Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework 18, 33211-33235 [06-5136]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 110 (Thursday, June 8, 2006)]
[Rules and Regulations]
[Pages 33211-33235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5136]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 060314069-6138-002; I.D. 030306B]
RIN 0648-AT25


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework 18

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

ACTION: Final rule.

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SUMMARY: This final rule implements Framework Adjustment 18 (Framework 
18) to the Atlantic Sea Scallop Fishery Management Plan (FMP), which 
was developed by the New England Fishery Management Council (Council). 
The following management measures are implemented by this rule: Scallop 
fishery specifications for 2006 and 2007 (open area days-at-sea (DAS) 
and Scallop Access Area trip allocations); scallop Area Rotation 
Program adjustments; and revisions to management measures that would 
improve administration of the FMP. In addition, a seasonal closure of 
the Elephant Trunk Access Area (ETAA) is implemented to reduce 
potential interactions between the scallop fishery and sea turtles, and 
to reduce finfish and scallop bycatch mortality.

DATES: Effective June 15, 2006.

ADDRESSES: Copies of Framework 18, the Regulatory Impact Review (RIR), 
including the Initial Regulatory Flexibility Analysis (IRFA), and the 
Environmental Assessment (EA) are available on request from Paul J. 
Howard, Executive Director, New England Fishery Management Council 
(Council), 50 Water Street, Newburyport, MA 01950. These documents are 
also available online at https://www.nefmc.org. NMFS prepared a Final 
Regulatory Flexibility Analysis (FRFA), which is contained in the 
Classification section of the preamble of this rule. Copies of the FRFA 
and the Small Entity Compliance Guide are available from the Regional 
Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, 
Gloucester, MA 01930-2298, and are also available via the internet at 
https://www.nero.nmfs.gov.
    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 One Blackburn 
Drive, Gloucester, MA, 01930, and by e-mail to David--
Rostker@omb.eop.gov, or to the Federal e-rulemaking portal https://
www.regulations.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The Council adopted Framework 18 to the Atlantic Sea Scallop FMP on 
November 17, 2005, and submitted it to NMFS on December 16, 2005, for 
review and approval. Framework 18 was developed and adopted by the 
Council to meet the FMP's requirement to adjust biennially the 
management measures for the scallop fishery. The FMP requires the 
biennial adjustments to ensure that measures meet the target fishing 
mortality rate (F) and other goals of the FMP and achieve optimum yield 
(OY) from the scallop resource on a continuing basis. A proposed rule 
for Framework 18 was published on March 30, 2006 (71 FR 16091). The 
public comment period for the proposed rule ended on April 14, 2006. 
This rule implements management measures for the 2006 and 2007 fishing 
years, which are described in detail below.

Approved Management Measures

    In the proposed rule, NMFS requested comments on all proposed 
management measures, and specifically highlighted a provision relating 
to the harvest of research set-aside from within an Access Area if the 
yellowtail flounder

[[Page 33212]]

Total Allowable Catch (TAC) allocated for the scallop fishery was 
attained (see Item 5 and Comment 2). The approved management measures 
are discussed below. No measures in Framework 18 were disapproved. 
Details concerning the Council's development of these measures were 
presented in the preamble of the proposed rule and are not repeated 
here.

1. Revised Open Area DAS Allocations

    The FMP requires that the biennial adjustment consider the number 
of open area DAS allocated to limited access vessels every 2 years, and 
adjust it if necessary in order to achieve OY at the target F (F=0.2) 
for the scallop resource. Since the calculation of overall fishing 
mortality also includes the mortality in controlled Access Areas, the 
calculation of the open area DAS allocations depends on the Access Area 
Program measures, including the rotation schedule, and Access Area trip 
allocations. Based on the Access Area Program measures implemented by 
Framework 18, the total number of open area DAS is set at 20,000 open 
area DAS, resulting in the following vessel-specific DAS allocations: 
Full-time vessels are allocated 52 DAS in 2006 and 51 DAS in 2007; 
part-time vessels are allocated 21 DAS in 2006 and 20 DAS in 2007; and 
occasional vessels receive 4 DAS each year.
    Framework 18 reduces the 2006 DAS allocations, but because it is 
being implemented after the start of the 2006 fishing year (March 1), 
some scallop vessels may use more DAS between March 1, 2006, and the 
implementation of Framework 18 than they would have if Framework 18 had 
been implemented prior to March 1. Under current regulations, full-
time, part-time, and occasional vessels are allocated 67, 27, and 6 
DAS, respectively, for the 2006 fishing year. Framework 18 reduces the 
DAS allocations in the 2006 fishing year to 52, 21, and 4 DAS, for 
full-time, part-time, and occasional vessels, respectively. Part-time 
and occasional vessels are most likely to exceed the Framework 18 DAS 
allocations for the 2006 fishing year because of their lower 
allocations implemented by Framework 18. To ensure that the 
conservation goals of the Scallop FMP are maintained, Framework 18 
requires vessels using DAS in excess of their 2006 allocation specified 
under Framework 18 to deduct the additional DAS from their 2007 fishing 
year DAS allocations. Although this could potentially allow F to exceed 
the F target for the 2006 fishing year, the deductions from the 2007 
allocations are expected to neutralize the impacts on the resource over 
the 2-year period.

2. Revised Rotational Management Schedule for the Closed Area I (CAI), 
Closed Area II (CAII), and Nantucket Lightship Closed Area (NLCA) 
Scallop Access Areas

    Framework 18 establishes a rotational management schedule that 
opens the CAII and NLCA Access Areas in 2006, and the CAI and NLCA 
Access Areas in 2007. This schedule is intended to address changes in 
scallop resource abundance in the CAII and NLCA Access Areas that 
support trip allocations in those areas in 2006. This schedule is 
consistent with the rotational area F target (F=0.2 to 0.3), which is 
specified in the FMP to achieve OY from the Scallop Access Areas.

