[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Proposed Rules]
[Pages 8915-8933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4019]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040210050-4050-01; I.D. 011204A]
RIN 0648-AN16


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Amendment 10

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 10 to the 
Atlantic Sea Scallop Fishery Management Plan (FMP) developed by the New 
England Fishery Management Council (Council). Amendment 10 proposes a 
long-term, comprehensive program to manage the sea scallop fishery 
through an area rotation management program to maximize scallop yield. 
Areas would be defined and would be closed and re-opened to fishing on 
a rotational basis, depending on the condition and size of the scallop 
resource in the areas. Amendment 10 evaluates and proposes measures to 
minimize the adverse effects of fishing on Essential Fish Habitat 
(EFH). Amendment 10 also proposes days-at-sea (DAS) allocations 
consistent with the current status of the resource, measures to 
minimize bycatch to the extent practicable, and other measures to make 
the management program more effective, efficient, and flexible.

DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES) by 5 p.m., local time, on March 29, 2004.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Amendment 10 to the Scallop FMP.'' Comments also may be 
sent via facsimile (fax) to (978) 281-9135. Comments submitted via e-
mail or internet should be sent to [email protected].
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule should be submitted to the Regional Administrator at the 
address above and by e-mail to [email protected], or fax to 
(202) 395-7285.
    Copies of Amendment 10, its Regulatory Impact Review (RIR), 
including the Initial Regulatory Flexibility Analysis (IRFA), and the 
draft Final Supplemental Environmental Impact Statement (FSEIS) are 
available on request from Paul J. Howard, Executive Director, New 
England Fishery Management Council, 50 Water Street, Newburyport, MA 
01950. These documents are also available online at http://www.nefmc.org.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288; fax 978-281-9135; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Amendment 10 was developed by the Council over a period of more 
than 3 years. The primary management measure included in Amendment 10 
is the proposed area rotation management program, which is designed to 
improve yield from the scallop resource by defining areas to be closed 
and re-opened based on the condition and size of the scallop resource. 
Amendment 10 evaluates and proposes measures to minimize the adverse 
effects of fishing on EFH, in accordance with the Joint Stipulation and 
Order resulting from the legal challenge American Oceans Campaign et 
al. v. Evans et al. (Civil Case Number 99-982 (GK)) (Joint Stipulation 
and Order). Amendment 10 also proposes days-at-sea (DAS) allocations 
consistent with the current status of the resource, measures to 
minimize bycatch to the extent practicable, and other measures to make 
the management program more effective, efficient, and flexible.
    Area-based management was first used for the scallop resource in 
1998, when NMFS, in consultation with the Council, implemented an 
interim rule to close two areas in the Mid-Atlantic (MA) to scallop 
fishing (March 31, 1998, 63 FR 15324). These areas, the Hudson Canyon 
South and Virginia Beach areas, were closed to protect an abundance of 
small scallops that would have been vulnerable to excessive mortality 
if left unprotected. On March 29, 1999,

[[Page 8916]]

Amendment 7 to the FMP (March 29, 1999, 64 FR 14835) extended the 
closures until March 1, 2001, to allow scallops within the areas to 
grow and spawn.
    On June 10, 1999, NMFS and the Council expanded the use of area-
based management in the scallop fishery by implementing Framework 11 to 
the FMP and Framework 29 to the Northeast Multispecies FMP (NE 
Multispecies FMP)(Frameworks 11/29) (64 FR 31144) to authorize scallop 
vessels to fish within Groundfish Closed Area II (CAII) on Georges Bank 
(GB). On June 19, 2000, with the implementation of Framework 13 to the 
FMP and Framework 34 to the NE Multispecies FMP (Frameworks 13/34) (65 
FR 37903), area-based management for the scallop fishery was further 
expanded. Frameworks 13/34 allowed access by the scallop fishery to 
Groundfish CAI and II on GB and the Nantucket Lightship Closed Area 
(NLCA) in southern New England. In both Frameworks 11/29 and Frameworks 
13/34, these areas, closed to protect groundfish species managed under 
the NE Multispecies FMP, were found to have high concentrations of 
large scallops that would support a controlled fishery for scallops 
with only minimal bycatch of groundfish.
    Frameworks 14 (66 FR 24052, May 1, 2001) and 15 (68 FR 9580, 
February 28, 2003), to the FMP implemented on May 1, 2001, and March 1, 
2003, respectively, included area-based controlled harvest strategies 
for the Hudson Canyon and Virginia Beach areas similar to the programs 
established within the groundfish closed areas. The MA scallop closed 
areas were reopened to controlled scallop fishing by these actions 
because the area closure had provided sufficient time for the protected 
scallop resource within the areas to grow to a size more suitable for 
harvest. These recent area-based management actions for the scallop 
fishery provided the Council with valuable information and experience 
in area-based management for the scallop fishery, which it relied upon 
in the development of Amendment 10.
    Amendment 10 was also developed by the Council to minimize the 
adverse effects of fishing on EFH. Consistent with the EFH Joint 
Stipulation and Order, Amendment 10 evaluates the impacts of fishing on 
EFH and proposes management measures designed to minimize the adverse 
effects of scallop fishing on EFH, to the extent practicable.
    A notice of availability for the Draft Supplemental Environmental 
Impact Statement (DSEIS) for Amendment 10 was published in the Federal 
Register on April 18, 2003 (68 FR 19206). The public was given 90 days 
to comment on the DSEIS, in accordance with the EFH Joint Stipulation 
and Order. After considering all comments on the DSEIS, the Council 
adopted the final measures to be included in Amendment 10 at its August 
13-14, and September 16-17, 2003, meetings. The Council submitted the 
final Amendment 10 document to NMFS in December 2003.
    A notice of availability for Amendment 10 was published in the 
Federal Register at 69 FR 2561 on January 16, 2004. The comment period 
on Amendment 10 in terms of its approvability under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
ends on March 15, 2004.

Measures of Particular Concern

    NMFS is highlighting the following five measures included in 
Amendment 10, due to concern relating to implementation and timing: 
Scallop fishing access in the groundfish closed areas; cooperative 
industry surveys; the increase in the minimum ring size; implementation 
of an observer set-aside program; and the title of the proposed MA 
closed area. NMFS's concern with these measures is described below. 
While NMFS only raises the groundfish access issue for public 
awareness, NMFS seeks specific public input on the remaining four 
measures of concern. The measures are described in full in the 
``Proposed Measures'' section of this preamble.

1. Scallop Fishing Access in Groundfish Closed Areas

    Amendment 10 would allow scallop vessels to fish within the 
groundfish closed areas (CAI, CAII, and the NLCA), pending action under 
the Northeast (NE) Multispecies FMP, because a high percentage of the 
scallop biomass at harvestable size is within the boundaries of those 
areas. If vessels are allowed to harvest the scallops within the closed 
areas, Amendment 10 projects that the yield from the scallop fishery 
could be improved significantly, boosting both short-term and long-term 
benefits to the resource and the industry. Without access, the 
potential benefits would be lost, particularly in the long-term.
    Although Amendment 10 contemplates access to the three groundfish 
closed areas, it is not possible to enact the access program for those 
areas through this action. Complementary action must be taken under the 
NE Multispecies FMP, to authorize access because those areas were 
closed by the NE Multispecies FMP to protect groundfish. Therefore, 
access to the groundfish closed areas will be considered in a separate 
joint framework action, Framework 16 to the FMP and Framework 39 to the 
NE Multispecies FMP (the Joint Framework), and these proposed 
regulations do not enact the access program in the groundfish closed 
areas.
    DAS allocations could also be impacted, depending on whether or not 
the Joint Framework is implemented. Upon implementation of Amendment 
10, DAS would be 42, 17, and 4 for Full-time, Part-time and Occasional 
vessels, respectively. Amendment 10 proposes that if the Joint 
Framework is not approved and a final rule allowing access to the 
groundfish closed areas is not published by August 15, 2004, the DAS 
for the 2004 fishing year will increase by 20, 8, and 1 DAS for Full-
time, Part-time, and Occasional vessels, respectively. A delay of 
action on the Joint Framework until after August 15, 2004, would likely 
delay potential access to the three groundfish closed areas until the 
2005 scallop fishing year (March 1, 2005,through February 28, 2006).

2. Cooperative Industry Surveys

    NMFS notes its concerns about the Council's proposal to establish a 
cooperative industry scallop survey in support of area rotation. The 
proposed measure is intended as an important tool for the fully 
adaptive area rotation scheme proposed in Amendment 10. However, 
Amendment 10 specifies no details of the cooperative scallop survey 
regarding the vessels that would be used, the survey design and timing, 
and issues of survey standardization. New information about the scallop 
resource, presumably through the cooperative industry surveys, would 
need to be available to the Council in the early spring of 2005 in 
order to be used in the proposed biennial framework adjustment process 
for 2006 through 2007. Given the lack of detail in the cooperative 
industry survey provision, it is unclear what the Council or NMFS, is 
to do if vessel owners do not make vessels available to conduct the 
survey. In addition, although the cooperative industry resource survey 
is the Council's top research priority for scallops and the set-aside 
program, the research total allowable catch (TAC) set-aside program 
developed in Amendment 10 does not establish research TAC set-aside 
specifically for the resource survey. Therefore, there is no assurance 
that any resource-based funding would be available for the

[[Page 8917]]

survey. NMFS is concerned that the proposed measure is not specified in 
sufficient detail to be implemented, and notes that it appears likely 
that a framework action will be required to develop these details prior 
to implementation.

3. Minimum Ring Size Increase

    The Council has proposed that the increase in the minimum ring size 
to 4 inches (10.2 cm) would be effective upon implementation of 
Amendment 10 in the Hudson Canyon Access Area, and 6 months following 
publication of the final rule for Amendment 10, if approved, in the 
remaining areas. NMFS seeks comment on whether it would be feasible to 
implement the gear conversion requirement upon publication of the final 
rule and implementation of Amendment 10.

4. DAS Set-aside for Observer Coverage

    NMFS is concerned about effective implementation of the DAS set-
aside for observer coverage that would help defray the cost of 
observers on open area trips. Implementation of this measure would be 
complicated because it requires allocation of additional fishing time 
that is based on several variables, including random selection of 
vessels to carry an observer, actual trip length, DAS and observer cost 
equivalents (i.e., how many days of fishing is equal to the cost of 
carrying an observer for 1 day, or for a trip), catch rates, and 
scallop value. As suggested in the Amendment 10 document, to implement 
the measure, NMFS proposes that vessels would be allocated a pre-
determined number of additional DAS for each trip that is observed. The 
number of additional DAS to be allocated would be determined from a 
multiplier of 0.14. For example, if a vessel takes trip of 14 DAS, 1.96 
DAS would be added to its allocation. A multiplier is taken from the 
analysis provided in the Amendment 10 FSEIS.

5. MA Closed Area

    NMFS is concerned about the title of MA closed area proposed in 
Amendment 10. The title, ``Elephant Trunk'' closed area was provided to 
the Council by a member of the scallop industry, but it has come to 
NMFS's attention that the ``Elephant Trunk'' is also used to describe 
an area in the Great South Channel area of GB. NMFS therefore seeks 
public comment on how to clarify the designation of the area proposed 
in Amendment 10.

Proposed Measures

    Amendment 10 proposes a number of changes to the management regime 
for the scallop fishery. In order to provide the public with a clear 
presentation of the regulations that would result if Amendment 10 is 
approved and implemented, NMFS is publishing the sea scallop 
regulations in 50 CFR part 648, subpart D, in their entirety in this 
proposed rule.
    The proposed regulations also include some non-substantive 
revisions to the existing text in subpart D that are not proposed in 
Amendment 10; these revisions would remove obsolete language and 
improve the organization and clarity of the regulations.

