[Federal Register Volume 69, Number 165 (Thursday, August 26, 2004)]
[Proposed Rules]
[Pages 52470-52487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19474]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040809233-4233-01; I.D.080304B]
RIN 0648-AR55


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery and Northeast Multispecies Fishery; Framework 16 and Framework 
39

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement concurrently Framework 
16 to the Atlantic Sea Scallop Fishery Management Plan (Scallop FMP) 
and Framework 39 to the Northeast Multispecies FMP (Multispecies FMP) 
(Joint Frameworks) developed by the New England Fishery Management 
Council (Council). The Joint Frameworks would establish Scallop Access 
Areas within Northeast (NE) multispecies Closed Area I (CAI), Closed 
Area II (CAII) and the Nantucket Lightship Closed Area (NLCA). The NE 
multispecies closed areas are currently closed year-round to all 
fishing that is capable of catching NE multispecies, including scallop 
fishing. Measures are proposed to allow the scallop fishery to access 
the scallop resource within the NE multispecies closed areas, and 
ensure that NE multispecies catches by scallop vessels are consistent 
with the Multispecies FMP. The Joint Frameworks would also revise the 
Essential Fish Habitat (EFH) closed areas implemented under Amendment 
10 to the Scallop FMP in order to make the areas consistent with the 
EFH closures under the Multispecies FMP, as established by Amendment 13 
to the Multispecies FMP.

DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES) by 5 p.m., local time, on September 10, 2004.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Joint Frameworks 16/39.'' Comments also may be sent via 
facsimile (fax) to (978) 281-9135. Comments submitted via e-mail or 
internet should be sent to [email protected]. Comments may also be 
submitted electronically through the Federal e-Rulemaking portal: http/
/www.regulations.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule should be submitted to the RA at the address above and by 
e-mail to [email protected], or fax to (202) 395-7285.
    Copies of the Joint Frameworks, their Regulatory Impact Review 
(RIR), including the Initial Regulatory Flexibility Analysis (IRFA), 
and the Environmental Assessment (EA) are available on request from 
Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Newburyport, MA 01950. These documents are 
also available online at http://www.nefmc.org.

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

SUPPLEMENTARY INFORMATION:

Background

    The Joint Frameworks were adopted by the Council on February 24, 
2004. The Council initially submitted the Joint Frameworks and 
associated analyses on April 20, 2004, and a final revised submission 
was provided to NMFS on July 2, 2004. The Joint Frameworks were

[[Page 52471]]

developed to establish Scallop Access Areas within the NE multispecies 
closed areas (CAI, CAII, and NLCA). The regulations that govern these 
NE multispecies closed areas currently prohibit fishing for scallops to 
prevent NE multispecies mortality, as scallop gear is capable of 
catching NE multispecies. The Scallop Access Areas will allow 
controlled access to these areas in order to harvest appropriately from 
the large biomass of scallops in the NE multispecies closed areas.
    Amendment 10, which was implemented by a final rule published June 
23, 2004 (69 FR 35194) contemplated that a controlled access program 
for the NE multispecies closed areas would be incorporated into the 
area rotation program through scheduled openings of the areas. However, 
Amendment 10 did not include the detailed management measures, 
particularly with respect to NE multispecies bycatch, that were 
necessary to implement the access program under Amendment 10. In 
addition, in order to allow controlled access by scallop vessels to the 
NE multispecies closed areas, complementary action was necessary under 
the Multispecies FMP. In order to ensure that the management measures 
included in Amendment 13 to the Multispecies FMP (Amendment 13) and 
their environmental impacts were considered under the action to allow 
scallop fishing in the NE multispecies closed areas, the Council 
delayed action on the Joint Frameworks until Amendment 13 was completed 
by the Council. Amendment 13 was implemented through a final rule 
published April 27, 2004 (69 FR 22906). In doing so, the Council and 
NMFS ensured that the effects of allowing controlled access to the NE 
multispecies closed areas by the scallop fleet would be fully 
considered in light of the overall impacts on NE multispecies under 
Amendment 13 and Amendment 10.
    Finally, due to inconsistency between the Multispecies FMP and the 
Scallop FMP with respect to closures to protect EFH, the Joint 
Frameworks propose to make the EFH closed areas the same in the Scallop 
FMP as in the Multispecies FMP.

Proposed Measures

    The management measures that are applicable to the fishery within 
the Scallop Access Areas in CAI, CAII and NLCA are outlined in Items 1-
13 below, and the remaining measures are described in Items 14-16. NMFS 
is publishing for public comment all of the measures adopted by the 
Council in the Joint Frameworks. NMFS has particular concerns about two 
measures, and is seeking public comment specifically on both of them in 
light of these concerns, to provide additional information.
    The first measure that NMFS is concerned with is described in 
detail in Item 10 of this preamble. The measure would require the 
Regional Administrator (RA) to monitor catches of Georges Bank (GB) 
yellowtail flounder (yellowtail) reported by both scallop and NE 
multispecies vessels and, on or after December 1 each year, determine 
whether the GB yellowtail allocation for the Scallop Access Area can be 
increased without resulting in total catches above the overall 
allocation for GB yellowtail. NMFS is concerned that it may be too 
early in the multispecies fishing year, which began May 1, 2004, to 
effectively assess the likelihood of attaining the overall GB 
yellowtail allocation; the NE multispecies fishery continues through 
April 30. In addition, it may not be possible for the scallop fishery 
to effectively utilize an additional yellowtail allocation before the 
Scallop Access Areas close to scallop fishing on February 1 each year. 
NMFS specifically seeks comment on this measure in order to further 
assess its feasibility.
    The second measure that NMFS has concerns with is a provision 
adopted by the Council that would have no associated regulation. The 
Council included the measure to encourage the scallop industry to avoid 
areas or times of high bycatch of yellowtail and other species and take 
voluntarily action to reduce such bycatch through information 
disseminated by NMFS or the Council. Under this proposal, either NMFS 
or the Council would distribute existing information about seasonal 
distribution of yellowtail and other finfish species so that catches of 
such species can be avoided by scallop vessels. Furthermore, data 
provided by fishing vessels through VMS would be used to identify areas 
where finfish bycatch is high and NMFS would provide an alert to vessel 
captains via VMS. NMFS is concerned that the costs of enacting such a 
system do not outweigh the potential benefits. NMFS also notes that the 
Council included measures in the Joint Frameworks to prevent the 
yellowtail bycatch from exceeding specified levels, and these measures 
may offset the benefits associated with enacting a real-time alert 
system.

1. Scallop Access Areas

    Scallop Access Areas are proposed within portions of CAI, CAII, and 
NLCA. While the coordinates are specified in the proposed regulations, 
the areas are generally described as the central portion of CAI, the 
southern portion of CAII, and the eastern portion of NLCA. These 
Scallop Access Areas are similar to the areas where scallop fishing was 
allowed through the 2000 Sea Scallop Exemption Program for the period 
June 15, 2000--March 1, 2001. The Sea Scallop Exemption Program was 
implemented under Framework 13 to the Scallop FMP and Framework 34 to 
the Multispecies FMP (65 FR 37903, June 19, 2000). The Scallop Access 
Areas would not authorize scallop fishing in the EFH closed areas 
proposed in this rule. The proposed Scallop Access Areas would focus 
scallop fishing in the most productive scallop areas to maximize 
scallop yield while minimizing bycatch of other species and impacts on 
EFH.

2. Rotation of Access Areas

    Two of the three Scallop Access Areas would be open for access each 
fishing year. CAII and NLCA would be opened for the rest of the 2004 
fishing year, followed by CAI and CAII in the 2005 fishing year, and 
CAI and NLCA in the 2006 fishing year. This cycle would repeat 
beginning in the 2007 fishing year, unless modified by the Council 
through framework action or an amendment to the Scallop FMP. The 
rotational order is based on the expected concentrations of scallops 
within each area, so that each area is accessed when scallop 
concentrations are projected to maximize yield.

3. Number of Trips, DAS Charges, and Scallop Possession Limits

    The total DAS allocated for scallop Access Area fishing, the number 
of access trips into each area, the DAS charge per trip, and the 
scallop possession limit are specified for each Scallop Access Area. 
These measures would be established for vessels issued limited access 
scallop permits according to permit category: Full-time, Part-time, and 
Occasional. Vessels in each permit category would be allocated a 
specific number of DAS for use in Scallop Access Areas, with a 
specified number of DAS charged for each area trip, regardless of 
actual trip length. In addition, the Joint Frameworks specify the 
maximum number of trips that can be made into any one access area, by 
vessel permit category. The Joint Frameworks also allocate a possession 
limit for trips into each access area.
    The following tables provides the trip, DAS charges, and possession 
limits, by permit category and by year, through 2006. The Hudson Canyon 
(HC) Access Area trip allocations, DAS charges, and

[[Page 52472]]

possession limits are included in the table as part of the complete 
area rotation program as implemented under Amendment 10 and proposed in 
this action. Part-time and Occasional scallop vessels have separate 
allocations for the HC Access Area in the 2004 fishing year because the 
possession limit and DAS charges are different between the Closed Area 
Access Areas and the HC Access Area.

                                           Table 1.--Total Number of Access Area Trips and DAS Charge Per Trip
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Maximum                   Total number of trips; and DAS charge per trip
                                                                trips per  -----------------------------------------------------------------------------
            Fishing year                    Access area          area and
                                                                per vessel         Full-time               Part-time                 Occasional
--------------------------------------------------------------------------------------------------------------------------------------------------------
2004................................  Closed Area II.........            2  7 trips; 12 DAS.......  2 trips; 11.2 DAS.....  1 trip; 7 DAS.
                                      Nantucket Lightship....            1
                                      Hudson Canyon..........            4  ......................  1 trip; 12 DAS........  1 trip; 12 DAS.
2005................................  Closed Area I..........            1  5 trips; 12 DAS.......  2 trips; 12 DAS.......  1 trip; 5 DAS.
                                      Closed Area II.........            1
                                      Hudson Canyon..........            3
2006................................  Closed Area I..........            1  2 trips; 12 DAS.......  1 trip; 9.6 DAS.......  1 trip; 2 DAS.
                                      Nantucket Lightship....            1  ......................  ......................  ............................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    An example, using a Part-time vessel, illustrates the flexibility 
provided by the allocation of trips and DAS. In the 2004 fishing year, 
a Part-time vessel would be allocated a total of 22.4 DAS and two 
trips. The trips could be taken in either CAII or NLCA, though only one 
trip could be taken in NLCA. The vessel owner may choose to take one 
trip in the NLCA and one trip in CAII. Alternatively, the vessel owner 
may choose to take both trips in CAII, because CAII has two trips 
allocated in the 2004 fishing year; if the vessel owner chooses to take 
two trips into the CAII Access Area, the vessel would not be eligible 
to fish any trips in NLCA, because it would have fully utilized its 
allocation of two trips.

