[Federal Register Volume 70, Number 161 (Monday, August 22, 2005)]
[Rules and Regulations]
[Pages 48860-48868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16613]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 050520137-5220-02; I.D. 050905F]
RIN 0648-AT10


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 17

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

ACTION: Final rule.

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SUMMARY: This final rule implements Framework 17 to the Atlantic Sea 
Scallop Fishery Management Plan (Framework 17), which was developed and 
submitted by the New England Fishery Management Council (Council) and 
approved by NMFS. Framework 17 requires that vessels issued a general 
category scallop permit and that intend to land over 40 lb (18.14 kg) 
of shucked, or 5 bu (176.2 L) of in-shell scallops, install and operate 
vessel monitoring systems (VMS). Framework 17 also allows general 
category scallop vessels with VMS units to turn off (power-down) their 
VMS units after they have offloaded scallops and while they are tied to 
a fixed dock or mooring. Finally, Framework 17 revises the broken trip 
adjustment provision for limited access scallop vessels fishing in the 
Sea Scallop Area Access Program. The intent of this action is to 
provide more complete monitoring of the general category scallop fleet, 
to reduce VMS operating costs, and to eliminate a provision that may 
have a negative influence on vessel operator decisions at sea and 
facilitate safety.

DATES: All provisions in this final rule are effective October 21, 
2005, except 50 CFR 648.60(c)(5), which is effective August 22, 2005.

ADDRESSES: Written comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this rule should be submitted to Patricia A. Kurkul, Regional 
Administrator (RA), NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930; and to the Office of Management and Budget 
(OMB), by e-mail at [email protected] or fax to (202) 395-
7285.
    Copies of Framework 17, its Regulatory Impact Review (RIR), 
including the Initial Regulatory Flexibility Analysis (IRFA), and the 
Environmental Assessment (EA) are available on request from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, Newburyport, MA 01950. These documents are also available 
online at http://www.nefmc.org.

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

SUPPLEMENTARY INFORMATION:

Background

    Framework 17 was adopted by the Council on February 1, 2005, and 
was submitted to NMFS by the Council on March 11, 2005, with a 
supplement submitted on April 4, 2005. A proposed rule for Framework 17 
was published in the Federal Register on June 2, 2005 (70 FR 32282), 
with a comment period ending on June 17, 2005. The issues that led to 
the development of Framework 17 are discussed in detail in the preamble 
of the proposed rule, and are summarized briefly in this final rule. 
Framework 17 was developed by the Council to address concerns resulting 
from reports that vessels issued Atlantic scallop open access general 
category permits were making undocumented scallop landings and 
violating the 400-lb (181.44-kg)/50-bu (17.62-hL) possession limit 
restriction. In addition, the Council made a modification to the 
procedure that authorizes limited access scallop vessels to terminate 
Area Access trips prior to fully harvesting the allowed amount of 
scallops (the broken trip provision).
    Framework 17 requires all general category vessels that land, or 
intend to land, more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2 
L) unshucked scallops, to install and operate a VMS onboard the vessel. 
The use of VMS is expected to assist with monitoring of general 
category vessel activity and facilitate the enforcement of the 
possession limit regulations. Because of

[[Page 48861]]

the cost of installing and operating VMS, the requirement may also help 
distinguish the active fleet of general category vessels that target 
scallops from all of the currently permitted vessels, which number over 
2,500. VMS will provide better data for fishery management, 
particularly to specifically identify areas that are more frequently 
targeted by small vessels fishing outside of the typical scallop 
fishing areas (e.g., inshore areas of the Gulf of Maine). Transmission 
of location information through VMS could also assist U.S. Coast Guard 
search and rescue operations by automatically tracking vessel position.
    In order to administer and effectively enforce the new VMS 
requirement for general category vessels, this final rule establishes a 
new general category scallop permit designation, under NMFS's Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 
section 305(d) authority. Framework 17 requires vessel owners 
requesting general category scallop permits to determine whether they 
will fish under the non-VMS general category vessel permit, which 
authorizes possession of 40 lb (18.14 kg) of shucked, or 5 bu (176.2 L) 
of unshucked scallops, or under the VMS general category vessel permit, 
which authorizes the possession of up to 400 lb (181.44 kg) of shucked 
or 50 bu (17.62 hL) of unshucked scallops. Owners who apply for the VMS 
general category vessel permit must submit a copy of the vendor 
installation receipt from a NMFS-approved VMS vendor with their permit 
application. Vessel owners who have not submitted proof of VMS 
installation, or who have not submitted a completed application for a 
VMS general category vessel permit by the effective date of this action 
will be issued a non-VMS general category vessel permit at that time. 
Vessel owners may change from one general scallop permit category to 
another within 45 days of the issuance of the new general category 
vessel permit.
    This final rule also implements a VMS power-down provision to 
accommodate vessels that do not have continuous power sources at their 
docks or moorings. Many vessels in the general category fleet are 
moored or docked in locations that have limited electrical power. The 
power-down provision was established to address this issue, and it 
allows vessel operators to turn off their VMS units and notify NMFS 
once the vessel is in port, has offloaded its catch, and is tied to a 
permanent dock or mooring. Vessel operators must turn on their VMS 
units and log into the system before leaving the fixed dock or mooring 
for any purpose.
    This final rule also removes the automatic days-at-sea (DAS) charge 
and possession limit reduction under the current regulatory provision 
for limited access scallop vessels that terminate scallop trips in the 
Area Access Program (the broken trip provision). Under the previous 
measure, such vessels could resume trips, but the possession limit for 
the compensation trip was reduced to discourage unnecessary broken 
trips. This final rule modifies the broken trip provision to allow 
vessels that break a scallop trip to fully harvest the remainder of 
their possession limit on a makeup trip. The measure is intended to 
provide added flexibility for vessel operators in determining if a trip 
should be terminated prior to catching the full possession limit. Some 
vessel owners and operators were concerned that the reduced flexibility 
of the prior measure compromised safety; this final rule should 
alleviate that concern. The new measure retroactively applies to all 
broken trips that began on or after March 1, 2005. NMFS will 
automatically restore all scallop poundage deducted under the prior 
regulations, and send notification to vessel owners authorizing the 
harvest of the restored poundage on a subsequent trip. Vessel owners 
may not harvest this restored poundage until they receive notification 
from NMFS. This restored poundage can be used on any authorized 
compensation trip into a specified Access Area, and may be combined 
with other compensation trips for that specific Access Area, as long as 
the overall possession limit is not exceeded. Restored poundage can be 
harvested at any time during the remainder of the fishing year that 
ends February 28, 2006, provided there are no seasonal restrictions 
pertaining to the specific Access Area.

