[Federal Register Volume 69, Number 211 (Tuesday, November 2, 2004)]
[Rules and Regulations]
[Pages 63460-63481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24429]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 040809233-4289-02; 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: Final rule.

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SUMMARY: NMFS implements 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 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 closed year-round to all fishing that is capable of catching 
NE multispecies, including scallop fishing. The Joint Frameworks allow 
the scallop fishery to access the scallop resource within portions of 
the NE multispecies closed areas during specified seasons, and ensure 
that NE multispecies catches by scallop vessels are consistent with the 
Multispecies FMP. The Joint Frameworks also revise the Essential Fish 
Habitat (EFH) closed areas implemented under Amendment 10 to the 
Scallop FMP (Amendment 10) in order to make the areas consistent with 
the EFH closures under the Multispecies FMP, as established by 
Amendment 13 to the Multispecies FMP (Amendment 13).

DATES: Effective November 2, 2004, except the amendments to Sec. Sec.  
648.10(b)(1)(iv); 648.59(b)(5)(ii), (c)(5)(ii), and (d)(5)(ii); and 
648.60(g) which will be effective upon approval of reporting and 
recordkeeping requirements by OMB and upon subsequent publication in 
the Federal Register.

ADDRESSES: 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. NMFS prepared a Final 
Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of the preamble of this rule. Copies of the FRFA 
and the Small Entity Compliance Guide are available from the Regional 
Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298, and are also available via the Internet at 
http://www.nero.nmfs.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at One Blackburn 
Drive, Gloucester, MA 01930, and by e-mail to [email protected], or fax to (202) 395-7285.
    Comments may also be submitted electronically through the Federal 
e-Rulemaking portal: http://www.regulations.gov.

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 
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 prohibit fishing for scallops to prevent 
NE multispecies mortality, as scallop gear is capable of catching NE 
multispecies. The Scallop Access Area Program allows scallop vessels to 
have 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 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)). As a result, the Council and NMFS ensured that the effects of 
allowing controlled access to the NE multispecies closed areas by the 
scallop

[[Page 63461]]

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 make the EFH closed areas the same in the Scallop FMP as in 
the Multispecies FMP.
    In the proposed rule, NMFS requested comment on all proposed 
measures, but specifically highlighted two issues about which NMFS had 
concerns. These were: Reallocation of Georges Bank (GB) yellowtail 
flounder (yellowtail) bycatch TAC to the Scallop Access Area Program 
after December 1 of each year; and dissemination of information by NMFS 
to trigger voluntary industry action to avoid bycatch. A discussion of 
these issues, including NMFS's consideration of public comments on the 
issues, follows.

1. Reallocation of GB Yellowtail Bycatch TAC

    This measure is being implemented through this final rule and is 
described in detail in Item 9 of this preamble. The measure requires 
that the Regional Administrator (RA) monitor catches of GB 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 of GB yellowtail. NMFS expressed 
concern in the proposed rule that it may be too early in the 
multispecies fishing year, which begins on May 1 each year, to assess 
effectively the likelihood of attaining the overall GB yellowtail 
allocation; the NE multispecies fishery continues through April 30. In 
addition, NMFS stated that it may not be possible for the scallop 
fishery to utilize effectively an additional yellowtail allocation 
before the Scallop Access Areas close to scallop fishing on February 1 
each year. NMFS received two comments in support of this measure; see 
comment 7 in the ``Comments and Responses'' section of this final rule. 
After considering the Council's rationale and public comments, NMFS has 
approved this measure because historical landings of yellowtail, 
including those in the current fishing year, could allow for 
projections in December, if data are found to be adequate. However, if 
data for projections are inadequate, the measure does not require an 
adjustment of the yellowtail bycatch TAC for the scallop fleet. 
Therefore, since this flexibility is built into the program, NMFS has 
included it in the measures implemented by this final rule. NMFS notes, 
however, that the timing of an adjustment is likely to limit additional 
catch of yellowtail and continuation of the scallop fishery to a very 
short period, since the Access Area season ends on January 31 of each 
year.

2. Dissemination of Information by NMFS Triggering Voluntary Action by 
Industry To Avoid High Bycatch

    NMFS noted its concern in the proposed rule about a provision in 
the Joint Frameworks that encouraged NMFS to disseminate information on 
a real-time basis voluntarily provided by vessel operators about 
bycatch to the entire scallop fleet. The Council included the measure 
hoping that the scallop industry would avoid areas or times of high 
bycatch of yellowtail and other species and take voluntary action to 
reduce such bycatch based on information provided by vessel operators. 
While the Joint Frameworks document stated that either NMFS or the 
Council would distribute this information, the public comments on this 
measure indicate that commenters expect that NMFS would provide the 
full suite of information suggested by the Council (see Comment 8 in 
the ``Comments and Responses'' section of this preamble).
    NMFS does not consider the Council's request to implement this 
program to be a specific recommendation by the Council subject to 
approval or disapproval. Because the proposed system is merely a 
recommendation and is not fully developed, NMFS is not implementing 
this program at this time. The Council envisioned such a system would 
use the VMS units that are mandatory on scallop vessels. NMFS concludes 
that the costs of such dissemination of information to industry would 
be high and the benefits of such a voluntary program are uncertain. 
Although not included in any cost analysis in the EA, the cost of VMS 
messages is typically determined by the number of characters in the 
message. One 5-line message sent to all scallop vessels would cost 
thousands of dollars. To include sufficient information to be useful, 
messages about bycatch hot-spots would need to be detailed. Whether the 
Council intended NMFS or the industry to pay for such messages, which 
was unspecified in the Joint Frameworks document, it is certain that, 
over the course of the fishing year, the cost of several messages would 
be substantial. NMFS recognizes that full-scale industry reaction to 
avoid bycatch could slow attainment of bycatch TACs and extend the 
scallop fishery. However, for such a program to be viable, more 
development is necessary, including full consideration of costs, 
benefits, regulatory requirements, full industry commitment, and 
incentives. Without such considerations, such a program cannot be 
expected to achieve its intended goals. Although NMFS is not required 
to and is not taking any specific action to follow the Council's urging 
to disseminate bycatch information, NMFS intends to post landing, 
catch, and bycatch TAC reports on its web page. Such information will 
allow the industry to make adjustments in fishing practices. Finally, 
the scallop industry has full discretion to take voluntary action to 
avoid bycatch using information typically shared among vessels.

Approved Management Measures

    The approved management measures that are applicable to the fishery 
within the Scallop Access Areas in CAI, CAII, and NLCA are summarized 
in Items 1-13 below, and the remaining approved measures are described 
in Items 14-16.

1. Scallop Access Areas

    Scallop Access Areas are implemented within portions of CAI, CAII, 
and NLCA. While the coordinates are specified in the regulations 
implemented by this final rule, the areas are generally described as 
the central portion of CAI, the southern portion of CAII, and the 
eastern portion of NLCA. The Scallop Access Areas are intended to 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 will be open for access each 
fishing year. CAII and NLCA will 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 repeats beginning in 
the 2007 fishing year, unless modified by the Council through 
additional framework action or an amendment to the Scallop FMP.

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 are established for vessels issued limited access 
scallop permits according to permit category: Full-time, Part-time,

[[Page 63462]]

and Occasional. Vessels in each permit category are 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 provide 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 possession limits 
are included in the table as part of the complete area rotation program 
implemented under Amendment 10. 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
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                                                             Table 2.--Possession Limits by Area, Fishing Year, and Permit Category
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                                                                                                                             Possession limit
           Fishing year                          Access area             -----------------------------------------------------------------------------------------------------------------------
                                                                                         Full-time                               Part-time                              Occasional
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2004..............................  Closed Area II......................  18,000 lb (8,165 kg)..................  16,800 lb (7,620 kg)..................  10,500 lb (4,763 kg).
                                    Nantucket Lightship
                                    Hudson Canyon                                                                 18,000 lb (8,165 kg)..................  18,000 lb (8,165 kg).
2005..............................  Closed Area I.......................  18,000 lb (8,165 kg)..................  18,000 lb (8,165 kg)..................  7,500 lb (3,402 kg).
                                    Closed Area II
                                    Hudson Canyon
2006..............................  Closed Area I.......................  18,000 lb (8,165 kg)..................  14,400 lb (6,532 kg)..................  3,000 lb (1,361 kg).
                                    Nantucket Lightship
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

4. Scallop 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 by Amendment 10. These TACs will 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 are established as absolute limits on the 
amount of scallops harvested during a specific activity, and that 
activity will cease when the set-aside TAC is attained. The overall 
target TACs for the scallop fishery are: (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 allow limited access vessels to exchange 
access area trips with other vessels. In the 2004 fishing year, vessels 
are allowed to enter into agreements to exchange trips for 3 months 
following implementation of the Joint Frameworks. After the 3-month 
period, vessel owners will not be allowed to negotiate exchanges of 
trips. In subsequent fishing years, owners may exchange trips until 
June 1 each year. Vessel owners are 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 differ 
between scallop permit categories, vessels must exchange only with 
vessels issued permits in the same scallop permit category. Since 
Occasional vessels are allocated only one trip, they are not eligible 
to exchange trips.

