[Federal Register Volume 73, Number 104 (Thursday, May 29, 2008)]
[Rules and Regulations]
[Pages 30790-30811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1300]



[[Page 30790]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070817467-8554-02]
RIN 0648-AV90


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 19

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS is implementing measures included in Framework Adjustment 
19 (Framework 19) to the Atlantic Sea Scallop Fishery Management Plan 
(FMP), which was developed by the New England Fishery Management 
Council (Council). Framework 19 was developed to achieve the following 
management measures for the scallop fishery: Limited access scallop 
fishery specifications for 2008 and 2009 (open area days-at-sea (DAS) 
and Sea Scallop Access Area (access area) trip allocations); Elephant 
Trunk Access Area (ETAA) and Delmarva Access Area (Delmarva) in-season 
trip adjustment procedures; new Hudson Canyon Access Area (HCAA) 
measures; DAS allocation adjustment measures if an access area 
yellowtail flounder (yellowtail) total allowable catch (TAC) is caught; 
adjustments to the scallop overfishing definition; a prohibition on 
deckloading of scallops on access area trips; adjustments to the 
industry-funded observer program; a 30-day vessel monitoring system 
(VMS) power down provision; general category access area specifications 
for 2008 and 2009; and general category measures dependent on the 
implementation of Amendment 11 to the FMP, including a quarterly TAC, 
2008 and 2009 general category quota allocations, and individual 
fishing quota (IFQ) permit cost recovery program requirements. NMFS has 
disapproved the Council's recommendation to eliminate the September 1 
through October 31 ETAA seasonal closure, which was implemented under 
Framework 18 to the FMP to reduce sea turtle interactions with the 
scallop fishery. NMFS determined that the Council's recommendation 
would not be consistent with National Standards 2 and 9 of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).

DATES: Effective June 1, 2008, except Sec.  648.4(a)(2)(ii)(D)(2), 
(a)(2)(ii)(E), (a)(2)(ii)(H), and (a)(2)(ii)(I)(3), Sec.  
648.14(i)(1)(xx) and (i)(2)(xvii), and Sec.  648.59(a)(3)(ii), 
(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(4)(ii) as amended in 
instruction 9, which are effective July 1, 2008, and Sec.  
648.11(h)(vii)(G) through (J), which contain collection-of-information 
requirements that have not been approved by the Office of Management 
and Budget (OMB). NMFS will publish a notice in the Federal Register 
announcing the effective date.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
19 that describes the action and other alternatives considered, and 
provides a thorough analysis of the impacts of the measures and 
alternatives. Copies of Framework 19, the EA, and the Initial 
Regulatory Flexibility Analysis (IRFA), are available upon request from 
Paul J. Howard, Executive Director, New England Fishery Management 
Council (Council), 50 Water Street, Newburyport, MA 01950.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
final rule should be submitted to the Regional Administrator at the 
address above and by e-mail to [email protected], or fax to 
202-395-7285.

FOR FURTHER INFORMATION CONTACT: Ryan Silva, Cooperative Research 
Program Specialist, 978-281-9326; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The Council adopted Framework 19 on October 25, 2007, and submitted 
it to NMFS on November 8, 2007, for review and approval. Framework 19 
was developed and adopted by the Council in order to meet the FMP's 
requirement to adjust biennially the management measures for the 
scallop fishery. The FMP requires biennial adjustments to ensure that 
the measures continue to meet the fishing mortality rate (F) and other 
goals of the FMP and achieve optimum yield (OY) from the scallop 
resource on a continuing basis. The Council reviewed the Framework 19 
proposed rule regulations as drafted by NMFS, which included 
regulations proposed by NMFS under the authority of section 305(d) of 
the Magnuson-Stevens Act, and on February 27, 2008, deemed them to be 
necessary and consistent with section 303(c) of the Magnuson-Stevens 
Act. Framework 19 published in the Federal Register on March 19, 2008, 
with a 20-day public comment period that ended April 8, 2008. Three 
comments were received on the proposed measures.

Disapproved Measure

    The September through October seasonal closure of the ETAA was 
implemented under Framework 18 to the FMP (Framework 18), consistent 
with National Standard 9, which called for management measures to 
minimize and reduce the mortality of bycatch to the extent practicable, 
to reduce potential interactions between threatened and endangered sea 
turtles and the scallop fishery in the Mid-Atlantic. Framework 18 
concluded that a closure to scallop fishing may have positive benefits 
to turtles in the ETAA if fishing effort is not displaced to areas with 
higher densities of turtles than inside the ETAA. Additionally, 
Framework 18 concluded that the elevated water and air temperatures 
that occur during September and October in the ETAA may result in 
higher than average small scallop and finfish discard mortality. 
Therefore, Framework 18 concluded that the 2-month closure could also 
reduce scallop and finfish discard mortality. The information relied on 
in Framework 19 to eliminate the seasonal closure, as recommended by 
the Council, does not represent the best scientific information. The 
scientific information relied on for Framework 18 is still considered 
the best scientific information available and, therefore, the Council's 
recommendation to eliminate the closure is therefore inconsistent with 
National Standard 2. Maintaining the closed season remains consistent 
with the MSA, including National Std. 9, which requires that management 
measures minimize bycatch and bycatch mortality to the extent 
practicable.

Approved Measures

    In the proposed rule, NMFS requested comments on all proposed 
management measures. The approved management measures are discussed 
below. Details concerning the Council's development of these measures 
were presented in the preamble of the proposed rule and are not 
repeated here.

Open Area DAS Allocations

    To achieve optimum yield at the target F of 0.20 for the scallop 
resource, limited access open area DAS allocations are required to be 
adjusted every 2 years. Because the calculation of overall F also 
includes the mortality in controlled access areas, the calculation of 
the open area DAS allocations depends on the access area measures,

[[Page 30791]]

including the rotation schedule, management measures, and access area 
trip allocations. Framework 19 implements the following vessel-specific 
DAS allocations: Full-time limited access vessels will be allocated 35 
DAS in 2008 and 42 DAS in 2009; part-time vessels will be allocated 14 
DAS in 2008 and 17 DAS in 2009; and occasional limited access vessels 
will be allocated 3 DAS in 2008 and 3 DAS in 2009. If implementation of 
the general category IFQ program is delayed beyond March 1, 2009, the 
2009 DAS allocations would be reduced to the following: Full-time--37 
DAS; part-time--15 DAS, occasional--3 DAS. Amendment 11 to the FMP 
specifies that the general category fleet will be allocated 10 percent 
of the scallop quota during the transition period to the IFQ program. 
The Council did not specify in Framework 19 what the general category 
quota would be in the event the IFQ program is not implemented in 2009. 
Therefore, NMFS has determined that the potential DAS reduction is 
consistent with Amendment 11 and will extend the 10 percent allocation 
into 2009 in the event the IFQ program is not implemented by March 1, 
2009.
    Because Framework 19 was not implemented by the start of the 
fishing year on March 1, 2008, and interim regulations in effect at the 
start of the 2008 fishing year are inconsistent with Framework 19 
specifications, it is possible that a scallop vessel may have exceeded 
its DAS allocation during the interim period between March 1, 2008, and 
June 1, 2008. Therefore, any limited access open area DAS used in 2008 
by a vessel that is above the final 2008 allocation for that vessel 
will be deducted from the vessel's 2009 DAS allocation.

Limited Access Trip Allocations and Possession Limits for Scallop 
Access Areas

    In the 2008 fishing year, full-time limited access scallop vessels 
will be allocated one trip in the Nantucket Lightship Access Area 
(NLCA), and four trips in the ETAA. A part-time limited access scallop 
vessel will be allocated two trips, which could be taken as follows: 
One trip in the ETAA and one trip in the NLCA; or two trips in the 
ETAA. An occasional limited access vessel will be allocated one trip, 
which could be taken in either the NLCA or the ETAA. The 2008 limited 
access scallop possession limit for access area trips will be 18,000 lb 
(8,165 kg) for full-time and part-time vessels, and 7,500 lb (3,402 kg) 
for occasional vessels.
    In the 2009 fishing year, full-time limited access scallop vessels 
will be allocated one trip in the Closed Area II Access Area (CAII), up 
to three trips in the ETAA, and up to one trip in Delmarva (unless ETAA 
and/or Delmarva trips are reduced due to updated exploitable scallop 
biomass estimates). A part-time limited access scallop vessel will be 
allocated two trips, and could distribute these trips between the 
following access areas as follows: Up to two trips in the ETAA; up to 
one trip in CAII; and up to one trip in Delmarva (unless ETAA and/or 
Delmarva trips are reduced due to updated exploitable scallop biomass 
estimates). An occasional limited access vessel will be allocated one 
trip, which could be taken in CAII, the ETAA, or Delmarva (unless ETAA 
and/or Delmarva trips are reduced due to updated exploitable scallop 
biomass estimates). The 2009 limited access scallop possession limit 
for access area trips will be 18,000 lb (8,165 kg) for full-time and 
part-time vessels, and 7,500 lb (3,402 kg) for occasional vessels. 
However, if ETAA or Delmarva trips are reduced, part-time possession 
limits may be reduced as described below.
    Although the Framework 19 document submitted to NMFS did not 
specify 2009 Delmarva trip options for part-time and occasional 
vessels, NMFS has interpreted this as an oversight, and has included 
Delmarva trip options for part-time and occasional limited access 
vessels in 2009. ETAA and Delmarva trip allocations and possession 
limits in 2009 are subject to change per the ETAA and Delmarva trip 
reduction procedures described below.

Regulatory Procedure To Reduce 2009 ETAA and/or Delmarva Allocations

    ETAA and Delmarva specifications are based on 2007 scallop resource 
survey information, which was the best scientific information available 
when the Council established the ETAA and Delmarva allocations for 
Framework 19. If 2008 ETAA and/or Delmarva survey data indicate that 
there is less estimated exploitable biomass of scallops in the ETAA 
and/or Delmarva for the 2009 fishing year, the Regional Administrator 
may reduce ETAA and/or Delmarva allocations to prevent overfishing.
    If a reduction in the ETAA is necessary, as dictated by pre-
determined thresholds detailed in Table 1, the Regional Administrator 
will publish a final rule consistent with the Administrative Procedure 
Act (APA) on or about December 1, 2008. If the ETAA exploitable biomass 
estimate is between 20,000 and 29,999 mt, part-time limited access 
vessels will be authorized to take one trip in the ETAA at a reduced 
possession limit of 3,600 lb (1,633 kg), and one trip in the NLCA at 
the normal possession limit of 18,000 lb (8,165 kg). The reduced 
possession limit for part-time vessels under this scenario results from 
the FMP structure, which allocates to part-time vessels 40 percent of 
what is allocated to a full-time vessel. If updated exploitable biomass 
information is not available so that a final rule pursuant to the APA 
cannot be published on or about December 1, 2008, no reductions will be 
made.

                                    Table 1.--2009 ETAA Trip Reduction Table
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                                    Adjusted trips      Adjusted trips       Adjusted 2009       Adjusted 2009
  Exploitable  biomass estimate    (full-time, part-       (general         research  set-      observer  set-
              (mt)                 time, occasional)       category)        aside TAC (mt)      aside TAC (mt)
----------------------------------------------------------------------------------------------------------------
30,000 or greater...............  No adjustment.....  No adjustment.....  No adjustment.....  No adjustment.
20,000-29,999...................  2, 1*, 0..........  1473..............  108.86............  54.43.
10,000-19,000...................  1, 0, 0...........  982...............  72.57.............  36.29.
Less than 10,000................  0, 0, 0...........  491...............  36.29.............  18.15.
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* Part-time vessels may take one trip in the ETAA at a reduced possession limit of 3,600 lb (1,633 kg) and one
  trip in CAII or Delmarva (unless Delmarva trips are reduced); or one trip in CAII and one trip in Delmarva
  (unless Delmarva trips are reduced).

    In addition, if an updated estimate of overall F exceeds 0.29 in 
2008, then ETAA allocations will be reduced consistent with the 
reductions specified in Table 1 under exploitable biomass estimates of 
20,000-29,000 mt. If both the biomass and F thresholds are exceeded, 
the allocation level will be

[[Page 30792]]

established using the biomass adjustment schedule.
    Under the same procedures and dates, if the Delmarva biomass for 
the 2009 fishing year is estimated to be below 10,000 mt, then the area 
will remain closed to scallop fishing for the 2009 fishing year, and no 
trips or set-aside will be authorized there.

New Hudson Canyon Rotational Management Area

    Due to the high concentration of small scallops in the HCAA, 
Framework 19, consistent with the FMP's area rotation program strategy 
to protect young scallop concentrations, will establish the HCAA as a 
rotational management area, and close the HCAA to all scallop fishing, 
including general category vessels, for at least the 2008 and 2009 
fishing years. The expected increase in exploitable biomass in the 
absence of fishing mortality is expected to exceed 30 percent per year. 
The area could be considered again as an access area and re-open to 
fishing when the annual increase in exploitable biomass in the absence 
of fishing mortality is less than 15 percent per year.

Open Area DAS Adjustment if a Scallop Access Area Yellowtail TAC 
Allocated to the Scallop Fishery Is Caught

    Under the Northeast Multispecies Fishery Management Plan, 10 
percent of the Southern New England (SNE) and Georges Bank (GB) 
yellowtail TACs are allocated to scallop vessels fishing in the NLCA, 
CAI, and CAII. If the SNE and/or GB yellowtail TAC is caught, the 
respective access area(s) are closed to further scallop fishing for the 
remainder of the fishing year. If a limited access vessel has 
unutilized trip(s) in an access area closed by a scallop fishery 
yellowtail TAC, Framework 19 will allocate additional open area DAS in 
a manner that maintains the F objectives of the FMP. This trip/DAS 
conversion will apply only to full-time vessels, and to occasional or 
part-time vessels that have no other available access areas in which to 
take their access area trip(s). Unused access area trip(s) will be 
converted to open area DAS so that scallop fishing mortality that will 
have resulted from the access area trip(s) will be equivalent to the 
scallop fishing mortality resulting from the open area DAS allocation. 
Consequently, if the NLCA or CAII is closed in 2008 or 2009, 
respectively, each vessel with unutilized trip(s) will be allocated a 
specific amount of additional open area DAS according to permit 
category. Full-time vessels will be allocated 7.7 DAS per unutilized 
trip in the NLCA and 7.9 DAS per unutilized trip in CAII. Part-time 
vessels will receive the same DAS conversion as full-time vessels, as 
long as there was no other access area available for the vessel to take 
a trip(s). If an occasional vessel has no available access area in 
which to take its trip, it will be allocated converted DAS according to 
the most recent closure: 3.2 DAS if it was the NLCA; or 3.3 DAS if it 
was CAII. Although the Council did not specify this measure regarding 
occasional vessels in Framework 19, based on other Framework 19 
measures adopted by the Council and the overall objectives of the FMP, 
NMFS proposed this measure under the authority of section 305(d) of the 
Magnuson-Stevens Act.
    If a vessel has unused broken trip compensation trip(s) when an 
access area closes due to reaching a yellowtail TAC, it will be issued 
additional DAS in proportion to the un-harvested possession limit. For 
example, if a full-time vessel had an unused 9,000 lb (4,082 kg) NLCA 
compensation trip (half of the full possession limit) at the time of a 
NLCA yellowtail TAC closure, the vessel will be allocated 3.85 DAS 
(half of the 7.7 DAS that would be allocated for a full NLCA trip).

Research Set-Aside (RSA) Allocations

    Two percent of each scallop access area quota and 2 percent of the 
DAS quota are set aside as part of the Scallop RSA Program to fund 
scallop research and compensate participating vessels through the sale 
of scallops harvested under the research set-aside quota. The 2008 
research set-aside access area allocations will be: NLCA--110,000 lb 
(50 mt); and ETAA--440,000 lb (200 mt). The 2009 research set-aside 
access area allocations will be: CAII--116,000 lb (53 mt); ETAA--
324,000 lb (147 mt); and Delmarva--120,000 lb (54 mt). If 2008 ETAA 
and/or Delmarva survey data indicate that there is less estimated 
exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 
RSA allocations in these areas will be reduced as specified in Table 1.
    The 2008 and 2009 research set-aside DAS allocations will be 235 
and 282, respectively. If the general category IFQ program is delayed 
beyond March 1, 2009, the 2009 RSA DAS allocation would be 241 DAS.

