Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 11, 71315-71344 [E7-24254]
Download as PDF
Federal Register / Vol. 72, No. 241 / Monday, December 17, 2007 / Proposed Rules
Dated: November 30, 2007.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
[FR Doc. E7–24347 Filed 12–14–07; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 071130780–7564–01]
RIN 0648–AU32
Fisheries of the Northeastern United
States; Atlantic Sea Scallop Fishery;
Amendment 11
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
ebenthall on PROD1PC69 with PROPOSALS
AGENCY:
SUMMARY: NMFS proposes regulations to
implement measures in Amendment 11
to the Atlantic Sea Scallop Fishery
Management Plan (FMP). Amendment
11 was developed by the New England
Fishery Management Council (Council)
to control the capacity of the open
access general category fleet.
Amendment 11 would establish a new
management program for the general
category fishery, including a limited
access program with individual fishing
quotas (IFQs) for qualified general
category vessels, a specific allocation for
general category fisheries, and other
measures to improve management of the
general category scallop fishery.
DATES: Public comments must be
received no later than 5 p.m., eastern
standard time, on January 31, 2008.
ADDRESSES: A final supplemental
environmental impact statement (FSEIS)
was prepared for Amendment 11 that
describes the proposed action and other
considered alternatives and provides a
thorough analysis of the impacts of the
proposed measures and alternatives.
Copies of Amendment 11, the FSEIS,
and the Initial Regulatory Flexibility
Analysis (IRFA), 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.
You may submit comments, identified
by 0648–AU32, by any one of the
following methods:
• Electronic Submissions: Submit all
electronic public comments via the
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Federal eRulemaking Portal https://
www.regulations.gov
• Fax: (978) 281–9135, Attn: Peter
Christopher
• Mail: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, One Blackburn Drive,
Gloucester, MA 01930. Mark the outside
of the envelope, ‘‘Comments on Scallop
Amendment 11 Proposed Rule.’’
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
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
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 estimate or other aspects of
the collection-of-information
requirement contained in this proposed
rule should be submitted to the Regional
Administrator at the address above and
by e-mail to
DavidlRostker@omb.eop.gov, 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
The general category scallop fishery is
currently an open access fishery that
allows any vessel to fish for up to 400
lb (181.44 kg) of Atlantic sea scallops
(scallops), provided the vessel has been
issued a general category or limited
access scallop permit. This open access
fishery was established in 1994 by
Amendment 4 to the FMP (Amendment
4) to allow vessels fishing in nonscallop fisheries to catch scallops as
incidental catch, and to allow a smallscale scallop fishery to continue outside
of the limited access and effort control
programs aimed at the large-scale
scallop fishery. Over time, the overall
participation in the general category
fishery has increased. In 1994, there
were 1,992 general category permits
issued. By 2005 that number had
increased to 2,950. In 1994, there were
181 general category vessels that landed
scallops, while in 2005 there were over
600.
Out of concern about the level of
fishing effort and harvest from the
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general category scallop fleet, the
Council recommended that a Federal
Register notice should be published to
notify the public that the Council would
consider limiting entry to the general
category scallop fishery as of a specified
control date. NMFS subsequently
established the control date of
November 1, 2004. In January 2006, the
Council began the development of
Amendment 11 to evaluate alternatives
for a limited access program and other
measures for general category vessels.
The Council held 35 meetings open to
the public on Amendment 11 between
January 2006 and June 2007. After
considering a wide range of issues,
alternatives, and public input, the
Council adopted a draft supplemental
environmental impact statement
(DSEIS) for Amendment 11 on April 11,
2007. Following the close of the public
comment period on June 18, 2007, the
Council adopted Amendment 11 on
June 20, 2007.
Amendment 11 would establish
criteria and authority for determining
the percentage of scallop catch allocated
to the general category fleet and would
establish the IFQ program. However,
these specific allocation amounts have
been being developed by the Council as
part of Framework 19 to the FMP
(Framework 19) which will establish
scallop fishery management measures
for the 2008 and 2009 fishing years.
After proposing the allowable levels of
fishing based on updated survey
information and fishing mortality
targets, the total allowable catches
(TACs) described below would be
specified through a separate rulemaking
for Framework 19. Framework 19 also
would specify management measures
for the 2008 and 2009 fishing years that
would be recommended if Amendment
11 is not approved.
A Notice of Availability (NOA) for
Amendment 11 was published on
November 30, 2007. The comment
period on the NOA ends on January 29,
2008.
Proposed Measures
The proposed regulations are based
on the description of the measures in
Amendment 11. NMFS has noted
several instances where it has
interpreted the language in Amendment
11 to account for any missing details in
the Council’s description of the
proposed measures. NMFS seeks
comments on all of the measures in
Amendment 11, particularly the noted
instances.
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Federal Register / Vol. 72, No. 241 / Monday, December 17, 2007 / Proposed Rules
Limited Access Program for the General
Category Fishery
Amendment 11 would require vessels
to be issued a limited access general
category (LAGC) scallop permit in order
to land scallops under general category
rules. All general category permits
would be limited access, requiring that
a vessel owner submit an application
demonstrating that the vessel is eligible
for the permit. The current general
category permits (1A- non VMS, and 1BVMS permits) would be replaced with
three types of LAGC scallop permits:
IFQ LAGC scallop permit (IFQ scallop
permit); Northern Gulf of Maine
(NGOM) LAGC scallop permit (NGOM
scallop permit); and incidental catch
LAGC scallop permit (Incidental scallop
permit).
A vessel would be eligible to be
issued an IFQ scallop permit if the
owner could document landings of at
least 1,000 lb (454 kg) of scallop meats,
as verified by NMFS records or
documented through dealer receipts, in
any fishing year between March 1, 2000,
and November 1, 2004, and issuance of
a general category scallop permit to the
vessel during the fishing year in which
the landings were made.
The owner of a vessel who cannot
qualify for an IFQ scallop permit, or
who elects not to apply for an IFQ
scallop permit, could instead be issued
a NGOM scallop permit. The NGOM
scallop permit would allow the vessel to
fish in the NGOM exclusively, defined
as the waters north of 42° 20′ N. Lat. A
vessel would qualify for the NGOM
scallop permit if it had been issued a
valid general category scallop permit as
of November 1, 2004. There would be
no landings eligibility criteria. Vessels
issued this permit would be subject to
additional restrictions outlined in the
description of the NGOM Scallop
Management Area below.
A vessel would qualify for an
Incidental scallop permit if it had been
issued a valid general category scallop
permit as of November 1, 2004. There
would be no landings eligibility criteria.
This provision is intended to allow an
incidental level of scallop catch for
vessels that meet the permit eligibility,
but not the landings criteria. This
permit would allow such vessels to
possess and land up to 40 lb (18.14 kg)
of scallops per trip, and is intended to
allow landing of incidental scallop
catch. Some vessels that could qualify
for an IFQ scallop permit may opt for
the Incidental scallop permit because it
permits vessels to land an incidental
catch of scallops on an unlimited
number of trips. In drafting the
proposed rule, NMFS presumed that the
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limited access permit restrictions
specified below apply to all three types
of LAGC scallop permit, unless
specifically excluded in Amendment 11.
Initial Application for a LAGC Scallop
Permit
A vessel owner would be required to
submit an initial application for a LAGC
scallop permit or confirmation of permit
history within 90 days of the effective
date of the final regulations. The
Council recommended the shorter than
usual application period to expedite the
transition to the IFQ program. The IFQ
program cannot be implemented until
all IFQ permits are issued because the
number of vessels and the contribution
factors for all qualified IFQ scallop
vessels will be used to determine each
vessel’s IFQ share of the TAC allocated
to IFQ scallop vessels (see ‘‘IFQs for
Limited Access General Category
Scallop Vessels’’ below).
Limited Access Vessel Permit Provisions
Amendment 11 would establish
measures to govern future transactions
related to limited access vessels, such as
purchases, sales, or reconstruction.
These measures would apply to all
LAGC scallop vessels. Except as noted,
the provisions proposed in this
amendment are consistent with those
that govern most of the other Northeast
region limited access fisheries; there are
some differences in the limited access
program for American lobster.
1. Initial Eligibility
Initial eligibility for an LAGC scallop
permit would have to be established
during the first year after the
implementation of Amendment 11. A
vessel owner would be required to
submit an application for an LAGC
scallop permit or CPH within 90 days of
the effective date of the final
regulations.
2. Landings History
Amendment 11 specifies landings and
permit history criteria that a vessel
would have to meet to qualify for LAGC
permits. It also specifies that an IFQ
scallop vessel would be allocated IFQ
based on its best year of scallop
landings and the number of fishing
years active during the qualification
period of March 1, 2000, through
November 1, 2004. Amendment 11
specifies that qualifying landings would
have to be from the same scallop fishing
year (March 1 through February 28/29)
that a vessel was issued a general
category scallop permit during the
qualification period. Therefore, this
proposed rule requires that, for any
landings to be used in determining
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eligibility, best year of fishing, years
active, and the resulting contribution
factor, the vessel must have been issued
a general category scallop permit in the
fishing year the landings were made.
The best year of scallop landings
would be the scallop fishing year during
the qualification period with the highest
amount of scallop meats landed,
provided the vessel was issued a general
category scallop permit. Years active
would be the number of scallop fishing
years during the qualification period
that the vessel landed at least 1lb (0.45
kg) of scallops provided the vessel was
issued a general category scallop permit.
In-shell scallop landings would be
converted to meat-weight using the
formula of 8.33 lb (3.78 kg) of scallop
meats for each U.S. bushel of in-shell
scallops, for qualification purposes.
NMFS landings data from dealer
reports would be used to determine a
vessel’s eligibility for an IFQ scallop
permit, a qualified IFQ scallop vessel’s
best year of scallop landings, and years
active in the general category scallop
fishery. The NMFS permit database
would be used to determine permit
criteria eligibility for all LAGC scallop
permits. Applicants would be allowed
to dispute the denial of an LAGC
permit, or contribution factor (based on
best year and years active), through the
eligibility appeals process described
below.
3. Confirmation of Permit History (CPH)
A person who does not currently own
a fishing vessel, but who has owned a
qualifying vessel that has sunk, or been
destroyed, or transferred to another
person, would be required to apply for
and receive a CPH if the fishing and
permit history of such vessel has been
retained lawfully by the applicant. Such
an application would have to be made
within 90 days of the effective date of
the final regulations for Amendment 11.
The CPH provides a benefit to a vessel
owner by securing limited access
eligibility through a registration system
when the individual does not currently
own a vessel. To be eligible to obtain a
CPH, the applicant would have to show
that the qualifying vessel meets the
eligibility requirements for the
applicable LAGC permit, and that all
other permit restrictions described
below are satisfied. Issuance of a valid
CPH would preserve the eligibility of
the applicant to apply for an LAGC
permit for a replacement vessel based
on the qualifying LAGC scallop vessel’s
fishing and permit history at a
subsequent time. A CPH would have to
be applied for in order for the applicant
to preserve the LAGC scallop permit
eligibility of the qualifying vessel.
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Vessel owners who were issued a CPH
could obtain a vessel permit for a
replacement vessel based upon the
previous vessel’s history that would
utilize the CPH. IFQ associated with a
CPH would count toward a vessel
owner’s overall ownership of IFQ, and
would be restricted under the 5–percent
ownership cap.
4. Permit Transfers
An LAGC scallop permit and fishery
history would be presumed to transfer
with a vessel at the time it is bought,
sold, or otherwise transferred from one
owner to another, unless it is retained
through a written agreement signed by
both parties in the vessel sale or
transfer.
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5. Permit Splitting
Amendment 11 adopts the permit
splitting provision currently in effect for
other limited access fisheries in the
region. Therefore, an LAGC scallop
permit may not be issued to a vessel if
the vessel’s permit or fishing history has
been used to qualify another vessel for
a limited access permit. This means all
limited access permits, including LAGC
scallop permits, must be transferred as
a package when a vessel is replaced or
sold. However, Amendment 11
explicitly states that the permit-splitting
provision would not apply to the
transfer/sale of general category scallop
fishing history prior to the
implementation of Amendment 11, if
any limited access permits were issued
to the subject vessel. Thus, vessel
owners who sold vessels with limited
access permits and retained the general
category scallop fishing history with the
intention of qualifying a different vessel
for the LAGC scallop permit would be
allowed to do so under Amendment 11.
This differs from the current permit
splitting provisions of other limited
access fishery regulations, and
specifically the Atlantic herring limited
access permit splitting provision
recently implemented under
Amendment 1 to the Atlantic Herring
FMP. A vessel with an existing limited
access scallop permit (i.e., full-time,
part-time, or occasional) that also
qualifies for an LAGC scallop permit
could not split the LAGC scallop permit
from the existing limited access scallop
permit.
6. Qualification Restriction
Consistent with previous limited
access programs, no more than one
vessel would be able to qualify, at any
one time, for a limited access permit or
CPH based on that or another vessel’s
fishing and permit history, unless more
than one owner has independently
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established fishing and permit history
on the vessel during the qualification
period and has either retained the
fishing and permit history, as specified
above, or owns the vessel at the time of
initial application under Amendment
11. If more than one vessel owner
claimed eligibility for a limited access
permit or CPH, based on a vessel’s
single fishing and permit history, the
NMFS Regional Administrator would
determine who is entitled to qualify for
the permit or CPH.
7. Appeal of Permit Denial
Amendment 11 specifies an appeals
process for applicants who have been
denied an LAGC scallop permit. Such
applicants would be able to appeal in
writing to the Regional Administrator
within 30 days of the denial, and any
such appeal would have to be based on
the grounds that the information used
by the Regional Administrator was
incorrect.
The appeals process would allow an
opportunity for a hearing before a
hearing officer designated by the
Regional Administrator. The owner of a
vessel denied an LAGC scallop permit
could fish for scallops under the
applicable general category scallop
regulations, provided that the denial has
been appealed, the appeal is pending,
and the vessel has on board a letter from
the Regional Administrator authorizing
the vessel to fish under the LAGC
scallop permit category. The Regional
Administrator would issue such a letter
for the pendency of any appeal. If the
appeal was ultimately denied, the
Regional Administrator would send a
notice of final denial to the vessel
owner; and the authorizing letter would
become invalid 5 days after receipt of
the notice of denial, but no longer than
10 days after the date that the denial
letter is sent.
8. Vessel Upgrades
A vessel issued an LAGC scallop
permit would not be limited by vessel
size upgrade restrictions if the owner
wished to modify or replace the vessel.
However, if that vessel has also been
issued limited access permits under
§ 648.4 that have upgrade restrictions
(i.e., all other limited access permits
issued in accordance with § 648.4), the
upgrade restrictions for that fishery
would apply to any modification or
replacement, unless the permit with the
restrictions were permanently
relinquished as specified under
‘‘voluntary relinquishment of
eligibility,’’ below.
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9. Vessel Baselines
A vessel’s baseline refers to those
specifications (length overall, gross
registered tonnage net tonnage, and
horsepower) from which any future
vessel size change is measured. Because
there are no vessel size upgrade
restrictions, a vessel issued an LAGC
scallop permit would not have baseline
size and horsepower specifications.
However, if that vessel has also been
issued limited access permits under
§ 648.4 that have upgrade restrictions,
any size change would be restricted by
those baseline specification
requirements, unless those permits were
permanently relinquished as specified
in ‘‘Voluntary relinquishment of
eligibility’’ below.
10. Vessel Replacements
The term vessel replacement (vessel
replacement), in general, refers to
replacing an existing limited access
vessel with another vessel. This rule
would require that the same entity must
own both the LAGC scallop vessel (or
fishing history) that is being replaced,
and the replacement vessel. Unlimited
upgrades of vessel size and horsepower
through a vessel replacement would be
allowed, unless the vessel to be replaced
is restricted on upgrades because it has
been issued other limited access permits
pursuant to § 648.4.
11. Ownership Cap
A vessel issued an IFQ scallop permit
could not be allocated more than 2
percent of the TAC allocated to the fleet
of vessels issued IFQ scallop permits. In
addition, an individual could not have
ownership interest in more than 5
percent of the TAC allocated to the fleet
of vessels issued IFQ scallop permits.
The only exceptions to these ownership
cap provisions are if a vessel’s initial
contribution factor results in the
ownership of more than 2 percent of the
overall TAC initially upon initial
application for the IFQ scallop permit,
or if the vessel owner owns more than
5 percent of the overall TAC initially
upon initial application for the IFQ
scallop permits. This restriction would
not apply to existing limited access
scallop vessels that also have been
issued an IFQ scallop permit since such
vessels are already subject to the 5–
percent ownership cap for limited
access permits and because such vessels
would not be permitted to transfer IFQ
between vessels.
12. Voluntary Relinquishment of
Eligibility
A vessel owner could voluntarily exit
the LAGC fishery by permanently
relinquishing the permit. In some
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circumstances, it could allow vessel
owners to choose between different
permits with different restrictions
without being bound by the more
restrictive requirement (e.g., lobster
permit holders may choose to relinquish
their other Northeast Region limited
access permits to avoid being subject to
the reporting requirements associated
with those other permits). If a vessel’s
LAGC scallop permit or CPH is
voluntarily relinquished to the Regional
Administrator, no LAGC scallop permit
could ever be reissued or renewed based
on that vessel’s permit and fishing
history.
13. Permit Renewals and CPH Issuance
A vessel owner must maintain the
limited access permit status for an
eligible vessel by renewing the permits
on an annual basis or applying for
issuance of a CPH. All LAGC scallop
permits must be issued on an annual
basis by the last day of the fishing year
for which the permit is required, unless
a CPH has been issued. However, as a
condition of the permit, the vessel may
not fish for, catch, possess, or land, in
or from Federal or state waters, any
species of fish authorized by the permit,
unless and until the permit has been
issued or renewed in any fishing year,
or the permit either has been voluntarily
relinquished or otherwise forfeited,
revoked, or transferred from the vessel.
A complete application for such permits
must be received no later than 30 days
before the last day of each fishing year.
A CPH does not need to be renewed
annually. Once a CPH has been issued
to an individual who has retained the
LAGC scallop permit and fishing history
of a vessel, it remains valid until it is
replaced by a vessel permit through the
vessel replacement process.
A vessel’s LAGC scallop permit
history would be cancelled due to the
failure to renew, in which case, no
LAGC scallop permit could ever be
reissued or renewed based on that
vessel’s permit and fishing history.
Amendment 11 would implement a
cost recovery program, with the
payment procedures and details to be
established in Framework 19. Under the
IFQ program, vessels would be required
to pay up to 3 percent of their revenue
from scallop landings to offset the cost
of managing, enforcing, and
implementing the IFQ program, as
required by the Magnuson-Stevens Act.
Failure to pay cost recovery fees by the
specified due date would result in
NMFS action invalidating the IFQ
scallop permit. If the invalidation of the
IFQ scallop permit due to failure to pay
for cost recovery fees is not resolved in
the course of the applicable fishing year,
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no IFQ scallop permit could ever be
reissued or renewed based on that
vessel’s permit and fishing history.
Limited Access Scallop Vessels Fishing
Under General Category Rules
A vessel issued one of the existing
limited access scallop permits (i.e., a
full-time, part-time, or occasional
scallop permit) may also be eligible to
be issued a LAGC scallop permit if it
meets the qualification criteria
described above. Such a vessel would be
allowed to fish under general category
regulations when not fishing under the
scallop DAS or Area Access programs.
Existing limited access scallop vessels
were not required to be issued a general
category scallop permit. Therefore, to be
issued an Incidental or NGOM scallop
permit, the limited access vessel would
have to have been issued a valid limited
access scallop permit as of November 1,
2004. To be issued the IFQ scallop
permit, an existing limited access
scallop vessel would have to have been
issued a valid limited access scallop
permit during the period March 1, 2000,
through November 1, 2004, and have
documented landings of at least 1,000 lb
(454 kg) of scallop meats when not
fishing under the DAS or Area Access
programs, as verified by NMFS records
or documentation through dealer
receipts. A limited access scallop vessel
that does not qualify for a LAGC scallop
permit could not fish for, possess, or
retain scallops when not fishing under
the scallop DAS and Area Access
programs. Limited access scallop vessels
that also qualify for an IFQ scallop
permit would not be permitted to
transfer IFQ. Therefore, the general
category maximum allocation restriction
or the maximum percentage ownership
restriction for general category TAC
would not apply. The limited access
general category permit and IFQ scallop
permit could not be split from the
limited access scallop permit.
Allocation of the Total Annual
Projected Scallop Catch to the General
Category Fishery under the IFQ Program
Once the IFQ program is
implemented, 5 percent of the total
projected annual scallop catch would be
allocated to vessels with IFQ scallop
permits. This would be calculated by
taking the total projected annual scallop
catch, then deducting estimated catch
by incidental catch general category
vessels and the total allowable catch
(TAC) in the NGOM. Five percent of the
resultant catch would then be allocated
to the IFQ scallop fishery. IFQs for IFQ
scallop vessels would be derived from
the 5–percent TAC allocation. The 5–
percent allocation would not apply to
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current limited access vessels that also
have IFQ scallop permits. Limited
access scallop vessels with IFQ scallop
permits would be allocated 0.5 percent
of the total projected annual scallop
catch after deduction of incidental catch
and the NGOM TAC. IFQs for these
vessels would be derived from the 0.5–
percent TAC allocation. The remaining
94.5 percent of the total projected
annual scallop catch, after deduction of
incidental catch and the NGOM TAC,
would be allocated for harvest by the
current limited access scallop fishery.
IFQs for Limited Access General
Category Scallop Vessels
A vessel issued an IFQ scallop permit
would be allocated a percentage of the
TAC allocated to the IFQ scallop fishery
based on the vessel’s ‘‘contribution
factor.’’ The contribution factor for each
vessel would be determined by
multiplying a vessel’s best fishing year
of landings during the March 1, 2000,
through November 1, 2004, qualification
period by an index factor based on the
number of years the vessel was active in
the scallop fishery during the
qualification period. A vessel would be
determined to be active in the scallop
fishery if it landed at least 1 lb (0.45 kg)
of scallops. The index factors for
varying levels of participation during
the qualification period are: 0.75 for
1year; 0.875 for 2 years; 1.0 for 3 years;
1.125 for 4 years; and 1.25 for 5 years.
The index factor is intended to provide
more weight in calculating the
allocation for vessels that have been
participating in the general category
fishery for a longer period of time. A
vessel’s contribution percentage will be
determined by dividing its contribution
factor by the sum of the contribution
factors of all vessels issued a limited
access general category scallop permit.
A vessel’s IFQ would be determined by
multiplying the TAC for IFQ scallop
vessels by the vessel’s contribution
percentage. IFQ would be issued to
owners of CPHs since that vessel’s
contibution would be included in the
determination of IFQs as described
below. IFQ associated with CPHs would
be transferable.
The following is an example of how
a vessel’s IFQ would be determined
using hypothetical values: A vessel
landed 48,550 lb (22,023 kg) of scallops
in its best year, and was active in the
general category scallop fishery for 5
years. The vessel’s contribution factor
would be equal to 48,550 lb (22,023
kg)*1.25 = 60,687 lb (27,527 kg). For
this example, the highest total scallop
landings is assumed to be 3.8 million lb
(1,724 mt), and the number of qualifying
vessels is assumed to be 380. The sum
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of the contribution factors for limited
access general category scallop vessels
is assumed to be 4.18 million lb (1,896
mt). The contribution percentage of the
above vessel would therefore be 1.45
percent (60,687 lb (27,527 kg) / 4.18
million lb (1,896 mt) = 1.45 percent).
The vessel’s IFQ would be the vessel’s
contribution percentage (1.45 percent)
multiplied by the TAC allocated to all
IFQ scallop vessels. Assuming a TAC
equal to 2.5 million lb (1,134 mt), the
vessel’s IFQ would be 36,250 lb (16,443
kg) (1.45 percent × 2.5 million lb (1,134
mt)).
The IFQ program cannot be
implemented until all IFQ scallop
permits and CPHs have been issued
because the calculation of the IFQ
shares requires the contribution factors
for all qualified IFQ scallop vessels to be
totaled. However, eligibility, best year,
and the contribution factor for each
vessel would be determined upon initial
application for a limited access general
category scallop permit. This issue is
discussed under the ‘‘Measures for the
transition period to IFQ’’ description
below.
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IFQ Transfers
IFQ scallop vessel and CPH owners
would be allowed to transfer IFQ on a
temporary or permanent basis. A
temporary IFQ transfer (or lease) would
allow one IFQ scallop vessel to combine
IFQs to increase fishing opportunity for
a single fishing year. A permanent IFQ
transfer would permanently move the
IFQ from one vessel to another. Since a
permanent IFQ transfer would require
the vessel to transfer the IFQ scallop
permit (and any other permits) to the
transferee, the transferring vessel would
not be eligible to enter into an
agreement to transfer IFQ back to the
vessel, unless the vessel replaced
another IFQ scallop vessel. Each IFQ
allocation would have to be transferred
in full before it is utilized, and a vessel
that used IFQ in a fishing year could not
transfer its IFQ during that fishing year.
An IFQ transfer would not be approved
if it would result in the receiving IFQ
scallop vessel having a share of more
than 2 percent of the total TAC
allocation to the IFQ fishery. IFQ
transfers would not be permitted for
existing limited access scallop vessels
that also have been issued an IFQ
scallop permit.
IFQ Cost Recovery
The Magnuson-Stevens Act requires
any IFQ program to include a cost
recovery program, whereby NMFS
would collect up to 3 percent of exvessel value of landed product to cover
actual costs directly related to
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enforcement and management of an IFQ
program. The authority and procedures
for collection of cost recovery fees
would be established in this rule.
Further details of the cost recovery
program will be proposed in Framework
19, in which TACs would be established
for LAGC scallop vessels. As
recommended in Amendment 11, the
IFQs would be rounded up to the
nearest 10–lb unit. The cost recovery fee
for an IFQ that was temporarily
transferred to another IFQ scallop vessel
would be the responsibility of the owner
of the transferring IFQ scallop vessel,
not the owner of the receiving IFQ
scallop vessel.
Measures for the Transition Period to
IFQ
Amendment 11 recognizes that it
would take between 12 to 24 months to
determine the universe of qualified
vessels that would be issued an IFQ
scallop permit. The time is necessary to
accommodate applicants who pursue
permits through the appeals process. As
a result, it would not be possible to
implement an IFQ program at the same
time that NMFS is in the process of
determining eligibility and contribution
factors. Recognizing the problem,
Amendment 11 specifies measures for a
transition period. The transition
measures include a quarterly TAC equal
to 10 percent of the total projected
scallop catch. Vessels that qualify for an
IFQ scallop permit and vessels under
appeal for an IFQ scallop permit would
be authorized to fish for scallops,
subject to the quarterly TAC, with all
landings counted toward the TAC.
When the TAC is projected to be
attained, the general category fishery
would close for the remainder of the
quarter. Any underage or overage of the
first quarter would be applied to the
third quarter, and any underage or
overage of the second quarter would be
applied to the fourth quarter. The
quarterly TACs for the 2008 fishing
year, beginning March 1, 2008, will be
specified in Framework 19. A quarterly
TAC is proposed rather than an annual
TAC due to concerns about derby
fishing. This quarterly distribution of
TAC is intended to reduce the negative
effects of a race to take the TAC. The
10–percent allocation would result in a
TAC that would be consistent with
recent projections for scallop mortality
from the general category fishery and
would account for additional effort
expected from vessels under the appeals
process.
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Mechanism to Allow Voluntary Sectors
in the General Category Fishery
The proposed action includes a
mechanism to allow the owners of IFQ
scallop vessels to form voluntary sectors
that would manage their own fishing
activity as a group. This rule outlines
the procedures that would be used to
form a sector, and the sector program
requirements. The sector provision
includes: Restrictions on participation;
definition and requirements for
operations plans; specifications for the
review, approval, and revocation
process; allocation of TAC to sectors;
sector share determination; restrictions
on sector membership changes;
restrictions on interaction between
sectors; monitoring and enforcement
provisions for sectors; a prohibition on
trading of allocation between sectors;
restrictions on vessel movement
between sectors; a 20–percent maximum
total allocation for a single sector. The
400–lb (181.44–kg) possession limit
would be maintained for vessels in a
sector. The formation of sectors is
intended to provide greater flexibility
for participants and create outcomes
that are more socially and economically
relevant for fishing groups within the
biological limitations of the fishery
(TACs). The 20–percent cap on a
sector’s share of the IFQ is intended to
prevent one sector from controlling an
excessive percentage of the general
category allocation. Unlike the sector
program for the Northeast multispecies
fishery, Amendment 11 would not allow
sectors to be exempt from any scallop
regulations, except that participating
vessels would not be restricted by their
IFQs.
NGOM Scallop Management Area
The NGOM scallop management area
would be waters north of 42°20′ N. Lat.
The NGOM scallop management area
would be managed separately, because
the Council concluded that it has
unique characteristics such as smaller
vessels and sporadic fishable resource.
