel owners or their authorized representative call-in 2 hours prior
to leaving port and within 1 hour of returning to port was replaced
with the provision that the DAS will begin and end upon receipt of the
call. The Regional Director has determined that this less restrictive
requirement is supportable by current technology without compromising
the enforceability of this measure.
In Sec. 650.40, paragraph (c), the phrase ``After considering the
PDT's findings and recommendations, or at any other time,'' was added
in order to clarify the Council's procedures when it is considering
changes in management measures.
In Sec. 650.40, paragraph (e)(3), the sentence ``The Council may
reconsider its prior action and recommend a new action under paragraph
(d) of this section.'' was deleted because it is considered to be
unnecessary.
Classification
The Secretary of Commerce (Secretary) determined that the FMP
amendment that this rule would implement is consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable law. The Secretary, in making that determination, has taken
into account the information, views, and comments received during the
comment period.
The Council prepared a final supplemental environmental impact
statement (FSEIS) for Amendment 4, which was filed by the Environmental
Protection Agency with the Office of the Federal Register. The
Environmental Protection Agency has recommended that the National
Marine Fisheries Service conduct studies in the near future to monitor
the effect of scallop dredges on bottom habitat. The AA has determined
that the preferred alternative of Amendment 4 versus the status quo is
environmentally preferable upon review of the FSEIS and public
comments. The FSEIS demonstrates that the preferred alternative
contains management measures to rebuild the stock of Atlantic sea
scallops, provides positive economic and social benefits to the fishing
industry in the long term, and provides balance in the ecosystem in
terms of the sea scallop resource.
NMFS certified to the Small Business Administration that this rule
may have significant effects on a substantial number of small entities
under the Regulatory Flexibility Act. For the purposes of the RFA, the
RIR is retitled as a RIR/regulatory flexibility analysis (RFA).
According to the RIR/RFA prepared by the Council, the management
measures will have some negative impact on small entities. There are
approximately 400-600 vessels that rely on scallops for a portion of
their revenue. All are considered small entities. Of these, more than
150 vessels would not qualify for the vessel moratorium and may have to
redirect effort into other fisheries. Approximately 63 percent of the
150 vessels, however, depend on sea scallops for 15 percent or less of
their total revenue and may be able to compensate by participating in
the general scallop fishery (no moratorium, landings up to 400 pounds
(181.44 kg) per trip). For those vessels qualifying for the limited
access fishery, there are significant short-term losses in revenue that
are offset by long-term gains.
The rule contains eight new collection-of-information requirements
and also revises four existing requirements previously approved by OMB
under Control Numbers 0648-0202 and 0648-0229 and 0648-0018. These
collection-of-information requirements have been approved by OMB.
Nevertheless, public comments are invited on the burden-hour estimates
for the collection of information requirements as listed below.
The new reporting requirements are:
(1) Dealer permits (Sec. 650.6--OMB Approval Number 0648-0202) (5
minutes/response);
(2) Operator permits (Sec. 650.5--OMB Approval Number 0648-0202) (1
hour/response);
(3) Notice requirements for observer deployment (Sec. 650.28--OMB
Approval Number 0648-0202) (2 minutes/response);
(4) Proof of installation of vessel tracking system, (Sec. 650.25--
OMB Approval Number 0648-0202) (2 minutes/response);
(5) Automated vessel tracking system (Sec. 650.25--OMB Approval
Number 0648-0202) (0 minutes/response);
(6) Vessel call-in requirement (Sec. 650.25--OMB Approval Number
0648-0202) (2 minutes/response);
(7) Days-at-sea exemption program (Sec. 650.27--OMB Approval Number
0648-0202) (2 minutes/response);
(8) Vessel logbooks (Sec. 650.7--OMB Approval Number 0648-0212) (5
minutes/response).
Revisions to existing requirements are:
(1) Limited access scallop permit appeals--appeal of denied permits
will require written submission (Sec. 650.24--OMB Approval Number 0648-
0202) (3 hours/response);
(2) Days-at-sea appeals--appeal of the days-at-sea allocation will
require written submission (Sec. 650.24--OMB Approval Number 0648-0202)
(5 hours/response);
(3) Dealer purchase reports (Sec. 650.7--OMB Approval Number 0648-
0229) (2 minutes/response);
(4) Annual processed products reports (Sec. 650.7--OMB Approval
Number 0648-0018) (2 minutes/response).
List of Subjects in 50 CFR Part 650
Fisheries, Reporting and recordkeeping requirements.
Dated: January 12, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 650 is revised
to read as follows:
PART 650--ATLANTIC SEA SCALLOP FISHERY
Subpart A--General Provisions
Sec.
650.1 Purpose and scope.
650.2 Definitions.
650.3 Relation to other laws.
650.4 Vessel permits.
650.5 Operator permits.
650.6 Dealer permits.
650.7 Recordkeeping and reporting.
650.8 Vessel identification.
650.9 Prohibitions.
650.10 Facilitation of enforcement.
650.11 Penalties.
Subpart B--Management Measures
650.20 Shell-height standard.
650.21 Gear and crew restrictions.
650.22 Possession restrictions.
650.23 Transfer-at-sea.
650.24 Days-at-sea (DAS) allocations.
650.25 Monitoring requirements.
650.26 DAS notification program.
650.27 DAS exemption program.
650.28 At-sea observer coverage.
650.29 Experimental fishing exemption.
Subpart C--Framework Adjustments to Management Measures
650.40 Framework specifications.
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 650.1 Purpose and scope.
The purpose of this part is to implement the Fishery Management
Plan for the Atlantic Sea Scallop Fishery (FMP), which was prepared and
adopted by the New England Fishery Management Council in consultation
with the Mid-Atlantic and South Atlantic Fishery Management Councils,
and approved by the Assistant Administrator for Fisheries, NOAA.
Sec. 650.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 620.2 of this chapter, the terms used in this part have the
following meanings:
Atlantic sea scallop or scallop means the species Placopecten
magellanicus throughout its range.
Chafing gear or cookies mean steel, rubberized or other types of
donut rings, disks, washers, twine, or other material attached to or
between the steel rings of a sea scallop dredge.
COLREGS Demarcation Lines mean the lines of demarcation delineating
those waters upon which mariners must comply with the International
Regulations for Preventing Collisions at Sea, 1972 (33 CFR part 80),
and those waters upon which mariners must comply with the Inland
Navigation Rules.
Council means the New England Fishery Management Council.
Day(s)-at-sea (DAS) means each 24-hour period of time during which
a fishing vessel is absent from port for purposes of scallop fishing.
Dealer means any person who receives scallops for a commercial
purpose from the owner or operator of a vessel, other than exclusively
for transport on land.
Dredge or dredge gear means gear consisting of a mouth frame
attached to a holding bag constructed of metal rings, or any other
modification to this design, that can be or is used in the harvest of
Atlantic sea scallops.
Dredge top means the mesh panel in the top of a dredge and
immediately adjacent rings and links found between the bail of the
dredge, the club stick and the two side panels. The bail of the dredge
is the rigid structure of the forward portion of the dredge that
connects to the warp and holds the dredge open. The club stick is the
rigid bar at the tail of the dredge bag that is attached to the rings.
Dredge vessel means any fishing vessel that is equipped for fishing
using dredge gear and that is capable of catching Atlantic sea
scallops.
Fishery Management Plan (FMP) means the Fishery Management Plan for
Atlantic Sea Scallops, as amended.
Gross registered tonnage means the gross registered tonnage
specified on the U.S. Coast Guard documentation for a vessel.
Land means to enter port with fish on board, to begin offloading
fish, or to offload fish.
Net tonnage means the net tonnage specified on the U.S. Coast Guard
documentation for a vessel.
Offload means to begin to remove, to remove, to pass over the rail,
or otherwise take away fish from any vessel.
Operator means the master or captain of the vessel, or other
individual on board the vessel, who is in charge of that vessel's
operations.
Postmark means independently verifiable evidence of date of
mailing, such as U.S. Postal Service postmark, United Parcel Service
(U.P.S.) or other private carrier postmark, certified mail receipt,
overnight mail receipt, or receipt received upon hand delivery to an
authorized representative of NMFS.
Regional Director means the Director, Northeast Region, NMFS, 1
Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
Reporting month means a period of time beginning at 0001 hours
local time on the first day of each calendar month and ending at 2400
hours local time on the last day of each calendar month.
Reporting week means a period of time beginning at 0001 hours local
time on Sunday; and ending at 2400 hours local time the following
Saturday.
Re-rig or re-rigged means physical alteration of the vessel or its
gear in order to transform the vessel into one capable of fishing
commercially for sea scallops.
Sea Scallop Plan Development Team (PDT) means a team of technical
experts appointed by the Council.
Shell height is a straight line measurement from the hinge to the
outermost part of the shell, that is, the edge furthest away from the
hinge.
Shucking or to shuck means opening or to open a scallop and
removing the meat or the adductor muscle from the shell.
Shucking machine means any mechanical device that automatically
removes the meat or the adductor muscle from a scallop shell.
Sorting machine means any mechanical device that automatically
sorts whole scallops by shell height, size, or other physical
characteristics.
Transfer means to begin to remove, to remove, to pass over the
rail, or otherwise take away fish from any vessel and move them to
another vessel.
Trawl means gear consisting of a net that is towed and is capable
of catching sea scallops, including Danish and Scottish seine gear.
Trawl sweep means the total length of the footrope on a trawl net
that is directly attached to the webbing of a net.
Trip is the period of time during which a fishing vessel is absent
from port, beginning when the vessel leaves port and ending when the
vessel returns to port.
Under agreement for construction means that the keel has been laid
and that there is a written agreement to construct a fishing vessel.
Vessel registered length means the registered length specified on
the U.S. Coast Guard documentation for a vessel or on the state
registration for a vessel not required to be documented under Title 46
U.S.C., if the state-registered length is verified by an authorized
officer.
Vessel Tracking System (VTS) means a vessel tracking system as set
forth in Sec. 650.25(a)(2) and approved by NMFS for use by scallop
vessels as required by this part.
VTS unit means a device installed on board a vessel used for vessel
tracking and transmitting the tracked position as required by this
part.
Sec. 650.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter.
(b) Nothing in these regulations shall supersede more restrictive
state management measures for Atlantic sea scallops.
Sec. 650.4 Vessel permits.
