[Federal Register: March 3, 2004 (Volume 69, Number 42)]
[Rules and Regulations]
[Page 9970-9975]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03mr04-20]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.040130031-4070-02; I.D. 012704D]
RIN 0648-AR92
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Emergency Rule to Maintain an Area Access Program for the
Atlantic Sea Scallop Fishery in Hudson Canyon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final emergency rule.
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SUMMARY: This emergency rule implements, as of March 1, 2004, an area
access program for the Hudson Canyon Area. The area access program
continues the controlled access program that has been implemented
through Frameworks 14 and 15 to the Atlantic Sea Scallop Fishery
Management Plan (FMP) with modifications similar to the measures
proposed in Amendment 10 to the FMP. The measures in this emergency
action will be in place for 180 days and may be extended, pursuant to
the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). This action is necessary to avoid localized overfishing
of sea scallops in the Hudson Canyon Area, and will help ensure that
fishing mortality rates are more consistent with the status of the
scallop resource while not exceeding the target thresholds established
in the FMP.
DATES: Effective February 27, 2004, through August 30, 2004. This rule
will be implemented March 1, 2004, through August 30, 2004.
ADDRESSES: Copies of the Environmental Assessment (EA) and the
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/
IRFA) and any other documents supporting this action are available from
the Regional Office at the address specified here, and are accessible
via the Internet at http://www.nero.nmfs.gov/ro/doc/nero.html.
FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy
Analyst, 978-281-9288, fax 978-281-9135, e-mail
peter.christopher@noaa.gov.
SUPPLEMENTARY INFORMATION: The regulations for the sea scallop fishery
for the 2003 fishing year (March 1, 2003 - February 29, 2004) include,
among other measures, an area access program to govern the fishery
within the Hudson Canyon Sea Scallop Access Area (Hudson Canyon Area).
Details about the development of this program were provided in the
proposed rule for this action, and are not repeated here. The program
establishes an overall total allowable catch (TAC) for the area, limits
the number of trips that can be taken into the area, establishes a
scallop trip limit, and establishes a minimum number of days-at-sea
(DAS) that will be deducted for each access trip from the vessel's DAS
allocation. The New England Fishery Management Council (Council)
adopted Amendment 10 to the FMP in September 2003, and submitted it for
review by the Secretary of Commerce (Secretary) on December 19, 2003.
Among the measures proposed in Amendment 10 is a continuation of an
area access program for the Hudson Canyon Area, with some revisions to
the program. Amendment 10 has been made available to the public for
comment through March 15, 2004, with the Notice
[[Page 9971]]
of Availability published on January 16, 2004 (69 FR 2561).
The Council's December 2003 submission of Amendment 10 means that
it will not be possible to implement the action, if approved, by the
start of the fishing year on March 1, 2004. Thus, the existing Hudson
Canyon area access program will expire at the end of the fishing year
(February 29, 2004) and, on March 1, 2004, the Hudson Canyon Area will
open to fishing without an area access program. Absent another
regulatory action, the DAS allocations currently specified in the FMP
will go into effect for limited access scallop vessels on March 1,
2004: 34, 14, and 3 DAS for full-time, part-time, and occasional
vessels, respectively. Amendment 10 would, if approved, allocate an
additional eight, three, and one DAS for use by full-time, part-time,
and occasional vessels, respectively, in areas other than those under
area management. Amendment 10 would also, if approved, specifically
allocate 48, 12, and 12 DAS for use by full-time, part-time, and
occasional vessels, respectively, within the Hudson Canyon Area, under
an area access program.