6. General Category Access Provisions

    When reporting and recordkeeping requirements submitted to OMB for 
review have been approved, another final rule will be published to 
announce when vessels issued open-access general category scallop 
permits will be allowed to fish within the Scallop Access Areas subject 
to the restrictions specified below. This provision includes additional 
management restrictions 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 amend the Multispecies FMP to allow general category vessels 
to fish within the NE multispecies closed areas, where such fishing is 
otherwise prohibited. General category vessels are 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

[[Page 63463]]

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 limit on the number of trips that the general category fleet 
can take into the Scallop Access Areas, requiring general category 
vessels to stop fishing in the specific Scallop Access Area once the 
total number of allowed trips is reached. The limits on the number of 
trips general category vessels may take for 2004, 2005, and 2006, are 
as follows: (1) 2004; 420 trips in CAII and 386 trips in NLCA; (2) 
2005; 162 trips in CAI and 385 trips in CAII; and (3) 2006; 141 trips 
in CAI and 340 trips in NLCA.
    d. A requirement to install and use a NMFS-certified VMS in order 
to notify NMFS when a vessel plans to fish in a Scallop Access Area.
    e. A prohibition on retaining or landing NE multispecies, with a 
requirement to report all catch of yellowtail, including discards, so 
that it can be counted against the yellowtail TAC for the scallop 
fishery. This restriction is consistent with the provisions for general 
category vessels fishing in other exempted fisheries under the 
Multispecies FMP.
    f. A requirement to carry at-sea observers when requested.
    g. VMS reporting of scallop and yellowtail catch to monitor fishery 
activity and bycatch. (These requirements are also required of limited 
access scallop vessels).
    h. 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 implementation 
of the requirement until December 23, 2004). Dredge width for general 
category vessels cannot exceed 10.5 ft (3.2 m).
    Access by general category vessels is not effective upon 
publication of this rule because of compliance and reporting 
requirements that require time for this sector of the industry to 
purchase VMS units and prepare for new compliance requirements. In 
addition, NMFS is awaiting approval by OMB of the reporting and 
recordkeeping requirements associated with these provisions. Therefore, 
the Access Area restriction for general category vessels will be made 
effective on the date of publication in the Federal Register indicating 
that OMB has approved the reporting requirements which will allow 
access and require compliance with the measures upon notification.

7. Gear Restrictions

    Scallop vessels fishing within the Scallop Access Areas in CAI, 
CAII, and NLCA are required to use scallop dredge gear only. The 
minimum diameter for rings used in the scallop dredge is 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.

8. Scallop Access Area Season

    The CAI, CAII, and NLCA Scallop Access Areas are open to scallop 
fishing from June 15 through January 31 each year.

9. Yellowtail Catch Limits

    The Scallop Access Area program is subject to a TAC for yellowtail 
set at 10 percent of the total TAC established in Amendment 13 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) is set aside for limited access 
scallop vessels to harvest during approved research, as described 
below. The TAC governing the Scallop Access Area fishery is, therefore, 
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.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Access area bycatch      Controlled access
        Yellowtail stock               Controlled access area          Fishing      TAC (10 percent of       fishery TAC (9.8          Research TAC
                                                                         year           total TAC)         percent of total TAC)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Southern New England...........  Nantucket Lightship...............         2004  154,764 lb............  152,780 lb............  3,086 lb.
                                                                                  (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 and Closed Area II           2004  1,322,774 lb..........  1,296,318 lb..........  26,455 lb.
                                  combined.                                       (600 mt)..............  (588 mt)..............  (12 mt).
                                                                            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.

    All scallop vessels (including general category vessels) fishing in 
the Scallop Access Areas are required to report all yellowtail catches 
(all catch, including discards) and all catch is counted toward the 
TAC. When the yellowtail TAC established for a Scallop Access Area is 
attained, the scallop fishery in the affected access area will be 
closed and any remaining access area trips will 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 projected to be 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) may continue, though 
retention of yellowtail will 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 will be closed and any remaining access area trips shall 
be redirected into open areas, as explained in Item 10 below. Any 
vessel that has declared and began a trip into the area for which the 
closure applies when the closure notice is made will be allowed to 
complete that trip. NMFS expects that projections of closure dates will 
ensure that remaining trips will not result in

[[Page 63464]]

the yellowtail bycatch TAC being exceeded.
    NMFS will monitor the landings of scallops and yellowtail through 
vessel VMS reports, dealer reports, and at-sea observer reports and 
take appropriate action based on projections of whether the yellowtail 
harvest will be achieved. If available information is sufficient to 
make a projection shortly after December 1 each year that the catch of 
yellowtail by scallop vessels fishing in the Scallop Access Area is 
below the yellowtail TAC set for the GB yellowtail stock, and if the 
overall GB yellowtail TAC is not projected to be harvested in the 
remainder of the fishing year, the RA may enact measures to increase 
the Scallop Access Area yellowtail TAC allocated to scallop vessels 
fishing in the Scallop Access Area. The yellowtail TAC may be increased 
only if such increase is not expected to cause the yellowtail TAC under 
the Multispecies FMP to be exceeded.
    The Joint Frameworks 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 is conducted within the 
Scallop Access Areas is approved, a small amount of yellowtail shall 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

    If the yellowtail TAC is fully attained, the Scallop Access Areas 
will be closed before limited access scallop vessels have taken all of 
their NE multispecies closed area access trips. If the scallop access 
areas are closed before vessels have taken all of their allocated trips 
in the area, limited access scallop vessels will be allowed to take the 
same number of unused NE multispecies closed area Access Area program 
trips in open areas, up to the lesser of the following: (1) The 
difference in the number of equivalent DAS allowed 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). 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      Full-time.......   \1\62     117     152
 Joint Frameworks.
                                Part-time.......   \1\25      47      61
                                Occasional......    \1\5      10      13
Open Area DAS under the Joint   Full-Time.......      42      40      67
 Frameworks.
                                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 additional    Full-time.......      20      24      24
 DAS to be used in Open Areas
 after Access Area Closure.
                                Part-time.......       8      24     9.6
                                Occasional......       1       5       2
Maximum number of additional    Full-time.......      20      60      24
 DAS to be used in Open Areas
 after Access Area Closure,
 including traded trips.
                                Part-time.......       8      48     9.6
                                Occasional......       1       5       2
------------------------------------------------------------------------
\1\DAS implemented on September 15, 2004, under the default DAS
  adjustment as part of Amendment 10.

    The maximum number of DAS will only be available to a vessel if it 
has taken no trips in the Access Area prior to its closure. If a vessel 
has taken any trips into the Access Area, the maximum number of DAS 
that can be used in open areas will be deducted by the number of DAS 
charged for each trip in the Access Area. Trips acquired through a one-
for-one trip exchange may also be used in open areas if a NE 
multispecies closed area Access Area closes. 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 closes can 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 closes can fish an additional 12 DAS in open 
areas.
    If a vessel owner has increased the number of trips that his/her 
vessel may take in a Scallop Access Area through one-for-one trips 
exchanges with other vessel owners, the vessel may also use those trips 
in open areas when the Scallop Access Area fishery in a NE multispecies 
closed area has closed. For example, a Full-time scallop vessel that 
has traded away two HC trips and received two additional CAII trips in 
2005 could fish up to 48 additional DAS in the open areas if the CAII 
Scallop Access Area fishery closes before the vessel has taken any 
trips in CAII.

11. Finfish Possession Limits

    Limited access scallop vessels fishing in a Scallop Access Area are 
restricted to a possession limit of 1,000 lb (453.6 kg) of all NE 
multispecies combined, including a maximum of 100 lb (45.4 kg) of cod, 
provided it is retained for personal use only. No cod may be sold from 
a scallop vessel participating in the Access Area program, and all cod 
possessed on board must be head-on and gutted for ease of enforcement. 
Limited Access scallop vessels are 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 will be

[[Page 63465]]

prohibited when those TACs are attained.

12. At-Sea Observer Coverage

    One percent of the scallop target TAC is set aside and available to 
help defray the cost of at-sea observers deployed on scallop vessels. 
Observers will collect information on catch and discards of scallops 
and other species including incidental catch of other finfish and sea 
turtles. Observer reports will provide information that will be used to 
monitor the yellowtail catch relative to the TAC for yellowtail, and 
for estimation of bycatch of other finfish and sea turtles. Vessels are 
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 is 
estimated to provide observer coverage for approximately 9-20 percent 
of trips allocated in CAI, 12-19 percent of the trips taken in CAII, 
and 11-25 percent of the trips taken in the NLCA. 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 otherwise be achieved without the additional 
coverage.