                     Table 2.--Possession Limits by Area, Fishing Year, and Permit Category
----------------------------------------------------------------------------------------------------------------
                                                                           Possession limit
          Fishing year                Access area    -----------------------------------------------------------
                                                           Full-time           Part-time          Occasional
----------------------------------------------------------------------------------------------------------------
2004............................  Closed Area II....  18,000 lb (9,525    16,800 lb (7,620    10,500 lb (4,763
                                                       kg).                kg).                kg).
                                  Nantucket
                                   Lightship.
                                  Hudson Canyon.....  ..................  18,000 lb (9,525    18,000 lb (9,525
                                                                           kg).                kg).
2005............................  Closed Area I.....  18,000 lb (9,525    16,800 lb (7,620    7,500 lb (3,402
                                                       kg).                kg).                kg).
                                  Closed Area II....
                                  Hudson Canyon.....
2006............................  Closed Area I.....  18,000 lb (9,525    14,400lb (6,532     3,000 lb (1,361
                                                       kg).                kg).                kg).
                                  Nantucket
                                   Lightship.
----------------------------------------------------------------------------------------------------------------

4. Scallop Total Allowed Catch (TAC)

    The management measures within the Scallop Access Areas are 
established to attain a target TAC of scallops as specified in the area 
rotation program established in the Scallop FMP by Amendment 10. These 
TACs would be used to monitor fishing activity and determine whether to 
adjust fishing effort levels for future years. These TACs are also used 
to calculate TAC set-asides for research, observer coverage, and 
general category vessels. These TAC set-asides would be established as 
absolute limits on the amount of scallops harvested during a specific 
activity, and that activity would cease when the set-aside TAC was 
attained. The overall target TACs for the scallop fishery would be: (1) 
8,395,203 lb (3,808 mt) for CAII and 7,718,384 lb (3,501 mt) for NLCA 
in the 2004 fishing year; (2) 3,243,000 lb (1,471 mt) for CAI and 
7,698,542 lb (3,492 mt) for CAII in the 2005 fishing year; and (3) 
2,824,122 lb (1,281 mt) for CAI and 6,796,852 lb (3,083 mt) for NLCA in 
the 2006 fishing year.

5. One-for-One Trip Exchanges

    The Joint Frameworks would allow limited access vessels to exchange 
access area trips with other vessels. This provision was approved as 
part of Amendment 10, but was not available to be used by vessels 
because an exchange can only be made when more than one access area has 
been established (Amendment 10 established one access area, the HC 
Access Area). Vessels would be allowed to enter into agreements to 
exchange trips for 3 months following implementation of the Joint 
Framework. After the three month period, vessel owners would not be 
allowed to negotiate exchanges of trips. Vessel owners would be allowed 
to use trips authorized under the trip exchange program for the 
remainder of the fishing year. Because trip allocations, DAS charges, 
and possession limits would differ between scallop permit categories, 
vessels must exchange only with vessels issued permits in the same 
scallop permit category. Since Occasional vessels would be allocated 
only one trip, they would not be eligible to exchange trips.

6. General Category Access Provisions

    Vessels issued open-access general category scallop permits would 
be allowed to fish within the Scallop Access Areas subject to the 
restrictions specified below. This provision is intended to provide 
vessels in the general category fleet with more flexibility in fishing 
opportunities by allowing access to productive scallop areas within the 
NE multispecies closed areas. Additional management restrictions have 
been proposed by the

[[Page 52473]]

Council in order to ensure accurate accounting of catch, and to ensure 
that general category fishing effort does not cause bycatch or 
excessive effort and mortality on scallops. The Joint Frameworks would 
amend the Multispecies FMP to allow general category vessels to fish 
within the NE multispecies closed areas, where such fishing is 
currently prohibited. General category vessels would be subject to the 
following restrictions:
    a. A possession limit of 400 lb (181.4 kg) of shucked or 50 U.S. 
bushel (17.6 hl) of in-shell scallops per trip.
    b. A set-aside TAC for general category vessels, equal to 2 percent 
of the overall scallop TAC for each Scallop Access Area, requiring 
general category vessels to stop fishing in the specific scallop Access 
Area once the set-aside TAC is reached. The general category set-aside 
TACs for 2004, 2005, and 2006, are as follows: (1) 2004; 167,904 lb (76 
mt) in CAII and 154,368 lb (70 mt) in NLCA; (2) 2005; 64,860 lb in CAI 
and 153,971 lb (70 mt) in CAII; and (3) 2006; 56,482 lb in CAI and 
135,937 lb (62 mt) in NLCA.
    c. A requirement to install and use a NMFS-certified Vessel 
Monitoring System (VMS) in order to notify NMFS when a vessel plans to 
fish in a Scallop Access Area.
    d. A prohibition on retaining or landing NE multispecies with a 
requirement to report all catch of yellowtail caught, including 
discards, so it can be counted against the yellowtail TAC for the 
scallop fishery.
    e. A requirement to carry at-sea observers when requested.
    f. VMS reporting of scallop and yellowtail catch to monitor fishery 
activity and bycatch. (These requirements are also required of limited 
access scallop vessels).
    g. A requirement that Scallop dredge gear used within a Scallop 
Access Area be constructed with rings with a minimum diameter of 4 
inches (10.2 cm) (Amendment 10 imposed this requirement for General 
category vessels fishing in open areas, but delayed the requirement 
until December 23, 2004).

7. Gear Restrictions for Limited Access Vessels

    Limited access scallop vessels fishing within the Scallop Access 
Areas in CAI, CAII, and NLCA would be required to use scallop dredge 
gear only. The minimum diameter for rings used in the scallop dredge is 
proposed to be 4 inches (10.2 cm). Amendment 10 imposed the minimum 
ring size requirement for Limited Access vessels fishing in the HC 
Access Area, but delayed the requirement in the open areas until 
December 23, 2004. The requirement to use scallop dredge gear only is 
intended to maximize scallop catch selectivity and to minimize bycatch. 
The minimum dredge ring size is intended to reduce the catch of small 
scallops.

8. Scallop Access Area Season

    The CAI, CAII, and NLCA Scallop Access Areas would be open to 
scallop fishing from June 15 through January 31 each year. The season 
is intended to reduce scallop fishing effort in the areas during peak 
spawning periods for some NE multispecies species, when NE multispecies 
concentrations are expected to occur.

9. Yellowtail Catch Limits

    The Scallop Access Area program would be subject to a TAC for 
yellowtail set at 10 percent of the total TAC established in Amendment 
13 to the Multispecies FMP for each yellowtail stock. Two percent of 
this scallop fishery yellowtail bycatch TAC (i.e., 2 percent of the 10 
percent bycatch TAC, or 0.2 percent of the overall yellowtail TAC) 
would be set aside for vessels to harvest during approved research, as 
described below. The TAC governing the Scallop Access Area fishery 
would, therefore, be equal to 9.8 percent of the overall yellowtail TAC 
for each stock. The following table specifies the yellowtail bycatch 
TAC and yellowtail research TAC set-aside.

----------------------------------------------------------------------------------------------------------------
                                                                                  Controlled
                                                                Access area     access fishery
       Yellowtail stock           Controlled       Fishing    bycatch TAC (10      TAC (9.8       Research TAC
                                  access area        year        percent of       percent of
                                                                 total TAC)       total TAC)
----------------------------------------------------------------------------------------------------------------
Southern New England.........  Nantucket                2004  154,764 lb.....  152,780 lb.....  3,086 lb.
                                Lightship.                    (70.7 mt)......  (69.3 mt)......  (1.4 mt).
                                                        2005  436,956 lb.....  428,138 lb.....  8,818 lb.
                                                              (198.2 mt).....  (194.2 mt).....  (4.0 mt).
                                                        2006  733,037 lb.....  718,266 lb.....  14,771 lb.
                                                              (332.5 mt).....  (325.9 mt).....  (6.7 mt).
GB...........................  Closed Area I            2004  1,322,774 lb...  1,296,318 lb...  26,455 lb.
                                and Closed Area               (600 mt).......  (588 mt).......  (12 mt).
                                II combined.
                                                        2005  \(1)\..........  \(1)\..........  \(1)\
                                                        2006  \(1)\..........  \(1)\..........  \(1)\
----------------------------------------------------------------------------------------------------------------
\1\ To be updated annually according to the specifications procedure associated with the U.S./Canada Resource
  Sharing Understanding under the NE multispecies regulations.

    Scallop vessels fishing in the Scallop Access Areas would be 
required to report all yellowtail catches (all catch, including 
discards) and all catch would be counted toward the TAC. When the 
yellowtail TAC established for a Scallop Access Area is attained, the 
scallop fishery in the affected access area would close and any 
remaining access area trips would be redirected into open areas, as 
explained in Item 10 below.
    The Multispecies FMP established a TAC for yellowtail under the 
U.S./Canada Resource Sharing Understanding in the Eastern U.S./Canada 
Area, and the NE multispecies fishery within the area closes when the 
TAC is fully attained. If the U.S./Canada yellowtail TAC is fully 
attained, scallop trips within the Scallop Access Areas in the Eastern 
U.S./Canada Area (CAI and CAII) would be allowed to continue, though 
retention of yellowtail would be prohibited, until the yellowtail 
catches by scallop vessels fully attain the scallop fishery's 
yellowtail set-aside. At that time, the scallop fishery in the Scallop 
Access Areas would be closed and any remaining access area trips would 
be redirected into open areas, as explained in Item 10 below.
    As noted above, NMFS has concerns about the feasibility of 
implementing the measure requiring NMFS to monitor the landings of 
scallops and yellowtail through vessel VMS reports, dealer reports, and 
at-sea observer reports and, to take appropriate action based on 
projections of whether the yellowtail harvest will be achieved. 
Specifically, the measure states that if, on December 1 each year, the 
catch of yellowtail by scallop vessels fishing in the Scallop Access 
Area is below the yellowtail

[[Page 52474]]

TAC set for the GB yellowtail stock, and if the overall GB yellowtail 
TAC is not projected to be harvested, then the RA could enact measures 
to increase the Scallop Access Area yellowtail TAC allocated to scallop 
vessels fishing in the Scallop Access Area. The Joint Frameworks 
specify that the yellowtail TAC would be increased only if such 
increase would not be expected to cause the yellowtail TAC under the 
Multispecies FMP to be exceeded. NMFS seeks public comment concerning 
the feasibility of implementing this measure, particularly regarding 
the likelihood that NMFS could assure that the increase in the 
yellowtail TAC in the Scallop Access Area would not result in the 
overall yellowtail TAC being exceeded.
    The Joint Frameworks would establish a set-aside of 2 percent of 
the yellowtail TAC allocated for the Scallop Access Area for the 
harvest of yellowtail during research approved under the existing 
scallop research TAC set-aside program. If research fishing that would 
be conducted within the Scallop Access Areas is approved, a small 
amount of yellowtail would be allocated for catch by the vessels 
involved in the research activity. This is intended to enable 
researchers to conduct their activities, even if the overall yellowtail 
TAC has been attained. Without this research set-aside, scallop 
research approved as part of the scallop TAC set-aside program would be 
prohibited if the Scallop Access Area were closed due to attainment of 
the yellowtail TAC.

10. Trip Re-Allocation if Scallop Access Area Is Closed

    The Scallop Access Areas could close before limited access scallop 
vessels have taken all of their NE multispecies closed area access 
trips if the yellowtail TAC is fully attained. The Joint Frameworks 
propose that if the yellowtail TAC allocated to the scallop Area Access 
fishery is harvested, limited access scallop vessels would be allowed 
to take unused NE multispecies closed area access trips in open areas, 
up to the lesser of the following: (1) The difference in the number of 
equivalent DAS allocated for the affected Access Area and the number of 
DAS charged to a vessel for trips taken into the affected Access Area; 
or (2) the difference between open area DAS allocations specified in 
this rule with access and the 2004 default DAS allocation or open area 
DAS allocations prior to implementation of the Joint Frameworks (i.e., 
DAS allocations without access to the NE multispecies closed areas as 
specified in Amendment 10). A maximum number of DAS would only be 
available to a vessel if it had taken no trips in the Access Area prior 
to closure. If a vessel took any trips, the maximum number of DAS to be 
used in open areas would be deducted by the number of DAS charged for 
each trip in the Access Area. The following table summarizes the 
maximum number of DAS that a vessel may fish in open areas if the 
Access Area closes prior to completion of all trips.

