[Federal Register Volume 69, Number 120 (Wednesday, June 23, 2004)]
[Rules and Regulations]
[Pages 35194-35224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13940]



[[Page 35193]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 902 and 50 CFR Part 648



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

  Federal Register / Vol. 69, No. 120 / Wednesday, June 23, 2004 / 
Rules and Regulations  

[[Page 35194]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902 and 50 CFR Part 648

[Docket No. 040210050-4166-03; 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: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Amendment 
10 to the Atlantic Sea Scallop Fishery Management Plan (FMP), developed 
by the New England Fishery Management Council (Council). Amendment 10 
includes a long-term, comprehensive program to manage the sea scallop 
fishery through an area rotation management program to maximize scallop 
yield. Areas will be defined and will be closed and re-opened to 
fishing on a rotational basis, depending on the condition and size of 
the scallop resource in the areas. This rule includes measures to 
minimize the adverse effects of fishing on Essential Fish Habitat (EFH) 
to the extent practicable. Amendment 10 also includes updated days-at-
sea (DAS) allocations, measures to minimize bycatch to the extent 
practicable, and other measures to make the management program more 
effective, efficient, and flexible. In addition, NMFS publishes the 
Office of Management and Budget (OMB) control numbers for collection-
of-information requirements contained in this final rule.

DATES: Effective July 23, 2004 except for Sec. Sec.  648.53(b)(2), 
which is effective June 23, 2004, and Sec.  648.51(b)(3)(ii), which is 
effective December 23, 2004.

ADDRESSES: Copies of Amendment 10, its Regulatory Impact Review (RIR), 
including the Initial Regulatory Flexibility Analysis (IRFA), and the 
Final Supplemental Environmental Impact Statement (FSEIS) are available 
on request from Paul J. Howard, Executive Director, New England Fishery 
Management Council, The Tannery Mill 2, 50 Water Street, 
Newburyport, MA 01950. These documents are also available online at 
http://www.nefmc.org. NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA), which is contained in the Classification section of 
the preamble of this rule. Copies of the FRFA, Record of Decision 
(ROD), and the Small Entity Compliance Guide are available from the 
Regional Administrator, Northeast Regional Office, NMFS, One Blackburn 
Drive, Gloucester, MA 01930-2298, and are also available via the 
internet at http://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to Patricia A. Kurkul at the above address 
and to David Rostker at OMB by e-mail to [email protected], or 
by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    This final rule implements the approved measures of Amendment 10, 
which was partially approved by NMFS on behalf of the Secretary of 
Commerce (Secretary) on April 14, 2004. A proposed rule for this action 
was published on February 26, 2004 (69 FR 8915), with public comments 
accepted through March 29, 2004. The details of the development of 
Amendment 10 were contained in the preamble of the proposed rule and 
are not repeated here. In the proposed rule, NMFS requested comment on 
all proposed measures, but specifically highlighted five issues for 
which NMFS had concern. The five highlighted issues were: Scallop 
fishing access in the groundfish closed areas; cooperative industry 
surveys; the increase in the minimum ring size for scallop dredges; 
implementation of an observer set-aside program; and the title of the 
proposed Mid-Atlantic (MA) closed area. A discussion of these issues, 
including NMFS consideration of public comments on the issues, follows.

1. Scallop Fishing Access in Groundfish Closed Areas

    NMFS expressed concern in the proposed rule with respect to 
Amendment 10's inclusion of the groundfish closed areas as part of the 
area rotation scheme. 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 Northeast Multispecies FMP (Multispecies FMP) to 
authorize access because these areas were closed by the Multispecies 
FMP to protect groundfish. Amendment 10 is implemented with initial DAS 
established at a level that is consistent with an area rotation program 
that includes scallop fishing access to the groundfish closed areas. 
The initial DAS under Amendment 10 are 42, 17, and 4 for full-time, 
part-time, and occasional vessels, respectively. The proposed rule 
included a provision that would increase DAS on August 15, 2004, to 62, 
25, and 5 for full-time, part-time, and occasional vessels, 
respectively, if a final rule to allow access to the groundfish closed 
areas is not published by August 15, 2004. The Council has adopted and 
submitted Framework 16 to the Scallop FMP and Framework 39 to the NE 
Multispecies FMP (Joint Frameworks 16/39) to allow such access, but 
NMFS remains concerned that it may not be possible to implement the 
measures proposed in Joint Frameworks 16/39, if approved, by the August 
15, 2004, date. If approved, a delay in implementing Joint Frameworks 
16/39 beyond the default date would complicate implementation of the 
groundfish closed area access program proposed by the Council in Joint 
Frameworks 16/39. To help alleviate timing concerns, this final rule 
changes the default date for increasing DAS to September 15, 2004, at 
the request of the Council and other commenters. Since the default date 
is an administrative matter, NMFS has determined that it is consistent 
with Amendment 10 to make the change. Amendment 10 implements lower DAS 
initially to allow the DAS to be increased if necessary. Extending the 
default date by one month will not cause any detriment to conservation 
of the scallop resource or to the goals and objectives of the FMP, 
consistent with Amendment 10. However, it would still be a complication 
if Joint Frameworks 16/39 are approved and a final rule is not 
published by September 15, 2004.

2. Cooperative Industry Surveys

    NMFS raised concern regarding the cooperative industry resource 
survey provision and has disapproved the measure in Amendment 10. The 
basis for the disapproval is provided in the Disapproved Measures 
section of the preamble of this final rule.

3. Minimum Ring Size Increase

    This final rule increases the minimum ring size for scallop dredges 
from 3.5 inches (8.9 cm) to 4 inches (10.2 cm). NMFS specifically 
sought comment on whether it would be feasible to implement the gear 
conversion requirement upon initial implementation of Amendment 10.

[[Page 35195]]

With the exception of a comment from the Council agreeing with the 
proposed 30-day delay in effectiveness for the 4-inch (10.2-cm) ring 
size increase in the Hudson Canyon Area, and a 6-month delay elsewhere, 
NMFS received no written comments on this issue. Other comments on the 
ring size increase pertained to other issues, which are addressed in 
the ``Response to Comments'' and ``FRFA'' sections of the preamble of 
this final rule. Therefore, this final rule implements the 4-inch 
(10.2-cm) ring requirement for the Hudson Canyon Access Area 30 days 
after publication of this final rule in the Federal Register, and 6 
months after publication of this final rule in the Federal Register for 
all other areas.

4. DAS Set-Aside for Observer Coverage

    NMFS expressed concern in the proposed rule about effective 
implementation of the DAS set-aside for observer coverage to help 
defray the cost of observers on open area trips. Implementation of this 
measure will 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. This issue was the subject of 
significant comment from the public. After consideration of public 
comments on the issue, NMFS determined that, for each Open Area trip on 
which an observer is carried, the vessel's DAS will accrue at a reduced 
rate. Based on the analysis in Amendment 10, this reduced rate will 
initially be an adjustment factor of 0.86 DAS for every DAS fished with 
an observer on board. For example, if a vessel fishes for 10 actual DAS 
with an observer on board in an Open Area, the DAS charged for that 
trip will be 8.6 DAS. The result is the same as if a vessel were 
allocated additional DAS at a rate of 0.14 DAS per actual DAS fished 
with an observer on board, as described in the proposed rule. The 
change is being made because commenters felt it was more useful to them 
than an after-the-fact adjustment.
    Since the publication of the proposed rule, NMFS has determined 
that the cost of observers for scallop vessels will be $719.12 per day 
for the 2004 fishing year. Although this amount may change annually, 
the 0.86 DAS adjustment factor should provide sufficient additional 
fishing opportunity to help compensate for that cost. If costs change, 
the Administrator, Northeast Region, NMFS (Regional Administrator), 
will re-evaluate the compensating amount of DAS and possession limit 
that would be appropriate to offset the cost of observers. The proposed 
rule included regulatory text that would have codified the proposed 
0.14 DAS multiplier. The regulatory text in this final rule does not 
specify the adjustment factor in order to preserve the Regional 
Administrator's flexibility to adjust the compensation when necessary 
to reflect changes in observer cost and projected catch rates. 
Likewise, the amount of the additional possession limit allowed for 
vessels carrying observers in Scallop Access Areas is not specified in 
the regulatory text of this final rule to preserve the Regional 
Administrator's flexibility.

5. MA Closed Area

    NMFS sought public comment on how to clarify the designation of the 
area proposed in Amendment 10 to avoid confusion with another area 
reportedly known as the ``Elephant Trunk'' on Georges Bank. The Council 
recommended keeping the designation as the ``Elephant Trunk'' closed 
area, and no other comments were received on this issue. This final 
rule therefore maintains the designation of the area as the ``Elephant 
Trunk'' closed area.

Disapproved Measures

    After reviewing Amendment 10, its supporting analysis and public 
comments received on the amendment and its proposed rule, NMFS, on 
behalf of the Secretary, has disapproved two measures in Amendment 10, 
as submitted, based on NMFS's determination that the measures are 
inconsistent with one or more of the National Standards or required 
provisions of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act). The disapproved measures are: The measure 
restricting limited access scallop vessels to a possession limit of 40 
lb (18.14 kg) of shucked, or 5 U.S. bushel (176.2 L) of in-shell 
scallops, while fishing outside of scallop DAS; and the provision that 
required a cooperative industry resource survey to be conducted.
    The measure that would have restricted limited access scallop 
vessels fishing outside of scallop DAS to a possession limit of up to 
40 lb (18.14 kg) (i.e., the incidental amount of scallops) of shucked 
scallops, or 5 U.S. bushels (176.2 L) of in-shell scallops, was 
disapproved because it is inconsistent with National Standard 2 and 
section 303(a)(1) of the Magnuson-Stevens Act. The possession 
restriction for limited access scallop vessels fishing outside of DAS 
has no clearly documented conservation purpose and is not supported by 
the best available scientific information, as required by National 
Standard 2 of the Magnuson-Stevens Act. Also, the measure is not 
necessary and appropriate for the conservation of the fishery, as 
required under section 303(a)(1) of the Magnuson-Stevens Act.
    The data and analyses in Amendment 10 demonstrate that, while 
landings of scallops by vessels fishing outside of scallop DAS (limited 
access and General Category vessels) have increased dramatically from 
approximately 400,000 lb (181.4 mt) to over 1 million lb (453.6 mt) 
over the past 3 years, landings from the limited access vessels fishing 
outside of scallop DAS were relatively steady at about 210,000 lb (95.2 
mt) in 2000 and 2001, and appear to have decreased in 2002. The 
proposed measure to restrict limited access scallop vessels was 
determined to be insufficient to address the growth in landings made 
outside of DAS by both limited access and General Category vessels. 
Although measures to control effort outside of DAS may be warranted, 
such action would require more comprehensive development to ensure that 
the measures are necessary and appropriate to achieve meaningful 
conservation benefits.
    The measure that required a cooperative resource survey to be 
conducted annually was disapproved because it was not sufficiently 
developed to be implemented effectively and to provide useful 
information to manage the fishery. Therefore, it is inconsistent with 
section 303(a)(1)(A) of the Magnuson-Stevens Act, which requires 
measures that are necessary and appropriate for the conservation and 
management of the fishery. There is no assurance, even through the 
total allowable catch (TAC) and DAS set-aside program, that the results 
of the proposed survey would be ready for use when needed, if, for 
instance, no vessels came forward to participate in the survey. The 
disapproval of this proposed provision as a mandatory requirement of 
the FMP does not preclude the use of cooperative survey information, 
should such surveys be carried out. The survey remains the top priority 
in the research set-aside request for proposals (RFP) for the scallop 
fishery, and a resource survey program approved for set-aside funding 
could be used to modify the rotation program, as intended by the 
Council.

[[Page 35196]]

Approved Measures

    NMFS approved the remainder of the measures included in Amendment 
10, although not all approved measures require regulatory text in this 
final rule. In order to provide the public with the clearest 
information possible on the numerous changes to the scallop regulations 
that result from the implementation of Amendment 10, NMFS is publishing 
in this final rule the entirety of the regulations in 50 CFR part 648, 
subpart D, that pertain to the scallop fishery (both the existing and 
new regulations). A general summary of the approved measures and their 
implementing regulations follow.
    This final rule also includes some non-substantive revisions to the 
existing text in subpart D that were not part of Amendment 10; these 
revisions remove obsolete language and improve the organization and 
clarity of the regulations.

1. Overfishing Definition

    Amendment 10 maintains the existing overfishing definition in the 
FMP, but increases the minimum biomass threshold from \1/
4\BMAX to \1/2\BMAX, to be consistent with the 
National Standard Guidelines. Full descriptions of the overfishing 
definition and biological reference points used in the FMP can be found 
in the FSEIS for Amendment 10. Annual determinations of the status of 
the resource will be based on the resource conditions and fishery 
performance relative to biomass and fishing mortality reference points 
for the combined Georges Bank (GB) and Mid-Atlantic (MA) scallop 
resource. Amendment 10 includes new guidelines for the Council to use 
during the development of biennial or more frequent 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 The framework process approved in Amendment 10 
and implemented through this final rule will allow the PDT and the 
Council the flexibility to take the existing status of the resource 
into account, determine optimum yield-per-recruit based on the 
condition of the scallop resource, and devise appropriate measures to 
assure that OY is achieved on a continuing basis. The achievement of 
optimum yield-per-recruit from the resource as available for harvest in 
the upcoming fishing years could result in differential fishing 
mortality rates for various spatial components, as long as OY is 
achieved for the resource as a whole.

2. Area Rotation

    Under area rotation, as approved in Amendment 10, three types of 
areas are established: Rotational Closed Areas; Sea Scallop Access 
Areas; and Open Areas. Rotational Closed Areas are closed to all 
scallop harvest as a result of large concentrations of fast-growing, 
small scallops. Sea Scallop Access Areas are re-opened closed areas or 
areas needing area-specific effort or harvest controls. Sea Scallop 
Access Areas 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. Vessel transit with 
gear stowed is allowed for both Sea Scallop Access Areas and Rotational 
Closed Areas. Open Areas are all areas without area-specific controls. 
In general, Open Areas are subject to DAS and gear restrictions with no 
possession limit and trip limitations other than those specified for 
General Category vessels and vessels fishing for scallops outside of 
scallop DAS. As a result of public comment on the proposed rule, this 
final rule adds appropriate definitions to Sec.  648.2 to clarify the 
meaning of some of the area rotation terms.
    The Council considered various approaches to area rotation and 
adopted an approach that provides flexibility to define future 
rotational areas. This final rule implements the ``fully adaptive area 
rotation scheme,'' which allows more specific area definitions and 
management controls compared to the fixed-boundary alternatives 
considered by the Council.
    Amendment 10 establishes Rotational Area Closures for areas of 
small sea scallops, closing areas before the scallops are exposed to 
fishing. Scallops grow fastest when they are very small and protection 
of these small scallops through area closures is critical in the 
rotational management of the scallop resource. After a period of 
closure, and after evaluation according to the criteria and procedures 
established in Amendment 10, the areas will re-open for scallop 
fishing, when the scallops are larger and more suitable for harvest. 
This process boosts scallop meat yield and yield per recruit. The fully 
adaptive area rotation scheme in Amendment 10 establishes no pre-
defined conditions for area closures and reopenings, except that areas 
will close when the expected annual increase in exploitable biomass in 
an area exceeds 30 percent, and areas will re-open when the expected 
annual increase in exploitable biomass in an area is less than 15 
percent. There are no standard closure area boundaries, dimensions, or 
durations. This area rotation program is based entirely on changing 
conditions of the scallop resource. The fully adaptive area rotation 
scheme includes guidelines as part of the biennial framework process 
that will be used to establish the rotational areas.

3. Initial Area Rotation

    Amendment 10 includes two areas in the MA as part of the initial 
area rotation scheme. First, the Hudson Canyon Access Area, with 
redefined boundaries, is maintained continues as a controlled access 
scallop fishing area. Emergency regulations implemented on March 1, 
2004 (69 FR 9970), allowed full-time scallop vessels to take four trips 
into the area, and part-time and occasional vessels to take one trip 
into the area. These trip allocations are maintained under Amendment 
10. Second, an area is 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 scallops 
and possession of scallops, except for transiting, is prohibited in the 
Elephant Trunk Area through February 2007.

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

    Amendment 10 limits 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 include: Area-specific DAS 
allocations; a number of DAS to be charged for each closed area trip, 
regardless of trip length; a total number of trips allowed into access 
areas by permit category, with corresponding area-specific limits on 
the number of trips; and a maximum sea scallop possession limit per 
trip. These limits are specified based upon a target TAC for each area 
and assumptions about the level of effort that would be required to 
harvest the target TAC. The harvest of scallops at a level at or above 
the target TAC will not result in a closure of the area. Rather, 
landings relative to the target TAC will be evaluated through biennial, 
or more frequent, reviews of the fishery.
    Unused controlled access DAS cannot 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 are 
calculated to optimize yield while reducing the potential for 
overexploitation of the resource in the open fishing areas.
    Amendment 10 includes specific measures that are part of the 
rotational

[[Page 35197]]

area access program for the Hudson Canyon Access 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 
are in trip-length blocks of 12 DAS, four trips for full-time vessels 
and one trip for part-time and occasional vessels, and 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 will be charged 12 DAS for 
each trip, regardless of actual trip length. Trip length DAS charge and 
possession limits will be re-evaluated for future years through the 
framework adjustment process, beginning with the development of the 
first biennial framework in 2005, which would be effective March 1, 
2006.

5. One-for-One Controlled Access Trip Exchanges

    The controlled area access program allocates each category of 
Limited Access scallop vessel a total number of trips into controlled 
access areas, with a maximum number of trips by area. When more than 
one Sea Scallop Access Area is specified, Limited Access scallop vessel 
owners may exchange trips in the areas on a one-for-one basis to take 
advantage of fishing area preferences. For example, a vessel owner in 
the north with an allocated trip in a southern area may exchange a trip 
in a northern area with a vessel owner in the south. 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 takes all of its allocated 
trips. The one-for-one trip exchange provision requires more than one 
area to be managed under a controlled access program.