3. Trip Allocations, Catch Limits and Seasons for Scallop Access Areas

    The Access Area program regulations authorize limited access 
vessels to take a specified number of trips in each controlled Access 
Area, with a scallop possession limit for each trip. The number of 
trips and the possession limit are designed to maintain F at 0.2 to 0.3 
within the Access Areas. Vessels are allocated a maximum number of 
trips into each Access Area, though this allocation can be increased 
through an exchange of a trip(s) with another vessel.
    In the 2006 fishing year, the maximum number of trips a vessel may 
take in the CAII and NLCA Access Areas is three and two trips, 
respectively. A full-time scallop vessel is allocated three trips in 
the CAII Access Area, and two trips in the NLCA Access Area. A part-
time scallop vessel is allocated two trips, which could be distributed 
into the Access Areas as follows: One trip in CAII Access Area and one 
trip in the NLCA Access Area; two trips in the CAII Access Area; or two 
trips in the NLCA Access Area. An occasional vessel is allocated one 
trip, which could be taken in either the CAII or NLCA Access Area. The 
scallop possession limit for Access Area trips is 18,000 lb (8,165 kg) 
for full-time and part-time vessels, and 7,500 lb (3,402 kg) for 
occasional vessels.
    In the 2007 fishing year, the maximum number of trips a vessel may 
take in the CAI, NLCA, and ETAA is one, one, and five, respectively 
(unless the ETAA allocation is adjusted as described in management 
measure number four below). A full-time scallop vessel is allocated one 
trip in the CAI Access Area, one trip in the NLCA Access Area, and five 
trips in the ETAA. A part-time scallop vessel is allocated three trips, 
which could be distributed as follows: One trip in the CAI Access Area, 
one trip in the NLCA Access Area, and one trip in the ETAA; one trip in 
the CAI Access Area and two trips in the ETAA; or one trip in the NLCA 
Access Area and two trips in the ETAA; or three trips in the ETAA. An 
occasional vessel is allocated one trip, which could be taken in either 
the CAI or NLCA Access Areas, or ETAA. The scallop possession limit for 
Access Area trips is 18,000 lb (8,165 kg) for full-time vessels, 16,800 
lb (7,620 kg) for part-time vessels, and 7,500 lb (3,402 kg) for 
occasional vessels.
    The ETAA will open for scallop fishing on January 1, 2007, rather 
than at the start of the fishing year on March 1, 2007. This early 
opening is intended to spread out the fishing effort in the ETAA to 
avoid potential negative effects of high levels of fishing effort 
concentrated in a shorter period of time.

4. Regulatory Procedure To Reduce the Number of Scallop Access Area 
Trips Into the ETAA if Updated Biomass Estimates Are Available From 
2006 Resource Survey(s) That Identify Lower Exploitable Scallop Biomass 
Within the ETAA

    The ETAA will open as an Access Area on January 1, 2007. The 
Framework 18 ETAA trip allocations are based on 2004 scallop survey 
information, which was the best scientific information available when 
the Council established the ETAA trip allocations for Framework 18. 
Because the ETAA will open nearly 3 years after the resource in that 
area was last surveyed, the biomass estimates used in Framework 18 may 
not reflect the biomass at the time the ETAA opens. If, as of January 
1, 2007, there is less biomass in the ETAA than the 2004 estimate, the 
number of allocated trips would be too high. This could result in 
overharvest of the ETAA unless there is a provision for adjusting the 
number of allocated trips. Framework 18 establishes a rulemaking 
process that allows the Administrator, Northeast Region, NMFS (Regional 
Administrator) to adjust allocations in the ETAA based on updated 
biomass projections from the 2006 resource surveys. To provide 
sufficient time to adjust allocations, if necessary, the survey data 
and analyses of updated exploitable biomass estimates for the area must 
be available prior to December 1, 2006, because Framework 18 requires 
NMFS to publish revised trip allocations on or about December 1, 2006. 
This final rule implementing Framework 18 includes reduced total 
allowable catch (TAC)

[[Page 33213]]

specifications and trip allocations based on a range of estimated 
exploitable biomass levels in the ETAA to ensure that the ETAA 
allocations do not cause overharvest of the scallop biomass in the 
area. If biomass estimates are lower than projected, the number of 
access trips can be reduced through a regulatory action consistent with 
the Administrative Procedure Act using the predetermined values in the 
table in Sec.  648.60(a)(3)(i)(F) of the regulatory text.

5. Open Area DAS Adjustments When Yellowtail Flounder Catches Reach the 
TAC Limit Allocated to Scallop Vessels Fishing in Georges Bank Access 
Areas

    Under current groundfish regulations, 10 percent of the yellowtail 
flounder TAC specified for harvest for each yellowtail flounder stock 
is allocated to vessels fishing for scallops under the Area Access 
Program in the CAI, CAII, or NLCA Access Areas (9.8 percent for the 
scallop Access Area fishery and 0.2 percent for vessels participating 
in approved scallop research). If the yellowtail flounder TAC is 
attained in any Access Area, that area is closed to further scallop 
fishing. Vessels that have unutilized trips in the affected Access Area 
are authorized to take their unutilized trips in the open fishing 
areas. Framework 18 allocates the open area DAS for these unutilized 
trips in a manner that maintains the fishing mortality objectives for 
scallops. To do this, Framework 18 establishes a ratio for each Access 
Area that reflects differential catch rates between Access Areas and 
open areas. If an Access Area is closed, each vessel with unutilized 
trips shall be allocated a specific amount of additional open area DAS 
based on the following ratios: 5.5 DAS per unutilized trip in the CAI 
Access Area; 5.4 DAS per unutilized trip in the CAII Access Area; and 
4.9 DAS per unused trip in the NLCA Access Area. For broken trips for 
which a vessel has not completed a compensation trip, the unutilized 
compensation days remaining in the applicable Access Area shall be 
determined by dividing the pounds of scallops authorized for harvest on 
the compensation trip(s) by 1,500 lb (680 kg) (the catch per day used 
to calculate the possession limit in the Access Areas). For each 
unutilized compensation trip day in the CAI, CAII, or NLCA Access 
Areas, a vessel shall receive 0.458, 0.450, and 0.408 DAS, 
respectively, in open areas. These ratios shall also apply to vessels 
participating in approved research under the scallop research set-aside 
program. Such vessels shall be allowed to conduct compensation fishing 
in open areas subject to the same ratio if the yellowtail research set-
aside TAC (equal to 2 percent of the scallop fishery's overall 
yellowtail TAC set-aside) is harvested. This ratio is intended to 
equate Access Area catch that is limited by possession limit with open 
area trips that would be limited by DAS.
    The yellowtail flounder bycatch TAC allocation for the Area Access 
Program is specified in the Northeast (NE) multispecies regulations in 
Sec.  648.85(c). Although Framework 18 is not proposing substantive 
modifications of the NE multispecies regulations, Sec.  648.85(c) is 
revised to remove references to the 2004 and 2005 fishing years. In 
addition, since Framework 16 to the Scallop FMP and Framework 39 to the 
NE Multispecies FMP (69 FR 63460, November 2, 2004) implemented a 
permanent allowance for the yellowtail flounder bycatch TAC under the 
Area Access Program, specific dates in Sec.  648.85(c) would be removed 
to eliminate the need to modify the paragraph each time a new framework 
is completed.

6. Extension of the Current Scallop Access Area Program in the Hudson 
Canyon Access Area (HCAA) Through February 2008 for Vessels That Have 
Unutilized HCAA Trips From 2005

    The 2005 scallop resource surveys indicated that scallop biomass in 
the Hudson Canyon area during 2005 was much lower than had been 
predicted in Amendment 10 to the FMP. The biomass estimates in 
Amendment 10 were based on 2003 NMFS scallop survey results. Catch 
rates dropped more quickly than had been anticipated, and many vessel 
owners hesitated to take their 2005 HCAA trips. In response to concerns 
about low catch rates, Framework 18 extends the HCAA until February 29, 
2008, so that vessel owners with unutilized or incomplete trips during 
the 2005 fishing year may wait to complete their trips. This extension 
of the HCAA will allow short-term growth of scallops in the HCAA that 
is projected to improve catch rates. Additionally, this extension will 
apply to unutilized 2005 research set-aside that was allocated for 
harvest in the HCAA.