The NGOM scallop management area
would establish scallop fishing controls
appropriate for the fishery while
protecting the resource in the area from
overharvest, if and when scallops are
present in the area. Measures include
the separate NGOM general category
scallop permit and qualification criteria;
a TAC based on historical landings from
Federal waters in the NGOM; a
possession limit of 200 lb (90.72 kg) of
scallops per trip, with one trip per
calendar day allowed; a provision that
an IFQ vessel fishing in the NGOM
scallop management area would have
scallop landings deducted from its IFQ
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and the NGOM scallop management
area TAC; and a prohibition on
possession of scallops by any vessel,
once the NGOM scallop management
area TAC is harvested. Amendment 11
does not include specific restrictions for
vessels fishing under scallop DAS in the
NGOM, except that such vessels could
not continue fishing in the NGOM once
the TAC for the area has been reached.
Monitoring
All LAGC scallop vessels would be
required to install and operate a VMS
unit and would be required to declare
a general category trip or other fishing
activity code, as appropriate. In
addition, IFQ and NGOM scallop
vessels would be required report scallop
landings through VMS. This provision
would improve monitoring of an IFQ
program by requiring vessels to report
their catch, approximate time of
landing, and port of landing before
crossing the VMS demarcation line in
order to enhance enforcement of the IFQ
program and NGOM scallop fishery. The
report submitted through VMS would
include the VTR serial number, amount
of scallops on-board, the port of landing,
and the approximate time of arrival in
port. This monitoring requirement
would enable NMFS to monitor the TAC
and IFQs on a more real-time basis.
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Change Issuance Date of General
Category Permit
The issuance date of general category
permits would be changed from May 1
to March 1 of each year to be consistent
with the scallop fishing year.
Synchronizing the issuance of general
category scallop permits with the
scallop fishing year would make this
permit consistent with the existing
limited access scallop permit issuance
date.
Other Measures
This action would clarify that vessels
that are fishing under a Northeast
multispecies or monkfish DAS would
not be restricted to the 144–ft (43.9–m)
net sweep restriction at § 648.52 that
currently specifies that a vessel using a
net with a sweep greater than 144 ft
(43.9 m) cannot fish for, possess, retain,
or land more than 40 lb (18.14 kg) of
shucked or 5 bu (1.76 hL) of in-shell
scallops. The Council recommended
this change because the 144–ft (43.9–m)
restriction was not intended to apply to
vessels fishing for other species that
would have an incidental catch of
scallops, provided the vessel is issued
the appropriate LAGC scallop permit.
Amendment 11 proposes to allow an
IFQ scallop vessel to possess up to 100
bu (35.24 hL) of in-shell scallops
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seaward of the VMS demarcation line
only. Once shoreward of the VMS
demarcation line, a vessel could possess
only 50 bu (17.62 hL) of in-shell
scallops. This measure is proposed
because scallop vessel owners and
operators testified that it often takes
more than 50 bu (17.62 hL) of in-shell
scallops to yield 400 lb (181.44 kg) of
scallop meats. NMFS notes that similar
increases were not specified by the
Council for the NGOM possession limits
of 200 lb (90.72 kg) of shucked or 25 bu
(8.8 hL) in-shell scallops or the 40 lb
(18.14 kg) of shucked or 5 bu (1.76 hL)
of in-shell scallops. However, given the
rationale for the increased possession
limit, it would be inconsistent to apply
the increased possession limit for only
one LAGC scallop permit category or
declared fishing activity. Therefore, this
proposed rule specifies that vessels
fishing for scallops up to 200 lb (90.72
kg) or 25 bu (8.80 hL), or up to 40 lb
(18.14 kg) or 5 bu (1.76 hL), could
possess up to 50 bu (17.62 hL) or 10 bu
(3.52 hL), respectively, seaward of the
VMS Demarcation Line.
Finally, this proposed rule would
clarify the ownership cap restriction on
current limited access vessels specified
at § 648.4(a)(2)(i)(M). The ownership
cap restriction was implemented
through Amendment 4 (59 FR 2757,
January 19, 1994). Currently, the
regulation states that an individual may
not own, or have an ownership interest
in, more than 5 percent of limited access
scallop vessels. The provision in
Amendment 4 is as follows: ‘‘No entity
or individual may have ownership
interest in more than 5 percent of the
total number of scallop permits issued
at implementation and through the
appeal process.’’ However, the current
regulations are not clear whether this
cap applies to CPHs. Provisions for CPH
were implemented in 1995 (60 FR
62224, December 5, 1995), after the 5–
percent cap provision in Amendment 4
was implemented. The current
regulation does not mention CPHs,
which represent sunken or destroyed
vessels, or vessels that were sold
without fishing and permit history, that
are eligible for limited access scallop
permits. In terms of future ownership, a
CPH is equivalent to a limited access
permit. Since it is clear that the Council
intended the ownership cap to restrict
an owner to having an ownership
interest in no more than 5 percent of all
limited access scallop permits, this
proposed rule would clarify that an
individual cannot own more than 5
percent of the limited access permit
eligibilities in the form of a limited
access permit or CPH. This clarification
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would make the regulations consistent
with the Council’s original intent under
Amendment 4.
Public comments are solicited on
Amendment 11 and its incorporated
documents through the end of the
comment period, January 29, 2008,
stated in the NOA for Amendment 11
(72 FR 67691, November 30, 2007).
Public comments on this proposed rule
must be received by January 29, 2008,
the end of the comment period specified
in the NOA for Amendment 11, to be
considered in the approval/disapproval
decision on the amendment. All
comments received by January 29, 2008,
whether specifically directed to
Amendment 11 or the proposed rule,
will be considered in the approval/
disapproval decision on Amendment
11. Comments received after that date
will not be considered in the decision
to approve or disapprove Amendment
11, but will be responded to in the final
rule.
Classification
At this time, NMFS has not
determined that the amendment this
proposed rule would implement is
consistent with the national standards
of the Magnuson-Stevens Fishery
Conservation and Management Act and
other applicable laws. NMFS, in making
that determination, will take into
account the data, views, and comments
received during the comment period.
This proposed rule has been
determined to be not significant for
purposes of Executive Order 12866.
The Council prepared an FSEIS for
Amendment 11; an NOA was published
on October 19, 2007. The FSEIS
describes the impacts of the proposed
Amendment 11 measures on the
environment. Since most of the
measures would determine whether or
not fishers can continue fishing for
scallops, and at what level in the future,
the majority of the impacts are social
and economic. Although the impacts
may be negative in the short term,
particularly at an individual fisher level,
the long-term benefits of a sustainable
scallop fishery would be positive.
Elimination of the open access fishery is
expected to have positive impacts on
the biological and physical
environment.
This proposed rule contains
collection-of-information requirements
subject to review and approval by OMB
under the Paperwork Reduction Act
(PRA). Public reporting burden for these
collections of information are estimated
to average as follows:
1. Initial application for an IFQ
scallop permit - 30 min per response;
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2. Initial application for an NGOM or
Incidental scallop permit - 15 min per
response;
3. Completion of ownership cap form
for IFQ scallop vessel owners - 5 min
per response;
4. Appeal for an LAGC scallop permit
and IFQ scallop vessel contribution
factor - 2 hr per response;
5. Application for a vessel
replacement or confirmation of permit
history - 3 hr per response;
6. Purchase and installation of a VMS
unit for general category scallop
vessels—2 hr per response;
7. IFQ scallop vessel VMS trip
notification requirements—2 min per
response;
8. NGOM scallop fishery VMS trip
notification requirements—2 min per
response;
9. Incidental catch vessel VMS trip
notification requirements—2 min per
response;
10. Pre-landings VMS notification
requirements—5 min per response;
11. Application for an IFQ transfer—
10 min per response;
12. Electronic payment of cost
recovery payment—2 hr per response;
13. LAGC scallop fishery sector
applications—150 hr per response; and
14. Sector operations plans—100 hr
per response.
These estimates include the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
information.
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 the Regional
Administrator as specified in ADDRESSES
above, and by e-mail to
DavidlRostker@omb.eop.gov or fax to
(202) 395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
An IRFA was prepared, as required by
section 603 of the Regulatory Flexibility
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Act (RFA). The IRFA describes the
economic impact this proposed rule, if
adopted, would have on small entities,
with data analyzed on a fishing year
basis (March 1 through February 28/29).
A description of the action, why it is
being considered, and the legal basis for
this action are contained at the
beginning of this section of the
preamble and in the SUMMARY. A
summary of the IRFA follows:
Description and Estimate of Number of
Small Entities to Which the Rule Would
Apply
The vessels in the Atlantic sea scallop
fishery are considered small business
entities because all of them grossed less
than $4.5 million according to the
dealer’s data for the 2004 and 2005
fishing years. Therefore, there are no
differential impacts between large and
small entities. According to this
information, annual total revenue
averaged about $940,065 per limited
access vessel in 2004, and over $1
million per limited access vessel in
2005. Total revenues per vessel,
including revenues from species other
than scallops, exceeded these amounts,
but were less than $4.5 million per
vessel. Average scallop revenue per
general category vessel was $35,090 in
2004 and $88,702 in 2005 fishing years.
Average total revenue per general
category vessel was higher, exceeding
$240,000 in 2004 and 2005. According
to the preliminary estimates, average
revenues per vessel were lower in the
first 11 months of 2006 for all permit
categories, because of lower scallop
landings and prices.
The measures proposed in
Amendment 11 would affect vessels
with limited access scallop and general
category permits. Section 4.4 (Fisheryrelated businesses and communities) of
the Amendment 11 document provides
extensive information on the number
and size of vessels and small businesses
that will be affected by the proposed
regulations, by port and state. These
affected entities are the owners of 318
vessels that were issued full-time
permits in 2006, (including 55 smalldredge and 14 scallop trawl permits); 32
part-time; and 1 occasional limited
access permit. In addition, 2,501
permits were issued to vessels in the
open access General Category, and more
than 500 of these vessels landed
scallops during the last 2 years.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
This action contains several new
collection-of-information, reporting, and
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recordkeeping requirements. The
following describes these requirements.
1. Application Process
NMFS estimates that there would be
500 applicants for an IFQ scallop
permit, 200 applicants for a NGOM
scallop permit, and 500 applicants for
an Incidental scallop permit. Each IFQ
scallop permit application would take
approximately 30 min per application,
while each NGOM and Incidental
scallop permit application would take
approximately 15 min to process.
Consequently, the total time burden for
the initial applications would be 425 hr.
Amendment 11 estimates that 370 IFQ
scallop permit, 190 NGOM scallop
permit, and 465 Incidental scallop
vessels are expected to qualify and
consequently renew their application
each year. Permit renewal is estimated
to take 15 min per application, on
average, for a total burden of 256 hr per
year. The 3-year average total public
time burden for IFQ, NGOM, and
Incidental scallop permit initial
applications, and permits renewals
would be 312 hr. The labor cost, at an
hourly rate of $15, would be $4,680.
To implement the 5–percent IFQ
ownership cap, vessel owners would be
required to submit an ownership form
with each permit renewal. Since there
would be an estimated 370 IFQ permits,
there would be 370 ownership forms
each year. NMFS estimates that it would
take 5 min to complete each ownership
form; therefore, the annual reporting
burden would be 31 hr, or 21 hr,
averaged over the first 3 years. At an
hourly rate of $15, the annualized time
burden would be approximately $315.
About 80 applicants are expected to
appeal the denial of their permit
application over the course of the 3month application period. The appeals
process is estimated to take 2 hr per
appeal, on average, for a total burden of
160 hr. The burden of this one-time
appeal, annualized over three years,
would be 54 hr. At an hourly rate of
$15, the time burden would be
approximately $810.
2. Vessel Replacement, Upgrade, and
Permit History Applications
A standard form for vessel
replacements, upgrades, and permit
history applications (RUPH application)
would be used for LAGC scallop
permits, although vessel upgrades
would not apply for LAGC scallop
vessels unless the vessel is issued other
limited access fishery permits that have
upgrade restrictions. With the exception
of upgrade restrictions, LAGC scallop
vessels would be subject to similar
replacement and permit history
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restrictions as other Northeast Region
limited access fisheries. Completion of
an RUPH application requires an
estimated 3 hr per response. It is
estimated that 100 RUPH applications
would be received annually. The
resultant burden would be up to 300 hr.
At an hourly rate of $15 per hour, the
total public cost burden for RUPH
applications would be $4,500 per year.
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3. New VMS Requirements
This action would require vessels
issued any of the LAGC scallop permits
to install VMS. Most vessels that qualify
for an IFQ scallop permit would have
been participating in the directed
general category scallop fishery, which
already has VMS requirements prior to
the implementation of Amendment 11.
Therefore, it is likely that most vessels
that will qualify for an IFQ permit
already have VMS. Vessels that qualify
for an Incidental or NGOM scallop
permit would not likely be participating
in the directed general category scallop
fishery. However, vessels that qualify
for an Incidental or NGOM scallop
permit may already have VMS reporting
requirements through other fisheries,
particularly the Northeast multispecies
fishery. It is possible that some new
permit holders would decide to
purchase and install new VMS units in
order to participate in one of these
fisheries. Therefore, NMFS estimates
that up to 10 vessels would purchase
and install VMS units as a result of
Amendment 11. NMFS estimates that it
would take 2 hr to purchase each unit,
for a total time burden of 20 hr;
annualized over 3 years, the burden
would be about 7 hr per year. NMFS
anticipates that a vessel owner would
hire a VMS technician to install the
VMS unit; therefore there would be no
installation time burden for the vessel
owner. At an hourly rate of $15 per
hour, the total public cost burden for
VMS purchases would be $105 per unit.
Since position polling is automated,
there is no associated time burden with
this reporting requirement.
4. Trip Notification Requirements
Each time a LAGC scallop vessel
leaves port or is moved from the dock
or mooring, the operator must submit a
VMS trip declaration code to notify
NMFS of the vessel’s fishing activity.
According to 2007 VMS trip
declaration data for 1B scallop vessels,
approximately 40 percent of the time
general category 1B vessels declare a
general category scallop trip; the
remainder are codes for other activities
(if a vessel leaves port, general category
regulations require it to declare a trip,
regardless of the fishing activity). The
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2008 scallop harvest specifications have
not yet been finalized, but the proposed
IFQ quota is 2.5 million lb (1,134 mt).
Assuming each trip harvests the 400–lb
(181.4–kg) possession limit, there would
be an estimated 6,250 IFQ trip
declarations per year, with an additional
9,375 trip declarations for some activity
other than scallop fishing, for a total of
15,625 trip declarations. Following each
trip, NMFS assumes that the vessel
operator would submit a power-down
code to reduce polling costs and
conserve battery power. NMFS
estimates that it takes approximately 2
min to submit a trip declaration or
power-down code. NMFS estimates that
the IFQ fleet would submit 31,250 VMS
declaration codes (15,625 trip
declarations and 15,625 corresponding
power-down code submissions);
therefore, the annual IFQ trip
declaration time burden would be 1,042
hr per year. At an hourly rate of $15,
this burden would be $15,630.
5. NGOM Notification Requirements
The proposed NGOM TAC is expected
to be 64,000 to 100,030 lb (29,030 to
45,373 kg) each year. Assuming each
trip lands the 200–lb (90.72–kg)
possession limit, and using the upper
limit of the proposed TAC, it is
projected that there would be up to 500
NGOM trip declarations per year. For
economic purposes it is unlikely that a
vessel owner would incur the cost of a
VMS unit solely to have a NGOM
permit. Therefore, assuming these
vessels already have VMS reporting
requirements for other fisheries, VMS
declaration reporting requirements for
activities other than NGOM activity
have already been accounted for in
other PRA collections. The increased
reporting burden resulting from the
NGOM permit category would be
approximately 500 trip declarations and
500 power-down declarations.
Assuming each declaration takes
approximately 2 min, the annual NGOM
trip declaration time burden would be
approximately 34 hr. At an hourly rate
of $15, this burden would be $510.
6. Incidental Scallop Vessel VMS
Notification Requirements
In 2004 and 2005, dealer data
indicated that the percent of scallops
landed in quantities of 40 lb (18.14 kg)
or less was 0.02% and 0.06%,
respectively, of the total scallop
landings. The average scallop landings
on these trips in 2004 and 2005 was
19,363 lb (8,783 kg). Using this average,
NMFS estimates that there were
approximately 500 general category
trips that landed scallops incidental to
other fishing. Assuming this rate would
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remain approximately the same, there
would be an estimated 500 Incidental
trip declarations made annually. As
previously noted, for economic
purposes it is unlikely that a vessel
owner would incur the cost of a VMS
unit solely to have an Incidental scallop
permit. Therefore, assuming these
vessels already have VMS reporting
requirements for other fisheries, VMS
declaration reporting requirements for
activities other than Incidental scallop
permit activity have already been
accounted for in other PRA collections.
The increased reporting burden
resulting from the Incidental scallop
permit category would be approximately
500 trip declarations and 500 powerdown declarations. Assuming each trip
declaration takes approximately 2 min,
the annual Incidental scallop trip
declaration time burden would be
approximately 34 hr. At an hourly rate
of $15, this burden would be $510.
7. Pre-landing Notification
Requirements
VMS pre-landing notification forms
would be required for each IFQ and
NGOM scallop trip. Therefore, there
would be 6,250 IFQ and 500 NGOM
scallop vessel pre-landing notification
forms submitted annually. NMFS
estimates that it would take 5 min for
each of the 6,750 reports, for an annual
pre-landing notification time burden of
563 hr. At an hourly rate of $15, this
burden would be $8,445.
8. State Waters Exemption Program
Requirements
The state waters exemption program
enrollment form is estimated to take 5
min to submit through the VMS, the
same amount of time as it has taken to
enroll through interactive voice
response system currently used. State
waters exemption program trip
declaration requirements are already
accounted for in an approved collection
under OMB Control No. 0648–0202.
Therefore, this burden would not
increase the cost to vessel owners
declaring into the state waters
exemption program.
9. IFQ Transfers
IFQ transfers would apply to IFQ
scallop vessels, except that current
limited access scallop vessels that also
have been issued an IFQ scallop permit
would not be permitted to transfer IFQ.
Using the Northeast Region’s Northeast
Multispecies DAS leasing program
(OMB Control No. 0648–0475) as a
proxy for the response rate for the IFQ
transfer program, NMFS anticipates that
there would be approximately 75
temporary transfers annually. Each
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application would include information
from both parties involved in the
temporary transfer; therefore there
would be two responses per application.
NMFS estimates that it would take 5
min per response, or 10 min per
temporary IFQ transfer application.
Therefore, the estimated burden would
be 13 hr. At an hourly rate of $15 / hour,
the total public cost burden for
temporary IFQ transfer applications
would be $195.
The Northeast Multispecies DAS
Permanent Transfer Program cannot be
easily correlated with the general
category permanent transfer program
because the Northeast Multispecies
Program has a 20–percent conservation
tax on all transfers, while there would
be no conservation tax on scallop IFQ
transfers. Although NMFS anticipates
that there would be more IFQ transfers
than DAS transfers, IFQ transfers would
be restricted by the requirement that no
IFQ vessel owner could have an
ownership interest in more than 5
percent of the total TAC for IFQ scallop
vessels, and no vessel could have more
than 2 percent of the total TAC for IFQ
scallop vessels at any time. NMFS
anticipates that there would be
approximately 10 permanent IFQ
transfers per year. Each application
would include information from both
parties involved in the transfer;
therefore there would be two responses
per application. It is estimated that it
would take 5 min per response, or 10
min per permanent transfer application.
Therefore, the estimated permanent IFQ
transfer burden would be 2 hr. At an
hourly rate of $15 per hour, the total
public cost burden for permanent quota
transfer applications would be $30.
10. Cost Recovery
Since cost recovery for the scallop
IFQ program is new, and there are no
other current cost recovery programs in
Northeast Region fisheries, the burden
per response used by the Alaska
Region’s Alaska Individual Fishing
Quota Cost-Recovery Program
Requirements (OMB Control No. 0648–
0398) was used as a proxy for the
scallop IFQ program. Each IFQ permit
holder would be required to submit a
cost recovery payment once annually,
which would take 2 hr per response.
Therefore, 370 payments would take
740 hr. At an hourly rate of $15 / hour,
the total public cost burden for cost
recovery would be $11,100.
11. LAGC Sector Program
NMFS estimates that there could be
up to nine sector proposals received
over the next three years (2008–2009);
five in the first year, two in the 2nd
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year, and two in the 3rd year. The
earliest that the sectors proposed in the
2008 year could be implemented would
be the 2009 fishing year. Therefore,
these sectors would be required to
submit operation plans for the 2010
fishing year.
Any person could submit a sector
allocation proposal for a group of LAGC
scallop vessels to the Council at least 1
year in advance of anticipated start of a
sector program, and request that the
sector be implemented through a
framework procedure specified at
§ 648.55. Based upon consultations with
the Northeast multispecies sector
program, it is estimated it would take
150 hr to prepare and submit a sector
proposal. Therefore, the 3-year average
annualized time burden for sector
proposals would be 450 hr per year. At
an hourly rate of $15 per hour, the total
public cost burden for sector proposals
would be $6,750.
A sector is required to resubmit its
operations plan to the Regional
Administrator no later than December 1
of each year, whether or not the plan
has changed. Based upon consultations
with the Northeast multispecies sector
program, each operations plan takes
approximately 100 hr. The earliest
sector operation plans would be
submitted in 2010 for the proposals
submitted in 2008. Therefore, NMFS
estimates it would take 500 hr to submit
5 operation plans. The 3-year average
annualized time burden would be 167
hr per year. At an hourly rate of $15 per
hour, the annual time burden cost
would be approximately $2,500.
Economic Impacts of the Proposed
Action Compared to Significant NonSelected Alternatives
1. Summary of the Combined Economic
Impacts of the Limited Access Measures
In summary, the proposed limited
access program could have negative
economic impacts in the short-term on
the estimated 373 vessels that would not
qualify for a LAGC scallop permit, with
adverse impacts compared to 2005
scallop revenue estimated to be less
than 5 percent for 119 vessels, 5 to 49
percent for 58 vessels, and 50 percent or
more for 196 vessels. The measures
would also have negative impacts on
about 153 out of 369 vessels that are
estimated to qualify for the IFQ scallop
permit, with adverse impacts compared
to 2005 scallop revenue estimated to be
less than 5 percent for 26 of these
vessels, 5 to 50 percent for 70 vessels,
and over 50 percent for 57 vessels.
Altogether, the proposed measures
could reduce total revenues of 381
vessels of more than 5 percent in the
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short-term. There are several measures
in the proposed action, however, to help
mitigate and reduce the potential
negative impacts on these vessels, as
discussed above. Qualifying vessels
would be permitted to stack allocation
up to 2 percent of the entire general
category allocation and to transfer (i.e.,
lease or buy) IFQ on a permanent or
temporary basis. This would enable
vessel owners who do not receive an
adequate amount of allocation to
increase their scallop revenue to
mitigate negative impacts. Furthermore,
there is a provision to allow the
formation of voluntary sectors. It may be
beneficial for a group of vessels from a
fishing community, for example, to
organize and apply for a sector in the
general category fishery. Negative
impacts on some vessel owners may be
mitigated if a vessel would qualify for
a NGOM scallop permit that authorizes
it to fish for scallops at a reduced level.
In addition, many of the vessels that
would not qualify for the IFQ scallop
permit would qualify for an Incidental
scallop permit that would authorize the
vessel to land up to 40 lb (18.14 kg) of
scallops per trip.
Continuation of the open access
fishery under the no action alternative
would not guarantee that the affected
vessel owners would get more scallop
revenue than they could with the
proposed limited access program. With
continued open access, there would
always be the risk of more vessels
entering the fishery, with the potential
for overfishing of the scallop resource.
Overfishing would likely cause a
reduction in landings per unit effort, an
increase in fishing costs per pound of
scallops, and dissipation of the profits
for all limited access and general
category vessels.
There were also possible future
negative effects on the existing limited
access scallop vessels with the
continuation of the open access program
because the need to prevent an increase
in overall fishing mortality would at
some point reduce the DAS allocations
for the limited access fleet to
compensate for projected general
category catcth. Assuming a scallop
harvest of 50 million lb (22,680 mt), an
increase in the share of general category
landings to 20 percent of the total
scallop landings would result in a
decline of 17 percent to 21 percent of
the net vessel share (as a proxy for
profits) for the limited access vessels.
Given that, in 2005, the general category
landings increased to 14 percent of the
total landings from about 5 percent in
2004, a further increase in general
category effort could occur without a
limited access program. Section 5.4.17.1
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and Table 166 of the Amendment 11
document provide details about these
impacts.
Because it would prevent further
expansion of the general category
fishery, the economic impacts of the
proposed measures on the 351 existing
limited access vessels would be positive
both in the short and the long term.
Reducing the general category catch
from recent levels could increase the
total DAS allocations for those vessels,
resulting in approximately a 7–percent
increase in their revenues compared to
the status quo levels. Similarly, the
general category limited access program
would benefit the current limited access
vessels that qualify for an IFQ permit,
although the proposed 0.5–percent
allocation of the total scallop TAC could
lower their landings compared to recent
levels (1.5 percent and 0.75 percent of
overall scallop landings in 2005 and
2006, respectively).
The overall economic impacts of the
limited entry in the medium to long
term are expected to be positive for the
sea scallop fishery as a whole, compared
to taking no action. The proposed action
would restrict the estimated number of
participants in the general category
fishery to 369 vessels that meet the IFQ
permit qualification criteria. The
allocation of a 5–percent TAC for the
general category would cap the fishing
mortality from this component of the
fleet. The limited access program would
also prevent the profits of the qualifiers
and limited access vessels from
dissipating due to an increase in fleet
capacity that would likely occur with
continued open access.
2. Summary of the Economic Impacts of
the Individual Measures
Two alternatives to the proposed
landings qualification criteria were
considered: Cumulative annual landings
of 100 lb (45.4 kg); and 5,000 lb (2,268
kg). The 100–lb (45.4–kg) landing
qualification criteria is estimated to
qualify more vessels (548) for limited
access and have a lower negative impact
on the recent participants than the
proposed alternative. On the other hand,
by increasing the number of
participants, this alternative would
result in a lower share of general
category TAC for each qualifier and
would thus have a negative impact on
individual vessels, especially on vessel
onwers that have a high dependence on
scallop revenue as a source of income.
For example, the average allocation per
vessel would decline from 5,429 lb
(2,462 kg) to 3,650 lb (1,656 kg) per
vessel if the poundage criterion was set
at 100 lb (45.4 kg) instead of at 1,000 lb
(454 kg) for a general category TAC of
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2 million lb (907 mt). The alternative
5,000–lb (2,268–kg) landings
qualification criterion is estimated to
qualify only 188 vessels for limited
access and, thus, would increase the
share of each qualifier in general
category TAC. As a result, average
allocation per vessel would increase to
10,638 lb (4,825 kg) with a 2–million-lb
(907–mt) general category TAC.
Although this alternative would have
positive economic impacts on the
vessels that had a much higher
historical dependence on scallops as a
source of their income, it would deny
eligibility to a much larger number of
vessels that historically derived some
revenue from scallop fishery. The
proposed 1,000–lb (454–kg) alternative
would deny eligibility to a large number
of boats that have small landings of
scallops (i.e., that landed between 100
and 999 lb (45.4 kg to 453 kg)), while
qualifying vessels that depend on
scallops to a larger degree.
Qualification Time Period
Eligibility for limited access would
require a vessel to have made the
required amount of landings in any
scallop fishing year during a specified
time period. In addition to the proposed
March 1, 2000, through November 1,
2004, qualification period, the Council
considered two alternative qualification
periods: March 1, 1994, through
November 1, 2004; and March 1, 2003,
through November 1, 2004. The
economic impacts of qualification
period, combined with the landing
criteria, are analyzed in several subsections of Section 5.4 of the
Amendment 11 document and
summarized here. The impacts on the
general category permit holders and
vessels that qualify for limited access
are analyzed in Section 5.4.3 of the
Amendment 11 document. The impacts
on revenues, fishing costs, average net
revenues, crew and vessel shares are
analyzed in Section 5.4.5 of the
Amendment 11 document, for various
levels of general category TAC. The
impacts of the proposed 5–yr
qualification period and other
alternatives on recent participants in the
general category fishery are analyzed in
Section 5.4.6 of the Amendment 11
document.
