[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Proposed Rules]
[Pages 19929-19950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8444]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 110329229-1219-02]
RIN 0648-BA71
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Atlantic Sea
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery
Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 15 to the
Atlantic Sea Scallop Fishery Management Plan (FMP), which was developed
by the New England Fishery Management Council (Council). The Council
submitted Amendment 15, incorporating the Final Environmental Impact
Statement (FEIS) and the Initial Regulatory Flexibility Analysis
(IRFA), for review by the Secretary of Commerce. NMFS has also
published a Notice of Availability requesting comments from the public
on Amendment 15 pursuant to the Magnuson-Stevens Fishery Conservation
and Management Act (MSA). Amendment 15 was developed primarily to
implement annual catch limits (ACLs) and accountability measures (AMs)
to bring the Scallop FMP into compliance with requirements of the MSA
as reauthorized in 2007. Amendment 15 includes additional measures
recommended by the Council, including: A revision of the overfishing
definition (OFD); modification of the essential fish habitat (EFH)
closed areas under the Scallop FMP; adjustments to measures for the
Limited Access General Category (LAGC) fishery; adjustments to the
scallop research set-aside (RSA) program; and additions to the list of
measures that can be adjusted by framework adjustments.
DATES:
Comments must be received by 5 p.m., Eastern Standard Time, by May
26, 2011.
ADDRESSES: An FEIS was prepared for Amendment 15 that describes the
proposed action and its alternatives and provides a thorough analysis
of the impacts of proposed measures and their alternatives. Copies of
Amendment 15, including the FEIS and the IRFA, are available from Paul
J. Howard, Executive Director, New England Fishery Management Council,
50 Water Street, Newburyport, MA 01950. These documents are also
available online at http://www.nefmc.org.
You may submit comments, identified by 0648-BA71, by any one of the
following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov.
Fax: (978) 281-9135, Attn: Peter Christopher.
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930. Mark the outside of the envelope, ``Comments on Scallop
Amendment 15 Proposed Regulations.''
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not
[[Page 19930]]
submit Confidential Business Information or otherwise sensitive or
protected information. NMFS will accept anonymous comments. Attachments
to electronic comments will be accepted in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule should be submitted to the Regional Administrator at the address
above and to the Office of Management and Budget (OMB) by e-mail at
[email protected], or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy
Analyst, phone (978) 281-9288, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
In January 2007, the MSA was reauthorized and included a new
provision requiring each FMP to use ACLs to prevent overfishing,
including measures to ensure accountability, should the ACLs be
exceeded. For fishery resources that were determined to be overfished,
the MSA requires that such measures be implemented by 2010. For fishery
resources that are not overfished, such measures must be implemented by
2011. Scallop fishery management measures to comply with the MSA's ACL
and AM requirements are required for 2011, because the scallop resource
is not overfished. To meet this requirement, the Council initiated
development of Amendment 15 on March 5, 2008, by publishing a Notice of
Intent to develop Amendment 15 (73 FR 11888, March 5, 2008) and prepare
an EIS to analyze the impacts of the proposed management alternatives.
The Council intended that Amendment 15 would address three goals: (1)
Bring the Scallop FMP into compliance with new requirements of the
reauthorized MSA; (2) address excess capacity in the limited access
scallop fishery; and (3) consider measures to adjust several aspects of
the overall program to make the Scallop FMP more effective. Following
the public comment period that ended on August 23, 2010, the Council
adopted Amendment 15 on September 29, 2010. The Council voted to adopt
most of the measures proposed in the amendment except permit stacking
and leasing alternatives that had been designed to address excess
capacity, after considering extensive written and oral public comment
on the measures. Ultimately the Council rejected these measures due to
concerns that the measures would have unacceptable negative economic
and social impacts on the scallop fleet and fishing communities.
Amendment 15 would establish the mechanism for implementing ACLs
and AMs, which in turn would generate scallop fishery specifications,
including days-at-sea (DAS), access area trip allocations, and
individual fishing quotas (IFQs). Amendment 15 does not include actual
catch limits and fishery specifications. These specifications will be
established through the separate action of Framework 22 to the FMP for
fishing years (FYs) 2011, 2012, and 2013. Framework 22 includes
specific measures that address the change from DAS, access areas, and
trip allocations that became effective on March 1, 2011, to different
allocations implemented under Framework 22. The Council adopted
Framework 22 and submitted it to NMFS for review. NMFS' review of
Framework 22 is on the same timeline as Amendment 15.
The Council has reviewed the Amendment 15 proposed regulations as
drafted by NMFS and deemed them to be necessary and appropriate as
required by section 303(c) of the MSA.
Recommended Management Measures
1. ACL Flow Chart
Amendment 15 would establish how the Scallop FMP would account for
all catch in the scallop fishery and would include designations of
Overfishing Limit (OFL), Acceptable Biological Catch (ABC), ACLs, and
Annual Catch Targets (ACT) for the scallop fishery, as well as scallop
catch for the Northern Gulf of Maine (NGOM), incidental, and State
waters catch components of the scallop fishery. The scallop fishery
assessment would determine the exploitable biomass, including an
assessment of discard and incidental mortality (mortality of scallops
resulting from interaction, but not capture, in the scallop fishery).
Based on the assessment, OFL would be specified as the level of
landings, and associated fishing mortality rate (F) that, above which,
overfishing is occurring. OFL would account for landings of scallops in
State waters by vessels without Federal scallop permits. The current
assessment of the scallop fishery (SAW 50, 2010) determined that the F
associated with the OFL is 0.38. Since discard and incidental mortality
are accounted for in the scallop resource assessment and removed prior
to setting ABC, the specification of ABC, ACL, and ACT, as well as the
NGOM and incidental catch, are represented by landings as a proxy for
catch. ABC would be equal to overall ACL, but to account for scientific
uncertainty, ABC would be less than OFL, with an associated F that has
a 25-percent probability of exceeding F associated with OFL (i.e., a
75-percent probability of being below the F associated with OFL). SAW
50 determined that the F associated with the ABC/ACL is 0.32. Catch
from the NGOM would be established at the ABC/ACL level, but would not
be subtracted from ABC/ACL. Since this portion of the scallop fishery
is not part of the scallop assessment, the catch would be added and
specified as a separate Total Allowable Catch (TAC) in addition to ABC/
ACL. After removing observer set-aside and RSA (1 percent of the ABC/
ACL and 1.25 M lb (567 mt) (proposed in Amendment 15), respectively),
Amendment 15 would establish separate sub-ACLs for the limited access
(LA) and LAGC fisheries. To account for management uncertainty,
Amendment 15 proposes ACTs for each fleet. For the LA fleet, the ACT
would have an associated F that has a 25-percent chance of exceeding
ABC. The F associated with this ACT is currently estimated to be 0.28.
For the LAGC fleet, the ACT would be set equal to the LAGC fleet's sub-
ACL.
2. Modification of the OFD
Amendment 15 proposes to modify the current OFD to provide for
better management of the scallop fishery under area rotation. The
proposed Hybrid OFD combines the overfishing threshold from the status
quo overfishing definition for open areas with a time-averaged fishing
mortality F approach for access areas. The F target in the open areas
would be set at a level that is no higher than the overfishing
threshold (currently F = 0.38). In access areas, it would be set
annually at a level that results in F no higher than FMSY
when averaged over time with the F in that access area, including times
when the access area was closed. The combined target F for all areas
could be no higher than that which gives a 25-percent probability of
exceeding the F associated with ABC (F = 0.32), which is currently
calculated to be F = 0.28, taking into account all sources of F in the
scallop fishery.
The current OFD and overfishing reference points are based on the
assumption that F is spatially uniform. In the scallop fishery this
assumption is inaccurate, because of unfished biomass in closed areas,
variable Fs in access areas, and spatially variable fishing mortality
in open areas. Under the current OFD, closed and access areas protect
the scallop stock from
[[Page 19931]]
recruitment overfishing, but growth overfishing may occur in the open
areas because the current OFD averages spatially across open and closed
areas, i.e., F is higher in open areas to compensate for the zero F in
closed areas. The greater the fraction of scallops in the closed areas,
the more ineffective the current OFD becomes. Additionally, when more
biomass is within closed areas, the estimated whole-stock F may be more
sensitive to recruitment and measurement error than to changes in
effort. Therefore, while the scallop fishery's current OFD is
consistent with MSA requirements, and has been effective at keeping the
scallop fishery above the overfished level and preventing overfishing
overall, certain resource and fishery conditions as described above may
reduce the effectiveness of the FMP.
3. OFD Reference Points
The current OFD states that FMAX will be used as a proxy
for FMSY. However, SAW 50 approved a direct estimate of
FMSY. Therefore, Amendment 15 would replace the current
BMAX and FMAX with BMSY and
FMSY. Final results from SAW 50 were available in August
2010, and both the Scallop Committee and the Council's Scientific and
Statistical Committee (SSC) reviewed the results and agreed that the
existing OFD should be updated to reflect new biological reference
points based on BMSY and FMSY. Under Amendment
15, the new overfishing definition would read:
If stock biomass is equal or greater than BMSY as
measured by an absolute value of scallop meat (mt) (estimated in
2009 at 125,358 mt scallop meat in the Georges Bank and Mid-Atlantic
resource areas), overfishing occurs when F exceeds FMSY,
currently estimated as 0.38. If the total stock biomass is below
BMSY, overfishing occurs when F exceeds the level that
has a 50-percent probability to rebuild stock biomass to
BMSY in 10 years. The scallop stock is in an overfished
condition when stock biomass is below \1/2\ BMSY, and in
that case overfishing occurs when F is above a level expected to
rebuild in 5 years, or above zero when the stock is below \1/4\
BMSY.
The proposed changes to the OFD would also require revisions of the
current framework provisions in the scallop fishery regulations at 50
CFR 648.55. Under the current OFD, the framework adjustment process
included provisions that ensure that measures achieve optimum yield
(OY) on a continuing basis. These provisions were established as part
of Amendment 10 to the FMP because of the potential inconsistency
between rotational area management and use of a spatially-average OFD,
whereby open area fishing mortality may be elevated relative to the
condition of the resource in open areas, thus preventing OY from being
achieved. Because the proposed OFD drastically reduces the risk of
inappropriate open area fishing levels, due to application of the
threshold F to drive open area fishing levels, the framework provisions
specifically designed to adjust Council recommendations to ensure that
OY is achieved are no longer necessary.
4. Scientific Uncertainty and ABC Control Rule
Amendment 15 includes two different assessments of scientific
uncertainty, based on the following scientific parameters that are
utilized in scallop resource and fishery assessments:
Growth;
Maturity and fecundity;
Shell height/meat weight relationship;
Natural mortality;
Catch data;
Discards and discard mortality;
Incidental mortality;
Commercial shell height data;
Commercial and survey gear selectivity;
Commercial and survey dredge efficiency;
Stock-recruitment relationship; and
Density dependence.
The first assessment of scientific uncertainty is qualitative and
is based on the level of uncertainty, importance, and effect of the
parameters. Uncertainty, importance, and effect of the parameters on
the scallop resource and fishery assessment are characterized
numerically on a scale of low to high. This first assessment of
scientific uncertainty would provide managers with an indication of the
overall level of scientific uncertainty, which would help determine a
buffer between the OFL and ABC. The Council concluded in Amendment 15
that scientific uncertainty in the scallop resource and fishery is low.
The second consideration of scientific uncertainty enables the
Council to establish ABC that has a low risk of exceeding OFL. Based on
the parameters for determining scientific uncertainty, an analytical
model developed by the PDT specifies the probability of exceeding the
OFL at a specified F associated with the corresponding catch level.
Using this model, and given the overall low level of scientific
uncertainty, the ABC control rule would set ABC at a level that has a
25-percent probability of exceeding OFL (i.e., a 75-percent probability
that it will not exceed OFL). This value could be modified through the
framework adjustment process.
5. State Waters Catch, NGOM TAC, and Incidental Catch
Scallop catch from State waters by vessels not issued a Federal
scallop permit is a relatively small component of overall scallop
catch, and the scallop resource in State waters is not part of the
Federal scallop resource survey. To account for scallop landings from
State waters, the Council's Scallop Plan Development Team (PDT) will
estimate landings annually, based on available State waters landings
information, and include it in the specification of OFL. The amount of
scallop landings in State waters would then be specified as a separate
level of landings that would be compared to actual landings each year,
and adjusted as necessary in subsequent years. This component of
overall catch is not specified as an ACL and has no associated AM,
since there is no Federal authority to adjust catch by vessels without
a Federal permit.
Scallop catch in the NGOM would be specified similar to State
waters scallop catch, except that the NGOM landings level would be
based on historical landings or available resource surveys in the NGOM,
and would be included in the specification of ABC. While there is no
Federal survey in the NGOM, independent surveys have been conducted,
and if continued, would provide survey information for NGOM landings
specifications each year. Although this component of overall scallop
catch is not formally an ACL, an overage is accounted for in the
subsequent year through a reduction of the landings limit that is equal
to the overage from the prior year.
Incidental catch has been estimated to be 50,000 lb (24,948 kg),
and data continue to support this value, based on historical and
predicted landing levels. Incidental catch would be removed from ABC
prior to establishing the research and observer set-asides and ACLs for
the limited access and LACG IFQ fleets. This component of overall
scallop catch does not have a specific AM, but if incidental catch is
higher than predicted, the landings limit would be adjusted in the
subsequent year(s) by removing more incidental catch from ABC.
6. Separate ACLs for the LA and LAGC IFQ Fleets as Sub-ACLs
The LA and LAGC IFQ fleets would be allocated landings as sub-ACLs
of the overall scallop fishery ACL with the same allocation values that
were established under Amendment 11 to the FMP: LA vessels would be
allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels
would be
[[Page 19932]]
allocated 5.5 percent of the ABC/ACL landings. Both allocations would
be made after deducting incidental catch and research and observer set-
asides from ABC. Sub-ACLs were established for these two fleets so that
AMs would be based on each fleet's harvest relative to its own ACL,
without requiring that one fleet would be penalized for an overage of
the other. Both fleets would have carryover provisions (existing for
the LA and proposed under Amendment 15 for the LAGC fleet) and RSA
catch could be carried over into the subsequent year. For the purpose
of accounting relative to ABC and ACL, landings from carryover DAS,
IFQ, or TAC would apply to the FY in which they are landed (i.e., not
to the FY for which they were allocated).
7. Management Uncertainty and ACT
Amendment 15 proposes that management uncertainty in the scallop
fishery mainly results from the uncertainty associated with carryover
DAS, vessel upgrades and replacements, and open area catch under DAS.
The uncertainty associated with these measures results from a
difference between estimated vessel efficiency and landings per unit
effort (LPUE), and realized efficiency and LPUE during the course of
the fishing year. Management uncertainty for the LAGC IFQ fleet is
considered very low because it would result from landings in excess of
a vessel's IFQ, which can be audited and accounted for through data
reviews each year. Although ACT could be specified for the LAGC
fishery, it would be equal to the fleet's ACL initially, unless revised
by the Council. An ACT for the LA fleet to account for management
uncertainty would be set at a level with an associated F that has a 25-
percent probability of exceeding ABC, which is currently 0.28.