7. Seasonal Closure of the ETAA (September-October) To Reduce Sea 
Turtle Interactions in the ETAA and Reduce Scallop and Finfish Discard 
Mortality

    The ETAA will be closed to scallop fishing from September 1-October 
31. This 2-month closure is intended to reduce potential interactions 
between threatened and endangered sea turtles and the scallop fishery 
in the Mid-Atlantic. Data through 2004 indicate a relatively high 
number of sea turtle and scallop fishery interactions during September 
and October in the ETAA. Closing the ETAA during September and October 
is predicted to provide the most protection for sea turtles from the 
effects of the scallop fishery while minimizing the potential economic 
impacts of a longer closure. Additionally, the high water and air 
temperatures that occur during September and October in the ETAA may 
result in higher than average small scallop and finfish discard 
mortality. Therefore, this 2-month closure is predicted to also reduce 
scallop and finfish discard mortality.

8. Closure of an Area Off of Delaware/Maryland/Virginia on January 1, 
2007

    Framework 18 closes an area to the south of the ETAA, known as the 
Delmarva area. High numbers of small scallops from the 2003 year class 
were observed in the 2005 NMFS scallop survey in the Delmarva 
Rotational Closed Area. The Delmarva area will close on January 1, 
2007; this closure coincides with the opening of the ETAA. The Delmarva 
area will remain closed for 3 years, until February 28, 2010, by which 
time the small scallops are expected to have grown to an optimal size 
for harvest. This new Rotational Scallop Closed Area is consistent with 
the FMP's requirement to adjust the Area Rotation Program by 
establishing Rotational Closed Areas to protect large concentrations of 
small scallops.

9. Elimination of the Scallop Access Area Trip Exchange Program 
Deadline in Order To Allow Trip Exchanges Throughout the Year

    This action allows vessels to exchange controlled Access Area trips 
at any time during the fishing year with proper notification and 
approval by NMFS. The current regulations require that transactions be 
submitted by June 1 of each year, but this time restriction was found 
to be unnecessary for adequate monitoring and compliance. Therefore, 
Framework 18 eliminates the June 1 deadline.

10. Allowance of Trip Exchanges of 2006 CAII and/or NLCA Access Area 
Trips for 2007 ETAA Trips

    In addition to allowing one-for-one exchanges of Access Area trips 
in areas open during the same fishing year (including any unutilized 
HCAA trips under the HCAA extension described above), this action 
allows one-to-one trip exchanges of 2006 CAII or NLCA Access Area trips 
and 2007 ETAA trips.

[[Page 33214]]

Without this additional measure, the owners of Mid-Atlantic vessels who 
prefer not to fish on Georges Bank would not be able to gain a Mid-
Atlantic controlled Access Area trip in exchange for a Georges Bank 
controlled Access Area trip in 2006. This action provides an important 
fishing opportunity because, with the exception of vessels that have 
unutilized HCAA trips from 2005, there will be no Mid-Atlantic Access 
Areas open to fishing in 2006.

11. Modification of the Scallop Access Area Broken Trip Program To 
Allow Unused Makeup Trips To Be Carried Over to the Next Fishing Year

    The broken trip program allows vessels that terminate an Access 
Area trip prior to catching the full possession limit to return to the 
Access Area to catch the remaining portion of the possession limit on a 
compensation trip. This action authorizes vessels that break a trip 
within the last 60 days of an open period for an Access Area to take 
their compensation trip in the same Access Area up to 60 days after the 
start of the subsequent fishing year or season for the Access Area. 
Vessels are only allowed to take compensation trips in the subsequent 
fishing year in the same Access Area where the original trip was broken 
and only if the Access Area is open in the subsequent fishing year. For 
example, a vessel will not be allowed to carry a compensation trip 
forward from the 2006 CAII Access Area into the 2007 fishing year 
because CAII will be closed in 2007. This provision is intended to 
reduce safety risks associated with vessel owners attempting to 
complete a broken trip with limited time left in the fishing year or 
Access Area season. It also allows vessel owners and operators 
additional flexibility in planning end-of-year Access Area trips. 
Additionally, this rule requires vessel operators to enter a trip 
identification number in the vessel's VMS prior to the start of a 
compensation trip so that NMFS can more accurately monitor Access Area 
activity in the scallop fleet. Under current regulations, which do not 
require such trip identification, accounting of vessel trip allocations 
in the Access Areas has been difficult and burdensome, especially if 
compensation trips are terminated before catching the possession limit 
allowed on that compensation trip.

12. Elimination of the Scallop Vessel Crew Size Limit for Scallop 
Access Area Trips Only

    This rule eliminates the seven-person crew limit (five-person limit 
for small dredge category vessels) for Access Area trips. Limited 
access vessels on an Access Area trip would have no limit on the number 
of crew onboard. This action is intended to eliminate inefficiencies 
caused by the crew limit for fishing activity that is limited by a 
possession limit. The crew limit was established to control vessels' 
shucking capacity when fishing under DAS.

