Atlantic Sea Scallop Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 650

[Docket No. 930828-3324; I.D. 080593A]

RIN 0648-AC99

Atlantic Sea Scallop Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement the conservation and

management measures contained in Amendment 4 to the Fishery Management

Plan (FMP) for the Atlantic Sea Scallop Fishery. Amendment 4

substantially revises the management of the Atlantic Sea Scallop

Fishery, especially regarding effort control in the fishery, permits,

and reporting and recordkeeping requirements. The intent of this

Amendment is to reduce the fishing mortality rate to eliminate the

overfished condition of Atlantic sea scallops.

EFFECTIVE DATE: March 1, 1994.

ADDRESSES: Copies of Amendment 4, its regulatory impact review (RIR),

initial regulatory flexibility analysis (IRFA), and the final

supplemental environmental impact statement (FSEIS) are available from

Douglas Marshall, Executive Director, New England Fishery Management

Council, Suntaug Office Park, 5 Broadway (U.S. Rte. 1), Saugus, MA

01906-1097, telephone 617-565-8937. Copies of the Finance Handbook may

be obtained from Mr. Joseph Giza, Chief, Fiscal Policy and Quality

Assurance Branch, NOAA Financial Management Division, Caller Service

No. 8025, 20020 Century Boulevard, Germantown, Maryland 20874,

telephone 301-443-8795.

Comments regarding the burden-hour estimates or any other aspect of

the collection-of-information requirements contained in this final rule

should be sent to Richard B. Roe, Regional Director, One Blackburn

Drive, Gloucester, MA 01930, and the Office of Management and Budget

(OMB) (Attention NOAA Desk Officer), Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,

508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

Amendment 4 to the Atlantic Sea Scallop Fishery Management Plan

(FMP) was prepared by the New England Fishery Management Council

(Council) in consultation with the Mid-Atlantic and South Atlantic

Fishery Management Councils, under the provisions of the Magnuson

Fishery Conservation and Management Act (Magnuson Act) as amended, 16

U.S.C. 1801 et seq. A notice of availability for the proposed Amendment

was published on August 10, 1993, (58 FR 42522) and a proposed

implementing rule was published on September 2, 1993, (58 FR 46606).

Approval of Amendment 4

Amendment 4 was approved on November 5, 1993. However, concerns

were raised about the potential for Amendment 4 to cause excessive

harvest of small sea scallops the first few years of implementation, if

a supplemental average minimum meat count measure were not included as

a management measure in the Amendment. The Assistant Administrator for

Fisheries, NOAA (AA), approved the Amendment, concurring with the

Regional Director who stated that the issue of increased mortality on

small scallops in the early years of the program was considered by the

Council during deliberations by the Plan Development Team (where

representatives of both the Northeast Fisheries Science Center and the

NMFS Northeast Regional Office participate), the Sea Scallop Oversight

Committee, and the Council. The rebuilding schedule and effort

reductions in the Amendment are designed to strike a balance between an

accelerated rate of recovery and the minimization of economic and

social disruption to the fishery.

Although the Amendment was approved, NMFS remains concerned about

the near-term level of protection of small sea scallops. This concern

is reflected in the Regional Director's approval letter to the Council,

dated November 5, 1993, which advised the Council that the Regional

Director will be carefully monitoring the initial impact of the

Amendment on fishing mortality rates of small sea scallops. If fishing

mortality rates increase beyond anticipated levels, the Council is

expected to implement immediately adjustments under the framework

measures of the Amendment to protect sea scallop stocks adequately.

Overfishing Definition

Amendment 4 includes a definition of overfishing and a

determination that the sea scallop resource is overfished. The preamble

to the proposed rule included the definition of overfishing. It is not

repeated here.

To reduce fishing mortality below the overfishing definition

threshold, the Council will reduce fishing effort by approximately 40

percent over seven years. Because the impact of effort controls and

gear restrictions on the resource is uncertain, the Council estimates

that actual effort reduction needed could be as low as 35 percent or as

high as 70 percent.

Approved Vessel Tracking System (VTS) Vendors

In the proposed rule for Amendment 4, NMFS requested that vendors

interested in having their VTS certified for use in this fishery submit

information showing that the VTS meets the specifications contained in

the proposed rule. NMFS has reviewed the information submitted by

several vendors and will make available to interested parties the names

and addresses of those vendors who appear to meet the specifications.

The opportunity remains open for interested parties to submit their

information to the NMFS and to be added to the list of approved vendors

if it appears to the NMFS that they can meet the specifications. It is

not the intent of the NMFS to assure that the acquisition and

installation of a VTS unit from any one of these vendors meets the

requirement of this rule as specified at Sec. 650.25. Vessel owners

must demonstrate that the system purchased, from the list of approved

vendors, is capable of meeting the operational requirements of the

regulations by providing information on vessel position and vessel

status. It is the intent of the NMFS that until the vessel owner can

demonstrate to the satisfaction of the Regional Director that the VTS

unit is fully operational and is providing the required information to

the NMFS, the vessel owner/operator will not be eligible to receive a

permit unless the Regional Director authorizes the use of a call-in

system in accordance with Sec. 650.26(a)(3).

Effective Date of Management Measures

The specific management measures that will be used to achieve the

necessary reduction in fishing effort include the following: A

moratorium on most new entrants into the scallop fishery; allocations

of days-at-sea (DAS) that vessels may fish for scallops based on three

vessel groups (Full-time, Part-time, and Occasional); a requirement to

purchase and install a VTS unit for Full-time and Part-time vessels and

a call-in system for Occasional vessels to monitor DAS; permits for

vessel operators and dealers; an open access scallop permit for vessels

landing no more than 400 pounds (181.44 kg) of shucked scallops or no

more than 50 U.S. bushels (17.62 hl) of in-shell scallops per trip;

limitations on upgrading of vessel size and engine horsepower; a

prohibition on acquiring more than a 5 percent ownership interest in

the total number of limited access scallop vessels; mandatory reporting

for permitted vessels and dealers; crew-size limits; maximum dredge and

trawl sweep size restrictions; minimum ring and mesh size restrictions;

framework measures to adjust the effort control and other measures; a

minimum shell height restriction; and an annual option for vessels in

the Part-time or Occasional category to fish in the next higher vessel

group if they use only one dredge no more than 10.5 feet (3.2 m) in

width and their crew complement (including the operator) is five or

less. The preamble to the proposed rule described the management

measures and their rationale, which are not repeated here.

NMFS is implementing the measures in the Amendment and proposed

rule as of March 1, 1994, in order to provide opportunity for the

industry to convert to 3\1/4\ inch rings and acquire and install VTS

units; and because of the administrative burden imposed on the NMFS by

these collective measures, e.g., implementation of a VTS; the need to

issue thousands of new permits for operators, dealers and vessels; the

need to establish an appeal process for vessel owners who feel their

DAS allocation is in error and/or for vessels that do not qualify; and

the need to establish details of the recordkeeping and reporting

requirements required under Sec. 650.7 and the DAS monitoring set forth

in Sec. 650.25. While the VTS is being put in place and the initial

problems with that new system are being worked out, a call-in procedure

will be used to implement the DAS allocations. Existing regulations,

including the meat count measure, will remain in effect until March 1,

1994.

On March 1, 1994, the effective date of these regulations, all

scallop vessel owners and operators and all scallop dealers must have

an appropriate permit, as specified under Secs. 650.4, 650.5, and 650.6

in order to participate in the fishery. In order to ensure being issued

a permit, if eligible, by that date all owners, operators, and dealers

should apply for a permit as soon as possible. Application forms are

available now and NMFS will attempt to mail such forms to all known

scallop vessel owners and operators and scallop dealers as soon as

possible. Applications will be processed as received. Early

application, i.e., one filed before February 1, 1994, will help assure

that the permit is issued by March 1, 1994.

As provided in Sec. 650.26(a)(3), until any VTS vendor is approved

and the system is available, all permitted vessels fishing under the

DAS program must comply with the call-in notification provisions of

Sec. 650.26(b).

Comments and Responses

NMFS received comments on the proposed rule from one member of the

Congress of the United States, five fishing industry associations, and

eight individuals. All of the comments were carefully considered during

the formulation of the final rule. Specific comments are discussed and

responded to below.

Comment: A member of Congress of the United States and an

individual opposed the allocation of DAS because it takes Virginia,

North Carolina, and New Jersey fishermen longer to reach their fishing

grounds than it takes New England fishermen. These individuals offered

days fished or a total allowable catch as an alternative. The

commenters stated that the DAS rule gives a distinct advantage to one

area over another, whereas, days fished provides a level playing field

for all scallopers.

Response: The Council analyzed the days fished system before

deciding on the DAS program, using the NMFS weighout database, and

determined that DAS is a fair reflection of a vessel's historical time

at sea because it takes into consideration the number of days a vessel

spent traveling to and from the fishing grounds. The Council also

determined the database could not accurately show actual days fishing.

However, the final rule includes a measure that would allow the

adoption of a days-fished system through a regulatory amendment, if

data become available to support such a system.

Comment: Two industry associations requested an extension of the

comment period to October 28, 1993, because the proposed rule was

published in the Federal Register on September 2, 1993, and their

associations did not receive a copy of the rule until the third week in

September 1993.

Response: The Magnuson Act requires the Secretary of Commerce

(Secretary) to follow a mandated time schedule for approval of a plan

amendment once it has been submitted by a Fishery Management Council.

On July 30, 1993, the New England Fishery Management Council submitted

its plan amendment to NMFS, thereby triggering under the Magnuson Act

the 95-day time period in which the Secretary must approve or

disapprove the amendment. Because of this limited time frame to

consider and respond to public comment and prepare the final rule for

publication, NMFS allows for 45 days of public comment. NMFS believes

the 45 days given for comment are adequate.

Comment: Two industry associations stated that they do not support

staggering of implementation dates for measures contained in the

amendment and recommend that the meat count system remain in effect

until all management measures contained in Amendment 4 are implemented.

Response: The final rule retains the meat count measure until the

new measures are implemented.

Comment: Two industry associations commented that the requirement

to submit applications for Operator permits 30 days prior to the date

on which the permits are desired is unreasonable and recommended

issuing permits locally or by FAX.

Response: Due to the projected initial volume of applications for

Operator permits required under Amendment 4, the NMFS needs the

flexibility to take 30 days to process and mail permits. However, NMFS

will make every effort to process permits sooner. NMFS will make

available permit applications well in advance of March 1, 1994, in

order to maximize the likelihood that all participants in the scallop

fishery will have the ability to obtain a permit before March 1, 1994.

Comment: One industry association commented that the requirement to

provide written notice of changes in application information sections

for Vessel, Operator, and Dealer permits was ambiguous and recommended

that the changes be sent by registered or certified mail.

Response: The sections have been rewritten and now require that

within 15 days after a change in the application information, a written

report of the change be submitted and received by the Regional

Director. Requiring all changes to be sent by registered or certified

mail would be too burdensome. Nevertheless, permit holders could choose

to send the notice of change by registered or certified mail, return

receipt requested, if they want to verify that timely notification

occurred.

Comment: Two industry associations and three individuals requested

that the requirement of no more than double links between rings of a

scallop dredge be changed to allow the placement of a new link between

any two worn out ones or that the requirement be limited only to the

apron of the dredge.

Response: Requiring double links between rings throughout the

entire dredge is necessary to insure the escapement of small sea

scallops in order to mitigate the impact of removing the meat-count-

age-of-entry requirement. The NMFS recognizes that this may require

some change in industry practices but considers these measures to be

necessary to the overall success of the management program.

Comment: Two industry associations commented that the vessel

recording and reporting requirements were burdensome and unnecessary.

Response: A mandatory real-time data collection system including

census coverage is necessary to assess the effectiveness of the new

management measures and to make the necessary adjustments through the

framework system.

Comment: An industry association objected to the requirement, under

the recordkeeping and reporting requirements of Sec. 650.7 (a)(1) and

(b)(1), to provide any other information required by the Regional

Director.

Response: This requirement provides NMFS the flexibility to obtain

the information necessary for management, and is not open-ended since

the Regional Director must demonstrate that any additional data

requested is necessary to manage the fishery.

Comment: An individual objected to the prohibition on transferring

scallops at sea because it would not allow the transfer of sea scallop

product to freezer vessels at sea.

Response: The transfer prohibition reflects the Council intent to

control and equalize the amount of fishing pressure associated with

allocated DAS. From an enforcement perspective, the prohibition is

considered critical because it would be difficult to detect violations

unless all transfers are prohibited.

Comment: Two industry associations requested that the at-sea

observer requirements under Sec. 650.28 be deleted because the

provisions of this section were not clear regarding observer and vessel

responsibilities.

Response: A high level of monitoring is required to ensure the

effectiveness of the management program and to avoid imposing more

restrictive measures than necessary on the industry because of

insufficient data. This provision gives the Regional Director the

discretion to require a vessel to carry an observer to enhance data

collection, if necessary. In most cases where observer coverage is

considered necessary, the Regional Director will first attempt to

enlist voluntary participation. Observers would be provided through

existing NMFS observer programs. The vessel would not have to pay the

salary for the observer but would have to provide adequate

accommodations and food. Neither NMFS nor the government is responsible

for providing insurance coverage for the observer; each vessel should

provide appropriate coverage.

Comment: Two industry associations supported the framework measures

as described under Sec. 650.40.

Response: Comment noted.

Comment: An individual opposed, based on efficiency and safety

concerns, limiting scallop vessel crews to no more than nine people,

including the operator, while fishing under the scallop DAS program.

Response: Most scallop dredge vessels currently have their crew

members shuck scallop meats by hand while at sea. The amount and size

of scallops selected for shucking is a function of the crew size and

the catch rates. The crew size restriction reflects the Council's

intention to cap the fishing power of these vessels at sea by limiting

their processing (shucking) capacity. Currently, the average crew size

on sea scallop vessels is nine; in the past, crew sizes were larger but

this was a reflection of the condition of the resource. NMFS is not

aware of any data or information indicating that the limitation on crew

size will affect safety at sea.

Comment: An individual opposed the use of vessel landings in 1988

or 1989 as a criterion for limiting access to participation in the

fishery and stated that this measure does not meet the requirements of

the Magnuson Act.

Response: This requirement complies with the Magnuson Act for

establishing a system for limited access to a fishery. If a system for

limiting access to a fishery is included in a plan, the Magnuson Act

requires the Council and the Secretary to ``take into account'' such

factors as present participation in the fishery, historical fishing

practices and dependence on the fishery, and capability of vessels to

be used in other fisheries. The Council and NMFS considered all of

these factors in establishing criteria required to qualify for full

participation in the scallop fishery. A control date was announced on

March 2, 1989, which gave notice to participants and potential

participants of the fact that future participation in the fishery may

be limited for vessels that entered the fishery after the control date.