Comments and Responses

    NMFS received nine comment letters on the proposed rule for 
Framework 17 (70 FR 32282). Upon review, one comment was found to have 
no relation to the proposed measures and was not considered during the 
review of this action. The remaining eight commenters made comments 
specific to this action. Comments were submitted by the Maine 
Department of Marine Resources (MEDMR), Stonington Fisheries Alliance 
(SFA), Associated Fisheries of Maine (AFM), Fisheries Survival Fund 
(FSF), and five individuals. NMFS has considered all of the comments on 
the proposed measures, and has approved all of the measures in 
Framework 17. Responses to specific comments follow:
    Comment 1: FSF and an individual support the VMS measures because 
in their view VMS will result in improved information about the 
performance of the general category fishery, and will improve the 
enforceability of the regulations for that sector of the fishery.
    Response: NMFS agrees that the VMS will provide better information 
about vessel activities in this sector of the scallop fishery. Improved 
information about the fishery will improve management in several ways, 
including enforcement of the regulations. NMFS notes, however, that 
representatives of NOAA's Office of Law Enforcement (OLE) expressed 
concern at the Council meeting in February 2005 that exempting some 
general category vessels from the VMS requirement would complicate 
enforcement because it provides an opportunity for general category 
vessels to fish for and land scallops without using VMS. Despite OLE's 
concern, the Council concluded that it should exempt that portion of 
the fishery due to concern about the costs of the system purchase, 
installation and operation for vessels that make very low scallop 
landings. NMFS has approved the program as proposed by the Council 
rather than disapproving it completely because, even with the 
exemption, the provision improves enforceability of the general 
category fleet and addresses the need for better data concerning the 
fishing activity of the active vessels in the general category sector. 
If there are problems in effectively enforcing this rule, NMFS will 
urge the Council to modify this provision in a future action.
    Comment 2: For several reasons, MEDMR, SFA, AFM, and four 
individuals oppose the imposition of the VMS requirement as proposed in 
Framework 17. Most of the specific information in their comments 
pertains to the fishery in Maine, which they state is composed of 
vessels that participate in several fisheries over the course of the 
year, and fish for scallops on a limited scale, usually inshore and 
usually during December-April. Additional specific points made by these 
commenters are outlined below, but they all express the same general 
concern that it is inappropriate to impose the VMS requirement and 
associated costs on Maine vessel owners given the relatively limited 
extent of their participation in the scallop fishery. MEDMR 
specifically notes concern that Framework 17 will require over 2,500 
general category vessels to acquire a VMS system to monitor the actions 
of a few is excessive, especially when the vast majority have not 
landed significant amounts of scallops in recent years.

[[Page 48862]]