The proposed 5–yr qualification
period, combined with the 1,000–lb
(454–kg) landings criteria, is expected to
have positive economic impacts in the
short and long term on vessel owners
with vessels that qualify for limited
access. It would provide access to those
general category vessels that were active
in the fishery in recent years, as well as
to historical participants that were
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active from March 1, 2000, through
November 1, 2004. The proposed 1000–
lb (454–kg) poundage criteria and the 5–
yr qualification period would qualify
369 vessels, but would deny eligibility
to 90 vessels that meet the 1,000–lb
(454–kg) criteria for their activity during
1994–1999 fishing years. The economic
impacts on these historic participants
would be negative in terms of a loss in
future potential revenue from scallops,
unless they buy a vessel that qualifies
for limited access. The proposed 5–yr
qualification period would not have any
impact on the current income of most of
these vessels, given that most have not
been active since 2000; only 10 vessels
are estimated to have participated in the
fishery after the control date (November
1, 2004). The longer qualification period
would cause the general category TAC
to be divided among a larger number of
vessels, most of which were not recently
active in the fishery, and vessels that
depend on scallops would receive a
smaller share than they would with the
proposed 5–yr qualification period. This
would have negative economic impacts
on the vessels that depend on scallops
to a larger degree. There are also some
measures included in the proposed
action that could mitigate some of these
adverse economic impacts on nonqualifiers. If these vessels had a permit
before the control date, they could
obtain an incidental catch permit and
land up to 40 lb (18.14 kg) per trip, thus
still earn some revenue from scallops.
Other vessel owners could chose to
obtain an NGOM scallop permit and
participate in the NGOM fishery, subject
to a possession limit of 200 lb (90.72 kg)
per trip and a hard TAC.
The 2–yr qualification period
alternative would have restricted
eligibility to 277 general category
vessels that landed 1,000 lb (454 kg) or
more of scallops during the period
March 1, 2003, through November 1,
2004, instead of 369 vessels under the
proposed action. Although this
alternative would result in a larger share
per vessel qualified for limited access, it
was found to be inequitable to
participants who did not fish for
scallops in 2003–2004, but did fish in
recent years since 2000.
IFQ Vessel Contribution Factor
Under the proposed action, each IFQs
vessel’s contribution factor would be
determined by identifying the year with
the highest landings during the
qualification time period, and
multiplying it by an index that increases
as the number of years in which the
vessel landed scallops during the
qualification time period increases. For
example, the index is 0.75 if the vessel
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landed scallops in 1year, and 1.25 if the
vessel landed scallops in 5 years.
Therefore, the proposed action would
allocate more pounds to those vessels
that were active in the fishery for a
longer period of time.
In addition to the proposed measure,
the Council considered three
alternatives to calculate the contribution
factor. One alternative used the vessel’s
best year of landings during the
qualification time period. Another
alternative used the vessel’s best year
multiplied by a lower range of index
factor than the proposed action. The
third alternative used either the best
year of landings during the qualification
time period, or the indexed best year of
landings during the qualification time
period, but capped the contribution at
50,000 lb (22,680 kg) of scallops. The
economic impacts of the contribution
factor alternatives are analyzed in
Section 5.4.7.1 through 5.4.7.2 of the
Amendment 11 document.
The alternatives to the proposed
option would have distributional
economic impacts less favorable to the
vessels that were active in the fishery
for many years. The alternative that
used a lower range of index values (0.9
to 1.10, rather than 0.75 to 1.25) would
provide only a slight increase in IFQ
share for vessels that were active in the
fishery for a long period of time, while
only slightly decreasing share for
vessels that were in the general category
scallop fishery for only 1 year. This
would have had more negative impacts
on a larger number of vessels that had
a longer history in the general category
scallop fishery. The alternative
allocation based on best year (Section
3.1.2.3.1 of the Amendment 11
document) would have had negative
economic impacts on those vessels that
had a longer history of participation,
since allocation would be determined
regardless of years active. For the same
reason, this alternative would have had
positive economic impacts on those
vessels that had a shorter history of
participation. The final alternative,
which would establish the 50,000–lb
(22,680–kg) cap on a vessel’s
contribution factor, would prevent a
vessel from getting a larger share of the
fishery even if it had very high
historical landings. This alternative
would have impacted vessels with
higher landings more severely than
vessels with lower landings, and was
therefore not selected. The proposed
alternative using the best-year indexed
by the number of years active is
intended to help reduce the negative
impacts on those participants with an
established history and long-term
investment in scallop fishing.
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Scallop Allocation for LACG Scallop
Vessels
The Council considered several ways
of allocating IFQ to vessels that qualify
for a LAGC scallop permit (excluding
NGOM and Incidental scallop vessels).
These included: Allocations by vessel in
pounds of scallops or number of trips
per vessel; allocations to two allocation
tiers where every vessel in a tier would
receive the same allocation; allocation
to three allocation tiers; a fleetwide hard
TAC; and a fleetwide hard TAC
allocated into either quarters or
trimesters. The Council also considered
a stand-alone IFQ alternative that would
confer eligibility on IFQ vessels based
only on past permit issuance, and
would use the contribution factor
alternative adopted by the Council to
allocate a vessel’s IFQ. The economic
impacts of the allocation alternatives are
analyzed in section 5.4.8 of the
Amendment 11 document.
Under the proposed action, NMFS
would calculate a vessel’s IFQ by
multiplying the overall general category
TAC by the vessel’s contribution factor.
An example demonstrating the
calculation of a vessel’s IFQ is provided
in the ‘‘IFQs for limited access general
category scallop vessels’’ section of the
preamble of this proposed rule.
The allocation of IFQ would eliminate
the derby fishing effect that results from
a TAC because an IFQ assures that each
vessel can land a given quantity anytime
during the fishing year. Vessel owners
would have the flexibility to select the
time and the area to fish in order to
minimize their costs and/or maximize
their revenues. Since the fishing effort
would be spread over a longer period of
time, the price of scallops would be
more stable throughout the season. This,
combined with the availability of a fresh
and/or higher quality scallops over a
longer season, would benefit consumers
as well as producers. Therefore, the
proposed allocation alternative would
have positive economic impacts on the
vessels that qualify for limited access
general category fishery. Although
maintaining the 400–lb (181.44–kg)
possession limit would cause some
inefficiencies and result in higher costs
compared to a higher possession limit
(alternative 2,000 lb (907 kg) per trip),
this provision is intended to help
preserve the historical small-boat
character of this fleet.
The non-selected alternative that
would have allocated a number of trips
to each scallop vessel has an advantage
over the IFQ alternative because it is
easier to monitor and enforce, but could
result in either reduced revenue or
increased costs for vessels that catch
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less than 400 lb (181.44 kg) of scallops
on any trip, because the trip would have
been considered to be used irrespective
of amount landed. Another non-selected
alternative would have established two
permit tiers to which vessels would be
assigned based on the level of historical
scallop landings. Vessels that had
historical landings of less than 5,000 lb
(2,268 kg) would have a possession limit
of 200 lb (90.72 kg), while vessels that
had historical landings greater than
5,000 lb (2,268 kg) would have a scallop
possession limit of 400 lb (181.44 kg)
per trip. The alternative did not restrict
the number of trips that could be taken
or pounds that could be landed by
vessels within a tier. This alternative
would have negative economic impacts
on vessels that landed less than 5,000 lb
(2,268 kg) and would be restricted to a
200–lb (90.72–kg) possession limit
because it would reduce landings from
recent historical levels. The three-tiered
allocation alternative would allocate
equal pounds or trips to each vessel
within one of three tiers based on the
vessel’s historical level of landings, with
the pounds or trips allocated to each tier
based on the average amount of scallops
landed by vessels in each tier. As a
result, this alternative would have
negative impacts on a vessel in a tier
that landed a higher amount of scallops
than the average for the tier. The standalone alternative would allocate IFQ to
a larger number of vessels, but would
have negative distributional impacts on
vessels that have had higher recent
annual landings of scallops. Instead of
individual allocation, the alternative
that would establish a hard TAC with
limited entry vessel permits could lead
to a race to fish and market gluts. This
could have negative economic impacts,
especially on smaller vessels that fish
seasonally and cannot access all areas
due to the constraints on their capacity.
A fleet-wide hard TAC allocated by
trimester or by quarter would extend the
fishing season and reduce negative
impacts from derby fishing and market
gluts, to some extent. These alternatives
would have larger negative
distributional impacts on some vessels
compared to the proposed IFQ program,
and other vessel allocation alternatives
considered, because the opportunity to
fish and land scallops would be
dependent upon the level of fishing by
other vessels. For example, a vessel may
not get the opportunity to fish for
scallops at all under a quarterly
fleetwide TAC alternative if other
general category vessels quickly harvest
the entire TAC. If such a vessel had
landings of scallops before Amendment
11, the vessel would experience scallop
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revenue losses compared to alternatives
that would allow the vessel to fish for
scallops regardless of the scallop fishing
activity of other vessels.
Limited Entry Permit Provisions
Amendment 11 includes most of the
provisions adopted in other limited
access fisheries in the Northeast Region
to govern the initial qualification
process, future ownership changes, and
vessel replacements. For the most part,
there is no direct economic impact. The
nature of a limited access program
requires rules for governing the transfer
of limited access fishing permits. The
procedures have been relatively
standard for previous limited access
programs, which makes it easier for a
vessel owner issued permits for several
limited access fisheries to undertake
vessel transactions. The standard
provisions adopted in Amendment 11
are those governing change in
ownership; replacement vessels; CPH;
abandonment or voluntary
relinquishment of permits; and appeal
of denial of permits. In addition, IFQ
scallop vessels would be restricted to a
cap on the amount of IFQ they could
own. This ownership cap restriction is
based on a similar ownership cap
provision for current limited access
vessels. This action would modify some
of the other provisions for LAGC scallop
vessels. LAGC scallop vessels would not
have any vessel size and horsepower
upgrade restrictions for vessel
modifications or vessel replacements
(unless the vessel has other limited
access permits). This action would also
allow a vessel owner to retain a general
category scallop fishing history prior to
the implementation of Amendment 11
to be eligible for issuance of the LAGC
scallop permit based on the eligibility of
the vessel that was sold, even if the
vessel was sold with other limited
access permits.
The economic impacts of the limited
access permit provisions are analyzed in
section 5.4.9 of the Amendment 11
document. Measures allowing vessel
owners to appeal limited access permit
denials would indirectly benefit all
participants by ensuring that only those
vessels that provide verification of
permit and landings history would
qualify and receive allocation based on
accurate records. The proposed
regulations regarding qualification with
retained vessel histories would have
positive economic impacts for
participants that sold their vessel to
another but retained the fishing history.
The proposed action would allow a
vessel owner to modify a LAGC scallop
vessel’s size or horsepower without any
upgrade restriction, provided that there
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are no other limited access permits
issued to the vessel. This would provide
flexibility for the vessel owners to adjust
their fishing power under changing
fishery conditions. Flexibility with a
vessel’s size and horsepower could also
improve safety at sea. Since the vessels
would be allocated individual pounds,
this is not expected to impact the total
scallop landings or provide an unfair
advantage to larger vessels.
Amendment 11 would allow a vessel
owner to obtain permanent or temporary
transfers of IFQ, up to 2 percent of the
total general category allocation per
vessel. This would help vessel owners
to maintain an economically viable
operation if the allocations for separate
vessels are too low to generate revenue
to cover variable and fixed expenses. It
could also allow a vessel owner to sell
or lease a small IFQ to another vessel
owner, which would generate income
from the IFQ without operating costs.
This measure, combined with a
restriction that an individual could not
have an ownership interest in more than
5 percent of the overall TAC, would also
prevent a few individuals or
corporations from dominating the
fishery and would help to redistribute
gains from the limited access more
equitably among more fishermen. Nonpreferred alternatives considered other
ways to limit the accumulation of IFQ.
One would have allowed two
allocations only to be combined, and the
other set a cap of 60,000 lb (27,216 kg)
total allocation. The selected alternative
provided more flexibility while
maintaining an overall limit on the
amount of IFQ that could be held by a
single vessel.
Non-preferred alternatives would
have prohibited IFQ transfers, would
have maintained vessel size and
horsepower upgrade restrictions
consistent with other limited access
permits (allowed upgrades up to 10
percent in length, and gross and net
tonnage, and 20 percent in horsepower),
and would have prohibited IFQ
transfers, providing less flexibility for
vessel owners and reduced economic
benefits.
Sectors
Amendment 11 proposes to allow
participants in the IFQ scallop fishery to
organize voluntary fishing sectors.
Amendment 11 specifies sector
requirements and the process through
which proposals would be submitted to
the Council and NMFS. Amendment 11
does not establish sectors—just the
process under which future sectors
could be proposed. The proposed sector
process would provide an opportunity
for fishermen to benefit from an
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economically viable operation when the
allocations of individual vessels are too
small to make scallop fishing profitable.
In comparison, the only alternative to
the proposed action would not allow the
formation of sectors, decreasing
flexibility and eliminating any possible
future economic benefits of forming
sectors.
Measures for Transition to the IFQ
program
Amendment 11 specifies measures
that would be implemented for at least
1 year, while the eligibility process for
IFQ scallop permits is underway to
establish the fleet of IFQ scallop vessels.
The economic impacts of the transition
period alternatives are analyzed in
section 5.4.12 of the Amendment 11
document. The proposed interim
alternative would establish the
following measures. These would help
to prevent a short-term increase in
overfishing of the scallop resource by
limiting the general category landings to
10 percent of the total scallop landings
through specification of a TAC. The
proposed action would prevent further
expansion in the general category catch
and benefit the participants of the
general category fishery by providing
some adjustment time for general
category vessels until the transition
period is over. The allocation amounts
for many IFQ scallop vessels are likely
to be lower with the proposed 5–percent
TAC for the IFQ fishery than their
recent landings. Although management
of the general category fishery by a
fleetwide TAC during the transition
period would create some derby fishing,
the allocation of the total TAC into
quarters would reduce derby effects to
some extent, and lessen the negative
economic impacts associated with derby
fishing. A 10–percent fleetwide TAC
may not constitute a significant
constraint on recent landings, given that
only those vessels that qualify for an
IFQ permit, or that are under appeal for
an IFQ permit, would be authorized to
fish during the transition period.
General category scallop landings by
those vessels that had a permit before
the control date were approximately 11
percent of total landings in 2005.
An alternative was considered that
would have established an annual
fleetwide TAC. It was not selected
because the Council believed it would
increase the derby effect, with potential
negative economic and safety
implications. It would increase the
likelihood that a vessel would not have
the opportunity to fish for scallops
because other vessels could rapidly
harvest the TAC. Another alternative
proposed that the transition year would
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have no TAC. It would eliminate the
incentives for derby style fishing and
the economic impacts of this alternative
compared to the status quo would be
negligible, provided participation by
general category vessels that had a
permit before the control date does not
increase significantly above the recent
levels. On the other hand, it is possible
for the number of appeals to be greater
than the number of vessels that fished
during the recent years, resulting in
more vessels participating in the fishery.
If this were to happen, and the general
category scallop landings increase above
10 percent of total scallop harvest, there
could be short-term unexpected increase
in fishing mortality on the scallop
resource.
NGOM Scallop Management Area
Amendment 11 includes management
measures specific to the NGOM scallop
management area intended to allow a
level of scallop fishing activity to occur
outside of the constraints of the IFQ
program and some other Amendment 11
provisions for general category vessels.
Measures include the establishment of a
TAC for the area derived from the
Federal portion of the resource; a 200–
lb (90.72–kg) possession limit for
NGOM and IFQ scallop vessels; a
restriction on dredge size; a restriction
that catch by IFQ scallop vessels fishing
in the area would be deducted from the
IFQ scallop vessel’s IFQ and from the
NGOM TAC; trip declaration
requirments; and a closure of the NGOM
to all scallop vessels (including current
limited access scallop vessels and
Incidental scallop vessels) when the
NGOM TAC is reached. The economic
impacts of the NGOM Scallop
Managemetn Area are analyzed in
section 5.4.14.4 of the Amendment 11
document. The proposed NGOM
Scallop Management Area alternative
would have positive economic impacts
on a large number of vessels that are not
estimated to qualify for the IFQ permit
but are estimated to qualify for an
NGOM permit. These vessels would
have an opportunity to land scallops in
this area when the resource conditions
are favorable. It would reduce the
possession limit for NGOM and IFQ
scallop vessels to 200 lb (90.72 kg) per
trip to reduce incentives for larger
vessels targeting scallops in this area.
Although reducing the possession limit
would have negative economic impacts
on some vessels, the majority of the
active vessels that would qualify for the
NGOM permit general category permit
landed 200 lb (90.72 kg) or less of
scallops from any one trip, therefore
would not be negatively impacted from
200 lb (90.72 kg) possession limit. In
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comparison, the no action alternative
would have had negative economic
impacts for vessels that could not
qualify for the IFQ scallop permit.
Under one alternative, Amendment 11
provisions would not have applied to
NGOM and the general category vessels
would have retained the opportunity to
fish for scallops in NGOM and land up
to 400 lb (181.44 kg) per trip. The lack
of a TAC to limit landings, and the
higher possession limit, would have had
positive economic impacts on these
vessels compared to the proposed
alternative. On the other hand, because
this alternative would let any vessel
obtain a permit to fish in the area, it
could lead to an influx of vessels from
other areas to participate in the open
access fishery in the NGOM. This would
have negative impacts on the resource
that made it unacceptable.
Another alternative proposed that to
qualify for an NGOM scallop permit, a
vessel would have to have landed 100
lb (45.4 kg) of scallops during the period
March 1, 1994, through November 1,
2004. The NGOM TAC under this
alternative would be based on all
landings of scallops from the NGOM
area (not exclusively the Federal portion
of the resource, as in the proposed
action). This alternative also would
have allowed vessels to continue fishing
for up to 40 lb (18.14 kg) of scallops
after harvest of the NGOM TAC. This
alternative would also provide an
advantage to IFQ scallop vessels by
allowing them to land 400 lb (181.44 kg)
per trip from this area, whereas NGOM
scallop vessels could possess and land
only up to 200 lb (90.72 kg) per trip.
This alternative was not adopted
because the qualification criteria would
have had very little restriction on
participation, would have had excessive
administrative costs, and would not
promote conservation of the scallop
resource within the Gulf of Maine or
overall. While it would have qualified
more vessels than the proposed
measure, the economic opportunity for
those vessels would have been diluted
by a very large number of qualified
vessels fishing for a relatively small
TAC.
The no action alternative for the
NGOM Scallop Management Area
would not distinguish this area from
other areas, and all Amendment 11
measures would apply equally
throughout the range of the scallop
resource. It was not selected because it
would have negative impacts on vessels
that traditionally fish in the NGOM and
that could not qualify for the IFQ
permit.
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Monitoring Provisions
The economic impacts of monitoring
provisions proposed in Amendment 11
are analyzed in section 5.4.15 of the
Amendment 11 document. Since
general category vessels that land over
40 lb (18.14 kg) are already required to
have a VMS onboard, the compliance
costs of this action are not expected to
be significant. Vessels operating in the
Northeast multispecies fishery are also
required to have operational VMS units.
Some of these vessel also have general
category scallop permits and would be
expected to qualify for one of the LAGC
scallop permits. The majority of general
category scallop vessels currently
operate VMS as required either by the
scallop regulations or the Northeast
multispecies fishery regulations. The
non-selected interactive voice reporting
(IVR) alternative does not have a
distinct advantage compared to
reporting through VMS. The no action
alternative would not have the
associated costs of reporting landings,
but reporting of scallop catch for each
trip is essential to monitor and enforce
the IFQ and NGOM scallop fishery
measures.
Impacts of Limited Access Fishing
under General Category Rules
Amendment 11 provides the
opportunity for current limited access
vessels (i.e., full-time, part-time, or
occasional limited access scallop
vessels) to also be issued a LAGC
scallop permit, if the vessel meets the
qualification criteria. The economic
impacts of allowing limited access
vessels to continue to fish under general
category rules are analyzed in section
5.4.16.1 of the Amendment 11
document. The proposed action would
have positive economic impacts on 57
limited access vessels (38 full-time, and
19 part-time and occasional) that
Amendment 11 estimates would qualify
for an IFQ scallop permit. One nonselected alternative would prevent any
limited access vessel from having a
general category permit and another
would prevent current full-time limited
access scallop vessels from fishing
under general category rules. This
would result in negative economic
impacts compared to the proposed
alternative for those vessels noted above
that have a historical level of
participation in the general category
fishery while fishing outside of scallop
DAS.
Under the proposed allocation to
LAGC scallop vessels, 0.5 percent of the
overall scallop TAC would be allocated
to vessels with IFQ scallop permits that
also have been issued a full-time, part-
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time, or occasional limited access
scallop permit. IFQs for these vessels
would be determined from the 0.5–
percent TAC allocation. Under the
transition measure before the IFQ
program is implemented, IFQ scallop
vessels that have also been issued a fulltime, part-time, or occasional limited
access scallop permit would fish under
the 10–percent TAC allocated to the
general category fleet. The proposed
action would have positive economic
impacts on those vessels. The 0.5–
percent TAC for the limited access
qualifiers is less than the percentage
share of these vessels in total general
category scallop landings in recent
years, but almost equal to what was
reported in the 2004 fishing year. Under
one alternative, scallops landed by
limited access vessels under general
category rules would be deducted from
the 5–percent TAC allocated to the IFQ
vessels, negatively impacting the
general category vessels that qualify for
limited access, with small positive
economic impacts on the limited access
scallop fleet. This alternative was
therefore not selected, and the separate
0.5–percent TAC is proposed.
Allocation Between Limited Access and
General Category Fisheries
The Council considered alternative
values for the TAC that would be
allocated to IFQ scallop vessels
(excluding IFQ scallop vessels also
issued a full-time, part-time, or
occasional limited access scallop
permit), equal to 2.5, 5.0, 7.0, 10.0, and
11.0 percent of the overall projected
scallop catch. The economic impacts of
the various levels of TAC allocation
between the limited access and LAGC
fishery are analyzed in section 5.4.17 of
the Amendment 11 document and have
different distributional impacts. The
proposed 5–percent general category
TAC would have negative economic
impacts on many general category
vessels compared to status quo
management because the fishery landed
twice that level in both the 2005 and
2006 fishing years. On the other hand,
the 5–percent TAC is higher than the
long-term average percentage share of
total scallop landings for the general
category scallop fishery, which is 2.5
percent of overall scallop landings. The
5–percent allocation corresponds to the
highest level reached by the general
category fishery before the control date.
Therefore, this allocation is consistent
with the Council’s decision in 2004 to
implement a control date recognizing
that that the substantial increase in
general category fishing effort could
lead to overfishing of the scallop
resource and reduce economic benefits
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15:26 Dec 14, 2007
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for everyone. The short-term and longterm economic impacts of the 5–percent
TAC, combined with the limited entry
program, compared to other alternative
allocation amounts are discussed
extensively above and are not repeated
here.
The proposed action includes several
measures that could mitigate some of
the adverse economic impacts of the
limited access program for general
category including the 5–percent TAC.
The separate limited entry program for
the NGOM is expected to provide an
opportunity for owners of vessels that
would not qualify for the IFQ scallop
permit, but who have historically
participated in the NGOM scallop
fishery, to fish for scallops at a reduced
scale (at a lower possession limit of 200
lb (90.72 kg) per trip) when the resource
conditions in this area become
favorable. The incidental catch permit
would provide opportunity for the
vessels that land scallops occasionally
up to 40 lb (18.14 kg) per trip, including
some vessels that qualify for limited
access but received allocations lower
than what they could land annually
with the incidental permit.
Furthermore, Amendment 11 includes a
provision to allow vessel owners to
combine IFQ allocations through the
IFQ transfer program, up to 2 percent of
the TAC allocated to the IFQ scallop
fishery, so that vessel owners can buy or
lease additional IFQ. Similarly, the
proposed action to establish a process
for sectors in the general category
fishery would provide an opportunity
for fishermen to benefit from an
economically viable operation when the
allocations of individual vessels are too
small to make scallop fishing profitable.
A lower TAC for general category
would have larger negative proportional
impacts on general category vessels
while potentially increasing the
revenues of the limited access fishery by
a small percentage. A higher percentage
TAC would reduce the negative impacts
on general category vessels, but would
lower the positive economic impacts on
the current limited access.
Incidental Catch Permit
The economic impacts of the
proposed Incidental catch permit are
analyzed in section 5.4.18 of the
Amendment 11 document. The
proposed action would create an
incidental catch permit for vessels to
retain and sell up to 40 lb (18.14 kg) of
scallop meats per trip, provided they
had been issued a general category
scallop permit as of November 1, 2004.
The economic impacts of this
alternative would be positive on vessels
that do not qualify for the IFQ permit
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Sfmt 4702
because it would allow them to still
earn some income from scallops under
the incidental catch permit. This
measure could also benefit some vessels
that qualify for the IFQ permit with low
allocations. The owner of such a vessel
might elect the Incidental scallop permit
because the vessel could land more total
pounds of scallops on several 40–lb
(18.14–kg) trips than it could under its
IFQ.
The only alternative considered was
no action, which would allow vessels to
possess and land, but not sell, an
incidental catch of scallops. This
alternative would not provide any
source of revenue for vessels that do not
qualify for the IFQ or NGOM scallop
permit. It also would complicate the
Council’s and NMFS’s ability to
determine the overall level of scallop
catch from a fleet of vessels without
scallop permits because none of the
reporting and compliance measures
would apply to non-permitted vessels.
This could result in more cautious
management measures in the future,
with possible negative economic
impacts on all vessels issued scallop
permits.
Changing of the Issuance Date of
General Category Permits
Amendment 11 proposes to change
the permit issuance date for general
category scallop permits from May 1 to
March 1, to better align the general
category scallop fishery with the scallop
fishing year of March 1 through
February 28/29. The economic impacts
of changing the date that general
category permits are issued are analyzed
in section 5.4.19 of the Amendment 11
document. Changing the general
category permit to March 1 is an
administrative change and procedural
adjustment for owners accustomed to a
May 1 permit renewal. The proposed
measure would allow, however, better
estimation of the number of
participants, the level of effort in the
fishery and allocation of TAC by
aligning the issuance date with date for
the limited access fishery. As a result,
the proposed action would have indirect
positive economic impacts on the sea
scallop fishery.
The Council considered revising the
start of the fishing year to May 1 or
August 1. This would have had some
positive impacts over the long term by
better aligning the fishing year with the
scallop survey, resulting in updated
information on which to base the
following year’s management. This
would increase the confidence in the
effectiveness of scallop fishery
management measures relative to the
scallop fishing mortality goals of the
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Dated: December 7, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries,
National Marine Fisheries Service.
FMP. On the other hand, these
alternatives were strongly opposed by
the scallop industry because it would
require a change in the business plans
of the scallop vessel owners.
For the reasons set out in the
preamble, 50 CFR part 648 is proposed
to be amended as follows:
Other Measures Included in
Amendment 11
Amendment 11 proposes two changes
to scallop regulations, including a
clarification that the maximum sweep
length for trawl gear under the FMP
would not apply to vessels fishing for
Northeast multispecies or monkfish, and
an allowance for general category
vessels to possess up to 100 bu (35.24
hL) of in-shell scallops seaward of the
VMS demarcation line. The economic
impacts of these measures are analyzed
in sections 5.4.20 and 5.4.21 of the
Amendment 11 document. Clarification
of trawl gear restriction for vessels
fishing under a multispecies or
monkfish DAS would have positive
economic impacts on those general
category vessels that catch scallops only
incidentally, compared to no action.
Setting the possession limit at 100 bu
(35.24 hL) seaward of the demarcation
line would have positive economic
impacts on the general category vessels
when they catch scallops with lower
meat yield. The only alternative to both
of these measures is the no action
alternative, which does not provide the
benefits of the proposed action noted
above.
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Change to Ownership Cap Restriction
to Account for CPHs
This proposed rule includes a change
to the ownership cap restriction for
current limited access scallop vessels to
clarify that the regulation was intended
to apply to limited access scallop
permits and CPHs. Currently, if a vessel
owner has been issued a CPH, that
owner cannot activate that CPH on a
vessel if they already own 5 percent of
the limited access scallop permits. That
owner would therefore have to sell a
vessel to activate the CPH. This
clarification of the ownership cap to
include CPH’s does not change this, or
the economic impacts of the ownership
cap restrictions. There are no
alternatives to clarifying the regulation,
since the result would be that the
scallop regulations would continue to
be inconsistent with the intent of the
original ownership cap restrictions
included in the FMP.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
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Jkt 214001
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 § 648.2, definitions for ‘‘limited
access general category (LAGC) scallop
vessel’’ and ‘‘limited access scallop
vessel’’ are added in alphabetical order
to read as follows:
§ 648.2
Definitions.
*
*
*
*
*
Limited access general category
(LAGC) scallop vessel means a vessel
that has been issued an individual
fishing quota (IFQ), Northern Gulf of
Maine (NGOM), or incidental catch
LAGC scallop permit pursuant to
§ 648.4(a)(2)(ii). An LAGC scallop vessel
may also be issued a limited access
scallop permit.
Limited access scallop vessel means a
vessel that has been issued a limited
access full-time, part-time, or occasional
scallop permit pursuant to
§ 648.4(a)(2)(i). A limited access scallop
vessel may also be issued an LAGC
scallop permit.