Any vessel of the United States that fishes for, possesses, or
lands per trip Atlantic sea scallops in quantities greater than 40
pounds (18.14 kg) shucked scallops or 5 bushels (176.2 l) in-shell,
except vessels that fish exclusively in state waters for sea scallops,
must have been issued and carry on board an authorizing letter issued
under Sec. 650.4(a)(9)(vi)(D), a valid limited access scallop permit or
a valid general scallop permit, issued under this section.
(a) Limited access scallop permits. Any vessel of the United States
that possesses or lands per trip more than 400 pounds (181.44 kg) of
shucked scallops or the equivalent amount of in-shell scallops (50 U.S.
bushels (17.62 hl)), except vessels that fish exclusively in state
waters for sea scallops, must have been issued and carry on board an
authorizing letter issued under Sec. 650.4(a)(9)(vi)(D), or a valid
Federal limited access scallop permit. To qualify for a limited access
scallop permit a vessel must meet the following criteria, as
applicable:
(1) Eligibility in 1994. (i) To be eligible to obtain a limited
access scallop permit for 1994, a vessel must meet one of the following
criteria:
(A) The vessel had been issued a Federal scallop permit in 1988 or
1989, and the vessel landed more than 400 pounds (181.44 kg) of shucked
scallops or the equivalent amount of in-shell scallops (50 U.S. bushels
(17.62 hl)) on at least one trip completed during 1988 or 1989; or,
(B) The vessel was under written agreement for construction or for
re-rigging on or prior to March 2, 1989, and the vessel was issued a
Federal scallop permit and landed scallops between March 2, 1989, and
March 2, 1990; or,
(C) The vessel was purchased between March 2, 1989, and November
28, 1990; it had been issued a Federal scallop permit and landed
scallops between January 1, 1982, and January 1, 1988; and it had been
issued a Federal scallop permit and landed more than 400 pounds (181.44
kg) of scallops on any one trip completed in 1990; or,
(D) The vessel is replacing a vessel that meets any of the criteria
set forth in paragraph (a)(1)(i)(A), (a)(1)(i)(B) or (a)(1)(i)(C) of
this section.
(ii) No more than one vessel may qualify, at any one time, for a
limited access scallop permit based on that or another vessel's fishing
and permit history. If more than one vessel owner claims eligibility
for a limited access scallop permit, based on one vessel's fishing and
permit history, the Regional Director shall determine who is entitled
to qualify for the limited access scallop permit and the DAS allocation
according to paragraph (a)(3) of this section.
(iii) A limited access scallop permit for 1994 will not be issued
unless the application for such permit is received by the Regional
Director on or before December 31, 1994.
(2) Eligibility in 1995 and thereafter. To be eligible to renew or
apply for a limited access scallop permit after 1994, a vessel must
have been issued a limited access scallop permit for the preceding
year, or the vessel must be replacing a vessel that had been issued a
limited access scallop permit for the preceding year, and, if
applicable, the vessel must meet the criteria set forth in paragraph
(a)(4) of this section. If more than one vessel owner claims
eligibility to apply for a limited access scallop permit based on one
vessel's fishing and permit history after 1994, the Regional Director
shall determine who is entitled to qualify for the limited access
scallop permit and the DAS allocation according to paragraph (a)(3) of
this section.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the vessel
fishing and permit history for purposes of replacing the vessel.
(4) Replacement vessels. To be eligible to replace a vessel that
has been issued a limited access scallop permit, the replacement vessel
must meet the following criteria:
(i) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel it is replacing as of the date
the vessel it is replacing was initially issued a 1994 limited access
scallop permit as specified on a valid application for a permit under
this section; except that, the horsepower of the replacement vessel may
not exceed the horsepower of the vessel being replaced if the
horsepower of the vessel being replaced has been increased through
upgrade or vessel replacement from that specified when the vessel being
replaced initially applied for a 1994 limited access scallop permit;
and,
(ii) The replacement vessel's length, gross registered tonnage, and
net tonnage may not exceed by more than 10 percent the length, gross
registered tonnage, and net tonnage of the vessel being replaced, based
on specifications provided in the initial 1994 application for a
limited access scallop permit; except that, the length, gross
registered tonnage, and net tonnage of the replacement vessel may not
exceed the length, gross registered tonnage, and net tonnage of the
vessel initially issued a limited access scallop permit if any or all
of these specifications have been increased through upgrade or vessel
replacement from that specified when the vessel being replaced
initially applied for a 1994 limited access scallop permit. For
purposes of this paragraph, a vessel not required to be documented
under Title 46, U.S.C. will be considered to be 5 gross registered
tons. For undocumented vessels, net tonnage does not apply.
(5) Upgraded vessel. To remain eligible to retain a valid limited
access scallop permit, or to apply for, or renew a limited access
scallop permit, a vessel may be upgraded, whether through refitting or
replacement, only if the upgrade complies with the following
limitations:
(i) The vessel's horsepower may be increased, whether through
refitting or replacement, only once. Such an increase may not exceed 20
percent of the horsepower of the vessel initially issued a 1994 limited
access scallop permit as specified in that vessel's permit application
for a 1994 limited access scallop permit; and,
(ii) The vessel's length, gross registered tonnage and net tonnage
may be upgraded, whether through refitting or replacement, only once.
Such an increase shall not exceed 10 percent each of the length, gross
registered tonnage, and net tonnage of the vessel initially issued a
1994 limited access scallop permit as specified in that vessel's
application for a 1994 limited access scallop permit. This limitation
allows only one upgrade, at which time any or all three specifications
of vessel size may be increased. This type of upgrade may be done
separately from an engine horsepower upgrade.
(iii) A replacement of a vessel that does not result in increasing
horsepower, length, gross registered tonnage or net tonnage is not
considered an upgrade for purposes of this section.
(6) Notification of eligibility for 1994. (i) NMFS will attempt to
notify all owners of vessels for which NMFS has credible evidence that
they meet the criteria described in paragraph (a)(1) of this section,
that they qualify for a limited access scallop permit if they meet the
requirements contained in paragraphs (c) through (g) of this section.
(ii) If a vessel owner has not been notified that the vessel is
eligible to be issued a limited access scallop permit, and the vessel
owner believes that there is credible evidence that the vessel does
qualify under the pertinent criteria, the vessel owner may apply for a
limited access scallop permit by meeting the requirements described
under paragraphs (d) and (e) of this section and by submitting the
information described in paragraphs (a)(1) through (a)(5) of this
section. In the event the application is denied, the applicant may
appeal as specified in paragraph (a)(9) of this section. If, through
either of these procedures, the Regional Director determines that the
vessel meets the eligibility criteria, a limited access scallop permit
will be issued to the vessel.
(7) Percentage ownership restrictions. (i) Any vessel owner is
eligible to apply for and be issued a 1994 limited access scallop
permit for any vessel owned as of March 1, 1994, provided that the
vessel meets all pertinent criteria in this part regardless of the
owner's ownership in other scallop vessels on March 1, 1994.
(ii) For any vessel acquired after March 1, 1994, except as
provided in paragraph (a)(7)(iii) of this section, a vessel owner is
not eligible to be issued a limited access scallop permit for the
vessel if the issuance of the permit will result in the vessel owner,
or any person who is a shareholder or partner of the vessel owner,
having an ownership interest in limited access scallop vessels in
excess of 5 percent of the number of all limited access scallop vessels
at the time of permit application.
(iii) Vessel owners who were initially issued a 1994 limited access
scallop permit, or were issued or renewed a limited access scallop
permit for a vessel in 1995 and thereafter in compliance with the
ownership restrictions in paragraph (a)(7)(ii) of this section, are
eligible to renew such permit(s), regardless of whether the renewal of
the permits will exceed the 5 percent ownership restrictions.
(iv) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a vessel owned by a corporation, who
are partners (general or limited) to a vessel owner, or who, in any
way, partly own a vessel.
(8) Consolidation restriction. Limited access scallop permits and
DAS allocations may not be combined or consolidated.
(9) Appeal of denial of limited access scallop permit. (i) Any
applicant denied a limited access scallop permit, may appeal the denial
to the Regional Director within 30 days of the notice of denial. Any
such appeal must be based on one or more of the following grounds, must
be in writing, and must state the grounds for the appeal:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make
the initial decision on the appeal.
(iii) The appellant may request a review of the initial decision by
the Regional Director by so requesting in writing within 30 days of the
notice of initial decision. If the appellant does not request a review
of the initial decision within 30 days, the initial decision shall
become the final administrative action of the Department of Commerce.
The appellant's request for review must elect either to have the review
conducted by a hearing officer appointed by the Regional Director or by
an Advisory Appeals Board if established pursuant to paragraph
(a)(9)(iv)(B) of this section.
(iv) Recommendations to the Regional Director. (A) Hearing Officer.
If the initial decision is reviewed by a hearing officer, the hearing
officer shall make findings and a recommendation to the Regional
Director which shall be advisory only.
(B) Advisory Appeals Board. The Regional Director may establish, or
request the Council to establish, an Advisory Appeal Board. If such a
board is established and approved by the Regional Director, an
appellant may request that the initial decision of his/her appeal be
reviewed by the Appeals Board. If such a request is made, the Regional
Director shall forward the request to the Appeals Board within 15 days
after receipt. Any initial decision reviewed by an Appeals Board made
up of other than Federal employees shall be open to the public,
including all documentation presented to support the appeal. The
Appeals Board shall make findings and a recommendation to the Council,
which shall be advisory only. The Council in turn shall make findings
and an advisory-only recommendation to the Regional Director.
(v) Upon receiving the findings and a recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(vi) Status of vessels pending appeal of a limited access scallop
permit denial. A vessel for which an application has been completed and
an appeal has been initiated may fish under one of the following DAS
allocation categories based on which criteria is applicable, pending a
final decision on the appeal, if the vessel has on board a letter of
authorization from the Regional Director.
(A) A vessel owner appealing under this part who can establish
credible evidence, or NMFS records, that his/her vessel completed at
least 10 trips, each landing more than 400 pounds (181.44 kg) of
shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops, in
any consecutive 12-month period during 1991-1992, may fish under the
Full-time DAS allocation, pending a final decision on the appeal.
(B) A vessel owner appealing under this part who cannot meet the
criteria specified in paragraph (a)(9)(vi)(A), but who can establish
through credible evidence, or NMFS records, that his/her vessel
completed at least 5 trips, each landing more than 400 pounds (181.44
kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell
scallops, in any 12 consecutive month period during 1991-1992, may fish
under the Part-time DAS allocation, pending a final decision on the
appeal.