8. AMs for the LA Fleet
The primary AM for the LA fleet requires a DAS reduction for the
fleet in open areas that would approximate the catch overage of the
ACT. Using the ACT for determining the overage is designed to account
for management uncertainty and to better prevent vessels from exceeding
the fleet's ACL. The DAS reduction would be distributed evenly to
limited access vessels. For example, an overage of 1,500,000 lb (680
mt) would have a DAS equivalent of 625 DAS, based on an LPUE of 2,400
lb (1.1 mt) per DAS. Divided across 327 full-time vessels, the DAS
reduction per vessel would be 1.9 DAS. Part time vessel DAS would be
reduced by 0.76 DAS (40 percent of the full time deduction) and
occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full
time deduction). Part time and occasional proportional deductions are
consistent with the way that DAS are assigned in the fishery. The AM
would take effect in the fishing year following the fishing year in
which the ACL was exceeded. Since the AM would apply mid-year, vessels
may have already used more DAS in that fishing year than are ultimately
allocated after applying the AM. If this occurs, a vessel that exceeds
the DAS it is allocated after the AM is applied would have the amount
of DAS used in excess of the vessel's final DAS allocation after the AM
is applied deducted from its DAS allocation in the subsequent fishing
year. For example, a vessel initially allocated 32 DAS in 2011 uses all
32 DAS prior to application of the AM. If, after application of the AM,
the vessel's DAS allocation is reduced to 31 DAS, the vessel's DAS in
2012 would be reduced by 1 DAS.
9. LA Fleet AM Exception
Even if the ACL is exceeded, triggering the AM for the LA fleet,
the F associated with the fleet's ACL may not be exceeded if, in
retrospect, some of the assumptions for determining the ACL, such as
LPUE relative to the status of the resource or the biomass were
underestimated. Since the overall goal of the ACL is to ensure that F
limits are not exceeded, enacting an AM would not be necessary if the F
limits are not exceeded. To address this, Amendment 15 includes an
exception provision (called a ``disclaimer'' in the amendment) that
would stop the AM from taking effect if, in an analysis of the
preceding fishing year before the AM goes into effect, the actual F
resulting from the fishery in the prior year was one standard deviation
below the overall F for the fleet's ACL. With an F = 0.28 for the ACL,
one standard deviation below would be F = 0.24. If the fishery's F is
below 0.24, the AM would not be implemented. However, if the fishery's
F is 0.24 or above, the AM would take effect. When fishery data are
available after the FY ends, and before the AM takes effect, the
Scallop PDT will evaluate the fishery, determine the F and would
recommend through the Council whether or not the AM should be
implemented. To ensure compliance with applicable laws, the Regional
Administrator would have discretion to implement the exception or
implement the AM in accordance with the Administrative Procedure Act
(APA), 5 U.S.C. 553 et seq., after considering the Council's
recommendation.
The application of the AM described in item 8 above, and the AM
exception described in this item 9, would be considered at the same
time to ensure that multiple adjustments of DAS do not occur in one
fishing year, if possible. The decision to implement the AM or the AM
exception would be made by the Regional Administrator on or about
September 30 of each year.
10. Increase of LAGC IFQ ACL if LA AM Exception Is Enacted
If the LA fleet's AM exception is enacted, a portion of landings
would be re-distributed to the LAGC fleet for equity purposes. Under
the exception, the LA fleet would have exceeded its ACL, but no AM
would be put in place, as described in item 9 above. Because the LA
fleet still would have harvested more scallops than allocated, without
being held accountable, an inequity would be created. Had the ACL been
higher, commensurate with the analysis of the prior fishing year, those
``extra'' scallops could have been distributed to the LAGC IFQ fleets
as well. To account for the inequity, the LAGC IFQ fleet would be
allocated 5.5 percent of the LA fleet's overage of its ACL. The
additional allocation to the LAGC IFQ fleet would be distributed
through adjustment of IFQs, upon implementation of the exception on or
about September 30 of each year. An amount equivalent to the amount
allocated to the LAGC IFQ fleet would be deducted from the LA ACL. The
deduction would not affect the LA fleet's ACT or DAS allocations, but
would establish a lower threshold for the LA fishery for triggering
AMs.
11. AM for the LAGC IFQ Fleet
Amendment 15 proposes that, if an LAGC vessel exceeds its IFQ, its
IFQ would be reduced by the amount equal to the overage as soon as
possible in the fishing year immediately following the fishing year in
which the IFQ overage occurred. Since the AM would apply mid-year,
vessels may have already used more IFQ in that fishing year than is
ultimately allocated after applying the AM. If this occurs, a vessel
that exceeds the IFQ it is allocated after the AM is applied would have
the amount of IFQ landed in excess of the vessel's final IFQ allocation
after the AM is applied deducted from its IFQ allocation in the
subsequent fishing year. For example, a vessel with an initial IFQ of
1,000 lb (453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in
2010, and is initially allocated 1,300 lb (589.7 kg) of scallops in
2011. That vessel would be subject to an IFQ reduction equal to 200 lb
(90.7 kg) to account for the 200 lb (90.7 kg) overage in 2010. If that
vessel lands 1,300 lb (589.7 kg) of scallops in 2011 prior to
application of the 200 lb
[[Page 19933]]
(90.7 kg) deduction as the AM, the vessel would be subject to a
deduction of 200 lb (90.7 kg) in 2012.
For vessels involved in a temporary IFQ transfer, the entire
deduction shall apply to the vessel that acquired IFQ, not the
transferring vessel. A vessel that has an overage that exceeds its IFQ
in the subsequent fishing year shall be subject to an IFQ reduction in
subsequent years until the overage is paid back. For example, a vessel
with an IFQ of 1,000 lb (454 kg) in each year over a 3-year period,
that harvests 2,500 lb (1,134 kg) of scallops the first year, would
have a 1,500-lb (680-kg) IFQ deduction, so that it would have zero
pounds to harvest in year 2, and 500 lb (227 kg) to harvest in year 3.
A vessel that has a ``negative'' IFQ balance, as described in the
example, could lease or transfer IFQ to balance the IFQ, provided there
are no sanctions or other enforcement penalties that would prohibit the
vessel from acquiring IFQ.
Applying the AM to an individual vessel's IFQ was considered
appropriate because the Council determined that individual vessel
overages of IFQ would be the only cause of exceeding the ACL for the
IFQ fleet. A vessel that has an overage in one FY that exceeds its
entire IFQ in the subsequent FY would be required to take IFQ
reductions in subsequent years until the overage is paid back. For
example, a vessel with an IFQ of 1,000 lb (454 kg) in each year over a
3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first
year, would have a 1,500-lb (680-kg) IFQ deduction, so that it would
have zero pounds to harvest in year 2, and 500 lb (227 kg) to harvest
in year 3. A vessel that has a ``negative'' IFQ balance, as described
in the example, could lease IFQ to balance the IFQ, provided there are
no sanctions or other enforcement actions that would prohibit the
vessel from acquiring IFQ. These automatic IFQ deductions do not excuse
a vessel from any enforcement actions that may be applicable for the
overage. The Council determined that this individual-vessel AM would be
more equitable than penalizing others in the fleet for single-vessel
overages. The Council incorporated ACT into the LAGC IFQ fleet
allocation, but chose not to apply any management uncertainty buffer
for the fleet at this time. This could be adjusted through the
framework process if an ACT is needed to address management
uncertainty.
12. Yellowtail Flounder (YTF) Sub-ACL
To account for YTF catch in the scallop fishery, Amendment 15 would
establish sub-ACLs (called ``sub'' ACLs to reflect that these ACLs are
part of the overall ACL established in the NE Multispecies FMP). for
the Southern New England/Mid-Atlantic (SNE/MA) and Georges Bank (GB)
YTF sub-ACLs for the scallop fishery. The amount of YTF estimated to be
harvested annually would depend on the scallop DAS and access area
allocations, and could be adjusted through the NE Multispecies FMP
framework adjustment process.
13. YTF Sub-ACL AM
Areas within the GB and SNE/MA YTF stock areas that have been pre-
identified would close to scallop fishing in the FY following a FY in
which the YTF sub-ACL for the scallop fishery is exceeded. These areas
were identified during the final development of Amendment 15 as the
statistical areas that have high bycatch of YTF in the scallop fishery.
For the GB YTF stock, the closure would be in statistical area 562,
which extends from just west of Closed Area II (CAII), through that
closed area, and to the southeast of that closed area. In addition, a
small portion of statistical area 525 within the CAII access area would
also be closed. For the SNE/MA YTF stock, statistical areas 537, 539,
and 613 would close under the YTF AM. Coordinates of these YTF AM
closed areas are included in the proposed regulations in this proposed
rule. A chart depicting the areas is in the Amendment 15 FEIS (see
ADDRESSES). The Council decided that the statistical areas included in
each YTF AM would close to LA vessels only; LAGC vessels would be
exempt from these closures if fishing in an exempted area authorized
under the NE Multispecies FMP, because these exemptions were created
because bycatch of YTF in the LAGC fishery is extremely low. However,
any YTF catch by LAGC vessels as they continue to fish would count
toward that stock area's sub-ACL for the scallop fishery (and would
contribute to an overage of the sub-ACL for the scallop fishery). The
YTF closure AM would be effective in the scallop FY directly following
the year in which the YTF sub-ACL is exceeded. By January 15 of each
year, NMFS would determine whether the YTF sub-ACL is expected to (or
has been) exceeded that year. NMFS would announce the closure to the
scallop fleet as soon as possible following the determination, and the
closure would take effect on March 1. The Council also specified that
if the scallop fishery exceeds its YTF allocation in 2010 (specified
under the NE Multispecies FMP), and that causes the entire applicable
YT ACL to be exceeded for the 2010 fishing year, the scallop fishery
will be subject to the applicable YTF AM. To implement the YTF AM for
the 2011 fishing year, NMFS would determine the length of the closure
as specified below, beginning when Amendment 15 is effective, if
approved. For the 2012 fishing year and beyond, the YTF closure AM
areas would remain closed for the length of time specified in the
following tables, and would be in place for one fishing year only:
SNE/MA YT Closure AM Duration for Specified Overage
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1-2................................... March.
3-5................................... March through April.
6-8................................... March through May.
9-12.................................. March through June.
13-14................................. March through July.
15.................................... March through August.
16.................................... March through September.
17.................................... March through October.
18.................................... March through November.
19.................................... March through January.
20 and higher......................... March through February.
------------------------------------------------------------------------
GB YT Closure AM Duration for Specified Overage in Years When the CAII
Access Area Is Open
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2-24.................................. March through June.
25-38................................. March through July.
39-57................................. March through August.
58-63................................. March through September.
64-65................................. March through October.
66-68................................. March through November.
69.................................... March through December.
70 and higher......................... March through February.
------------------------------------------------------------------------
GB YT Closure AM Duration for Specified Overage in Years When the CAII
Access Area Is Closed
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2..................................... March through June.
3..................................... March through July.
4-5................................... March through August.
6 and higher.......................... March through February.
------------------------------------------------------------------------
14. Monitoring the YTF Sub-ACL
In order to more effectively monitor YTF bycatch in open areas, the
daily vessel monitoring system (VMS) catch report that is currently
required in access areas only would be required for all scallop trips
in all areas. Vessel operators would be required to report the
following information: Fishing
[[Page 19934]]
vessel trip report (FVTR) serial number; date fish caught; total pounds
of scallop meats kept; total pounds of YTF kept; total pounds of YTF
discarded; and total pounds of all other fish kept. Vessels would be
required to submit VMS catch reports for every day fished by 9 a.m. of
the day following the day on which fishing occurred, consistent with
access area catch reporting.
15. LAGC IFQ Vessel Possession Limit Increase
IFQ scallop vessels would be allowed to harvest 600 lb (272.2 kg)
of shucked scallops or 75 bu (26.4 hL) of in-shell scallops per trip,
an increase of 200 lb (90.7 kg) or 25 bu (8.8 hL) per trip from the
current 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit.
This alternative would address concerns that the current possession
limit is not economically feasible due to increased costs. The 600-lb
(272.2-kg) possession limit is not expected to change the ``small
boat'' nature of the LAGC fishery, and would remain consistent with the
Council's vision for LAGC vessels, while enabling vessel owners to
maintain profits under rising costs. The increase is also consistent
with the conservation objectives of the FMP because landings are
constrained by the IFQ allocations.
16. IFQ Carryover
Amendment 15 proposes to allow IFQ vessels that have unused IFQ at
the end of the FY to carry over up to 15 percent of their unused IFQ to
the subsequent FY. Any IFQ that was leased by but not used by a vessel
could also be carried over by the vessel that acquired the IFQ (for
monitoring and accounting purposes, leased-in IFQ is used first, in the
order acquired). For accounting purposes, the combined total of all
vessels' IFQ carry-over shall be added to the LAGC IFQ fleet's
applicable ACL for the carry-over year. Any IFQ carried over that is
landed in the carry-over fishing year shall be counted against the ACL
specified in paragraph (a)(4)(i) of this section, as increased by the
total carry-over for all LAGC IFQ vessels, as specified in paragraph
(h)(2)(v)(B).
17. Increase the IFQ Vessel Cap to 2.5 Percent
This proposed measure would increase the 2-percent IFQ cap per
vessel to 2.5 percent of the total IFQ allocation to allow more
flexibility and promote efficiency for vessels in fishing IFQs
available to them. IFQ that is carried over would not contribute to the
vessel's 2.5-percent IFQ cap because the carryover is a temporary
increase of the vessel's IFQ based on underharvest the prior year.
Because there is also a 5-percent overall cap on how much IFQ on entity
may own, a vessel owner would now be permitted to own only two vessels
to meet the 5-percent ownership cap, rather than having to own more
than two vessels. This alternative would provide increased flexibility
to vessel owners to more effectively and efficiently fish their IFQs.
18. Permanent IFQ Transfers Separate From LAGC IFQ Permit
This alternative would allow LAGC IFQ permit owners to permanently
transfer some or all of their quota allocation, independent of their
IFQ permit, to another LAGC IFQ permit holder while retaining the
permit itself. This measure would enable vessel owners additional
flexibility to buy or sell IFQ without impacting other permits on their
vessel. This allowance would only apply to IFQ permit holders that do
not also have a LA scallop permit to prevent crossover of IFQ
allocations between the two IFQ fleets that have separate allocations.
19. Revision of the EFH Closed Areas
To establish compatibility with the NE Multispecies FMP, Amendment
15 would modify the EFH closed areas in the Scallop FMP by removing the
four EFH closed areas that were implemented in Amendment 10 to the
Scallop FMP, and it would replacing them with EFH closed areas that are
identical to the EFH closed areas implemented under the NE Multispecies
FMP. These areas are the Closed Area I (CAI), Closed Area II (CAII),
Nantucket Lightship, Western Gulf of Maine, Jeffrey's Bank, and Cashes
Ledge Habitat Closed Areas. Coordinates for the area are provided in
the proposed regulations in this proposed rule. A chart depicting the
areas is in the FEIS for Amendment 15 (see ADDRESSES). These areas
would be closed to scallop fishing (and closed to all mobile bottom-
tending gear under the NE Multispecies FMP) to minimize the adverse
impacts of scallop fishing. This change in the EFH closed areas under
the Scallop FMP would make the EFH closed areas consistent between the
Scallop FMP and the NE Multispecies FMP, as intended under Joint
Frameworks 16 to the Scallop FMP and 39 to the NE Multispecies FMP
(Joint Framework 16/39) (69 FR 63460, November 2, 2004). With
inconsistent areas, the scallop access areas in CAI, CAII, and the NLCA
are inconsistent with the area rotation program established under the
Scallop FMP because they are restricted to areas smaller than designed.
