Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 21, 22073-22087 [2010-9728]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Proposed Rules]
[Pages 22073-22087]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9728]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100107011-0168-01]
RIN 0648-AY43


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 21

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Framework Adjustment 21 
(Framework 21) to the Atlantic Sea Scallop Fishery Management Plan 
(FMP), which was developed by the New England Fishery Management 
Council (Council). Framework 21 proposes the following management 
measures for the 2010 scallop fishery: Total allowable catch (TAC); 
open area days-at-sea (DAS) and Sea Scallop Access Area (access area) 
trip allocations; DAS adjustments if an access area yellowtail flounder 
(yellowtail) TAC is caught; limited access general category (LAGC) 
access area trip allocations; management measures to minimize impacts 
of incidental take of sea turtles as required by the March 14, 2008, 
Atlantic Sea Scallop Biological Opinion (Biological Opinion); minor 
adjustments to the limited access general category (LAGC) individual 
fishing quota (IFQ) program; and minor adjustments to the industry-
funded observer program. This action also proposes changes to 
regulatory language to eliminate duplicative and outdated text, and to 
clarify provisions in the regulations that are currently unclear.

DATES: Comments must be received by 5 p.m., local time, on May 12, 
2010.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
21 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 Framework 21, the EA, and the 
Initial Regulatory Flexibility Analysis (IRFA), are available upon 
request from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Newburyport, MA 01950.

[[Page 22074]]

    You may submit comments, identified by 0648-AY43, 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: Emily Bryant.
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on Scallop 
Framework 21 Proposed Rule.''
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. 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 (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Emily Bryant, Fishery Policy Analyst, 
978-281-9244; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The Council adopted Framework 21 on January 27, 2010, and submitted 
it to NMFS on March 1, 2010, for review. Framework 21 was developed and 
adopted by the Council in order to meet the FMP's objectives to prevent 
overfishing and improve yield-per-recruit from the fishery. The FMP 
requires biennial adjustments to ensure that the measures meet the 
fishing mortality rate (F) and other goals of the FMP and achieve 
optimum yield (OY) from the scallop resource on a continuing basis. 
This rule proposes Framework 21 measures as adopted by the Council and 
described in detail here. The 2010 fishing year began on March 1, 2010, 
and Framework 21 specifies measures only for the 2010 fishing year. Due 
to late submission, measures will be implemented mid-year. Amendment 15 
to the FMP, currently under development by the Council, will identify 
and implement annual catch limits and accountability measures to bring 
the FMP into compliance with the new requirements of the re-authorized 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) for the 2011 fishing year and beyond. Framework 22 will be 
developed by the Council to set the specifications for the 2011 and 
2012 fishing years. The Council has reviewed the Framework 21 proposed 
rule regulations as drafted by NMFS and deemed them to be necessary and 
appropriate as specified in section 303(c) of the Magnuson-Stevens Act.
    The IFQ Program was implemented on March 1, 2010. As a result, 
limited access scallop vessels, limited access scallop vessels with 
LAGC IFQ permits, and LAGC IFQ vessels will receive 94.5 percent, 0.5 
percent, and 5 percent of the allocated target TAC, respectively, after 
accounting for applicable research and observer set-asides.