Observer Set-Aside Allocations

    One percent of each scallop access area quota and 1 percent of the 
DAS allocation are set aside as part of the industry funded observer 
program to help defray the cost of carrying an observer. Scallop 
vessels on an observed DAS trip are charged a reduced DAS rate, 
currently 0.85 per DAS; scallop vessels on an observed access area trip 
are authorized to have an increased possession limit, currently 400 lb 
of shucked scallops per DAS. The Regional Administrator for the 
Northeast Region (Regional Administrator) has the authority to 
establish, and adjust, the reduced DAS rate and increased possession 
limit.
    The Council recommended in Framework 19 that the observer set-aside 
compensation rates be adjusted to more accurately reflect current 
fishery conditions. The Council noted that the current DAS set-aside 
rate of 0.85 is insufficient to offset the cost of carrying an 
observer, and suggested that the DAS compensation rate be increased 
while decreasing the access area possession limit, effectively 
transferring access area scallops to the DAS set-aside. However, the 
observer set-aside program is not currently structured to authorize 
access area scallops to be converted for use under the DAS set-aside. 
The set-aside program explicitly sets aside 1 percent of scallop DAS 
and 1 percent from each access area TAC. Therefore, the Council's 
recommendation cannot be adopted.
    NMFS did evaluate the current set-aside rates and determined that, 
although the current DAS set-aside rate may not fully offset the cost 
of carrying an observer, the current rate provides the greatest benefit 
to the fleet and should not change for the 2008 fishing year. NMFS 
determined that, if the DAS compensation rate was increased, the DAS 
set aside would not likely last the entire fishing year, resulting in 
some vessel owners needing to pay the full cost of observer DAS trips. 
Therefore, the reduced DAS charge on observed DAS trips will remain at 
0.85 for the 2008 fishing year. The Regional Administrator may re-
evaluate the DAS compensation rate before the start of the 2009 fishing 
year.
    The 2008 access area observer set-aside allocations will be: NLCA--
55,000 lb (25 mt); ETAA--222,000 lb (111 mt). The 2009 access area 
observer set-aside allocations will be: CAII--58,000 lb (26 mt); ETAA--
162,000 lb (73 mt); and Delmarva--60,000 lb (27 mt). If 2008 ETAA and/
or Delmarva survey data indicate that there is less estimated 
exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 
RSA allocations in these areas will be reduced as specified in Table 1.
    The 2008 and 2009 DAS observer set-aside allocations will be 118 
and 141, respectively. If the general category IFQ program is delayed 
beyond March 1, 2009, the 2009 observer set-aside DAS allocation would 
be 124 DAS.

[[Page 30793]]

Adjustment of the Scallop Overfishing Definition

    The Council recommended a new overfishing definition based on 
results from the recent scallop stock assessment (SAW 45), which used a 
new model to characterize the scallop resource, including a new biomass 
target and threshold, and a new F threshold. Because the Council 
recommended the new reference points and a modified overfishing 
definition to reflect the new parameters, the Council also considered 
whether the current target F of 0.20 should be adjusted upward 
consistent with the F threshold adjustment. The overfishing threshold F 
of 0.29 is based on an assumption that F is spatially uniform. However, 
uniform F does not occur in the scallop fishery due to unfished biomass 
in closed areas and highly variable F's in open and access areas. In 
the case of highly non-uniform fishing effort, the F that maximizes 
yield per recruit will be less than the spatially uniform target 
(F=0.29). The Council was concerned that setting the F target at the 
typical 80 percent of the threshold (F=0.23) would result in localized 
overfishing in open areas. Therefore, the Council recommended keeping 
the target F at 0.20 in recognition that F is not uniformly distributed 
throughout the range of the scallop fishery, and the resource is prone 
to localized overfishing, particularly in open areas. An F target of 
0.20 will help maintain a stable fishery over the long term rather than 
maximize individual catch on an annual basis, compared to higher F 
targets.
    In addition, based on the results of SAW 45, the Council 
recommended establishing scallop biomass reference points using 
absolute scallop meat biomass estimates instead of scallop resource 
survey indices, as in the past.
    Based on these recommendations, the scallop overfishing definition 
will be as follows: If stock biomass is equal to or greater than the 
maximum scallop resource biomass target (Bmax), as measured by an 
absolute value of scallop meat (mt) (currently estimated at 108,600 mt 
for scallops in the GB and Mid-Atlantic resource areas), overfishing 
occurs when F exceeds Fmax, currently estimated as 0.29. If the total 
stock biomass is below Bmax, overfishing occurs when F exceeds the 
level that has a 50-percent probability to rebuild stock biomass to 
Bmax in 10 years. The scallop stock is in an overfished condition when 
stock biomass is below \1/2\Bmax and, in that case, overfishing occurs 
when F is above a level expected to rebuild the stock in 5 years, or 
when F is greater than zero when the stock is below Bmax.
    The following table details the biomass and F reference points that 
will be implemented by Framework 19.

                Table 2.--Biomass and F Reference Points
------------------------------------------------------------------------
                                        Target             Threshold
------------------------------------------------------------------------
Biomass (B).....................  108,600 mt........   54,300 mt.
Fishing mortality (F)...........  0.20..............  0.29.
------------------------------------------------------------------------

Prohibition on Deckloading

    To minimize scallop discard mortality, no scallop vessel that is 
declared into the Area Access Program as specified in Sec.  648.60 may 
possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in 
Sec.  648.52(d), outside the boundaries of a Sea Scallop Access Area.

Adjustments to the Industry-Funded Observer Program

    There are several measures designed to improve the industry-funded 
observer program. Framework 19 includes measures described below that 
have new reporting requirements subject to review and approval by the 
OMB pursuant to the Paperwork Reduction Act (PRA). As noted, OMB is 
currently reviewing the new PRA requirements and as such, the measures 
are not effective along with other measures included in this final 
rule. A subsequent rule published in the Federal Register will announce 
the effective date of such measures.
1. Measures Pertaining to Observer Service Providers
    Providers must respond to a fisherman's request for an observer 
within 18 hr of the fisherman's call to let them know if an observer is 
available.
    Providers must provide the NMFS Northeast Fishery Observer Program 
(NMFS/NEFOP) with an updated list of contact information for all 
observers that includes the observer identification number, observer's 
name, mailing address, e-mail address, phone numbers, homeports or 
fisheries/trip types assigned, and must include whether or not the 
observer is ``in service,'' indicating when the observer has requested 
for leave and/or is not currently working for the industry-funded 
program.
    Providers must submit to NMFS/NEFOP, if requested, a copy of each 
type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and those entities requiring observer 
services.
    Providers must submit to NMFS/NEFOP, if requested, a copy of each 
type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and specific observers.
    Providers must submit to NMFS/NEFOP, if requested, copies of any 
information developed and used by the observer providers and 
distributed to vessels, such as informational pamphlets, payment 
notification, description of observer duties, etc.
    The proposed rule stated that observer service providers would 
charge for services consistent with how vessel owners receive 
compensation, and specified that this would be based on VMS 
transmission data and time spent seaward of the demarcation line. 
However, based on comments received on this new requirement, NMFS has 
revisited the rationale of this requirement. The rationale of this 
measure was to reduce confusion for vessel owners resulting from 
different charging methods used by observer service providers, and to 
ensure the charging methodology was consistent. NMFS does not intend to 
direct observer providers on how much they may charge, but merely what 
the charge is based upon. Therefore, for access area trips, a service 
provider shall charge a vessel owner from when an observer boards a 
vessel until they disembark (dock to dock), where ``day'' is defined as 
a 24-hr period, or any portion of a 24-hr period, regardless of the 
calendar day. For example, if a vessel with an observer departs on July 
1st at 10 pm and lands on July 3rd at 1 am, the time at sea equals 27 
hr, which would equate to 2 ``days.'' For open area DAS trips, a 
service provider shall charge dock to dock where ``day'' is defined as 
a 24-hr

[[Page 30794]]

period, and portions of the other days would be pro-rated at an hourly 
charge (taking the daily rate divided by 24). For example, for the trip 
demonstrated above, the provider would charge 1 day and 3 hours.
    Providers will no longer be required to maintain at least eight 
certified observers.
    Providers must provide NMFS/NEFOP with observer contract data 
within 24 hr of landing, and raw data within 72 hr of landing.
2. Measures Pertaining to Scallop Fishermen
    Scallop fishermen must allow NMFS/NEFOP up to 24 hr to respond to a 
pre-sailing notice and, if selected, must provide the observer provider 
at least 48 hr to respond to an observer deployment request. Currently, 
NMFS/NEFOP may take up to 24 hr to respond to a pre-sailing notice, and 
the observer service provider may take up to 72 hr to respond to an 
observer deployment request. This will reduce the pre-sailing notice 
period. The proposed rule erroneously noted that NMFS would have up to 
72 hours to respond to a pre-sailing notification.
    Limited access trip notification calls cannot be made more than 10 
days in advance of a trip, and not more than 10 trips may be called in 
at a time.
    General category vessels making an access area trip(s) must call in 
with the same notice described above, but make calls weekly rather than 
daily. For example, a general category vessel could call in by Thursday 
for all the trips it plans to take from the following Sunday through 
Saturday. The vessel will either get a waiver for that week, or be 
selected for observer coverage. If selected, a vessel could be required 
to carry an observer on up to two trips made that week.
    Vessel owners, operators, or managers are required to notify NMFS/
NEFOP of any trip plan changes at least 48 hr prior to vessel 
departure.
    Confirmation numbers for trip notification calls are valid for 48 
hr from the intended sail date.
    A vessel is prohibited from fishing in an access area without a 
NMFS/NEFOP call-in confirmation number specific to that trip and that 
was issued for the trip plan and area.
3. Observer Program Observer Training Adjustments
    NMFS/NEFOP observer training sessions will no longer have a minimum 
class size of eight.
    An observer's first three deployments and the resulting data will 
be immediately edited and approved after each trip by NMFS/NEFOP, prior 
to any further deployments by that observer. If data quality is 
considered acceptable, the observer will be certified. If the data is 
not acceptable, the observer will not be certified.
    An observer provider will not deploy any observer on the same 
vessel for more than two consecutive multi-day trips and not more than 
twice in any given month for multi-day deployments. Multi-day is 
defined as more than 2 days.
    At least 7 days prior to the beginning of an observer training 
class, providers would be required to provide a final list of observer 
candidates, observer candidate resumes, and a statement signed by the 
candidate, under penalty of perjury, that discloses the candidate's 
criminal convictions, if any.
    Prior to the end of an observer training course, the observer will 
be required to complete a cardiopulmonary resuscitation/first aid 
course.

30-Day VMS Power Down Provision for Scallop Vessels

    Scallop vessels may power down their VMS unit for a minimum of 30 
days provided the vessel does not engage in any fishing activity until 
the unit is turned back on. Such vessels will be required to obtain a 
letter of exemption from the Regional Administrator. This provision 
will provide more flexibility and will reduce operating costs for some 
scallop vessel owners that do not engage in fisheries for extended 
periods of time.

General Category Allocations

    The general category fishery will be allocated 10 percent of the 
overall scallop TAC in 2008, and 5 percent in 2009 (unless the IFQ 
program is not implemented by March 1, 2009, in which case the general 
category fishery will be allocated 10 percent of the scallop quota). 
Provided the IFQ program is implemented in 2009, 0.5 percent of the 
scallop TAC will be allocated to full-time, part-time, or occasional 
vessels that qualify for an IFQ permit.
    The NGOM TAC for both 2008 and 2009 will be 70,000 lb (31,751 kg).
    The incidental catch target TAC for the 2008 and 2009 fishing years 
will be 50,000 lb (22,680 kg) to account for mortality from this 
component of the fishery and to ensure that F targets are not exceeded.
    The annual TAC, excluding the NGOM TAC and incidental catch TAC, 
will be distributed into quarterly TACs. The fleetwide quarterly TAC 
will remain in effect until the IFQ program is implemented under 
Amendment 11 to the FMP. Framework 19 allocates 35 percent (1,523,375 
lb (690.99 mt)) of the 2008 directed general category annual TAC to 
Quarter 1, 40 percent (1,741,000 lb, (789.70 mt)) to Quarter 2, 15 
percent (652,875 lb, (296.14 mt)) to Quarter 3, and 10 percent (435,250 
lb (197.43 mt)) to Quarter 4. If any portion of the Quarter 1 TAC is 
not caught, the remainder will be rolled over into Quarter 3; if any 
portion of the Quarter 2 TAC is not caught, it will be rolled over into 
Quarter 4. Open area and access area scallop landings by directed 
general category trips will count against the quarterly TACs. If a 
quarterly TAC is caught, all directed general category scallop fishing 
will cease for the remainder of the quarter in access area, and open 
areas, but excluding the NGOM. If the Quarter 1 TAC (March 1-May 31) is 
underharvested or exceeded, those pounds will be added or removed from 
Quarter 3. If the Quarter 2 TAC (June 1-August 31) and/or Quarter 3 TAC 
(September 1-November 30) are underharvested or exceeded, those pounds 
will be added or removed from Quarter 4. In addition, since the 
quarterly TACs are intended to be in place for the entire 2008 fishing 
year, as specified in Amendment 11, Framework 19 requires that any 
scallops harvested by general category scallop vessels during the first 
and/or second quarter prior to implementation of Amendment 11 and 
Framework 19 are counted against the applicable quarterly TAC.
    Starting with the first year of the IFQ program in 2009 or 2010, if 
necessary, the pool of IFQ vessels that do not qualify for a full-time, 
part-time, or occasional limited access scallop permit will be 
allocated 5 percent of the overall scallop TAC; and the pool of full-
time, part-time, or occasional limited access vessels that qualify for 
an IFQ permit will be allocated 0.5 percent of the overall scallop TAC. 
General category vessels that qualify for an IFQ permit in 2009 will be 
allocated 5 percent of the overall scallop TAC as follows: 1,182,500 lb 
(536 mt) from open areas, 785,700 lb (357 mt) from ETAA, and 291,000 lb 
(132 mt) from Delmarva. Full-time, part-time, and occasional scallop 
vessels that qualify for an IFQ permit in 2009 will be allocated 
225,950 lb (113 mt) from open areas on general category trips.
    In the event that implementation of the IFQ program is delayed 
beyond the start of the 2009 fishing year (March 1, 2009), the IFQ 
scallop fishery will be allocated 10 percent of the overall scallop TAC 
and be divided among quarters as described in the preceding section.

[[Page 30795]]

General Category Access Area Harvest Specifications for 2008 and 2009

    In 2008, the general category fishery will be allocated 667 trips 
in the NLCA, and 2,668 trips in the ETAA, respectively. Because 997 of 
the 2,668 ETAA trips have already occurred, 1,161 ETAA trips will be 
allocated to general category vessels when Framework 19 is effective 
under this final rule. The NLCA will open on June 15, 2008.
    In 2009, the general category scallop fishery will be allocated up 
to 1,964 ETAA trips and up to 728 Delmarva trips. If 2008 ETAA scallop 
resource surveys indicate a reduced exploitable scallop biomass, or 
overall 2008 scallop F exceeds 0.29, general category ETAA trip 
allocations will be subject to trip reduction procedures as specified 
under Table 1-2009 ETAA Trip Reduction Table. If updated 2008 Delmarva 
scallop resource surveys indicate the exploitable biomass in Delmarva 
is less than 10,000 mt, Delmarva will be closed for the 2009 fishing 
year, and no general category trips will be allocated. General category 
vessels will not be allocated any trips in CAII because of concerns 
that negligible fishing effort by general category vessels will occur 
there. Because general category vessels will receive overall TAC, the 
zero allocation in CAII will be offset by a higher percentage of 
overall catch in open areas.