These areas were originally implemented under that action, but were
vacated by a Federal Court order resulting from a lawsuit on Joint
Framework 16/39. That order specified that the EFH closed areas could
only be changed through an FMP amendment. This proposed action would
address the inconsistency while the Council continues to develop EFH
measures under Phase 2 of its Omnibus EFH Amendment.
20. Establish Third-Year Default Measures Through the Biennial
Framework Process
Fishery specifications in the scallop fishery are generally set
every 2 years, through the biennial framework adjustment process. This
alternative would extend the fishery specification process to include a
third year of allocation measures that would be effective if subsequent
framework actions are delayed. Currently, measures from the prior year
roll over to the next FY while the implementation of the new set of
management measures is pending. However, the measures that roll over
are often not appropriate for the status of the resource. By setting
the measures for the third year in the framework, the measures are more
likely to be appropriate for the condition of the fishery and resource.
Third-year measures would need to be set with sufficient precaution to
take into account the uncertainty associated with projections for the
third year. The third-year measures would be superseded by the measures
developed in the biennial framework adjustment for that year as soon as
it is implemented.
21. New Frameworkable Measures
The following measures would be added to the current list of
measures that can be adjusted under the Scallop FMP by framework
action.
Modify the LAGC possession limit: The possession limit for LAGC
vessels could be modified upward or downward by framework action. The
intent is that any modification of the possession limit would not
modify the nature of the LAGC fleet and would be consistent with the
Council's vision to maintain a small-vessel fleet under LAGC
provisions. While the Council specified in the Amendment 15 document
that the possession limit adjustments could be done for IFQ vessels, it
also determined that the regulations should specify that possession
limit adjustments could be made through the framework process for all
LAGC vessels, including LAGC NGOM and Incidental vessels.
Adjustment to aspects of ACL management: This action proposes a
[[Page 19935]]
new management strategy under ACL management that will use many new
measures. All of the measures specified in this action would be able to
be modified through framework actions. The specific ACL-related
measures that could be modified by framework include: Modifying
associated definitions and specification of OFL, ABC, ACLs and ACTs,
all of which are specifically intended to be changed in future
frameworks or specification packages as new information becomes
available about the resource and fishery; buffers identified for
management uncertainty or scientific uncertainty (ABC control rule);
AMs for scallop ACLs and other sub-ACLs allocated to the scallop
fishery; monitoring and reporting requirements associated with ACLs;
timing of AM measures; and adoption of sub-ACLs for other species that
are not currently part of this program.
Adjusting EFH Closed Area Management Boundaries
The framework action proposing the boundary change would include an
analysis of the impacts of the specific boundaries considered. This
additional framework authority would not allow adoption of new EFH
closed areas.
Adjusting RSA Allocation
Amendment 15 proposes to allocate 1.25 million lb (567 mt) of
scallops for RSA, regardless of the total projected catch for the
fishery. In the future, the value could be increased or decreased by
framework action.
22. Changes to the Scallop RSA Program
Amendment 15 includes several adjustments designed to improve the
RSA Program so that it is more efficient, and so that awards under the
Federal grants process can be provided near or before the start of the
scallop FY on March 1. The following improvements are proposed:
Announce (Publish) Federal Funding Opportunity (FFO) as Early as
Possible
Amendment 15 proposes that the announcement of the funding
opportunity should be published as soon as possible in the year
preceding the year in which research would be conducted. If this
results in more timely reviewing and processing of awards, this would
maximize time for research and compensation trips before the end of the
FY. This would be facilitated by the Amendment 15 proposal to allocate
1.25 M lb (567 mt) to RSA program annually (see below).
Enable Multi-Year Awards
Currently, research priorities, TACs for RSAs, and approved
research projects are limited to 1 year. Amendment 15 would allow RSA
proposals and compensation to span up to 2 years, corresponding with
the biennial framework process. Projects could be awarded for 1 or 2
years. Under this alternative, applicants could apply for RSA for the
first year, second year, or both. This alternative would increase
flexibility for the applicant, provide funding for some longer term
projects, and potentially reduce time and resources spent on the
application and review process.
Establish RSA Allocation as a Fixed Amount of Pounds Rather Than a
Percent of Total Catch
Currently 2 percent of access area TACs and open area DAS are set
aside for the RSA program. That amount of TAC and DAS varies depending
on the total TAC and DAS for the fishery. Amendment 15 would modify the
scallop RSA program so that 1.25 M lb (567 mt) would be set aside for
the RSA program. In addition, open area RSA would be awarded in pounds
rather than DAS. Total projected catch for the fishery may vary from
year to year, but the amount of catch set-aside for research would be
constant at 1.25 M lb (567 mt), unless changed through a framework
adjustment. Assuming a projected catch of about 50 million lb (22,680
mt) for the fishery, 1.25 M lb (567 mt) equals about 2.5 percent. This
is higher than recent levels to recognize the importance of research
and scallop resource surveys for the success of the area rotation
program, but would not create a separate pool of RSA for scallop
resource surveys.
Allocating this fixed amount could enable the grant awards to be
issued earlier, because the amount of TAC available for research would
be known in advance and would not change from year to year. The
specific areas that would have available RSA would be identified in the
framework, but RSA awards could still be made before approval of the
framework, based on total scallop pounds needed to fund the research.
Recipients could either choose to wait for NMFS approval of the
framework to begin compensation fishing within approved access areas,
or could begin compensation fishing in open areas prior to approval of
the framework. The intent of this alternative is to help improve
timeliness of the scallop RSA program. This should only be an issue for
the first year of a framework, because area-specific RSA pounds will be
known for the second year of the framework action.
Rollover of Unused RSA Pounds to Compensate Awarded Projects
Amendment 15 includes a provision that specifies that if updated
analyses suggest that the price per pound estimates used in the FFO
were low, and if all RSA TAC is not allocated, NMFS could allocate
unused TAC to compensate awarded projects or to expand a project rather
than having that RSA go unused. Amendment 15 proposes that if there is
RSA TAC available after all awards are made, a project that was already
awarded RSA would be permitted to apply for additional TAC to expand
its research project or for compensation if the actual scallop price
per pound was less than estimated. The implementation details of this
proposal were not specified in Amendment 15. Therefore, under the
authority of section 305(d) of the MSA, NMFS proposes that this
provision would enable NMFS to provide the opportunity for reallocation
of available RSA pounds as part of the original FFO for the project.
The FFO would specify the conditions under which a project that has
been awarded RSA could be provided additional RSA pounds as
supplemental compensation to account for lower-than-expected scallop
price or for expansion of the approved project.
Extension for Harvesting RSA Compensation
Currently all RSA TAC has to be harvested by the end of the FY for
which it is awarded. This measure would allow an RSA award recipient to
harvest RSA compensation TAC for up to 3 months (i.e., prior to June 1)
into the subsequent FY. Allowing vessels involved in RSA projects to
harvest RSA TAC into the next FY would provide flexibility for
participating vessels and researchers, and is consistent with carryover
provisions for the fishery as a whole.
Specify Regulations From Which RSA Projects Would be Exempt
Amendment 15 proposes a list of the scallop management measures
from which RSA funded projects may be exempt. The researcher would need
to list the measures the project is proposed to be exempt from in the
RSA proposal. The researcher would not need to apply for an exempted
fishing permit (EFP) to be exempt from the following restrictions: Crew
restrictions; seasonal closures in access areas; and the requirement to
return to port if fishing in more than one area. These exemptions would
be issued by the
[[Page 19936]]
Regional Administrator through a letter of authorization. The
exemptions would be issued for research trips under the applicable RSA
project. RSA compensation fishing trips would not be eligible for
exemption from these restrictions because compensation trips are
intended only to provide researchers with the ability to collect funds
through normal fishing operations.
Increase Public Input on RSA Proposals
Although the Council recommended that the Council's Scallop
Advisory Panel members play a more prominent role in setting research
priorities and reviewing proposals, no proposed regulations are
necessary to effectuate that recommendation. NMFS would seek more input
from the Council's Scallop Advisors through the next solicitation for
scallop RSA proposals. Review of RSA projects under the Federal grants
program is limited to individuals who do not have any relationship or
vested interest in proposed research.
Public comments are being solicited on Amendment 15 and its
incorporated documents through the end of the comment period stated in
this proposed rule (see DATES). NMFS has also published a Notice of
Availability, with a comment period ending May 23, 2011, (76 FR 16595,
March 24, 2011). All comments received by May 23, 2011, whether
specifically directed to Amendment 15 or the proposed rule for
Amendment 15, will be considered in the approval/disapproval decision
on Amendment 15. Comments received after that date will not be
considered in the decision to approve or disapprove Amendment 15. To be
considered, comments must be received by close of business on the last
day of the comment period; that does not mean postmarked or otherwise
transmitted by that date.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Scallop FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration
after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
This proposed rule contains a revision to a current collection-of-
information requirement subject to review and approval by OMB under the
Paperwork Reduction Act (PRA). Public reporting burden for this
collection of information, the expansion of the VMS catch report to all
areas (OMB Control Number 0648-0491), is estimated to average 2 min per
response. This estimate includes the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to OMB by
e-mail at [email protected], or fax to (202) 395-7285 and to
the Regional Administrator at the address provided in the ADDRESSES
section of this proposed rule.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
An IRFA has been prepared, as required by section 603 of the
Regulatory Flexibility Act (RFA). The IRFA consists of the relevant
analyses, including the draft IRFA, included in Amendment 15, and the
preamble to this proposed rule. A summary of the analysis follows.
Statement of Objective and Need
This action proposes to implement ACL and AMs for the scallop
fishery, as well as other measures to improve management of the scallop
fishery. A description of the management measures, why this action is
being considered, and the legal basis for this action are contained in
the preamble of this proposed rule and are not repeated here.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
The proposed regulations would affect vessels with LA and LAGC
scallop permits. The FEIS for Amendment 15 provides extensive
information on the number and size of vessels and small businesses that
would be affected by the proposed regulations, by port and State. There
were 313 vessels that obtained full-time LA permits in 2010, including
250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same
year, there were also 34 part-time LA permits in the sea scallop
fishery. No vessels were issued occasional scallop permits. By the
start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ
permits (including 40 IFQ permits issued to vessels with a LA scallop
permit), 127 NGOM, and 294 incidental catch permits were issued. Since
all scallop permits are limited access, vessel owners would only cancel
permits if they decide to stop fishing for scallops on the permitted
vessel permanently or if they transfer IFQ to another IFQ vessel and
permanently relinquish the vessel's scallop permit. This is likely to
be infrequent due to the value of retaining the permit. As such, the
number of scallop permits could decline over time, but would likely be
less than 10 permits per year.
The RFA defines a small business entity in any fish-harvesting or
hatchery business as a firm that is independently owned and operated
and not dominant in its field of operation (including its affiliates),
with receipts of up to $4 million annually. The vessels in the Atlantic
sea scallop fishery are considered small business entities because all
of them grossed less than $3 million according to the dealer's data for
FYs 1994 to 2009. In FY 2009, total average revenue per full-time
scallop vessel was just over $1 million, and total average scallop
revenue per general category vessel was just under $80,000. The IRFA
for this and prior Scallop FMP actions has not considered individual
entity ownership of multiple vessels. More information about common
ownership is being gathered, but the effects of common ownership
relative to small v large entities under the RFA is still unclear and
will be addressed in future analyses.
The Small Business Association (SBA) suggests two criteria to
consider in determining the significance of regulatory impacts; namely,
disproportionality and profitability. The disproportionality criterion
compares the effects of the regulatory action on small versus large
entities (using the SBA-approved size definition of ``small entity''),
not the difference between segments of small entities. Amendment 15 is
not expected to have significant regulatory impacts on the basis of the
disproportionality criterion, because all entities are considered to be
small entities in the scallop fishery and, therefore, the proposed
action would not place a substantial number of small entities at a
significant competitive disadvantage relative to large entities. A
summary of the economic impacts
[[Page 19937]]
relative to the profitability criterion is provided below under
``Economic Impacts of Proposed Measures and Alternatives.''
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action would implement an expansion of current VMS catch
reporting that would require all LA, LAGC IFQ, and LAGC NGOM scallop
vessels to report YTF catch (kept and discards) and all other species
kept (including scallops) on all scallop trips. Such reports would have
to be submitted for each day fished by 9 a.m. of the day following the
day on which the fishing activity occurred. Currently this requirement
applies only to access area scallop trips. The expansion of the
requirement to all areas would increase the current burden cost of 333
hours at a total cost of $4,995 to 1,000 hours at a total cost of
$15,000 for all scallop vessels combined. The expansion is needed to
monitor YTF bycatch relative to the sub-ACL for YTF proposed under
Amendment 15. Amendment 15 does not duplicate, overlap, or conflict
with any other Federal law.
Economic Impacts of Proposed Measures and Alternatives
A summary of the economic impacts of proposed and alternative
measures is provided below. Detailed economic impact analysis is
provided in Section 5.4 and Appendix III of the FEIS for Amendment 15
(see ADDRESSES).
Each vessel within the same permit category (i.e., full-time, part-
time, and occasional) is allocated the same number of DAS and access
area trips. LAGC IFQ vessels receive 5.5 percent of the projected catch
after research and observer set-asides are removed, and IFQs are
proportionately allocated based on a percent share of the 5.5-percent
fleetwide allocation. Therefore, those measures that affect overall
projected landings will have proportional impacts on all the
participants because allocations for all vessels will be adjusted up or
down in the same percentage. Some of the other proposed measures are
specific to each fishery, however, and they will result in differential
impacts, as discussed below for each individual action. In summary,
although some specific measures proposed in Amendment 15, such as the
hybrid OFD, catch limits, and AMs could have some negative impacts on
the revenues and profits from the scallop fishery in the short-term,
the benefits from the other proposed alternatives, including the
measures that would reduce scientific or management uncertainty, the
modification of the EFH areas, modifications to the LAGC possession
limits and other related measures are expected to offset in part or in
full these short-term negative effects. As a result, the aggregate
economic impacts of Amendment 15 measures, combined, in the short-term
are likely to range from small negative impacts to small positive
impacts. The proposed action is not expected to have significant
impacts on the viability of the vessels, because these impacts are
estimated to be relatively small. In addition, even with negative
impacts, the profit rate is estimated to exceed 20 percent of the gross
revenue in the scallop industry, providing for short-term cash reserves
to finance operations through several months or years until the
positive effects of the regulations start paying off. In the long-term,
the economic impacts of the combined measures on the participants of
the scallop are expected to be positive.
Economic Impacts of the Individual Measures
Amendment 15 includes ACLs and AMs to bring the Scallop FMP into
compliance with requirements of the MSA as reauthorized in 2007.
Although the Council discussed various ways of establishing ACLs
throughout the development of Amendment 15, the only alternative was to
take no action. Alternatives to proposed AMs would have implemented AMs
a full year after the end of the fishing year in which the overage
occurred. The Council considered two alternatives to the proposed
revision of the OFD. One alternative maintained the current OFD and
another based the OFD on a resource-wide and time-averaged approach.
The Council's decision to modify the essential fish habitat (EFH)
closed areas under the Scallop FMP had only the alternative to take no
action. The Council considered several alternatives to the various
adjustments to measures for the LAGC fishery and determined that
additional alternatives were not necessary. Specifically, the Council
considered various increases to the LAGC IFQ fishery possession limit,
no increase to the maximum IFQ a vessel can be allocated, no allowance
to carry over IFQ from one fishing year to the next, no allowance to
transfer IFQ separately from the IFQ permit, and a suite of measures to
regulate the formation of community fishing associations. The Council
also considered several alternatives to the proposed adjustments to the
scallop RSA program, including separating set-aside TAC for scallop
resource surveys, and various ways of allocating RSA TAC that remains
available after all approved projects are awarded in a particular year.