(C) A vessel owner appealing under this part who cannot meet the
criteria specified in paragraph (a)(9)(vi)(A) or (a)(9)(vi)(B), but who
can establish through credible evidence, or NMFS records, that their
vessel completed at least one trip, landing more than 400 pounds
(181.44 kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-
shell scallops, during 1991-1992, may fish under the Occasional DAS
allocation, pending a final decision on the appeal.
(D) The decision and notification whether to allow any vessel that
presents evidence under paragraphs (a)(9)(vi)(A) through (a)(9)(vi)(C)
of this section to fish under one of the three categories of DAS,
pending a final decision on the appeal, will be provided by the
Regional Director in an authorizing letter. Any such decision is the
final administrative action of the Department of Commerce on allowable
fishing activity pending a final decision on the appeal. The
authorizing letter must be carried on board the vessel while
participating in the DAS program. If the appeal is finally denied, the
Regional Director shall send a notice of final denial to the vessel
owner; the authorizing letter becomes invalid 5 days after receipt of
the notice of denial.
(b) General scallop permit. Any vessel of the United States that is
not in possession of a limited access scallop permit, and that
possesses, or lands per trip, more than 40 pounds (18.14 kg) and less
than or including 400 pounds (181.44 kg), of shucked meats, or the
equivalent amount of in-shell scallops (5 and 50 U.S. bushels (176.2 l
and 17.62 hl), respectively), except vessels that fish exclusively in
state waters for scallops, must carry on board a valid general scallop
permit.
(c) Condition. Vessel owners who apply for a permit under this
section must agree as a condition of the permit that the vessel and
vessel's fishing, catch, crew size, and pertinent gear (without regard
to whether such fishing occurs in the EEZ or landward of the EEZ, and
without regard to where such fish or gear are possessed, taken, or
landed), are subject to all requirements of this part, unless exempted
from such requirements under Sec. 650.27. The vessel and all such
fishing, catch, crew size, and gear shall remain subject to all
applicable state or local requirements. If a requirement of this part
and a management measure required by state or local law differ, any
vessel owner permitted to fish in the EEZ must comply with the more
restrictive requirement.
(d) Vessel permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from the Regional Director. The application must be signed by
the owner of the vessel, or the owner's authorized representative, and
be submitted to the Regional Director at least 30 days before the date
on which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section. Applicants for limited access
scallop permits who have not been notified of eligibility by the
Regional Director shall provide information with the application
sufficient for the Regional Director to determine whether the vessel
meets the eligibility requirements specified under paragraph (a)(1) of
this section. Applications for 1994 limited access scallop permits
under this section will not be accepted after December 31, 1994.
Acceptable forms of proof include, but are not limited to, state weigh-
out records, packout forms, settlement sheets, grocery receipts, fuel
receipts, and bridge logs.
(e) Information requirements. (1) In addition to applicable
information required to be provided by paragraph (d) of this section,
an application for either a limited access or general scallop permit
must contain at least the following information, and any other
information required by the Regional Director: Vessel name; owner name,
mailing address, and telephone number; U.S. Coast Guard documentation
number and a copy of vessel's U.S. Coast Guard documentation or, if
undocumented, state registration number and a copy of the state
registration; home port and principal port of landing; length; gross
tonnage; net tonnage; engine horsepower; year the vessel was built;
type of construction; type of propulsion; approximate fish-hold
capacity; type of fishing gear used by the vessel; number of crew;
permit category; if the owner is a corporation, a copy of the
Certificate of Incorporation, and the names and addresses of all
shareholders owning 25 percent or more of the corporation's shares; if
the owner is a partnership, a copy of the Partnership Agreement and the
names and addresses of all partners; if there is more than one owner,
names of all owners having owned more than 25 percent interest; and
name and signature of the owner or the owner's authorized
representative.
(2) Applications for a limited access scallop permit must also
contain the following information:
(i) For every person named by applicants for limited access scallop
permits pursuant to paragraph (e)(1) of this section, the names of all
other vessels in which that person has an ownership interest and for
which a limited access scallop permit has been issued or applied for;
(ii) The engine horsepower of the vessel as specified in the
vessel's permit documentation as of August 3, 1992; or, if the engine
horsepower is different from that stated in the vessel's Federal
scallop permit as of August 3, 1992, sufficient documentation to
ascertain the different engine horsepower;
(iii) If applying for Full-time or Part-time limited access scallop
permit, or if opting to use a VTS unit although not required, a copy of
the vendor installation receipt from a NMFS-approved VTS vendor as
described in Sec. 650.25(a); and
(iv) If applying for the small dredge program set forth under
Sec. 650.21(e), an annual declaration into the program.
(f) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee shall be calculated in accordance with the
procedures of the NOAA Finance Handbook for determining administrative
costs of each special product or service. The fee may not exceed such
costs and is specified with each application form. The appropriate fee
must accompany each application; if it does not, the application will
be considered incomplete for purposes of paragraph (g) of this section.
(g) Issuance. (1) Except as provided in subpart D of 15 CFR part
904 and under Sec. 650.4(a)(9), the Regional Director shall issue a
Federal scallop vessel permit within 30 days of receipt of the
application unless:
(i) The applicant has failed to submit a completed application. An
application is complete when all requested forms, information,
documentation, and fees, if applicable, have been received and the
applicant has submitted all applicable reports specified at Sec. 650.7;
or,
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraphs (a)(1)(iii) and (p) of this
section; or,
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraphs (a)(1) and (a)(2) of
this section; or,
(iv) For applicants applying for a Full-time or Part-time limited
access scallop permit, the applicant has failed to meet all of the VTS
requirements as described in Sec. 650.25; or,
(v) The applicant has failed to meet any other application
requirements stated in 50 CFR part 650.
(2) Upon receipt of an incomplete or improperly executed
application, the Regional Director shall notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(h) Expiration. A permit will expire upon the renewal date
specified in the permit.
(i) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or until it otherwise expires, or
ownership changes, or the applicant has failed to report any change in
the information on the permit application to the Regional Director as
specified in paragraph (l) of this section. Federal fishing vessel
permits must be renewed annually and unless renewed will expire upon
the renewal date specified in the permit.
(j) Replacement. Replacement permits, for an otherwise valid
permit, may be issued by the Regional Director when requested in
writing by the owner or authorized representative, stating the need for
replacement, the name of the vessel, and the Federal Fisheries Permit
number assigned. An application for a replacement permit will not be
considered a new application. An appropriate fee may be charged for
issuance of the replacement permit.
(k) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the vessel and owner to whom
it is issued.
(l) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written notice of the change must be submitted to the
Regional Director. If the written notice of the change in information
is not received by the Regional Director within 15 days, the permit is
void.
(m) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(n) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(o) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
(p) Limited access scallop permit renewal. To renew or apply for a
limited access scallop permit in 1995 and thereafter, a completed
application must be received by the Regional Director by December 31 of
the year before the permit is needed. For example, to receive a limited
access scallop permit for 1996, vessel owners must apply by December
31, 1995. Failure to renew a limited access scallop permit in any year
bars the renewal of the permit in subsequent years.
(q) Abandonment or voluntary relinquishment of limited access
scallop permits. If a vessel's limited access scallop permit is
voluntarily relinquished to the Regional Director, or abandoned through
failure to renew or otherwise, no limited access scallop permit may be
re-issued or renewed based on that vessel's history or to any vessel
relying on that vessel's history.
Sec. 650.5 Operator permits.
(a) General. Any operator of a vessel issued a Federal limited
access scallop permit under Sec. 650.4, or any operator of a vessel
fishing for scallops in the EEZ or in possession of more than 40 pounds
(18.14 kg) of shucked scallops, or 5 U.S. bushels (176.2 l) of in-shell
scallops, in or harvested from the EEZ, must carry on board a valid
operator's permit issued under this part.
(b) Operator application. Applicants for a permit under this
section must submit a completed permit application on an appropriate
form obtained from the Regional Director. The application must be
signed by the applicant and submitted to the Regional Director at least
30 days prior to the date on which the applicant desires to have the
permit made effective. The Regional Director will notify the applicant
of any deficiency in the application pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree as a condition of this permit that the
operator and vessel's fishing, catch, crew size, and pertinent gear
(without regard to whether such fishing occurs in the EEZ or landward
of the EEZ, and without regard to where such fish or gear are
possessed, taken, or landed), are subject to all requirements of this
part while fishing in the EEZ or on board a vessel permitted under
Sec. 650.4, unless exempted from such requirements under Sec. 650.27.
The vessel and all such fishing, catch, crew size, and gear will remain
subject to all applicable state or local requirements. Further, such
operators must agree as a condition of this permit that if the permit
is suspended or revoked pursuant to 15 CFR part 904, the operator
cannot be on board any fishing vessel issued a Federal Fisheries Permit
or any vessel subject to Federal fishing regulations while the vessel
is at sea or engaged in offloading. If a requirement of this part and a
management measure required by state or local law differ, any operator
issued a permit under this part must comply with the more restrictive
requirement.
(d) Information requirements. An applicant must provide at least
all the following information and any other information required by the
Regional Director: name, mailing address, and telephone number; date of
birth; hair color; eye color; height; weight; social security number
(optional) and signature of the applicant. The applicant must also
provide two color passport size photographs.
(e) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Financial Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (f) of this section.
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director shall issue an operator's permit within 30 days
of receipt of a completed application if the criteria specified herein
are met. Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(g) Expiration. A permit will expire upon the renewal date
specified in the permit.
(h) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Director as specified in paragraph (k) of
this section.
(i) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal operator
permit number assigned. An applicant for a replacement permit must also
provide two color passport size photos of the applicant. An application
for a replacement permit will not be considered a new application. An
appropriate fee may be charged.
(j) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom it is
issued.
(k) Change in application information. Notice of a change in the
permit holder's name, address, or telephone number must be submitted in
writing to, and received by, the Regional Director within 15 days of
the change in information. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(l) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be on board a Federally permitted fishing vessel in any
capacity while the vessel is at sea or engaged in offloading.
Procedures governing enforcement related permit sanctions and denials
are found at subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
Sec. 650.6 Dealer permits.
(a) All dealers must have been issued and have in their possession
a valid permit issued under this part.
(b) Dealer application. Applicants for a permit under this section
must submit a completed application on an appropriate form provided by
the Regional Director. The application must be signed by the applicant
and submitted to the Regional Director at least 30 days before the date
upon which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section.