Without this emergency action, the fishing that occurs in the
Hudson Canyon Area between March 1 and the implementation of Amendment
10 (if approved) would inflict fishing mortality on the resource in
addition to that proposed for the Hudson Canyon Access Area in
Amendment 10. The additive impacts of this fishing could result in
localized overfishing in the Hudson Canyon Area. Should Amendment 10 be
disapproved, this final emergency action will allow controlled harvests
from the Hudson Canyon Area, consistent with the status of the Hudson
Canyon Area resource as analyzed in Amendment 10. This action will
allow the resource within the Hudson Canyon Area to be harvested at
appropriate levels, and will allow limited access vessels to fish at a
level nearer to the mortality objectives for the stock.
Without continued controls on scallop fishing in the Hudson Canyon
Area, NMFS is concerned about the impact of fishing on the scallop
resource in this area, even with the reduced allocation of DAS. The
area was initially closed to protect concentrations of juvenile
scallops, which have since grown to harvestable size. For the past 3
fishing years, fishing has been allowed, but with controls. Amendment
10 proposes to maintain controls on effort and catch that would prevent
the areas from being overfished. A lapse in controls may result in high
fishing effort and mortality, which may be detrimental to the health of
the scallop resource in the area. In fact, the reduced DAS allocations
that will otherwise take effect on March 1, 2004, may serve as an
incentive for some vessels to fish within the Hudson Canyon Area rather
than elsewhere, and fishing effort could concentrate in the area.
Controls within the area over the past few years have maintained catch
rates that may be higher than those in other areas. In addition, the
Hudson Canyon Area is a relatively short distance from ports in the
Mid-Atlantic, and vessel owners may choose to fish in the Hudson Canyon
Area to minimize the DAS used to cover steaming time to more distant
fishing areas.
This emergency action under section 305(c) of the Magnuson-Stevens
Act is justified under and consistent with NOAA emergency rule
guidelines published at 62 FR 44421 (August 21, 1997). These guidelines
provide that a Magnuson-Stevens Act emergency action is justified in
extremely urgent or special circumstances where substantial harm to or
disruption of the resource, fishery or community will be caused in the
time it would take to follow standard rulemaking procedures. It was not
reasonably foreseeable that Amendment 10 would not be implemented by
March 1, 2004, at the time when it was in development, otherwise, NMFS
would have initiated another type of action, such as a Secretarial
amendment or framework adjustment. Therefore, the only procedure
available to the agency for implementing these measures is a section
305(c) emergency action. As discussed above, failure to implement this
emergency action will result in serious conservation and economic
problems for the fishery. NMFS published a proposed emergency rule on
February 4, 2004 (69 FR 5307) and requested public comment. Comments
and responses are addressed in this final rule.
Final Action
The final measures for the emergency action are summarized below:
Continuation of the existing notification and enrollment
requirements of the current Hudson Canyon Controlled Access Area
program, including twice hourly vessel monitoring system (VMS) polling;
Continuation of the existing observer program established for the
current Hudson Canyon Controlled Access Area program;
Continuation of the existing VMS catch reporting requirements;
Continuation of the existing requirement for vessels taking a
controlled area access trip to utilize twine top mesh with a minimum
size of 10 inches (25.4 cm) to reduce finfish bycatch, primarily of
flatfish;
An additional allocation of 48 DAS for full-time limited access
scallop vessels to conduct four trips within the Hudson Canyon Area
only;
An additional allocation of 12 DAS for part-time and occasional
limited access vessels to conduct one trip within the Hudson Canyon
area only;
Allocation of DAS in trip-length blocks of 12 days, with each
vessel making an Access Area trip to be charged 12 DAS for each trip,
regardless of actual trip length;
Establishment of a trip possession limit for limited access vessels
fishing under DAS of 18,000 lb (8,165 kg) (consistent with a 1,500-lb
(680-kg) per day catch rate);
Establishment of a 400 lb (181-kg) possession limit for General
category vessels fishing in the Hudson Canyon Area (this measure will
make the possession limit for these vessels consistent with the
existing possession limit in open fishing areas).
Comments and Responses
Four sets of comments were submitted in response to the proposed
rule for the emergency action from the Council, the Fishery Survival
Fund (FSF) and two members of the public.