Since the Council can only establish framework measures for those
measures that are included in the FMP already, the only alternative to
the proposed additions to the list of measures that can be adjusted by
framework adjustments is to not add measures or add only a subset of
the measures. Under the MSA, NMFS can only approve or disapprove
management measures recommended by the Council. Therefore, NMFS cannot
replace proposed alternatives with other measures considered by not
adopted by the Council.
1. Compliance With MSA
ACL Structure and Subcomponents
This new requirement is expected to have long-term economic
benefits on the fishery by helping to ensure that catch limits (ACLs)
are set at or below ABC, in order to prevent the resource from being
overfished and overfishing from occurring. Buffers for scientific and
management uncertainty would reduce the risk of fishery exceeding its
ACL, thus reducing the risk of overfishing the scallop resource, with
positive impacts on the overall scallop yield, revenues, and total
economic benefits from the fishery. Establishing catch limits is
expected to result in a similar landings stream compared to the status
quo management. Even if the landing streams changed as a result of the
new measures, the risk to the resource from overfishing due to
scientific or management uncertainty would be minimized under the
proposed measures, because these sources of uncertainty are better
accounted for. This, in turn, is expected to keep the landings and
economic benefits relatively more stable and reduce the uncertainty in
business decisions over the long-term. The separation of an ACL into
two sub-ACLs with associated ACTs is expected to have positive impacts
on the scallop fishery and its subcomponents. Separating the two fleets
with separate ACLs prevents one component of the fishery from impacting
the catch levels of the other. This would prevent negative economic
impacts from spreading from one fleet to the other. There are no
alternatives that would generate higher economic benefits for the
participants of the scallop fishery. Under the No Action alternative,
there is a risk of overfishing the resource due to the scientific and
management uncertainty that is not adequately addressed currently.
Existing measures do not have well-defined accountability and payback
mechanisms
[[Page 19938]]
if catch limits are exceeded due to these sources of uncertainty, which
could result in continual reductions in allocations, effort levels, and
trips.
2. Implementation of AMs
LA AMs would consist of the use of an ACT, and an overall DAS
reduction to account for any overages. The deduction would be applied
in the second FY following the FY in which the overage occurred (e.g.,
an overage in FY 2011 would result in a DAS reduction in FY 2013). The
overall economic impacts in the short-term on the participants of the
scallop fishery depend on whether or not the ACT prevents an ACL
overage. Exceeding the ACL in one year will have positive economic
impacts on the participants of the scallop fishery in that year, but it
would be followed by negative impacts in the year in which the AM is
applied, since DAS would be deducted based on the level of the overage.
The short-term impacts averaged over the applicable years would be
neutral or small. The proposed action also includes a disclaimer for
when the LA AM would not be triggered, even if the LA sub-ACL exceeded.
If there is no biological harm, and updated estimates of F are actually
lower than what was projected, there will be no reason for a DAS
reduction in the subsequent year. This would minimize or even eliminate
any potentially negative impacts, since the AM would not be
implemented.
For the LAGC fishery, if an individual vessel exceeds its IFQ
(including leased IFQ), the amount of IFQ equal to the overage would be
deducted from the vessel's IFQ in the FY following the FY in which the
overage occurred. Similarly, this action proposes that if the NGOM
component of the fishery exceeds the overall hard-TAC (equal to the
NGOM ACL) after all data is final, then the hard TAC could be reduced
by the amount equal to the overage in the following FY. Exceeding the
vessel's IFQ in one year will have positive economic impacts in that
year, followed by negative impacts in the year in which the deduction
is applied, so the short-term impacts averaged over these 2 years would
be neutral or small. The measures would help reduce the risks of
exceeding ACLs and would have positive impacts on the scallop yields
and economic impacts from the fishery as a whole over the long-term.
The Council also considered making the AMs effective in the second
year following FY in which the overage occurred. This would have very
similar economic impacts to the proposed application of AMs, except
that the negative impacts would be delayed for 1 year.
3. Trigger of LA AM Disclaimer and Allocations to the LAGC
If the LA AM disclaimer is triggered, 5.5 percent of the difference
between the exceeded LA sub-ACL and the actual LA landings will be
allocated to the LAGC fleet the following FY. This measure would have
positive economic impacts on the LAGC vessels and prevent the LA
fishery from receiving a higher share of the total catch than allocated
to them by Amendment 15 provisions. The no action alternative would
generate negative economic impacts compared to the proposed action,
because it would not provide the LAGC fleet with similar additional
catch.
4. ACLs and AMs for YTF
The proposed AM for the YTF sub-ACL, if the scallop fishery exceeds
the sub-ACL, is a seasonal closure of areas that have been pre-
identified to have high YTF bycatch rates. The applicable area would be
closed in the subsequent FY for a specified period of time to only LA
scallop vessels (LAGC vessels would be exempt from the closure). This
measure could increase fishing costs and have negative impacts on the
scallop revenues and profits if the effort is moved to less productive
areas with lower LPUE, or to areas with a predominance of smaller
scallops with a lower price. Implementation of the closure in the
subsequent year, rather than in-season, would prevent derby style
fishing and minimize the negative impacts on prices and revenues
associated with it. Exempting LAGC trips from this AM would prevent
high distributional impacts for LAGC vessels that have a dependence on
fishing within the proposed closure areas in SNE waters.
The alternative that would close an entire YTF stock area would
have greater negative impacts on scallop revenues and profits compared
to options that would close only specific portions of areas with high
YTF bycatch. Higher negative impacts result from a very large portion
of the scallop fishery being closed compared to discrete areas under
the proposed alternative. Economic benefits from minimizing YTF bycatch
in the year following an overage under the stock wide area closure
alternatives would accrue over the long term if YTF stocks improve and
the likelihood of scallop fishery closures is reduced. However, the
proposed measure provides nearly the same bycatch reduction for YTF
because the areas are where the highest YTF bycatch occurs in the
scallop fishery. The immediate economic benefits of the proposed
measure therefore outweighs the long term potential benefits associated
with the stock wide closure. The alternatives that would institute
either a fleet maximum DAS or an individual maximum number of DAS that
can be used in a stock area for year 3 to account for an overage of the
YTF sub-ACL in year 1 could reduce the negative impacts on scallop
revenues, costs, and total economic benefits by preventing derby
fishing and allowing more time for the scallop fleet to make
adjustments for exceeding the YTF ACLs. However, it would apply
penalties to the whole fleet for overages that may have been caused by
only a part of the fleet. In addition, these options could increase the
administration costs by making it necessary to monitor DAS-used by YTF
stock areas, which would require additional reporting and recordkeeping
requirements.
5. Measures to Adjust the OFD
The adoption of the hybrid OFD could result in a reduction in
revenues and profits compared to no action alternative in the short to
medium term. During the first 10 years of implementation, average
scallop revenue per vessel net of trips costs are expected to decline
by about 5.8 percent. This alternative is expected have positive
economic impacts over the long-term, however, since this definition
will provide more flexibility to meet the area rotation objectives and
is expected to increase catch by 10 percent with larger average scallop
size. In addition, this alternative could potentially reduce area
swept, thus would reduce adverse effects on bycatch, seabed habitats,
and EFH, with indirect positive impacts on the scallop fishery. For
example, a reduction in bycatch would prevent triggering YTF AM
measures, and the negative impacts on scallop landings and revenues
associated with such a measure. This could offset some of the short-
term potentially negative economic impacts from the hybrid OFD.
The status quo OFD is estimated to result in higher revenues and
profits in the short-term compared to the hybrid overfishing
definition. This alternative was not selected by the Council because it
is not consistent with the spatial management of the scallop fishery,
has higher risks for the scallop resource, and lower economic benefits
for the scallop fishery over the long-term compared to the proposed
measure.
[[Page 19939]]
6. IFQ Carryover
The proposed carryover provision would allow LAGC IFQ vessels to
carry up to 15 percent of a vessel's IFQ, including leased IFQ, to the
following FY, if the vessel has unused IFQ at the end of the FY. This
would provide flexibility and safety-at-sea benefits in the case of
unforeseen circumstances or bad weather that prevents the vessel from
using all of its IFQ. As a result, this would give opportunity to
vessels to land their unused quote in the next year with positive
economic impacts for vessels, the LAGC fishery, and overall scallop
revenue and profits.
The no action alternative would have smaller economic benefits
compared to the proposed option because it would not allow IFQ to be
carried over into the subsequent FY. The Council also considered
allowing a vessel's entire IFQ to be carried over, which would have
provided higher immediate economic benefits than the proposed option.
However, transferring a larger portion or the entire amount of the
unused quota could increase management uncertainty, which could result
in application of an ACT, set below the ACL, to serve as a buffer to
protect against the uncertainty. This overall reduction for the
following FY would have negative impacts on the quota allocations and
economic benefits in future years.
7. Modification of the LAGC IFQ Vessel Possession Limit
An increase in the general category possession limit from 400 lb
(181.4 kg) to 600 lb (272.2 kg) is expected to reduce the fishing time
and trip costs, because it would increase trip efficiency and reduce
steaming time over the course of the FY. In addition, it could increase
profits for these vessels or offset the cost of elevated fuel prices.
As a result, the proposed option is expected have positive economic
impacts on the scallop fishery compared to the no action alternative.
Alternatives to the proposed action included eliminating the
possession limit and increasing it to 1,000 lb (454 kg) per trip. These
alternatives would produce higher benefits than the proposed option by
maximizing trip revenue compared to fishing costs. However, this
alternative could change the nature of the LAGC fishery from a small
scale fishery to a full-time operation like the LA fishery, which would
run counter to the FMP's objective of preserving the small scale nature
of the fishery for the LAGC fleet. It may result in consolidation that
would eliminate operations with smaller IFQs or that have less total
share of the IFQ fishery. This alternative was not selected because the
Council continues to support the LAGC fishery as a small vessel
fishery, consistent with its goals and vision for the fishery as
developed under Amendment 11 to the FMP.
8. Increase in the Maximum IFQ per Vessel
The proposed action to change the 2-percent maximum quota per
vessel to 2.5 percent would provide more flexibility to vessels to
adjust their harvest levels to changes in the scallop resource
conditions. In addition, since a vessel owner could meet the 5-percent
ownership cap by owning only two vessels, it would eliminate ownership
costs associated with multiple vessels. The proposed increase to a 2.5-
percent cap would, therefore, have positive impacts on profitability.
The no action alternative for increasing the maximum IFQ per vessel
would not improve flexibility and would have negative economic impacts
associated with costs of vessel ownership compared to the proposed
action.
9. Allowing LAGC Quota To Be Split From IFQ Permits
The proposed measure to allow the IFQ to be split from the IFQ
permit would improve flexibility and facilitate movement of quota
between fishermen. It would also increase the likelihood that all IFQ
will be harvested, thereby reducing management uncertainty. It would
allow fishermen to combine their allocations and to benefit from an
economically viable operation when the allocations of some vessels are
too small to make scallop fishing profitable. The proposed measure is
therefore likely to have positive impacts on revenues and profits for
the participants of the IFQ fishery.
The Council rejected an alternative that would have allowed quota
to be transferred between the LA/IFQ fleet and IFQ-only fleet. This
alternative would have resulted in larger economic benefits for LAGC
vessels because it would provide another source of IFQ. However, this
option was not chosen by the Council mostly due to concerns about the
difficulty of monitoring mixed quota from the two categories, since
they are allocated quota from two separate pools.
Under the no action alternative, LAGC vessels that want to
permanently transfer quota have to purchase LAGC permit as well as all
the other permits a vessel has, which makes purchasing of LAGC IFQ very
expensive. It also is a deterrent to engaging in permanent transfers,
since some owners would prefer to retain the permits for other
fisheries. The no action alternative, therefore, would have reduced
benefits compared to the proposed action.
10. Measures to Address EFH Closed Areas
The proposed option would modify the EFH areas closed to scallop
gear under Scallop Amendment 10 to be consistent with NE Multispecies
Amendment 13, and eliminate the areas closed for EFH under Amendment
10. As a result, effort could be allocated to CAI (where the scallops
are larger and yield is higher), instead of allocating more open area
effort in areas with potentially lower catch rates. This is estimated
to have positive impacts on the scallop resource and future yield, and
to increase the scallop revenues by about $8 million (assuming a price
of $7.00 per lb) per year. Fishing in more productive areas would also
reduce the fishing costs. Therefore, the proposed measure is expected
to have positive impacts on revenues and profits from the scallop
fishery. The Council considered taking no action, but such action would
have lower economic benefits than the proposed action, since it would
not provide access to portions of the scallop resource that would
improve yield and reduce fishing costs.
11. Measures to Improve RSA Program
These alternatives are expected to have positive indirect economic
benefits for the sea scallop fishery by improving the timing and
administration of the RSA program. Having dedicated resources for
funding research to survey access areas will improve the Council's
ability to allocate the appropriate amount of effort to prevent
overfishing and optimize yield. Exempting RSA projects (if identified
in the proposal) from crew restrictions, the seasonal closure in
Elephant Trunk, and the requirement to return to port if fishing in
more than one area will allow more flexibility and more effective
research. If, as a result of these measures, the program can be more
streamlined, and worthwhile projects can occur with fewer obstacles,
better and more timely research will result in indirect benefits to the
scallop resource and yield and will increase economic benefits from the
scallop fishery. Several alternatives were considered by the Council,
but they all would have similar impacts. Therefore, the proposed
measures are based on policy decisions that reflect the most efficient
and effective way of implementing the RSA Program.
[[Page 19940]]
12. Third-Year Default Measures in the Framework Adjustment Process and
Addition to the List of Frameworkable Items in the FMP
The proposed action includes adding a third year of specifications
to the framework process in order to prevent outdated measures from
getting implemented due to the delay in the implementation of the 2-
year framework actions. It would serve as a ``safety mechanism'' to
prevent against ``No Action'' rollovers during implementation delays.
These ``No Action'' rollover measures complicate management of the
scallop fishery, do not make sense for the industry, and may cause
undesired negative effects or require further management intervention.
Therefore, including third-year specifications would alleviate some of
the implementation issues caused by the time lag between the FY and the
time when the survey data becomes available. Since the measures that
are created for year 3 will result in landings more consistent with the
updated scallop biomass estimates and PDT recommendations, this action
is expected to have positive indirect effects on the participants of
the scallop fishery. There are no other alternatives that would result
in larger economic benefits.
Expanding the list of adjustable framework items would allow the
Council to more easily adjust the allocations according to the resource
conditions and as needed in terms of research priorities or to make
further changes to benefit EFH. As a result, these measures are
expected to have positive impacts on the scallop fishery and its
participants. There are no other alternatives that would result in
larger economic benefits.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: April 4, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.4, paragraphs (a)(2)(i) introductory text, and
(a)(2)(ii)(A) are revised to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(2) * * *
(i) Limited access scallop permits. Any vessel of the United States
that possesses or lands more than 600 lb (272.2 kg) of shucked
scallops, or 50 bu (17.6 hL) of in-shell scallops per trip South of
42[deg]20' N. Lat., or 75 bu (26.4 hL) of in-shell scallops per trip
North of 42[deg]20' N. Lat, or possesses more than 100 bu (35.2 hL) of
in-shell scallops seaward of the VMS Demarcation Line, except vessels
that fish exclusively in State waters for scallops, must have been
issued and carry on board a valid limited access scallop permit.