(c) Information requirements. Applications must contain at least
the following information and any other information required by the
Regional Director: Company name, place(s) of business, mailing
address(es) and telephone number(s); owner's name; dealer permit number
(if a renewal); and name and signature of the person responsible for
the truth and accuracy of the report. If the dealer is a corporation, a
copy of the certificate of incorporation must be included with the
application. If a partnership, a copy of the Partnership Agreement and
the names and addresses of all partners must be included with the
application.
(d) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (e) of this section.
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director will issue a permit at any time during the
fishing year to an applicant unless the applicant has failed to submit
a completed application. An application is complete when all requested
forms, information, and documentation have been received and the
applicant has submitted all applicable reports specified in
Sec. 650.7(a). Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be considered abandoned.
(f) Expiration. A permit will expire upon the renewal date
specified in the permit.
(g) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or otherwise expires, or ownership
changes, or the applicant has failed to report any change in the
information on the permit application to the Regional Director as
required by paragraph (j) of this section.
(h) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal dealer
permit number assigned. An application for a replacement permit will
not be considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom, or other
business entity to which, it is issued.
(j) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written report of the change must be submitted to, and
received by, the Regional Director. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(k) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(l) Display. Any permit, or a valid duplicate thereof, issued under
this part must be maintained in legible condition and displayed for
inspection upon request by any authorized officer.
(m) Federal versus state requirements. If a requirement of this
part differs from a fisheries management measure required by state law,
any dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
Sec. 650.7 Recordkeeping and reporting.
(a) Dealers--(1) Weekly report. Dealers shall mail at least the
following information to the Regional Director, or official designee,
on a weekly basis on forms supplied by or approved by the Regional
Director. Or, if authorized in writing by the Regional Director,
dealers may submit reports electronically or through other media. The
following information, and any other information required by the
Regional Director, must be provided: Name and mailing address of
dealer; dealer number; name and permit number of the vessels from which
fish are landed or received; dates of purchases; pounds by species;
price by species; and port landed. If no fish is purchased during the
week, a report so stating must be submitted.
(2) Annual report. All persons required to submit reports under
paragraph (a)(1) of this section are required to complete the
``Employment Data'' section of the Annual Processed Products Reports;
the other information on that form is voluntary. Required data are the
number of employees handling fishery products by month. Reports for a
given calendar year shall be submitted to: NMFS Statistics, 166 Water
Street, Woods Hole, MA 02543, and must be postmarked by February 10 of
the following year.
(3) Inspection. The dealer shall make available copies of the
required reports that have been submitted, or should have been
submitted, and the records upon which the reports were based,
immediately upon request for inspection by an authorized officer, or by
an employee of NMFS designated by the Regional Director to make such
inspections.
(4) Record retention. Copies of reports, and records upon which the
reports were based, must be retained and available for review for one
year after the date of the last entry on the report. The dealer shall
retain such reports and records at its principal place of business.
(5) Submitting reports. Reports must be received or postmarked, if
mailed, within 3 days after the end of each reporting week. Each dealer
will be sent forms and instructions, including the address to which to
submit reports, shortly after receipt of a dealer permit. If no product
was purchased during a week, a report so stating must be submitted.
(b) Vessel owners--(1) Fishing log reports. The owner of any vessel
holding a Federal scallop permit under Sec. 650.4 shall maintain, on
board the vessel, and submit an accurate daily fishing log report for
all fishing trips regardless of species fished for or taken, on forms
supplied by or approved by the Regional Director. If authorized in
writing by the Regional Director, vessel owners may submit reports
electronically, using the VTS, or other media. At least the following
information, and any other information required by the Regional
Director, must be provided: Vessel name; U.S. Coast Guard (USCG)
documentation number (or state registration number if undocumented);
permit number; date/time sailed; date/time landed; trip type; number of
crew; gear fished; quantity and size of gear; mesh/ring size; chart
area fished; average depth; latitude/longitude (or loran station and
bearings); total hauls per area fished; average tow time duration;
pounds by species of all species landed and discarded; dealer permit
number; dealer name; date sold; port and state landed; and vessel
operator's name, signature, and operator permit number.
(2) When to fill in the log. Such log reports must be filled in,
except for information required but not yet ascertainable, before
offloading has begun. At the end of a fishing trip all information in
paragraph (b)(1) of this section must be filled in for each fishing
trip before starting the next fishing trip.
(3) Inspection. Owners and operators shall make, immediately upon
request, the fishing log reports currently in use or to be submitted
available for inspection by an authorized officer, or an employee of
the NMFS designated by the Regional Director to make such inspections,
at any time during or after a trip.
(4) Record retention. Copies of fishing log reports must be
retained and available for review for one year after the date of the
last entry on the report.
(5) Submitting reports. Fishing log reports must be received or
postmarked, if mailed, within 15 days after the end of each reporting
month. Each owner will be sent forms and instructions, including the
address to which to submit reports, shortly after receipt of a Federal
Fisheries Permit. If no fishing trip is made during a month, a report
so stating must be submitted.
Sec. 650.8 Vessel identification.
(a) Vessel name. Each fishing vessel subject to this part and that
is over 25 feet (7.6 m) in length must display its name on the port and
starboard sides of its bow and, if possible, on its stern.
(b) Official number. Each fishing vessel subject to this part that
is over 25 feet (7.6 m) in length must display its official number on
the port and starboard sides of its deckhouse or hull, and on an
appropriate weather deck, so as to be visible from above by enforcement
vessels and aircraft. The official number is the U.S. Coast Guard
documentation number or the vessel's state registration number for
vessels not required to be documented under title 46 of U.S. Code.
(c) Numerals. The official number must be permanently affixed in
contrasting block Arabic numerals at least 18 inches (45.7 cm) in
height for vessels over 65 feet (19.8 m), and at least 10 inches (25.4
cm) in height for all other vessels over 25 feet (7.6 m) in length.
(d) Duties of owner and operator. The owner and operator of each
vessel subject to this part shall:
(1) Keep the vessel name and official number clearly legible and in
good repair; and
(2) Ensure that no part of the vessel, its rigging, its fishing
gear, or any other object obstructs the view of the official number
from an enforcement vessel or aircraft.
Sec. 650.9 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a limited access scallop permit or a general scallop
permit under Sec. 650.4, or a letter under Sec. 650.4(a)(9)(vi)(D), to
do any of the following:
(1) Land, or possess at or after landing, in-shell sea scallops
smaller than the minimum size specified in Sec. 650.20(a). All Atlantic
sea scallops will be subject to inspection and enforcement, in
accordance with the compliance and sampling procedures specified in
Sec. 650.20(b), up to and including the time when a dealer receives or
possesses sea scallops for a commercial purpose.
(2) Fail to comply in an accurate and timely fashion with the log
report, reporting, record retention, inspection, and other requirements
of Sec. 650.7(b).
(3) Fish for, possess, or land sea scallops unless the operator of
the vessel has been issued an operator's permit under Sec. 650.5, and
the permit is on board the vessel and is valid.
(4) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application as
required under Sec. 650.4(l) or Sec. 650.5(k).
(5) Make any false statement in connection with an application
under Sec. 650.4 or Sec. 650.5.
(6) Fail to affix and maintain permanent markings as required by
Sec. 650.8.
(7) Sell or transfer, or attempt to sell or transfer, to a dealer
any sea scallops unless the dealer has a valid Federal Dealer's Permit
issued under Sec. 650.6.
(8) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove, or otherwise transfer Atlantic sea scallops or
fish from one vessel to another vessel.
(b) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a limited access scallop permit under Sec. 650.4(a), or a
letter under Sec. 650.4(a)(9)(vi)(D), to do any of the following:
(1)(i) Possess, or land per trip, more than 400 pounds (181.44 kg)
of shucked sea scallops or 50 U.S. bushels (17.62 hl) of in-shell
scallops after using up the vessel's annual DAS allocation or when not
participating under the DAS program pursuant to Sec. 650.26, unless
exempted from DAS allocations as provided in Sec. 650.27.
(ii) Land scallops on more than one trip per calendar day after
using up the vessel's annual DAS allocation or when not participating
under the DAS program pursuant to Sec. 650.26, unless exempted from DAS
allocations as provided in Sec. 650.27.
(2) Fail to have an approved, operational, and functioning VTS unit
that meets the specifications of Sec. 650.25(a) on board the vessel at
all times, unless the vessel is not subject to the VTS requirements
specified in Sec. 650.26.
(3) If the vessel is not subject to VTS requirements specified in
Sec. 650.26, fail to comply with any aspect of the call-in system as
specified in Sec. 650.26(b).
(4) Combine, transfer, or consolidate DAS allocations.
(5) Have an ownership interest in more than 5 percent of the total
number of vessels issued limited access scallop permits, except as
provided in Sec. 650.4(a)(7)(iii).
(6) Fish for, possess, or land Atlantic sea scallops with or from a
vessel that has had the horsepower of such vessel or its replacement
upgraded or increased in excess of the limitations specified in
Sec. 650.4(a)(5).
(7) Fish for, possess, or land Atlantic sea scallops with or from a
vessel that has had the length, gross registered tonnage, or net
tonnage of such vessel or its replacement increased or upgraded in
excess of limitations specified in Sec. 650.4(a)(5).
(8) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish under the DAS allocation program with, trawl nets that have a
maximum sweep exceeding 144 feet (43.9 m), as measured by the total
length of the footrope that is directly attached to the webbing of the
net.
(9) Fish under the DAS allocation program with, or have available
for immediate use, trawl nets of mesh smaller than the minimum size, as
specified in Sec. 650.21(a)(2).
(10) Fish under the DAS allocation program with trawl nets that use
chafing gear or other means or devices that violate the provisions of
Sec. 650.21(a)(3).
(11) Possess more than 40 pounds (18.14 kg) of shucked scallops or
5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,
or fish under the DAS allocation program with, dredge gear that has a
maximum combined dredge width exceeding 31 feet (9.4 m), measured at
the widest point in the bail of each dredge.
(12) Possess more than 40 pounds (18.14 kg) of shucked scallops or
5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,
or fish under the DAS allocation program with, dredge gear that uses
net or net material on the top half of the dredge of a minimum mesh
size smaller than that specified in Sec. 650.21(b)(2).
(13) Possess more than 40 pounds (18.14 kg) of shucked scallops or
5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,
or fish under the DAS allocation program with, dredge gear containing
rings that have minimum sizes smaller than those specified in
Sec. 650.21(b)(3).
(14) Possess more than 40 pounds (18.14 kg) of shucked scallops or
5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,
or fish under the DAS allocation program with, dredge gear that uses
more than double links between rings of the gear.