The purpose of the control date was to discourage speculative entry

into the fishery while development of Amendment 4 progressed. In

deciding to add the requirement that a vessel must have landed more

than 400 pounds of scallops on at least one trip in 1988-1989 in order

to be eligible to participate in the fishery, the Council was

addressing the factor of historical fishing practices and dependence on

the fishery. Later in its deliberations, the Council recognized that

not all participants may have received timely notice of the control

date and, therefore, allowed a limited exception for vessels purchased

after the control date if the vessels had any participation in the

fishery between 1982 and 1990. With respect to determining allocations

of DAS, the Council expanded historical participation to include 1985-

1990 in order to recognize longstanding historical dependence on the

fishery.

The rule also adopts a Council recommendation to establish an

exemption to the limited access fishery for vessels that land less than

400 pounds of scallops per day, in order to provide some opportunity

for small-scale operations and new entrants to participate in the

scallop fishery. Therefore, the Council's and NMFS's decision to rely

on the criteria contained in the final rule represents a balancing of

present and historical participation in the fishery with the need to

reduce fishing mortality by limiting the number of full-time

participants in the fishery.

Comment: One individual was opposed to the minimum ring size of

3\1/4\ inches and another individual stated that the ring size must

remain at 3\1/4\ inches. Both individuals were opposed to further

increases to 3\1/2\ inches under Sec. 650.21.

Response: This requirement is necessary to provide protection for

small scallops and to help control the amount of fishing mortality

associated with a DAS. This measure is designed to help mitigate the

impact of removal of the meat count which provides age-at-entry

controls. It is not expected, however, to afford age-at-entry

protection equal to the current meat count system.

Comment: Three industry associations and three individuals

commented about a currently ongoing ring size experimental study being

done under a Saltonstall/Kennedy grant and what impact it would have on

Amendment 4.

Response: NMFS contacted William D. DuPaul, Ph.D., of the Virginia

Institute of Marine Science, principal investigator on the experimental

study, regarding the comments received. He commented that the first

fishing trip of the experiment had recently been completed by a

commercial vessel out of the port of New Bedford and that the larger

rings allowed for significantly more escapement than the 3-inch rings

currently in use by the industry. DuPaul also commented that the study

is ongoing and that it is too early to draw any conclusions from the

one trip taken. Final results on the experiment are not expected until

work is completed in late winter of 1994. Therefore, NMFS has not

considered the preliminary results of the ongoing experiment for the

purposes of this rule.

Based on the best scientific information available at this time,

however, there seems to be a correlation between ring size and size of

scallops retained by scallop dredges. Because removing the meat count

measure effectively removes all age-at-entry controls, the Council and

NMFS have determined that implementation of minimum ring size

requirements simultaneously with removal of the meat count measure is

critical to the achievement of the amendment's objectives. Failure to

provide some age-at-entry limitations could seriously jeopardize the

ability of the management measures to achieve plan objectives in the

time required.

Comment: Two individuals commented that vessel owners should be

allowed to combine limited access scallop permits and DAS allocations

on one vessel and that ownership interest should not be limited to 5

percent of the total number of scallop vessels qualifying under the

moratorium.

Response: National Standard 5, 16 U.S.C. 1851(a)(5), states that

conservation and management measures, where practicable, should promote

efficiency. This standard also provides, however, that the goals of

efficiency may be balanced against other factors such as social and

biologic. In its deliberations, the Council explicitly considered

possible gains in efficiency in allowing DAS to be combined, but

ultimately rejected such a measure because of socioeconomic concerns of

preserving current fishing practices and traditions at the outset of

the management program. The Council was concerned that allowing

combination or transfer of DAS allocations, at this time, may

precipitously lead to aggregation of fishing rights in the hands of a

few, thereby challenging the current type of fishing operations

associated with the northeast region. Moreover, it would be

impracticable to allow such fishing rights to be transferred, at this

time, before the effectiveness of the management measures could be

assessed. The Council did provide, however, that measures that may

enhance efficiency can be considered and adopted through the framework

procedure specified in the rule. NMFS concurs in the Council's

deliberations and conclusions concerning these measures.

Comment: Two industry associations were opposed to allowing changes

to the moratorium under the framework provisions of the regulations if

fishing mortality declines faster than anticipated.

Response: The rule does not pre-determine whether the moratorium

will be lifted. The rule provides only that the Council may consider

such a measure. If and when the Council considers such a measure, the

plan requires that it be subject to public comment and that commenters

have adequate opportunity to respond. If the Council decides to address

this subject under the framework specifications all interested parties

will be contacted and will have the opportunity to comment. The Council

could adopt such measures only if it can be demonstrated that they are

necessary to meet the goals and objectives of the FMP, including

socioeconomic goals.

Comment: An industry association was opposed to allowing changes to

the management measures through the framework specifications without

considering appropriate analysis.

Response: The Council must provide the appropriate rationale and

economic and biological analysis when determining whether adjustments,

or additional management measures, are necessary to meet the goals and

objectives of the rebuilding program of the FMP.

Comment: An industry association requested clarification of the

regulations relating to when a DAS starts and ends.

Response: Sec. 650.24(c)(2) has been modified to explain more

clearly how DAS accrue under both the VTS and the call-in monitoring

system.

Comment: An industry association requested that the Regional

Director send notices to permit holders regarding VTS performance

criteria and approval, including costs.

Response: In addition to publishing a list of approved VTS vendors

in the Federal Register, all sea scallop permit holders will receive

the information by letter from the Regional Director. As to costs,

vessel owners will have to contact the individual vendors.

Comment: An industry association questioned the necessity for VTS

vendors to have the capacity to archive vessel position histories and

suggested that the requirement, with its related cost imposed on a non-

fishing industry, is not within the realm of the Magnuson Act.

Response: This requirement only applies to vendors that volunteer

to meet the specifications and provide VTS units to vessels in the

fishery. The specification is necessary to comply with the Council's

intent to provide NMFS with the capability to monitor and enforce the

number of DAS used by each individual vessel issued DAS allocations.

Changes From the Proposed Rule

Changes were made to several sections of the proposed rule to

clarify the measures and to ensure consistency with other regulations.

In addition, substantive changes were made to the following sections:

In Sec. 650.2, the definitions for Authorized officer, Fishing, or

to fish, and NMFS were deleted because they are set forth in 50 CFR

part 620, which provides general Magnuson Act provisions.

In Sec. 650.2, the definition of an Operator was modified to add

the phrase ``or other individual on board'', to clarify further the

person in charge of the vessel while fishing.

In Sec. 650.2, the definition of a Vessel Tracking System was

modified to add the phrase ``as set forth in Sec. 650.25(a)(2) and

approved ``, to clarify further the meaning of a Vessel Tracking

System.

In Sec. 650.3, paragraph (b) was added to clarify the relationship

between state and Federal regulations for Atlantic sea scallops.

In Sec. 650.4, the narrative within the first paragraph and

paragraph (a) was modified to add the phrase ``and carry on board an

authorizing letter issued under Sec. 650.4(a)(9)(vi)(D),'' to clarify

how vessels appealing a denial of a limited access scallop permit may

continue to fish.

In Sec. 650.4, paragraph (a)(1)(i), the phrase ``and its owner''

was added in order to be consistent with following sections that refer

to both vessel and vessel owner.

In Sec. 650.4, paragraph (a)(1)(i)(D), the phrase ``and the vessel

meets the criteria described in paragraph (a)(4) of this section.'' was

deleted because it was not accurate.

In Sec. 650.4, paragraph (a)(1)(iii) and (d), the phrase

``Applications for limited access scallop permits under this section

will not be accepted after 12 months after the effective date of the

final regulations for Amendment 4.'' was replaced with ``Applications

for limited access scallop permits under this section will not be

accepted after December 31, 1994.'', to clarify that applications for

1994 permits must be received by the end of the calendar year.

In Sec. 650.4, paragraph (a)(4)(ii), the sentence ``For

undocumented vessels, net tonnage does not apply.'' was added to

clarify further the requirements for replacement vessels.

In Sec. 650.4, paragraph (a)(5)(ii) was modified to add the

sentence, ``This type of upgrade may be done separately from an engine

horsepower upgrade.'', in order to clarify further the requirements for

upgrading a vessel.

In Sec. 650.4, paragraph (a)(7) (i) and (ii), ``March 1, 1994,''

was added for clarification and consistency with the beginning

effective date of the moratorium on limited access scallop permits.

In Sec. 650.4, paragraph (a)(9)(vi), the heading was modified to

add the phrase ``of a limited access scallop permit denial'' in order

to clarify that the appeal process under this paragraph applies only to

limited access scallop permit denial. The paragraph was further

modified to add the phrase ``if the vessel has on board a letter of

authorization from the Regional Director'' to clarify the requirements

that vessels fishing under appeal must carry on board the letter issued

under Sec. 650.4(a)(9)(vi)(D).

In Sec. 650.4, paragraph (a)(9)(vi)(D) was modified to add the

sentence, ``If the appeal is denied, The Regional Director shall send a

notice of denial to the vessel owner; the authorizing letter becomes

invalid 5 days after receipt of the notice of denial.'', to clarify how

vessel owners will be notified in the event of a denial of the appeal

of a limited access scallop permit.

In Sec. 650.5, paragraph (c) was modified to add the sentence,

``Further, such operators must agree as a condition of this permit that

if the permit is suspended or revoked pursuant to 15 CFR part 904, the

operator cannot be on board any fishing vessel issued a Federal

Fisheries Permit or any vessel subject to Federal fishing regulations

while the vessel is at sea or engaged in offloading.'' This phrase was

included under Sec. 650.5(n) in the proposed rule and is repeated in

this section in the final rule to increase awareness of this provision.

In Sec. 650.5, paragraph (n) was modified to add the phrase ``while

the vessel is at sea or engaged in offloading'', to allow vessel

operators to conduct business activity on board a vessel when the

vessel is not engaged in any type of fishing activity.

In Sec. 650.6, paragraph (g) was modified to add the phrase, ``or

ownership changes,'' to clarify that the permit does not transfer with

the change in ownership of the business.

In Sec. 650.7, paragraph (a)(1) was modified to replace ``provide''

with ``mail'' to clarify the way in which the reports will be

submitted. The paragraph was further modified to contain the phrase,

``name and permit number of the vessels from which fish are landed or

received;'' and the sentence, ``If no fish is purchased during the

week, a report so stating must be submitted.'', to clarify reporting

requirements for dealers and to be consistent with the reporting

requirements of other regulations.

In Sec. 650.7, paragraph (a)(2) was modified to read, ``Required

data are the number of employees handling fishery products by month.

Reports for a given calendar year shall be submitted to: NMFS

Statistics, 166 Water Street, Woods Hole, MA 02543, and must be

postmarked by February 10 of the following year.'' This change further

details the requirements for this reporting requirement.

In Sec. 650.7, paragraph (a)(5) was modified to add the following

sentence, ``If no product was purchased during a week, a report so

stating must be submitted.''

In Sec. 650.9, paragraph (b)(1) was subdivided into paragraphs (i)

and (ii). Paragraph (b)(1)(ii) was added in order to clarify paragraph

(b)(1)(i) by prohibiting more than one trip per calendar day.

In Sec. 650.9, paragraph (b)(11), (b)(12), (b)(13), (b)(17), and

(c)(4), the phrase ``Possess on board or'' was added to clarify the

prohibition.

In Sec. 650.9, the following changes were made to clarify the

prohibitions. Paragraph (c) was subdivided into paragraphs (c)(1)

through (c)(7). Paragraph (d)(4) was changed to paragraph (d)(4)(i),

and a new paragraph, (d)(4)(ii), was added. Paragraphs (d)(10) through

(d)(15) were redesignated as paragraphs (d)(11) through (d)(16), and a

new paragraph (d)(10) was added.

In Sec. 650.20, paragraph (a) was modified to add the phrase,

``that may be landed, or possessed at or after landing,'' in order to

clarify that the minimum shell height size is not an at-sea measure.

Parallel changes were made to sections 650.20(b) and 650.9(a)(1) to

reflect this clarification.

In Sec. 650.21, paragraph (a) was modified to add the phrase ``in

possession of more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.2 l) of in-shell scallops, or fishing for scallops,''

to clarify that certain trawl gear restrictions are also possession

restrictions applicable to any vessel possessing more than 40 pounds of

shucked scallops or 5 bushels of in-shell scallops. Similar changes

were made to Sec. 650.21(a) (1)-(2) and Sec. 650.9(b)(8).

In Sec. 650.21, paragraph (b) was modified by deleting the phrase

``holding a Federal sea scallop permit under Sec. 650.4 and'' and

adding the phrases ``of more than 40 pounds (18.14 kg) of shucked

scallops or 5 U.S. bushels (176.2 l) of in-shell scallops'' and all

vessels issued limited access scallop permits and fishing under the DAS

allocation program,'' to clarify that the dredge restrictions apply to

all dredge vessels in possession of more than 40 pounds of shucked

scallops or 5 bushels of in-shell scallops. In Sec. 650.21, paragraphs

(b) (1)-(3) were modified to add the phrase ``in use by or in

possession of such vessels'' to clarify that the dredge restrictions

are possession restrictions also. The corresponding prohibition

sections to these restrictions, Sec. 650.9, paragraphs (b) (11)-(15)

and Sec. 650.9, paragraphs (c) (2)-(6), were changed accordingly to

reflect these clarifications.

In Sec. 650.21, paragraph (b)(iii), the sentence, ``The ring size

will be the average of the measurements of any series of 20 consecutive

rings.'' was deleted. This provision had been added by NMFS with the

intent of facilitating enforcement. However, upon further

consideration, it was determined that allowing an average minimum ring

size would necessitate difficult and problematic measuring requirements

and possibly would not be consistent with the Council's intent that no

rings should be less than 3\1/4\ inches. NMFS is developing a standard

measuring device and procedures to determine minimum ring sizes and

will publish a description of such device and procedures in the Federal

Register.

In Sec. 650.21, paragraph (e) was modified to add the phrase, ``in

addition to or notwithstanding other restrictions in this Part'' to

clarify that vessels operating under the small dredge program are still

subject to other restrictions in Sec. 650 unless modified by the

special provisions of this section.

In Sec. 650.24, paragraph (c)(2)(ii) was expanded to clarify the

process for counting days at sea under the call-in system.

In Sec. 650.24, paragraph (f)(6) was modified to add the phrase

``if the vessel has on board an authorizing letter from the Regional

Director''.

In Sec. 650.25, paragraph (b) was modified to cross reference

correctly the call-in procedures described in Sec. 650.26(b).

