Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 11, 20090-20133 [E8-7795]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 72 (Monday, April 14, 2008)]
[Rules and Regulations]
[Pages 20090-20133]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7795]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Amendment 11; Final Rule

Federal Register / Vol. 73, No. 72 / Monday, April 14, 2008 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071130780-8013-02]
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: Final rule.

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SUMMARY: NMFS is implementing approved measures contained in Amendment 
11 to the Atlantic Sea Scallop Fishery Management Plan (FMP), developed 
by the New England Fishery Management Council (Council). Amendment 11 
was developed by the Council to control the capacity of the open access 
general category fleet. Amendment 11 establishes a new management 
program for the general category scallop 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: Effective June 1, 2008.

ADDRESSES: A final supplemental environmental impact statement (FSEIS) 
was prepared for Amendment 11 that describes the action and other 
considered alternatives and provides a thorough analysis of the impacts 
of the approved measures and alternatives. Copies of Amendment 11 and 
the FSEIS 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.nero.noaa.gov/nero/hotnews/scallamend11/.
    Written comments regarding the burden-hour estimate or other 
aspects of the collection-of-information requirement contained in this 
final rule should be submitted to the Regional Administrator at 1 
Blackburn Drive, Gloucester, MA 01930, 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

    Prior to the implementation of Amendment 11, the general category 
scallop fishery was an open access fishery allowing any vessel to fish 
for up to 400 lb (181.4 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 that applied to the large-scale 
scallop fishery. Over time, 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, 
181 general category vessels landed scallops, while in 2005 more than 
600 did.
    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 be published to notify the public that the 
Council was considering limiting entry to the general category scallop 
fishery as of a specified control date. NMFS subsequently established 
the control date of November 1, 2004 (69 FR 63341). 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 public meetings 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. Amendment 11 was adopted by the Council 
on June 20, 2007. The Notice of Availability (NOA) for Amendment 11 was 
published on November 30, 2007, (72 FR 67691) with a comment period 
ending on January 29, 2008. A proposed rule for Amendment 11 was 
published on December 17, 2007 (72 FR 71315), with a comment period 
ending on January 31, 2008. On February 27, 2008, NMFS approved 
Amendment 11 on behalf of the Secretary of Commerce.
    Amendment 11 establishes criteria and authority for determining the 
percentage of scallop catch allocated to the general category fleet, 
and establishes the IFQ program. However, these specific allocation 
amounts have been 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.

Approved Measures

    In a comment letter on the proposed rule, the Council suggested 
interpretations of the Council's intent regarding some of the measures 
and regulations. NMFS has accepted some of the Council's 
interpretations and clarifications which are reflected in the 
descriptions of the management measures and in the regulatory text in 
this final rule. Responses to comments identify whether NMFS agreed or 
disagreed with the Council's recommendations. Changes in the 
descriptions of the management measures from the proposed rule's 
descriptions are noted below. Changes in the regulatory text from the 
proposed rule are noted under ``Changes from Proposed Rule to Final 
Rule'' in the preamble of this final rule.
    The FSEIS for Amendment 11 included a description of each of the 
measures approved by the Council, but the description of the measures 
lack the regulatory detail necessary to ensure effective implementation 
and administration of the approved management measures. Under its 
authority granted by section 305(d) of the Magnuson-Stevens Act (16 
U.S.C. Sec.  1855(d)), NMFS added regulatory provisions in the proposed 
rule and in this final rule to ensure that the regulations are 
sufficiently detailed to ensure effective implementation, 
administration, and enforcement of the approved measures. While most of 
the measures described below required such additional regulatory 
detail, the most prominent regulatory additions appear in the limited 
access permit program, IFQ transfers, transition to IFQ, and Sector 
provisions.

Limited Access Program for the General Category Fishery

    Amendment 11 requires 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 are 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) are 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