* * * * *
(ii) * * *
(A) Individual fishing quota LAGC permit. To possess or land up to
600 lb (272.2 kg) of shucked meats, or land up to 75 bu (26.4 hL) of
in-shell scallops per trip, or possess up to 100 bu (35.2 hL) of in-
shell scallops seaward of the VMS demarcation line, a vessel must have
been issued an individual fishing quota LAGC scallop permit (IFQ
scallop permit). Issuance of an initial IFQ scallop permit is
contingent upon the vessel owner submitting the required application
and other information that demonstrates that the vessel meets the
eligibility criteria specified in paragraph (a)(2)(ii)(D) of this
section.
* * * * *
3. In Sec. 648.10, paragraphs (e)(5)(i), (e)(5)(ii), (f)(4)(i),
and (h)(8) are revised to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(e) * * *
(5) * * *
(i) A vessel subject to the VMS requirements of Sec. 648.9 and
paragraphs (b) through (d) of this section that has crossed the VMS
Demarcation Line under paragraph (a) of this section is deemed to be
fishing under the DAS program, the LAGC IFQ or NGOM scallop fishery, or
other fishery requiring the operation of VMS as applicable, unless
prior to leaving port, the vessel's owner or authorized representative
declares the vessel out of the scallop, NE multispecies, or monkfish
fishery, as applicable, for a specific time period. NMFS must be
notified by transmitting the appropriate VMS code through the VMS, or
unless the vessel's owner or authorized representative declares the
vessel will be fishing in the Eastern U.S./Canada Area, as described in
Sec. 648.85(a)(3)(ii), under the provisions of that program.
(ii) Notification that the vessel is not under the DAS program, the
LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the
operation of VMS, must be received by NMFS prior to the vessel leaving
port. A vessel may not change its status after the vessel leaves port
or before it returns to port on any fishing trip.
* * * * *
(f) * * *
(4) * * *.
(i) The owner or operator of a limited access, LAGC IFQ, or LAGC
NGOM vessel that fishes for, possesses, or retains scallops, and is not
fishing under a NE Multispecies DAS or sector allocation, must submit
reports through the VMS, in accordance with instructions to be provided
by the Regional Administrator, for each day fished, including open area
trips, access area trips as described in Sec. 648.60(a)(9), and trips
accompanied by a NMFS-approved observer. The reports must be submitted
for each day (beginning at 0000 hr and ending at 2400 hr) and not later
than 0900 hours of the following day. Such reports must include the
following information:
(A) FVTR serial number;
(B) Date fish were caught;
(C) Total pounds of scallop meats kept;
(D) Total pounds of yellowtail flounder kept;
(E) Total pounds of yellowtail flounder discarded; and
(F) Total pounds of all other fish kept.
* * * * *
(h) * * *
(8) Any vessel issued a limited access scallop permit and not
issued an LAGC scallop permit that possesses or lands scallops; any
vessel issued a limited access scallop and LAGC IFQ scallop permit that
possesses or lands more than 600 lb (272.2 kg) of scallops; any vessel
issued a limited access scallop and LAGC NGOM scallop permit that
possesses or lands more than 200 lb (90.7 kg) of scallops; any vessel
issued a limited access scallop and LAGC IC scallop permit that
possesses or lands more than 40 lb (18.1 kg) of scallops; any vessel
issued a limited access NE multispecies permit subject to the NE
multispecies DAS program requirements that possesses or lands regulated
NE multispecies, except as provided in Sec. Sec. 648.10(h)(9)(ii),
648.17, and 648.89; any vessel issued a limited access monkfish permit
subject to the monkfish DAS program and call-in requirement that
possesses or lands monkfish above the incidental catch trip limits
specified in Sec. 648.94(c); and any vessel issued a limited access
red crab permit subject to the red crab DAS program and call-in
requirement that possesses or lands red
[[Page 19941]]
crab above the incidental catch trip limits specified in Sec.
648.263(b)(1) shall be deemed to be in its respective DAS program for
purposes of counting DAS and will be charged DAS from its time of
sailing to landing, regardless of whether the vessel's owner or
authorized representative provides adequate notification as required by
paragraphs (e) through (h) of this section.
* * * * *
4. In Sec. 648.11, paragraphs (g)(1) and (g)(2)(ii) are revised to
read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(g) * * *
(1) General. Unless otherwise specified, owners, operators, and/or
managers of vessels issued a Federal scallop permit under Sec.
648.4(a)(2), and specified in paragraph (b) of this section, must
comply with this section and are jointly and severally responsible for
their vessel's compliance with this section. To facilitate the
deployment of at-sea observers, all sea scallop vessels issued limited
access permits fishing in open areas or Sea Scallop Access Areas, and
LAGC IFQ vessels fishing under the Sea Scallop Access Area program
specified in Sec. 648.60, are required to comply with the additional
notification requirements specified in paragraph (g)(2) of this
section. When NMFS notifies the vessel owner, operator, and/or manager
of any requirement to carry an observer on a specified trip in either
an Access Area or Open Area as specified in paragraph (g)(3) of this
section, the vessel may not fish for, take, retain, possess, or land
any scallops without carrying an observer. Vessels may only embark on a
scallop trip in open areas or Access Areas without an observer if the
vessel owner, operator, and/or manager has been notified that the
vessel has received a waiver of the observer requirement for that trip
pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.
(2) * * *
(ii) LAGC IFQ vessels. LAGC IFQ vessel owners, operators, or
managers must notify the NMFS/NEFOP by telephone by 0001 hr of the
Thursday preceding the week (Sunday through Saturday) that they intend
to start a scallop trip in an access area. If selected, up to two Sea
Scallop Access Area trips that start during the specified week (Sunday
through Saturday) can be selected to be covered by an observer. NMFS/
NEFOP must be notified by the owner, operator, or vessel manager of any
trip plan changes at least 48 hr prior to vessel departure.
* * * * *
5. In Sec. 648.14, paragraphs (i)(1)(ii), (i)(1)(iii)(A)(1)(iii),
(i)(1)(iii)(A)(2)(iii), (i)(1)(iii)(A)(3) introductory text,
(i)(4)(i)(A), (i)(4)(ii)(B), and (i)(4)(iii)(B) are revised, paragraph
(i)(2)(viii) is added, and paragraph (i)(3)(iii)(E) is removed as
follows:
Sec. 648.14 Prohibitions.
* * * * *
(i) * * *
(1) * * *
(ii) Gear and crew requirements. Have a shucking or sorting machine
on board a vessel while in possession of more than 600 lb (272.2 kg) of
shucked scallops, unless that vessel has not been issued a scallop
permit and fishes exclusively in State waters.
(iii) * * *
(A) * * *
(1) * * *
(iii) The scallops were harvested by a vessel that has been issued
and carries on board an IFQ scallop permit and is properly declared
into the IFQ scallop fishery or is properly declared into the NE
multispecies or Atlantic surfclam or quahog fishery and is not fishing
in a sea scallop access area.
* * * * *
(2) * * *
(iii) The scallops were harvested by a vessel that has been issued
and carries on board an IFQ scallop permit issued pursuant to Sec.
648.4(a)(2)(ii)(A), is fishing outside of the NGOM scallop management
area, and is properly declared into the general category scallop
fishery or is properly declared into the NE multispecies or Atlantic
surfclam or quahog fishery and is not fishing in a sea scallop access
area.
* * * * *
(3) In excess of 600 lb (272.2 kg) of shucked scallops at any time,
50 bu (17.6 hL) of in-shell scallops per trip South of 42[deg]20[min]
N. Lat. and shoreward of the VMS Demarcation Line, or 75 bu (26.4 hL)
of in-shell scallops per trip North of 42[deg]20[min] N. Lat and
shoreward of the VMS demarcation line, or 100 bu (35.2 hL) in-shell
scallops seaward of the VMS Demarcation Line, unless:
* * * * *
(2) * * *
(viii) Fish for scallops in, or possess scallops or land scallops
from, the yellowtail flounder accountability measure closed areas
specified in Sec. 648.64 during the period specified in the notice
announcing the closure and based on the closure table specified in
Sec. 648.64 .
* * * * *
(4) * * *
(i) * * *
(A) Fish for or land per trip, or possess at any time, in excess of
600 lb (272.2 kg) of shucked, or 75 bu (26.4 hL) of in-shell scallops
per trip, or, or 100 bu (35.2 hL) in-shell scallops seaward of the VMS
Demarcation Line, 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).
* * * * *
(ii) * * *
(B) Have an IFQ allocation on an IFQ scallop vessel of more than
2.5 percent of the total IFQ scallop TAC as specified in Sec.
648.53(a)(5).
* * * * *
(iii) * * *
(B) Apply for an IFQ transfer that will result in the receiving
vessel having an IFQ allocation in excess of 2.5 percent of the total
IFQ scallop TAC.
* * * * *
6. In Sec. 648.51, paragraphs (d)(1) and (e) introductory text are
revised to read as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
(d) * * *
(1) Shucking machines are prohibited on all limited access vessels
fishing under the scallop DAS program, or any vessel in possession of
more than 600 lb (272.2 kg) of scallops, unless the vessel has not been
issued a limited access scallop permit and fishes exclusively in State
waters.
* * * * *
(e) Small dredge program restrictions. Any vessel owner whose
vessel is assigned to either the part-time or Occasional category may
request, in the application for the vessel's annual permit, to be
placed in one category higher. Vessel owners making such request may be
placed in the appropriate higher category for the entire year, if they
agree to comply with the following restrictions, in addition to, and
notwithstanding other restrictions of this part, when fishing under the
DAS program described in Sec. 648.53:
* * * * *
7. In Sec. 648.52, paragraph (a) is revised 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), or on a properly
declared
[[Page 19942]]
NE multispecies, surfclam, or ocean quahog trip and not fishing in a
scallop access area, 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 600 lb
(272.2 kg) of shucked scallops, or possess more than 75 bu (26.4 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, or on a
properly declared NE multispecies, surfclam, or ocean quahog trip and
not fishing in a scallop access area.
* * * * *
8. In Sec. 648.53,
a. The section heading and paragraphs (a), (b) introductory text,
(b)(1), (b)(4), (c), (d), (g), (h)(2)(iii), (h)(3)(i)(A), (h)(3)(i)(B),
(h)(3)(i)(C), (h)(4) introductory text, (h)(5)(ii), (h)(5)(iii), and
(h)(5)(iv) are revised,
b. Paragraphs (h)(2)(v), and (h)(2)(vi) are added; and
c. Paragraphs (a)(5), (a)(6), and (a)(9), (b)(2), and (b)(4)(i) are
removed and reserved
The revisions and additions read as follows:
Sec. 648.53 Acceptable biological catch (ABC), annual catch limits
(ACL), annual catch targets (ACT), DAS allocations, and individual
fishing quotas.
(a) Scallop fishery ABC. The ABC for the scallop fishery shall be
established through the framework adjustment process specified in Sec.
648.55 and is equal to the overall scallop fishery ACL. The ABC/ACL
shall be divided as sub-ACLs between limited access vessels, limited
access vessels that are fishing under a limited access general category
permit, and limited access general category vessels as specified in
paragraphs (a)(3) and (a)(4) of this section, after deducting the
scallop incidental catch target TAC specified in paragraph (a)(2) of
this section, observer set-aside specified in paragraph (g)(1) of this
section, and research set-aside specified in Sec. 648.56(d).
(1) ABC/ACL for fishing years 2011 through 2013 shall be:
(i) 2011. To be determined.
(ii) 2012. To be determined.
(iii) 2013. To be determined.
(2) Scallop incidental catch target TAC. The incidental catch
target TAC for vessels with incidental catch scallop permits is to be
determined for fishing years 2011, 2012, and 2013.
(3) Limited access fleet sub-ACL and ACT. The limited access
scallop fishery shall be allocated 94.5 percent of the ACL specified in
paragraph (a)(1) of this section, after deducting incidental catch,
observer set-aside, and research set-aside, as specified in this
paragraph (a). ACT for the limited access scallop fishery shall be
established through the framework adjustment process described in Sec.
648.55. DAS specified in paragraph (b) of this section shall be based
on the ACTs specified in paragraph (a)(3)(ii) of this section.
(i) The limited access fishery sub-ACLs for the 2011 through 2013
fishing years are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(ii) The limited access fishery ACTs for the 2011 through 2013
fishing years are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(4) LAGC fleet sub-ACL. The sub-ACL for the LAGC IFQ fishery shall
be equal to 5.5 percent of the ACL specified in paragraph (a)(1) of
this section, after deducting incidental catch, observer set-aside, and
research set-aside, as specified in this paragraph (a). The LAGC IFQ
fishery ACT shall be equal to the LAGC IFQ fishery's ACL. The ACL for
the LAGC IFQ fishery for vessels issued only a LAGC IFQ scallop permit
shall be equal to 5 percent of the ACL specified in paragraph (a)(1) of
this section, after deducting incidental catch, observer set-aside, and
research set-aside, as specified in this paragraph (a). The ACL for the
LAGC IFQ fishery for vessels issued both a LAGC IFQ scallop permit and
a limited access scallop permit shall be 0.5 percent of the ACL
specified in paragraph (a)(1) of this section, after deducting
incidental catch, observer set-aside, and research set-aside, as
specified in this paragraph (a).
(i) The ACLs for the 2011 through 2013 fishing years for LAGC IFQ
vessels without a limited access scallop permit are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(ii) The ACLs for the 2011 through 2013 fishing years for vessels
issued both a LAGC and a limited access scallop permit are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(b) DAS allocations. DAS allocations for limited access scallop
trips 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 ACT specified in paragraph (a)(3)(ii) of this
section. A vessel's DAS, shall be determined and specified in paragraph
(b)(4) of this section by dividing the total DAS specified in the
framework adjustment by the LPUE specified in paragraph (b)(1) of this
section, then dividing by the total number of vessels in the fleet.
(1) Landings per unit effort (LPUE). LPUE is an estimate of the
average amount of scallops, in pounds, that the limited access scallop
fleet lands per DAS fished. The estimated LPUE is the average LPUE for
all limited access scallop vessels fishing under DAS, and shall be used
to calculate DAS specified in paragraph (b)(4) of this section, the DAS
reduction for the AM specified in paragraph (b)(4)(ii) of this section,
and the observer set-aside DAS allocation specified in paragraph (g)(1)
of this section. LPUE shall be:
(i) 2011. To be determined.
(ii) 2012. To be determined.
(iii) 2013. To be determined.
