[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Rules and Regulations]
[Pages 36559-36576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15501]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100107011-0248-03]
RIN 0648-AY43
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Framework Adjustment 21
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 specified in Framework
Adjustment 21 (Framework 21) to the Atlantic Sea Scallop Fishery
Management Plan (FMP), which was developed by the New England Fishery
Management Council (Council). Framework 21 specifies the following
management measures for the 2010 scallop fishery: Total allowable catch
(TAC); open area days-at-sea (DAS) and Sea Scallop Access Area (access
area) trip allocations; DAS adjustments if an access area yellowtail
flounder (YTF) TAC is caught; limited access general category (LAGC)
access area trip allocations; management measures to minimize impacts
of incidental take of sea turtles as required by the March 14, 2008,
Atlantic Sea Scallop Biological Opinion (Biological Opinion); minor
adjustments to the LAGC individual fishing quota (IFQ) program; and
minor adjustments to the industry-funded observer program. This action
also adjusts regulatory language to eliminate duplicative and outdated
text, and to clarify provisions in the regulations that are currently
unclear.
DATES: Effective June 28, 2010.
ADDRESSES: An environmental assessment (EA) was prepared for Framework
21 that describes the action and other considered alternatives and
provides a thorough analysis of the impacts of the measures and
alternatives. Copies of Framework 21, the EA, and the Initial
Regulatory Flexibility Analysis (IRFA) are available upon request from
Paul J. Howard, Executive Director, New England Fishery Management
Council, 50 Water Street, Newburyport, MA 01950.
FOR FURTHER INFORMATION CONTACT: Emily Bryant, Fishery Policy Analyst,
978-281-9244; fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
Framework 21 was developed and adopted by the Council in order to
meet the FMP's objectives to prevent overfishing and improve yield-per-
recruit from the fishery. The FMP requires biennial adjustments to
ensure that the measures 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. Framework 21 measures will replace
those that were specified for the March 1, 2010, start of the fishing
year (FY). Framework 21 specifies measures only for FY 2010. Amendment
15 to the FMP, currently under development by the Council, will
identify and implement annual catch limits and accountability measures
to bring the FMP into compliance with the new requirements of the re-
authorized Magnuson-Stevens Fishery Conservation and Management Act
(MSA) for FY 2011 and beyond. Framework 22 will be developed by the
Council to set the specifications for FYs 2011 and 2012.
The Council approved Framework 21 at its November 18, 2009, meeting
and submitted Framework 21 to NMFS for review on December 21, 2009. At
its November 2009 meeting, the Council focused on two F target
alternatives that did not involve a new access area closure: A target F
of 0.24 (TAC of 47.3 M lb), and a lower target F of 0.20 (TAC of 41.5 M
lb), which was ultimately selected by the Council. The Council's quota
allocation recommendation for FY 2010 became very controversial due to
industry concerns over the FY 2010 economic impacts of what some
[[Page 36560]]
believed to be an overly precautionary F target. Following public
testimony from both scallop and groundfish fishery participants who
supported adoption of a higher allocation alternative, and an in-depth
review of the two alternatives, the Council amended its previous
Framework 21 decision and voted to adopt the higher F target of 0.24
for FY 2010 at its January 27, 2010, meeting. The Council's rationale
for the amended decision was primarily based on the fact that the
Framework 21 allocation alternatives were analyzed using a revised
landings-per-unit effort (LPUE) calculation applied to the DAS model
that would likely be more reflective of actual fishing effort than the
DAS model used in Framework 19 to the FMP. Framework 19's LPUE model
had underestimated fishing effort in open areas in FYs 2008 and 2009,
resulting in higher levels of harvest than projected. The adjusted LPUE
used in Framework 21 increased, resulting in lower overall DAS
allocations that take into account higher effort levels. After an
extensive discussion of the aggregate impacts of the revised LPUE
calculation, in addition to setting a lower F target, the Council
determined that the higher F target (0.24), in addition to the revised
DAS model, would better achieve OY while also being appropriately
precautionary. The Council subsequently revised its recommendations for
action in Framework 21 and resubmitted the document with updated
analyses reflecting the higher F target allocation to NMFS for review
on March 19, 2010.
The Council reviewed the Framework 21 proposed rule regulations as
drafted by NMFS, which included regulations proposed by NMFS under the
authority of section 305(d) of the MSA, and on March 30, 2010, deemed
them to be necessary and consistent with section 303(c) of the MSA. The
proposed rule for Framework 21 published in the Federal Register on
April 27, 2010, with a 15-day public comment period that ended May 12,
2010. Three comments were received on the proposed measures.
The IFQ Program was implemented on March 1, 2010. As a result,
limited access scallop vessels, limited access scallop vessels with
LAGC IFQ permits, and LAGC IFQ vessels will receive 94.5 percent, 0.5
percent, and 5 percent of the allocated target TAC, respectively, after
accounting for applicable research and observer set-asides.
The final management measures are described below. Details
concerning the Council's development of these measures were presented
in the preamble of the proposed rule and are not repeated here.
Acceptable Biological Catch (ABC) and TAC
The Council's Scientific and Statistical Committee (SSC)
recommended an ABC for the 2010 scallop fishery based on an F of 0.284,
which results in a TAC of 57,803,000 lb (26,219 mt) after accounting
for discards and incidental mortality. The calculation on which this
ABC recommendation is based assumes that mortality in the scallop
fishery is spatially and temporarily uniform, and that all exploitable
scallop biomass is accessible to the fleet. However, due to various
rotational and permanent closures, as well as area-based differences in
F, the PDT developed and analyzed allocation alternatives with various
F targets below 0.284 in order to prevent localized overfishing in
areas that are accessible to the fleet. Based on these analyses, and in
order to minimize adverse impacts on Essential Fish Habitat (EFH),
minimize bycatch, and achieve OY to the extent practicable, the Council
ultimately based the target TAC on an F of 0.24. This results in a TAC
of 47,278,000 lb (21,445 mt).
After the deduction of the incidental target TAC (50,000 lb, 22.7
mt) allocated to vessels with LAGC incidental permits, the remaining
TAC is 47,228,000 lb (21,422 mt). This TAC is allocated into several
components: Open area DAS; individual access area trips for limited
access vessels; IFQ allocations, including access area allocations, to
vessels with LAGC IFQ permits; and research and observer set-asides.
Open Area DAS Allocations
This action implements the following vessel-specific DAS
allocations for FY 2010: Full-time vessels will be allocated 38 DAS;
part-time vessels will be allocated 15 DAS; and occasional vessels will
be allocated 3 DAS.
Because Framework 21 was not implemented by the start of the FY on
March 1, 2010, and the regulations in effect at the start of FY 2010
are inconsistent with Framework 21 specifications, it is possible that
a scallop vessel may have exceeded its DAS allocation during the
interim period between March 1, 2010, and the effective date of this
final rule. Therefore, any limited access open area DAS used in FY 2010
by a vessel that is above the final FY 2010 allocation for that vessel
will be deducted from the vessel's FY 2011 DAS allocation.
Open Area DAS Adjustment if Access Area Yellowtail Flounder (YTF) TAC
Is Attained
Under the Northeast Multispecies FMP, 10 percent of the Southern
New England (SNE) YTF TAC is allocated to scallop vessels fishing in
the Nantucket Lightship Access Area (NLAA). For FY 2010, this equates
to 47 mt; 103,617 lb (April 9, 2010; 75 FR 18356). If the NLAA YTF TAC
is caught, the NLAA will be closed to further scallop fishing for the
remainder of the FY. If a vessel has unutilized trip(s) after the
access area is closed due to reaching the YTF TAC, it will be allocated
additional open area DAS at a reduced rate. 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). Full-time vessels will be allocated 5.8 DAS
per unutilized trip in the NLAA. If part-time and occasional vessels
have no available access areas in which to take an unused trip, they
will be allocated 4.6 DAS and 1.9 DAS, respectively.
If a vessel has unused compensation trip(s) from a previously
broken trip(s) when the access area closes due to reaching the YTF TAC,
it will be issued additional DAS in proportion to the unharvested
possession limit. For example, if a full-time vessel had an unused
9,000-lb (4,082-kg) NLAA compensation trip (half of the full possession
limit) at the time of a NLAA YTF TAC closure, the vessel will be
allocated 2.9 DAS (half of the 5.8 DAS that will be allocated for a
full NLAA trip).
Limited Access Trip Allocations, and Possession Limits for Scallop
Access Areas
In FY 2010, full-time scallop vessels are allocated one trip in the
NLAA, two trips in the Elephant Trunk Access Area (ETAA), and one trip
in the Delmarva Access Area (Delmarva). A part-time scallop vessel is
allocated two trips, which can be taken as follows: two trips in the
ETAA; one trip in the ETAA and one trip in the NLAA; one trip in the
ETAA and one trip in Delmarva; or one trip in NLAA and one trip in
Delmarva. An occasional vessel is allocated one trip, which can be
taken in any one open access area. The FY 2010 limited access scallop
possession limit for access area trips is 18,000 lb (8,165 kg) for
full-time vessels, 14,400 lb (6,532 kg) for part-time vessels, and
6,000 lb (2,723 kg) for occasional vessels.
Because Framework 21 was not implemented by the start of the FY on
March 1, 2010, and the regulations in
[[Page 36561]]
effect at the start of FY 2010 are inconsistent with Framework 21
specifications, it is possible that scallop vessels could exceed their
ETAA access area trip allocation during the interim period between
March 1, 2010, and the effective date of this final rule. There were
three ETAA trips allocated for full-time scallop vessels at the start
of FY 2010, but this final rule allocates only two trips. If a full-
time vessel takes three trips into the ETAA during FY 2010, the
vessel's FY 2011 overall access area trip allocation will be reduced by
one trip to account for the FY 2010 overage. The access area trip
allocations for FY 2011 are not yet determined; vessel owners who
exceed their ETAA trip allocations for FY 2010 will have their overage
deducted from their ETAA allocation, if there is a trip allocated into
the ETAA for FY 2011. If no ETAA trips are allocated in FY 2011, vessel
owners will be given the opportunity to select the area from which
their trip overage would be deducted, with NMFS determining the area,
if the vessel owner fails to respond.
Framework 21 reduces the access area possession limit for part-time
and occasional vessels. Therefore, it is also possible that a part-time
or occasional vessel may have exceeded its trip possession limit during
the interim period between March 1, 2010, and the effective date of
this final rule. If a part-time or occasional vessel exceeds its FY
2010 possession limit, the overage will be deducted from that vessel's
FY 2011 possession limit allocation.
LAGC Measures
1. TAC for LAGC vessels with IFQ permits. This action specifies a
2,326,700-lb (1,055-mt) annual TAC for LAGC vessels with IFQ permits
for FY 2010. IFQ allocations will be calculated by applying each
vessel's IFQ contribution percentage to this TAC.
2. TAC for Limited Access Scallop Vessels with IFQ Permits. This
action specifies a 232,670-lb (106-mt) annual TAC for limited access
scallop vessels with IFQ permits for FY 2010. IFQ allocations will be
calculated by applying each vessel's IFQ contribution percentage to
this TAC.
3. LAGC IFQ Trip Allocations and Possession Limits for Scallop
Access Areas. The LAGC IFQ fishery is allocated 5 percent of the
overall ETAA, NLAA, and Delmarva TACs, resulting in a fleet-wide trip
allocation of 1,377 trips in the ETAA and 714 trips in both the NLAA
and in Delmarva. These areas will close to LAGC vessels when the
Regional Administrator determines that the allocated number of trips
have been taken in the respective areas.
Framework 21 reduces the number of LAGC trips into the ETAA and
Delmarva. Therefore, it is possible that LAGC scallop vessels could
exceed the FY 2010 fleet-wide trip allocations in the ETAA and
Delmarva. If LAGC vessels exceed the number of allocated trips from the
ETAA or Delmarva in FY 2010, the number of excess trips will be
deducted from the LAGC IFQ fleet access area trip allocation in FY 2011
in the ETAA or Delmarva, respectively.
4. Northern Gulf of Maine (NGOM) TACS. This action specifies a
70,000-lb (31,751-kg) annual NGOM TAC for FY 2010.
5. Scallop Incidental Catch Target TAC. This action specifies a
50,000-lb (22,680-kg) scallop incidental catch target TAC for FY 2010
to account for mortality from this component of the fishery and to
ensure that F targets are not exceeded.
Research Set-Aside (RSA) Allocations
Two percent of each scallop access area quota and 2 percent of the
DAS allocation are set aside as the Scallop RSA to fund scallop
research and to compensate participating vessels through the sale of
scallops harvested under RSA quota. The FY 2010 RSA access area
allocations are: NLAA--117,820 lb (53 mt); ETAA--227,060 lb (103 mt);
and Delmarva--117,700 lb (53 mt). The FY 2010 RSA DAS allocation is 269
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, and
scallop vessels on an observed access area trip are authorized to have
an increased possession limit. Unless changed by the Regional
Administrator, the current compensation rate for FY 2010 will continue,
as follows: Limited access DAS vessels carrying an observer on access
area trips will receive 180 lb (82 kg) of scallops per day, or part of
a day, in ETAA, Delmarva, and NLAA; LAGC IFQ vessels carrying an
observer on access area trips will receive 180 lb (82 kg) of scallops
per trip in ETAA, Delmarva, and NLAA; and limited access DAS vessels
will be compensated 0.10 DAS per DAS fished during observed open area
trips (i.e., vessels will be charged 0.90 DAS per DAS fished with an
observer onboard). The Regional Administrator will re-evaluate the
compensation rates for FY 2010 should new information regarding
monitoring and coverage levels indicate the need for adjustment. The
2010 observer set-aside access area allocations are: NLAA--58,910 lb
(27 mt); ETAA--113,530 lb (52 mt); and Delmarva--58,850 lb (27 mt). The
FY 2010 DAS observer set-aside allocation is 135 DAS.