Comment 1: One individual urged NMFS to keep the Hudson Canyon Area
closed and immediately establish other marine sanctuary areas so that
fish stocks do not continue to be decimated.
Response: NMFS considered closing the Hudson Canyon Access Area as
an alternative to the emergency action. However, closure of this area
was deemed to be unwarranted given the analyses for this action and in
Amendment 10 that indicate that controlled harvest of the area should
be maintained for an additional 2 years, beginning in 2004. Moreover,
it would be inappropriate to establish marine sanctuaries in an
emergency action given the narrow scope of such an action.
Comment 2: One individual commented that quotas are already too
high, even in this alleged emergency. The emergency rule should cut all
such quotas by 50 percent and 10 percent every year thereafter.
Response: NMFS assumes that the commenter is referring to DAS
allocations. NMFS disagrees with the comment. The scallop resource
condition actually warrants a higher level of harvest than would occur
without any action. The DAS schedule in the current regulations would
achieve
[[Page 9972]]
a fishing mortality level well below the target prescribed for the
scallop fishery.
Comment 3: One individual commented that NMFS should establish
email communication for comments on NMFS actions.
Response: NMFS now requires that all actions soliciting public
comment include email addresses for electronic commenting (E-comments).
Comment 4: The Council is concerned that vessels will charge into
the Hudson Canyon Area to fish all four trips using 3.5-inch (8.9-cm)
rings, particularly in areas where small scallops occur. Amendment 10
proposes to require vessels fishing the Hudson Canyon Area to use gear
with larger rings and to protect small scallops in the southwest corner
of the Hudson Canyon Area by including this portion of the area as part
of a closed area. The Council states that the allocation of four trips
in Amendment 10 was calculated to produce optimum yield with 4-inch
(10.2-cm) rings, and that an allocation as high as four trips may not
be appropriate if vessels using 3.5-inch (8.9-cm) rings utilize the
majority of the four trip allocation. The Council therefore recommends
that the emergency action allocate no more than one Hudson Canyon Area
trip per limited access vessel.
Response: The comment implies that Amendment 10 will definitely be
implemented prior to expiration of the emergency action. However, NMFS
has not determined that Amendment 10 will be approved, and allocating
only one trip would be overly restrictive if Amendment 10 is not
approved. While 4-inch (10.2-cm) rings may provide for long-term
benefits according to the analyses included in Amendment 10, NMFS does
not expect these benefits to come to light in this action which is
limited in duration. Therefore, given the impracticability of
establishing a new gear requirement in the limited timeframe of this
emergency action, NMFS has determined that maintaining the 3.5-inch
(8.9-cm) ring size requirement is appropriate for this limited action.
Comment 5: The Council is concerned about opening the Hudson Canyon
Area to access by vessels using general category permits or limited
access vessels fishing under general category rules. The Council states
that the intent of Amendment 10 was to allow access by general category
vessels in the future when new controlled access areas are reopened,
and to allow for them to land 400 lb (181.44 kg) of scallops. However,
the comment notes that the Council intended to develop additional
management measures including mandatory vessel monitoring systems,
mandatory observers on selected trips, and a 2-percent TAC set-aside to
cap the number of general category trips into reopened areas. The
comment states that, because none of these measures are available for
Hudson Canyon Area access, the Council did not intend to allow general
category access. The Council, therefore, recommends that the emergency
action continue the existing 100-lb (45.36-kg) scallop possession limit
for vessels fishing under general category rules within the Hudson
Canyon Access Area.
Response: Based on historical information of general category
activity in the fishery, there is no evidence that the impacts of
fishing activity by general category vessels operating with a 400 lb
(181.44 kg) possession limit will jeopardize the scallop resource
within the Hudson Canyon Access Area in the context of this temporary,
limited action. Moreover, allowing a 400-lb (181.44-kg) possession
limit for general category vessels and limited access vessels fishing
outside of the DAS program will reduce the enforceability concerns
associated with having different possession limits for general category
vessels fishing inside and outside of the Hudson Canyon Access Area.