6. Compensation for Sea Scallop Access Area Trips Terminated Early

    Vessel owners may request that NMFS allow compensation for a Sea 
Scallop Access Area trip that is terminated before the vessel has fully 
attained the possession limit allocated to an access area trip. Such 
trips are allowed without counting as one of the initially allocated 
trips and at a reduced DAS charge and possession limit. The vessel 
owner is required to submit information pertaining to the terminated 
trip, including the reason for terminating the trip (which may be for 
unforeseen events, emergencies, safety reasons, or other reasons deemed 
appropriate by the captain) and verification of the pounds of scallop 
landed when the vessel returned to port. The Regional Administrator 
shall review the information to verify the possession limit and the DAS 
charge that would apply to the makeup trip. This provision promotes 
vessel and crew safety by allowing vessels to exit Sea Scallop Access 
Areas without losing most of a trip into the area. It also reduces 
concern regarding the requirement that a portion of a scallop vessel's 
trips be taken in the Sea Scallop Access Areas.

7. Gear Restrictions

    The minimum size of the metal rings used to construct the chain bag 
in scallop dredge gear is increased 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. All scallop dredges onboard vessels 
conducting a Hudson Canyon Area controlled access trip are required to 
comply with the requirement by July 23, 2004. Vessels fishing in the 
Open Areas are required to use 4-inch (10.2-cm) rings by December 23, 
2004. The ring size increase is required earlier in the Hudson Canyon 
Access Area because the improved selectivity of the larger rings would 
help achieve the objective of the controlled access program, to improve 
yield. The 6-month delay in effectiveness in open areas allows vessel 
owners time to convert their gear and adjust to the overall requirement 
and cost associated with the gear conversion.
    This final rule also requires 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. EFH Closures

    This rule designates areas closed to scallop fishing to minimize 
the impacts of scallop gear on EFH to the extent practicable. These 
areas are within the areas currently closed under the Northeast 
Multispecies FMP to protect groundfish (Closed Area I, Closed Area II, 
and the Nantucket Lightship Closed Area). 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 EFH closed areas include areas designated as EFH 
for several finfish species.

9. Data Collection, Monitoring, and Scallop Research

    Vessels issued federal scallop permits are required by the Regional 
Administrator to carry an observer onboard if requested, with the 
related costs being borne by the vessel. To partially or entirely 
defray these costs, vessels carrying an observer are allowed to land 
more scallops or receive DAS compensation. This final rule establishes 
a 1-percent set-aside of the total DAS in Open Areas and the target TAC 
within the Sea Scallop Access Areas to help vessels pay for the cost of 
observers. The cost of observers will be $719.12 per day for the 2004 
fishing year and may change in the future. The set-asides for observers 
are intended to improve data on scallop catch and bycatch.
    Amendment 10 also establishes a DAS set-aside from Open Area DAS 
and a TAC set-aside from Sea Scallop Access Areas to supplement the 
available funding for research. Amendment 10 expands the research 
objectives to be pursued using this set-aside to include cooperative 
industry scallop resource survey work as the highest research priority, 
as well as habitat-related research, and research to identify potential 
solutions to bycatch of fish and sea turtles. The TAC set-aside made 
available for the research is 2 percent of the target TAC within the 
Area Access Program. In addition, 2 percent of the Open Area DAS 
allocation is set aside to help fund scallop related research. A 
request for proposals was published in the Federal Register on April 
15, 2004 (69 FR 19983), which solicited proposals for research that 
would begin in the 2004 fishing year. The research set-aside program 
promotes cooperative research related to the scallop resource and 
fishery.

10. Framework Adjustment Process

    This rule implements 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 the current annual process to a biennial process, the new 
framework procedures 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 measures already included in the FMP, this final rule specifies 
that changes in the following measures can be enacted through framework 
action: Size and configuration of rotational management

[[Page 35198]]

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.

11. 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, this rule includes a mechanism, through the framework 
process, to close areas, establish seasons, implement gear 
modifications, or implement 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 will propose actions to mitigate takes.

Response to Comments

General Comments on Amendment 10

    Comment 1: One commenter stated that fisheries should not be 
allowed to continue to fish at maximum sustainable yield and that doing 
so constitutes overfishing.
    Response: Section 303(a)(3) of the Magnuson-Stevens Act requires 
NMFS to assess and specify the present and probable future condition 
of, and the maximum sustainable yield, and optimum yield from, the 
fishery, and include a summary of the information utilized in making 
such specification. Amendment 10 fulfills this requirement. Amendment 
10 adequately documents that the scallop fishery is managed to achieve 
OY, as required by National Standard 1 of the Magnuson-Stevens Act, and 
measures under Amendment 10 have been determined to be consistent with 
that requirement. The FMP establishes fishing mortality and biomass 
targets that are the reference points by which the fishery is managed. 
Fishing mortality and biomass thresholds also determine when more 
restrictive measures are necessary to prevent overfishing and maintain 
a sustainable biomass.
    Comment 2: One commenter recommended that NMFS reduce DAS by 50 
percent in 2004 and 10 percent every year thereafter.
    Response: Such reductions in DAS are excessive, given the current 
status of the scallop resource, and would prevent the achievement of 
OY. The scallop resource is currently rebuilt and large reductions in 
DAS without measures to compensate for the lack of harvest would cause 
the FMP to be inconsistent with National Standard 1 and other 
provisions of the Magnuson-Stevens Act and the control rule established 
for the scallop fishery.
    Comment 3: One commenter requested that NMFS include an explanation 
of BMAX and other scientific terms in rules published in the 
Federal Register so that readers can understand the terminology.
    Response: Definitions for reference points that are commonly used 
in overfishing definitions are found in the Magnuson-Stevens Act 
Provisions, 50 CFR part 600. Relative to the scallop fishery, a 
definition of BMAX is included in the Glossary of the 
Amendment 10 FSEIS (Section 15.0) and is included in the Amendment 10 
FSEIS in Section 5.1.1 (See ADDRESSES). NMFS will continue to try to 
define terms that may be unfamiliar in its rulemaking.
    Comment 4: One commenter was concerned that NMFS had not made a 
determination that the measures contained in the proposed rule were 
consistent with the Magnuson-Stevens Act.
    Response: Before partially approving Amendment 10 and issuing this 
final rule, NMFS determined that the approved measures and this final 
rule are consistent with the Magnuson-Stevens Act and other applicable 
law. These determinations cannot be made until NMFS completes the 
review and decision-making process mandated by the Magnuson-Stevens Act 
as to whether to approve, partially approve, or disapprove an FMP or 
amendment.
    Comment 5: One commenter stated that dredging is highly ``anti-
environmental'' and, along with trawl gear, should be prohibited.
    Response: Scallop fishing with dredges and trawls can have adverse 
impacts on the environment, at least in certain habitats. However, the 
Magnuson-Stevens Act requires that fisheries be managed to achieve OY, 
while taking into consideration impacts on the physical, biological, 
economic, and social environments. The FSEIS (see ADDRESSES) evaluates 
the impacts of scallop fishing on the environment, and this rule 
implements measures to mitigate those impacts, to the extent 
practicable.
    Comment 6: Two commenters stated that the Amendment 10 National 
Environmental Policy Act (NEPA) process was flawed throughout Amendment 
10's development because the Council failed to fully develop and 
adequately analyze alternatives that were recommended and that would 
incorporate habitat protections and bycatch measures into any 
rotational management program. The commenters stated and that such 
flaws need to be corrected before NMFS takes action.
    Response: NMFS fully complied with NEPA and the NEPA process in the 
development and partial approval of Amendment 10. Over the course of 
the 4 years during which Amendment 10 was developed, the Council 
considered a wide range of alternatives with varying environmental 
impacts and obtained extensive public input throughout the process. To 
evaluate EFH impacts, the Council devoted significant effort to 
coordinate the work conducted by groundfish, scallop, and habitat 
technical teams to develop alternatives to minimize the impacts of 
fishing on EFH to the extent practicable. Numerous advisory panel 
meetings were held to develop a wide range of alternatives to address 
EFH and bycatch in the management of the scallop fishery. The 
commenters suggest that certain alternatives they advanced were either 
ignored or unjustly rejected. The FSEIS fully considered all of these 
comments, as seen in the discussion of alternatives in the FSEIS, 
including some alternatives considered but rejected by the Council. 
Many of the alternatives in Amendment 10 are representative of those 
suggested by the commenters. The Council and NMFS fully considered all 
reasonable alternatives in light of the scope and context of Amendment 
10. Responses to comments regarding the incorporation of EFH and 
bycatch protection into area management programs are provided in 
responses to Comments 9 and 29.

Comments on EFH Measures

    Comment 7: One group commented that Amendment 10 fails to minimize 
to the extent practicable the adverse effects of fishing on EFH to the 
extent practicable.
    Response: Amendment 10 considered a wide range of alternatives for 
minimizing the adverse effects of fishing on EFH and conducted a 
practicability analysis for each alternative. The practicability 
analysis followed the guidelines published in the EFH regulations (50 
CFR part 600, subpart J) and considered the nature and extent of the 
adverse effect on EFH and the long and short-term costs and benefits of 
potential management measures to EFH, associated fisheries, and the 
Nation, consistent with National Standard 7.

[[Page 35199]]

The practicability analysis (FSEIS Section 8.5.6.4) shows that Habitat 
Alternatives 2, 6, 11, and 12 are all practicable, and the remainder of 
the Habitat Alternatives are not practicable. All four practicable 
alternatives were approved and are being implemented as a suite, to 
minimize the adverse effects of fishing on EFH.
    Comment 8: One group commented that, of the habitat alternatives 
adequately analyzed in the FSEIS, Alternative 3a (area closures to 
protect hard-bottom habitat) comes closest to fulfilling NMFS's 
responsibilities to minimize habitat impacts because it would provide 
the most protection for most sensitive habitats.
    Response: The commenter incorrectly characterizes NMFS's legal 
responsibilities to minimize adverse effects of fishing on habitat to 
the extent practicable. Specifically, the comment mistakenly seems to 
equate the NMFS's statutory responsibility of minimizing habitat 
impacts to the extent ``practicable'' with the concept of minimizing 
impacts to the extent ``possible.'' The term ``possible'' would require 
the agency to implement virtually any feasible measure that addresses 
EFH, whereas the term ``practicable'' allows NMFS to consider, weigh, 
and balance the alternatives in light of the national standards and 
other Magnuson-Stevens Act requirements, and in accordance with the EFH 
regulations.
    NMFS carefully considered Habitat Alternative 3a. Ultimately, 
however, NMFS determined that the suite of alternatives making up the 
approved measures would provide habitat protection, minimize adverse 
effects to the extent practicable, consistent with the guidelines 
specified in the EFH regulations, and better balance the overall 
objectives of the various national standards and required provisions of 
the Magnuson-Stevens Act than would Habitat Alternative 3a. Although 
Habitat Alternative 3a was shown to provide more protection to EFH than 
some of the other habitat alternatives, it was also found to be 
impracticable (FSEIS Section 8.5.6.4.3). This alternative would have 
dramatic social and economic impacts by creating significant revenue 
losses to the scallop fishery, the groundfish fishery, and other 
fisheries, as well as inequitable port and community impacts. NMFS must 
implement EFH management measures that are practicable, as well as 
compliant with the national standards and other required provisions of 
the Magnuson-Stevens Act.
    Comment 9: One group commented that NMFS should also recommend 
Habitat Alternatives 10 and 13 as practicable measures to minimize 
habitat impacts.
    Response: The analysis in the FSEIS (Section 8.5.6.4.11) shows that 
Habitat Alternative 10 (restriction on the use of rock chains) is not 
practicable when balancing the potential benefits to EFH with safety-
at-sea issues and economic costs to the industry, as specified by EFH 
regulations. Habitat Alternative 13 (rotational management based upon 
habitat protection) was included in conceptual form, without specified 
parameters. Despite the efforts of the Council and NMFS, specific 
criteria for controlling the frequency, duration, and intensity of 
scallop fishing could not be defined for this alternative in time for 
this action. Even so, this conceptual alternative was considered and 
included for analysis in the FSEIS (Section 5.3.4.13). Although Habitat 
Alternative 13 as a whole was not determined to be readily practicable, 
aspects of the alternative can be found within alternatives contained 
in Amendment 10. Specifically, the analysis of Habitat Alternative 13 
(FSEIS Section 8.5.4.13) recognizes that two alternatives developed to 
improve scallop yield also utilize habitat benefits as criteria for 
determining the status of rotational management areas (Alternative 
5.2.1.5--Adaptive closures and re-openings with fixed boundaries and 
mortality targets; Alternative 5.2.1.7--Area-based management with area 
specific fishing mortality targets without formal area rotation). These 
two analyzed alternatives advance the concept of including habitat 
concerns in rotational area management.
    Comment 10: One group commented that the FSEIS failed to include an 
alternative establishing additional Habitat Areas of Particular Concern 
(HAPC) and Habitat Research Areas.
    Response: Neither the Magnuson-Stevens Act nor the EFH regulations 
mandate the establishment of HAPCs as part of the development of an 
FMP. However, the Council has established a process for identifying 
HAPCs and is currently seeking public comment on this issue as part of 
the development of EFH Omnibus Amendment 2 (69 FR 8367, February 24, 
2004). Because of the integrated nature of EFH for all species, it is 
more appropriate for a comprehensive EFH management action to explore 
the need for a Habitat Research Area, instead of approaching this issue 
on an FMP-by-FMP basis, as suggested. This is the rationale that was 
used to consider and reject this alternative as part of Amendment 10. 
The concept of a Habitat Research Area is being addressed by the EFH 
Omnibus Amendment 2.
    Comment 11: One commenter stated that the socio-economic analysis 
in Amendment 10, relative to measures to protect EFH continues to be 
inadequate. The commenter states that the analysis focuses almost 
exclusively on the potential adverse economic impacts of implementing 
closed areas to protect EFH and offers no discussion of the economic 
benefits that can be realized by protecting sensitive and important 
habitat areas. The commenter states that the analysis also fails to 
analyze the potential economic benefits that are likely to result from 
improved spawning success and recruitment associated with habitat 
closed areas, including improvements to cod and other groundfish 
species currently experiencing historically low recruitment, which the 
commenter states is due to habitat alteration.
    Response: The social and economic analyses, which were conducted 
using the best available science, adequately consider benefits as well 
as costs of habitat impacts. The FSEIS provides a comparison of the 
benefits of the EFH measures to the environment with the economic costs 
of implementing the measures on the industry. By considering these 
analyses and comparisons, the Council and NMFS were able to make an 
informed decision on the alternatives by determining their benefits and 
practicability.
    Comment 12: One commenter stated that too much of the habitat data 
contained in the document are ``stale'' and of questionable utility, 
and that the supposed seabed impacts of scallop dredging continue to be 
measured using suspect and perhaps inapplicable means, and are often 
vastly overstated.
    Response: The habitat data utilized in the FSEIS is the best 
available science. In fact, the habitat metrics analysis is an 
innovative approach, utilizing the best available science from a 
variety of sources from within the region and incorporating it into a 
Geographic Information System for geo-spacial analysis (See FSEIS 
Section 8.5.1 for methodology). The consideration of seabed impacts 
associated with scallop dredging was based on a review of recent 
literature from within the region, which utilized dredges that are 
identical or similar to those used in New England--New Bedford style 
dredge (FSEIS Section 7.2.6.2.4.6.2).
    Comment 13: One commenter supported reliance on existing measures 
as a practicable means to reduce impacts of the scallop fishery on EFH, 
such as the present DAS program and the rotational closure system.