Comments and Responses

    NMFS received nine comment letters on Framework 18; two letters 
were from individuals, five were from industry representatives, one was 
from the Council, and one was from an environmental advocacy group. 
Comments on the Scallop FMP that were not specific to Framework 18 or 
the management measures described in the proposed rule are not 
responded to in this final rule. This includes comments that suggested 
that NMFS should implement measures other than those described in the 
proposed action. Under the regulatory process established by the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), NMFS can only approve or disapprove measures proposed by 
the Council and cannot implement other measures.
    Comment 1: One commenter indicated general support for a reduction 
of commercial quotas, the use of accurate harvest information to 
develop quotas, and the need for protection of the public fishery 
resource.
    Response: NMFS acknowledges the importance of the issues raised by 
the commenter, which relate generally to Framework 18. As specified in 
the FMP, the Council developed Framework 18 using the best available 
data regarding the resource and the fishery. Framework 18 establishes 
scallop fishery specifications for 2006 and 2007 consistent with the 
control rules specified in the FMP to achieve OY.
    Comment 2: The Council commented that the proposed regulations 
comport with the intent of the Council, with the following exception. 
When a scallop Access Area is closed because the scallop fishery has 
harvested its yellowtail flounder TAC for the area, the proposed rule 
would have allocated additional open area DAS and re-direct research 
compensation trips to open areas with the same prorated adjustment that 
applies to commercial fishing trips. The Council commented that this 
would be inconsistent and incompatible with the intent of research set-
aside, and noted the provision that reserves 2 percent of the 
yellowtail flounder TAC for research-related trips so that they can 
occur in an area even if that area is closed to commercial scallop 
fishing. Therefore, the Council requests that additional open area DAS 
adjustments do not apply to research compensations trips because the 
Council believes it may constrain research in the Access Areas. The 
Council suggests that these trips should occur using the 2 percent of 
the yellowtail flounder TAC allocated for this purpose.
    Response: NMFS reviewed Framework 18 and agrees with the Council 
that the proposed regulations, including provisions to allow for 
additional research compensation trips by way of prorated open area DAS 
if the yellowtail flounder TACs are attained, extend beyond the intent 
of Framework 18. Therefore, NMFS removed the provisions allowing 
research trips to be transferred to open areas in this final rule.
    Because 2006 yellowtail flounder TACs are low, the portion of those 
TACs allocated for research activities are low. For example, the 
yellowtail flounder catch available to research is estimated to be 
approximately 644 lb (292 kg) in the NLCA Access Area and 9,127 lb 
(4,140 kg) in CAII Access Area. Once these yellowtail flounder research 
allocations are attained, all compensation for research approved under 
the TAC set-aside program will be prohibited. As a result, NMFS remains 
concerned that incomplete research and/or the inability to fully 
compensate research trips may result, should these yellowtail flounder 
allocations be attained before research is complete.
    Comment 3: Two commenters supported seasonal closures in the Mid-
Atlantic Region to reduce the potential for interactions between 
scallop dredges and threatened and endangered sea turtles. One 
commenter supported a closure of the ETAA during June 15-November 15 
because it closed the area during summer months when sea turtles are in 
the area foraging, and because it would have minimal economic effects 
on the scallop fishery because vessels would be able to harvest in this 
area during the remainder of the year. The other commenter also 
supported seasonal closures but was not specific about the timing or 
duration of such closures. This commenter recognized that closing the 
ETAA during September and October would be beneficial, but was 
concerned that it provided only limited protection for sea turtles.
    Response: The Council recommended, and NMFS is implementing, a 
September 1-October 31 closure of the ETAA. Data through 2004 indicate 
a relatively high number of sea turtle and scallop fishery interactions 
during September and October in the ETAA. Because of the potential for 
interaction

[[Page 33215]]

during September and October, Framework 18 concludes that a closure to 
scallop fishing may have positive benefits to turtles in the ETAA if 
fishing effort is not displaced to areas with higher densities of 
turtles than inside the ETAA. Additionally, the elevated water and air 
temperatures that occur during September and October in the ETAA may 
result in higher than average small scallop and finfish discard 
mortality. Therefore, this 2-month closure is intended to also reduce 
scallop and finfish discard mortality.
    Comment 4: Several industry representatives expressed concern 
regarding the timing of the January 1, 2007, opening of the ETAA. They 
stated that opening the ETAA 2-months before the start of the scallop 
fishing year on March 1 may introduce uncertainty into the scallop 
market by making high volumes of scallops available during non-peak 
harvesting times. This could create the need to freeze scallops for 
future sales because of the lower prices associated with high supplies 
of scallops. In general, commenters proposed that NMFS either align the 
opening of the ETAA with the beginning of the scallop fishing year on 
March 1 or limit effort in the ETAA to one or two trips per vessel 
during January and February.
    Response: Framework 18 concluded that opening the ETAA on January 
1, 2007, thereby providing 2 additional months of fishing opportunity 
in 2007, may help to disperse fishing effort within the area over the 
longer period. Dispersing fishing effort over time should reduce the 
likelihood that the scallop resource in the ETAA will be adversely 
impacted by intense fishing effort (e.g., rapid depletion and high 
levels of effort and scallop shucking in a confined area). A January 1 
opening also has the potential of further reducing fishery interactions 
with sea turtles by allowing more fishing to occur prior to summer 
months when threatened and endangered sea turtles are most likely to be 
present within the ETAA. In the initial year of the ETAA opening, the 2 
additional months of fishing opportunity also help offset the September 
1-October 31 closure of the ETAA that is intended to reduce fishery 
interactions with sea turtles. Moreover, this action was not designed 
to control market fluctuations.
    Comment 5: Several industry representatives speculated that fishing 
effort in the ETAA will likely be high in response to the high scallop 
biomass and raised concerns that the scallop biomass in this relatively 
small Access Area may become depleted. To prevent a resource collapse 
due to high fishing effort and subsequent failure of area rotation 
management, the commenters proposed reducing the number of ETAA trips 
from five to three or four, monitoring the ETAA biomass and the 
landings throughout the year, and only allowing additional ETAA trips 
if data indicate that the biomass can support additional fishing 
effort.
    Response: NMFS agrees with the commenters on the importance of a 
healthy resource to ensure the success of area rotation management. 
Provisions in Framework 18, specifically the ETAA trip adjustment 
procedure, allow for the status of the ETAA resource to determine the 
number of access trips prior to the initial opening of the ETAA. A 
survey of the ETAA is incorporated into the NMFS scallop survey 
conducted in the summer of each year. Data from that survey, and any 
additional surveys, will be used to determine the appropriate number of 
trips for the ETAA in 2007, thereby ensuring the F objectives are met. 
This assessment and trip setting procedure should be sufficient to 
ensure that the scallop resource in the ETAA is not depleted.
    Comment 6: One industry representative believes that the seasonal 
September-October closure of the ETAA, intended to reduce fishery 
interactions with sea turtles, is unnecessary because the estimate of 
sea turtles takes in the scallop fishery has dramatically declined from 
2003 to 2004 and that a gear-based solution to fishery/turtle 
interactions is a more consistent and constructive approach than a 
seasonal closure.
    Response: Framework 18 concludes that the proposed closure period 
would provide additional benefits to sea turtles compared to allowing 
access to the ETAA throughout the fishing year. Although Framework 18 
recognizes the potential benefits of gear-based solutions, the Council 
determined that it would be more precautionary to implement the closure 
irrespective of the final decision regarding the chain mat requirement.
    Comment 7: An industry representative commented that Framework 18's 
economic analyses may be masking important long-term issues in the 
fishery. Specifically, the comment noted that economic analyses 
contrasting the area access options may not adequately take into 
account scallop resource conditions and long-term OY. The commenter 
provided the example that, in the short-term, transferring an Access 
Area trip from CA I to CA II would not have significant economic 
effects because the trip TAC is limited, but harvesting smaller 
scallops while larger scallops remain unharvested in habitat closed 
areas would have an adverse effect on the fishery's ability to sustain 
yields in a rotational area management program over time.
    Response: Amendment 10 to the Scallop FMP implemented a 
comprehensive management program for the scallop fishery that 
incorporates an adaptive area rotation program designed to focusing 
fishing effort in areas where there is a high catch of scallops. 
Amendment 10 also established closed areas to protect essential fish 
habitat (EFH) from the effects of scallop fishing, as well as a suite 
of other measures to meet the goals and objectives of the Scallop FMP 
and Magnuson-Stevens Act requirements. The EFH closed areas will remain 
in place unless modified by the Council. The analyses in Framework 18 
are based on the current and foreseeable management program for the 
scallop fishery, which includes the current EFH closed areas. The fact 
that scallops are not available within EFH closed areas to the fishery 
is true for all of the alternatives in Framework 18. Therefore, the 
presence of EFH closed areas does not result in differential economic 
impacts between alternatives in either the short or long-term. 
Furthermore, the economic analyses are derived from results of a 
sophisticated biological projection model (see Appendix II of Framework 
18), which incorporates several facets of the scallop resource and 
fishery to determine short and long-term scallop yield in an area-based 
management program. This projection model served as the basis for 
biological and economic projections in Amendment 10, Joint Frameworks 
16/39, and Framework 18.
    Comment 8: One industry representative supported Framework 18's 
access program for Georges Bank, with the exception of the measure that 
established CA II as an Access Area in 2006 rather than CA I. The 
commenter argued that CA I has a higher scallop catch rate and a lower 
incidence of yellowtail flounder bycatch than CA II, and that the CA I 
Access Area should open in 2006 in addition to CA II and the NLCA.
    Response: The Georges Bank Access Area management measures in 
Framework 18 did not include Access Area trips for Closed Area I in 
2006 due to concerns that the adjustment of the boundaries of the area 
in Oceana v. Evans, et. al., (Civil Action No. 04-810, D.D.C., August 
2, 2005, and October 6, 2005), which made the access area smaller, and 
reduced the biomass of scallops available to the fishery in the Access 
Area. Because NMFS can only