Reasonable and Prudent Measures
The Incidental Take Statement of the March 14, 2008, Biological
Opinion required NMFS to implement five non-discretionary reasonable
and prudent measures (RPMs) identified as necessary or appropriate to
minimize the impacts of any incidental take, as well as Terms and
Conditions for implementing each RPM. Framework 21 includes management
measures to comply with the first of these RPMs, which requires a limit
of fishing effort in the Mid-Atlantic during times when sea turtle
distribution is expected to overlap with scallop fishing activity. The
Biological Opinion requires that this restriction on fishing effort
must be in place no later than FY 2010 and shall be limited to a level
that will not result in more than a minor impact on the fishery.
For FY 2010, Framework 21 defined a ``more than minor impact'' on
the fishery as one that would result in a 10-percent shift in baseline
effort from the Mid-Atlantic during June 15 through October 31 into
other areas and times of year when sea turtle interactions are less
likely. This definition, as well as management measures to comply with
the Biological Opinion and any future Biological Opinions, will be
reevaluated for future FYs in Framework 22 and subsequent actions.
This action will close the Delmarva access area from September 1,
2010, through October 31, 2010. In addition, because the ETAA and
Delmarva are in the Mid-Atlantic, full-time limited access vessels will
be restricted to taking two of the access area trips allocated to those
areas, or to maximum landings of 36,000 lb (16,329 kg) from those areas
(i.e., the equivalent of two access area trips), during the period June
15, 2010, through August 31, 2010. Compliance with the trip restriction
will be monitored by pounds of scallops landed during June 15, 2010,
through August 31, 2010, rather than trip declarations, which could
result in landings that are less than the allowable trip possession
limit. The additional pounds allocated to vessels with on-board
observers during trips taken within this time period will not count
towards this 36,000-lb (16,329-kg) limit. If a vessel fishes any part
of an access area trip in the ETAA or Delmarva during this time period
(i.e., starts a trip on June 13, 2010, and ends the trip on
[[Page 36562]]
June 15, 2010), landings from that trip would count towards the two-
trip limit.
In addition, compensation trips may not be combined during this
time period in a way that would allow more than 36,000 lb (16,329 kg)
to be landed from the ETAA or Delmarva from June 15, 2010, through
August 31, 2010. For example, this final rule allocates three total
trips into the Mid-Atlantic access areas to a full-time vessel for FY
2010 (One trip in Delmarva; two trips in the ETAA). If that vessel
declared and subsequently broke one of the three trips into Mid-
Atlantic access areas prior to June 15, it would have two full trips
(i.e., 36,000 lb, 16,329 kg) available for use during the trip-
restriction window. In that case, the vessel could only harvest up to
36,000 lb (16,329 kg) total from June 15, 2010, through August 31,
2010, in the Mid-Atlantic access areas, either by fishing its
compensation trip and one full access area trip or by fishing two full
access area trips and waiting to conduct the compensation trip on or
after November 1, 2010 (i.e., after the ETAA and Delmarva seasonal
closures).
Part-time and occasional vessels are not affected by this trip
restriction because they are not allocated more than two trips during
the entire FY. LAGC IFQ vessels are also not affected by this trip
restriction.
Adjustments to the Industry-Funded Observer Program
The following measures were developed by the Council to improve the
administration of the industry-funded observer program.
1. Limit the amount of observer compensation LAGC IFQ vessels can
possess per observed trip in access areas. This action requires that
for access area trips declared after the effective date of this action,
the possession limit to defray the cost of an observer for LAGC IFQ
vessels fishing in access areas be specified by trip, not by fishing
day. For example, if the limited access vessel daily possession limit
to defray the cost of an observer is 180 lb (82 kg), the LAGC IFQ
possession limit will be 180 lb (82 kg) per observed trip. In this
scenario, an LAGC IFQ vessel with an onboard observer will be able to
land up to 580 lb (263 kg), the sum of its regular possession limit of
400 lb (181 kg) plus the additional observer compensation, during an
access area trip, regardless of trip length. The intent of this measure
is to avoid allocating observer compensation in excess of the amount
necessary to pay for the observer costs for these trips in order to
minimize the possibility of fully harvesting the observer set-aside in
an access area prior to the end of the FY.
2. Providers must charge a prorated fee for vessels fishing in
access areas if the observer set-aside has been fully harvested. This
action requires that, for observed access area trips declared after
NMFS announces that the annual observer set-aside for a given access
area is fully exhausted, service providers must prorate their fees on
an hourly basis for the remainder of the FY, similar to how observer
fees are charged for vessels fishing on open area scallop trips. The
intent of this measure is avoid observer fees charged in excess of
actual time spent on an observed trip in an access area once the set-
aside allocated to that specific access area is no longer available to
defray observer costs.
Adjustments to the IFQ Program
This final rule will enable the owner of an IFQ vessel or IFQ
confirmation of permit history (CPH) to lease some or all of its IFQ to
or from and other IFQ vessel during a single FY. This measure removes
the restriction that requires leasing only of an entire IFQ. This
alternative only applies to leases, and not to permanent transfers,
which will still require a vessel's entire IFQ allocation to be
transferred permanently. Vessel owners intending to lease some or all
of their IFQ allocation to another IFQ vessel(s) may not fish any of
their IFQ allocation prior to the lease transaction.
This action requires partial IFQ leases to be at least 100 lb (45
kg). If a vessel owner has previously leased a portion of the vessel's
IFQ, and the remaining allocation is less than 100 lb (45 kg), the
remaining IFQ may be transferred in full to another vessel.
This action also revises regulatory text to remove or clarify text
that was duplicative and unnecessary, outdated, or unclear.
Comments and Responses
Three comment letters were received in response to the proposed
rule from an individual; the Fisheries Survival Fund (FSF), writing on
behalf of full-time limited access scallop fleet members; and Oceana,
an environmental organization. The comments relating to the proposed
Framework 21 measures are responded to below. Other comments, including
those raising specific concerns about the contents and development of
the March 14, 2008, Biological Opinion for the sea scallop fishery, are
not the subject of this rulemaking and are therefore not responded to
in this document. The FSF stated in its comment letter that it intended
to incorporate by reference other comments made during the Council's
development of Framework 21; NMFS notes that the rulemaking process
does not recognize such non-specific incorporation by reference. As a
general matter, NMFS is constrained to only approve, disapprove, or
partially approve measures in Framework 21, and cannot substantively
amend or add to these regulations beyond what is necessary under
section 305(d) of the MSA to discharge its responsibility to carry out
such measures.
Comment 1: The FSF noted that it disagrees with the requirements of
the Biological Opinion, characterizing them as ultraconservative, but
reluctantly accepted the measures specified to comply with the RPM in
the Biological Opinion. The FSF noted that, while the measures meet the
criteria of having no more than a minor impact on the fishery, they
will have negative economic impacts on the scallop industry because
they will divert fishing activity to sub-optimal times of the year,
when scallop yields are lower. However, FSF recognized that the
findings of the Biological Opinion impose legal duties on NMFS that
must be addressed through Framework 21, and that the scallop fleet will
have to bear the costs of the measures.
Response: NMFS recognizes that FSF has concerns about the
Biological Opinion that are not directly related to this rulemaking.
NMFS agrees that the Framework 21 analysis shows that there will be
some economic losses as a result of the diversion of fishing from the
Mid-Atlantic region during a productive fishing period into areas and
times with lower scallop yields. As FSF notes, however, the analysis
concluded that the measures would comply with the RPM specified in the
Biological Opinion, and have no more than a minor impact on the
fishery, as required by the Endangered Species Act (ESA).
Comment 2: Oceana contended that Framework 21 fails to protect
threatened and endangered sea turtles, fails to protect habitat, fails
to reduce bycatch of sea turtles and finfish, and fails to achieve OY
of scallops. Oceana suggests that NMFS should disapprove the use of the
F=0.24 target and should approve and implement the measures developed
by the Council to be consistent with the F=0.20 target. Oceana
suggested that NMFS should disapprove Framework 21 and return the
document to the Council for revision.
Response: Additional specific concerns noted by Oceana are
characterized further and responded to in subsequent comments. NMFS
disagrees with Oceana's suggestion that Framework 21 should be
disapproved.
[[Page 36563]]
NMFS has found that the measures in Framework 21 comply with the MSA,
ESA, NEPA, and all other applicable laws. Oceana's comments are based
largely on the comparison of the impacts of the management alternatives
considered by the Council. These alternatives included measures that
would have achieved the F=0.24 and F=0.20 targets. There is no legal
requirement when such alternatives are considered to necessarily select
the more restrictive alternative for implementation. The analysis in
Framework 21 demonstrates that the F=0.24 target is not expected to
result in overfishing and would achieve OY on a continuing basis, fully
in compliance with MSA and the FMP. The F=0.24 target is approximately
80 percent of the F=0.284 overfishing threshold, and is consistent with
the overfishing definition in the FMP. Framework 21 complies with NEPA,
as it clearly presents the purpose and need for Framework 21, includes
all necessary components of a NEPA document, fully analyzes and
compares the impacts of a well-developed range of alternatives, and
makes conclusions directly based on the information and analyses.
NMFS notes that a disapproval of Framework 21 would mean that the
current management program would continue in effect. While the overall
TAC is slightly higher in Framework 21 than the status quo, it is
distributed to the fishery in a way that results in fewer open area DAS
and access area trips. This, in turn, represents a reduction of the
amount of the sea bottom where fishing occurs (overall swept area),
with associated reductions in bycatch and habitat impacts. Failing to
enact the measures in Framework 21 at this time would mean that there
would be no measures to reduce interactions with sea turtles, as
specified in the Biological Opinion.
Comment 3: Oceana's comments about ESA requirements include
concerns that there should be a reintiation of consultation on this
fishery and that the current Biological Opinion for the scallop fishery
must be updated because new information is available concerning
loggerhead sea turtles as reflected in a status review and by a
proposed listing of the North Atlantic distinct population segment as
endangered. Although Oceana stops short of advocating disapproval of
Framework 21 while a reintiation occurs, it recommends that NFMS should
implement the F=0.20 alternative originally adopted by the Council and
that there should be specific management measures that would apply to
both the open area and access areas in the Mid-Atlantic region. Oceana
objects to the fact that the DAS allocated in Framework 21 are higher
than those that would have been allocated if the target F was 0.20.
Because the measures proposed in Framework 21 are applicable only to
the access areas, Oceana contends that the measures do not comply with
the requirements of the Biological Opinion.
Response: NMFS has determined that the measures in Framework 21
comply with the requirements of the MSA, the ESA and, specifically, the
current Biological Opinion, even in light of the new status review and
proposed listing. As a preliminary matter, NMFS is constrained from
implementing the F=0.20 alternative or any new sea turtle measures
under the MSA because it can only approve, disapprove, or partially
approve measures included in a framework adjustment. NMFS does not
believe that the 2009 loggerhead sea turtle status review or proposed
listing is cause to reinitiate ESA Section 7 consultation on the
Atlantic sea scallop fishery. The status review did not focus on the
scallop fishery or Framework 21, and therefore there is no new
information provided in the status review specifically regarding the
exposure of loggerhead sea turtles to scallop fishing gear. The status
review provides no new information regarding risk from Framework 21 or
the scallop fishery to loggerhead sea turtles. The status review states
that the decline of loggerhead sea turtles in the Northwest Atlantic is
largely driven by mortality due to bycatch throughout the North
Atlantic Ocean; however, these bycatch mortalities are from multiple
fisheries operating under the jurisdiction of multiple countries, not
just the U.S. Atlantic sea scallop fishery. The Population Viability
Analysis conducted for the 2008 Biological Opinion, which specifically
examined the effects of the scallop fishery on sea turtles in the North
Atlantic, found that the mortality caused by the scallop fishery did
not significantly alter the risk of extinction or quasi-extinction of
loggerheads in the North Atlantic. The status review used the same
nesting beach abundance data as the March 14, 2008, Biological Opinion,
and the two documents identify the same key nesting beach and oceanic
threats to survival and recovery of the species. Both documents
utilized similar modeling techniques, and used the same nesting data.
Because the status review's modeling exercise relied on essentially the
same information that was used in the Biological Opinion, the status
review does not provide new information that indicates effects of
Framework 21 or the scallop fishery on loggerhead sea turtles, in a
manner or to an extent not considered in the 2008 Biological Opinion.