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incidental catch LAGC scallop permit (Incidental scallop permit).
    A vessel is eligible to be issued an IFQ scallop permit if NMFS 
records verify that the vessel landed at least 1,000 lb (454 kg) of 
scallop meats in any fishing year between March 1, 2000, and November 
1, 2004, and a general category scallop permit had been issued 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 
can instead choose to apply for and be issued an NGOM or Incidental 
scallop permit. These permits have the same qualification requirement 
but have different restrictions. A vessel owner might choose the NGOM 
scallop permit if he or she wanted to land up to 200 lb (90.7 kg) per 
trip and fish exclusively within the most Northern portion of the 
scallop resource. A vessel owner might choose the Incidental scallop 
permit if he or she wants to retain up to 40 lb (18.1 kg) of scallops 
per trip while fishing for other species.
    A vessel qualifies for the NGOM or Incidental scallop permit if it 
was issued a valid general category scallop permit as of November 1, 
2004. There are no landings eligibility criteria. The NGOM scallop 
permit allows the vessel to fish in the NGOM exclusively, defined as 
the waters north of 42[deg]20' N. lat. and within the Gulf of Maine 
Scallop Dredge Exemption Area as defined in Sec.  648.80(a)(11), and 
are subject to additional restrictions outlined in the description of 
the NGOM Scallop Management Area below. The Incidental scallop permit 
allows a vessel to possess and land up to 40 lb (18.1 kg) of scallops 
per trip in all areas and is intended to allow landing of incidental 
scallop catch. The Council also indicated in its description of this 
measure that some vessels that qualify for an IFQ scallop permit may 
opt for the Incidental scallop permit because it allows vessels to land 
an incidental catch of scallops on an unlimited number of trips. In 
response to the proposed rule, the Council commented that a vessel that 
qualifies for an IFQ permit, but for which the owner elects to be 
issued an NGOM or Incidental scallop permit, automatically qualifies 
for an NGOM scallop permit. This clarification was necessary because a 
vessel that qualifies for an IFQ scallop permit would not necessarily 
meet the requirement that it held a general category scallop permit as 
of November 1, 2004 (i.e., it could have been issued a general category 
only in 1 year prior to the 2004 fishing year). However, the Council 
intended that the NGOM and Incidental Catch scallop permits have more 
liberal qualification requirements, allowing a qualified IFQ scallop 
vessel to choose the other permit category.

Initial Application for a LAGC Scallop Permit

    A vessel owner is required to submit an initial application for a 
LAGC scallop permit or confirmation of permit history (CPH) 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 establishes measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures apply to all LAGC scallop vessels. The 
Council clarified that this was the Council's intent. Except as noted, 
the provisions in Amendment 11 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 must be established 
during the first year after the implementation of Amendment 11. A 
vessel owner is required to submit an application for an LAGC scallop 
permit or CPH no later than 90 days from effective date of this final 
rule.
2. Landings History
    Amendment 11 specifies landings and permit history criteria that a 
vessel must meet to qualify for LAGC permits. It also specifies that an 
IFQ scallop vessel will be allocated IFQ based on its best year of 
scallop landings and the number of fishing years it was active during 
the qualification period of March 1, 2000, through November 1, 2004. 
Amendment 11 specifies that qualifying landings must be from the same 
scallop fishing year (March 1 through February 28/29, or through 
November 1, 2004, for the 2004 fishing year) that a vessel was issued a 
general category scallop permit during the qualification period. 
Therefore, this final 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 is 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 is the number of scallop fishing years during the 
qualification period (through November 1, 2004) that the vessel landed 
at least 1 lb (0.45 kg) of scallops, provided the vessel was issued a 
general category scallop permit. In-shell scallop landings reported in 
pounds of scallops are converted to meat-weight using the formula of 
8.33 lb (3.78 kg) of scallop meats for each pound of in-shell scallops, 
for qualification purposes. In-shell scallop landings reported in 
bushels of scallops are converted to meat-weight using the formula of 8 
lb (3.63 kg) of scallop meats per bushel of in-shell scallops.
    NMFS landings data from dealer reports will 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 shall be used to 
determine permit criteria eligibility for all LAGC scallop permits. 
Applicants are allowed to appeal the denial of an LAGC permit, or 
contribution factor (based on best year and years active), through the 
eligibility appeals process described below.
    The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) restricts the release of confidential fishery 
information to anyone other than the owner of the vessel at the time 
the data were compiled. Due to this restriction, for qualifying vessel 
IFQ information, for vessels that are currently owned by someone other 
than the owner of the vessel that made the landings, NMFS may be 
restricted in the release of the contribution factor if the release of 
such information is inconsistent with the MSA. NMFS understands that 
this may add complexity to the qualification and appeals process, but 
will work with vessel owners to ensure fairness in the appeals process.
3. Confirmation of Permit History
    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, is required to apply for and receive a 
CPH if the fishing and permit