[[Page 35200]]

    Response: Utilizing existing measures to minimize the adverse 
effects of fishing on EFH is contained within Habitat Alternative 2. 
Although this alternative provides a benefit to EFH through reductions 
in DAS as well as other measures that reduce effort or area swept by 
the dredge, it does not alone best satisfy, on balance, the Magnuson-
Stevens Act requirement to minimize to the extent practicable the 
adverse effects of fishing on EFH. Habitat Alternatives 6, 11, and 12 
were also shown to be practicable alternatives (FSEIS Section 8.5.6). 
This suite of management measures fulfills the Magnuson-Stevens Act 
requirement to minimize to the extent practicable the adverse effects 
of fishing on EFH.
    Comment 14: One commenter opposed the need for habitat closures in 
Amendment 10 but stated that, of the closure alternatives presented, 
Habitat Alternative 6 selected for adoption in Amendment 10 was the 
best.
    Response: Habitat Alternative 6 was selected for implementation. 
The analysis in the FSEIS shows that this alternative provides a 
significant amount of EFH protection (FSEIS Section 8.5.2.2 ). In 
addition, this closure alternative provided the best balance, in 
considerations of EFH regulations, insofar as it protects habitat 
without causing significant revenue losses for the scallop, groundfish, 
monkfish, or other fisheries. Accordingly, NMFS found it to be 
practicable and appropriate to implement (FSEIS Section 8.5.6.4.6).
    Comment 15: One commenter opposed 4-inch (10.2-cm) rings as a 
habitat measure on grounds that it will have increased impacts on EFH.
    Response: The anlaysis provided in the FSEIS (Section 8.5.4.11) 
recognizes that initially there may be an increase in the area swept by 
dredges in order to compensate for more escapement of smaller scallops 
through larger rings. But this result is likely to diminish 
significantly after the first year as the average size of scallops 
increases throughout the range of the fishery. The result of the 
increased size composition of the scallop resource is expected to be a 
decrease in area swept. In the long-term, area swept is expected to be 
approximately 15 percent lower than Amendment 10 alternatives with 3.5-
inch (8.9-cm) rings. Therefore, the long-term benefits to habitat 
outweigh the short-term impacts.
    Comment 16: One commenter expressed concern about the habitat 
impact analysis in the FSEIS, asserting that the sediment maps continue 
to be used in ways that are not appropriate; that much more of the 
recent scientific studies on mobile gear impacts on the seabed are not 
included; that many of the projected impacts are based on different 
gear (e.g., European toothed dredge) or on different types of bottom 
not found in the Atlantic scallop fishery; and that many of the basic 
analytical flaws remain to be addressed.
    Response: NMFS disagrees with this characterization of the 
analysis. The sediment data utilized in the analysis are the only data 
available that span the entire region. Although some other data exist, 
they do not cover a sufficiently large geographic area to be useful for 
a comprehensive evaluation of regional closure options. The limitations 
of the data are recognized in the FSEIS (Section 8.5.2.1) and are taken 
into account within the analyses. The FSEIS contains the most recent 
available scientific information pertaining to the effects of bottom-
tending mobile gear and provides a literature review summarizing this 
recent information (FSEIS Section 7.2.6.2.4.6). Studies related to the 
effects of bottom-tending mobile gear on habitat are continually being 
published. However, not all studies are relevant to the Northeast, 
either due to the habitat type studied or the gear utilized. Recent 
studies that are not relevant to the Northeast or unpublished reports 
or reports that were not available to the authors of the document, were 
not included. Although the FSEIS references some large-scale 
comprehensive studies on the effects of trawls and dredges on habitat, 
and summarizes those findings, the gear effects determinations (FSEIS 
Section 7.2.6.3.4.) are based primarily upon existing regional 
literature, the results of a Northeast Region Gear Effects Workshop, 
the distribution of fishing in the Northeast region, and the 
vulnerability of EFH to the types of disturbances caused by gear used 
in the Northeast.
    Comment 17. One group stated that NMFS must revise the description 
of scallop dredge gear in the FSEIS because it is inaccurate and 
misleading.
    Response: Appendix VI of the FSEIS describes the New Bedford style 
scallop dredge. Much of the description of this gear is based upon the 
results and report of the 2001 Northeast Gear Effects Workshop, as well 
as on published literature on this gear. The description describes 
those elements of the dredge that contact the bottom. It was not, 
however, the purpose of the gear description section to discuss the 
potential habitat impacts associated with this gear. The effects of 
this gear on habitat are more fully described in FSEIS Section 
7.2.6.2.4.6.2, based upon published scientific literature.
    Comment 18: One group commented that NMFS must revise the gear 
impacts analysis to take into account the recovery time for gravel 
habitat.
    Response: The Council and NMFS took habitat recovery time, 
including gravel habitat recovery time, into account when developing 
Amendment 10. The FSEIS in Section 7.2.6.3.4 discusses adverse impacts. 
Forty-four relevant peer-reviewed and non-peer-reviewed publications 
were included in the literature review comprising the best available 
science on the subject. Recovery rates were provided when reported by 
the authors of the scientific studies. Discrepancies between recovery 
rates listed in tables 139-142 and those reported by the 2001 Gear 
Effects Workshop are due to the subjective nature of the responses 
provided by the Workshop participants compared to the research results 
published by various authors. Therefore, NMFS is confident that the 
best available science was utilized in the fishing gear effects 
analysis consistent with National Standard 2.
    Comment 19: One group commented that NMFS must reject Habitat 
Alternative 2 because it specifically relies on the purported 
incidental benefits of non-habitat related measures in the FMP.
    Response: Habitat Alternative 2 is not the only alternative being 
relied upon to minimize the adverse effects of fishing on EFH. It 
represents only a part of a strategy for habitat impact reduction, and 
should not be considered in isolation. The strategy for minimizing the 
adverse effects of fishing on EFH to the extent practicable includes 
the effort reductions provided in Habitat Alternatives 2 and 7, the 
direct benefits of closing areas to bottom-tending mobile gear in 
Habitat Alternative 6, and the indirect benefits of habitat research in 
Habitat Alternative 12. The EFH regulations specifically require that 
the evaluation of fishing effects should list management actions that 
minimize potential adverse effects on EFH and describe the benefits of 
those actions to EFH. Habitat Alternative 2 includes approximately 16 
measures that will be implemented to achieve the non-habitat goals of 
Amendment 10 and provides indirect net benefits to EFH (see analysis in 
Section 8.5.4.2 of the FSEIS and Table 221).
    Comment 20: One group commented that NMFS must partially reject the 
proposed GB habitat closures in Habitat Alternative 6 because it 
weakens habitat protection compared to the No Action Alternative.
    Response: Implementation of Habitat Alternative 6 establishes a 
series of

[[Page 35201]]

habitat closed areas within the Gulf Of Maine (GOM), GB, and Southern 
New England (SNE), which prohibit the use of scallop dredges and 
scallop trawls. These closed areas total 4,041 square nautical miles 
and encompass 7.9 percent of the total of all vulnerable EFH for all 43 
species/life stages (17.4 percent of juvenile cod EFH) (see Table 203 
in the FSEIS).
    However, it is not the amount of area closed that provides the 
basis of comparison between Alternative 6 and the No-Action 
Alternative, so much as it is the purposes for the closures in the 
respective alternatives. Alternative 6 is intended to directly protect 
habitat from the adverse impacts from bottom-tending mobile gear used 
in the scallop fishery. In other words, Habitat Alternative 6 provides 
closures specifically to protect EFH, whereas the No-Action Alternative 
considers closures, not specifically for any habitat reason (although 
habitat might incidentally benefit), but for purposes related to 
groundfish mortality. Because the No-Action Alternative closures are 
established for reasons other than habitat protection, the areas under 
that alternative are available to access by various bottom-tending 
mobile gears, and such closures might prove to be more temporary, 
intermittent, and less valuable for habitat as compared to the specific 
habitat protections afforded under Alternative 6 (FSEIS Section 
8.5.4.1). Accordingly, the No-Action Alternative is not directly 
comparable to Alternative 6 because of the type of closure it 
represents, and its listing in the various tables in Section 8.5 of the 
FSEIS is more to provide both context and a point of reference for 
closed area alternatives. This is why Section 8.5.3 of the FSEIS (EFH 
Benefits of Habitat Alternatives) does not compare the No Action 
Alternative to the 12 closed area alternatives.
    Alternative 6 does not weaken EFH protection for any species and, 
in fact, the FSEIS shows that Habitat Alternative 6 is a more effective 
alternative. It provides permanent or better defined EFH protection in 
comparison to the zero permanent or indefinite protection provided by 
the No Action Alternative.
    Comment 21: One commenter indicated that NMFS must partially reject 
and revise the DEIS to identify, develop, and adopt a broad range of 
alternatives that protect various percentages, including 100 percent of 
juvenile cod EFH and known complex gravel areas, from scallop dredging 
and other bottom-tending mobile gear.
    Response: NMFS believes that the Amendment 10 FSEIS contains a 
broad range of reasonable alternatives, which has provided the Council 
and NMFS with the ability to make an informed decision on Amendment 10. 
NEPA does not require that every conceivable alternative be analyzed, 
but rather only reasonable alternatives. These alternatives must be 
viewed holistically, and not in isolation.
    The Amendment 10 FSEIS concludes (Section 7.2.6.3) that there are 
24 managed species, and 43 distinct life stages, that have EFH that is 
vulnerable to the effects of bottom-tending mobile gear. The Magnuson-
Stevens Act requirement for Amendment 10 is to minimize, to the extent 
practicable, the adverse effects of scallop fishing on the EFH of these 
43 species/lifestages, not all of which utilize or require the same 
habitat type (FSEIS Table 215). Amendment 10 undertook an approach to 
balance EFH protections among all 43 species/lifestages instead of 
targeting minimization measures on one or a few species/lifestages. 
Amendment 10 contains a series of management measures that represent 
several major strategies for providing direct and indirect protection 
to a wide variety of vulnerable EFH.
    As stated in Response to Comment 20 above, implementation of 
Habitat Alternative 6 establishes a series of habitat closed areas 
within the GOM, GB, and SNE that prohibit the use of scallop dredges 
and scallop trawls. These closed areas total 4,041 square nautical 
miles and encompass 7.9 percent of the total of all vulnerable EFH for 
all 43 species/life stages and 17.4 percent of juvenile cod EFH (see 
Table 203 in the FSEIS). Therefore, juvenile cod EFH, as well as the 
EFH of 40 other species/life stages, is afforded direct protection 
against the adverse impacts from bottom-tending mobile gear.
    The FSEIS concludes that complex hard-bottom (gravel) habitats are 
vulnerable to the adverse effects of bottom-tending mobile gear. 
However, the FSEIS also shows that hard-bottom sediments are not the 
only vulnerable EFH. The EFH for other species found in sand, soft 
sediments, silt, mud, and soft mud have also been determined to be 
highly vulnerable to the adverse effects of bottom-tending mobile gear 
(Table 215 of FSEIS). Amendment 10 provides a balanced approach to EFH 
protection and protection of these substrate types.
    The substrate analysis provided in the FSEIS (Section 8.5.2.1) 
shows the percent composition within each closed area based upon six 
sediment characteristics: Bedrock, gravel, gravelly sand, sand, muddy 
sand, and mud. Table 201 in the FSEIS shows that, out of the 83,550 
square nautical miles included in the Northwest Atlantic analysis area, 
53,856 square nautical miles are composed of sand/gravelly sand 
representing 64 percent of the entire area. Less than 1 percent of the 
Northwest Atlantic analysis area has been mapped as gravel or bedrock. 
These complex hard bottom areas of bedrock and gravel are not uniformly 
distributed (see Map 53 and 55 of the FSEIS) and are difficult to 
encompass in closed areas without including large amounts of sand and 
other substrates. The closed area alternatives analyzed in the FSEIS 
encompass anywhere from 0 to 72 percent of the mapped gravel areas. 
Habitat Alternative 6 includes all substrate types representing 
vulnerable EFH, except bedrock. Compared to the Northwest Atlantic 
analysis area, Alternative 6 includes 17 percent of the gravel, 16 
percent of the gravelly sand, 5 percent of the sand, 6 percent of the 
muddy sand, and 2 percent of the mud (Table 201 of the FSEIS).
    Comment 22: One commenter urged NMFS to partially reject and modify 
Amendment 10 to include mitigation measures to protect mapped gravel 
habitats in areas within Closed Area 1, the Nantucket Lightship Closed 
Area, and rotational management areas proposed to be opened to scallop 
dredging.
    Response: See response to Comment 21 above. In addition, NMFS is 
limited in its authority pursuant to Section 304(a)(3) and could not 
unilaterally include additional management alternatives.
    Comment 23: One group urged NMFS to consider development of a 
rotational management alternative based on the group's proposals 
submitted to the Council during the scoping process and its comments 
submitted in 2001 on Amendment 10.
    Response: Consideration of rotational management based on habitat 
and bycatch protection is discussed in the response to comments 9 and 
29. NMFS and the Council considered all of the group's proposals 
provided during scoping, and did, in fact, adopt aspects of the 
proposals. In response to this comment submitted on the DSEIS, NMFS 
prepared a summary of the proposals and their resulting alternatives in 
response to Comment 115 included in Section 19, ``Response to 
Comments,'' of the FSEIS (see ADDRESSES).
    Comment 24: One group urged NMFS to implement an interim closure 
via emergency rule to establish: (1) A no-trawl/dredge zone in the top 
30-50 percentile of designated juvenile GB cod

[[Page 35202]]

EFH; and (2) sufficient protection to protect known complex gravel 
habitats on the northern edge of GB and in areas west of the Great 
South Channel.
    Response: This was not a measure considered in Amendment 10. NMFS 
cannot initiate such emergency rule making to implement the recommended 
closures unless it can be determined that an emergency justifying such 
closures exists, and the commenter offers no justification that such an 
emergency exists.
    Comment 25: One commenter stated that NMFS failed to mention that 
the Council, through Framework Adjustment 16 to the FMP, replaced 
Habitat Alternative 6 in Amendment 10 with Habitat Alternative 10b, and 
that the Amendment 10 FSEIS fails to notify the public of this change.
    Response: Joint Frameworks 16/39 have been submitted to NMFS for 
review and approval, but the Council had not approved any alternatives 
for Joint Frameworks 16/39 prior to the publishing of the FSEIS for 
Amendment 10. The Amendment 10 FSEIS repeatedly recognizes that a 
framework adjustment is a necessary next step in scallop rotational 
area management. The FSEIS also recognizes that there are some 
differences between habitat closed area alternatives in Scallop 
Amendment 10 and Groundfish Amendment 13 and that Habitat Alternative 6 
could be replaced by Habitat Alternative 10b from Groundfish Amendment 
13 (See Table 151 in FSEIS). However, the Council and NMFS have not yet 
taken final action on Joint Frameworks 16/39 and will not take final 
action until the NEPA process has been completed. One of the critical 
issues that will be evaluated in the Joint Frameworks 16/39 with 
respect to any reconfiguration of habitat closed areas under Amendment 
10 is whether or not there will be a change in overall EFH protections.
    Comment 26: One commenter stated that the information included in 
Amendment 10 does not support the closures included in Amendment 10 to 
minimize the adverse effects of scallop fishing on EFH to the extent 
practicable. The commenter states that EFH closure alternatives 
included in Addendum I to the Amendment 10 FSEIS would be better suited 
to minimize the adverse effects of scallop fishing on EFH to the extent 
practicable, and that NMFS could defer action to close areas until a 
future action.
    Response: The EFH alternatives implemented by this final rule were 
determined to minimize adverse effects of fishing on EFH to the extent 
practicable in accordance with all applicable law, as is more fully 
discussed in responses to Comments 7 through 11 above.

Comments on Bycatch

    Comment 27: Two commenters stated that Amendment 10 does not meet 
Magnuson-Stevens Act requirements to minimize bycatch and bycatch 
mortality to the extent practicable. One of commenters recommended that 
NMFS adopt long-term closures for bycatch.
    Response: The Council considered several alternatives designed to 
minimize bycatch and bycatch mortality to the extent practicable, 
including seasonal and long-term closures, gear restrictions, and area 
rotation based on the protection of species caught as bycatch. In 
considering national standards and other Magnuson-Stevens Act 
provisions and bycatch reduction measures already in place with the 
impacts of additional bycatch measures, the Council determined, and 
NMFS agrees, that the proposed large area closure alternatives were not 
practicable because of the negative overall impacts on scallop vessels 
that would result, combined with existing closed areas and area 
rotation measures. The gear modifications and combined effect of other 
management measures and effort reductions already in place and included 
in Amendment 10 are expected to reduce bycatch of small scallops, 
finfish vulnerable to capture in scallop dredges, skates, and monkfish.
    Comment 28: One commenter stated that Amendment 10 relies on a 
single measure to reduce bycatch (10-inch (25.4-cm) twine tops), which 
does not address barndoor skate bycatch.
    Response: Numerous scallop management measures are already in place 
that significantly reduce bycatch, such as DAS restrictions, crew size, 
closed areas, and gear restrictions. In addition, the Council 
considered several additional alternatives to reduce bycatch in the 
scallop fishery, including gear modifications and time and area 
closures, and recommended those measures necessary to reduce bycatch to 
the extent practicable. The rationale for the bycatch measures included 
in Amendment 10 and for those not recommended as part of Amendment 10 
is included in Table 1, and Sections 5.1, 6.1.9 and 8.3 of the FSEIS. 
Amendment 10 increases the minimum twine-top mesh size for scallop 
dredges from 8 inches (20.3 cm) to 10 (25.4 cm) inches to reduce 
bycatch and concluded that the rotational management fishing 
restrictions and area closures would further minimize bycatch and 
bycatch mortality. The increased twine-top mesh size has proven to be 
an effective measure to reduce bycatch, particularly of flounder 
species often caught by scallop dredge gear. Area rotation area access 
programs and area closures are projected to further reduce bycatch by 
limiting fishing time and preventing access to some areas. Amendment 10 
does not include additional closures specifically to reduce finfish 
bycatch because the information available was inadequate to clearly 
demonstrate that specific area closures would be effective. In 
addition, in view of closed areas already established under the 
Multispecies FMP and rotational closures implemented by Amendment 10, 
additional closures for bycatch protection would not be practicable 
because, while the bycatch reduction was not quantifiable, the negative 
impacts on the fishery were, and the impacts were determined to be 
significant. Future area access programs may establish TAC levels for 
bycatch species that would stop scallop fishing in an access area when 
the TAC for the bycatch species is attained. The Council has adopted 
such a provision for yellowtail flounder as part of Joint Frameworks 
16/39, which has been submitted to NMFS for review and implementation.
    The Council considered several alternatives to minimize bycatch, 
including skate species and barndoor skate in particular. Although 
information supported measures designed to minimize finfish bycatch 
overall, the Council, did not have information available to identify 
measures specifically to reduce the bycatch of skates. Amendment 10 
therefore relies on reductions in fishing time associated with 
increased fishing efficiency with 4-inch (10.2-cm) rings in the long-
term and area rotation. Skates are also known to be less susceptible to 
discard mortality than other species. Nevertheless, the Council and 
NMFS remain concerned about bycatch of skate species and will continue 
to seek ways to minimize their catch in the scallop fishery.
    Comment 29. One group commented that the FSEIS failed to adequately 
develop and analyze an area-based management and rotation plan based 
bycatch protection.
    Response: The effects of area rotation is expected to also provide 
benefits for finfish species caught as bycatch. Area rotation is 
expected to improve scallop fishing efficiency which would in turn 
reduce bycatch as tow times decrease. The Council did not consider an 
alternative that would have resulted in rotational area management 
based in part on bycatch, because there is insufficient information to 
support such a management approach at this time.