The comments made by Oceana related to the loggerhead sea turtle status
review also presume the outcome of the agency process relating to
making a future listing decision. If NMFS and the U.S. Fish and
Wildlife Service (FWS) do make a final listing decision to list the
Northwest Atlantic Distinct Population Segment of loggerhead sea
turtles (as described in the status review and the proposed rule
published on March 16, 2010 (75 FR 12597)), then reinitiation of
consultation will be required. However, without such a final listing
decision, NMFS does not consider the triggers for reinitiation of
consultation to have been met. The publication of the status review in
and of itself does not meet the triggers for reinitiation and, thus, by
logical extension, there are no grounds for adjusting the RPMs or
enacting any other restrictive measures relating to sea turtle
protection.
NMFS has found that Framework 21 complies with the requirements of
the RPM, and also meets the ESA criteria of having no more than minor
impact on the fishery. Framework 21 includes measures to assure
compliance with RPM 1 of the March 14, 2008 (amended February
5, 2009) Biological Opinion. This RPM stated that ``NMFS must limit the
amount of allocated scallop fishing effort by `limited access scallop
vessels' as such vessels are defined in the regulations (50 CFR 648.2),
that can be used in the area and during the time of year when sea
turtle distribution overlaps with scallop fishing activity.'' The non-
discretionary Term and Condition that implements the RPM above mandates
that ``no later than the 2010 scallop FY, NMFS must limit the amount of
allocated limited access scallop fishing effort that can be used in
waters south of the northern boundaries of statistical areas 612, 613,
533, 534, 541-543 during the periods in which turtle takes have
occurred. Restrictions on fishing effort described above shall be
limited to a level that will not result in more than a minor impact on
the fishery.'' The Council took these requirements into account
throughout the development of Framework 21 and considered measures to
limit effort in the Mid-Atlantic area from mid-June through the end of
October that also would not result in more than a minor impact on the
fishery. The measures ranged from limits on DAS or access area trips
that could be used in that area and time
[[Page 36564]]
period, seasonal closures of access areas in the Mid-Atlantic, and
reduced possession limits in Mid-Atlantic access areas.
After a number of discussions, the Council decided that Framework
21 measures would include a seasonal closure of the Delmarva access
area and a limit on the number of Mid-Atlantic access area trips. The
restrictions are intended to remove fishing effort during the time when
effort overlaps with sea turtle distribution. The seasonal closure of
the Delmarva access area takes place from September 1 through October
31. This measure will remove an estimated 563 DAS from the sea turtle
window. Although this measure may increase the DAS needed to land the
same amount of pounds of scallops in other areas, this increase in
effort will take place in areas and at times of the year when sea
turtles are less abundant in the action area. Limiting the number of
Mid-Atlantic access area trips that can be taken during times when sea
turtles are most abundant will likely benefit sea turtles. Each vessel
is restricted to taking two of the three allocated access area trips in
the Mid-Atlantic during June 15 to October 31. Since both Mid-Atlantic
access areas are now closed from September 1 to October 31 to reduce
impacts on sea turtles, the limit is applicable for June 15 through
August 31. Limiting the maximum number of trips to two per vessel will
move 358 DAS from the sea turtle window to the rest of the year, which
constitutes a 3.5-percent effort shift. In summary, the combined
measures will result in an 8.9-percent shift of effort from the sea
turtle window (June 15-October 31) into the rest of the year, which is
slightly below a threshold level suggested by the Scallop PDT (10
percent) for a minor change to the fishery based on the analyses
prepared by the Scallop PDT for the RPM in Framework 21. Thus, the
measures taken in Framework 21 meet the requirements of the RPM and
Term and Condition in the March 14, 2008 (amended February 5, 2009)
Biological Opinion in that they shift effort away from times and areas
where the fishery and sea turtles overlap, but do not result in more
than a minor impact on the fishery.
With respect to compliance with the ESA, NMFS has concluded that
the operation of the scallop fishery under Framework 21 measures will
not affect endangered and threatened species in a way that has not
already been considered and analyzed. Considering all aspects of
Framework 21, including the measures to implement the RPM and term and
condition from the Biological Opinion and the F=0.24 target, overall
fishing effort in the fishery will be reduced compared to that which
would occur in the absence of Framework 21 and to that considered in
the Biological Opinion. It is significant, also, that Framework 21 is a
one-year measure only. The Council and NMFS will need to reconsider the
adequacy of sea turtle measures for FYs beyond 2010, and, if there are
any changes based on new information or a determination concerning the
proposed listing, reintiation would be required and new measures may be
appropriate.
Comment 4: Oceana commented that, by allowing fishing levels
consistent with the F=0.24 target, Framework 21 fails to minimize
bycatch of finfish and adverse effects on EFH. Oceana concluded that
the amount of swept area would have been lower under a target F=0.20.
This, Oceana concluded, means that Framework 21 does not minimize
impacts on adverse impacts to the extent practicable to EFH. Oceana
expressed concern that estimates of YTF bycatch are higher under the
higher target F, and will likely have impacts on the fledgling sector
management program for NE multispecies.
Response: As noted in Response to Comment 2, when the Council
compares alternatives, there is no legal requirement to select the most
restrictive alternative for implementation. The measures in Framework
21 achieve a variety of objectives, including preventing overfishing
and achieving OY of scallops. This action must be put into perspective
of the overall FMP, which contains more comprehensive analysis and
consideration of bycatch and EFH concerns. This action merely makes
adjustments to the FMP on a one-year basis and is limited in scope. In
the process of achieving those FMP objectives, the Council and NMFS
must only minimize adverse impacts on EFH and minimize bycatch to the
extent practicable. The National Standard Guidelines for minimizing EFH
impacts and bycatch explicitly acknowledge that social and economic
impacts are important considerations in determining the practicablilty
of EFH and bycatch reduction measures (see 50 CFR 600.350(d)(3) and
600.815(a)(2)(iii)). The Council and NMFS are also required to minimize
the economic impacts when there are multiple alternatives that may be
consistent with conservation objectives. NMFS has concluded that
Framework 21 analyzes and balances these objectives and complies with
all applicable legal requirements.
Comment 5: The FSF commented that the Framework 21 allocations
based on the F=0.24 target are overly precautionary, and that at least
one additional access area trip is justified based on levels of scallop
abundance. The FSF criticized the Council for not considering an
alternative that included an additional access area trip. However, FSF
concluded that the recommended specifications are fully within the
legal parameters established in the MSA and the National Standard 1
guidelines.
Response: The allocations for access areas and open areas combine
to achieve the F=0.24 target. NMFS notes that allocating additional
access area trips likely would have reduced open area DAS because of
the additional mortality caused by fishing within Closed Area I or
Closed Area II.
Comment 6: Oceana commented that Framework 21 establishes a level
of fishing at the F=0.24 target that allows localized overfishing of
the scallop resource, which is illegal. It further alleges that the
Council was swayed by political pressure to select the F=0.24 target in
order to reap short-term gains for the scallop fishery in FY 2010.
Oceana encouraged NMFS to disapprove the F=0.24 strategy and substitute
the more risk-averse and profitable F=0.20 strategy for FY 2010. Oceana
commented that the F=0.24 strategy provides only minor short-term
economic benefits for the fishery that come at a considerable cost to
the ocean ecosystem, in violation of MSA requirements.
Response: The analysis of the impacts of Framework 21 management
measures on the scallop resource demonstrate clearly that the F=0.24
target is not expected to result in overfishing and is expected to
achieve OY on a continuing basis. The MSA requires overfishing to be
prevented on the stock as a whole, and, in fact, the MSA does not
define localized overfishing. The area rotation management program
established by the FMP presumes that F will vary by area, depending
upon the distribution of biomass. The analysis of economic impacts
demonstrates that cumulative profits over several years may be
marginally higher under the F=0.20 target, but the Council chose to
adopt measures with marginally lower cumulative profits because of its
concern about the negative economic, community, and social impacts that
could have resulted in the first year of the management measures under
F=0.20. There was great concern among some members of the public that
the future return in landings and revenue under F=0.20 would not
outweigh the risk of lost market share that could occur in FY 2010,
particularly if a lower quota resulted in a ripple effect
[[Page 36565]]
throughout the major ports that could potentially affect business and
fisheries outside of those directly tied to scallops. Should this
occur, businesses currently impacted by the recent economic climate
would have a difficult time recovering their losses in the future,
regardless of whether the allocations increased after FY 2010.
Ultimately, the Council considered that the longer-term benefits do not
outweigh these short-term impacts. Although this action will have
marginally smaller positive long-term economic impacts in comparison to
the F=0.20 alternative, Framework 21 is only addressing the allocations
for FY 2010. Future management measures in FY 2011 and beyond will
affect these forecasts. NMFS finds that this is fully consistent with
the MSA because Framework 21 measures under the F=0.24 alternative
prevent overfishing the scallop stock, achieve OY on a continuing
basis, and reduce negative impacts on fishing communities.
Comment 7: The FSF suggested that the final rule for Framework 21
clarify how ETAA trips will be addressed in FY 2011 if a vessel exceeds
its Framework 21 two-trip allocation by taking three trips prior to the
implementation of Framework 21, as allowed.
Response: NMFS has clarified that a vessel will lose one access
area trip if it takes more than two trips allocated in the ETAA under
Framework 21 prior to the effective date of Framework 21. It is not yet
known whether the ETAA will be open as an access area in FY 2011. If
the ETAA is open, the deduction would be taken from the FY 2011 ETAA
allocation. If the ETAA is not open, vessel owners would be given the
opportunity to select the access area from which the overage would be
deducted, with NMFS determining the area, if the vessel owner fails to
respond. This is consistent with the Framework 21 access area trip
provisions described in Section 2.2.3 of the Framework 21 document.
Comment 8: The FSF urged NMFS to recalculate the conversion factor
that would be used to convert unused NLAA access area trips into open
area DAS if the area is closed due to attainment of the YTF TAC. The
FSF believes that the FMP requires the 5.8 DAS given as compensation
for an NLAA trip to be increased in order to assure that a vessel with
unharvested poundage from the NLAA trip is able to harvest the full
amount of 18,000 lb (8,165 kg) of scallops (the amount allocated for a
full-time vessel trip into the NLAA).
Response: The FSF has incorrectly characterized the objective of
the FMP measure that specifies that unused NLAA trips will be converted
to open area DAS. This measure was initially established through Joint
Framework 16/39 (69 FR 63460; November 2, 2004), which modified both
the Sea Scallop and NE Multispecies FMPs and went into effect in FY
2005. The objective of the measure is not, as FSF states, to assure
that vessels should be allocated DAS that are sufficient to fully
harvest 18,000 lb (8,165 kg). The measure, which is described in
Section 2.5.1.1 of Framework 21, was established to ensure that the
transfer of fishing effort from the access area to the open area is
conservation neutral. This calculation takes into account the expected
average landings per DAS based on relative biomass and scallop size in
open areas, compared to the NLAA. Framework 21 calculated that, in the
NLAA, based on the F=0.24 target, the average NLAA scallop meat count
will be 11.5 meats per lb--therefore 207,000 scallops (18,000 lb *
11.5) would be removed per trip. In the open areas, the average meat
count will be 21.2 meats per lb, so that 207,000 scallops per trip
correspond to 9,764 lb (4,429 kg) of scallops (207,000 lb/21.2 meats
per lb). With an expected landings per unit effort of 1,693 lb (768 kg)
per DAS, the open area DAS to harvest 9,764 lb (4,429 kg) is 5.77 DAS
(9,764 lb/1,693 lb per DAS).
Comment 9: The FSF commented in support of the regulatory changes
related to the industry funded observer program compensation rates for
vessels that carry observers. The FSF supports the provision that
requires observer service providers to prorate the observer coverage
fee if the set aside is exhausted.
Response: The measures have been enacted through this action.
Changes From Proposed Rule to Final Rule
The section heading of Sec. 648.10 is revised to correct an
inadvertent change made through a previous action, paragraph (c)(1) is
revised to clarify the current Vessel Monitoring System (VMS)
regulations, and paragraph (f)(4) is revised to correctly reference the
name of the required catch report for NGOM and LAGC vessels.
In Sec. 648.11, paragraph (g)(5)(i)(A) is revised to clarify that
observer service providers must charge a prorated fee when issuing an
observer to a vessel on an access area trip after NMFS has announced
that the observer set-aside for that specific access area has been
fully utilized.
In Sec. 648.14, paragraph (i)(4)(i) is revised to clarify that
LAGC IFQ vessels may only exceed the possession and landing limit if
granted observer compensation while carrying an observer in an access
area.
Other editorial and minor changes were made throughout the rule to
clarify various provisions in this action.
Classification
NMFS has determined that Framework 21 as implemented by this rule
is necessary for the conservation and management of the Atlantic sea
scallop fishery and is consistent with the MSA 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 an expedited manner in order to
help achieve conservation objectives for threatened and endangered sea
turtles and certain fish stocks constitutes good cause, under authority
contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in
effectiveness. Framework 21 includes management measures to minimize
fishery interaction with threatened and endangered sea turtles and
prevent overfishing. Specifically, Framework 21 includes a measure that
specifies that vessels may take only two of their three allocated
access area trips in the ETAA and Delmarva between June 15 and August
31, 2010. This limitation complies with one of the RPMs required in the
most recent Biological Opinion completed for the scallop fishery. The
Biological Opinion examined fishery interactions with threatened and
endangered sea turtles and specified RPMs to minimize the impacts on
sea turtles. If implementation is delayed greatly beyond June 15, 2010,
sea turtle conservation benefits during this short window of time will
be compromised.