----------------------------------------------------------------------------------------------------------------
                                                   Permit category             2004         2005         2006
----------------------------------------------------------------------------------------------------------------
Open Area DAS prior to the Joint            Full-time....................       \1\ 62          117          152
 Frameworks.                                Part-time....................       \1\ 25           47           61
                                            Occasional...................        \1\ 5           10           13
Open Area DAS under the Joint Frameworks..  Full-Time....................           42           40           67
                                            Part-time....................           17           16           27
                                            Occasional...................            4            3            6
Difference in DAS allocations.............  Full-time....................           20           77           85
                                            Part-time....................            8           31           34
                                            Occasional...................            1            7            7
Maximum number of DAS to be used in Open    Full-time....................           20           24           24
 Areas after Access Area Closure.           Part-time....................            8           24          9.6
                                            Occasional...................            1            5            2
----------------------------------------------------------------------------------------------------------------
\1\ DAS to be implemented on September 15, 2004, if a final rule for the Joint Frameworks is not published by
  that date.

    For example, a Full-time scallop vessel with two unused trips into 
the CAII Scallop Access Area in the 2004 fishing year when the Access 
Area was closed could fish an additional 20 DAS in open areas. A Full-
time scallop vessel with one remaining trip into the CAII Scallop 
Access Area in the 2004 fishing year when the Access Area was closed 
could fish an additional 12 DAS in open areas. This provision is 
intended to allow scallop vessels to reasonably utilize their DAS and 
trip allocations, even if the Scallop Access Areas close due to harvest 
of the yellowtail TAC.

11. Finfish Possession Limits

    Limited access scallop vessels fishing in a Scallop Access Area 
would be restricted to a possession limit of 1,000 lb (453.6 kg) of all 
NE multispecies combined, including 100 lb (45.4 kg) of cod which could 
be retained for personal use only. No cod could be sold from a scallop 
vessel participating in the Access Area program and all cod possessed 
on board must be whole and gutted for ease of enforcement. Limited 
Access scallop vessels would be restricted to existing possession 
limits for haddock, monkfish, and yellowtail. As explained above, 
yellowtail is further managed through the establishment of Scallop 
Access Area TACs, and possession of yellowtail would be prohibited when 
those TACs are attained.

12. At-Sea Observer Coverage

    One percent of the scallop target TAC would be set aside and 
available to help defray the cost of at-sea observers deployed on 
scallop vessels. Observers would collect information on catch and 
discards of scallops and other species including incidental catch of 
other finfish and sea turtles. Observer reports would provide more 
accurate estimates of yellowtail bycatch for use in monitoring the TAC 
for yellowtail, for estimation of bycatch of other finfish and sea 
turtles. Vessels would be allowed to catch extra scallops under the TAC 
set-aside, to help pay for the cost of carrying an observer on the 
vessel. This measure mirrors the observer set-aside established in 
Amendment 10, and is part of the Council's standardized bycatch 
reporting methodology.
    The amount of observer coverage resulting from the 1-percent TAC 
set-aside, combined with NMFS-funded observer coverage, to cover at 
least 5 percent of the trips, is estimated to provide observer coverage 
for approximately 9, 5, and 12 percent of trips allocated in CAI, CAII, 
and the NLCA, respectively. The Council estimated that this amount of 
observer coverage would reduce variability in bycatch estimates for 
yellowtail, other finfish, and sea turtles, in order to provide more 
accurate and statistically sound bycatch estimates than would

[[Page 52475]]

otherwise be achieved without the additional coverage.

13. Expanded Reporting Requirements

    All scallop vessels fishing in the Scallop Access Areas would be 
required to report their catches of scallops and yellowtail using VMS. 
Yellowtail reporting is critical to ensure accurate monitoring of the 
yellowtail TACs. The reports would be submitted via VMS on a daily 
basis.

14. Modified EFH Closure Areas

    Amendment 10 established some areas within the NE multispecies 
closed areas as EFH closed areas in order to specifically protect EFH 
from adverse effects of scallop fishing. This action proposes to modify 
those areas to make them identical to those implemented under Amendment 
13. These areas, some of which would extend beyond the boundaries of 
the NE multispecies closed areas, are intended to more effectively 
protect EFH by establishing consistent area closures under the Scallop 
and Multispecies FMPs.

15. DAS Allocation Changes

    Amendment 10 established a default measure to increase the DAS 
allocated to limited access scallop vessels fishing in open areas, to 
take effect September 15, 2004. The measure specifies that the 
publication of a final rule enacting the Scallop Access Area program 
would prevent the default allocation from going into effect. Because 
the Council was concerned that final regulations might not be published 
by September 15, 2004, even if the Joint Frameworks are approved, the 
Joint Frameworks include a contingency measure that specifies that, if 
the default scallop DAS allocations go into effect, vessels that use 
any of those DAS could not fish in any Scallop Access Area until March 
1, 2005. Vessels' owners who do not use any of the additional DAS 
allocated under the default would be eligible to fish in the Scallop 
Access Areas, if and when they are established.

16. Corrections and Clarifications

    This proposed rule includes corrections and clarifications to the 
scallop regulations, and a new prohibition on the sale of fish from 
Federally permitted vessels to dealers that have not been issued 
Federal dealer permits. It has come to NMFS's attention that some 
Federally permitted vessel crews may be selling scallops to dealers 
that have not been issued Federal dealer permits. This circumvents the 
Federal dealer permit and reporting requirement that is necessary for 
adequate administration and enforcement of the management program. The 
prohibition is proposed for both the Scallop and Multispecies FMPs.

Classification

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

Description of Small Entities to Which the Proposed Rule Will Apply

    The measures proposed in the Joint Frameworks would impact vessels 
issued limited access and general category sea scallop vessel permits. 
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 
(the most recent complete fishing year landings information available). 
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. According to permit data 
from the 2003 fishing year, there were 278 Full-time permits, 33 Part-
time permits, and 10 Occasional permits. In addition, there were 2,257 
vessels issued permits to fish in the General category in 2003. Annual 
scallop revenue for the limited access sector averaged from $615,000 to 
$665,600 for Full-time vessels, $194,790 to $209,750 for Part-time 
vessels, and $14,400 to $42,500 for Occasional vessels during the 2001 
and 2002 fishing years. Total revenues per vessel, including revenues 
from species other than scallops, exceeded these amounts, but were less 
than $3.5 million per vessel.
    Two criteria, disproportionality and profitability, were considered 
in determining the significance of regulatory impacts. The 
disproportionality criterion compares the effects of the regulatory 
action on small versus large entities. All of the vessels permitted to 
harvest sea scallops are considered to be small entities. The 
profitability criterion applies if the regulation significantly reduces 
profit for a substantial number of small entities, and is discussed in 
the Economic Impacts of the Proposed Action section of the IRFA summary 
in preamble of this proposed rule.

Proposed Reporting, Recordkeeping, and Other Compliance Requirements

    The Joint Frameworks propose new reporting, recordkeeping, and 
compliance requirements only upon general category scallop vessels. The 
new requirements proposed in this proposed rule are the following: (1) 
Installation of VMS units; (2) documentation of VMS unit installation; 
(3) notification through VMS of intent to fish in the NE multispecies 
closed area access areas; (4) notification via VMS of NE multispecies 
closed area access area trip specifics; (5) notification via VMS on the 
day the vessel departs for a NE multispecies closed area access area 
trip; (6) daily reporting of scallop and yellowtail catch; and (7) 
polling of the VMS units for general category vessels twice every hour. 
The total cost of compliance is relatively high because the cost of 
purchasing, installing, and operating the VMS unit is approximately 
$2,700 per vessel. Spread across the general category fleet, costs 
associated with VMS notifications and catch reporting are relatively 
low, at about $90 per vessel per year (based on the cost of a VMS 
message, equal to $0.79 per VMS message). Although these requirements 
will increase compliance costs for general category vessels, and will 
impose a high initial cost for purchasing the VMS unit and 
installation, without such requirements, the Council proposed no 
alternative that would allow access without the use of VMS. A vessel's 
ability to offset the cost of the VMS unit, its installation, and 
operation would dictate the number of vessels that are subject to the 
new compliance costs. Nevertheless, the proposed access fishery for 
general category vessels expands those vessels' flexibility and 
opportunity to fish in different areas.

[[Page 52476]]

Economic Impacts of the Proposed Action

    The IRFA considers the economic impacts of the proposed management 
measures in aggregate, evaluating the effects of all of the proposed 
measures together. The IRFA also considers and compares the economic 
effects of each proposed management measure and its alternatives, 
distinct from other alternatives. All economic impacts were analyzed 
relative to no action, defined as the continuation of the scallop 
fishery without access to the NE multispecies closed areas, and subject 
to higher open area DAS allocations.

Summary of Aggregate Economic Impacts Compared to No Action

    The combined economic impacts of the proposed action (including the 
suite of measures proposed by the Council in the Joint Frameworks) are 
positive for the majority of small business entities in the scallop 
fishing industry. The economic analyses demonstrated, however, that 
from 2004 through 2007, the proposed action would produce slightly 
lower revenues per year, on average, compared to the no action 
alternative. Revenues under the proposed action are expected to be 
approximately $60,000 less for the entire scallop fleet than the no 
action alternative. This is because, under no action, open area DAS 
would be higher in open areas for 2004 through 2007 without access to 
the NE multispecies closed areas. Open area landings are not restricted 
by a possession limit, and total scallop landings would be higher than 
if vessels were restricted by the possession limits and TACs under the 
proposed Scallop Area Access program. The price of scallops would 
decline, offsetting the increase in landings compared to the proposed 
action. Access to the NE multispecies closed areas would have positive 
impacts, however, on producer benefits and gross profits of the scallop 
fishery compared to no action. Because of the expected higher scallop 
abundance in the NE multispecies closed areas, which should result in 
higher landings per unit effort (LPUE), the operating expenses per 
pound of scallops are expected to decline by almost 30 percent with 
access, and gross profits, calculated as gross revenues net of 
operating costs and crew shares, are estimated to increase by 18 
percent. The long-term economic impacts of allowing access to the NE 
multispecies closed areas are expected to be positive, as well, 
compared to no action, increasing revenues and profits by nearly 2 
percent and 23 percent, respectively, on average per year. Without 
access, initial higher landings are expected to eventually have 
negative impacts on scallop biomass, LPUE, and landings in future 
years, resulting in overall revenues and total benefits of $3.1 million 
and $47.2 million, respectively, less than the proposed action.