In Sec. 650.26, paragraph (a) was modified to correctly cross

reference the small dredge program in Sec. 650.21(e).

In Sec. 650.26, paragraphs (a)(1) and (a)(2) were modified to

indicate that the Regional Director is to be notified ``through the

VTS''.

In Sec. 650.26, paragraph (a)(3) was modified to add the phrase

``or not functional''.

In Sec. 650.26, paragraph (b) was modified to add language that is

more specific regarding the call-in notification requirements of the

vessel owner or authorized representative.

In Sec. 650.26, paragraphs (b)(2) and (b)(4), the requirement that

vessel owners or their authorized representative call-in 2 hours prior

to leaving port and within 1 hour of returning to port was replaced

with the provision that the DAS will begin and end upon receipt of the

call. The Regional Director has determined that this less restrictive

requirement is supportable by current technology without compromising

the enforceability of this measure.

In Sec. 650.40, paragraph (c), the phrase ``After considering the

PDT's findings and recommendations, or at any other time,'' was added

in order to clarify the Council's procedures when it is considering

changes in management measures.

In Sec. 650.40, paragraph (e)(3), the sentence ``The Council may

reconsider its prior action and recommend a new action under paragraph

(d) of this section.'' was deleted because it is considered to be

unnecessary.

Classification

The Secretary of Commerce (Secretary) determined that the FMP

amendment that this rule would implement is consistent with the

national standards, other provisions of the Magnuson Act, and other

applicable law. The Secretary, in making that determination, has taken

into account the information, views, and comments received during the

comment period.

The Council prepared a final supplemental environmental impact

statement (FSEIS) for Amendment 4, which was filed by the Environmental

Protection Agency with the Office of the Federal Register. The

Environmental Protection Agency has recommended that the National

Marine Fisheries Service conduct studies in the near future to monitor

the effect of scallop dredges on bottom habitat. The AA has determined

that the preferred alternative of Amendment 4 versus the status quo is

environmentally preferable upon review of the FSEIS and public

comments. The FSEIS demonstrates that the preferred alternative

contains management measures to rebuild the stock of Atlantic sea

scallops, provides positive economic and social benefits to the fishing

industry in the long term, and provides balance in the ecosystem in

terms of the sea scallop resource.

NMFS certified to the Small Business Administration that this rule

may have significant effects on a substantial number of small entities

under the Regulatory Flexibility Act. For the purposes of the RFA, the

RIR is retitled as a RIR/regulatory flexibility analysis (RFA).

According to the RIR/RFA prepared by the Council, the management

measures will have some negative impact on small entities. There are

approximately 400-600 vessels that rely on scallops for a portion of

their revenue. All are considered small entities. Of these, more than

150 vessels would not qualify for the vessel moratorium and may have to

redirect effort into other fisheries. Approximately 63 percent of the

150 vessels, however, depend on sea scallops for 15 percent or less of

their total revenue and may be able to compensate by participating in

the general scallop fishery (no moratorium, landings up to 400 pounds

(181.44 kg) per trip). For those vessels qualifying for the limited

access fishery, there are significant short-term losses in revenue that

are offset by long-term gains.

The rule contains eight new collection-of-information requirements

and also revises four existing requirements previously approved by OMB

under Control Numbers 0648-0202 and 0648-0229 and 0648-0018. These

collection-of-information requirements have been approved by OMB.

Nevertheless, public comments are invited on the burden-hour estimates

for the collection of information requirements as listed below.

The new reporting requirements are:

(1) Dealer permits (Sec. 650.6--OMB Approval Number 0648-0202) (5

minutes/response);

(2) Operator permits (Sec. 650.5--OMB Approval Number 0648-0202) (1

hour/response);

(3) Notice requirements for observer deployment (Sec. 650.28--OMB

Approval Number 0648-0202) (2 minutes/response);

(4) Proof of installation of vessel tracking system, (Sec. 650.25--

OMB Approval Number 0648-0202) (2 minutes/response);

(5) Automated vessel tracking system (Sec. 650.25--OMB Approval

Number 0648-0202) (0 minutes/response);

(6) Vessel call-in requirement (Sec. 650.25--OMB Approval Number

0648-0202) (2 minutes/response);

(7) Days-at-sea exemption program (Sec. 650.27--OMB Approval Number

0648-0202) (2 minutes/response);

(8) Vessel logbooks (Sec. 650.7--OMB Approval Number 0648-0212) (5

minutes/response).

Revisions to existing requirements are:

(1) Limited access scallop permit appeals--appeal of denied permits

will require written submission (Sec. 650.24--OMB Approval Number 0648-

0202) (3 hours/response);

(2) Days-at-sea appeals--appeal of the days-at-sea allocation will

require written submission (Sec. 650.24--OMB Approval Number 0648-0202)

(5 hours/response);

(3) Dealer purchase reports (Sec. 650.7--OMB Approval Number 0648-

0229) (2 minutes/response);

(4) Annual processed products reports (Sec. 650.7--OMB Approval

Number 0648-0018) (2 minutes/response).

List of Subjects in 50 CFR Part 650

Fisheries, Reporting and recordkeeping requirements.

Dated: January 12, 1994.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 650 is revised

to read as follows:

PART 650--ATLANTIC SEA SCALLOP FISHERY

Subpart A--General Provisions

Sec.

650.1 Purpose and scope.

650.2 Definitions.

650.3 Relation to other laws.

650.4 Vessel permits.

650.5 Operator permits.

650.6 Dealer permits.

650.7 Recordkeeping and reporting.

650.8 Vessel identification.

650.9 Prohibitions.

650.10 Facilitation of enforcement.

650.11 Penalties.

Subpart B--Management Measures

650.20 Shell-height standard.

650.21 Gear and crew restrictions.

650.22 Possession restrictions.

650.23 Transfer-at-sea.

650.24 Days-at-sea (DAS) allocations.

650.25 Monitoring requirements.

650.26 DAS notification program.

650.27 DAS exemption program.

650.28 At-sea observer coverage.

650.29 Experimental fishing exemption.

Subpart C--Framework Adjustments to Management Measures

650.40 Framework specifications.

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

Subpart A--General Provisions

Sec. 650.1 Purpose and scope.

The purpose of this part is to implement the Fishery Management

Plan for the Atlantic Sea Scallop Fishery (FMP), which was prepared and

adopted by the New England Fishery Management Council in consultation

with the Mid-Atlantic and South Atlantic Fishery Management Councils,

and approved by the Assistant Administrator for Fisheries, NOAA.

Sec. 650.2 Definitions.

In addition to the definitions in the Magnuson Act and in

Sec. 620.2 of this chapter, the terms used in this part have the

following meanings:

Atlantic sea scallop or scallop means the species Placopecten

magellanicus throughout its range.

Chafing gear or cookies mean steel, rubberized or other types of

donut rings, disks, washers, twine, or other material attached to or

between the steel rings of a sea scallop dredge.

COLREGS Demarcation Lines mean the lines of demarcation delineating

those waters upon which mariners must comply with the International

Regulations for Preventing Collisions at Sea, 1972 (33 CFR part 80),

and those waters upon which mariners must comply with the Inland

Navigation Rules.

Council means the New England Fishery Management Council.

Day(s)-at-sea (DAS) means each 24-hour period of time during which

a fishing vessel is absent from port for purposes of scallop fishing.

Dealer means any person who receives scallops for a commercial

purpose from the owner or operator of a vessel, other than exclusively

for transport on land.

Dredge or dredge gear means gear consisting of a mouth frame

attached to a holding bag constructed of metal rings, or any other

modification to this design, that can be or is used in the harvest of

Atlantic sea scallops.

Dredge top means the mesh panel in the top of a dredge and

immediately adjacent rings and links found between the bail of the

dredge, the club stick and the two side panels. The bail of the dredge

is the rigid structure of the forward portion of the dredge that

connects to the warp and holds the dredge open. The club stick is the

rigid bar at the tail of the dredge bag that is attached to the rings.

Dredge vessel means any fishing vessel that is equipped for fishing

using dredge gear and that is capable of catching Atlantic sea

scallops.

Fishery Management Plan (FMP) means the Fishery Management Plan for

Atlantic Sea Scallops, as amended.

Gross registered tonnage means the gross registered tonnage

specified on the U.S. Coast Guard documentation for a vessel.

Land means to enter port with fish on board, to begin offloading

fish, or to offload fish.

Net tonnage means the net tonnage specified on the U.S. Coast Guard

documentation for a vessel.

Offload means to begin to remove, to remove, to pass over the rail,

or otherwise take away fish from any vessel.

Operator means the master or captain of the vessel, or other

individual on board the vessel, who is in charge of that vessel's

operations.

Postmark means independently verifiable evidence of date of

mailing, such as U.S. Postal Service postmark, United Parcel Service

(U.P.S.) or other private carrier postmark, certified mail receipt,

overnight mail receipt, or receipt received upon hand delivery to an

authorized representative of NMFS.

Regional Director means the Director, Northeast Region, NMFS, 1

Blackburn Drive, Gloucester, MA 01930-2298, or a designee.

Reporting month means a period of time beginning at 0001 hours

local time on the first day of each calendar month and ending at 2400

hours local time on the last day of each calendar month.

Reporting week means a period of time beginning at 0001 hours local

time on Sunday; and ending at 2400 hours local time the following

Saturday.

Re-rig or re-rigged means physical alteration of the vessel or its

gear in order to transform the vessel into one capable of fishing

commercially for sea scallops.

Sea Scallop Plan Development Team (PDT) means a team of technical

experts appointed by the Council.

Shell height is a straight line measurement from the hinge to the

outermost part of the shell, that is, the edge furthest away from the

hinge.

Shucking or to shuck means opening or to open a scallop and

removing the meat or the adductor muscle from the shell.

Shucking machine means any mechanical device that automatically

removes the meat or the adductor muscle from a scallop shell.

Sorting machine means any mechanical device that automatically

sorts whole scallops by shell height, size, or other physical

characteristics.

Transfer means to begin to remove, to remove, to pass over the

rail, or otherwise take away fish from any vessel and move them to

another vessel.

Trawl means gear consisting of a net that is towed and is capable

of catching sea scallops, including Danish and Scottish seine gear.

Trawl sweep means the total length of the footrope on a trawl net

that is directly attached to the webbing of a net.

Trip is the period of time during which a fishing vessel is absent

from port, beginning when the vessel leaves port and ending when the

vessel returns to port.

Under agreement for construction means that the keel has been laid

and that there is a written agreement to construct a fishing vessel.

Vessel registered length means the registered length specified on

the U.S. Coast Guard documentation for a vessel or on the state

registration for a vessel not required to be documented under Title 46

U.S.C., if the state-registered length is verified by an authorized

officer.

Vessel Tracking System (VTS) means a vessel tracking system as set

forth in Sec. 650.25(a)(2) and approved by NMFS for use by scallop

vessels as required by this part.

VTS unit means a device installed on board a vessel used for vessel

tracking and transmitting the tracked position as required by this

part.

Sec. 650.3 Relation to other laws.

(a) The relation of this part to other laws is set forth in

Sec. 620.3 of this chapter.

(b) Nothing in these regulations shall supersede more restrictive

state management measures for Atlantic sea scallops.

Sec. 650.4 Vessel permits.

Any vessel of the United States that fishes for, possesses, or

lands per trip Atlantic sea scallops in quantities greater than 40

pounds (18.14 kg) shucked scallops or 5 bushels (176.2 l) in-shell,

except vessels that fish exclusively in state waters for sea scallops,

must have been issued and carry on board an authorizing letter issued

under Sec. 650.4(a)(9)(vi)(D), a valid limited access scallop permit or

a valid general scallop permit, issued under this section.

(a) Limited access scallop permits. Any vessel of the United States

that possesses or lands per trip more than 400 pounds (181.44 kg) of

shucked scallops or the equivalent amount of in-shell scallops (50 U.S.

bushels (17.62 hl)), except vessels that fish exclusively in state

waters for sea scallops, must have been issued and carry on board an

authorizing letter issued under Sec. 650.4(a)(9)(vi)(D), or a valid

Federal limited access scallop permit. To qualify for a limited access

scallop permit a vessel must meet the following criteria, as

applicable:

(1) Eligibility in 1994. (i) To be eligible to obtain a limited

access scallop permit for 1994, a vessel must meet one of the following

criteria:

(A) The vessel had been issued a Federal scallop permit in 1988 or

1989, and the vessel landed more than 400 pounds (181.44 kg) of shucked

scallops or the equivalent amount of in-shell scallops (50 U.S. bushels

(17.62 hl)) on at least one trip completed during 1988 or 1989; or,

(B) The vessel was under written agreement for construction or for

re-rigging on or prior to March 2, 1989, and the vessel was issued a

Federal scallop permit and landed scallops between March 2, 1989, and

March 2, 1990; or,

(C) The vessel was purchased between March 2, 1989, and November

28, 1990; it had been issued a Federal scallop permit and landed

scallops between January 1, 1982, and January 1, 1988; and it had been

issued a Federal scallop permit and landed more than 400 pounds (181.44

kg) of scallops on any one trip completed in 1990; or,

(D) The vessel is replacing a vessel that meets any of the criteria

set forth in paragraph (a)(1)(i)(A), (a)(1)(i)(B) or (a)(1)(i)(C) of

this section.

(ii) No more than one vessel may qualify, at any one time, for a

limited access scallop permit based on that or another vessel's fishing

and permit history. If more than one vessel owner claims eligibility

for a limited access scallop permit, based on one vessel's fishing and

permit history, the Regional Director shall determine who is entitled

to qualify for the limited access scallop permit and the DAS allocation

according to paragraph (a)(3) of this section.

(iii) A limited access scallop permit for 1994 will not be issued

unless the application for such permit is received by the Regional

Director on or before December 31, 1994.

(2) Eligibility in 1995 and thereafter. To be eligible to renew or

apply for a limited access scallop permit after 1994, a vessel must

have been issued a limited access scallop permit for the preceding

year, or the vessel must be replacing a vessel that had been issued a

limited access scallop permit for the preceding year, and, if

applicable, the vessel must meet the criteria set forth in paragraph

(a)(4) of this section. If more than one vessel owner claims

eligibility to apply for a limited access scallop permit based on one

vessel's fishing and permit history after 1994, the Regional Director

shall determine who is entitled to qualify for the limited access

scallop permit and the DAS allocation according to paragraph (a)(3) of

this section.

(3) Change in ownership. The fishing and permit history of a vessel

is presumed to transfer with the vessel whenever it is bought, sold, or

otherwise transferred, unless there is a written agreement, signed by

the transferor/seller and transferee/buyer, or other credible written

evidence, verifying that the transferor/seller is retaining the vessel

fishing and permit history for purposes of replacing the vessel.

