[Federal Register Volume 69, Number 42 (Wednesday, March 3, 2004)]
[Rules and Regulations]
[Pages 9970-9975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4677]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.040130031-4070-02; I.D. 012704D]
RIN 0648-AR92


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Emergency Rule to Maintain an Area Access Program for the 
Atlantic Sea Scallop Fishery in Hudson Canyon

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

ACTION:  Final emergency rule.

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SUMMARY:  This emergency rule implements, as of March 1, 2004, an area 
access program for the Hudson Canyon Area. The area access program 
continues the controlled access program that has been implemented 
through Frameworks 14 and 15 to the Atlantic Sea Scallop Fishery 
Management Plan (FMP) with modifications similar to the measures 
proposed in Amendment 10 to the FMP. The measures in this emergency 
action will be in place for 180 days and may be extended, pursuant to 
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action is necessary to avoid localized overfishing 
of sea scallops in the Hudson Canyon Area, and will help ensure that 
fishing mortality rates are more consistent with the status of the 
scallop resource while not exceeding the target thresholds established 
in the FMP.

DATES: Effective February 27, 2004, through August 30, 2004. This rule 
will be implemented March 1, 2004, through August 30, 2004.

ADDRESSES:  Copies of the Environmental Assessment (EA) and the 
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/
IRFA) and any other documents supporting this action are available from 
the Regional Office at the address specified here, and are accessible 
via the Internet at http://www.nero.nmfs.gov/ro/doc/nero.html.

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

SUPPLEMENTARY INFORMATION: The regulations for the sea scallop fishery 
for the 2003 fishing year (March 1, 2003 - February 29, 2004) include, 
among other measures, an area access program to govern the fishery 
within the Hudson Canyon Sea Scallop Access Area (Hudson Canyon Area). 
Details about the development of this program were provided in the 
proposed rule for this action, and are not repeated here. The program 
establishes an overall total allowable catch (TAC) for the area, limits 
the number of trips that can be taken into the area, establishes a 
scallop trip limit, and establishes a minimum number of days-at-sea 
(DAS) that will be deducted for each access trip from the vessel's DAS 
allocation. The New England Fishery Management Council (Council) 
adopted Amendment 10 to the FMP in September 2003, and submitted it for 
review by the Secretary of Commerce (Secretary) on December 19, 2003. 
Among the measures proposed in Amendment 10 is a continuation of an 
area access program for the Hudson Canyon Area, with some revisions to 
the program. Amendment 10 has been made available to the public for 
comment through March 15, 2004, with the Notice

[[Page 9971]]