Summary of Economic Impacts of Individual Proposed Measures

    (1) Access area boundaries--The Joint Frameworks considered four NE 
multispecies closed area access boundary alternatives. The economic 
impacts of the proposed and alternative Scallop Access Area boundaries 
are the same as those described in the aggregate impacts above because 
the analysis presumes that area boundaries are dependant on an overall 
access program. The proposed areas for the NE multispecies closed area 
scallop access program would have positive overall economic impacts on 
scallop vessels compared to the no action alternative, although short-
term revenues would be slightly lower than under the no action 
alternative. The third Scallop Access Area alternative (non-selected), 
which would restrict the amount of area opened for access, resulted in 
the most negative impact, with a loss of $71,000 per year for the 
scallop fleet combined, on average, compared to the no action 
alternative.
    (2) EFH closed areas--The Joint Frameworks considered three EFH 
closed area alternatives. The proposed EFH closed areas are consistent 
with the proposed Scallop Access Area boundary alternative and 
therefore have similar economic impacts. The boundaries of the EFH 
closures affect the scallop fishery similar to the proposed access 
boundaries and are not discussed separately. The economic impacts of 
the proposed EFH closed areas are similar among alternatives, with the 
exception of EFH closed area Alternative 3, which has the lowest 
economic benefit of all EFH closed area alternatives, because the area 
proposed for scallop access is constrained by the EFH closure 
boundaries, reducing the available scallop resource.
    (3) Gear restrictions--In addition to the proposed measure, the 
Joint Frameworks considered allowing trawl gear to be used by scallop 
vessels in the NE multispecies closed areas (the no action 
alternative). Prohibiting trawls from accessing NE multispecies areas 
is expected to have negative economic impacts on scallop trawl vessels, 
but have positive impacts on the scallop fishing industry overall and 
the dredge gear sector. These impacts occur because fishing for 
scallops with trawl gear may result in larger catch of yellowtail and 
necessitate the closure of the Scallop Access Areas to scallop fishing 
if the finfish TACs are exceeded. Such a premature closure would reduce 
the net economic benefits for the majority of the scallop vessels. 
However, many scallop trawl vessels fish primarily in the Mid-Atlantic 
areas and do not fish in the GB areas. Only eight of the active trawl 
vessels in 1999 through 2002 fished in the GB areas and those that 
fished in the previous NE multispecies closed area access program in 
1999 and 2000 used dredge gear. Therefore, the negative impacts of this 
gear requirement would be minimized if trawl vessels could use dredge 
gear, or trade their closed area access trips for HC or other Access 
Area trips, where vessels are allowed to use scallop trawls. Also, 
Amendment 10 provisions provide flexibility to Part-time and Occasional 
vessels fishing in the controlled access areas, and allows them to 
choose which Access Area to fish, up to the maximum number of trips 
allocated to each vessel. Therefore, Part-time and Occasional vessels 
may be able to use some or all of the closed area access trips in the 
Mid-Atlantic areas without the necessity to change gear.
    (4) Yellowtail TACs and procedures to help avoid bycatch--Four 
measures were considered, three of which were proposed in the Joint 
Frameworks. The main difference between the proposed measures and the 
non-selected alternative is that, under the non-selected alternative, 
scallop vessels would not be allowed to redirect closed area access 
trips into open areas if the yellowtail TAC is harvested. The economic 
analysis is qualitative because it is not possible to determine when 
the yellowtail TAC could be harvested, thus closing the NE multispecies 
closed area access program. If the yellowtail TACs are exceeded before 
all scallop vessels have taken all of their eligible trips (meaning 
that target TAC would not be harvested), the landings of scallops, 
revenues and economic benefits would reduce the economic benefits from 
the access compared to the no action alternative. Without a measure to 
ensure that yellowtail catches do not exceed the yellowtail TACs and 
comply with the U.S./Canada Resource Sharing Understanding, however, it 
would not have been possible to provide access for scallop fishing to 
the NE multispecies closed areas. Therefore, the majority of the 
scallop vessels are expected to benefit from this measure, due to the 
opportunity provided to fish in those areas. In addition, the proposed 
action would allow transfer of unused closed

[[Page 52477]]

area access trips to open areas under DAS in case of an early closure 
of the closed area access program. This measure could alleviate the 
negative impacts from hard TACs, reduce derby-style fishing, and may 
prevent a reduction in vessel revenues in the short-term, if access 
areas are closed early. Furthermore, the rotation schedule proposed by 
Framework 16 would allocate fewer trips to the Nantucket Lightship 
access area in 2004, and thus would be less likely to result in closure 
of the NE multispecies closed areas. The provision to increase the 
yellowtail TAC if a specified limit is not harvested by December 1 of 
each year is expected to also have positive impacts on vessels by 
potentially allowing fishing operations to continue to higher levels of 
yellowtail catch. The proposed yellowtail catch set-aside could have 
indirect benefits on scallop vessels due to potential improvements in 
management through research. Any voluntary actions by the scallop 
industry to direct fishing activity away from areas of high bycatch, 
through information gathered by the industry or disseminated by NMFS, 
would prolong the scallop fishery in the closed areas and increase 
potential benefits.
    (5) Finfish possession limits--Because the proposed action would 
increase the possession limit of Northeast multispecies from 300 lb 
(136 kg) to 1,000 lb (453.6 kg), it would have positive economic 
impacts on the scallop vessels fishing in the NE multispecies closed 
areas. Retaining a possession limit for yellowtail, even at an 
increased level, may provide additional incentive to avoid yellowtail, 
reducing the risk of reaching yellowtail TACs before the scallop closed 
area access program fishery is completed. Therefore, these measures 
would have indirect economic benefits for the vessels in the scallop 
fishery. The proposed possession limit of 100 lb (45.4 kg) of cod per 
trip for personal use may also have some positive economic impacts, 
compared to a zero possession limit, by allowing the retention of catch 
that could be used to offset some food costs on fishing trips.
    (6) Closed area access program seasons--The proposed closed area 
access season (June 15 through January 31) is expected to have positive 
impacts on scallop vessels compared to the no action alternative. The 
proposed season would prevent scallop fishing during months when many 
species of NE multispecies are at peak spawning activity, and as a 
result, it would ensure that access to the GB multispecies areas is 
consistent with conservation goals of the NE Multispecies FMP. By 
allowing simultaneous access to these areas, it would provide more 
flexibility to fishermen to maximize their landings and revenues from 
the closed areas. The proposed season would have negative economic 
impacts compared to the alternative of a year-round fishery. However, 
year-round access may increase the likelihood of the scallop fishery 
catching the proposed yellowtail TAC quicker, thus reducing benefits of 
the higher valued scallop resource in the closed areas, and more 
efficient fishing operations.
    (7) At-sea observers, TAC set-asides, and fishery monitoring--The 
Joint Frameworks propose to continue with the existing sampling 
frequency that can be funded with a 1-percent TAC set-aside (status 
quo). The scallop industry may benefit from improved management that 
could result from more accurate fishery information. The TAC set-asides 
would reduce a small portion of the scallop revenue available to the 
scallop vessels by removing a portion of the TAC from the overall TAC. 
The funds generated from the set-aside landings would also reduce the 
compliance costs for vessels by providing compensation for observer 
coverage.
    (8) VMS reporting requirements--The requirement to have a VMS 
onboard for all scallop vessels that fish in the closed area access 
program would increase the costs of fishing for occasional vessels and 
vessels with the general category permits. Currently, all full and 
part-time vessels are required to have a VMS onboard, thus they would 
not be impacted by this proposed measure. However, for occasional 
vessels, the revenues from the controlled access trips would exceed the 
VMS costs. Further, Occasional scallop vessels have been subject to the 
VMS requirement in Access Areas since 1999. The impacts of these 
requirements on the general category vessels are examined separately. 
Even though VMS and other reporting requirements would increase the 
fishing costs by about $3,500 for some Occasional vessels, the economic 
benefits are expected to be equal to approximately $41,000 in 2004 and 
$29,000 in 2005, per vessel, from only the access areas. The reporting 
requirements would also have indirect economic benefits for the scallop 
fishery through improved management of the scallop resource and area 
expected to outweigh the compliance costs.
    (9) Closed area rotation schedule--The proposed rotation strategy 
minimizes the risk of high yellowtail bycatch in the NLCA and would, 
therefore, reduce the likelihood of scallop revenue loss and reduce the 
total net benefits from closure of access areas before the scallop 
closed area access program is complete. As a result, the mechanical 
rotation strategy proposed by the Joint Frameworks would have positive 
economic benefits on scallop vessels.
    (10) Trip and DAS allocations--There are no changes to the 
possession limits and DAS trade-offs in the Joint Frameworks from those 
included in Amendment 10 for Full-time vessels. Therefore, the economic 
impacts of area-specific DAS and trip allocations are within the range 
of impacts analyzed in Amendment 10. The Joint Frameworks propose to 
change the possession trips for the Part-time and Occasional vessels, 
however, in order to correct the inequities in access area trip 
allocations. Specifically, the allocations for the Part-time and 
Occasional vessels would be proportional to the Full-time allocations, 
similar to the DAS allocations prior to Amendment 10. Overall impacts 
of this adjustment during the 2004-2007 period would be positive for 
Part-time vessels, but negative for Occasional vessels. Potential 
landings would be reduced by 1,200 lb (544 kg) per trip for Part-time 
vessels and 7,500 lb (3,402 kg) per trip for Occasional vessels in 
2004, compared to allowing a 18,000-lb (8,165 kg) possession limit. 
Similar reductions are proposed for 2005, but in 2006, Occasional 
vessels would be allowed possession limit of only 3,000 lb (1,361 kg) 
for one trip. Potential revenue losses for Occasional vessels is 
expected to be approximately $57,000 per year, compared to allowing a 
possession limit of 18,000 lb (8,165 kg). Although many Occasional 
scallop vessels have not fished in the controlled Access Areas in the 
past, vessels are allocated trips that can only be taken in Access 
Areas, making the possession limit restrictive. However, NMFS cannot 
determine whether or not these access trips would be more profitable 
than open area trips under more restrictive DAS limitations.
    The Joint Frameworks also propose a change in the DAS and trip 
exchange option in order to prevent administrative complications that 
could arise if trips with unequal possession limits were exchanged. 
Under this alternative, Full-time vessels would trade only with another 
Full-time vessel, and the trades between Part-time and Occasional 
vessels would be similarly restricted. Although this measure is 
necessary to avoid management complications from unequal exchanges, it 
would also reduce the number of opportunities for trading trips. It 
would be especially difficult for Part-time and Occasional vessels 
because the vessels in the Part-time and

[[Page 52478]]

Occasional category have the flexibility to use their controlled access 
trips in any Access Area up to the maximum number of trips allocated to 
each vessel. This flexibility may reduce the need to exchange DAS 
allocations and mitigate some of the negative impacts resulting from a 
restrictive trade.
    (11) General category access to closed areas--Allowing access to 
the closed areas by general category vessel would have positive impacts 
on the revenues of these vessels. Profitability of access area trips 
will depend, however, on net revenues (i.e., revenues net of operating 
costs, crew shares, and VMS costs). The requirement to carry a VMS 
onboard would impose additional compliance costs for these vessels, 
which are estimated to be approximately $3,500 for the most expensive 
VMS unit, including the monthly message costs. With a possession limit 
of 400 lb (181.4 kg) per trip, general category vessels would likely 
have to take at least six trips to one of the closed areas to 
experience positive net revenues. Without the requirements, however, it 
would be difficult to control scallop mortality and monitor bycatch, 
and it may not be possible to provide access to the NE multispecies 
closed areas by general category vessels. Although difficult to 
predict, the benefits of expanding fishing opportunity for general 
category vessels could outweigh the cost of compliance with VMS, 
observer coverage, and other reporting requirements.

Economic Impacts of Significant and Other Non-Selected Alternatives

    The Joint Frameworks considered several alternatives that could 
have had less negative economic impact on scallop vessels, owners, 
operators, and crews. Specifically, the Council considered the 
following measures: (1) Allowing all gear types in the closed area 
access program; (2) alternatives for redirecting fishing effort from 
closed areas to open areas when the yellowtail bycatch TAC is 
harvested; (3) year-round access to the NE multispecies closed area 
access areas; and (4) exempting Occasional and general category vessels 
from VMS reporting requirements in the access areas. Each of these 
alternatives was considered in comparison with the proposed measures. 
The Joint Frameworks concluded that the measures would provide more 
revenues initially through increased scallop landings, or would have 
reduced compliance costs. However, the Joint Frameworks also concluded 
that these non-selected alternatives would likely offset the overall 
benefits of the proposed measures for the scallop resource and 
industry.
    This proposed rule contains new collection-of-information 
requirements subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA). These 
requirements would apply to general category vessels only, and have 
been submitted to OMB for approval. Public reporting burden for these 
collections of information are estimated to average as follows:
    1. Purchase and installation of VMS units, OMB 0648-0491 
(1 hr per response);
    2. Verification of VMS units, OMB 0648-0491 (0.083 hr per 
response);
    3. Daily reporting via VMS without an at-sea observer on board, OMB 
0648-0491 (0.17 hr per response);
    4. Daily reporting via VMS with an at-sea observer on board, OMB 
0648-0491 (0.17 hr per response);
    5. VMS notification of intent to fish on the 25th of the month 
preceding the intended trip, OMB 0648-0491 (0.033 hr per 
response);
    6. VMS notification of scheduled Access Area trip 72 hr prior to 
departure, OMB 0648-0491 (0.033 hr per response);
    7. VMS notification of trip 1 hr prior to departure, OMB 
0648-0491 (0.033 hr per response);
    8. Polling of VMS units twice per hour, OMB 0648-0491 
(0.0014 hr per response).
    These estimates include the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS and 
to OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 20, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec.  648.2, the definition for ``Bushel'' is revised to read 
as follows:


Sec.  648.2  Definitions.