(4) Replacement vessels. To be eligible to replace a vessel that

has been issued a limited access scallop permit, the replacement vessel

must meet the following criteria:

(i) The replacement vessel's horsepower may not exceed by more than

20 percent the horsepower of the vessel it is replacing as of the date

the vessel it is replacing was initially issued a 1994 limited access

scallop permit as specified on a valid application for a permit under

this section; except that, the horsepower of the replacement vessel may

not exceed the horsepower of the vessel being replaced if the

horsepower of the vessel being replaced has been increased through

upgrade or vessel replacement from that specified when the vessel being

replaced initially applied for a 1994 limited access scallop permit;

and,

(ii) The replacement vessel's length, gross registered tonnage, and

net tonnage may not exceed by more than 10 percent the length, gross

registered tonnage, and net tonnage of the vessel being replaced, based

on specifications provided in the initial 1994 application for a

limited access scallop permit; except that, the length, gross

registered tonnage, and net tonnage of the replacement vessel may not

exceed the length, gross registered tonnage, and net tonnage of the

vessel initially issued a limited access scallop permit if any or all

of these specifications have been increased through upgrade or vessel

replacement from that specified when the vessel being replaced

initially applied for a 1994 limited access scallop permit. For

purposes of this paragraph, a vessel not required to be documented

under Title 46, U.S.C. will be considered to be 5 gross registered

tons. For undocumented vessels, net tonnage does not apply.

(5) Upgraded vessel. To remain eligible to retain a valid limited

access scallop permit, or to apply for, or renew a limited access

scallop permit, a vessel may be upgraded, whether through refitting or

replacement, only if the upgrade complies with the following

limitations:

(i) The vessel's horsepower may be increased, whether through

refitting or replacement, only once. Such an increase may not exceed 20

percent of the horsepower of the vessel initially issued a 1994 limited

access scallop permit as specified in that vessel's permit application

for a 1994 limited access scallop permit; and,

(ii) The vessel's length, gross registered tonnage and net tonnage

may be upgraded, whether through refitting or replacement, only once.

Such an increase shall not exceed 10 percent each of the length, gross

registered tonnage, and net tonnage of the vessel initially issued a

1994 limited access scallop permit as specified in that vessel's

application for a 1994 limited access scallop permit. This limitation

allows only one upgrade, at which time any or all three specifications

of vessel size may be increased. This type of upgrade may be done

separately from an engine horsepower upgrade.

(iii) A replacement of a vessel that does not result in increasing

horsepower, length, gross registered tonnage or net tonnage is not

considered an upgrade for purposes of this section.

(6) Notification of eligibility for 1994. (i) NMFS will attempt to

notify all owners of vessels for which NMFS has credible evidence that

they meet the criteria described in paragraph (a)(1) of this section,

that they qualify for a limited access scallop permit if they meet the

requirements contained in paragraphs (c) through (g) of this section.

(ii) If a vessel owner has not been notified that the vessel is

eligible to be issued a limited access scallop permit, and the vessel

owner believes that there is credible evidence that the vessel does

qualify under the pertinent criteria, the vessel owner may apply for a

limited access scallop permit by meeting the requirements described

under paragraphs (d) and (e) of this section and by submitting the

information described in paragraphs (a)(1) through (a)(5) of this

section. In the event the application is denied, the applicant may

appeal as specified in paragraph (a)(9) of this section. If, through

either of these procedures, the Regional Director determines that the

vessel meets the eligibility criteria, a limited access scallop permit

will be issued to the vessel.

(7) Percentage ownership restrictions. (i) Any vessel owner is

eligible to apply for and be issued a 1994 limited access scallop

permit for any vessel owned as of March 1, 1994, provided that the

vessel meets all pertinent criteria in this part regardless of the

owner's ownership in other scallop vessels on March 1, 1994.

(ii) For any vessel acquired after March 1, 1994, except as

provided in paragraph (a)(7)(iii) of this section, a vessel owner is

not eligible to be issued a limited access scallop permit for the

vessel if the issuance of the permit will result in the vessel owner,

or any person who is a shareholder or partner of the vessel owner,

having an ownership interest in limited access scallop vessels in

excess of 5 percent of the number of all limited access scallop vessels

at the time of permit application.

(iii) Vessel owners who were initially issued a 1994 limited access

scallop permit, or were issued or renewed a limited access scallop

permit for a vessel in 1995 and thereafter in compliance with the

ownership restrictions in paragraph (a)(7)(ii) of this section, are

eligible to renew such permit(s), regardless of whether the renewal of

the permits will exceed the 5 percent ownership restrictions.

(iv) Having an ownership interest includes, but is not limited to,

persons who are shareholders in a vessel owned by a corporation, who

are partners (general or limited) to a vessel owner, or who, in any

way, partly own a vessel.

(8) Consolidation restriction. Limited access scallop permits and

DAS allocations may not be combined or consolidated.

(9) Appeal of denial of limited access scallop permit. (i) Any

applicant denied a limited access scallop permit, may appeal the denial

to the Regional Director within 30 days of the notice of denial. Any

such appeal must be based on one or more of the following grounds, must

be in writing, and must state the grounds for the appeal:

(A) The information used by the Regional Director was based on

mistaken or incorrect data;

(B) The applicant was prevented by circumstances beyond his/her

control from meeting relevant criteria; or

(C) The applicant has new or additional information.

(ii) The Regional Director will appoint a designee who will make

the initial decision on the appeal.

(iii) The appellant may request a review of the initial decision by

the Regional Director by so requesting in writing within 30 days of the

notice of initial decision. If the appellant does not request a review

of the initial decision within 30 days, the initial decision shall

become the final administrative action of the Department of Commerce.

The appellant's request for review must elect either to have the review

conducted by a hearing officer appointed by the Regional Director or by

an Advisory Appeals Board if established pursuant to paragraph

(a)(9)(iv)(B) of this section.

(iv) Recommendations to the Regional Director. (A) Hearing Officer.

If the initial decision is reviewed by a hearing officer, the hearing

officer shall make findings and a recommendation to the Regional

Director which shall be advisory only.

(B) Advisory Appeals Board. The Regional Director may establish, or

request the Council to establish, an Advisory Appeal Board. If such a

board is established and approved by the Regional Director, an

appellant may request that the initial decision of his/her appeal be

reviewed by the Appeals Board. If such a request is made, the Regional

Director shall forward the request to the Appeals Board within 15 days

after receipt. Any initial decision reviewed by an Appeals Board made

up of other than Federal employees shall be open to the public,

including all documentation presented to support the appeal. The

Appeals Board shall make findings and a recommendation to the Council,

which shall be advisory only. The Council in turn shall make findings

and an advisory-only recommendation to the Regional Director.

(v) Upon receiving the findings and a recommendation, the Regional

Director will issue a final decision on the appeal. The Regional

Director's decision is the final administrative action of the

Department of Commerce.

(vi) Status of vessels pending appeal of a limited access scallop

permit denial. A vessel for which an application has been completed and

an appeal has been initiated may fish under one of the following DAS

allocation categories based on which criteria is applicable, pending a

final decision on the appeal, if the vessel has on board a letter of

authorization from the Regional Director.

(A) A vessel owner appealing under this part who can establish

credible evidence, or NMFS records, that his/her vessel completed at

least 10 trips, each landing more than 400 pounds (181.44 kg) of

shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops, in

any consecutive 12-month period during 1991-1992, may fish under the

Full-time DAS allocation, pending a final decision on the appeal.

(B) A vessel owner appealing under this part who cannot meet the

criteria specified in paragraph (a)(9)(vi)(A), but who can establish

through credible evidence, or NMFS records, that his/her vessel

completed at least 5 trips, each landing more than 400 pounds (181.44

kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell

scallops, in any 12 consecutive month period during 1991-1992, may fish

under the Part-time DAS allocation, pending a final decision on the

appeal.

(C) A vessel owner appealing under this part who cannot meet the

criteria specified in paragraph (a)(9)(vi)(A) or (a)(9)(vi)(B), but who

can establish through credible evidence, or NMFS records, that their

vessel completed at least one trip, landing more than 400 pounds

(181.44 kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-

shell scallops, during 1991-1992, may fish under the Occasional DAS

allocation, pending a final decision on the appeal.

(D) The decision and notification whether to allow any vessel that

presents evidence under paragraphs (a)(9)(vi)(A) through (a)(9)(vi)(C)

of this section to fish under one of the three categories of DAS,

pending a final decision on the appeal, will be provided by the

Regional Director in an authorizing letter. Any such decision is the

final administrative action of the Department of Commerce on allowable

fishing activity pending a final decision on the appeal. The

authorizing letter must be carried on board the vessel while

participating in the DAS program. If the appeal is finally denied, the

Regional Director shall send a notice of final denial to the vessel

owner; the authorizing letter becomes invalid 5 days after receipt of

the notice of denial.

(b) General scallop permit. Any vessel of the United States that is

not in possession of a limited access scallop permit, and that

possesses, or lands per trip, more than 40 pounds (18.14 kg) and less

than or including 400 pounds (181.44 kg), of shucked meats, or the

equivalent amount of in-shell scallops (5 and 50 U.S. bushels (176.2 l

and 17.62 hl), respectively), except vessels that fish exclusively in

state waters for scallops, must carry on board a valid general scallop

permit.

(c) Condition. Vessel owners who apply for a permit under this

section must agree as a condition of the permit that the vessel and

vessel's fishing, catch, crew size, and pertinent gear (without regard

to whether such fishing occurs in the EEZ or landward of the EEZ, and

without regard to where such fish or gear are possessed, taken, or

landed), are subject to all requirements of this part, unless exempted

from such requirements under Sec. 650.27. The vessel and all such

fishing, catch, crew size, and gear shall remain subject to all

applicable state or local requirements. If a requirement of this part

and a management measure required by state or local law differ, any

vessel owner permitted to fish in the EEZ must comply with the more

restrictive requirement.

(d) Vessel permit application. Applicants for a permit under this

section must submit a completed application on an appropriate form

obtained from the Regional Director. The application must be signed by

the owner of the vessel, or the owner's authorized representative, and

be submitted to the Regional Director at least 30 days before the date

on which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section. Applicants for limited access

scallop permits who have not been notified of eligibility by the

Regional Director shall provide information with the application

sufficient for the Regional Director to determine whether the vessel

meets the eligibility requirements specified under paragraph (a)(1) of

this section. Applications for 1994 limited access scallop permits

under this section will not be accepted after December 31, 1994.

Acceptable forms of proof include, but are not limited to, state weigh-

out records, packout forms, settlement sheets, grocery receipts, fuel

receipts, and bridge logs.

(e) Information requirements. (1) In addition to applicable

information required to be provided by paragraph (d) of this section,

an application for either a limited access or general scallop permit

must contain at least the following information, and any other

information required by the Regional Director: Vessel name; owner name,

mailing address, and telephone number; U.S. Coast Guard documentation

number and a copy of vessel's U.S. Coast Guard documentation or, if

undocumented, state registration number and a copy of the state

registration; home port and principal port of landing; length; gross

tonnage; net tonnage; engine horsepower; year the vessel was built;

type of construction; type of propulsion; approximate fish-hold

capacity; type of fishing gear used by the vessel; number of crew;

permit category; if the owner is a corporation, a copy of the

Certificate of Incorporation, and the names and addresses of all

shareholders owning 25 percent or more of the corporation's shares; if

the owner is a partnership, a copy of the Partnership Agreement and the

names and addresses of all partners; if there is more than one owner,

names of all owners having owned more than 25 percent interest; and

name and signature of the owner or the owner's authorized

representative.

(2) Applications for a limited access scallop permit must also

contain the following information:

(i) For every person named by applicants for limited access scallop

permits pursuant to paragraph (e)(1) of this section, the names of all

other vessels in which that person has an ownership interest and for

which a limited access scallop permit has been issued or applied for;

(ii) The engine horsepower of the vessel as specified in the

vessel's permit documentation as of August 3, 1992; or, if the engine

horsepower is different from that stated in the vessel's Federal

scallop permit as of August 3, 1992, sufficient documentation to

ascertain the different engine horsepower;

(iii) If applying for Full-time or Part-time limited access scallop

permit, or if opting to use a VTS unit although not required, a copy of

the vendor installation receipt from a NMFS-approved VTS vendor as

described in Sec. 650.25(a); and

(iv) If applying for the small dredge program set forth under

Sec. 650.21(e), an annual declaration into the program.

(f) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee shall be calculated in accordance with the

procedures of the NOAA Finance Handbook for determining administrative

costs of each special product or service. The fee may not exceed such

costs and is specified with each application form. The appropriate fee

must accompany each application; if it does not, the application will

be considered incomplete for purposes of paragraph (g) of this section.

(g) Issuance. (1) Except as provided in subpart D of 15 CFR part

904 and under Sec. 650.4(a)(9), the Regional Director shall issue a

Federal scallop vessel permit within 30 days of receipt of the

application unless:

(i) The applicant has failed to submit a completed application. An

application is complete when all requested forms, information,

documentation, and fees, if applicable, have been received and the

applicant has submitted all applicable reports specified at Sec. 650.7;

or,

(ii) The application was not received by the Regional Director by

the deadlines set forth in paragraphs (a)(1)(iii) and (p) of this

section; or,

(iii) The applicant and applicant's vessel failed to meet all

eligibility requirements described in paragraphs (a)(1) and (a)(2) of

this section; or,

(iv) For applicants applying for a Full-time or Part-time limited

access scallop permit, the applicant has failed to meet all of the VTS

requirements as described in Sec. 650.25; or,

(v) The applicant has failed to meet any other application

requirements stated in 50 CFR part 650.

(2) Upon receipt of an incomplete or improperly executed

application, the Regional Director shall notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(h) Expiration. A permit will expire upon the renewal date

specified in the permit.

(i) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or until it otherwise expires, or

ownership changes, or the applicant has failed to report any change in

the information on the permit application to the Regional Director as

specified in paragraph (l) of this section. Federal fishing vessel

permits must be renewed annually and unless renewed will expire upon

the renewal date specified in the permit.

(j) Replacement. Replacement permits, for an otherwise valid

permit, may be issued by the Regional Director when requested in

writing by the owner or authorized representative, stating the need for

replacement, the name of the vessel, and the Federal Fisheries Permit

number assigned. An application for a replacement permit will not be

considered a new application. An appropriate fee may be charged for

issuance of the replacement permit.

(k) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the vessel and owner to whom

it is issued.

(l) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written notice of the change must be submitted to the

Regional Director. If the written notice of the change in information

is not received by the Regional Director within 15 days, the permit is

void.