* * * * *
(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, excluding carryover DAS in
accordance with paragraph (d) of this section. DAS allocations shall be
determined by distributing the portion of ACT specified in paragraph
(a)(3)(ii), as reduced by access area allocations, as specified in
Sec. 648.59, and dividing that among vessels in the form of DAS
calculated by applying estimates of open area LPUE specified in
paragraph (b)(1) of this section. Part-time and occasional scallop
vessels shall be equal to 40 percent and 8.33 percent of the full-time
DAS allocations, respectively. The annual open area DAS allocations for
each category of vessel for the fishing years indicated are as follows:
------------------------------------------------------------------------
DAS category 2010
------------------------------------------------------------------------
Full-time.................................................. 38
Part-time.................................................. 15
Occasional................................................. 3
------------------------------------------------------------------------
(i) [Reserved]
(ii) Accountability measures (AM). Unless the limited access AM
exception is implemented accordance with the provision specified in
paragraph (b)(4)(iii) of this section, if the ACL specified in
paragraph (a)(3)(i) of this section is exceeded for the applicable
fishing year, the DAS specified in paragraph (b)(4) of this section for
each
[[Page 19943]]
limited access vessel shall be reduced by an amount equal to the amount
of landings in excess of the ACL divided by the applicable LPUE for the
fishing year in which the AM will apply as specified in paragraph
(b)(1) of this section, then divided by the number of scallop vessels
eligible to be issued a full-time limited access scallop permit. For
example, assuming a 300,000-lb (136-mt) overage of the ACL in 2011, an
open area LPUE of 2,500 lb (1.13 mt) per DAS in 2012, and 313 full-time
vessels, each full time vessel's DAS would be reduced by 0.38 DAS
(300,000 lb (136 mt)/2,500 lb (1.13 mt) per DAS = 120 lb (0.05 mt) per
DAS/313 vessels = 0.38 DAS per vessel). Deductions for part-time and
occasional scallop vessels shall be equal to 40 percent and 8 percent
of the full-time DAS deduction, respectively, as calculated pursuant to
this paragraph (b)(4)(ii). The AM shall take effect in the fishing year
following the fishing year in which the overage occurred. For example,
landings in excess of the ACL in fishing year 2011 would result in the
DAS reduction AM in fishing year 2012. If the AM takes effect, and a
limited access vessel uses more open area DAS in the fishing year in
which the AM is applied, the vessel shall have the DAS used in excess
of the allocation after applying the AM deducted from its open area DAS
allocation in the subsequent fishing year. For example, a vessel
initially allocated 32 DAS in 2011 uses all 32 DAS prior to application
of the AM. If, after application of the AM, the vessel's DAS allocation
is reduced to 31 DAS, the vessel's DAS in 2012 would be reduced by 1
DAS.
(iii) Limited access AM exception--(A) If it is determined by NMFS
in accordance with paragraph (b)(4)(ii) of this section, that the
fishing mortality rate associated with the limited access fleet's
landings in a fishing year is less than 0.24, the AM specified in
paragraph (b)(4)(ii) of this section shall not take effect. The fishing
mortality rate of 0.24 is the fishing mortality that is one standard
deviation below the fishing mortality rate for the scallop fishery ACL,
currently estimated at 0.28.
(B) If the limited access AM exception described in this paragraph
(b)(4)(iii) is invoked, the Regional Administrator shall increase the
sub-ACL for the LAGC IFQ fleet specified in paragraph (a)(4)(i) of this
section by the amount of scallops equal to 5.5 percent of the amount of
scallop landings in excess of the limited access fleet's ACL specified
in paragraph (a)(3)(i) of this section. The applicable sub-ACL for the
limited access fleet specified in paragraph (a)(3)(i) of this section
shall be reduced by the amount equivalent to the increase in the sub-
ACL for LAGC IFQ specified pursuant to this paragraph (b)(4)(iii)(B).
For example, if the limited access fishery ACL is exceeded by 1 million
lb (453.6 mt), but the exception is invoked, the LAGC sub-ACL shall be
increased, and the limited access fleet's ACL decreased, by 55,000 lb
(24.9 mt) (1 million lb (453.6 mt) x 5.5% (0.055) = 55,000 lb (24.9
mt). The ACL adjustments in this paragraph (b)(4)(iii)(B) shall take
effect in the fishing year immediately following the fishing year in
which the overage of the ACL occurred. For example, for an ACL overage
in the 2011 fishing year, the adjustments due to implementation of the
exception would be implemented in the 2012 fishing year.
(iv) Limited access fleet AM and exception provision timing. The
Regional Administrator shall determine whether the limited access fleet
exceeded its ACL specified in paragraph (a)(3)(i) of this section by
July of the fishing year following the year for which landings are
being evaluated. On or about July 1, the Regional Administrator shall
notify the New England Fishery Management Council (Council) of the
determination of whether or not the ACL for the limited access fleet
was exceeded, and the amount of landings in excess of the ACL. Upon
this notification, the Scallop Plan Development Team (PDT) shall
evaluate the overage and determine if the fishing mortality rate
associated with total landings by the limited access scallop fleet is
less than 0.24. On or about September 1 of each year, the Scallop PDT
shall notify the Council of its determination, and the Council, on or
about September 30, shall make a recommendation, based on the Scallop
PDT findings, concerning whether to invoke the limited access AM
exception. If NMFS concurs with the Scallop PDT recommendation to
invoke the limited access AM exception, in accordance with the APA, the
limited access AM shall not be implemented. If NMFS does not concur, in
accordance with the APA, the limited access AM shall be implemented as
soon as possible after September 30 each year.
* * * * *
(c) Adjustments in annual DAS allocations. Annual DAS allocations
shall be established for 3 fishing years through biennial framework
adjustments as specified in Sec. 648.55. If a biennial framework
action is not undertaken by the Council and implemented by NMFS before
the beginning of the third year of each biennial adjustment, the third-
year measures specified in the biennial framework adjustment shall
remain in effect for the next fishing year. If a new biennial or other
framework adjustment is not implemented by NMFS by the conclusion of
the third year, the management measures from that third year would
remain in place until a new action is implemented. The Council may also
recommend adjustments to DAS allocations or other measures through a
framework adjustment at any time.
(d) End-of-year carry-over for open area DAS. With the exception of
vessels that held a Confirmation of Permit History as described in
Sec. 648.4(a)(2)(i)(J) for the entire fishing year preceding the
carry-over year, limited access vessels that have unused Open Area DAS
on the last day of February of any year may carry over a maximum of 10
DAS, not to exceed the total Open Area DAS allocation by permit
category, into the next year. DAS carried over into the next fishing
year may only be used in Open Areas. Carry-over DAS are accounted for
in setting the ACT for the limited access fleet, as specified in
paragraph (a)(3)(ii) of this section. Therefore, if carry-over DAS
result or contribute to an overage of the ACL, the limited access fleet
AM specified in paragraph (b)(4)(ii) of this section would still apply,
provided the AM exception specified in paragraph (b)(4)(iii) of this
section is not invoked.
* * * * *
(g) Set-asides for observer coverage. (1) To help defray the cost
of carrying an observer, 1 percent of the ABC/ACL specified in
paragraph (a)(1) of this section shall be set aside to be used by
vessels that are assigned to take an at-sea observer on a trip. The
total TAC for observer set aside is 273 mt in fishing year 2011, 289 mt
in fishing year 2012, and 287 mt in fishing year 2013. This 1 percent
is divided proportionally into access areas and open areas, as
specified in Sec. 648.60(d)(1) and (g)(2), respectively.
(2) DAS set-aside for observer coverage. For vessels assigned to
take an at-sea observer on a trip other than an Access Area Program
trip, the open-area observer set-aside TACs are 139 mt, 161 mt, and 136
mt for fishing years 2011, 2012, and 2013, respectively. The DAS set-
aside shall be determined by dividing these amounts by the LPUE
specified in paragraph (b)(1)(i) of this section for each specific
fishing year. The DAS set-aside for observer coverage is 137 DAS for
the 2011 fishing year, 133 DAS for the 2012 fishing year, and 112 DAS
for the 2013 fishing year. A vessel carrying an observer shall be
compensated with reduced DAS accrual
[[Page 19944]]
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 if set-
aside is not available.
(h) * * *
(2) * * *
(iii) Contribution percentage. A vessel's contribution percentage
shall be determined by dividing its contribution factor by the sum of
the contribution factors of all vessels issued an IFQ scallop permit.
Continuing the example in paragraph (h)(1)(ii)(D) of this section, the
sum of the contribution factors for 380 IFQ scallop vessels is
estimated, for the purpose of this example, to be 4.18 million lb
(1,896 mt). The contribution percentage of the above vessel is 1.45
percent (60,687 lb (27,527 kg)/4.18 million lb (1,896 mt) = 1.45
percent). The contribution percentage for a vessel that is issued an
IFQ scallop permit and that has permanently transferred all of its IFQ
to another IFQ vessel, as specified in paragraph (h)(5)(ii) of this
section, shall be equal to 0 percent.
* * * * *
(v) End-of-year carry-over for IFQ. (A) With the exception of
vessels that held a confirmation of permit history as described in
Sec. 648.4(a)(2)(ii)(L) for the entire fishing year preceding the
carry-over year, LAGC IFQ vessels that have unused IFQ on the last day
of February of any year may carry over up to 15 percent of the vessel's
original IFQ and transferred (either temporary or permanent) IFQ into
the next fishing year. For example, a vessel with a 10,000 lb (4,536
kg) IFQ and 5,000 lb (2,268 kg) leased IFQ may carry over 2,250 lb
(1,020 kg) of IFQ (i.e, 15 percent of 15,000 lb (6,804 kg) into the
next fishing year if it landed 12,750 lb (5,783 kg) (i.e., 85 percent
of 15,000 lb (6,804 kg) of scallops or less in the preceding fishing
year. Using the same IFQ values from the example, if the vessel landed
14,000 lb (6,350 kg) of scallops, it could carry over 1,000 lb (454 kg)
of scallops into the next fishing year.
(B) For accounting purposes, the combined total of all vessels' IFQ
carry-over shall be added to the LAGC IFQ fleet's applicable ACL for
the carry-over year. Any IFQ carried over that is landed in the carry-
over fishing year shall be counted against the ACL specified in
paragraph (a)(4)(i) of this section, as increased by the total carry-
over for all LAGC IFQ vessels, as specified in this paragraph
(h)(2)(v)(B).
(vi) AM for the IFQ fleet. If a vessel exceeds its IFQ, including
all temporarily and permanently transferred IFQ, in a fishing year, the
amount of landings in excess of the vessel's IFQ, including all
temporarily and permanently transferred IFQ, shall be deducted from the
vessel's IFQ as soon as possible in the fishing year following the
fishing year in which the vessel exceeded its IFQ. If the AM takes
effect, and an IFQ vessel lands more scallops than allocated after the
AM is applied, the vessel shall have the IFQ landed in excess of its
IFQ after applying the AM deducted from its IFQ in the subsequent
fishing year. For example, a vessel with an initial IFQ of 1,000 lb
(453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in 2010, and
is initially allocated 1,300 lb (589.7 kg) of scallops in 2011. That
vessel would be subject to an IFQ reduction equal to 200 lb (90.7 kg)
to account for the 200 lb (90.7 kg) overage in 2010. If that vessel
lands 1,300 lb (589.7 kg) of scallops in 2011 prior to application of
the 200 lb (90.7 kg) deduction, the vessel would be subject to a
deduction of 200 lb (90.7 kg) in 2012. For vessels involved in a
temporary IFQ transfer, the entire deduction shall apply to the vessel
that acquired IFQ, not the transferring vessel. A vessel that has an
overage that exceeds its IFQ in the subsequent fishing year shall be
subject to an IFQ reduction in subsequent years until the overage is
paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in
each year over a 3-year period, that harvests 2,500 lb (1,134 kg) of
scallops the first year, would have a 1,500-lb (680-kg) IFQ deduction,
so that it would have zero pounds to harvest in year 2, and 500 lb (227
kg) to harvest in year 3. A vessel that has a ``negative'' IFQ balance,
as described in the example, could lease or transfer IFQ to balance the
IFQ, provided there are no sanctions or other enforcement penalties
that would prohibit the vessel from acquiring IFQ.
(3) * * *
(i) * * *
(A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C)
of this section, a vessel issued an IFQ scallop permit or confirmation
of permit history shall not be issued more than 2.5 percent of the TAC
allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) of this section.
(B) A vessel may be initially issued more than 2.5 percent of the
TAC allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) of this section, if the initial determination of
its contribution factor specified in accordance with Sec.
648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section, results in
an IFQ that exceeds 2.5 percent of the TAC allocated to the IFQ scallop
vessels as described in paragraphs (a)(3)(ii) and (iii) of this
section. A vessel that is allocated an IFQ that exceeds 2.5 percent of
the TAC allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) of this section, in accordance with this paragraph
(h)(3)(i)(B), may not receive IFQ through an IFQ transfer, as specified
in paragraph (h)(5) of this section.
(C) A vessel initially issued a 2008 IFQ scallop permit or
confirmation of permit history, or that was issued or renewed a limited
access scallop permit or confirmation of permit history for a vessel in
2009 and thereafter, in compliance with the ownership restrictions in
paragraph (h)(3)(i)(A) of this section, is eligible to renew such
permit(s) and/or confirmation(s) of permit history, regardless of
whether the renewal of the permit or confirmations of permit history
will result in the 2.5 percent IFQ cap restriction being exceeded.
* * * * *
(4) IFQ cost recovery. A fee, not to exceed 3 percent of the ex-
vessel value of IFQ scallops harvested, shall be collected to recover
the costs associated with management, data collection, and enforcement
of the IFQ program. The owner of a vessel issued an IFQ scallop permit
and subject to the IFQ program specified in this paragraph (h), shall
be responsible for paying the fee as specified by NMFS in this
paragraph (h)(4). An IFQ scallop vessel shall incur a cost recovery fee
liability for every landing of IFQ scallops. The IFQ scallop
[[Page 19945]]
permit holder shall be responsible for collecting the fee for all of
its vessels' IFQ scallop landings, and shall be responsible for
submitting this payment to NMFS once per year. The cost recovery fee
for all landings, regardless of ownership changes throughout the
fishing year, shall be the responsibility of the official owner of the
vessel, as recorded in the vessel permit or confirmation of permit
history file, at the time the bill is sent.
* * * * *
(5) * * *
(ii) Permanent 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 transfer IFQ
permanently to or from another IFQ scallop vessel. Any such transfer
cannot be limited in duration and is permanent, unless the IFQ is
subsequently transferred to another IFQ scallop vessel, other than the
originating IFQ scallop vessel, in a subsequent fishing year. If a
vessel permanently transfers its entire IFQ to another vessel, the LAGC
IFQ scallop permit shall remain valid on the transferring vessel,
unless the owner of the transferring vessel cancels the IFQ scallop
permit. Such cancellation shall be considered voluntary relinquishment
of the IFQ permit, and the vessel shall be ineligible for an IFQ
scallop permit unless it replaces another vessel that was issued an IFQ
scallop permit. The Regional Administrator has final approval authority
for all 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. Requests for IFQ transfers
cannot be less than 100 lb (46.4 kg), unless that value reflects the
total IFQ amount remaining on the transferor's vessel, or the entire
IFQ allocation. 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 2.5 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 to
or receive IFQ from another IFQ scallop vessel.
(iv) Application for an IFQ transfer. The owner of a vessel
applying for a transfer of IFQ must submit a completed application form
obtained from the Regional Administrator. The application must be
signed by both parties (transferor and transferee) involved in the
transfer of the IFQ, and must be submitted to the NMFS Northeast
Regional Office at least 30 days before the date on which the
applicants desire to have the IFQ effective on the receiving vessel.
The Regional Administrator shall notify the applicants of any
deficiency in the application pursuant to this section. Applications
may be submitted at any time during the scallop fishing year, provided
the vessel transferring the IFQ to another vessel has not utilized any
of its own IFQ in that fishing year. Applications for temporary
transfers received less than 45 days prior to the end of the fishing
year may not be processed in time for a vessel to utilize the
transferred IFQ prior to the expiration of the fishing year for which
the IFQ transfer, if approved, would be effective.