[[Page 33216]]

approve or disapprove substantive measures in this Framework, NMFS 
cannot modify Framework 18 measures in this rulemaking. If NMFS were to 
disapprove this portion of Framework 18, it would leave the existing 
regulations in effect, which allow one trip to the CAI Access Area and 
one trip to the NLCA Access Area. This would result in Access Area 
allocations and fishery-wide measures that would fall short of OY.
    Comment 9: One industry representative was concerned that the 
conversion factor for Georges Bank Access Area trips to open area DAS 
is too low. The commenter noted that the conversion factors are based 
on a comparison of the estimated average meat counts within the access 
areas to the average meat count in the open area. The commenter found 
the figures used in Framework 18 inconsistent with their members' 
experience in the open areas, and recommended using an alternate 
calculation that was presented to the Council at the final Council 
meeting when Framework 18 was adopted.
    Response: The intent of the conversion factor is to allow the 
industry to be allocated DAS for unused access area trips in a way that 
achieves an equivalent amount of scallop mortality even though the 
scallop meat count and, therefore, the catch per fishing day, differs 
inside and outside of the access areas. The meat weight, including open 
area meat weight, is a product of the biological simulation model and 
is based on the area rotation selected by the Council. The commenter 
noted that, at the meeting where the Council took final action, the 
Council reviewed several examples of such calculations. The commenter 
would have preferred that the Council select the lower average meat 
counts in the open areas of 16.8 or 17.2 scallop meats/lb, thus 
resulting in a greater number of DAS for use in the open areas. While 
the commenter may find those alternatives preferable, NMFS must approve 
or disapprove the measure in Framework 18, and finds this is sufficient 
justification for the selected alternative.
    Comment 10: One industry representative remarked that Framework 18 
provides for limited open area fishing opportunity in the Mid-Atlantic 
in 2007 and that NMFS needs to recognize the implications of closing 
the Delmarva area.
    Response: NMFS is uncertain whether the commenter is advocating 
that the Delmarva Area remain open to provide open access scalloping in 
the Mid-Atlantic. Regardless, closing the Delmarva area is intended to 
protect a strong year class of scallops in that area. Such closures are 
central to the rotational area management strategy adopted by the 
Council. The closure of the Delmarva Area will take effect when the 
ETAA reopens, in order to mitigate the socioeconomic effects of the 
closure on vessels that fish in the Mid-Atlantic.
    Comment 11: One industry representative expressed concern that 
Framework 18 would eliminate the limit on the number of crew on board a 
scallop vessel for trips into the Access Areas. The commenter is 
concerned that this could exacerbate the possibility that a derby 
fishery will occur in the Access Areas. The commenter believes a derby 
could be motivated in part by the industry concerns that catches will 
be reduced if the Access Area yellowtail TACs are attained and trips 
are shifted to the open areas on a pro-rated basis.
    Response: The crew limits were established in the FMP to limit the 
amount of scallops that could be shucked on a DAS, which limited 
fishing capacity in the DAS management program. Because the Access 
Areas limit harvest by poundage (18,000 lb (8,165 kg) per authorized 
trip), removing crew limits will not affect the total weight of 
scallops that may be landed. The Council considered the fact that 
additional crew could enable vessels to harvest smaller scallops 
because additional crew could be carried to maintain shucking 
efficiency, but concluded that the resource would be sufficiently 
protected by the poundage limits.
    The yellowtail flounder TAC is a restrictive management measure 
necessary for the conservation and rebuilding of the yellowtail 
flounder stock, and cannot be undermined. Derby fishing behavior is a 
risk often associated with implementing restrictive management 
measures. The Council weighed the advantages associated with 
eliminating crew limits, such as lowered fishing costs and increased 
efficiency, against the possibility of a derby fishery and determined 
that the advantages outweighed the risks. Therefore, NMFS is 
eliminating crew limits for vessels fishing in access areas. If derby 
fishing behavior in response to yellowtail flounder TACs becomes a 
problem, the Council may consider that issue at a future time.
    Comment 12: An industry representative commented that the 
requirement to stow gear when transiting CA II needs to be reconsidered 
because of the additional safety risk associated with stowing gear and 
because other Access Areas can be transited without gear being stowed.
    Response: The gear stowage requirements were not considered during 
the development of Framework 18. The current gear stowage requirements 
are established in regulations for conserving multispecies groundfish 
and can not be modified through a scallop framework. NMFS advises the 
commenter to raise this concern to the Council for possible 
consideration in a future management action.
    Comment 13: An industry representative made several editorial 
suggestions to regulatory text in the proposed rule for Framework 18.
    Response: Several of these editorial changes, which NMFS found to 
be helpful, are included below in ``Changes from the Proposed Rule.'' 
NMFS did not accept editorial suggestions that were not considered to 
be an improvement.
    Comment 14: One commenter expressed concern that Framework 18 does 
not incorporate any information from the Biological Opinion (BO) being 
developed as part of the section 7 consultation under the ESA that is 
evaluating the effects of the scallop fishery on sea turtles. The 
commented advises that this BO is overdue and it should be completed 
and incorporated into Framework 18 prior to implementation of the 
proposed action.
    Response: NMFS reinitiated formal consultation on the Scallop FMP 
in November 2005, based on new information regarding the effects of the 
continued operation of the scallop fishery on threatened and endangered 
sea turtles. As allowed by the regulations (50 CFR 402.14), this 
consultation period was extended.
    The effects of the management measures associated with Framework 18 
on ESA-listed species were considered during review as part of an 
informal section 7 consultation under the ESA. The consultation, which 
concluded on January 26, 2006, determined that implementation of 
Framework 18 would not result in adverse affects to any ESA-listed 
species under NMFS jurisdiction and would result in no additional 
adverse effects on sea turtles because Framework 18 reduces fishing 
effort from levels allowed under current regulations. Waiting until the 
new BO has been completed to implement Framework 18 does not enable 
additional mitigation measures that may be identified in the BO to be 
implemented as part of Framework 18, given that NMFS can only approve 
or disapprove measures, and cannot adopt new or modified alternatives 
to the proposed action. The likelihood of sea turtle interactions with 
the scallop fishery increase during summer months.