(m) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(n) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(o) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

(p) Limited access scallop permit renewal. To renew or apply for a

limited access scallop permit in 1995 and thereafter, a completed

application must be received by the Regional Director by December 31 of

the year before the permit is needed. For example, to receive a limited

access scallop permit for 1996, vessel owners must apply by December

31, 1995. Failure to renew a limited access scallop permit in any year

bars the renewal of the permit in subsequent years.

(q) Abandonment or voluntary relinquishment of limited access

scallop permits. If a vessel's limited access scallop permit is

voluntarily relinquished to the Regional Director, or abandoned through

failure to renew or otherwise, no limited access scallop permit may be

re-issued or renewed based on that vessel's history or to any vessel

relying on that vessel's history.

Sec. 650.5 Operator permits.

(a) General. Any operator of a vessel issued a Federal limited

access scallop permit under Sec. 650.4, or any operator of a vessel

fishing for scallops in the EEZ or in possession of more than 40 pounds

(18.14 kg) of shucked scallops, or 5 U.S. bushels (176.2 l) of in-shell

scallops, in or harvested from the EEZ, must carry on board a valid

operator's permit issued under this part.

(b) Operator application. Applicants for a permit under this

section must submit a completed permit application on an appropriate

form obtained from the Regional Director. The application must be

signed by the applicant and submitted to the Regional Director at least

30 days prior to the date on which the applicant desires to have the

permit made effective. The Regional Director will notify the applicant

of any deficiency in the application pursuant to this section.

(c) Condition. Vessel operators who apply for an operator's permit

under this section must agree as a condition of this permit that the

operator and vessel's fishing, catch, crew size, and pertinent gear

(without regard to whether such fishing occurs in the EEZ or landward

of the EEZ, and without regard to where such fish or gear are

possessed, taken, or landed), are subject to all requirements of this

part while fishing in the EEZ or on board a vessel permitted under

Sec. 650.4, unless exempted from such requirements under Sec. 650.27.

The vessel and all such fishing, catch, crew size, and gear will remain

subject to all applicable state or local requirements. Further, such

operators must agree as a condition of this permit that if the permit

is suspended or revoked pursuant to 15 CFR part 904, the operator

cannot be on board any fishing vessel issued a Federal Fisheries Permit

or any vessel subject to Federal fishing regulations while the vessel

is at sea or engaged in offloading. If a requirement of this part and a

management measure required by state or local law differ, any operator

issued a permit under this part must comply with the more restrictive

requirement.

(d) Information requirements. An applicant must provide at least

all the following information and any other information required by the

Regional Director: name, mailing address, and telephone number; date of

birth; hair color; eye color; height; weight; social security number

(optional) and signature of the applicant. The applicant must also

provide two color passport size photographs.

(e) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Financial Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified with each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (f) of this section.

(f) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director shall issue an operator's permit within 30 days

of receipt of a completed application if the criteria specified herein

are met. Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(g) Expiration. A permit will expire upon the renewal date

specified in the permit.

(h) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or otherwise expires, or the applicant

has failed to report a change in the information on the permit

application to the Regional Director as specified in paragraph (k) of

this section.

(i) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal operator

permit number assigned. An applicant for a replacement permit must also

provide two color passport size photos of the applicant. An application

for a replacement permit will not be considered a new application. An

appropriate fee may be charged.

(j) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person to whom it is

issued.

(k) Change in application information. Notice of a change in the

permit holder's name, address, or telephone number must be submitted in

writing to, and received by, the Regional Director within 15 days of

the change in information. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(l) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(m) Display. Any permit issued under this part must be maintained

in legible condition and displayed for inspection upon request by any

authorized officer.

(n) Sanctions. Vessel operators with suspended or revoked permits

may not be on board a Federally permitted fishing vessel in any

capacity while the vessel is at sea or engaged in offloading.

Procedures governing enforcement related permit sanctions and denials

are found at subpart D of 15 CFR part 904.

(o) Vessel owner responsibility. Vessel owners are responsible for

ensuring that their vessels are operated by an individual with a valid

operator's permit issued under this section.

Sec. 650.6 Dealer permits.

(a) All dealers must have been issued and have in their possession

a valid permit issued under this part.

(b) Dealer application. Applicants for a permit under this section

must submit a completed application on an appropriate form provided by

the Regional Director. The application must be signed by the applicant

and submitted to the Regional Director at least 30 days before the date

upon which the applicant desires to have the permit made effective. The

Regional Director will notify the applicant of any deficiency in the

application pursuant to this section.

(c) Information requirements. Applications must contain at least

the following information and any other information required by the

Regional Director: Company name, place(s) of business, mailing

address(es) and telephone number(s); owner's name; dealer permit number

(if a renewal); and name and signature of the person responsible for

the truth and accuracy of the report. If the dealer is a corporation, a

copy of the certificate of incorporation must be included with the

application. If a partnership, a copy of the Partnership Agreement and

the names and addresses of all partners must be included with the

application.

(d) Fees. The Regional Director may charge a fee to recover the

administrative expense of issuing a permit required under this section.

The amount of the fee is calculated in accordance with the procedures

of the NOAA Finance Handbook for determining the administrative costs

of each special product or service. The fee may not exceed such costs

and is specified with each application form. The appropriate fee must

accompany each application; if it does not, the application will be

considered incomplete for purposes of paragraph (e) of this section.

(e) Issuance. Except as provided in subpart D of 15 CFR part 904,

the Regional Director will issue a permit at any time during the

fishing year to an applicant unless the applicant has failed to submit

a completed application. An application is complete when all requested

forms, information, and documentation have been received and the

applicant has submitted all applicable reports specified in

Sec. 650.7(a). Upon receipt of an incomplete or improperly executed

application, the Regional Director will notify the applicant of the

deficiency in the application. If the applicant fails to correct the

deficiency within 30 days following the date of notification, the

application will be considered abandoned.

(f) Expiration. A permit will expire upon the renewal date

specified in the permit.

(g) Duration. A permit is valid until it is revoked, suspended, or

modified under 15 CFR part 904, or otherwise expires, or ownership

changes, or the applicant has failed to report any change in the

information on the permit application to the Regional Director as

required by paragraph (j) of this section.

(h) Replacement. Replacement permits, for otherwise valid permits,

may be issued by the Regional Director when requested in writing by the

applicant, stating the need for replacement and the Federal dealer

permit number assigned. An application for a replacement permit will

not be considered a new application. An appropriate fee may be charged.

(i) Transfer. Permits issued under this part are not transferable

or assignable. A permit is valid only for the person to whom, or other

business entity to which, it is issued.

(j) Change in application information. Within 15 days after a

change in the information contained in an application submitted under

this section, a written report of the change must be submitted to, and

received by, the Regional Director. If written notice of the change in

information is not received by the Regional Director within 15 days,

the permit is void.

(k) Alteration. Any permit that has been altered, erased, or

mutilated is invalid.

(l) Display. Any permit, or a valid duplicate thereof, issued under

this part must be maintained in legible condition and displayed for

inspection upon request by any authorized officer.

(m) Federal versus state requirements. If a requirement of this

part differs from a fisheries management measure required by state law,

any dealer issued a Federal dealer permit must comply with the more

restrictive requirement.

(n) Sanctions. Procedures governing enforcement-related permit

sanctions and denials are found at subpart D of 15 CFR part 904.

Sec. 650.7 Recordkeeping and reporting.

(a) Dealers--(1) Weekly report. Dealers shall mail at least the

following information to the Regional Director, or official designee,

on a weekly basis on forms supplied by or approved by the Regional

Director. Or, if authorized in writing by the Regional Director,

dealers may submit reports electronically or through other media. The

following information, and any other information required by the

Regional Director, must be provided: Name and mailing address of

dealer; dealer number; name and permit number of the vessels from which

fish are landed or received; dates of purchases; pounds by species;

price by species; and port landed. If no fish is purchased during the

week, a report so stating must be submitted.

(2) Annual report. All persons required to submit reports under

paragraph (a)(1) of this section are required to complete the

``Employment Data'' section of the Annual Processed Products Reports;

the other information on that form is voluntary. Required data are the

number of employees handling fishery products by month. Reports for a

given calendar year shall be submitted to: NMFS Statistics, 166 Water

Street, Woods Hole, MA 02543, and must be postmarked by February 10 of

the following year.

(3) Inspection. The dealer shall make available copies of the

required reports that have been submitted, or should have been

submitted, and the records upon which the reports were based,

immediately upon request for inspection by an authorized officer, or by

an employee of NMFS designated by the Regional Director to make such

inspections.

(4) Record retention. Copies of reports, and records upon which the

reports were based, must be retained and available for review for one

year after the date of the last entry on the report. The dealer shall

retain such reports and records at its principal place of business.

(5) Submitting reports. Reports must be received or postmarked, if

mailed, within 3 days after the end of each reporting week. Each dealer

will be sent forms and instructions, including the address to which to

submit reports, shortly after receipt of a dealer permit. If no product

was purchased during a week, a report so stating must be submitted.

(b) Vessel owners--(1) Fishing log reports. The owner of any vessel

holding a Federal scallop permit under Sec. 650.4 shall maintain, on

board the vessel, and submit an accurate daily fishing log report for

all fishing trips regardless of species fished for or taken, on forms

supplied by or approved by the Regional Director. If authorized in

writing by the Regional Director, vessel owners may submit reports

electronically, using the VTS, or other media. At least the following

information, and any other information required by the Regional

Director, must be provided: Vessel name; U.S. Coast Guard (USCG)

documentation number (or state registration number if undocumented);

permit number; date/time sailed; date/time landed; trip type; number of

crew; gear fished; quantity and size of gear; mesh/ring size; chart

area fished; average depth; latitude/longitude (or loran station and

bearings); total hauls per area fished; average tow time duration;

pounds by species of all species landed and discarded; dealer permit

number; dealer name; date sold; port and state landed; and vessel

operator's name, signature, and operator permit number.

(2) When to fill in the log. Such log reports must be filled in,

except for information required but not yet ascertainable, before

offloading has begun. At the end of a fishing trip all information in

paragraph (b)(1) of this section must be filled in for each fishing

trip before starting the next fishing trip.

(3) Inspection. Owners and operators shall make, immediately upon

request, the fishing log reports currently in use or to be submitted

available for inspection by an authorized officer, or an employee of

the NMFS designated by the Regional Director to make such inspections,

at any time during or after a trip.

(4) Record retention. Copies of fishing log reports must be

retained and available for review for one year after the date of the

last entry on the report.

(5) Submitting reports. Fishing log reports must be received or

postmarked, if mailed, within 15 days after the end of each reporting

month. Each owner will be sent forms and instructions, including the

address to which to submit reports, shortly after receipt of a Federal

Fisheries Permit. If no fishing trip is made during a month, a report

so stating must be submitted.

Sec. 650.8 Vessel identification.

(a) Vessel name. Each fishing vessel subject to this part and that

is over 25 feet (7.6 m) in length must display its name on the port and

starboard sides of its bow and, if possible, on its stern.

(b) Official number. Each fishing vessel subject to this part that

is over 25 feet (7.6 m) in length must display its official number on

the port and starboard sides of its deckhouse or hull, and on an

appropriate weather deck, so as to be visible from above by enforcement

vessels and aircraft. The official number is the U.S. Coast Guard

documentation number or the vessel's state registration number for

vessels not required to be documented under title 46 of U.S. Code.

(c) Numerals. The official number must be permanently affixed in

contrasting block Arabic numerals at least 18 inches (45.7 cm) in

height for vessels over 65 feet (19.8 m), and at least 10 inches (25.4

cm) in height for all other vessels over 25 feet (7.6 m) in length.

(d) Duties of owner and operator. The owner and operator of each

vessel subject to this part shall:

(1) Keep the vessel name and official number clearly legible and in

good repair; and

(2) Ensure that no part of the vessel, its rigging, its fishing

gear, or any other object obstructs the view of the official number

from an enforcement vessel or aircraft.

Sec. 650.9 Prohibitions.

(a) In addition to the general prohibitions specified in Sec. 620.7

of this chapter, it is unlawful for any person owning or operating a

vessel issued a limited access scallop permit or a general scallop

permit under Sec. 650.4, or a letter under Sec. 650.4(a)(9)(vi)(D), to

do any of the following:

(1) Land, or possess at or after landing, in-shell sea scallops

smaller than the minimum size specified in Sec. 650.20(a). All Atlantic

sea scallops will be subject to inspection and enforcement, in

accordance with the compliance and sampling procedures specified in

Sec. 650.20(b), up to and including the time when a dealer receives or

possesses sea scallops for a commercial purpose.

(2) Fail to comply in an accurate and timely fashion with the log

report, reporting, record retention, inspection, and other requirements

of Sec. 650.7(b).

(3) Fish for, possess, or land sea scallops unless the operator of

the vessel has been issued an operator's permit under Sec. 650.5, and

the permit is on board the vessel and is valid.

(4) Fail to report to the Regional Director within 15 days any

change in the information contained in the permit application as

required under Sec. 650.4(l) or Sec. 650.5(k).

(5) Make any false statement in connection with an application

under Sec. 650.4 or Sec. 650.5.

(6) Fail to affix and maintain permanent markings as required by

Sec. 650.8.

(7) Sell or transfer, or attempt to sell or transfer, to a dealer

any sea scallops unless the dealer has a valid Federal Dealer's Permit

issued under Sec. 650.6.

(8) Land, offload, remove, or otherwise transfer, or attempt to

land, offload, remove, or otherwise transfer Atlantic sea scallops or

fish from one vessel to another vessel.

(b) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel issued a limited access scallop permit under Sec. 650.4(a), or a

letter under Sec. 650.4(a)(9)(vi)(D), to do any of the following:

(1)(i) Possess, or land per trip, more than 400 pounds (181.44 kg)

of shucked sea scallops or 50 U.S. bushels (17.62 hl) of in-shell

scallops after using up the vessel's annual DAS allocation or when not

participating under the DAS program pursuant to Sec. 650.26, unless

exempted from DAS allocations as provided in Sec. 650.27.

(ii) Land scallops on more than one trip per calendar day after

using up the vessel's annual DAS allocation or when not participating

under the DAS program pursuant to Sec. 650.26, unless exempted from DAS

allocations as provided in Sec. 650.27.

(2) Fail to have an approved, operational, and functioning VTS unit

that meets the specifications of Sec. 650.25(a) on board the vessel at

all times, unless the vessel is not subject to the VTS requirements

specified in Sec. 650.26.

(3) If the vessel is not subject to VTS requirements specified in

Sec. 650.26, fail to comply with any aspect of the call-in system as

specified in Sec. 650.26(b).

(4) Combine, transfer, or consolidate DAS allocations.

(5) Have an ownership interest in more than 5 percent of the total

number of vessels issued limited access scallop permits, except as

provided in Sec. 650.4(a)(7)(iii).