[[Page 35203]]

    Comment 30: One commenter supported measures to reduce bycatch, 
specifically the 10-inch (25.4-cm) twine-top requirement, and the 
proactive protected species program.
    Response: NMFS agrees that the 10-inch (25.4-cm) twine top 
requirement will reduce bycatch in the scallop fishery. The proactive 
protected species program will enable the Council to address new 
information regarding interactions between the scallop fishery and sea 
turtles it becomes available.
    Comment 31: Two groups commented that Amendment 10 fails to 
establish a standardized bycatch reporting methodology to assess the 
amount and type of bycatch occurring in the scallop fishery.
    Response: In accordance with the Magnuson-Stevens Act, NMFS is 
developing a nationwide bycatch protocol that describes common elements 
of a standardized bycatch reporting methodology (SBRM) for fisheries 
under NMFS's jurisdiction. Consistent with this protocol, the FMP and 
Amendment 10 contain many measures that satisfy the elements of the 
SBRM, which will further develop the bycatch reporting methodology to 
assess the amount and type of bycatch in the scallop fishery. To assess 
bycatch, the scallop fishery relies mainly on mandatory data collection 
program (vessel trip reporting and dealer reporting) that has been in 
effect since 1994, combined with a fishery observer program. The 
Fisheries Observer Program provides the most reliable bycatch 
information and is the foundation of bycatch estimates used in 
Amendment 10. Amendment 10 provides for enhanced sea sampling by 
expanding the scallop TAC and DAS set-aside program that compensates 
vessels for carrying an observer when fishing outside of access areas 
under DAS. The set-aside program therefore would increase the number of 
observers that can be dedicated to the scallop fishery by supplementing 
NMFS's observer funding. The additional data will improve estimates of 
the amount and type of bycatch occurring in the scallop fishery. The 
mechanism for establishing observer set asides of TAC and DAS is a 
permanent measure, but future framework actions could adjust the amount 
of the set-asides, if necessary to provide more data. The vessel trip 
report (VTR) requires vessel operators to report discards by species, 
although the VTRs alone are not sufficient to adequately estimate 
bycatch. Scallop vessels are fully equipped to report bycatch through 
their vessel monitoring systems and would be required to do so if hard 
TACs are enacted for scallops or yellowtail flounder under Joint 
Frameworks 16/39. Further, new electronic dealer reporting requirements 
are in place and will improve real-time data for landed components of 
catch in scallop and other fisheries.
    Comment 32: One commenter stated that the bycatch assessment 
analysis relies on incomplete and outdated data.
    Response: The analysis of bycatch is based on the best available 
data, including observed sea scallop trips and VTR. The Amendment 10 
analysis relies on observed trips pooled over several years (for a 
total of 28,000 observed tows) and observer data from the controlled 
access programs in groundfish closed areas and the Hudson Canyon Access 
Area. Although these data could be significantly augmented, no other 
reliable data was available for use in Amendment 10. The analyses are 
included in the Amendment 10 FSEIS in Section 7.2.4.1, Section 8.3, and 
Appendix IX.
    Comment 33: Two commenters stated that the level of observer 
coverage expected in the scallop fishery, including coverage resulting 
from the TAC and DAS set-asides, is insufficient to characterize 
bycatch and bycatch mortality, including takes of threatened and 
endangered sea turtles. The commenters recommended that NMFS require 50 
percent observer coverage in the MA and 20 percent coverage on GB based 
on a study conducted in 2003 on the level of observer coverage needed 
to estimate bycatch.
    Response: The cited study (conducted in 2003 on the level of 
observer coverage needed to estimate bycatch) recommended that in the 
absence of available data, coverage rates of 20 to 50 percent were 
appropriate, based on results of two simulation studies. The study also 
recommended that when information about expected rarity, distribution, 
and variability of bycatch species is available, it should be used to 
construct appropriate stratification schemes to reduce the amount of 
sampling effort required to achieve a given level of precision. Because 
existing observer data are available from the sea scallop fishery, 
these data were used to design a stratified random sampling regime. 
Sampling is expected to provide estimates of sea turtle bycatch with a 
coefficient of variation of 30 percent. This coverage, combined with 
coverage anticipated from the TAC and DAS set-asides, will 
substantially reduce the coefficient of variation for species of 
finfish caught as bycatch in the scallop fishery, but the amount of the 
reduction will vary from stock to stock. Results from the current plan 
will be used to refine or revise the sampling design in future years, 
and adjust set-aside amounts, as appropriate.
    Comment 34: One commenter stated that Amendment 10 does not 
consider an adequate range of alternatives and mitigating measures to 
protect sea turtles and that NMFS would likely take no action to 
protect sea turtles in the next 3 years.
    Response: The Council considered the interactions between the 
scallop fishery and sea turtles throughout its development of Amendment 
10, which is fully documented in the amendment and the biological 
opinion (BO) conducted regarding impacts of the FMP and the scallop 
fishery on sea turtles. Although the Council considered alternatives 
that would have closed areas in the MA to scallop fishing, it could not 
be determined whether the resulting redistribution of effort throughout 
the rest of the MA would increase or decrease fishery interactions with 
sea turtles, which occur seasonally throughout the MA.
    The ``Proactive Protected Species Program'' included in Amendment 
10 provides an abbreviated mechanism for the Council to use to 
recommend management measures based on new information obtained about 
sea turtle and scallop fishery interaction. The increased observer 
coverage in the scallop fishery as a result of Amendment 10 should 
provide additional data on sea turtle takes that could be used to 
develop future measures. On February 23, 2004, NMFS completed a BO 
under Section 7 of the Endangered Species Act (ESA) that concluded that 
the continued operation of the scallop fishery, including measures 
proposed in Amendment 10, is expected to adversely affect endangered 
and threatened sea turtles (loggerhead, Kemp's ridley, green, and 
leatherback), but would not jeopardize the continued existence of these 
species. In the incidental take statement (ITS), the BO considered new 
information that identified 12 sea turtles taken in the scallop fishery 
outside of the MA Access Areas through October 2003. The BO anticipates 
the take of up to 111 animals of the affected species annually in the 
scallop fishery. Sea turtle takes in excess of the ITS, or new 
information that reveals effects of the fishery that were not 
previously considered during consultation, would require NMFS to 
reinitiate Section 7 consultation and would trigger the Council's 
development of measures to mitigate takes under the Proactive Protected 
Species Program.
    As part of the TAC set-aside program under Framework 15 to the FMP, 
NMFS

[[Page 35204]]

authorized a research project to be conducted during the 2004 fishing 
year which were designed to identify gear modifications that may reduce 
captures of sea turtles in scallop dredges. Preliminary results 
reported by the participants are promising, indicating that increasing 
the amount of chain gear used in the opening on the bottom of the 
dredge is reducing sea turtle captures. The BO utilized some of the new 
information acquired through this research. Final work and analysis of 
the research is being conducted, and could, following review, be used 
to develop a management action under the Proactive Protected Species 
Program.
    Comment 35: Twenty-eight comments were received in opposition to 
the proposed restriction on limited access scallop vessels fishing 
outside of DAS. U.S. Representatives Saxton (NJ); LoBiondo (NJ); Smith 
(NJ); and Pallone (NJ); Senators Lautenberg (NJ) and Corzine (NJ); the 
Mid-Atlantic Fishery Management Council (Mid-Atlantic Council); several 
fishermen; and industry representatives commented that NMFS should 
disapprove the proposed measure because limited access scallop vessel 
owners from NJ, who account for the majority of the landings of 
scallops by limited access scallop vessels fishing outside of scallop 
DAS, would be severely and unequally impacted by the measure. They 
stated that the 400-lb (181.4-kg) limit contributes to these vessels' 
economic viability and allows them to maintain crews between DAS trips 
and that no other similar restrictions were planned for general 
category vessels or for vessels fishing under combination permits. 
Comments also stated that the measure was not supported by the best 
available scientific information.
    Response: For the reasons stated in the Background section of the 
preamble of this final rule, the proposed restriction on limited access 
vessels fishing outside of scallop DAS was disapproved.
    Comment 36: One commenter supported the area rotation program and 
the measures to ensure flexibility under area rotation.
    Response: NMFS agrees that area rotation and the measures to 
promote flexibility are appropriate for scallop management and is 
implementing this system through this final rule.
    Comment 37: One commenter opposed area rotation because it would 
result in confusion about where vessels can fish.
    Response: Rotational area management will apply only to vessels 
issued scallop permits. No new restrictions will be placed on vessels 
fishing for other species within the regulations for that fishery. 
Scallop vessel owners will receive a Small Entity Compliance Guide that 
will adequately explain the new provisions implemented by this final 
rule. In the future, scallop vessel owners will be informed of any 
changes to the area rotation management scheme so that they will be 
prepared for new area openings and closures.
    Comment 38: One commenter supported the Hudson Canyon access 
program and encouraged swift closure of the Elephant Trunk area.
    Response: NMFS has approved these measures in Amendment 10 and is 
implementing them through this final rule.
    Comment 39: One commenter stated that access to groundfish closed 
areas is vital to the success of Amendment 10.
    Response: Scallop fishing within the groundfish closed areas would 
provide long-term benefits to the scallop fishery by allowing scallop 
fishing effort to occur on large concentrations of scallops within the 
areas. However, access to the groundfish areas must be approved through 
an action consistent with and promulgated under the Northeast 
Multispecies FMP. The Council has recently approved and submitted to 
NMFS for review Joint Frameworks 16/39 for this purpose.
    Comment 40: The Council recommended that the name of the closed 
area in the MA remain the Elephant Trunk closed area.
    Response: NMFS received no other comments on this issue indicating 
that the use of the name ``Elephant Trunk'' would be confusing. 
Therefore this final rule does not rename that area.
    Comment 41: One commenter expressed concern about allowing general 
category vessels to retain 400 lb of scallops within Sea Scallop Access 
Areas.
    Response: NMFS determined that the intent of the Council was to 
allow general category vessels to retain up to 400 lb (181.4 kg) of 
shucked scallops or 50 U.S. bu (17.6 L) of in-shell scallops per trip 
inside Sea Scallop Access Areas and that such access was adequately 
justified in the Amendment 10 FSEIS. Therefore, this measure was 
approved in Amendment 10 and is implemented through this final rule.
    Comment 42: Two commenters opposed the DAS allocation system in 
Amendment 10 that specifically allocates DAS to the access areas. One 
of the comments stated that, for larger vessels that typically harvest 
more than 18,000 lb (8,164.7 kg) of scallops per trip, the new access 
area possession limit would result in a significant decrease in scallop 
supply for the processing company. Requiring vessels to fish within the 
access areas may reduce product quality and may jeopardize the safety 
of the crews. One commenter stated that economic impacts of area-
specific DAS is not well explained and that significant economic 
impacts would result. Nevertheless, the commenter supported the area-
specific effort allocation scheme because it would stabilize the 
management program and provide for OY on a continuing basis. The 
commenter urged NMFS to implement the broken trip provision to offset 
negative impacts of the new program.
    Response: The economic impacts of area rotation and effort 
allocation schemes are presented in Section 8.7 of the FSEIS. The 
analysis thoroughly compares alternatives. It is expected that most 
limited access scallop vessels will fish within the Sea Scallop Access 
Areas so that they make use of all of the available fishing 
opportunities. Social impacts are more difficult to assess, since the 
impacts would depend on preferences of vessel owners and the ability 
for vessel owners to adapt to the new measures. The social impacts are 
described in Section 8.8 of the FSEIS.
    The 18,000 lb (8,164.7 kg) possession limit was determined by the 
Council to meet the fishing mortality objectives of the area rotation 
program and allow effort to be spread evenly among the scallop fleet. A 
higher possession limit would have resulted in fewer trips because it 
would take less time to harvest the TAC. Variable trip limits by vessel 
size was not considered.
    NMFS agrees that the broken trip provision, as well as the one-for-
one trip exchange provision, will offset the potential adverse effects 
of the more rigid effort allocation system.
    Comment 43: One commenter stated that requiring DAS use in access 
areas is not in the best interest of the resource or the industry and 
that area management should be to protect juvenile scallops and 
groundfish only, not to manage the way that vessels fish.
    Response: Amendment 10 implements an area-based management program 
that directs scallop fishing effort into areas where carefully 
considered levels of fishing effort is allowed. Therefore, management 
of scallop fishing effort in the areas is critical to prevent 
overfishing and promote achievement of OY.
    Comment 44: One commenter expressed concern that the broken trip 
provision eliminated the ability for vessel operators to determine the 
need to terminate a Sea Scallop Access Area trip.

[[Page 35205]]

    Response: It was not NMFS's intent to eliminate such flexibility, 
and this final rule clarifies that vessel operators will have the 
discretion to terminate Sea Scallop Access Area trips as necessary.
    Comment 45: One commenter supported the provision that allows 
vessels to be compensated for trips that were terminated early. The 
commenter expressed concern that the provision included in the proposed 
rule did not allow the flexibility for the vessel captains to determine 
the need to terminate trips.
    Response: The broken trip provision is included in this final rule, 
with some modifications as identified in the Changes from Proposed Rule 
to Final Rule section of this preamble. NMFS did not intend to 
eliminate captain discretion in determining whether or not it is 
appropriate to leave an access area. This final rule clarifies this 
issue.
    Comment 46: One Commenter stated that there should be no 
compensation for vessels that terminate trips early and that, if 
included, the process would complicate administration and enforcement 
of the FMP measures.
    Response: The measure is necessary to mitigate the constraints of 
the more inflexible system of area-specific effort allocation and to 
enhance the ability of the scallop fishery to achieve OY. While the 
measure that allows vessels to resume trips that have been terminated 
early may make the FMP somewhat more difficult to administer, NMFS has 
determined that the measure is feasible.
    Comment 47: One Commenter expressed concern about the regulations 
pertaining to Sea Scallop Access Area one-for-one trip exchanges. The 
Commenter suggested that vessel owners should be allowed to conduct the 
exchanges and simply notify NMFS when the exchange has been made.
    Response: NMFS must retain administration responsibilities for the 
one-for-one trip exchange program in order to ensure that vessels 
involved in an exchange have adequate trips to exchange. This 
administration will be particularly important in 2004 because numerous 
vessels have already taken trips into the Hudson Canyon Access Area, 
limiting trip exchange availability.
    Comment 48: One Commenter opposed the program that allows one-for-
one exchanges of Sea Scallop Access Area trips because it is confusing.
    Response: While the trip exchange provision may appear to be 
somewhat complicated, it is necessary to provide flexibility for vessel 
owners that may not be able to make long trips to fish in distant Sea 
Scallop Access Areas. Such vessel owners could exchange a trip in an 
area inaccessible to them for a trip in a more accessible area. There 
would be no net change in the total number of trips for each area. NMFS 
will fully explain the trip exchange program in its Small Entity 
Compliance Guide for Amendment 10, which will be sent to all permit 
holders in the fishery.
    Comment 49: Two Commenters urged NMFS to change the DAS default 
trigger date in Amendment 10 to September, to avoid confusion and 
complications when/if Joint Frameworks 16/39 are implemented.
    Response: Because changing the default date in the final rule to 
September 15, 2004, is an administrative matter based on timing of 
Joint Frameworks 16/39, with no conservation impacts, the suggested 
change has been made in the final rule.
    Comment 50: One Commenter stated that the increase in the dredge 
gear ring size from 3.5 to 4 inches (8.9 to 10.2 cm) in the Open Areas 
is not supported by analyses in the FSEIS and would cause significant 
economic harm to the scallop industry.
    Response: The Amendment 10 analyses show that, over the long-term, 
4-inch (10.2-cm) rings would improve yields from the scallop resource, 
reduce bottom area swept, and increase revenues. Amendment 10 
establishes a long-term management approach that incorporates a wide 
range of measures to improve yield from the scallop resource while 
protecting EFH and minimizing bycatch to the extent practicable. The 
analysis shows that revenues for the first several years of management 
under Amendment 10 may be negatively affected by the ring size 
increase. However, the higher escapement of small scallops due to the 
use of 4-inch (10.2-cm) rings means that over time, more scallops will 
grow to a larger size. Over time, the composition of the scallop catch 
with 4-inch (10.2-cm) rings will be predominated by larger, more 
valuable scallops than would be possible using 3.5-inch (8.9-cm) rings. 
Over the long-term, therefore, the use of 4-inch (10.2-cm) rings would 
increase efficiency and catch of larger scallops, improve yields from 
the scallop resource, and increase revenues. More fishing effort may be 
spent initially by vessels to make up for potential losses in catch 
associated with the larger dredge ring size increase, thereby 
decreasing the short-term benefits to EFH and the insustry. However, 
this measure is consistent with achievement of the long-term goals of 
Amendment 10, and is supported by the Amendment 10 analyses.
    Comment 51: The Council recommended a 4 to 6-week delay in the 
effective date of the 4-inch (10.2-cm) ring requirement in the Hudson 
Canyon Access Area and a 6-month delay for all other areas, as proposed 
in Amendment 10.
    Response: This final rule reflects the Council's recommended delay 
in effectiveness.
    Comment 52: One Commenter stated that the reasons for not adopting 
12-inch (30.5-cm) twine top mesh size was due to projected economic 
losses resulting from a loss of scallop catch, and an increase in tow 
times resulting from reduced catch efficiency.
    Response: This rationale is provided in the Amendment 10 FSEIS. 
NMFS has therefore decided to approve the Council's recommendation and 
implement the 10-inch (25.4 cm) twine top mesh size.
    Comment 53: One Commenter supported observer and research TAC and 
DAS set-asides, but cautioned NMFS to not let the research TAC and DAS 
set-aside program to delay research.
    Response: NMFS will make efforts to ensure that research is not 
impeded by the review process involved in the research TAC and DAS set-
aside program. The Request for Proposals was published on April 15, 
2004 (69 FR 19983) and NMFS has initiated the review process for 
submitted projects.
    Comment 54: The Council recommended that the amount of DAS 
compensation for vessels carrying an observer should not be uniform for 
all trips.
    Response: NMFS agrees and has clarified the requirement in this 
final rule.
    Comment 55: One commenter stated that the full costs of observers 
should be paid by industry, that there should not be an allowance for 
extra DAS for vessels with observers, and that a high fee for vessels 
to fish should be established to help build funds for observers.
    Response: NMFS cannot provide adequate observer coverage on scallop 
fishing trips without supplementary funding and industry payment of 
observer costs. Therefore, the FMP has effectively incorporated TAC 
set-asides to help defray the cost of observers incurred by scallop 
vessels. With the DAS and TAC set-aside system, the industry can be 
compensated for the costs of observers at no detriment to the scallop 
resource. Both the amount of DAS and TAC allowed to compensate for the 
cost of observers are factored into the estimation of the overall TAC 
and DAS estimated to achieve the fishing mortality and biomass goals of 
the FMP.
    Comment 56: One commenter expressed concern that the cost of