NMFS's review of the Amendment 10 document does not clearly support the
Council intent described in their comment above. NMFS urges the Council
to provide more details about the record supporting this comment so the
intent can be properly reflected in any final action on Amendment 10,
if approved.
Comment 6: The Council commented that, although the Amendment 10
analysis shows substantial abundance of small scallops in the Elephant
Trunk area, the Council agrees that the benefits derived from closing
the area on March 1, 2004, until implementation of Amendment 10, if
approved, are reduced with a 34 DAS allocation for full-time vessels.
If Amendment 10 is delayed more than anticipated, or higher DAS
allocations are available, however, the Council recommends
reconsideration of the decision to let the Elephant Trunk area remain
open.
Response: NMFS agrees that, if Amendment 10 is approved, the
benefits of a short-term closure of the Elephant Trunk may be
negligible. NMFS did not consider closure of the area as an alternative
because conducting the necessary analysis may have delayed the action
beyond March 1, 2004, and defeating the benefits of proceeding with an
emergency action.
Comment 7: One individual commented that the closure of the Hudson
Canyon Access Area is based on Amendment 7 to the FMP, which
established the closure. The commenter stated that Amendment 7 is not
based on science and ignored relevant science and environmental
conditions.
Response: NMFS disagrees. While Amendment 7 originally established
the 3-year closure of the Hudson Canyon Area, this emergency action
will continue a controlled access program for the Hudson Canyon Access
Area based on several years of controlled harvest strategies. The
management actions that established area access all were based on the
best available scientific information.
Comment 8: The FSF commented in support of the emergency action but
requested that NMFS consider a provision or policy to address trips
terminated early due to unforseen circumstances (i.e., the broken trip
provision). The FSF also urged NMFS to consider a closure of the
Elephant Trunk area to scallop fishing to protect the large
concentration of small scallops in the area.
Response: Because of the limited scope of this action, it is not
possible to address the broken trip issue at this time. NMFS could not
consider the broken trip provision that is proposed in Amendment 10
because the provision would require a collection of information that
has not been approved by the Office of Management and Budget (OMB). As
in prior years, NMFS will consider broken trips on a case by case
basis. If Amendment 10 is approved, all relevant implementation issues
associated with the broken trip provision would be considered.
NMFS did not consider closure of the Elephant Trunk for the reasons
explained in the response to Comment 6.
Changes From the Proposed Rule
The regulatory text in Sec. 648.14, paragraphs (30) and (31) has
been changed to clarify the prohibition relative to scallop possession
limits.
Classification
A formal section 7 consultation under the Endangered Species Act
was initiated for the Atlantic sea scallop fishery on November 21,
2003, and subsequently included consideration of the measures included
in this emergency action. In a biological opinion dated February 23,
2004, the Regional Administrator determined that fishing activities
conducted under the emergency rule are not likely to jeopardize the
continued existence of any endangered or threatened species or
[[Page 9973]]
result in the destruction or adverse modification of critical habitat.
As explained in greater detail elsewhere in the preamble to this
final rule, the Assistant Administrator for Fisheries, NOAA, finds that
the need to implement these measures in a timely manner to avoid
excessive localized fishing mortality in the Hudson Canyon Access Area,
constitutes good cause under the authority contained in 5 U.S.C.
553(d)(3), to waive the 30-day delay in effective date. Without the
emergency rule, the Hudson Canyon Area will open to fishing without an
area access program on March 1, 2004. This area was initially closed to
protect concentrations of juvenile scallops, which have since grown to
harvestable size. However, for the past 3 years, fishing in this area
has been allowed, but with controls. A lapse in controls may result in
high fishing effort and mortaility, which may be detrimental to the
health of the scallop resource in the area. This emergency rule should
prevent a derby style fishery from occurrring in the Hudson Canyon
Area.