*
*
*
*
*
3. In § 648.4, paragraphs (a)(1)(i)(I)(3),
(a)(2) introductory text, (a)(2)(i)
introductory text, (a)(2)(i)(M)(1),
(a)(2)(i)(M)(2), (a)(2)(ii), and (e)(1)(iv) are
revised, and paragraph (a)(2)(i)(P) is
added to read as follows:
§ 648.4
Vessel permits.
(a) * * *
(1) * * *
(i) * * *
(I) * * *
(3) With the exception of combination
vessels, a vessel issued a limited access
sea scallop dredge permit pursuant to
paragraph (a)(2)(i) of this section is not
eligible for limited access multispecies
permits. This restriction is not
applicable to vessels issued an LAGC
scallop permit pursuant to paragraph
(a)(2)(ii) of this section, unless such
vessel has also been issued a limited
access scallop permit pursuant to
paragraph (a)(2)(i) of this section.
*
*
*
*
*
(2) Atlantic sea scallop vessels—Any
vessel of the United States that fishes
for, possesses, or lands Atlantic sea
scallops, except vessels that fish
exclusively in state waters for scallops,
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71329
must have been issued and carry on
board a valid scallop vessel permit
pursuant to this section.
(i) Limited access scallop permits.
Any vessel of the United States that
possesses or lands more than 400 lb
(181.44 kg) of shucked scallops, or 50 bu
(17.62 hL) of in-shell scallops per trip,
or possesses more than 100 bu (35.24
hL) 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.
*
*
*
*
*
(M) Percentage ownership restrictions.
(1) For any vessel acquired after March
1, 1994, a vessel owner is not eligible to
be issued a limited access scallop
permit for the vessel, or a confirmation
of permit history, if, as a result of the
issuance of the permit or confirmation
of permit history, the vessel owner, or
any other person who is a shareholder
or partner of the vessel owner, will have
an ownership interest in a total number
of limited access scallop vessels and
limited access scallop confirmations of
permit history in excess of 5 percent of
the number of all limited access scallop
vessels and confirmations of permit
history at the time of permit application.
(2) Vessel owners who were initially
issued a 1994 limited access scallop
permit or confirmation of permit
history, or who were issued or renewed
a limited access scallop permit or
confirmation of permit history for a
vessel in 1995 and thereafter, in
compliance with the ownership
restrictions in paragraph (a)(2)(i)(M)(1)
of this section, are eligible to renew
such permits(s) or confirmation(s) of
permit history, regardless of whether the
renewal of the permits or confirmations
of permit history will result in the 5
percent ownership restriction being
exceeded.
*
*
*
*
*
(P) VMS requirement. A vessel issued
a limited access scallop permit, as
specified in paragraph (a)(2)(i) of this
section, except a vessel issued an
occasional scallop permit that is not
fishing in a sea scallop access area, must
have an operational VMS installed.
Prior to issuance of a limited access
scallop permit, NMFS must receive a
signed VMS certification from the vessel
owner and be notified by the VMS
vendor that the unit has been installed
and is operational.
(ii) LAGC scallop permits. With the
exception of any vessel that fishes
exclusively in state waters for scallops,
any vessel of the United States that is
not in possession of a limited access
scallop permit pursuant to paragraph
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(a)(2)(i) of this section, and any vessel
issued a limited access scallop permit
that fishes for scallops outside of the
scallop DAS program described in
§ 648.53 or the Area Access program
described in § 648.60, any vessel that
fishes for, possesses, or lands scallops
must be issued an LAGC scallop permit
and must comply with the permit
requirements described in paragraphs
(a)(2)(ii)(A), (B), or (C) of this section. To
be issued an LAGC scallop permit, a
vessel owner must meet the
qualification criteria specified in
paragraphs (a)(2)(ii)(D) or (F) of this
section and must comply with the
application procedures specified in
paragraph (a)(2)(ii)(H) of this section.
(A) Individual fishing quota LAGC
permit. To possess or land up to 400 lb
(181.44 kg) of shucked meats, or 50 bu
(17.62 hL) of in-shell scallops per trip,
or possess up to 100 bu (35.24 hL) of inshell 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 to
demonstrate that the vessel meets the
eligibility criteria specified in paragraph
(a)(2)(ii)(D) of this section.
(B) Northern Gulf of Maine LAGC
permit. To possess or land up to 200 lb
(90.72 kg) of shucked or 25 bu (8.81 hL)
in-shell scallops per trip, or to possess
up to 50 bu (17.62 hL) seaward of the
VMS demarcation line, a vessel must
have been issued a Northern Gulf of
Maine LAGC scallop permit (NGOM
scallop permit). A vessel issued a
NGOM scallop permit may not fish for
scallops south of 42°20′N. Lat, and may
not possess or land more than 200 lb
(90.72 kg) of shucked or 25 bu (8.81 hL)
of in-shell scallops at any time, except
the vessel may possess up to 50 bu
(17.62 hL) of in-shell scallops seaward
of the VMS demarcation line. Issuance
of an initial NGOM scallop permit is
contingent upon the vessel owner
submitting the required application and
other information to demonstrate that
the vessel meets the eligibility criteria
specified in paragraph (a)(2)(ii)(F) of
this section.
(C) Incidental catch LAGC permit. To
possess or land up to 40 lb (18.14 kg)
of shucked or 5 bu (1.76 hL) in-shell
scallops per trip, or possess up to 10 bu
(3.52 hL) in-shell scallops per trip
seaward of the VMS demarcation line,
but not more than these amounts per
trip, a vessel must have been issued an
incidental catch general category scallop
permit (Incidental scallop permit). A
vessel issued an incidental catch general
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15:26 Dec 14, 2007
Jkt 214001
scallop permit may not possess or land
more than 40 lb (18.14 kg) of shucked
or 5 bu (1.76 hL) of in-shell scallops at
any time, except the vessel may possess
up to 10 bu (3.52 hL) of in-shell scallops
seaward of the VMS demarcation line.
Issuance of an initial incidental catch
category scallop permit is contingent
upon the vessel owner submitting the
required application and other
information to demonstrate that the
vessel meets the eligibility criteria
specified in paragraph (a)(2)(ii)(G) of
this section.
(D) Eligibility for an IFQ scallop
permit. A vessel is eligible for and may
be issued an IFQ scallop permit if it
meets both eligibility criteria specified
in paragraphs (a)(2)(ii)(D)(1) and (2) of
this section, or is replacing a vessel that
meets both the eligibility criteria
specified in paragraphs (a)(2)(ii)(D)(1)
and (2) of this section. A vessel owner
may appeal NMFS’s determination that
a vessel does not meet the requirements
specified in paragraphs (a)(2)(ii)(D)(1)
and (2) of this section by complying
with the appeal process, as specified in
paragraph (a)(2)(ii)(O) of this section.
(1) Permit criteria. A vessel must have
been issued a general category scallop
permit in at least one scallop fishing
year, as defined in § 648.2, between
March 1, 2000, and November 1, 2004.
(2) Landings criteria. A vessel must
have landed at least 1,000 lb (454 kg) of
shucked scallops in any one year when
the vessel also held a general category
scallop permit as specified in paragraph
(a)(2)(ii)(D)(1) of this section. NMFS
dealer data will be used to make the
initial determination of vessel
eligibility. If a dealer reported more than
400 lb (181.44 kg) of scallops on a trip,
400 lb (181.44 kg) will be credited
toward the landings criteria. For dealer
reports that indicate clearly that the
landings were bushels of in-shell
scallops, a conversion of 8.33 lb (3.78
kg) of scallop meats per bushel will be
used to calculate meat-weight, up to the
maximum of 400 lb (181.44 kg) per trip.
(E) Contribution factor for
determining a vessel’s individual fishing
quota. An eligible IFQ scallop vessel’s
best year of scallop landings, as
specified in § 648.53(h)(2), and the
vessel’s number of years active, as
specified in § 648.53(h)(3), shall be used
to calculate a vessel’s contribution
factor, as specified in § 648.53(h)(1). A
vessel owner that has applied for an IFQ
scallop permit will be notified of the
vessel’s contribution factor at the time
of issuance of the IFQ scallop permit. A
vessel owner may appeal NMFS’s
determination of the IFQ scallop
vessel’s contribution factor by
complying with the appeal process as
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specified in paragraph (a)(2)(ii)(O) of
this section.
(F) Eligibility for NGOM or Incidental
scallop permit. A vessel that is not
eligible for, or for which the vessel’s
owner chooses not to apply for an IFQ
scallop permit, may be issued either a
NGOM scallop permit or an Incidental
scallop permit if the vessel held a
general category scallop permit on
November 1, 2004, or if the vessel is
replacing a vessel that held a general
category scallop permit on November 1,
2004. A vessel owner may appeal
NMFS’s determination that a vessel
does not meet this criteria by complying
with the appeal process as specified in
paragraph (a)(2)(ii)(O) of this section.
(G) LAGC permit restrictions—(1)
Change of permit category. (i) IFQ
scallop permit. A vessel issued an IFQ
scallop permit may not change its
general category scallop permit category
at any time without voluntarily
relinquishing its IFQ scallop permit
eligibility as specified in paragraph
(a)(2)(ii)(M) of this section. If the vessel
owner has elected to relinquish the
vessel’s IFQ permit and instead be
issued an NGOM or Incidental scallop
permit, the IFQ permit shall be
permanently relinquished.
(ii) NGOM and Incidental scallop
permit. A vessel may be issued either an
NGOM or Incidental scallop permit for
each fishing year, and a vessel owner
may not change his/her LAGC scallop
permit category during the fishing year,
except as specified in this paragraph,
(a)(2)(ii)(G)(1)(ii) . The owners of a
vessel issued an NOGM or Incidental
scallop permit must elect a permit
category in the vessel’s permit
application and shall have one
opportunity to request a change in its
permit category by submitting an
application to the Regional
Administrator within 45 days of the
effective date of the vessel’s permit.
After that date, the vessel must remain
in that permit category for the duration
of the fishing year.
(2) VMS requirement. A vessel issued
a LAGC permit must have an
operational VMS installed. Issuance of
an Atlantic sea scallop permit requires
the vessel owner to submit a copy of the
vendor’s installation receipt or provide
verification of vendor activation from a
NMFS-approved VMS vendor as
described in § 648.9.
(H) Application/renewal restrictions.
See paragraph (a)(1)(i)(B) of this section.
Applications for a LAGC permit
described in paragraph (a)(2)(ii) of this
section must be postmarked no later
than [date 90 days from the date the
Final Rule is published in the FEDERAL
REGISTER]. Applications for LAGC
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permits that are not postmarked on or
before [date 90 days from the date the
Final Rule is published in the FEDERAL
REGISTER] may be denied and returned
to the sender with a letter explaining the
denial. Such denials may not be
appealed and shall be the final decision
of the Department of Commerce.
(I) Qualification restriction. (1) See
paragraph (a)(1)(i)(C) of this section for
restrictions applicable to limited access
scallop permits.
(2) Notwithstanding paragraph
(a)(1)(i)(L) of this section, scallop
landings history generated by separate
owners of a single vessel at different
times during the qualification period for
LAGC scallop permits may be used the
qualify more than one vessel, provided
that each owner applying for an LAGC
scallop permit demonstrates that he/she
created distinct fishing histories, that
such histories have been retained, and
if the vessel was sold, that each
applicant’s eligibility and fishing
history is distinct.
(3) Notwithstanding paragraph
(a)(1)(i)(L) of this section, vessel owners
applying for a LAGC permit who sold a
vessel with non-scallop limited access
permits, as specified in paragraph
(a)(1)(i)(D) of this section, and retained
only the general category scallop history
as specified in paragraph (a)(1)(i)(D) of
this section, before [DATE FINAL RULE
PUBLISHED IN THE FEDERAL
REGISTER], may use the general
category scallop history to qualify a
vessel for the initial IFQ scallop permit.
(J) Change in ownership. See
paragraph (a)(1)(i)(D) of this section.
(K) Replacement vessels. A vessel
owner may apply to replace a qualified
LAGC vessel with another vessel that
he/she owns. There are no size or
horsepower restrictions on replacing
general LAGC vessels, unless the
qualified vessel that will be replaced is
subject to such restriction because of
other limited access permits issued
pursuant to § 648.4. In order for a LAGC
that also has other limited access
permits issued pursuant to § 648.4 to be
replaced by a vessel that does not meet
the replacement and upgrade
restrictions specified for those other
limited access permits, the other limited
access permits must be permanently
relinquished, as specified in paragraph
(a)(1)(i)(K) of this section.
(L) Confirmation of Permit History.
See paragraph (a)(1)(i)(J) of this section.
(M) Abandonment or voluntary
relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(N) Restriction on permit splitting. See
paragraph (a)(1)(i)(L) of this section.
(O) Appeal of denial of permit—
(1)Eligibility. Any applicant eligible to
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apply for an LAGC scallop permit who
is denied such permit may appeal the
denial to the Regional Administrator
within 30 days of the notice of denial.
Any such appeal may only be based on
the grounds that the information used
by the Regional Administrator was
incorrect. The appeal must be in
writing, must state the specific grounds
for the appeal, and must include
information to support the appeal.
(2) Contribution factor appeals. Any
applicant eligible to apply for a IFQ
scallop permit who disputes NMFS’s
determination of the vessel’s
contribution factor specified in
paragraph (a)(2)(ii)(E) of this section
may appeal NMFS’s determination to
the Regional Administrator within 30
days of the notification of the vessel’s
best year and years active. Any such
appeal may only be based on the
grounds that the information used by
the Regional Administrator was
incorrect. The appeal must be in
writing, must state the specific grounds
for the appeal, and must include
information to support the appeal. A
vessel owner may appeal both the
eligibility criteria and the contribution
factor and must submit the appeal for
both at the same time. An appeal of
contribution factor determinations shall
be reviewed concurrently with an
eligibility appeal, if applicable.
(3) Appeal review. The Regional
Administrator shall appoint a designee
who shall make the initial decision on
the appeal. The appellant may request a
review of the initial decision by the
Regional Administrator by so requesting
in writing within 30 days of the notice
of the initial decision. If the appellant
does not request a review of the initial
decision within 30 days, the initial
decision is the final administrative
action of the Department of Commerce.
Such review will be conducted by a
hearing officer appointed by the
Regional Administrator. The hearing
officer shall make findings and a
recommendation to the Regional
Administrator, which shall be advisory
only. Upon receiving the findings and
the recommendation, the Regional
Administrator shall issue a final
decision on the appeal. The Regional
Administrator’s decision is the final
administrative action of the Department
of Commerce.
(4) Status of vessels pending appeal.
A vessel denied an LAGC scallop permit
may fish while under appeal, provided
that the denial has been appealed, the
appeal is pending, and the vessel has on
board a letter from the Regional
Administrator authorizing the vessel to
fish under the limited access general
category permit. The Regional
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71331
Administrator shall issue such a letter
that shall be effective during the
pendency of any appeal. The letter of
authorization must be carried on board
the vessel. If the appeal is finally
denied, the Regional Administrator
shall send a notice of final denial to the
vessel owner; the authorizing letter
becomes invalid 5 days after receipt of
the notice of denial, but no later than 10
days from the date of the letter of denial.
*
*
*
*
*
(e) * * *
(1) * * *
(iv) An applicant applying for a
limited access multispecies combination
vessel or individual DAS permit, a
limited access scallop permit (except an
occasional scallop permit), an LAGC
scallop permit, or electing to use a VMS,
has failed to meet all of the VMS
requirements specified in §§ 648.9 and
648.10; or
*
*
*
*
*
4. In § 648.5, paragraph (a) is revised
as follows:
§ 648.5
Operator permits.
(a) General. Any operator of a vessel
fishing for or possessing: Atlantic sea
scallops, NE multispecies, spiny
dogfish, monkfish, Atlantic herring,
Atlantic surfclam, ocean quahog,
Atlantic mackerel, squid, butterfish,
scup, black sea bass, or Atlantic
bluefish, harvested in or from the EEZ;
tilefish harvested in or from the EEZ
portion of the Tilefish Management
Unit; skates harvested in or from the
EEZ portion of the Skate Management
Unit; or Atlantic deep-sea red crab
harvested in or from the EEZ portion of
the Red Crab Management Unit, issued
a permit, including carrier and
processing permits, for these species
under this part, must have been issued
under this section, and carry on board,
a valid operator permit. An operator’s
permit issued pursuant to part 622 or
part 697 of this chapter satisfies the
permitting requirement of this section.
This requirement does not apply to
operators of recreational vessels.
*
*
*
*
*
5. In § 648.9, paragraphs (c)(1)(iii) and
(c)(2)(i)(D) are revised to read as follows:
§ 648.9
VMS requirements.
*
*
*
*
*
(c) * * *
(1) * * *
(iii) At least twice per hour, 24 hr a
day, throughout the year, for vessels
issued a scallop permit and subject to
the requirements of § 648.4(a)(2)(ii)(B).
(2) * * *
(i) * * *
(D) The vessel has been issued a
general scallop permit, is not in
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possession of any scallops onboard the
vessel, is tied to a permanent dock or
mooring, the vessel operator has
notified NMFS through VMS by
transmitting the appropriate VMS
power-down code, that the VMS will be
powered down, and the vessel is not
required by other permit requirements
for other fisheries to transmit the
vessel’s location at all times. Such a
vessel must repower the VMS and
submit a valid VMS activity declaration
prior to moving from the fixed dock or
mooring. VMS codes and instructions
are available from the Regional
Administrator upon request.
*
*
*
*
*
6. In § 648.10, paragraphs (b)(1)(i);
and (b)(2)(i) and (ii), and (c)
introductory text are revised; paragraphs
(b)(1)(iii) and (iv) are removed and
reserved; and paragraphs (b)(4)(i)
through (iv) are added as follows:
§ 648.10 DAS and VMS notification
requirements.
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*
*
*
*
*
(b) * * *
(1) * * *
(i) A scallop vessel issued a Full-time
or Part-time limited access scallop
permit or an LAGC scallop permit;
*
*
*
*
*
(2) * * *
(i) A vessel subject to the VMS
requirements of § 648.9 and this
paragraph (b) that has crossed the VMS
Demarcation Line specified under
paragraph (a) of this section is deemed
to be fishing under the DAS program,
the general category scallop fishery, or
other fishery requiring the operation of
VMS as applicable, unless prior to the
vessel 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 by
notifying NMFS 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
§ 648.85(a)(3)(ii) under the provisions of
that program.
(ii) Notification that the vessel is not
fishing under the DAS program, the
general category scallop fishery, or other
fishery requiring the operation of VMS,
must be received 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.
*
*
*
*
*
(4) * * *
(i) IFQ scallop vessels. An IFQ scallop
vessel that has crossed the VMS
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Demarcation Line specified under
paragraph (a) of this section is deemed
to be fishing under the IFQ program,
unless prior to the vessel leaving port,
the vessel’s owner or authorized
representative declares the vessel out of
the scallop fishery (i.e., the vessel will
not possess, retain, or land scallops) for
a specific time period by notifying the
Regional Administrator through the
VMS. An IFQ scallop vessel that is
fishing north of 42°20′ N. Lat. is deemed
to be fishing under the NGOM scallop
fishery unless prior to the vessel leaving
port, the vessel’s owner or authorized
representative declares the vessel out of
the scallop fishery as specified in
paragraphs (b)(2)(i) and (ii) of this
section, and the vessel does not possess,
retain, or land scallops.
(ii) NGOM scallop fishery. An NGOM
scallop vessel is deemed to be fishing
under the NGOM scallop fishery unless
prior to the vessel leaving port, the
vessel’s owner or authorized
representative declares the vessel out of
all fisheries as specified in paragraphs
(b)(2)(i) and (ii) of this section, and the
vessel does not possess, retain, or land
scallops.
(iii) Incidental scallop fishery. An
Incidental scallop vessel that has
crossed the demarcation line on any
declared fishing trip for any species is
deemed to be fishing under the
Incidental scallop fishery unless prior to
the vessel leaving port, the vessel’s
owner or authorized representative
declares the vessel out of all fisheries as
specified in paragraphs (b)(2)(i) and (ii)
of this section, and the vessel does not
possess, retain, or land scallops.
(iv) Catch reports. All scallop vessels
fishing in the Sea Scallop Area Access
Program as described in § 648.60 are
required to submit a daily report
through VMS of scallops kept and
yellowtail flounder caught (including
discarded yellowtail flounder) on each
Access Area trip. A vessel issued an IFQ
or NGOM scallop permit must report
through VMS the amount of scallops
kept on each trip declared as a scallop
trip or on trips that are not declared
through VMS as a scallop trip, but on
which scallops are caught incidentally.
VMS catch reports by such vessels must
be sent prior to crossing the VMS
demarcation line on the way into port
at the end of the trip and must include
the amount of scallop meats to be
landed, the estimated time of arrival in
port, the port at which the scallops will
be landed, and the vessel trip report
serial number recorded from that trip’s
vessel trip report.
(c) Call-in notification. The owner of
a vessel issued a limited access
monkfish or red crab permit who is
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Sfmt 4702
participating in a DAS program and who
is not required to provide notification
using a VMS, and a scallop vessel
qualifying for a DAS allocation under
the occasional category that has not
elected to fish under the VMS
notification requirements of paragraph
(b) of this section and is not
participating in the Sea Scallop Area
Access program as specified in § 648.60,
and any vessel that may be required by
the Regional Administrator to use the
call-in program under paragraph (d) of
this section, are subject to the following
requirements:
*
*
*
*
*
7. In § 648.14, paragraphs (a)(56),
(a)(57), (a)(61), (f), (h)(1), (h)(6), (h)(9),
(h)(19), (h)(27), (i), and (s) are revised,
and paragraphs (a)(180) and (h)(28) are
added to read as follows:
§ 648.14
Prohibitions.
(a) * * *
(56) Fish for, possess, or land,
scallops without the vessel having been
issued and carrying onboard a valid
scallop permit in accordance with
§ 648.4(a)(2) and having declared into
the scallop fishery unless the scallops
were harvested by a vessel that has not
been issued a Federal scallop permit
and fishes for scallops exclusively in
state waters;
(57) Fish for or land per trip, or
possess at any time prior to a transfer to
another person for a commercial
purpose, other than solely for transport:
(i) In excess of 40 lb (18.14 kg)
shucked scallops at any time, 5 bu (1.76
hl) in-shell scallops shoreward of the
VMS Demarcation Line, or 10 bu (3.52
hL) of in-shell scallops seaward of the
VMS Demarcation Line, unless:
(A) The scallops were harvested by a
vessel that has not been issued a scallop
permit and fishes for scallops
exclusively in state waters;
(B) The scallops were harvested by a
vessel that has been issued and carries
on board an IFQ scallop permit issued
pursuant to § 648.4(a)(2)(ii)(A) and is
properly declared into the IFQ scallop
fishery;
(C) The scallops were harvested by a
vessel that has been issued and carries
on board an NGOM scallop permit
issued pursuant to § 648.4(a)(2)(ii)(B),
and is properly declared into the NGOM
scallop management area, and the
NGOM TAC specified in § 648.62 has
not been harvested; and/or
(D) The scallops were harvested by a
vessel that has been issued and carries
on board an Incidental scallop permit
allowing up to 40 lb (18.14 kg) of
shucked or 5 bu (1.76 hL) of in-shell
scallops, is carrying an at-sea observer,
and is authorized by the Regional
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Administrator to have an increased
possession limit to compensate for the
cost of carrying the observer.
(ii) In excess of 200 lb (90.72 kg)
shucked scallops at any time, 25 bu (25x
hl) in-shell scallops inside the VMS
Demarcation Line, or 50 bu (17.62 hL)
of in-shell scallops seaward of the VMS
Demarcation Line, unless:
(A) The scallops were harvested by a
vessel that has not been issued a scallop
permit and fishes for scallops
exclusively in state waters;
(B) The scallops were harvested by a
vessel that has been issued and carries
on board a limited access scallop permit
and is properly declared into the scallop
DAS or Area Access program;
(C) The scallops were harvested by a
vessel that has been issued and carries
on board an IFQ scallop permit issued
pursuant to § 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;
(D) The scallops were harvested by a
vessel that has been issued and carries
on board a scallop permit and the vessel
is fishing in accordance with the
provisions of the state waters exemption
program specified in § 648.54; and/or
(E) The scallops were harvested by a
vessel that has been issued and carries
on board an NGOM scallop permit
allowing up to 200 lb (90.72 kg) of
shucked or 25 bu (25x hL) of in-shell
scallops, is carrying an at-sea observer,
and is authorized by the Regional
Administrator to have an increased
possession limit to compensate for the
cost of carrying the observer.
(iii) In excess of 400 lb (181.4 kg)
shucked scallops at any time, 50 bu
(17.6 hl) in-shell scallops shoreward of
the VMS Demarcation Line, or 100 bu
(35.24 hL) in-shell scallops seaward of
the VMS Demarcation Line, unless:
(A) The scallops were harvested by a
vessel that has not been issued a scallop
permit and fishes for scallops
exclusively in state waters.
(B) The scallops were harvested by a
vessel that has been issued and carries
on board a limited access scallop permit
issued pursuant to § 648.4(a)(2)(i) and is
properly declared into the scallop DAS
or Area Access program;
(C) The scallops were harvested by a
vessel that has been issued and carries
on board a scallop permit and the vessel
is fishing in accordance with the
provisions of the state waters exemption
program specified in § 648.54;
(D) The scallops were harvested by a
vessel that has been issued and carries
on board a limited access scallop permit
that has also been issued an IFQ scallop
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permit, and is properly declared into the
IFQ program; and/or
(E) The scallops were harvested by a
vessel that has been issued and carries
on board an IFQ scallop permit, is
carrying an at-sea observer, and is
authorized by the Regional
Administrator to have an increased
possession limit to compensate for the
cost of carrying the observer.
*
*
*
*
*
(61) Sell, barter or trade, or otherwise
transfer, or attempt to sell, barter or
trade, or otherwise transfer, for a
commercial purpose, scallops, unless
the vessel has been issued a valid
scallop permit pursuant to § 648.4(a)(2),
or the scallops were harvested by a
vessel that has not been issued a scallop
permit and fishes for scallops
exclusively in state waters.
*
*
*
*
*
(180) Fail to comply with the
requirements and restrictions for general
category scallop sectors specified in
§ 648.63.
*
*
*
*
*
(f) In addition to the general
prohibitions specified in § 600.725 of
this chapter and in paragraph (a) of this
section, it is unlawful for any person
owning or operating a vessel issued a
scallop permit under § 648.4(a)(2) to
land, or possess at or after landing, inshell scallops smaller than the
minimum shell height specified in
§ 648.50(a).
*
*
*
*
*
(h) * * *
(1) Fish for, possess, or land scallops
after using up the vessel’s annual DAS
allocation and Access Area trip
allocations or when not properly
declared into the DAS or Area Access
program pursuant to § 648.10, unless the
vessel has been issued an LAGC scallop
permit pursuant to § 648.4(a)(2)(ii), has
properly declared into a general
category scallop fishery, and does not
exceed the allowed possession limit for
the LAGC scallop permit issued to the
vessel as specified in § 648.52, or unless
exempted from DAS allocations as
provided in § 648.54.
*
*
*
*
*
(6) Have an ownership interest in
more than 5 percent of the total number
of vessels issued limited access scallop
permits and confirmations of permit
history, except as provided in
§ 648.4(a)(2)(i)(M).
*
*
*
*
*
(9) Possess more than 40 lb (18.14 kg)
of shucked, or 5 bu (1.76 hL) of in-shell
scallops, or participate in the scallop
DAS or Area Access programs, while in
the possession of trawl nets that have a
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71333
maximum sweep exceeding 144 ft (43.9
m), as measured by the total length of
the footrope that is directly attached to
the webbing of the net, except as
specified in § 648.51(a)(1), unless the
vessel is fishing under the northeast
multispecies or monkfish DAS program.
*
*
*
*
*
(19) Fail to comply with any
requirement for participating in the
State Waters Exemption Program
specified in § 648.54.
*
*
*
*
*
(27) Possess more than 50 bu (17.6 hL)
of in-shell scallops, as specified in
§ 648.52(f), outside the boundaries of
the Elephant Trunk Access Area
specified in § 648.59(e) by a vessel that
is properly declared into the Elephant
Trunk Access Area under the Area
Access Program as specified in § 648.60.
(28) Fish for or land per trip, or
possess at any time, scallops in the
NGOM scallop management area after
notification in the Federal Register that
the NGOM scallop management area
TAC has been harvested, as specified in
§ 648.62, unless the vessel possesses or
lands scallops that were harvested south
of 42°20′ N. Lat., the vessel is transiting
the NGOM scallop management area,
and the vessel’s fishing gear is properly
stowed and unavailable for immediate
use.