(6) Fish for, possess, or land Atlantic sea scallops with or from a

vessel that has had the horsepower of such vessel or its replacement

upgraded or increased in excess of the limitations specified in

Sec. 650.4(a)(5).

(7) Fish for, possess, or land Atlantic sea scallops with or from a

vessel that has had the length, gross registered tonnage, or net

tonnage of such vessel or its replacement increased or upgraded in

excess of limitations specified in Sec. 650.4(a)(5).

(8) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish under the DAS allocation program with, trawl nets that have a

maximum sweep exceeding 144 feet (43.9 m), as measured by the total

length of the footrope that is directly attached to the webbing of the

net.

(9) Fish under the DAS allocation program with, or have available

for immediate use, trawl nets of mesh smaller than the minimum size, as

specified in Sec. 650.21(a)(2).

(10) Fish under the DAS allocation program with trawl nets that use

chafing gear or other means or devices that violate the provisions of

Sec. 650.21(a)(3).

(11) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear that has a

maximum combined dredge width exceeding 31 feet (9.4 m), measured at

the widest point in the bail of each dredge.

(12) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear that uses

net or net material on the top half of the dredge of a minimum mesh

size smaller than that specified in Sec. 650.21(b)(2).

(13) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear containing

rings that have minimum sizes smaller than those specified in

Sec. 650.21(b)(3).

(14) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear that uses

more than double links between rings of the gear.

(15) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 l) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear that uses

cookies, chafing gear or other gear, means, or devices on the top half

of a dredge that obstruct the openings in or between the rings, other

than double links as specified and described in Sec. 650.21(b)(4).

(16) Fish under the DAS allocation program with more than 9

persons, including the operator, on board the vessel, unless otherwise

authorized by the Regional Director.

(17) Fish under the small dredge program as specified in

Sec. 650.21(e), with, or while in possession of, a dredge that exceeds

10 feet 6 inches (3.2 m) in overall width, as measured at the widest

point in the bail of the dredge.

(18) Fish under the small dredge program as specified in

Sec. 650.21(e) with more than 5 persons, including the operator, on

board the vessel, unless otherwise authorized by the Regional Director.

(19) To have a shucking machine on board a vessel, or a sorting

machine on board a vessel that shucks scallops at sea while fishing

under the DAS allocation program, unless otherwise authorized by the

Regional Director.

(20) Refuse or fail to carry an observer if requested to do so by

the Regional Director.

(21) Interfere with or bar by command, impediment, threat,

coercion, or refusal of reasonable assistance, an observer conducting

his or her duties aboard a vessel.

(22) Fail to provide an observer with the required food,

accommodations, access, and assistance, as specified in Sec. 650.28.

(23) Fail to comply with any requirement for declaring in and out

of the DAS allocation program as specified in Sec. 650.26.

(24) Fail to comply with any requirement for participating in the

DAS Exemption Program as specified in Sec. 650.27.

(c) In addition to the prohibitions specified in paragraph (a) of

this section, it is unlawful for any person owning or operating a

vessel issued a general scallop permit under Sec. 650.4(b) to do any of

the following:

(1) Possess, or land per trip, more than 400 pounds (181.44 kg) of

shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops;

(2) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear that has a maximum combined dredge

width exceeding 31 feet (9.4 m), measured at the widest point in the

bail of each dredge;

(3) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear that uses net or net material on

the top half of the dredge of a minimum mesh size smaller than that

specified in Sec. 650.21(b)(2);

(4) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear containing rings that have minimum

sizes smaller than those specified in Sec. 650.21(b)(3);

(5) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear that uses more than double links

between rings of dredge gear;

(6) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 l) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear that uses cookies, chafing gear or

other gear, means, or devices on the top half of a dredge that obstruct

the openings in or between the rings, other than double links as

specified and described in Sec. 650.21(b)(4);

(7) Fish for, or land more than 40 pounds of, scallops on more than

one trip per calendar day.

(d) In addition to the general prohibitions specified in Sec. 620.7

of this chapter and the prohibitions specified in paragraphs (a), (b)

and (c) of this section, it is unlawful for any person to do any of the

following:

(1) Possess, or land per trip, sea scallops in excess of 40 pounds

(18.14 kg) of shucked scallops or 5 U.S. bushels (176.2 l) of in-shell

scallops unless:

(i) The scallops were harvested by a vessel that has been issued

and carries on board a general or limited access scallop permit under

Sec. 650.4, or a letter under Sec. 650.4(a)(9)(vi)(D), or,

(ii) The scallops were harvested by a vessel without a Federal

scallop permit and that fishes for scallops exclusively in state

waters;

(2) Possess, or land per trip, sea scallops in excess of 400 pounds

(181.44 kg) of shucked scallops or 50 U.S. bushels (17.62 hl) of in-

shell scallops unless:

(i) The scallops were harvested by a vessel that has been issued

and carries on board a limited access scallop permit under

Sec. 650.4(a), or a letter under Sec. 650.4(a)(9)(vi)(D), or,

(ii) The scallops were harvested by a vessel without a Federal

scallop permit and that fishes for scallops exclusively in state

waters;

(3) Possess, or land per trip, sea scallops in excess of 40 pounds

(18.14 kg) of shucked scallops or 5 U.S. bushels (176.2 l) of in-shell

scallops unless:

(i) The scallops were harvested by a vessel with an operator on

board who has been issued an operator's permit under Sec. 650.5 and the

permit is on board the vessel and is valid, or,

(ii) The scallops were harvested by a vessel not issued a Federal

scallop permit and that fishes for scallops exclusively in state

waters;

(4)(i) Land, offload, cause to be offloaded, sell, or transfer, or

attempt to land, offload, cause to be offloaded, sell or transfer sea

scallops, from a fishing vessel, whether on land or at sea, as an owner

or operator without accurately preparing and submitting, in a timely

fashion, the documents required by Sec. 650.7, unless the scallops were

harvested by a vessel without a Federal scallop permit and that fishes

for scallops exclusively in state waters;

(ii) To have a shucking machine on board a vessel, or a sorting

machine on board a vessel that shucks scallops at sea while in

possession of more than 400 pounds (181.44 kg) of shucked scallops; or,

the vessel fishes exclusively in state waters and has not been issued a

Federal scallop permit.

(5) Purchase or receive scallops, or attempt to purchase or receive

scallops, whether on land or at sea, as a dealer without accurately

preparing, submitting and retaining, in a timely fashion, the documents

required by Sec. 650.7;

(6) Land, offload, remove, or otherwise transfer, or attempt to

land, offload, remove or otherwise transfer, Atlantic sea scallops from

one vessel to another;

(7) Sell, barter or trade, or otherwise transfer, or attempt to

sell, barter or trade, or otherwise transfer, for a commercial purpose

any sea scallops from a trip whose catch is 40 pounds (18.14 kg) of

shucked scallops or less, or 5 U.S. bushels (176.1 l) of in-shell

scallops unless the vessel has been issued a valid Federal general or

limited access scallop permit under Sec. 650.4, or a letter under

Sec. 650.4(a)(9)(vi)(D), or the scallops were harvested by a vessel

without a Federal scallop permit that fishes for scallops exclusively

in state waters;

(8) Purchase, possess, or receive for a commercial purpose, or

attempt to purchase, possess, or receive for a commercial purpose, in

the capacity of a dealer, sea scallops taken from a fishing vessel,

unless in possession of a valid dealer's permit issued under

Sec. 650.6;

(9) Purchase, possess, or receive for commercial purposes, or

attempt to purchase or receive for commercial purposes, sea scallops

caught by a vessel other than one issued a valid federal general or

limited access sea scallop permit under Sec. 650.4, or a letter under

Sec. 650.4(a)(9)(vi)(D), unless the scallops were harvested by a vessel

without a Federal scallop permit and that fishes for scallops

exclusively in state waters;

(10) To be or act as an operator of a vessel fishing for or

possessing Atlantic sea scallops in or from the EEZ, or issued a

Federal scallop permit under Sec. 650.4, without having been issued and

possessing a valid operator's permit issued under Sec. 650.5.

(11) Assault, resist, oppose, impede, harass, intimidate, or

interfere with either a NMFS-approved observer aboard a vessel, or an

authorized officer conducting any search, inspection, investigation, or

seizure in connection with enforcement of this part;

(12) Make any false statement, oral or written, to an authorized

officer, concerning the taking, catching, harvesting, landing,

purchase, sale, or transfer of any Atlantic sea scallops;

(13) Make any false statement on any report required to be

submitted or maintained under Sec. 650.7;

(14) Tamper with, damage, destroy, alter, or in any way distort,

render useless, inoperative, ineffective, or inaccurate the VTS unit or

VTS signal required to be installed on, or transmitted by, Full-time

and Part-time limited access scallop vessels or any other vessel

required to use a VTS by this part;

(15) Violate any provision of this part, the Magnuson Act, or any

regulation or permit issued under the Magnuson Act.

(e) Any person possessing, or landing per trip, sea scallops in

excess of 40 pounds (18.14 kg) of shucked scallops or 5 U.S. bushels

(176.1 l) of in-shell scallops at or prior to the time when those

scallops are received or possessed by a dealer is subject to all of the

prohibitions specified in paragraphs (a), (b) and (c) of this section,

unless the scallops were harvested by a vessel without a Federal

scallop permit and that fishes for scallops exclusively in state

waters.

(f) Presumption. Sea scallops that are possessed, or landed at or

prior to the time when the scallops are received by a dealer, or sea

scallops that are possessed by a dealer, are presumed to be harvested

from the EEZ. A preponderance of all submitted evidence, that such

scallops were harvested by a vessel without a Federal scallop permit

and fishing exclusively for scallops in state waters, will be

sufficient to rebut the presumption.

Sec. 650.10 Facilitation of enforcement.

See Sec. 620.8 of this chapter.

Sec. 650.11 Penalties.

See Sec. 620.9 of this chapter.

Subpart B--Management Measures

Sec. 650.20 Shell-height standard.

(a) The minimum shell height for in-shell Atlantic sea scallops

that may be landed, or possessed at or after landing, is 3\1/2\ inches

(89 mm).

(b) Compliance and sampling. Compliance with the specified shell-

height standards will be determined by inspection and enforcement at or

after landing, including, the time when the scallops are received or

possessed by a dealer or person acting in the capacity of a dealer, as

follows: the authorized officer will take samples of forty scallops

each at random from the total amount of scallops in possession. The

person in possession of the scallops may request that as many as ten

samples (400 scallops) be examined as a sample group. A sample group

fails to comply with the standard if more than ten percent of all

scallops sampled are less than the shell height specified by the

standard. The shell height shall be measured in a straight line from

the hinge of the scallop to the outermost part of the curve on the

leading edge. The total amount of scallops in possession will be deemed

in violation of this regulation and subject to forfeiture if the sample

group fails to comply with the standard.

Sec. 650.21 Gear and crew restrictions.

(a) Trawl vessel gear restrictions. Trawl vessels in possession of

more than 40 pounds (18.14 kg) of shucked scallops or 5 U.S. bushels

(176.2 l) of in-shell scallops, trawl vessels fishing for scallops, and

trawl vessels issued a limited access scallop permit under

Sec. 650.4(a), while fishing under or subject to the DAS allocation

program for sea scallops, must comply with the following:

(1) Maximum sweep. The trawl sweep in use by or in possession of

such vessels shall not exceed 144 feet (43.9 m) as measured by the

total length of the footrope that is directly attached to the webbing

of the net.

(2) Net requirements--(i) Minimum mesh size in 1994 and 1995. In

1994 and 1995, the mesh size shall not be smaller than 5 inches (12.7

cm) south of a line commencing at the shoreline and proceeding easterly

along 39 deg.10' N. Latitude until it intersects the outer boundary of

the EEZ, and 5\1/2\ inches (13.97 cm) for any scallop trawl net north

of this line.

(ii) Minimum mesh sizes in 1996 and beyond. In 1996 and beyond, the

mesh size for any scallop trawl net in all areas shall not be smaller

than 5\1/2\ inches (13.97 cm).

(iii) Mesh stowage. No vessel may have available for immediate use

any net, or any piece of a net, not meeting the requirements specified

in paragraphs (a)(2)(i) and (a)(2)(ii) of this section. A net that

conforms to one of the following specifications and that can be shown

not to have been in recent use is considered to be not ``available for

immediate use'':

(A) A net stowed below deck, provided:

(1) It is located below the main working deck from which the net is

deployed and retrieved;

(2) The towing wires, including the ``leg'' wires, are detached

from the net;

(3) It is fan-folded (flaked) and bound around its circumference.

(B) A net stowed and lashed down on deck, provided:

(1) It is fan-folded (flaked) and bound around its circumference;

(2) It is securely fastened to the deck or rail of the vessel; and

(3) The towing wires, including the leg wires, are detached from

the net.

(C) A net that is on a reel and is covered and secured, provided:

(1) The entire surface of the net is covered with canvas or other

similar material that is securely bound;

(2) The towing wires, including the leg wires, are detached from

the net; and

(3) The codend is removed from the net and stored below deck.

(D) Nets that are secured in a manner authorized in writing by the

Regional Director.

(iv) Measurement of mesh size. Mesh size is measured by using a

wedge-shaped gauge having a taper of two centimeters in eight

centimeters and a thickness of 2.3 millimeters, inserted into the

meshes under a pressure or pull of five kilograms. The mesh size will

be the average of the measurements of any series of 20 consecutive

meshes for nets having 75 or more meshes, and 10 consecutive meshes for

nets having fewer than 75 meshes. The mesh in the regulated portion of

the net will be measured at least five meshes away from the lacings,

running parallel to the long axis of the net.

(3) Chafing gear and other gear obstructions--(i) Net obstruction

or constriction. A fishing vessel may not use any device or material,

including, but not limited to, nets, net strengtheners, ropes, lines,

or chafing gear, on the top of a trawl net, except that one splitting

strap and one bull rope (if present), consisting of line and rope no

more than 3 inches (7.62 cm) in diameter, may be used if such splitting

strap and/or bull rope does not constrict in any manner the top of the

trawl net. ``The top of the trawl net'' means the 50 percent of the net

that (in a hypothetical situation) would not be in contact with the

ocean bottom during a tow if the net were laid flat on the ocean floor.

For the purpose of this paragraph, head ropes shall not be considered

part of the top of the trawl net.

(ii) Mesh obstruction or constriction. A fishing vessel may not use

any mesh configuration, mesh construction, or other means on, or in,

the top of the net, as defined in paragraph (a)(3)(i) of this section,

if it obstructs the meshes of the net in any manner.

(iii) No vessel may use or possess a net capable of catching sea

scallops in which the bars entering or exiting the knots twist around

each other.