IFQ Cost Recovery Program

    NMFS is required by the Magnuson-Stevens Act to recover the costs 
directly related to the management, data collection and analysis, and 
enforcement of IFQ programs such as the one implemented through 
Amendment 11. Under section 304(d)(2)(A) of the Magnuson-Stevens Act, 
the Secretary of Commerce is authorized to collect a fee, not to exceed 
3 percent of the ex-vessel value of fish harvested, to recover these 
costs. Therefore, a scallop IFQ vessel will incur a cost recovery fee 
liability for every landing of scallops. The IFQ permit holder that 
landed the IFQ scallops will be responsible for submitting this payment 
to NMFS once per year. The ex-vessel value of scallops used to 
calculate the cost-recovery fees due for a fishing year will be based 
on an average of the ex-vessel value of all general category scallops 
landed between March 1 and September 30 of the initial year of the IFQ 
program, and October 1 through September 30 of each year thereafter. 
IFQ permit owners that transferred IFQ scallops (transferee) from 
another IFQ vessel (transferor) as part of the IFQ scallop transfer 
program must submit a cost recovery fee for scallops landed by the 
transferee.
    Payment of the cost recovery fee will be a permit condition that 
must be met before permits may be renewed. On or about October 30 of 
each year, NMFS will mail a cost recovery bill for the IFQ fee incurred 
by each IFQ vessel to each IFQ permit holder. Owners of IFQ vessels 
will be required to submit payment by January 1 of each year. An IFQ 
scallop vessel's permit will not be renewed (i.e., not issued) by NMFS 
until payment for the prior year's fees is received in full. Bills will 
also be made available electronically via the internet. Fee liabilities 
due January 1 will be for the previous cost recovery period (October 1-
September 30 of the year preceding the January 1 due date). For 
example, for scallops landed October 1, 2009-September 30, 2010, NMFS 
will issue a cost recovery bill on or about October 30, 2010, and the 
IFQ permit holder will be required to submit the cost recovery fee by 
January 1, 2011. If an IFQ permit holder does not pay, or pays less 
than the full amount due, the vessel's IFQ permit will not be renewed.
    Disputes regarding fee liabilities will be resolved through an 
administrative appeal procedure. If an IFQ permit holder makes a timely 
payment to NMFS of an amount less than the fee liability NMFS has 
determined, the IFQ permit holder will have the burden of demonstrating 
that the fee amount submitted is correct and that the fee calculated by 
NMFS is incorrect. If, upon preliminary review of the accuracy and 
completeness of a fee payment, NMFS determines the IFQ permit holder 
has not paid the amount due in full, NMFS will notify the IFQ permit 
holder by letter. NMFS will explain the discrepancy and the IFQ permit 
holder will have 30 days to either pay the amount that NMFS has 
determined should be paid, or provide evidence that the amount paid was 
correct. The IFQ permit for the vessel will not be renewed until the 
payment discrepancy is resolved. If the IFQ permit holder submits 
evidence in support of his/her payment, NMFS will evaluate it and, if 
there is any remaining disagreement as to the appropriate IFQ fee, 
prepare a Final Administrative Determination (FAD). The FAD will set 
out the facts, discuss those facts within the context of the relevant 
agency policies and regulations, and make a determination as to the 
appropriate disposition of the matter. A FAD will be the final agency 
action. If the FAD determines that the IFQ permit holder is out of 
compliance, the IFQ scallop permit in question will not be renewed 
until the conditions established by the FAD are met. If the FAD 
determines that the IFQ permit holder owes additional fees, and if the 
IFQ permit holder has not paid such fees, all IFQ permit(s) held by the 
IFQ permit holder will not be renewed until the required payment is 
received by NMFS. If NMFS does not receive such payment within 30 days 
of the issuance of the final agency action, NMFS will refer the matter 
to the appropriate authorities within the U.S. Department of the 
Treasury for purposes of collection, and the vessel's IFQ permit(s) 
will remain invalid. If NMFS does not receive such payment prior to the 
end of the fishing year, the IFQ permit will be considered voluntarily 
abandoned.
    Cost recovery payments shall be made electronically via the Federal 
web portal, http://www.pay.gov, or other Internet sites as designated 
by the Regional Administrator. Instructions for electronic payment will 
be made available on both the payment Web site and the paper bill. 
Payment options may include payment via a credit card (the Regional 
Administrator will specify in the cost recovery bill acceptable credit 
cards) or direct ACH (automated clearing house) withdrawal from a 
designated checking account. Payment by check could be authorized by 
the Regional Administrator if the Regional Administrator has determined 
that electronic payment is not possible (for example, if the 
geographical area or an individual(s) is affected by catastrophic 
conditions).
    NMFS will create an annual IFQ report and provide it to the owner 
of the IFQ permit. The report will include quarterly and annual 
information regarding the amount and value of IFQ scallops landed 
during the fishing year, the associated cost recovery fees, and the 
status of those fees. This report will also detail the costs incurred 
by NMFS, including the calculation of the recoverable costs for the 
management, enforcement, and data collection, incurred by NMFS during 
the fishing year.

Comments and Responses

    A total of 3 relevant comment letters that raised 6 relevant issues 
were received in response to the proposed rule for Framework 19.
    Comment 1: A comment letter was submitted by an observer service 
provider suggesting that vessels should be compensated for the full 
cost of observer coverage; including costs associated with observer 
deployment, at-sea data collection, and post-trip data processing. At 
the least, vessels should be compensated based on when the

[[Page 30796]]

vessel leaves the dock at the start of the trip to when the vessel 
returns to the dock at the end of the trip.
    Response: Based on the above comment and in consultation with the 
NMFS/NEFOP, NMFS has adjusted the proposed rule measures. NMFS has 
determined that ``dock-to-dock,'' which is the period of time between 
vessel departure and landing, is the appropriate method by which an 
observer provider shall charge scallop vessel owners for observer 
coverage. Details of this adjustment are detailed in the preamble and 
regulatory text.
    Comment 2: A comment letter was submitted by an environmental 
advocacy organization supporting the continuation of the September 1 
through October 31 ETAA seasonal closure. This letter also requests 
that NMFS include additional measures to further protect sea turtles, 
including: A scallop closed season for Delmarva similar to the ETAA 
closed season; expansion of the Hudson Canyon Access Area boundaries; 
implementation of the requirements of the recently signed biological 
opinion for the scallop fishery; and a provision to allow up to 5 
percent of the access area TACs and open area DAS to be set-aside for 
the industry-funded observer program to ensure maximum observer 
coverage.
    Response: NMFS agrees that the continuation of this closure is 
consistent with the Magnuson-Stevens Act. However, NMFS does not have 
the authority to expand Framework 19 to include additional management 
measures as requested by the commenter, or to modify measures developed 
by the Council. NMFS can only approve or disapprove the specific 
measures recommended by the Council. NMFS did request that the Council 
adopt through Framework 21 to the Scallop FMP reasonable and prudent 
measures to reduce sea turtle take as recommended by the most recent 
biological opinion. Framework 21 is scheduled to be implemented in 
2010.
    Comment 3: A comment letter was submitted by an organization 
representing limited access scallop vessel owners. The commenter 
suggested that maintaining the F target at 0.20 may be overly cautious 
and may not achieve optimum yield as required by National Standard 1 of 
the Magnuson-Stevens Act. The commenter expressed the opinion that the 
DAS reductions proposed by Framework 19 are not warranted given the 
status of the scallop resource and the new overfishing definition. 
Framework 19 would allocate 35 DAS in 2008 and 42 DAS in 2009. The 
commenter also referenced Amendment 10 to the FMP, which had 
established the target F at 80 percent of the threshold F, and 
recommended that the target F should therefore be increased to 0.23 to 
be consistent with Amendment 10. Consequently, the commenter requested 
that NMFS disapprove the DAS allocations proposed by Framework 19, and 
maintain the status quo, which would allocate 51 DAS to full-time 
scallop vessels in 2008 and 2009.
    Response: NMFS has determined that setting the F target at 0.20 is 
appropriate given that fishing mortality is not uniformly distributed 
throughout the range of the scallop fishery, but recognizes that 
maintaining the F target is a conservative approach and may need to be 
revisited in the future. But because there is concern for localized 
overfishing in open areas, an F target of 0.20 would help maintain a 
stable fishery over the long term. NMFS has determined that the DAS 
allocations proposed through Framework 19 are consistent with National 
Standard 1 of the Magnuson-Stevens Act.
    Comment 4: An organization representing limited access scallop 
vessel owners expressed concern that NMFS exceeded its legal authority 
when it proposed to reduce full-time and part-time DAS allocations in 
the event the IFQ program is not implemented by the start of the 2009 
fishing year and the general category fishery is allocated 10 percent 
of the scallop quota. The commenter also felt that the general category 
fishery should not be allocated more than 5 percent of the quota beyond 
2009, regardless of whether the IFQ program is implemented.
    Response: This provision is entirely consistent with Amendment 11 
and its implementing regulations and, therefore, NMFS acted within its 
legal authority. During the transition period to the general category 
IFQ program Amendment 11 specifies that the limited access fleet would 
be allocated DAS in open areas based on an allocation of 90 percent of 
the total allowable scallop catch, without reference to the length of 
the transition period. Once the IFQ program is implemented, the limited 
access fleet would be allocated DAS based on an allocation of 94.5 
percent of total scallop catch. In specifying DAS for the 2009 fishing 
year through Framework 19, the Council presumed that the IFQ program 
would be in effect and consequently did not specify DAS in the event 
the IFQ program was not implemented by the start of the 2009 fishing 
year. Framework 19 does not supersede measures approved as part of 
Amendment 11. Therefore, consistent with Amendment 11, if the general 
category fishery is still transitioning to the IFQ program by the start 
of the 2009 fishing year, the limited access fleet would be allocated 
DAS in open areas based on an allocation of 90 percent of the total 
allowable scallop catch. In response to the comment that general 
category vessels should not be allocated more than 5 percent of the TAC 
beyond 2009, the Council is scheduled to recommend future scallop 
specifications beyond the 2009 fishing year through a future framework 
to the FMP. However, if the Council does not specify otherwise, the 10-
percent scallop quota allocation to the general category fishery will 
remain in effect during the transition period to the IFQ program.
    Comment 5: An organization representing limited access scallop 
vessel owners supported the Council's recommendation to adjust the 
observer set-aside compensation rates.
    Response: NMFS did consider the Council's request and evaluated the 
current set aside rates and determined that, although there is a 
possibility that the current DAS set-aside rate may not fully offset 
the cost of carrying an observer, on balance, the current rate provides 
the greatest benefit to the fleet and should not change for the 2008 
fishing year. NMFS determined that if the DAS compensation rate was 
increased, the DAS set aside would likely not last through the fishing 
year, resulting in some vessel owners needing to pay the full cost of 
observer DAS trips. Therefore, the reduced DAS charge on observed DAS 
trips will remain at 0.85 for the 2008 fishing year to ensure an 
equitable distribution of DAS compensation for vessels required to 
carry an observer on a DAS trip. The Regional Administrator may re-
evaluate the DAS compensation rate prior to the start of the 2009 
fishing year.
    Comment 6: An organization representing limited access scallop 
vessel owners supports the VMS power down provision.
    Response: NMFS agrees that the power down provision will provide 
benefits to the scallop fishery without compromising the objectives of 
the FMP.

Changes From Proposed Rule to Final Rule

    In Sec.  648.4(a)(2)(ii)(D)(2), the conversion from in-shell 
scallop weight to meat weight is revised to specify that 8.33 lb (3.78 
kg) of in-shell scallops will be converted to one pound (0.45 kg) of 
scallop meats.
    In Sec.  648.4(a)(2)(ii)(E), the IFQ contribution factor reference 
is corrected to read Sec.  648.53(h)(2)(ii)(A).

[[Page 30797]]

    In Sec.  648.4(a)(2)(ii)(I)(3), the date April 14, 2008, is changed 
to July 1, 2008, to reflect the effective date of Amendment 11 permit 
requirements as indicated in the final rule for Amendment 11.
    Section 648.11(g)(2)(ii) is revised to clarify the general category 
access area observer reporting requirements.
    In Sec.  648.11, paragraph (g)(3) is revised to state that NMFS 
shall respond to a trip notification within 24 hours, not 72 hours as 
erroneously noted in the proposed rule.
    In Sec.  648.11, paragraph (g)(5)(i)(A) revises how observer 
providers should charge vessel owners for access area trips.
    In Sec.  648.11, paragraph (g)(5)(i)(B) revises how observer 
providers should charge vessel owners for open area DAS trips.
    In Sec.  648.11, paragraph (h)(5)(i) is revised to clarify that if 
pre-certification observer data is accepted, the observer would be 
certified.
    In Sec.  648.11, paragraph (h)(5)(vi) is revised to clarify that 
observer providers must submit candidate information to NMFS within 7 
days to the beginning of a class.
    In Sec.  648.11, paragraph (h)(5)(vii)(A) is revised to require 
observer reports to be submitted to NMFS within 24 hr of landing, not 
12 hr as noted in the proposed rule. The change in the final rule makes 
the regulation consistent with the Framework 19 document.
    In Sec.  648.53, paragraph (a)(1) is revised to clarify the 2008 
scallop fishery allocations.
    In Sec.  648.53, paragraph (a)(2) is revised to clarify the 2009 
scallop fishery allocations.
    In Sec.  648.53, paragraphs (a)(4)(i), (a)(4)(ii), (a)(5)(i), 
(a)(5)(ii), (a)(5)(iii) are revised to more clearly describe how the 
scallop quota is divided.
    In Sec.  648.53, paragraph (a)(5)(ii) is revised to correctly 
reference Sec.  648.53(a)(7).
    In Sec.  648.53, paragraph (h)(2)(ii) is revised to correctly 
reference the index factor in Sec.  648.53(h)(2)(ii)(A).
    Revisions in Sec.  648.59 have been made to reflect changes that 
were made in the final rule for Amendment 11 to the FMP. Also, two 
revisions of paragraphs within Sec.  648.59 are included to reflect 
measures effective June 1, 2008, and July 1, 2008, under the same 
paragraphs.
    In Sec.  648.60, the table in paragraph (a)(2) listing 2009 
research set-aside and observer set-aside adjustment weights is 
corrected.
    Other editorial and minor changes were made throughout the rule to 
clarify various provisions in this action.

Classification

    NMFS has determined that Framework 19 as implemented by this rule 
is necessary for the conservation and management of the Atlantic sea 
scallop fishery and is consistent with the Magnuson-Stevens Act and 
other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in a timely manner to avoid 
continuation of measures that are inconsistent with the measures in 
Framework 19 that are designed to meet the resource conservation goals 
of the FMP constitutes good cause under authority contained in 5 U.S.C. 
553(d)(3) to waive the 30-day delay in effective date and establish an 
effective date of June 1, 2008. Framework 19 measures need to be 
effective on the same day that the allocation measures for Amendment 11 
to the FMP (Amendment 11) measures are effective. Amendment 11 
specifies the level of TACs that will be allocated to the general 
category and limited access scallop fleets to be effective on June 1, 
2008. Amendment 11 does not include the actual fishery specifications 
that would make the full suite of Amendment 11 measures effective in 
controlling the general category fishery. Rather, the specific TACs 
based on Amendment 11 are part of Framework 19. As such, implementation 
of Framework 19 is directly responsible for achieving the effectiveness 
of Amendment 11 allocation and harvest limit measures. Delaying the 
measures would compromise the ability to achieve the overall benefits 
to the resource, fishery, and economy that are anticipated in Amendment 
11, to the detriment of the public.
    In addition, without the measures included in Framework 19, the 
limited access scallop fleet will continue to fish under fishing year 
2007 DAS and Sea Scallop Access Area trip allocations that continue to 
be in effect from March 1, 2008, and until Framework 19 is implemented. 
Current DAS allocations are inconsistent with the measures in Framework 
19 designed to meet the resource conservation goals of the FMP. 
Specifically, open area DAS are higher under current measures than will 
be implemented under Framework 19 and vessel owners and operators have 
the potential of exceeding the Framework 19 DAS allocations. Because 
these vessels have been fishing under the current allocations since 
March 1, 2008, it is likely that some vessels have already exceeded 
their Framework 19 DAS allocations. Vessel owners continue to be faced 
with uncertainty for future allocations, and will have DAS reduced in 
2009 if DAS used exceed the Framework 19 allocated DAS.
    NMFS accepted the Council's submission of Framework 19 in December 
2007 and anticipated that the final rule could not be published by 
March 1, 2008, because of its complexity and because Framework 19 could 
not be made effective until Amendment 11 was effective. NMFS 
anticipated that Framework 19 would need to be effective on the same 
day, or very shortly after the effective date of Amendment 11, 
regardless of when the Framework 19 final rule is published. The 
complexity and relation of the two related actions delayed publication 
despite efforts to complete the proposed rule earlier. In addition, due 
to the dependence of Framework 19 on Amendment 11, the development of 
the final rule for Framework 19 was held until the final rule for 
Amendment 11 was published on April 14, 2008. The effective date of 
June 1, 2008, created a brief window for the final rule for Framework 
19 to be developed and published.
    This final rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. NMFS will publish a subsequent 
notice when these information collection requirements have been 
approved by OMB. Public reporting burden for these collections of 
information are estimated to average as follows:
    1. Service provider observer contact information reports, OMB 
0648-0546--5 min per response;
    2. Service provider observer availability reports, OMB 
0648-0546--1 min per response;
    3. Copies of service provider outreach materials, OMB 
0648-0546--30 min per response;
    4. Copies of service provider contracts, OMB 0648-0546--30 
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. Send 
comments on these or any other aspects of the collection of information 
to the Regional Administrator as specified in ADDRESSES above, and by 
e-mail to

[[Page 30798]]

[email protected] or fax to (202) 395-7285.
    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 requirement subject 
to the requirements of the PRA, unless that collection-of-information 
requirement displays a currently valid OMB control number.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has included a final regulatory flexibility analysis (FRFA) in 
support of Framework 19 in this final rule. The FRFA describes the 
economic impact that this final rule, along with non-adopted 
alternatives, will have on small entities. The FRFA incorporates the 
economic impacts and analysis summarized in the IRFA for the proposed 
rule to implement Framework 19, the comments and responses in this 
final rule, and the corresponding economic analyses prepared for 
Framework 19 (e.g., the EA and the RIR). A copy of the IRFA, the RIR, 
and the EA are available upon request (see ADDRESSES).