1. Overfishing Definition

    Amendment 10 proposes to maintain the existing overfishing 
definition in the FMP, with an increase in the minimum biomass 
threshold from 1/4 BMAX to 1/2 BMAX to be 
consistent with the National Standard Guidelines. Annual determinations 
of the status of the resource would be based on the resource conditions 
and fishery performance relative to biomass and fishing mortality 
reference points for the combined Georges Bank and Mid-Atlantic scallop 
resource. Amendment 10 proposes new guidelines for the Council to use 
during the development of biennial framework adjustments that would 
assure that the management measures implemented in the future would 
prevent overfishing and achieve optimum yield (OY) on a continuing 
basis.

2. Area Rotation

    Under area rotation, three types of areas would exist: Closed 
areas; controlled access areas; and open areas. Closed areas would be 
closed to all scallop harvest as a result of large concentrations of 
fast growing, small scallops. Controlled access areas would be re-
openings of closed areas or areas needing additional effort or harvest 
controls. Controlled access areas would have area-specific effort 
allocation programs, or ``Area Access Programs'' as described below, 
established to prevent rapid harvest of the scallop resource within the 
areas. Finally, open areas would be all areas without area-specific 
controls. In general, open areas would be subject to DAS and gear 
restrictions with no possession limit and trip limitations other than 
those for General Category vessels and vessels fishing for scallops 
outside of scallop DAS.
    The Council considered various approaches to area rotation and 
adopted the approach that would provide the most flexibility to define 
future rotational areas. The ``fully adaptive area rotation scheme'' 
was adopted by the Council because it would allow more accurate area 
definitions compared to the fixed boundary alternatives.
    Amendment 10 would establish rotational area management closures 
for beds of small sea scallops before the scallops are exposed to 
fishing mortality. Scallops have their highest growth rates when they 
are very small and protection of these scallops through area closures 
is critical in the management of the scallop resource. After a period 
of closure, according to the criteria and procedures established, the 
areas would re-open for scallop fishing when the scallops are larger 
and more suitable for harvest. This process would boost scallop meat 
yield and yield per recruit. The fully adaptive area rotation scheme 
would establish no pre-defined conditions for area closures and 
reopenings. There would be no standard closure area boundaries, 
dimensions, or durations. This area rotation program would be based 
entirely on changing conditions of the scallop resource. The biennial 
frameworks used to enact the fully adaptive area rotation program would 
use predetermined scallop biomass and growth rate reference points to 
determine boundaries and duration of area closures and re-openings. The 
fully adaptive area rotation scheme would specify guidelines as part of 
the biennial framework process that would be used to establish the 
rotational areas.

3. Initial Area Rotation

    Amendment 10 proposes two areas in the MA to be part of the initial 
area rotation scheme. First, a redefined Hudson Canyon Access Area 
would be established as a controlled access scallop fishing area, with 
limited access scallop vessels allowed to take four trips into the 
area. Second, an area would be closed that includes the lower portion 
of the existing Hudson Canyon Access Area, and an adjacent area. The 
new closed area is called the ``Elephant Trunk Area.'' Fishing for and 
possession of scallops would be prohibited in the Elephant Trunk Area 
through February 2007. Vessel transit with gear stowed would be allowed 
for both areas.

4. Area-specific DAS and Trip Allocations for Limited Access Vessels

    Amendment 10 would limit fishing by limited access scallop vessels 
under area access programs in order to prevent rapid harvest of 
scallops in controlled access areas. Limits on fishing would include: 
Area-specific DAS allocations; a number of DAS to be charged for each 
closed area trip, regardless of trip length; a maximum number of trips 
allowed into each area; and a maximum sea scallop possession limit per 
trip.

[[Page 8918]]

 These limits would be based upon a target TAC for each area and the 
level of effort that would be expected to harvest the target TAC. The 
harvest of scallops at a level at or above the target TAC would not 
result in a closure of the area. Rather, landings relative to the 
target TAC would be evaluated through biennial, or more frequent 
reviews of the fishery.
    Unused controlled access DAS could not be carried forward into the 
next fishing year. The area target TAC, DAS allocations, maximum number 
of trips and possession limit, and number of DAS charged per trip would 
be calculated to optimize yield while reducing the potential for 
overexploitation of the resource in the open fishing areas.
    Amendment 10 proposes specific measures that would be a part of the 
rotational area access program for the Hudson Canyon Area, based on a 
target TAC of 18,789,999 lb (8,523 mt) in 2004, and 14,956,160 lb 
(6,784 mt) in 2005. DAS assignments for the 2004 and 2005 fishing years 
would be in trip-length blocks of 12 DAS, and four trips with a trip 
possession limit of 18,000 lb (8,164.7 kg), consistent with a 1,500-lb 
(680-kg) per day catch rate. Each vessel would be charged 12 DAS for 
each trip, regardless of actual trip length. Trip length DAS charge and 
possession limits would be re-evaluated for future years through the 
framework adjustment process, beginning with the development of the 
first biennial framework in 2005, that would be effective March 1, 
2006.

5. One-for-one Controlled Access Trip Exchanges

    The controlled area access program would allocate each limited 
access vessel a specific number of trips into each controlled area. 
Limited access vessel owners would be allowed to enter into one-for-one 
exchanges of controlled access area trips. Allowing vessel owners to 
exchange trips would enable them to take advantage of fishing area 
preferences. For example, a vessel owner in the north could exchange a 
trip in a southern area with a vessel owner in the south for a trip in 
a northern area. The northern vessel would thus gain one trip in the 
northern area, but would give up one trip in the southern area. The 
total number of trips in each area would be unchanged, assuming each 
vessel would take all of its allocated trips. The one-for-one trip 
exchange provision would require more than one area to be managed under 
a controlled access program. This proposed rule would establish the 
provision for future use, because Amendment 10 proposes to open only 
the Hudson Canyon Access Area to controlled fishing.

6. Compensation for Sea Scallop Access Area Trips Terminated Early

    Amendment 10 would allow vessel owners to request that NMFS allow 
compensation for a Sea Scallop Access Area trip terminated before the 
vessel has fished up to the automatic deducted DAS. Such trips would be 
allowed without counting as one of the initially allocated trips and at 
a reduced DAS charge and possession limit. The vessel owner must submit 
proof that the vessel owner terminated a controlled access trip due to 
unforeseen events, emergencies, or for safety reasons. This is intended 
to promote vessel and crew safety by preventing the minimum DAS charge 
from being imposed if a vessel owner/operator believes it is necessary 
to terminate a trip. The existing regulations provide a very limited 
set of circumstances that allow such DAS restoration, and this would 
broaden the provision.

7. Gear Restrictions

    Amendment 10 proposes to increase the minimum size of the metal 
rings used to construct the chain bag in scallop dredge gear from 3.5 
inches (8.9 cm) to 4 inches (10.2 cm) in diameter. The new minimum ring 
size is intended to improve yield from the scallop resource by 
promoting harvest of larger scallops with higher meat weights. Upon 
implementation of Amendment 10, if approved, all scallop dredges 
onboard vessels conducting a Hudson Canyon Area controlled access trip 
would be required to comply with the proposed requirement, because the 
improved selectivity of the larger rings would help achieve the 
objective of the controlled access program, to improve yield. A 6-month 
delay in effectiveness of this measure has been proposed by the Council 
for vessels fishing outside of the Hudson Canyon Area, in order to 
allow vessel owners time to convert their gear.
    Amendment 10 also proposes to require all scallop dredge twine tops 
to be constructed of mesh with a minimum size of 10 inches (25.4 cm), 
inside measure, for both diamond and square mesh. The increase in the 
twine top mesh size is intended to minimize bycatch and bycatch 
mortality by improving escapement of some species of finfish.

8. Permit Restrictions

    Except for vessels fishing under the NE multispecies or monkfish 
DAS program, or fishing for scallops under a state exemption program, 
vessels issued a limited access scallop permit that are not fishing 
under a scallop DAS, would be prohibited from possessing more than 40 
lb (18.1 kg) of shucked scallops or 5 U.S. bu. (176.2 L) of unshucked 
scallops. This would eliminate the current allowance for limited access 
vessels to fish for scallops outside of DAS and land up to 400 lb 
(181.4 kg) of scallops. The measure is intended to prevent excessive 
harvest of scallops outside of DAS, which could have negative effects 
on overall resource conditions and DAS allocations.

9. EFH Closures

    Amendment 10 would define areas to be closed to scallop fishing to 
minimize the impacts of scallop gear on EFH. These areas are within the 
areas currently closed under the NE Multispecies FMP in order to 
protect groundfish (CAI, CAII and the NLCA). These areas do not include 
the portions of the groundfish closed areas that were previously opened 
to the scallop fishery under the Scallop Framework 13 Closed Area 
Access Program. The proposed EFH closed areas include areas designated 
as EFH for several finfish species, which would be closed to prevent 
impacts by scallop gear. To promote the rebuilding of groundfish 
stocks, the NE Multispecies FMP prohibits the use of most bottom-
tending gear in the groundfish closed areas.

10. Data Collection, Monitoring, and Scallop Research

    Under the current regulations, vessels issued scallop permits may 
be required by the Administrator, Northeast Region, NMFS (Regional 
Administrator) to carry an observer onboard, with the related costs 
being borne by the vessel. To partially or entirely defray these costs, 
vessels carrying an observer would be allowed to land more scallops or 
utilize more DAS than it would otherwise be allowed. Amendment 10 
proposes to establish a 1-percent set-aside of the total DAS in open 
areas and the target TAC within the Area Access Program areas to help 
defray the cost of observers. The set-asides for observers is intended 
to improve data on scallop catch and bycatch. Expansion of the program 
to open areas under the DAS set-aside would further improve data 
collection.
    Amendment 10 would also establish a DAS set-aside from open area 
DAS and a TAC set-aside to supplement the available funding for 
research. Amendment 10 would expand the research objectives to be 
pursued using this set-aside to include habitat-related

[[Page 8919]]

research, research to identify potential solutions to bycatch of fish 
and sea turtles, and cooperative industry scallop resource survey work. 
The TAC set-aside made available for the research would be 2 percent of 
the target TAC within the the Area Access Program areas. In addition, 2 
percent of the open area DAS allocation would be set aside to help fund 
scallop related research. A request for proposals will be published in 
the Federal Register in the near future which solicits proposals for 
research for the 2004 fishing year. The research set-aside program is 
intended to promote cooperative research related to the scallop 
resource and fishery.

11. Cooperative Industry Resource Surveys

    Amendment 10 proposes to use a cooperative industry scallop survey 
to improve the precision of closed area designations, and re-opening 
dates and conditions. The Regional Administrator would be authorized to 
allocate additional compensation trips to vessels that participate in 
the cooperative surveys to help defray the costs of the vessel's 
participation in research projects. Vessel compensation and direct 
administrative costs for these surveys would be recaptured from the 2-
percent DAS and TAC set-asides, if cooperative industry resource 
surveys are approved through set-aside awards.

12. Framework Adjustment Process

    Amendment 10 proposes a biennial framework adjustment process for 
changing area rotation closed areas and area re-openings, setting DAS 
allocations, and making other management adjustments. In addition to a 
change from an annual to a biennial process, the new framework 
procedures would ensure that OY is achieved and overfishing is 
prevented on a continuing basis, through consideration of the resource 
condition by the Scallop Plan Development Team (PDT). In addition to 
the frameworkable measures in the FMP, Amendment 10 proposes that 
changes in the following measures could be enacted through framework 
action: Size and configuration of rotation management areas; controlled 
access seasons to minimize bycatch and maximize yield; area-specific 
DAS or trip allocations; amount and duration of TAC specifications 
following re-opening; limits on number of closures; TAC or DAS set-
asides for funding research; priorities for scallop-related research 
that is funded by a set-aside from scallop management allocations; 
finfish TACs for controlled access areas; finfish possession limits; 
sea sampling frequency; and area-specific gear limits and 
specifications.