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history of such vessel has been retained lawfully by the applicant and 
the applicant wishes to maintain eligibility for an LAGC scallop 
permit. An application for a CPH to establish the initial LAGC 
qualification of a vessel must 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 must 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 preserves 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 must be applied 
for in order for the applicant to preserve the LAGC scallop permit 
eligibility of the qualifying vessel. IFQ would be issued for IFQ 
scallop vessels in CPH, and IFQ associated with a CPH can be 
transferred. IFQ associated with a CPH counts toward a vessel owner's 
overall ownership of IFQ, and is restricted under the 5-percent 
ownership cap.
4. Permit Transfers
    An LAGC scallop permit and fishery history is 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 includes the permit-splitting provision currently in 
effect for other limited access fisheries in the Northeast region for 
transactions occurring after the initial qualification and permit 
issuance period. Therefore, after the initial issuance of an LAGC 
scallop permit, it cannot 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 does 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, with the exception of limited access vessels that qualify for 
an LAGC scallop permit. 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 are allowed to do so under Amendment 11. 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 cannot split the LAGC scallop permit or fishing history from the 
limited access scallop permit.
6. Qualification Restriction
    Except as provided under the permit splitting provision above, 
consistent with previous limited access programs, no more than one 
vessel can 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 Northeast Regional Administrator (Regional Administrator) will 
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 may appeal in 
writing to the Regional Administrator within 30 days of the denial, and 
any such appeal must be based on the grounds that the information used 
by the Regional Administrator was incorrect.
    The appeals process allows an opportunity for a hearing before a 
hearing officer designated by the Regional Administrator. The owner of 
a vessel denied an LAGC scallop permit can 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 shall issue such a letter for the pendency of any appeal, 
if requested. If the appeal is ultimately denied, the Regional 
Administrator shall 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 is not 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 shall 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 does 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 shall 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 final rule requires 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 is 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 may not be allocated more 
than 2 percent of the TAC allocated to the fleet of vessels issued IFQ 
scallop permits. In addition, an individual may 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

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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 does 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 can voluntarily exit the LAGC fishery by permanently 
relinquishing the permit. In some circumstances, doing so would 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 can 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 shall be cancelled due to 
the failure to renew, in which case no LAGC scallop permit can ever be 
reissued or renewed based on that vessel's permit and fishing history.
    Amendment 11 establishes an IFQ cost recovery program, with the 
payment procedures and details to be established in Framework 19. Under 
the IFQ program, up to 3 percent of the ex-vessel value of IFQ scallop 
landings will be collected by NMFS to offset the cost of managing, 
enforcing, and implementing the IFQ program, as required by the 
Magnuson-Stevens Act. NMFS will not renew an IFQ scallop permit for a 
subsequent fishing year for a vessel for which the owner failed to pay 
cost recovery fees by the specified due date. If a vessel owner fails 
to pay his or her cost recovery fee by the end of the fishing year for 
which the IFQ scallop permit has not been renewed due to failure to pay 
the cost recovery fee, no IFQ scallop permit could ever be reissued or 
renewed based on that vessel's permit and fishing history. The Council 
has proposed detailed cost recovery provisions as part of Framework 19 
to the FMP.

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 is 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 must 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 must have been issued 
a valid limited access scallop permit during the period March 1, 2000, 
through November 1, 2004, and must meet the landings criteria specified 
in ``Limited Access Program for the General Category Fishery'' and 
``Landings History'' above. LAGC scallop permit eligibility established 
while the vessel was also a limited access scallop vessel cannot be 
split from the limited access vessel. Limited access scallop vessels 
that also qualify for an IFQ scallop permit cannot transfer IFQ. 
Therefore, neither the general category maximum allocation restriction 
nor the maximum percentage ownership restriction for general category 
TAC apply. The limited access general category permit and IFQ scallop 
permit cannot be split from the limited access scallop permit. A 
limited access scallop vessel that does not qualify for a LAGC scallop 
permit cannot fish for, possess, or retain scallops when not fishing 
under the scallop DAS and Area Access programs.

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 will be allocated to vessels with IFQ 
scallop permits. This will be calculated by deducting estimated catch 
by Incidental scallop vessels from the total projected annual scallop 
catch. Five percent of the resultant catch will then be allocated to 
the IFQ scallop fishery. IFQs for IFQ scallop vessels will be derived 
from the 5-percent TAC allocation. The 5-percent allocation will not 
apply to current limited access vessels that also have IFQ scallop 
permits. Limited access scallop vessels with IFQ scallop permits will 
be allocated 0.5 percent of the total projected annual scallop catch 
after deduction of incidental catch. IFQs for these vessels will 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, shall be allocated for harvest by the current limited 
access scallop fishery. Based on a comment from the Council, NMFS has 
clarified that the NGOM TAC will not be deducted from the overall TACs, 
as was incorrectly described in the proposed rule preamble.