(15) Possess more than 40 pounds (18.14 kg) of shucked scallops or
5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,
or fish under the DAS allocation program with, dredge gear that uses
cookies, chafing gear or other gear, means, or devices on the top half
of a dredge that obstruct the openings in or between the rings, other
than double links as specified and described in Sec. 650.21(b)(4).
(16) Fish under the DAS allocation program with more than 9
persons, including the operator, on board the vessel, unless otherwise
authorized by the Regional Director.
(17) Fish under the small dredge program as specified in
Sec. 650.21(e), with, or while in possession of, a dredge that exceeds
10 feet 6 inches (3.2 m) in overall width, as measured at the widest
point in the bail of the dredge.
(18) Fish under the small dredge program as specified in
Sec. 650.21(e) with more than 5 persons, including the operator, on
board the vessel, unless otherwise authorized by the Regional Director.
(19) To have a shucking machine on board a vessel, or a sorting
machine on board a vessel that shucks scallops at sea while fishing
under the DAS allocation program, unless otherwise authorized by the
Regional Director.
(20) Refuse or fail to carry an observer if requested to do so by
the Regional Director.
(21) Interfere with or bar by command, impediment, threat,
coercion, or refusal of reasonable assistance, an observer conducting
his or her duties aboard a vessel.
(22) Fail to provide an observer with the required food,
accommodations, access, and assistance, as specified in Sec. 650.28.
(23) Fail to comply with any requirement for declaring in and out
of the DAS allocation program as specified in Sec. 650.26.
(24) Fail to comply with any requirement for participating in the
DAS Exemption Program as specified in Sec. 650.27.
(c) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a general scallop permit under Sec. 650.4(b) to do any of
the following:
(1) Possess, or land per trip, more than 400 pounds (181.44 kg) of
shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops;
(2) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish for scallops with, dredge gear that has a maximum combined dredge
width exceeding 31 feet (9.4 m), measured at the widest point in the
bail of each dredge;
(3) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish for scallops with, dredge gear that uses net or net material on
the top half of the dredge of a minimum mesh size smaller than that
specified in Sec. 650.21(b)(2);
(4) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish for scallops with, dredge gear containing rings that have minimum
sizes smaller than those specified in Sec. 650.21(b)(3);
(5) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish for scallops with, dredge gear that uses more than double links
between rings of dredge gear;
(6) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5
U.S. bushels (176.1 l) of in-shell scallops while in possession of, or
fish for scallops with, dredge gear that uses cookies, chafing gear or
other gear, means, or devices on the top half of a dredge that obstruct
the openings in or between the rings, other than double links as
specified and described in Sec. 650.21(b)(4);
(7) Fish for, or land more than 40 pounds of, scallops on more than
one trip per calendar day.
(d) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a), (b)
and (c) of this section, it is unlawful for any person to do any of the
following:
(1) Possess, or land per trip, sea scallops in excess of 40 pounds
(18.14 kg) of shucked scallops or 5 U.S. bushels (176.2 l) of in-shell
scallops unless:
(i) The scallops were harvested by a vessel that has been issued
and carries on board a general or limited access scallop permit under
Sec. 650.4, or a letter under Sec. 650.4(a)(9)(vi)(D), or,
(ii) The scallops were harvested by a vessel without a Federal
scallop permit and that fishes for scallops exclusively in state
waters;
(2) Possess, or land per trip, sea scallops in excess of 400 pounds
(181.44 kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-
shell scallops unless:
(i) The scallops were harvested by a vessel that has been issued
and carries on board a limited access scallop permit under
Sec. 650.4(a), or a letter under Sec. 650.4(a)(9)(vi)(D), or,
(ii) The scallops were harvested by a vessel without a Federal
scallop permit and that fishes for scallops exclusively in state
waters;
(3) Possess, or land per trip, sea scallops in excess of 40 pounds
(18.14 kg) of shucked scallops or 5 U.S. bushels (176.2 l) of in-shell
scallops unless:
(i) The scallops were harvested by a vessel with an operator on
board who has been issued an operator's permit under Sec. 650.5 and the
permit is on board the vessel and is valid, or,
(ii) The scallops were harvested by a vessel not issued a Federal
scallop permit and that fishes for scallops exclusively in state
waters;
(4)(i) Land, offload, cause to be offloaded, sell, or transfer, or
attempt to land, offload, cause to be offloaded, sell or transfer sea
scallops, from a fishing vessel, whether on land or at sea, as an owner
or operator without accurately preparing and submitting, in a timely
fashion, the documents required by Sec. 650.7, unless the scallops were
harvested by a vessel without a Federal scallop permit and that fishes
for scallops exclusively in state waters;
(ii) To have a shucking machine on board a vessel, or a sorting
machine on board a vessel that shucks scallops at sea while in
possession of more than 400 pounds (181.44 kg) of shucked scallops; or,
the vessel fishes exclusively in state waters and has not been issued a
Federal scallop permit.
(5) Purchase or receive scallops, or attempt to purchase or receive
scallops, whether on land or at sea, as a dealer without accurately
preparing, submitting and retaining, in a timely fashion, the documents
required by Sec. 650.7;
(6) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer, Atlantic sea scallops from
one vessel to another;
(7) Sell, barter or trade, or otherwise transfer, or attempt to
sell, barter or trade, or otherwise transfer, for a commercial purpose
any sea scallops from a trip whose catch is 40 pounds (18.14 kg) of
shucked scallops or less, or 5 U.S. bushels (176.1 l) of in-shell
scallops unless the vessel has been issued a valid Federal general or
limited access scallop permit under Sec. 650.4, or a letter under
Sec. 650.4(a)(9)(vi)(D), or the scallops were harvested by a vessel
without a Federal scallop permit that fishes for scallops exclusively
in state waters;
(8) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose, in
the capacity of a dealer, sea scallops taken from a fishing vessel,
unless in possession of a valid dealer's permit issued under
Sec. 650.6;
(9) Purchase, possess, or receive for commercial purposes, or
attempt to purchase or receive for commercial purposes, sea scallops
caught by a vessel other than one issued a valid federal general or
limited access sea scallop permit under Sec. 650.4, or a letter under
Sec. 650.4(a)(9)(vi)(D), unless the scallops were harvested by a vessel
without a Federal scallop permit and that fishes for scallops
exclusively in state waters;
(10) To be or act as an operator of a vessel fishing for or
possessing Atlantic sea scallops in or from the EEZ, or issued a
Federal scallop permit under Sec. 650.4, without having been issued and
possessing a valid operator's permit issued under Sec. 650.5.
(11) Assault, resist, oppose, impede, harass, intimidate, or
interfere with either a NMFS-approved observer aboard a vessel, or an
authorized officer conducting any search, inspection, investigation, or
seizure in connection with enforcement of this part;
(12) Make any false statement, oral or written, to an authorized
officer, concerning the taking, catching, harvesting, landing,
purchase, sale, or transfer of any Atlantic sea scallops;
(13) Make any false statement on any report required to be
submitted or maintained under Sec. 650.7;
(14) Tamper with, damage, destroy, alter, or in any way distort,
render useless, inoperative, ineffective, or inaccurate the VTS unit or
VTS signal required to be installed on, or transmitted by, Full-time
and Part-time limited access scallop vessels or any other vessel
required to use a VTS by this part;
(15) Violate any provision of this part, the Magnuson Act, or any
regulation or permit issued under the Magnuson Act.
(e) Any person possessing, or landing per trip, sea scallops in
excess of 40 pounds (18.14 kg) of shucked scallops or 5 U.S. bushels
(176.1 l) of in-shell scallops at or prior to the time when those
scallops are received or possessed by a dealer is subject to all of the
prohibitions specified in paragraphs (a), (b) and (c) of this section,
unless the scallops were harvested by a vessel without a Federal
scallop permit and that fishes for scallops exclusively in state
waters.
(f) Presumption. Sea scallops that are possessed, or landed at or
prior to the time when the scallops are received by a dealer, or sea
scallops that are possessed by a dealer, are presumed to be harvested
from the EEZ. A preponderance of all submitted evidence, that such
scallops were harvested by a vessel without a Federal scallop permit
and fishing exclusively for scallops in state waters, will be
sufficient to rebut the presumption.
Sec. 650.10 Facilitation of enforcement.
See Sec. 620.8 of this chapter.
Sec. 650.11 Penalties.
See Sec. 620.9 of this chapter.
Subpart B--Management Measures
Sec. 650.20 Shell-height standard.
(a) The minimum shell height for in-shell Atlantic sea scallops
that may be landed, or possessed at or after landing, is 3\1/2\ inches
(89 mm).
(b) Compliance and sampling. Compliance with the specified shell-
height standards will be determined by inspection and enforcement at or
after landing, including, the time when the scallops are received or
possessed by a dealer or person acting in the capacity of a dealer, as
follows: the authorized officer will take samples of forty scallops
each at random from the total amount of scallops in possession. The
person in possession of the scallops may request that as many as ten
samples (400 scallops) be examined as a sample group. A sample group
fails to comply with the standard if more than ten percent of all
scallops sampled are less than the shell height specified by the
standard. The shell height shall be measured in a straight line from
the hinge of the scallop to the outermost part of the curve on the
leading edge. The total amount of scallops in possession will be deemed
in violation of this regulation and subject to forfeiture if the sample
group fails to comply with the standard.
Sec. 650.21 Gear and crew restrictions.
(a) Trawl vessel gear restrictions. Trawl vessels in possession of
more than 40 pounds (18.14 kg) of shucked scallops or 5 U.S. bushels
(176.2 l) of in-shell scallops, trawl vessels fishing for scallops, and
trawl vessels issued a limited access scallop permit under
Sec. 650.4(a), while fishing under or subject to the DAS allocation
program for sea scallops, must comply with the following:
(1) Maximum sweep. The trawl sweep in use by or in possession of
such vessels shall not exceed 144 feet (43.9 m) as measured by the
total length of the footrope that is directly attached to the webbing
of the net.
(2) Net requirements--(i) Minimum mesh size in 1994 and 1995. In
1994 and 1995, the mesh size shall not be smaller than 5 inches (12.7
cm) south of a line commencing at the shoreline and proceeding easterly
along 39 deg.10' N. Latitude until it intersects the outer boundary of
the EEZ, and 5\1/2\ inches (13.97 cm) for any scallop trawl net north
of this line.