13. Proactive Protected Species Program

    To reduce the risk of takes of sea turtles and other species 
protected under the Endangered Species Act by fishing gear used in the 
scallop fishery, Amendment 10 proposes a mechanism to close areas, 
establish seasons, implement gear modifications, or other measures 
through the framework adjustment process. As new information about sea 
turtles and other protected species becomes available, particularly if 
interactions between protected species and the scallop fishery increase 
beyond anticipated levels, the Council would propose actions to 
mitigate takes.

Classification

    At this time, NMFS has not determined that the FMP amendment that 
this proposed rule would implement is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.
    A notice of availability of the DSEIS, which analyzed the impacts 
of all of the measures under consideration in Amendment 10, was 
published on April 18, 2003, (68 FR 19206).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an IRFA as required under section 603 of the 
Regulatory Flexibility Act (RFA). The IRFA describes the economic 
impact that this proposed rule, if adopted, would have on small 
entities. A summary of the analysis follows:
    A description of the action, why it is being considered, and the 
legal basis for the action are contained in the preamble to this 
proposed rule. This proposed rule does not duplicate, overlap or 
conflict with any relevant Federal rules.

Description of Small Entities to Which the Proposed Rule Will Apply

    The measures proposed in Amendment 10 could impact any commercial 
vessel issued a Federal sea scallop vessel permit. All of these vessels 
are considered small business entities for purposes of the RFA because 
all of them grossed less than $3.5 million according to the dealer 
reports for the 2001 and 2002 fishing years. There are two main 
components of the scallop fleet: Vessels eligible to participate in the 
limited access sector of the fleet and vessels that participate in the 
open access General Category sector of the fleet. Limited access 
vessels are issued permits to fish for scallops on a Full-time, Part-
time or Occasional basis. In 2001, there were 252 Full-time permits, 38 
Part-time permits, and 20 Occasional permits. In 2002, there were 270 
Full-time permits, 31 part time permits, and 19 Occasional permits. 
Because the fishing year ends on the last day of February of each year, 
2003 vessel permit information was incomplete at the time the Amendment 
10 analysis was completed. Much of the economic impacts analysis is 
based on the 2001 and 2002 fishing years; 2001 and 2002 were the last 2 
years with complete permit information. According to the most recent 
vessel permit records for 2003, there were 278 Full-time limited access 
vessels, 32 Part-time limited access vessels, and 16 Occasional 
vessels. In addition, there were 2,293, 2,493, and 2,257 vessels issued 
permits to fish in the General Category in 2001, 2002, and 2003, 
respectively. Annual scallop revenue for the limited access sector 
averaged from $615,000 to $665,600 for Full-time vessels, $194,790 to 
$209,750 for Part-time vessels, and $14,400 to $42,500 for Occasional 
vessels during the 2001 and 2002 fishing years. Total revenues per 
vessel, including revenues from species other than scallops, exceeded 
these amounts, but were less than $3.5 million per vessel.
    Two criteria, disproportionality and profitability, were considered 
in determining the significance of regulatory impacts. The 
disproportionality criterion compares the effects of the regulatory 
action on small versus large entities. Because all of the vessels 
permitted to harvest sea scallops are considered to be small entities, 
there are no disproportional impacts. Due to a lack of individual 
vessel cost data, the analyses performed for this proposed rule use 
increases in fleet revenue as a proxy for vessel profitability.

Proposed Reporting, Recordkeeping, and Other Compliance Requirements

    There are four proposed measures that impose new reporting, 
recordkeeping or other compliance requirements upon the small entities 
that participate in the fishery.

Reporting and Recordkeeping

    Two measures with new reporting requirements are intended to 
provide flexibility to vessel owners participating in the area access 
program proposed in Amendment 10. The first would allow vessel owners 
to request restoration of DAS charged for area access trips terminated 
by the vessel operator due to

[[Page 8920]]

an emergency, poor weather or any other reason deemed appropriate. This 
broken trip provision would require a vessel owner to notify NMFS via 
its vessel monitoring system (VMS) when the trip was terminated, and to 
submit a request for DAS restoration by mail to the Regional 
Administrator. The estimated number of such requests varies from 188-
481, with the higher number based on the larger number of area access 
trips expected to occur if Amendment 10 is followed by action in the 
Joint Framework to authorize scallop fishing in the Groundfish closed 
areas. Each request is estimated to have associated compliance costs of 
$1.26, representing the cost of the VMS message ($ 0.79 per minute), 
postage ($ 0.37), and document reproduction ($ 0.10)). Therefore, 188 
requests would impose total compliance costs of $236.88 and 481 
requests would impose total compliance costs of $606.06.
    The second proposed measure to provide flexibility to vessel owners 
participating in the area access program would allow vessel owners to 
exchange the controlled access trips allocated to their vessel for use 
within specific access areas. Such exchanges would allow vessel owners 
to mitigate their operating costs. For example, a vessel owner in New 
England with an allocated trip to an access area in the MA region could 
exchange with a vessel owner in the MA region who had an allocated trip 
to an access area in New England. Both owners could minimize their 
vessel operating expenses without foregoing any area access trips. A 
conservative estimate of the potential compliance costs associated with 
this provision was calculated based on the assumption that each of the 
278 Full-time limited access vessels would make one exchange per year. 
Both vessel owners involved in the trade would be required to submit a 
form, so the total number of respondents would be 556. Each request is 
estimated to have associated compliance costs of $ 0.47 representing 
the cost of postage ($ 0.37) and document reproduction ($ 0.10). 
Therefore, 556 requests would impose compliance costs of $261.32.
    Amendment 10 proposes that commercial vessels would participate in 
the conduct of a cooperative industry survey, with the direct costs of 
participation covered by a research set-aside of TAC and DAS. However, 
there would be some costs to vessel owners interested in participating 
in this survey, because they would be required to notify NMFS of their 
interest by submitting a form to NMFS. The number of respondents is 
estimated at 278, with the cost of notification estimated at $0.47 
representing the cost of postage ($ 0.37) and document reproduction ($ 
0.10), for a total compliance cost of $130.66.
    All vessels issued permits to harvest sea scallops must carry an 
at-sea observer onboard, if requested by the Regional Administrator to 
gather data necessary to manage the fishery. The cost to the vessel is 
estimated at $1,100.00 per DAS. Amendment 10 proposes to mitigate the 
impact of this cost to vessel owners by establishing an observer set-
aside that would allow vessels carrying an observer to harvest 
additional scallops to offset the cost. In order to ensure that all 
scallop vessels are considered for at-sea observer coverage, vessel 
owners would be required to notify NMFS of their intent to fish through 
their VMS. Without access to the groundfish closed areas, it is 
expected that approximately 1,965 trips would be reported by vessels 
for VMS coverage. With access to the groundfish closed areas, the 
number of trips would decrease (because of lower overall DAS 
allocations with access) to 957. The cost of notification is estimated 
at $0.79 per response, for a total compliance cost of $1,552.35 without 
access, and $756.03 with access.

Other Compliance Costs

    Two proposed gear modifications have associated implementation 
costs: An increase in the minimum size of the rings used to construct 
scallop dredge chain bags from 3.5 inches (8.9 cm) in diameter to 4 
inches (10.2 cm) in diameter; and an increase in the size of the mesh 
used to construct scallop dredge twine tops, from 8 inches (20.3 cm) to 
10 inches (25.4 cm). The increase in the ring size would require vessel 
owners to modify their existing gear. Actual cost of converting ring 
size is not available. Additional information gathered during the 
public comment period regarding gear conversion should assist NMFS in 
determining the actual cost. With the exception of requiring 4-inch 
(10.2-cm) rings in the Hudson Canyon Access Area upon implementation, 
Amendment 10 proposes to provide a 6-month delay in the requirement to 
provide time for the industry to purchase the gear. This would 
temporarily mitigate the economic impact of the requirement by allowing 
vessel owners to use existing gear in most areas for the first 6 months 
after implementation and replace worn gear with the new 4-inch (10.2-
cm) rings. Long-term benefits of the increased ring size are expected 
to outweigh the short-term cost of replacing the 3.5-inch (8.9-cm) 
rings because larger scallops caught with the larger ring size would be 
more valuable and would make up more of the overall catch. The increase 
in the minimum mesh size in twine tops would impose a cost on vessel 
owners, though scallop vessels on controlled access trips have had to 
use 10-inch (25.4-cm) mesh twine tops since 1999, so some vessels would 
already be in compliance and would have already incurred those costs. 
Additionally, Full-time limited access vessels customarily have to 
replace their twine tops several times a year, so the purchase of twine 
would not represent an additional expense. The process of sewing a 
twine top into a dredge takes about 30-45 minutes in good weather, 
dockside.

Economic Impacts of the Proposed Action

    Economic impacts were analyzed relative to no action, defined as 
the continuation of the existing DAS schedule (as specified in 
Amendment 7) with no access by scallop vessels to the scallop resource 
located within the groundfish closed areas. The combined economic 
impacts of the proposed measures are positive for the majority of small 
business entities in the scallop fishing industry. Although the 
economic analysis was conducted for an average Full-time limited access 
vessel, the impacts would be similar for Part-time and Occasional 
limited access vessels because the overall management measures apply 
equally to all limited access vessels. The DAS allocations for Part-
time and Occasional limited access vessels would be impacted in the 
same manner as Full-time DAS allocations, though proportional to their 
relative allocations. The impacts of specific measures are summarized 
below.

1. Area Rotation

    The proposed area rotation alternative with access to the GB 
groundfish areas would have positive economic impacts on vessels 
compared to the no action levels in the short term from 2004 to 2007. 
Gross revenues would increase by over 50 percent from 2004 to 2007. The 
average gross profits per year are estimated to be positive during 
these first 4 years, and to exceed the no-action levels by 
approximately $72,000 from 2004 to 2007. The impacts would be positive 
over the next 4 years (2008-2011) as well. Therefore, if all vessels 
are able to use their area-specific DAS allocations, and if access is 
provided to the Groundfish closed areas by the Joint Framework, the 
impacts on vessel revenues and profits would be positive both in the 
short and long term.
    Although the proposed regulations are expected to benefit most 
vessels in the

[[Page 8921]]

scallop fishery by increasing the productivity of the scallop resource, 
these benefits may not necessarily be equally distributed. Area 
rotation and area closures could have differential effects on scallop 
vessel owners, processors, ports, and fishing communities, depending 
upon their home port proximity to open and controlled access areas. 
These impacts may vary depending upon the relative mobility of vessels 
in accessing alternative fishing areas. However, the differential 
effects are difficult to quantify and predict since actual effects 
would depend on reaction to the new regulations by the industry.
    Without future access to the Groundfish closed areas, area rotation 
would increase estimated gross and net revenues for the first 3 years, 
from 2004 to 2006, but would have negative impacts on revenue and 
profits in subsequent years as vessels would not benefit from abundant 
fishing grounds and as the resource in open areas becomes less 
abundant. Annual average gross revenues would decrease by 4 percent per 
year from 2008 to 2011.