IFQs for Limited Access General Category Scallop Vessels

    A vessel issued an IFQ scallop permit will 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 will 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 will be determined to have been active in the scallop 
fishery if it landed at least 1 lb (0.45 kg) of scallops. Landings to 
determine the best year and years active must have been from November 
1, 2004, or earlier during the March 1, 2000, through November 1, 2004, 
qualification period. The index factors for varying levels of 
participation during the

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qualification period are: 0.75 for 1 year; 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 participated 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 shall be determined by multiplying the TAC for 
IFQ scallop vessels by the vessel's contribution percentage. The IFQs 
will be rounded up to the nearest 10 lb (4.5 kg). IFQ will be issued to 
owners of CPHs, since that vessel's contribution would be included in 
the determination of IFQs as described below. IFQ associated with a CPH 
is transferable.
    The following is an example of how a vessel's IFQ will 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 60,687 lb (27,527 kg) (48,550 lb (22,023 kg) x 1.25 = 
60,687 lb (27,527 kg)). In 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 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) = 36,250 lb (16,443 kg)).
    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 will 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 can transfer IFQ on a temporary 
or permanent basis. A temporary IFQ transfer (or lease) allows one IFQ 
scallop vessel to combine IFQs to increase fishing opportunity for a 
single fishing year. A permanent IFQ transfer permanently moves the IFQ 
from one vessel to another. Since a permanent IFQ transfer requires the 
vessel to transfer the IFQ scallop permit (and any other permits) to 
the transferee, the transferring vessel is not eligible to enter into 
an agreement to transfer IFQ back to the vessel, unless the vessel 
replaced another IFQ scallop vessel. Each IFQ allocation must be 
transferred in full before it is utilized, and a vessel that uses IFQ 
in a fishing year cannot transfer its IFQ during that fishing year. An 
IFQ can be transferred only once in a fishing year. An IFQ transfer 
will 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 will 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 Limited Access Privilege 
Program which includes IFQ programs 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 management, data 
collection, and enforcement of an IFQ program. The authority and 
procedures for collection of cost recovery fees are established in this 
rule. Further details of the cost recovery program have been proposed 
in Framework 19, in which TACs would be established for LAGC scallop 
vessels. The proposed rule for Amendment 11 specified that 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. However, in developing the actual IFQ cost recovery 
provisions in Framework 19, NMFS has determined that both vessel owners 
involved in IFQ transfers may be held responsible for non-payment of 
cost recovery fees. Therefore, this final rule clarifies that the 
transferor and transferee would be held jointly and severally 
responsible for non-payment of the cost recovery fee.

Measures for the Transition Period to IFQ

    Amendment 11 recognizes that it will take 12 to 24 months, or 
longer, 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 will 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 timing issue, Amendment 11 specifies measures 
for a transition period. During the transition period, the general 
category scallop fishery will be allocated 10 percent of the total 
projected scallop catch. The resulting TAC will be divided by quarter 
(Q1: March through May; Q2: June through August; Q3: September through 
November; Q4: December through February). Framework 19 proposes the 
percentage allocation of the TAC for each quarter. Vessels that qualify 
for an IFQ scallop permit and vessels under appeal for an IFQ scallop 
permit will 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 will close 
for the remainder of the quarter. Any underage or overage of the first 
quarter will be applied to the third quarter, and any underage or 
overage of the second and/or third quarter will 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 will 
result in a TAC that is intended to be consistent with recent 
projections for scallop mortality from the general category fishery and 
will account for additional effort expected from vessels under the 
appeals process.
    Although there appears to be some confusion based on the comment 
from the Council about the level of scallop TAC to be allocated to the 
general category scallop fishery in the unlikely event that the IFQ 
program is not implemented by the start of the 2010 fishing year, 
Amendment 11 clearly states that the level should be 10 percent for the 
entire transition period, without regard to how long it takes. 
Therefore, NMFS has specified in this final rule that the 10-percent 
allocation of TAC to the general category scallop fishery, divided by 
quarter, would continue beyond the 2009 fishing year if the IFQ program 
cannot be implemented.

[[Page 20095]]

Mechanism To Allow Voluntary Sectors in the General Category Fishery

    Amendment 11 includes a mechanism to allow the owners of IFQ 
scallop vessels to form voluntary sectors that could manage their own 
fishing activity as a group. This rule outlines the procedures that 
must be used to form a sector, and the sector program requirements. The 
sector provisions include: 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 interactions between sectors; monitoring and 
enforcement provisions for sectors; a prohibition on trading of 
allocation between sectors; restrictions on vessel movement between 
sectors; and a 20-percent maximum total allocation for a single sector. 
The 400-lb (181.4-kg) possession limit is 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. 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 does not 
allow sectors to be exempt from any scallop regulations, except that 
participating vessels would not be restricted by their IFQs. Amendment 
11 specified the sector provisions but omitted some of the details 
necessary for implementation of sector provisions. Under its authority 
granted by section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 
1855(d)), NMFS has included regulations in the Sector provisions in 
Sec.  648.63 that are necessary to ensure effective implementation and 
administration of the Sector provisions, and to ensure consistency with 
some of the Sector provisions for the NE Multispecies FMP.