of Availability published on January 16, 2004 (69 FR 2561).
    The Council's December 2003 submission of Amendment 10 means that 
it will not be possible to implement the action, if approved, by the 
start of the fishing year on March 1, 2004. Thus, the existing Hudson 
Canyon area access program will expire at the end of the fishing year 
(February 29, 2004) and, on March 1, 2004, the Hudson Canyon Area will 
open to fishing without an area access program. Absent another 
regulatory action, the DAS allocations currently specified in the FMP 
will go into effect for limited access scallop vessels on March 1, 
2004: 34, 14, and 3 DAS for full-time, part-time, and occasional 
vessels, respectively. Amendment 10 would, if approved, allocate an 
additional eight, three, and one DAS for use by full-time, part-time, 
and occasional vessels, respectively, in areas other than those under 
area management. Amendment 10 would also, if approved, specifically 
allocate 48, 12, and 12 DAS for use by full-time, part-time, and 
occasional vessels, respectively, within the Hudson Canyon Area, under 
an area access program.
    Without this emergency action, the fishing that occurs in the 
Hudson Canyon Area between March 1 and the implementation of Amendment 
10 (if approved) would inflict fishing mortality on the resource in 
addition to that proposed for the Hudson Canyon Access Area in 
Amendment 10. The additive impacts of this fishing could result in 
localized overfishing in the Hudson Canyon Area. Should Amendment 10 be 
disapproved, this final emergency action will allow controlled harvests 
from the Hudson Canyon Area, consistent with the status of the Hudson 
Canyon Area resource as analyzed in Amendment 10. This action will 
allow the resource within the Hudson Canyon Area to be harvested at 
appropriate levels, and will allow limited access vessels to fish at a 
level nearer to the mortality objectives for the stock.
    Without continued controls on scallop fishing in the Hudson Canyon 
Area, NMFS is concerned about the impact of fishing on the scallop 
resource in this area, even with the reduced allocation of DAS. The 
area was initially closed to protect concentrations of juvenile 
scallops, which have since grown to harvestable size. For the past 3 
fishing years, fishing has been allowed, but with controls. Amendment 
10 proposes to maintain controls on effort and catch that would prevent 
the areas from being overfished. A lapse in controls may result in high 
fishing effort and mortality, which may be detrimental to the health of 
the scallop resource in the area. In fact, the reduced DAS allocations 
that will otherwise take effect on March 1, 2004, may serve as an 
incentive for some vessels to fish within the Hudson Canyon Area rather 
than elsewhere, and fishing effort could concentrate in the area. 
Controls within the area over the past few years have maintained catch 
rates that may be higher than those in other areas. In addition, the 
Hudson Canyon Area is a relatively short distance from ports in the 
Mid-Atlantic, and vessel owners may choose to fish in the Hudson Canyon 
Area to minimize the DAS used to cover steaming time to more distant 
fishing areas.
    This emergency action under section 305(c) of the Magnuson-Stevens 
Act is justified under and consistent with NOAA emergency rule 
guidelines published at 62 FR 44421 (August 21, 1997). These guidelines 
provide that a Magnuson-Stevens Act emergency action is justified in 
extremely urgent or special circumstances where substantial harm to or 
disruption of the resource, fishery or community will be caused in the 
time it would take to follow standard rulemaking procedures. It was not 
reasonably foreseeable that Amendment 10 would not be implemented by 
March 1, 2004, at the time when it was in development, otherwise, NMFS 
would have initiated another type of action, such as a Secretarial 
amendment or framework adjustment. Therefore, the only procedure 
available to the agency for implementing these measures is a section 
305(c) emergency action. As discussed above, failure to implement this 
emergency action will result in serious conservation and economic 
problems for the fishery. NMFS published a proposed emergency rule on 
February 4, 2004 (69 FR 5307) and requested public comment. Comments 
and responses are addressed in this final rule.

Final Action

    The final measures for the emergency action are summarized below:
    Continuation of the existing notification and enrollment 
requirements of the current Hudson Canyon Controlled Access Area 
program, including twice hourly vessel monitoring system (VMS) polling;
    Continuation of the existing observer program established for the 
current Hudson Canyon Controlled Access Area program;
    Continuation of the existing VMS catch reporting requirements;
    Continuation of the existing requirement for vessels taking a 
controlled area access trip to utilize twine top mesh with a minimum 
size of 10 inches (25.4 cm) to reduce finfish bycatch, primarily of 
flatfish;
    An additional allocation of 48 DAS for full-time limited access 
scallop vessels to conduct four trips within the Hudson Canyon Area 
only;
    An additional allocation of 12 DAS for part-time and occasional 
limited access vessels to conduct one trip within the Hudson Canyon 
area only;
    Allocation of DAS in trip-length blocks of 12 days, with each 
vessel making an Access Area trip to be charged 12 DAS for each trip, 
regardless of actual trip length;
    Establishment of a trip possession limit for limited access vessels 
fishing under DAS of 18,000 lb (8,165 kg) (consistent with a 1,500-lb 
(680-kg) per day catch rate);
    Establishment of a 400 lb (181-kg) possession limit for General 
category vessels fishing in the Hudson Canyon Area (this measure will 
make the possession limit for these vessels consistent with the 
existing possession limit in open fishing areas).