(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 transfer IFQ
must indicate the amount, in pounds, of the IFQ allocation transfer,
which may not be less than 100 lb (45 kg), unless that value reflects
the total IFQ amount remaining on the transferor's vessel, or the
entire IFQ allocation. Information obtained from the transfer
application will be held confidential, and will be used only in
summarized form for management of the fishery.
(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 2.5
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 the regulations in 50 CFR 648. 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. An application that was denied can be
resubmitted if the discrepancy(ies) that resulted in denial are
resolved.
8. Section 648.55 is revised to read as follows:
Sec. 648.55 Framework adjustments to management measures.
(a) At least Biennially, the Council shall assess the status of the
scallop resource, determine the adequacy of the management measures to
achieve scallop resource conservation objectives, and initiate a
framework adjustment to establish scallop fishery management measures
for the 2-year period beginning with the scallop fishing year
immediately following the year in which the action is initiated. The
PDT shall prepare a Stock Assessment and Fishery Evaluation (SAFE)
Report that provides the information and analysis needed to evaluate
potential management adjustments. The framework adjustment shall
establish OFL, ABC, ACL, ACT, DAS allocations, rotational area
management programs, percentage allocations for limited access general
category vessels in Sea Scallop Access Areas, scallop possession
limits, AMs, and other measures to achieve FMP objectives and limit
fishing mortality. The Council's development of rotational area
management adjustments shall take into account at least the following
factors: General rotation policy; boundaries and distribution of
rotational closures; number of closures; minimum closure size; maximum
closure extent; enforceability of rotational closed and re-opened
areas; monitoring through resource surveys; and re-opening criteria.
Rotational
[[Page 19946]]
Closures should be considered where projected annual change in scallop
biomass is greater than 30 percent. Areas should be considered for Sea
Scallop Access Areas where the projected annual change in scallop
biomass is less than 15 percent.
(b) The preparation of the SAFE Report shall begin on or about June
1 of the year preceding the fishing year in which measures will be
adjusted.
(c) OFL, ABC, ACL, ACT, and AMs. The Council shall specify OFL,
ABC, ACL, ACT, and AMs, as applicable, for each year covered under the
biennial or other framework adjustment.
(1) OFL. OFL shall be based on an updated scallop resource and
fishery assessment provided by either the Scallop PDT or a formal stock
assessment. OFL shall include all sources of scallop mortality and
shall include an upward adjustment to account for catch of scallops in
State waters by vessels not issued Federal scallop permits. The fishing
mortality rate (F) associated with OFL shall be the threshold F, above
which, overfishing is occurring in the scallop fishery. The F
associated with OFL shall be used to derive specifications for ABC,
ACL, and ACT, as specified in paragraphs (a)(2) through (5) of this
section.
(2) The specification of ABC, ACL, and ACT shall be based upon the
following overfishing definition: The F shall be set so that in access
areas, averaged for all years combined over the period of time that the
area is closed and open to scallop fishing as an access area, it does
not exceed the established F threshold for the scallop fishery; in open
areas it shall not exceed the F threshold for the scallop fishery; and
for access and open areas combined, it is set at a level that has a 75-
percent probability of remaining below the F associated with ABC, as
specified in paragraph (c)(2) of this section, taking into account all
sources of fishing mortality in the limited access and LAGC fleets of
the scallop fishery.
(3) ABC. The Council shall specify ABC for each year covered under
the biennial or other framework adjustment. ABC shall be the catch that
has an associated F that has a 75-percent probability of remaining
below the F associated with OFL. ABC shall be equal to ACL for the
scallop fishery.
(4) Deductions from ABC. Incidental catch, equal to the value
established in Sec. 648.53(a)(2), shall be removed from ABC/ACL. One
percent of ABC/ACL shall be removed from ABC/ACL for observer set-
aside. Scallop catch equal to the value specified in Sec. 648.56(d)
shall be removed from ABC/ACL for research set-aside. These deductions
for incidental catch, observer set-aside, and research set-aside, shall
be made prior to establishing ACLs for the limited access and LAGC
fleets, as specified in paragraph (c)(4) of this section.
(5) Sub-ACLs for the limited access and LAGC fleets. The Council
shall specify sub-ACLs for the limited access and LAGC fleets for each
year covered under the biennial or other framework adjustment. After
applying the deductions as specified in paragraph (a)(4) of this
section, a sub-ACL equal to 94.5 percent of the ABC/ACL shall be
allocated to the limited access fleet. After applying the deductions as
specified in paragraph (a)(4) of this section, a sub-ACL of 5.5 percent
of ABC/ACL shall be allocated to the LAGC fleet, so that 5 percent of
ABC/ACL is allocated to the LAGC fleet of vessels that do not also have
a limited access scallop permit, and 0.5 percent of the ABC/ACL is
allocated to the LAGC fleet of vessels that have limited access scallop
permits. This specification of sub-ACLs shall not account for catch
reductions associated with the application of AMs or adjustment of the
sub-ACL as a result of the disclaimer provision as specified in Sec.
648.53(b)(4)(iii).
(6) ACT for the limited access and LAGC fleets. The Council shall
specify ACTs for the limited access and LAGC fleets for each year
covered under the biennial or other framework adjustment. The ACT for
the limited access fishery shall be set at a level that has an
associated F with a 75-percent probability of remaining below the F
associated with ABC/ACL. The LAGC ACT shall be set equal to the LAGC
sub-ACL as specified in paragraph (a)(5) of this section.
(7) AMs. The Council shall specify AMs for the limited access and
LAGC fleets for each year covered under the biennial or other framework
adjustment. For the limited access scallop fleet, AMs result in a DAS
reduction for each limited access scallop vessel as specified in Sec.
648.53(b)(4)(ii). For the LAGC scallop fleet, AMs result in an IFQ
deduction for each vessel issued a LAGC scallop permit as specified in
Sec. 648.53(h)(2)(vi).
(d) Yellowtail flounder sub-ACL. The Council shall specify the
yellowtail flounder sub-ACL allocated to the scallop fishery through
the framework adjustment process specified in Sec. 648.90.
(e) Third-year default management measures. The biennial framework
action shall include default management measures that shall be
effective in the third year unless replaced by the measures included in
the next biennial framework action. If the biennial framework action is
not published in the Federal Register with an effective date on or
before March 1, in accordance with the Administrative Procedure Act,
the third-year measures shall be effective beginning March 1 of each
fishing year until the framework adjustment is implemented, or for the
entire fishing year if the framework adjustment is completed or is not
implemented by NMFS for the third year. The framework action shall
specify the measures necessary to address inconsistencies between
specifications and allocations for the period after March 1 but before
the framework adjustment is implemented for that year. In the case of
third-year measures of a biennial adjustment being implemented, if no
framework adjustment has been implemented by March 1 of the following
year, the measures from the preceding year shall continue to be in
effect until replaced by subsequent action.
(f) After considering the PDT's findings and recommendations, or at
any other time, if the Council determines that adjustments to, or
additional management measures are necessary, it shall develop and
analyze appropriate management actions over the span of at least two
Council meetings. To address interactions between the scallop fishery
and sea turtles and other protected species, such adjustments may
include proactive measures including, but not limited to, the timing of
Sea Scallop Access Area openings, seasonal closures, gear
modifications, increased observer coverage, and additional research.
The Council shall provide the public with advance notice of the
availability of both the proposals and the analyses, and opportunity to
comment on them prior to and at the second Council meeting. The
Council's recommendation on adjustments or additions to management
measures must include measures to prevent overfishing of the available
biomass of scallops and ensure that OY is achieved on a continuing
basis, and must come from one or more of the following categories:
(1) Total allowable catch and DAS changes;
(2) Shell height;
(3) Offloading window reinstatement;
(4) Effort monitoring;
(5) Data reporting;
(6) Trip limits;
(7) Gear restrictions;
(8) Permitting restrictions;
(9) Crew limits;
(10) Small mesh line;
(11) Onboard observers;
[[Page 19947]]
(12) Modifications to the overfishing definition;
(13) VMS Demarcation Line for DAS monitoring;
(14) DAS allocations by gear type;
(15) Temporary leasing of scallop DAS requiring full public
hearings;
(16) Scallop size restrictions, except a minimum size or weight of
individual scallop meats in the catch;
(17) Aquaculture enhancement measures and closures;
(18) Closed areas to increase the size of scallops caught;
(19) Modifications to the opening dates of closed areas;
(20) Size and configuration of rotational management areas;
(21) Controlled access seasons to minimize bycatch and maximize
yield;
(22) Area-specific trip allocations;
(23) TAC specifications and seasons following re-opening;
(24) Limits on number of area closures;
(25) Set-asides for funding research;
(26) Priorities for scallop-related research that is funded by a
TAC or DAS set-aside;
(27) Finfish TACs for controlled access areas;
(28) Finfish possession limits;
(29) Sea sampling frequency;
(30) Area-specific gear limits and specifications;
(31) Modifications to provisions associated with observer set-
asides; observer coverage; observer deployment; observer service
provider; and/or the observer certification regulations;
(32) Specifications for IFQs for limited access general category
vessels;
(33) Revisions to the cost recovery program for IFQs;
(34) Development of general category fishing industry sectors and
fishing cooperatives;
(35) Adjustments to the Northern Gulf of Maine scallop fishery
measures;
(36) VMS requirements;
(37) Increases or decreases in the LAGC possession limit;
(38) Adjustments to aspects of ACL management;
(39) Adjusting EFH closed area management boundaries or other
associated measures; and
(40) Any other management measures currently included in the FMP.
(g) The Council may make recommendations to the Regional
Administrator to implement measures in accordance with the procedures
described in this section to address gear conflict as defined under
Sec. 600.10 of this chapter. In developing such recommendation, the
Council shall define gear management areas, each not to exceed 2,700
mi\2\ (6,993 km\2\), and seek industry comments by referring the matter
to its standing industry advisory committee for gear conflict, or to
any ad hoc industry advisory committee that may be formed. The standing
industry advisory committee or ad hoc committee on gear conflict shall
hold public meetings seeking comments from affected fishers and develop
findings and recommendations on addressing the gear conflict. After
receiving the industry advisory committee findings and recommendations,
or at any other time, the Council shall determine whether it is
necessary to adjust or add management measures to address gear
conflicts and which FMPs must be modified to address such conflicts. If
the Council determines that adjustments or additional measures are
necessary, it shall develop and analyze appropriate management actions
for the relevant FMPs over the span of at least two Council meetings.
The Council shall provide the public with advance notice of the
availability of the recommendation, the appropriate justification and
economic and biological analyses, and opportunity to comment on them
prior to and at the second or final Council meeting before submission
to the Regional Administrator. The Council's recommendation on
adjustments or additions to management measures for gear conflicts must
come from one or more of the following categories:
(1) Monitoring of a radio channel by fishing vessels;
(2) Fixed-gear location reporting and plotting requirements;
(3) Standards of operation when gear conflict occurs;
(4) Fixed-gear marking and setting practices;
(5) Gear restrictions for specific areas (including time and area
closures);
(6) VMS;
(7) Restrictions on the maximum number of fishing vessels or amount
of gear; and
(8) Special permitting conditions.
(h) The measures shall be evaluated and approved by the relevant
committees with oversight authority for the affected FMPs. If there is
disagreement between committees, the Council may return the proposed
framework adjustment to the standing or ad hoc gear conflict committee
for further review and discussion.
(i) Unless otherwise specified, after developing a framework
adjustment and receiving public testimony, the Council shall make a
recommendation to the Regional Administrator. The Council's
recommendation must include supporting rationale and, if management
measures are recommended, an analysis of impacts and a recommendation
to the Regional Administrator on whether to publish the framework
adjustment as a final rule. If the Council recommends that the
framework adjustment should be published as a final rule, the Council
must consider at least the following factors and provide support and
analysis for each factor considered:
(1) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(2) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry,
consistent with the Administrative Procedure Act, in the development of
the Council's recommended management measures;
(3) Whether there is an immediate need to protect the resource or
to impose management measures to resolve gear conflicts; and
(4) Whether there will be a continuing evaluation of management
measures adopted following their promulgation as a final rule.
(j) If the Council's recommendation includes adjustments or
additions to management measures, and if, after reviewing the Council's
recommendation and supporting information:
(1) The Regional Administrator approves the Council's recommended
management measures, the Secretary may, for good cause found pursuant
to the Administrative Procedure Act, waive the requirement for a
proposed rule and opportunity for public comment in the Federal
Register. The Secretary, in doing so, shall publish only the final
rule. Submission of a recommendation by the Council for a final rule
does not affect the Secretary's responsibility to comply with the
Administrative Procedure Act; or
(2) The Regional Administrator approves the Council's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the action shall be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Administrator concurs with the Council
recommendation, the action shall be published as a final rule in the
Federal Register; or
(3) The Regional Administrator does not concur, the Council shall
be notified, in writing, of the reasons for the non-concurrence.
(k) Nothing in this section is meant to derogate from the authority
of the Secretary to take emergency action
[[Page 19948]]
under section 305(c) of the Magnuson-Stevens Act.
9. Section 648.56 is revised to read as follows:
Sec. 648.56 Scallop research.
(a) Annually, the Council and NMFS shall prepare and issue an
announcement of Federal Funding Opportunity (FFO) that identifies
research priorities for projects to be conducted by vessels using
research set-aside as specified in Sec. Sec. 648.53(b)(3) and
648.60(e), provides requirements and instructions for applying for
funding of a proposed RSA project, and specifies the date by which
applications must be received. The FFO shall be published as soon as
possible by NMFS and shall provide the opportunity for applicants to
apply for projects to be awarded for 1 or 2 years by allowing
applicants to apply for RSA funding for the first year, second year, or
both.
(b) Proposals submitted in response to the FFO must include the
following information, as well as any other specific information
required within the FFO: A project summary that includes the project
goals and objectives, the relationship of the proposed research to
scallop research priorities and/or management needs, project design,
participants other than the applicant, funding needs, breakdown of
costs, and the vessel(s) for which authorization is requested to
conduct research activities.
(c) NMFS shall make the final determination as to what proposals
are approved and which vessels are authorized to take scallops in
excess of possession limits, or take additional trips into Open or
Access Areas. NMFS shall provide authorization of such activities to
specific vessels by letter of acknowledgement, letter of authorization,
or Exempted Fishing Permit issued by the Regional Administrator, which
must be kept on board the vessel.
(d) Available RSA allocation shall be 1.25 million lb (567 mt)
annually, which shall be deducted from the ABC/ACL specified in Sec.
648.53(a) prior to setting ACLs for the limited access and LAGC fleets,
as specified in Sec. 648.53(a)(3)(i) and (a)(4)(i), respectively.
Vessels participating in approved RSA projects shall be allocated an
amount of scallop pounds that can be harvested in open areas, and an
amount of pounds that can be harvested in each access area. In addition
to open areas each year, the specific access areas that would have
available RSA shall be specified through the framework process and
identified in Sec. 648.60. In a year in which a framework adjustment
is under review by the Council and/or NMFS, NMFS shall make RSA awards
prior to approval of the framework, if practicable, based on total
scallop pounds needed to fund each research project. Recipients may
begin compensation fishing in open areas prior to approval of the
framework, or wait until NMFS approval of the framework to begin
compensation fishing within approved access areas.
(e) If all RSA TAC is not allocated in a fishing year, and proceeds
from compensation fishing for approved projects fall short of funds
needed to cover a project's budget due to a lower-than-expected scallop
price, unused RSA allocation can be provided to that year's awarded
projects to compensate for the funding shortfall, or to expand a
project, rather than having that RSA go unused. NMFS shall identify the
process for the reallocation of available RSA pounds as part of the FFO
for the RSA program. The FFO shall specify the conditions under which a
project that has been awarded RSA could be provided additional RSA
pounds as supplemental compensation to account for lower-than-expected
scallop price or for expansion of the project, timing of reallocation,
and information submission requirements.