This action is authorized by 50 CFR part 648 and has been
determined to be not significant for purposes of Executive Order 12866.
Included in this final rule is the Final Regulatory Flexibility
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA
incorporates the discussion that follows, the comments and responses to
the proposed rule, and the IRFA and other analyses completed in support
of this action. A copy of the IRFA is available from the Regional
Administrator (see ADDRESSES).
Final Regulatory Flexibility Analysis
Statement of Objective and Need
A description of the reasons why this action is being considered,
and the objectives of and legal basis for this action, is contained in
the preamble to the proposed rule and is not repeated here.
Summary of Significant Issues Raised in Public Comments
Four sets of comments were submitted on the proposed rule, but none
contained comments on the economic impacts of this rule.
Description and Estimate of Number of Small Entities to Which the Rule
Will Apply
The measures implemented by this emergency action could impact any
commercial vessel issued a Federal sea scallop vessel permit. All of
these vessels are considered small business entities for purposes of
the FRFA because they all grossed less than $3.5 million according to
the dealer reports for the 2001 and 2002 fishing years. Therefore, the
analysis of impacts on vessels in the environmental assessment and
other supporting documents for this action are relevant to this FRFA.
There are two main components of the scallop fleet: Vessels eligible to
participate in the limited access sector of the fleet and vessels that
participate in the open access General Category sector of the fleet.
Limited access vessels are issued permits to fish for scallops on a
Full-time, Part-time or Occasional basis. In 2001, there were 252 Full-
time permits, 38 Part-time permits, and 20 Occasional permits. In 2002,
there were 270 Full-time permits, 31 part time permits, and 19
Occasional permits. Because the fishing year ends on the last day of
February of each year, 2003 vessel permit information was incomplete at
the time the Amendment 10 analysis was completed. Much of the economic
impacts analysis is based on the 2001 and 2002 fishing years; 2001 and
2002 were the last 2 years with complete permit information. According
to the most recent vessel permit records for 2003, there were 278 Full-
time limited access vessels, 32 Part-time limited access vessels, and
16 Occasional vessels. In addition, there were 2,293, 2,493, and 2,257
vessels issued permits to fish in the General Category in 2001, 2002,
and 2003, respectively. Annual scallop revenue for the limited access
sector averaged from $615,000 to $665,600 for Full-time vessels,
$194,790 to $209,750 for Part-time vessels, and $14,400 to $42,500 for
Occasional vessels during the 2001 and 2002 fishing years. Total
revenues per vessel, including revenues from species other than
scallops, exceeded these amounts, but were less than $3.5 million per
vessel.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action does not contain any new collection-of-information,
reporting, recordkeeping, or other compliance requirements.
Minimizing Significant Economic Impacts on Small Entities
The alternatives to the final action are the no action alternative
and closure of the Hudson Canyon Access Area to scallop fishing.
Neither the no-action nor the closure alternative would minimize the
economic impacts on small entities. Under both non-preferred
alternatives, lower overall DAS allocations would similarly constrain
landings and revenues. For both the no-action and the closure
alternatives, DAS allocations of 34, 14, and 3 DAS for full-time, part-
time, and occasional vessels would reduce annual revenues to
approximately $110 million from $158 million, compared to the final
action. For the no-action alternative, the harvest of larger, more
valuable scallops from the Hudson Canyon Access Area would not offset
the revenue losses because lower overall DAS allocations would
constrain landings.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule, or group of related rules, for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide will be sent
to all holders of permits issued for the Atlantic sea scallop fishery.