NGOM Scallop Management Area

    The NGOM scallop management area is defined as waters north of 
42[deg]20' N. lat. and within the Gulf of Maine Scallop Dredge 
Exemption Area specified in Sec.  648.80(a)(11). The proposed rule for 
Amendment 11 specified that the NGOM Scallop Management Area was all 
areas north of 42[deg]20' N. lat., but the Council commented that 
Amendment 11 specifies that the area is confined within the Gulf of 
Maine Scallop Dredge Exemption Area as well. The NGOM scallop 
management area is managed separately, because the Council clarified 
that the fishery there has unique characteristics. The abundance of 
scallops in the NGOM fluctuates more widely, supporting sporadic 
fisheries, and scallops are confined to small ``patchy'' areas 
throughout the area. There are times and areas within the NGOM that 
have sufficient abundance of scallops in small areas to support a 
substantial fishery and other times and areas that do not. The NGOM 
scallop management area measures 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 (90.7 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 shall have 
scallop landings deducted from its IFQ 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 cannot continue 
fishing in the NGOM once the TAC for the area has been reached.

Monitoring

    All LAGC scallop vessels are required to install and operate a 
vessel monitoring system (VMS). Operators of IFQ and NGOM scallop 
vessels are required to declare a general category trip or other 
fishing activity code, as appropriate. In addition, IFQ and NGOM 
scallop vessels are required to report scallop landings through VMS. 
This provision improves monitoring of the 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 includes the vessel trip report (VTR) serial 
number, amount of scallops on-board, the port of landing, and the 
approximate time of arrival in port, and any other information relevant 
to a general category trip as required by the Regional Administrator. 
This monitoring requirement enables 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 is 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 makes this permit consistent with the existing 
limited access scallop permit issuance date.

Other Measures

    This action clarifies that vessels that are fishing under a 
Northeast multispecies or monkfish DAS are not 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 (18.1 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.
    This action allows an IFQ scallop vessel to possess up to 100 bu 
(35.2 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 (17.6 hL) of in-shell scallops. This measure is 
included because scallop vessel owners and operators testified that it 
often takes more than 50 bu (17.6 hL) of in-shell scallops to yield 400 
lb (181.4 kg) of scallop meats. NMFS noted in the proposed rule that 
similar increases were not specified by the Council for the NGOM 
possession limits of 200 lb (90.7 kg) of shucked or 25 bu (8.8 hL) in-
shell scallops, or the 40 lb (18.1 kg) of shucked or 5 bu (1.76 hL) of 
in-shell scallops. However, given the rationale for the increased 
possession limit, NMFS noted that would be inconsistent to apply the 
increased possession limit for only one LAGC scallop permit category or 
declared fishing activity. Under its authority granted by section 
305(d) of the Magnuson-Stevens Act (16 U.S.C. Sec.  1855(d)), NMFS 
specified that vessels fishing for scallops up to 200 lb (90.7 kg) or 
25 bu (8.8 hL), or up to 40 lb (18.1 kg) or 5 bu (1.76 hL), could 
possess up to 50 bu (17.6 hL) or 10 bu (3.52 hL), respectively, seaward 
of the VMS Demarcation Line. The Council reviewed this issue in the 
proposed rule and concluded that NMFS's interpretation was correct.

[[Page 20096]]

    Finally, this final rule clarifies 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 appeals process.'' However, the 
regulations were 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 
regulations did 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 final rule clarifies 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 makes the regulations consistent with the Council's 
original intent under Amendment 4. This issue was not recommended by 
the Council as part of Amendment 11. Rather, NMFS proposed the 
clarification in the Amendment 11 proposed rule as a regulatory 
amendment. No comments, other than from the Council verifying that the 
change is appropriate, were received on this proposed measure.

Comments and Responses

    A total of 24 relevant comment letters were received from general 
category scallop vessel owners, industry representatives, and other 
interested public on Amendment 11 and the proposed rule. Four comments 
were also received from a general category vessel owner, two industry 
representatives, and the Council on the proposed rule after the close 
of the NOA comment period. All but one of these comments addressed the 
regulatory text included in the proposed rule. Comments on the proposed 
rule received after the close of the NOA comment period that addressed 
issues in Amendment 11 are reflected in the comments and responses 
below. The Council provided comments and recommendations on Amendment 
11 based on review by the Council's Scallop Oversight Committee 
(Committee) and staff through a letter signed by the Executive Director 
of the Council.