13. Expanded Reporting Requirements

    All scallop vessels fishing in the Scallop Access Areas are 
required to report their catches (landings and discards) of scallops 
and yellowtail using VMS. Yellowtail reporting is critical to ensure 
accurate monitoring of the yellowtail TACs. The reports will 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 protect EFH from adverse 
effects of scallop fishing. This action modifies those areas to make 
them identical to those implemented under Amendment 13. These areas, 
some of which 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, 
which took effect September 15, 2004. The Joint Frameworks include a 
measure that specifies that vessels that use any of these additional 
DAS are prohibited from fishing in any Scallop Access Area until March 
1, 2005. Vessels owners who have not used any of the additional DAS 
allocated on September 15, 2004, are eligible to fish in the Scallop 
Access Areas, which voids the allocation of the additional DAS in the 
open areas.

16. Corrections and Clarifications

    This final rule includes corrections and clarifications to the 
scallop regulations, and a new prohibition on the sale of scallops and 
multispecies from federally permitted vessels to dealers that have not 
been issued Federal dealer permits. This prohibition clarifies that it 
is illegal for crew members of federally permitted vessels to sell 
scallops and multispecies to dealers that have not been issued Federal 
dealer permits.

Comments and Responses

    NMFS received five comment letters on the Joint Frameworks, from 
three individuals, the Council, an industry representative, and the 
State of Maine. The comments raised concerns regarding general category 
provisions, impacts on multispecies vessels fishing in the multispecies 
closed area Access Areas, and overall provisions of the Joint 
Frameworks. No responses are included for comments that pertained to 
aspects of the Scallop FMP that were not measures included in the 
proposed rule (including alternative area rotation schemes, evaluation 
of scallop dredge ring size, scientific basis for scallop management 
under Amendment 7 to the Scallop FMP, one-to-one trip exchanges, DAS 
and possession limit charges in access areas, and industry review of 
recorded observer data).
    Comment 1: One commenter did not specifically address the proposed 
action, but rather indicated general support for marine protected 
areas, reduction of commercial quotas in general, better enforcement of 
fisheries regulations, and the need for protection of the public 
fishery resource.
    Response: Although NMFS acknowledges the importance of the issues 
raised by the commenter, they do not specifically relate to the 
proposed rule. The Joint Frameworks are intended to complete the area 
rotation program approved and implemented as part of Amendment 10 by 
allowing controlled scallop fishing within the NE multispecies closed 
areas. In addition, the Joint Frameworks rectify an inconsistency 
between the Multispecies FMP and Scallop FMP with respect to EFH closed 
areas by making the areas the same in each FMP.
    Comment 2: One individual commented that the Joint Frameworks do 
not address market considerations for 20- to 40-count scallops because 
the Scallop FMP strives to achieve harvest of only the largest 
scallops.
    Response: The Joint Frameworks, and fishery management in general 
under the Magnuson-Stevens Act, are not designed to control or manage 
market conditions. The area rotation program, expanded by the Area 
Access Program included in the Joint Frameworks, strives to achieve 
(OY) from the scallop resource as required by the Magnuson-Stevens Act.
    Comment 3: One individual questioned why water temperature and 
lunar tide cycles were not considered in determining seasons for the NE 
multispecies closed area access program.
    Response: The commenter does not explain how or why these factors 
should have been used to determine access program seasons. NMFS is 
unaware of any studies on these environmental conditions that would 
enable or require the Council to incorporate these factors into 
management programs for scallops or NE multispecies.
    Comment 4: One individual commented that vessels should be allowed 
to sell all marketable fish caught during scallop fishing as a way to 
reduce bycatch, and stated that the 1,000 lb (453.6 kg) possession 
limit for multispecies does not promote bycatch reduction in the 
scallop fishery.
    Response: Allowing landing of all marketable fish could promote 
non-selective fishing and result in higher fishing mortality on NE 
multispecies stocks. The 1,000 lb (453.6 kg) possession limit for 
multispecies is intended to encourage scallop vessels to stay away from 
high concentrations of yellowtail and other multispecies, thereby 
reducing bycatch and slowing or preventing attainment of the yellowtail 
bycatch TAC by the scallop fishery.
    Comment 5: One individual questioned whether vessels issued a NE 
multispecies permit and a general category scallop permit fishing 
within a NE multispecies Special Access Program (SAP) that overlaps 
with a scallop Access Area would be constrained by the restrictions on 
general category vessels included in the Joint Frameworks.
    Response: In the provisions applicable to vessels with general 
category scallop permits, the Council

[[Page 63466]]

made no distinction for vessels fishing for multispecies in an approved 
SAP that overlaps with a Scallop Access Area. Therefore, in any scallop 
fishing year that a NE multispecies closed area Scallop Access Area is 
open to scallop fishing, all general category vessels must comply with 
the Scallop Access Area provisions and requirements, and are subject to 
a limit on the number of trips taken and scallop TAC that can be 
harvested. A vessel with both a general category scallop permit and a 
multispecies permit that is fishing in a SAP may elect not to enroll in 
the Scallop Area Access Program, but may not harvest any scallops 
during that trip. In any scallop fishing year that a NE Multispecies 
closed area Scallop Access Area is closed to scallop fishing, a 
multispecies vessel issued a general category permit and fishing in an 
approved SAP that overlaps with the Scallop Access Area may possess, 
retain, and land up to 400 lb (181.4 kg) of scallops on each trip. NMFS 
has made changes to the regulations in the proposed rule to clarify 
this; these changes are explained in the ``Changes from Proposed to 
Final Rule'' portion of the preamble of this final rule.
    Comment 6: While the State of Maine Department of Marine Resources 
(DMR) commented in favor of the Joint Frameworks as a whole, it 
expressed concern about restrictions on general category vessels. DMR 
commented that the VMS requirement for general category scallop vessels 
should be accompanied with a possession limit increase to 800 lb (362.9 
kg) for trips over 24 hours to help absorb the cost of the VMS units. 
DMR also commented that the amount of TAC set-aside of scallops 
available to general category scallop vessels should be increased from 
2 percent to 5 percent because allocating 98 percent of the TAC to 
limited access vessels is excessive. Finally, DMR commented that 
allowing limited access scallop vessels to possess up to 100 lb (45.4 
kg) of cod per trip is not appropriate, given the poor stock status of 
GB cod, and that it is discriminatory because such personal use 
provision is not allowed for any other fishery, including the general 
category scallop fishery.
    Response: NMFS does not have the discretion to implement a higher 
general category possession limit or to modify the TAC set-aside 
allocation because it can only approve or disapprove measures submitted 
by the Council in this framework action. NMFS's review of the Council's 
analysis in the EA indicates that the 400 lb (181.4 kg) possession 
limit will provide compensation for costs of the VMS units on only a 
few trips, should general category vessels fish in the Access Areas. 
The general category possession restrictions are consistent with other 
exemptions for general category vessels under the Multispecies FMP. The 
Council adequately justified that the 100 lb (45.4 kg) possession limit 
of cod would help minimize discards of cod and would have negligible 
impact on the cod stocks and goals and objectives of the Multispecies 
FMP.
    Comment 7: The Council and an industry representative commented in 
favor of the GB yellowtail TAC adjustment procedure that authorizes the 
RA to increase the GB yellowtail TAC for scallop vessels participating 
in the Scallop Access Area program on or after December 1 each year. 
The Council stated that the rationale and analysis in the Joint 
Frameworks document demonstrated that an adjustment on or after 
December 1 of a fishing year could be reasonably made. The Council 
reiterated that the rationale included considerations of the progress 
of the CAII Yellowtail SAP (which has already been closed to fishing 
for the remainder of the 2004 fishing year); anticipated seasonal 
patterns in yellowtail flounder catches under Amendment 13; and effects 
on levels of yellowtail TAC in subsequent years. The industry 
representative noted that the provision enables the RA to use 
discretion concerning the adequacy of the data used to make any 
projection and to decline to make an adjustment if information is 
insufficient. The industry representative stated that, if the overall 
GB yellowtail TAC is underutilized by the multispecies fleet, the 
adjustment process would provide for additional harvest of scallops 
within this conservative management scheme. Therefore, the industry 
representative urged NMFS to approve the measure.
    Response: After considering these comments, NMFS has determined 
that sufficient discretion is given to the RA to adjust or maintain the 
yellowtail TAC level for scallop vessels based on the sufficiency of 
information available at the time. Historical and current multispecies 
fishery status demonstrates that, in some years, sufficient information 
may exist for the RA to determine whether or not to adjust the TAC; the 
RA is under no obligation to make the adjustment if data are 
insufficient. Although NMFS is concerned that scallop vessels may have 
very little time left in the Access Area season to utilize additional 
TAC if it is adjusted in December, it has approved the measure and 
included it in this final rule.
    Comment 8: The Council and the industry representative commented in 
favor of the request for NMFS to disseminate information to trigger 
voluntary action by the scallop industry to avoid bycatch. The Council 
questioned the lack of regulatory language in the proposed rule 
regarding the measure, but acknowledged the difficulty in drafting a 
regulation for a voluntary program. Nevertheless, the Council urged 
NMFS to disseminate bycatch-related information as frequently as 
necessary via letter to permit holders and notices to mariners. The 
Council commented that such action could go a long way to help the 
Scallop FMP achieve OY, by giving vessels information they need to 
avoid high catches of yellowtail and prevent attainment of the bycatch 
TAC. The industry representative commented that the dissemination of 
information through VMS is a responsibility of NMFS, and that such 
information is necessary to ensure that the fishery achieves OY. The 
commenter stated that, if NMFS does not make such data available, it 
will hinder responsible, careful harvesting of scallops that 
underpinned the 1999 and 2000 access programs. The commenter stated 
that the costs of not minimizing yellowtail bycatches would be 
enormous, and urged NMFS to undertake efforts to implement such real-
time alerts because the measures will benefit the industry over time. 
However, the commenter concluded by recognizing the difficulty in 
initiating such measures and noted that the Access Area Program is more 
important to industry than this proposed voluntary program.
    Response: NMFS does not consider the Council's request to 
disseminate bycatch information to be a specific measure in the Joint 
Frameworks that is subject to approval or disapproval. Therefore, in 
exercising its discretion, NMFS has determined that this provision 
would have excessive costs and minimal benefits, for reasons outlined 
thoroughly in the preamble section of this final rule. NMFS encourages 
voluntary action by industry to reduce bycatch but will not establish a 
program to disseminate the information recommended by the Council at 
this time.
    Comment 9: An industry representative urged NMFS to enact the Area 
Access Program so that access to the NE multispecies closed areas can 
occur this fishing year. The commenter noted several aspects of the 
program that he stated should be reconsidered in the future: 
Reconsideration of allowing access to only two of the three NE 
multispecies closed areas per year; the