In addition, copies of this final rule and guide (i.e., permit holder
letter) are available from the Regional Administrator (see ADDRESSES)
and may be found at the following web site: http://www.nmfs.gov/ro/doc/nero.html
.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 26, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.14, paragraphs (h)(30), (h)(31), and (i)(8) are revised
to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(h) * * *
(30) Possess or land per trip more than 400 lb (181.44 kg) of
scallop meats or 50 bu (17.62 hl) of in-shell scallops as specified in
Sec. 648.52(e) in or from the areas described in Sec. 648.57 when not
declared into the Sea Scallop Area Access Program, unless the vessel's
[[Page 9974]]
fishing gear is unavailable for immediate use as defined in Sec.
648.23(b), or, there is a compelling safety reason to be in such areas
without all such gear being unavailable for immediate use. Possess more
than 400 lb. (181.44 kg) of scallop meats or 50 bu (17.62 hl) of in-
shell scallops when fishing outside the scallop DAS program.
(31) Fail to stow gear in accordance with Sec. 648.23(b), unless
there is a compelling safety reason, while a vessel is outside of a Sea
Scallop Access Area on a Sea Scallop Access Area trip.
(i)* * *
(8) Possess, retain, or land per trip no more than 400 lb (181.44
kg) of scallop meats or 50 bu (17.62 hl) of in-shell scallops in or
from the areas described in Sec. 648.57.
* * * * *
Sec. 648.52 [Amended]
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3. In Sec. 648.52, paragraph (e) is removed.
0
4. Section 648.53 is revised to read as follows:
Sec. 648.53 DAS allocations.
(a) Assignment to DAS categories. Subject to the vessel permit
application requirements specified in Sec. 648.4, for each fishing
year, each vessel issued a limited access scallop permit shall be
assigned to the DAS category (full-time, part-time, or Occasional) it
was assigned to in the preceding year, except as provided under the
small dredge program specified in Sec. 648.51(e).
(b) Open area DAS allocations. (1) Total DAS to be used in all
areas other than those specified in Sec. 648.57 will be specified
through the framework process as specified in Sec. 648.55.
(2) Each vessel qualifying for one of the three DAS categories
specified in the table in this paragraph (b)(2) (Full-time, Part-time,
or Occasional) shall be allocated, for each fishing year, the maximum
number of DAS it may participate in the limited access scallop fishery,
according to its category. A vessel whose owner/operator has declared
it out of the scallop fishery, pursuant to the provisions of Sec.
648.10, or that has used up its allocated DAS, may leave port without
being assessed a DAS, as long as it does not possess or land more than
400 lb (181.4 kg) of shucked or 50 bu (17.62 hl) of in-shell scallops
and complies with all other requirements of this part. The annual DAS
allocations for each category of vessel for the fishing years
indicated, after deducting DAS for observer and research DAS set-
asides, are as follows:
----------------------------------------------------------------------------------------------------------------
2003 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
DAS Category ....... ....... ....... ....... ....... .......
Full-time 120 34 35 38 36 60
Part-time 48 14 14 15 17 24
Occasional 10 3 3 3 4 5
----------------------------------------------------------------------------------------------------------------
(c) Sea Scallop Access Area DAS allocations. Vessels fishing in a
Sea Scallop Access Area specified in Sec. 648.57, under the Sea
Scallop Area Access Program specified in Sec. 648.58, are allocated
additional DAS to fish only within each Sea Scallop Access Area, as
specified in Sec. 648.58(a)(3).
(d) Adjustments in annual DAS allocations. Adjustments or changes
in annual DAS allocations, if required to meet fishing mortality
reduction goals, may be made following a reappraisal and analysis under
the framework provisions specified in Sec. 648.55.
(e) End-of-year carry-over. With the exception of vessels that held
a Confirmation of Permit History as described in Sec.
648.4(a)(1)(i)(J) for the entire fishing year preceding the carry-over
year, limited access vessels that have unused DAS on the last day of
February of any year may carry over a maximum of 10 DAS into the next
year. DAS carried over into the next fishing year may not be used in
the Hudson Canyon Access Area. DAS sanctioned vessels will be credited
with unused DAS based on their DAS allocation minus total DAS
sanctioned.