(b) Dredge vessel gear restrictions. All dredge vessels fishing for

or in possession of more than 40 pounds (18.14 kg) of shucked scallops

or 5 U.S. bushels (176.2 l) of in-shell scallops, and all dredge

vessels issued a limited access scallop permit and fishing under the

DAS Program, with the exception of hydraulic clam dredges and mahogany

quahog dredges in possession of 400 pounds or less (181.44 kg) of sea

scallops, must comply with the following restrictions:

(1) Maximum dredge width. The combined dredge width in use by or in

possession of such vessels shall not exceed 31 feet (9.4 m) measured at

the widest point in the bail of the dredge, except as provided under

paragraph (e) of this section.

(2) Minimum mesh size. (i) The mesh size of net material on the top

of a scallop dredge in use by or in possession of such vessels shall

not be smaller than 5\1/2\ inches (13.97 cm).

(ii) Mesh size is measured as provided in paragraph (a)(2)(iv) of

this section.

(3) Minimum ring size. (i) For 1994 and 1995, the inside ring size

of a scallop dredge in use by or in possession of such vessels shall

not be smaller than 3\1/4\ inches (83 mm).

(ii) For 1996 and thereafter, the inside ring size of a scallop

dredge in use by or in possession of such vessels shall not be smaller

than 3\1/2\ inches (89 mm).

(iii) Ring sizes are determined by measuring the shortest straight

line passing through the center of the ring from one inside edge to the

opposite inside edge of the ring. The measurement shall not include

normal welds from ring manufacturing or links. The rings to be measured

will be at least five rings away from the mouth, and at least two rings

away from other rigid portions of the dredge.

(4) Chafing gear and other gear obstructions--(i) Chafing gear

restrictions. No chafing gear or cookies shall be used on the top of a

scallop dredge;

(ii) Link restrictions. No more than double links between rings

shall be used in or on scallop dredges;

(iii) Dredge and net obstructions. No material, device, net, or

dredge configuration or design shall be used if it results in

obstructing the release of scallops that would have passed through a

legal size net and dredge that did not have in use any such material,

device, or net or dredge configuration or design.

(c) Crew restrictions. Limited access vessels fishing under or

subject to the scallop DAS allocation program may have no more than

nine people, including the operator, on board unless fishing under the

small dredge program specified in Sec. 650.21(e), or otherwise

authorized by the Regional Director.

(d) Sorting and shucking machines. (1) Shucking machines are

prohibited on all limited access vessels fishing under the scallop DAS

program or any vessel in possession of more than 400 pounds (181.44 kg)

of scallops, unless the vessel has not been issued a Federal limited

access scallop permit and fishes exclusively in state waters.

(2) Sorting machines are prohibited on limited access vessels

fishing under the scallop DAS program that shuck scallops at sea.

(e) Small dredge program restrictions. Any vessel owner whose

vessel is assigned to either the Part-time or Occasional category may

request to be placed in one category higher on the annual vessel permit

application as described under Sec. 650.4(e)(2)(iv). Vessel owners

making such a request will be placed in the appropriate category, for

the entire year, if they agree to comply with the following

restrictions, in addition to and notwithstanding other restrictions of

this part, when fishing under the DAS program described in Sec. 650.24,

or are in possession of more than 400 lbs (181.44 kg) of shucked

scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops:

(1) The vessel must fish exclusively with one dredge no more than

10.5 feet (3.2 m) in width;

(2) The vessel is prohibited from having more than one dredge on

board or in use; and,

(3) The vessel may have no more than five people, including the

operator, on board.

Sec. 650.22 Possession restrictions.

(a) Owners or operators of vessels with a limited access scallop

permit that have declared out of the DAS program as specified in

Sec. 650.26, or have used up their DAS allocations and vessels

possessing a general scallop permit, unless exempted under the DAS

exemption program described under Sec. 650.27, are prohibited from

possessing or landing per trip, more than 400 pounds (181.44 kg) of

shucked scallops, or 50 U.S. bushels (17.62 hl) of in-shell scallops,

with not more than one scallop trip allowable in any calendar day.

(b) Owners or operators of vessels without a Federal sea scallop

permit, except vessels fishing for scallops exclusively in state

waters, are prohibited from possessing or landing per trip, more than

40 pounds (18.14 kg) of shucked sea scallops, or 5 U.S. bushels (176.2

l) of in-shell sea scallops. Owners or operators of vessels without

Federal scallop permits are prohibited from selling, bartering, or

trading sea scallops harvested from Federal waters.

Sec. 650.23 Transfer-at-sea.

(a) Owners or operators of vessels permitted under Sec. 650.4 are

prohibited from transferring or attempting to transfer fish from one

vessel to another vessel.

(b) All persons are prohibited from transferring or attempting to

transfer sea scallops from one vessel to another vessel.

Sec. 650.24 Days-at-sea (DAS) allocations.

Each vessel issued a limited access scallop permit shall be

assigned to a DAS category based on evidence and criteria as specified

in paragraph (a) of this section. Limited access scallop permits will

indicate which category the vessel is assigned to. Vessels are

prohibited from fishing for, landing per trip, or possessing more than

400 pounds (181.44 kg) of shucked scallops or 50 U.S. bushels (17.62

hl) of in-shell scallops once their allocated number of DAS, as

specified under paragraph (c) of this section, are used up.

(a) Criteria for assigning DAS categories. All vessels qualifying

for a limited access scallop permit under the criteria specified in

Sec. 650.4(a) shall be assigned to the Full-time, Part-time, or

Occasional DAS category based on the formulas specified in paragraph

(b) of this section and the following:

(1) Full-time. A vessel shall be assigned to the Full-time category

if that vessel has averaged at least 150 days of directed scallop

fishing annually according to the formulas specified in paragraph (b)

of this section;

(2) Part-time. A vessel shall be assigned to the Part-time category

if that vessel has averaged more than 37 days but less than 150 days of

directed scallop fishing annually according to the formulas specified

in paragraph (b) of this section;

(3) Occasional. A vessel shall be assigned to the Occasional

category if that vessel has averaged 37 days or less of directed

scallop fishing annually according to the formulas specified in

paragraph (b) of this section.

(b) DAS formulas. A vessel's average number of days of directed

scallop fishing for purposes of assigning the vessel to one of the

categories specified in paragraph (a) of this section shall be

determined by applying one of the following formulas to the data,

information, or other credible evidence available to the Regional

Director. Scallop DAS for this purpose is defined as the total days at

sea on trips with landings of more than 400 pounds (181.44 kg) of

shucked scallops or 50 U.S. bushels (17.62 hl) of in-shell scallops.

(1) The following formulas apply to all vessels qualifying for

limited access scallop permits, with the exception of vessels that

qualify under paragraph Sec. 650.4(a)(1)(i)(C). The DAS formula

applicable to that group of vessels is specified in paragraph (b)(2) of

this section. Vessel owners may choose their 1990 history under

paragraph (b)(1)(i) of this section, or a calculation based on the

1985-1990 history, as applicable, under paragraph (b)(1)(ii) of this

section. DAS are calculated from the formulas below and the result is

applied to the DAS categories described in paragraph (a) of this

section.

(i) 1990 fishing history. For any vessel that fished for scallops

in 1990, the number of scallop DAS may be determined by calculating the

total number of DAS on scallop trips ending in 1990; or,

(ii) 1985-1990 fishing history. For vessels with history in the

scallop fishery between 1985 and 1990, inclusive, the number of years

history is determined as follows. With the exception of the adjustments

specified under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section,

vessels whose calculated scallop history is based on a formula below

must use their entire history in the scallop fishery and may not elect

to use a formula based on fewer years history in the fishery.

(A) Four or more years history. Calculate the total number of

scallop DAS for each year, exclude the high and low years of days at

sea and average the remaining years; or

(B) Three year history. Calculate the total number of scallop DAS

for each year, average the high and low years of days at sea, and then

average the result with the third year; or

(C) Two year history. Calculate the total number of scallop DAS for

each year, average the two years' DAS; or

(D) One year history. Calculate the actual number of scallop DAS

for that year.

(iii) Pro-ration. If a limited access vessel entered the scallop

fishery for the first time during the relevant time period, the first

year shall be pro-rated to a full year by pro-rating on an annual basis

the number of DAS the vessel actually incurred on trips landing more

than 400 pounds (181.44 kg) of shucked scallops or more than 50 U.S.

bushels (17.62 hl) of in-shell scallops to determine the number of days

at sea the vessel would have incurred had the vessel been in the

fishery for the full year. The pro-ration formula is as follows: The

total number of scallop DAS in that year is divided by the percentage

of the year the vessel was in the fishery (by month). In pro-rating the

days for such vessels, the Regional Director shall take into account

the date the vessel entered the fishery, the vessel's subsequent

fishing history, and other relevant information.

(iv) New owner. Vessel owners who purchased their vessel during the

1985-1990 time period may request that the DAS formulas be based solely

on their individual history in the scallop fishery, excluding all

previous owner's scallop histories. Under this option a vessel's first

year in the fishery may be pro-rated based on the criteria specified in

paragraph (b)(1)(iii) of this section.

(2) For vessels qualifying for a limited access scallop permit

under paragraph Sec. 650.4(a)(1)(i)(C), pro-rate to a full year the

total number of DAS for trips the vessel would have fished and landed

over 400 pounds (181.44 kg) of shucked scallops or more than 50 U.S.

bushels (17.62 hl) of in-shell scallops in 1990 based on the actual

number of DAS the vessel did fish in 1990 and the criteria specified in

paragraph (b)(1)(iii) of this section. Then, calculate the average

number of DAS for trips landing more than 400 pounds (181.44 kg) of

shucked scallops or more than 50 U.S. bushels (17.62 hl) of in-shell

scallops for the years 1991 and 1992. The number of days to determine

the category shall be the lower number between the pro-rated 1990 days

and the average of DAS in 1991 and 1992.

(c) DAS allocations. Each vessel qualifying for one of the three

categories specified in paragraph (a) of this section shall be

allocated, annually, the maximum number of DAS it may participate in

the limited access scallop fishery, according to the category for which

it qualifies. A vessel whose owner/operator has declared it out of the

scallop fishery pursuant to the provisions of Sec. 650.26, or 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 pounds (181.44 kg) of

shucked scallops or 50 U.S. bushels (17.61 hl) of in-shell scallops and

complies with the other requirements of this part.

(1) Annual DAS allocations. The annual allocations of DAS for each

category of vessel specified in paragraph (a) of this section shall be

as follows:

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

DAS category 1994 1995-96 1997 1998-99 2000+

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

Full-time...................................... 204 182 164 142 120

Part-time...................................... 91 82 66 57 48

Occasional..................................... 18 16 14 12 10

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

(2) Accrual of DAS. DAS shall accrue in hourly increments, with all

partial hours counted as full hours. A DAS is calculated beginning when

a vessel leaves port and ending when the vessel returns to port as

follows:

(i) DAS for vessels that are under the VTS monitoring system

described in Sec. 650.26(a) are counted beginning with the first hourly

location signal received showing that the vessel crossed the COLREGS

Demarcation Line leaving port and ending with the first hourly location

signal received showing that the vessel crossed the COLREGS Demarcation

Line upon its return to port.

(ii) DAS for vessels fishing under the call-in notification system

described in Sec. 650.26(b) are counted beginning once the phone call

has been received and confirmation given by the Regional Director. A

DAS ends when after returning to port, the phone call has been

received, and confirmation given by the Regional Director.

(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 subpart C of this part.

(e) Notice of initial DAS category. The Regional Director will

attempt to notify all owners of vessels that are deemed eligible to be

issued a limited access scallop permit pursuant to Sec. 650.4(a)(6) as

to which category the vessel qualifies for based on data, information

and other evidence available to the Regional Director.

(f) Appeal of DAS category. (1) Appeal criteria. A vessel's owner

may appeal his/her vessel's initial placement into a vessel category to

the Regional Director within 30 days of receipt of the notice of a

vessel's DAS category. Any such appeal must be based on one or more of

the following grounds, must be in writing, and must state the grounds

for the appeal:

(i) The information used by the Regional Director was based on

mistaken or incorrect data;

(ii) The applicant was prevented by circumstances beyond his/her

control from meeting relevant criteria; or

(iii) The applicant has new or additional information.

(2) The Regional Director will appoint a designee who will make an

initial decision on the appeal.

(3) The appellant may request a review of the initial decision by

the Regional Director by so requesting in writing within 30 days of the

notice of initial decision. If the appellant does not request a review

of the initial decision within 30 days, the initial decision shall

become the final administrative action of the Department of Commerce.

The appellant's request for review must elect either to have the review

conducted by a hearing officer appointed by the Regional Director or by

an Advisory Appeals Board if established pursuant to paragraph

(a)(9)(iv)(B) of this section.

(4) Recommendations to the Regional Director--(i) Hearing Officer.

If the initial decision is reviewed by a hearing officer, the hearing

officer shall make findings and a recommendation to the Regional

Director which shall be advisory only.

(ii) Advisory Appeals Board. If an Advisory Appeals Board is

established under Sec. 650.4(a)(9)(iv), an appellant may request that

the initial decision of his/her appeal be reviewed by the Appeals

Board. If such a request is made, the Regional Director shall forward

the request to the Appeals Board within 15 days after receipt. Any

initial decision reviewed by an Appeals Board made up of other than

Federal employees shall be open to the public, including all

documentation presented to support the appeal. The Appeals Board shall

make findings and a recommendation to the Council, which shall be

advisory only. The Council in turn shall make findings and an advisory-

only recommendation to the Regional Director.

(5) Upon receiving the findings and recommendation, the Regional

Director will issue a final decision on the appeal. The Regional

Director's decision is the final administrative action of the

Department of Commerce.

(6) Status of vessels pending appeal of DAS allocations. A vessel,

for which an appeal of its DAS category has been initiated, may fish

under the DAS allocation allowed under the next higher category than

the vessel's initial category placement if the vessel has on board a

letter of authorization from the Regional Director, regardless of what

category the vessel is appealing to be placed in, and is subject to all

requirements applicable to such category of vessels unless otherwise

exempted. That is, if a vessel was initially placed in the Part-time

category, that vessel may fish up to the maximum number of DAS

allocated to Full-time vessels until the Regional Director has made a

final determination on the appeal. If a vessel is initially placed in

the Occasional category, that vessel may fish up to the DAS allocated

to Part-time vessels, regardless of what category the Occasional vessel

is appealing to be placed in, until the Regional Director has made a

final determination on the appeal. Any DAS spent fishing for scallops

shall be counted against the DAS allocation of the category that the

vessel is ultimately placed in. If, before this appeal is decided, a

vessel exceeds the number of DAS it is finally allocated after appeal,

the excess DAS will be subtracted from the vessel's allocation of DAS

in 1995.