* * * * *
    Bushel (bu) means a standard unit of volumetric measurement deemed 
to hold 1.88 ft/3/ (53.24 L) of surfclams or ocean quahogs in shell, or 
1.24 ft/3/ (35.24 L) of in-shell Atlantic sea scallops.
* * * * *
    3. In Sec.  648.10, paragraphs (b)(1)(iv) and (v) are revised, and 
paragraph (b)(1)(vi) is added as follows:


Sec.  648.10  DAS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (iv) A scallop vessel issued a general category scallop permit when 
fishing under the Sea Scallop Area Access Program specified under Sec.  
648.60 and in the Sea Scallop Access Areas described in Sec.  648.59(b) 
through (d);
    (v) A vessel issued a limited access NE multispecies, monkfish, 
Occasional scallop, or Combination permit, whose owner elects to 
provide the notifications required by this paragraph (b), unless 
otherwise authorized or required by the Regional Administrator under 
paragraph (d) of this section;
    (vi) A vessel issued a limited access NE multispecies permit 
electing to fish under the U.S./Canada Resource Sharing Understanding, 
as specified in Sec.  648.85(a).
* * * * *
    4. In Sec.  648.14, paragraph (a)(57) introductory text and 
paragraphs (a)(57)(i), (h)(25), (h)(26), (i)(1), and (s) are revised 
and paragraphs (a)(97), (a)(163), (a)(164), and (i)(10) through (13) 
are added to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
* * * * *

[[Page 52479]]

    (57) Fish for or land per trip, or possess at any time prior to a 
transfer to another person for a commercial purpose, other than solely 
for transport, in excess of 400 lb (181.4 kg) shucked, or 50 bu (17.6 
hl) in-shell scallops, unless:
    (i) The scallops were harvested by a vessel that has been issued 
and carries on board a limited access scallop permit and is fishing 
under scallop DAS; or
* * * * *
    (97) Fail to comply with any of the provisions specified in Sec.  
648.56.
* * * * *
    (163) Sell or transfer to another person for a commercial purpose, 
other than solely for transport, any NE multispecies harvested from the 
EEZ by a vessel issued a Federal NE multispecies permit, unless the 
transferee has a valid NE multispecies dealer permit.
    (164) Sell or transfer to another person for a commercial purpose, 
other than solely for transport, any Atlantic sea scallops harvested 
from the EEZ by a vessel issued a Federal Atlantic sea scallop permit, 
unless the transferee has a valid Atlantic sea scallop dealer permit.
* * * * *
    (h) * * *
* * * * *
    (25) Fish for, possess, or land scallops from the areas specified 
in Sec.  648.59(b) through (d) after the effective date of the 
notification published in the Federal Register stating that the 
yellowtail flounder TAC has been harvested as specified in Sec.  
648.85(c).
    (26) Retain yellowtail flounder in the areas specified in Sec.  
648.59(b) through (d) after the effective date of the notification 
published in the Federal Register stating that the yellowtail flounder 
TAC has been harvested as specified in Sec.  648.85(c).
    (i) * * *
    (1) Fish for or land per trip, or possess at any time, in excess of 
400 lb (181.4 kg) of shucked or 50 bu (17.6 hl) of in-shell scallops.
* * * * *
    (10) Refuse or fail to carry an observer after being requested to 
carry an observer by the Regional Administrator.
    (11) Fail to provide an observer with required food, 
accommodations, access, and assistance, as specified in Sec.  648.11.
    (12) Fail to comply with the VMS requirements specified in 
Sec. Sec.  648.10 and 648.60.
    (13) Fail to comply with the requirements specified in Sec.  
648.60.
* * * * *
    (s) Any person possessing or landing per trip, scallops in excess 
of 40 lb (18.1 kg) of shucked, or 5 bu (176.1 L) of in-shell scallops, 
at or prior to the time when those scallops are received or possessed 
by a dealer, is subject to all of the scallop prohibitions specified in 
this section, unless the scallops were harvested by a vessel without a 
scallop permit that fishes for scallops exclusively in state waters.
* * * * *
    5. In Sec.  648.51, paragraph (f)(1) is revised to read as follows:


Sec.  648.51  Gear and crew restrictions.

* * * * *
    (f) * * *
    (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. A 
limited access scallop vessel issued a valid letter of authorization or 
permit that endorses the vessel to fish for scallops with trawl nets 
may not fish with trawl nets in the Access Areas specified in Sec.  
648.59(b) through (d).
* * * * *
    6. In Sec.  648.52, paragraphs (a), (b), and (c) are revised to 
read as follows:


Sec.  648.52  Possession and landing limits.

    (a) 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 fishing for or landing per trip, or possessing at any time, in 
excess of 400 lb (181.4 kg) shucked, or 50 U.S. bu (17.6 hl) in-shell, 
scallops, with no more than one scallop trip of 400 lb (181.4 kg) of 
shucked, or 50 bu (17.6 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 fishing for or landing per trip, or possessing at any 
time, more than 40 lb (18.1 kg) of shucked, or 5 bu (176.2 L) of in-
shell scallops. Owners or operators 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 or landing 
per trip, or possessing at any time, more than the sea scallop 
possession and landing limit specified in Sec.  648.60(a)(5).
* * * * *
    7. In Sec.  648.53, paragraphs (b)(1), (b)(2), (b)(4), (c), (d), 
and (h) are revised, and paragraph (b)(5) is added to read as follows:


Sec.  648.53  DAS allocations.

* * * * *
    (b) * * *
    (1) For fishing years after 2006, total DAS to be used in all areas 
other than those specified in Sec.  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 the maximum number of DAS for each 
fishing year it may participate in the open area limited access scallop 
fishery, according to its category, after deducting research and 
observer DAS set-asides from the total open area 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 
maximum allocated DAS, may leave port without being assessed a DAS, as 
long as it does not fish for or land per trip, or possess at any time, 
more than 400 lb (181.4 kg) of shucked or 50 bu (17.6 hL) of in-shell 
scallops and complies with all other requirements of this part. The 
annual open area 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:

------------------------------------------------------------------------
                                                   2004
                  DAS category                     \1\     2005    2006
------------------------------------------------------------------------
Full-time......................................       42      40      67
Part-time......................................       17      16      27
Occasional.....................................        4       3       6
------------------------------------------------------------------------
\1\ Unless additional DAS are allocated as specified in paragraph (b)(4)
  of this section.

* * * * *
    (4) Additional 2004 DAS. (i) 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 NE 
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

[[Page 52480]]

 
Part-time..................................................            8
Occasional.................................................            1
------------------------------------------------------------------------

    (i) If a final rule is published in the Federal Register after 
September 15, 2004, that implements a framework action allowing access 
by scallop vessels to portions of the NE multispecies closed areas 
specified in Sec.  648.81(a), (b), and (c), and after the DAS increase 
becomes effective, as specified in paragraph (b)(4)(i) of this section, 
then limited access scallop vessels may use the Open Area DAS specified 
in paragraph (b)(4)(i) of this section. Such vessels are not eligible 
to fish under the Area Access Program described in Sec.  648.60 until 
March 1, 2005.
    (ii) If a TAC for yellowtail flounder is harvested for an Access 
Area specified in Sec.  648.59(b) through (d), a scallop vessel with 
remaining trips in the affected Access Area may fish any remaining 
trips in the open areas, with the following maximum DAS use limits:
    (A) A full-time vessel may fish up to 20 DAS in 2004, 24 DAS in 
2005, and 24 DAS in 2006, subject to the maximum number of DAS 
associated with the unused Access Area trip(s).
    (B) A part-time vessel may fish up to 8 DAS in 2004, 12 DAS in 
2005, and 9.6 DAS in 2006, subject to the maximum number of DAS 
associated with the unused Access Area trip(s).
    (C) An occasional vessel may fish up to 1 DAS in 2004, 5 DAS in 
2005, and 2 DAS in 2006, subject to the maximum number of DAS 
associated with the unused Access Area trip(s).
    (5) DAS allocations and other management measures are specified for 
each scallop fishing year, which begins on March 1 and ends on February 
28 (or February 29), unless otherwise noted. For example, the 2005 
fishing year refers to the period March 1, 2005, through February 28, 
2006.
    (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 specific number of trips to fish only within the Sea 
Scallop Access Areas, with the number of DAS charged for each trip 
designated for each area regardless of actual trip length. The number 
of trips and DAS to be charged for each scallop permit category and 
fishing year through 2006 for each Sea Scallop Access Area are provided 
in paragraphs (c)(1) through (3) of this section. 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). In 
addition, limited access scallop vessels area allocated a maximum 
number of trips and DAS that can be used within any of the Scallop 
Access Areas. As an example, if the total number of trips that a 
scallop vessel may take is two trips, and there are two Sea Scallop 
Access Areas opened to controlled fishing, with Area A having a maximum 
of one trip and Area B having a maximum of two 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.
    (1) Full-time scallop vessels may take seven trips in 2004, five 
trips in 2005, and two trips in 2006. DAS charges are 12 DAS for each 
trip, regardless of trip length.
    (2) Part-time scallop vessels may take three trips in 2004, two 
trips in 2005, and one trip in 2006. DAS charges are 12 DAS for the 
Hudson Canyon Access Area and 11.2 DAS for the Closed Area II and 
Nantucket Lightship Access Areas in 2004, 12 DAS in 2005, and 9.5 DAS 
in 2006.
    (3) Occasional scallop vessels may take two trips in 2004, one trip 
in 2005, and one trip in 2006. DAS charges are 12 DAS in 2004 for the 
Hudson Canyon Access Area and 7 DAS for the Closed Area II or Nantucket 
Lightship Access Areas, 5 DAS in 2005, and 2 DAS in 2006.
    (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)(2) 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.
* * * * *
    (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, 2005, and 2006 fishing years are 117 DAS, 111 DAS, and 187 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 GB NE multispecies 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, 2005, and 2006 fishing years are 233 DAS, 
223 DAS, and 373 DAS, respectively. Vessels participating in approved 
research will be authorized to use additional DAS in the applicable 
fishing year. Notification of and additional DAS allocated will be 
provided through a letter of authorization, or Exempted Fishing Permit 
issued by NMFS, as appropriate.
    8. In Sec.  648.55, paragraph (b) is revised to read as follows:


Sec.  648.55  Framework adjustments to management measures.

* * * * *
    (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. With the 
exception of the 2006

[[Page 52481]]

fishing year, 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.
* * * * *
    9. Section 648.59 is revised to read as follows:


Sec.  648.59  Sea Scallop Access Areas.