[[Page 63467]]

target fishing mortality rate for the Area Access Program; the effects 
of the long term closure status of the NE multispecies closed areas on 
appropriate scallop fishing mortality rates; seasons for accessing the 
NE multispecies closed areas; bycatch rates in the general category 
vessel sector; and elimination of the limitation on the period allowed 
for one-for-one exchange of Access Area trips.
    Response: The measures proposed by the Council as part of the Joint 
Frameworks have been approved and are implemented through this final 
rule. Some measures that the commenter highlighted were also adopted as 
part of Amendment 10. NMFS notes that any changes would have to be 
developed by the Council in a future Scallop FMP amendment or 
framework.
    Comment 10: An industry representative commented that authorization 
of a compensation trip for a broken trip in an Access Area should not 
be at the discretion of the Regional Administrator and that all broken 
trip requests should be granted an authorized compensation trip.
    Response: This final rule provides that a trip may be terminated 
for any reason, as deemed necessary by the owner or operator. The 
provision designed by the Council requires NMFS to review landings from 
trips terminated early in order to determine the scallop possession 
limit for the compensation trip.
    Comment 11: An industry representative commented that general 
category vessels should be restricted to using only dredge gear in the 
Scallop Access Areas.
    Response: The restrictions on general category vessels as proposed 
by the Council were intended to be consistent with the provisions of 
the Gulf of Maine Scallop Dredge Exemption Area included in the 
Multispecies FMP regulations. NMFS has reviewed these provisions, 
agrees with the comment, and has made appropriate changes in this final 
rule to be consistent with the Council's intent, as specified in 
section 4.1.3 of the document supporting the Joint Frameworks (see 
ADDRESSES).
    Comment 12: An industry representative commented that the system to 
re-allocate trips when the yellowtail bycatch TAC is harvested for an 
area does not appropriately account for traded trips and is not an 
accurate representation of the system approved by the Council.
    Response: NMFS has reviewed the Council's document and has compared 
it to the system included in the proposed rule, and concludes that the 
commenter has raised valid concerns. The program recommended by the 
Council, and described in section 4.1.4.1 of the document supporting 
the Joint Frameworks (see ADDRESSES), included a provision to use a 
maximum number of unused Access Area trips in open areas, up to a 
maximum amount of DAS, including trips acquired through one-for-one 
trip exchanges. NMFS has made revisions to the regulations in the 
proposed rule to accurately implement the measure as adopted by the 
Council. The changes are explained in the ``Changes from Proposed Rule 
to Final Rule'' section of this final rule.
    Comment 13: An industry representative commented that the trip 
notification requirements for vessels participating in the Area Access 
Program are unnecessarily complex and not necessary. In particular, the 
commenter suggested elimination of the requirement that vessel owners 
notify NMFS of potential access area trips by the 25th day of the month 
preceding the month in which the trips would be taken.
    Response: The notification requirements have been part of the Area 
Access Program since its creation. The Council may revise or eliminate 
these notification requirements in the future if they are deemed to be 
no longer necessary. Currently, the information is necessary to allow 
for planning of observer deployment in the scallop fishery. Therefore, 
the notification requirement remains in this final rule as part of the 
Area Access Program, as approved under Amendment 10.
    Comment 14: An industry representative commented that the VMS 
restrictions for general category vessels provide an additional 
opportunity to these vessels to participate in the Area Access Program 
in the NE multispecies closed areas.
    Response: A detailed response to this comment is provided in the 
response to comments section of the FRFA in the preamble of this final 
rule. In summary, the IRFA supports the statements of the commenter 
because it concludes that the costs of requiring VMS on general 
category vessels would be offset by the benefits of gaining access to 
the NE multispecies closed areas.
    Comment 15: The Council commented that the proposed rule 
misrepresented the observer coverage provision approved by the Council. 
Specifically, the proposed rule specified that NMFS would provide and 
fund at-sea observers on 5 percent of the trips in the NE multispecies 
closed areas, and implies that coverage levels from TAC set-aside would 
be 4, 0, and 7 percent of the trips in CAI, CAII, and the NLCA, 
respectively. The Council commented that the approved provision 
excluded the NMFS-funded coverage and that the TAC set-aside would 
cover approximately 9-20 percent, 12-19 percent, and 11-25 percent of 
the trips in CAI, CAII, and the NLCA.
    Response: Although the Joint Frameworks document did not present 
this information clearly, NMFS has concluded that the Council's comment 
is correct. The Council's specified coverage levels are reflected in 
the preamble of this final rule.
    Comment 16: The Council and an industry representative provided 
suggestions on how to clarify the regulations in this final rule.
    Response: Those changes that NMFS agreed are necessary and 
appropriate are described in the ``Changes from Proposed Rule to Final 
Rule'' section of the preamble of this final rule. The following 
suggested changes were not made for the reasons described below.
    Comment 16a: An industry representative commented that the haddock 
possession limit described in Sec.  648.60(a)(5)(ii)(B) unnecessarily 
constrains the haddock possession limit outside of the Access Area 
seasons and appears to place no other limit on the possession of 
haddock.
    Response: The period when haddock possession is prohibited for 
scallop dredge vessels under the NE multispecies regulations (Sec.  
648.86(a)(2)) overlaps the Access Area season from January 1 through 
January 31, and from June 15 through June 30. Section 
648.60(a)(5)(ii)(B) therefore specifies that no haddock may be 
possessed by scallop vessels during the entire period specified in 
Sec.  648.86(a)(2). Without the specific seasons identified in Sec.  
648.60(a)(5)(ii)(B), the regulation retains flexibility should the 
Access Area seasons change in the future. Section 648.60(a)(5)(ii)(B) 
also accurately depicts the haddock possession limit for the remainder 
of the season. Therefore, no regulatory text revision has been made.
    Comment 16b: An industry representative commented that the 
regulatory text in Sec.  648.60(a)(5)(ii)(C) should include a provision 
that vessels on a Scallop Access Area trip when the fishery is 
projected to be closed due to the harvest of the yellowtail TAC are 
allowed to continue the trip.
    Response: Vessels that have initiated an Access Area Program trip 
to a NE multispecies closed area prior to notification of closure of 
the Access Area would be allowed to finish that trip. NMFS will project 
the date that the bycatch TAC is expected to be attained so that 
vessels will have sufficient notice of the closure date. NMFS also