Comments and Responses

    Four sets of comments were submitted in response to the proposed 
rule for the emergency action from the Council, the Fishery Survival 
Fund (FSF) and two members of the public.
    Comment 1: One individual urged NMFS to keep the Hudson Canyon Area 
closed and immediately establish other marine sanctuary areas so that 
fish stocks do not continue to be decimated.
    Response: NMFS considered closing the Hudson Canyon Access Area as 
an alternative to the emergency action. However, closure of this area 
was deemed to be unwarranted given the analyses for this action and in 
Amendment 10 that indicate that controlled harvest of the area should 
be maintained for an additional 2 years, beginning in 2004. Moreover, 
it would be inappropriate to establish marine sanctuaries in an 
emergency action given the narrow scope of such an action.
    Comment 2: One individual commented that quotas are already too 
high, even in this alleged emergency. The emergency rule should cut all 
such quotas by 50 percent and 10 percent every year thereafter.
    Response: NMFS assumes that the commenter is referring to DAS 
allocations. NMFS disagrees with the comment. The scallop resource 
condition actually warrants a higher level of harvest than would occur 
without any action. The DAS schedule in the current regulations would 
achieve

[[Page 9972]]

a fishing mortality level well below the target prescribed for the 
scallop fishery.
    Comment 3: One individual commented that NMFS should establish 
email communication for comments on NMFS actions.
    Response: NMFS now requires that all actions soliciting public 
comment include email addresses for electronic commenting (E-comments).
    Comment 4: The Council is concerned that vessels will charge into 
the Hudson Canyon Area to fish all four trips using 3.5-inch (8.9-cm) 
rings, particularly in areas where small scallops occur. Amendment 10 
proposes to require vessels fishing the Hudson Canyon Area to use gear 
with larger rings and to protect small scallops in the southwest corner 
of the Hudson Canyon Area by including this portion of the area as part 
of a closed area. The Council states that the allocation of four trips 
in Amendment 10 was calculated to produce optimum yield with 4-inch 
(10.2-cm) rings, and that an allocation as high as four trips may not 
be appropriate if vessels using 3.5-inch (8.9-cm) rings utilize the 
majority of the four trip allocation. The Council therefore recommends 
that the emergency action allocate no more than one Hudson Canyon Area 
trip per limited access vessel.
    Response: The comment implies that Amendment 10 will definitely be 
implemented prior to expiration of the emergency action. However, NMFS 
has not determined that Amendment 10 will be approved, and allocating 
only one trip would be overly restrictive if Amendment 10 is not 
approved. While 4-inch (10.2-cm) rings may provide for long-term 
benefits according to the analyses included in Amendment 10, NMFS does 
not expect these benefits to come to light in this action which is 
limited in duration. Therefore, given the impracticability of 
establishing a new gear requirement in the limited timeframe of this 
emergency action, NMFS has determined that maintaining the 3.5-inch 
(8.9-cm) ring size requirement is appropriate for this limited action.
    Comment 5: The Council is concerned about opening the Hudson Canyon 
Area to access by vessels using general category permits or limited 
access vessels fishing under general category rules. The Council states 
that the intent of Amendment 10 was to allow access by general category 
vessels in the future when new controlled access areas are reopened, 
and to allow for them to land 400 lb (181.44 kg) of scallops. However, 
the comment notes that the Council intended to develop additional 
management measures including mandatory vessel monitoring systems, 
mandatory observers on selected trips, and a 2-percent TAC set-aside to 
cap the number of general category trips into reopened areas. The 
comment states that, because none of these measures are available for 
Hudson Canyon Area access, the Council did not intend to allow general 
category access. The Council, therefore, recommends that the emergency 
action continue the existing 100-lb (45.36-kg) scallop possession limit 
for vessels fishing under general category rules within the Hudson 
Canyon Access Area.
    Response: Based on historical information of general category 
activity in the fishery, there is no evidence that the impacts of 
fishing activity by general category vessels operating with a 400 lb 
(181.44 kg) possession limit will jeopardize the scallop resource 
within the Hudson Canyon Access Area in the context of this temporary, 
limited action. Moreover, allowing a 400-lb (181.44-kg) possession 
limit for general category vessels and limited access vessels fishing 
outside of the DAS program will reduce the enforceability concerns 
associated with having different possession limits for general category 
vessels fishing inside and outside of the Hudson Canyon Access Area. 
NMFS's review of the Amendment 10 document does not clearly support the 
Council intent described in their comment above. NMFS urges the Council 
to provide more details about the record supporting this comment so the 
intent can be properly reflected in any final action on Amendment 10, 
if approved.
    Comment 6: The Council commented that, although the Amendment 10 
analysis shows substantial abundance of small scallops in the Elephant 
Trunk area, the Council agrees that the benefits derived from closing 
the area on March 1, 2004, until implementation of Amendment 10, if 
approved, are reduced with a 34 DAS allocation for full-time vessels. 
If Amendment 10 is delayed more than anticipated, or higher DAS 
allocations are available, however, the Council recommends 
reconsideration of the decision to let the Elephant Trunk area remain 
open.
    Response: NMFS agrees that, if Amendment 10 is approved, the 
benefits of a short-term closure of the Elephant Trunk may be 
negligible. NMFS did not consider closure of the area as an alternative 
because conducting the necessary analysis may have delayed the action 
beyond March 1, 2004, and defeating the benefits of proceeding with an 
emergency action.
    Comment 7: One individual commented that the closure of the Hudson 
Canyon Access Area is based on Amendment 7 to the FMP, which 
established the closure. The commenter stated that Amendment 7 is not 
based on science and ignored relevant science and environmental 
conditions.
    Response: NMFS disagrees. While Amendment 7 originally established 
the 3-year closure of the Hudson Canyon Area, this emergency action 
will continue a controlled access program for the Hudson Canyon Access 
Area based on several years of controlled harvest strategies. The 
management actions that established area access all were based on the 
best available scientific information.
    Comment 8: The FSF commented in support of the emergency action but 
requested that NMFS consider a provision or policy to address trips 
terminated early due to unforseen circumstances (i.e., the broken trip 
provision). The FSF also urged NMFS to consider a closure of the 
Elephant Trunk area to scallop fishing to protect the large 
concentration of small scallops in the area.
    Response: Because of the limited scope of this action, it is not 
possible to address the broken trip issue at this time. NMFS could not 
consider the broken trip provision that is proposed in Amendment 10 
because the provision would require a collection of information that 
has not been approved by the Office of Management and Budget (OMB). As 
in prior years, NMFS will consider broken trips on a case by case 
basis. If Amendment 10 is approved, all relevant implementation issues 
associated with the broken trip provision would be considered.
    NMFS did not consider closure of the Elephant Trunk for the reasons 
explained in the response to Comment 6.