Acceptable Biological Catch (ABC) and TAC

    The Magnuson-Stevens Act requires that an ABC be set in each 
fishery. The ABC is defined as a level of a stock's annual catch, after 
accounting for the scientific uncertainty in the estimate of the catch 
level above which overfishing would be occurring, as well as any other 
scientific uncertainty. The Council's Scientific and Statistical 
Committee (SSC) recommended an ABC for the 2010 scallop fishery based 
on an F of 0.284, which results in a TAC of 57,803,000 lb (26,219 mt) 
after accounting for discards and incidental mortality. The calculation 
on which this ABC recommendation is based assumes that mortality in the 
scallop fishery is spatially and temporarily uniform, and that all 
exploitable scallop biomass is accessible to the fleet. However, due to 
various rotational and permanent closures, as well as area-based 
differences in F, a lower F target should be set to prevent localized 
overfishing in areas that are accessible to the fleet. As a result, the 
Council based the target TAC on an F of 0.24. This results in a TAC of 
47,278,000 lb (21,445 mt).
    After the deduction of the incidental target TAC (50,000 lb, 22.7 
mt) allocated to vessels with LAGC incidental permits, the remaining 
TAC is 47,228,000 lb (21,422 mt). This TAC is allocated into several 
components: Open area DAS; individual access area trips for limited 
access vessels; IFQ allocations, including access area allocations, to 
vessels with LAGC IFQ permits; and research and observer set-asides.

Open Area DAS Allocations

    This action would implement the following vessel-specific DAS 
allocations for the 2010 fishing year: Full-time vessels would be 
allocated 38 DAS; part-time vessels would be allocated 15 DAS; and 
occasional vessels would be allocated 3 DAS.
    The proposed measures would be implemented after the start of the 
fishing year (FY) on March 1, 2010. The regulations that are currently 
in effect for FY 2010 (i.e., March 1, 2010, through February 28, 2011) 
are inconsistent with proposed Framework 21 specifications, so it is 
possible that scallop vessels could exceed their DAS allocations during 
the interim period between March 1, 2010, and the implementation the 
proposed DAS. Therefore, this action specifies that any limited access 
open area DAS used in FY 2010 by a vessel that is above the final FY 
2010 allocation for that vessel would be deducted from the vessel's FY 
2011 DAS allocation.

Open Area DAS Adjustment if Access Area Yellowtail TAC Is Attained

    Under the Northeast Multispecies FMP, 10 percent of the Southern 
New England (SNE) yellowtail TAC is allocated to scallop vessels 
fishing in the Nantucket Lightship Access Area (NLAA). If the SNE 
yellowtail TAC is caught, the NLAA would be closed to further scallop 
fishing for the remainder of the fishing year. If a vessel has 
unutilized trip(s) after the access area is closed due to reaching the 
yellowtail TAC, it would be allocated additional open area DAS at a 
reduced rate. This trip/DAS conversion would apply only to full-time 
vessels, and to occasional or part-time vessels that have no other 
available access areas in which to take their access area trip(s). 
Unused access area trip(s) would be converted to open area DAS so that 
scallop fishing mortality that would have resulted from the access area 
trip(s) would be equivalent to the scallop fishing mortality resulting 
from the open area DAS allocation. Consequently, if the NLAA is closed 
in FY 2010, each vessel with unutilized trip(s) would be allocated a 
specific amount of additional open area DAS according to permit 
category. Full-time vessels would be allocated 5.8 DAS per unutilized 
trip in the NLAA. If part-time and occasional vessels have no available 
access areas in which to take an unused trip, they would be allocated 
4.6 DAS and 1.9 DAS, respectively. Although the Council did not specify 
this measure regarding occasional and part-time vessels in Framework 
21, based on other Framework 21 measures adopted by the Council and the 
overall objectives of the FMP, NMFS proposes this measure under the 
authority of section 305(d) of

[[Page 22075]]

the Magnuson-Stevens Act, consistent with scallop measures in previous 
years.
    If a vessel has unused compensation trip(s) from a previously 
broken trip(s) when the access area closes due to reaching the 
yellowtail TAC, it would be issued additional DAS in proportion to the 
unharvested possession limit. For example, if a full-time vessel had an 
unused 9,000-lb (4,082-kg) NLAA compensation trip (half of the full 
possession limit) at the time of a NLAA yellowtail TAC closure, the 
vessel would be allocated 2.9 DAS (half of the 5.8 DAS that would be 
allocated for a full NLAA trip). Although the Council did not specify 
this measure regarding broken trip compensation in Framework 21, based 
on other Framework 21 measures adopted by the Council and the overall 
objectives of the FMP, NMFS proposes this measure under the authority 
of section 305(d) of the Magnuson-Stevens Act, consistent with scallop 
measures in previous years.