General Comments

    Comment 1: Two individuals requested an extension of the comment 
period on Amendment 11 and the proposed rule.
    Response: NMFS has a statutory requirement to approve, partially 
approve, or disapprove an amendment within 95 days from the date that 
the amendment has been officially transmitted to NMFS; otherwise, the 
amendment is automatically approved. The day by which NMFS had to make 
the decision for Amendment 11 was February 28, 2008. In order to ensure 
that NMFS considers public comments within that statutory time period, 
it must limit comment periods to 60 days for the amendment NOA and 45 
days for the proposed rule (the Magnuson-Stevens Act requires 15 to 60 
days for the proposed rule comment period, but NMFS typically allows 45 
days). If the comment period on the proposed rule ends after the NOA 
comment period, those comments received on the proposed rule but after 
the end of the NOA comment period may be excluded from NMFS's 
consideration relative to the decision on the amendment. Therefore, 
NMFS cannot extend the comment period on an amendment NOA, and prefers 
to keep the proposed rule comment period consistent with the NOA 
comment period. Moreover, given that Amendment 11 has been in 
development in the public arena by the Council for approximately 2 
years, NMFS considers the public comment period to be adequate.
    Comment 2: One commenter appeared to oppose Amendment 11, but urged 
overall management changes to protect the oceans for future 
generations. The commenter stated that ``* * * total take should be 
banned * * *'' and that ``* * * a moratorium on all catch of this 
should be in effect for 5 years for species regeneration * * *.'' The 
same individual commented that the total overall quota should be cut by 
50 percent this year, and by 10 percent each year thereafter, to let 
all species recover. The commenter provided no additional details or 
suggestions on the relevance of the comments to Amendment 11.
    Response: NMFS approved Amendment 11 because it is consistent with 
the Magnuson-Stevens Act and promotes a sustainable scallop fishery. 
Banning or reducing scallop catch as suggested by the commenter would 
be inconsistent with NMFS's responsibilities under the Magnuson-Stevens 
Act.
    Comment 3: One individual addressed several issues relative to the 
historical development of the general category fishery and the 
differences between the limited access and general category fleets. 
Another commenter stated that the continuation of a directed, full-time 
general category fishery is not consistent with the original intent of 
the general category fleet as a part-time fishery for vessels that did 
not qualify for, or did not want to participate in, the limited access 
scallop permits in 1994.
    Response: The Council recognized more recent developments in the 
general category fishery, which resulted in the development of 
Amendment 11. The general category fishery has changed since its 
inception in 1994, and the Council considered the recent growth in the 
general category scallop fishery after the control date to be its 
primary concern, regardless of whether the fishery was historically a 
directed scallop fishery or not. Amendment 4 to the FMP did not 
guarantee that general category scallop vessels would be able to 
continue fishing without controls on the number of overall 
participants. Without specific restrictions against it in any FMP 
action, including and since Amendment 4, the general category scallop 
fishery was allowed to expand beyond what some believe was the original 
intent of Amendment 4. Amendment 11 recognizes the expansion while 
providing general category fishery participants that developed a 
directed fishery the ability to continue fishing at levels consistent 
with their recent participation. Amendment 11 also prevents future 
expansion of the fishery.
    Comment 4: Several commenters stated that some parties involved in 
the development of Amendment 11 made biased decisions based on personal 
gain or agenda.
    Response: There is no evidence to suggest bias of various 
participants in the development of Amendment 11. The Council's 
decisions were based on numerous meetings open to the public and on 
information, comments, and input provided by the public.
    Comment 5: Several individuals urged no action on Amendment 11.
    Response: The analysis supporting Amendment 11 demonstrates that 
uncontrolled entry and effort levels in the general category fishery 
cannot continue. Maintaining a large number of

[[Page 20097]]