Statement of Need for This Action

    A detailed description of the reasons for this action, the 
objectives of the action, and the legal basis for this final rule are 
found in Framework 19 and the preamble to the proposed and final rules.

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

    A comment letter was submitted by an organization representing 
limited access scallop vessel owners noting that the economic impacts 
presented in the proposed rule wrongly characterized that the DAS 
allocations would have a positive impact on the industry. This was the 
only comment received with any bearing on the economic analyses 
summarized in the IRFA.
    Response: The IRFA provides a summary of the economic impacts of 
the management measures combined and of each proposed and alternative 
management measure. The IRFA demonstrates that the DAS allocations 
would have positive impacts overall and in the long term. The IRFA is a 
summary and refers readers to the full economic analysis in the 
Framework 19 document, which provides extensive detailed analysis of 
the economic impacts that are estimated through projections that have 
long been utilized in assessing the economic impacts of scallop fishery 
management measures.
    No changes were made to the final rule as result of the above 
comment.

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

    The vessels in the Atlantic sea scallop fishery are all considered 
small business entities and, therefore, there is no disproportionate 
impact on large and small entities. All of the vessels grossed less 
than $4 million according to dealer data for the 2004 to 2006 scallop 
fishing years. Annual total revenue averaged over $1 million in the 
2005 fishing year, and about $881,990 in the 2006 fishing year, per 
limited access vessel. Total revenues per vessel, including revenues 
from species other than scallops, exceeded these amounts, but were less 
than $3.5 million per vessel. Average scallop revenue per general 
category vessel was $88,702 in 2005 and $66,785 in the 2006 fishing 
years. Average total revenue per general category vessel, including 
revenue from species other than scallops, exceeded $250,000 in the 2005 
and 2006 fishing years. Average revenues per vessel were lower in the 
2006 fishing year for all permit categories because of lower scallop 
prices.
    Framework 19 regulations will affect all federally permitted 
scallop vessels. The Amendment 11 and Framework 19 documents provide 
extensive information on the number, port, state, and size of vessels 
and small businesses that will be affected by the regulations. In 2007, 
there were 346 full-time, 33 part-time, and 1 occasional limited access 
scallop permits issued, and 2,332 general category permits issued to 
vessels in the open access general category fishery: 915 category 1B 
permits and 1,417 category 1A incidental catch permits.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains four new collection-of-information, reporting, 
and recordkeeping requirements currently under review by OMB. The 
following describes these requirements.
1. Observer Contact List
    Observer service providers will be required to provide and maintain 
an updated list of contact information for all observers. This will 
facilitate the ability of NMFS/NEFOP to contact observers. Maintaining 
an up-to-date observer contact list is estimated to entail 5 min per 
response, 12 responses per year, for a total of 1 burden hour annually. 
These updates do not have any associated miscellaneous costs.
2. Observer Availability List
    Service providers will be required to provide and maintain a 
listing of whether or not the observer is ``in service,'' indicating 
when the observer has requested leave and/or is not currently working 
for the industry-funded program. This will facilitate the ability of 
NMFS/NEFOP to confirm observer availability. Maintaining an up-to-date 
observer availability list is estimated to entail 1 min per response, 
300 responses per year, for a total of 5 burden hr annually. These 
updates do not have any associated miscellaneous costs.
3. Copies of Observer Service Provider Materials
    Service providers will be required to submit to NMFS/NEFOP, if 
requested, copies of any materials developed and distributed to 
vessels, such as informational pamphlets, payment notification, 
description of observer duties, etc. This will allow NMFS/NEFOP to 
ensure that information distributed to industry is accurate and in 
keeping with the objectives of the observer program. It is estimated 
that NMFS/NEFOP will request copies of service provider outreach 
materials once a year. It is estimated it will take 30 min to submit 
this information, for a total burden of 0.5 hour. It is estimated the 
service providers will incur a total of $5 in mailing fees to submit 
these materials.
4. Copies of Observer Service Provider Contracts
    Service providers will be required to submit to NMFS/NEFOP, if 
requested, a copy of each type of signed and valid contract (including 
all attachments, appendices, addendums, and exhibits incorporated into 
the contract) between the observer provider and those entities 
requiring observer services. This will allow NMFS/NEFOP to ensure 
contractual information is accurate and in keeping with the objectives 
of the observer program and help resolve disagreements between industry 
and the service provider. It is estimated that NMFS/NEFOP will request 
copies of service provider contracts once a year. It is estimated it 
will take 30 min to submit this information, for a total burden of 1 
hour. It is estimated the service providers will incur a total of $5 in 
mailing fees to submit these materials.

[[Page 30799]]

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 long-term overall economic effects of Framework 19 measures are 
estimated to be slightly positive on revenues; an average of about a 
0.5-percent increase per year during 2008-2021.
    Average overall annual scallop revenue for a limited access vessel 
is estimated to increase by 1.3 percent in the 2008 fishing year and by 
6.2 percent in the 2009 fishing year compared to no action. Because 
fishing costs are estimated to decline due to fewer DAS used in the 
access areas and the open areas, the impacts on the net revenue and 
vessel profits will be positive, with a 2.1-percent increase expected 
in fishing year 2008 and a 6-percent increase expected in fishing year 
2009.
    The economic impacts of the adopted measure for the general 
category fleet will be positive because the general category TAC will 
be higher under the adopted alternative compared to the no action 
alternative. As a result, average scallop revenues and profits for 
general category vessels are expected to be higher for the adopted 
alternative compared to no action.
    However, the level of general category TAC will be lower than 
general category scallop landings in recent years, resulting in 
negative short-term economic impacts. These short-term impacts are due 
to measures in Amendment 11 that will establish a limited entry program 
for the general category fishery, thereby reducing general category 
fishing effort and landings. Since Framework 19 will not change 
measures adopted through Amendment 11, the impacts to the general 
category limited entry program are not analyzed here. Section 7.9 of 
the Environmental Impact Statement for Amendment 11 provides a 
comprehensive analysis of the economic impacts of the general category 
limited entry program on small business entities. These analyses 
indicate that, despite the negative impacts in the short-term, the 
medium to long-term economic impacts of the limited entry program are 
expected to be positive for the scallop fishery as a whole.
    The overall economic impacts of Framework 19 general category 
measures are not expected to be significantly different from the 
impacts analyzed in Amendment 11. Amendment 11 analyzed the economic 
impacts by assuming that the general category TAC will be 5 million lb 
(2,2668 mt) in 2008 and 2.5 million lb (1,134 mt) in 2009. Framework 19 
will result in a lower TAC: About 4.3 million lb (1,950 mt) TAC in 2008 
and 2.2 million lb (998 mt) TAC in 2009. Although these amounts exceed 
potential TAC levels under the no action alternative, they are slightly 
less than the landings by the general category vessels in recent years. 
Landings by vessels that had a general category permit before the 
control date and that are expected to fish in 2008 were 4.6 million lb 
(2,087 mt) in 2006. The vessels that are expected to qualify for the 
limited access general category program, and thus fish in 2009, landed 
about 2.4 million lb (1,089 mt). Therefore, short-term economic impacts 
of the general category TAC will be negative on the general category 
fleet to the extent that the overall TAC prevents these vessels from 
landing the amount of scallops they will catch without such a 
constraint. Those distributional impacts were analyzed in Amendment 11. 
However, a limited access general category fishery will have positive 
economic impacts over the medium to long term on the vessels that 
qualify for general category limited access permits and for limited 
access vessels by preventing overfishing of the scallop resource and 
the dissipation of profits by uncontrolled entry and effort into the 
general category fishery.
    Other Framework 19 measures, such as the general category quarterly 
hard TAC, 5-percent access area allocation for general category 
vessels, observer program improvements, a 30-day VMS power down 
provision, NGOM hard TAC, and yellowtail TAC adjustments, are expected 
to provide additional positive impacts by providing vessels the 
opportunity to reduce fishing costs and increase revenues from scallop 
fishing.

Economic Impacts of the Adopted Alternatives and Rejected Alternatives

    In some cases the Council only considered one alternative versus a 
no action alternative if additional alternatives would be outside the 
scope of Framework 19. The following describes all of the alternatives 
considered by the Council.
1. GB Access Area Schedule Revision
    Framework 19 will adjust the GB access area schedule so that the 
NLCA will be open in 2008 and CAII will be open in 2009. The adopted 
action to revise the GB access area schedule is expected to have 
positive economic impacts by providing access to areas with more 
scallop biomass. This will help increase yield, landings, and revenues 
from the fishery both in the short and the long term, benefiting both 
limited access and general category vessels. The only alternative was 
the no action option, which would have provided access in 2008 to CAI 
instead of the NLCA. Due to low biomass, CAI will not likely support a 
fleet-wide trip allocation. Consequently, since both the NLCA and CAII 
have higher scallop concentrations than CAI, the adopted alternative 
will result in higher economic benefits than the no action alternative.
2. DAS Conversion and Yellowtail TAC
    The adopted action to allocate additional open area DAS if an 
access area closes due to the attainment of a scallop yellowtail TAC 
will continue under the no action alternative, but the values will be 
changed to reflect current fishery and resource conditions. The adopted 
DAS conversion rates will be higher than those under no action because 
scallop biomass in the NLCA and CAII is lower than when the no action 
DAS conversion rates were established. This DAS conversion measure 
helps minimize lost revenue that will result from a yellowtail TAC 
closure. Although this measure will have positive economic impacts on 
scallop vessels that lost access area trip(s), they will likely receive 
less revenue from the DAS due to the access area trip to DAS conversion 
rate, which is based on scallop fishing mortality, not trip revenue. 
The conversion rate was established so that scallop mortality from the 
additional DAS will be equivalent to the scallop mortality from an 
access area. Scallops in open areas are generally smaller than scallops 
in access areas. No alternatives, other than maintaining conversion 
rates that are currently in the regulations, were considered. The 
adopted higher DAS conversion rates will result in higher economic 
benefits than no action.
3. HCAA Trip Expiration
    Through FY 2007, ending on February 29, 2008, the FMP has allowed 
scallop vessels to continue fishing in the HCAA under trips that were 
originally allocated for FY 2005. This extension of the authorized 
trips was intended to

[[Page 30800]]

allow vessels to take advantage of additional time to harvest scallops 
under the allocated trips since scallop catch rates had declined in FY 
2005. Under Framework 19, the Council considered whether or not the 
trips should continue to be extended into FY 2008. The adopted no 
action alternative to allow all un-used 2005 HCAA trips to expire on 
February 29, 2008, instead of the rejected alternative of extending 
them to May 31, 2008, could have negative economic impacts on those 
vessels that could not take an economically viable trip to HCAA due to 
the poor resource conditions in this area. But these negative impacts 
are on 2007 fishing year revenues, not projected revenues under 
Framework 19. If landings per unit effort (LPUE) improved in early 
2007, some vessels may have had incentive to take their trips rather 
than let them expire, minimizing these negative impacts. The 
alternative to extend the trip expiration deadline to May 31, 2008, 
could have reduced the negative impacts compared to no action. However, 
extending the duration of Hudson Canyon trips until May 31, 2008, could 
have had negative impacts on future scallop yields resulting in 
negative long-term economic impacts.
4. ETAA and Delmarva Schedule
    The adopted action to provide access to the ETAA in 2008 and 2009 
and Delmarva in 2009 will have positive economic impacts on both 
limited access and general category vessels because this area has more 
scallop biomass compared to areas such as open areas and CAI. The 
procedure to reduce trips will help prevent overfishing, and thus have 
positive impacts on the scallop resource, and on the long term landings 
and revenues of scallop vessels. There are no alternatives under the 
current FMP that would generate higher benefits for scallop vessels. 
The only alternative is the no action, which would allocate fewer ETAA 
trips and zero Delmarva trips.
5. Access Area Crew Limits
    The adopted action will continue to allow a vessel to carry any 
number of crew on an access area trip. No crew limit will give vessels 
the most flexibility, potentially reducing total fishing costs, and 
will therefore have positive economic impacts on scallop vessels. The 
alternative option would have restricted the crew size to eight or nine 
persons. This would potentially reduce scallop mortality and control 
effort, with positive impacts on the scallop resource, landings, and 
revenues over the long term. On the other hand, limiting crew size 
would reduce a vessel's flexibility and increase trip costs. Therefore, 
the economic benefits of this alternative are expected to be small 
compared to the adopted alternative.
6. In-Shell Possession Limit
    The adopted action will prohibit any scallop vessel on an access 
area trip from possessing more than 50 U.S. bu (17.6 hL) of in-shell 
scallops. This prohibition will help reduce scallop discard mortality, 
and therefore result in higher yields, revenues, and economic benefits. 
There are no alternatives that would generate higher benefits for the 
scallop vessels. The only alternative is the no action which would 
continue to allow deckloading and result in lower economic benefits 
compared to the adopted alternative.
7. Research and Observer Set-Asides
    The adopted alternative will continue to set-aside 2 percent of the 
scallop TAC for the research set-aside program and 1 percent of the 
scallop TAC for the industry-funded observer set-aside program. These 
set-asides are expected to have indirect economic benefits for the 
scallop fishery by improving scallop information and data made possible 
by research and the observer program. There are no alternatives that 
will generate higher benefits for scallop vessels.
8. DAS Allocations and Access Areas Trip Allocations
    The adopted open area DAS allocations are expected to prevent 
overfishing in open areas and to have positive economic impacts on 
scallop vessels when combined with controlled access area allocations. 
Framework 19 will implement the following vessel-specific DAS 
allocations: Full-time vessels will be allocated 35 DAS in 2008 and 42 
DAS in 2009; part-time vessels will be allocated 14 DAS in 2008 and 17 
DAS in 2009; and occasional vessels will receive 3 DAS for each year. 
Except for the no action alternatives, other alternatives would result 
in slightly higher revenues and profits compared to the adopted action 
during 2008-2009, but would be offset by lower DAS allocations and 
resulting reductions in revenues in future years as the result of lower 
exploitable scallop biomass. The adopted action will allocate fewer 
open area DAS compared to the no action in both the 2008 and 2009 
fishing years, but it will allocate more trips to access areas. As a 
result, the adopted action will generate higher benefits than the no 
action alternative.
9. General Category Quarterly TAC
    Amendment 11 will establish a limited entry IFQ program for the 
general category scallop fishery scheduled to start in 2009. The 2008 
fishing year will be a transition year as IFQ shares are established. 
The adopted action will distribute the 2008 general category quota 
allocation into quarters to minimize derby-style fishing. This measure 
will have positive economic impacts over the long-term for vessels that 
qualify for the general category limited entry program. Although 
management of the general category fishery by a quarterly hard TAC 
during the transition period to an IFQ program may result in some 
degree of derby-style fishing, the quarterly TAC allocation is intended 
to reduce the extent of derby fishing and lessen the negative economic 
impacts associated with derby fishing. The adopted alternative (Option 
A) will allocate 35 percent (1,056,563 lb, (475.25 mt) of the 2008 
directed general category annual TAC to Quarter 1, 40 percent 
(1,207,750 lb, (547.83 mt)) to Quarter 2, 15 percent (452,813 lb, 
(205.39 mt)) to Quarter 3, and 10 percent (301,875 lb, (136.93 mt)) to 
Quarter 4. Quarters 1 and 2 will be allocated 75 percent of the TAC 
because general category access area trips primarily occur in those 
quarters. Unused TAC from Quarter 1 will roll over to Quarter 3, and 
unused TAC from Quarter 2 will roll over to the fourth quarter, thereby 
ensuring the full benefit of the scallop TAC is realized. There was no 
alternative to the adopted alternative to allocate 10 percent of the 
overall 2008 scallop TAC to the general category fishery. However, 
Option B would have distributed a greater percentage of the quarterly 
10-percent hard TAC to the first and second quarters (85 percent) and 
less (15 percent) to the last two quarters, reducing the derby fishing 
in the first two quarters but increasing it in the last two quarters. 
This option is not expected to have larger positive economic impacts on 
the general category fishery compared to the adopted alternative.
10. General Category Access Area Allocations
    The adopted action to allocate 5 percent of the scallop access area 
TACs in the 2008 and 2009 fishing years is expected to have positive 
economic impacts on the general category vessels compared to the no 
action allocation of 2 percent. In 2008, the general category fishery 
will be allocated 5 percent of the overall NLCA and ETAA TACs, 
resulting in up to 665 trips in the NLCA,