2. Annual DAS Allocations

    This action would allocate DAS to vessels in order to achieve OY 
from the scallop resource. The DAS allocations would be area-specific, 
and one-to-one exchanges would be allowed between vessel owners for the 
controlled access area trips. The initial DAS allocations and catch 
levels proposed by Amendment 10 are higher than the allocations and 
catch levels under the no action alternative. As a result, vessel 
landings, revenues and gross profits would increase in the short term, 
compared to the no action alternative.
    These economic impacts assume that all vessels would be able to 
access each of the controlled access areas. There is uncertainty, 
however, regarding the number of vessels that would be able to fish in 
those areas or that would be able to trade their trips in one access 
area for trips to a preferable access area. The analysis showed that, 
although the majority of the Full-time limited access vessels that were 
active in 2002 previously fished both in the controlled access areas of 
GB and Hudson Canyon, about 9 percent of them never fished in the MA 
controlled access areas, another 17 percent never fished in the GB 
groundfish areas, and about 8 percent never fished in any of these 
areas. These three groups of vessels constitute about one-third of the 
Full-time vessels that were active in the 2002 fishing year and that 
would be allocated trips in areas that they have not fished in the 
past.
    When the analysis was conducted, however, based on a sample of 
vessels that were active during all the years when access was provided 
to these areas, the percentage of Full-time vessels that did not access 
one or more of the controlled access areas in GB and the MA was reduced 
to 22 percent. Therefore, the proportion of vessels that could be 
affected by area-specific DAS allocations ranges from one-fourth to 
one-third of the Full-time fleet. Although the provision that allows 
one-to-one exchange of controlled access area trips may mitigate these 
impacts, some vessels may be unable to arrange an exchange to fish in a 
preferable area if other vessel owners are not willing to exchange 
trips. These vessels could face negative economic impacts from area-
specific trip and DAS allocations if they are unable to take their 
trips to specific controlled access areas due to the limitations in 
vessel size and equipment, safety concerns, or cost factors. Controlled 
area access revenue is estimated to constitute 45 percent of the total 
scallop revenue in 2004 and 35 percent in 2005, if there is no access 
to groundfish closed areas. Controlled area access revenue is estimated 
to increase to 66 percent of the total scallop revenue in 2004 and 60 
percent in 2005, if there is access provided to the groundfish closed 
areas through Joint Framework 16/39. The scallop revenue from even one 
access area trip could amount to more than 10 percent of the annual 
revenue in 2004 without access to the Groundfish closed areas and close 
to 10 percent of the annual revenue with access to the Groundfish 
closed areas. Therefore, the loss of revenue and gross profits from 
controlled access trips could be significant, even if one or two of 
these trips could not be taken.
    Under the proposed area access program, a vessel could harvest 
18,000 lb (8,165 kg) of scallop meats, with a minimum charge of 12 DAS 
for each area access trip. This trade-off would result in maximum 
annual net revenues per vessel from the controlled access areas in 2004 
alone, or on average for the period 2004 to 2007. When compared to 
other possession limits, the possession limit of 18,000 lb (8,165 kg) 
is slightly lower than the status quo trip limit of 21,000 lb (9,525 
kg) and could constrain larger vessels with the capacity to land more 
scallops per trip. However, larger possession limits at higher 
automatic DAS deduction (e.g., 21,000 lb (9,525 kg) with an automatic 
14 DAS deduction) result in a smaller number of trips per vessel as 
less trips would be necessary to harvest the target TAC. As a result, a 
21,000-lb (9,525 kg) or larger possession limit generates lower average 
annual net revenues for 2004 2007, compared to the other possession 
limit alternatives. On the other hand, it could be difficult for some 
vessels to land the possession limit within 12 DAS. In order to 
accommodate for this difficulty, this rule proposes that the limited 
access vessels would be charged no more than 12 DAS, even if the actual 
trip length was longer.

3. One-to-one Exchanges of Controlled Access Area Trips

    To mitigate the potential adverse impacts related to the fact that 
some vessels may not be able to utilize area access trips into specific 
areas, the proposed action would allow one-to-one exchanges of 
controlled access area trips. This is expected to provide flexibility 
to vessel owners regarding which areas to fish, thereby reducing the 
possibility of revenue loss if they are unable to access some areas. As 
noted above, the compliance costs associated with this provision are 
minor, and the measure should provide benefits to vessel owners 
involved in an exchange.

4. Compensation for Sea Scallop Access Area Trips Terminated Early

    This action proposes to allow vessel owners to request compensation 
for Sea Scallop Access Area trips terminated by the vessel operator due 
to unforseen events, emergency, or safety reasons. If such a request is 
approved by NMFS, a vessel would be authorized to resume the area 
access trip and harvest 1,500 lb (680 kg) of scallop meats for each DAS 
restored. Therefore, this measure would have positive economic impacts 
on vessels by reducing lost revenue from area access trips that are 
terminated, making it more likely that vessels would utilize their 
controlled access trips. As noted above, the compliance costs 
associated with this measure are minor.

5. Gear Restrictions

    The proposal to increase the minimum ring size to 4 inches (10.2 
cm) is expected to have positive economic impacts overall, despite 
short-term costs associated with gear changes. Larger rings would allow 
more small scallops to escape capture, reducing discard mortality and 
improving yield and vessel revenue. The increase in the ring size is 
estimated to improve the efficiency of the gear in capturing large 
(greater than 4.3-inch (10.9-cm)) scallops by about 10-15 percent. In 
addition, gear efficiency for large scallops would increase, reducing 
the tow time needed to catch the allowed possession limit. This in turn 
could

[[Page 8922]]

result in lower vessel operating expenses. The positive benefits of the 
10-inch (25.4 cm) twine top requirement are indirect, because the 
measure would allow for greater escapement of many finfish species, 
thus minimizing bycatch. Without measures to keep bycatch low, the 
Council felt it was unlikely that scallop vessels would be allowed to 
fish within the Groundfish closed areas. The Council did not consider 
alternatives for mesh larger than 10 inches (25.4 cm) because studies 
of 12-inch (30.5-cm) mesh twine tops indicate excessive reductions in 
scallop catch.

6. General Category Permit Restrictions

    This proposed action would prohibit a vessel issued a limited 
access permit to harvest scallops under the regulations applicable to 
the General Category when not fishing on a scallop DAS. This would 
prohibit an activity that is allowed under current regulations. 
Although one-third of the limited access vessels landed some scallops 
under the General Category rules during the 2002 fishing year, only 7 
percent of these vessels derived more than 1 percent of their revenues 
from the General Category trips. The Council concluded that the measure 
would benefit most limited access vessels, since an increase in General 
Category landings could require the reduction of DAS allocations to 
limited access vessels in the future. Such reductions would impact all 
limited access vessels, including those that have never harvested 
scallops under the General Category.
    Vessels holding General Category scallop permits and limited access 
scallop vessels fishing under a NE multispecies or monkfish DAS would 
be authorized to harvest up to 400 lb (181.4 kg) of scallop meats from 
open areas and controlled access areas. Allowing the harvest of up to 
400 lb (181.4 kg) of scallop meats in controlled access areas would 
benefit vessels that have been restricted to 100 lb (45.4 kg) in 
controlled access areas under previous actions.

7. Habitat Alternatives

    Amendment 10 proposes to close specified areas to scallop gear to 
minimize the adverse effects of fishing on EFH to the extent 
practicable. The areas identified for closure are currently closed to 
the scallop fishery by regulations implemented under the NE 
Multispecies FMP to conserve groundfish. Therefore, establishing these 
areas as Habitat Closed Areas in Amendment 10 would have no impact on 
small entities, when compared to the no action alternative.

8. Biennial Framework Adjustment Procedure

    The framework provision would have positive impacts on the scallop 
industry by adjusting the management actions to changing resource 
conditions. Biennial adjustments would enable participants in the 
fishery to conduct their business planning on a biennial basis, as 
well.

9. Proactive Protected Species Program

    This program is expected to have positive impacts on the scallop 
fishery by helping to minimize the interactions between scallop gear 
and protected species and, therefore, reducing the need for more 
conservative actions that could have negatively impacts on the small 
businesses in scallop industry.

Economic Impacts of Significant and Other Non-selected Alternatives

    The RFA requires consideration of alternatives that accomplish the 
stated objectives of the applicable statutes and that minimize economic 
impacts on small entities. The IRFA should identify any significant 
alternatives that would minimize economic impacts on small entities, if 
such alternatives exist. If there is an alternative with less impact on 
small entities that meets the stated objectives, the IRFA should 
identify and describe such an alternative. A rationale should be 
provided to explain any unavoidable adverse effects on small entities 
that are necessary to achieve the objectives.
    The Council compared the economic impacts of the proposed measures 
to the impacts of the other significant alternatives considered. The 
Council selected its proposed measures to function as a set of 
integrated measures that would, when implemented, achieve a number of 
conservation and management objectives while minimizing the economic 
impacts on the industry, to the extent possible. Therefore, one of the 
many analyses conducted by the Council evaluated the impacts of the set 
of proposed measures in comparison to the no action measures, and 
considered the impacts both with and without future access to the 
groundfish closed areas through The Joint Framework. Furthermore, the 
impacts of the proposed measures were compared to the status quo 
alternative, defined to be limited access fishing DAS allocated 
consistent with the existing fishing mortality targets and the current 
condition of scallop resource, no increase in the minimum ring size, 
and no area rotation program.
    The results of this analysis show that the combined economic 
impacts on small entities of the proposed measures are positive when 
compared to the impacts of both the no action and status quo measures, 
if there is future access to the groundfish closed areas. If there is 
no future access to the groundfish closed areas, however, economic 
impacts from the proposed option would be negative in comparison to no 
action after the first 4 years of implementation. This is because open 
areas would be fished at a higher rate in the absence of access to the 
groundfish closed areas, reducing landings per unit effort and, 
consequently, resulting in lower landings than the level of landings 
under the no action alternative.
    With or without access to the groundfish closed areas, the proposed 
measures would result in higher DAS allocations than the no action 
alternative. This would translate into higher landings, lower prices, 
larger fleet revenue, producer and consumer surpluses and greater total 
benefits than the no action alternative during the first 4 years of the 
program (2004 to 2007). The annual fleet revenues would exceed no 
action levels by $58 million during the initial 4-year period with 
access to the groundfish closed areas, and by $37 million without 
access to the groundfish closed areas. The cumulative value of the net 
benefits, measured by the sum of consumer and producer surpluses net of 
no action, would reach $371 million with access to the groundfish 
closed areas, and $124 million without access during the initial 4-year 
period. The economic impacts during the following 4 years, and in the 
long term, would also be positive if access is allowed to the 
groundfish closed areas, increasing total benefits by $53 million 
during 2008-2012 and by $95 million over the long term (2013-2030).
    The alternatives considered by the Council included alternatives 
with no area rotation component, as well as various rotational 
management alternatives with fixed area boundaries, various closure 
durations, and inflexible/mechanical rotation schemes. These were 
examined with both 3.5-inch (8.9-cm) and 4-inch (10.2-cm) ring 
requirements.
    The Council did not find it necessary to select one of these other 
alternatives because development of the Joint Framework was 
contemplated by the Council at the time it selected its proposed 
measures. The Joint Framework addresses the circumstances that would 
cause the negative impacts projected in the absence of access to the 
groundfish closed areas. It should be possible to develop a program to 
allow such access before the negative impacts of the proposed measures 
are experienced by the industry.