Changes From the Proposed Rule

    The regulatory text in Sec.  648.14, paragraphs (30) and (31) has 
been changed to clarify the prohibition relative to scallop possession 
limits.

Classification

    A formal section 7 consultation under the Endangered Species Act 
was initiated for the Atlantic sea scallop fishery on November 21, 
2003, and subsequently included consideration of the measures included 
in this emergency action. In a biological opinion dated February 23, 
2004, the Regional Administrator determined that fishing activities 
conducted under the emergency rule are not likely to jeopardize the 
continued existence of any endangered or threatened species or

[[Page 9973]]

result in the destruction or adverse modification of critical habitat.
    As explained in greater detail elsewhere in the preamble to this 
final rule, the Assistant Administrator for Fisheries, NOAA, finds that 
the need to implement these measures in a timely manner to avoid 
excessive localized fishing mortality in the Hudson Canyon Access Area, 
constitutes good cause under the authority contained in 5 U.S.C. 
553(d)(3), to waive the 30-day delay in effective date. Without the 
emergency rule, the Hudson Canyon Area will open to fishing without an 
area access program on March 1, 2004. This area was initially closed to 
protect concentrations of juvenile scallops, which have since grown to 
harvestable size. However, for the past 3 years, fishing in this area 
has been allowed, but with controls. A lapse in controls may result in 
high fishing effort and mortaility, which may be detrimental to the 
health of the scallop resource in the area. This emergency rule should 
prevent a derby style fishery from occurrring in the Hudson Canyon 
Area.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the discussion that follows, the comments and responses to 
the proposed rule, and the IRFA and other analyses completed in support 
of this action. A copy of the IRFA is available from the Regional 
Administrator (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to the proposed rule and is not repeated here.