In addition, if there is a delay in implementing the measures in
Framework 21, the scallop fleet will continue under the current DAS,
observer set-aside, access area trip allocations, and access area trip
possession limits for part-time and occasional vessels. These
allocations are higher than the measures specified in Framework 21,
which were developed to reflect an updated estimate of the annual catch
that can be harvested without resulting in overfishing. As a result,
vessel owners and operators have the potential of exceeding the catch
levels specified in Framework 21. Further continuation of the
inconsistent FY 2009 management measures increases the risk that the
actual F will exceed the target level upon which Framework 21
management measures are based. Actual F was higher than
[[Page 36566]]
projected in both FYs 2008 and 2009, a situation which was addressed in
the DAS model used to calculate the Framework 21 allocations.
Continuing this trend in higher-than-projected fishing mortality could
result in overfishing and future decreases in allowable harvest.
NMFS was unable to incorporate the delay in effectiveness into the
timeline for Framework 21 rulemaking due to the Council's January 2010
reconsideration and amendment of its initial Framework 21
recommendations, which were originally submitted to NMFS on December
21, 2009. The Council resubmitted the Framework 21 document with
updated analyses to NMFS on March 19, 2010, after the March 1 start of
the 2010 scallop FY.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has completed a final regulatory flexibility analysis (FRFA) in
support of Framework 21 in this final rule. The FRFA incorporates the
IRFA, a summary of the significant issues raise by the public comments
in response to the IRFA, and NMFS's responses to those comments, and a
summary of the analyses prepared for Framework 21. This FRFA describes
the economic impact that this final rule, along with non-adopted
alternatives, will have on small entities. A copy of the IRFA, the RIR,
and the EA are available upon request (see ADDRESSES).
Statement of Objective and Need for This Action
This action specifies the FY 2010 management measures for the
Atlantic sea scallop fishery. A description of the action, why it is
being considered, and the legal basis for this action are contained in
the preamble to the proposed and final rules and are not repeated here.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
The vessels in the Atlantic sea scallop fishery are all considered
small business entities and, therefore, there is no disproportionate
impact on small entities. All of the vessels grossed less than $3 M
according to dealer data for the FYs 1994 through 2008. According to
this information, annual total revenue, including revenue from species
other than scallops, has averaged over $1 M per full-time limited
access vessel since FY 2004. According to FY 2008 dealer data, total
revenue per vessel, including revenue from species other than scallops,
averaged $1,079,722 per full-time limited access vessel, and $135,378
per general category vessel.
Framework 21 measures affect all Federal scallop vessels. The
Framework 21 document provides extensive information on the number and
size of vessels and small businesses that would be affected by these
measures, by port and State. In FY 2008 (the most recent complete FY
for which data are complete), there were 321 full-time, 34 part-time,
and 1 occasional limited access scallop permits issued, and 459 general
category permits issued to vessels in the LAGC fishery. Amendment 11 to
the FMP established a limited access fishery for general category
vessels and the appeals and limited access permit process for the LAGC
fleet was completed in January 2010. There are now 329 vessels that
qualified for IFQ permits, 40 limited access vessels that qualified for
IFQ permits, 107 vessels that qualified for NGOM permits, and 288
vessels that qualified for incidental permits.
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
One commenter expressed concern about the economic impacts of the
measures to comply with the Biological Opinion. The FSF noted that,
while the measures meet the criteria of having no more than a minor
impact on the fishery, they will have negative economic impacts on the
scallop industry because they will divert fishing activity to sub-
optimal times of the year, when scallop yields are lower. However, FSF
recognized that the findings of the Biological Opinion impose legal
duties on NMFS that must be addressed through Framework 21, and that
the scallop fleet will have to bear the costs of the measures. No
modifications to the proposed rule were made as a result of this
comment. As FSF recognized, the Framework 21 analysis concluded that
the measures would comply with the RPM specified in the Biological
Opinion, and have no more than a minor impact on the fishery, as
required by the ESA.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action contains no new collection-of-information, reporting,
and recordkeeping requirements. It does not duplicate, overlap, or
conflict with any other Federal law.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
The analysis of the fleet-wide aggregate economic impacts indicate
that the final DAS allocations will have slightly negative economic
impacts on the revenues and profits of the scallop vessels in FY 2010,
compared with the No Action alternative and compared to the levels in
FYs 2008 and 2009. Because this action will reduce the open area DAS
allocations from 42 DAS to 38 DAS for each full-time limited access
vessel (with similar reductions, proportionally for part-time and
occasional vessels), the total landings will decline by 6 percent in FY
2010, from $50 M under No Action to $47 M under this action, reducing
FY 2010 revenues for an average vessel by about 2 percent. In
comparison to FYs 2008 and 2009 average, the adopted action will result
in a 14-percent decrease in landings, representing a 2.3-percent
decrease in revenues. The percentage decline in revenues is less than
the percentage decline in landings because the price per pound of
scallops is estimated to be higher for the adopted action ($7.27 per
lb) compared with No Action ($7.07 per lb), the price in FY 2008 ($6.92
per lb) and the price in FY 2009 ($6.45 per lb).
Although this action will produce slightly less revenue in FY 2010
compared to FYs 2008 and 2009, it will result in higher revenues for
full-time limited access vessels from FY 2011 through FY 2016. This was
also true of the non-selected alternatives.
Over the short term, from FY 2010 through FY 2016, the action's
cumulative revenues are estimated to be slightly lower than the No
Action revenues, by $9 M, representing a 0.3-percent decrease. However,
the No Action alternative does not prevent overfishing and would result
in suboptimal allocation of open area DAS and access area trips. Under
the No Action alternative, there is no access into the NLAA, but the
biomass in that area can support one trip. In addition, under No
Action, open area DAS allocations would be higher than sustainable
levels because there is no adjustment to reflect the present
[[Page 36567]]
conditions of biomass in those areas. For these reasons, the levels of
exploitable biomass for the No Action alternative will be less than the
levels for this action and all the other alternatives considered.
Consequently, No Action would have long-term negative impacts on the
scallop stock biomass, landings, revenues, and economic benefits of the
scallop fishery. Over the long term (FYs 2010 to 2023), the alternative
implemented by this rule will generate $53 M more in total revenues
than the No Action alternative.
The non-selected Closure (F=0.20) and Closure (F=0.18) alternatives
would allocate higher DAS (51 and 42 DAS, respectively) to full-time
vessels than this action and would have had positive economic impacts
on scallop vessels in FY 2010. However, these alternatives would have
negative biological impacts because the new rotational area closure
resulted in a higher area-swept estimate in the Mid-Atlantic open area,
which may have impacts on non-target species in those areas and
increase the possibility of localized overfishing in open areas. If
these negative biological impacts were to occur as a result of the
Closure (F=0.18) or Closure (F=0.20) alternatives, more stringent
measures would have to be taken in the future to reduce effort, with
potentially negative impacts on the scallop vessels. Therefore, these
alternatives are not expected to generate higher benefits for the
scallop vessels in the long term, compared to this action.
The revenue for an average full-time limited access vessel is
estimated to be $931,799 for this action, which ranges from $108,152 to
$18,661 lower than the Closure (F=0.18), Closure (F=0.20), and No
Action alternatives. However, because this action will allocate fewer
open area DAS in FY 2010 compared to these three alternatives, and also
will allocate access area trips in more productive areas compared to No
Action, the trip costs would be comparatively reduced. The average trip
costs per vessel ($111,621) would decline by a range of 20 to 9 percent
in comparison to the higher DAS alternatives. The allowance for carry-
over DAS is another factor that could mitigate some of the negative
impacts of this action on vessel revenues and profits in FY 2010.
Vessels may save up to 10 of their open area DAS in FY 2009 to mitigate
the slightly smaller FY 2010 DAS allocations compared to No Action,
Closure (F=0.18), or Closure (F=0.20) alternatives.
Although the No Closure (F=0.20) alternative would produce the
marginally greater benefits over the long term compared to the selected
alternatives, it would result in a 13-percent and 11-percent loss in FY
2010 average annual revenue compared to No Action and this action,
respectively. This action would result in average FY 2010 revenues that
are $109,563 greater than the No Closure (F=0.20) alternative. This
action yields 5.8 M lb (2.6 M kg) more in 2010 than the No Closure
(F=0.20) alternative, which equates to an increase in $41 M in ex-
vessel revenues. In consideration of the FY 2010 economic benefits
under this action, the future return in landings and revenue under No
Closure (F=0.20), representing an increase in 10.3 M lb (4.7 M kg) and
$58 M over FYs 2011-2016, does not outweigh the risk of lost market
share that could occur in FY 2010, particularly if a lower quota
results in a ripple effect throughout the major ports that could
potentially affect business and fisheries outside of those directly
tied to scallops. Should this occur, businesses currently impacted by
the recent economic climate would have a difficult time recovering
their losses in the future, regardless of whether the allocations
increased after FY 2010. This action also minimizes impacts on the
fishery by helping to stabilize landings from year to year (i.e.,
between FY 2009 and FY 2011) compared to other alternatives considered.
In addition, although this action will have marginally smaller positive
long-term economic impacts in comparison to the No Closure (F=0.20)
alternative, Framework 21 is only addressing the allocations for FY
2010. Future management measures in FY 2011 and beyond will affect
these forecasts.
Under all alternatives, including No Action, the LAGC fleet is
allocated 5 percent of the TAC. This means the relative comparison of
this action to the other alternatives is similar to the comparison for
the limited access fleet. For example, similar to full-time limited
access vessels, the revenues of LAGC vessels are expected to be 2
percent lower under this action than under No Action in FY 2010.
Compared to FYs 2008 and 2009, however, the revenues of LAGC
vessels will decline by a larger percentage due to the implementation
of the IFQ program, as required by Amendment 11 to the FMP. The total
scallop revenue for the general category fishery was estimated to be
$30.8 M for FY 2008 and $29.6 M for FY 2009, averaging $30.2 M across
both FYs. During FYs 2008 and 2009, the LAGC fishery was under a
transition period while the final decisions for IFQ permit appeals were
determined. The transition period allocated 10 percent of the TAC to
LAGC IFQ vessels, as well as vessels that were granted a letter of
authorization to fish for scallops while their IFQ permit applications
were under appeal. FY 2010 marks the first year that the IFQ program is
in effect, and LAGC IFQ vessels are now allocated 5 percent of the TAC.
As a result, revenues for LAGC vessels under this action are projected
to be $17 M, representing a 43-percent decline. The short- and long-
term economic impacts of allocating 5 percent of the total TAC to LAGC
vessels were analyzed in Amendment 11 to the FMP. The economic impacts
of the LAGC TAC are within the range of the impacts previously analyzed
in Amendment 11.
This action will have positive economic impacts for the LAGC
fishery starting in FY 2011, as the LAGC TAC is expected to increase
compared to the FY 2010 allocation.
Other Framework 21 measures, such as observer program improvements,
IFQ program improvements, NGOM hard TAC, and YTF TAC adjustments are
expected to provide additional positive impacts by providing vessels
the opportunity to reduce fishing costs and increase revenues from
scallop fishing.
Economic Impacts of the Final Action
The following describes all of the alternatives considered by the
Council.
1. Open Area DAS Adjustment if Access Area YTF TAC Is Attained
This action maintains a provision that allocates additional open
area DAS if an access area closes due to the attainment of the scallop
YTF TAC. This will continue the current measures with the same impacts
as the No Action alternative. This conversion will help to minimize
lost catch and revenue if the NLAA closes due to the full harvest of
the YTF quota. As a result, this measure will have positive economic
impacts on scallop vessels, although the scallop pounds per trip could
be lower than the allocated pounds for NLAA trips due to proration to
assure that the measure is conservation neutral. There were no
alternatives considered to address this issue that would generate
higher economic benefits for the participants of the scallop fishery.
2. Research and Observer Set-Aside TACs
This action will continue to set aside 2 percent of the scallop TAC
for the RSA program and 1 percent of the scallop TAC for the industry-
funded observer set-aside program. These set-asides are expected to
have indirect economic benefits for the scallop fishery by improving
scallop information and data made possible by research and the
[[Page 36568]]
observer program. Although allocating higher set-aside percentages
could result in higher indirect benefits to the scallop fleet by
increasing available funds for research and the observer program, these
set-aside increases could decrease direct economic benefits to the
fishery by reducing revenues, and no such alternatives were considered.
3. Access Area Management
This action will allow access into both ETAA and Delmarva for both
the limited access DAS and LAGC fleets. By itself, allocations for
these highly productive areas in FY 2010 will have positive economic
impacts on both limited access and LAGC vessels. The only alternative
that would have generated higher benefits than the proposed action is
the No Action alternative, which would have allocated three trips to
ETAA, rather than two trips. This number of trips is higher than the
projected biomass in that area can support. As a result, the No Action
alternative would have had negative impacts on the biomass and yield
from the ETAA after FY 2010. As occurred in the Hudson Canyon Access
Area in FY 2005, excessive harvest in an access area can lead to rapid,
almost immediate, depletion of the area's resource, leading to poor
catch rates and elevated fishing costs.