(i) LAGC scallop vessels. (1) In
addition to the general prohibitions
specified in § 600.725 of this chapter
and in paragraphs (a), (f), and (g) of this
section, it is unlawful for any person
owning or operating a vessel issued an
LAGC scallop permit to do any of the
following:
(i) Fail to comply with the LAGC
scallop permit restrictions as specified
in § 648.4(a)(2)(ii)(G) through (O);
(ii) Fish for, possess, or land scallops
on more than one trip per calendar day;
(iii) Possess in-shell scallops while in
possession of the maximum allowed
amount of shucked scallops specified
for each LAGC scallop permit category
in § 648.62;
(iv) Fish for, possess, or land scallops
on a vessel that is declared out of
scallop fishing;
(v) Possess or use trawl gear that does
not comply with any of the provisions
or specifications in § 648.51(a), unless
the vessel is fishing under the Northeast
multispecies or monkfish DAS program;
(vi) Possess or use dredge gear that
does not comply with any of the
provisions or specifications in
§ 648.51(b).
(vii) Refuse, or fail, to carry an
observer after being requested to carry
an observer by the Regional
Administrator;
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(viii) Fail to provide an observer with
required food, accommodations, access,
and assistance, as specified in § 648.11;
(ix) Fail to comply with the
notification requirements specified in
§ 648.11(g)(2) or refuse or fail to carry an
observer after being requested to carry
an observer by the Regional
Administrator or Regional
Administrator’s designee;
(x) Fail to comply with any of the
VMS requirements specified in
§§ 648.10 and 648.60;
(xi) Fail to comply with any
requirement for declaring in or out of
the general category scallop fishery or
other notification requirements
specified in § 648.10(b);
(xii) Fail to comply with any of the
requirements specified in § 648.60;
(xiii) Declare into or leave port for an
area specified in § 648.59(b) through (d)
after the effective date of the notification
published in the Federal Register
stating that the general category scallop
TAC has been harvested as specified in
§ 648.60;
(xiv) Declare into or leave port for an
area specified in § 648.59(b) through (d)
after the effective date of the notification
published in the Federal Register
stating that the number of general
category trips have been taken as
specified in § 648.60;
(xv) Declare into or leave port for an
area specified in § 648.59(b) through (d)
after the effective date of the notification
published in the Federal Register
stating that the yellowtail flounder TAC
has been harvested as specified in
§ 648.85(c);
(xvi) Declare into or leave port for the
NGOM scallop management area
specified in § 648.62 after the effective
date of the notification published in the
Federal Register stating that the general
category scallop TAC has been
harvested as specified in § 648.62;
(xvii) Fish for, possess, or land
scallops in or from the NGOM scallop
management area after the effective date
of the notification published in the
Federal Register that the NGOM scallop
management area TAC has been
harvested, as specified in § 648.62,
unless the vessel possesses or lands
scallops that were harvested south of
42°20′ N. Lat., the vessel is transiting the
NGOM scallop management area, and
the vessel’s fishing gear is properly
stowed and unavailable for immediate
use;
(xviii) Fail to comply with any of the
requirements and restrictions for general
category sectors and harvesting
cooperatives specified in § 648.63; or
(xix) Fish for, land, or possess
scallops at any time after 10 days from
being notified that his or her appeal for
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an LAGC scallop permit has been
denied and that the denial is the final
decision of the Department of
Commerce.
(2) In addition to the general
prohibitions specified in § 600.725 of
this chapter and in paragraphs (a), (f),
and (g) of this section, it is unlawful for
any person owning or operating a vessel
issued an IFQ scallop permit to do any
of the following:
(i) Fish for or land per trip, or possess
at any time, in excess of 400 lb (181.4
kg) of shucked, or 50 bu (17.62 hL) of
in-shell scallops, unless the vessel is
participating in the Area Access
Program specified in § 648.60, is
carrying an observer as specified in
§ 648.11, and an increase in the
possession limit is authorized as
specified in § 648.60(d)(2);
(ii) Fish for or land per trip, or possess
at any time, in excess of 200 lb (90.7 kg)
of shucked or 25 bu (8.81 hl) of in-shell
scallops in the NGOM scallop
management area, unless the vessel is
seaward of the VMS Demarcation Line
and in possession of no more than 50 bu
(17.62 hL) in-shell scallops, when not
declared into the NGOM scallop
management area, or is transiting the
NGOM scallop management area with
gear properly stowed and unavailable
for immediate use.
(iii) Possess more than 100 bu (35.24
hL) of in-shell scallops seaward of the
VMS demarcation line, or possess, or
land per trip, more than 50 bu (17.62
hL) of in-shell scallops shoreward of the
VMS demarcation line, unless exempted
from DAS allocations as provided in
§ 648.54;
(iv) Possess more than 50 bu (17.6 hL)
of in-shell scallops, as specified in
§ 648.52(d), outside the boundaries of
the Elephant Trunk Access Area
specified in § 648.59(e) by a vessel that
is properly declared into the Elephant
Trunk Access Area under the Area
Access Program as specified in § 648.60;
(v) Fish for, possess, or land scallops
after the effective date of the notification
in the Federal Register that the
quarterly TAC specified in § 648.53(a)(7)
has been harvested;
(vi) Fish for, possess, or land scallops
in excess of a vessel’s IFQ;
(vii) Have an ownership interest in
vessels that collectively is more than 5
percent of the total IFQ scallop TAC
specified in accordance with
§ 648.53(a), except as provided in
§ 648.4(h)(4);
(viii) Have an IFQ allocation on an
IFQ scallop vessel of more than 2
percent of the total IFQ scallop TAC
specified in accordance with
§ 648.53(a), except as provided in
§ 648.4(h)(4);
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(ix) Apply for an IFQ transfer that will
result in the transferee having an
aggregate ownership interest in more
than 5 percent of the total IFQ scallop
TAC, except as provided in
§ 648.53(h)(4).
(x) Apply for an IFQ transfer that will
result in the receiving vessel having an
IFQ allocation in excess of 2 percent of
the total IFQ scallop TAC, except as
provided in§ 648.53(h)(4);
(xi) Fish for, possess, or land
transferred IFQ prior to approval of the
transfer by the Regional Administrator
as specified in § 648.53(h)(4)(ii);
(xii) Provide false information in
relation to or on an application for an
IFQ transfer required
under§ 648.53(h)(4);
(xiii) Sub-lease scallop IFQ;
(xiv) Transfer scallop IFQ to another
IFQ scallop vessel after the transferring
vessel has landed scallops;
(xv) Transfer a portion of a vessel’s
scallop IFQ; or
(xvi) Transfer scallop IFQ to, or
receive scallop IFQ on, a vessel that has
not been issued a valid IFQ scallop
permit.
(3) In addition to the general
prohibitions specified in § 600.725 of
this chapter and in paragraphs (a), (f),
and (g) of this section, it is unlawful for
any person owning or operating a vessel
issued an NGOM scallop permit to do
any of the following:
(i) Declare into or leave port for a
scallop trip, or fish for or possess
scallops south of 42°20′ N. Lat.;
(ii) Fish for or land per trip, or possess
at any time, in excess of 200 lb (90.7 kg)
of shucked or 25 bu (8.81 hl) of in-shell
scallops in or from the NGOM scallop
management area, except when seaward
of the VMS Demarcation Line and in
possession of no more than 50 bu (17.62
hL) in-shell scallops; or
(iii) Fish for, possess, or land scallops
after the effective date of notification in
the Federal Register that the NGOM
scallop management area TAC has been
harvested;
(4) In addition to the general
prohibitions specified in § 600.725 of
this chapter and in paragraphs (a), (f),
and (g) of this section, it is unlawful for
any person owning or operating a vessel
issued an Incidental scallop permit to
fish for, possess, or retain, more than 40
lb (18.14 kg) of shucked scallops, or 5
bu (1.76 hL) of in-shell scallops, except
the vessel may possess up to 10 bu (3.52
hL) of in-shell scallops while seaward of
the VMS Demarcation Line.
*
*
*
*
*
(s) Any person fishing for, possessing,
or landing scallops at or prior to the
time when those scallops are received or
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possessed by a dealer, is subject to all
of the scallop prohibitions specified in
this section, unless the scallops were
harvested by a vessel without a scallop
permit that fishes for scallops
exclusively in state waters.
*
*
*
*
*
8. In § 648.51, paragraphs (a)(1) and
(a)(2)(i) are revised to read as follows:
§ 648.51
Gear and crew restrictions.
(a) * * *
(1) Maximum sweep. The trawl sweep
of nets shall not exceed 144 ft (43.9 m),
as measured by the total length of the
footrope that is directly attached to the
webbing, unless the net is stowed and
not available for immediate use, as
specified in § 648.23, or unless the
vessel is fishing under the Northeast
multispecies or monkfish DAS
programs.
(2) * * *
(i) Minimum mesh size. Subject to
applicable minimum mesh size
restrictions for other fisheries as
specified under this part, the mesh size
for any scallop trawl net in all areas
shall not be smaller than 5.5 inches
(13.97 cm).
*
*
*
*
*
9. Section 648.52 is revised to read as
follows:
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§ 648.52
Possession and landing limits.
(a) A vessel issued an IFQ scallop
permit that is declared into the IFQ
scallop scallop fishery as specified in
§ 648.10(b), unless exempted under the
state waters exemption program
described under § 648.54, may not
possess or land, per trip, more than 400
lb (181.44 kg) of shucked scallops, or
possess more than 50 bu (17.62 hL) of
in-shell scallops shoreward of the VMS
Demarcation Line. Such a vessel may
fish for, possess, or land scallops only
once in any calendar day. Such a vessels
may possess up to 100 bu (35.24 hl) of
in-shell scallops seaward of the VMS
demarcation line on a properly declared
IFQ scallop trip.
(b) A vessel issued an NGOM scallop
permit, or an IFQ scallop permit that is
declared into the NGOM scallop fishery
as described in § 648.62, unless
exempted under the state waters
exemption program described under
§ 648.54, may not possess or land, per
trip, more than 200 lb (90.7 kg) of
shucked, or 25 bu (8.81 hL) of in-shell
scallops. Such a vessel may not fish for
scallops more than once in any calendar
day. Such a vessel may possess up to 50
bu (17.62 hL) of in-shell scallops
seaward of the VMS demarcation line
on a properly declared NGOM scallop
fishery trip.
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15:26 Dec 14, 2007
Jkt 214001
(c) A vessel issued an Incidental
scallop permit, or an IFQ or NGOM
scallop permit that is not declared into
the IFQ or NGOM scallop fishery as
required under § 648.10(b)(4), unless
exempted under the state waters
exemption program described under
§ 648.54, may not possess or land, per
trip, more than 40 lb (18.14 kg) of
shucked, or 5 bu (1.76 hL) of in-shell
scallops. Such a vessel may not fish for
scallops more than once in any calendar
day. Such a vessel may possess up to 10
bu (3.52 hL) of in-shell scallops seaward
of the VMS demarcation line.
(d) Owners or operators of vessels
with a limited access scallop permit that
have properly declared into the Sea
Scallop Area Access Program as
described in § 648.60 are prohibited
from fishing for or landing per trip, or
possessing at any time, scallops in
excess of any sea scallop possession and
landing limit set by the Regional
Administrator in accordance with
§ 648.60(a)(5).
(e) Owners or operators of vessels
issued limited access permits fishing in
or transiting the area south of 42 20’N.
Lat. at any time during a trip are
prohibited from fishing for, possessing,
or landing per trip more than 50 bu
(17.62 hl) of in-shell scallops shoreward
of the VMS Demarcation Line, unless
when fishing under the state waters
exemption specified under § 648.54.
(f) A vessel that is declared into the
Elephant Trunk Access Area Sea
Scallop Area Access Program as
described in § 648.60, may not possess
more than 50 bu (17.62 hL) of in-shell
scallops outside of the Elephant Trunk
Access Area described in § 648.59(e).
10. Section 648.53 is revised to read
as follows:
§ 648.53 Total allowable catch, DAS
allocations, and Individual Fishing Quotas.
(a) Total allowable catch. The annual
target total allowable catch for the
scallop fishery shall be established
through the framework adjustment
process specified in § 648.55. The
annual target total allowable catch shall
include the total allowable catch for all
scallop vessels fishing in open areas and
access areas, but shall exclude the total
allowable catch established for the
Northern Gulf of Maine Scallop
Management Area as specified in
§ 648.62. After deducting the total
estimated incidental catch of scallops by
vessels issued incidental catch general
category scallop permits, and limited
access and limited access general
category scallop vessels not declared
into the scallop fishery, the annual
target total allowable catch for open and
access areas shall each be divided
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Fmt 4702
Sfmt 4702
71335
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)(1)
through (a)(4) of this section.
(1) Access area total allowable catch.
The TAC for each access area specified
in § 648.59 shall be determined through
the framework adjustment process
described in § 648.55 and shall be
specified in § 648.59 for each access
area. The TAC set-asides for observer
coverage and research shall be deducted
from the TAC in each Access Area prior
to assigning the target total allowable
catch and trip allocations for limited
access scallop vessels, and prior to
allocating TAC to limited access general
category vessels. The percentage of the
TAC for each Access Area allocated to
limited access vessels, limited access
general category vessels, and limited
access vessels fishing under limited
access general category permits shall be
specified in accordance with § 648.60
through the framework adjustment
process specified in § 648.55.
(2) Open area TAC for limited access
vessels. For the 2008 fishing year, the
target total allowable catch for limited
access vessels fishing under the scallop
DAS program specified in this section
shall be equal to 90 percent of the target
total allowable catch specified in
accordance with paragraph (a) of this
section, minus the total allowable catch
for all access areas specified in
accordance with paragraph (b)(5) of this
section. Beginning March 1, 2009,
unless the implementation of the IFQ
program is delayed beyond March 1,
2009, as specified in paragraph (a)(5) of
this section, the target total allowable
catch for limited access vessels fishing
under the scallop DAS program
specified in this section shall be equal
to 94.5 percent of the target total
allowable catch specified in accordance
with paragraph (a) of this section, minus
the total allowable catch for all access
areas specified in accordance with
paragraph (b)(5) of this section. The
target total allowable catch for limited
access vessels fishing under the DAS
program shall be used to determine the
DAS allocation for full-time, part-time,
and occasional scallop vessels will
receive after deducting the DAS setasides for observer coverage and
research.
(3) Open area TAC for IFQ scallop
vessels—(i) 2008 fishing year, and
beyond if necessary. IFQ scallop vessels,
and limited access scallop vessels that
are fishing under an IFQ scallop permit
outside of the scallop DAS and Area
Access programs shall be allocated 10
percent of the annual target total
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allowable catch specified in accordance
with paragraph (a) of this section, minus
the total allowable catch for all access
areas specified in accordance with
paragraph (b)(5) of this section.
(ii) 2009 fishing year and beyond for
IFQ scallop vessels without a limited
access scallop permit. The total
allowable catch for IFQ scallop vessels
without a limited access scallop permit
shall be equal to 5 percent of the target
total allowable catch specified in
accordance with paragraph (a) of this
section, minus the total allowable catch
for all access areas specified in
accordance with paragraph (b)(5) of this
section. If the IFQ program
implementation is delayed beyond
March 1, 2009, as specified in paragraph
(a)(5) of this section, the quarterly
fleetwide total allowable catch (TAC)
specified in paragraph (a)(6) of this
section would remain in effect until
March 1, 2010, or beyond if necessary.
(iii) 2009 fishing year and beyond for
IFQ scallop vessels with a limited access
scallop permit. Limited access scallop
vessels that are fishing under an IFQ
scallop permit outside of the scallop
DAS and Area Access programs shall be
allocated 0.5 percent of the annual
target total allowable catch specified in
accordance with paragraph (a) of this
section, minus the total allowable catch
for all access areas specified in
accordance with paragraph (b)(5) of this
section. If the IFQ program
implementation is delayed beyond
March 1, 2009, as specified in paragraph
(a)(5) of this section, the quarterly
fleetwide TAC specified in paragraph
(a)(6) of this section would remain in
effect until March 1, 2010, or beyond if
necessary.
(4) Northern Gulf of Maine Scallop
Fishery. The total allowable catch for
the Northern Gulf of Maine Scallop
Fishery shall be specified in accordance
with § 648.62, through the framework
adjustment process specified in
§ 648.55.
(5) Delay of the IFQ program. If the
IFQ program implementation is delayed
beyond March 1, 2009, as specified in
paragraph (a)(5) of this section, the
quarterly fleetwide TAC specified in
paragraph (a)(6) of this section would
remain in effect until March 1, 2010, or
a subsequent date, if necessary. The
Regional Administrator shall proved
notice to all scallop permit holders if
the IFQ program is delayed beyond
March 1, 2009. If the Regional
Administrator determines that the IFQ
program cannot be implemented on
March 1, 2009, NMFS shall inform all
scallop vessel owners that the IFQ
program shall not take effect on March
1, 2009, and that the quarterly TACs
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15:26 Dec 14, 2007
Jkt 214001
specified in paragraph (a)(6) of this
section shall remain in effect until
March 1, 2010. The Regional
Administrator shall inform LAGC
scallop vessel owners of a decision to
delay the IFQ program no later than
January 1, 2009, 2010, or subsequent
year, if necessary.
(6) Distribution of transition period
total allowable catch—(i) Allocation.
For the 2008 fishing year, and
subsequent fishing years until IFQs are
implemented as specified in paragraph
(j) of this section, the total allowable
catch for IFQ scallop vessels shall be
allocated as specified in paragraphs
(a)(1) through (4) of this section into
quarterly periods. The percentage
allocation for each period allocated to
the IFQ scallop vessels, including
limited access vessels fishing under an
IFQ scallop permit and vessels under
appeal for a IFQ scallop permit pursuant
to § 648.4(a)(2)(ii) shall be specified in
the framework adjustment process as
specified in § 648.55 and are specified
in the following table:
Quarter
I. March-May
II. June-August
III. SeptemberNovember
IV. DecemberFebruary
Percent
To Be Determined
To Be Determined
To Be Determined
To Be Determined
TAC
To Be Determined
To Be Determined
To Be Determined
To Be Determined
(ii) Deductions of landings. All
landings by IFQ scallop vessels and
limited access vessels fishing under an
IFQ scallop permit shall be deducted
from the TAC allocations specified in
the table in paragraph (a)(6)(i) of this
section.
(b) DAS allocations. (1) Total DAS to
be used in all areas other than those
specified in § 648.59, shall be specified
through the framework adjustment
process as specified in § 648.55, using
the target total allowable catch for open
areas specified in paragraph (a) of this
section, and estimated catch per unit
effort.
(2) Prior to setting the DAS allocations
specified in paragraph (b)(4) of this
section, 1 percent of total available DAS
will be set aside to help defray the cost
of observers, as specified in paragraph
(h)(1) of this section. Two percent of
total available DAS will be set aside to
pay for scallop related research, as
outlined in paragraph (h)(2) of this
section.
(3) Assignment to DAS categories.
Subject to the vessel permit application
requirements specified in § 648.4, for
each fishing year, each vessel issued a
limited access scallop permit shall be
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Fmt 4702
Sfmt 4702
assigned to the DAS category (full-time,
part-time, or occasional) it was assigned
to in the preceding year, except as
provided under the small dredge
program specified in § 648.51(e).
(4) Each vessel qualifying for one of
the three DAS categories specified in the
table in this paragraph (b)(2) (Full-time,
Part-time, or Occasional) shall be
allocated the maximum number of DAS
for each fishing year it may participate
in the open area limited access scallop
fishery, according to its category. A
vessel whose owner/operator has
properly declared out of the scallop
DAS fishery, pursuant to the provisions
of § 648.10, including vessels that have
used up their maximum allocated DAS,
may leave port without being assessed
a DAS, as long as it has made
appropriate VMS declaration as
specified in § 648.10(b)(4), possesses,
fishes for, or retains the amount of
scallops allowed by its general category
permit, does not possess, fish for, or
retain any scallops if the vessel does not
have a general category scallop permit,
and complies with all other
requirements of this part. The annual
open area DAS allocations for each
category of vessel for the fishing years
indicated, after deducting DAS for
observer and research DAS set-asides,
are as follows:
DAS category
Full-time
Part-time
Occasional
2007
51
20
4
2008
To Be Determined
To Be Determined
To Be Determined
(5) Additional open area DAS. If a
TAC for yellowtail flounder specified in
§ 648.85(c) is harvested for an Access
Area specified in § 648.59(b) through
(d), a scallop vessel with remaining trips
in the affected Access Area shall be
allocated additional open area DAS
according to the calculations specified
in paragraphs (b)(5)(i) through (iii) of
this section.
(i) For each remaining complete trip
in Closed Area I, a vessel may fish an
additional 5.5 DAS in open areas during
the same fishing year. A complete trip
is deemed to be a trip that is not subject
to a reduced possession limit under the
broken trip provision in § 648.60(c). For
example, a full-time scallop vessel with
two complete trips remaining in Closed
Area I would be allocated 11 additional
open area DAS (2 5.5 = 11 DAS) if the
TAC for yellowtail flounder allocated to
the scallop fishery for Closed Area I is
harvested in that area. Vessels allocated
compensation trips as specified in
§ 648.60(c) that cannot be made because
the yellowtail TAC in Closed Area I
allocated to the scallop fishery is
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harvested shall be allocated 0.458
additional DAS for each unused DAS in
Closed Area I. Unused DAS shall be
calculated by dividing the
compensation trip possession limit by
1,500 lb (680 kg), (the catch rate per
DAS). For example, a vessel with a
10,000–lb (4,536–kg) compensation trip
remaining in Closed Area I would be
allocated 3.05 additional open area DAS
in that same fishing year (0.458 times
10,000 lb (4,536 kg)/1,500 lb (680 kg)
per day).
(ii) For each remaining complete trip
in Closed Area II, a vessel may fish an
additional 5.4 DAS in open areas during
the same fishing year. A complete trip
is deemed to be a trip that is not subject
to a reduced possession limit under the
broken trip provision in § 648.60(c). For
example, a full-time scallop vessel with
two complete trips remaining in Closed
Area II would be allocated 10.8
additional open area DAS (2 5.4 = 10.8
DAS) if the TAC for yellowtail flounder
allocated to the scallop fishery in Closed
Area II is harvested in that area. Vessels
allocated compensation trips as
specified in § 648.60(c) that cannot be
made because the yellowtail TAC in
Closed Area II allocated to the scallop
fishery is harvested shall be allocated
0.450 additional DAS for each unused
DAS in Closed Area II. Unused DAS
shall be calculated by dividing the
compensation trip possession limit by
1,500 lb (680 kg) (the catch rate per
DAS). For example, a vessel with a
10,000–lb (4,536–kg) compensation trip
remaining in Closed Area II would be
allocated 3 additional open area DAS in
that same fishing year (0.450 times
10,000 lb (4,536 kg)/1,500 lb (680 kg)
per day).
(iii) For each remaining complete trip
in the Nantucket Lightship Access Area,
a vessel may fish an additional 4.9 DAS
in open areas during the same fishing
year. A complete trip is deemed to be
a trip that is not subject to a reduced
possession limit under the broken trip
provision in § 648.60(c). For example, a
full-time scallop vessel with two
complete trips remaining in Nantucket
Lightship Access Area would be
allocated 9.8 additional open area DAS
(2 4.9 = 9.8 DAS) if the TAC for
yellowtail flounder allocated to the
scallop fishery in the Nantucket
Lightship Access Area is harvested in
that area. Vessels allocated
compensation trips as specified in
§ 648.60(c) that cannot be made because
the yellowtail TAC in Nantucket
Lightship Access Area allocated to the
scallop fishery is harvested shall be
allocated 0.408 additional DAS for each
unused DAS in the Nantucket Lightship
Access Area. Unused DAS shall be
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Jkt 214001
calculated by dividing the
compensation trip possession limit by
1,500 lb (680 kg) (the catch rate per
DAS). For example, a vessel with a
10,000–lb (4,536–kg) compensation trip
remaining in Nantucket Lightship
Access Area would be allocated 2.7
additional open area DAS in that same
fishing year (0.408 times 10,000 lb
(4,536 kg)/1,500 lb (680 kg) per day).
(6) DAS allocations and other
management measures are specified for
each scallop fishing year, which begins
on March 1 and ends on February 28 (or
February 29), unless otherwise noted.
For example, the 2006 fishing year
refers to the period March 1, 2006,
through February 28, 2007.
(c) Adjustments in annual DAS
allocations. Annual DAS allocations
shall be established for 2 fishing years
through biennial framework
adjustments as specified in § 648.55. If
a biennial framework action is not
undertaken by the Council and
implemented by NMFS, the DAS
allocations and Access Area trip
allocations from the most recent fishing
year shall remain in effect for the next
fishing year. The Council may also
recommend adjustments to DAS
allocations through a framework action
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 § 648.4(a)(1)(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. DAS sanctioned vessels
will be credited with unused DAS based
on their unused DAS allocation, minus
total DAS sanctioned.
(e) Accrual of DAS. All DAS fished
shall be charged to the nearest minute.
A vessel carrying an observer and
authorized to be charged fewer DAS in
Open Areas based on the total available
DAS set aside under paragraph (g)(1) of
this section, shall be charged at a
reduced rate as specified in paragraph
(g)(1) of this section.
(f) Good Samaritan credit. Limited
access vessels fishing under the DAS
program and that spend time at sea
assisting in a USCG search and rescue
operation or assisting the USCG in
towing a disabled vessel, and that can
document the occurrence through the
USCG, will not accrue DAS for the time
documented.
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71337
(g) DAS set-asides—(1) DAS set-aside
for observer coverage. As specified in
paragraph (b)(2) of this section, to help
defray the cost of carrying an observer,
1 percent of the total DAS shall be set
aside from the total DAS available for
allocation, to be used by vessels that are
assigned to take an at-sea observer on a
trip other than an Area Access Program
trip. The DAS set-aside for observer
coverage for the 2007 fishing year is 165
DAS. Vessels carrying an observer shall
be compensated with reduced DAS
accrual rates for each trip on which the
vessel carries an observer. For each DAS
that a vessel fishes for scallops with an
observer on board, the DAS shall be
charged at a reduced rate based on an
adjustment factor determined by the
Regional Administrator on an annual
basis, dependent on the cost of
observers, catch rates, and amount of
available DAS set-aside. The Regional
Administrator shall notify vessel owners
of the cost of observers and the DAS
adjustment factor through a permit
holder letter issued prior to the start of
each fishing year. The number of DAS
that are deducted from each trip based
on the adjustment factor shall be
deducted from the observer DAS setaside amount in the applicable fishing
year. Utilization of the DAS set-aside
shall be on a first-come, first-served
basis. When the DAS set-aside for
observer coverage has been utilized,
vessel owners shall be notified that no
additional DAS remain available to
offset the cost of carrying observers. The
obligation to carry and pay for an
observer shall not be waived due to the
absence of set-aside DAS allocations.
(2) DAS set-aside for research. As
specified in paragraph (b)(2) of this
section, to help support the activities of
vessels participating in certain research,
as specified in § 648.56; the DAS setaside for research for the 2007 fishing
year is 330 DAS. Vessels participating in
approved research shall be authorized to
use additional DAS in the applicable
fishing year. Notification of allocated
additional DAS shall be provided
through a letter of authorization, or
Exempted Fishing Permit issued by
NMFS, or shall be added to a
participating vessel’s open area DAS
allocation, as appropriate.
(h) Annual Individual fishing
quotas—(1) IFQ restriction. For each
fishing year of the IFQ program, a vessel
issued an IFQ scallop permit may only
harvest and land the total amount of
scallop meats allocated in accordance
with this subpart. Unless otherwise
specified in this part, A vessel allocated
scallop IFQ may not exceed the
possession limits specified in § 648.52
on any trip.
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(2) Calculation of IFQ. The total
allowable catch allocated to IFQ scallop
vessels, and the total allowable catch
allocated to limited access scallop
vessels issued IFQ scallop permits, as
specified in paragraphs (a)(3)(ii) and (iii)
of this section, shall be used to
determine the IFQ of each vessel issued
an IFQ scallop permit. Each fishing
year, the Regional Administrator shall
provide the owner of a vessel issued an
IFQ scallop permit issued pursuant to
§ 648.4(a)(2)(ii) with the scallop IFQ for
the vessel for the upcoming fishing year.
(i) Individual fishing quota. The IFQ
for an IFQ scallop vessel shall be the
vessel’s contribution percentage as
specified in paragraph (h)(2)(iii) of this
section and determined using the steps
specified in paragraphs (h)(2)(ii) of this
section, multiplied by the TAC allocated
to the IFQ scallop fishery, or limited
access vessels issued an IFQ scallop
permit, as specified in paragraphs
(a)(3)(ii) and (iii) of this section.
(ii) Contribution factor. An IFQ
scallop vessel’s contribution factor is
calculated using the best year, years
active, and index factor as specified in
paragraphs (h)(1)(ii)(A) through (C) of
this section. A vessel’s contribution
factor shall be provided to the owner of
a qualified limited access general
category vessel following initial
application for an IFQ scallop permit as
specified in § 648.4(a)(2)(ii)(E).