    Response: The VMS requirement was developed to address enforcement 
and monitoring issues that are fleet-wide, not confined to specific 
areas. Landings by general category vessels fleet-wide require closer 
monitoring, including incidental catches of scallops by vessels fishing 
in other fisheries (such as the multispecies fishery). It is necessary 
to be able to monitor effectively vessel activity at all times because 
scallop catch and landings occur during other fishery operations (such 
as multispecies fishing). It is not necessary to determine what species 
is being targeted, but rather, whether excessive scallop landings are 
occurring regardless of reported fishing activity.
    As to the concern noted by MEDMR about imposing the VMS requirement 
on 2,500 general category vessels, the VMS measure in Framework 17 
specifically allows vessels that possess less than 40 lb (18.14 kg) of 
scallops per trip on all scallop trips to obtain the non-VMS general 
category vessel permit. The Framework 17 analysis identifies 276 
general category vessels that actively fished for scallops and reported 
landings in 2003. The number of active vessels increased in 2004 and 
2005, but most general category scallop vessels remain inactive. 
Therefore, far fewer than 2,500 vessels will be impacted by the VMS 
requirement.
    Comment 3: One individual suggests that vessels should be exempted 
from the VMS requirement under the existing state waters exemption 
provision in the scallop regulations. MEDMR suggests that VMS should 
not be required for general category scallop vessels north of 
42[deg]20' N. latitude. If this is not possible, then MEDMR suggests 
that general category scallop vessels should be allowed to declare into 
the scallop fishery for a minimum of 3 months at a time and be required 
to operate VMS only when they are declared into the fishery. The SFA 
also urged NMFS to consider a different approach for the Maine inshore 
sea scallop fishery.
    Response: As noted in Response 2, the VMS requirement was developed 
to address enforcement and monitoring issues that are fleet-wide, not 
confined to specific areas. The Council considered alternatives to the 
measures being enacted in this action, and determined that exemptions 
from the requirement would weaken enforceability. Further, some Council 
members questioned the equitability of exemptions specifically proposed 
for vessels from Maine or vessels fishing in the Gulf of Maine because 
there was no information presented to support the differential 
treatment of such vessels. At this stage of the regulatory process, 
NMFS has only the option of approving or disapproving the proposed 
measure, and NMFS has approved it.
    Comment 4: MEDMR commented that the power-down provision in 
Framework 17 is ineffective as a cost-saving measure because many 
vessels will have to have the VMS operating even when targeting other 
species such as lobster or groundfish. MEDMR believes that this also 
will create an enforcement nightmare because there will be no 
indication through the VMS what species is being targeted.
    Response: The Council recommended, and NMFS has approved, the 
measure that allows the VMS to be powered-down only when the vessel is 
secured to a mooring or dock. The power-down provision is intended to 
provide relief from the costs of having to operate VMS around the clock 
for vessels that have limited shore power. The VMS must be operating at 
all other times to ensure that all trips that land scallops are 
monitored. Scallop catch and landings often occur on trips that are 
also targeting other species, such as groundfish.
    Comment 5: AFA commented that requiring VMS on general category 
scallop vessels will not achieve the proposed objectives of documenting 
landings and preventing unaccounted landings. However, if NMFS decides 
to approve the measure, AFA favors approval of the power-down measure 
as well, because is will provide relief for many vessels that do not 
have the resources to operate a VMS at all times.
    Response: Documenting landings is not the sole purpose of the 
measure. The measure also will better identify vessels that are making 
landings under the general category permit. VMS will improve efforts to 
enforce and monitor landings of scallops by general category vessels by 
providing information about fishing and landing locations. Although VMS 
does not eliminate the possibility that vessels will make landings in 
excess of the possession limits, VMS provides an essential enforcement 
tool to allow agents to check vessels for compliance with those 
requirements. VMS will also provide valuable data about this sector of 
the fishery, including fishing effort information that can be used for 
analytical purposes and in the development of future management 
measures.
    The Council proposed the power-down allowance to reduce impacts on 
vessels in this sector, and it is being implemented by this final rule. 
The analyses in Framework 17 project that the initial costs of VMS can 
be offset if the scallop landings per vessel increase minimally. The 
measures are expected to better define the active general category 
fleet and allow the Council to obtain better information to develop 
management measures in the future. Active vessels should experience 
benefits from improved management of the scallop resource overall.
    Comment 6: MEDMR commented that many boats lack the computer and 
electrical systems needed to operate VMS; therefore, they will also 
have to make significant system upgrades at a considerable expense to 
comply with the requirement.
    Response: Framework 17 does not identify the need for ``significant 
system upgrades'' to accommodate VMS. As discussed in the Framework 17 
document, the Skymate VMS unit does require a supporting personal 
computer, which is accounted for in the cost estimates.
    Comment 7: MEDMR commented that there are virtually no landings of 
scallops from the Gulf of Maine (GOM) in recent years, yet there are 
hundreds of fishermen currently active in other fisheries who should be 
able to fish for scallops in the GOM when the stock rebuilds.
    Response: Framework 17 does not prevent vessels from continuing to 
fish for scallops and does not prohibit future fishing opportunities.
    Comment 8: MEDMR and two industry representatives commented that 
the considerable costs of purchasing and operating VMS will cause 
general category vessel owners in Maine to cancel their general 
category permits, thus losing their scallop landings and revenue. MEDMR 
and an industry representative both expressed concern that owners who 
cancel their permits may then lose their future eligibility for this 
fishery, because there is a November 1, 2004, control date for the 
general category scallop fishery. The industry representative contends 
that if the Council develops a limited access program for the general 
category fishery, vessel owners who stop participating in the scallop 
fishery because of the VMS requirement will fail to qualify for the 
limited access vessel permit.
    Response: NMFS understands that participants in the general 
category scallop fishery are mindful of the fact that the Council may 
determine in the future to develop a limited access program. The 
Council's rationale for the requirement is in large part because the 
Council requires better information about the fishery in order to 
consider the issue of limited access. At this point, individual vessel 
owners must make their own decisions about the best course of action to 
take for the future. The analyses in Framework 17 project

[[Page 48863]]

that active general category scallop vessels are likely to increase 
their scallop landings to offset the costs of VMS purchase, 
installation, and operation costs, rather than opting into the non-VMS 
scallop vessel permit category, particularly in light of the November 
1, 2004, control date. Previously inactive vessels may also begin to 
fish for scallops to offset the costs of VMS. However, some vessel 
owners may decide to reduce their participation to the level allowed 
under the non-VMS scallop vessel permit.
    The Framework 17 analyses do not indicate that the VMS requirement 
would eliminate any fisheries. Some vessel owners may choose to obtain 
the non-VMS general category vessel permit and elect to catch a small 
amount of scallops per trip. Owners of vessels that do not 
traditionally land more than 40 lb (18.14 kg) will have to consider 
whether or not purchasing a VMS and landing more scallops would be cost 
effective for their circumstances.
    A review of the analyses in Framework 17 shows that the concerns 
expressed by the commenters do not appear to be confined to Maine 
vessels. As is the case for owners in other states, the owners of 
general category vessels in Maine may choose to constrain their scallop 
landings to 40 lb (18.14 kg) of scallops and avoid the VMS requirement, 
or they may opt to install VMS unit and land up to 400 lb (181.44 kg) 
of scallops.
    Comment 9: Two commenters supported the modification of the broken 
trip provision for the Access Area fishery. One of these commenters 
stated that vessels with broken trips should be allowed to make up the 
balance of their trip without penalties.
    Response: NMFS agrees and implements the revision to the broken 
trip provision that eliminates the automatic DAS and possession limit 
deduction for compensation trips. Further, vessels with broken trips 
that occurred after March 1, 2005, will receive automatic rebates of 
scallop pounds that were deducted for the associated compensation 
trips.