[[Page 30801]]

and up to 2,662 trips in the ETAA. In 2009, the general category 
scallop fishery will be allocated 5 percent of the overall ETAA and 
Delmarva TACs, resulting in up to 1,967 trips and 726, respectively. 
General category vessels will not be allocated any trips in CAII.
    Because access areas are more productive and have higher LPUE than 
open areas, it will take less fishing time to catch the 400-lb (181-kg) 
possession limit. As a result, fishing costs will be lower and profits 
will be higher for trips taken in the access areas when compared to 
open areas. Since most general category vessels do not fish in CAII, 
zero percent allocation for this area will increase open area landings 
and overall revenues of the general category fishery. The alternative 
option would have allocated 2 percent of the 2008 and 5 percent of the 
2009 access area TACs, which would likely have less economic benefits 
for general category vessels.
11. IFQ Cost Recovery
    Framework 19 will implement a cost recovery program that will 
collect 3 percent of the ex-vessel value of scallop product landed to 
recover the costs directly related to management, data collection and 
analysis, and enforcement of the general category IFQ program as 
mandated by the Magnuson-Stevens Act. The adopted alternative estimates 
total scallop landings will be 45.9 million lb (20,820 mt) in 2009. 
With ex-vessel prices estimated from $7.55-$8.30, a 3-percent cost 
recovery will likely range from $519,818 to $571,455 in 2009. Although 
this measure imposes costs on qualifying IFQ vessels, alternatives to 
reduce those costs, either by not implementing a cost recovery program, 
or collecting less than 3 percent, would be contrary to the Magnuson-
Stevens Act, which requires a full cost recovery program to be 
implemented for each IFQ program.
12. NGOM TAC
    Amendment 11 will establish a NGOM Management Area that will be 
managed under a hard quota system. Framework 19 will establish the NGOM 
annual specifications. The adopted NGOM TAC is expected to have 
positive economic impacts for vessels that do not qualify for limited 
access IFQ permit but do qualify for a NGOM permit because it will 
allow them to land scallops in this area during favorable resource 
conditions. The adopted hard TAC of 70,000 lb (32 mt) is expected to 
generate more than $500,000 in scallop revenue for NGOM vessels in 
2008-2009. The Council discussed higher TACs for the NGOM, but none 
were considered consistent with Amendment 11 and therefore were 
rejected and not analyzed.
13. Incidental Scallop Catch Target TAC
    Amendment 11 includes a provision that the FMP should consider the 
level of mortality from incidental catch and remove that from the 
projected total catch before allocations are made to general category 
and limited access fisheries. The adopted action to remove incidental 
scallop catch before making allocations to limited access and directed 
general category vessels will ensure F targets are not exceeded, and 
thus will have positive impacts on the resource, scallop yield, and on 
the revenues and profits of scallop vessels. Framework 19 will 
establish the incidental catch target TAC for the 2008 and 2009 fishing 
years. The target TAC will be established at 50,000 lb (22.68 mt) per 
year in 2008 and 2009. This measure is based on the best available 
estimate of incidental catch and, therefore, no alternatives were 
considered.
14. Overfishing Definition Adjustment
    The Council recommended a new overfishing definition based on 
results from the recent scallop stock assessment (SAW 45) which used a 
new model to characterize the scallop resource, including a new biomass 
target and threshold, as well as a new F threshold. The adopted action 
to adjust the overfishing definition will have positive impacts on the 
scallop resource, scallop landings, revenues, and profits of scallop 
vessels over the long term by more accurately defining the biomass 
reference points and appropriate F threshold based on the biomass 
reference points. Maintaining the F target at the precautionary level 
of 0.20 will also reduce the risk of localized overfishing in open 
areas. The Council also considered maintaining the current overfishing 
definition but, for the reasons stated, the new overfishing definition 
will provide greater benefits to the fishery. The alternative that 
would increase the F target is less precautionary. Although it would 
increase landings and economic benefits over the short term, it could 
result in overfishing and lower long-term economic benefits.
15. Observer Program Improvements
    Framework 19 includes several measures that will improve oversight 
and administration of the scallop observer program. Measures include: 
Greater oversight by NNMFS/NEFOP of observer availability; observer 
provider materials and contracts; closer correlation between service 
provider fees and observer set-aside compensation rates; adjusted 
general category access area trip notification requirements; and 
observer notification and observer waiver requirements, among others. 
The adopted action will have positive economic impacts by improving the 
administration and reducing the cost burden of the observer program on 
scallop vessels by improving observer program efficiency and by making 
provider fees more commensurate with observer set-aside compensation 
rates. The no action alternatives will not include observer program 
improvements, and therefore, will not facilitate the effectiveness and 
efficiency of the industry-funded observer program.
16. HCAA Rotational Management Area
    The adopted action will establish the HCAA as a rotational 
management area and close it for at least the 2008 and 2009 fishing 
years to protect young scallops. This is expected to have positive 
economic impacts over the long term by reducing mortality and 
increasing yield from this area. As a rotational closed area, the HCAA 
is expected to provide for increased economic benefits to the scallop 
industry, consistent with the area rotation program. The foundation of 
the area rotation program is to increase yield from the scallop 
resource and thereby increase overall benefits. Two different boundary 
alternatives for HCAA were considered but not selected by the Council. 
These alternative closures would have slightly increased the revenues 
and economic benefits for the scallop vessels compared to the adopted 
HCAA closure boundaries, but would allocate fewer open area DAS in the 
2008 fishing year.
17. 30-Day VMS Power Down Provision
    The adopted action to implement a 30-day VMS power down provision 
will reduce the burden on vessel owners to maintain a transmitting VMS 
on their vessel for long periods when it is not fishing. This provision 
will have some positive economic impacts by reducing vessel operation 
costs. There are no other alternatives other than no action which does 
not allow vessels to power down the VMS unit.

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

[[Page 30802]]

the rule, and shall designate such publications as ``small entity 
compliance guides.'' The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rulemaking process, a small entity compliance guide was 
prepared. The guide will be sent to all holders of permits issued for 
the Atlantic scallop fishery. In addition, copies of this final rule 
and guide (i.e., permit holder letter) are available from the Regional 
Administrator and are also available from NMFS, Northeast Region (see 
ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: May 21, 2008.
Samuel D. Rauch III,
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. Effective July 1, 2008, in Sec.  648.4 paragraphs (a)(2)(ii)(D)(2), 
(a)(2)(ii)(E), (a)(2)(ii)(H), (a)(2)(ii)(I)(3) are revised to read as 
follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (2) * * *
    (ii) * * *
    (D) * * *
    (2) Landings criterion. A vessel must have landed at least 1,000 lb 
(454 kg) of shucked scallops in any one year when the vessel also held 
a general category scallop permit as specified in paragraph 
(a)(2)(ii)(D)(1) of this section. To qualify, scallop landings in the 
2004 fishing year must have occurred on or before November 1, 2004. 
NMFS dealer data shall be used to make the initial determination of 
vessel eligibility. If a dealer reported more than 400 lb (181.4 kg) of 
scallops on a trip, only 400 lb (181.4 kg) will be credited toward the 
landings criteria. For dealer reports that indicate that the landings 
were bushels of in-shell scallops, a conversion of 8 lb (3.63 kg) of 
scallop meats per bushel will be used to calculate meat-weight, up to 
the maximum of 400 lb (181.4 kg) per trip. For dealer reports that 
indicate that the landings were reported in pounds of in-shell 
scallops, the weight shall be converted to meat-weight using the 
formula of one pound (0.45 kg) of scallop meats for 8.33 lb (3.78 kg) 
of in-shell scallops, up to the maximum of 400 lb (181.4 kg) per trip, 
for qualification purposes.
    (E) Contribution factor for determining a vessel's IFQ. An eligible 
IFQ scallop vessel's best year of scallop landings during the 
qualification period of March 1, 2000, through November 1, 2004, as 
specified in Sec.  648.53(h)(2)(ii)(A), and the vessel's number of 
years active, as specified in Sec.  648.53(h)(2)(ii)(B), shall be used 
to calculate a vessel's contribution factor, as specified in Sec.  
648.53(h)(2)(ii)(C). A vessel owner that has applied for an IFQ scallop 
permit will be notified of the vessel's contribution factor at the time 
of issuance of the IFQ scallop permit, consistent with confidentiality 
restrictions of the Magnuson-Stevens Act specified at 16 U.S.C. 1881a. 
A vessel owner may appeal NMFS's determination of the IFQ scallop 
vessel's contribution factor by complying with the appeal process as 
specified in paragraph (a)(2)(ii)(O) of this section.
* * * * *
    (H) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section. Applications for a LAGC permit described in paragraph 
(a)(2)(ii) of this section must be postmarked no later than August 30, 
2008. Applications for LAGC permits that are not postmarked on or 
before August 30, 2008, may be denied and returned to the sender with a 
letter explaining the denial. Such denials may not be appealed and 
shall be the final decision of the Department of Commerce. If NMFS 
determines that the vessel owner has failed to pay a cost recovery fee 
in accordance with the cost recovery requirements specified at Sec.  
648.53(h)(4)(ii), the IFQ permit shall not be renewed.
    (I) * * *
    (3) Notwithstanding paragraph (a)(1)(i)(L) of this section, a 
vessel owner applying for a LAGC permit who sold or transferred a 
vessel with non-scallop limited access permits, as specified in 
paragraph (a)(1)(i)(D) of this section, and retained only the general 
category scallop history of such vessel as specified in paragraph 
(a)(1)(i)(D) of this section, before July 1, 2008, may use the general 
category scallop history to qualify a different vessel for the initial 
IFQ scallop permit, regardless of whether the history from the sold or 
transferred vessel was used to qualify another vessel for another 
limited access permit.

0
3. In Sec.  648.9, paragraph (c)(2)(i)(B) is revised to read as 
follows:


Sec.  648.9  VMS requirements.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (B) For vessels fishing with a valid NE multispecies limited access 
permit, a valid surfclam and ocean quahog permit specified at Sec.  
648.4(a)(4), or an Atlantic sea scallop permit, the vessel owner signs 
out of the VMS program for a minimum period of 30 consecutive days by 
obtaining a valid letter of exemption pursuant to paragraph (c)(2)(ii) 
of this section, the vessel does not engage in any fisheries until the 
VMS unit is turned back on, and the vessel complies with all conditions 
and requirements of said letter; or
* * * * *

0
4. In Sec.  648.11, paragraphs (g)(2), (g)(3), (g)(4)(i), (g)(4)(ii), 
(g)(5), (h)(5)(i), (h)(5)(iv), (h)(5)(vi), (h)(5)(vii)(A), and 
(h)(5)(vii)(E) are revised, and paragraphs (h)(5)(vii)(G) through 
(h)(5)(vii)(J) are added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (g) * * *
    (2) Vessel notification procedures--(i) Limited access vessels. 
Limited access vessel owners, operators, or managers shall notify NMFS/
NEFOP by telephone not more than 10 days prior to the beginning of any 
scallop trip of the time, port of departure, open area or specific Sea 
Scallop Access Area to be fished, and whether fishing as a scallop 
dredge, scallop trawl, or general category vessel.
    (ii) General category vessels. General category vessel owners, 
operators, or managers must notify the NMFS/NEFOP by telephone by 0001 
hr of the Thursday preceding the week (Sunday through Saturday) that 
they intend to start a scallop trip in an access area. If selected, up 
to two Sea Scallop Access Area trips that start during the specified 
week (Sunday through Saturday) can be selected to be covered by an 
observer. NMFS/NEFOP must be notified by the owner, operator, or vessel 
manager of any trip plan changes at least 48 hr prior to vessel 
departure.
    (3) Selection of scallop trips for observer coverage. Based on 
predetermined coverage levels for various permit categories and areas 
of the scallop fishery that are provided by NMFS in writing to all 
observer service providers approved pursuant to paragraph (h) of this 
section, NMFS shall notify the vessel owner, operator, or vessel 
manager whether the vessel

[[Page 30803]]

must carry an observer, or if a waiver has been granted, for the 
specified scallop trip, within 24 hr of the vessel owner's, operator's, 
or vessel manager's notification of the prospective scallop trip, as 
specified in paragraph (g)(2) of this section. Any request to carry an 
observer may be waived by NMFS. All waivers for observer coverage shall 
be issued to the vessel by VMS so as to have on-board verification of 
the waiver. A vessel may not fish in an area with an observer waiver 
confirmation number that does not match the scallop trip plan that was 
called in to NMFS. Confirmation numbers for trip notification calls are 
only valid for 48 hr from the intended sail date; and
    (4) * * *
    (i) An owner of a scallop vessel required to carry an observer 
under paragraph (g)(3) of this section must arrange for carrying an 
observer certified through the observer training class operated by the 
NMFS/NEFOP from an observer service provider approved by NMFS under 
paragraph (h) of this section. The owner, operator, or vessel manager 
of a vessel selected to carry an observer must contact the observer 
service provider and must provide at least 48-hr notice in advance of 
the fishing trip for the provider to arrange for observer deployment 
for the specified trip. The observer service provider will notify the 
vessel owner, operator, or manager within 18 hr whether they have an 
available observer. A list of approved observer service providers shall 
be posted on the NMFS/NEFOP Web site at http://www.nefsc.noaa.gov/femad/fsb/. The observer service provider may take up to 48 hr to 
arrange for observer deployment for the specified scallop trip.
    (ii) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 48 hr of the advance notification 
to the provider due to the unavailability of an observer may request a 
waiver from NMFS/NEFOP from the requirement for observer coverage for 
that trip, but only if the owner, operator, or vessel manager has 
contacted all of the available observer service providers to secure 
observer coverage and no observer is available. NMFS/NEFOP shall issue 
such a waiver within 24 hr, if the conditions of this paragraph 
(g)(4)(ii) are met. A vessel may not begin the trip without being 
issued a waiver.
    (5) Owners of scallop vessels shall be responsible for paying the 
cost of the observer for all scallop trips on which an observer is 
carried onboard the vessel, 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 or reduced DAS accrual 
rate. The owners of vessels that carry an observer may be compensated 
with a reduced DAS accrual rate for open area scallop trips or 
additional scallop catch per day in Sea Scallop Access Areas in order 
to help defray the cost of the observer, under the program specified in 
Sec. Sec.  648.53 and 648.60.
    (i) Observer service providers shall establish the daily rate for 
observer coverage on a scallop vessel on an Access Area trip or open 
area DAS scallop trip consistent with paragraphs (g)(5)(i)(A) and (B), 
respectively, of this section.
    (A) Access Area trips. For purposes of determining the daily rate 
for an observed scallop trip in a Sea Scallop Access Area, a service 
provider shall charge a vessel owner from when an observer boards a 
vessel until they disembark (dock to dock), where ``day'' is defined as 
a 24-hr period, or any portion of a 24-hr period, regardless of the 
calendar day. For example, if a vessel with an observer departs on the 
July 1st at 10 pm and lands on July 3rd at 1 am, the time at sea equals 
27 hours, which would equate to 2 ``days.''
    (B) Open area scallop trips. For purposes of determining the daily 
rate for an observed scallop trip for open area DAS trips, a service 
provider shall charge dock to dock where ``day'' is defined as a 24-
hour period, and portions of the other days would be pro-rated at an 
hourly charge (taking the daily rate divided by 24). For example, if a 
vessel with an observer departs on the July 1st at 10 pm and lands on 
July 3rd at 1 am, the time at sea equals 27 hours, so the provider 
would charge 1 day and 3 hours.
    (ii) NMFS shall determine any reduced DAS accrual rate and the 
amount of additional pounds of scallops per day fished in a Sea Scallop 
Access Area for the applicable fishing year based on the economic 
conditions of the scallop fishery, as determined by best available 
information. Vessel owners and observer service providers shall be 
notified through the Small Entity Compliance Guide of any DAS accrual 
rate changes and any changes in additional pounds of scallops 
determined by the Regional Administrator to be necessary. Vessel owners 
and observer providers shall be notified by NMFS of any adjustments.
* * * * *
    (h) * * *
    (5) * * *
    (i) An observer service provider must provide observers certified 
by NMFS/NEFOP pursuant to paragraph (i) of this section for deployment 
in the scallop fishery when contacted and contracted by the owner, 
operator, or vessel manager of a vessel fishing in the scallop fishery, 
unless the observer service provider does not have an available 
observer within 48 hr of receiving a request for an observer from a 
vessel owner, operator, and/or manager, or refuses to deploy an 
observer on a requesting vessel for any of the reasons specified at 
paragraph (h)(5)(viii) of this section. An observer's first three 
deployments and the resulting data shall be immediately edited and 
approved after each trip, by NMFS/NEFOP, prior to any further 
deployments by that observer. If data quality is considered acceptable, 
the observer would be certified.
* * * * *
    (iv) Observer deployment limitations. Unless alternative 
arrangements are approved by NMFS, an observer provider must not deploy 
any observer on the same vessel for more than two consecutive multi-day 
trips, and not more than twice in any given month for multi-day 
deployments.
* * * * *
    (vi) Observer training requirements. The following information must 
be submitted to NMFS/NEFOP at least 7 days prior to the beginning of 
the proposed training class: A list of observer candidates; observer 
candidate resumes; and a statement signed by the candidate, under 
penalty of perjury, that discloses the candidate's criminal 
convictions, if any. All observer trainees must complete a basic 
cardiopulmonary resuscitation/first aid course prior to the end of a 
NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a 
candidate for training if the candidate does not meet the minimum 
qualification requirements as outlined by NMFS/NEFOP Minimum 
Eligibility Standards for observers as described on the NMFS/NEFOP Web 
site.
    (vii) * * *
    (A) Observer deployment reports. The observer service provider must 
report to NMFS/NEFOP when, where, to whom, and to what fishery (open or 
closed area) an observer has been deployed, within 24 hr of the 
observer's departure. The observer service provider must ensure that 
the observer reports back to NMFS its Observer Contract (OBSCON) data, 
as described in the certified observer training, within 24 hr of 
landing. OBSCON data are to be submitted electronically or by other 
means as specified by NMFS. The observer service provider shall provide 
the raw (unedited) data collected by the