[[Page 8923]]

    Amendment 10 also includes analyses that compare the various 
alternatives. The proposed rotational management measure (adaptive 
rotation with flexible area boundaries based on frequent surveys of the 
resource) was found to have positive impacts compared to alternatives 
that did not include area rotation. This is because it protects small 
scallops during periods of their highest growth rates, and allows the 
boundaries of closed areas to be determined more accurately, improving 
both yield and fishing efficiency. The proposed area rotation measure 
also had higher benefits compared to other rotational management 
alternatives with mechanical rotation and fixed boundaries. 
Specifically, area rotation closed areas would be determined optimally 
based on recent surveys, and area boundaries could be established to 
minimize the social and economic impacts on fishing communities located 
close to areas proposed for closure or area access programs.
    The results also showed that area rotation combined with 3.5-inch 
(8.9-cm) rings could result in slightly higher economic benefits in the 
first 10 years of implementation, than area rotation combined with the 
proposed 4-inch (10.2-cm) ring size. Four-inch rings result in slightly 
lower landings, about a million pounds per year on the average, 
compared to the 3.5-inch (8.9-cm) ring options during the first 10 
years from 2003 to 2013 under all scenarios. However, over the long 
term, the increase in ring size yields higher benefits than those 
achieved with the smaller ring size.
    In addition, analysis of the ring size indicates that the 4-inch 
(10.2-cm) rings are preferable over the long-term because they reduce 
mortality on small scallops and, as a result improve yield and increase 
scallop revenues. By improving dredge efficiency in harvesting larger 
scallops, the use of 4-inch (10.2-cm) rings would also reduce bottom 
contact time, potentially reducing both bycatch of other species and 
impacts on habitat. Thus, the Council rejected alternatives with no 
area rotation and rotational management alternatives that incorporated 
the 3.5-inch (8.9-cm) ring size in favor of the proposed measures.
    Even without access to the groundfish closed areas, almost all of 
the rotational management alternatives would result in an increase in 
landings compared to the status quo option over the first 10 years of 
the management program. The status quo alternative is estimated to 
result in landings averaging 32 million lb (14,515 mt) per year, while 
most of the rotational management options increase average landings to 
33-34 million lb (14,968-15,422 mt) per year from 2003-2012. There are 
three rotational management alternatives that would not increase 
average landings during the period: The mechanical rotation 
alternative, the alternative that allows areas to be closed for 4 
years, and the program that allows 50 percent and 100 percent of the 
maximum biomass to be located in closed areas. Mechanical rotation is 
estimated to reduce average landings and revenues per year, and result 
in high variability in landings, prices, revenues and in total economic 
benefits during the first 10 years, as well as in the long term. In 
general, the rotational management options that increase closure 
duration or the amount of biomass that can be within closed areas, also 
would result in higher variability in landings and prices, which could 
reduce vessel revenues.
    The rotational management alternatives with access to the 
groundfish closed areas are estimated to result in an increase in 
average annual landings during the 10-year period from 32 million lb 
(14,515 mt) under status quo to 39-55 million lb (17,690-24,948 mt) 
with access to some groundfish closed areas. If the scallop fishery has 
access to all groundfish closed areas, the average annual landings for 
the period could increase to 68 million lb (30,844 mt). Rotational 
management alternatives were also considered that would have utilized 
the groundfish closed areas as a ``stabilizing reservoir.'' These 
alternatives increase average landings to 40-46 million lb (18,144-
20,865 mt) per year, while at the same time reducing the variability.
    The Council considered a large number of alternatives to minimize 
and mitigate adverse effects of the fishery on EFH, to the extent 
practicable. The alternatives are briefly defined below, including the 
four alternatives adopted by the Council.
    Alternative 1, status quo measures with no scallop access to 
Groundfish closed areas;
    Alternative 2 (adopted by the Council), habitat benefits of other 
selected measures in Amendment 10;
    Alternative 3 (a and b), area closures to protect hard-bottom 
habitat;
    Alternative 4, area closures to proect hard-bottom habitats that 
overlap proposed modified groundfish closed areas in Amendment 13;
    Alternative 5 (a-d), area closures designed to protect EFH and 
balance fishery productivity;
    Alternative 6 (adopted by Council), area closures within the 
Groundfish closed areas that maintain closure to the scallop fishery of 
areas that were closed to scallop fishing under Framework 13;
    Alternative 7, area closures designed to protect areas of high EFH 
value and low scallop productivity;
    Alternative 8 (a and b), area closures on the eastern portion of 
GB;
    Alternative 9, area closures that include all of the existing year-
round groundfish closed areas in southern New England, GB and the Gulf 
of Maine;
    Alternative 10, restrictions on use of rock chains;
    Alternative 11 (adopted by the Council), increase in the minimum 
ring size to 4 inches (10.2 cm);
    Alternative 12 (adopted by the Council), habitat research funded 
through scallop TAC set-aside; and
    Alternative 13, area based management and rotation based on habitat 
protection.
    Many of these alternatives (1, 3a, 3b, 4, 5a-d, 6, 7, 8a, 8b, 9) 
proposed to close various areas and the impacts on revenues and 
economic benefits from various habitat closures were examined. These 
relative impacts show that proposed Alternative 6 was ranked in the 
middle of the range of impacts on scallop revenues and economic 
benefits. Several other habitat alternatives, including Alternatives 
5a, 5c, 5d, 8a, and 8b, would have lower impacts on vessel revenues. 
These alternatives were not chosen, however, because they either had 
impracticable social/economic impacts on some fishing communities or 
did not satisfy the requirement to minimize adverse impacts of fishing 
on EFH, to the extent practicable.
    The alternatives considered by the Council also included measures 
other than closures. An alternative to restrict the use of rock chains 
(Alternative 10), was determined to have a neutral impact on habitat 
because it was not anticipated to reduce the footprint of the scallop 
fishery. Another alternative, that was ultimately adopted, was the 4-
inch (10.2-cm) ring requirement (Alternative 11), which was found to 
have a modest benefit to habitat through reductions in bycatch and 
epifaunal displacement. In the initial implementation period, it 
appeared that this alternative could increase area swept, as dredge 
efficiency decreases and previously recruitable scallops are no longer 
retained. This was expected to last approximately 1 year, at which 
point those same scallops would be recruitable and, as the average size 
of recruited scallops increases area swept is projected to decrease due 
to the increased efficiency of 4-inch (10.2-cm) rings in catching large 
scallops.

[[Page 8924]]

    The proposed action relies on the EFH benefits of all of the other 
management measures in the proposed action, along with the 
establishment of portions of the current groundfish closed areas as EFH 
Closed Areas. This would preserve within the Scallop FMP the habitat 
benefits currently realized as a result of the NE Multispecies FMP 
provision that prohibits the use of scallop gear within those closed 
areas. The establishment of these closures as EFH measures would 
prohibit the use of scallop gear in vulnerable EFH areas containing 
various benthic habitat types. This is the only habitat closure 
alternative that does not have significant revenue losses for other 
fisheries including those harvesting groundfish and monkfish, because 
most of this area has been closed to access by these fisheries since 
2001.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by Office of Management and Budget (OMB) 
under the Paperwork Reduction Act (PRA). These requirements have been 
submitted to OMB for approval. Public reporting burden for these 
collections of information are estimated to average, as follows:
    1. Broken trip adjustment, OMB 0648-0416 (0.27 hr per 
response);
    2. One-to-one trip exchange, OMB 0648-0416 (0.083 hr per 
response);
    3. Open area trip declaration for observer deployment, OMB 
0648-0416 (0.033 hr per response); and
    4. Cooperative research participant enrollment form, OMB 
0648-0416 (0.02 hr per response).
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS and 
to OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 18, 2004.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR Part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec.  648.10, paragraph (b)(1) introductory text is revised, 
and paragraph (b)(3) is added to read as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) Unless otherwise authorized or required by the Regional 
Administrator under paragraph (d) of this section, a scallop vessel 
issued a Full-time or Part-time limited access scallop permit; or a 
scallop vessel issued an Occasional limited access permit when fishing 
under the Sea Scallop Area Access Program specified under Sec.  648.60; 
or a scallop vessel fishing under the small dredge program specified in 
Sec.  648.51(e); or a vessel issued a limited access multispecies, 
monkfish, Occasional scallop, or Combination permit whose owner elects 
to provide the notifications required by this paragraph using a VMS, 
must have installed on board an operational VMS unit that meets the 
minimum performance criteria specified in Sec.  648.9(b), or as 
modified pursuant to Sec.  648.9(a). The owner of such a vessel must 
provide documentation to the Regional Administrator at the time of 
application for a limited access permit that the vessel has an 
operational VMS unit installed on board that meets those criteria. If a 
vessel has already been issued a limited access permit without the 
owner providing such documentation, the Regional Administrator shall 
allow at least 30 days for the vessel to install an operational VMS 
unit that meets the criteria and for the owner to provide documentation 
of such installation to the Regional Administrator. A vessel that is 
required to, or whose owner has elected to, use a VMS unit is subject 
to the following requirements and presumptions:
* * * * *
    (3) Atlantic Sea Scallop Vessel VMS Notification Requirements. To 
facilitate the deployment of at-sea observers, all sea scallop vessels 
issued limited access permits are required to comply with the 
additional VMS notification requirements specified in Sec.  
648.60(c)(2)(ii), except that scallop vessels issued Occasional scallop 
permits and not participating in the Area Access Program specified in 
Sec.  648.60 may provide the specified information to the Regional 
Administrator by calling the Regional Administrator.
    3. In Sec.  648.14, paragraphs (a)(56), (a)(57), (a)(61), (a)(97), 
(a)(110), (a)(111), (h), and (i) are revised to read as follows:


Sec.  648.14  Prohibitions.

    (a)* * *
    (56) Possess, or land per trip, scallops in excess of 40 lb (18.14 
kg) of shucked, or 5 bu (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 Category scallop permit;
    (ii) The scallops were harvested by a vessel that has been issued 
and carries on board a limited access scallop permit and is fishing 
under the scallop DAS program as specified in Sec.  648.53;
    (iii) The scallops were harvested by a vessel that has not been 
issued a scallop permit and fishes for scallops exclusively in state 
waters; or
    (iv) The scallops were harvested by a vessel that has been issued 
and carries on board a limited access or General Category scallop 
permit and the vessel is fishing under the provisions of the state 
waters exemption program specified in Sec.  648.54.
    (57) Fish for, possess or land per trip, scallops in excess of 400 
lb (181.44 kg) or 50 bu (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 and the vessel is 
fishing under the scallop DAS program;
    (ii) The scallops were harvested by a vessel that has not been 
issued a scallop permit and fishes for scallops exclusively in state 
waters; or
    (iii) The scallops were harvested by a vessel that has been issued 
and carries on board a limited access or General Category scallop 
permit and the vessel is fishing under the provisions of the

[[Page 8925]]