    (a) Hudson Canyon Sea Scallop Access Area. (1) Through February 28, 
2006, a vessel issued a limited access scallop permit may fish for 
scallops in, or possess and land scallops from, the area known as the 
Hudson Canyon Sea Scallop Access Area, described in paragraph (a)(2) of 
this section, only if the vessel is participating in, and complies with 
the requirements of, the area access program described in Sec.  648.60. 
Any limited access scallop vessel not participating in the Area Access 
Program, may possess scallops while transiting the area as provided in 
paragraph (e) 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' N.        73[deg]10' W.
H2.............................  39[deg]30' N.        72[deg]30' W.
H3.............................  38[deg]30' N.        73[deg]30' W.
H4/ET4.........................  38[deg]50' N.        73[deg]30' W.
H5.............................  38[deg]50' N.        73[deg]42' W.
H1.............................  39[deg]30' N.        73[deg]10' W.
------------------------------------------------------------------------

    (3) 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(a)(3), a vessel issued a limited 
access scallop permit may fish no more than four trips during 2004 and 
three trips during 2005 in the Hudson Canyon Access Area, unless the 
vessel owner has made an exchange with another vessel owner whereby the 
vessel gains a Hudson Canyon Access Area trip and gives up a trip into 
another Sea Scallop Access Area, as specified in Sec.  
648.60(a)(3)(ii), 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).
    (b) Closed Area I Access Area. (1) Through February 28, 2005, and 
every third fishing year thereafter (i.e., 2007, 2010, etc.) vessels 
issued scallop permits may not fish for scallops in, or possess or land 
scallops from, the area known as the Closed Area I Access Area, 
described in paragraph (b)(3) of this section.
    (2) Beginning March 1, 2005, through February 28, 2007, and for 
every 2-year fishing year period after each year the area is closed 
pursuant to paragraph (b)(1) of this section (i.e., the 2008 through 
2009 fishing years, and 2011 through 2012 fishing years, etc.), and 
subject to the seasonal restrictions specified in paragraph (b)(4) of 
this section, a vessel issued a scallop permit may fish for scallops 
in, or possess and land scallops from, the area known as the Closed 
Area I Access Area, described in paragraph (c)(2) of this section, only 
if the vessel is participating in, and complies with the requirements 
of, the area access program described in Sec.  648.60. Any limited 
access scallop vessel not participating in the Area Access Program, may 
possess scallops while transiting the area as provided in paragraph (e) 
of this section.
    (3) The Closed Area I 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
------------------------------------------------------------------------
CAIA1..........................  41[deg]26' N.        68[deg]30' W.
CAIA2..........................  40[deg]58' N.        68[deg]30' W.
CAIA3..........................  40[deg]55' N.        68[deg]53' W.
CAIA4..........................  41[deg]04.5' N.      69[deg]01' W.
CAIA1..........................  41[deg]26' N.        68[deg]30' W.
------------------------------------------------------------------------

    (4) Season. A vessel issued a scallop permit may not fish for 
scallops in, or possess or land scallops from, the area known as the 
Closed Area I Sea Scallop Access Area, described in paragraph (b)(3) of 
this section, except during the period June 15 through January 31 of 
each year the Closed Area I Sea Scallop Access Area is open to scallop 
vessels.
    (5) Number of trips--(i) Limited access vessels. Subject to the 
total number of Sea Scallop Access Area trips allowed for each limited 
access scallop permit category specified in Sec.  648.60(a)(3), a 
vessel issued a limited access scallop permit may fish no more than one 
trip in the Closed Area I Access Area, unless the vessel owner has made 
an exchange with another vessel owner whereby the vessel gains a Closed 
Area I Access Area trip and gives up a trip into another Sea Scallop 
Access Area, as specified in Sec.  648.60(a)(3)(ii), 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).
    (ii) General category vessels. Subject to the possession limit 
specified in Sec. Sec.  648.52(b) and 648.60(a)(5), and subject to the 
seasonal restrictions specified in paragraph (b)(4) of this section, a 
vessel issued a general category scallop permit may not enter in, or 
fish for, possess, or land sea scallops in or from the Closed Area I 
Access Area once the Regional Administrator has provided notification 
in the Federal Register, in accordance with Sec.  648.60(a)(8), that 
162 trips in the 2005 fishing year, and 141 trips in the 2006 fishing 
year, have been taken, in total, by all general category scallop 
vessels. The Regional Administrator shall notify all general category 
scallop vessels of the date when the maximum number of allowed trips 
have been, or are projected to be, taken for the 2005 and 2006 fishing 
years.
    (c) Closed Area II Access Area. (1) From March 1, 2006, through 
February 28, 2007, and every third fishing year thereafter, (i.e., 
2009, 2012, etc.) vessels issued scallop permits may not fish for 
scallops in, or possess or land scallops from, the area known as the 
Closed Area II Access Area, described in paragraph (c)(3) of this 
section.
    (2) From [insert effective date of the final rule] through February 
28, 2006, and for every 2-year fishing year period after each year the 
area is closed pursuant to paragraph (c)(1) of this section (i.e., the 
2007 through 2008 fishing years, and 2010 through 2011 fishing years, 
etc.) and subject to the seasonal restrictions specified in paragraph 
(c)(4) of this section, a vessel issued a scallop permit may fish for 
scallops in, or possess or land scallops from, the area known as the 
Closed Area II Sea Scallop Access Area, described in paragraph (c)(3) 
of this section, only if the vessel is participating in, and complies 
with the requirements of, the area access program described in Sec.  
648.60. Any limited access scallop vessel not participating in the Area 
Access Program, may possess scallops while transiting the area as 
provided in paragraph (e) of this section.
    (3) The Closed Area II 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
------------------------------------------------------------------------
CAIIA1.........................  41[deg]00' N.        67[deg]20' W.
CAIIA2.........................  41[deg]00' N.        66[deg]35.8' W.

[[Page 52482]]

 
CAIIA3.........................  41[deg]18.6' N.      66[deg]24.8' W.
CAIIA4.........................  41[deg]30' N.        66[deg]34.8' W.
CAIIA5.........................  41[deg]30' N.        67[deg]20' W.
CAIIA1.........................  41[deg]00' N.        67[deg]20' W.
------------------------------------------------------------------------

    (4) Season. A vessel issued a scallop permit may not fish for 
scallops in, or possess or land scallops from, the area known as the 
Closed Area II Sea Scallop Access Area, described in paragraph (c)(3) 
of this section, except during the period June 15 through January 31 of 
each year the Closed Area II Access Area is open to scallop vessels.
    (5) Number of trips--(i) Limited access vessels. 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), a 
vessel issued a limited access scallop permit may fish no more than two 
trips in 2004 and one trip in 2005 in the Closed Area II Access Area, 
unless the vessel owner has made an exchange with another vessel owner 
whereby the vessel gains a Closed Area II Access Area trip and gives up 
a trip into another Sea Scallop Access Area, as specified in Sec.  
648.60(a)(3)(ii), 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).
    (ii) General category vessels. Subject to the possession limits 
specified in Sec. Sec.  648.52(b) and 648.60(a)(5), and subject to the 
seasonal restrictions specified in paragraph (c)(4) of this section, a 
vessel issued a general category scallop permit may not enter in, or 
fish for, possess, or land sea scallops in or from the Closed Area II 
Access Area once the Regional Administrator has provided notification 
in the Federal Register, in accordance with Sec.  648.60(a)(8), that 
420 trips in the 2004 fishing year, and 385 trips in the 2006 fishing 
year, have been taken, in total, by all general category scallop 
vessels. The Regional Administrator shall notify all general category 
scallop vessels of the date when the maximum number of allowed trips 
have been, or are projected to be, taken for the 2004 and 2005 fishing 
years.
    (d) Nantucket Lightship Access Area. (1) From March 1, 2005, 
through February 28, 2006, and every third fishing year thereafter 
(i.e., 2008, 2011, etc.) vessels issued scallop permits may not fish 
for scallops in, or possess or land scallops from, the area known as 
the Nantucket Lightship Access Area, described in paragraph (d)(3) of 
this section.
    (2) From [insert effective date of the final rule] through February 
28, 2005, and from March 1, 2006, through February 28, 2008, and for 
every 2-year fishing year period after each year the area is closed 
pursuant to paragraph (d)(1) of this section (i.e., the 2009 through 
2010 fishing years, and 2012 through 2013 fishing years, etc.) and 
subject to the seasonal restrictions specified in paragraph (d)(4) of 
this section, a vessel issued a limited access scallop permit may fish 
for scallops in, or possess or land scallops from, the area known as 
the Nantucket Lightship Sea Scallop Access Area, described in paragraph 
(d)(3) of this section, only if the vessel is participating in, and 
complies with the requirements of, the area access program described in 
Sec.  648.60. Any limited access scallop vessel not participating in 
the Area Access Program, may possess scallops while transiting the area 
as provided in paragraph (e) of this section.
    (3) The Nantucket Lightship 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
------------------------------------------------------------------------
NLAA1..........................  40[deg]50' N.        69[deg]30' W.
NLAA2..........................  40[deg]50' N.        69[deg]00' W.
NLAA3..........................  40[deg]20' N.        69[deg]00' W.
NLSS4..........................  40[deg]20' N.        69[deg]30' W.
NLAA1..........................  40[deg]50' N.        69[deg]30' W.
------------------------------------------------------------------------

    (4) Season. A vessel issued a scallop permit may not fish for 
scallops in, or possess or land scallops from, the area known as the 
Nantucket Lightship Sea Scallop Access Area, described in paragraph 
(d)(3) of this section, except during the period June 15 through 
January 31 of each year the Nantucket Lightship Access Area is open to 
scallop fishing.
    (5) Number of trips--(i) Limited access vessels. 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), a 
vessel issued a limited access scallop permit may fish no more than one 
trip in the Nantucket Lightship Access Area, unless the vessel owner 
has made an exchange with another vessel owner whereby the vessel gains 
a Nantucket Lightship Access Area trip and gives up a trip into another 
Sea Scallop Access Area, as specified in Sec.  648.60(a)(3)(ii), 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).
    (ii) General category vessels. Subject to the possession limits 
specified in Sec. Sec.  648.52(b) and 648.60(a)(5), a vessel issued a 
general category scallop permit may not enter in, or fish for, possess, 
or land sea scallops in or from the Nantucket Lightship Access Area 
once the Regional Administrator has provided notification in the 
Federal Register, in accordance with Sec.  648.60(a)(8), that 386 trips 
in the 2004 fishing year, and 340 trips in the 2006 fishing year, have 
been taken, in total, by all general category scallop vessels. The 
Regional Administrator shall notify all general category scallop 
vessels of the date when the maximum number of allowed trips have been, 
or are projected to be, taken for the 2004 and 2006 fishing years.
    (e) Transiting. A limited access sea scallop vessel fishing under a 
scallop DAS that has not declared a trip into the Sea Scallop Area 
Access Program may enter in the Sea Scallop Access Areas described in 
paragraphs (a) through (c) of this section, and possess scallops not 
caught in the Sea Scallop Access Areas, for transiting purposes only 
provided the vessel's fishing gear is stowed in accordance with Sec.  
648.23(b), or there is a compelling safety reason to be in such areas 
without such gear being stowed. A vessel may only transit the Closed 
Area II Access Area, as described in paragraph (d) of this section, if 
there is a compelling safety reason for transiting the area and the 
vessel's fishing gear is stowed in accordance with Sec.  648.23(b).
    10. Section 648.60 is revised to read as follows:


Sec.  648.60  Sea Scallop area access program requirements.

