[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