[[Page 63468]]

expects to be able to use area-specific trip declarations to help 
project the date that it expects the bycatch TAC to be harvested and to 
identify vessels that have initiated a trip prior to notice of the 
closure being made.
    Comment 16c: An industry representative commented that Sec.  
648.85(c) refers to limited access scallopers harvesting yellowtail up 
to the quota, but makes no mention of yellowtail bycatch by general 
category vessels.
    Response: Section 648.85(c) pertains to limited access vessels 
fishing in the Access Areas. Although that paragraph has been clarified 
to specify limited access vessels, no further changes are necessary. 
Section 648.60(a)(5)(iii)(B)(2) specifies that general category vessels 
may not possess any other species of fish on an Access Area trip, 
although general category vessels are required to report catch of 
yellowtail, as required in Sec.  648.60(a)(9). All yellowtail catch 
will be counted against the TAC.
    Comment 16d: An industry representative commented that vessels 
should be allowed to transit Access Areas after leaving another Access 
Area, and that Sec.  648.60(a)(4) should reflect this allowance.
    Response: NMFS recognizes that a direct transit route may lead a 
vessel across another Access Area and has therefore included a revised 
transiting allowance in the regulations in Sec.  648.59(e).
    Comment 16e: The Council commented that the text in Sec.  
648.85(c)(3) should be clarified by including language about 
publication of a notice in the Federal Register in accordance with the 
Administrative Procedure Act.
    Response: No change to the regulations are necessary since the 
paragraph references the requirement to publish a notice in the Federal 
Register, which is fully described in Sec.  648.85(a)(3)(iv)(C)(3).

Changes From the Proposed Rule to Final Rule

    In addition to minor editorial changes to the proposed rule, the 
following changes have been made in this final rule.
    Language has been added to Sec.  648.10(b)(1)(iv); and Sec. Sec.  
648.59(b)(5)(ii), (c)(5)(ii), and (d)(5)(ii), and 648.60(a)(3)(iii), 
(a)(5)(iii), (a)(6)(iii) are reserved to reflect the delay in 
effectiveness for general category provisions associated with the 
Scallop Area Access Program until OMB has approved the associated 
reporting and recordkeeping requirements.
    In Sec.  648.14, paragraphs (i)(14) through (16) have been added to 
prohibit vessels issued general category permits from fishing in an 
Access Area when it is closed due to harvesting the scallop or 
yellowtail bycatch TAC, or if general category vessels have taken the 
allocated number of trips in a specific area.
    In Sec.  648.51, a prohibition on trawl gear use by general 
category vessels in NE multispecies closed area Access Areas, except 
vessels issued a NE multispecies limited access permit and fishing in 
an approved SAP while under NE multispecies DAS and not enrolled in the 
Scallop Area Access Program, has been added in response to a comment 
submitted by an industry representative.
    In Sec.  648.53, paragraph (b)(4) has been revised to eliminate 
duplicate paragraph numbering and to allow unused trips resulting from 
an exchange with another vessel to be used in open areas if the 
yellowtail TAC in the area has been harvested. This change has been 
made in response to a comment submitted by an industry representative.
    In Sec.  648.53, paragraphs (b)(4)(ii)(A), (B), and (C) are revised 
to clarify the number of trips vessels may take in Scallop Access 
Areas.
    In Sec.  648.53(c)(2), the value of 9.5 DAS in 2006 has been 
changed to 9.6 DAS in 2006, consistent with the Council's approved 
measure and a comment submitted by the Council.
    In Sec.  648.53, paragraph (h)(1) has been revised to specify that 
vessel owners are responsible for paying for the cost of carrying at-
sea observers, regardless of whether or not DAS set-aside is available.
    In Sec.  648.59, paragraph (a)(3), (b)(5)(i), (c)(5)(i), and 
(d)(5)(i) have been revised to clarify the number of trips that vessels 
may take in Scallop Access Areas.
    In Sec.  648.59, paragraphs (b)(1), (c)(1), and (d)(1) have been 
revised to clarify that multispecies vessels fishing under multispecies 
DAS in an approved SAP may retain and land up to 400 lb (181.4 kg) of 
scallops during the period that the Scallop Access Area is closed to 
scallop fishing. This is consistent with the Joint Frameworks, which 
did not prohibit this measure. This change was made in response to a 
comment by a member of the industry in order to clarify the regulations 
with respect to multispecies fisheries that overlap Scallop Access 
Areas.
    In Sec.  648.59, paragraphs (b)(5)(ii), (c)(5)(ii), and (d)(5)(ii) 
have been revised to include two subparagraphs to clarify that 
multispecies vessels fishing under multispecies DAS in an approved SAP 
may continue fishing in an area that is also a Scallop Access Area if 
they have chosen to not enroll in the Area Access Program and do not 
possess scallops.
    In Sec.  648.59, paragraph (e) has been revised to allow scallop 
vessels to transit an access area while steaming to or from another 
Access Area in response to a comment by an industry representative. The 
proposed rule would have prohibited such transiting, which is not 
necessary.
    In Sec.  648.60, paragraph (a) has been revised to allow vessels 
issued NE multispecies and general category permits and fishing under 
multispecies DAS in an approved SAP to continue fishing in an area that 
is also a Scallop Access Area if they have chosen to not enroll in the 
Area Access Program and do not possess scallops.
    In Sec.  648.60(a), references to Sec.  648.52(b) have been 
corrected to Sec.  648.52(a) in response to a comment by an industry 
representative.
    In Sec.  648.60, paragraph (a)(3)(ii) has been revised to clarify 
the one-for-one trip exchange provisions in response to a comment by an 
industry representative.
    In Sec.  648.60, paragraph (a)(4) has been revised to allow vessels 
to transit a Scallop Access Area while steaming to and from another 
Scallop Access Area.
    In Sec.  648.60, paragraph (a)(5)(i) has been revised to clarify 
the appropriate possession limit for part-time vessels in the 2005 
fishing year in response to comments submitted by the Council and an 
industry representative. The Joint Frameworks document included 
conflicting tables and, after consultation with Council staff, NMFS 
determined that the intent of the Council was clear that the possession 
limit for part-time vessels in 2005 should be 18,000 lb (8,165 kg), 
rather than 16,900 lb (7,666 kg), consistent with a 1,500-lb (680-kg) 
per DAS catch rate.
    In Sec.  648.60, paragraph (a)(5)(ii)(A) has been revised to 
reference NE multispecies possession restrictions in Sec.  648.83 to 
avoid inconsistency between fishery regulations. An industry 
representative commented that ``whole and gutted'' cod is ``internally 
inconsistent.''
    In Sec.  648.60, paragraphs (a)(5)(ii)(C)(2) and (3) are revised to 
allow the possession of 1,000 lb (453.6 kg) of NE multispecies 
combined.
    In Sec.  648.60, paragraph (a)(9) has been added to implement 
reporting requirements approved by the Council and not included in the 
proposed rule. The Council and an industry representative commented 
that this portion of the regulations was omitted from the proposed rule 
and that the omission is inconsistent with the

[[Page 63469]]

measure approved by the Council, as described in section 4.1.9.1 of the 
document supporting the Joint Frameworks (see ADDRESSES).
    In Sec.  648.60, paragraph (g) is added to reflect general category 
restrictions in NE multispecies closed area Scallop Access Areas. The 
restrictions included in this final rule in Sec.  648.60(g) were 
included in the proposed rule throughout Sec.  648.60, but have been 
moved to Sec.  648.60(g) to allow the effectiveness of the measures to 
be delayed until OMB clears the reporting and recordkeeping 
requirements. Section 648.60(g) also allows multispecies vessels 
fishing under multispecies DAS in an approved SAP to continue fishing 
in an area that is also a Scallop Access Area if they have chosen to 
not enroll in the Area Access Program and do not possess scallops.
    In Sec.  648.85, paragraph (c)(1)(ii)(2) has been revised to 
clarify the RA's discretion in adjusting the yellowtail TAC for scallop 
vessels fishing in the Scallop Access Areas based on the sufficiency of 
data available to make an adjustment as soon after December 1 as 
possible.