    (a) A vessel issued a limited access scallop permit may only fish 
in the Sea Scallop Access Areas specified in Sec.  648.59, subject to 
the seasonal restrictions 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. A vessel issued a general category scallop permit may 
only fish in the Sea Hudson Canyon Sea Scallop Access Area specified in 
Sec.  648.59(a), subject to the possession limit specified in Sec.  
648.52(b). A vessel issued a general category scallop permit may only 
fish in the Closed Area I, Closed Area II, and Nantucket Lightship Sea 
Scallop Access Areas specified in Sec.  648.59(b) through (d), and 
subject to the seasonal restrictions specified in Sec.  648.59(b)(4), 
(c)(4), and (d)(4), and subject to the possession limit specified in 
Sec.  648.52(b), and provided the vessel complies with the requirements 
specified in

[[Page 52483]]

paragraphs (a)(1), (a)(2), (a)(3)(ii), (a)(5)(iii), (a)(6) through 
(a)(8), (d), and (e) of this section.
    (1) VMS. Each vessel participating in the Sea Scallop Access Area 
Program 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 required under paragraph 
(a)(2)(i) of this section, and for the purpose of selecting vessels for 
observer deployment, each participating vessel owner or operator shall 
provide notice to NMFS of the time, port of departure, and specific Sea 
Scallop Access Area to be fished, at least 72 hr, 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, each participating 
vessel owner or operator shall declare a Sea Scallop Access Area trip 
via VMS less than one hr prior to the vessel leaving port, in 
accordance with instructions to be provided by the Regional 
Administrator.
    (3) Number of Sea Scallop Access Area trips--(i) Table of Limited 
Access Vessel trips. Except as provided in paragraph (c) of this 
section, the table below summarizes the total number of trips and DAS 
charges for limited access scallop vessels to take into Sea Scallop 
Access Areas during applicable seasons specified in Sec.  648.59:

----------------------------------------------------------------------------------------------------------------
                                          Maximum           Total number of trips; and DAS charge per trip
                                         trips per  ------------------------------------------------------------
   Fishing year        Access area        area and
                                         per vessel       Full-time            Part-time          Occasional
----------------------------------------------------------------------------------------------------------------
2004.............  Closed Area II.....            2  7 trips; 12 DAS....  2 trips; 11.2 DAS.  1 trip; 7 DAS.
                   Nantucket Lightship            1
                   Hudson Canyon......            4  ...................  1 trip; 12 DAS....  1 trip; 12 DAS.
2005.............  Closed Area I......            1  5 trips; 12 DAS....  2 trips; 12 DAS...  1 trip; 5 DAS.
                   Closed Area II.....            1
                   Hudson Canyon......            3
2006.............  Closed Area I......            1  2 trips; 12........  1 trip; 9.6.......  1 trip; 2 DAS.
                   Nantucket Lightship            1
----------------------------------------------------------------------------------------------------------------

    (A) 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, unless the vessel owner has exchanged a trip 
with another vessel owner for an additional Sea Scallop Access Area 
trip, as specified in paragraph (a)(3)(ii) of this section. The DAS 
specified in the table in this paragraph (a)(3)(i) shall be 
automatically deducted for each Sea Scallop Access Area trip.
    (B) [Reserved]
    (ii) One-for-one area access trip exchanges. If the total number of 
trips into all Sea Scallop Access Areas combined is more than one, 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. Vessel owners 
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 [insert date 3 
months after publication of final rule in the Federal Register], in 
2004, and June 1 of each year thereafter. 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 that each vessel has unutilized 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.
    (iii) General category scallop vessels may not fish for, possess, 
or land scallops in or from the Access Areas specified in Sec.  
648.59(b) through (d) after the effective date of the notification 
published in the Federal Register, stating that the total number of 
trips specified in Sec.  648.59(b)(5)(ii), (c)(5)(ii), and (d)(5)(ii) 
have been, or are projected to be, taken by general category scallop 
vessels.
    (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 
declared Sea Scallop Access Area during that trip, and must not enter 
or exit the specific declared Sea Scallop Access Area 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.
    (i) Reallocation of trips into open areas. If the yellowtail 
flounder TAC allocated for a NE multispecies closed area Scallop Access 
Area specified in Sec.  648.59(b) through (d) has been harvested, a 
vessel with trips remaining to be taken in the affected Access Area may 
fish the remaining DAS associated with the unused trip(s), up to the 
maximum DAS specified in Sec.  648.53(b)(4)(C).
    (ii) [Reserved]
    (5) Possession and landing limits--(i) Scallop possession limits. 
Unless authorized by the Regional Administrator as specified in 
paragraphs (c) and (d) of this section, after declaring a trip into a 
Sea Scallop Access Area, a vessel owner or operator of a limited access 
scallop vessel may fish for, possess, and land, per trip, up

[[Page 52484]]

to the amounts specified in the table in this paragraph (a)(5). A 
vessel owner or operator of a general category scallop vessel may fish 
for, possess, and land, per trip, up to 400 lb (181.4 kg) of shucked 
scallops or 50 bu (17.6 hl) of in-shell scallops. No vessel fishing in 
the Sea Scallop Access Area may possess shoreward of the VMS 
demarcation line or land, more than 50 bu (17.6 hl) of in-shell 
scallops.

----------------------------------------------------------------------------------------------------------------
                                                                         Possession limit
         Fishing year             Access area   ----------------------------------------------------------------
                                                     Full-time        Part-time              Occasional
----------------------------------------------------------------------------------------------------------------
2004.........................  Closed Area II..  18,000 lb (9,525  16,800 lb        10,500 lb (4,763 kg).
                                                  kg).              (7,620 kg).
                               Nantucket
                                Lightship.
                               Hudson Canyon...  ................  18,000 lb        18,000 lb (9,525 kg).
                                                                    (9,525 kg).
2005.........................  Closed Area I...  18,000 lb (9,525  16,800 lb        7,500 lb (3,402 kg).
                                                  kg).              (7,620 kg).
                               Closed Area II..
                               Hudson Canyon...
2006.........................  Closed Area I...  18,000 lb (9,525  14,400 lb        3,000 lb (1,361 kg).
                                                  kg).              (6,532 kg).
                               Nantucket
                                Lightship.
----------------------------------------------------------------------------------------------------------------

    (ii) NE multispecies possession limits and yellowtail flounder TAC. 
After declaring a trip into a Sea Scallop Access Area and fishing 
within the Access Areas described in Sec.  648.59(b) through (d), and 
provided the vessel has been issued a Scallop NE Multispecies 
Possession Limit permit as specified in Sec.  648.4(a)(1)(ii), a vessel 
owner or operator of a limited access scallop vessel may fish for, 
possess, and land, per trip, up to 1,000 lb (453.6 kg) of all NE 
multispecies combined, subject to the additional restrictions for 
Atlantic cod, haddock, and yellowtail flounder specified in paragraphs 
(a)(5)(ii)(A) through (C) of this section.
    (A) Atlantic Cod. A vessel may bring onboard and possess only up to 
100 lb (45.4 kg) of Atlantic cod per trip, provided such fish is 
intended for personal use only and cannot be not sold, traded, or 
bartered. All cod must be whole and gutted.
    (B) Haddock. Subject to the seasonal restrictions established under 
the Sea Scallop Area Access Program and specified in Sec.  
648.59(b)(4), (c)(4), and (d)(4), a vessel is prohibited from 
possessing or landing haddock from January 1 through June 30, but may 
possess and land haddock up to the overall possession limit of all NE 
multispecies combined, as specified in paragraph (a)(5)(ii) of this 
section for the rest of the Sea Scallop Area Access Program season.
    (C) Yellowtail flounder--(1) Yellowtail flounder TACs. Limited 
access scallop vessels participating in the Area Access Program and 
fishing within the Access Areas specified in Sec.  648.59(b) through 
(d), are authorized to catch yellowtail flounder up to the TACs 
specified in Sec.  648.85(c) for the Closed Area I, Closed Area II, and 
Nantucket Lightship Access Scallop Areas. The Regional Administrator 
shall publish notification in the Federal Register in accordance with 
the Administrative Procedure Act, to notify scallop vessel owners that 
the scallop fishery portion of the TAC for a yellowtail flounder stock 
has been or is projected to be harvested by scallop vessels in any 
Access Area. Upon notification in the Federal Register that a TAC has 
been or is projected to be harvested, scallop vessels are prohibited 
from fishing within the Access Area(s), where the TAC applies, for the 
remainder of the fishing year. The yellowtail flounder TACs allocated 
to scallop vessels may be increased by the Regional Administrator after 
December 1 of each year pursuant to Sec.  648.85(c)(2).
    (2) SNE/MA yellowtail flounder possession limit. After declaring a 
trip into and fishing within the Nantucket Lightship Access Area 
described in Sec.  648.59(d), the vessel owner or operator of a limited 
access scallop vessel may fish for, possess, and land up to 250 lb 
(113.6 kg) per trip of yellowtail flounder between June 15 and June 30, 
and up to 1,000 lb (453.6 kg) per trip (if the vessel is in possession 
of no other NE multispecies) from July 1 through January 31, provided 
the yellowtail flounder TAC as specified in Sec.  648.85(c)(i) has not 
been harvested.
    (3) GB yellowtail flounder possession limit. After declaring a trip 
into and fishing within the Closed Area I or Closed Area II Access Area 
described in Sec.  648.59(b) and (c), the vessel owner or operator of a 
limited access scallop vessel may fish for, possess, and land up to 
1,000 lb (453.6 kg) per trip of yellowtail flounder (if the vessel is 
in possession of no other NE multispecies), provided the yellowtail 
flounder TAC specified in Sec.  648.85(c) has not been harvested. If 
the yellowtail flounder TAC established for the Eastern U.S./Canada 
Area pursuant to Sec.  648.85(a)(2) has been or is projected to be 
harvested, as described in Sec.  648.85(a)(3)(iv)(C)(3), scallop 
vessels are prohibited from harvesting, possessing, or landing 
yellowtail flounder in the Closed Area I and Closed Area II Access 
Areas.
    (iii) General category scallop vessels--(A) Scallop TAC. General 
category vessels fishing in the Access Areas specified in Sec.  
648.59(b) through (d) are authorized to land scallops, subject to the 
possession limit specified in Sec.  648.52(b), up to the amount 
allocated to the scallop TACs for each Access Area specified below. If 
the scallop TAC for a specified Access Area has been, or is projected 
to be harvested, the Regional Administrator shall publish notification 
in the Federal Register, in accordance with the Administrative 
Procedure Act, to notify general category vessels that they may no 
longer fish within the specified Access Area.
    (1) Closed Area I Access Area. 64,840 lb (29 mt) in 2005, and 
56,482 lb (25.6 mt) in 2006.
    (2) Closed Area II Access Area. 167,904 (76 mt) in 2004, and 
153,971 lb (70 mt) in 2005.
    (3) Nantucket Lightship Access Area. 154,368 lb (70 mt) in 2004, 
and 135,937 lb (62 mt) in 2006.
    (B) Possession Limits--(1) Scallops. General category scallop 
vessels fishing in the Access Areas specified in Sec.  648.59(b) 
through (d) may possess scallops up to the possession limit specified 
in Sec.  648.52(b) and paragraph (a)(5) of this section, subject to a 
limit on the total number of trips that can be taken by all such 
vessels into the Access Areas, as specified in Sec.  648.59(b)(5)(ii), 
(c)(5)(ii), and (d)(5)(ii). If the number of trips allowed have been or 
are projected to be taken, the Regional Administrator shall publish 
notification in the Federal Register, in accordance with the 
Administrative Procedure Act, to notify general category vessels that 
they may no longer fish within the specified Access Area.
    (2) Other species. General category vessels fishing in the Access 
Areas specified in Sec.  648.59(b) through (d) are prohibited from 
possessing any other species of fish.