state waters exemption program specified in Sec.  648.54.
* * * * *
    (61) Sell, barter or trade, or otherwise transfer, or attempt to 
sell, barter or trade, or otherwise transfer, for a commercial purpose, 
any scallops from a trip whose catch is 40 lb (18.14 kg) of shucked 
scallops or less, or 5 bu (176.2 L) of in-shell scallops, unless the 
vessel has been issued a valid general or limited access scallop 
permit, or the scallops were harvested by a vessel that has not been 
issued a scallop permit and fishes for scallops exclusively in state 
waters.
* * * * *
    (97) Fail to comply with any of the provisions specified in Sec.  
648.56.
* * * * *
    (110) Fish for, possess, or land sea scallops in or from the areas 
specified in Sec. Sec.  648.58 and 648.61.
    (111) Transit or be in the areas described in Sec. Sec.  648.58 and 
648.61 in possession of scallops, except when all fishing gear is 
unavailable for immediate use as defined in Sec.  648.23(b), unless 
there is a compelling safety reason to be in such areas.
* * * * *
    (h) In addition to the general prohibitions specified in Sec.  
600.725 of this chapter and in paragraphs (a) and (g) of this section, 
it is unlawful for any person owning or operating a vessel issued a 
limited access scallop permit under Sec.  648.4(a)(2) to do any of the 
following:
    (1) Possess, or land per trip, more than 40 lb (18.4 kg) of 
shucked, or 5 bu (176.2 L) of in-shell scallops after using up the 
vessel's annual DAS allocation or when not participating under the DAS 
program pursuant to Sec.  648.10, unless exempted from DAS allocations 
as provided in Sec.  648.54.
    (2) Fail to have an approved, operational, and functioning VMS unit 
that meets the specifications of Sec.  648.9 on board the vessel at all 
times, unless the vessel is not subject to the VMS requirements 
specified in Sec.  648.10.
    (3) If the vessel is not subject to VMS requirements specified in 
Sec.  648.10(a), fail to comply with the requirements of the call-in 
system specified in Sec.  648.10(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.  648.4(a)(2)(i)(H).
    (6) Fish for, possess, or land 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.  
648.4(a)(2)(i)(E) or (F).
    (7) Fish for, possess, or land scallops with or from a vessel that 
has had the length, GRT, or NT of such vessel or its replacement 
increased or upgraded in excess of limitations specified in Sec.  
648.4(a)(2)(i)(E) or (F).
    (8) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2 
l) of in-shell scallops, or participate in the DAS allocation program, 
while in the possession of trawl nets that have a maximum sweep 
exceeding 144 ft (43.9 m), as measured by the total length of the 
footrope that is directly attached to the webbing of the net, except as 
specified in Sec.  648.51(a)(1).
    (9) Fish under the DAS allocation program with, or have available 
for immediate use, trawl nets of mesh smaller than the minimum size 
specified in Sec.  648.51(a)(2).
    (10) Fish under the DAS allocation program with trawl nets that use 
chafing gear or other means or devices that do not meet the 
requirements of Sec.  648.51(a)(3).
    (11) Possess or use dredge gear that does not comply with any of 
the provisions and specifications specified in Sec.  648.51(a) or (b).
    (12) Participate in the DAS allocation program with more than the 
number of persons specified in Sec.  648.51(c), including the operator, 
on board when the vessel is not docked or moored in port, unless 
otherwise authorized by the Regional Administrator.
    (13) Fish under the small dredge program specified in Sec.  
648.51(e), with, or while in possession of, a dredge that exceeds 10.5 
ft (3.2 m) in overall width, as measured at the widest point in the 
bail of the dredge.
    (14) Fish under the small dredge program as specified in Sec.  
648.51(e) with more than five persons, including the operator, aboard 
the vessel, unless otherwise authorized by the Regional Administrator.
    (15) Have a shucking or sorting machine on board a vessel that 
shucks scallops at sea while fishing under the DAS allocation program, 
unless otherwise authorized by the Regional Administrator.
    (16) Refuse or fail to carry an observer if requested to do so by 
the Regional Administrator.
    (17) Fail to provide an observer with required food, 
accommodations, access, and assistance, as specified in Sec.  648.11.
    (18) Fail to comply with any requirement for declaring in and out 
of the DAS allocation program as specified in Sec.  648.10.
    (19) Fail to comply with any requirement for participating in the 
DAS Exemption Program as specified in Sec.  648.54.
    (20) Fish with, possess on board, or land scallops while in 
possession of trawl nets, when fishing for scallops under the DAS 
allocation program, unless exempted as provided for in Sec.  648.51(f).
    (21) Fail to comply with the restriction on twine top described in 
Sec.  648.51(b)(4)(iv).
    (22) Fail to comply with any of the provisions and specifications 
of Sec.  648.60.
    (23) Possess or land more than 50 bu (17.62 hl) of in-shell 
scallops, as specified in Sec.  648.52(d), once inside the VMS 
Demarcation Line by a vessel that, at any time during the trip, fished 
in or transited any area south of 4220' N. lat., except 
as provided in Sec.  648.54.
    (i) In addition to the general prohibitions specified in Sec.  
600.725 of this chapter and in paragraphs (a), (f), and (g) of this 
section, it is unlawful for any person owning or operating a vessel 
issued a general scallop permit to do any of the following:
    (1) Fish for, possess, or land per trip, more than 400 lb (181.44 
kg) of shucked or 50 bu (17.62 hl) of in-shell scallops.
    (2) Fish for, possess, or land scallops on more than one trip per 
calendar day.
    (3) Possess or use dredge gear that does not comply with any of the 
provisions or specification specified in Sec.  648.51(a) or (b).
* * * * *
    4. Subpart D is revised to read as follows:

Subpart D--Management Measures for the Atlantic Sea Scallop Fishery

Sec.
648.50 Shell-height standard.
638.51 Gear and crew restrictions.
648.52 Possession and landing limits.
648.53 DAS allocation.
648.54 State waters exemption.
648.55 Framework adjustments to management measures.
648.56 Scallop research.
648.57 Sea scallop area rotation program.
648.58 Rotational closed areas.
648.59 Sea scallop access areas.
648.60 Sea scallop area access program requirements.
648.61 EFH closed areas.


Sec.  648.50  Shell-height standard.

    (a) Minimum shell height. The minimum shell height for in-shell 
scallops that may be landed, or possessed at or after landing, is 3.5 
inches (8.9 cm). Shell height is a straight line measurement from the 
hinge to the part of the shell that is farthest away from the hinge.

[[Page 8926]]

    (b) Compliance and sampling. Any time at landing or after, 
including when the scallop are received or possessed by a dealer or 
person acting in the capacity of a dealer, compliance with the minimum 
shell-height standard will be determined as follows: Samples of 40 
scallops each will be taken at random from the total amount of scallops 
in possession. The person in possession of the scallops may request 
that as many as 10 sample groups (400 scallops) be examined. A sample 
group fails to comply with the standard if more than 10 percent of all 
scallops sampled are less than the shell height specified. The total 
amount of scallops in possession will be deemed in violation of this 
subpart and subject to forfeiture, if the sample group fails to comply 
with the minimum standard.


Sec.  648.51  Gear and crew restrictions.

    (a) Trawl vessel gear restrictions. Trawl vessels issued a limited 
access scallop permit under Sec.  648.4(a)(2) while fishing under or 
subject to the DAS allocation program for scallops and authorized to 
fish with or possess on board trawl nets pursuant to Sec.  648.51(f), 
any trawl vessels in possession of more than 40 lb (18.14 kg) of 
shucked, or 5 bu (176.2 L) of in-shell scallops in or from the EEZ, and 
any trawl vessels fishing for scallops in the EEZ, must comply with the 
following:
    (1) Maximum sweep. The trawl sweep of nets shall not exceed 144 ft 
(43.9 m), as measured by the total length of the footrope that is 
directly attached to the webbing, unless the net is stowed and not 
available for immediate use, as specified in Sec.  648.23.
    (2) Net requirements--(i) Minimum mesh size. The mesh size for any 
scallop trawl net in all areas shall not be smaller than 5.5 inches 
(13.97 cm).
    (ii) Measurement of mesh size. Mesh size is measured by using a 
wedge-shaped gauge having a taper of 2 cm (0.79 inches) in 8 cm (3.15 
inches) and a thickness of 2.3 mm (0.09 inches), inserted into the 
meshes under a pressure or pull of 5 kg (11.02 lb). The mesh size is 
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 (a)(3), 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) A fishing vessel may not use or possess a net capable of 
catching scallops in which the bars entering or exiting the knots twist 
around each other.
    (b) Dredge vessel gear restrictions. All vessels issued limited 
access and General Category scallop permits and fishing with scallop 
dredges, with the exception of hydraulic clam dredges and mahogany 
quahog dredges in possession of 400 lb (181.44 kg), or less, of 
scallops, must comply with the following restrictions, unless otherwise 
specified:
    (1) Maximum dredge width. The combined dredge width in use by or in 
possession on board such vessels shall not exceed 31 ft (9.4 m) 
measured at the widest point in the bail of the dredge, except as 
provided under paragraph (e) of this section. However, component parts 
may be on board the vessel such that they do not conform with the 
definition of ``dredge or dredge gear'' in Sec.  648.2, i.e., the metal 
ring bag and the mouth frame, or bail, of the dredge are not attached, 
and such that no more than one complete spare dredge could be made from 
these component's parts.
    (2) Minimum mesh size. The mesh size of a net, net material, or any 
other material on the top of a scallop dredge (twine top) possessed or 
used by vessels fishing with scallop dredge gear shall not be smaller 
than 10-inch (25.4-cm) square or diamond mesh.
    (3) Minimum ring size. (i) Prior to [6 months after the date of 
publication of the final rule in the FEDERAL REGISTER], the ring size 
used in a scallop dredge possessed or used by scallop vessels shall not 
be smaller than 3.5 inches (8.9 cm), unless otherwise required under 
the Sea Scallop Area Access Program specified in Sec.  648.60(a)(6).
    (ii) Beginning [6 months after the date of publication of the final 
rule in the FEDERAL REGISTER], the ring size used in a scallop dredge 
possessed or used by scallop vessels shall not be smaller than 4 inches 
(10.2 cm).
    (iii) Ring size is 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 all parts of the dredge bag, except the dredge 
bottom. No more than triple linking shall be used in or on the dredge 
bottom portion and the diamonds. Damaged links that are connected to 
only one ring, i.e., ``hangers,'' are allowed, unless they occur 
between two links that both couple the same two rings. Dredge rings may 
not be attached via links to more than four adjacent rings. Thus, 
dredge rings must be rigged in a configuration such that, when a series 
of adjacent rings are held horizontally, the neighboring rings form a 
pattern of horizontal rows and vertical columns. A copy of a diagram 
showing a schematic of a legal dredge ring pattern is available from 
the Regional Administrator upon request.
    (iii) Dredge or net obstructions. No material, device, net, dredge, 
ring, or link configuration or design shall be used if it results in 
obstructing the release of scallops that would have passed through a 
legal sized and configured net and dredge, as described in this part, 
that did not have in use any such material, device, net, dredge, ring 
link configuration or design.
    (iv) Twine top restrictions. In addition to the minimum twine top 
mesh size specified in paragraph (b)(2) of this section, vessels issued 
limited access scallop permits that are fishing for scallops under the 
DAS Program are also subject to the following restrictions:
    (A) If a vessel is rigged with more than one dredge, or if a vessel 
is rigged with only one dredge and such dredge is greater than 8 ft 
(2.4 m) in width, there must be at least seven rows of non-overlapping 
steel rings unobstructed by

[[Page 8927]]

netting or any other material between the terminus of the dredge (club 
stick) and the net material on the top of the dredge (twine top).
    (B) If a vessel is rigged with only one dredge, and such dredge is 
less than 8 ft (2.4 m) in width, there must be at least four rows of 
non-overlapping steel rings unobstructed by netting or any other 
material between the club stick and the twine top of the dredge. (A 
copy of a diagram showing a schematic of a legal dredge with twine top 
is available from the Regional Administrator upon request).
    (c) Crew restrictions. Limited access vessels participating in or 
subject to the scallop DAS allocation program may have no more than 
seven people aboard, including the operator, when not docked or moored 
in port, unless participating in the small dredge program as specified 
in paragraph (e) of this section, or otherwise authorized by the 
Regional Administrator.
    (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 lb (181.44 kg) of 
scallops, unless the vessel has not been issued a 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.
    (e) Small dredge program restrictions. Any vessel owner whose 
vessel is assigned to either the part-time or Occasional category may 
request, in the application for the vessel's annual permit, to be 
placed in one category higher. Vessel owners making such request may be 
placed in the appropriate higher 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.  648.53, or in possession of more than 
400 lb (181.44 kg) of shucked, or 50 bu (17.62 hl) of in-shell 
scallops:
    (1) The vessel must fish exclusively with one dredge no more than 
10.5 ft (3.2 m) in width.
    (2) The vessel may not use or have more than one dredge on board.
    (3) The vessel may have no more than five people, including the 
operator, on board.
    (f) Restrictions on use of trawl nets. (1) A vessel issued a 
limited access scallop permit fishing for scallops under the scallop 
DAS allocation program may not fish with, possess on board, or land 
scallops while in possession of, trawl nets unless such vessel has on 
board a valid letter of authorization or permit that endorses the 
vessel to fish for scallops with trawl nets.
    (2) Replacement vessels. A vessel that is replacing a vessel 
authorized to use trawl nets to fish for scallops under scallop DAS may 
also be authorized to use trawl nets to fish for scallops under scallop 
DAS if it meets the following criteria:
    (i) Has not fished for scallops with a scallop dredge after 
December 31, 1987; or
    (ii) Has fished for scallops with a scallop dredge on no more than 
10 trips from January 1, 1988, through December 31, 1994, has an engine 
horsepower no greater than 450.