(f) A vessels participating in research may harvest RSA through May
31 of the subsequent fishing year if it, combined with other
participating vessels, if any, is unable to harvest all of the awarded
RSA in the fishing year for which the RSA pounds were awarded.
(g) Vessels conducting research under an approved RSA project may
be exempt from crew restrictions specified in Sec. 648.51, seasonal
closures of access areas specified in Sec. 648.59, and the restriction
on fishing in only one access area during a trip specified in Sec.
648.60(a)(4). The RSA project proposal must list which of these
measures for which an exemption is required. An exemption shall be
provided by Letter of Authorization issued by the Regional
Administrator. RSA compensation fishing trips and combined compensation
and research trips are not eligible for these exemptions.
(h) Upon completion of scallop research projects approved pursuant
to this section and the applicable NOAA grants review process,
researchers must provide the Council and NMFS with a report of research
findings, which must include at least the following: A detailed
description of methods of data collection and analysis; a discussion of
results and any relevant conclusions presented in a format that is
understandable to a non-technical audience; and a detailed final
accounting of all funds used to conduct the sea scallop research.
10. In Sec. 648.60, paragraph (a)(5)(iii) is removed and reserved,
and paragraphs (a)(9), (c)(3), and (e)(1) are revised to read as
follows:
Sec. 648.60 Sea scallop area access program requirements.
(a) * * *
(9) Reporting. The owner or operator must submit reports through
the VMS, as specified in Sec. 648.10(f)(4)(i).
* * * * *
(c) * * *
(3) The vessel owner/operator must report the termination of the
trip prior to entering the access area if the trip is terminated while
transiting to the area, or prior to leaving the Sea Scallop Access Area
if the trip is terminated after entering the access area, by VMS e-mail
messaging, with the following information: Vessel name, vessel owner,
vessel operator, time of trip termination, reason for terminating the
trip (for NMFS recordkeeping purposes), expected date and time of
return to port, and amount of scallops on board in pounds;
* * * * *
(e) * * *
(1) Research set-aside may be harvested in an access area that is
open in the applicable fishing year, as specified in Sec. 648.59.
* * * * *
11. Section 648.61 is revised to read as follows:
Sec. 648.61 EFH closed areas.
(a) No vessel fishing for scallops, or person on a vessel fishing
for scallops, may enter, fish in, or be in the EFH Closure Areas
described in paragraphs (a)(1) through (6) of this section, unless
otherwise specified. A chart depicting these areas is available from
the Regional Administrator upon request.
(1) Western GOM Habitat Closure Area. The restrictions specified in
paragraph (a) of this section apply to the Western GOM Habitat Closure
Area, which is the area bounded by straight lines connecting the
following points in the order stated:
Western GOM Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
WGM4.......................................... 43[deg]15' 70[deg]15'
WGM1.......................................... 42[deg]15' 70[deg]15'
WGM5.......................................... 42[deg]15' 70[deg]00'
WGM6.......................................... 43[deg]15' 70[deg]00'
WGM4.......................................... 43[deg]15' 70[deg]15'
------------------------------------------------------------------------
(2) Cashes Ledge Habitat Closure Area. The restrictions specified
in
[[Page 19949]]
paragraph (a) of this section apply to the Cashes Ledge Habitat Closure
Area, which is the area bounded by straight lines connecting the
following points in the order stated:
Cashes Ledge Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CLH1.......................................... 43[deg]01' 69[deg]03'
CLH2.......................................... 43[deg]01' 68[deg]52'
CLH3.......................................... 42[deg]45' 68[deg]52'
CLH4.......................................... 42[deg]45' 69[deg]03'
CLH1.......................................... 43[deg]01' 69[deg]03'
------------------------------------------------------------------------
(3) Jeffrey's Bank Habitat Closure Area. The restrictions
specified in paragraph (a) of this section apply to the Jeffrey's Bank
Habitat Closure Area, which is the area bounded by straight lines
connecting the following points in the order stated:
Jeffrey's Bank Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
JB1........................................... 43[deg]40' 68[deg]50'
JB2........................................... 43[deg]40' 68[deg]40'
JB3........................................... 43[deg]20' 68[deg]40'
JB4........................................... 43[deg]20' 68[deg]50'
JB1........................................... 43[deg]40' 68[deg]50'
------------------------------------------------------------------------
(4) Closed Area I Habitat Closure Areas. The restrictions
specified in paragraph (a) of this section apply to the Closed Area I
Habitat Closure Areas, Closed Area I--North and Closed Area I--South,
which are the areas bounded by straight lines connecting the following
points in the order stated:
Closed Area I--North Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CI1........................................... 41[deg]30' 69[deg]23'
CI4........................................... 41[deg]30' 68[deg]30'
CIH1.......................................... 41[deg]26' 68[deg]30'
CIH2.......................................... 41[deg]04' 69[deg]01'
CI1........................................... 41[deg]30' 69[deg]23'
------------------------------------------------------------------------
Closed Area I--South Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CIH3.......................................... 40[deg]55' 68[deg]53'
CIH4.......................................... 40[deg]58' 68[deg]30'
CI3........................................... 40[deg]45' 68[deg]30'
CI2........................................... 40[deg]45' 68[deg]45'
CIH3.......................................... 40[deg]55' 68[deg]53'
------------------------------------------------------------------------
(5) Closed Area II Habitat Closure Area. The restrictions
specified in this paragraph (a) apply to the Closed Area II Habitat
Closure Area (also referred to as the Habitat Area of Particular
Concern), which is the area bounded by straight lines connecting the
following points in the order stated:
Closed Area II Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CIIH1......................................... 42[deg]10' 67[deg]20'
CIIH2......................................... 42[deg]10' 67[deg]9.3'
CIIH3......................................... 42[deg]00' 67[deg]0.5'
CIIH4......................................... 42[deg]00' 67[deg]10'
CIIH5......................................... 41[deg]50' 67[deg]10'
CIIH6......................................... 41[deg]50' 67[deg]20'
CIIH1......................................... 42[deg]10' 67[deg]20'
------------------------------------------------------------------------
(6) Nantucket Lightship Habitat Closure Area. The restrictions
specified in paragraph (a) of this section apply to the Nantucket
Lightship Habitat Closure Area, which is the area bounded by straight
lines connecting the following points in the order stated:
Nantucket Lightship Habitat Closed Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
NLH1.......................................... 41[deg]10' 70[deg]00'
NLH2.......................................... 41[deg]10' 69[deg]50'
NLH3.......................................... 40[deg]50' 69[deg]30'
NLH4.......................................... 40[deg]20' 69[deg]30'
NLH5.......................................... 40[deg]20' 70[deg]00'
NLH1.......................................... 41[deg]10' 70[deg]00'
------------------------------------------------------------------------
(b) Transiting. A vessel may transit the EFH Closure Areas as
defined in paragraphs (a)(1) through (6) of this section, unless
otherwise restricted, provided that its gear is stowed in accordance
with the provisions of Sec. 648.23(b). A vessel may transit the CAII
EFH closed area, as defined in paragraph (a)(6) of this section,
provided there is a compelling safety reason to enter the area and all
gear is stowed in accordance with the provisions of Sec. 648.23(b).
12. In Sec. 648.62, paragraph (b)(3) is added to read as follows:
Sec. 648.62 Northern Gulf of Maine (NGOM) scallop management area.
* * * * *
(b) * * *
(3) If the TAC specified in paragraph (b)(1) of this section is
exceeded, the amount of NGOM scallop landings in excess of the TAC
specified in paragraph (b)(1) of this section shall be deducted from
the NGOM TAC for the subsequent fishing year, as soon as practicable,
once scallop landings data for for the NGOM fishery is available.
* * * * *
13. Section 648.64 is added to subpart D to read as follows:
Sec. 648.64 Yellowtail Flounder Sub-ACLs and AMs for the Scallop
Fishery.
(a) As specified in Sec. 648.55(d), and pursuant to the biennial
framework adjustment process specified in Sec. 648.90, the scallop
fishery shall be allocated a sub-ACL for the Georges Bank and Southern
New England/Mid-Atlantic stocks of yellowtail flounder. The sub-ACL for
the 2011 through 2013 fishing years are as follows:
(1) 2011. To be determined.
(2) 2012. To be determined.
(3) 2013. To be determined.
(b) Georges Bank Accountability Measure. (1) If the Georges Bank
yellowtail flounder sub-ACL for the scallop fishery is exceeded, the
area defined by the following coordinates shall be closed to scallop
fishing by vessels issued a limited access scallop permit for the
period of time specified in paragraph (b)(2) of this section:
Georges Bank Yellowtail Closure
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
GBYT AM 1..................................... 41[deg]50' 66[deg]51.9
4'
GBYT AM 2..................................... 40[deg]30.7 65[deg]44.9
5' 6'
GBYT AM 3..................................... 40[deg]30' 66[deg]40'
GBYT AM 4..................................... 40[deg]40' 66[deg]40'
GBYT AM 5..................................... 40[deg]40' 66[deg]50'
GBYT AM 6..................................... 40[deg]50' 66[deg]50'
GBYT AM 7..................................... 40[deg]50' 67[deg]00'
GBYT AM 8..................................... 41[deg]00' 67[deg]00'
GBYT AM 9..................................... 41[deg]00' 67[deg]20'
GBYT AM 10.................................... 41[deg]10' 67[deg]20'
GBYT AM 11.................................... 41[deg]10' 67[deg]40'
GBYT AM 12.................................... 41[deg]50' 67[deg]40'
GBYT AM 1..................................... 41[deg]50' 66[deg]51.9
4'
------------------------------------------------------------------------
(2) Duration of closure. The Georges Bank yellowtail flounder
accountability measure closed area shall remain closed for the period
of time, not to exceed one fishing year, as specified for the
corresponding percent overage of the Georges Bank yellowtail flounder
sub-ACL, as follows:
(i) For years when the Closed Area II Sea Scallop Access Area is
open, the closure duration shall be:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2-24.................................. March through June.
25-38................................. March through July.
39-57................................. March through August.
58-63................................. March through September.
64-65................................. March through October.
66-68................................. March through November.
69.................................... March through December.
70 and higher......................... March through February.
------------------------------------------------------------------------
(ii) For fishing years when the Closed Area II Sea Scallop Access
Area is
[[Page 19950]]
closed to scallop fishing, the closure duration shall be:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2..................................... March through June.
3..................................... March through July.
4-5................................... March through August.
6 and higher.......................... March through February.
------------------------------------------------------------------------
(c) Southern New England/Mid-Atlantic Accountability Measure. (1)
If the Southern New England/Mid-Atlantic yellowtail flounder sub-ACL
for the scallop fishery is exceeded, the area defined by the following
coordinates shall be closed to scallop fishing by vessels issued a
limited access scallop permit for the period of time specified in
paragraph (c)(2) of this section:
Southern New England Yellowtail Closure
------------------------------------------------------------------------
Point N. lat. W. long.
-------------------------------------------------------------
SNEYT AM 1......................... 41[deg]28.4 71[deg]10.2
' 5'
SNEYT AM 2......................... 41[deg]28.5 71[deg]10'
7'
SNEYT AM 3......................... 41[deg]20' 71[deg]10'
SNEYT AM 4......................... 41[deg]20' 70[deg]50'
SNEYT AM 5......................... 41[deg]20' 70[deg]30'
SNEYT AM 6......................... 41[deg]18' 70[deg]15'
SNEYT AM 7......................... 41[deg]17.6 70[deg]12.5
9' 4'
SNEYT AM 8......................... 41[deg]14.7 70[deg]00'
3'
SNEYT AM 9......................... 39[deg]50' 70[deg]00'
SNEYT AM 10........................ 39[deg]50' 71[deg]00'
SNEYT AM 11........................ 39[deg]50' 71[deg]40'
SNEYT AM 12........................ 40[deg]00' 71[deg]40'
SNEYT AM 13........................ 40[deg]00' 73[deg]00'
SNEYT AM 14........................ 40[deg]41.2 73[deg]00'
3'
SNEYT AM 15........................ 41[deg]00' 71[deg]55'
SNEYT AM 16........................ 41[deg]00' 71[deg]40'
SNEYT AM 17........................ 41[deg]20' 71[deg]40'
SNEYT AM 18........................ 41[deg]21.1 71[deg]40'
5'
------------------------------------------------------------------------
(2) Duration of closure. The Southern New England/Mid-Atlantic
yellowtail flounder accountability measure closed area shall remain
closed for the period of time, not to exceed one fishing year, as
specified for the corresponding percent overage of the Southern New
England/Mid-Atlantic yellowtail flounder sub-ACL, as follows:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1-2................................... March.
3-5................................... March and April.
6-8................................... March through May.
9-12.................................. March through June.
13-14................................. March through July.
15.................................... March through August.
16.................................... March through September.
17.................................... March through October.
18.................................... March through November.
19.................................... March through January.
20 and higher......................... March through February.
------------------------------------------------------------------------
(d) Exemption for LAGC IFQ vessels. Vessels issued an LAGC IFQ
permit and fishing under the LAGC IFQ scallop fishery shall be exempt
from the closure(s) specified in paragraphs (b) and (c) of this
section. Yellowtail bycatch by such vessels shall be counted against
the applicable yellowtail flounder sub-ACL specified in paragraph (a)
of this section.
(e) Process for implementing the AM. On or about January 15 of each
year, the Regional Administrator shall determine whether a yellowtail
flounder sub-ACL was exceeded, or is projected to be exceeded, by
scallop vessels prior to the end of the scallop fishing year ending on
February 28/29. The determination shall include the amount of the
overage or projected amount of the overage, specified as a percentage
of the overall sub-ACL for the applicable yellowtail flounder stock, in
accordance with the values specified in paragraph (a) of this section.
The Regional Administrator shall implement the AM in accordance with
the APA and notify owners of limited access scallop vessels by letter
identifying the length of the closure and a summary of the yellowtail
flounder catch, overage, and projection that resulted in the closure.
(f) AM for the 2011 fishing year. AMs shall be applied in the 2011
fishing year for any overage of the applicable yellowtail flounder
stock's total ACL in the 2010 fishing year in accordance with the APA.
If a 2010 yellowtail flounder subcomponent catch allocation was
exceeded in the 2010 fishing year, and that overage caused the total
yellowtail flounder ACL for that stock specified in accordance with
Sec. 648.90(a)(4) and Sec. 648.90(a)(6) to be exceeded, the Regional
Administrator shall implement the yellowtail flounder AM closure for
the area, as defined in paragraph (b)(1) or (c)(1) of this section as
soon as practicable after the effective date of this regulation. The
closure shall be effective on the date specified by the Regional
Administrator and the area shall remained closed for a period of time
equal to the period of time specified in paragraphs (b)(2)(i)(A),
(b)(2)(i)(B), or (c)(2) of this section, as applicable. For example, if
the overage is 3 to 5 percent for the Southern New England/Mid-Atlantic
yellowtail stock, and the closure is effective beginning July 15, 2011,
the closure shall remain in effect through September 15, 2011, a 2-
month period equivalent to the March-April, 2-month closure specified
in paragraph (c)(2) of this section.
[FR Doc. 2011-8444 Filed 4-8-11; 8:45 am]
BILLING CODE 3510-22-P