Changes from the Proposed Rule

    In Sec.  648.4, paragraphs (a)(2)(ii)(D) and (E) have been added to 
specify the initial permit application process for general category 
permit designation.
    Pursuant to the Paperwork Reduction Act (PRA), part 902 of title 15 
CFR displays control numbers assigned to NMFS information collection 
requirements by OMB. This part fulfills the requirements of section 
3506(c)(1)(B)(i) of the PRA, which requires that agencies display a 
current control number, assigned by the Director of OMB, for each 
agency information collection requirement. This final rule codifies OMB 
control numbers for 0648-0529 for Sec. Sec.  648.4, 648.9, and 648.10.
    Under NOAA Administrative Order 205-11, 7/01, dated December 17, 
1990, the under Secretary for Oceans and Atmosphere has delegated 
authority to sign material for publication in the Federal Register to 
the Assistant Administrator for Fisheries, NOAA (AA).

Classification

    The RA determined that the framework adjustment implemented by this 
final rule is necessary for the conservation and management of the 
Atlantic sea scallop fishery and is consistent with the Magnuson-
Stevens Act and other applicable law.
    For the following reasons, the AA has determined that there is good 
cause to waive the 30-day delayed effectiveness provision of the APA 
pursuant to 5 U.S.C. 553(d)(3), for the revision to the broken trip 
provision under Framework 17. The revision to the broken trip provision 
specified in Sec.  648.60(c)(5) in this final rule is less restrictive 
than the current broken trip provision and promotes safety at sea. The 
revision allows vessels to return to an Access Area to harvest the full 
remainder of the scallop possession limit. Vessel owners and operators 
believe that the automatic deduction of DAS and possession limit has 
resulted in compromised safety at sea because owners and operators 
claim that vessels may remain at sea in unsafe conditions (e.g., in 
severe weather, the event of an injury, or mechanical failure) in order 
to avoid losing a portion of the trip, which could be worth several 
thousand dollars. Removal of the automatic deduction therefore, may 
improve safety at sea by eliminating a source of uncertainty in vessel 
operator decisions when faced with an unforseen event such as bad 
weather, injury, and mechanical failure. NMFS expects that it will 
receive several broken trip compensation request forms in the 30 days 
following publication of the final rule. Although it is uncertain, 
there is a likelihood that vessels will be forced to break a trip as a 
result of bad weather in the next 30 days because of the variable 
effects of weather on different vessels. Weather events have different 
effects on vessels depending on the size of the vessel and other 
physical vessel characteristics. Large vessels may be able to remain at 
sea safely in storms, only coming into port in severe weather, while 
smaller vessels may be in unsafe conditions in moderately bad weather. 
Crew injuries and mechanical failures which jeopardize the safety of 
the crews on vessels may also cause vessels to return to port following 
publication of the final rule. If faced with the possibility of 
continuing penalties for breaking trips as a result of bad weather, 
injury, or mechanical failure, while the final rule is delayed, vessel 
operators may believe that they should avoid the penalty, thereby 
compromising safety. Numerous other reasons cause broken trips, 
including depletion of supplies, ice, and fuel, on vessels, minor 
mechanical and gear malfunctions, and minor illnesses. While these 
problems may not specifically jeopardize the safety of the crew, vessel 
operators may continue to be reluctant to terminate trips even for 
these reasons if faced with a penalty. If the delayed effectiveness 
provision is not waived, each request will be subject to the penalty 
for 30 additional days after the final rule is published. Given that 
the penalty is administrative, appears to be unnecessary for the 
management and enforcement of the Access Area program, and may 
compromise safety, there is good cause to waive the 30-day delay in 
effectiveness.
    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 Framework 17. The FRFA 
describes the economic impact that this final rule, along with other 
non-preferred alternatives, will have on small entities.
    The Final RFA (FRFA) incorporates the economic impacts and analysis 
summarized in the IRFA for the proposed rule to implement Framework 17 
(70 FR 32282, June 2, 2005), the comments and responses in this final 
rule, and the corresponding economic analyses prepared for Framework 17 
(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). Measures in 
Framework 17 are intended to improve the management of the scallop 
fishery. A full description of the action and why it is being 
considered are contained in the preamble to this final rule. The 
Magnuson-Stevens Act and the Atlantic Sea Scallop Fishery Management 
Plan, which allow for framework adjustments and amendments to improve 
the management of the scallop fishery, are the legal basis for this 
action. This final rule does not duplicate, overlap or

[[Page 48864]]

conflict with any relevant Federal rules. A summary of the analysis 
follows:

Description of Small Entities to Which the Proposed Rule Will Apply

    Framework 17 will affect vessels with limited access and general 
category scallop permits. The vessels in the Atlantic sea scallop 
fishery are all considered small business entities because all of them 
grossed less than $3.5 million according to dealer data for the 2001, 
2002, and 2003 fishing years. Therefore, there is no disproportionate 
impact between small and large vessels.
    According to the recent permit data, 289 vessels obtained full-time 
limited access permits in 2003, including 37 small-dredge and 16 
scallop trawl permits. In the same year, there were also 34 part-time 
and 10 occasional limited access permits in the scallop fishery. In 
addition, 2,554 permits were issued to vessels in the open access 
general category. Annual revenue from all species, including scallops, 
averaged about $814,000 per full-time vessel, $405,800 per part-time 
vessel, and $121,800 per occasional vessel during the 2003 fishing 
year. The average annual revenue per vessel that participated in the 
general category scallop fishery was $235,300 in 2003. The average 
annual revenue per vessel that would be impacted by this action was 
estimated to be $165,845 for the 2003 fishing year.
    Regulatory impacts on profitability were also evaluated and are 
discussed in the section of this FRFA summary entitled: Description of 
the Significant Economic Impacts.