Classification

    The RA determined that the framework adjustments implemented by 
this rule are necessary for the conservation and management of the 
Atlantic sea scallop fishery and the NE multispecies fishery and are 
consistent with the Magnuson-Stevens Act and other applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds that the 30-
day delayed effective date required by 5 U.S.C. 553 is inapplicable 
because this rule, with the exception of the Area Access Program 
measures for general category vessels which will be addressed in a 
subsequent rulemaking, relieves restrictions imposed on scallop 
vessels. Scallop vessels are currently prohibited from fishing in the 
NE multispecies closed areas: Closed Area I, Closed Area II, and the 
Nantucket Lightship Closed Area. This rule allows scallop vessels 
access to these areas on a three-year rotational basis. Access to these 
areas will allow scallopers to fish on greater concentrations and 
abundance of scallops than are now distributed throughout the open 
areas. This includes the revision to the boundaries of the EFH closed 
areas, as failure to implement that measure as part of the Area Access 
Program would render a portion of the NLCA Access Area unuseable until 
the new EFH closures go into effect. The revised EFH closed areas shift 
the boundaries of the closure in the NLCA, resulting in a larger access 
area. Because general category vessels will be required to comply with 
new reporting and recordkeeping requirements, including the use of VMS 
units that they will need to acquire, the measures allowing general 
category vessels to access the NE multispecies closed areas is delayed 
until OMB has approved the reporting and recordkeeping requirements 
associated with this action.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has prepared a FRFA in support of the Joint Frameworks. The FRFA 
describes the economic impact that this final rule, along with other 
non-preferred alternatives, will have on small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA for the proposed rule to implement the Joint Frameworks (69 
FR 52470, August 26, 2004), the comments and responses in this final 
rule, and the corresponding economic analyses prepared for the Joint 
Frameworks (e.g., the EA and the RIR). The contents of these 
incorporated documents are not repeated in detail here. A copy of the 
IRFA, the RIR, and the EA are available upon request (see ADDRESSES). A 
description of the reasons why this action is being considered, the 
objectives of, and the legal basis for this final rule is found in the 
Joint Frameworks and the preamble to the proposed and final rules.

Description of Small Entities to Which the Proposed Rule Will Apply

    The measures proposed in the Joint Frameworks will 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. The IRFA concludes 
that this criterion does not apply. The basis for this conclusion is 
discussed at length in the Economic Impacts of the Proposed Action 
section of the IRFA summary in the preamble of the proposed rule.

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

    One comment was received in response to the IRFA. No other comments 
related to the economic analyses presented in the IRFA or the EA.
    Comment: An industry representative commented that the VMS 
restrictions on general category vessels provide an additional 
opportunity for these vessels to participate in the Area Access Program 
in the NE multispecies closed areas.
    Response: The RFA requires NMFS to consider and describe the costs 
and benefits of proposed measures compared to alternative measures. 
While the IRFA did highlight the relatively high compliance costs 
associated with the new requirements for general category vessels to 
use VMS, NMFS concluded that ``* * * the proposed access fishery for 
general category vessels expands those vessels' flexibility and 
opportunity to fish in different areas'' (69 FR 52470 at 52475, August 
26, 2004) and ``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

[[Page 63470]]

fishing opportunity for general category vessels could outweigh the 
cost of compliance with VMS, observer coverage, and other reporting 
requirements'' (69 FR 52470 at 52478, August 26, 2004). The IRFA was 
consistent with the statements of the commenter.

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

    The combined economic impacts of 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 under 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.
    NMFS implements the closed area access boundaries as proposed by 
the Council and in the proposed rule because, in comparison to the four 
NE multispecies closed area access boundary alternatives, the 
boundaries implemented in this rule offer the most economic benefits in 
the long-term while remaining consistent with measures to protect EFH 
and minimize bycatch. The economic impacts of this action 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 
specified areas for the NE multispecies closed area scallop access 
program have positive overall economic impacts on scallop vessels 
compared to the no action alternative, although short-term revenues are 
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, would result 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.
    The EFH closed area alternative implemented in this action is 
consistent with both the Access Area boundaries and EFH closed areas 
implemented in prior Multispecies FMP actions. Other alternatives would 
have constrained the fishery, had lower economic benefits, or would 
have been inconsistent with EFH closures.
    The provision allowing scallop fishing using dredge gear only in 
the NE multispecies closed area Access Program was compared in the 
Joint Frameworks to an alternative that would have allowed trawl gear 
to be used by scallop vessels in the Access Areas. While prohibiting 
trawls is expected to have negative economic impacts on scallop trawl 
vessels, it was adopted because of benefits to the scallop fishing 
industry overall and the dredge gear sector. NMFS is implementing the 
prohibition on the use of trawl gear in the NE multispecies closed 
area, Area Access Program, because reduced finfish bycatch by scallop 
dredges will reduce the likelihood of attaining the yellowtail bycatch 
TAC, thus lengthening the fishery season, and contributing to higher 
revenues for the fleet. Scallop trawl vessels are capable of converting 
to dredge gear, allowing flexibility within the Area Access provisions.
    NMFS implements the yellowtail TAC measures included in this rule 
to minimize bycatch while maximizing flexibility and ensuring that the 
scallop vessels do not lose landings and revenue after a closure once a 
yellowtail TAC is harvested. Vessels will be able to take additional 
open area trips if they have unused NE multispecies closed area Access 
Area trips when the fishery closes due to harvesting the yellowtail 
TAC. Attainment of the yellowtail TAC without the trip reallocation 
provision could have left some of the scallop TAC, designed to achieve 
OY, from being harvested. The economic analysis is qualitative because 
it is not possible to determine when the yellowtail TAC could be 
harvested. 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 
authorize scallop fishing in 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. The provision to allow an increase in the yellowtail TAC if a 
specified limit is not harvested by December 1 of each year is also 
expected to have positive impacts on vessels by potentially allowing 
scallop fishing operations to continue to higher levels of yellowtail 
catch. NMFS is not implementing the provision that would encourage 
voluntary actions by the scallop industry to direct fishing activity 
away from areas of high bycatch, through information provided by the 
industry and disseminated by NMFS. This measure would likely have 
excessive costs without certainty that it would result in the intended 
benefits.
    NMFS is implementing the NE multispecies possession limits proposed 
by the Council. This measure increases the possession limit of NE 
multispecies from 300 lb (136 kg) to 1,000 lb (453.6 kg), and is 
expected to have positive economic impacts on the scallop vessels 
fishing in the NE multispecies closed areas. Therefore, these measures 
would have indirect economic benefits for the vessels in the scallop 
fishery. The 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.

[[Page 63471]]

    NMFS is implementing the area access season (June 15 through 
January 31) which is expected to have positive impacts on scallop 
vessels compared to the no action alternative. The season prohibits 
scallop fishing during months when many species of NE multispecies are 
at peak spawning activity, and as a result, it should ensure that 
access to the GB multispecies areas is consistent with conservation 
goals of the NE Multispecies FMP. By allowing simultaneous access to 
all of the Access Areas, the final action provides more flexibility to 
fishermen to maximize their landings and revenues from the closed 
areas. The season will likely have negative economic impacts compared 
to the alternative of a year-round fishery. However, year-round access 
poses a risk of finfish bycatch and bycatch mortality and may increase 
the likelihood of the scallop fishery catching the proposed yellowtail 
TAC sooner than would be the case with the seasonal restrictions. 
Bycatch TAC attainment would close the Access Area, thus reducing 
benefits derived from the higher valued scallop resource in the NE 
multispecies closed areas.
    The final action maintains the existing sampling frequency that can 
be funded with a 1-percent TAC set-aside. The scallop industry may 
benefit from improved management that could result from more accurate 
fishery information. Although the TAC set-asides slightly reduce 
overall TAC available to all scallop vessels, the funds generated from 
the set-aside landings provide revenue to offset compliance costs for 
vessels carrying at-sea observers.
    The requirement to have a VMS onboard for all scallop vessels that 
fish in the closed area access program will increase the costs of 
fishing for occasional category vessels that have not yet participated 
in the Area Access Program and all vessels with general category 
permits (none of which previously participated in any Area Access 
Program). However, the alternative that prohibits access by these 
vessels would certainly constrain fishing opportunity and reduce 
revenues, potentially. NMFS therefore is implementing the measures as 
proposed to provide flexibility and opportunity for additional landings 
and revenues.
    NMFS is implementing the rotation strategy as proposed because it 
minimizes the risk of high yellowtail bycatch in the NLCA and, 
therefore, reduces the likelihood of scallop revenue loss from closure 
of access areas before the scallop closed area access program is 
complete.
    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. 
NMFS is implementing the change in the possession trips for the Part-
time and Occasional vessels, however, in order to correct inequities in 
Access Area trip allocations. For example, under Amendment 10, part-
time and occasional vessels both were allocated the same possession 
limit and trip allocation, despite a clear distinction in the effort 
levels intended for each category. This action makes the allocations 
for the part-time and occasional vessels proportional, 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. 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 modify the DAS and trip exchange option 
enacted in Amendment 10 to prevent administrative complications that 
could arise if trips with unequal possession limits were exchanged. 
Under this action, full-time vessels can trade only with another full-
time vessel, and the trades between part-time and occasional vessels 
are similarly restricted. Although this measure is necessary to avoid 
management complications from unequal exchanges, it reduces the number 
of opportunities for trading trips. It may be especially difficult for 
part-time and occasional vessel owners to locate other owners willing 
to exchange trips because the vessels in the part-time and 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. However, this flexibility reduces the need to exchange DAS 
allocations and is expected to mitigate some of the negative impacts 
resulting from the restriction.
    NMFS is implementing measures to allow general category vessels to 
access closed areas. This is expected to have positive impacts on the 
revenues of these vessels. Despite high compliance costs associated 
with VMS installation and operation requirements, the added fishing 
opportunity would provide for increased revenues compared to the 
alternative of not allowing access. The benefits of expanding fishing 
opportunity for general category vessels are expected outweigh the cost 
of compliance with VMS, observer coverage, and other reporting 
requirements for those vessels that choose to participate.