(A) Best year determination. An
eligible IFQ scallop vessel’s highest
scallop landings in any scallop fishing
year that the vessel was issued a general
category scallop permit between March
1, 2000, and November 1, 2004, shall be
determined using NMFS dealer reports.
If a dealer reported more than 400 lb
(181.44 kg) of scallops landed on a trip,
only 400 lb (181.44 kg) will be credited
for that trip toward the best year
calculation. For dealer reports that
indicate clearly that the landings were
bushels of in-shell scallops, a
conversion of 8.33 lb (3.78 kg) of scallop
meats per bushel shall be used to
calculate meat-weight, up to a
maximum of 400 lb (181.44 kg) per trip.
(B) Years active. For each eligible IFQ
scallop vessel, the total number of
scallop fishing years during the period
March 1, 2000, through November 1,
2004, in which the vessel had a general
category scallop permit and landed at
least 1 lb (0.45 kg) of scallop meats, or
in-shell scallops, shall be counted as
active years based on NMFS dealer
reports.
(C) Index to determine contribution
factor. For each eligible IFQ scallop
vessel, the best year as determined
pursuant to paragraph (a)(2)(ii)(E)(1) of
this section shall be multiplied by the
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appropriate index factor specified in the
following table, based on years active as
specified in paragraph (a)(2)(ii)(E)(2) of
this section. The resulting contribution
factor shall determine its IFQ for each
fishing year based on the allocation to
general category scallop vessels as
specified in § 648.53(a)(2) and the
method of calculating the IFQ provided
in § 648.53(j).
Years Active
1
2
3
4
5
Index Factor
0.75.
0.875.
1.0.
1.125.
1.25.
(D) Contribution factor example. If a
vessel landed 48,550 lb (22,022 kg) of
scallops in its best year, and was active
in the general category scallop fishery
for 5 years, the vessel’s contribution
factor is equal to 60,687 lb (27,527 kg)
(48,550 lb (22,022 kg * 1.25).
(iii) Contribution percentage. A
vessel’s contribution percentage will be
determined by dividing its contribution
factor by the sum of the contribution
factors of all vessels issued an IFQ
scallop permit. The sum of the
contribution factors shall be determined
when all IFQ scallop vessels are
identified. 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).
(iv) Vessel IFQ Example. Continuing
the example in paragraphs (h)(1)(ii)(D)
and (h)(1)(iii) of this section, with a
TAC allocated to IFQ scallop vessels
estimated for this example to be equal
to 2.5 million lb (1,134 mt), the vessel’s
IFQ would be 36,250 lb (16,443 kg) (1.45
percent * 2.5 million lb (1,134 mt).
(3) IFQ ownership restrictions—(i) IFQ
scallop vessel IFQ cap. A vessel issued
an IFQ scallop permit or confirmation of
permit history shall not be issued more
than 2 percent of the TAC allocated to
the IFQ scallop vessels as described in
paragraphs (a)(3)(ii) and (iii) of this
section.
(ii) IFQ ownership cap. An owner of
more than one IFQ scallop vessel may
not have an aggregate ownership
interest in more than 5 percent of the
TAC allocated to all IFQ scallop vessels
and may not be issued an IFQ scallop
permit for a vessel that would result in
the individual owning more than 5
percent of the TAC allocated to IFQ
scallop vessels. A confirmation of
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permit history shall be counted toward
an individual’s ownership. Vessel
owners that were initially issued an IFQ
scallop permit or were issued or
renewed an IFQ scallop permit for a
vessel in any fishing year following the
2008 fishing year, in compliance with
this 5 percent ownership restriction, is
eligible to renew the IFQ scallop permit
for his or her vessel regardless of
whether the renewal of the permit(s)
will result in the 5–percent IFQ
ownership cap being exceeded.
(iii) Limited access scallop vessels
that have been issued an IFQ scallop
permit. The IFQ scallop vessel IFQ cap
and IFQ ownership cap specified in this
paragraph (h)(3) do not apply to limited
access scallop vessels that are also
issued a limited access general category
scallop permit because such vessels are
already subject to an ownership
limitation, as specified in
§ 648.4(a)(2)(i)(M).
(4) IFQ cost recovery. The owner of a
vessel issued an IFQ scallop permit and
subject to the IFQ program specified in
paragraph (h) of this section must pay
a portion of the proceeds from scallop
fishing to NMFS to help NMFS recover
up to 3 percent of the cost of
administering and enforcing the IFQ
program. The specific cost recovery
provisions shall be specified in the first
framework implementing the
specifications for the IFQ program,
including the overall total allowable
catch and eligible vessels’ IFQs.
Payment of cost recovery funds shall be
through electronic means unless
otherwise notified by the Regional
Administrator.
(5) Transferring IFQ—(i) Temporary
IFQ transfers. Unless otherwise
restricted in paragraph (h)(5)(iii) of this
section, the owner of an IFQ scallop
vessel may temporarily transfer one or
more entire IFQ from another IFQ
scallop vessel. Temporary IFQ transfers
shall be effective only for the fishing
year in which the temporary transfer is
requested and processed. The Regional
Administrator has final approval
authority for all temporary IFQ transfer
requests.
(ii) Permanent IFQ transfers. Unless
otherwise restricted in paragraph
(h)(5)(iii) of this section, the owner of an
IFQ scallop vessel may transfer one or
more entire IFQ indefinitely from
another IFQ scallop vessel. The
Regional Administrator has final
approval authority for all IFQ transfer
requests.
(iii) IFQ transfer restrictions. The
owner of an IFQ scallop vessel may
transfer entire IFQ allocations only. The
owner of an IFQ scallop vessel that has
fished under its IFQ may not transfer
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that vessel’s IFQ to another IFQ scallop
vessel. A transfer of an IFQ may not
result in the sum of the IFQs on the
receiving vessel exceeding 2 percent of
the total allowable catch allocated to
IFQ scallop vessels. Limited access
scallop vessels that are also issued an
IFQ scallop permit may not transfer or
receive IFQ from another IFQ scallop
vessel. A vessel permanently
transferring its IFQ to another vessel
must transfer all of its Federal limited
access permits for which it is eligible to
the transferee vessel in accordance with
the vessel replacement restrictions
under § 648.4, or permanently cancel
such permits.
(iv) Application for an IFQ transfer.
The owner of vessels applying for a
transfer 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. Applications for temporary
transfers received 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. Information obtained from
the transfer application will be held
confidential, and will be used only in
summarized form for management of the
fishery. If applicable, an application for
a permanent IFQ transfer must be
accompanied by verification, in writing,
that the transferor either has requested
cancellation of all limited access
Federal fishing permits, or has applied
for a transfer of all of its limited access
permits in accordance with the vessel
replacement restrictions under § 648.4.
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(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 45 days of receipt of an
application.
(C) Denial of lease or 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 or transferee’s vessel or
IFQ scallop permit has been sanctioned,
pursuant to an enforcement proceeding;
the transferor’s or transferee’s vessel is
prohibited from fishing; the transfer will
result in the transferee’s vessel having
an allocation that exceeds 2 percent of
the total allowable catch allocated to
IFQ scallop vessels; the transfer will
result in the transferee having
ownership of general category scallop
allocation that exceeds 5 percent of the
total allowable catch allocated to IFQ
scallop vessels; or any other failure to
meet the requirements of this subpart.
Upon denial of an application to
transfer IFQ, the Regional Administrator
shall send a letter to the applicants
describing the reason(s) for the
rejection. The decision by the Regional
Administrator is the final agency
decision and there is no opportunity to
appeal the Regional Administrator’s
decision.
11. In § 648.54, paragraphs (b), (c)(3)
and (f) are revised to read as follows:
§ 648.54
State waters exemption.
*
*
*
*
*
(b) LAGC scallop vessel gear and
possession limit restrictions. Any vessel
issued an LAGC scallop permit is
exempt from the gear restrictions
specified in § 648.51(a), (b), (e)(1), and
(e)(2), and the applicable possession
limits specified in § 648.52, while
fishing exclusively landward of the
outer boundary of the waters of a state
that has been issued a state waters
exemption, provided the vessel
complies with paragraphs (d) through
(g) of this section.
*
*
*
*
*
(c) * * *
(3) Prior to Amendment 11 to the
FMP, which became effective [date 30
days from publication of the Final Rule
in the Federal Register], Maine, New
Hampshire, and Massachusetts were
determined by the Regional
Administrator to have scallop fisheries
and scallop conservation programs that
do not jeopardize the biomass and
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71339
fishing mortality/effort limit objectives
of the FMP. States must resubmit
information describing their scallop
fishery conservation programs so that
the Regional Administrator can
determine if such states continue to
have scallop fisheries and scallop
conservation programs that do not
jeopardize the biomass and fishing
mortality/effort limit objectives of the
FMP. In addition, these states must
immediately notify the Regional
Administrator of any changes in their
respective scallop conservation
program. The Regional Administrator
shall review these changes and, if a
determination is made that the state’s
conservation program jeopardizes the
biomass and fishing mortality/effort
limit objectives of the FMP, or that the
state no longer has a scallop fishery, the
Regional Administrator shall publish a
rule in the Federal Register, in
accordance with the Administrative
Procedure Act, amending this paragraph
(c)(3) to eliminate the exemption for that
state. The Regional Administrator may
determine that other states have scallop
fisheries and scallop conservation
programs that do not jeopardize the
biomass and fishing mortality/effort
limit objectives of the FMP. In such
case, the Regional Administrator shall
publish a rule in the Federal Register,
in accordance with the Administrative
Procedure Act, amending this paragraph
(c)(3) to provide the exemption for such
states.
*
*
*
*
*
(f) Duration of exemption. An
exemption expires upon a change in the
vessel’s name or ownership, or upon
notification through VMS by the
participating vessel’s owner.
*
*
*
*
*
12. In § 648.55, paragraphs (a) and (e)
are revised to read as follows:
§ 648.55 Framework adjustments to
management measures.
(a) Biennially, or upon a request from
the Council, the Regional Administrator
shall provide the Council with
information on the status of the scallop
resource. Within 60 days of receipt of
that information, the Council PDT shall
assess the condition of the scallop
resource to determine the adequacy of
the management measures to achieve
the stock-rebuilding objectives. Based
on this information, the PDT shall
prepare a Stock Assessment and Fishery
Evaluation (SAFE) Report that provides
the information and analysis needed to
evaluate potential management
adjustments. Based on this information
and analysis, the Council shall initiate
a framework adjustment to establish or
revise total allowable catch, DAS
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allocations, rotational area management
programs, percentage allocations for
limited access general category vessels
in Sea Scallop Access Areas, scallop
possession limits, or other measures to
achieve FMP objectives and limit
fishing mortality. The Council’s
development of an area rotation
program 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
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.
*
*
*
*
*
(e) 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 over fishing 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;
(12) Modifications to the overfishing
definition;
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(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 rotation
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) TAC or DAS 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; and
(37) Any other management measures
currently included in the FMP.
*
*
*
*
*
13. Section 648.57 is revised to read
as follows:
§ 648.57 Sea scallop area rotation
program.
An area rotation program is
established for the scallop fishery,
which may include areas closed to
scallop fishing defined in § 648.58, and/
or Sea Scallop Access Areas defined in
§ 648.59, subject to the Sea Scallop Area
Access program requirements specified
in § 648.60. Areas not defined as
Rotational Closed Areas, Sea Scallop
Access Areas, EFH Closed Areas, or
areas closed to scallop fishing under
other FMPs, are open to scallop fishing
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as governed by the other management
measures and restrictions in this part.
The Council’s development of area
rotation programs is subject to the
framework adjustment process specified
in § 648.55, including the Area Rotation
Program factors included in § 648.55(a).
The percentage of the total allowable
catch for each Sea Scallop Access Area
that is allocated to limited access
scallop vessels and limited access
general category scallop vessels shall be
specified in § 648.59 through the
framework adjustment process specified
in § 648.55.
14. In § 648.59, paragraphs (b)(5)(ii),
(c)(5)(ii), (d)(5)(ii), and (e)(6)(ii) are
revised to read as follows:
§ 648.59
Sea Scallop Access Areas.
*
*
*
*
*
(b) * * *
(5) * * *
(ii) LAGC scallop vessels. (A) The
percentage of the Closed Area I total
allowable catch allocated to LAGC
scallop vessels shall be specified in this
paragraph (b)(5)(ii) through the
framework adjustment process. The
resulting total allowable catch allocated
to LAGC scallop vessels shall be
specified in this paragraph (b)(5)(ii) and
shall determine the number of trips
specified in paragraph (b)(5)(ii)(B) of
this section.
(B) Except as provided in paragraph
(b)(5)(ii)(C) of this section, subject to the
possession limit specified in
§§ 648.52(a) and (b), and 648.60(g), and
subject to the seasonal restrictions
specified in paragraph (b)(4) of this
section, an LAGC scallop vessel may not
enter in, or fish for, possess, or land sea
scallops in or from the Closed Area I
Access Area once the Regional
Administrator has provided notification
in the Federal Register, in accordance
with § 648.60(g)(4), the date on which
216 trips are projected to be taken, in
total, by all LAGC scallop vessels,
unless transiting pursuant to paragraph
(f) of this section. The Regional
Administrator shall notify all LAGC
scallop vessels of the date when the
maximum number of allowed trips have
been, or are projected to be, taken for
the 2007 fishing year.
(C) A vessel issued a NE Multispecies
permit and a LAGC scallop permit that
is fishing in an approved SAP under
§ 648.85 under multispecies DAS may
fish in the Scallop Access Areas without
being subject to the restrictions of
paragraph (b)(5)(ii)(A) of this section,
provided that it has not enrolled in the
Scallop Area Access program. Such
vessel is prohibited from fishing for,
possessing, or landing scallops.
(c) * * *
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(5) * * *
(ii) LAGC scallop vessels—(A) The
percentage of the Closed Area II total
allowable catch allocated to LAGC
scallop vessels shall be specified in this
paragraph (c)(5)(ii) through the
framework adjustment process. The
resulting total allowable catch allocated
to LAGC scallop vessels shall be
specified in this paragraph (c)(5)(ii) and
shall determine the number of trips
specified in paragraph (c)(5)(ii)(B) of
this section.
(B) Except as provided in paragraph
(c)(5)(ii)(C) of this section, subject to the
possession limits specified in
§§ 648.52(a) and (b), and 648.60(g), and
subject to the seasonal restrictions
specified in paragraph (c)(4) of this
section, an LAGC scallop vessel may not
enter in, or fish for, possess, or land sea
scallops in or from the Closed Area II
Access Area once the Regional
Administrator has provided notification
in the Federal Register, in accordance
with § 648.60(g)(4), of the date on which
the total number of trips is projected to
be taken, in total, by all LAGC scallop
vessels, unless transiting pursuant to
paragraph (f) of this section. The
Regional Administrator shall notify all
LAGC scallop vessels of the date when
the maximum number of allowed trips
have been, or are projected to be, taken.
(C) A vessel issued a NE Multispecies
permit and an LAGC scallop permit that
is fishing in an approved SAP under
§ 648.85 under multispecies DAS may
fish in the Scallop Access Areas without
being subject to the restrictions of
paragraph (c)(5)(ii)(A) of this section
provided that it has not enrolled in the
Scallop Area Access program. Such
vessel is prohibited from fishing for,
possessing, or landing scallops.
(d) * * *
(5) * * *
(ii) LAGC scallop vessels. (A) The
percentage of the Nantucket Lightship
Access Area total allowable catch
allocated to LAGC scallop vessels shall
be specified in this paragraph (d)(5)(ii)
through the framework adjustment
process. The resulting total allowable
catch allocated to LAGC scallop vessels
shall be specified in this paragraph
(d)(5)(ii) and shall determine the
number of trips specified in paragraph
(d)(5)(ii)(B) of this section.
(B) Except as provided in paragraph
(d)(5)(ii)(C) of this section, subject to the
possession limits specified in
§§ 648.52(a) and (b), and 648.60(g), an
LAGC scallop vessel may not enter in,
or fish for, possess, or land sea scallops
in or from the Nantucket Lightship
Access Area once the Regional
Administrator has provided notification
in the Federal Register, in accordance
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with § 648.60(g)(4), of the date on which
394 trips are projected to be taken, in
total, by all LAGC scallop vessels,
unless transiting pursuant to paragraph
(f) of this section. The Regional
Administrator shall notify all LAGC
scallop vessels of the date when the
maximum number of allowed trips have
been, or are projected to be, taken for
the 2007 fishing year.
(C) A vessel issued a NE Multispecies
permit and an LAGC scallop permit that
is fishing in an approved SAP under
§ 648.85 under multispecies DAS may
fish in the Scallop Access Areas without
being subject to the restrictions of
paragraph (d)(5)(ii)(A) of this section
provided that it has not enrolled in the
Scallop Area Access program. Such
vessel is prohibited from fishing for,
possessing, or landing scallops.
(e) * * *
(6) * * *
(ii) LAGC scallop vessels. (A) The
percentage of the Elephant Trunk
Access Area total allowable catch
allocated to LAGC scallop vessels shall
be specified in this paragraph (e)(6)(ii)
through the framework adjustment
process. The resulting total allowable
catch allocated to limited access general
category vessels shall be specified in
this paragraph (e)(6)(ii) and shall
determine the number of trips specified
in paragraph (e)(6)(ii)(B) of this section.
(B) Subject to the possession limits
specified in §§ 648.52(a) and (b), and
648.60(g), an LAGC scallop vessel may
not enter in, or fish for, possess, or land
sea scallops in or from the Elephant
Trunk Sea Scallop Access Area once the
Regional Administrator has provided
notification in the Federal Register, in
accordance with ’ 648.60(g)(4), of the
date on which 865 trips allocated March
1, 2007, are projected to be taken, in
total, by all LAGC scallop vessels,
unless transiting pursuant to paragraph
(f) of this section. The Regional
Administrator shall notify all LAGC
scallop vessels of the date when the
maximum number of allowed trips have
been, or are projected to be, taken.
*
*
*
*
*
15. In § 648.60, paragraph (a)
introductory text, paragraphs (g)(1) and
(2), and paragraph (g)(3) introductory
text are revised to read as follows:
§ 648.60 Sea scallop area access program
requirements.
(a) A limited access scallop vessel
may only fish in the Sea Scallop Access
Areas specified in § 648.59, subject to
the seasonal restrictions specified in
§ 648.59, when fishing under a scallop
DAS, provided the vessel complies with
the requirements specified in
paragraphs (a)(1) through (a)(9), and (b)
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71341
through (f) of this section. An LAGC
scallop vessel may fish in the Sea
Scallop Access Areas specified in
§ 648.59, subject to the seasonal
restrictions specified in § 648.59,
provided the vessel complies with the
requirements specified in paragraph (g)
of this section.
*
*
*
*
*
(g) * * *
(1) An LAGC scallop vessel, except a
vessel issued a NE Multispecies permit
and an LAGC scallop permit that is
fishing in an approved SAP under
§ 648.85 under multispecies DAS that
has not enrolled in the LAGC Access
Area fishery, may only fish in the
Closed Area I, Closed Area II, and
Nantucket Lightship Sea Scallop Access
Areas specified in § 648.59(b) through
(d), subject to the seasonal restrictions
specified in § 648.59(b)(4), (c)(4), and
(d)(4), and subject to the possession
limit specified in § 648.52(a), and
provided the vessel complies with the
requirements specified in paragraphs
(a)(1), (a)(2), (a)(6) through (a)(9), (d), (e),
(f), and (g) of this section, and
§ 648.85(c)(3)(ii). A vessel issued a NE
Multispecies permit and an LAGC
scallop permit that is fishing in an
approved SAP under § 648.85 under
multispecies DAS that has not enrolled
in the Sea Scallop Area Access program
as specified in paragraph (a)(2) of this
section is not subject to the restrictions
and requirements specified in
§ 648.59(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and
this paragraph (g), and may not fish for,
possess, or land scallops on such trips.
(2) Gear restrictions. An LAGC scallop
vessel authorized to fish in the Access
Areas specified in § 648.59(b) through
(d) must fish with dredge gear only. The
combined dredge width in use by, or in
possession on board, LAGC scallop
vessels fishing in the Access Areas
described in § 648.59(b) through (d) may
not exceed 10.5 ft (3.2 m), measured at
the widest point in the bail of the
dredge.
(3) Scallop TAC. An LAGC scallop
vessel authorized to fish in the Access
Areas specified in § 648.59(b) through
(e) may land scallops, subject to the
possession limit specified in § 648.52(a),
unless the Regional Administrator has
issued a notice that the scallop TAC
specified in § 648.59(b)(5)(ii), (c)(5)(ii),
(d)(5)(ii), and (e)(4)(ii) in the Access
Area has been or is projected to be
harvested. Upon a determination from
the Regional Administrator that the
scallop TAC for a specified Access Area,
as specified in this paragraph (g)(3), has
been, or is projected to be harvested, the
Regional Administrator shall publish
notification of this determination in the
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Federal Register, in accordance with the
Administrative Procedure Act.
*
*
*
*
*
16. Section 648.62 is added to read as
follows:
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§ 648.62 Northern Gulf of Maine (NGOM)
scallop management area.
(a) The NGOM scallop management
area is the area north of42° 20 N. Lat.
To fish for or possess scallops in the
NGOM scallop management area, a
vessel must be issued a scallop permit
as specified in § 648.4(a)(2).
(1) If a vessel has been issued a
NGOM scallop permit, the vessel is
restricted to fishing for or possessing
scallops only in the NGOM scallop
management area.
(2) Scallop landings by all vessels
issued LAGC scallop permits, including
IFQ scallop permits, and fishing in the
NGOM scallop management area shall
be deducted from the NGOM scallop
total allowable catch specified in
paragraph (b) of this section. Scallop
landings by an IFQ scallop vessels and
fishing in the NGOM scallop
management area shall be deducted
from their respective scallop IFQ.
Landings by limited access scallop
vessels fishing under the scallop DAS
program shall not be deducted from the
NGOM total allowable catch specified in
paragraph (b) of this section.
(3) A vessel issued a NGOM or IFQ
scallop permit that fishes in the NGOM
may fish for, possess, or retain up to 200
lb (90.72 kg) of shucked or 25 bu (8.81
hL) of in-shell scallops, and may
possess up to 50 bu (17.62 hL) of inshell scallops seaward of the VMS
Demarcation Line. A vessel issued an
incidental catch general category scallop
permit that fishes in the NGOM may
fish for, possess, or retain only up to 40
lb of shucked or 5 U.S. bu (1.76 hL) of
in-shell scallops, and may possess up to
10 bu (3.52 hL) of in-shell scallops
seaward of the VMS Demarcation Line.
(b) Total allowable catch. The total
allowable catch for the NGOM scallop
management area shall be specified
through the framework adjustment
process. The total allowable catch for
the NGOM scallop management area
shall be based on the Federal portion of
the scallop resource in the NGOM. The
total allowable catch shall be
determined by historical landings until
additional information on the NGOM
scallop resource is available, for
example through an NGOM resource
survey and assessment. The total
allowable catch and allocations as
specified in § 648.53(a) shall not include
the total allowable catch for the NGOM
scallop management area, and landings
from the NGOM scallop management
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area shall not be counted against the
total allowable catch and allocations
specified in § 648.53(a).
(1) NGOM total allowable catch. To be
determined.
(2) Unless a vessel has fished for
scallops outside of the NGOM scallop
management area and is transiting the
area north of 42° 20 N. Lat. with all
fishing gear stowed in accordance with
§ 648.23(b), no vessel issued a scallop
permit pursuant to § 648.4(a)(2) may
possess, retain, or land scallops in the
NGOM scallop management area once
the Regional Administrator has
provided notification in the Federal
Register that the NGOM scallop total
allowable catch in accordance with this
paragraph (b) has been reached. A vessel
that has not been issued a Federal
scallop permit that fishes exclusively in
state waters is not subject to the closure
of the NGOM scallop management area.
(c) VMS requirements. Except scallop
vessels issued a limited access scallop
permit pursuant to § 648.4(a)(2)(i) that
have declared a trip under the scallop
DAS program, a vessel issued a scallop
permit pursuant to § 648.4(a)(2) that
intend to fish for scallops in the NGOM
scallop management area or fishes for,
possesses, or lands, scallops in or from
the NGOM scallop management area,
must declare a NGOM scallop
management area trip and report scallop
catch through the vessel’s VMS unit, as
required in § 648.10.
(d) Gear restrictions. Except scallop
vessels issued a limited access scallop
permit pursuant to § 648.4(a)(2)(i) that
have properly declared a trip under the
scallop DAS program, the combined
dredge width in use by, or in possession
on board, LAGC scallop vessels fishing
in the NGOM scallop management area
may not exceed 10.5 ft (3.2 m),
measured at the widest point in the bail
of the dredge.
17. Section 648.63 is added to read as
follows:
§ 648.63 General category sectors and
harvesting cooperatives.
(a) Procedure for implementing Sector
allocation proposals. (1) Any person
may submit a Sector allocation proposal
for a group of LAGC scallop vessels to
the Council, at least 1 year in advance
of the start of the proposed sector, and
request that the Sector be implemented
through a framework procedure
specified at § 648.55, in accordance with
the conditions and restrictions of this
section.
(2) Upon receipt of a Sector allocation
proposal, the Council must decide
whether to initiate such framework.
Should a framework adjustment to
authorize a Sector allocation proposal
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Fmt 4702
Sfmt 4702
be initiated, the Council shall follow the
framework adjustment provisions of
§ 648.55. Any framework adjustment
developed to implement a Sector
allocation proposal must be in
compliance with the general
requirements specified in paragraphs (b)
and (c) of this section. Vessels that do
not join a Sector would remain subject
to the LAGC scallop vessel regulations
for non-Sector vessels specified under
this part.
(b) General requirements applicable to
all Sector allocations. All Sectors
approved under the provisions of
paragraph (a) of this section must
submit the documents specified under
paragraphs (a)(1), and (c) of this section,
and comply with the conditions and
restrictions of this paragraph (b).
(1) Participation. (i) Only LAGC
scallop vessels are eligible to form
Sectors and Sectors may choose which
eligible permit holders to include or
exclude in the sector, consistent with all
applicable law. A Sector may establish
additional criteria for determining its
membership, provided such criteria are
specified in the operations plan and are
consistent with all applicable law. Any
interested group that meets the
eligibility criteria may submit a
proposal for a sector. To initiate the
process of sector creation, a group (two
or more) of permit holders must agree to
cooperate and submit a binding plan for
management of that sector’s allocation
of total allowable catch. Vessels that do
not choose to participate in a sector will
fish under the IFQ program and remain
in the non-sector scallop fishery.
(ii) Participation by incidental catch
or NGOM scallop vessels in the Sector
is subject to approval by the New
England Fishery Management Council
as part of the action that implements the
Sector allocation, provided the details of
such participation are specified in the
Sector’s operations plan. A Sector
allocation may be harvested by nonSector members, provided the Sector
operations plan specifies that the Sector
may authorize non-Sector vessels to
harvest the Sector allocation. In this
case, if the Sector is approved, the
landings history of the participating
non-Sector vessels may not be used in
the calculation of future Sector shares
and may not be used as scallop catch
history for such vessels. The operations
plan must specify how such
participating non-Sector shall be subject
to the rules of the Sector.
(iii) Once a vessel operator and/or
vessel owner signs a binding contract to
have his/her vessel participate in a
Sector, that vessel must remain in the
Sector for the remainder of the fishing
year.
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(iv) Vessels that fish in the LAGC
scallop fishery outside the Sector
allocation in a given fishing year may
not participate in a Sector during that
same fishing year, unless the Operations
Plan provides an acceptable method for
accounting for IFQ used, or catch by the
vessel, prior to implementation of the
Sector.
(v) Once a vessel operator and/or
vessel owner has agreed to participate in
a Sector as specified in paragraph
(b)(1)(iii) of this section, that vessel
must remain in the Sector for the entire
fishing year. If a permit is transferred by
a Sector participant during the fishing
year, the new owner must also comply
with the Sector regulations for the
remainder of the fishing year.
(vi) Vessels and vessel operators and/
or vessel owners removed from a Sector
for violation of the Sector rules will not
be eligible to fish under the scallop
regulations for non-Sector vessels
specified under this part either for any
period specified in the final decision of
penalty or sanction.
(vii) If a pre-existing Sector accepts a
new member, the percentage share
brought to the Sector is based on that
vessel’s average qualification landings at
the time it joins the Sector (i.e., the
vessel is treated as a ’Sector of one’ and
a share based on the appropriate
adjusted TACs is calculated). This new
single-vessel-Sector share is added to
the existing Sector. If a vessel leaves a
Sector, that Sector’s share is reduced by
the individual vessel share the exiting
vessel had when it joined the Sector.