Sec.  648.52  Possession and landing limits.

    (a) Owners or operators of vessels with a General Category scallop 
permit, unless exempted under the state waters exemption program 
described under Sec.  648.54, are prohibited from possessing or landing 
per trip more than 400 lb (181.44 kg) of shucked, or 50 bu (17.62 L) of 
in-shell scallops. Such vessels may not land scallops on more than one 
trip during any single calendar day, which is defined as the 24-hour 
period beginning at 0001 hours and ending at 2400 hours.
    (b) Owners or operators of vessels with a limited access scallop 
permit that have declared out of the DAS program as specified in Sec.  
648.10, or that have used up their DAS allocations, unless exempted 
under the state waters exemption program described under Sec.  648.54, 
and owners or operators of vessels without a scallop permit, except 
vessels fishing for scallops exclusively in state waters, are 
prohibited from fishing for, possessing or landing per trip, more than 
40 lb (18.14 kg) of shucked, or 5 bu (176.2 L) of in-shell scallops. 
Owners or operators of vessels specified in this paragraph (b) and not 
issued a scallop permit are prohibited from selling, bartering, or 
trading scallops harvested from Federal waters.
    (c) Owners or operators of vessels with a limited access scallop 
permit that have declared into the Sea Scallop Area Access Program as 
specified in Sec.  648.60 are prohibited from fishing for, possessing 
or landing per trip more than the sea scallop possession and landing 
limit specified in Sec.  648.60(a)(5).
    (d) Owners or operators of vessels issued limited access or General 
Category scallop permits fishing in or transiting the area south of 
4220' N. lat. at any time during a trip are prohibited 
from fishing for, possessing, or landing per trip more than 50 bu 
(17.62 hl) of in-shell scallops shoreward of the VMS Demarcation Line, 
unless fishing under the state waters exemption as specified under 
Sec.  648.54.


Sec.  648.53  DAS allocations.

    (a) Assignment to DAS categories. Subject to the vessel permit 
application requirements specified in Sec.  648.4, for each fishing 
year, each vessel issued a limited access scallop permit shall be 
assigned to the DAS category (full-time, part-time, or Occasional) it 
was assigned to in the preceding year, except as provided under the 
small dredge program specified in Sec.  648.51(e).
    (b) Open area DAS allocations. (1) Total DAS to be used in all 
areas other than those specified in Sec. Sec.  648.58 and 648.59 will 
be specified through the framework process as specified in Sec.  
648.55.
    (2) One percent of total DAS will be set aside to help defray the 
cost of observers, as specified in paragraph (h)(i) of this section. 
Two percent of total DAS will be set aside to pay for scallop related 
research, as outlined in paragraph (h)(ii) of this section.
    (3) Each vessel qualifying for one of the three DAS categories 
specified in the table in this paragraph (b)(3) (Full-time, Part-time, 
or Occasional) shall be allocated, for each fishing year, the maximum 
number of DAS it may participate in the limited access scallop fishery, 
according to its category, after deducting research and observer DAS 
set-asides from the total DAS allocation. A vessel whose owner/operator 
has declared it out of the scallop fishery, pursuant to the provisions 
of Sec.  648.10, or that 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 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) of in-shell 
scallops and complies with all other requirements of this part. The 
annual DAS allocations for each category of vessel for the fishing 
years indicated, after deducting DAS for observer and research DAS set-
asides, are as follows:

------------------------------------------------------------------------
                 DAS Category                     2004\1\        2005
------------------------------------------------------------------------
                  Full-time                              42          117
                  Part-time                              17           47
                  Occasional                              4           10
------------------------------------------------------------------------
\1\ Unless additional DAS are allocated as specified in paragraph (b)(4)
  of this section.

    (4) Additional 2004 DAS. Unless a final rule is published in the 
Federal Register by August 15, 2004, that implements a framework action 
allowing access by scallop vessels to portions of the Northeast 
multispecies closed areas specified in Sec.  648.81(a), (b), and (c), 
the DAS allocations for the 2004 fishing year, beginning on August 15,

[[Page 8928]]

2004, shall increase by the following amounts:

------------------------------------------------------------------------
                 DAS Category                       2004 DAS Increase
------------------------------------------------------------------------
                  Full-time                                          20
                  Part-time                                           8
                  Occasional                                          1
------------------------------------------------------------------------

    (c) Sea Scallop Access Area DAS allocations. Vessels fishing in a 
Sea Scallop Access Area specified in Sec.  648.59, under the Sea 
Scallop Area Access Program specified in Sec.  648.60, are allocated 
additional DAS to fish only within each Sea Scallop Access Area, as 
specified in Sec.  648.60(a)(3).
    (d) Adjustments in annual DAS allocations. Annual DAS allocations 
will be established for 2 fishing years through biennial framework 
adjustments as specified in Sec.  648.55. If a biennial framework 
action is not undertaken by the Council and enacted by NMFS, the 
allocations from the most recent fishing year will continue. The 
Council may adjust DAS allocations through a framework action at any 
time, if deemed necessary.
    (e) End-of-year carry-over for open area DAS. With the exception of 
vessels that held a Confirmation of Permit History as described in 
Sec.  648.4(a)(1)(i)(J) for the entire fishing year preceding the 
carry-over year, limited access vessels that have unused open area DAS 
on the last day of February of any year may carry over a maximum of 10 
DAS into the next year. DAS carried over into the next fishing year may 
only be used in open areas. DAS sanctioned vessels will be credited 
with unused DAS based on their unused DAS allocation, minus total DAS 
sanctioned.
    (f) Accrual of DAS. Unless participating in the Area Access Program 
described in Sec.  648.60, DAS shall accrue to the nearest minute.
    (g) Good Samaritan credit. Limited access vessels fishing under the 
DAS program and that spend time at sea assisting in a USCG search and 
rescue operation or assisting the USCG in towing a disabled vessel, and 
that can document the occurrence through the USCG, will not accrue DAS 
for the time documented.
    (h) DAS set-asides--(1) DAS set-aside for observer coverage. As 
specified in paragraph (b)(2) of this section, to help defray the cost 
of carrying an observer, 1 percent of the total DAS allocations will be 
set aside from the total DAS allocation and reallocated to vessels that 
are assigned to take an at-sea observer on a trip other than an Area 
Access Program trip. The DAS set-aside for observer coverage for the 
2004 and 2005 fishing years are 117 DAS and 304 DAS, respectively. 
Vessels carrying an observer will be allocated additional DAS for use 
in the applicable fishing year on a first-come, first-served basis. 
Allocation of additional DAS will be made based on the length of the 
trip and by using a DAS multiplier of 0.14. For example, a vessel 
taking a 10-DAS trip with an observer will be allocated an additional 
1.4 DAS at the end of its trip. Likewise, a vessel taking a 15-DAS trip 
with an observer will be allocated an additional 2.1 DAS at the end of 
its trip. When the DAS set-aside for observer coverage has been 
utilized, vessel owners will be notified that no additional DAS remain 
available to offset the cost of carrying observers. The obligation to 
carry an observer will not be waived due to the absence of additional 
DAS allocation.
    (2) DAS set-aside for research. As specified in paragraph (b)(2) of 
this section, to help support the activities of vessels participating 
in certain research, as specified in Sec.  648.56; the DAS set-aside 
for research for the 2004 and 2005 fishing years are 233 DAS and 607 
DAS, respectively. Vessels participating in approved research will be 
authorized to use additional DAS in the applicable fishing year. 
Notification of allocated additional DAS will be provided through a 
letter of acknowledgement, letter of authorization, or Exempted Fishing 
Permit issued by NMFS, as appropriate.


Sec.  648.54  State waters exemption.

    (a) Limited access scallop vessel exemption. (1) DAS requirements. 
Any vessel issued a limited access scallop permit is exempt from the 
DAS requirements specified in Sec.  648.53(b) while fishing exclusively 
landward of the outer boundary of a state's waters, provided the vessel 
complies with paragraphs (d) through (g) of this section.
    (2) Gear and possession limit restrictions. Any vessel issued a 
limited access scallop permit that is exempt from the DAS requirements 
of Sec.  648.53(b) under paragraph (a) of this section is also exempt 
from the gear restrictions specified in Sec.  648.51(a), (b), (e)(1) 
and (e)(2), and the possession restrictions specified in Sec.  
648.52(a), while fishing exclusively landward of the outer boundary of 
the waters of a state that has been deemed by the Regional 
Administrator under paragraph (c) of this section to have a scallop 
fishery and a scallop conservation program that does not jeopardize the 
fishing mortality/effort reduction objectives of the Scallop FMP, 
provided the vessel complies with paragraphs (d) through (g) of this 
section.
    (b) General Category scallop vessel gear and possession limit 
restrictions. Any vessel issued a general scallop permit is exempt from 
the gear restrictions specified in Sec.  648.51(a), (b), (e)(1) and 
(e)(2) while fishing exclusively landward of the outer boundary of the 
waters of a state that has been determined by the Regional 
Administrator under paragraph (b)(3) of this section to have a scallop 
fishery and a scallop conservation program that does not jeopardize the 
fishing mortality/effort reduction objectives of the Scallop FMP, 
provided the vessel complies with paragraphs (d) through (g) of this 
section.
    (c) State eligibility for exemption. (1) A state may be eligible 
for the state waters exemption if it has a scallop fishery and a 
scallop conservation program that does not jeopardize the fishing 
mortality/effort reduction objectives of the Scallop FMP.
    (2) The Regional Administrator shall determine which states have a 
scallop fishery and which of those states have a scallop conservation 
program that does not jeopardize the fishing mortality/effort reduction 
objectives of the Scallop FMP.
    (3) Maine, New Hampshire, and Massachusetts have been determined by 
the Regional Administrator to have scallop fisheries and scallop 
conservation programs that do not jeopardize the fishing mortality/
effort reduction objectives of the Scallop FMP. These states must 
immediately notify the Regional Administrator of any changes in their 
respective scallop conservation program. The Regional Administrator 
will review these changes and, if a determination is made that the 
state's conservation program jeopardizes the fishing mortality/effort 
reduction objectives of the Scallop FMP, or that the state no longer 
has a scallop fishery, the Regional Administrator shall publish a rule 
in the Federal Register, in accordance with the Administrative 
Procedure Act, amending this paragraph (c)(3) to eliminate the 
exemption for that state. The Regional Administrator may determine that 
other states have scallop fisheries and scallop conservation programs 
that do not jeopardize the fishing mortality/effort reduction 
objectives of the Scallop FMP. In such case, the Regional Administrator 
shall publish a rule in the Federal Register, in accordance with the 
Administrative Procedure Act, amending this paragraph (c)(3) to provide 
the exemption for such states.
    (d) Notification requirements. Vessels fishing under the exemptions 
provided by paragraph(s) (a)(1) and/or (a)(2) of this section must 
notify the Regional

[[Page 8929]]

Administrator in accordance with the provisions of Sec.  648.10(e).
    (e) Restriction on fishing in the EEZ. A vessel fishing under a 
state waters exemption may not fish in the EEZ during the time in which 
it is fishing under the state waters exemption, as declared under the 
notification requirements of this section.
    (f) Duration of exemption. An exemption expires upon a change in 
the vessel's name or ownership, or upon notification by the 
participating vessel's owner.
    (g) Applicability of other provisions of this part. A vessel 
fishing under the exemptions provided by paragraphs (a) and/or (b) of 
this section remains subject to all other requirements of this part.


Sec.  648.55  Framework adjustments to management measures.