Economic Impacts of Significant and Other Non-Selected Alternatives

    The Joint Frameworks considered several alternatives that could 
have had lower 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 measures included in 
the proposed rule and this final rule. NMFS has concluded that the 
measures would provide more revenues initially through increased 
scallop landings, or would have reduced compliance costs. However, NMFS 
has also concluded that these non-selected alternatives would likely 
offset the overall benefits for the scallop resource and industry and 
may not achieve the goals and objectives of the Scallop FMP or the 
requirements of the Magnuson-Stevens Act.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all holders of permits issued for the 
Atlantic scallop fishery. In addition, copies of this final rule and 
guide (i.e., permit holder letter) are available from the RA and are 
also available from NMFS, Northeast Region (see ADDRESSES).
    This final 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

[[Page 63472]]

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: October 28, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.2, 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 ft3 (53.24 L) of surfclams or ocean quahogs in 
shell, or 1.24 ft3 (35.24 L) of in-shell Atlantic sea 
scallops.
* * * * *

0
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) Effective upon approval of the reporting and recordkeeping 
requirements by OMB, 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).
* * * * *

0
4. In Sec.  648.14, paragraph (a)(57) introductory text and paragraphs 
(a)(57)(i), (i)(1), and (s) are revised and paragraphs (a)(97), 
(a)(163), (a)(164), (h)(34), (h)(35), and (i)(4) through (10) are added 
to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (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) * * *
* * * * *
    (34) Declare and initiate a trip into 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).
    (35) 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.
* * * * *
    (4) Refuse, or fail, to carry an observer after being requested to 
carry an observer by the Regional Administrator.
    (5) Fail to provide an observer with required food, accommodations, 
access, and assistance, as specified in Sec.  648.11.
    (6) Fail to comply with the VMS requirements specified in 
Sec. Sec.  648.10 and 648.60.
    (7) Fail to comply with the requirements specified in Sec.  648.60.
    (8) Declare and initiate a trip into 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 general category

[[Page 63473]]

scallop TAC has been harvested as specified in Sec.  648.60.
    (9) Declare and initiate a trip into 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 number of general 
category trips have been taken as specified in Sec.  648.60.
    (10) Declare or initiate a trip into 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).
* * * * *
    (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.
* * * * *

0
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, 
and general category scallop vessels enrolled in the Area Access 
Program as specified in Sec.  648.60(g), may not fish with trawl nets 
in the Access Areas specified in Sec.  648.59(b) through (d).
* * * * *

0
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).
* * * * *

0
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 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\ Not including additional DAS allocated as specified in paragraph
  (b)(4) of this section.

* * * * *
    (4) Additional 2004 DAS. (i) Effective September 15, 2004, DAS for 
the 2004 fishing year increased by the following amounts:

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

    (ii) If a limited access scallop vessel uses the Open Area DAS 
specified in paragraph (b)(4)(i) of this section, such vessel is not 
eligible to fish under the Area Access Program described in Sec.  
648.60 until March 1, 2005.
    (iii) If a TAC for yellowtail flounder is harvested for an Access 
Area specified in Sec.  648.59(b) through (d), and such area is closed 
to scallop fishing, 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, not to exceed the maximum number of 
equivalent DAS charge per trip, as specified in Sec.  648.60(a)(3)(i), 
associated with the total number of unused Access Area trip(s). A full-
time vessel that has acquired additional trips through a one-for-one 
trip exchange with another vessel may fish up to 60 DAS in 2005, 
subject to the maximum number of equivalent DAS associated with the 
total number of 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, not to exceed the maximum number of 
equivalent DAS charge per trip, as specified in Sec.  648.60(a)(3)(i), 
associated with the total number of unused Access Area trip(s). A part-
time vessel that has acquired an additional trip through a one-for-one 
trip exchange with another vessel may fish up to 24 DAS in 2005, 
subject to the maximum number of equivalent DAS associated with the 
total number of 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, not to exceed the maximum number of equivalent 
DAS charge per trip, as specified in Sec.  648.60(a)(3)(i), associated 
with the

[[Page 63474]]

total number of 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 are 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 into Scallop 
Access Areas 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 into Scallop 
Access Areas 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 9.6 DAS in 2006.
    (3) Occasional scallop vessels may take two trips into Scallop 
Access Areas 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. 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 DAS set-
aside.
    (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.

0
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 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.
* * * * *

0
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, 
possess, and land scallops in or 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.
    (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

[[Page 63475]]

 
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. Based on its permit category, a vessel issued 
a limited access scallop permit may fish no more than the maximum 
number of trips during 2004 and 2005 in the Hudson Canyon Access Area, 
as specified in the table at Sec.  648.60(a)(3)(i), 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, except vessels issued a NE Multispecies permit 
and a general category scallop permit and fishing in an approved SAP 
under Sec.  648.85 and under multispecies DAS, may not fish for, 
possess, or land scallops in or 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, possess, 
and land scallops in or 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.
    (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, 
possess, or land scallops in or 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. Based on its 
permit category, a vessel issued a limited access scallop permit may 
fish no more than the maximum number of trips in the Closed Area I 
Access Area as specified in the table at Sec.  648.60(a)(3)(i), 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. (A) Except as provided in paragraph 
(b)(5)(ii)(B) of this section, effective upon approval of reporting and 
recordkeeping requirements by OMB, 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.
    (B) A vessel issued a NE Multispecies permit and a general category 
scallop permit that is fishing in an approved SAP under Sec.  648.85 
under multispecies DAS may fish in the Scallop Access Areas without 
being subject to the restrictions of paragraph (b)(5)(ii)(A) of this 
section provided that it has not enrolled in the Scallop Area Access 
program. Such vessel is prohibited from possessing scallops.
    (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, except vessels issued 
a NE Multispecies permit and a general category scallop permit and 
fishing in an approved SAP under Sec.  648.85 and under multispecies 
DAS, may not fish for, possess, or land scallops in or from, the area 
known as the Closed Area II Access Area, described in paragraph (c)(3) 
of this section.
    (2) From November 2, 2004, 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, possess, or 
land scallops in or 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.
    (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
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, 
possess, or land scallops in or 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. Based on its 
permit category, a vessel issued a limited access scallop permit may 
fish no more than the maximum number of trips in 2004 and 2005 in the 
Closed Area II Access Area as specified in the table at Sec.  
648.60(a)(3)(i), 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

[[Page 63476]]

Sea Scallop Access Area trip that was terminated early, as specified in 
Sec.  648.60(c).
    (ii) General category vessels. (A) Except as provided in paragraph 
(c)(5)(ii)(B) of this section, effective upon approval of reporting and 
recordkeeping requirements by OMB, 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.
    (B) A vessel issued a NE Multispecies permit and a general category 
scallop permit that is fishing in an approved SAP under Sec.  648.85 
under multispecies DAS may fish in the Scallop Access Areas without 
being subject to the restrictions of paragraph (c)(5)(ii)(A) of this 
section provided that it has not enrolled in the Scallop Area Access 
program. Such vessel is prohibited from possessing scallops.
    (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, except vessels 
issued a NE Multispecies permit and a general category scallop permit 
and fishing in an approved SAP under Sec.  648.85 and under 
multispecies DAS, may not fish for, possess, or land scallops in or 
from the area known as the Nantucket Lightship Access Area, described 
in paragraph (d)(3) of this section.
    (2) From November 2, 2004, 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, possess, or land 
scallops in or 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.
    (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, 
possess, or land scallops in or 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. Based on its 
permit category, a vessel issued a limited access scallop permit may 
fish no more than the maximum number of trips in the Nantucket 
Lightship Access Area as specified in the table at Sec.  
648.60(a)(3)(i), 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. (A) Except as provided in paragraph 
(d)(5)(ii)(B) of this section, effective upon approval of reporting and 
recordkeeping requirements by OMB, 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.
    (B) A vessel issued a NE Multispecies permit and a general category 
scallop permit that is fishing in an approved SAP under Sec.  648.85 
under multispecies DAS may fish in the Scallop Access Areas without 
being subject to the restrictions of paragraph (d)(5)(ii)(A) of this 
section provided that it has not enrolled in the Scallop Area Access 
program. Such vessel is prohibited from possessing scallops.
    (e) Transiting. A sea scallop vessel 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 scallop 
vessel that has declared a trip into the Sea Scallop Area Access 
Program may transit a Scallop Access Area while steaming to or from 
another Scallop Access Area, 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).