general category vessels would continue to allow catch levels by this 
component of the fishery to expand and compromise the ability to 
effectively manage the scallop fishery overall. Uncontrolled, the 
general category fishery could contribute to excess fishing mortality 
on the scallop resource. Although one of the most difficult management 
programs to implement due to the level of controversy, limited access 
and the associated measures in Amendment 11 are necessary to ensure a 
sustainable scallop fishery. Furthermore, the Council could not 
accurately establish catch limits in the future, now a requirement of 
the Magnuson-Stevens Act, without controls on the level of catch and 
effort in this segment of the fishery.
    The impacts of Amendment 11 are largely social and economic and 
will be positive in the long term. The measures will have direct 
negative economic impacts on vessel owners that do not have a 
qualifying vessel or that have fished more intensely recently than 
during the qualifying time period. However, as more fully discussed 
below, a control date announcing the possibility of a limited access 
program was published on November 1, 2004. The control date's purpose 
was to provide fishers with advance notice that they may not qualify 
for entry into, or full participation in, the general category scallop 
fishery. The intent of the control date was to deter individuals from 
unduly investing in or relying on this fishery without full and fair 
warning of the consequences of future limitation on access to the 
fishery.
    The social and economic impacts on qualified vessels and all of the 
fishery participants will be positive over time as the general category 
fishery is better integrated into the management program of the FMP, 
which strives to maximize yields through Area Rotation Program, effort 
controls, and restrictions on the general category fleet. Although 
limited access is one of the most controversial management programs to 
implement, limited access and the associated measures in Amendment 11 
are necessary to ensure a sustainable scallop fishery.
    Comment 6: Several commenters stated that Amendment 11 will 
eliminate the small vessels in the fishery and allow large vessels and 
large fishing operations to continue. Commenters urged NMFS to allow 
both small and large vessel operations to continue in the scallop 
fishery. One commenter believes that Amendment 11 will do irreparable 
harm to several small fishing businesses that do not deserve to be 
closed out and believes that many provisions in Amendment 11 may be 
inconsistent with Federal laws mandating equal treatment of permit 
holders.
    Response: The source of concern that small vessels will be 
eliminated is not clear. The Council recognized this potential impact, 
particularly with an IFQ fishery, and designed Amendment 11 consistent 
with its vision to ``* * * maintain a fleet made up of relatively small 
vessels, with possession limits to maintain the historical character of 
the fleet * * *.'' To achieve this, Amendment 11 includes provisions to 
promote the continued operations of small operations. A vessel may only 
be allocated up to 2 percent of the TAC allocated to all IFQ vessels 
combined, and an individual may own only up to 5 percent of the TAC 
allocated to all IFQ vessels. The 400-lb (181.4-kg) possession limit 
also remains under Amendment 11. These factors should ensure only 
minimal shifting to large-scale operations and that the small-vessel 
character of the fleet is maintained. While some consolidation is 
possible through the IFQ transfer program, it is unlikely, with the 
percentage allocation limits, that the fishery will evolve into a large 
vessel or large-scale operations fishery. Based on these analyses, NMFS 
determined that Amendment 11 is consistent with all National Standards, 
including National Standard 4 (which requires management measures to be 
fair and equitable, but which recognizes that fishing privileges may 
need to be allocated among fishermen), and National Standard 8 
(requiring management measures to minimize adverse economic impacts, to 
the extent practicable, on fishing communities).
    Comment 7: An individual representing fishing vessel owners from 
New Jersey commented on behalf of the fishermen that they are 
supportive of the proposed amendment and options implementing a limited 
access program with IFQs, in trips or pounds, based on a vessel's 
landings in its best year from 2000 to 2004. The group of fishermen 
supported measures in Amendment 11, except that they would prefer a 
qualification landings criterion of 5,000 lb (2,268 kg), rather than 
1,000 lb (453.6 kg), because it would allow the IFQs to be better 
distributed among a smaller number of vessels. The comment urged NMFS 
to implement IFQs as soon as possible and provided suggestions on how 
appeals could be handled to expedite the process during the transition 
period. Other suggestions on alternatives were also provided in the 
comment letter.
    Response: NMFS agrees with the comments supporting Amendment 11 
measures and approved Amendment 11. However, under the Magnuson-Stevens 
Act, NMFS cannot implement substantial measures that were not adopted 
by the Council or that are inconsistent with Amendment 11. NMFS may 
only approve, disapprove, or partially approve an amendment submitted 
by the Council. NMFS will ensure that the IFQ program is implemented as 
soon as possible. NMFS intends that the IFQ program will be implemented 
on March 1, 2009, as intended in Amendment 11.
    Comment 8: One individual commented that some scallop permit 
holders are not aware of how Amendment 11 will impact them.
    Response: Amendment 11 was developed over the course of 
approximately 2 years through a public process, including 35 meetings 
open to the public. The Council's development was well publicized by 
the Council and general and industry-focused media. Therefore, it is 
not clear how any individual with a stake in the fishery could have 
been completely unaware of Amendment 11 and its impacts. Once adopted 
by the Council, NMFS published a proposed rule and made the FSEIS 
available for public review. The FSEIS described and analyzed the 
impacts of all of the measures and alternatives and has been available 
in its final form since November 2007. In such a highly regulated 
fishery, it is a vessel owner's responsibility to understand current 
and upcoming regulations and the impacts that the proposed regulations 
may have on the vessel's ability to continue fishing.
    Comment 9: One individual commented that Amendment 11 does not 
address problems that it will create in terms of loss of jobs.
    Response: NMFS acknowledges that Amendment 11 will have some 
negative impacts, particularly on owners of vessels that do not qualify 
for the limited access general category scallop permit. However, NMFS 
concluded that the limited access program, including the use of the 
November 1, 2004, control date as a cutoff for eligibility, is a 
necessary component of a comprehensive management approach to control 
capacity and fishing mortality in the general category scallop fishery. 
NMFS considered all of the impacts relative to the sustainability of 
the scallop fishery and the FMP's objective to maximize scallop yield, 
as well as the impacts on fishery participants. The analysis supporting 
Amendment 11 demonstrates that uncontrolled entry and effort levels in 
the general category