Limited Access Trip Allocations, and Possession Limits for Scallop 
Access Areas

    In FY 2010, full-time scallop vessels would be allocated one trip 
in the NLAA, two trips in the Elephant Trunk Access Area (ETAA), and 
one trip in the Delmarva Access Area (Delmarva). A part-time scallop 
vessel would be allocated two trips, which could be taken as follows: 
Two trips in the ETAA; one trip in the ETAA and one trip in the NLAA; 
one trip in the ETAA and one trip in Delmarva; or one trip in NLAA and 
one trip in Delmarva. An occasional vessel would be allocated one trip, 
which could be taken in any one open access area. The FY 2010 limited 
access scallop possession limit for access area trips would be 18,000 
lb (8,165 kg) for full-time vessels, 14,400 lb (6,532 kg) for part-time 
vessels, and 6,000 lb (2,723 kg) for occasional vessels.
    Because the proposed measures would be implemented after March 1, 
2010, and the regulations that are currently in effect are inconsistent 
with proposed specifications, it is possible that scallop vessels could 
exceed their access area trip allocation during the interim period 
between March 1, 2010, and the implementation of final measures 
implementing Framework 21. For example, there are currently three ETAA 
trips allocated for full-time scallop vessels, but only two trips are 
proposed in this action. If a full-time vessel takes three trips into 
the ETAA during FY 2010, the vessel's FY 2011 trip allocation would be 
reduced by one trip to account for the FY 2010 overage. No access area 
trips are currently allocated for the NLAA, so no trips into that area 
could be taken until a final rule is effective for this action.
    In addition, the current FY 2010 regulations provide part-time and 
occasional vessels a higher possession limit than this action proposes, 
which would be in effect during the interim period between March 1, 
2010, and the date that final measures for Framework 21 are in effect. 
The current regulations allow for a part-time vessel and occasional 
vessel to land up to 18,000 lb (8,165 kg) and 7,500 lb (3,402 kg) per 
access area trip, respectively, but this would be reduced to 14,400 lb 
(6,532 kg) and 6,000 lb (2,722 kg) per access area trip, respectively. 
If a part-time or occasional vessel exceeds its final FY 2010 
possession limit, the overage will be deducted from that vessel's FY 
2011 possession limit allocation. Although the Council did not specify 
this measure regarding part-time and occasional vessel possession limit 
overages in Framework 21, based on other Framework 21 measures adopted 
by the Council and the overall objectives of the FMP, NMFS proposes 
this measure under the authority of section 305(d) of the Magnuson-
Stevens Act.