0
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)(9) and (b) through (f) of 
this section. A vessel issued a general category scallop permit may 
only fish in the Hudson Canyon Sea Scallop Access Area specified in 
Sec.  648.59(a), subject to the possession limit specified in Sec.  
648.52(a), unless that vessel is fishing in an approved NE multispecies 
fishery SAP under NE multispecies DAS.
    (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

[[Page 63477]]

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. (A) 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                         Maximum number of trips; and equivalent 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    (B) A limited access scallop vessel fishing in Sea Scallop Access 
Areas may fish the maximum 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.
    (ii) One-for-one area access trip exchanges. If the total number of 
trips allocated to a vessel 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 another vessel's unutilized trips into another Sea 
Scallop Access Area. One-for-one exchanges may be made only between 
vessels with the same permit category. For example, a full-time vessel 
may not exchange trips with a part-time vessel and vice versa. 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 
February 2, 2005, 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) [Reserved]
    (4) Area fished. While on a Sea Scallop Access Area trip, a vessel 
may not fish for, possess, or land scallops in or from outside the 
specific declared Sea Scallop Access Area during that trip, and may 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 enter 
or be in another Sea Scallop Access Area on the same trip except such 
vessel may transit another Sea Scallop Access Area provided its gear is 
stowed in accordance with Sec.  648.23(b).
    (i) Reallocation of trips into open areas. If the yellowtail 
flounder TAC allocated for a Scallop Access Area specified in Sec.  
648.59(b) through (d) has been harvested and such area has been closed, 
a vessel with trips remaining to be taken in such Access Areas may fish 
the remaining DAS associated with the unused trip(s) in Open Areas, up 
to the maximum DAS specified in Sec.  648.53(b)(4)(iii)(A) through (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, scallops, up 
to the maximum amounts specified in the table in this paragraph (a)(5). 
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.

[[Page 63478]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Possession limit
           Fishing year                          Access area             -----------------------------------------------------------------------------------------------------------------------
                                                                                         Full-time                               Part-time                              Occasional
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2004..............................  Closed Area II......................  18,000 lb (8,165 kg)..................  16,800 lb (7,620 kg)..................  10,500 lb (4,763 kg).
                                    Nantucket Lightship
                                    Hudson Canyon                                                                 18,000 lb (8,165 kg)..................  18,000 lb (8,165 kg).
2005..............................  Closed Area I.......................  18,000 lb (8,165 kg)..................  18,000 lb (8,165 kg)..................  7,500 lb (3,402 kg).
                                    Closed Area II
                                    Hudson Canyon
2006..............................  Closed Area I.......................  18,000 lb (8,165 kg)..................  14,400 lb (6,532 kg)..................  3,000 lb (1,361 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 a maximum of 1,000 lb (453.6 kg) of 
all NE multispecies combined, subject to the minimum commercial fish 
size restrictions specified in Sec.  648.83(a)(2), and 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.
    (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 declaring and initiating a trip 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 from July 1 through January 31, up to 1,000 lb (453.6 kg) per trip 
subject to the amount of other NE multispecies onboard, 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 subject to the 
amount of other NE multispecies onboard, 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 or from the Closed Area I and Closed Area II 
Access Areas.
    (iii) [Reserved]
    (6) Gear restrictions. (i) 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).
    (ii) [Reserved]
    (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.
    (9) Reporting. The owner or operator must submit reports through 
the VMS, in accordance with instructions to be provided by the Regional 
Administrator, for each day fished when declared in the Sea Scallop 
Area Access Program, including trips accompanied by a NMFS-approved 
observer. The reports must be submitted in 24-hour intervals, for each 
day beginning at 0000 hours and ending at 2400 hours. The reports must 
be submitted by 0900 hours of the following day and must include the 
following information:
    (i) Total pounds/kilograms of scallop meats kept, total number of 
tows and the Fishing Vessel Trip Report log page number.
    (ii) Total pounds/kilograms of yellowtail flounder kept and total 
pounds/kilograms of yellowtail flounder discarded.
    (iii) For each trip that the vessel has a NMFS approved observer on 
board, the total pounds/kilograms of scallop meats kept and the total 
pounds/kilograms of yellowtail flounder caught on all tows that were 
observed by a NMFS approved observer.
    (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.

[[Page 63479]]

    (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 shall 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) 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) Increase in the possession limit to defray 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) 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) Increase of possession limit to defray 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 
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).

[[Page 63480]]

 
GB...................................  Closed Area I and Closed         2004  26,455 lb (12 mt).
                                        Area II.
                                                                        2005  (1)
                                                                        2006  (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 
of polling twice per hour.
    (g) General category scallop vessels. (1) Effective upon approval 
of reporting and recordkeeping requirements by OMB, a vessel issued a 
general category scallop permit, except a vessel issued a NE 
Multispecies permit and a general category scallop permit that is 
fishing in an approved SAP under Sec.  648.85 under multispecies DAS 
that has not enrolled in the general category Access Area fishery, 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), 
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(a), and provided the vessel complies with the requirements 
specified in paragraphs (a)(1), (a)(2), (a)(6) through (a)(9), (d), 
(e), (f), and (g) of this section, and Sec.  648.85(c)(3)(ii). A vessel 
issued a NE Multispecies permit and a general category scallop permit 
that is fishing in an approved SAP under Sec.  648.85 under 
multispecies DAS that has not enrolled in the Sea Scallop Area Access 
program as specified in paragraph (a)(2) is not subject to the 
restrictions and requirements specified in Sec.  648.59(b)(5)(ii), 
(c)(5)(ii), (d)(5)(ii), and this paragraph (g).
    (2) Gear restrictions. The combined dredge width in use by, or in 
possession on board, general category scallop vessels fishing in the 
Access Areas described in Sec.  648.59(b) through (d) may not exceed 
10.5 ft (3.2 m), measured at the widest point in the bail of the 
dredge.
    (3) 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(a), 
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.
    (i) Closed Area I Access Area. 64,840 lb (29 mt) in 2005, and 
56,482 lb (25.6 mt) in 2006.
    (ii) Closed Area II Access Area. 167,904 (76 mt) in 2004, and 
153,971 lb (70 mt) in 2005.
    (iii) Nantucket Lightship Access Area. 154,368 lb (70 mt) in 2004, 
and 135,937 lb (62 mt) in 2006.
    (4) Possession Limits--(i) Scallops. A vessel issued a NE 
Multispecies permit and a general category scallop permit that is 
fishing in an approved SAP under Sec.  648.85 under multispecies DAS 
that has not enrolled in the general category Access Area fishery is 
prohibited from possessing 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), 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.
    (ii) Other species. Except for vessels issued a general category 
scallop permit and fishing under an approved NE multispecies SAP under 
NE multispecies DAS, 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.
    (5) Number of trips. 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.

0
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).

0
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.
* * * * *

0
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. Limited access 
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

[[Page 63481]]

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 areas specified in paragraphs 
(c)(1)(i) and (c)(1)(ii) of this section may be harvested by scallop 
vessels subject to the restrictions of this paragraph. 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. The amount of 
yellowtail flounder that may be harvested in the 2004 through the 2006 
fishing years under this section shall be specified in a small entity 
compliance guide. The yellowtail flounder TAC set-asides 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 
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 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, on 
or after December 1 of each year, information is available to make an 
accurate projection of yellowtail catch through the end of the fishing 
year, and if the Regional Administrator projects that the total GB 
yellowtail flounder TAC for the NE multispecies fishery specified at 
Sec.  648.85(a)(2) will not be harvested by the end of the fishing 
year, and if 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 specified in Sec.  
648.85(a)(2).
    (3) Possession restriction and closure when yellowtail flounder TAC 
has been harvested. (i) If the Regional Administrator determines that 
the GB yellowtail flounder TAC specified for the U.S./Canada Management 
Area under paragraph (a)(2) of this section has been harvested or is 
projected to be harvested, and notification has been published in the 
Federal Register, pursuant to paragraph (a)(3)(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 Areas 
as required under Sec.  648.60.
    (ii) If the Regional Administrator determines that 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.
* * * * *
0
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. 04-24429 Filed 10-28-04; 4:14 pm]
BILLING CODE 3510-22-P