[[Page 20098]]

fishery cannot continue. Without controls on access to the fishery, a 
large number of vessels would continue to exceed estimated catch levels 
and compromise our ability to effectively manage the scallop fishery 
overall. Also, without the constraints in Amendment 11, the general 
category fishery could contribute to excess fishing mortality on the 
scallop resource. Amendment 11 concludes that the long-term economic 
and social impacts would be negative if open access continues in the 
general category fishery. Based on these analyses, NMFS determined that 
Amendment 11 is consistent with National Standard 4, regarding fairness 
and equity, and National Standard 8, requiring measures to minimize 
adverse impacts, to the extent practicable, on fishing communities.
    Comment 10: One individual commented that the general category 
fishery has less environmental impact on the ocean than the limited 
access component of the fishery and that Amendment 11 is therefore not 
necessary.
    Response: An FSEIS, describing and analyzing the environmental 
impacts of the proposed and alternative measures, was completed for 
this action. Although reduced fishing time associated with the 
relatively low 400-lb (181.4-kg) possession limit has less 
environmental impact compared to higher catches associated with DAS 
vessels, the general category fishery as a whole contributes to the 
environmental impacts of the fishery, both in terms of effects on 
essential fish habitat (EFH) and bycatch. While it may be true that a 
general category vessel may not have as much impact on the environment 
as a DAS vessel, the commenter's argument is not valid in the context 
of Amendment 11. The effects of Amendment 11 are cumulative, in 
particular if participation and effort expand under an open access 
fishery.
    Comment 11: One individual commented that analyses in Amendment 11 
are flawed; specifically those that conclude that general category 
vessels are less efficient and can fish more days per year than limited 
access vessels, that Amendment 11 would provide benefits to the nation, 
and positive impacts on general category vessels overall.
    Response: Amendment 11 includes thorough descriptions of the 
scallop fishery and participating vessels, and analyses of the impacts. 
Analytical models predict the economic benefits and costs of all of the 
alternatives considered in Amendment 11. The analyses and models are 
based on information gathered throughout the development of Amendment 
11. These analyses were revised and perfected throughout the 
development process and were available for public review during the 
public meetings held on Amendment 11.
    Comment 12: One commenter stated that controls on the general 
category fishery were considered by the Council initially out of 
concern over a large increase in active vessels, but not as a result of 
overfishing caused by the general category fleet.
    Response: The relatively rapid and large increase in the size of 
the active general category fleet concerned both NMFS and the Council 
and resulted in the development of Amendment 11. The reason that such 
an increase was a concern is that the level of general category fishing 
continually exceeded the estimated level of fishing that was 
incorporated into annual management measures that were designed to 
achieve target fishing mortality rates. By exceeding the estimated 
catch, the unconstrained general category fishery was a threat to 
meeting the fishing mortality targets and the Magnuson-Stevens Act 
requirement to prevent overfishing. Therefore, while overfishing may 
not have been caused only by the general category fleet, the 
unconstrained expansion and effort in the fishery, combined with full 
utilization of effort and trips by the limited access fleet, 
contributed to overfishing in the years when overfishing was occurring.
    Comment 13: One individual stated that Amendment 11 allows an 
inequity to continue by maintaining more restrictive gear size 
restrictions in the Southern New England (SNE), Gulf of Maine, and 
Great South Channel sea scallop exemption areas that do not apply west 
of 72[deg]20' N. lat. In addition, the commenter stated that there are 
differences in bycatch in these areas that were not addressed in 
Amendment 11. The commenter believes that the perceived inequity will 
do serious harm to many vessels in the northern half of the general 
category scallop fishery.
    Response: The scallop dredge exemption areas referenced in the 
comment have been implemented under the Northeast Multispecies Fishery 
Management Plan (NE Multispecies FMP) to ensure that bycatch of 
regulated multispecies in the scallop dredge fishery does not 
compromise rebuilding efforts in the NE Multispecies FMP. Other than