LAGC Measures

    1. TAC for LAGC vessels with IFQ permits. This action proposes a 
2,326,700-lb (1,055-mt) annual TAC for LAGC vessels with IFQ permits 
for FY 2010. IFQ allocations would be calculated by applying each 
vessel's IFQ contribution percentage to this TAC.
    2. TAC for Limited Access Scallop Vessels with IFQ Permits. This 
action proposes a 232,670-lb (106-mt) annual TAC for limited access 
scallop vessels with IFQ permits for FY 2010. IFQ allocations would be 
calculated by applying each vessel's IFQ contribution percentage to 
this TAC.
    3. LAGC IFQ Trip Allocations and Possession Limits for Scallop 
Access Areas. The LAGC IFQ fishery would be allocated 5 percent of the 
overall ETAA, NLAA, and Delmarva TACs, resulting in a fleet-wide trip 
allocation of 1,377 trips in the ETAA and 714 trips in both the NLAA 
and in Delmarva. The areas would close to LAGC vessels when the 
Regional Administrator determines that the allocated number of trips 
have been taken in the respective areas.
    Because this action would be implemented mid-year, and the current 
regulations are inconsistent with the proposed specifications, it is 
possible that LAGC scallop vessels could exceed the final FY 2010 
fleet-wide trip allocations in the ETAA and Delmarva. The current 
regulations allocate 1,964 and 728 trips in the ETAA and Delmarva, 
respectively. If general category vessels exceed the final number of 
allocated trips from the ETAA or Delmarva in FY 2010, the number of 
excess trips would be deducted from the LAGC IFQ fleet access area trip 
allocation in FY 2011 in the ETAA or Delmarva, respectively. Although 
the Council did not address this scenario for Delmarva in their 
Framework 21 document, based on other Framework 21 measures adopted by 
the Council and the overall objectives of the FMP, NMFS proposes this 
measure under the authority of section 305(d) of the Magnuson-Stevens 
Act.
    4. Northern Gulf of Maine (NGOM) TACS. This action proposes a 
70,000-lb (31,751-kg) annual NGOM TAC for FY 2010.
    5. Scallop Incidental Catch Target TAC. This action proposes a 
50,000-lb (22,680-kg) scallop incidental catch target TAC for FY 2010 
to account for mortality from this component of the fishery and to 
ensure that F targets are not exceeded.

Research Set-Aside (RSA) Allocations

    Two percent of each scallop access area quota and 2 percent of the 
DAS allocation are set aside as the Scallop RSA to fund scallop 
research and to compensate participating vessels through the sale of 
scallops harvested under RSA quota. The FY 2010 RSA access area 
allocations would be: NLAA--117,820 lb (53 mt); ETAA--227,060 lb (103 
mt); and Delmarva--117,700 lb (53 mt). The FY 2010 RSA DAS allocations 
would be 269 DAS.

Observer Set-Aside Allocations

    One percent of each scallop access area quota and 1 percent of the 
DAS allocation are set aside as part of the industry-funded observer 
program to help defray the cost of carrying an observer. Scallop 
vessels on an observed DAS trip are charged a reduced DAS rate, and 
scallop vessels on an observed access area trip are authorized to have 
an increased possession limit. The Regional Administrator has specified 
the following compensation rate for the start of FY 2010: Vessels 
carrying an observer will receive 180 lb (82 kg) of scallops per day, 
or part of a day, in ETAA and Delmarva, and limited access DAS vessels 
will be compensated 0.10 DAS per DAS fished during observed open area 
trips (i.e., vessels will be charged 0.90 DAS per DAS fished with an 
observer onboard). The Regional Administrator will review all available 
fishery information to determine if these rates should be adjusted in 
response to the final Framework 21 measures. The

[[Page 22076]]

2010 observer set-aside access area allocations would be: NLAA--58,910 
lb (27 mt); ETAA--113,530 lb (52 mt); and Delmarva--58,850 lb (27 mt). 
The FY 2010 DAS observer set-aside allocations would be 135 DAS.