This action will allocate one access area trip into the NLAA. All
alternatives considered, with the exception of No Action, included this
trip allocation. The biomass in this area is estimated to be high, and
trip costs will be lower, because the same amount of scallops could be
landed in a shorter time frame compared to areas with lower scallop
abundance. Providing access to high abundance areas will help increase
yield, landings, and revenues from the fishery both in the short- and
long-term, benefiting both limited access and LAGC vessels that
participate in the scallop fishery. Because there is no trip allocation
to the NLAA area under No Action, economic benefits would have been
lower both in the short- and long-term compared to the adopted
alternative, and other alternatives considered.
4. NGOM Hard TAC
This action establishes a 70,000-lb (31,751-kg) TAC for the NGOM.
This is the same TAC as the No Action alternative and all other
alternatives. The FMP specifies that the NGOM TAC should be based on
historic landings levels until the stock in the NGOM can be assessed
formally, and there has been no stock assessment to date. The NGOM TAC
has been specified at this level since FY 2008, and the fishery has
harvested less than 15 percent of the TAC in each of those years;
therefore, the TAC has no negative economic impacts.
5. Allow LAGC IFQ Vessel or CPH Owners To Lease Some or All of Their
IFQ
This action allows LAGC IFQ vessels owners (or IFQ CPH owners) to
lease some or all of their IFQ allocations to other vessels during a
given FY. This action will provide increased flexibility for LAGC IFQ
vessel owners, who, to date, are required to lease the entirety of
their IFQ allocations. This measure will have positive impacts on
vessel revenues and profits. The only other alternative was the No
Action alternative, which would have required that vessel owners
continue to lease unused quota allocations in full.
6. Reasonable and Prudent Measures
This action will close the Delmarva access area in September and
October and will limit the maximum number of trips (two per full-time
vessel) that can be taken in the Mid-Atlantic areas from June 15 to
August 31. Because fishing effort is shifted to a relatively less
productive season, total fleet trip costs are expected to increase
slightly (i.e., less than 0.2 percent) due to reduced scallop catch
rates. Since there is no change in the scallop possession limit, the
trips that are shifted from this season are expected to be taken
outside of this time period, without a loss in total revenue, as long
as this adopted measure does not have a negative impact on prices. The
closure in the Delmarva access area from September 1 through October 31
applies to all scallop vessels, including LAGC IFQ vessels. This
measure is not expected to affect the LAGC fleet specifically, since
the access area trips for this fleet are allocated as a fleet-wide
number of trips, and tend to be used outside of the closure period. No
other alternatives considered would generate higher benefits for the
scallop vessels, other than the No Action alternative. The No Action
alternative, however, would not comply with the RPMs specified in the
Biological Opinion. This measure is expected to minimize the effort
shift from the given time period compared to the other alternatives
considered by the Council; thus, there are no other alternatives that
would generate higher benefits for the scallop vessels.
7. Limit the Amount of Observer Compensation for LAGC Vessels in Access
Areas
This action will limit the total amount of observer compensation
LAGC IFQ vessels may receive on observed trips in access areas to the
equivalent of 1 day's compensation, regardless of trip length. The No
Action alternative would continue to provide LAGC IFQ vessels observer
compensation on a daily basis and would generate higher benefits for
the scallop vessels while the observer set-aside is available. This,
however, may exhaust the set-aside TAC before the end of the FY. The
current LAGC IFQ access area observer compensation contributed to fully
harvesting the FY 2009 observer set-aside earlier than anticipated.
This had negative impacts fleet-wide because vessels had to provide
full payment to observers without available observer compensation after
the observer set-aside was exhausted. These negative impacts were not
equally distributed across the fleet.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
a small entity compliance guild (the guide) was prepared. Copies of
this final rule are available from the Northeast Regional Office, and
the guide, i.e., permit holder letter, will be sent to all holders of
permits for the scallop fishery. The guide and this final rule will be
available upon request.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: June 22, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
[[Page 36569]]
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.10, revise the section heading and paragraphs (c)(1)
and (f)(4) to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(c) * * *
(1) Except as provided in paragraph (c)(2) of this section, or
unless otherwise required by paragraph (c)(1)(ii) of this section, all
vessels required to use VMS units, as specified in paragraph (b) of
this section, must transmit a signal indicating the vessel's accurate
position, as specified under paragraph (c)(1)(i) of this section:
(i) At least every hour, 24 hr a day, throughout the year; or
(ii) At least twice per hour, 24 hr a day, throughout the year, for
vessels issued a scallop permit.
* * * * *
(f) * * *
(4) Catch reports. (i) All scallop vessels fishing in the Sea
Scallop Area Access Program as described in Sec. 648.60 are required
to submit daily reports, through VMS, of scallops kept and yellowtail
flounder caught (including discarded yellowtail flounder) on each
Access Area trip. The VMS catch reporting requirements are specified in
Sec. 648.60(a)(9).
(ii) Scallop Pre-Landing Catch Reports for IFQ and NGOM vessels.
Using the Scallop Pre-Landing Catch Report, a vessel issued an IFQ or
NGOM scallop permit must report through VMS the amount of any scallops
kept on each trip declared as a scallop trip, including declared
scallop trips where no scallops were landed. In addition, vessels with
an IFQ or NGOM permit must submit a Scallop Pre-Landing Catch Report on
trips that are not declared as scallop trips, but on which scallops are
kept incidentally. A limited access vessel that also holds an IFQ or
NGOM permit must submit the Scallop Pre-Landing Catch Report only when
fishing under the provisions of the vessel's IFQ or NGOM permit. VMS
Scallop Pre-Landing Notification forms must be submitted no less than 6
hr prior to crossing the VMS Demarcation Line on the way back to port,
and must include the amount of scallop meats or bushels to be landed,
the estimated time of arrival in port, the port at which the scallops
will be landed, and the VTR serial number recorded from that trip's
VTR. If the scallop harvest ends less than 6 hr prior to landing, then
the Scallop Pre-Landing Catch Report must be submitted immediately upon
leaving the fishing grounds.
* * * * *
0
3. In Sec. 648.11, revise paragraph (g)(5)(i)(A) to read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(g) * * *
(5) * * *
(i) * * *
(A) Access Area Trips. (1) For purposes of determining the daily
rate for an observed scallop trip in a Sea Scallop Access Area when
that specific Access Area's observer set-aside specified in Sec.
648.60(d)(1) has not been fully utilized, a service provider shall
charge a vessel owner from the time an observer boards a vessel until
the vessel disembarks (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 1 at 10
p.m. and lands on July 3 at 1 a.m., the time at sea equals 27 hr, which
would equate to 2 full ``days.''
(2) For purposes of determining the daily rate in a specific Sea
Scallop Access Area for observed scallop trips taken after NMFS has
announced the industry-funded observer set-aside in that specific
Access Area has been fully utilized, a service provider shall charge a
vessel owner from the time an observer boards a vessel until the vessel
disembarks (dock to dock), where ``day'' is defined as a 24-hr period,
and portions of the other days would be pro-rated at an hourly charge
(taking the daily rate divided by 24). For example, if a vessel with an
observer departs on July 1 at 10 p.m. and lands on July 3 at 1 a.m.,
the time spent at sea equals 27 hr, so the provider shall charge 1 day
and 3 hr.
* * * * *
0
4. In Sec. 648.14, paragraphs (i)(2)(vi)(F) and (G) are added,
paragraph (i)(4)(i) is revised, and paragraph (i)(4)(iii)(F) is removed
and reserved.
The additions and revision read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(i) * * *
(2) * * *
(vi) * * *
(F) Declare more than two access area trips into the Delmarva and
Elephant Trunk Access Areas, as specified in Sec. 648.59(a) and (e),
during the period June 15 through August 31, unless at least one trip
is terminated early and trips in excess of two are declared
compensation trips authorized under Sec. 648.60(c); and
(G) Vessels do not fish for, possess, or retain more than a
combined total of 36,000 lb (16,329 kg) of scallops from the Delmarva
and Elephant Trunk Access Areas specified in Sec. 648.59(a) and (e)
during the period June 15 through August 31. This restriction does not
include the additional possession allowance to defray the cost of
carrying an observer, as specified in Sec. 648.60(d), that occurs
during observed trips between June 15 and August 31.
* * * * *
(4) * * *
(i) Possession and landing. (A) Fish for or land per trip, or
possess at any time, in excess of 400 lb (181.4 kg) of shucked
scallops, unless the vessel is carrying an observer as specified in
Sec. 648.11 while participating in the Area Access Program specified
in Sec. 648.60, and an increase in the possession limit is authorized
by the Regional Administrator and not exceeded by the vessel, as
specified in Sec. Sec. 648.52(g) and 648.60(d)(2).
* * * * *
0
5. In Sec. 648.52, paragraphs (a) and (f) are revised, and paragraph
(g) is added to read as follows:
Sec. 648.52 Possession and landing limits.
(a) A vessel issued an IFQ scallop permit that is declared into the
IFQ scallop fishery as specified in Sec. 648.10(b), unless as
specified in paragraph (g) of this section or exempted under the State
waters exemption program described in Sec. 648.54, may not possess or
land, per trip, more than 400 lb (181.4 kg) of shucked scallops, or
possess more than 50 bu (17.6 hL) of in-shell scallops shoreward of the
VMS Demarcation Line. Such a vessel may land scallops only once in any
calendar day. Such a vessel may possess up to 100 bu (35.2 hL) of in-
shell scallops seaward of the VMS demarcation line on a properly
declared IFQ scallop trip.
* * * * *
(f) A vessel that is declared into the Sea Scallop Area Access
Program as described in Sec. 648.60, may not possess more than 50 bu
(17.6 hL) of in-shell scallops outside of the Access Areas described in
Sec. 648.59(a) through (e).
(g) Possession limit to defray the cost of observers in Access
Areas for LAGC IFQ vessels. An LAGC IFQ vessel with an observer on
board may retain, per observed trip, up to 1 day's allowance of the
possession limit allocated to limited access vessels, as established by
the Regional Administrator in accordance with Sec. 648.60(d), provided
the observer set-aside specified in Sec. 648.60(d)(1) has not been
fully utilized. For example, if the limited access vessel daily
possession limit to
[[Page 36570]]
defray the cost of an observer is 180 lb (82 kg), the LAGC IFQ
possession limit to defray the cost of an observer would be 180 lb (82
kg) per trip, regardless of trip length.
0
6. In Sec. 648.53:
0
a. The section heading is revised;
0
b. Paragraphs (a)(1), (a)(4)(i), (a)(5), (a)(9), (b)(1), (b)(4),
(b)(5)(i), (g)(1), (g)(2), (h)(2) introductory text, (h)(5)(i),
(h)(5)(iii), (h)(5)(iv)(A), (h)(5)(iv)(B), and (h)(5)(iv)(C) are
revised; and
0
c. Paragraphs (a)(2), (a)(4)(ii), (a)(7), (a)(8), and (b)(5)(ii) are
removed and reserved.
The revisions read as follows:
Sec. 648.53 Target total allowable catch, DAS allocations, and
Individual Fishing Quotas.
(a) * * *
(1) 2010 fishing year target TAC for scallop fishery. The 2010
fishing year TAC is 21,445 mt, 94.5 percent of which shall be allocated
to the limited access fishery, 5 percent of which shall be allocated to
IFQ scallop vessels, and 0.5 percent of which shall be issued to
limited access vessels also issued IFQ scallop permits and that are
fishing under general category regulations. These percentages reflect
the TAC allocations prior to the deduction of set-asides for observer
coverage and research.
* * * * *
(4) * * *
(i) 2010 fishing year. The target TAC for limited access vessels
fishing under the scallop DAS program specified in this section is
10,330 mt, including open area DAS for observer and research set-aside
TACs.
* * * * *
(5) TACs for IFQ scallop vessels. The TACs specified in this
paragraph (a)(5) have accounted for the access area set-asides
specified in Sec. 648.60(d) and (e).
(i) IFQ vessels without a limited access scallop permit. For the
2010 fishing year, such vessels are allocated 1,055 mt, which includes
both the open area TAC (547 mt) and the access area TACs specified in
Sec. 648.59.
(ii) IFQ scallop vessels with a limited access scallop permit. Such
vessels that are fishing under an IFQ scallop permit outside of the
scallop DAS and Area Access programs as a limited access vessel shall
be allocated 0.5 percent of the annual target TAC specified in
accordance with this paragraph (a). For the 2010 fishing year, the IFQ
TAC for IFQ vessels with a limited access scallop permit is 106 mt.
* * * * *
(9) Scallop incidental catch target TAC. The 2010 incidental catch
target TAC for vessels with incidental catch scallop permits is 50,000
lb (22,680 kg).
(b) * * *
(1) Total DAS to be used in all areas other than those specified in
Sec. 648.59 shall be specified through the framework adjustment
process, as specified in Sec. 648.55, using the target TAC for open
areas specified in paragraph (a) of this section and estimated catch
per unit effort. The total DAS for 2010 are 13,324. After accounting
for applicable set-asides, the total DAS allocated the limited access
fishery are 12,920.