Summary of Significant Issues Raised in Public Comments

    Four sets of comments were submitted on the proposed rule, but none 
contained comments on the economic impacts of this rule.

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

    The measures implemented by this emergency action 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 FRFA because they all grossed less than $3.5 million according to 
the dealer reports for the 2001 and 2002 fishing years. Therefore, the 
analysis of impacts on vessels in the environmental assessment and 
other supporting documents for this action are relevant to this FRFA. 
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.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements.

Minimizing Significant Economic Impacts on Small Entities

    The alternatives to the final action are the no action alternative 
and closure of the Hudson Canyon Access Area to scallop fishing. 
Neither the no-action nor the closure alternative would minimize the 
economic impacts on small entities. Under both non-preferred 
alternatives, lower overall DAS allocations would similarly constrain 
landings and revenues. For both the no-action and the closure 
alternatives, DAS allocations of 34, 14, and 3 DAS for full-time, part-
time, and occasional vessels would reduce annual revenues to 
approximately $110 million from $158 million, compared to the final 
action. For the no-action alternative, the harvest of larger, more 
valuable scallops from the Hudson Canyon Access Area would not offset 
the revenue losses because lower overall DAS allocations would 
constrain landings.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules, for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the Atlantic sea scallop fishery. 
In addition, copies of this final rule and guide (i.e., permit holder 
letter) are available from the Regional Administrator (see ADDRESSES) 
and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 26, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.14, paragraphs (h)(30), (h)(31), and (i)(8) are revised 
to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (h) * * *
    (30) Possess or land per trip more than 400 lb (181.44 kg) of 
scallop meats or 50 bu (17.62 hl) of in-shell scallops as specified in 
Sec.  648.52(e) in or from the areas described in Sec.  648.57 when not 
declared into the Sea Scallop Area Access Program, unless the vessel's

[[Page 9974]]

fishing gear is unavailable for immediate use as defined in Sec.  
648.23(b), or, there is a compelling safety reason to be in such areas 
without all such gear being unavailable for immediate use. Possess more 
than 400 lb. (181.44 kg) of scallop meats or 50 bu (17.62 hl) of in-
shell scallops when fishing outside the scallop DAS program.
    (31) Fail to stow gear in accordance with Sec.  648.23(b), unless 
there is a compelling safety reason, while a vessel is outside of a Sea 
Scallop Access Area on a Sea Scallop Access Area trip.
    (i)* * *
    (8) Possess, retain, or land per trip no more than 400 lb (181.44 
kg) of scallop meats or 50 bu (17.62 hl) of in-shell scallops in or 
from the areas described in Sec.  648.57.
* * * * *


Sec.  648.52  [Amended]

0
3. In Sec.  648.52, paragraph (e) is removed.

0
4. Section 648.53 is revised to read as follows:


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.  648.57 will be specified 
through the framework process as specified in Sec.  648.55.
    (2) Each vessel qualifying for one of the three DAS categories 
specified in the table in this paragraph (b)(2) (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. 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 
400 lb (181.4 kg) of shucked or 50 bu (17.62 hl) 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:

----------------------------------------------------------------------------------------------------------------
                                                              2003     2004     2005     2006     2007     2008
----------------------------------------------------------------------------------------------------------------
                  DAS Category                              .......  .......  .......  .......  .......  .......
                  Full-time                                     120       34       35       38       36       60
                  Part-time                                      48       14       14       15       17       24
                  Occasional                                     10        3        3        3        4        5
----------------------------------------------------------------------------------------------------------------

    (c) Sea Scallop Access Area DAS allocations. Vessels fishing in a 
Sea Scallop Access Area specified in Sec.  648.57, under the Sea 
Scallop Area Access Program specified in Sec.  648.58, are allocated 
additional DAS to fish only within each Sea Scallop Access Area, as 
specified in Sec.  648.58(a)(3).
    (d) Adjustments in annual DAS allocations. Adjustments or changes 
in annual DAS allocations, if required to meet fishing mortality 
reduction goals, may be made following a reappraisal and analysis under 
the framework provisions specified in Sec.  648.55.
    (e) End-of-year carry-over. 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 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 not be used in 
the Hudson Canyon Access Area. DAS sanctioned vessels will be credited 
with unused DAS based on their DAS allocation minus total DAS 
sanctioned.
    (f) Accrual of DAS. Unless participating in the Area Access Program 
described in Sec.  648.58, 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.