Reasonable and Prudent Measures

    Under the Endangered Species Act, each Federal agency is required 
to ensure its actions are not likely to jeopardize the continued 
existence of any listed species or critical habitat. If a Federal 
action is likely to adversely affect a listed species, formal 
consultation is necessary. Five formal Section 7 consultations, with 
resulting Biological Opinions, have been completed on the Atlantic sea 
scallop fishery to date. All five have had the same conclusion: The 
continued authorization of the scallop fishery may adversely affect, 
but is not likely to jeopardize the continued existence of four sea 
turtles species (loggerhead, green, Kemp's ridley, and leatherback). In 
the accompanying Incidental Take Statement of the Biological Opinions, 
NMFS is required to identify and implement non-discretionary reasonable 
and prudent measures (RPMs) necessary or appropriate to minimize the 
impacts of any incidental take, as well as Terms and Conditions (T/C) 
for implementing each RPM. RPMs and T/C cannot alter the basic design, 
location, scope, duration, or timing of the action and may involve only 
minor changes.
    Five RPMs and T/Cs were identified in the most recent Biological 
Opinion, as amended February 5, 2009. Framework 21 includes management 
measures to comply with the first of these RPMs, which required a limit 
of fishing effort in the Mid-Atlantic during times when sea turtle 
distribution is expected to overlap with scallop fishing activity. The 
Biological Opinion required that this restriction on fishing effort 
must be in place no later than FY 2010 and shall be limited to a level 
that will not result in more than a minor impact on the fishery.
    For FY 2010, Framework 21 defines a ``more than minor impact'' on 
the fishery as one that would result in a 10-percent shift in baseline 
effort from the Mid-Atlantic during June 15 through October 31 into 
other areas and times of year when sea turtle interactions are less 
likely. This definition, as well as management measures to comply with 
the Biological Opinion and any future Biological Opinions, will be 
reevaluated for future fishing years in Framework 22 and subsequent 
actions.
    This action proposes to close the Delmarva access area from 
September 1, 2010, through October 31, 2010. In addition, because the 
ETAA and Delmarva are in the Mid-Atlantic, full-time limited access 
vessels would be restricted to taking two of the access area trips 
allocated to those areas during the period June 15, 2010, through 
August 31, 2010. The Council proposed this trip restriction measure 
with the intention that there would be no change in the possession 
limit for trips taken during June 15, 2010, through August 31, 2010, 
and that the broken trip provision would apply to all trips. In order 
to be consistent with the Council's rationale, and under the authority 
of section 305(d) of the Magnuson-Stevens Act, NMFS proposes that full-
time limited access vessels would be restricted to taking two of the 
access area trips allocated to those areas, or to maximum landings of 
36,000 lb (16,329 kg) from those areas (i.e., the equivalent of two 
access area trips). Compliance with the trip restriction would be 
monitored by pounds landed during June 15, 2010, through August 31, 
2010, rather than trip declarations, which could result in landings 
that are less than the allowable trip possession limit. The additional 
pounds allocated to vessels with on-board observers during trips taken 
within this time period would not count towards this 36,000-lb (16,329-
kg) limit. If a vessel fishes any part of an access area trip in the 
ETAA or Delmarva during this time period (i.e., starts a trip on June 
13, 2010, and ends the trip on June 15, 2010), landings from that trip 
would count towards the two-trip limit.
    In addition, compensation trips may not be combined during this 
time period in a way that would allow more than 36,000 lb (16,329 kg) 
to be landed from the ETAA or Delmarva from June 15, 2010, through 
August 31, 2010. For example, a full-time vessel is allocated three 
total trips into the Mid-Atlantic access areas. If that vessel declared 
and subsequently broke one of the three trips into Mid-Atlantic access 
areas prior to June 15, it would have two full trips (i.e., 36,000 lb, 
16,329 kg) available for use during the trip-restriction window. In 
that case, the vessel could only harvest up to 36,000 lb (16,329 kg) 
total from June 15, 2010, through August 31, 2010, in the Mid-Atlantic 
access areas, either by fishing its compensation trip and one full 
access area trip or by fishing two full access area trips and waiting 
to declare the compensation trip on or after November 1, 2010 (i.e., 
after the ETAA and Delmarva seasonal closures). Although the Council 
did not address specifically how compensation trips would be adjusted 
in order to comply with the Biological Opinion in its Framework 21 
document, based on other Framework 21 measures adopted by the Council 
and the overall objectives of the FMP, NMFS proposes this measure under 
the authority of section 305(d) of the Magnuson-Stevens Act.
    Part-time and occasional vessels would not be affected by this trip 
restriction because they are not allocated more than two trips during 
the entire fishing year. LAGC IFQ vessels would not be affected by this 
trip.