(g) End-of-year carry-over. Limited access vessels with unused DAS

on December 31 of any year may carry-over a maximum of 10 DAS into the

next year. At no time may more than 10 DAS be carried over.

(h) Good Samaritan credit. Limited access vessels fishing under the

DAS program and that spend time at sea for one of the following

reasons, and that can document the occurrence through the Coast Guard,

will not accrue DAS for the time documented:

(1) Time spent assisting in a Coast Guard search and rescue

operation; or

(2) Time spent assisting the Coast Guard in towing a disabled

vessel.

Sec. 650.25 Monitoring requirements.

(a) Full-time and Part-time limited access vessels. To be issued a

Full-time or Part-time limited access scallop permit as specified in

Sec. 650.4(a), all vessels must provide documentation to the Regional

Director that the vessel has an operational VTS unit on board that is

part of an approved VTS as specified in paragraph (a)(1) of this

section and meets the minimum performance criteria specified in

paragraph (a)(2) of this section, or as modified annually as specified

in paragraph (a)(1) of this section.

(1) Approval. The Regional Director will annually approve VTSs that

meet minimum performance criteria specified in paragraph (a)(2) of this

section. Any changes to the performance criteria will be published

annually in the Federal Register and a list of approved VTSs will be

published in the Federal Register upon addition or deletion of a VTS

from the list. In the event that a VTS is deleted from the list, vessel

owners that purchased a VTS unit that is part of that VTS prior to

publication of the revised list will be considered to be in compliance

with the requirement to have an approved unit unless otherwise notified

by the Regional Director.

(2) Minimum VTS performance criteria. The basic required features

of the VTS are as follows:

(i) The VTS shall be tamper proof, i.e., shall not permit the input

of false positions; furthermore, if a system uses satellites to

determine position, satellite selection should be automatic to provide

an optimal fix and should not be capable of being manually overridden

by any person on board a fishing vessel or by the vessel owner;

(ii) The VTS shall be fully automatic and operational at all times

regardless of weather and environmental conditions;

(iii) The VTS shall be capable of tracking vessels in all U.S.

waters in the Atlantic Ocean from the shoreline of each coastal state

to a line 215 nautical miles offshore and shall provide position

accuracy to within 400 meters (1,300 feet);

(iv) The VTS shall be capable of transmitting and storing

information including vessel identification, date, time, and latitude/

longitude;

(v) The VTS shall provide accurate hourly position transmissions

every day of the year. In addition, the VTS shall allow polling of

individual vessels or any set of vessels at any time and receive

position reports in real time. For the purposes of this specification,

``real time'' shall constitute data that reflect a delay of 15 minutes

or less between the displayed information and the vessel's actual

position;

(vi) The VTS shall be capable of providing network message

communications between the vessel and shore. The VTS shall allow NMFS

to initiate communications or data transfer at any time;

(vii) The VTS vendor shall be capable of transmitting position data

to a NMFS-designated computer system via a modem at a minimum speed of

9600 baud. Transmission shall be in ASCII text in a file format

acceptable to NMFS;

(viii) The VTS shall be capable of providing vessel locations

relative to international boundaries and fishery management areas;

(ix) The VTS vendor shall be capable of archiving vessel position

histories for a minimum of one year and providing transmission to NMFS

of specified portions of archived data in response to NMFS requests and

in a variety of media (tape, floppy, etc.).

(3) Operating requirements. All required VTS units must transmit a

signal indicating the vessel's accurate position at least every hour,

24 hours a day, throughout the year.

(4) Presumption. Failure of a VTS unit to transmit an hourly signal

of a vessel's position shall be presumed to be a DAS, or fraction

thereof, for as long as the unit fails to transmit a signal. A

preponderance of evidence that the failure to transmit was due to an

unavoidable malfunction or disruption of the transmission that occurred

while the vessel was declared out of the scallop fishery or was not at

sea will be sufficient to rebut the presumption.

(5) Replacement. Should a VTS unit require replacement, a vessel

owner must submit documentation to the Regional Director, within 3 days

of installation and prior to the vessel's next trip, verifying that the

new VTS unit is an operational approved system as described under

paragraph (a)(1) of this section.

(6) Access. As a condition to obtaining a limited access scallop

permit, all vessel owners must allow the NOAA/NMFS, the U.S. Coast

Guard, and their authorized officers or designees access to the

vessels' DAS and location data obtained from its VTS at the time of or

after its transmission to the vendor or receiver, as the case may be.

(7) Tampering. Tampering with a VTS, a VTS unit, or a VTS signal,

is prohibited. Tampering includes any activity that is likely to affect

the unit's:

(i) Ability to operate properly;

(ii) Signal; or

(iii) Accuracy of computing the vessel's position fix.

(b) Occasional limited access vessels. Vessels qualifying for a DAS

allocation under the Occasional category as described under

Sec. 650.24(a)(3), may participate in either the DAS notification

program using the VTS procedures described in Sec. 650.26(a) or the

call-in procedures described in Sec. 650.26(b).

Sec. 650.26 DAS notification program.

(a) VTS notification. Owners of scallop vessels with Full-time or

Part-time limited access scallop permits, owners of vessels with

Occasional limited access scallop permits that have elected to fish

under the VTS monitoring system specified in Sec. 650.25(a), and owners

of vessels fishing under the small dredge program specified in

Sec. 650.21(e), shall be subject to the following presumption and

requirements:

(1) Full-time scallop vessels at sea are presumed to be fishing

under the DAS allocation program unless they declare out of the sea

scallop fishery for a specific time period by notifying the Regional

Director through the VTS.

(2) Owners of Part-time scallop vessels may not fish in the DAS

allocation program unless they declare into the scallop fishery for a

specific time period by notifying the Regional Director through the

VTS.

(3) If the VTS is not available or not functional, and if

authorized by the Regional Director, a vessel owner must notify as

required in paragraphs (a)(1) and (a)(2) of this section and report

using the call-in notification system described under paragraph (b) of

this section.

(b) Call-in notification. Owners of vessels qualifying for a DAS

allocation under the Occasional category as described under

Sec. 650.24(a)(3) or fishing in the Part-time category under the Appeal

Program described in Sec. 650.24(f), who have not elected to fish under

the VTS monitoring system described in Sec. 650.25, and vessels fishing

pending an appeal as specified in Sec. 650.4(a)(9)(vi)(D), shall be

subject to the following requirements:

(1) The vessel owner or authorized representative shall notify the

Regional Director prior to leaving port that the vessel will be

participating in the DAS program by calling (508-281-9335) and

providing the following information: Owner and caller name and phone

number; the vessel's name and permit number; the type of trip to be

taken, and that the vessel is beginning a trip.

(2) A scallop DAS begins once the call has been received and

confirmation given by the Regional Director.

(3) Upon returning to port, the vessel owner or owner's

representative shall notify the Regional Director that the trip has

ended by calling 508-281-9335 and providing the following information:

owner and caller name and phone number; the vessel's name and permit

number; and that the trip has ended.

(4) A DAS ends when the call has been received and confirmation

given by the Regional Director.

(5) Any vessel that possesses or lands per trip more than 400

pounds of scallops shall be deemed in the DAS program for purposes of

counting DAS whether or not the vessel's owner or authorized

representative provided adequate notification as required by this part.

Sec. 650.27 DAS exemption program.

Any vessel holding a limited access scallop permit under

Sec. 650.4(a) may request an exemption from the DAS Program, as

follows, while scallop fishing exclusively landward of the outer

boundary of a state's waters. Any such exemption granted will exempt

the vessel from the DAS requirements specified under Sec. 650.24(c).

(a) VTS notification. Vessel owners requesting a DAS exemption via

a VTS shall:

(1) Notify NMFS, via their VTS, prior to the vessel's first trip

under the DAS exemption program, that the vessel will be fishing

exclusively in state waters for scallops; and,

(2) Notify NMFS, via their VTS, prior to the vessel's first planned

trip in the EEZ, that the vessel is to resume fishing under the

vessel's DAS allocation.

(b) Other methods of notification. Vessel owners opting to request

entry into the DAS exemption program via fax or phone shall:

(1) Notify NMFS by calling 508-281-9335 or faxing 508-281-9135 the

following information at least 7 days prior to the date on which the

exemption is requested: owner and caller name and address; vessel name

and permit number; and beginning and ending dates of the exemption

period;

(2) Remain in the exemption program a minimum of 7 days; and,

(3) If an exemption holder has been in the program a minimum of 7

days and wishes to withdraw earlier than the designated end of the

exemption period, the exemption holder must notify the Regional

Director of early withdrawal from the program. Notification of

withdrawal is made by calling 508-281-9335 or by faxing 508-281-9135.

When providing notice, the exemption holder will specify that the

request is for withdrawal from the program and provide the vessel name

and permit number, and the name and phone number of the caller. The

exemption holder may not leave port to fish for scallops in the EEZ

until 48 hours after notification of early withdrawal is received by

the Regional Director.

(c) A vessel participating in the DAS exemption program may not

fish in the EEZ during the participation period.

(d) Participation in the DAS exemption program expires when the

owner's or vessel's name changes.

(e) Vessels participating in the DAS exemption program continue to

be subject to all the other requirements of this part.

Sec. 650.28 At-sea observer coverage.

(a) The Regional Director may require observers for any vessel

holding a Federal sea scallop permit.

(b) Owners of vessels selected for observer coverage must notify

the appropriate Regional or Center Director, as specified by the

Regional Director, before commencing any fishing trip that may result

in the harvest of any Atlantic sea scallops. Notification procedures

will be specified in selection letters to vessel owners.

(c) An owner or operator of a vessel on which a NMFS-approved

observer is embarked must:

(1) Provide accommodations and food that are equivalent to those

provided to the crew;

(2) Allow the observer access to and use of the vessel's

communications equipment and personnel upon request for the

transmission and receipt of messages related to the observer's duties;

(3) Allow the observer access to and use of the vessel's navigation

equipment and personnel upon request to determine the vessel's

position;

(4) Allow the observer free and unobstructed access to the vessel's

bridge, working decks, holding bins, weight scales, holds, and any

other space used to hold, process, weigh, or store fish; and

(5) Allow the observer to inspect and copy the vessel's log,

communications logs, and any records associated with the catch and

distribution of fish for that trip.

Sec. 650.29 Experimental fishing exemption.

(a) The Regional Director may exempt any person or vessel from the

requirements of this part for the conduct of experimental fishing

beneficial to the management of the sea scallop resource or fishery.

(b) The Regional Director may not grant such exemption unless it is

determined that the purpose, design, and administration of the

exemption is consistent with the objectives of the FMP, the provisions

of the Magnuson Act, and other applicable law, and that granting the

exemption will not:

(1) Have a detrimental effect on the sea scallop resource and

fishery; or

(2) Create significant enforcement problems.

(c) Each vessel participating in any exempted experimental fishing

activity is subject to all provisions of this part except those

necessarily relating to the purpose and nature of the exemption. The

exemption will be specified in a letter issued by the Regional Director

to each vessel participating in the exempted activity. This letter must

be carried aboard the vessel seeking the benefit of such exemption.

Subpart C--Framework Adjustments to Management Measures

Sec. 650.40 Framework specifications.

(a) Annually, upon request from the Council, but at a minimum in

the years 1996 and 1999, the Regional Director will provide the Council

with information on the status of the sea scallop resource.

(b) Within 60 days of receipt of that information, the Council's

Plan Development Team (PDT) shall assess the condition of the Atlantic

sea scallop resource to determine the adequacy of the total allowable

DAS reduction schedule, described in Sec. 650.24(c), to achieve the

target fishing mortality rate. In addition, the PDT shall make a

determination whether other resource conservation issues exist that

require a management response in order to meet the goals and objectives

outlined in the FMP. The PDT shall report its findings and

recommendations to the Council. In its report to the Council, the PDT

shall provide the appropriate rationale and economic and biological

analysis for its recommendation utilizing the most current catch,

effort, and other relevant data from the fishery.

(c) After receiving the PDT findings and recommendations, the

Council shall determine whether adjustments to, or additional,

management measures are necessary to meet the goals and objectives of

the FMP. After considering the PDT's findings and recommendations, or

at any other time, if the Council determines that adjustments to, or

additional, management measures are necessary, it shall develop and

analyze appropriate management actions over the span of at least two

Council meetings. The Council shall provide the public with advance

notice of the availability of both the proposals and the analyses, and

opportunity to comment on them prior to and at the second Council

meeting. The Council's recommendation on adjustments or additions to

management measures must come from one or more of the following

categories:

(1) DAS changes;

(2) Shell height;

(3) Offloading window re-instatement;

(4) Effort monitoring;

(5) Data reporting;

(6) Trip limits;

(7) Gear restrictions;

(8) Permitting restrictions;

(9) Crew limits;

(10) Small mesh line;

(11) on board observers;

(12) Any other management measures currently included in the FMP.

(d) After developing management actions and receiving public

testimony, the Council shall make a recommendation to the Regional

Director. The Council's recommendation must include supporting

rationale and, if management measures are recommended, an analysis of

impacts, and a recommendation to the Regional Director on whether to

publish the management measures as a final rule. If the Council

recommends that the management measures should be published as a final

rule, the Council must consider at least the following factors and

provide support and analysis for each factor considered:

(1) Whether the availability of data on which the recommended

management measures are based allows for adequate time to publish a

proposed rule, and whether regulations have to be in place for an

entire harvest/fishing season;

(2) Whether there has been adequate notice and opportunity for

participation by the public and members of the affected industry in the

development of the Council's recommended management measures;

(3) Whether there is an immediate need to protect the resource;

and,

(4) Whether there will be a continuing evaluation of management

measures adopted following their promulgation as a final rule.

(e) If the Council's recommendation includes adjustments or

additions to management measures, and if after reviewing the Council's

recommendation and supporting information:

(1) The Regional Director concurs with the Council's recommended

management measures and determines that the recommended management

measures may be published as a final rule based on the factors

specified in paragraph (d) of this section, the action will be

published in the Federal Register as a final rule; or,

(2) The Regional Director concurs with the Council's recommendation

and determines that the recommended management measures should be

published first as a proposed rule, the action will be published as a

proposed rule in the Federal Register. After additional public comment,

if the Regional Director concurs with the Council recommendation, the

action will be published as a final rule in the Federal Register; or

(3) The Regional Director does not concur, the Council will be

notified, in writing, of the reasons for the non-concurrence.

(f) Nothing in this section is meant to derogate from the authority

of the Secretary to take emergency action under section 305(e) of the

Magnuson Act.

[FR Doc. 94-1188 Filed 1-18-94; 8:45 am]

BILLING CODE 3510-22-P