    (a) Biennially, or upon a request from the Council, the Regional 
Administrator will provide the Council with information on the status 
of the scallop resource. Within 60 days of receipt of that information, 
the Council PDT shall assess the condition of the scallop resource to 
determine the adequacy of the management measures to achieve the stock-
rebuilding objectives. Based on this information, the PDT will prepare 
a Stock Assessment and Fishery Evaluation (SAFE) Report that provides 
the information and analysis needed to evaluate potential management 
adjustments. Based on this information and analysis, the Council will 
initiate a framework adjustment to establish or revise DAS allocations, 
rotational area management programs, TACs, scallop possession limits, 
or other measures to achieve FMP objectives and limit fishing 
mortality. The Council's development of an area rotation program shall 
take into account at least the following factors: General rotation 
policy; boundaries and distribution of rotational closures; number of 
closures; minimum closure size; maximum closure extent; enforceability 
of rotational closed and re-opened areas; monitoring through resource 
surveys; and re-opening criteria.
    (b) The preparation of the SAFE Report shall begin on or about June 
1, 2005, for fishing year 2006, and on or about June 1 of the year 
preceding the fishing year in which measures will be adjusted. If the 
biennial framework action is not undertaken by the Council, or if a 
final rule resulting from a biennial framework is not published in the 
Federal Register with an effective date of March 1, in accordance with 
the Administrative Procedure Act, the measures from the most recent 
fishing year will continue, beginning March 1 of each fishing year.
    (c) In the SAFE Report, the Scallop PDT shall review and evaluate 
the existing management measures to determine if the measures are 
achieving the FMP objectives and OY from the scallop resource as a 
whole. In doing so, the PDT shall consider the effects of any closed 
areas, either temporary, indefinite, or permanent, on the ability of 
the FMP to achieve OY and prevent overfishing on a continuing basis, as 
required by National Standard 1 of the Magnuson-Stevens Act. If the 
existing management measures are deemed insufficient to achieve FMP 
objectives and/or are not expected to achieve OY and prevent 
overfishing on a continuing basis, the PDT shall recommend to the 
Council appropriate measures and alternatives that will meet FMP 
objectives, achieve OY, and prevent overfishing on a continuing basis. 
When making the status determination in the SAFE Report, the PDT shall 
calculate the stock biomass and fishing mortality for the entire unit 
stock and consider all sources of scallop mortality to compare with the 
minimum biomass and maximum fishing mortality thresholds.
    (d) In order to assure that OY is achieved and overfishing is 
prevented, on a continuing basis, the PDT shall recommend management 
measures necessary to achieve optimum yield-per-recruit from the 
exploitable components of the resource (e.g., those components 
available for harvest in the upcoming fishing years), taking into 
account at least the following factors:
    (1) Differential fishing mortality rates for the various spatial 
components of the resource;
    (2) Overall yields from the portions of the scallop resource 
available to the fishery;
    (3) Outlook for phasing in and out closed or controlled access 
areas under the Area Rotation Program; and
    (4) Potential adverse impacts on EFH.
    (e) 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. Such adjustments may include proactive measures to 
address protected species concerns. 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 include measures to prevent 
overfishing of the available biomass of scallops and ensure that OY is 
achieved on a continuing basis, and must come from one or more of the 
following categories:
    (1) DAS changes.
    (2) Shell height.
    (3) Offloading window reinstatement.
    (4) Effort monitoring.
    (5) Data reporting.
    (6) Trip limits.
    (7) Gear restrictions.
    (8) Permitting restrictions.
    (9) Crew limits.
    (10) Small mesh line.
    (11) Onboard observers.
    (12) Modifications to the overfishing definition.
    (13) VMS Demarcation Line for DAS monitoring.
    (14) DAS allocations by gear type.
    (15) Temporary leasing of scallop DAS requiring full public 
hearings.
    (16) Scallop size restrictions, except a minimum size or weight of 
individual scallop meats in the catch.
    (17) Aquaculture enhancement measures and closures.
    (18) Closed areas to increase the size of scallops caught.
    (19) Modifications to the opening dates of closed areas.
    (20) Size and configuration of rotation management areas.
    (21) Controlled access seasons to minimize bycatch and maximize 
yield.
    (22) Area-specific DAS or trip allocations.
    (23) TAC specifications and seasons following re-opening.
    (24) Limits on number of area closures.
    (25) TAC or DAS set-asides for funding research.
    (26) Priorities for scallop-related research that is funded by a 
TAC or DAS set-aside.
    (27) Finfish TACs for controlled access areas.
    (28) Finfish possession limits.
    (29) Sea sampling frequency.
    (30) Area-specific gear limits and specifications.
    (31) Any other management measures currently included in the FMP.
    (f) The Council must select an alternative that will achieve OY and 
prevent overfishing on a continuing basis, and which is consistent with 
other applicable law. If the Council fails to act or does not recommend 
an approvable alternative, the Regional Administrator may select one of 
the alternatives developed and recommended by the PDT, which would 
achieve OY and prevent overfishing on a continuing basis and is 
consistent with applicable law, and shall

[[Page 8930]]

implement such alternative pursuant to the Administrative Procedure 
Act.
    (g) The Council may make recommendations to the Regional 
Administrator to implement measures in accordance with the procedures 
described in this subpart to address gear conflict as defined under 
Sec.  600.10 of this chapter. In developing such recommendation, the 
Council shall define gear management areas, each not to exceed 2,700 
mi2 (5,000 km2), and seek industry comments by referring the matter to 
its standing industry advisory committee for gear conflict, or to any 
ad hoc industry advisory committee that may be formed. The standing 
industry advisory committee or ad hoc committee on gear conflict shall 
hold public meetings seeking comments from affected fishers and develop 
findings and recommendations on addressing the gear conflict. After 
receiving the industry advisory committee findings and recommendations, 
or at any other time, the Council shall determine whether it is 
necessary to adjust or add management measures to address gear 
conflicts and which FMPs must be modified to address such conflicts. If 
the Council determines that adjustments or additional measures are 
necessary, it shall develop and analyze appropriate management actions 
for the relevant FMPs over the span of at least two Council meetings. 
The Council shall provide the public with advance notice of the 
availability of the recommendation, the appropriate justification and 
economic and biological analyses, and opportunity to comment on them 
prior to and at the second or final Council meeting before submission 
to the Regional Administrator. The Council's recommendation on 
adjustments or additions to management measures for gear conflicts must 
come from one or more of the following categories:
    (1) Monitoring of a radio channel by fishing vessels.
    (2) Fixed gear location reporting and plotting requirements.
    (3) Standards of operation when gear conflict occurs.
    (4) Fixed gear marking and setting practices.
    (5) Gear restrictions for specific areas (including time and area 
closures).
    (6) VMS.
    (7) Restrictions on the maximum number of fishing vessels or amount 
of gear.
    (8) Special permitting conditions.
    (h) The measures shall be evaluated and approved by the relevant 
committees with oversight authority for the affected FMPs. If there is 
disagreement between committees, the Council may return the proposed 
framework adjustment to the standing or ad hoc gear conflict committee 
for further review and discussion.
    (i) Unless otherwise specified, after developing a framework 
adjustment and receiving public testimony, the Council shall make a 
recommendation to the Regional Administrator. The Council's 
recommendation must include supporting rationale and, if management 
measures are recommended, an analysis of impacts and a recommendation 
to the Regional Administrator on whether to publish the framework 
adjustment as a final rule. If the Council recommends that the 
framework adjustment 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, 
consistent with the Administrative Procedure Act, in the development of 
the Council's recommended management measures.
    (3) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts.
    (4) Whether there will be a continuing evaluation of management 
measures adopted following their promulgation as a final rule.
    (j) 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 Administrator approves the Council's recommended 
management measures, the Secretary may, for good cause found pursuant 
to the Administrative Procedure Act, waive the requirement for a 
proposed rule and opportunity for public comment in the Federal 
Register. The Secretary, in doing so, shall publish only the final 
rule. Submission of a recommendation by the Council for a final rule 
does not effect the Secretary's responsibility to comply with the 
Administrative Procedure Act; or
    (2) The Regional Administrator approves 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 Administrator concurs with the Council 
recommendation, the action will be published as a final rule in the 
Federal Register; or
    (3) The Regional Administrator does not concur, the Council will be 
notified, in writing, of the reasons for the non-concurrence.
    (k) Nothing in this section is meant to derogate from the authority 
of the Secretary to take emergency action under section 305(c) of the 
Magnuson-Stevens Act.


Sec.  648.56  Scallop research

    (a) Annually, the Council and NMFS shall prepare and issue a 
Request for Proposals (RFP) that identifies research priorities for 
projects to be conducted by vessels using research set-aside as 
specified in Sec. Sec.  648.53(b)(2) and 648.60(e).
    (b) Proposals submitted in response to the RFP must include the 
following information, as well as any other specific information 
required within the RFP: A project summary that includes the project 
goals and objectives; the relationship of the proposed research to 
scallop research priorities and/or management needs; project design; 
participants other than the applicant, funding needs, breakdown of 
costs, and the vessel(s) for which authorization is requested to 
conduct research activities.
    (c) NMFS will make the final determination as to what proposals are 
approved and which vessels are authorized to take scallops in excess of 
possession limits, utilize DAS set-aside for research, or take 
additional trips into Access Areas. NMFS will provide authorization of 
such activities to specific vessels by letter of acknowledgement, 
letter of authorization, or Exempted Fishing Permit issued by the 
Regional Administrator, which must be kept on board the vessel.
    (d) Upon completion of scallop research projects approved under 
this part, researchers must provide the Council and NMFS with a report 
of research findings, which must include: A detailed description of 
methods of data collection and analysis; a discussion of results and 
any relevant conclusions presented in a format that is understandable 
to a non-technical audience; and a detailed final accounting of all 
funds used to conduct the sea scallop research.


Sec.  648.57  Sea scallop area rotation program.

    (a) An area rotation program is established for the scallop 
fishery, which may include areas closed to

[[Page 8931]]

scallop fishing defined in Sec.  648.58, and/or sea scallop access 
areas defined in Sec.  648.59, subject to the Sea Scallop Area Access 
program requirements specified in Sec.  648.60. Areas not defined as 
closed areas or access areas are open to scallop fishing as governed by 
the other management measures and restrictions imposed in this part. 
The Council's development of area rotation programs is subject to the 
framework adjustment process specified in Sec.  648.55, including the 
Area Rotation Program factors included in Sec.  648.55(a).
    (b) [Reserved]


Sec.  648.58  Rotational closed areas.

    (a) Mid-Atlantic (Elephant Trunk) Closed Area. Through February 28, 
2007, no vessel may fish for scallops in, or possess or land scallops 
from, the area known as the Elephant Trunk Closed Area. No vessel may 
possess scallops in the Elephant Trunk Closed Area, unless such vessel 
is only transiting the area as provided in paragraph (b) of this 
section. The Elephant Trunk Closed Area is defined by straight lines 
connecting the following points in the order stated (copies of a chart 
depicting this area are available from the Regional Administrator upon 
request):

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  ET1                           3820'W. (the U.S.-Canada Maritime Boundary)
                                    h22'N.
                  CAIIE2       4134.8'W. (on the U.S./Canada Maritime Boundary)
                                    h30'N.
                  CAIIE3       4120'W.
                                    h30'N.
                  CAIIE1       4220'W. (the U.S.-Canada Maritime Boundary)
                                    h22'N.
----------------------------------------------------------------------------------------------------------------

    (c) Nantucket Lightship Closed Area EFH Closure. No vessel may fish 
for scallops in, or possess or land scallops from, the area known as 
the Nantucket Lightship Closed Area EFH Closure. No vessel may possess 
scallops in the Nantucket Lightship Closed Area EFH Closure, unless 
such vessel is only transiting the area as provided in paragraph (d) of 
this section. The Nantucket Lightship Closed Area EFH Closure is 
defined by straight lines connecting the following points in the order 
stated (copies of a chart depicting this area are available from the 
Regional Administrator upon request):

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  NLSE1                         40