A Summary of the Comments and Statement of Changes

    The State of Maine, four individuals, and two fishing industry 
representatives commented that the VMS requirements included in 
Framework 17 would result in extreme hardship for Maine vessels that 
have had general category scallop permits and that fish for scallops 
for part of the year. Comments suggested that the measures may 
eliminate an inshore Maine scallop fishery and most of the comments 
opposed to Framework 17 stated that Maine vessels would give up their 
scallop permit rather than incur the expense of the VMS. These comments 
are provided in detail in the ``Comments and Responses'' portion of 
this final rule.
    NMFS considered these comments and reviewed the analysis in 
Framework 17. The Framework 17 document and analyses thoroughly 
evaluate potential economic impacts (see Section 6.2 of the Framework 
17 document and EA). The EA concludes that there would not be 
significant economic impacts as a result of any of the measures under 
Framework 17 because very few of the vessels with general category 
scallop permits (276 out of 2,544) have reported landings of scallops 
greater than 40 lb (18.14 kg) per trip, resulting in few vessel owners 
actually being subject to the VMS requirement. Most of the general 
category fleet is expected to be unaffected by the requirement to 
install and operate VMS. Further, the Framework 17 document provides a 
thorough analysis of the cost of VMS units and the expected amount of 
additional fishing that would be necessary to cover the initial and 
ongoing costs of the units. As discussed below under ``Description of 
the Significant Economic Impacts'' the number of trips that it would 
take to cover the cost of VMS the first year would be about 5 to 7 
trips landing 400 lb (181.44 kg) each. Additional trips would begin to 
generate profits. Operating costs for subsequent years would require 
minimal additional effort (e.g., one additional 400-lb (181.44-kg) 
trip). Finally, the economic and social impacts analysis thoroughly 
evaluated state-by-state participation in the general category fishery. 
The analysis does not indicate that impacts would be particularly 
severe in Maine. In particular, Tables 29 through 31 demonstrate that 
landings of scallops in Maine are relatively low compared to other 
states. Therefore, NMFS expects that while some vessel owners in Maine 
may increase effort in order to pay for VMS units, others would 
continue to land less than 40 lb (18.14 kg) per trip or would not fish 
for scallops at all, and would elect not to purchase and install VMS 
units.

Description of the Significant Economic Impacts

1. VMS Requirement for General Category Vessels

    This final rule implements the VMS requirement for all general 
category scallop vessels that possess more than 40 lb (18.14 kg) of 
scallops at any time. NMFS expects that the exception for vessels that 
land 40 lb (18.14 kg) of scallops or less will limit the number of 
vessels required to comply with the new VMS requirement to those that 
are most active. Other vessels would be able to continue fishing 
without VMS provided they continue to land 40 lb (18.14 kg) of scallops 
or less per trip. There were 2,554 vessels with general category 
permits in the 2003 fishing year; 2,278 of these vessels either did not 
have any scallop landings or landed no more than 40 lb (18.14 kg) of 
scallops per trip. A total of 276 general category vessels landed over 
40 lb (18.14 kg) of scallops per trip during the 2003 fishing year. 
These 276 vessels accounted for approximately 99.9 percent of the 
general category scallop landings in 2003, and 53 of these vessels 
already have VMS units. Therefore, the action is expected to affect the 
remaining 223 vessels that do not already have VMS. If all 223 vessels 
choose to install and operate a VMS, the total costs to the industry of 
installing VMS could range from $795,000 to $1,307,000 during the 
initial year of implementation. Total costs would be higher if 
additional vessel owners seek the option of landing more than 40 lb 
(18.14 kg) of scallops per trip. However, examining the costs to 
individual vessels and the amount of scallop trips necessary to offset 
the initial costs demonstrates that it is likely that initial costs 
could be offset by increased scallop landings.
    The cost of VMS for each vessel is considered in the economic 
impact analysis in the Framework 17 document. Costs include the initial 
cost of purchasing and installing the VMS units and ongoing costs of 
service fees. The initial investment costs for VMS, including the 
installation charge, activation fee, and monthly service, are estimated 
to be $3,565 for Skymate and $4,735 for Boatracs. After this initial 
investment, the costs of VMS for vessels will decline substantially, 
and will consist of annual service charges estimated to be $1,260 for 
Boatracs and $647 for Skymate. The initial purchase and installation 
costs for each vessel would be offset by vessels taking an additional 5 
to 7 1-day trips landing 400 lb (181.44 kg) of scallops. Continuing 
costs would be offset with only 1 to 2 additional trips landing 400 lb 
(181.44 kg) of scallops.
    General category vessels that would be impacted by this action are 
distinguished by their scallop revenue relative to VMS costs. One group 
consists of 79 to 87 vessels (depending on the VMS unit installed), 
which could not cover the cost of the VMS units with their landings of 
scallops if they continue to harvest scallops at their historical 
level. Scallop landings per trip for this group of vessels were less 
than 90 lb (40.8 kg), and annual revenue per vessel from scallops 
averaged about $1,323 to $1,569. Another group consists of 136 to 144 
vessels, depending on the VMS unit installed, which historically make 
scallop landings that generate revenue to equal or exceed the costs of 
the VMS units. The majority of these vessels targeted scallops and 
earned, on average,