* * * * *
(4) Each vessel qualifying for one of the three DAS categories
specified in the table in this paragraph (b)(4) (Full-time, Part-time,
or Occasional) shall be allocated the maximum number of DAS for each
fishing year it may participate in the open area limited access scallop
fishery, according to its category. A vessel whose owner/operator has
declared out of the scallop fishery, pursuant to the provisions of
Sec. 648.10, or that has used up its maximum allocated DAS, may leave
port without being assessed a DAS, as long as it has made an
appropriate VMS declaration, as specified in Sec. 648.10(f), does not
fish for or land per trip, or possess at any time, more than 400 lb
(181.4 kg) of shucked or 50 bu (17.6 hL) of in-shell scallops, and
complies with all other requirements of this part. The annual open area
DAS allocations for each category of vessel for the fishing years
indicated, after deducting DAS for observer and research DAS set-
asides, are as follows:
------------------------------------------------------------------------
DAS category 2010
------------------------------------------------------------------------
Full-time.................................................... 38
Part-time.................................................... 15
Occasional................................................... 3
------------------------------------------------------------------------
(i) A limited access vessel that lawfully uses more open area DAS
in the 2010 fishing year than specified in this section shall have the
DAS used in excess of the 2010 allocation specified in this paragraph
(b)(4) deducted from its 2011 open area DAS allocation.
(ii) [Reserved]
(5) * * *
(i) When the Nantucket Lightship Access Area closes due to the
yellowtail flounder bycatch TAC, for each remaining complete trip in
the Nantucket Lightship Access Area, a full-time vessel may fish an
additional 5.8 DAS in open areas, a part-time vessel may fish an
additional 4.6 DAS in open areas, and an occasional vessel may fish an
additional 1.9 DAS during the same fishing year. A complete trip is
deemed to be a trip that is not subject to a reduced possession limit
under the broken trip provision in Sec. 648.60(c). If a vessel has
unused broken trip compensation trip(s), as specified in Sec.
648.60(c), when the Nantucket Lightship Access Area closes due to the
yellowtail flounder bycatch TAC, it will be issued additional DAS in
proportion to the unharvested possession limit. For example, if a full-
time vessel had an unused 9,000-lb (4,082-kg) Nantucket Lightship
Access Area compensation trip (half of the possession limit) at the
time of a Nantucket Lightship Access Area yellowtail flounder bycatch
TAC closure, the vessel would be allocated 2.9 DAS (half of 5.8 DAS).
* * * * *
(g) * * *
(1) DAS set-aside for observer coverage. As specified in paragraph
(b)(2) of this section, to help defray the cost of carrying an
observer, 1 percent of the total DAS specified in paragraph (b)(1) of
this section shall be set aside from the total DAS available for
allocation, to be used by vessels that are assigned to take an at-sea
observer on a trip other than an Area Access Program trip. The DAS set-
aside for observer coverage is 135 DAS for the 2010 fishing year.
Vessels carrying an observer shall be compensated with reduced DAS
accrual rates for each trip on which the vessel carries an observer.
For each DAS that a vessel fishes for scallops with an observer on
board, the DAS shall be charged at a reduced rate, based on an
adjustment factor determined by the Regional Administrator on an annual
basis, dependent on the cost of observers, catch rates, and amount of
available DAS set-aside. The Regional Administrator shall notify vessel
owners of the cost of observers and the DAS adjustment factor through a
permit holder letter issued prior to the start of each fishing year.
This DAS adjustment factor may also be changed during the fishing year
if fishery conditions warrant such a change. The number of DAS that are
deducted from each trip based on the adjustment factor shall be
deducted from the observer DAS set-aside amount in the applicable
fishing year. Utilization of the DAS set-aside shall be on a first-
come, first-served basis. When the DAS set-aside for observer coverage
has been utilized, vessel owners shall be notified that no additional
DAS remain available to offset the cost of carrying observers. The
obligation to carry and pay for an observer shall not be waived due to
the absence of set-aside DAS allocations.
(2) DAS set-aside for research. As specified in paragraph (b)(2) of
this section, to help support the activities of vessels participating
in certain research,
[[Page 36571]]
as specified in Sec. 648.56, the DAS set-aside for research is 269 DAS
for the 2010 fishing year.
(h) * * *
(2) Calculation of IFQ. The total allowable catch allocated to IFQ
scallop vessels, and the TAC allocated to limited access scallop
vessels issued IFQ scallop permits, as specified in paragraphs
(a)(5)(i) and (ii) of this section, shall be used to determine the IFQ
of each vessel issued an IFQ scallop permit. Each fishing year, the
Regional Administrator shall provide the owner of a vessel issued an
IFQ scallop permit issued pursuant to Sec. 648.4(a)(2)(ii) with the
scallop IFQ for the vessel for the upcoming fishing year.
* * * * *
(5) * * *
(i) Temporary IFQ transfers. Subject to the restrictions in
paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop
vessel not issued a limited access scallop permit may temporarily
transfer its entire IFQ allocation, or a portion of its IFQ allocation,
to another IFQ scallop vessel. Temporary IFQ transfers shall be
effective only for the fishing year in which the temporary transfer is
requested and processed. IFQ can be transferred only once during a
given fishing year. Temporary IFQ transfers must be in the amount of at
least 100 lb (45 kg), or the entire allocation may be transferred to
another vessel. If a vessel has previously transferred a portion of its
IFQ and the remaining allocation is less than 100 lb (45 kg), the
remaining IFQ may be transferred in full to another vessel. The
Regional Administrator has final approval authority for all temporary
IFQ transfer requests.
* * * * *
(iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel
not issued a limited access scallop permit that has fished under its
IFQ in a fishing year may not transfer that vessel's IFQ to another IFQ
scallop vessel in the same fishing year. IFQ can be transferred only
once during a given fishing year. A transfer of an IFQ may not result
in the sum of the IFQs on the receiving vessel exceeding 2 percent of
the TAC allocated to IFQ scallop vessels. A transfer of an IFQ, whether
temporary or permanent, may not result in the transferee having a total
ownership of or interest in general category scallop allocation that
exceeds 5 percent of the TAC allocated to IFQ scallop vessels. Limited
access scallop vessels that are also issued an IFQ scallop permit may
not transfer or receive IFQ from another IFQ scallop vessel.
(iv) * * *
(A) Application information requirements. An application to
transfer IFQ must contain at least the following information:
Transferor's name, vessel name, permit number, and official number or
State registration number; transferee's name, vessel name, permit
number, and official number or State registration number; total price
paid for purchased IFQ; signatures of transferor and transferee; and
date the form was completed. In addition, applications to temporarily
transfer IFQ must indicate the amount, in pounds, of the IFQ allocation
transfer, which may not be in increments of less than 100 lb (45 kg)
unless that value reflects the total IFQ allocation remaining on the
transferor's vessel, or the entire allocation. Information obtained
from the transfer application will be held confidential, and will be
used only in summarized form for management of the fishery. If
applicable, an application for a permanent IFQ transfer must be
accompanied by verification, in writing, that the transferor either has
requested cancellation of all other limited access Federal fishing
permits, or has applied for a transfer of all of its limited access
permits in accordance with the vessel replacement restrictions under
Sec. 648.4.
(B) Approval of IFQ transfer applications. Unless an application to
transfer IFQ is denied according to paragraph (h)(5)(iii)(C) of this
section, the Regional Administrator shall issue confirmation of
application approval to both parties involved in the transfer within 30
days of receipt of an application.
(C) Denial of transfer application. The Regional Administrator may
reject an application to transfer IFQ for the following reasons: The
application is incomplete; the transferor or transferee does not
possess a valid limited access general category permit; the
transferor's vessel has fished under its IFQ prior to the completion of
the transfer request; the transferor's or transferee's vessel or IFQ
scallop permit has been sanctioned, pursuant to a final administrative
decision or settlement of an enforcement proceeding; the transfer will
result in the transferee's vessel having an allocation that exceeds 2
percent of the TAC allocated to IFQ scallop vessels; the transfer will
result in the transferee having a total ownership of or interest in
general category scallop allocation that exceeds 5 percent of the TAC
allocated to IFQ scallop vessels; or any other failure to meet the
requirements of this subpart. Upon denial of an application to transfer
IFQ, the Regional Administrator shall send a letter to the applicants
describing the reason(s) for the rejection. The decision, by the
Regional Administrator is the final agency decision and there is no
opportunity to appeal the Regional Administrator's decision.
Sec. 648.58 [Amended]
0
7. In Sec. 648.58, paragraph (b) is removed and reserved.
0
8. In Sec. 648.59:
0
a. Paragraphs (a)(4), (b)(5)(ii)(D), (c)(5)(ii)(D), and (d)(5)(ii)(D)
are added; and
0
b. Paragraphs (a)(1), (a)(3), (b)(1), (b)(2), (b)(5)(i), (b)(5)(ii)(A),
(b)(5)(ii)(B), (c)(1), (c)(2), (c)(5)(i), (c)(5)(ii)(A), (c)(5)(ii)(B),
(d)(1), (d)(2), (d)(5)(i), (d)(5)(ii)(A), (d)(5)(ii)(B), and (e)(4) are
revised.
The additions and revisions read as follows.
Sec. 648.59 Sea Scallop Access Areas.
(a) * * *
(1) From March 1, 2010, through February 28, 2011, and subject to
the seasonal restriction specified in paragraph (a)(4) of this section,
a vessel issued a scallop permit may fish for, possess, or land
scallops in or from the area known as the Delmarva Sea Scallop Access
Area, described in paragraph (a)(2) of this section, only if the vessel
is participating in, and complies with the requirements of, the area
access program described in Sec. 648.60.
* * * * *
(3) Number of trips--(i) Limited access vessels. Based on its
permit category, a vessel issued a limited access scallop permit may
fish no more than the maximum number of trips in the Delmarva Access
Area as specified in Sec. 648.60(a)(3)(i), unless the vessel owner has
made an exchange with another vessel owner whereby the vessel gains a
Delmarva Access Area trip and gives up a trip into another Sea Scallop
Access Area, as specified in Sec. 648.60(a)(3)(ii), or unless the
vessel is taking a compensation trip for a prior Delmarva Access Area
trip that was terminated early, as specified in Sec. 648.60(c).
Additionally, limited access full-time scallop vessels are restricted
in the number of trips that may be taken from June 15 through August
31, as specified in Sec. 648.60(a)(3)(i)(B)(1). The number of trips
allocated to limited access vessels in the Delmarva Access Area shall
be based on the TAC for the access area, which shall be determined
through the annual framework process and specified in paragraph
(a)(5)(i) of this section. The 2010 Delmarva Access Area scallop TAC
for limited access scallop vessels is 5,394,485 lb (2,447
[[Page 36572]]
mt), after accounting for applicable set-asides and LAGC IFQ TAC.
(ii) LAGC IFQ scallop vessels--(A) The percentage of the Delmarva
Access Area TAC to be allocated to LAGC IFQ scallop vessels shall be
specified in this paragraph (a)(3)(ii)(A) through the framework
adjustment process and shall determine the number of trips allocated to
LAGC IFQ scallop vessels as specified in paragraph (a)(3)(ii)(B) of
this section. LAGC IFQ vessels will be allocated 285,423 lb (129 mt) in
fishing year 2010, which is 5 percent of the 2010 Delmarva Access Area
TAC, after set-asides have been deducted. This TAC applies to both LAGC
IFQ vessels and limited access vessels with LAGC IFQ permits that are
fishing under the provisions of the LAGC IFQ permit.
(B) Based on the TAC specified in paragraph (a)(4)(ii)(A) of this
section, LAGC scallop vessels are allocated 714 trips to the Delmarva
Access Area in fishing year 2010. This fleet-wide trip allocation
applies to both LAGC IFQ vessels and limited access vessels with LAGC
IFQ permits that are fishing under the provisions of the LAGC IFQ
permit. The Regional Administrator shall notify all LAGC IFQ scallop
vessels of the date when 714 trips have been, or are projected to be,
taken by providing notification in the Federal Register, in accordance
with Sec. 648.60(g)(4). An LAGC IFQ scallop vessel may not fish for,
possess, or land sea scallops in or from the Delmarva Access Area, or
enter the Delmarva Access Area on a declared LAGC IFQ scallop trip
after the effective date published in the Federal Register, unless
transiting pursuant to paragraph (f) of this section.
(C) Scallops landed by each LAGC IFQ vessel on a Delmarva Access
Area trip shall count against that vessel's IFQ.
(4) Season. A vessel issued a scallop permit may not fish for,
possess, or land scallops in or from the area known as the Delmarva Sea
Scallop Access Area, described in paragraph (a)(2) of this section,
from September 1 through October 31 of each year the Delmarva Access
Area is open to scallop fishing as a Sea Scallop Access Area, except
that a vessel may possess scallops while transiting pursuant to
paragraph (f) of this section.