(viii) A vessel may not be a member
of more than one Sector. Once a vessel
enters into a Sector, it cannot fish
during that fishing year under the
regulations that apply to the common
pool. Additionally, vessels cannot shift
from one Sector to another during a
single fishing year. Therefore, if a vessel
leaves a Sector for any reason, it cannot
participate in the general category
scallop fishery during the remainder of
that fishing year
(2) Allocation of TAC to Sectors. (i)
The Sector allocation shall be equal to
a percentage share of the TAC allocation
for IFQ scallop vessels specified in
§ 648.53(a), similar to a IFQ scallop
vessel’s IFQ as specified in § 648.53(h).
The Sector’s percentage share of the IFQ
scallop fishery TAC catch shall not
change, but the amount of allocation
based on the percentage share will
change based on the TAC specified in
§ 648.53(a).
(ii) Sector share determination. When
a Sector proposal is submitted, NMFS
shall verify the contribution percentage
as specified in § 648.53(h)(3) for each
vessel listed as a Sector member. The
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Sector’s share shall be the sum of the
participating vessels’ contribution
percentages.
(iii) A Sector shall not be allocated
more than 20 percent of the TAC for IFQ
vessels specified in § 648.53(a).
(3) Once a Sector’s allocation is
projected to be harvested, Sector
operations will be terminated for the
remainder of the fishing year.
(4) If a Sector’s allocation is exceeded
in a given fishing year, the Sector, each
vessel, and vessel operator and/or vessel
owner participating in the Sector may
be charged jointly and severally for civil
penalties and permit sanction pursuant
to 15 CFR part 904. If a Sector exceeds
its allocation in more than one fishing
year, the Sector’s authorization to
operate may be withdrawn.
(5) A vessel operator and/or vessel
owner participating in a Sector is not
subject to the limit on the vessel’s catch
based on the vessel’s own IFQ or
contribution percentage as defined in
§ 648.53(h), provided the vessel is
participating in the Sector and carries
on board a Letter of Authorization to
participate in the Sector. The Sector
shall determine how the Sector’s
allocation will be divided between its
participating vessels, regardless of
whether the catch by a participating
vessel exceeds that vessel’s own IFQ.
(6) Each vessel operator and/or vessel
owner fishing under an approved Sector
must comply with all scallop
management measures of this part and
other applicable law, except the vessel’s
own IFQ as specified in paragraph
(b)(11) of this section. Each vessel and
vessel operator and/or vessel owner
participating in a Sector must also
comply with all applicable requirements
and conditions of the Operations Plan
specified in paragraph (c) of this section
and the Letter of Authorization issued
pursuant to paragraph (b)(11) of this
section. It shall be unlawful to violate
any such conditions and requirements
and each Sector, vessel, and vessel
operator and/or vessel owner
participating in the Sector may be
charged jointly and severally for civil
penalties and permit sanctions pursuant
to 15 CFR part 904.
(7) Approved Sectors must submit an
annual year-end report to NMFS and the
Council, within 60 days of the end of
the fishing year, that summarizes the
fishing activities of its members,
including harvest levels of all federally
managed species by Sector vessels,
enforcement actions, and other relevant
information required to evaluate the
performance of the Sector.
(8) It shall be the responsibility of
each Sector to track its activity and
internally enforce any provisions
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71343
adopted through procedures established
in the operations plan and agreed to
through the Sector contract. Sector
contracts should describe graduated
sanctions including grounds for
expulsion of Sector member vessels. A
Sector is a legal entity, and participating
Sector vessels shall be subject to NMFS
enforcement action for violations of the
regulations pertaining to Sectors and
other regulations under 50 CFR part
648. Vessels operating within a Sector
are responsible for judgments against
the Sector. Sector operations plans shall
specify how a Sector will monitor its
landings to assure that Sector landings
do not exceed the Sector allocation. At
the end of the fishing year, NMFS will
evaluate landings using VMS, and any
other available information to determine
whether a Sector has exceeded any of its
allocations based on the list of
participating vessels submitted in the
operations plan. If a Sector exceeds its
TAC, the Sector may be subject to
enforcement action and may have its
authorization as a Sector be withdrawn
by the Regional Administrator, after
consultation with the New England
Fishery Management Council.
(9) Permanent or temporary transfers
of allocation between Sectors or
between Sector and non-Sector
participants is prohibited. For purposes
of harvesting a Sector allocation only,
vessels under contract to a Sector are
assumed to be part of that Sector for the
duration of that contract.
(10) The Sector allocation proposal
must contain an appropriate analysis
that assesses the impact of the proposed
Sector, in compliance with the National
Environmental Policy Act.
(11) If a Sector is approved as
specified in paragraph (d)(3) of this
section, the Regional Administrator
shall issue a Letter of Authorization to
each vessel operator and/or owner for
the participating Sector vessel. The
Letter of Authorization shall authorize
participation in the Sector operations
and shall exempt the participating
vessel from the requirement that the
vessel cannot exceed its own IFQ. The
Letter of authorization may include
requirements and conditions deemed
necessary to ensure effective
administration of and compliance with
the Sector’s operations plan and the
Sector’s allocation.
(c) Operations plans. (1) A group that
wants to form a Sector and receive an
allocation must submit a legally binding
operations plan to the Council and the
Regional Administrator. The operations
plan must be agreed upon and signed by
all members of the Sector and, if
approved, shall constitute a contract.
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ebenthall on PROD1PC69 with PROPOSALS
(2) The operations plan among all of
the Sector members must have, at a
minimum, the following components:
(A) A list of all participants;
(B) A contract signed by all
participants indicating their agreement
to abide by the operations plan;
(C) An entity name, address, phone
number, and the name and contact
information for a Sector representative
(a manager or director) that NMFS can
contact regarding Sector management
issues;
(D) A plan explaining how the Sector
will harvest its allocation, including
methods to inform NMFS of changes in
those arrangements over the year;
(E) The original distribution of catch
history of vessels in the Sector
(maintaining vessel data
confidentiality);
(F) A plan detailing how the Sector
will avoid exceeding its allocated TACs,
including provisions for monitoring and
enforcement of the Sector regulations,
and documenting all landings and
discards;
(G) Rules for entry to and exit from
the Sector, including sanctions and
procedures for removing members who
do not comply with the operations plan;
(H) Procedure for notifying NMFS if a
member is no longer part of the Sector
and the reason for leaving;
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(I) The process through which the
operations plan can be amended by
Sector members;
(J) If the Sector plans to authorize
non-Sector vessels to harvest scallops
allocated to the Sector, details of such
arrangements must be described in the
operations plan;
(K) Any documents and analyses
necessary to comply with the National
Environmental Protection Act must be
submitted to NMFS. The development
of the analytical document is the
responsibility of the applicants.
(d) Sector review, approval, and
revocation. (1) A Sector shall submit its
operations plan and any NEPA
documents to the Regional
Administrator and the New England
Fishery Management Council no less
than 1 year prior to the date that it
wishes to begin operations under the
Sector. The New England Fishery
Management Council shall consider this
plan in the course of the periodic
framework adjustment or specification
process and may, if approved,
implement it through either of those
processes. After New England Fishery
Management Council approval of a
Sector, the details of its operation shall
be addressed between the Sector and
NMFS, although the New England
Fishery Management Council may
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review and provide comment on the
proposed details.
(2) The Regional Administrator may
withdraw approval of a Sector at any
time if he/she, in consultation with the
New England Fishery Management
Council, determines that Sector
participants are not complying with the
requirements of an approved operations
plan or that the continuation of the
operations plan will undermine
achievement of fishing mortality
objectives of the FMP. Withdrawal of
approval of a Sector shall be completed
after notice and comment rulemaking,
pursuant to the Administrative
Procedure Act.
(3) A Sector is required to resubmit its
operations plan to the Regional Director
no later than December 1 of each year,
whether or not the plan has changed.
NMFS may consult with the Council
and will solicit public comment on the
operations plan for at least 15 days,
through proposed rulemaking in the
Federal Register. Upon review of the
public comments, the Regional
Administrator may approve or
disapprove Sector operations, through a
final determination pursuant to the
Administrative Procedure Act.
[FR Doc. E7–24254 Filed 12–14–07; 8:45 am]
BILLING CODE 3510–22–S
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Agencies
[Federal Register Volume 72, Number 241 (Monday, December 17, 2007)]
[Proposed Rules]
[Pages 71315-71344]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24254]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 071130780-7564-01]
RIN 0648-AU32
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Amendment 11
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to implement measures in Amendment
11 to the Atlantic Sea Scallop Fishery Management Plan (FMP). Amendment
11 was developed by the New England Fishery Management Council
(Council) to control the capacity of the open access general category
fleet. Amendment 11 would establish a new management program for the
general category fishery, including a limited access program with
individual fishing quotas (IFQs) for qualified general category
vessels, a specific allocation for general category fisheries, and
other measures to improve management of the general category scallop
fishery.
DATES: Public comments must be received no later than 5 p.m., eastern
standard time, on January 31, 2008.
ADDRESSES: A final supplemental environmental impact statement (FSEIS)
was prepared for Amendment 11 that describes the proposed action and
other considered alternatives and provides a thorough analysis of the
impacts of the proposed measures and alternatives. Copies of Amendment
11, the FSEIS, and the Initial Regulatory Flexibility Analysis (IRFA),
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.
You may submit comments, identified by 0648-AU32, by any one of the
following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal https://www.regulations.gov
Fax: (978) 281-9135, Attn: Peter Christopher
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.
Mark the outside of the envelope, ``Comments on Scallop Amendment 11
Proposed Rule.''
Instructions: All comments received are a part of the public record
and will generally be posted to https://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 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 estimate or other
aspects of the collection-of-information requirement contained in this
proposed rule should be submitted to the Regional Administrator at the
address above and by e-mail to David--Rostker@omb.eop.gov, or fax to
202-395-7285.
FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy
Analyst, phone 978-281-9288, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The general category scallop fishery is currently an open access
fishery that allows any vessel to fish for up to 400 lb (181.44 kg) of
Atlantic sea scallops (scallops), provided the vessel has been issued a
general category or limited access scallop permit. This open access
fishery was established in 1994 by Amendment 4 to the FMP (Amendment 4)
to allow vessels fishing in non-scallop fisheries to catch scallops as
incidental catch, and to allow a small-scale scallop fishery to
continue outside of the limited access and effort control programs
aimed at the large-scale scallop fishery. Over time, the overall
participation in the general category fishery has increased. In 1994,
there were 1,992 general category permits issued. By 2005 that number
had increased to 2,950. In 1994, there were 181 general category
vessels that landed scallops, while in 2005 there were over 600.
Out of concern about the level of fishing effort and harvest from
the general category scallop fleet, the Council recommended that a
Federal Register notice should be published to notify the public that
the Council would consider limiting entry to the general category
scallop fishery as of a specified control date. NMFS subsequently
established the control date of November 1, 2004. In January 2006, the
Council began the development of Amendment 11 to evaluate alternatives
for a limited access program and other measures for general category
vessels. The Council held 35 meetings open to the public on Amendment
11 between January 2006 and June 2007. After considering a wide range
of issues, alternatives, and public input, the Council adopted a draft
supplemental environmental impact statement (DSEIS) for Amendment 11 on
April 11, 2007. Following the close of the public comment period on
June 18, 2007, the Council adopted Amendment 11 on June 20, 2007.
Amendment 11 would establish criteria and authority for determining
the percentage of scallop catch allocated to the general category fleet
and would establish the IFQ program. However, these specific allocation
amounts have been being developed by the Council as part of Framework
19 to the FMP (Framework 19) which will establish scallop fishery
management measures for the 2008 and 2009 fishing years. After
proposing the allowable levels of fishing based on updated survey
information and fishing mortality targets, the total allowable catches
(TACs) described below would be specified through a separate rulemaking
for Framework 19. Framework 19 also would specify management measures
for the 2008 and 2009 fishing years that would be recommended if
Amendment 11 is not approved.
A Notice of Availability (NOA) for Amendment 11 was published on
November 30, 2007. The comment period on the NOA ends on January 29,
2008.
Proposed Measures
The proposed regulations are based on the description of the
measures in Amendment 11. NMFS has noted several instances where it has
interpreted the language in Amendment 11 to account for any missing
details in the Council's description of the proposed measures. NMFS
seeks comments on all of the measures in Amendment 11, particularly the
noted instances.
[[Page 71316]]
Limited Access Program for the General Category Fishery
Amendment 11 would require vessels to be issued a limited access
general category (LAGC) scallop permit in order to land scallops under
general category rules. All general category permits would be limited
access, requiring that a vessel owner submit an application
demonstrating that the vessel is eligible for the permit. The current
general category permits (1A- non VMS, and 1B- VMS permits) would be
replaced with three types of LAGC scallop permits: IFQ LAGC scallop
permit (IFQ scallop permit); Northern Gulf of Maine (NGOM) LAGC scallop
permit (NGOM scallop permit); and incidental catch LAGC scallop permit
(Incidental scallop permit).
A vessel would be eligible to be issued an IFQ scallop permit if
the owner could document landings of at least 1,000 lb (454 kg) of
scallop meats, as verified by NMFS records or documented through dealer
receipts, in any fishing year between March 1, 2000, and November 1,
2004, and issuance of a general category scallop permit to the vessel
during the fishing year in which the landings were made.
The owner of a vessel who cannot qualify for an IFQ scallop permit,
or who elects not to apply for an IFQ scallop permit, could instead be
issued a NGOM scallop permit. The NGOM scallop permit would allow the
vessel to fish in the NGOM exclusively, defined as the waters north of
42[deg] 20' N. Lat. A vessel would qualify for the NGOM scallop permit
if it had been issued a valid general category scallop permit as of
November 1, 2004. There would be no landings eligibility criteria.
Vessels issued this permit would be subject to additional restrictions
outlined in the description of the NGOM Scallop Management Area below.
A vessel would qualify for an Incidental scallop permit if it had
been issued a valid general category scallop permit as of November 1,
2004. There would be no landings eligibility criteria. This provision
is intended to allow an incidental level of scallop catch for vessels
that meet the permit eligibility, but not the landings criteria. This
permit would allow such vessels to possess and land up to 40 lb (18.14
kg) of scallops per trip, and is intended to allow landing of
incidental scallop catch. Some vessels that could qualify for an IFQ
scallop permit may opt for the Incidental scallop permit because it
permits vessels to land an incidental catch of scallops on an unlimited
number of trips. In drafting the proposed rule, NMFS presumed that the
limited access permit restrictions specified below apply to all three
types of LAGC scallop permit, unless specifically excluded in Amendment
11.
Initial Application for a LAGC Scallop Permit
A vessel owner would be required to submit an initial application
for a LAGC scallop permit or confirmation of permit history within 90
days of the effective date of the final regulations. The Council
recommended the shorter than usual application period to expedite the
transition to the IFQ program. The IFQ program cannot be implemented
until all IFQ permits are issued because the number of vessels and the
contribution factors for all qualified IFQ scallop vessels will be used
to determine each vessel's IFQ share of the TAC allocated to IFQ
scallop vessels (see ``IFQs for Limited Access General Category Scallop
Vessels'' below).
Limited Access Vessel Permit Provisions
Amendment 11 would establish measures to govern future transactions
related to limited access vessels, such as purchases, sales, or
reconstruction. These measures would apply to all LAGC scallop vessels.
Except as noted, the provisions proposed in this amendment are
consistent with those that govern most of the other Northeast region
limited access fisheries; there are some differences in the limited
access program for American lobster.
1. Initial Eligibility
Initial eligibility for an LAGC scallop permit would have to be
established during the first year after the implementation of Amendment
11. A vessel owner would be required to submit an application for an
LAGC scallop permit or CPH within 90 days of the effective date of the
final regulations.
2. Landings History
Amendment 11 specifies landings and permit history criteria that a
vessel would have to meet to qualify for LAGC permits. It also
specifies that an IFQ scallop vessel would be allocated IFQ based on
its best year of scallop landings and the number of fishing years
active during the qualification period of March 1, 2000, through
November 1, 2004. Amendment 11 specifies that qualifying landings would
have to be from the same scallop fishing year (March 1 through February
28/29) that a vessel was issued a general category scallop permit
during the qualification period. Therefore, this proposed rule requires
that, for any landings to be used in determining eligibility, best year
of fishing, years active, and the resulting contribution factor, the
vessel must have been issued a general category scallop permit in the
fishing year the landings were made.
The best year of scallop landings would be the scallop fishing year
during the qualification period with the highest amount of scallop
meats landed, provided the vessel was issued a general category scallop
permit. Years active would be the number of scallop fishing years
during the qualification period that the vessel landed at least 1lb
(0.45 kg) of scallops provided the vessel was issued a general category
scallop permit. In-shell scallop landings would be converted to meat-
weight using the formula of 8.33 lb (3.78 kg) of scallop meats for each
U.S. bushel of in-shell scallops, for qualification purposes.
NMFS landings data from dealer reports would be used to determine a
vessel's eligibility for an IFQ scallop permit, a qualified IFQ scallop
vessel's best year of scallop landings, and years active in the general
category scallop fishery. The NMFS permit database would be used to
determine permit criteria eligibility for all LAGC scallop permits.
Applicants would be allowed to dispute the denial of an LAGC permit, or
contribution factor (based on best year and years active), through the
eligibility appeals process described below.
3. Confirmation of Permit History (CPH)
A person who does not currently own a fishing vessel, but who has
owned a qualifying vessel that has sunk, or been destroyed, or
transferred to another person, would be required to apply for and
receive a CPH if the fishing and permit history of such vessel has been
retained lawfully by the applicant. Such an application would have to
be made within 90 days of the effective date of the final regulations
for Amendment 11. The CPH provides a benefit to a vessel owner by
securing limited access eligibility through a registration system when
the individual does not currently own a vessel. To be eligible to
obtain a CPH, the applicant would have to show that the qualifying
vessel meets the eligibility requirements for the applicable LAGC
permit, and that all other permit restrictions described below are
satisfied. Issuance of a valid CPH would preserve the eligibility of
the applicant to apply for an LAGC permit for a replacement vessel
based on the qualifying LAGC scallop vessel's fishing and permit
history at a subsequent time. A CPH would have to be applied for in
order for the applicant to preserve the LAGC scallop permit eligibility
of the qualifying vessel.
[[Page 71317]]
Vessel owners who were issued a CPH could obtain a vessel permit for a
replacement vessel based upon the previous vessel's history that would
utilize the CPH. IFQ associated with a CPH would count toward a vessel
owner's overall ownership of IFQ, and would be restricted under the 5-
percent ownership cap.
4. Permit Transfers
An LAGC scallop permit and fishery history would be presumed to
transfer with a vessel at the time it is bought, sold, or otherwise
transferred from one owner to another, unless it is retained through a
written agreement signed by both parties in the vessel sale or
transfer.
5. Permit Splitting
Amendment 11 adopts the permit splitting provision currently in
effect for other limited access fisheries in the region. Therefore, an
LAGC scallop permit may not be issued to a vessel if the vessel's
permit or fishing history has been used to qualify another vessel for a
limited access permit. This means all limited access permits, including
LAGC scallop permits, must be transferred as a package when a vessel is
replaced or sold. However, Amendment 11 explicitly states that the
permit-splitting provision would not apply to the transfer/sale of
general category scallop fishing history prior to the implementation of
Amendment 11, if any limited access permits were issued to the subject
vessel. Thus, vessel owners who sold vessels with limited access
permits and retained the general category scallop fishing history with
the intention of qualifying a different vessel for the LAGC scallop
permit would be allowed to do so under Amendment 11. This differs from
the current permit splitting provisions of other limited access fishery
regulations, and specifically the Atlantic herring limited access
permit splitting provision recently implemented under Amendment 1 to
the Atlantic Herring FMP. A vessel with an existing limited access
scallop permit (i.e., full-time, part-time, or occasional) that also
qualifies for an LAGC scallop permit could not split the LAGC scallop
permit from the existing limited access scallop permit.
6. Qualification Restriction
Consistent with previous limited access programs, no more than one
vessel would be able to qualify, at any one time, for a limited access
permit or CPH based on that or another vessel's fishing and permit
history, unless more than one owner has independently established
fishing and permit history on the vessel during the qualification
period and has either retained the fishing and permit history, as
specified above, or owns the vessel at the time of initial application
under Amendment 11. If more than one vessel owner claimed eligibility
for a limited access permit or CPH, based on a vessel's single fishing
and permit history, the NMFS Regional Administrator would determine who
is entitled to qualify for the permit or CPH.
7. Appeal of Permit Denial
Amendment 11 specifies an appeals process for applicants who have
been denied an LAGC scallop permit. Such applicants would be able to
appeal in writing to the Regional Administrator within 30 days of the
denial, and any such appeal would have to be based on the grounds that
the information used by the Regional Administrator was incorrect.
The appeals process would allow an opportunity for a hearing before
a hearing officer designated by the Regional Administrator. The owner
of a vessel denied an LAGC scallop permit could fish for scallops under
the applicable general category scallop regulations, provided that the
denial has been appealed, the appeal is pending, and the vessel has on
board a letter from the Regional Administrator authorizing the vessel
to fish under the LAGC scallop permit category. The Regional
Administrator would issue such a letter for the pendency of any appeal.
If the appeal was ultimately denied, the Regional Administrator would
send a notice of final denial to the vessel owner; and the authorizing
letter would become invalid 5 days after receipt of the notice of
denial, but no longer than 10 days after the date that the denial
letter is sent.
8. Vessel Upgrades
A vessel issued an LAGC scallop permit would not be limited by
vessel size upgrade restrictions if the owner wished to modify or
replace the vessel. However, if that vessel has also been issued
limited access permits under Sec. 648.4 that have upgrade restrictions
(i.e., all other limited access permits issued in accordance with Sec.
648.4), the upgrade restrictions for that fishery would apply to any
modification or replacement, unless the permit with the restrictions
were permanently relinquished as specified under ``voluntary
relinquishment of eligibility,'' below.
9. Vessel Baselines
A vessel's baseline refers to those specifications (length overall,
gross registered tonnage net tonnage, and horsepower) from which any
future vessel size change is measured. Because there are no vessel size
upgrade restrictions, a vessel issued an LAGC scallop permit would not
have baseline size and horsepower specifications. However, if that
vessel has also been issued limited access permits under Sec. 648.4
that have upgrade restrictions, any size change would be restricted by
those baseline specification requirements, unless those permits were
permanently relinquished as specified in ``Voluntary relinquishment of
eligibility'' below.
10. Vessel Replacements
The term vessel replacement (vessel replacement), in general,
refers to replacing an existing limited access vessel with another
vessel. This rule would require that the same entity must own both the
LAGC scallop vessel (or fishing history) that is being replaced, and
the replacement vessel. Unlimited upgrades of vessel size and
horsepower through a vessel replacement would be allowed, unless the
vessel to be replaced is restricted on upgrades because it has been
issued other limited access permits pursuant to Sec. 648.4.
11. Ownership Cap
A vessel issued an IFQ scallop permit could not be allocated more
than 2 percent of the TAC allocated to the fleet of vessels issued IFQ
scallop permits. In addition, an individual could not have ownership
interest in more than 5 percent of the TAC allocated to the fleet of
vessels issued IFQ scallop permits. The only exceptions to these
ownership cap provisions are if a vessel's initial contribution factor
results in the ownership of more than 2 percent of the overall TAC
initially upon initial application for the IFQ scallop permit, or if
the vessel owner owns more than 5 percent of the overall TAC initially
upon initial application for the IFQ scallop permits. This restriction
would not apply to existing limited access scallop vessels that also
have been issued an IFQ scallop permit since such vessels are already
subject to the 5-percent ownership cap for limited access permits and
because such vessels would not be permitted to transfer IFQ between
vessels.
12. Voluntary Relinquishment of Eligibility
A vessel owner could voluntarily exit the LAGC fishery by
permanently relinquishing the permit. In some
[[Page 71318]]
circumstances, it could allow vessel owners to choose between different
permits with different restrictions without being bound by the more
restrictive requirement (e.g., lobster permit holders may choose to
relinquish their other Northeast Region limited access permits to avoid
being subject to the reporting requirements associated with those other
permits). If a vessel's LAGC scallop permit or CPH is voluntarily
relinquished to the Regional Administrator, no LAGC scallop permit
could ever be reissued or renewed based on that vessel's permit and
fishing history.
13. Permit Renewals and CPH Issuance
A vessel owner must maintain the limited access permit status for
an eligible vessel by renewing the permits on an annual basis or
applying for issuance of a CPH. All LAGC scallop permits must be issued
on an annual basis by the last day of the fishing year for which the
permit is required, unless a CPH has been issued. However, as a
condition of the permit, the vessel may not fish for, catch, possess,
or land, in or from Federal or state waters, any species of fish
authorized by the permit, unless and until the permit has been issued
or renewed in any fishing year, or the permit either has been
voluntarily relinquished or otherwise forfeited, revoked, or
transferred from the vessel. A complete application for such permits
must be received no later than 30 days before the last day of each
fishing year. A CPH does not need to be renewed annually. Once a CPH
has been issued to an individual who has retained the LAGC scallop
permit and fishing history of a vessel, it remains valid until it is
replaced by a vessel permit through the vessel replacement process.
A vessel's LAGC scallop permit history would be cancelled due to
the failure to renew, in which case, no LAGC scallop permit could ever
be reissued or renewed based on that vessel's permit and fishing
history.
Amendment 11 would implement a cost recovery program, with the
payment procedures and details to be established in Framework 19. Under
the IFQ program, vessels would be required to pay up to 3 percent of
their revenue from scallop landings to offset the cost of managing,
enforcing, and implementing the IFQ program, as required by the
Magnuson-Stevens Act. Failure to pay cost recovery fees by the
specified due date would result in NMFS action invalidating the IFQ
scallop permit. If the invalidation of the IFQ scallop permit due to
failure to pay for cost recovery fees is not resolved in the course of
the applicable fishing year, no IFQ scallop permit could ever be
reissued or renewed based on that vessel's permit and fishing history.
Limited Access Scallop Vessels Fishing Under General Category Rules
A vessel issued one of the existing limited access scallop permits
(i.e., a full-time, part-time, or occasional scallop permit) may also
be eligible to be issued a LAGC scallop permit if it meets the
qualification criteria described above. Such a vessel would be allowed
to fish under general category regulations when not fishing under the
scallop DAS or Area Access programs. Existing limited access scallop
vessels were not required to be issued a general category scallop
permit. Therefore, to be issued an Incidental or NGOM scallop permit,
the limited access vessel would have to have been issued a valid
limited access scallop permit as of November 1, 2004. To be issued the
IFQ scallop permit, an existing limited access scallop vessel would
have to have been issued a valid limited access scallop permit during
the period March 1, 2000, through November 1, 2004, and have documented
landings of at least 1,000 lb (454 kg) of scallop meats when not
fishing under the DAS or Area Access programs, as verified by NMFS
records or documentation through dealer receipts. A limited access
scallop vessel that does not qualify for a LAGC scallop permit could
not fish for, possess, or retain scallops when not fishing under the
scallop DAS and Area Access programs. Limited access scallop vessels
that also qualify for an IFQ scallop permit would not be permitted to
transfer IFQ. Therefore, the general category maximum allocation
restriction or the maximum percentage ownership restriction for general
category TAC would not apply. The limited access general category
permit and IFQ scallop permit could not be split from the limited
access scallop permit.
Allocation of the Total Annual Projected Scallop Catch to the General
Category Fishery under the IFQ Program
Once the IFQ program is implemented, 5 percent of the total
projected annual scallop catch would be allocated to vessels with IFQ
scallop permits. This would be calculated by taking the total projected
annual scallop catch, then deducting estimated catch by incidental
catch general category vessels and the total allowable catch (TAC) in
the NGOM. Five percent of the resultant catch would then be allocated
to the IFQ scallop fishery. IFQs for IFQ scallop vessels would be
derived from the 5-percent TAC allocation. The 5-percent allocation
would not apply to current limited access vessels that also have IFQ
scallop permits. Limited access scallop vessels with IFQ scallop
permits would be allocated 0.5 percent of the total projected annual
scallop catch after deduction of incidental catch and the NGOM TAC.
IFQs for these vessels would be derived from the 0.5-percent TAC
allocation. The remaining 94.5 percent of the total projected annual
scallop catch, after deduction of incidental catch and the NGOM TAC,
would be allocated for harvest by the current limited access scallop
fishery.
IFQs for Limited Access General Category Scallop Vessels
A vessel issued an IFQ scallop permit would be allocated a
percentage of the TAC allocated to the IFQ scallop fishery based on the
vessel's ``contribution factor.'' The contribution factor for each
vessel would be determined by multiplying a vessel's best fishing year
of landings during the March 1, 2000, through November 1, 2004,
qualification period by an index factor based on the number of years
the vessel was active in the scallop fishery during the qualification
period. A vessel would be determined to be active in the scallop
fishery if it landed at least 1 lb (0.45 kg) of scallops. The index
factors for varying levels of participation during the qualification
period are: 0.75 for 1year; 0.875 for 2 years; 1.0 for 3 years; 1.125
for 4 years; and 1.25 for 5 years. The index factor is intended to
provide more weight in calculating the allocation for vessels that have
been participating in the general category fishery for a longer period
of time. A vessel's contribution percentage will be determined by
dividing its contribution factor by the sum of the contribution factors
of all vessels issued a limited access general category scallop permit.