(f) Accrual of DAS. Unless participating in the Area Access Program
described in Sec. 648.58, DAS shall accrue to the nearest minute.
(g) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea assisting in a USCG search and
rescue operation or assisting the USCG in towing a disabled vessel, and
that can document the occurrence through the USCG, will not accrue DAS
for the time documented.
0
5. In Sec. 648.57, paragraph (b) is removed and paragraph (a)
introductory text is revised to read as follows:
Sec. 648.57 Closed and regulated areas.
(a) Hudson Canyon Sea Scallop Access Area. From March 1, 2004,
through August 30, 2004, except as provided in Sec. 648.58, no vessel
may fish for scallops in or possess or land scallops from the area
known as the Hudson Canyon Sea Scallop Access Area, and no vessel may
possess scallops in the Hudson Canyon Sea Scallop Access Area, unless
such vessel is only transiting the area with all fishing gear
unavailable for immediate use as defined in Sec. 648.23(b), or there
is a compelling safety reason to be in such areas without all such gear
being unavailable for immediate use. The Hudson Canyon Sea Scallop
Access Area (copies of a chart depicting this area are available from
the Regional Administrator upon request) is defined by straight lines
connecting the following points in the order stated:
* * * * *
0
6. Section 648.58 is revised to read as follows:
Sec. 648.58 Sea Scallop Area Access Program requirements.
(a) From March 1, 2004, through August 30, 2004, vessels issued a
limited access scallop permit may fish in the Sea Scallop Access Areas
specified in Sec. 648.57 when fishing under a scallop DAS, provided
the vessel complies with the requirements specified in paragraphs
(a)(1) through (a)(9) and (b) through (e) of this section. Unless
otherwise restricted under this part, vessels issued General Category
scallop permits may fish in the Sea Scallop Access Areas specified in
Sec. 648.57, subject to the possession limit specified in Sec.
648.52(b).
(1) VMS. The vessel must have installed on board an operational VMS
unit that meets the minimum performance criteria specified in
Sec. Sec. 648.9 and 648.10, and paragraph (e) of this section.
(2) Declaration. (i) Prior to the 25th day of the month preceding
the month in which fishing is to take place, the vessel must submit a
monthly report through the VMS e-mail messaging system of its intention
to fish in any Sea Scallop Access Area, along with the following
information: Vessel name and permit number, owner and operator's name,
owner and operator's phone numbers, and number of trips anticipated for
each Sea Scallop Access Area in which it intends to fish. The Regional
Administrator may waive a portion of this notification period for
[[Page 9975]]
trips into the Sea Scallop Access Areas if it is determined that there
is insufficient time to provide such notification prior to an access
opening. Notification of this waiver of a portion of the notification
period shall be provided to the vessel through a permit holder letter
issued by the Regional Administrator.
(ii) In addition to the information described in paragraph
(a)(2)(i) of this section, and for the purpose of selecting vessels for
observer deployment, a vessel shall provide notice to NMFS of the time,
port of departure, and specific Sea Scallop Access Area to be fished,
at least 5 working days prior to the beginning of any trip into the Sea
Scallop Access Area.
(iii) To fish in a Sea Scallop Access Area, the vessel owner or
operator shall declare a Sea Scallop Access Area trip through the VMS
less than 1 hour prior to the vessel leaving port, in accordance with
instructions to be provided by the Regional Administrator.
(3) Number of trips. Except as provided in paragraph (c) of this
section, a vessel is limited to the following number of trips and
automatic DAS deduction into the Hudson Canyon Sea Scallop Access Area
specified in Sec. 648.57:
(i) Full-time vessels. A Full-time vessel is restricted to a total
of 4 trips, equaling an automatic deduction of 12 days per trip for a
total of 48 DAS, into the Hudson Canyon Access Area.
(ii) Part-time vessels. A Part-time vessel is restricted to a total
of 1 trip, equaling an automatic deduction of 12 days per trip for a
total of 12 DAS, into the Hudson Canyon Access Area.