[[Page 35206]]

observers included in the proposed rule was excessive and that the 
compensation program is poorly explained and would likely not provide 
sufficient compensation for vessels carrying observers. The commenter 
urged NMFS to clarify the costs of observers and the administration of 
the DAS set-aside program in the final rule, and suggested that trips 
with observers be charged a reduced rate of DAS. If the TAC and DAS 
set-asides are fully utilized prior to the end of the fishing year, 
NMFS notes that vessel owners requested to carry observers will have to 
bear the costs.
    Response: The proposed rule indicated a cost of $1,100 per day for 
observers based on information available at the time the proposed rule 
was published. However, after the proposed rule was published, NMFS 
determined that the daily cost of observers is $719.12 in 2004 rather 
than the previous estimate of $1,100 per day. The Council provided an 
example of how the DAS set-aside compensation system would work in a 
hypothetical example in Section 5.1.8.1 of the FSEIS. This example used 
a daily cost of observers equal to $800 and estimated that a DAS 
adjustment factor of about 0.14 would be sufficient for vessel owners 
to pay for the cost. The analysis included in Section 8.2.4.2 of the 
FSEIS was used to determine the appropriate DAS adjustment factor that 
would provide sufficient observer coverage, while providing sufficient 
funds for vessels to receive compensation for carrying an observer. 
NMFS has again reviewed the information and taken the commenter's 
suggestions into consideration. NMFS has revised the regulations in 
this final rule such that vessels carrying an observer will initially 
be charged DAS at a rate of 0.86 DAS per actual DAS fished. This 
system, rather than adding DAS to a vessel's allocation, will be easier 
to administer with respect to trips taken at the end of the year, and 
will allow carry over DAS to be calculated more easily.
    Comment 57: One commenter urged NMFS to eliminate the framework 
process from the FMP because the framework process ignores the 
requirements of the Magnuson-Stevens Act and other applicable law and 
is not consistent with Congress's intent.
    Response: The framework process is a valid and legal method of 
adjusting fishery management measures. The FMP includes a set of 
management measures that can be adjusted through the abbreviated 
framework process which allows for more timely modifications in 
response to changing fishery, resource, and/or environmental 
conditions.
    Comment 58: One commenter recommended that the framework process 
not include a consideration of the impacts of measures on EFH.
    Response: The Council and NMFS are required by the Magnuson-Stevens 
Act to evaluate the impacts of management measures on EFH and the 
consistency of the measures with the Magnuson-Stevens Act EFH 
requirements. A framework action, however, need not implement 
management measures to minimize the impacts of fishing on EFH if the 
Council determines that such measures are not necessary or are outside 
of the scope of the framework it is developing, and the framework 
measures are consistent with Magnuson-Stevens Act EFH requirements. 
Mitigating measures should be considered if adverse effects of the 
fishery on EFH are potentially increased by a management action (e.g., 
opening a closed area with highly sensitive EFH).
    Comment 59: One commenter opposed the 2-year framework cycle 
stating that the Council's intent was to adjust DAS and area rotation 
every year.
    Response: The Council recommended that the scheduled framework 
actions should occur every 2 years and that scheduled annual 
adjustments would be eliminated. However, this final rule allows that 
Council the flexibility to develop framework actions more frequently, 
as necessary.
    Comment 60: One commenter expressed concern regarding the framework 
process that requires the Council's scallop PDT to recommend measures 
to ensure OY. The commenter stated that the process is illegal and is 
an attempt by NMFS to impose the new overfishing definition that was 
considered but rejected by the Council in development of Amendment 10.
    Response: Because of the potential effect of long-term area 
closures, the existing overfishing definition is not sufficient by 
itself to assure OY from the areas open to fishing. The framework 
process approved in Amendment 10 and implemented through this final 
rule will allow the PDT and the Council the flexibility to take the 
existing status of the resource into account, determine optimum yield-
per-recruit based on the condition of the scallop resource, and devise 
appropriate measures to assure that OY is achieved on a continuing 
basis. The achievement of optimum yield-per-recruit from the resource 
as available for harvest in the upcoming fishing years could result in 
differential fishing mortality rates for various spatial components, as 
long as OY is achieved for the resource as a whole. This process is 
intended to be more flexible than the new overfishing definition that 
was considered but rejected by the Council.
    Comment 61: The Council commented that the cooperative industry 
survey is an integral part of the area rotation program adopted by the 
Council and must be used to provide data at the level of detail 
necessary for use in recommending adjustments to the rotation program. 
The Council commented that there is no precedent for including the 
details of a survey in an amendment or framework, and that such details 
would only constrain the survey. The Council commented that the 
research TAC set-aside would provide sufficient funds and ability for 
the surveys to be completed.
    Response: For the reasons described in the ``Disapproved Measures'' 
section of the preamble to this final rule, NMFS disapproved the 
cooperative industry resource survey provision.
    Comment 62: One commenter recommended that the scallop research 
section of the scallop regulations classify cooperative industry 
resource surveys as scientific research.
    Response: The cooperative industry resource survey provision was 
disapproved.
    Comment 63: One commenter stated that the scallop fishing industry 
should not be allowed to conduct cooperative research.
    Response: The scallop industry has been actively involved in 
research aimed at assisting management decisions for more than 4 years 
through formal research set-aside programs. The industry has assisted 
NMFS and academics in conducting research with results that have been 
used frequently by fishery managers. It is critical that industry 
remain involved as active participants in the research process. 
Amendment 10 therefore establishes a research set-aside of TAC and DAS 
to help fund research while taking into consideration the amount of 
biological removal from the scallop resource.
    Comment 64: One commenter stated that the cooperative industry 
survey is critical to the success of the fully adaptive area rotation 
program, but there is no detailed plan to implement the program. 
However, the commenter stated that the failure to establish protocols 
for the cooperative industry research program is not critical.
    Response: NMFS agrees that surveys with more resolution than the 
NMFS Scallop Survey would help refine fishing area definitions areas to 
apply management measures more precisely. However, NMFS disapproved the 
measure for the reasons discussed in the ``Disapproved Measures'' 
section of the preamble of this final rule.

[[Page 35207]]

Comments on Economic Impacts

    Comment 65: One commenter stated that the social and economic 
impacts analyses are insufficient and are misleading because they use 
1996 dollar values to evaluate impacts. The commenter urged NMFS to 
incorporate more recent economic data.
    Response: At the time that Amendment 10 was completed, existing 
guidance from the Office of Management and Budget was that analyses 
should use 1996 dollars as a baseline, with subsequent year's dollar 
values discounted to be consistent with the value of 1996 dollars. The 
Council's economic analysis complied with this guidance by using 1996 
dollars to evaluate the economic impacts of measures. Comparisons of 
all of the considered alternatives is facilitated by the use of a 
single dollar value, taking out the effect of inflation. Nevertheless, 
the FSEIS includes some references to more recent values, so reasonable 
comparisons can still be made.
    Comment 66: The Council suggests that the estimated compliance cost 
to the industry for the broken trip provision is an upper limit, and 
would not likely be exceeded.
    Response: For the purpose of estimating compliance cost, the 
proposed rule estimated the maximum number of respondents to evaluate 
compliance costs. Otherwise, compliance costs would be underestimated.
    Comment 67: The Council commented that the differential effects of 
area rotation are expected to vary, because areas of varying 
recruitment would result in varying closed and access area 
designations, not, as explained in the proposed rule, because of the 
different mobility of vessels and different reactions by the industry.
    Response: While NMFS does not disagree, the discussion in the 
proposed rule was taken from the Council's discussion of distributional 
impacts included in Section 9.2.3 of the FSEIS.
    Comment 68: The Council commented that the economic impacts 
analysis of the proposed restriction on limited access scallop vessels 
fishing outside of the DAS program might be strengthened by estimating 
the potential loss of DAS and revenues for limited access vessels if 
there were reductions in DAS caused by an increase in scallop landings 
by vessels fishing outside of DAS.
    Response: NMFS disapproved the proposed restriction on limited 
access scallop vessels for the reasons specified in the ``Disapproved 
Measures'' section of the preamble of this final rule.
    Comment 69: The Council considers increased efficiency of 4-inch 
(10.2-cm) rings to be the primary reason for selecting the 4-inch ring 
alternatives over the 3.5-inch (8.9-cm) ring alternatives rather than 
the reductions in bycatch and epifaunal displacement.
    Response: The Council comment focused on only one portion of the 
discussion of economic impacts included in the IRFA. The discussion of 
increased efficiency of the 4-inch (10.2-cm) rings was included in the 
discussion of the impacts of the 4-inch (10.2-cm) ring requirement. In 
addition to that discussion, NMFS relied on the discussion provided by 
the Council in its IRFA in Section 9.0 of the FSEIS.
    Comment 70: The Council stated that fishing by multispecies and 
monkfish vessels in closed areas has been prohibited since 1994, rather 
than 2001, as specified in the IRFA section of the proposed rule.
    Response: NMFS agrees and notes this correction.
    Comment 71: One commenter supported the collection-of-information 
requirements included in the proposed rule.
    Response: NMFS agrees that the collection-of-information 
requirements are necessary for the management of the scallop fishery 
and implements them through this final rule.
    Comment 72: The Small Business Administration, Office for Advocacy 
(Advocacy) expressed concerns about the economic impacts presented in 
the IRFA relative to the increase in scallop dredge minimum ring size, 
the cost of observer coverage and compensation through the DAS set-
aside, and the potential effects of the regulations on vessels ending 
access area trips early.
    Response: The FRFA included in this final rule clarifies the 
impacts of the Amendment 10 management measures on small businesses. 
Specific responses to the comments related to the IRFA are included in 
the FRFA and in responses to Comments 65 through 71.

Comments on the Proposed Regulatory Text

    Comment 73: One commenter and the Council expressed concern that 
the proposed rule contained regulations that continued to refer to 
required effort reductions and rebuilding, despite the finding that the 
scallop resource is rebuilt and that additional effort reductions are 
not required for rebuilding.
    Response: This final rule revises the regulatory text to include a 
more general characterization of the requirements so that they will be 
appropriate under any resource and fishing condition.
    Comment 74: Two commenters requested that the final rule provide a 
definition of ``Open Areas.''
    Response: NMFS has clarified the final rule by including 
definitions of ``Open Areas,'' ``Sea Scallop Access Areas,'' and 
``Rotational Closed Areas.''
    Comment 75: The Council provided suggestions on how to clarify the 
regulations in this final rule. Those changes that NMFS agreed are 
necessary and appropriate are described in the ``Changes from Proposed 
Rule to Final Rule'' section of the preamble of this final rule. The 
following suggested changes were not made for the reasons described 
below.
    Comment 75a: The Council recommended that the prohibitions 
regarding possession of scallops within Rotational Closed Areas, Sea 
Scallop Access Areas, and EFH Closed areas be changed to allow 
transiting of the areas with scallops on board.
    Response: NMFS has clarified the prohibition in this final rule. 
Section 648.14(a)(110) prohibits the possession of scallops that were 
caught in the areas, not possession of scallops caught in other areas. 
Section 648.14(a)(111) allows vessels to transit the areas with 
scallops on board.
    Comment 75b: The Council suggested that the 4-inch (10.2-cm) ring 
requirement may require a modification to the regulation that requires 
a minimum number of rows of rings specified in Sec.  648.51(b)(4) and 
that NMFS should obtain expert advice to determine if a change is 
appropriate.
    Response: NMFS consulted with a gear research expert, who 
recommended against such a change. Given the lack of further advice 
from the Council, NMFS has not changed the requirement.
    Comment 75c: The Council recommended changes to the regulatory text 
in relation to the proposed restriction on limited access scallop 
vessels fishing outside the scallop DAS program.
    Response: Because NMFS disapproved this measure, all regulations 
included in the proposed rule relative to this measure were eliminated 
from this final rule.
    Comment 75d: The Council recommended that Sec.  648.56 include data 
collection requirements associated with scallop research.
    Response: The recommended requirement would duplicate the reporting 
requirements specified in the TAC and DAS set-aside Request for 
Proposal and Federal Grant process. It is therefore not necessary to 
include the reporting requirement in the scallop regulations.

[[Page 35208]]

    Comment 75e: The Council recommended that this final rule contain 
regulations associated with the cooperative industry survey.
    Response: NMFS disapproved this measure for the reasons described 
in the ``Disapproved Measures'' section of the preamble of this final 
rule.
    Comment 75f: The Council recommended that this final rule include, 
in the Framework Adjustment section of the scallop regulations at Sec.  
648.55, a detailed description of the area rotation process that would 
provide the Council with guidance for future actions to develop area 
rotation schemes.
    Response: NMFS has made one change regarding this issue in the 
final rule to specify that Rotational Closed Areas will be considered 
where projected annual change in the scallop biomass exceeds 30 percent 
and that Sea Scallop Access Area openings will be considered where the 
projected change in the scallop biomass is less than 15 percent. All of 
the other factors referred to by the Council remain specified as 
guidelines, as described in Section 5.1.3.2.1 of the Amendment 10 
FSEIS. Therefore, they are not included in this final rule as specific 
regulatory requirements for the Council to consider. The Council should 
refer back to the Amendment 10 document for guidance for development of 
future area rotation schemes.
    Comment 75g: The Council recommended that this final rule include 
the Council's research priorities in Sec.  648.56.
    Response: NMFS believes that inclusion of research priorities in 
the scallop regulations would unnecessarily constrain the Council's 
future modification of priorities and they are therefore not included 
in this final rule. Research priorities may be modified by the Council 
at any time, and changes will be reflected in future RFP's published in 
association with research TAC and DAS set-aside program.

Changes From the Proposed Rule

    NMFS has made several changes to the proposed rule as a result of 
public comment and because of the disapproval of two of the management 
measures proposed in Amendment 10. Other changes are technical or 
administrative in nature and clarify or otherwise enhance 
administration and/or enforcement of the fishery management program. 
These changes are listed below in the order that they appear in the 
regulations.
    In Sec.  648.2, definitions for ``Open areas,'' ``Rotational Closed 
Areas,'' and ``Sea scallop Access Areas'' are added in response to 
comments from the Council and the public to clarify references to these 
categories of areas in the regulations.
    In Sec.  648.10, paragraph (b) is reformatted, consistent with the 
final rule published for Amendment 13 to the Northeast Multispecies FMP 
(69 FR 22906, April 27, 2004).
    Several changes were made in Sec.  648.14 to eliminate changes to 
the prohibitions included in the proposed rule that would have resulted 
from the implementation of the disapproved restriction on limited 
access scallop vessels. Other changes to Sec.  648.14 from the proposed 
rule were necessary to clarify the prohibitions and resulted in minor 
reformatting of the prohibitions.
    In Sec.  648.51, paragraph (b)(3)(ii) is modified based on public 
comment to ensure that the minimum ring size required under Sec.  
648.60(a)(6) is consistent with the minimum ring size restriction in 
Sec.  648.60(b)(3).
    In Sec.  648.52, restrictions on the possession limit that would 
have been imposed by the disapproved restriction on limited access 
vessels have been removed.
    In Sec.  648.53, paragraph (b)(3) is redesignated as paragraph 
(b)(2) and paragraph (b)(2) is redesignated as paragraph (b)(3) to 
provide clarity in the transition between the emergency action 
currently in place and Amendment 10.
    In Sec.  648.53, the table in redesignated paragraph (b)(2) is 
revised to include the 2006 DAS allocations as recommended by the 
Council.
    In Sec.  648.53, paragraph (b)(4) is revised to move the DAS 
default date from August 15, 2004, to September 15, 2004, as requested 
by the Council and public comment.
    In Sec.  648.53, paragraph (c) is revised to better reflect the 
Council's recommendation that limited access vessels be allocated a 
maximum number of total trips in Sea Scallop Access Areas that can be 
taken in each Sea Scallop Access Area, provided the number of trips 
taken in an area does not exceed the maximum allowed number of trips 
for that area.
    In Sec.  648.53, paragraph (d) is revised to require that the 
Council adjusts the 2006 DAS allocations included in the table in Sec.  
648.53(b)(2) to ensure that management measures including DAS achieve 
OY.
    In Sec.  648.53, paragraph (e) clarifies the end-of-year carry-over 
for open area DAS at the request of the Council.
    In Sec.  648.53, paragraph (f) makes a technical change for 
determining how to account for DAS accrual for vessels that are 
carrying an at-sea observer by reducing DAS charge, rather than adding 
DAS.
    In Sec.  648.53, paragraph (h)(1) clarifies the DAS set-aside 
mechanism to clarify that DAS for research and observer coverage are 
deducted from the total available DAS, as recommended by the Council 
and public comment. This paragraph also incorporates an increase in the 
DAS set-aside amount if the 2004 DAS default is enacted on September 
15, 2004, consistent with the recommendation of the Council.
    In Sec.  648.54, references to ``fishing mortality and effort 
reduction objectives'' have been changed to ``biomass and fishing 
mortality/effort limit objectives'' consistent with the recommendation 
of the Council and public comment.
    In Sec.  648.55, paragraph (a) is modified to better reflect the 
Council's recommendation that the selection of Rotational Closed Areas 
and Sea Scallop Access Areas be based on biomass growth rate, as 
approved by the Council and recommended in the Council's comment letter 
on the proposed rule.
    In Sec.  648.55, the proactive protected resources program in 
paragraph (e) is described in more detail, as recommended by the 
Council.
    In Sec.  648.55, the conversion from square miles to square 
kilometers is corrected in paragraph (g), as recommend by the Council 
and public comment.
    In Sec.  648.57, the area designations are clarified in paragraph 
(a) consistent with the area definitions in Sec.  648.2. The 
reservation of paragraph (b) is not necessary and is deleted.
    In Sec.  648.59, the coordinates for the Hudson Canyon Sea Scallop 
Access Area have been corrected in paragraph (a)(2), as recommended by 
the Council.
    In Sec.  648.59, paragraph (c) is added to clarify the maximum 
number of trips, out of the total number of Sea Scallop Access Area 
trips, that can be taken in the Hudson Canyon Sea Scallop Access Area, 
as recommended by the Council.
    In Sec.  648.60, paragraph (a)(3) is reformatted and a table is 
included to clarify the trip and DAS charge per trip for Sea Scallop 
Access Areas, as recommended by the Council.
    In Sec.  648.60, the May 1 deadline for one-for-one trip exchanges 
in paragraph (3)(ii) (which was paragraph (3)(iv) in the proposed rule) 
has been changed to June 1, consistent with Amendment 10, as submitted, 
and the Council's recommendation in its comment letter. In addition, 
the review process for trip exchanges has been clarified based on 
public comment.
    In Sec.  648.60, based on the Council's and other commenters'