(ii) Minimum mesh sizes in 1996 and beyond. In 1996 and beyond, the
mesh size for any scallop trawl net in all areas shall not be smaller
than 5\1/2\ inches (13.97 cm).
(iii) Mesh stowage. No vessel may have available for immediate use
any net, or any piece of a net, not meeting the requirements specified
in paragraphs (a)(2)(i) and (a)(2)(ii) of this section. A net that
conforms to one of the following specifications and that can be shown
not to have been in recent use is considered to be not ``available for
immediate use'':
(A) A net stowed below deck, provided:
(1) It is located below the main working deck from which the net is
deployed and retrieved;
(2) The towing wires, including the ``leg'' wires, are detached
from the net;
(3) It is fan-folded (flaked) and bound around its circumference.
(B) A net stowed and lashed down on deck, provided:
(1) It is fan-folded (flaked) and bound around its circumference;
(2) It is securely fastened to the deck or rail of the vessel; and
(3) The towing wires, including the leg wires, are detached from
the net.
(C) A net that is on a reel and is covered and secured, provided:
(1) The entire surface of the net is covered with canvas or other
similar material that is securely bound;
(2) The towing wires, including the leg wires, are detached from
the net; and
(3) The codend is removed from the net and stored below deck.
(D) Nets that are secured in a manner authorized in writing by the
Regional Director.
(iv) Measurement of mesh size. Mesh size is measured by using a
wedge-shaped gauge having a taper of two centimeters in eight
centimeters and a thickness of 2.3 millimeters, inserted into the
meshes under a pressure or pull of five kilograms. The mesh size will
be the average of the measurements of any series of 20 consecutive
meshes for nets having 75 or more meshes, and 10 consecutive meshes for
nets having fewer than 75 meshes. The mesh in the regulated portion of
the net will be measured at least five meshes away from the lacings,
running parallel to the long axis of the net.
(3) Chafing gear and other gear obstructions--(i) Net obstruction
or constriction. A fishing vessel may not use any device or material,
including, but not limited to, nets, net strengtheners, ropes, lines,
or chafing gear, on the top of a trawl net, except that one splitting
strap and one bull rope (if present), consisting of line and rope no
more than 3 inches (7.62 cm) in diameter, may be used if such splitting
strap and/or bull rope does not constrict in any manner the top of the
trawl net. ``The top of the trawl net'' means the 50 percent of the net
that (in a hypothetical situation) would not be in contact with the
ocean bottom during a tow if the net were laid flat on the ocean floor.
For the purpose of this paragraph, head ropes shall not be considered
part of the top of the trawl net.
(ii) Mesh obstruction or constriction. A fishing vessel may not use
any mesh configuration, mesh construction, or other means on, or in,
the top of the net, as defined in paragraph (a)(3)(i) of this section,
if it obstructs the meshes of the net in any manner.
(iii) No vessel may use or possess a net capable of catching sea
scallops in which the bars entering or exiting the knots twist around
each other.
(b) Dredge vessel gear restrictions. All dredge vessels fishing for
or in possession of more than 40 pounds (18.14 kg) of shucked scallops
or 5 U.S. bushels (176.2 l) of in-shell scallops, and all dredge
vessels issued a limited access scallop permit and fishing under the
DAS Program, with the exception of hydraulic clam dredges and mahogany
quahog dredges in possession of 400 pounds or less (181.44 kg) of sea
scallops, must comply with the following restrictions:
(1) Maximum dredge width. The combined dredge width in use by or in
possession of such vessels shall not exceed 31 feet (9.4 m) measured at
the widest point in the bail of the dredge, except as provided under
paragraph (e) of this section.
(2) Minimum mesh size. (i) The mesh size of net material on the top
of a scallop dredge in use by or in possession of such vessels shall
not be smaller than 5\1/2\ inches (13.97 cm).
(ii) Mesh size is measured as provided in paragraph (a)(2)(iv) of
this section.
(3) Minimum ring size. (i) For 1994 and 1995, the inside ring size
of a scallop dredge in use by or in possession of such vessels shall
not be smaller than 3\1/4\ inches (83 mm).
(ii) For 1996 and thereafter, the inside ring size of a scallop
dredge in use by or in possession of such vessels shall not be smaller
than 3\1/2\ inches (89 mm).
(iii) Ring sizes are determined by measuring the shortest straight
line passing through the center of the ring from one inside edge to the
opposite inside edge of the ring. The measurement shall not include
normal welds from ring manufacturing or links. The rings to be measured
will be at least five rings away from the mouth, and at least two rings
away from other rigid portions of the dredge.
(4) Chafing gear and other gear obstructions--(i) Chafing gear
restrictions. No chafing gear or cookies shall be used on the top of a
scallop dredge;
(ii) Link restrictions. No more than double links between rings
shall be used in or on scallop dredges;
(iii) Dredge and net obstructions. No material, device, net, or
dredge configuration or design shall be used if it results in
obstructing the release of scallops that would have passed through a
legal size net and dredge that did not have in use any such material,
device, or net or dredge configuration or design.
(c) Crew restrictions. Limited access vessels fishing under or
subject to the scallop DAS allocation program may have no more than
nine people, including the operator, on board unless fishing under the
small dredge program specified in Sec. 650.21(e), or otherwise
authorized by the Regional Director.
(d) Sorting and shucking machines. (1) Shucking machines are
prohibited on all limited access vessels fishing under the scallop DAS
program or any vessel in possession of more than 400 pounds (181.44 kg)
of scallops, unless the vessel has not been issued a Federal limited
access scallop permit and fishes exclusively in state waters.
(2) Sorting machines are prohibited on limited access vessels
fishing under the scallop DAS program that shuck scallops at sea.
(e) Small dredge program restrictions. Any vessel owner whose
vessel is assigned to either the Part-time or Occasional category may
request to be placed in one category higher on the annual vessel permit
application as described under Sec. 650.4(e)(2)(iv). Vessel owners
making such a request will be placed in the appropriate category, for
the entire year, if they agree to comply with the following
restrictions, in addition to and notwithstanding other restrictions of
this part, when fishing under the DAS program described in Sec. 650.24,
or are in possession of more than 400 lbs (181.44 kg) of shucked
scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops:
(1) The vessel must fish exclusively with one dredge no more than
10.5 feet (3.2 m) in width;
(2) The vessel is prohibited from having more than one dredge on
board or in use; and,
(3) The vessel may have no more than five people, including the
operator, on board.
Sec. 650.22 Possession restrictions.
(a) Owners or operators of vessels with a limited access scallop
permit that have declared out of the DAS program as specified in
Sec. 650.26, or have used up their DAS allocations and vessels
possessing a general scallop permit, unless exempted under the DAS
exemption program described under Sec. 650.27, are prohibited from
possessing or landing per trip, more than 400 pounds (181.44 kg) of
shucked scallops, or 50 U.S. bushels (17.62 hl) of in-shell scallops,
with not more than one scallop trip allowable in any calendar day.
(b) Owners or operators of vessels without a Federal sea scallop
permit, except vessels fishing for scallops exclusively in state
waters, are prohibited from possessing or landing per trip, more than
40 pounds (18.14 kg) of shucked sea scallops, or 5 U.S. bushels (176.2
l) of in-shell sea scallops. Owners or operators of vessels without
Federal scallop permits are prohibited from selling, bartering, or
trading sea scallops harvested from Federal waters.
Sec. 650.23 Transfer-at-sea.
(a) Owners or operators of vessels permitted under Sec. 650.4 are
prohibited from transferring or attempting to transfer fish from one
vessel to another vessel.
(b) All persons are prohibited from transferring or attempting to
transfer sea scallops from one vessel to another vessel.
Sec. 650.24 Days-at-sea (DAS) allocations.
Each vessel issued a limited access scallop permit shall be
assigned to a DAS category based on evidence and criteria as specified
in paragraph (a) of this section. Limited access scallop permits will
indicate which category the vessel is assigned to. Vessels are
prohibited from fishing for, landing per trip, or possessing more than
400 pounds (181.44 kg) of shucked scallops or 50 U.S. bushels (17.62
hl) of in-shell scallops once their allocated number of DAS, as
specified under paragraph (c) of this section, are used up.
(a) Criteria for assigning DAS categories. All vessels qualifying
for a limited access scallop permit under the criteria specified in
Sec. 650.4(a) shall be assigned to the Full-time, Part-time, or
Occasional DAS category based on the formulas specified in paragraph
(b) of this section and the following:
(1) Full-time. A vessel shall be assigned to the Full-time category
if that vessel has averaged at least 150 days of directed scallop
fishing annually according to the formulas specified in paragraph (b)
of this section;
(2) Part-time. A vessel shall be assigned to the Part-time category
if that vessel has averaged more than 37 days but less than 150 days of
directed scallop fishing annually according to the formulas specified
in paragraph (b) of this section;
(3) Occasional. A vessel shall be assigned to the Occasional
category if that vessel has averaged 37 days or less of directed
scallop fishing annually according to the formulas specified in
paragraph (b) of this section.
(b) DAS formulas. A vessel's average number of days of directed
scallop fishing for purposes of assigning the vessel to one of the
categories specified in paragraph (a) of this section shall be
determined by applying one of the following formulas to the data,
information, or other credible evidence available to the Regional
Director. Scallop DAS for this purpose is defined as the total days at
sea on trips with landings of more than 400 pounds (181.44 kg) of
shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops.
(1) The following formulas apply to all vessels qualifying for
limited access scallop permits, with the exception of vessels that
qualify under paragraph Sec. 650.4(a)(1)(i)(C). The DAS formula
applicable to that group of vessels is specified in paragraph (b)(2) of
this section. Vessel owners may choose their 1990 history under
paragraph (b)(1)(i) of this section, or a calculation based on the
1985-1990 history, as applicable, under paragraph (b)(1)(ii) of this
section. DAS are calculated from the formulas below and the result is
applied to the DAS categories described in paragraph (a) of this
section.
(i) 1990 fishing history. For any vessel that fished for scallops
in 1990, the number of scallop DAS may be determined by calculating the
total number of DAS on scallop trips ending in 1990; or,
(ii) 1985-1990 fishing history. For vessels with history in the
scallop fishery between 1985 and 1990, inclusive, the number of years
history is determined as follows. With the exception of the adjustments
specified under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section,
vessels whose calculated scallop history is based on a formula below
must use their entire history in the scallop fishery and may not elect
to use a formula based on fewer years history in the fishery.
