Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 19, 30790-30811 [08-1300]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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



[[Page 30790]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

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


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

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

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

Disapproved Measure

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

Approved Measures

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

Open Area DAS Allocations

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

[[Page 30791]]

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

Limited Access Trip Allocations and Possession Limits for Scallop 
Access Areas

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

Regulatory Procedure To Reduce 2009 ETAA and/or Delmarva Allocations

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

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

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

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

New Hudson Canyon Rotational Management Area

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

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

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

Research Set-Aside (RSA) Allocations

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

Observer Set-Aside Allocations

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

[[Page 30793]]

Adjustment of the Scallop Overfishing Definition

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

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

Prohibition on Deckloading

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

Adjustments to the Industry-Funded Observer Program

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

[[Page 30794]]

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

30-Day VMS Power Down Provision for Scallop Vessels

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

General Category Allocations

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

[[Page 30795]]

General Category Access Area Harvest Specifications for 2008 and 2009

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

IFQ Cost Recovery Program

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

Comments and Responses

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

[[Page 30796]]

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

Changes From Proposed Rule to Final Rule

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

[[Page 30797]]

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

Classification

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

[[Page 30798]]

David_Rostker@omb.eop.gov or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection-of-information requirement subject 
to the requirements of the PRA, unless that collection-of-information 
requirement displays a currently valid OMB control number.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has included a final regulatory flexibility analysis (FRFA) in 
support of Framework 19 in this final rule. The FRFA describes the 
economic impact that this final rule, along with non-adopted 
alternatives, will have on small entities. The FRFA incorporates the 
economic impacts and analysis summarized in the IRFA for the proposed 
rule to implement Framework 19, the comments and responses in this 
final rule, and the corresponding economic analyses prepared for 
Framework 19 (e.g., the EA and the RIR). A copy of the IRFA, the RIR, 
and the EA are available upon request (see ADDRESSES).

Statement of Need for This Action

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

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

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

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

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

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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