[[Page 48865]]

$50,000 or more in scallop revenue during the 2003 fishing year.
    This action would have negative economic impacts on vessels if they 
choose to install a VMS and do not increase their scallop landings 
enough to cover the cost of VMS. Without additional landings, the cost 
of installing and operating VMS will reduce their profits. Some vessels 
may therefore choose to lower their scallop landings to the incidental 
amount (40 lb; 18.14 kg) in order to retain their general category 
permit without having a VMS onboard. Other vessels could increase trips 
and landings to the level that would cover the cost of VMS. The 
analysis notes that vessels fishing for scallops for the first time 
would have to make landings to cover the cost of VMS before generating 
any profits. To cover the initial purchase and installation costs, each 
vessel would need to take approximately 5 to 7 one-day trips landing 
400 lb (181.44 kg) of scallops. Continuing costs would be offset with 
only 1 to 2 trips. For vessels that are likely to increase the number 
of trips to cover the cost of VMS, this represents only a marginal 
increase in effort. It is unlikely that such vessels would purchase VMS 
and not increase effort given the recent high scallop catch rates and 
product value.
    There are several mitigating factors that could minimize the 
negative economic impacts of VMS implementation for the general 
category vessels that are required to operate a VMS. Framework 17 
provides the flexibility to any vessel with a general category permit 
to retain the permit without having a VMS on board, as long as scallop 
catch per trip is limited to the incidental amount (40 lb/18.14 kg per 
trip). Therefore, many vessels that do not land any scallops per trip, 
or that land only a small amount of scallops per trip can avoid VMS 
costs without experiencing a significant amount of revenue loss and 
without giving up their general category permit. For other general 
category vessels that already earn significant amounts of revenue from 
scallop trips in excess of the VMS costs, costs can be covered fully or 
in part by taking additional trips and/or by increasing the scallop 
catch per trip. Between 2,000 and 2,600 lb (907.2 and 1,179.3 kg) of 
scallops would be necessary to cover the initial and ongoing 
operational costs of the VMS, depending on the unit purchased, and 
assuming that scallops constitute the only source of revenue from those 
trips. This catch translates into an additional five to seven 1-day 
trips at landings of 400 lb (181.44 kg) of scallops per trip. Vessels 
could also offset VMS costs through additional revenue from other 
species landed. In the long term, there may be indirect benefits from 
better enforcement and monitoring of general category vessel landings, 
and as a result of the safety benefits associated with VMS position 
data in case of an accident.
    NMFS considered and rejected four significant alternatives to the 
action implemented in this final rule. One alternative would have 
required all vessels with general category permits, 2,554 vessels or 
more, to have operable VMS units. This alternative was expected to have 
excessive costs to the fleet overall, equal to approximately $8 to $12 
million. It also was expected to negatively impact 2,344 vessels that 
do not currently have VMS. It would have affected all general category 
scallop vessels regardless of their level of landings and such action 
could not be justified given the costs. Three other alternatives were 
considered that would have required smaller subsets of the general 
category scallop vessels to have operable VMS units. Rather than 
exempting vessels possessing 40 lb (18.14 kg) or less, the alternatives 
would have exempted vessels from the VMS requirement if they possess 
less than 100 lb (45.36 kg), 200 lb (90.71 kg), or 300 lb (136.08 kg). 
While these three alternatives would have impacted a smaller subset of 
vessels, it would have severely compromised enforcement of the general 
category possession limit by continuing to facilitate vessels making 
unreported and illegal landings. These alternatives would be 
inconsistent with the goals of improving enforcement of the general 
category fleet under Framework 17.

2. VMS Power-down Exemption

    This action implements the power-down provision to allow vessels to 
turn the VMS off while in port and tied to a dock or mooring. This 
provision is expected to help to reduce costs associated with the VMS 
requirement by reducing polling costs and eliminating the cost of 
generating electricity while the vessel is tied to a dock or mooring 
without continuous power. Alternatives would have required that vessels 
keep the VMS unit operable at all times, which could have increased 
costs and would be difficult for vessels without continuous electrical 
supply to docks or moorings.

3. Modification of Broken Trip Provision

    This action modifies the broken trip provision by eliminating the 
requirement for a reduction in the scallop possession limit when a 
broken trip occurs. This measure is expected to have positive economic 
impacts by reducing the losses from broken trips for the limited access 
scallop vessels that fish under the Area Access Program. This measure 
will prevent such revenue loss because it allows vessels to fully 
harvest the uncaught portion of the possession limit on a subsequent 
trip. Since the 2005 fishing year is not yet complete, the analysis 
assumes that the number of broken trips would be approximately the same 
as the 2004 fishing year. It is not possible to predict the amount of 
broken trips since they result mainly from random and unforseen events 
such as severe weather, mechanical problems, and injury. Assuming that 
the number of broken trip applications are approximately the same as 
they were during 2004 fishing year, approximately $1.6 million in 
revenue for the scallop fishery could be recovered by eliminating the 
possession limit reduction. If the number of broken trips increases in 
the 2005 fishing year, potential lost revenue from the automatic 
deduction would be even higher without the Framework 17 revision. 
Adopting the status quo alternative, i.e., maintaining the automatic 
DAS and possession limit deduction, would result in continued loss of 
potential revenues from the scallop access areas.