[[Page 33217]]

NMFS anticipates having a completed BO by summer of this year. If 
necessary, the process to implement additional management measures to 
protect sea turtles will begin at that time, and NMFS will take 
appropriate action to implement any measures that may result from the 
new BO, once completed, that are necessary to reduce ESA-listed species 
interactions with the scallop fishery. Nothing in Framework 18 prevents 
NMFS's consideration and implementation of additional measures that may 
result from the new BO.
    Comment 15: One commenter raised the issue that the analysis for 
Framework 18 does not adequately assess the effects on sea turtles. 
Specifically, the commenter stated that the analysis does not contain 
recent turtle stock assessment information, that it does not address 
cumulative effects, that it improperly combines turtle sub-populations, 
and that it attempts to diminish the effects of the scallop fishery by 
discussing the number of sea turtle takes in other fisheries. 
Additionally, the commenter expressed concern that Framework 18 
contains no measures specifically designed to avoid, reduce, or 
mitigate sea turtle takes in the 2006 fishery.
    Response: Framework 18 contains a complete evaluation of the 
effects of the scallop fishery on sea turtles, based on the best 
available scientific information. The analysis is based on the December 
2004 BO evaluating the effect of the scallop fishery on sea turtles and 
Amendment 10 to the Scallop FMP. Ongoing nest counts for loggerhead sea 
turtles have suggested a decline in nesting in recent years at some 
U.S. beaches. However, the currently available nesting data are still 
too limited to indicate statistically reliable trends for these 
loggerhead sub-populations. The analysis for Framework 18 combines 
loggerhead turtle sub-populations because there are not yet adequate 
data to identify trends in loggerhead sub-populations. As more data on 
loggerhead sub-populations become available, NMFS will incorporate 
these data into its analyses. In discussing sea turtle takes in other 
fisheries, NMFS is in no way diminishing the effects of the scallop 
fishery on sea turtles, but rather is presenting the information to 
describe cumulative effects of all ongoing activities on sea turtles. 
The updated BO section 7 consultation on the continued operation of the 
scallop fishery was reinitiated in November 2005 in response to new 
information on takes of sea turtles in the scallop fishery. NMFS will 
re-evaluate the impacts of the scallop fishery on ESA-listed sea 
turtles during consultation and describe the anticipated effects of the 
fishery on sea turtles in a new BO, along with any non-discretionary 
measures deemed necessary that NMFS must implement to reduce adverse 
effects to ESA-listed species such as sea turtles.
    Comment 16: One commenter believes that the EA for Framework 18 
does not include the fundamental analyses necessary to determine 
whether this action significantly affects the environment and 
recommends that an environmental impact statement (EIS) should be 
developed to fully assess the environmental effects of this action.
    Response: NOAA Administrative Order 216-6 (NAO 216-6) (May 20, 
1999) contains criteria for determining the significance of the impacts 
of a proposed action. On July 22, 2005, NOAA published a Policy 
Directive with guidelines for the preparation of a Finding of No 
Significant Impacts. In addition, the Council on Environmental Quality 
(CEQ) regulations at 40 CFR 1508.27 state that the significance of an 
action should be analyzed both in terms of ``context'' and 
``intensity.'' The significance of this action was analyzed based on 
the NAO 216-6 criteria, the recent Policy Directive from NOAA, and 
CEQ's context and intensity criteria. Based on the analysis contained 
in the supporting EA prepared for Framework 18, and in the supplemental 
EIS for Amendment 10 to the Sea Scallop Fishery Management Plan, NMFS 
determined that Framework 18 will not significantly impact the quality 
of the human environment and all beneficial and adverse impacts of the 
proposed action have been addressed to reach the conclusion of no 
significant impacts. Therefore, preparation of an EIS for this action 
is unnecessary.
    Comment 17: One commenter cautioned NMFS that a framework 
adjustment cannot be used to significantly alter provisions in an FMP. 
Amendment 10 established the requirement that DAS allocated for 
controlled access trips cannot be used for open access trips, and 
therefore, Framework 18 cannot allow limited access vessels to use 
their closed area trips in the open areas if the scallop fishery's 
yellowtail flounder TAC has been reached.
    Response: While Amendment 10 did establish the requirement that DAS 
allocated for controlled access trips cannot be used for open assess 
trips, Joint Frameworks 16/39 revised Amendment 10 to allow DAS 
allocated for Access Area trips to be used in the open areas if an 
Access Area is closed (69 FR 63460, November 2, 2004). Under the 
existing regulations, if the yellowtail flounder TAC is reached and an 
Access Area is closed, vessels that have not taken their allocated 
Access Area trips are authorized to take those trips in open fishing 
areas. Framework 18 only slightly modifies the current provision by 
reducing the amount of time a vessel can fish in the open areas 
compared to Access Areas when the yellowtail TAC for the scallop 
fishery is harvested but does not create a new provision in the FMP.
    Comment 18: One commenter stated that Framework 18 will 
significantly increase the bycatch of overfished groundfish species in 
2006, due to high bycatch rates of groundfish in controlled Access 
Areas, high levels of allocated open area DAS, and the measure that 
allocates Access Area trips into the open areas if the yellowtail 
flounder TAC is reached.
    Response: The Scallop FMP established a management program that 
adapts to changing resource conditions. In some years, to achieve OY, 
higher DAS and Access Area trip allocations may be specified, while in 
other years the allocations may be lower. Therefore, overall bycatch 
levels would fluctuate as well, possibly increasing in one year 
compared to other years when allocations were lower. Nevertheless, NMFS 
disagrees that Framework 18 will significantly increase the bycatch of 
overfished species in 2006. Amendment 10 and Joint Frameworks 16/39 
implemented measures that minimized bycatch to the extent practicable. 
Framework 18 adjusts these management measures. To minimize bycatch to 
the extent practicable, the Scallop FMP relies on gear restrictions 
and, more generally, reductions in area swept (i.e., overall bottom 
contact time) by focusing effort in areas where scallop catch rates are 
highest (and therefore trip times the shortest). The restrictions in 
the Access Areas within the groundfish closed areas are specified to 
minimize groundfish bycatch to the extent practicable. Currently, 
Access Areas have the highest bycatch rates of groundfish species. The 
Area Access program in the groundfish closed areas incorporates a 
closed season of February 1 through June 14 each fishing year to 
prevent fishing effort in the Access Areas when spawning of yellowtail 
flounder and other groundfish species is at its peak. In addition, the 
scallop fleet is constrained by a hard TAC on yellowtail flounder in 
each Access Area when bycatch is a concern. When the TAC is caught, 
scallop vessels may no longer fish within the Access Area. Not only 
does this limit bycatch of yellowtail flounder in Access Areas, it