A vessel's IFQ would be determined by multiplying the TAC for IFQ
scallop vessels by the vessel's contribution percentage. IFQ would be
issued to owners of CPHs since that vessel's contibution would be
included in the determination of IFQs as described below. IFQ
associated with CPHs would be transferable.
The following is an example of how a vessel's IFQ would be
determined using hypothetical values: A vessel landed 48,550 lb (22,023
kg) of scallops in its best year, and was active in the general
category scallop fishery for 5 years. The vessel's contribution factor
would be equal to 48,550 lb (22,023 kg)*1.25 = 60,687 lb (27,527 kg).
For this example, the highest total scallop landings is assumed to be
3.8 million lb (1,724 mt), and the number of qualifying vessels is
assumed to be 380. The sum
[[Page 71319]]
of the contribution factors for limited access general category scallop
vessels is assumed to be 4.18 million lb (1,896 mt). The contribution
percentage of the above vessel would therefore be 1.45 percent (60,687
lb (27,527 kg) / 4.18 million lb (1,896 mt) = 1.45 percent). The
vessel's IFQ would be the vessel's contribution percentage (1.45
percent) multiplied by the TAC allocated to all IFQ scallop vessels.
Assuming a TAC equal to 2.5 million lb (1,134 mt), the vessel's IFQ
would be 36,250 lb (16,443 kg) (1.45 percent x 2.5 million lb (1,134
mt)).
The IFQ program cannot be implemented until all IFQ scallop permits
and CPHs have been issued because the calculation of the IFQ shares
requires the contribution factors for all qualified IFQ scallop vessels
to be totaled. However, eligibility, best year, and the contribution
factor for each vessel would be determined upon initial application for
a limited access general category scallop permit. This issue is
discussed under the ``Measures for the transition period to IFQ''
description below.
IFQ Transfers
IFQ scallop vessel and CPH owners would be allowed to transfer IFQ
on a temporary or permanent basis. A temporary IFQ transfer (or lease)
would allow one IFQ scallop vessel to combine IFQs to increase fishing
opportunity for a single fishing year. A permanent IFQ transfer would
permanently move the IFQ from one vessel to another. Since a permanent
IFQ transfer would require the vessel to transfer the IFQ scallop
permit (and any other permits) to the transferee, the transferring
vessel would not be eligible to enter into an agreement to transfer IFQ
back to the vessel, unless the vessel replaced another IFQ scallop
vessel. Each IFQ allocation would have to be transferred in full before
it is utilized, and a vessel that used IFQ in a fishing year could not
transfer its IFQ during that fishing year. An IFQ transfer would not be
approved if it would result in the receiving IFQ scallop vessel having
a share of more than 2 percent of the total TAC allocation to the IFQ
fishery. IFQ transfers would not be permitted for existing limited
access scallop vessels that also have been issued an IFQ scallop
permit.
IFQ Cost Recovery
The Magnuson-Stevens Act requires any IFQ program to include a cost
recovery program, whereby NMFS would collect up to 3 percent of ex-
vessel value of landed product to cover actual costs directly related
to enforcement and management of an IFQ program. The authority and
procedures for collection of cost recovery fees would be established in
this rule. Further details of the cost recovery program will be
proposed in Framework 19, in which TACs would be established for LAGC
scallop vessels. As recommended in Amendment 11, the IFQs would be
rounded up to the nearest 10-lb unit. The cost recovery fee for an IFQ
that was temporarily transferred to another IFQ scallop vessel would be
the responsibility of the owner of the transferring IFQ scallop vessel,
not the owner of the receiving IFQ scallop vessel.
Measures for the Transition Period to IFQ
Amendment 11 recognizes that it would take between 12 to 24 months
to determine the universe of qualified vessels that would be issued an
IFQ scallop permit. The time is necessary to accommodate applicants who
pursue permits through the appeals process. As a result, it would not
be possible to implement an IFQ program at the same time that NMFS is
in the process of determining eligibility and contribution factors.
Recognizing the problem, Amendment 11 specifies measures for a
transition period. The transition measures include a quarterly TAC
equal to 10 percent of the total projected scallop catch. Vessels that
qualify for an IFQ scallop permit and vessels under appeal for an IFQ
scallop permit would be authorized to fish for scallops, subject to the
quarterly TAC, with all landings counted toward the TAC. When the TAC
is projected to be attained, the general category fishery would close
for the remainder of the quarter. Any underage or overage of the first
quarter would be applied to the third quarter, and any underage or
overage of the second quarter would be applied to the fourth quarter.
The quarterly TACs for the 2008 fishing year, beginning March 1, 2008,
will be specified in Framework 19. A quarterly TAC is proposed rather
than an annual TAC due to concerns about derby fishing. This quarterly
distribution of TAC is intended to reduce the negative effects of a
race to take the TAC. The 10-percent allocation would result in a TAC
that would be consistent with recent projections for scallop mortality
from the general category fishery and would account for additional
effort expected from vessels under the appeals process.
Mechanism to Allow Voluntary Sectors in the General Category Fishery
The proposed action includes a mechanism to allow the owners of IFQ
scallop vessels to form voluntary sectors that would manage their own
fishing activity as a group. This rule outlines the procedures that
would be used to form a sector, and the sector program requirements.
The sector provision includes: Restrictions on participation;
definition and requirements for operations plans; specifications for
the review, approval, and revocation process; allocation of TAC to
sectors; sector share determination; restrictions on sector membership
changes; restrictions on interaction between sectors; monitoring and
enforcement provisions for sectors; a prohibition on trading of
allocation between sectors; restrictions on vessel movement between
sectors; a 20-percent maximum total allocation for a single sector. The
400-lb (181.44-kg) possession limit would be maintained for vessels in
a sector. The formation of sectors is intended to provide greater
flexibility for participants and create outcomes that are more socially
and economically relevant for fishing groups within the biological
limitations of the fishery (TACs). The 20-percent cap on a sector's
share of the IFQ is intended to prevent one sector from controlling an
excessive percentage of the general category allocation. Unlike the
sector program for the Northeast multispecies fishery, Amendment 11
would not allow sectors to be exempt from any scallop regulations,
except that participating vessels would not be restricted by their
IFQs.
NGOM Scallop Management Area
The NGOM scallop management area would be waters north of
42[deg]20' N. Lat. The NGOM scallop management area would be managed
separately, because the Council concluded that it has unique
characteristics such as smaller vessels and sporadic fishable resource.
The NGOM scallop management area would establish scallop fishing
controls appropriate for the fishery while protecting the resource in
the area from overharvest, if and when scallops are present in the
area. Measures include the separate NGOM general category scallop
permit and qualification criteria; a TAC based on historical landings
from Federal waters in the NGOM; a possession limit of 200 lb (90.72
kg) of scallops per trip, with one trip per calendar day allowed; a
provision that an IFQ vessel fishing in the NGOM scallop management
area would have scallop landings deducted from its IFQ
[[Page 71320]]
and the NGOM scallop management area TAC; and a prohibition on
possession of scallops by any vessel, once the NGOM scallop management
area TAC is harvested. Amendment 11 does not include specific
restrictions for vessels fishing under scallop DAS in the NGOM, except
that such vessels could not continue fishing in the NGOM once the TAC
for the area has been reached.
Monitoring
All LAGC scallop vessels would be required to install and operate a
VMS unit and would be required to declare a general category trip or
other fishing activity code, as appropriate. In addition, IFQ and NGOM
scallop vessels would be required report scallop landings through VMS.
This provision would improve monitoring of an IFQ program by requiring
vessels to report their catch, approximate time of landing, and port of
landing before crossing the VMS demarcation line in order to enhance
enforcement of the IFQ program and NGOM scallop fishery. The report
submitted through VMS would include the VTR serial number, amount of
scallops on-board, the port of landing, and the approximate time of
arrival in port. This monitoring requirement would enable NMFS to
monitor the TAC and IFQs on a more real-time basis.
Change Issuance Date of General Category Permit
The issuance date of general category permits would be changed from
May 1 to March 1 of each year to be consistent with the scallop fishing
year. Synchronizing the issuance of general category scallop permits
with the scallop fishing year would make this permit consistent with
the existing limited access scallop permit issuance date.
Other Measures
This action would clarify that vessels that are fishing under a
Northeast multispecies or monkfish DAS would not be restricted to the
144-ft (43.9-m) net sweep restriction at Sec. 648.52 that currently
specifies that a vessel using a net with a sweep greater than 144 ft
(43.9 m) cannot fish for, possess, retain, or land more than 40 lb
(18.14 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops. The
Council recommended this change because the 144-ft (43.9-m) restriction
was not intended to apply to vessels fishing for other species that
would have an incidental catch of scallops, provided the vessel is
issued the appropriate LAGC scallop permit.
Amendment 11 proposes to allow an IFQ scallop vessel to possess up
to 100 bu (35.24 hL) of in-shell scallops seaward of the VMS
demarcation line only. Once shoreward of the VMS demarcation line, a
vessel could possess only 50 bu (17.62 hL) of in-shell scallops. This
measure is proposed because scallop vessel owners and operators
testified that it often takes more than 50 bu (17.62 hL) of in-shell
scallops to yield 400 lb (181.44 kg) of scallop meats. NMFS notes that
similar increases were not specified by the Council for the NGOM
possession limits of 200 lb (90.72 kg) of shucked or 25 bu (8.8 hL) in-
shell scallops or the 40 lb (18.14 kg) of shucked or 5 bu (1.76 hL) of
in-shell scallops. However, given the rationale for the increased
possession limit, it would be inconsistent to apply the increased
possession limit for only one LAGC scallop permit category or declared
fishing activity. Therefore, this proposed rule specifies that vessels
fishing for scallops up to 200 lb (90.72 kg) or 25 bu (8.80 hL), or up
to 40 lb (18.14 kg) or 5 bu (1.76 hL), could possess up to 50 bu (17.62
hL) or 10 bu (3.52 hL), respectively, seaward of the VMS Demarcation
Line.
Finally, this proposed rule would clarify the ownership cap
restriction on current limited access vessels specified at Sec.
648.4(a)(2)(i)(M). The ownership cap restriction was implemented
through Amendment 4 (59 FR 2757, January 19, 1994). Currently, the
regulation states that an individual may not own, or have an ownership
interest in, more than 5 percent of limited access scallop vessels. The
provision in Amendment 4 is as follows: ``No entity or individual may
have ownership interest in more than 5 percent of the total number of
scallop permits issued at implementation and through the appeal
process.'' However, the current regulations are not clear whether this
cap applies to CPHs. Provisions for CPH were implemented in 1995 (60 FR
62224, December 5, 1995), after the 5-percent cap provision in
Amendment 4 was implemented. The current regulation does not mention
CPHs, which represent sunken or destroyed vessels, or vessels that were
sold without fishing and permit history, that are eligible for limited
access scallop permits. In terms of future ownership, a CPH is
equivalent to a limited access permit. Since it is clear that the
Council intended the ownership cap to restrict an owner to having an
ownership interest in no more than 5 percent of all limited access
scallop permits, this proposed rule would clarify that an individual
cannot own more than 5 percent of the limited access permit
eligibilities in the form of a limited access permit or CPH. This
clarification would make the regulations consistent with the Council's
original intent under Amendment 4.
Public comments are solicited on Amendment 11 and its incorporated
documents through the end of the comment period, January 29, 2008,
stated in the NOA for Amendment 11 (72 FR 67691, November 30, 2007).
Public comments on this proposed rule must be received by January 29,
2008, the end of the comment period specified in the NOA for Amendment
11, to be considered in the approval/disapproval decision on the
amendment. All comments received by January 29, 2008, whether
specifically directed to Amendment 11 or the proposed rule, will be
considered in the approval/disapproval decision on Amendment 11.
Comments received after that date will not be considered in the
decision to approve or disapprove Amendment 11, but will be responded
to in the final rule.
Classification
At this time, NMFS has not determined that the amendment this
proposed rule would implement is consistent with the national standards
of the Magnuson-Stevens Fishery Conservation and Management Act and
other applicable laws. NMFS, in making that determination, will take
into account the data, views, and comments received during the comment
period.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Council prepared an FSEIS for Amendment 11; an NOA was
published on October 19, 2007. The FSEIS describes the impacts of the
proposed Amendment 11 measures on the environment. Since most of the
measures would determine whether or not fishers can continue fishing
for scallops, and at what level in the future, the majority of the
impacts are social and economic. Although the impacts may be negative
in the short term, particularly at an individual fisher level, the
long-term benefits of a sustainable scallop fishery would be positive.
Elimination of the open access fishery is expected to have positive
impacts on the biological and physical environment.
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). Public reporting burden for these collections of information are
estimated to average as follows:
1. Initial application for an IFQ scallop permit - 30 min per
response;
[[Page 71321]]
2. Initial application for an NGOM or Incidental scallop permit -
15 min per response;
3. Completion of ownership cap form for IFQ scallop vessel owners -
5 min per response;
4. Appeal for an LAGC scallop permit and IFQ scallop vessel
contribution factor - 2 hr per response;
5. Application for a vessel replacement or confirmation of permit
history - 3 hr per response;
6. Purchase and installation of a VMS unit for general category
scallop vessels--2 hr per response;
7. IFQ scallop vessel VMS trip notification requirements--2 min per
response;
8. NGOM scallop fishery VMS trip notification requirements--2 min
per response;
9. Incidental catch vessel VMS trip notification requirements--2
min per response;
10. Pre-landings VMS notification requirements--5 min per response;
11. Application for an IFQ transfer--10 min per response;
12. Electronic payment of cost recovery payment--2 hr per response;
13. LAGC scallop fishery sector applications--150 hr per response;
and
14. Sector operations plans--100 hr per response.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information.
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 the
Regional Administrator as specified in ADDRESSES above, and by e-mail
to David--Rostker@omb.eop.gov or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities, with data
analyzed on a fishing year basis (March 1 through February 28/29). A
description of the action, why it is being considered, and the legal
basis for this action are contained at the beginning of this section of
the preamble and in the SUMMARY. A summary of the IRFA follows:
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
The vessels in the Atlantic sea scallop fishery are considered
small business entities because all of them grossed less than $4.5
million according to the dealer's data for the 2004 and 2005 fishing
years. Therefore, there are no differential impacts between large and
small entities. According to this information, annual total revenue
averaged about $940,065 per limited access vessel in 2004, and over $1
million per limited access vessel in 2005. Total revenues per vessel,
including revenues from species other than scallops, exceeded these
amounts, but were less than $4.5 million per vessel. Average scallop
revenue per general category vessel was $35,090 in 2004 and $88,702 in
2005 fishing years. Average total revenue per general category vessel
was higher, exceeding $240,000 in 2004 and 2005. According to the
preliminary estimates, average revenues per vessel were lower in the
first 11 months of 2006 for all permit categories, because of lower
scallop landings and prices.
The measures proposed in Amendment 11 would affect vessels with
limited access scallop and general category permits. Section 4.4
(Fishery-related businesses and communities) of the Amendment 11
document provides extensive information on the number and size of
vessels and small businesses that will be affected by the proposed
regulations, by port and state. These affected entities are the owners
of 318 vessels that were issued full-time permits in 2006, (including
55 small-dredge and 14 scallop trawl permits); 32 part-time; and 1
occasional limited access permit. In addition, 2,501 permits were
issued to vessels in the open access General Category, and more than
500 of these vessels landed scallops during the last 2 years.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action contains several new collection-of-information,
reporting, and recordkeeping requirements. The following describes
these requirements.
1. Application Process
NMFS estimates that there would be 500 applicants for an IFQ
scallop permit, 200 applicants for a NGOM scallop permit, and 500
applicants for an Incidental scallop permit. Each IFQ scallop permit
application would take approximately 30 min per application, while each
NGOM and Incidental scallop permit application would take approximately
15 min to process. Consequently, the total time burden for the initial
applications would be 425 hr. Amendment 11 estimates that 370 IFQ
scallop permit, 190 NGOM scallop permit, and 465 Incidental scallop
vessels are expected to qualify and consequently renew their
application each year. Permit renewal is estimated to take 15 min per
application, on average, for a total burden of 256 hr per year. The 3-
year average total public time burden for IFQ, NGOM, and Incidental
scallop permit initial applications, and permits renewals would be 312
hr. The labor cost, at an hourly rate of $15, would be $4,680.
To implement the 5-percent IFQ ownership cap, vessel owners would
be required to submit an ownership form with each permit renewal. Since
there would be an estimated 370 IFQ permits, there would be 370
ownership forms each year. NMFS estimates that it would take 5 min to
complete each ownership form; therefore, the annual reporting burden
would be 31 hr, or 21 hr, averaged over the first 3 years. At an hourly
rate of $15, the annualized time burden would be approximately $315.
About 80 applicants are expected to appeal the denial of their
permit application over the course of the 3-month application period.
The appeals process is estimated to take 2 hr per appeal, on average,
for a total burden of 160 hr. The burden of this one-time appeal,
annualized over three years, would be 54 hr. At an hourly rate of $15,
the time burden would be approximately $810.
2. Vessel Replacement, Upgrade, and Permit History Applications
A standard form for vessel replacements, upgrades, and permit
history applications (RUPH application) would be used for LAGC scallop
permits, although vessel upgrades would not apply for LAGC scallop
vessels unless the vessel is issued other limited access fishery
permits that have upgrade restrictions. With the exception of upgrade
restrictions, LAGC scallop vessels would be subject to similar
replacement and permit history
[[Page 71322]]
restrictions as other Northeast Region limited access fisheries.
Completion of an RUPH application requires an estimated 3 hr per
response. It is estimated that 100 RUPH applications would be received
annually. The resultant burden would be up to 300 hr. At an hourly rate
of $15 per hour, the total public cost burden for RUPH applications
would be $4,500 per year.
3. New VMS Requirements
This action would require vessels issued any of the LAGC scallop
permits to install VMS. Most vessels that qualify for an IFQ scallop
permit would have been participating in the directed general category
scallop fishery, which already has VMS requirements prior to the
implementation of Amendment 11. Therefore, it is likely that most
vessels that will qualify for an IFQ permit already have VMS. Vessels
that qualify for an Incidental or NGOM scallop permit would not likely
be participating in the directed general category scallop fishery.
However, vessels that qualify for an Incidental or NGOM scallop permit
may already have VMS reporting requirements through other fisheries,
particularly the Northeast multispecies fishery. It is possible that
some new permit holders would decide to purchase and install new VMS
units in order to participate in one of these fisheries. Therefore,
NMFS estimates that up to 10 vessels would purchase and install VMS
units as a result of Amendment 11. NMFS estimates that it would take 2
hr to purchase each unit, for a total time burden of 20 hr; annualized
over 3 years, the burden would be about 7 hr per year. NMFS anticipates
that a vessel owner would hire a VMS technician to install the VMS
unit; therefore there would be no installation time burden for the
vessel owner. At an hourly rate of $15 per hour, the total public cost
burden for VMS purchases would be $105 per unit. Since position polling
is automated, there is no associated time burden with this reporting
requirement.
4. Trip Notification Requirements
Each time a LAGC scallop vessel leaves port or is moved from the
dock or mooring, the operator must submit a VMS trip declaration code
to notify NMFS of the vessel's fishing activity.
According to 2007 VMS trip declaration data for 1B scallop vessels,
approximately 40 percent of the time general category 1B vessels
declare a general category scallop trip; the remainder are codes for
other activities (if a vessel leaves port, general category regulations
require it to declare a trip, regardless of the fishing activity). The
2008 scallop harvest specifications have not yet been finalized, but
the proposed IFQ quota is 2.5 million lb (1,134 mt). Assuming each trip
harvests the 400-lb (181.4-kg) possession limit, there would be an
estimated 6,250 IFQ trip declarations per year, with an additional
9,375 trip declarations for some activity other than scallop fishing,
for a total of 15,625 trip declarations. Following each trip, NMFS
assumes that the vessel operator would submit a power-down code to
reduce polling costs and conserve battery power. NMFS estimates that it
takes approximately 2 min to submit a trip declaration or power-down
code. NMFS estimates that the IFQ fleet would submit 31,250 VMS
declaration codes (15,625 trip declarations and 15,625 corresponding
power-down code submissions); therefore, the annual IFQ trip
declaration time burden would be 1,042 hr per year. At an hourly rate
of $15, this burden would be $15,630.
5. NGOM Notification Requirements
The proposed NGOM TAC is expected to be 64,000 to 100,030 lb
(29,030 to 45,373 kg) each year. Assuming each trip lands the 200-lb
(90.72-kg) possession limit, and using the upper limit of the proposed
TAC, it is projected that there would be up to 500 NGOM trip
declarations per year. For economic purposes it is unlikely that a
vessel owner would incur the cost of a VMS unit solely to have a NGOM
permit. Therefore, assuming these vessels already have VMS reporting
requirements for other fisheries, VMS declaration reporting
requirements for activities other than NGOM activity have already been
accounted for in other PRA collections. The increased reporting burden
resulting from the NGOM permit category would be approximately 500 trip
declarations and 500 power-down declarations. Assuming each declaration
takes approximately 2 min, the annual NGOM trip declaration time burden
would be approximately 34 hr. At an hourly rate of $15, this burden
would be $510.
6. Incidental Scallop Vessel VMS Notification Requirements
In 2004 and 2005, dealer data indicated that the percent of
scallops landed in quantities of 40 lb (18.14 kg) or less was 0.02% and
0.06%, respectively, of the total scallop landings. The average scallop
landings on these trips in 2004 and 2005 was 19,363 lb (8,783 kg).
Using this average, NMFS estimates that there were approximately 500
general category trips that landed scallops incidental to other
fishing. Assuming this rate would remain approximately the same, there
would be an estimated 500 Incidental trip declarations made annually.
As previously noted, for economic purposes it is unlikely that a vessel
owner would incur the cost of a VMS unit solely to have an Incidental
scallop permit. Therefore, assuming these vessels already have VMS
reporting requirements for other fisheries, VMS declaration reporting
requirements for activities other than Incidental scallop permit
activity have already been accounted for in other PRA collections. The
increased reporting burden resulting from the Incidental scallop permit
category would be approximately 500 trip declarations and 500 power-
down declarations. Assuming each trip declaration takes approximately 2
min, the annual Incidental scallop trip declaration time burden would
be approximately 34 hr. At an hourly rate of $15, this burden would be
$510.
7. Pre-landing Notification Requirements
VMS pre-landing notification forms would be required for each IFQ
and NGOM scallop trip. Therefore, there would be 6,250 IFQ and 500 NGOM
scallop vessel pre-landing notification forms submitted annually. NMFS
estimates that it would take 5 min for each of the 6,750 reports, for
an annual pre-landing notification time burden of 563 hr. At an hourly
rate of $15, this burden would be $8,445.
8. State Waters Exemption Program Requirements
The state waters exemption program enrollment form is estimated to
take 5 min to submit through the VMS, the same amount of time as it has
taken to enroll through interactive voice response system currently
used. State waters exemption program trip declaration requirements are
already accounted for in an approved collection under OMB Control No.
0648-0202. Therefore, this burden would not increase the cost to vessel
owners declaring into the state waters exemption program.
9. IFQ Transfers
IFQ transfers would apply to IFQ scallop vessels, except that
current limited access scallop vessels that also have been issued an
IFQ scallop permit would not be permitted to transfer IFQ. Using the
Northeast Region's Northeast Multispecies DAS leasing program (OMB
Control No. 0648-0475) as a proxy for the response rate for the IFQ
transfer program, NMFS anticipates that there would be approximately 75
temporary transfers annually. Each
[[Page 71323]]
application would include information from both parties involved in the
temporary transfer; therefore there would be two responses per
application. NMFS estimates that it would take 5 min per response, or
10 min per temporary IFQ transfer application. Therefore, the estimated
burden would be 13 hr. At an hourly rate of $15 / hour, the total
public cost burden for temporary IFQ transfer applications would be
$195.
The Northeast Multispecies DAS Permanent Transfer Program cannot be
easily correlated with the general category permanent transfer program
because the Northeast Multispecies Program has a 20-percent
conservation tax on all transfers, while there would be no conservation
tax on scallop IFQ transfers. Although NMFS anticipates that there
would be more IFQ transfers than DAS transfers, IFQ transfers would be
restricted by the requirement that no IFQ vessel owner could have an
ownership interest in more than 5 percent of the total TAC for IFQ
scallop vessels, and no vessel could have more than 2 percent of the
total TAC for IFQ scallop vessels at any time. NMFS anticipates that
there would be approximately 10 permanent IFQ transfers per year. Each
application would include information from both parties involved in the
transfer; therefore there would be two responses per application. It is
estimated that it would take 5 min per response, or 10 min per
permanent transfer application. Therefore, the estimated permanent IFQ
transfer burden would be 2 hr. At an hourly rate of $15 per hour, the
total public cost burden for permanent quota transfer applications
would be $30.
10. Cost Recovery
Since cost recovery for the scallop IFQ program is new, and there
are no other current cost recovery programs in Northeast Region
fisheries, the burden per response used by the Alaska Region's Alaska
Individual Fishing Quota Cost-Recovery Program Requirements (OMB
Control No. 0648-0398) was used as a proxy for the scallop IFQ program.
Each IFQ permit holder would be required to submit a cost recovery
payment once annually, which would take 2 hr per response. Therefore,
370 payments would take 740 hr. At an hourly rate of $15 / hour, the
total public cost burden for cost recovery would be $11,100.
11. LAGC Sector Program
NMFS estimates that there could be up to nine sector proposals
received over the next three years (2008-2009); five in the first year,
two in the 2nd year, and two in the 3rd year. The earliest that the
sectors proposed in the 2008 year could be implemented would be the
2009 fishing year. Therefore, these sectors would be required to submit
operation plans for the 2010 fishing year.
Any person could submit a sector allocation proposal for a group of
LAGC scallop vessels to the Council at least 1 year in advance of
anticipated start of a sector program, and request that the sector be
implemented through a framework procedure specified at Sec. 648.55.
Based upon consultations with the Northeast multispecies sector
program, it is estimated it would take 150 hr to prepare and submit a
sector proposal. Therefore, the 3-year average annualized time burden
for sector proposals would be 450 hr per year. At an hourly rate of $15
per hour, the total public cost burden for sector proposals would be
$6,750.
A sector is required to resubmit its operations plan to the
Regional Administrator no later than December 1 of each year, whether
or not the plan has changed. Based upon consultations with the
Northeast multispecies sector program, each operations plan takes
approximately 100 hr. The earliest sector operation plans would be
submitted in 2010 for the proposals submitted in 2008. Therefore, NMFS
estimates it would take 500 hr to submit 5 operation plans. The 3-year
average annualized time burden would be 167 hr per year. At an hourly
rate of $15 per hour, the annual time burden cost would be
approximately $2,500.
Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives
1. Summary of the Combined Economic Impacts of the Limited Access
Measures
In summary, the proposed limited access program could have negative
economic impacts in the short-term on the estimated 373 vessels that
would not qualify for a LAGC scallop permit, with adverse impacts
compared to 2005 scallop revenue estimated to be less than 5 percent
for 119 vessels, 5 to 49 percent for 58 vessels, and 50 percent or more
for 196 vessels. The measures would also have negative impacts on about
153 out of 369 vessels that are estimated to qualify for the IFQ
scallop permit, with adverse impacts compared to 2005 scallop revenue
estimated to be less than 5 percent for 26 of these vessels, 5 to 50
percent for 70 vessels, and over 50 percent for 57 vessels. Altogether,
the proposed measures could reduce total revenues of 381 vessels of
more than 5 percent in the short-term. There are several measures in
the proposed action, however, to help mitigate and reduce the potential
negative impacts on these vessels, as discussed above. Qualifying
vessels would be permitted to stack allocation up to 2 percent of the
entire general category allocation and to transfer (i.e., lease or buy)
IFQ on a permanent or temporary basis. This would enable vessel owners
who do not receive an adequate amount of allocation to increase their
scallop revenue to mitigate negative impacts. Furthermore, there is a
provision to allow the formation of voluntary sectors. It may be
beneficial for a group of vessels from a fishing community, for
example, to organize and apply for a sector in the general category
fishery. Negative impacts on some vessel owners may be mitigated if a
vessel would qualify for a NGOM scallop permit that authorizes it to
fish for scallops at a reduced level. In addition, many of the vessels
that would not qualify for the IFQ scallop permit would qualify for an
Incidental scallop permit that would authorize the vessel to land up to
40 lb (18.14 kg) of scallops per trip.
Continuation of the open access fishery under the no action
alternative would not guarantee that the affected vessel owners would
get more scallop revenue than they could with the proposed limited
access program. With continued open access, there would always be the
risk of more vessels entering the fishery, with the potential for
overfishing of the scallop resource. Overfishing would likely cause a
reduction in landings per unit effort, an increase in fishing costs per
pound of scallops, and dissipation o