Economic Impacts of Significant and Other Non-selected Alternatives

    This action minimizes the costs for the small business entities 
operating in the general category scallop fishery as compared to the 
non-selected alternative 1, under which all vessels with general 
category permits would be required to operate a VMS. This non-selected 
alternative would expand the VMS requirement to apply to the 2,278 
vessels with general category permits that historically catch no more 
than 40 lb (18.14 kg) of scallops. The VMS unit costs would require 
these vessels to either increase their scallop harvest to cover the 
costs of VMS, or cancel their general category permit, thus losing all 
scallop revenue. Three other alternatives considered by the Council 
would have required VMS on general category vessels if the vessel's 
landings were over 100 lb (45.4 kg), 200 lb (90.7 kg), or 300 lb (136.1 
kg) for each alternative. These alternatives would require a smaller 
subset of vessels to operate VMS, and would result in lower overall 
costs to the general category fleet compared to the proposed action. 
However, concerns about the enforcement problems associated with 
exempting a large number of general category vessels resulted in 
adoption of

[[Page 48866]]

the measure being implemented by this action.
    The alternative to the power-down exemption would have required VMS 
operation at all times. It would not minimize economic impacts on small 
entities compared to the proposed measure. In addition to continuous 
costs associated with automatic polling of vessel location, requiring 
vessels to operate VMS units without a power-down provision could 
present compliance problems for vessels that do not have sufficient 
power to run the VMS unit while the vessel is tied to a dock or 
mooring. It may, in turn, be costly for these vessels to devise a way 
to keep power supply to the VMS units while the vessel is moored.
    Similarly, maintaining the automatic DAS and possession limit 
charge for broken trips could continue to have negative economic 
impacts on limited access vessels, and would not minimize economic 
impacts on small entities. As noted above, approximately $1.6 million 
in revenue for the scallop fishery could be recovered by eliminating 
the automatic DAS and possession limit charge. If the number of broken 
trips increases in the 2005 fishing year, the potential for forgone 
revenues from the automatic DAS and possession limit charge would be 
even higher.

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 has been 
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 
approved by OMB under the PRA. These new requirements apply to general 
category vessels only (the requirements already exist for and/or do not 
apply to other scallop vessels). Public reporting burden for these 
collections of information are estimated to average as follows:
    1. Purchase and installation of VMS units, OMB control number 0648-
0529 (1 hr per response);
    2. Verification of VMS units, OMB control number 0648-0529 (5 min 
per response);
    3. Notification and application for appropriate general category 
permit designation, OMB control number 0648-0529 (30 min per response);
    4. VMS power-down notification, OMB control number 0648-0529 (2 min 
per response); and
    5. VMS re-power and trip notification, OMB control number 0648-0529 
(2 min 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 collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS and to OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects

15 CFR Part 902
    Reporting and recordkeeping requirements.
50 CFR Part 648
    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 16, 2005.
John Oliver
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

15 CFR Chapter IX

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

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

0
1. The authority citation for 15 CFR part 902 continues to read as 
follows:

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


Sec.  902.1  [Amended]

0
2. In Sec.  902.1, amend the table in paragraph (b) under the CFR part 
``50 CFR'' by adding the entry ``-0529'' in numerical order to sections 
``648.4'', ``648.9'', and ``648.10'' under the OMB control number 
column.

50 CFR Chapter VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
3. The authority citation for 50 CFR part 648 continues to read as 
follows:

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

0
4. In Sec.  648.4, paragraph (a)(2)(ii) is revised to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (2) * * *
    (ii) General scallop permit. Any vessel of the United States that 
is not in possession of a limited access scallop permit, and that 
possesses, or lands per trip, 400 lb (181.44 kg) of shucked meats, or 
50 bu (17.62 hL) of in-shell scallops, or less, except vessels that 
fish exclusively in state waters for scallops, must comply with one of 
the permit requirements described in paragraphs (a)(2)(ii)(A) or (B) of 
this section, unless otherwise exempted under paragraph (a)(2)(ii)(C) 
of this section, and must comply with the application procedures 
specified in paragraphs (a)(2)(ii)(D) and (E) of this section.
    (A) Non-VMS general scallop permit. To possess or land up to, but 
not more than 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) in-shell 
scallops per trip that are sold or are intended to be sold, a vessel 
must apply for and be issued a non-VMS general scallop permit. A vessel 
issued a non-VMS general scallop permit may not possess or land more 
than 40 lb (18.14 kg) of shucked or 5 bu (176.2 L) of in-shell scallops 
at any time.
    (B) VMS general scallop permit. To possess or land more than 40 lb 
(18.14 kg) of shucked or 5 bu (176.2 L) of in-shell scallops, up to 400 
lb (181.44 kg) of shucked meats, or 50 bu (17.62 hL) of in-shell 
scallops, a vessel must apply for and be issued a VMS general scallop 
permit. Issuance of a VMS general scallop permit requires the vessel 
owner to submit a copy of the vendor installation receipt from a NMFS-

[[Page 48867]]