[[Page 33218]]

also limits bycatch of other regulated flounder species, skates, and 
monkfish. The Scallop FMP allows scallop vessels to fish additional 
open area DAS when the Access Areas close, if they have unutilized 
trips in the closed Access Area. Although these transferred trips may 
continue to result in bycatch of regulated species, the provision under 
Framework 18 reduces the amount of time that a scallop vessel can fish 
in open areas by equating the mortality of scallops in open areas with 
that of scallops in Access Areas. Therefore, the provision under 
Framework 18 would decrease bycatch compared to allowing the trips to 
be transferred to open areas on a one-for-one basis, as authorized 
under existing regulations. In addition, the retention of regulated 
groundfish is strictly managed under the NE Multispecies FMP; limited 
access scallop vessels may retain only 300 lb (136 kg) of regulated 
multispecies on each trip. Although discards may occur, the NE 
Multispecies FMP accounts for the bycatch associated with the scallop 
fishery in its mortality estimates and necessary management measures. 
The same is true for the Monkfish FMP with respect to monkfish bycatch. 
The analysis in Framework 18 supports these conclusions.
    Comment 19: One industry representative supported the observer set-
aside provisions in the Scallop FMP and suggested that these provisions 
should be implemented.
    Response: NMFS is continuing to explore ways to facilitate an 
industry-funded observer program implementing the observer set-aside 
provisions in the Scallop FMP.
    Comment 20: One commenter was concerned that Framework 18 does not 
ensure that adequate observer coverage will be in place during the 2006 
fishery to allow for accurate and precise reporting of the significant 
bycatch that occurs in this fishery. The commenter also remarked that 
most limited access scallop vessels do not report discards on their 
Vessel Trip Reports (VTRs). Because of the under-reporting of discard 
and inadequate observer coverage, the commenter believes that it will 
be impossible to monitor the yellowtail flounder TACs or scallop catch, 
assess the bycatch of other groundfish species, or assess the 
incidental take of sea turtles.
    Response: Recent discussions of the Fiscal Year 2006 funding for 
observer coverage indicated that funding limitations could result in 
lower coverage than previous years. The funding of observer coverage is 
not within the scope of this framework and, therefore, this rulemaking 
can do nothing to address this issue. Collecting accurate data on the 
bycatch of groundfish species and the incidental take of sea turtles in 
the scallop fishery, as well as accurately tracking the harvest of 
scallops, is clearly critical to the management program. NMFS will 
continue to work on resolving issues affecting 2006 observer coverage 
in the scallop fishery and, as noted above, is working on ways to 
facilitate an industry-funded observer provision. NMFS agrees that one 
reason that observer coverage is important is that discards reported in 
VTRs are generally lower, often much lower, than those reported by at-
sea observers.
    Comment 21: One commenter urged NMFS to take action in Framework 18 
to protect Georges Bank cod EFH from dredging that the commenter 
believes would impede the recovery of the cod stock due to impacts on 
juvenile cod EFH.
    Response: Amendment 10 to the Scallop FMP implemented EFH closed 
areas to minimize the adverse affects of scallop fishing, to the extent 
practicable, on EFH that was designated for several species, including 
cod. Framework 18 is the biennial adjustment of the specifications 
required by the management program established by Amendment 10. NMFS 
has determined that there is no need in Framework 18 to modify any of 
the current EFH provisions in the FMP. The measures in Framework 18 
continue to minimize the adverse effects of scallop fishing on EFH to 
the extent practicable. The Council is currently preparing an omnibus 
EFH amendment and the commenter can more appropriately raise this issue 
during that process.

Changes From the Proposed Rule

    In Sec.  648.11, paragraph (a)(1) is corrected to remove duplicate 
text and to make it consistent with other observer provision 
regulations.
    In Sec.  648.51, paragraph (f) is revised to clarify that limited 
access scallop vessels may not have even one trawl net on board except 
under the specific conditions outlined in the paragraph.
    In Sec.  648.59, the coordinates in paragraph (c)(3) are corrected.
    In Sec.  648.60, paragraph (5)(ii) is corrected to remove duplicate 
text and paragraph (e)(3) is revised to remove provisions allowing 
research compensation trips to be transferred to open areas after the 
yellowtail flounder research allocation is attained.
    In Sec.  648.60, paragraphs (a)(9)(i) and (ii) are revised to 
specify that total catch and/or discard must be reported in pounds 
rather than kilograms.
    In Sec.  648.85, paragraph (c)(3)(ii) is revised to more accurately 
reflect that the Regional Administrator will publish a notice when the 
scallop fishery's yellowtail flounder TAC for each yellowtail flounder 
stock has been attained.

Classification

    The Regional Administrator determined that the framework 
adjustments implemented by this rule are necessary for the conservation 
and management of the Atlantic sea scallop fishery and are consistent 
with the Magnuson-Stevens Act and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Because Section 648.51 of this rule eliminates restrictions on crew 
size during Access Area trips and for small dredge vessels, thereby 
relieving a restriction, it is not subject to the 30-day delayed 
effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1). 
Under current regulations, the number of people on board vessels 
participating in the Access Area program could not exceed seven 
individuals and the number of people aboard vessels participating in 
the small dredge program could not exceed five individuals. Section 
648.51 eliminates restrictions on the number of people aboard vessels 
participating in the Assess Area program and vessels participating in 
the small dredge program, thereby, providing vessels the flexibility to 
maximize their economic gain by fishing with the crew size of their 
choice. This restriction should be relieved prior to the opening of the 
Access Areas on June 15, 2006, so that fishers can arrange for their 
crew prior to the beginning of the season.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the 30-day delay in effective date for this rule under 
authority contained in 5 U.S.C. 553(d)(3) because a delay would be 
impracticable and contrary to public interest from the perspective of 
resource conservation needs and economic impact on the public. 
Framework 18 implements biennial adjustments to ensure that measures 
meet the target fishing mortality rate and achieve OY from the scallop 
resource. Access Area and DAS allocations are set for each fishing year 
to achieve, but not exceed, annual fishing mortality objectives and OY. 
Under current regulations, the CAI Access Area will open on June 15, 
2006. When Framework 18 was being finalized, an EFH court decision 
reduced the size of CAI. Because fishing