[[Page 30804]]

observer to NMFS within 72 hr, which should be within 4 business days 
of the trip landing.
* * * * *
    (E) Observer availability report. The observer service provider 
must report to NMFS any occurrence of inability to respond to an 
industry request for observer coverage due to the lack of available 
observers by 5 p.m., Eastern Standard Time, of any day on which the 
provider is unable to respond to an industry request for observer 
coverage.
* * * * *
    (G) Observer status report. Providers must provide NMFS/NEFOP with 
an updated list of contact information for all observers that includes 
the observer identification number, observer's name, mailing address, 
e-mail address, phone numbers, homeports or fisheries/trip types 
assigned, and must include whether or not the observer is ``in 
service,'' indicating when the observer has requested leave and/or is 
not currently working for the industry funded program.
    (H) Providers must submit to NMFS/NEFOP, if requested, a copy of 
each type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and those entities requiring observer 
services.
    (I) Providers must submit to NMFS/NEFOP, if requested, a copy of 
each type of signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the observer provider and specific observers.
    (J) Providers must submit to NMFS/NEFOP, if requested, copies of 
any information developed and used by the observer providers 
distributed to vessels, such as informational pamphlets, payment 
notification, description of observer duties, etc.
* * * * *

0
5. In Sec.  648.14, as revised on April 14, 2008 (73 FR 20120) 
effective June 1, 2008, is further amended, effective June 1, 2008, by 
revising paragraphs (h)(27) and (i)(2)(iv). Paragraph (h)(29) is 
revised and is effective June 1, 2008, and paragraphs (i)(1)(xx), and 
(i)(2)(xvii) are added, effective July 1, 2008. All revisions and 
additions read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (h) * * *
    (27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of a Sea Scallop 
Access Area by a vessel that is declared into the Area Access Program 
as specified in Sec.  648.60.
* * * * *
    (29) Fish for, possess, or land scallops in or from any Sea Scallop 
Access Area without an observer on board, unless the vessel owner, 
operator, or manager has received a waiver to carry an observer for the 
specified trip and area fished.
    (i) * * *
    (1) * * *
    (xx) Fish for, possess, or land scallops in or from any Sea Scallop 
Access Area without an observer on board, unless the vessel owner, 
operator, or manager has received a waiver to carry an observer for the 
specified trip and area fished.
    (2) * * *
    (iv) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries a Sea Scallop 
Access Area by a vessel that is declared into the Area Access Program 
as specified in Sec.  648.60.
* * * * *
    (xvii) Fail to comply with cost recovery requirements as specified 
under Sec.  648.53(g)(4)
* * * * *

0
6. In Sec.  648.53, as revised on April 14, 2008 (73 FR 20123), 
effective June 1, 2008, is further amended, effective June 1, 2008, by 
revising paragraphs (a)(1) through (7), (a)(8)(i) and (ii), and (a)(9), 
(b)(5)(i), (b)(5)(ii), (b)(6), (g)(1), (g)(2), (h)(2)(ii) introductory 
text, and (h)(4), revising, the table in paragraph (b)(4) introductory 
text, adding and reserving paragraph (b)(4)(ii), removing and reserving 
paragraph (b)(5)(iii), and adding paragraph (b)(4)(i) to read as 
follows:


Sec.  648.53  Total allowable catch, DAS allocations, and Individual 
Fishing Quotas.

    (a) Target total allowable catch (TAC) for scallop fishery. The 
annual target total TAC for the scallop fishery shall be established 
through the framework adjustment process specified in Sec.  648.55. The 
annual target TAC shall include the TAC for all scallop vessels fishing 
in open areas and Sea Scallop Access Areas as specified in this 
section, the observer and research set-aside TACs specified in 
paragraphs (g)(1) and (2) of this section, and in Sec.  648.60(d) and 
(e). The annual target TAC for the scallop fishery shall exclude the 
TAC established for the Northern Gulf of Maine Scallop Management Area 
as specified in Sec.  648.62, and the total estimated incidental catch 
of scallops, as specified at Sec.  648.53(a)(9), by vessels issued 
incidental catch general category scallop permits, and limited access 
and limited access general category scallop vessels not declared into 
the scallop fishery. The annual target TAC for open and Sea Scallop 
Access Areas shall each be divided between limited access vessels, 
limited access vessels that are fishing under a limited access general 
category permit, and limited access general category vessels as 
specified in paragraphs (a)(3) through (a)(6) of this section. In the 
event that a framework adjustment does not implement an annual TAC for 
a fishing or part of a fishing year, the preceding fishing year's 
scallop regulations shall apply.
    (1) 2008 fishing year target TAC for scallop fishery. 20,140 mt, 90 
percent of which will be allocated to the limited access fishery, and 
10 percent of which will be allocated to the general category fishery.
    (2) 2009 fishing year target TAC for scallop fishery. 20,820 mt, 
94.5 percent of which will be allocated to the limited access fishery, 
5 percent of which will be allocated to IFQ scallop vessels, and 0.5 
percent will be issued to limited access vessels also issued IFQ 
scallop permits and that are fishing under general category 
regulations. If the IFQ program is delayed beyond March 1, 2009, as 
specified at paragraph (a)(7) of this section, 90 percent of the TAC 
will be allocated to the limited access fishery, and 10 percent of the 
TAC will be allocated to the general category fishery.
    (3) Access area TAC. The TAC for each Access Area shall be 
determined through the framework adjustment process described in Sec.  
648.55 and specified in Sec.  648.59. The TAC set-asides for observer 
coverage and research shall be deducted from the TAC in each Access 
Area prior to assigning the target TAC and trip allocations for limited 
access scallop vessels, and prior to allocating TAC to limited access 
general category vessels. The percentage of the TAC for each access 
area allocated to limited access vessels, limited access general 
category vessels, and limited access vessels fishing under general 
category permits shall be specified in accordance with Sec.  648.60 
through the framework adjustment process specified in Sec.  648.55.
    (4) Open area target TAC for limited access vessels. The open area 
TAC specified in this paragraph (a)(4) excludes the open area DAS set-
aside specified in (g)(1) and (2) of this section, the access area TACs 
specified in Sec.  648.59, and access area set-asides specified in 
Sec.  648.60(d) and (e).
    (i) 2008 fishing year. For the 2008 fishing year, the target TAC 
for limited

[[Page 30805]]

access vessels fishing under the scallop DAS program specified in this 
section shall be 6,274 mt.
    (ii) 2009 fishing year. For the 2009 fishing year, the target TAC 
for limited access vessels fishing under the scallop DAS program 
specified in this section shall be 7,458 mt., unless the implementation 
of the IFQ program is delayed beyond March 1, 2009, as specified in 
paragraph (a)(7) of this section.
    (5) Open area TAC for IFQ scallop vessels. The open area TAC 
specified in this paragraph (a)(5) excludes the access area TACs 
specified in Sec.  648.59, and access area set-asides specified in 
Sec.  648.60(d) and (e).
    (i) 2008 fishing year. For the 2008 fishing year, IFQ scallop 
vessels, and limited access scallop vessels that are fishing under an 
IFQ scallop permit outside of the scallop DAS and Area Access programs, 
shall be allocated 1,369 mt.
    (ii) 2009 fishing year and beyond for IFQ scallop vessels without a 
limited access scallop permit. For the 2009 fishing year, unless the 
implementation of the IFQ program is delayed beyond March 1, 2009, as 
specified in paragraph (a)(7) of this section, the TAC for IFQ scallop 
vessels without a limited access scallop permit shall be 536 mt.
    (iii) 2009 fishing year and beyond for IFQ scallop vessels with a 
limited access scallop permit. For the 2009 fishing year, unless the 
IFQ program is delayed beyond March 1, 2009, as specified in paragraph 
(a)(7) of this section, limited access scallop vessels that are fishing 
under an IFQ scallop permit outside of the scallop DAS and Area Access 
programs shall be allocated 0.5 percent of the annual target TAC 
specified in accordance with this paragraph (a) minus the TAC for all 
access areas specified in accordance with paragraph (a)(3) of this 
section. If the IFQ program implementation is delayed beyond March 1, 
2009, the allocation of TAC to IFQ scallop vessels is specified in 
paragraph (a)(7) of this section.
    (6) Northern Gulf of Maine Scallop Fishery. The TAC for the 
Northern Gulf of Maine Scallop Fishery shall be specified in accordance 
with Sec.  648.62, through the framework adjustment process specified 
in Sec.  648.55. The Northern Gulf of Maine Scallop Fishery TAC is 
specified in Sec.  648.62(b)(1).
    (7) Delay of the IFQ program. If the IFQ program implementation is 
delayed beyond March 1, 2009, the quarterly fleetwide TAC will remain 
in effect. Under such a scenario, the overall IFQ fishery allocation of 
4,551,700 lb (2,065 mt) will be distributed as follows: Quarter 1--
1,593,095 lb (723 mt); Quarter 2--1,820,680 lb (826 mt), Quarter 3--
682,755 lb (310 mt), Quarter 4--455,170 lb (206 mt). If the Regional 
Administrator determines that the IFQ program cannot be implemented by 
March 1, 2009, NMFS shall inform all scallop vessel owners that the IFQ 
program shall not take effect.
    (8) Distribution of transition period TAC--(i) Allocation. For the 
2008 fishing year, and subsequent fishing years until the IFQ program 
is implemented as specified in paragraph (a)(7) of this section, the 
TAC for IFQ scallop vessels shall be allocated as specified in 
paragraphs (a)(5) of this section into quarterly periods. The 
percentage allocations for each period allocated to the IFQ scallop 
vessels, including limited access vessels fishing under an IFQ scallop 
permit and vessels under appeal for an IFQ scallop permit pursuant to 
Sec.  648.4(a)(2)(ii) shall be specified in the framework adjustment 
process as specified in Sec.  648.55 and are specified in the following 
table:

------------------------------------------------------------------------
               Quarter                 Percent             TAC
------------------------------------------------------------------------
I. March-May.........................       35  1,523,375 lb (475.25
                                                 mt).
II. June-August......................       40  1,741,000 lb (547.83
                                                 mt).
III. September-November..............       15  652,875 lb (205.39 mt).
IV. December-February................       10  435,250 lb (136.93 mt).
------------------------------------------------------------------------

    (ii) Deductions of landings. All landings by general category 
scallop vessels prior to July 1, 2008, and all landings by IFQ scallop 
vessels and limited access vessels fishing under an IFQ scallop permit 
after June 30, 2008, shall be deducted from the TAC allocations 
specified in the table in paragraph (a)(8)(i) of this section.
* * * * *
    (9) Scallop incidental catch target TAC. The 2008 and 2009 
incidental catch target TACs for vessels with incidental catch scallop 
permits are 50,000 lb (22,680 kg) per year.
    (b) * * *
    (4) * * *

------------------------------------------------------------------------
                                                                    \1\
                      DAS category                         2008    2009
------------------------------------------------------------------------
Full-time...............................................      35      42
Part-time...............................................      14      17
Occasional..............................................       3      3
------------------------------------------------------------------------
\1\ If the IFQ program implementation is delayed beyond March 1, 2009,
  the 2009 DAS allocations will be: Full-time--37; part-time--15,
  occasional--3.

    (i) Limited access vessels that lawfully use more open area DAS in 
the 2008 fishing year than specified in this section shall have the DAS 
used in excess of the 2008 allocation specified in this paragraph 
(b)(4) deducted from their 2009 open area DAS allocation specified in 
paragraph (b)(2) of this section.
    (ii) [Reserved]
    (5) * * *
    (i) For each remaining complete trip in the Nantucket Lightship 
Access Area, a full-time and part-time vessel may fish an additional 
7.7 DAS in open areas and an occasional vessel may fish an additional 
3.2 DAS during the same fishing year. A complete trip is deemed to be a 
trip that is not subject to a reduced possession limit under the broken 
trip provision in Sec.  648.60(c). If a vessel has unused broken trip 
compensation trip(s), as specified in Sec.  648.60(c), when the 
Nantucket Lightship Access Area closes due to the yellowtail flounder 
bycatch TAC, it will be issued additional DAS in proportion to the 
unharvested possession limit. For example, if a full-time vessel had an 
unused 9,000-lb (4,082-kg) Nantucket Lightship Access Area compensation 
trip (half of the possession limit) at the time of a Nantucket 
Lightship Access Area yellowtail flounder bycatch TAC closure, the 
vessel will be allocated 3.85 DAS (half of 7.7 DAS).
    (ii) For each remaining complete trip in Closed Area II, a full-
time and part-time vessel may fish an additional 7.9 DAS in open areas 
and an occasional vessel may fish an additional 3.3 DAS during the same 
fishing year. A complete trip is deemed to be a trip that is not 
subject to a reduced possession limit under the broken trip provision 
in Sec.  648.60(c). If a vessel has unused Closed Area II broken trip 
compensation trip(s), as specified in Sec.  648.60(c), when Closed Area 
II closes due to the yellowtail flounder bycatch TAC, it will be issued 
additional DAS in proportion to the unharvested possession limit. For 
example, if a full-time vessel had an unused 9,000 lb (4,082 kg) Closed 
Area II compensation trip (half of the possession limit) at the time of 
a Closed Area II yellowtail flounder bycatch TAC closure, the vessel 
will be allocated 3.95 DAS (half of 7.9 DAS).
    (6) 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.
* * * * *
    (g) * * *
    (1) DAS set-aside for observer coverage. As specified in paragraph 
(b)(2) of this section, to help defray the cost of carrying an 
observer, 1 percent of the total DAS shall be set-aside from the total 
DAS available for allocation, to

[[Page 30806]]