Adjustments to the Industry-Funded Observer Program

    The following measures were developed by the Council and are 
proposed to improve the administration of the industry-funded observer 
program.
    1. Limit the amount of observer compensation LAGC IFQ vessels can 
possess per observed trip in access areas. Currently, LAGC IFQ vessels 
are allowed to retain observer compensation in the form of a daily 
possession limit, as established by the Regional Administrator. In FY 
2009, it was apparent that some LAGC vessels were extending the length 
of their observed trips into access areas in order to land additional 
scallops. This resulted in observer compensation in excess of the 
amount necessary to pay for the observer costs for these trips. This 
was one factor that resulted in the full harvest of the observer set-
aside in FY 2009.
    To account for this unintended result, this action proposes that 
the possession limit to defray the cost of an observer for LAGC IFQ 
vessels fishing in access areas would be specified by trip, not by 
fishing day. For example, if the limited access vessel daily possession 
limit to defray the cost of an observer is 180 lb (82 kg), the LAGC IFQ 
possession limit would be 180 lb (82 kg) per observed trip. In this 
scenario, an LAGC IFQ vessel with an onboard observer would be able to 
land up to 580 lb (263 kg), the sum of its regular possession limit of 
400 lb (181 kg) plus the additional observer possession limit increase, 
during an access area trip, regardless of trip length.
    2. Providers may charge a prorated fee for vessels fishing in 
access areas if the observer set-aside has been fully harvested. The 
current regulations require providers to charge a vessel owner for 
observer fees based on a calendar day, not per hour, to coincide with 
the daily rate of observer set-aside compensation. The regulation 
omitted regulatory text that would require the provider to adjust the 
fee if the set-aside is exhausted. Therefore, when the set-

[[Page 22077]]

asides were exhausted in FY 2009, and vessel owners continued to pay 
for observers, the fee was based on a full calendar day instead of an 
hourly prorated fee. In some cases the charges were considered 
excessive, but were required by the regulations.
    This proposed measure would specify that if the observer set-aside 
for a given FY is fully exhausted prior to the end of the FY, service 
providers must prorate their fees on an hourly basis, similar to how 
observer fees are charged for vessels fishing on open area scallop 
trips.
    Although the Council did not specify this measure regarding 
observer prorated fees in Framework 21, it is a necessary component of 
the observer set-aside program. Therefore, based on the overall 
objectives of the FMP, NMFS proposes this measure under the authority 
of section 305(d) of the Magnuson-Stevens Act.

Adjustments to the IFQ Program

    This action proposes a measure that would allow the owner of an IFQ 
vessel or IFQ confirmation of permit history (CPH) to lease a portion 
of its IFQ to or from another IFQ vessel during a single FY. The 
current regulations allow leasing only of an entire IFQ; under the 
proposed measure a vessel owner could lease some or all of an IFQ 
allocation. This alternative would only apply to leases, and not to 
permanent transfers, which would still require a vessel's entire IFQ 
allocation to be transferred permanently. Vessel owners intending to 
lease some or all of their IFQ allocation to another IFQ vessel(s) may 
not fish any of their IFQ allocation prior to the lease transaction.
    This action would require partial IFQ leases to be at least 100 lb 
(45 kg). If a vessel owner has previously leased a portion of the 
vessel's IFQ, and the remaining allocation is less than 100 lb (45 kg), 
the remaining IFQ could be transferred in full to another vessel. 
Although the Council did not specify this measure regarding IFQ 
balances of less than 100 lb as the result of a previous lease, based 
on other Framework 21 measures adopted by the Council and the overall 
objectives of the FMP, NMFS proposes this measure under the authority 
of section 305(d) of the Magnuson-Stevens Act.
    NMFS is also proposing several revisions to the regulatory text 
that were duplicative and unnecessary, outdated, unclear, or otherwise 
could be improved through revision. These were not recommended by the 
Council, but are necessary for the effective implementation and 
enforcement of the regulations. For example, the current vessel 
monitoring system (VMS) regulations that were included through 
Amendment 11 and pertain to required submission of pre-landing 
notification forms are currently difficult to distinguish from other 
VMS catch report requirements in the regulations. NMFS proposes to 
revise the regulations to clarify the regulations intended by Amendment 
11 and to provide more ease in locating these requirements in Sec.  
648.10. In addition, this action proposes several revisions to the 
regulatory text that update the FYs when access areas will be open and 
rotational closed areas will be in effect, according to the current 
access area rotational management schedule. This action also proposes 
revisions that would remove text pertaining to regulations from prior 
fishing years that are no longer in effect. NMFS makes these changes 
consistent with section 305(d) of the Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that the proposed rule is 
consistent with the FMP, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    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. A summary of 
the analysis follows.