[[Page 35209]]

recommendations, paragraph (c) is changed to eliminate reasons for 
terminating a Sea Scallop Access Area trip to allow vessel operators 
the discretion to determine if a Sea Scallop Access Area trip should be 
terminated early. In addition, the regulations in paragraph (c) are 
clarified to reflect that DAS will be charged for the additional trip, 
but that vessels are not restricted to the reduced number of DAS, and 
that vessels are restricted by a reduced possession limit on the 
additional trip.
    In Sec.  648.61, the coordinates for the NLCA EFH Closure in 
paragraph (c) are corrected, as requested by the Council.
    In Sec.  648.61, paragraph (d) is re-designated as the Western Gulf 
of Maine EFH Closure, which was inadvertently omitted from the proposed 
rule, as identified by the Council. Paragraph (e) is added as the 
provision allowing transiting of the EFH closures by vessels with 
scallops on board.
    In Sec.  648.80(b)(11)(ii)(C), the minimum dredge gear twine top 
mesh size for scallop vessels fishing in the Southern New England 
Scallop Dredge Exemption is changed from 8 inches (20.3 cm) to 10 
inches (25.4 cm), consistent with measures implemented for scallop 
vessels in this final rule.
    In Sec.  648.81(g)(2)(iii), the minimum dredge gear twine top mesh 
size for scallop vessels fishing in the Georges Bank Seasonal Closed 
Area is changed from 8 inches (20.3 cm) to 10 inches (25.4 cm), 
consistent with measures implemented for scallop vessels in this final 
rule.
    Pursuant to the Paperwork Reduction Act (PRA), Part 902 of title 15 
CFR displays control numbers assigned to NMFS information collection 
requirements by OMB. This part fulfills the requirements of section 
3506(c)(1)(B)(i) of the PRA, which requires that agencies display a 
current control number, assigned by the Director of OMB, for each 
agency information collection requirement. This final rule codifies OMB 
control numbers for 0648-0491 for Sec. Sec.  648.53 and 648.60.

Classification

    The Regional Administrator determined that the FMP amendment 
implemented by this rule is necessary for the conservation and 
management of the Atlantic sea scallop fishery and is consistent with 
the Magnuson-Stevens Act and other applicable law.
    The DAS allocations implemented in this final rule are less 
restrictive than the DAS allocations currently in effect through 
emergency action implemented on March 1, 2004 (69 FR 9970). Among other 
measures, this action implements DAS allocations of 42, 17, and 4 DAS 
for full-time, part-time, and occasional scallop vessels, respectively. 
Scallop vessels are precluded from exceeding the DAS that are allocated 
to the vessel based on its permit category. If continued in effect, 
limited access scallop vessels would only be able to continue fishing 
under the 34 full-time, 14 part-time, and 3 occasional DAS allocations, 
compared to 42 full-time, 17 part-time and 4 occasional DAS allocations 
approved in Amendment 10 and that are included in this final rule. NMFS 
is aware that some vessels are nearing the utilization of all of their 
DAS and cannot make additional trips until the DAS are increased under 
this final rule implementing Amendment 10. There are no conservation 
risks associated with the higher DAS allocations implemented under 
Amendment 10. Therefore the 30-day delay in effectiveness for the DAS 
allocations included in Sec.  648.53(b)(2) under 5 U.S.C. 553(d)(1) is 
not applicable because this portion of the final rule relieves a 
restriction.
    A notice of availability of the FSEIS, which analyzed the impacts 
of all of the measures under consideration in Amendment 10, was 
published on February 20, 2004 (69 FR 7941). Through the FSEIS, NMFS 
analyzed all reasonable alternatives to the measures being implemented, 
associated environmental impacts, the extent to which the impacts could 
be mitigated, and considered the objectives of the action in light of 
statutory mandates, including the Magnuson-Stevens Act. NMFS also 
considered public and agency comments received during the EIS review 
periods. In balancing the analysis and public interest, NMFS has 
decided to partially approve the Council's recommended measures. NMFS 
also concludes that all practicable means to avoid, minimize, or 
compensate for environmental harm from the proposed action have been 
adopted. A copy of the Record of Decision as required by NEPA for 
Amendment 10 is available from the Regional Administrator (see 
ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The National Marine Fisheries Service (NMFS), pursuant to section 
604 of the Regulatory Flexibility Act (RFA), has prepared this final 
regulatory flexibility analysis (FRFA) in support of Amendment 10. The 
FRFA describes the economic impact that this final rule along with 
other non-preferred alternatives will have on small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the initial regulatory flexibility analysis (IRFA) for the proposed 
rule to implement Amendment 10 (69 FR 8915, February 26, 2004), the 
comments and responses in the final rule, and the corresponding 
economic analyses prepared for Amendment 10 (e.g., the FSEIS and the 
Regulatory Impact Review (RIR)). The contents of these incorporated 
documents are not repeated in detail here. A copy of the IRFA, the RIR 
and the FSEIS are available from NMFS, Northeast Regional Office and on 
the Northeast Regional Office Website (see ADDRESSES). A description of 
the reasons why this action is being considered, the objectives of, and 
legal basis for, the final rule is found in Amendment 10 and the 
preamble to the proposed and final rules.

Description of Small Entities to Which the Rule Will Apply

    The measures included 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-

[[Page 35210]]

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 on these entities. 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.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received several comments on the proposed rule including 
comments on the IRFA and comments that directly or indirectly dealt 
with economic impacts to small entities (vessels) resulting from the 
management measures presented in the proposed rule to implement 
Amendment 10.
    Two commercial fishermen and an industry representative submitted 
comments regarding the efficacy of the area rotation program in regard 
to increasing economic returns to the scallop fleet, as follows:
    Comment A: Commenters supporting the program stated that area 
rotation would contribute to continued high yield and value from the 
scallop fishery.
    Response: The economic analysis concludes that the area rotation 
program will allow individual vessels to be more profitable by allowing 
them to increase their landings per unit of effort and to harvest 
scallops of higher yield that may have higher value in the marketplace, 
in the long-term.
    Comment B: One member of the public opposed area rotation because 
of its complexity.
    Response: Although Amendment 10 creates, on a comprehensive basis, 
a new management concept, NMFS does not believe that the new measures 
are overly complex. Section 212 of the Small Business Regulatory 
Enforcement Fairness Act of 1996 requires the agency to 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 was prepared. The guide will be sent to all holders of 
permits issued for the Atlantic scallop fishery which sufficiently 
explains the area rotation and other measures implemented by the final 
rule. A NMFS contact person is listed on the guide for further 
assistance.
    Comment C: Two scallop industry members commented that the area 
access effort allocation system that allocates DAS specifically for 
vessels to use within the access areas eliminates vessel flexibility.
    Response: While the restrictions may limit flexibility in area 
choice, the program is necessary to protect the scallop resource while 
allowing vessels to increase their profitability in both the short and 
long term by allowing vessels to fish in areas that are known to have 
higher catch per unit of effort and yield associated with maintenance 
of stocks comprised of larger scallops. DAS is the management vehicle 
which will allow area allocation to be successful.
    Comment D: Several commenters including the Mid-Atlantic Fishery 
Management Council urged NMFS to disapprove the measure that would 
restrict landings of scallops to 40 lb (18.14 kg) from 400 lb (181.4 
kg) for limited access scallop vessels not fishing under DAS.
    Response: NMFS has disapproved the 40 lb limit and will continue to 
allow limited access scallop vessels to retain up to 400 lb (181.4 kg). 
The economic impact of the disapproval will be positive vis-a-vis the 
proposed rule. However, there is no change from the status quo where 
400 lb (181.4 kg)is currently allowed.
    The Small Business Administration's Office of Advocacy (Advocacy) 
submitted comments on the proposed rule pertaining to the IRFA. These 
comments were similar to comments submitted by an industry 
representative organization. Comments E through G below describe the 
comments submitted by both Advocacy and the industry representative 
organization.
    Comment E: In regard to the gear modifications required under 
Amendment 10, the RFA allows an agency to perform qualitative analysis 
when quantitative data is not available. Advocacy is concerned about 
the assumptions used in the qualitative analysis to determine the 
economic impact is beneficial. The IRFA states that the change in ring 
size from 3.5 inches (8.9 cm) to 4 inches (10.2 cm) could result in a 
loss of about a million pounds over the first ten years of the 
requirement by allowing escapement of scallops, increased tow times, 
and increased bycatch. Advocacy questioned the conclusion that the 
overall benefits will be positive and questioned the conclusion that 
the long term impact will be beneficial if the industry is losing 
revenue while incurring costs. Advocacy suggests that NMFS clearly 
delineate its assumption and provide data to verify its assertions, 
including information on the number of years that it may take for the 
scallop fisheries to break even and the number of entities that may be 
forced to exit the market before the target date that the industry will 
begin to experience the long term benefits. Instead of implementing 
this requirement without fully understanding its impact, Advocacy 
recommends that NMFS make the requirement optional rather than 
mandatory until NMFS can perform an analysis that will provide the 
industry with verifiable data regarding potential economic impact to 
small scallop vessels.
    Response: When combined with the area rotation program, management 
measures under Amendment 10 including 4-inch (10.2-cm) rings, are 
expected to result in a zero to one million-pound (453.6-mt) increase 
in landings compared to the status quo in the first year with increases 
in successive years as the average scallop size increases. However, the 
4-inch (10.2-cm) ring size results in landings from the scallop fleet 
of approximately 1 million pounds (452.6 mt) lower per year with a 
concomitant decrease in revenues (depending upon price) when compared 
to the same management measures with 3.5-inch (8.9-cm) rings. With 
access to groundfish closed areas, landings could increase by 7-24 
million lb (3,175--10,886 mt) with 4-inch (10.2-cm) rings when compared 
to the status quo. The status quo option estimates a harvest of thirty-
two million pounds (14,515 mt) per year (not thirty-two million pounds 
(14,515 mt) over the ten-year period as reported in footnote 9 of 
Advocacy's comments). Therefore, the resulting reduction in poundage 
from the increase to 4-inch (10.2-cm) rings compared to the same 
measures with 3.5-inch (8.9-cm) rings would be approximately 3.1 
percent in the first year of the program. NMFS therefore agrees with 
Advocacy that 3.5-inch (8.9-cm) rings combined with a rotation program 
could represent a significant alternative. However, in the first ten 
years of the rotation plan, producer surplus, as measured in cumulative 
present value, is expected to be approximately $805 million for 3.5-
inch (8.9-cm) rings vs $801 million for 4-inch (10.2-cm) rings (Table 
305) while in

[[Page 35211]]

years 11 through 20 of the plan, producer surplus is expected to be 
$611 for 3.5-inch (8.9 cm) rings and $623 million for 4-inch (10.2-cm) 
rings (Table 309). While the impacts of 3.5-inch (8.9-cm) versus 4-inch 
(10.2-cm) rings for the 2 time periods are not significantly different 
because of high variability of the producer surplus estimate, the value 
of bycatch reduction, decreased habitat impact, and general 
conservation benefits of having a stock comprised of larger scallops 
supports the Council's determination of a more positive impact in the 
long-term. While Advocacy makes a valid point that increased tow times 
and escapement of smaller scallops may increase costs per unit of 
effort in the short term, the IRFA explains that the decrease in 
mortality on small scallops will increase the meat yield per scallop 
and concomitant revenues will increase since this would improve dredge 
efficiency in terms of scallop meats per tow in the long term. It is 
this potential increase in dredge productivity that Amendment 10 cites 
in its conclusion that the increase in ring size would have a positive 
economic impact in the long term. The IRFA also describes the results 
of recent studies that show an increase in dredge efficiency and a 
decrease in contact with the bottom, potentially reducing both bycatch 
and impacts on habitat consistent with the intent of the Magnuson-
Stevens Act. The proposed alternative will have the effect of 
conserving the stocks of scallops by allowing the survival of smaller 
scallops and increasing the average size of scallop and fecundity of 
the stock consistent with National Standard 1 of the Magnuson-Stevens 
Act. The IRFA explains that the Council mitigated the effects of the 4-
inch (10.2-cm) rings by coincidentally implementing an area rotation 
program which would allow increased annual harvest of 33 to 68 million 
lb (14,968 to 30,844 mt), as discussed below. In addition, there is 
expected to be mitigating effect by delaying this requirement for 
vessels fishing in the Open Areas for the first 6 months of the 
program. The requirement to use a 4-inch (10.2 cm) ring size is not 
expected to cause any vessel to retire from the fishery.
    Comment F: Advocacy questioned NMFS observer cost estimate of 
$1,100 listed under the Reporting and Recordkeeping requirements 
section of the IRFA. NMFS also does not explain the methodology used to 
determine the 0.14 DAS adjustment given to vessels as compensation for 
observer costs.

    Response: The $1,100 estimate was included in the proposed rule 
based on the estimated cost at the time the proposed rule was prepared 
and published. The current actual per day cost of carrying an observer, 
as charged by an outside contractor, is $719.12 per day. The 0.14 DAS 
adjustment factor was used in the proposed rule based on an analysis 
provided in Section 8 of the Amendment 10 FSEIS that provided a range 
of adjustment factors, the compensation that could be expected from the 
range of factors, and the DAS set-aside use rates resulting from the 
range of factors. The 0.14 DAS adjustment factor was selected because 
the resulting compensation and DAS set-aside use rate fell in the 
middle of the range provided in the analysis. This adjustment factor 
was shown to generate approximately $750 in revenue per day. The 
revenue calculation depends upon LPUE and the price of scallops for a 
given trip. Based on the analysis in Amendment 10, NMFS concludes that 
the 0.14 multiplier will result in an appropriate buffer between actual 
observer cost and revenue earned considering the variability in the 
harvest and price of sea scallops. However, NMFS has changed the way in 
which the factor will be applied. Rather than adding DAS to a vessel's 
DAS allocation for each DAS used, in 2004 and 2005, NMFS will apply a 
reduceed DAS accrual rate of 0.86 DAS for each DAS fished. This factor 
may change based on changing costs of observers. The resulting 
compensation is this same.
    Comment G: The program to compensate for sea scallop access area 
trips that are terminated early alters the Council's intent because it 
would penalize the vessel for early termination if the Regional 
Administrator does not approve an adjustment request. NMFS is placing 
the captains in a position where they have to determine whether they 
should risk being penalized if the Regional Administrator decides that 
the situation was not an emergency. This type of dilemma could be 
harmful to the fishing industry from both the safety and economic 
standpoints.
    Response: NMFS requires an accurate accounting system to determine 
the amount of DAS/poundage to be restored on a broken trip, so NMFS 
must maintain an oversight role for this measure. The language in the 
preamble to the final rule and regulations regarding broken trips 
clearly specify that vessel captains will have complete authority to 
identify the need to end a closed area trip, without any requirement 
for NMFS to concur in the decision. The regulatory text has been 
changed in this final rule to clarify that intent.
    Comment H: An industry representative recommends against approving 
the use of the 4-inch (10.2-cm) rings. At a minimum, their introduction 
should be delayed by a minimum of six months following the 
implementation of the final rule.
    Response: With the exception of the Hudson Canyon area, NMFS agrees 
with the recommendation to the extent that the commenter requests a 6 
month delay in implementation. This would have the effect of mitigating 
the cost of new gear as discussed below.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    Numerous measures being implemented by this rule are being 
implemented in a manner that will minimize the economic impact on 
federal scallop permit holders. The area rotation program could allow 
scallop vessels to increase annual harvests from 33 to 68 million lb 
(14,968 to 30,844 mt) depending upon the rotation strategy and the 
ability to fish in multispecies closed areas. In assessing the overall 
economic impact to scallop vessels, the average scallop vessel should, 
at a minimum, break even in the first year of the rotation program 
because landings, even with no access to groundfish closed areas would 
increase to 33 to 34 million lb (14,968 to 15,422 mt) from a status quo 
of 32 million lb (14,514 mt). A zero to 1 million lb (453.6 mt) 
increase in landings would be expected from status quo even with 4-inch 
(10.2-cm) rings. With access to groundfish closed areas, subject to 
approval of Joint Frameworks 16/39, landings could increase from 32 
million lb (14,514 mt) to 39-56 million lb (17,690 to 25,401 mt). In 
conclusion, although short term reductions in revenue are expected to 
result from the increase in ring size, overall economic impacts to 
scallop vessels from Amendment 10 are positive when considering all 
management measures due to increased fishing efficiency and improved 
yield and value from the scallop resource. The requirement to use a 4-
inch (10.2-cm) ring size is not expected to cause any vessel to retire 
from the fishery.
    The six-month delay in the implementation of the 4-inch (10.2-cm)