0
5. In Sec.  648.57, paragraph (b) is removed and paragraph (a) 
introductory text is revised to read as follows:


Sec.  648.57  Closed and regulated areas.

    (a) Hudson Canyon Sea Scallop Access Area. From March 1, 2004, 
through August 30, 2004, except as provided in Sec.  648.58, no vessel 
may fish for scallops in or possess or land scallops from the area 
known as the Hudson Canyon Sea Scallop Access Area, and no vessel may 
possess scallops in the Hudson Canyon Sea Scallop Access Area, unless 
such vessel is only transiting the area with all fishing gear 
unavailable for immediate use as defined in Sec.  648.23(b), or there 
is a compelling safety reason to be in such areas without all such gear 
being unavailable for immediate use. The Hudson Canyon Sea Scallop 
Access Area (copies of a chart depicting this area are available from 
the Regional Administrator upon request) is defined by straight lines 
connecting the following points in the order stated:
* * * * *

0
6. Section 648.58 is revised to read as follows:


Sec.  648.58  Sea Scallop Area Access Program requirements.

    (a) From March 1, 2004, through August 30, 2004, vessels issued a 
limited access scallop permit may fish in the Sea Scallop Access Areas 
specified in Sec.  648.57 when fishing under a scallop DAS, provided 
the vessel complies with the requirements specified in paragraphs 
(a)(1) through (a)(9) and (b) through (e) of this section. Unless 
otherwise restricted under this part, vessels issued General Category 
scallop permits may fish in the Sea Scallop Access Areas specified in 
Sec.  648.57, subject to the possession limit specified in Sec.  
648.52(b).
    (1) VMS. The vessel must have installed on board an operational VMS 
unit that meets the minimum performance criteria specified in 
Sec. Sec.  648.9 and 648.10, and paragraph (e) of this section.
    (2) Declaration. (i) Prior to the 25th day of the month preceding 
the month in which fishing is to take place, the vessel must submit a 
monthly report through the VMS e-mail messaging system of its intention 
to fish in any Sea Scallop Access Area, along with the following 
information: Vessel name and permit number, owner and operator's name, 
owner and operator's phone numbers, and number of trips anticipated for 
each Sea Scallop Access Area in which it intends to fish. The Regional 
Administrator may waive a portion of this notification period for

[[Page 9975]]