(b) * * *
(1) From March 1, 2010, through February 28, 2011, and every third
fishing year thereafter (i.e., March 1, 2013, through February 28,
2014) vessels issued scallop permits may not fish for, possess, or land
scallops in or from, the area known as the Closed Area I Access Area,
described in paragraph (b)(3) of this section, unless transiting
pursuant to paragraph (f) of this section. Vessels issued both a NE
Multispecies permit and an LAGC scallop permit may fish in an approved
SAP under Sec. 648.85, and under multispecies DAS in the scallop
access area, provided they comply with restrictions in paragraph
(b)(5)(ii)(C) of this section.
(2) From March 1, 2011, through February 28, 2013, and for every 2-
yr period, based on the fishing year, after the closure described in
paragraph (b)(1) of this section (i.e., March 1, 2014, through February
29, 2016), and subject to the seasonal restrictions specified in
paragraph (b)(4) of this section, a vessel issued a scallop permit may
fish for, possess, and land scallops in or from, the area known as the
Closed Area I Access Area, described in paragraph (b)(3) of this
section, only if the vessel is participating in, and complies with the
requirements of, the area access program described in Sec. 648.60.
* * * * *
(5) * * *
(i) Limited access vessels. Based on its permit category, a vessel
issued a limited access scallop permit may fish no more than the
maximum number of trips in the Closed Area I Access Area, unless the
vessel owner has made an exchange with another vessel owner whereby the
vessel gains a Closed Area I Access Area trip and gives up a trip into
another Sea Scallop Access Area, as specified in Sec.
648.60(a)(3)(ii), or unless the vessel is taking a compensation trip
for a prior Closed Area I Access Area trip that was terminated early,
as specified in Sec. 648.60(c). The number of trips allocated to
limited access vessels in the Closed Area I Access Area shall be based
on the TAC for the access area, which will be determined through the
annual framework process and specified in this paragraph (b)(5)(i).
Closed Area I Access Area is closed to limited access vessels for the
2010 fishing year.
(ii) * * *
(A) The percentage of the Closed Area I Access Area TAC to be
allocated to LAGC scallop vessels shall be specified in this paragraph
(b)(5)(ii)(A) through the framework adjustment process and shall
determine the number of trips allocated to LAGC scallop vessels as
specified in paragraph (b)(5)(ii)(B) of this section. The TAC applies
to both LAGC IFQ vessels and limited access vessels with LAGC IFQ
permits that are fishing under the provisions of the LAGC IFQ permit.
The Closed Area I Access Area shall be closed to LAGC IFQ vessels in
the 2010 fishing year.
(B) The Regional Administrator shall notify all LAGC scallop
vessels of the date when the maximum number of allowed trips for the
applicable fishing year have been, or are projected to be, taken by
providing notification in the Federal Register, in accordance with
Sec. 648.60(g)(4). Except as provided in paragraph (b)(5)(ii)(C) of
this section, and subject to the seasonal restrictions specified in
paragraph (b)(4) of this section, an LAGC scallop vessel may not fish
for, possess, or land sea scallops in or from the Closed Area I Access
Area, or enter the Closed Area I Access Area on a declared LAGC scallop
trip after the effective date published in the Federal Register, unless
transiting pursuant to paragraph (f) of this section.
* * * * *
(D) Scallops landed by each LAGC IFQ vessel on a Closed Area I
Access Area trip shall count against that vessel's IFQ.
(c) * * *
(1) From March 1, 2010, through February 28, 2011, and every third
fishing year thereafter, (i.e., March 1, 2013, through February 28,
2014) vessels issued scallop permits may not fish for, possess, or land
scallops in or from, the area known as the Closed Area II Access Area,
described in paragraph (c)(3) of this section, unless transiting
pursuant to paragraph (f) of this section. Vessels issued both a NE
multispecies permit and an LAGC scallop permit may fish in an approved
SAP under Sec. 648.85 and under multispecies DAS in the scallop access
area, provided they comply with restrictions in paragraph (c)(5)(ii)(C)
of this section.
(2) From March 1, 2011, through February 28, 2013, and for every 2-
yr period, based on the fishing year, after the year-long closure
described in paragraph (c)(1) of this section (i.e., March 1, 2014,
through February 29, 2016), and subject to the seasonal restrictions
specified in paragraph (c)(4) of this section, a vessel issued a
scallop permit may fish for, possess, or land scallops in or from, the
area known as the Closed Area II Sea Scallop Access Area, described in
paragraph (c)(3) of this section, only if the vessel is participating
in, and complies with the requirements of, the area access program
described in Sec. 648.60.
* * * * *
(5) * * *
(i) Limited access vessels. Based on its permit category, a vessel
issued a limited access scallop permit may fish no more than the
maximum number of trips in the Closed Area II Access Area, unless the
vessel owner has made an exchange with another vessel owner whereby the
vessel gains a Closed Area II Access Area trip and gives up a trip into
another Sea Scallop Access Area, as
[[Page 36573]]
specified in Sec. 648.60(a)(3)(ii), or unless the vessel is taking a
compensation trip for a prior Closed Area II Access Area trip that was
terminated early, as specified in Sec. 648.60(c). The number of trips
allocated to limited access vessels in the Closed Area II Access Area
shall be based on the TAC for the access area, which will be determined
through the annual framework process and specified in this paragraph
(c)(5)(i). Closed Area II Access Area is closed to limited access
vessels for the 2010 fishing year.
(ii) * * *
(A) The percentage of the total Closed Area II Access Area TAC
specified to be allocated to LAGC IFQ scallop vessels shall be
specified in this paragraph (c)(5)(ii)(A) through the framework
adjustment process and shall determine the number of trips allocated to
IFQ LAGC scallop vessels as specified in paragraph (c)(5)(ii)(B) of
this section. The TAC applies to both LAGC IFQ vessels and limited
access vessels with LAGC IFQ permits. The Closed Area II Access Area is
closed to LAGC IFQ vessels in the 2010 fishing year.
(B) The Regional Administrator shall notify all LAGC scallop
vessels of the date when the maximum number of allowed trips for the
applicable fishing year have been, or are projected to be, taken by
providing notification in the Federal Register, in accordance with
Sec. 648.60(g)(4). Except as provided in paragraph (c)(5)(ii)(C) of
this section, and subject to the seasonal restrictions specified in
paragraph (c)(4) of this section, an LAGC scallop vessel may not fish
for, possess, or land sea scallops in or from the Closed Area II Access
Area, or enter the Closed Area II Access Area on a declared LAGC
scallop trip after the effective date published in the Federal
Register, unless transiting pursuant to paragraph (f) of this section.
* * * * *
(D) Scallops landed by each LAGC IFQ vessel on a Closed Area II
Access Area trip shall count against that vessel's IFQ.
* * * * *
(d) * * *
(1) From March 1, 2012, through February 28, 2013, and every third
fishing year thereafter (i.e., March 1, 2015, through February 29,
2016) vessels issued scallop permits may not fish for, possess, or land
scallops in or from the area known as the Nantucket Lightship Access
Area, described in paragraph (d)(3) of this section, unless transiting
pursuant to paragraph (f) of this section. Vessels issued both a NE
multispecies permit and an LAGC scallop permit may fish in an approved
SAP under Sec. 648.85, and under multispecies DAS in the scallop
access area, provided they comply with restrictions in paragraph
(d)(5)(ii)(C) of this section.
(2) From March 1, 2010, through February 29, 2012, and for every 2-
yr period after the year-long closure described in paragraph (d)(1) of
this section (i.e., March 1, 2013, through February 28, 2015), and
subject to the seasonal restrictions specified in paragraph (d)(4) of
this section, a vessel issued a scallop permit may fish for, possess,
or land scallops in or from the area known as the Nantucket Lightship
Sea Scallop Access Area, described in paragraph (d)(3) of this section,
only if the vessel is participating in, and complies with the
requirements of, the area access program described in Sec. 648.60.
* * * * *
(5) * * *
(i) Limited access vessels. Based on its permit category, a vessel
issued a limited access scallop permit may fish no more than the
maximum number of trips in the Nantucket Lightship Access Area, unless
the vessel owner has made an exchange with another vessel owner whereby
the vessel gains a Nantucket Lightship Access Area trip and gives up a
trip into another Sea Scallop Access Area, as specified in Sec.
648.60(a)(3)(ii), or unless the vessel is taking a compensation trip
for a prior Nantucket Lightship Access Area trip that was terminated
early, as specified in Sec. 648.60(c). The number of trips allocated
to limited access vessels in the Nantucket Lightship Access Area shall
be based on the TAC for the access area. The 2010 Nantucket Lightship
Access Area scallop TAC for limited access scallop vessels is 5,399,985
lb (2,449 mt), after accounting for set-asides applicable and LAGC IFQ
TAC to the Nantucket Lightship Access Area.
(ii) * * *
(A) The percentage of the Nantucket Lightship Access Area TAC to be
allocated to LAGC IFQ scallop vessels shall be specified in this
paragraph (d)(5)(ii)(A) through the framework adjustment process and
shall determine the number of trips allocated to LAGC IFQ scallop
vessels as specified in paragraph (d)(5)(ii)(B) of this section. LAGC
IFQ vessels are allocated 285,715 lb (130 mt) in fishing year 2010,
which is 5 percent of the 2010 Nantucket Lightship Access Area TAC,
after accounting for all applicable set-asides. The TAC applies to both
LAGC IFQ vessels and limited access vessels with LAGC IFQ permits that
are fishing under the provisions of the LAGC IFQ permit.
(B) Based on the TAC specified in paragraph (d)(5)(ii)(A) of this
section, LAGC scallop vessels are allocated 714 trips to the Nantucket
Lightship Access Area in fishing year 2010. This fleet-wide trip
allocation applies to both LAGC IFQ vessels and limited access vessels
with LAGC IFQ permits that are fishing under the provisions of the LAGC
IFQ permit. The Regional Administrator shall notify all LAGC IFQ
scallop vessels of the date when 714 trips have been, or are projected
to be, taken by providing notification in the Federal Register, in
accordance with Sec. 648.60(g)(4). Except as provided in paragraph
(d)(5)(ii)(C) of this section, an LAGC IFQ scallop vessel may not fish
for, possess, or land sea scallops in or from the Nantucket Lightship
Access Area, or enter the Nantucket Lightship Access Area on a declared
LAGC IFQ scallop trip after the effective date published in the Federal
Register, unless transiting pursuant to paragraph (f) of this section.
* * * * *
(D) Scallops landed by each LAGC IFQ vessel on a Nantucket
Lightship Access Area trip shall count against that vessel's IFQ.
(e) * * *
(4) Number of trips--(i) Limited access vessels. Based on its
permit category, a vessel issued a limited access scallop permit may
fish no more than the maximum number of trips in the Elephant Trunk Sea
Scallop Access Area between March 1, 2010, and February 28, 2011, as
specified in Sec. 648.60(a)(3)(i), unless the vessel owner has made an
exchange with another vessel owner whereby the vessel gains an Elephant
Trunk Sea Scallop Access Area trip and gives up a trip into another Sea
Scallop Access Area, as specified in Sec. 648.60(a)(3)(ii), or unless
the vessel is taking a compensation trip for a prior Elephant Trunk
Access Area trip that was terminated early, as specified in Sec.
648.60(c). Additionally, full-time scallop vessels are restricted in
the number of trips that may be taken from June 15 through August 31,
as specified in Sec. 648.60(a)(3)(i)(B)(1). The 2010 Elephant Trunk
Access Area scallop TAC for limited access scallop vessels is
10,406,727 lb (4,720 mt), after accounting for applicable set-asides
and LAGC IFQ TAC.
(ii) LAGC IFQ scallop vessels--(A) The percentage of the Elephant
Trunk Access Area TAC to be allocated to LAGC scallop vessels shall be
specified in this paragraph (e)(4)(ii)(A) through the framework
adjustment process and shall determine the number of trips allocated to
LAGC IFQ scallop vessels as
[[Page 36574]]
specified in paragraph (e)(4)(ii)(B) of this section. LAGC IFQ vessels
shall be allocated 550,621 lb (248 mt) in fishing year 2010, which is 5
percent of the 2010 Elephant Trunk Access Area TAC, after accounting
for all applicable set-asides. The TAC applies to both LAGC IFQ vessels
and limited access vessels with LAGC IFQ permits that are fishing under
the provisions of the LAGC IFQ permit.
(B) Based on the TACs specified in paragraph (e)(4)(ii)(A) of this
section, LAGC IFQ vessels are allocated a total of 1,377 trips in the
Elephant Trunk Access Area in fishing year 2010. This fleet-wide trip
allocation applies to both LAGC IFQ vessels and limited access vessels
with LAGC IFQ permits that are fishing under the provisions of the LAGC
IFQ permit. The Regional Administrator shall notify all LAGC IFQ
scallop vessels of the date when the maximum number of allowed trips
have been, or are projected to be taken by providing notification in
the Federal Register, in accordance with Sec. 648.60(g)(4). An LAGC
IFQ scallop vessel may not fish for, possess, or land sea scallops in
or from the Elephant Trunk Access Area, or enter the Elephant Trunk
Access Area on a declared LAGC IFQ scallop trip after the effective
date published in the Federal Register, unless transiting pursuant to
paragraph (f) of this section.