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 is 118 DAS for the 2008 fishing year, and 141 DAS for 
the 2009 fishing year. If the IFQ program implementation is delayed 
beyond March 1, 2009, the 2009 DAS set-aside for observer coverage will 
be 124 DAS. Vessels carrying an observer shall 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 shall be charged 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 shall be deducted from the observer DAS set-
aside amount in the applicable fishing year. Utilization of the DAS 
set-aside shall be on a first-come, first-served basis. When the DAS 
set-aside for observer coverage has been utilized, vessel owners shall 
be notified that no additional DAS remain available to offset the cost 
of carrying observers. The obligation to carry and pay for an observer 
shall not be waived due to the absence of set-aside DAS allocations.
    (2) DAS set-aside for research. As specified in paragraph (b)(2) 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 is 235 DAS for the 2008 fishing year, and 282 DAS for the 
2009 fishing year. If the IFQ program implementation is delayed beyond 
March 1, 2009, the 2009 DAS set-aside for research shall be 241 DAS. 
Vessels participating in approved research shall be authorized to use 
additional DAS in the applicable fishing year. Notification of 
allocated additional DAS shall be provided through a letter of 
authorization, or Exempted Fishing Permit issued by NMFS, or shall be 
added to a participating vessel's open area DAS allocation, as 
appropriate.
* * * * *
    (h) * * *
    (2) * * *
    (ii) Contribution factor. An IFQ scallop vessel's contribution 
factor is calculated using the best year, years active, and index 
factor as specified in paragraphs (h)(2)(ii)(A) through (C) of this 
section. A vessel's contribution factor shall be provided to the owner 
of a qualified limited access general category vessel following initial 
application for an IFQ scallop permit as specified in Sec.  
648.4(a)(2)(ii)(E), consistent with confidentiality restrictions of the 
Magnuson-Stevens Act specified at 16 U.S.C. 1881a.
* * * * *
    (4) IFQ cost recovery. A fee, not to exceed 3 percent of the ex-
vessel value of IFQ fish harvested, shall be collected to recover the 
costs associated with management, data collection, and enforcement of 
the IFQ program. The owner of a vessel issued an IFQ scallop permit and 
subject to the IFQ program specified in this paragraph (h), shall be 
responsible for paying the fee as specified by NMFS in this paragraph 
(h)(4). An IFQ scallop vessel shall incur a cost recovery fee liability 
for every landing of IFQ scallops. The IFQ scallop permit holder shall 
be responsible for collecting his/her own fee for all of his/her IFQ 
scallop landings, and shall be responsible for submitting this payment 
to NMFS once per year.
    (i) Cost recovery fee determination. The ex-vessel value of 
scallops shall be determined as an average of the ex-vessel value, as 
determined by Northeast Federal dealer reports, of all IFQ scallops 
landed between March 1 and September 30 of the initial year of the IFQ 
scallop program, and from October 1 through September 30 of each year 
thereafter.
    (ii) Fee payment procedure. On or about October 31 of each year, 
NMFS shall mail a cost recovery bill to each IFQ scallop permit holder 
for the previous cost recovery period. An IFQ scallop permit holder who 
has incurred a fee must pay the fee to NMFS by January 1 of each year. 
Cost recovery payments shall be made electronically via the Federal web 
portal, www.pay.gov, or other Internet sites as designated by the 
Regional Administrator. Instructions for electronic payment shall be 
available on both the payment Web site and the paper bill. Payment 
options shall include payment via a credit card, as specified in the 
cost recovery bill, or via direct automated clearing house (ACH) 
withdrawal from a designated checking account. Payment by check may be 
authorized by NMFS if it has determined that electronic payment is not 
possible (for example, if the geographical area of an individual(s) is 
affected by catastrophic conditions).
    (iii) Payment compliance. An IFQ scallop permit holder that has 
incurred an IFQ cost recovery fee must pay the fee to NMFS by January 1 
of each year. If the cost recovery payment, as determined by NMFS, is 
not made by January 1, NMFS may deny the renewal of the IFQ scallop 
permit until full payment is received. If, upon preliminary review of 
the accuracy and completeness of a fee payment, NMFS determines the IFQ 
scallop permit holder has not paid the full amount due, NMFS shall 
notify the IFQ scallop permit holder by letter. NMFS shall explain the 
discrepancy and provide the IFQ scallop permit holder 30 days to either 
pay the amount specified by NMFS or to provide evidence that the amount 
paid was correct. If the IFQ scallop permit holder submits evidence in 
support of his/her payment, NMFS shall determine if there is any 
remaining disagreement as to the appropriate IFQ fee, and prepare a 
Final Administrative Determination (FAD). The FAD shall set out the 
facts, discuss those facts within the context of the relevant agency 
policies and regulations, and make a determination as to the 
appropriate disposition of the matter. A FAD shall be the final agency 
action, and, if the FAD determines that the IFQ scallop permit holder 
is out of compliance, the FAD shall require payment within 30 days. If 
a FAD is not issued until after the start of the fishing year, the IFQ 
scallop permit holder may be authorized to fish temporarily by the 
Regional Administrator until the FAD is issued, at which point the 
permit holder shall have 30 days to comply with the terms of the FAD or 
the IFQ scallop permit shall not be issued until such terms are met. If 
NMFS determines that the IFQ scallop permit holder owes additional fees 
for the previous cost recovery period, and the IFQ scallop permit has 
already been renewed, NMFS shall issue a FAD, at which point the permit 
holder shall have 30 days to comply with the terms of the FAD or NMFS 
may withdraw the issuance of the IFQ scallop permit until such terms 
are met. If such payment is not received within 30 days of issuance of 
the FAD, NMFS shall refer the matter to the appropriate authorities 
within the U.S. Department of the Treasury for purposes of collection, 
and no IFQ permit held by the permit holder may be renewed until the 
terms of the FAD are met. If NMFS determines that the conditions of the 
FAD have been met, the IFQ permit holder may renew the IFQ scallop 
permit(s). If NMFS does not receive full payment prior to the end of 
the fishing year, the IFQ scallop permit shall be considered 
voluntarily abandoned, pursuant to Sec.  648.4(a)(2)(ii)(K), unless

[[Page 30807]]

otherwise determined by the Regional Administrator.
* * * * *

0
7. In Sec.  648.58, paragraph (a) is added and paragraph (b) is revised 
to read as follows and paragraphs (e) through (h) are removed.


Sec.  648.58  Rotational Closed Areas.

    (a) Hudson Canyon Closed Area. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Hudson Canyon 
Closed Area. No vessel may possess scallops in the Hudson Canyon Closed 
Area, unless such vessel is only transiting the area as provided in 
paragraph (c) of this section. The Hudson Canyon Closed Area is defined 
by straight lines connecting the following points in the order stated 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request):

------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
H1.............................  39[deg]30' N.        73[deg]10' W.
H2.............................  39[deg]30' N.        72[deg]30' W.
H3.............................  38[deg]30' N.        73[deg]30' W.
H4.............................  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.
------------------------------------------------------------------------

    (b) Delmarva Closed Area. No vessel may fish for scallops in, or 
possess or land scallops from, the area known as the Delmarva Closed 
Area. No vessel may possess scallops in the Delmarva Closed Area, 
unless such vessel is only transiting the area as provided in paragraph 
(b) of this section. The Delmarva Closed Area is defined by straight 
lines connecting the following points in the order stated (copies of a 
chart depicting this area are available from the Regional Administrator 
upon request):

------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
DMV1...........................  38[deg]10[min] N.    74[deg]50[min] W.
DMV2...........................  38[deg]10[min] N.    74[deg]00[min] W.
DMV3...........................  37[deg]15[min] N.    74[deg]00[min] W.
DMV4...........................  37[deg]15[min] N.    74[deg]50[min] W.
DMV1...........................  38[deg]10[min] N.    74[deg]50[min] W.
------------------------------------------------------------------------

* * * * *
0
8. In Sec.  648.59, paragraph (e)(3) is removed and reserved, and 
paragraph (a) is revised, effective June 1, 2008. Section 648.59 as 
revised on April 14, 2008 (73 FR 20129) effective June 1, 2008, is 
further amended, effective June 1, 2008, by revising paragraphs 
(b)(5)(i), (b)(5)(ii), (c)(5)(i), (c)(5)(ii), (d)(5)(i), (d)(5)(ii), 
(e)(4)(i), (e)(4)(ii). The revisions read as follows.


Sec.  648.59  Sea Scallop Access Areas.

    (a) Delmarva Sea Scallop Access Area. (1) From March 1, 2009, 
through February 28, 2010, a vessel issued a scallop permit may fish 
for, possess, or land scallops in or from the area known as the 
Delmarva 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 Delmarva 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
------------------------------------------------------------------------
DMV1...........................  38[deg]10[min] N.    74[deg]50[min] W.
DMV2...........................  38[deg]10[min] N.    74[deg]00[min] W.
DMV3...........................  37[deg]15[min] N.    74[deg]00[min] W.
DMV4...........................  37[deg]15[min] N.    74[deg]50[min] W.
DMV1...........................  38[deg]10[min] N.    74[deg]50[min] W.
------------------------------------------------------------------------

    (3) 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 Delmarva Access 
Area as specified in Sec.  648.60(a)(3)(i), unless the vessel owner has 
made an exchange with another vessel owner whereby the vessel gains a 
Delmarva Access Area trip and gives up a trip into another Sea Scallop 
Access Area, as specified in Sec.  648.60(a)(3)(i), or unless the 
vessel is taking a compensation trip for a prior Delmarva Access Area 
trip that was terminated early, as specified in Sec.  648.60(c). The 
number of trips allocated to limited access vessels in the Delmarva 
Access Area shall be based on the TAC for the access area, which shall 
be determined through the annual framework process and specified in 
this paragraph (a)(5)(i). The 2009 Delmarva Access Area scallop quota 
for limited access scallop vessels is 5,529,000 lb (2,508 mt), unless 
reduced per Sec.  648.60(a)(3)(i)(E)(3).
    (ii) General category vessels. General category vessels shall be 
allocated 728 Delmarva Access Area trips in 2009, unless reduced per 
Sec.  648.60(a)(3)(i)(E)(3). Subject to the seasonal restrictions 
specified in paragraph (a)(4) of this section, a vessel issued a 
general category scallop permit, may not fish for, possess, or land sea 
scallops in or from the Delmarva Access Area, or enter the Delmarva 
Access Area on a declared scallop trip once the Regional Administrator 
has provided notification in the Federal Register, in accordance with 
Sec.  648.60(g)(4), that the allocated number of trips for the 
applicable fishing year have been taken, in total, by all general 
category scallop vessels, unless transiting pursuant to paragraph (f) 
of this section. 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.
    (b) * * *
    (5) * * *
    (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 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 Closed Area I Access Area trip 
that was terminated early, as specified in Sec.  648.60(c). The number 
of trips allocated to limited access vessels in the Closed Area I 
Access Area shall be based on the TAC for the access area, which will 
be determined through the annual framework process and specified in 
this paragraph (b)(5)(i).
    (ii) General category vessels. (A) General category vessels shall 
be allocated 0 trips in the Closed Area I Access Area in 2008 and 2009. 
Except as provided in paragraph (b)(5)(ii)(B) of this section, and 
subject to the seasonal restrictions specified in paragraph (b)(4) of 
this section, a vessel issued a general category scallop permit, may 
not fish for, possess, or land sea scallops in or from the Closed Area 
I Access Area, or enter the Closed Area I Access Area on a declared 
scallop trip, once the Regional Administrator has provided notification 
in the Federal Register, in accordance with Sec.  648.60(g)(4), that 
the allocated number of trips for the applicable fishing year have been 
taken, in total, by all general category scallop vessels, unless 
transiting pursuant to paragraph (f) of this section. 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.
    (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 fishing for, possessing, or 
landing scallops.

[[Page 30808]]

    (c) * * *
    (5) * * *
    (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 II Access Area, unless the 
vessel owner has made an exchange with another vessel owner whereby the 
vessel gains a Closed Area II Access Area trip and gives up a trip into 
another Sea Scallop Access Area, as specified in Sec.  
648.60(a)(3)(ii), or unless the vessel is taking a compensation trip 
for a prior Closed Area II Access Area trip that was terminated early, 
as specified in Sec.  648.60(c). The number of trips allocated to 
limited access vessels in the Closed Area II Access Area shall be based 
on the TAC for the access area, which will be determined through the 
annual framework process and specified in this paragraph (c)(5)(i). The 
2009 Closed Area II Access Area scallop quota for limited access 
scallop vessels is 5,626,666 lb (2,553 mt).
    (ii) General category vessels. (A) General category vessels shall 
be allocated 0 trips in the Closed Area II Access Area in 2008 and 
2009. Except as provided in paragraph (c)(5)(ii)(B) of this section, 
and subject to the seasonal restrictions specified in paragraph (c)(4) 
of this section, a vessel issued a general category scallop permit may 
not fish for, possess, or land sea scallops in or from the Closed Area 
II Access Area, or enter the Closed Area II Access Area on a declared 
scallop trip once the Regional Administrator has provided notification 
in the Federal Register in accordance with Sec.  648.60(g)(4), that the 
allocated number of trips for the applicable fishing year have been 
taken, in total, by all general category scallop vessels, unless 
transiting pursuant to paragraph (f) of this section. 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.
    (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 fishing for, possessing, or 
landing scallops.
    (d) * * *
    (5) * * *
    (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, 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 Nantucket Lightship Access Area trip that was terminated 
early, as specified in Sec.  648.60(c). The number of trips allocated 
to limited access vessels in the Nantucket Lightship Access Area shall 
be based on the TAC for the access area. The 2008 Nantucket Lightship 
Access Area scallop quota for limited access scallop vessels is 
5,068,250 lb (2,293 mt).
    (ii) General category vessels. (A) General category vessels shall 
be allocated 667 trips in the Nantucket Lightship Access Area in 2008 
and 0 trips in 2009. Except as provided in paragraph (d)(5)(ii)(B) of 
this section, a vessel issued a general category scallop permit, may 
not fish for, possess, or land sea scallops in or from the Nantucket 
Lightship Access Area, or enter the Nantucket Lightship Access Area on 
a declared scallop trip, once the Regional Administrator has provided 
notification in the Federal Register in accordance with Sec.  
648.60(g)(4), that the allocated number of trips for the applicable 
fishing year, have been taken, in total, by all general category 
scallop vessels, unless transiting pursuant to paragraph (f) of this 
section. 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. The 2008 Nantucket Lightship 
Access Area scallop quota for general category scallop vessels is 
266,750 lb (121 mt).
    (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 fishing for, possessing, or 
landing scallops.
    (e) * * *
    (4) * * *
    (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 Elephant Trunk Access Area, as specified 
in Sec.  648.60(a)(3)(i), unless the vessel owner has made an exchange 
with another vessel owner whereby the vessel gains an Elephant Trunk 
Access Area trip and gives up a trip into another Access Area, as 
specified in Sec.  648.60(a)(3)(ii), or unless the vessel is taking a 
compensation trip for a prior Elephant Trunk Access Area trip that was 
terminated early, as specified in Sec.  648.60(c). The number of trips 
allocated to limited access vessels in the Elephant Trunk Access Area 
shall be based on the TAC for the access area. The 2008 Elephant Trunk 
Access Area scallop quota for limited access scallop vessels is 
20,273,000 lb (9,196 mt). The 2009 Elephant Trunk Access Area scallop 
quota for limited access scallop vessels is 14,928,300 lb (6,771 mt), 
unless otherwise reduced per Sec.  648.60(a)(3)(i)(E)(2).
    (ii) General category vessels. General category vessels shall be 
allocated 2,668 trips in the Elephant Trunk Access Area in 2008 and 
1,964 trips in 2009. The 2009 general category trip allocation may be 
reduced per Sec.  648.60(a)(3)(i)(E)(2). Subject to the possession 
limits specified in Sec. Sec.  648.52(a) and (b), and 648.60(g), a 
vessel issued a general category scallop permit may not fish for, 
possess, or land sea scallops in or from the Elephant Trunk Access 
Area, or enter the Elephant Trunk Access Area on a declared scallop 
trip once the Regional Administrator has provided notification in the 
Federal Register, in accordance with Sec.  648.60(g)(4), that the 
allocated trips applicable to each fishing year, have been taken, in 
total, by all general category scallop vessels, unless transiting 
pursuant to paragraph (f) of this section. 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. The 2008 Elephant Trunk Access Area scallop quota for general 
category scallop vessels is 1,067,000 lb (484 mt). The 2009 Elephant 
Trunk Access Area scallop quota for general category scallop vessels is 
785,700 lb (356 mt), unless otherwise reduced per Sec.  
648.60(a)(3)(i)(E)(2).
* * * * *

0
9. Effective July 1, 2008, in Sec.  648.59, paragraphs (a)(3)(ii), 
(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(4)(ii) are revised to read 
as follows:


Sec.  648.59  Sea Scallop Access Areas.