[[Page 35212]]

ring size will mitigate a large portion of the cost of new scallop ring 
bags since these gears are replaced frequently. The replacement of 
rings is more frequent if the vessel has fished in an area with a hard 
bottom as opposed to a soft or sandy bottom.
    To mitigate the adverse impacts from area-specific controlled 
access trips, the final rule implements three measures: The one-to-one 
exchange of Sea Scallop Access Area trips; compensation for Sea Scallop 
Access Area trips terminated early; and compensation for the cost of 
carrying observers on scallop fishing trips. In addition, NMFS 
disapproved the measure that would have restricted limited access 
vessels from fishing for scallops outside of DAS. The one-to-one 
exchange of Sea Scallop Access Area trips is expected to provide 
flexibility to vessel owners in determining which areas to fish, 
thereby reducing costs and increasing revenues and profitability for 
vessels that take advantage of the voluntary trip exchange program. 
However, there will be some minor transaction costs associated with the 
exchange of the controlled area trips with another vessel, relating to 
the requirement to request the exchange form from NMFS. The net impacts 
of exchange should result in an increase in profitability for those 
participating vessels. Vessels that terminate a Sea Scallop Access Area 
trip will be compensated by being granted an additional trip, with the 
DAS and possession limit based on the amount of scallops landed and the 
number of DAS fished on the terminated trip. This will provide 
flexibility and promote safety at sea by allowing vessel captains to 
terminate a Sea Scallop Access Area trip if necessary, knowing that 
some compensation is possible. Providing DAS and TAC set-asides for 
vessels to use to help defray the cost of observers will help offset 
the negative effects associated with the cost to industry of carrying 
an observer.
    The measures approved in Amendment 10 will function as a set of 
integrated measures that are designed to achieve a number of 
conservation and management objectives while minimizing the economic 
impacts on the industry, to the extent possible. Primarily, the 
measures in Amendment 10 would improve yield from the scallop resource, 
increase fishing efficiency, reduce fishing time, and reduce bycatch 
and adverse impacts on EFH. The Council NMFS considered all of the 
alternatives analyzed in the FSEIS and determined that the measures 
implemented by this final rule are preferable in terms of minimizing 
overall adverse impacts compared to benefits and ability to achieve the 
objectives of Amendment 10, the Magnuson-Stevens Act requirements, and 
all applicable law.
    There are significant alternatives that were considered in 
Amendment 10 and that were described in the IRFA.The alternatives 
considered by the Council included the no action alternative 
(continuation of measures implemented by Amendment 7 to the FMP), and 
the status quo alternative (DAS and area management designed to meet 
fishing mortality and biomass objectives specified in Amendment 7 to 
the FMP). In addition, the Council considered 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 area rotation program implemented in this final rule 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 area rotation program also results in higher 
benefits compared to other rotational management alternatives with 
mechanical rotation and/or fixed boundaries.
    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 years 11 through 20 of the 
plan, producer surplus is expected to be $611 for 3.5-inch (8.9 cm) 
rings and $623 million for 4-inch (10.2-cm) rings (Table 309 in the 
FSEIS). While the impacts of 3.5-inch (8.9-cm) versus 4-inch (10.2-cm) 
rings for the 2 time periods are not significantly different because of 
high variability of the producer surplus estimate, the value of bycatch 
reduction, decreased habitat impact, and general conservation benefits 
of having a stock comprised of larger scallops supports the 
determination of a more positive impact in the long-term.
    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 measures implemented in 
this final rule.
    The rotational management alternatives without 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) (with a value of approximately $142 million) for status 
quo, to 39-55 million lb (17,690-24,948 mt) (an increase of $201 
million to $599 million over 10 years compared to status quo) 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) (an increase of 
$867 million over 10 years compared to status quo). 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 ($149 million to $172 million), while at the same 
time reducing the variability. While the measures included in Amendment 
10 to allow access to the groundfish closed areas were not able to be 
implemented through Amendment 10, the Council has approved and 
submitted for NMFS review, Joint Frameworks 16/39 that would allow such 
access, if approved.
    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 (including area rotation, effort 
allocation, gear restrictions, and other measures to facilitate area 
rotation and management of the FMP);

[[Page 35213]]

    Alternative 3 (a and b), area closures to protect hard-bottom 
habitat;
    Alternative 4, area closures to protect 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. Compared 
to the no action alternative of closing no areas, the impacts of the 
EFH closed area alternatives ranged from an average loss of total 
cumulative benefits of $5 million to $245 million dollars per year from 
2004 through 2007. The analysis shows that Alternative 6 was ranked in 
the middle of the range of impacts with an average loss of total 
cumulative economic benefits of $32 million. Habitat alternatives, 
including Alternatives 5a, 5c, 5d, 8a, and 8b, would have lower 
negative economic impacts, with total economic benefit losses of 
between $5 million and $9 million. These alternatives were not chosen, 
however, because they either had impracticable impacts on some fishing 
communities that would be heavily impacted by the location of the 
closures and the alternatives would not satisfy the requirement to 
minimize adverse impacts of fishing on EFH, to the extent practicable. 
Due to the extent of the closures and the location relative to the 
scallop resource, the remainder of the EFH closed area alternatives 
rejected by the Council had much higher negative economic impacts, with 
total economic benefit losses of between $142 million and $245 million.
    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.
    Finally, NMFS disapproved two provisions proposed by the Council. 
The disapproval of the cooperative industry resource survey provision 
would not have any economic impacts. The disapproval of the proposed 
restriction on limited access scallop vessels will allow some limited 
access scallop vessels to maintain revenues from the scallop catch that 
they have traditionally landed between scallop DAS trips. NMFS 
disapproved the measure because it was not based on the best available 
scientific information and was not necessary and appropriate. If 
implemented, this restriction for limited access scallop vessels may 
have caused undue adverse economic and social impacts to some vessels.

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 was prepared. 
The guide will be sent to all holders of permits issued for the 
Atlantic Scallop fishery. In addition, copies of this final rule and 
guide (i.e., permit holder letter) are available from the Regional 
Administrator and are also available at NMFS, Northeast Region (see 
ADDRESSES).
    This rule contains three new collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). One measure that would 
have required a new collection-of-information requirement, the 
cooperative industry resource survey provision, has been disapproved 
and, therefore, no new collection-of-information requirement is 
included in this rule for that measure. The collection of this 
information has been approved by OMB.
    The new reporting requirements and the estimated time for a 
response are as follows:
    1. Broken trip adjustment, OMB 0648-0491 (0.533 hr per 
response);
    2. One-to-one trip exchange, OMB 0648-0491 (0.083 hr per 
response);
    3. Open area trip declaration for observer deployment, OMB 
0648-0491 (0.033 hr per response); and
    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

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 16, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.


0
For the reasons stated in the preamble, 15 CFR chapter IX, part 902, 
and 50 CFR chapter VI, part 648 are amended as follows: 15 CFR Chapter 
IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

0
1. The authority citation for part 902 continues to read as follows:

    Authority: 44 U.S.C. 3501 et seq.

[[Page 35214]]


0
2. In Sec.  902.1, the table in paragraph (b) under 50 CFR is amended 
by revising the entry for Sec.  648.53 and adding in numerical order an 
entry for Sec.  648.60 with a new OMB control number to read as 
follows:


Sec.  902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) Display.

------------------------------------------------------------------------
     CFR part or section where the
 information collection requirement is     Current OMB  control number
                located                   (all numbers begin with 0648-)
------------------------------------------------------------------------
 
                                * * * * *
50 CFR:
 
                                * * * * *
  648.53...............................  -0202 and -0491.
 
                                * * * * *
  648.60...............................  -0491.
 
                                * * * * *
------------------------------------------------------------------------

50 CFR Chapter VI

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.  648.2, definitions for ``Open areas,'' ``Rotational Closed 
Areas,'' and ``Sea scallop Access Areas'' are added as follows:


Sec.  648.2  Definitions.

* * * * *
    Open areas, with respect to the Atlantic sea scallop fishery, means 
any area that is not subject to restrictions of the Sea Scallop Access 
Areas specified in Sec. Sec.  648.59 and 648.60, Rotational Closed 
Areas specified in Sec.  648.58, or EFH Closed Areas specified in Sec.  
648.61.
* * * * *
    Rotational Closed Area, with respect to the Atlantic sea scallop 
fishery, means an area that is closed only to scallop fishing for a 
period defined in Sec.  648.58.
* * * * *
    Sea Scallop Access Area, with respect to the Atlantic sea scallop 
fishery, means an area that has been designated under the Atlantic Sea 
Scallop Fishery Management Plan as an area with area-specific 
management measures that are designed to control fishing effort and 
mortality on only the portion of the scallop resource within the 
specified Sea Scallop Access Area. Such measures are not applicable in 
Open Areas defined above.
* * * * *

0
3. In Sec.  648.10, paragraphs (b)(1)(ii) and (b)(2)(ii) through (iv) 
are revised, and paragraph (b)(4) is added to read as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (ii) A scallop vessel issued an Occasional limited access permit 
when fishing under the Sea Scallop Area Access Program specified under 
Sec.  648.60;
* * * * *
    (2) * * *
    (ii) Notification that the vessel is not under the DAS program must 
be received prior to the vessel leaving port. A vessel may not change 
its status after the vessel leaves port or before it returns to port on 
any fishing trip.
    (iii) DAS for a vessel that is under the VMS notification 
requirements of this paragraph (b), with the exception of vessels that 
have elected to fish in the Eastern U.S./Canada Area, pursuant to Sec.  
648.85(a), begin with the first location signal received showing that 
the vessel crossed the VMS Demarcation Line after leaving port. DAS end 
with the first location signal received showing that the vessel crossed 
the VMS Demarcation Line upon its return to port. For those vessels 
that have elected to fish in the Eastern U.S./Canada Area pursuant to 
Sec.  648.85(a)(2)(i), the requirements of this paragraph (b) begin 
with the first 30-minute location signal received showing that the 
vessel crossed into the Eastern U.S./Canada Area and end with the first 
location signal received showing that the vessel crossed out of the 
Eastern U.S./Canada Area upon beginning its return trip to port.
    (iv) If the VMS is not available or not functional, and if 
authorized by the Regional Administrator, a vessel owner must provide 
the notifications required by paragraphs (b)(2)(i), (ii), and (iii) of 
this section by using the call-in notification system described under 
paragraph (c) of this section, instead of using the VMS specified in 
this paragraph (b).
* * * * *
    (4) 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.

0
4. In Sec.  648.14, paragraph (a)(57)(iii) is added, and paragraphs 
(a)(97), (a)(110), (a)(111), (h)(5), (h)(9), and (h)(12)-(h)(24) and 
(i) are revised to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
* * * * *
    (57) * * *
* * * * *
    (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 state 
waters exemption program specified in Sec.  648.54.
    (110) Fish for sea scallops in, or possess or land sea scallops 
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) * * *
* * * * *
    (5) Combine, transfer, or consolidate DAS allocations, except as 
allowed for one-for-one area access trip exchanges as specified in 
Sec.  648.60(a)(3)(iv).
* * * * *
    (9) 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).
* * * * *
    (12) Possess or use dredge gear that does not comply with any of 
the provisions and specifications in Sec.  648.51(a) or (b).
    (13) Participate in the DAS allocation program with more persons on 
board the vessel than the number specified in Sec.  648.51(c), 
including the operator, when the vessel is not docked or moored in 
port, unless otherwise authorized by the Regional Administrator.
    (14) Fish under the small dredge program specified in Sec.  
648.51(e), with,

[[Page 35215]]

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.
    (15) Fish under the small dredge program specified in Sec.  
648.51(e) with more than five persons on board the vessel, including 
the operator, unless otherwise authorized by the Regional 
Administrator.
    (16) 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.
    (17) Refuse or fail to carry an observer after being requested to 
carry an observer by the Regional Administrator.
    (18) Fail to provide an observer with required food, 
accommodations, access, and assistance, as specified in Sec.  648.11.
    (19) Fail to comply with any requirement for declaring in and out 
of the DAS allocation program specified in Sec.  648.10.
    (20) Fail to comply with any requirement for participating in the 
DAS Exemption Program specified in Sec.  648.54.
    (21) 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).
    (22) Fail to comply with the restriction on twine top described in 
Sec.  648.51(b)(4)(iv).
    (23) Fail to comply with any of the provisions and specifications 
of Sec.  648.60.
    (24) 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 42[deg]20' 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 in Sec.  648.51(a) or (b).
* * * * *

0
5. Subpart D is revised to read as follows:

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

Sec.
648.50 Shell-height standard.
648.51 Gear and crew restrictions.
648.52 Possession and landing limits.
648.53 DAS allocations.
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.
    (b) Compliance and sampling. Any time at landing or after, 
including when the scallops are received or possessed by a dealer or 
person acting in the capacity of a dealer, compliance with the minimum 
shell-height standard shall be determined as follows: Samples of 40 
scallops each shall 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 shorter than the shell height specified. 
The total amount of scallops in possession shall 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 shall 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,

[[Page 35216]]

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 December 23, 2004, 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 December 23, 2004, unless otherwise required under 
the Sea Scallop Area Access Program specified in Sec.  648.60(a)(6), 
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 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) Except as provided in paragraph (e) of this section, 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, and vessels possessing a general 
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 hl) of in-shell scallops with no more than one scallop trip of 
400 lb (181.44 kg) of shucked, or 50 bu (17.62 hl) of in-shell 
scallops, allowable in any calendar day.
    (b) Owners or operators of vessels without a scallop permit, except 
vessels fishing for scallops exclusively in state waters, are 
prohibited from 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

[[Page 35217]]

of vessels without 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 
described 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)(4).
    (d) Owners or operators of vessels issued limited access or general 
category scallop permits fishing in or transiting the area south of 
42[deg]20' N. Latitude 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 when 
fishing under the state waters exemption 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) 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, 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         2006
------------------------------------------------------------------------
Full-time........................           42          117          152
Part-time........................           17           47           61
Occasional.......................            4           10          13
------------------------------------------------------------------------
\1\ Unless additional DAS are allocated as specified in paragraph (b)(4)
  of this section.

    (3) Prior to setting the DAS allocations specified in paragraph 
(b)(2) of this section, one percent of total available 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 available DAS will be set 
aside to pay for scallop related research, as outlined in paragraph 
(h)(ii) of this section.
    (4) Additional 2004 DAS. Unless a final rule is published in the 
Federal Register by September 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 September 
15, 2004, shall increase by the following amounts:

------------------------------------------------------------------------
                                                               2004 DAS
                        DAS category                           increase
------------------------------------------------------------------------
Full-time..................................................           20
Part-time..................................................            8
Occasional.................................................            1
------------------------------------------------------------------------

    (c) Sea Scallop Access Area DAS allocations. Limited access scallop 
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 a total of four trips, at a DAS charge of 12 DAS per trip 
regardless of actual trip length, to fish only within the Sea Scallop 
Access Areas. Limited access scallop vessels may fish a maximum number 
of trips and associated DAS in each Sea Scallop Access Area, as 
specified in Sec.  648.60(a)(3). Trips taken in each Sea Scallop Access 
Area are deducted from the total trip and DAS allocation for Sea 
Scallop Access Areas. As an example, if the total number of trips that 
a scallop vessel may take is 2 trips, and there are 2 Sea Scallop 
Access Areas opened to controlled fishing, with Area A having a maximum 
of one trip and Area B having a maximum of 2 trips, the vessel may take 
one trip in Area A and one trip in Area B, or both of its total 
allocated trips in Area B.
    (d) Adjustments in annual DAS allocations. Annual DAS allocations 
shall be established for 2 fishing years through biennial framework 
adjustments as specified in Sec.  648.55. Except for DAS for the 2006 
fishing year, 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 must determine whether or not 
the 2006 DAS allocations specified in the table in paragraph (b)(4) of 
this section are sufficient to achieve OY. The 2006 DAS must be 
adjusted in the first biennial framework, initiated in 2005, if it is 
determined that the 2006 DAS allocations are unable to achieve OY in 
the 2006 fishing year. The Council may also 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, not to exceed the total Open Area DAS allocation by permit 
category, 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 the vessel is carrying an observer and 
is authorized to be charged fewer DAS in Open Areas based on the total 
available DAS set aside under paragraph (h)(1) of this section, and 
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.