(C) Scallops landed by each LAGC IFQ vessel on an Elephant Trunk
Access Area trip shall count against that vessel's IFQ.
* * * * *
0
9. In Sec. 648.60:
0
a. Paragraphs (a)(3)(iii), (a)(5)(iv), and (c)(5)(iv) are removed and
reserved;
0
b. Paragraph (c)(5)(ii)(A) is added;
0
c. Paragraph (c)(5)(ii)(B) is added and reserved; and
0
d. Paragraphs (a)(3)(i), (a)(3)(ii), (a)(5)(i), (c)(5)(v), (d)(1),
(e)(1), and (g) are revised.
The additions and revisions read as follows:
Sec. 648.60 Sea scallop area access program requirements.
(a) * * *
(3) * * *
(i) Limited access vessel trips. (A) Except as provided in
paragraph (c) of this section, paragraphs (a)(3)(i)(B) through (E) of
this section specify the total number of trips that a limited access
scallop vessel may take into Sea Scallop Access Areas during applicable
seasons specified in Sec. 648.59. The number of trips per vessel in
any one Sea Scallop Access Area may not exceed the maximum number of
trips allocated for such Sea Scallop Access Area as specified in Sec.
648.59, unless the vessel owner has exchanged a trip with another
vessel owner for an additional Sea Scallop Access Area trip, as
specified in paragraph (a)(3)(ii) of this section, or has been
allocated a compensation trip pursuant to paragraph (c) of this
section.
(B) Full-time scallop vessels. A full-time scallop vessel may take
two trips in the Elephant Trunk Access Area, one trip in the Delmarva
access area, and one trip in the Nantucket Lightship Access Area,
subject to the following seasonal trip restrictions.
(1) A full-time scallop vessel may not take more than two of its
three allocated scallop access area trips during the period June 15
through August 31, or may not fish for, possess, or retain more than a
combined total of 36,000 lb (16,329 kg) of scallops, the equivalent of
two full trip possession limits specified in Sec. 648.60(a)(5)(i)(A),
during this time period from the Delmarva and Elephant Trunk Access
Areas specified in Sec. 648.59(a) and (e). For example, a full-time
vessel may declare up to two trips in the Elephant Trunk Access Area or
up to one trip in the Elephant Trunk Access Area and one trip in
Delmarva Access Area during June 15 through August 31. The remaining
access area trips may be taken during the remainder of the fishing
year, subject to the seasonal closures described under Sec.
648.59(a)(3) and (e)(3). This restriction does not include the
additional possession allowance to defray the cost of carrying an
observer as specified in Sec. 648.60(d) that occur during observed
trips between June 15 through August 31.
(2) [Reserved]
(C) Part-time scallop vessels. A part-time scallop vessel is
allocated two trips that may be distributed between access areas as
follows: Two trips in the Elephant Trunk Access Area; one trip in the
Elephant Trunk Access Area and one trip in the Nantucket Lightship
Access Area; one trip in the Elephant Trunk Access Area and one trip in
the Delmarva Access Area; or one trip in the Nantucket Lightship Access
Area and one trip in the Delmarva Access Area.
(D) Occasional scallop vessels. An occasional scallop vessel may
take one trip in the Elephant Trunk Access Area, or one trip in the
Nantucket Lightship Access Area, or one trip in the Delmarva Access
Area.
(E) [Reserved]
(ii) One-for-one area access trip exchanges. If the total number of
trips allocated to a vessel into all Sea Scallop Access Areas combined
is more than one, the owner of a vessel issued a limited access scallop
permit may exchange, on a one-for-one basis, unutilized trips into one
access area for another vessel's unutilized trips into another Sea
Scallop Access Area. One-for-one exchanges may be made only between
vessels with the same permit category. For example, a full-time vessel
may not exchange trips with a part-time vessel, and vice versa. Vessel
owners must request the exchange of trips by submitting a completed
Trip Exchange Form at least 15 days before the date on which the
applicant desires the exchange to be effective. Trip exchange forms are
available from the Regional Administrator upon request. Each vessel
owner involved in an exchange is required to submit a completed Trip
Exchange Form. The Regional Administrator shall review the records for
each vessel to confirm that each vessel has unutilized trips remaining
to exchange. The exchange is not effective until the vessel owner(s)
receive a confirmation in writing from the Regional Administrator that
the trip exchange has been made effective. A vessel owner may exchange
trips between two or more vessels under his/her ownership. A vessel
owner holding a Confirmation of Permit History is not eligible to
exchange trips between another vessel and the vessel for which a
Confirmation of Permit History has been issued.
* * * * *
(5) * * *
(i) Scallop possession limits. Unless authorized by the Regional
Administrator, as specified in paragraphs (c) and (d) of this section,
after declaring a trip into a Sea Scallop Access Area, a vessel owner
or operator of a limited access scallop vessel may fish for, possess,
and land, per trip, scallops, up to the maximum amounts specified in
the table in this paragraph (a)(5). A part-time or occassional limited
access vessel that lawfully fishes for, possesses, and lands an amount
of scallops greater than specified in this section in the 2010 fishing
year shall have the excess pounds landed above the possession limit
specified in this paragraph (a)(5) deducted from that vessel's 2011
possession limit. A full-time vessel shall not fish for, possess, or
retain more than 36,000 lb (16,329 kg) of scallops from the Elephant
Trunk and Delmarva Access Areas, combined, from trips taken between
June 15 and August 31. This landing restriction does not include the
additional possession allowance to defray the cost of carrying an
observer as specified in Sec. 648.60(d) that occur during observed
trips between June 15 through August 31. No vessel declared into the
Access Areas as
[[Page 36575]]
described in Sec. 648.59(a) through (e) may possess more than 50 bu
(17.62 hL) of in-shell scallops outside of the Access Areas described
in Sec. 648.59(a) through (e).
----------------------------------------------------------------------------------------------------------------
Permit category possession limit
Fishing year -----------------------------------------------------------------------------
Full-time Part-time Occasional
----------------------------------------------------------------------------------------------------------------
2010.............................. 18,000 lb (8,165 kg). 14,400 lb (6,532 kg) 6,000 lb (2,722 kg).
----------------------------------------------------------------------------------------------------------------
* * * * *
(c) * * *
(5) * * *
(ii) * * *
(A) Pursuant to Sec. 648.60(a)(3)(i)(B)(1), a full-time vessel may
not take a compensation trip based on a single or multiple terminated
trip(s) during the period June 15 through August 31 if the compensation
trip would allow a vessel to land more than 36,000 lb (16,329 kg), the
equivalent of two full access area trips, during the period June 15
through August 31, in the Elephant Trunk Access Area and Delmarva
Access Area combined. For example, a vessel that terminated a trip in
the Delmarva Access Area on June 1, 2010, and intends to declare two
full trips in the Elephant Trunk Access Area access area from June 15
through August 31, must wait to fish its compensation trip in the
Delmarva Access Area until November 1, 2010.
(B) [Reserved]
* * * * *
(v) Additional compensation trip carryover. If an Access Area trip
conducted during the last 60 days of the open period or season for the
Access Area is terminated before catching the allowed possession limit,
and the requirements of paragraph (c) of this section are met, the
vessel operator shall be authorized to fish an additional trip as
compensation for the terminated trip in the following fishing year. The
vessel owner/operator must take such additional compensation trips,
complying with the trip notification procedures specified in paragraph
(a)(2)(iii) of this section, within the first 60 days of that fishing
year the Access Area first opens in the subsequent fishing year. For
example, a vessel that terminates an Elephant Trunk Access Area trip on
December 29, 2010, must declare that it is beginning its additional
compensation trip during the first 60 days that the Elephant Trunk
Access Area is open (March 1, 2011, through April 29, 2011). If an
Access Area is not open in the subsequent fishing year, then the
additional compensation trip authorization would expire at the end of
the Access Area Season in which the trip was broken. For example, a
vessel that terminates a Closed Area II trip on December 10, 2009, may
not carry its additional compensation trip into the 2010 fishing year
because Closed Area II is not open during the 2010 fishing year, and
must complete any compensation trip by January 31, 2010.
(d) * * *
(1) Observer set-aside limits by area--(i) Nantucket Lightship
Access Area. For the 2010 fishing year, the observer set-aside for the
Nantucket Lightship Access Area is 58,910 lb (27 mt).
(ii) [Reserved]
(iii) Elephant Trunk Access Area. For the 2010 fishing year, the
observer set-aside for the Elephant Trunk Access Area is 113,530 lb (52
mt).
(iv) Delmarva Access Area. For the 2010 fishing year, the observer
set-aside for the Delmarva Access Area is 58,850 lb (27 mt).
* * * * *
(e) * * *
(1) Research set-aside limits and number of trips by area--(i)
Nantucket Lightship Access Area. For the 2010 fishing year, the
research set-aside for the Nantucket Lightship Access Area is 117,820
lb (53 mt).
(ii) [Reserved]
(iii) Elephant Trunk Access Area. For the 2010 fishing year, the
research set-aside for the Elephant Trunk Access Area is 277,060 lb
(126 mt).
(iv) Delmarva Access Area. For the 2010 fishing year, the research
set-aside for the Delmarva Access Area is 117,700 lb (53 mt).
* * * * *
(g) Limited Access General Category Vessels. (1) An LAGC scallop
vessel may only fish in the scallop access areas specified in Sec.
648.59(a) through (e), subject to the seasonal restrictions specified
in Sec. 648.59(a)(4), (b)(4), (c)(4), (d)(4), and (e)(3), and subject
to the possession limit specified in Sec. 648.52(a), and provided the
vessel complies with the requirements specified in paragraphs (a)(1),
(a)(2), (a)(6) through (a)(9), (d), (e), (f), and (g) of this section,
and Sec. 648.85(c)(3)(ii). A vessel issued both a NE multispecies
permit and an LAGC scallop permit may fish in an approved SAP under
Sec. 648.85 and under multispecies DAS in the Closed Area I, Closed
Area II, and Nantucket Lightship Sea Scallop Access Areas specified in
Sec. 648.59(b) through (d), provided the vessel complies with the
requirements specified in Sec. 648.59(b)(5)(ii), (c)(5)(ii), and
(d)(5)(ii), and this paragraph (g), but may not fish for, possess, or
land scallops on such trips.
(2) Gear restrictions. An LAGC IFQ scallop vessel authorized to
fish in the Access Areas specified in Sec. 648.59(a) through (e) must
fish with dredge gear only. The combined dredge width in use by, or in
possession on board of, an LAGC scallop vessel fishing in the Access
Areas described in Sec. 648.59(a) through (e) may not exceed 10.5 ft
(3.2 m), measured at the widest point in the bail of the dredge.
(3) LAGC IFQ Access Area Trips. An LAGC scallop vessel authorized
to fish in the Access Areas specified in Sec. 648.59(a) through (e)
may land scallops, subject to the possession limit specified in Sec.
648.52(a), unless the Regional Administrator has issued a notice that
the number of LAGC IFQ access area trips specified in Sec.
648.59(a)(3)(ii), (b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and (e)(4)(ii)
have been or are projected to be taken. Upon a determination from the
Regional Administrator that the total number of LAGC IFQ trips in a
specified Access Area have been or are projected to be taken, the
Regional Administrator shall publish notification of this determination
in the Federal Register, in accordance with the Administrative
Procedure Act. Once this determination has been made, an LAGC IFQ
scallop vessel may not fish for, possess, or land scallops in or from
the specified Access Area after the effective date of the notification
published in the Federal Register.
(4) Possession Limits--(i) Scallops. A vessel issued a NE
multispecies permit and a general category scallop permit that is
fishing in an approved SAP under Sec. 648.85 under multispecies DAS,
and that has not enrolled in the LAGC Access Area fishery, is
prohibited from possessing scallops. An LAGC scallop vessel authorized
to fish in the Access Areas specified in Sec. 648.59(a) through (e)
may possess scallops up to the possession limit specified in Sec.
648.52(a).
(ii) Other species. Unless issued an LAGC scallop permit and
fishing under
[[Page 36576]]
an approved NE multispecies SAP under NE multispecies DAS, an LAGC IFQ
vessel fishing in the Access Areas specified in Sec. 648.59(a) through
(e) is prohibited from possessing any species of fish other than
scallops and monkfish, as specified in Sec. 648.94(c)(8).
(5) Number of trips. An LAGC IFQ scallop vessel may not fish for,
possess, or land scallops in or from the Access Areas specified in
Sec. 648.59(a) through (e) after the effective date of the
notification published in the Federal Register, stating that the total
number of trips specified in Sec. 648.59(a)(3)(ii), (b)(5)(ii),
(c)(5)(ii), (d)(5)(ii), and (e)(4)(ii) have been, or are projected to
be, taken by LAGC IFQ scallop vessels.
0
10. In Sec. 648.62, paragraph (b)(1) is revised to read as follows.
Sec. 648.62 Northern Gulf of Maine (NGOM) scallop management area.
* * * * *
(b) * * *
(1) NGOM TAC. The TAC for the NGOM is 70,000 lb (31.8 mt) for the
2010 fishing year.
* * * * *
[FR Doc. 2010-15501 Filed 6-23-10; 11:15 am]
BILLING CODE 3510-22-P