approved VMS vendor as described in Sec.  648.9.
    (C) Vessels without general scallop permits. No scallop permit is 
required for a vessel that possess or lands up to 40 lb (18.14 kg) of 
shucked or 5 bu (176.2 L) per trip, provided such scallops are not, or 
are not intended to be, sold, traded, or bartered.
    (D) General scallop permit category designation. The owner of a 
vessel issued a general scallop permit for the 2005 fishing year is 
required to complete and submit an application to the Regional 
Administrator for the appropriate permit designation as specified in 
paragraphs (a)(2)(ii)(A) and (B) of this section by September 21, 2005. 
Vessels shall be issued the appropriate permit category by October 21, 
2005 based on the application submitted by the vessel owner. Initial 
general scallop permit category designations are effective October 21, 
2005. A vessel owner who fails to submit a copy of the vendor 
installation receipt from a NMFS-approved VMS vendor as described in 
648.9 by October 21, 2005, shall automatically be issued the non-VMS 
general scallop permit. If no application is received by October 21, 
2005 for vessels previously issued a general scallop permit for the 
2005 fishing year, such vessels shall be reissued non-VMS general 
scallop permits. Vessel owners may request a change in permit category 
for their general category vessel no later than 45 days from October 
21, 2005.
    (E) General scallop permit restrictions. A vessel may be issued a 
general scallop permit in only one category during a fishing year. The 
owner of a vessel issued a general scallop permit must elect a permit 
category upon the vessel's permit application and shall have one 
opportunity to request a change in permit category by submitting an 
application to the Regional Administrator within 45 days of the 
effective date of the vessel's permit. After that date, the vessel must 
remain in that permit category for the duration of the fishing year.
* * * * *

0
5. In Sec.  648.9, paragraph (c)(1) introductory text is revised, and 
paragraphs (c)(1)(iii) and (c)(2)(i)(D) are added to read as follows:


Sec.  648.9  VMS requirements.

* * * * *
    (c) * * *
    (1) Except as provided in paragraph (c)(2) of this section, or 
unless otherwise required by paragraph (c)(1)(ii) or (iii) of this 
section, all required VMS units must transmit a signal indicating the 
vessel's accurate position, as specified under paragraph (c)(1)(i) of 
this section.
* * * * *
    (iii) At least twice per hour, 24 hours a day, throughout the year, 
for vessels issued a general scallop permit and subject to the 
requirements of Sec.  648.4(a)(2)(ii)(C), or a limited access scallop 
permit.
* * * * *
    (2) * * *
    (i) * * *
    (D) The vessel has been issued a general scallop permit and is 
required to operate VMS as specified in Sec.  648.10(b)(1)(iv), is not 
in possession of any scallops onboard the vessel, is tied to a 
permanent dock or mooring, and the vessel operator has notified NMFS 
through VMS that the VMS will be powered down, unless required by other 
permit requirements for other fisheries to transmit the vessel's 
location at all times. Such a vessel must repower the VMS prior to 
moving from the fixed dock or mooring.
* * * * *

0
6. In Sec.  648.10, the section heading and paragraph (b)(1)(iv) are 
revised to read as follows:


Sec.  648.10  DAS and VMS notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (iv) A scallop vessel issued a general scallop permit that 
possesses, or lands per trip, more than 40 lb (18.14 kg) shucked or 5 
bu (176.2 L) in shell scallops, or 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);
* * * * *

0
7. In Sec.  648.14, paragraphs (i)(11) and (12) are added to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (i) * * *
    (11) Fail to have an approved, operational, and functioning VMS 
unit that meets the specifications of Sec.  648.9 on board the vessel 
at all times, unless the vessel is not subject to the VMS requirements 
specified in Sec.  648.10.
    (12) If the vessel is not subject to VMS requirements specified in 
Sec.  648.10, possess more than 40 lb (18.14 kg) shucked or 5 bu (176.2 
L) in-shell scallops at any time.
* * * * *

0
8. In Sec.  648.52, paragraph (c) is revised to read as follows:


Sec.  648.52  Possession and landing limits.

* * * * *
    (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 any sea scallop 
possession and landing limit specified in or specified by the Regional 
Administrator in accordance with Sec.  648.60(a)(5).
* * * * *

0
9. In Sec.  648.60, paragraph (c)(5) is revised to read as follows:


Sec.  648.60  Sea scallop area access program requirements.

* * * * *
    (c) * * *
    (5) The Regional Administrator shall authorize the vessel to take 
an additional trip and shall specify the amount of scallops that the 
vessel may land on such trip and the number of DAS charged for such 
trip, pursuant to the calculation specified in paragraph (c)(5)(i) of 
this section. Such authorization shall be made within 10 days of 
receipt of the formal written request for compensation.
    (i) The amount of scallops that can be landed on an authorized 
additional Sea Scallop Access Area trip shall equal the possession 
limit specified in paragraph (a)(5) of this section minus the amount of 
scallops landed on the terminated trip. For example, in the 2005 
fishing year, if a full-time scallop vessel lands 6,500 lb (2,948.4 kg) 
of scallops and requests compensation for the terminated trip, the 
possession limit for the additional trip is 11,500 lb (5,216.3 kg) or 
18,000 lb (8,164.7 kg) minus 6,500 lb (2,948.4 kg).
    (ii) If a vessel is authorized more than one additional trip for 
compensation into any Sea Scallop Access Area as the result of more 
than one terminated trip in the same Access Area, the possession limits 
for the authorized trips may be combined, provided the total possession 
limit on a combined compensation trip does not exceed the possession 
limit for a trip as specified in paragraph (a)(5) of this section. For 
example, a vessel that has two broken trips with corresponding 
compensation trip authorizations of 10,000 lb (4,535.9 kg) and 8,000 lb 
(3,628.7 kg) may combine the authorizations to allow one compensation 
trip with a possession limit of 18,000 lb (8,164.6 kg).
    (iii) A vessel that terminated a 2005 access area trip after March 
1, 2005, but before August 22, 2005, shall be issued authorization to 
harvest the amount of

[[Page 48868]]

pounds deducted from the possession limit for the additional trip. The 
Regional Administrator will issue this authorization automatically, 
without request from the vessel owner. A rebated possession limit may 
be combined with other additional trips as described in paragraph 
(c)(5)(ii) of this section.
* * * * *
[FR Doc. 05-16613 Filed 8-19-05; 8:45 am]
BILLING CODE 3510-22-S