Statement of Objective and Need

    This action proposes the FY 2010 management measures and 
specifications for the Atlantic sea scallop fishery. A description of 
the action, why it is being considered, and the legal basis for this 
action are contained in the preamble of this proposed rule and are not 
repeated here.

Description and Estimate of Number of Small Entities to Which the Rule 
Would Apply

    The vessels in the Atlantic sea scallop fishery are all considered 
small business entities and, therefore, there is no disproportionate 
impact on large and small entities. All of the vessels grossed less 
than $3 million according to dealer data for the FYs 1994 through 2008. 
According to this information, annual total revenue, including revenue 
from species other than scallops, has averaged over $1 million per 
full-time limited access vessel since FY 2004. According to FY 2008 
dealer data, total revenue per vessel, including revenue from species 
other than scallops, averaged $1,079,722 per full-time limited access 
vessel and $135,378 per general category vessel.
    The proposed regulations would affect all Federal scallop vessels. 
The Framework 21 document provides extensive information on the number 
and size of vessels and small businesses that would be affected by the 
proposed regulations, by port and state. In FY 2008 (the most recent 
complete FY for which data are complete), there were 321 full-time, 34 
part-time, and 1 occasional limited access scallop permits issued, and 
459 general category permits issued to vessels in the LAGC fishery. 
Amendment 11 to the FMP established a limited access fishery for 
general category vessels and the appeals and limited access permit 
process for the LAGC fleet was completed in January 2010. There are now 
329 vessels that qualified for IFQ permits, 40 limited access vessels 
that qualified for IFQ permits, 107 vessels that qualified for NGOM 
permits, and 288 vessels that qualified for incidental permits.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains no new collection-of-information, reporting, 
and recordkeeping requirements. It does not duplicate, overlap, or 
conflict with any other Federal law.

Economic Impacts and Proposed Measures and Alternatives

Summary of the Aggregate Economic Impacts

    A detailed analysis of the economic impacts of the proposed actions 
may be found in Section 5.4 of the Framework 21 document. All the 
values for economic impacts discussed below are presented in terms of 
2008 dollars and the projected values presented use a 7-percent 
discount rate to compare results to current values.
    If approved, Framework 21 will be implemented after the start of FY 
2010 (March 1, 2010). As a result, the current management measures and 
allocations are extended into FY 2010, including trip allocations for 
access areas and an open area allocation of 42 DAS per full-time 
limited access vessel, 17 per part-time vessel, and 3 per occasional 
vessel.
    The aggregate economic impacts of the proposed measures, including 
the open area DAS and access area allocations for limited access 
vessels and TAC for the LAGC fishery, are expected to be slightly 
negative in FY

[[Page 22078]]

2010 compared to the No Action alternative and compared to the average 
revenue in FYs 2008 and 2009. The impact of five FY 2010 quota 
allocation alternatives were evaluated by Framework 21: Two 
alternatives proposing a new closure in the Great South Channel with 
different fishing mortality rates (F=0.18 and F=0.20), two alternatives 
with no new closure with different fishing mortality rates (F=0.20 and 
F=0.24), and the No Action alternative, which results in an F=0.25. The 
alternative with no new closure and F=0.24 will be referred to below as 
the proposed action. The non-selected alternatives will be referred to 
as Closure (0.18), Closure (0.20), No Closure (0.20), and No Action, 
respectively. Under all alternatives, the total number of access area 
trips allocated to limited access vessels remain the same, although the 
No Action alternative would allocate those trips to less productive 
areas than all other alternatives.