(A) Four or more years history. Calculate the total number of
scallop DAS for each year, exclude the high and low years of days at
sea and average the remaining years; or
(B) Three year history. Calculate the total number of scallop DAS
for each year, average the high and low years of days at sea, and then
average the result with the third year; or
(C) Two year history. Calculate the total number of scallop DAS for
each year, average the two years' DAS; or
(D) One year history. Calculate the actual number of scallop DAS
for that year.
(iii) Pro-ration. If a limited access vessel entered the scallop
fishery for the first time during the relevant time period, the first
year shall be pro-rated to a full year by pro-rating on an annual basis
the number of DAS the vessel actually incurred on trips landing more
than 400 pounds (181.44 kg) of shucked scallops or more than 50 U.S.
bushels (17.62 hl) of in-shell scallops to determine the number of days
at sea the vessel would have incurred had the vessel been in the
fishery for the full year. The pro-ration formula is as follows: The
total number of scallop DAS in that year is divided by the percentage
of the year the vessel was in the fishery (by month). In pro-rating the
days for such vessels, the Regional Director shall take into account
the date the vessel entered the fishery, the vessel's subsequent
fishing history, and other relevant information.
(iv) New owner. Vessel owners who purchased their vessel during the
1985-1990 time period may request that the DAS formulas be based solely
on their individual history in the scallop fishery, excluding all
previous owner's scallop histories. Under this option a vessel's first
year in the fishery may be pro-rated based on the criteria specified in
paragraph (b)(1)(iii) of this section.
(2) For vessels qualifying for a limited access scallop permit
under paragraph Sec. 650.4(a)(1)(i)(C), pro-rate to a full year the
total number of DAS for trips the vessel would have fished and landed
over 400 pounds (181.44 kg) of shucked scallops or more than 50 U.S.
bushels (17.62 hl) of in-shell scallops in 1990 based on the actual
number of DAS the vessel did fish in 1990 and the criteria specified in
paragraph (b)(1)(iii) of this section. Then, calculate the average
number of DAS for trips landing more than 400 pounds (181.44 kg) of
shucked scallops or more than 50 U.S. bushels (17.62 hl) of in-shell
scallops for the years 1991 and 1992. The number of days to determine
the category shall be the lower number between the pro-rated 1990 days
and the average of DAS in 1991 and 1992.
(c) DAS allocations. Each vessel qualifying for one of the three
categories specified in paragraph (a) of this section shall be
allocated, annually, the maximum number of DAS it may participate in
the limited access scallop fishery, according to the category for which
it qualifies. A vessel whose owner/operator has declared it out of the
scallop fishery pursuant to the provisions of Sec. 650.26, or has used
up its allocated DAS, may leave port without being assessed a DAS as
long as it does not possess or land more than 400 pounds (181.44 kg) of
shucked scallops or 50 U.S. bushels (17.61 hl) of in-shell scallops and
complies with the other requirements of this part.
(1) Annual DAS allocations. The annual allocations of DAS for each
category of vessel specified in paragraph (a) of this section shall be
as follows:
----------------------------------------------------------------------------------------------------------------
DAS category 1994 1995-96 1997 1998-99 2000+
----------------------------------------------------------------------------------------------------------------
Full-time...................................... 204 182 164 142 120
Part-time...................................... 91 82 66 57 48
Occasional..................................... 18 16 14 12 10
----------------------------------------------------------------------------------------------------------------
(2) Accrual of DAS. DAS shall accrue in hourly increments, with all
partial hours counted as full hours. A DAS is calculated beginning when
a vessel leaves port and ending when the vessel returns to port as
follows:
(i) DAS for vessels that are under the VTS monitoring system
described in Sec. 650.26(a) are counted beginning with the first hourly
location signal received showing that the vessel crossed the COLREGS
Demarcation Line leaving port and ending with the first hourly location
signal received showing that the vessel crossed the COLREGS Demarcation
Line upon its return to port.
(ii) DAS for vessels fishing under the call-in notification system
described in Sec. 650.26(b) are counted beginning once the phone call
has been received and confirmation given by the Regional Director. A
DAS ends when after returning to port, the phone call has been
received, and confirmation given by the Regional Director.
(d) Adjustments in annual DAS allocations. Adjustments or changes
in annual DAS allocations, if required to meet fishing mortality
reduction goals, may be made following a reappraisal and analysis under
the framework provisions specified in subpart C of this part.
(e) Notice of initial DAS category. The Regional Director will
attempt to notify all owners of vessels that are deemed eligible to be
issued a limited access scallop permit pursuant to Sec. 650.4(a)(6) as
to which category the vessel qualifies for based on data, information
and other evidence available to the Regional Director.
(f) Appeal of DAS category. (1) Appeal criteria. A vessel's owner
may appeal his/her vessel's initial placement into a vessel category to
the Regional Director within 30 days of receipt of the notice of a
vessel's DAS category. Any such appeal must be based on one or more of
the following grounds, must be in writing, and must state the grounds
for the appeal:
(i) The information used by the Regional Director was based on
mistaken or incorrect data;
(ii) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(iii) The applicant has new or additional information.
(2) The Regional Director will appoint a designee who will make an
initial decision on the appeal.
(3) The appellant may request a review of the initial decision by
the Regional Director by so requesting in writing within 30 days of the
notice of initial decision. If the appellant does not request a review
of the initial decision within 30 days, the initial decision shall
become the final administrative action of the Department of Commerce.
The appellant's request for review must elect either to have the review
conducted by a hearing officer appointed by the Regional Director or by
an Advisory Appeals Board if established pursuant to paragraph
(a)(9)(iv)(B) of this section.
(4) Recommendations to the Regional Director--(i) Hearing Officer.
If the initial decision is reviewed by a hearing officer, the hearing
officer shall make findings and a recommendation to the Regional
Director which shall be advisory only.
(ii) Advisory Appeals Board. If an Advisory Appeals Board is
established under Sec. 650.4(a)(9)(iv), an appellant may request that
the initial decision of his/her appeal be reviewed by the Appeals
Board. If such a request is made, the Regional Director shall forward
the request to the Appeals Board within 15 days after receipt. Any
initial decision reviewed by an Appeals Board made up of other than
Federal employees shall be open to the public, including all
documentation presented to support the appeal. The Appeals Board shall
make findings and a recommendation to the Council, which shall be
advisory only. The Council in turn shall make findings and an advisory-
only recommendation to the Regional Director.
(5) Upon receiving the findings and recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(6) Status of vessels pending appeal of DAS allocations. A vessel,
for which an appeal of its DAS category has been initiated, may fish
under the DAS allocation allowed under the next higher category than
the vessel's initial category placement if the vessel has on board a
letter of authorization from the Regional Director, regardless of what
category the vessel is appealing to be placed in, and is subject to all
requirements applicable to such category of vessels unless otherwise
exempted. That is, if a vessel was initially placed in the Part-time
category, that vessel may fish up to the maximum number of DAS
allocated to Full-time vessels until the Regional Director has made a
final determination on the appeal. If a vessel is initially placed in
the Occasional category, that vessel may fish up to the DAS allocated
to Part-time vessels, regardless of what category the Occasional vessel
is appealing to be placed in, until the Regional Director has made a
final determination on the appeal. Any DAS spent fishing for scallops
shall be counted against the DAS allocation of the category that the
vessel is ultimately placed in. If, before this appeal is decided, a
vessel exceeds the number of DAS it is finally allocated after appeal,
the excess DAS will be subtracted from the vessel's allocation of DAS
in 1995.
(g) End-of-year carry-over. Limited access vessels with unused DAS
on December 31 of any year may carry-over a maximum of 10 DAS into the
next year. At no time may more than 10 DAS be carried over.
(h) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea for one of the following
reasons, and that can document the occurrence through the Coast Guard,
will not accrue DAS for the time documented:
(1) Time spent assisting in a Coast Guard search and rescue
operation; or
(2) Time spent assisting the Coast Guard in towing a disabled
vessel.
Sec. 650.25 Monitoring requirements.
(a) Full-time and Part-time limited access vessels. To be issued a
Full-time or Part-time limited access scallop permit as specified in
Sec. 650.4(a), all vessels must provide documentation to the Regional
Director that the vessel has an operational VTS unit on board that is
part of an approved VTS as specified in paragraph (a)(1) of this
section and meets the minimum performance criteria specified in
paragraph (a)(2) of this section, or as modified annually as specified
in paragraph (a)(1) of this section.
(1) Approval. The Regional Director will annually approve VTSs that
meet minimum performance criteria specified in paragraph (a)(2) of this
section. Any changes to the performance criteria will be published
annually in the Federal Register and a list of approved VTSs will be
published in the Federal Register upon addition or deletion of a VTS
from the list. In the event that a VTS is deleted from the list, vessel
owners that purchased a VTS unit that is part of that VTS prior to
publication of the revised list will be considered to be in compliance
with the requirement to have an approved unit unless otherwise notified
by the Regional Director.
(2) Minimum VTS performance criteria. The basic required features
of the VTS are as follows:
(i) The VTS shall be tamper proof, i.e., shall not permit the input
of false positions; furthermore, if a system uses satellites to
determine position, satellite selection should be automatic to provide
an optimal fix and should not be capable of being manually overridden
by any person on board a fishing vessel or by the vessel owner;
(ii) The VTS shall be fully automatic and operational at all times
regardless of weather and environmental conditions;
(iii) The VTS shall be capable of tracking vessels in all U.S.
waters in the Atlantic Ocean from the shoreline of each coastal state
to a line 215 nautical miles offshore and shall provide position
accuracy to within 400 meters (1,300 feet);
(iv) The VTS shall be capable of transmitting and storing
information including vessel identification, date, time, and latitude/
longitude;
(v) The VTS shall provide accurate hourly position transmissions
every day of the year. In addition, the VTS shall allow polling of
individual vessels or any set of vessels at any time and receive
position reports in real time. For the purposes of this specification,
``real time'' shall constitute data that reflect a delay of 15 minutes
or less between the displayed information and the vessel's actual
position;
(vi) The VTS shall be capable of providing network message
communications between the vessel and shore. The VTS shall allow NMFS
to initiate communications or data transfer at any time;
(vii) The VTS vendor shall be capable of transmitting position data
to a NMFS-designated computer system via a modem at a minimum speed of
9600 baud. Transmission shall be in ASCII text in a file format
acceptable to NMFS;
(viii) The VTS shall be capable of providing vessel locations
relative to international boundaries and fishery management areas;
(ix) The VTS vendor shall be capable of archiving vessel position
histories for a minimum of one year and providing transmission to NMFS
of specified portions of archived data in response to NMFS requests and
in a variety of media (tape, floppy, etc.).