    (a) * * *
    (3) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the Delmarva 
Access Area TAC to be allocated to LAGC scallop vessels shall be 
specified in this

[[Page 30809]]

paragraph (a)(3)(ii)(A) through the framework adjustment process and 
shall determine the number of trips allocated to LAGC scallop vessels 
as specified in paragraph (a)(3)(ii)(B) of this section. LAGC vessels 
will be allocated 291,000 lb (132 mt), which is 5 percent of the 2009 
Delmarva Access Area TAC.
    (B) Based on the TAC specified in paragraph (a)(3)(ii)(A) of this 
section, LAGC scallop vessels shall be allocated 728 trips to the 
Delmarva Access Area, unless reduced per Sec.  648.60(a)(3)(i)(E)(3). 
The Regional Administrator shall notify all LAGC scallop vessels of the 
date when 728 trips have been, or are projected to be, taken. Except as 
provided in paragraph (d)(5)(ii)(C) of this section, an LAGC scallop 
vessel may not fish for, possess, or land sea scallops in or from the 
Delmarva Access Area, or enter the Delmarva Access Area on a declared 
LAGC scallop trip once the Regional Administrator has provided 
notification in the Federal Register, in accordance with Sec.  
648.60(g)(4), of the date that the allocated number of trips for the 
applicable fishing year have been taken, in total, by all LAGC scallop 
vessels, unless transiting pursuant to paragraph (f) of this section.
    (b) * * *
    (5) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the Closed Area I 
Access Area TAC to be allocated to LAGC scallop vessels shall be 
specified in this paragraph (b)(5)(ii)(A) through the framework 
adjustment process and shall determine the number of trips allocated to 
LAGC scallop vessels as specified in paragraph (b)(5)(ii)(B) of this 
section. The Closed Area I Access Area shall be closed in the 2008 and 
2009 fishing years.
    (B) The Closed Area I Access Area shall be closed in fishing years 
2008 and 2009. The Regional Administrator shall notify all LAGC scallop 
vessels of the date when the maximum number of allowed trips have been, 
or are projected to be, taken for the 2008 fishing year. Except as 
provided in paragraph (b)(5)(ii)(C) of this section, and subject to the 
seasonal restrictions specified in paragraph (b)(4) of this section, an 
LAGC scallop vessel may not fish for, possess, or land sea scallops in 
or from the Closed Area I Access Area, or enter the Closed Area I 
Access Area on a declared LAGC scallop trip once the Regional 
Administrator has provided notification in the Federal Register, in 
accordance with Sec.  648.60(g)(4), the date on which the allocated 
number of trips for the applicable fishing year have been taken, in 
total, by all LAGC scallop vessels, unless transiting pursuant to 
paragraph (f) of this section.
    (C) A vessel issued a NE Multispecies permit and a LAGC 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 fishing for, possessing, or landing 
scallops.
    (c) * * *
    (5) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the total Closed 
Area II Access Area TAC specified to be allocated to LAGC scallop 
vessels shall be specified in this paragraph (c)(5)(ii)(A) through the 
framework adjustment process and shall determine the number of trips 
allocated to LAGC scallop vessels as specified in paragraph 
(c)(5)(ii)(B) of this section. The Closed Area II Access Area shall be 
closed in fishing year 2008, and LAGC vessels will be allocated zero 
percent of the 2009 Closed Area II Access Area TAC.
    (B) The Regional Administrator shall notify all LAGC scallop 
vessels of the date when the maximum number of allowed trips have been, 
or are projected to be, taken. Except as provided in paragraph 
(c)(5)(ii)(C) of this section, and subject to the seasonal restrictions 
specified in paragraph (c)(4) of this section, an LAGC scallop vessel 
may not fish for, possess, or land sea scallops in or from the Closed 
Area II Access Area, or enter the Closed Area II Access Area on a 
declared LAGC scallop trip once the Regional Administrator has provided 
notification in the Federal Register, in accordance with Sec.  
648.60(g)(4), of the date that the allocated number of trips for the 
applicable fishing year have been taken, in total, by all LAGC scallop 
vessels, unless transiting pursuant to paragraph (f) of this section.
    (C) A vessel issued a NE Multispecies permit and an LAGC 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 fishing for, possessing, or landing 
scallops.
    (d) * * *
    (5) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the Nantucket 
Lightship Access Area TAC to be allocated to LAGC scallop vessels shall 
be specified in this paragraph (d)(5)(ii)(A) through the framework 
adjustment process and shall determine the number of trips allocated to 
LAGC scallop vessels as specified in paragraph (d)(5)(ii)(B) of this 
section. LAGC vessels shall be allocated 266,750 lb (121 mt) in fishing 
year 2008, which is 5 percent of the 2008 Nantucket Lightship Access 
Area TAC. The Nantucket Lightship Access Area shall be closed in 
fishing year 2009.
    (B) Based on the TAC specified in paragraph (d)(5)(ii)(A) of this 
section, LAGC scallop vessels shall be allocated 667 trips to the 
Nantucket Lightship Access Area in fishing year 2008. The Regional 
Administrator shall notify all LAGC scallop vessels of the date when 
the 667 trips have been, or are projected to be, taken. Except as 
provided in paragraph (d)(5)(ii)(C) of this section, an LAGC scallop 
vessel may not fish for, possess, or land sea scallops in or from the 
Nantucket Lightship Access Area, or enter the Nantucket Lightship 
Access Area on a declared LAGC scallop trip once the Regional 
Administrator has provided notification in the Federal Register, in 
accordance with Sec.  648.60(g)(4), of the date that the allocated 
number of trips for the applicable fishing year have been taken, in 
total, by all LAGC scallop vessels, unless transiting pursuant to 
paragraph (f) of this section.
    (C) A vessel issued a NE Multispecies permit and an LAGC 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 fishing for, possessing, or landing 
scallops.
    (e) * * *
    (4) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the Nantucket 
Lightship Access Area TAC to be allocated to LAGC scallop vessels shall 
be specified in this paragraph (e)(4)(ii)(A) through the framework 
adjustment process and shall determine the number of trips allocated to 
LAGC scallop vessels as specified in paragraph (e)(4)(ii)(B) of this 
section. LAGC vessels shall be allocated [INSERT TAC lb] (TAC mt) in 
fishing year 2008, which is 5 percent of the 2008 Elephant Trunk Access 
Area TAC. LAGC vessels shall be allocated [INSERT TAC lb] (TAC mt) in 
fishing year 2009, which is 5 percent of the 2009 Elephant Trunk Access 
Area TAC. The 2009 general category TAC may be reduced per Sec.  
648.60(a)(3)(i)(E)(2).
    (B) Based on the TACs specified in paragraph (e)(4)(ii)(A) of this 
section

[[Page 30810]]

LAGC vessels shall be allocated a total of 2,668 trips in the Elephant 
Trunk Access Area in fishing year 2008 and 1,964 trips in fishing year 
2009. The fishing year 2009 general category trip allocation may be 
reduced per Sec.  648.60(a)(3)(i)(E)(2). The Regional Administrator 
shall notify all LAGC scallop vessels of the date when the maximum 
number of allowed trips have been, or are projected to be, taken. An 
LAGC scallop vessel may not fish for, possess, or land sea scallops in 
or from the Elephant Trunk Access Area, or enter the Elephant Trunk 
Access Area on a declared LAGC scallop trip once the Regional 
Administrator has provided notification in the Federal Register, in 
accordance with Sec.  648.60(g)(4), of the date that the allocated 
number of trips for the applicable fishing year have been taken, in 
total, by all LAGC scallop vessels, unless transiting pursuant to 
paragraph (f) of this section.
* * * * *

0
10. In Sec.  648.60, paragraphs (a)(3)(i), (d)(1), and (e)(1) are 
revised to read as follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) * * *
    (3) * * *
    (i) Limited access vessel trips. (A) Except as provided in 
paragraph (c) of this section, and unless the number of trips is 
adjusted for the Elephant Trunk Access Area or the Delmarva Access Area 
as specified in paragraph (a)(3)(i)(F) of this section, paragraphs 
(a)(3)(i)(B) through (E) of this section specify the total number of 
trips that a limited access scallop vessel may take into Sea Scallop 
Access Areas during applicable seasons specified in Sec.  648.59. The 
number of trips per vessel in any one Sea Scallop Access Area may 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, been allocated a compensation trip pursuant to paragraph (c) 
of this section, or unless the Elephant Trunk Access Area trip 
allocations are adjusted as specified in Sec.  648.60(a)(3)(i)(F). If, 
during the interim period between March 1, 2008, and the implementation 
of the limited access Access Area trip allocations specified in this 
section, a limited access vessel takes a 2008 Closed Area I Access Area 
trip, one ETAA trip will be deducted from the vessel's 2009 allocation 
as specified in this section.
    (B) Full-time scallop vessels. In the 2008 fishing year, a full-
time scallop vessel may take four trips in the Elephant Trunk Access 
Area and one trip in the Nantucket Lightship Access Area. In the 2009 
fishing year, a full-time scallop vessel may take three trips in the 
Elephant Trunk Access Area (unless adjusted per paragraph (a)(3)(i)(F) 
of this section), one trip in the Closed Area II Access Area, and one 
trip in the Delmarva Access Area (unless adjusted per paragraph 
(a)(3)(i)(F) of this section).
    (C) Part-time scallop vessels. In the 2008 fishing year, a part-
time scallop vessel may take one trip in the Nantucket Lightship Access 
Area and one trip in the Elephant Trunk Access Area (unless adjusted 
per paragraph (a)(3)(i)(F) of this section); or two trips in the 
Elephant Trunk Access Area. In the 2009 fishing year, a part-time 
scallop vessel is allocated two trips that may be distributed between 
access areas as follows: Up to two trips in the Elephant Trunk Access 
Area (unless adjusted per paragraph (a)(3)(i)(F) of this section); up 
to one trip in Closed Area II; and up to one trip in the Delmarva 
Access Area (unless adjusted per paragraph (a)(3)(i)(E) of this 
section).
    (D) Occasional scallop vessels. In the 2008 fishing year, an 
occasional scallop vessel may take one trip in the Nantucket Lightship 
Access Area or one trip in the Elephant Trunk Access Area. In the 2009 
fishing year, an occasional scallop vessel may take one trip in the 
Closed Area II Access Area or one trip in the Elephant Trunk Access 
Area (unless adjusted per paragraph (a)(3)(i)(F) of this section) or 
one trip in the Delmarva Access Area (unless adjusted per paragraph 
(a)(3)(i)(E) of this section).
    (E) Procedure for adjusting the number of 2009 fishing year trips 
in the Elephant Trunk and Delmarva Access Areas. (1) The Regional 
Administrator shall reduce the number of 2009 Elephant Trunk Access 
Area trips or Delmarva Access Area trips using the tables in paragraphs 
(a)(3)(i)(F)(2) and (3) of this section, respectively, provided that 
updated exploitable biomass projections are available with sufficient 
time to announce such an adjustment through publication in the Federal 
Register, in accordance with the Administrative Procedure Act, on or 
about December 1, 2008. In addition, if an updated estimate of overall 
F exceeds 0.29 in 2008, then Elephant Trunk Access Area trip 
allocations shall be reduced consistent with reductions as required in 
the table in paragraph (a)(3)(i)(F)(2) of this section under 
exploitable biomass estimates of 20,000-29,000 mt. If both the 
exploitable biomass and F thresholds are exceeded, the allocation level 
shall be established using the exploitable biomass adjustment schedule. 
If information is not available in time for NMFS to announce an 
adjustment in the Federal Register on or about December 1, 2008, no 
adjustment may be made. The exploitable biomass estimate necessary for 
any adjustment of the 2009 Elephant Trunk Access Area or Delmarva 
Access Area trip allocations shall be based on all available scientific 
surveys of scallops within the Elephant Trunk Access Area or Delmarva 
Access Area. Survey data must be used only if they are available with 
sufficient time for review and incorporation in the exploitable biomass 
estimate and they are determined to be scientifically sound. If no 
other surveys are available, the annual NOAA scallop resource survey 
shall be used to estimate exploitable scallop biomass for the Elephant 
Trunk Access Area.
    (2) Table of Elephant Trunk Access Area TAC and trip allocation 
adjustments based on exploitable biomass estimates and revised target 
TAC levels. If the exploitable biomass estimate is between 20,000 and 
29,999 mt, part-time vessels shall be authorized to take one trip in 
the Elephant Trunk Access Area at a reduced possession limit of 3,600 
lb (1,633 kg) and one trip in the Nantucket Lightship Access Area at 
the normal possession limit as specified at Sec.  648.60(a)(5); and 
occasional vessels may take one trip in the Elephant Trunk Access Area 
or one trip in the Nantucket Lightship Access Area with a normal 
possession limit of 7,500 lb (3,402 kg) as specified at Sec.  
648.60(a)(5). The following table specifies the adjustments that shall 
be made through the procedure required in paragraph (a)(3)(i)(F)(1) of 
this section under various biomass estimates and adjusted 2009 TAC 
estimates:

----------------------------------------------------------------------------------------------------------------
                                    Adjusted trips      Adjusted trips       Adjusted 2009       Adjusted 2009
  Exploitable biomass  estimate    (full-time, part-       (general       research set-aside  observer set-aside
              (mt)                 time, occasional)       category)           TAC (mt)            TAC (mt)
----------------------------------------------------------------------------------------------------------------
30,000 or greater...............  No adjustment.....  No adjustment.....  No adjustment.....  No adjustment.
20,000-29,999...................  2, 1*, 1**........  1473..............  108.86............  54.43.

[[Page 30811]]

 
10,000-19,000...................  1, 0, 0...........  982...............  72.57.............  36.29.
Less than 10,000................  0, 0, 0...........  491...............  36.29.............  18.15.
----------------------------------------------------------------------------------------------------------------
* Part-time vessels may take one trip in the Elephant Trunk Access Area at a reduced possession limit of 3,600
  lb (1,633 kg) and one trip in the NLCA with a possession limit of 18,000 lb (8,165 kg).
** Occasional vessels may take 1 trip in the Nantucket Lightship Access Area or 1 trip in the Elephant Trunk
  Access Area.

    (3) Table of Delmarva Access Area TAC and trip allocation 
adjustments based on exploitable biomass estimates and revised target 
TAC levels. The following table specifies the required adjustments that 
shall be made through the procedure specified in paragraph 
(a)(3)(i)(F)(1) of this section under various biomass estimates and 
adjusted 2009 target TAC estimates:

----------------------------------------------------------------------------------------------------------------
                                    Adjusted trips      Adjusted trips       Adjusted 2009       Adjusted 2009
  Exploitable biomass  estimate    (full-time, part-       (general       research set-aside  observer set-aside
              (mt)                 time, occasional)       category)              TAC                 TAC
----------------------------------------------------------------------------------------------------------------
10,000 or greater...............  No adjustment.....  No adjustment.....  No adjustment.....  No adjustment.
Less than 10,000................  0, 0, 0...........  0.................  0.................  0.
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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 declared into an Access Area as described in Sec.  648.59 may 
possess more than 50 bu (17.62 hL) of in-shell scallops outside of the 
Access Area described in Sec.  648.59.

----------------------------------------------------------------------------------------------------------------
                                                            Permit category possession limit
             Fishing year             --------------------------------------------------------------------------
                                              Full-time                Part-time                Occasional
----------------------------------------------------------------------------------------------------------------
2008.................................  18,000 lb..............  18,000 lb..............  7,500 lb.
                                       (8,165 kg).............  (8,165 kg).............  (3,402 kg).
2009.................................  18,000 lb..............  18,000 lb\1\...........  7,500 lb.
                                       (8,165 kg).............  (8,165 kg).............  (3,402 kg).
----------------------------------------------------------------------------------------------------------------
\1\ Unless reduced per Sec.   648.60(a)(3)(i)(E)(2).

* * * * *
    (d) Possession limit to defray costs of observers--(1) Observer 
set-aside limits by area--(i) Nantucket Lightship Access Area. For the 
2008 fishing year, the observer set-asides for the Nantucket Lightship 
Access Area is 55,000 lb (25 mt).
    (ii) Closed Area II Access Area. For the 2009 fishing year, the 
observer set-aside for the Closed Area II Access Area is 58,000 lb (26 
mt).
    (iii) Elephant Trunk Access Area. For the 2008 and 2009 fishing 
years, the observer set-aside for the Elephant Trunk Access Area is 
222,000 lb (101 mt), and 162,000 lb (73 mt), respectively, unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
    (iv) Delmarva Access Area. For the 2009 fishing year, the observer 
set-aside for the Delmarva Access Area is 60,000 lb (27 mt), unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
* * * * *
    (e) * * *
    (1) Research set-aside limits and number of trips by area--(i) 
Nantucket Lightship Access Area. For the 2008 fishing year, the 
research set-aside for the Nantucket Lightship Access Area is 110,000 
lb (50 mt).
    (ii) Closed Area II Access Area. For the 2009 fishing year, the 
research set-aside for the Closed Area II Access Area is 116,000 lb (53 
mt).
    (iii) Elephant Trunk Access Area. For the 2008 and 2009 fishing 
years, the research set-aside for the Elephant Trunk Access Area is 
440,000 lb (200 mt), and 324,000 lb (147 mt), respectively, unless the 
2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) of 
this section.
    (iv) Delmarva Access Area. For the 2009 fishing year, the research 
set-aside for the Delmarva Access Area is 120,000 lb (54 mt), unless 
the 2009 set-aside is adjusted as specified in paragraph (a)(3)(i)(E) 
of this section.
* * * * *

0
11. In Sec.  648.62, paragraph (b)(1) is revised to read as follows:


Sec.  648.62  Northern Gulf of Maine (NGOM) scallop management area.

* * * * *
    (b) * * *
    (1) NGOM TAC. The TAC for the NGOM shall be 70,000 lb (31.8 mt) for 
both the 2008 and 2009 fishing years.
* * * * *
[FR Doc. 08-1300 Filed 5-23-08; 12:48 pm]
BILLING CODE 3510-22-P