[[Page 35218]]

    (h) DAS set-asides--(1) DAS set-aside for observer coverage. As 
specified in paragraph (b)(3) of this section, to help defray the cost 
of carrying an observer, 1 percent of the total DAS will be set aside 
from the total DAS available for allocation, to be used by vessels that 
are assigned to take an at-sea observer on a trip other than an Area 
Access Program trip. The DAS set-aside for observer coverage for the 
2004 and 2005 fishing years are 117 DAS and 304 DAS, respectively. On 
September 15, 2004, the 2004 DAS set-aside will increase by 54 DAS if a 
final rule is not published that allows access to the Georges Bank 
groundfish closed areas. Vessels carrying an observer will be 
compensated with reduced DAS accrual rates for each trip on which the 
vessel carries an observer. For each DAS that a vessel fishes for 
scallops with an observer on board, the DAS will accrue at a reduced 
rate based on an adjustment factor determined by the Regional 
Administrator on an annual basis, dependent on the cost of observers, 
catch rates, and amount of available DAS set-aside. The Regional 
Administrator shall notify vessel owners of the cost of observers and 
the DAS adjustment factor through a permit holder letter issued prior 
to the start of each fishing year. The number of DAS that are deducted 
from each trip based on the adjustment factor will be deducted from the 
observer DAS set-aside amount in the applicable fishing year. 
Utilization of the DAS set-aside will be on a first-come, first-served 
basis. 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)(3) 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 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 
biomass and fishing mortality/effort limit 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 
biomass and fishing mortality/effort limit 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 biomass and 
fishing mortality/effort limit 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 biomass and fishing mortality/
effort limit 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 biomass and fishing 
mortality/effort limit 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 
shall review these changes and, if a determination is made that the 
state's conservation program jeopardizes the biomass and fishing 
mortality/effort limit 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 biomass and fishing 
mortality/effort limit 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 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 shall 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 shall 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 shall 
initiate

[[Page 35219]]

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. Rotational Closures should be 
considered where projected annual change in scallop biomass is greater 
than 30 percent. Areas should be considered for Sea Scallop Access 
Areas where the projected annual change in scallop biomass is less than 
15 percent.
    (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 shall 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. To address interactions between the scallop fishery 
and sea turtles and other protected species, such adjustments may 
include proactive measures including, but not limited to, the timing of 
Sea Scallop Access Area openings, seasonal closures, gear 
modifications, increased observer coverage, and additional research. 
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 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 
mi\2\ (6,993 km\2\), 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

[[Page 35220]]

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 shall 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 shall be published as a final rule in the 
Federal Register; or
    (3) The Regional Administrator does not concur, the Council shall 
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 Sec.  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)(3) 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 shall 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 shall 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 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 Rotational Closed Areas, Sea 
Scallop Access Areas, EFH Closed Areas, or areas closed to scallop 
fishing under other FMPs, are open to scallop fishing as governed by 
the other management measures and restrictions 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).


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

[[Page 35221]]

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..............................  38[deg]50[min] N.   74[deg]20[min] W.
ET2..............................  38[deg]10[min] N.   74[deg]20[min] W.
ET3..............................  38[deg]10[min] N.   73[deg]30[min] W.
ET4..............................  38[deg]50[min] N.   73[deg]30[min] W.
ET1..............................  38[deg]50[min] N.   74[deg]20[min] W.
------------------------------------------------------------------------

    (b) Transiting. No vessel possessing scallops may enter or be in 
the area(s) specified in paragraph (a) of this section unless the 
vessel is transiting the area and the vessel's 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.


Sec.  648.59  Sea Scallop Access Areas.

    (a) Hudson Canyon Sea Scallop Access Area. (1) Through February 28, 
2006, vessels issued limited access scallop permits may not fish for 
scallops in, or possess or land scallops from, the area known as the 
Hudson Canyon Sea Scallop Access Area, described in paragraph (a)(2) of 
this section, unless the vessel is participating in, and complies with 
the requirements of, the area access program described in Sec.  648.60. 
Limited access scallop vessels may not possess scallops in the Hudson 
Canyon Sea Scallop Access Area, unless such vessel is participating in, 
and complies with the requirement of, the area access program described 
in Sec.  648.60, or is transiting the area as provided in paragraph (b) 
of this section.
    (2) The Hudson Canyon Sea Scallop Access Area is defined by 
straight lines connecting the following points in the order stated 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request):

------------------------------------------------------------------------
              Point                     Latitude           Longitude
------------------------------------------------------------------------
H1...............................  39[deg]30[min] N.   73[deg]10[min] W.
H2...............................  39[deg]30[min] N.   72[deg]30[min] W.
H3...............................  38[deg]30[min] N.   73[deg]30[min] W.
H4/ET4...........................  38[deg]50[min] N.   73[deg]30[min] W.
H5...............................  38[deg]50[min] N.   73[deg]42[min] W.
H1...............................  39[deg]30[min] N.   73[deg]10[min] W.
------------------------------------------------------------------------

    (b) Transiting. Limited access sea scallop vessels fishing under a 
scallop DAS that have not declared a trip into the Sea Scallop Area 
Access Program may not fish for or possess scallops in the Sea Scallop 
Access Areas described in this section, and may not enter or be in such 
areas unless the vessel is transiting the area and the vessel's 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.
    (c) Number of trips. Subject to the total number of Sea Scallop 
Access Area trips allowed for each limited access scallop permit 
category specified in Sec.  648.60(b)(3), vessels issued limited access 
scallop permits may fish no more than four trips during 2004 and three 
trips during 2005 in the Hudson Canyon Access Area, unless the vessel 
has exchanged a trip with another vessel for another Sea Scallop Access 
Area trip, as specified in Sec.  648.60(a)(3)(iv), or unless the vessel 
is taking a compensation trip for a prior Sea Scallop Access Area trip 
that was terminated early, as specified in Sec.  648.60(c).


Sec.  648.60  Sea scallop area access program requirements.

    (a) Vessels issued a limited access scallop permit may fish in the 
Sea Scallop Access Areas specified in Sec.  648.59 and during seasons 
specified in Sec.  648.59, when fishing under a scallop DAS, provided 
the vessel complies with the requirements specified in paragraphs 
(a)(1) through (a)(8) 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 and during 
seasons specified in Sec.  648.59, subject to the possession limit 
specified in Sec.  648.52(b). If no season is specified in Sec.  
648.59, the Access Area is open from March 1 through February 28 of 
each fishing year.
    (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 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 
(c)(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 72 hours, unless otherwise notified by the Regional 
Administrator, 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) Sea Scallop Access Area trips. (i) Except as provided in 
paragraph (c) of this section, the table below specifies the total 
number of trips a limited access scallop vessel may take into all Sea 
Scallop Access Areas during applicable seasons specified in Sec.  
648.59:

----------------------------------------------------------------------------------------------------------------
                                                                        2004                      2005
                                                            ----------------------------------------------------
               Limited access scallop permit                                DAS  per                   DAS  per
                                                                Trips         trip         Trips         trip
----------------------------------------------------------------------------------------------------------------
Full-time..................................................            4           12             3           12
Part-time..................................................            1           12             1           12
Occasional.................................................            1           12             1           12
----------------------------------------------------------------------------------------------------------------


[[Page 35222]]


A limited access scallop vessel fishing in Sea Scallop Access Areas may 
fish the total number of trips specified above according to the 
vessel's category in any Sea Scallop Access Area, provided the number 
of trips in any one Sea Scallop Access Area does not exceed the maximum 
number of trips allocated for such Sea Scallop Access Area as specified 
in Sec.  648.59. Twelve (12) DAS shall be automatically deducted for 
each Sea Scallop Access Area trip.
    (ii) One-for-one area access trip exchanges. If the total number of 
trips into all Sea Scallop Access Areas combined is greater than one 
trip, the owner of a vessel issued a limited access scallop permit may 
exchange, on a one-for-one basis, unutilized trips into one access area 
for unutilized trips into another Sea Scallop Access Area. A vessel 
owner must request the exchange of trips by submitting a completed Trip 
Exchange Form at least 15 days before the date on which the applicant 
desires the exchange to be effective, but no later than June 1 of each 
year. Each vessel involved in an exchange is required to submit a 
completed Trip Exchange Form. Trip Exchange Forms will be provided by 
the Regional Administrator upon request. The Regional Administrator 
shall review the records for each vessel to confirm the ability for the 
exchange to occur (i.e., to determine if each vessel has trips 
remaining to transfer). The transfer is not effective until the vessel 
owner(s) receive a confirmation in writing from the Regional 
Administrator that the trip exchange has been made effective. A vessel 
owner may exchange trips between two or more vessels under his/her 
ownership. A vessel owner holding a Confirmation of Permit History is 
not eligible to exchange trips.
    (4) Area fished. While on a Sea Scallop Access Area trip, a vessel 
may not fish for, possess, or land scallops from outside the specific 
Sea Scallop Access Area fished during that trip and must not enter or 
exit the specific Sea Scallop Access Area fished more than once per 
trip. A vessel on a Sea Scallop Access Area trip may not exit that Sea 
Scallop Access Area and transit to, or enter, another Sea Scallop 
Access Area on the same trip.
    (5) Possession and landing limits. Unless authorized by the 
Regional Administrator as specified in paragraph (c) and (d) of this 
section, after declaring a trip into a Sea Scallop Access Area in 
fishing year 2004 and 2005, 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 Sea Scallop Access Area may possess shoreward 
of the VMS demarcation line or land, more than 50 bu (17.62 hl) of in-
shell scallops.
    (6) Gear restrictions. The minimum ring size for dredge gear used 
by a vessel fishing on a Sea Scallop Access Area trip is 4 inches (10.2 
cm). Dredge or trawl gear used by a vessel fishing on a Sea Scallop 
Access Area trip must be in accordance with the restrictions specified 
in Sec.  648.51(a) and (b).
    (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.
    (b) Accrual of DAS. For each Sea Scallop Access Area trip, except 
as provided in paragraph (c) of this section, a vessel on a Sea Scallop 
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) Compensation for Sea Scallop Access Area trips terminated 
early. If a Sea Scallop Access Area trip is terminated before catching 
the allowed possession limit the vessel may be authorized to fish an 
additional trip in the same Sea Scallop Access Area based on the 
conditions and requirements of paragraphs (c)(1) through (5) of this 
section.
    (1) The vessel owner/operator has determined that the Sea Scallop 
Access Area trip should be terminated early for reasons deemed 
appropriate by the operator of the vessel;
    (2) The amount of scallops landed by the vessel for the trip must 
be less than the maximum possession limit specified in paragraph (a)(5) 
of this section.
    (3) The vessel owner/operator must report the early termination of 
the trip prior to leaving the Sea Scallop Access Area by VMS email 
messaging, with the following information: Vessel name; vessel owner; 
vessel operator; time of trip termination; reason for terminating the 
trip (for NMFS recordkeeping purposes); expected date and time of 
return to port; and amount of scallops on board in pounds.
    (4) The vessel owners/operator must request that the Regional 
Administrator authorize an additional trip as compensation for the 
terminated trip by submitting a written request to the Regional 
Administrator within 30 days of the vessel's return to port from the 
early terminated trip.
    (5) The Regional Administrator must authorize the vessel to take an 
additional trip and must specify the amount of scallops that the vessel 
may land on such trip and the number of DAS charged for such trip, 
pursuant to the calculation specified in paragraphs (c)(5)(i) through 
(iii) of this section.
    (i) The number of DAS a vessel will be charged for an additional 
trip in the Sea Scallop Access Area shall be calculated as the 
difference between the number of DAS automatically deducted for the 
trip as specified in paragraph (b) of this section, and the sum of the 
following calculation: 2 DAS, plus one DAS for each 10 percent (1,800 
lb (816 kg)) increment of the overall possession limit on board. For 
example, a vessel that terminates a Sea Scallop Access Area trip on the 
5th day of the trip with no scallops on board would be charged 2 DAS 
for the trip and could make an additional trip at a DAS charge of 10 
DAS. Likewise, a vessel returning to port prior to the 12th DAS with 
5,000 lb (2,268 kg) of scallops on board would be charged 5 DAS (2 DAS 
plus 3 DAS for the 3, 10 percent (1,800 lb (816 kg) increments) and 
could make a resumed trip with 7 DAS charged. Pounds of scallops landed 
shall be rounded up to the nearest 1,800 lb (816 kg).
    (ii) The amount of scallops that can be landed on an authorized 
additional Sea Scallop Access Area trip shall equal 1,500 lb (680 kg) 
multiplied by the number of DAS to be charged for the resumed trip. In 
the second example provided in paragraph (c)(5)(i) of this section, the 
vessel could land up to 10,500 lb (4,763 kg) of scallops.
    (iii) The vessel that terminates a Sea Scallop Access Area trip and 
has been authorized to take an additional trip shall have the DAS 
charged for that trip, as determined under paragraph (c)(5)(i) of this 
section, and deducted from its Sea Scallop Access Area DAS allocation 
specified in paragraph (a)(3) of this section, regardless of the actual 
number of DAS fished during the additional trip. Vessels that are 
authorized more than one additional trip for compensation for more than 
one terminated trip may combine the authorized trips into one, if all 
terminated trips occurred in the same Sea Scallop Access Area and 
provided the total possession limits do not exceed those specified in 
paragraph (a)(5) of this section.
    (d) Increase of possession limit to defray costs of observers--(1) 
Observer set-aside limits by area. For the 2004 and 2005 fishing years, 
the observer set-aside for the Hudson Canyon Access Area is 187,900 lb 
(85.2 mt) and 149,562 lb (67.8 mt), respectively.

[[Page 35223]]

    (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 (d)(1) 
of this section. Owners of limited access scallop vessels shall 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 shall 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.
    (e) Adjustments to possession limits and/or number of trips to 
defray the costs of sea scallop research--(1) Research set-aside limits 
and number of trips by area. For the 2004 and 2005 fishing years, the 
research set-aside for the Hudson Canyon Access Area is 375,800 lb 
(170.5 mt) and 299,123 lb (135.7 mt), respectively.
    (2) Defraying the costs of sea scallop research. The Regional 
Administrator may increase the sea scallop possession limit specified 
in paragraph (a)(5) of this section or allow additional trips into a 
Sea Scallop Access Area to defray costs for approved sea scallop 
research up to the amount specified in paragraph (e)(1) of this 
section.
    (f) 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.


Sec.  648.61  EFH closed areas.

    Notwithstanding any other provision of this part, the following 
areas are closed to scallop fishing to protect EFH from adverse effects 
of scallop fishing:
    (a) Closed Area I EFH Closure. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Closed Area I 
EFH Closure. No vessel may possess scallops in the Closed Area I EFH 
Closure, unless such vessel is only transiting the area as provided in 
paragraph (e) of this section. The Closed Area I EFH Closure consists 
of two sections, 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
------------------------------------------------------------------------
                                Section 1
------------------------------------------------------------------------
CAIE1............................  41[deg]30' N.       69[deg]23' W.
CAIE2............................  41[deg]30' N.       68[deg]35' W.
CAIE3............................  41[deg]08' N.       69[deg]4.2' W.
CAIE4............................  41[deg]30' N.       69[deg]23' W.
----------------------------------
                                Section 2
------------------------------------------------------------------------
CAIE5............................  41[deg]04.5' N.     69[deg]1.2' W.
CAIE6............................  41[deg]09' N.       68[deg]30' W.
CAIE7............................  40[deg]45' N.       68[deg]30' W.
CAIE8............................  40[deg]45' N.       68[deg]45' W.
CAIE5............................  41[deg]04.5' N.     69[deg]1.2' W.
------------------------------------------------------------------------

    (b) Closed Area II EFH Closure. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Closed Area II 
EFH Closure. No vessel may possess scallops in the Closed Area II EFH 
Closure, unless such vessel is only transiting the area as provided in 
paragraph (e) of this section. The Closed Area II 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
------------------------------------------------------------------------
CAIIE1...........................  42[deg]22' N.      67[deg]20' W.\1\
CAIIE2...........................  41[deg]30' N.      66[deg]34.8' W.\2\
CAIIE3...........................  41[deg]30' N.      67[deg]20' W.
CAIIE1...........................  42[deg]22' N.      67[deg]20' W.\1\
------------------------------------------------------------------------
\1\ The U.S.-Canada Maritime Boundary.
\2\ On the U.S./Canada Maritime Boundary.

    (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 (e) 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[deg]50' N.      70[deg]20' W.
NLSE2............................  40[deg]50' N.      69[deg]29.5' W.
NLSE3............................  40[deg]30' N.      69[deg]14.5' W.
NLSE4............................  40[deg]30' N.      69[deg]00' W.
NLSE5............................  40[deg]20' N.      69[deg]00' W.
NLSE6............................  40[deg]20' N.      70[deg]20' W.
NLSE1............................  40[deg]50' N.      70[deg]20' W.
------------------------------------------------------------------------

    (d) Western Gulf of Maine EFH Closure. No vessel may fish for 
scallops in, or possess or land scallops from, the area known as the 
Western Gulf of Maine EFH Closure. No vessel may possess scallops in 
the Western Gulf of Maine EFH Closure, unless such vessel is only 
transiting the area as provided in paragraph (e) of this section. The 
Western Gulf of Maine 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
------------------------------------------------------------------------
WGOM1............................  43[deg]15' N.       70[deg]15' W.
WGOM2............................  43[deg]15' N.       69[deg]55' W.
WGOM3............................  42[deg]15' N.       69[deg]55' W.
WGOM4............................  42[deg]15' N.       70[deg]15' W.
WGOM1............................  43[deg]15' N.       70[deg]15' W.
------------------------------------------------------------------------

    (e) Transiting. No vessel possessing scallops may enter or be in 
the area(s) specified in paragraphs (a) through (c) of this section, 
unless the vessel is transiting the area(s) as allowed in Sec. Sec.  
648.81(b)(2)(iv) and 648.81(i).

0
6. In Sec.  648.80, paragraph (b)(11)(ii)(C) is revised to read as 
follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restriction on 
gear and methods of fishing.

* * * * *
    (b) * * *
    (11) * * *
    (ii) * * *
    (C) The minimum mesh size used in the twine top of scallop dredges 
must be 10 in (25.4 cm).
* * * * *

0
7. In Sec.  648.81, paragraph (g)(2)(iii) is revised to read as 
follows:


Sec.  648.81  NE Multispecies closed areas and measures to protect EFH.

* * * * *
    (g) * * *
    (2) * * *
    (iii) That are fishing with or using scallop dredge gear when 
fishing under a scallop DAS or when lawfully fishing in the Scallop 
Dredge Fishery Exemption Area, as described in Sec.  648.80(a)(11), 
provided the minimum mesh size of the twine top used in the dredge by 
the vessel is 10 inches (25.4 cm), and provided that the vessel 
complies with the NE multispecies

[[Page 35224]]

possession restrictions for scallop vessels specified at Sec.  
648.80(h).
* * * * *
[FR Doc. 04-13940 Filed 6-17-04; 3:34 pm]
BILLING CODE 3510-22-P