(3) Operating requirements. All required VTS units must transmit a
signal indicating the vessel's accurate position at least every hour,
24 hours a day, throughout the year.
(4) Presumption. Failure of a VTS unit to transmit an hourly signal
of a vessel's position shall be presumed to be a DAS, or fraction
thereof, for as long as the unit fails to transmit a signal. A
preponderance of evidence that the failure to transmit was due to an
unavoidable malfunction or disruption of the transmission that occurred
while the vessel was declared out of the scallop fishery or was not at
sea will be sufficient to rebut the presumption.
(5) Replacement. Should a VTS unit require replacement, a vessel
owner must submit documentation to the Regional Director, within 3 days
of installation and prior to the vessel's next trip, verifying that the
new VTS unit is an operational approved system as described under
paragraph (a)(1) of this section.
(6) Access. As a condition to obtaining a limited access scallop
permit, all vessel owners must allow the NOAA/NMFS, the U.S. Coast
Guard, and their authorized officers or designees access to the
vessels' DAS and location data obtained from its VTS at the time of or
after its transmission to the vendor or receiver, as the case may be.
(7) Tampering. Tampering with a VTS, a VTS unit, or a VTS signal,
is prohibited. Tampering includes any activity that is likely to affect
the unit's:
(i) Ability to operate properly;
(ii) Signal; or
(iii) Accuracy of computing the vessel's position fix.
(b) Occasional limited access vessels. Vessels qualifying for a DAS
allocation under the Occasional category as described under
Sec. 650.24(a)(3), may participate in either the DAS notification
program using the VTS procedures described in Sec. 650.26(a) or the
call-in procedures described in Sec. 650.26(b).
Sec. 650.26 DAS notification program.
(a) VTS notification. Owners of scallop vessels with Full-time or
Part-time limited access scallop permits, owners of vessels with
Occasional limited access scallop permits that have elected to fish
under the VTS monitoring system specified in Sec. 650.25(a), and owners
of vessels fishing under the small dredge program specified in
Sec. 650.21(e), shall be subject to the following presumption and
requirements:
(1) Full-time scallop vessels at sea are presumed to be fishing
under the DAS allocation program unless they declare out of the sea
scallop fishery for a specific time period by notifying the Regional
Director through the VTS.
(2) Owners of Part-time scallop vessels may not fish in the DAS
allocation program unless they declare into the scallop fishery for a
specific time period by notifying the Regional Director through the
VTS.
(3) If the VTS is not available or not functional, and if
authorized by the Regional Director, a vessel owner must notify as
required in paragraphs (a)(1) and (a)(2) of this section and report
using the call-in notification system described under paragraph (b) of
this section.
(b) Call-in notification. Owners of vessels qualifying for a DAS
allocation under the Occasional category as described under
Sec. 650.24(a)(3) or fishing in the Part-time category under the Appeal
Program described in Sec. 650.24(f), who have not elected to fish under
the VTS monitoring system described in Sec. 650.25, and vessels fishing
pending an appeal as specified in Sec. 650.4(a)(9)(vi)(D), shall be
subject to the following requirements:
(1) The vessel owner or authorized representative shall notify the
Regional Director prior to leaving port that the vessel will be
participating in the DAS program by calling (508-281-9335) and
providing the following information: Owner and caller name and phone
number; the vessel's name and permit number; the type of trip to be
taken, and that the vessel is beginning a trip.
(2) A scallop DAS begins once the call has been received and
confirmation given by the Regional Director.
(3) Upon returning to port, the vessel owner or owner's
representative shall notify the Regional Director that the trip has
ended by calling 508-281-9335 and providing the following information:
owner and caller name and phone number; the vessel's name and permit
number; and that the trip has ended.
(4) A DAS ends when the call has been received and confirmation
given by the Regional Director.
(5) Any vessel that possesses or lands per trip more than 400
pounds of scallops shall be deemed in the DAS program for purposes of
counting DAS whether or not the vessel's owner or authorized
representative provided adequate notification as required by this part.
Sec. 650.27 DAS exemption program.
Any vessel holding a limited access scallop permit under
Sec. 650.4(a) may request an exemption from the DAS Program, as
follows, while scallop fishing exclusively landward of the outer
boundary of a state's waters. Any such exemption granted will exempt
the vessel from the DAS requirements specified under Sec. 650.24(c).
(a) VTS notification. Vessel owners requesting a DAS exemption via
a VTS shall:
(1) Notify NMFS, via their VTS, prior to the vessel's first trip
under the DAS exemption program, that the vessel will be fishing
exclusively in state waters for scallops; and,
(2) Notify NMFS, via their VTS, prior to the vessel's first planned
trip in the EEZ, that the vessel is to resume fishing under the
vessel's DAS allocation.
(b) Other methods of notification. Vessel owners opting to request
entry into the DAS exemption program via fax or phone shall:
(1) Notify NMFS by calling 508-281-9335 or faxing 508-281-9135 the
following information at least 7 days prior to the date on which the
exemption is requested: owner and caller name and address; vessel name
and permit number; and beginning and ending dates of the exemption
period;
(2) Remain in the exemption program a minimum of 7 days; and,
(3) If an exemption holder has been in the program a minimum of 7
days and wishes to withdraw earlier than the designated end of the
exemption period, the exemption holder must notify the Regional
Director of early withdrawal from the program. Notification of
withdrawal is made by calling 508-281-9335 or by faxing 508-281-9135.
When providing notice, the exemption holder will specify that the
request is for withdrawal from the program and provide the vessel name
and permit number, and the name and phone number of the caller. The
exemption holder may not leave port to fish for scallops in the EEZ
until 48 hours after notification of early withdrawal is received by
the Regional Director.
(c) A vessel participating in the DAS exemption program may not
fish in the EEZ during the participation period.
(d) Participation in the DAS exemption program expires when the
owner's or vessel's name changes.
(e) Vessels participating in the DAS exemption program continue to
be subject to all the other requirements of this part.
Sec. 650.28 At-sea observer coverage.
(a) The Regional Director may require observers for any vessel
holding a Federal sea scallop permit.
(b) Owners of vessels selected for observer coverage must notify
the appropriate Regional or Center Director, as specified by the
Regional Director, before commencing any fishing trip that may result
in the harvest of any Atlantic sea scallops. Notification procedures
will be specified in selection letters to vessel owners.
(c) An owner or operator of a vessel on which a NMFS-approved
observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew;
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's duties;
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position;
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any
other space used to hold, process, weigh, or store fish; and
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of fish for that trip.
Sec. 650.29 Experimental fishing exemption.
(a) The Regional Director may exempt any person or vessel from the
requirements of this part for the conduct of experimental fishing
beneficial to the management of the sea scallop resource or fishery.
(b) The Regional Director may not grant such exemption unless it is
determined that the purpose, design, and administration of the
exemption is consistent with the objectives of the FMP, the provisions
of the Magnuson Act, and other applicable law, and that granting the
exemption will not:
(1) Have a detrimental effect on the sea scallop resource and
fishery; or
(2) Create significant enforcement problems.
(c) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of this part except those
necessarily relating to the purpose and nature of the exemption. The
exemption will be specified in a letter issued by the Regional Director
to each vessel participating in the exempted activity. This letter must
be carried aboard the vessel seeking the benefit of such exemption.
Subpart C--Framework Adjustments to Management Measures
Sec. 650.40 Framework specifications.
(a) Annually, upon request from the Council, but at a minimum in
the years 1996 and 1999, the Regional Director will provide the Council
with information on the status of the sea scallop resource.
(b) Within 60 days of receipt of that information, the Council's
Plan Development Team (PDT) shall assess the condition of the Atlantic
sea scallop resource to determine the adequacy of the total allowable
DAS reduction schedule, described in Sec. 650.24(c), to achieve the
target fishing mortality rate. In addition, the PDT shall make a
determination whether other resource conservation issues exist that
require a management response in order to meet the goals and objectives
outlined in the FMP. The PDT shall report its findings and
recommendations to the Council. In its report to the Council, the PDT
shall provide the appropriate rationale and economic and biological
analysis for its recommendation utilizing the most current catch,
effort, and other relevant data from the fishery.
(c) After receiving the PDT findings and recommendations, the
Council shall determine whether adjustments to, or additional,
management measures are necessary to meet the goals and objectives of
the FMP. After considering the PDT's findings and recommendations, or
at any other time, if the Council determines that adjustments to, or
additional, management measures are necessary, it shall develop and
analyze appropriate management actions over the span of at least two
Council meetings. The Council shall provide the public with advance
notice of the availability of both the proposals and the analyses, and
opportunity to comment on them prior to and at the second Council
meeting. The Council's recommendation on adjustments or additions to
management measures must come from one or more of the following
categories:
(1) DAS changes;
(2) Shell height;
(3) Offloading window re-instatement;
(4) Effort monitoring;
(5) Data reporting;
(6) Trip limits;
(7) Gear restrictions;
(8) Permitting restrictions;
(9) Crew limits;
(10) Small mesh line;
(11) on board observers;
(12) Any other management measures currently included in the FMP.
(d) After developing management actions and receiving public
testimony, the Council shall make a recommendation to the Regional
Director. The Council's recommendation must include supporting
rationale and, if management measures are recommended, an analysis of
impacts, and a recommendation to the Regional Director on whether to
publish the management measures as a final rule. If the Council
recommends that the management measures should be published as a final
rule, the Council must consider at least the following factors and
provide support and analysis for each factor considered:
(1) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource;
and,
(4) Whether there will be a continuing evaluation of management
measures adopted following their promulgation as a final rule.
(e) If the Council's recommendation includes adjustments or
additions to management measures, and if after reviewing the Council's
recommendation and supporting information:
(1) The Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule based on the factors
specified in paragraph (d) of this section, the action will be
published in the Federal Register as a final rule; or,
(2) The Regional Director concurs with the Council's recommendation
and determines that the recommended management measures should be
published first as a proposed rule, the action will be published as a
proposed rule in the Federal Register. After additional public comment,
if the Regional Director concurs with the Council recommendation, the
action will be published as a final rule in the Federal Register; or
(3) The Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(f) Nothing in this section is meant to derogate from the authority
of the Secretary to take emergency action under section 305(e) of the
Magnuson Act.
[FR Doc. 94-1188 Filed 1-18-94; 8:45 am]
BILLING CODE 3510-22-P