[[Page 33219]]

effort in CAI will now be concentrated in a smaller area, if fished, 
localized depletion of the scallop resource in CAI is possible. CAI is 
an important Access Area for the scallop fishery because its close 
proximity to shore makes to easy to access and because of its abundant 
scallop resource. Therefore, if this area opens on June 15, 2006, 
fishers will likely immediately take their CAI trip allowed under 
current regulation. This rule closes CAI for 2006 to prevent localized 
depletion of the scallop resource within the Access Area. Allowing 
fishing in the CAI will increase the potential for exceeding 2006 
fishing mortality targets and may result in long-term harm to the 
health of the scallop resource within this important Access Area.
    Delaying implementation of this rule would be impracticable and 
contrary to public interest because it may prevent scallop fishers from 
optimizing their limited fishing opportunities in 2006, and possibly in 
2007. Because this rule modifies options for fishing in open areas and 
in Access Areas, it should be implemented as soon as possible to ensure 
that fishers are able to optimize their decisions on when and where to 
fish, given a limited number of fishing opportunities. To delay the 
effectiveness of this rule may result in fishers making less than 
optimal decisions, especially concerning Access Area trips, because 
they will be basing their fishing decisions for 2006 on current 
regulations and not on the specifications for 2006 and 2007. This rule 
also modifies HCAA requirements by allowing vessels to utilize unused 
2005 HCAA trips. Under current regulations, unused 2005 HCAA trips are 
lost fishing opportunities. Additionally, this rule implements more 
restrictive open area DAS provisions for 2006 than open area DAS 
provisions under current regulations. The scallop open area fishing 
year started on March 1, 2006, and fishers have been basing their 
fishing decisions on the more liberal DAS provisions under current 
regulations and not the more restrictive open area DAS provisions for 
2006. Because open area DAS are limited, this rule should be 
implemented as soon as possible to prevent fishers from exceeding the 
more restrictive 2006 open area DAS provisions. If fishers do exceed 
2006 open area DAS during 2006, their excess open area DAS will be 
subtracted from their 2007 open area DAS opportunities. For these 
reasons, this rule should be implemented as soon as possible to allow 
fishers to optimize limited fishing opportunities to maximize economic 
gain in both 2006 and 2007 and to avoid more restrictive measures, and 
possible economic penalties, in 2007.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a FRFA in support of Framework 18. The FRFA describes the 
economic impact that this final rule, along with other non-preferred 
alternatives, will have on small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA for the proposed rule to implement Framework 18 (71 FR 
16091, March 30, 2006), the comments and responses in this final rule, 
and the corresponding economic analyses prepared for Framework 18 
(e.g., the EA and the RIR). The contents of these incorporated 
documents are not repeated in detail here. A copy of the IRFA, the RIR, 
and the EA are available upon request (see ADDRESSES). A description of 
the reasons for this action, the objectives of the action, and the 
legal basis for this final rule are found in Framework 18 and the 
preamble to the proposed and final rules.

Statement of Need for This Action

    The purpose of this action is to improve the management of the 
scallop fishery and to make necessary adjustments to the existing 
management measures, including the Scallop FMP's Area Rotation Program.

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

    Several industry representatives expressed concern regarding the 
timing of the January 1, 2007, opening of the ETAA. They stated that 
opening the ETAA 2-months before the start of the scallop fishing year 
on March 1 may introduce uncertainty into the scallop market by making 
high volumes of scallops available during non-peak harvesting times. 
This could create the need to freeze scallops for future sales because 
of the lower prices associated with high supplies of scallops. The 
analysis for Framework 18 concluded that opening the ETAA on January 1, 
2007, thereby providing 2 additional months of fishing opportunity in 
2007, may help to disperse fishing effort within the area over the 
longer period. Dispersing fishing effort over time should reduce the 
likelihood that the scallop resource in the ETAA will be adversely 
impacted by intense fishing effort (e.g., rapid depletion and high 
levels of effort and scallop shucking in a confined area). A January 1 
opening also has the potential of further reducing fishery interactions 
with sea turtles by allowing more fishing to occur prior to summer 
months when threatened and endangered sea turtles are most likely to be 
present within the ETAA. In the initial year of the ETAA opening, the 2 
additional months of fishing opportunity also help offset the September 
1-October 31 closure of the ETAA that is intended to reduce fishery 
interactions with sea turtles. No changes to the proposed rule were 
made as a result of this comment.

Description of Small Entities to Which This Action Will Apply

    The regulations associated with Framework 18 will affect vessels 
with limited access scallop and general category permits. According to 
NMFS Northeast Region permit data, 337 vessels were issued limited 
access scallop permits, with 300 full-time, 30 part-time, and 7 
occasional limited access permits in the 2004 fishing year. In 
addition, 2,801 open access general category permits were issued to 
vessels in the 2004 fishing year. All of the vessels in the Atlantic 
sea scallop fishery are considered small business entities because all 
of them grossed less than $4 million according to landings data for the 
2004 fishing year. Complete landings and value information from the 
2005 fishing year is not available, since the fishing year ended on 
February 28, 2006. According to the information in Framework 18, annual 
revenue from scallop landings averaged about $759,816 per full-time 
vessel, $208,002 per part-time vessel, and $7,193 per occasional vessel 
during the 1999-2004 fishing years. Total revenues per vessel for all 
species landed were less than $3 million per vessel. Since December 1, 
2005, the general category fleet has been separated into two permit 
categories under Framework Adjustment 17 to the FMP (70 FR 61233, 
October 21, 2005). Vessels that possess up to 400 lb (181.4 kg) per 
trip are required to operate VMS and are issued a VMS general scallop 
permit. Vessels that do not possess more than 40 lb (18.1 kg) are not 
required to operate VMS and are issued Non-VMS general scallop permits. 
There are currently 831 VMS general scallop vessels and 1,949 Non-VMS 
general scallop vessels. Revenues for these vessels are not available 
at this time.
    Two criteria, disproportionality and profitability, are considered 
to determine the significance of regulatory impacts on small entities. 
The disproportionality criterion compares the effects of the regulatory 
action on

[[Page 33220]]

small versus large entities. All of the vessels permitted to harvest 
sea scallops are considered to be small entities, and therefore, there 
are no disproportionate effects between large and small entities. The 
profitability criterion applies if the regulation significantly reduces 
profit for a substantial number of small entities, and is discussed in 
the Economic Impacts section of the FRFA summary in this final rule.

Description of Reporting, Recordkeeping, and Other Compliance 
Requirements

    Framework 18 implements one new reporting, recordkeeping, and 
compliance requirement for limited access scallop vessels. The broken 
trip program allows vessels to resume an Access Area trip that was 
terminated before the vessel was able to catch the full possession 
limit, provided the vessel operator complies with the notification 
requirements, submits a request for a compensa