[[Page 52485]]

    (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) in diameter. 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 
in accordance with Sec.  648.23(b), unless there is a compelling safety 
reason to be in the area without gear stowed.
    (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 DAS specified in paragraph (a)(3) of this 
section deducted from its access area DAS allocation, 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 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 
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 in paragraphs (c)(5)(i) through (iii) of 
this section. Such authorization will be made within 10 days of receipt 
of the formal written request for compensation.
    (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: Two DAS, plus one DAS for each 10 percent 
increment of the overall possession limit on board. Pounds of scallops 
landed shall be rounded up to the nearest 10-percent increment.
    (ii) The amount of scallops that can be landed on an authorized 
additional Sea Scallop Access Area trip shall equal 1,500 lb (680.4 kg) 
multiplied by the number of DAS to be charged for the resumed trip.
    (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, 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--(i) Hudson Canyon Access Area. For 
2004 and 2005, the observer set-asides for the Hudson Canyon Access 
Area are 187,900 lb (85.2 mt) and 149,562 lb (67.8 mt), respectively.
    (ii) Closed Area I Access Area. For the 2005 and 2006 fishing 
years, the observer set-asides for the Closed Area I Access Area are 
32,430 lb (15 mt) and 28,241 lb (13 mt), respectively.
    (iii) Closed Area II Access Area. For the 2004 and 2005 fishing 
years, the observer set-asides for the Closed Area II Access Area are 
83,952 lb (38 mt) and 76,958 lb (35 mt), respectively.
    (iv) Nantucket Lightship Access Area. For the 2004 and 2006 fishing 
years, the observer set-asides for the Nantucket Lightship Access Area 
are 77,184 lb (35 mt) and 67,968 lb (31 mt), respectively.
    (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 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 scallop 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--(i) Hudson Canyon Access Area. For the 
2004 and 2005 fishing years, the research set-asides for the Hudson 
Canyon Access Area are 375,800 lb (170.5 mt) and 299,123 lb (135.7 mt), 
respectively.
    (ii) Closed Area I Access Area. For the 2005 and 2006 fishing 
years, the research set-asides for the Closed Area I Access Area and 
64,860 lb (29 mt) and 56,482 lb (26 mt), respectively.
    (iii) Closed Area II Access Area. For the 2004 and 2005 fishing 
years, the research set-asides for the Closed Area II Access Area are 
167,904 lb (76 mt) and 153,971 lb (70 mt), respectively.
    (iv) Nantucket Lightship Access Area. For the 2004 and 2006 fishing 
years, the research set-asides for the Nantucket Lightship Access Area 
are 154,368 lb (70 mt) and 135,937 lb (62 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.
    (3) Yellowtail flounder research TAC set-aside. Vessels conducting 
research approved under the process described in Sec.  648.56, and in 
the Access Areas specified in Sec.  648.59(b) through (d) may harvest 
yellowtail flounder up to the TACs specified in the table in this

[[Page 52486]]

paragraph (e)(3), and subject to the possession limits specified in 
paragraph (a)(5)(ii)(C) of this section. If the TACs listed in the 
table in this paragraph (e)(3) are harvested, research may no longer be 
authorized in the applicable Access Area.

----------------------------------------------------------------------------------------------------------------
                                                                   Fishing
      Yellowtail flounder stock               Access area            year      Yellowtail flounder research TAC
----------------------------------------------------------------------------------------------------------------
Southern New England.................  Nantucket Lightship.....         2004  3,086 lb (1.4 mt).
                                                                        2005  8,818 lb (4.0 mt).
                                                                        2006  14,771 lb (6.7 mt).
GB...................................  Closed Area I and.......         2004  26,455 lb (12 mt).
                                       Closed Area II..........         2005  \(1)\
                                                                        2006  \(1)\
----------------------------------------------------------------------------------------------------------------
\1\ To be established annually, according to the specification procedure described in Sec.   648.85(a)(2).

    (f) VMS polling. For the duration of the Sea Scallop Area Access 
Program, as described in this section, all sea scallop vessels equipped 
with a VMS unit shall be polled at a minimum of 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 twice per hour.
    11. Section 648.61 is revised to read as follows:


Sec.  648.61  EFH closed areas.

    (a) No scallop fishing vessel may enter, fish in, or be in the EFH 
Closure Areas described in Sec.  648.80(h)(1)(i) through (iv). A chart 
depicting these areas is available from the Regional Administrator upon 
request.
    (b) Transiting. A scallop vessel may transit the EFH Closure Areas, 
as defined in Sec.  648.81(h)(1), provided that its gear is stowed in 
accordance with the provisions of Sec.  648.23(b), and that it complies 
with the transiting restrictions for the Closed Area II Habitat Closure 
Area specified in Sec.  648.81(b)(2)(iv).
    12. In Sec.  648.81, paragraphs (a)(2)(vi), (b)(2)(v), and 
(c)(2)(iv) are added to read as follows:


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

    (a) * * *
    (2) * * *
    (vi) Fishing for scallops within the Closed Area I Access Area 
defined in Sec.  648.59(b)(3) during the season specified in Sec.  
648.59(b)(4), and pursuant to the provisions specified in Sec.  648.60.
    (b) * * *
    (2) * * *
    (v) Fishing for scallops within the Closed Area II Access Area 
defined in Sec.  648.59(c)(3), during the season specified in Sec.  
648.59(c)(4), and pursuant to the provisions specified in Sec.  648.60.
    (c) * * *
    (2) * * *
    (iv) Fishing for scallops within the Nantucket Lightship Access 
Area defined in Sec.  648.59(d)(3), during the season specified in 
Sec.  648.59(d)(4), and pursuant to the provisions specified in Sec.  
648.60.
* * * * *
    13. In Sec.  648.85, paragraph (c) is added to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (c) Scallop fishery closed area access program. Scallop vessels 
operating under the Sea Scallop Area Access Program, as defined in 
Sec.  648.59, and fishing in accordance with the regulations at Sec.  
648.60 may possess and land up to 1,000 lb (453.6 kg) of all NE 
multispecies combined, as provided in Sec.  648.60(a)(5)(ii), unless 
otherwise restricted in this section.
    (1) Yellowtail flounder bycatch TAC allocation. An amount of 
yellowtail flounder equal to 10 percent of the total yellowtail 
flounder TAC for each of the stock area specified in paragraphs 
(c)(1)(i) and (c)(1)(ii) of this section may be harvested by scallop 
vessels. Limited access scallop vessels enrolled in the Sea Scallop 
Area Access Program and fishing within the Area Access areas defined at 
Sec.  648.59(b) through (d) may harvest yellowtail flounder up to 9.8 
percent of the applicable yellowtail flounder TAC. Scallop vessels 
participating in approved research under the process described in Sec.  
648.56, and fishing in the Access Areas specified in Sec.  648.59(b) 
through (d), may harvest 0.2 percent of the applicable yellowtail 
flounder TAC. With the exception of the 0.2-percent yellowtail flounder 
TAC set-asides for approved research, the amount of yellowtail flounder 
that may be harvested in the 2004 through the 2006 fishing years under 
this section will be specified by permit holder letter/small entity 
compliance guides. The yellowtail flounder TAC set-aside for research 
are specified in Sec.  648.60(e)(3).
    (i) SNE/MA yellowtail flounder. Limited access scallop vessels may 
harvest an amount of yellowtail flounder equal to 9.8 percent of the 
overall SNE/MA yellowtail flounder TAC from the Nantucket Lightship 
Closed Area Sea Scallop Access Area for each fishing year, unless 
otherwise prohibited under paragraph (c)(3) of this section. An amount 
of yellowtail flounder equal to 0.2 percent of the SNE/MA yellowtail 
flounder bycatch TAC, as specified in paragraph (c)(1) of this section, 
is set aside to allow for the harvest of yellowtail flounder during 
research approved under the scallop research program specified in Sec.  
648.56 and conducted in the Access Areas specified in Sec.  648.59(b) 
through (d).
    (ii) GB yellowtail flounder. Limited access scallop vessels may 
harvest an amount of yellowtail flounder up to 9.8 percent of the 
overall GB yellowtail flounder TAC from the Closed Area I and Closed 
Area II Sea Scallop Access Areas, combined, for each fishing year, 
unless otherwise prohibited under paragraph (c)(3) of this section. An 
amount of yellowtail flounder equal to 0.2 percent of the GB yellowtail 
flounder TAC, as specified in paragraph (c)(1) of this section, is set 
aside to allow for the harvest of yellowtail flounder during research 
approved under the scallop research program specified in Sec.  648.56.
    (2) Adjustments to the yellowtail flounder TAC allocation. If, as 
of December 1, of each year, the Regional Administrator projects that 
the total GB yellowtail flounder TAC for the NE multispecies fishery 
will not be harvested by the end of the fishing year and the catch of 
yellowtail flounder in the Sea Scallop Area Access Program is below 10 
percent of the GB yellowtail flounder bycatch TAC specified in 
paragraph (c)(1) of this section, the Regional Administrator may, 
through rulemaking consistent with the Administrative Procedure Act, 
increase the yellowtail flounder bycatch TAC allocated to vessels 
participating in the Sea Scallop Area Access Program above 10 percent, 
provided that such increase will not result in exceeding the total GB 
yellowtail flounder TAC.

[[Page 52487]]

    (3) Possession restriction and closure when yellowtail flounder TAC 
has been harvested. (i) If the GB yellowtail flounder TAC specified for 
the U.S./Canada Management Area under paragraph (a)(2) of this section 
has been harvested and notification has been published in the Federal 
Register, pursuant to paragraph (a)(2)(iv)(C)(3) of this section, but 
the yellowtail flounder bycatch TAC allocation for the GB stock 
specified under paragraph (c)(1)(ii) of this section has not been 
harvested, scallop vessels may continue to fish in the Sea Scallop Area 
Access Program, but may not retain or land yellowtail flounder, until 
the yellowtail flounder bycatch TAC is caught, as specified in 
paragraph (c)(3)(ii) of this section. All catch of yellowtail flounder 
must continue to be reported by scallop vessels fishing in Access Area 
as required under Sec.  648.60.
    (ii) If the yellowtail flounder bycatch TAC allocation for the GB 
stock specified under paragraph (c)(1)(ii), of this section has been or 
is projected to be harvested, scallop vessels may not fish within the 
Closed Area I and II Access Areas for the remainder of the fishing 
year. The Regional Administrator shall publish notification in the 
Federal Register, in accordance with the Administrative Procedure Act, 
to notify vessels that they may no longer fish within the Closed Area I 
and II Access Areas for the remainder of the fishing year.
* * * * *
    14. In Sec.  648.88, paragraph (c) is revised to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

* * * * *
    (c) Scallop NE multispecies possession limit permit. With the 
exception of vessels fishing in the Sea Scallop Access Areas as 
specified in Sec.  648.59(b) through (d), a vessel that has been issued 
a valid open access scallop NE multispecies possession limit permit may 
possess and land up to 300 lb (136.1 kg) of regulated species when 
fishing under a scallop DAS allocated under Sec.  648.53, provided the 
vessel does not fish for, possess, or land haddock from January 1 
through June 30, as specified under Sec.  648.86(a)(2)(i), and provided 
that the amount of yellowtail flounder on board the vessel does not 
exceed the trip limitations specified in Sec.  648.86(g), and provided 
the vessel has at least one standard tote on board. A vessel fishing in 
the Sea Scallop Access Areas as specified in Sec.  648.59(b) through 
(d) is subject to the possession limits specified in Sec.  
648.60(a)(5)(ii).
* * * * *
[FR Doc. 04-19474 Filed 8-25-04; 8:45 am]
BILLING CODE 3510-22-P