(iii) Occasional scallop vessels. An Occasional vessel is
restricted to a total of 1 trip, equaling an automatic deduction of 12
days per trip for a total of 12 DAS, into the Hudson Canyon Access
Area.
(4) Area fished. While on a Sea Scallop Access Area trip, a vessel
may not fish for, possess, or land scallops from outside the Hudson
Canyon Access Area during that trip and must not enter or exit the
Hudson Canyon Access Area fished more than once per trip.
(5) Possession and landing limits. After declaring a trip into the
Hudson Canyon Access Area, a vessel owner or operator may fish for,
possess, and land up to 18,000 lb (9,525 kg) of scallop meats per trip.
No vessel fishing in the Hudson Canyon Access Area may possess or land,
more than 50 bu (17.62 hl) of in-shell scallops shoreward of the VMS
demarcation line.
(6) Gear restrictions. The vessel must fish with or possess scallop
dredge or trawl gear only in accordance with the restrictions specified
in Sec. 648.51(a) and (b), except that the mesh size of a net, net
material, or any other material on the top of a scallop dredge in use
by or in possession of the vessel shall not be smaller than 10.0 inches
(25.40 cm) square or diamond mesh.
(7) Transiting. While outside a Sea Scallop Access Area on a Sea
Scallop Access Area trip, the vessel must have all fishing gear stowed
and unavailable for immediate use as specified in Sec. 648.23(b),
unless there is a compelling safety reason.
(8) Off-loading restrictions. The vessel may not off-load its catch
from a Sea Scallop Access Area trip at more than one location per trip.
(9) Reporting. The owner or operator must submit reports through
the VMS, in accordance with instructions to be provided by the Regional
Administrator, for each day fished when declared in the Sea Scallop
Area Access Program, including trips accompanied by a NMFS-approved
observer. The reports must be submitted in 24-hour intervals, for each
day beginning at 0000 hours and ending at 2400 hours. The reports must
be submitted by 0900 hours of the following day and must include the
following information: Total pounds/kilograms of scallop meats kept,
total number of tows and the Fishing Vessel Trip Report log page
number.
(b) Accrual of DAS. For each Hudson Canyon Access Area trip, a
vessel on a Hudson Canyon Access Area trip shall have 12 DAS deducted
from its access area DAS allocation specified in paragraph (a)(3) of
this section, regardless of the actual number of DAS used during the
trip.
(c) Increase of possession limit to defray costs of observers--(1)
Observer set-aside limits by area. The observer set-aside for the
Hudson Canyon Access Area is 187,900 lb (85.2 mt).
(2) Defraying the costs of observers. The Regional Administrator
may increase the sea scallop possession limit specified in paragraph
(a)(5) of this section to defray costs of at-sea observers deployed on
area access trips subject to the limits specified in paragraph (c)(1)
of this section. Owners of limited access scallop vessels will be
notified of the increase in the possession limit through a permit
holder letter issued by the Regional Administrator. If the observer
set-aside is fully utilized prior to the end of the fishing year, the
Regional Administrator will notify owners of limited access vessels
that, effective on a specified date, the possession limit will be
decreased to the level specified in paragraph (a)(5) of this section.
Vessel owners shall be responsible for paying the cost of the observer,
regardless of whether the vessel lands or sells sea scallops on that
trip, and regardless of the availability of set-aside for an increased
possession limit.
(d) VMS polling. For the duration of the Sea Scallop Area Access
Program, as described under this section, all sea scallop limited
access vessels equipped with a VMS unit shall be polled at least twice
per hour, regardless of whether the vessel is enrolled in the Sea
Scallop Area Access Program. Vessel owners shall be responsible for
paying the costs for the polling.
[FR Doc. 04-4677 Filed 2-27-04; 11:39 am]
BILLING CODE 3510-22-S