trips into the Sea Scallop Access Areas if it is determined that there 
is insufficient time to provide such notification prior to an access 
opening. Notification of this waiver of a portion of the notification 
period shall be provided to the vessel through a permit holder letter 
issued by the Regional Administrator.
    (ii) In addition to the information described in paragraph 
(a)(2)(i) of this section, and for the purpose of selecting vessels for 
observer deployment, a vessel shall provide notice to NMFS of the time, 
port of departure, and specific Sea Scallop Access Area to be fished, 
at least 5 working days prior to the beginning of any trip into the Sea 
Scallop Access Area.
    (iii) To fish in a Sea Scallop Access Area, the vessel owner or 
operator shall declare a Sea Scallop Access Area trip through the VMS 
less than 1 hour prior to the vessel leaving port, in accordance with 
instructions to be provided by the Regional Administrator.
    (3) Number of trips. Except as provided in paragraph (c) of this 
section, a vessel is limited to the following number of trips and 
automatic DAS deduction into the Hudson Canyon Sea Scallop Access Area 
specified in Sec.  648.57:
    (i) Full-time vessels. A Full-time vessel is restricted to a total 
of 4 trips, equaling an automatic deduction of 12 days per trip for a 
total of 48 DAS, into the Hudson Canyon Access Area.
    (ii) Part-time vessels. A Part-time vessel is restricted to a total 
of 1 trip, equaling an automatic deduction of 12 days per trip for a 
total of 12 DAS, into the Hudson Canyon Access Area.
    (iii) Occasional scallop vessels. An Occasional vessel is 
restricted to a total of 1 trip, equaling an automatic deduction of 12 
days per trip for a total of 12 DAS, into the Hudson Canyon Access 
Area.
    (4) Area fished. While on a Sea Scallop Access Area trip, a vessel 
may not fish for, possess, or land scallops from outside the Hudson 
Canyon Access Area during that trip and must not enter or exit the 
Hudson Canyon Access Area fished more than once per trip.
    (5) Possession and landing limits. After declaring a trip into the 
Hudson Canyon Access Area, a vessel owner or operator may fish for, 
possess, and land up to 18,000 lb (9,525 kg) of scallop meats per trip. 
No vessel fishing in the Hudson Canyon Access Area may possess or land, 
more than 50 bu (17.62 hl) of in-shell scallops shoreward of the VMS 
demarcation line.
    (6) Gear restrictions. The vessel must fish with or possess scallop 
dredge or trawl gear only in accordance with the restrictions specified 
in Sec.  648.51(a) and (b), except that the mesh size of a net, net 
material, or any other material on the top of a scallop dredge in use 
by or in possession of the vessel shall not be smaller than 10.0 inches 
(25.40 cm) square or diamond mesh.
    (7) Transiting. While outside a Sea Scallop Access Area on a Sea 
Scallop Access Area trip, the vessel must have all fishing gear stowed 
and unavailable for immediate use as specified in Sec.  648.23(b), 
unless there is a compelling safety reason.
    (8) Off-loading restrictions. The vessel may not off-load its catch 
from a Sea Scallop Access Area trip at more than one location per trip.
    (9) Reporting. The owner or operator must submit reports through 
the VMS, in accordance with instructions to be provided by the Regional 
Administrator, for each day fished when declared in the Sea Scallop 
Area Access Program, including trips accompanied by a NMFS-approved 
observer. The reports must be submitted in 24-hour intervals, for each 
day beginning at 0000 hours and ending at 2400 hours. The reports must 
be submitted by 0900 hours of the following day and must include the 
following information: Total pounds/kilograms of scallop meats kept, 
total number of tows and the Fishing Vessel Trip Report log page 
number.
    (b) Accrual of DAS. For each Hudson Canyon Access Area trip, a 
vessel on a Hudson Canyon Access Area trip shall have 12 DAS deducted 
from its access area DAS allocation specified in paragraph (a)(3) of 
this section, regardless of the actual number of DAS used during the 
trip.
    (c) Increase of possession limit to defray costs of observers--(1) 
Observer set-aside limits by area. The observer set-aside for the 
Hudson Canyon Access Area is 187,900 lb (85.2 mt).
    (2) Defraying the costs of observers. The Regional Administrator 
may increase the sea scallop possession limit specified in paragraph 
(a)(5) of this section to defray costs of at-sea observers deployed on 
area access trips subject to the limits specified in paragraph (c)(1) 
of this section. Owners of limited access scallop vessels will be 
notified of the increase in the possession limit through a permit 
holder letter issued by the Regional Administrator. If the observer 
set-aside is fully utilized prior to the end of the fishing year, the 
Regional Administrator will notify owners of limited access vessels 
that, effective on a specified date, the possession limit will be 
decreased to the level specified in paragraph (a)(5) of this section. 
Vessel owners shall be responsible for paying the cost of the observer, 
regardless of whether the vessel lands or sells sea scallops on that 
trip, and regardless of the availability of set-aside for an increased 
possession limit.
    (d) VMS polling. For the duration of the Sea Scallop Area Access 
Program, as described under this section, all sea scallop limited 
access vessels equipped with a VMS unit shall be polled at least twice 
per hour, regardless of whether the vessel is enrolled in the Sea 
Scallop Area Access Program. Vessel owners shall be responsible for 
paying the costs for the polling.
[FR Doc. 04-4677 Filed 2-27-04; 11:39 am]
BILLING CODE 3510-22-S