Economic Impacts of the Proposed Measures and Alternatives

1. DAS Allocations and Access Area Trip Allocations--Aggregate Impacts
    The proposed open area DAS allocations are expected to prevent 
overfishing in open areas. The proposed action would implement the 
following vessel-specific DAS allocations for FY 2010: Full-time 
vessels would be allocated 38 DAS; part-time vessels would be allocated 
15 DAS; and occasional vessels would receive 3 DAS. The analysis of the 
fleet-wide aggregate economic impacts indicate that the proposed action 
will have slightly negative economic impacts on the revenues and 
profits of the scallop vessels in FY 2010, compared with the No Action 
alternative and compared to the levels in FYs 2008 and 2009. Because 
the proposed action will reduce the open area DAS allocations from 42 
DAS to 38 DAS for each full-time limited access vessel (with similar 
reductions, proportionally for part-time and occasional vessels), the 
total landings will decline by 6 percent in FY 2010, from 50 million 
under No Action to 47 million under the proposed action, reducing 2010 
revenues for an average vessel by about 2 percent. In comparison to FYs 
2008 and 2009 average, the proposed action will result in a 14-percent 
decrease in landings, representing a 2.3-percent decrease in revenues. 
The percentage decline in revenues is less than the percentage decline 
in landings because the price per pound of scallops is estimated to be 
higher for the proposed action ($7.27 per pound) compared with No 
Action ($7.07 per pound), the price in FY 2008 ($6.92), and the price 
in FY 2009 ($6.45).
    Although the proposed action will produce slightly less revenue in 
FY 2010 compared to FYs 2008 and 2009, the proposed action, as well as 
the Closure (0.18), Closure (0.20), and No Closure (0.20) alternatives, 
will result in higher revenues for full-time limited access vessels 
from FY 2011 through FY 2016.
    Over the short term, from FY 2010 through FY 2016, the proposed 
action's cumulative revenues are estimated to be slightly lower than 
the No Action revenues by $9 million, representing a 0.3-percent 
decrease. However, the No Action alternative does not prevent 
overfishing and would result in suboptimal allocation of open area DAS 
and access area trips. Under the No Action alternative, there is no 
access into the NLAA, but the biomass in that area can support one 
trip. In addition, under No Action, open area DAS allocations would be 
higher than sustainable levels because there is no adjustment to 
reflect the present conditions of biomass in those areas. For these 
reasons, the levels of exploitable biomass for the No Action 
alternative will be less than the levels for the proposed action and 
all the other alternatives. Consequently, No Action would have long-
term negative impacts on the scallop stock biomass, landings, revenues, 
and economic benefits of the scallop fishery. Over the long term (FYs 
2010 to 2023), the proposed action will generate $53 million more in 
total revenues than the No Action alternative.
    The Closure (0.20) and Closure (0.18) alternatives allocate higher 
DAS (51 and 42 DAS, respectively) to full-time vessels than the 
proposed alternative and would have positive economic impacts on 
scallop vessels in FY 2010. However, these alternatives would have 
negative biological impacts because the new rotational area closure 
resulted in a higher area-swept estimate in the Mid-Atlantic open area, 
which may have impacts on non-target species in those areas and 
increase the possibility of localized overfishing in open areas. If 
these negative biological impacts were to occur as a result of the 
Closure (0.18) or Closure (0.20) alternatives, more stringent measures 
would have to be taken in the future to reduce effort, with potentially 
negative impacts on the scallop vessels. Therefore, these alternatives 
are not expected to generate higher benefits for the scallop vessels in 
the long term compared to the proposed action.
    The revenue for an average full-time limited access vessel is 
estimated to be $931,799 for the proposed action, which ranges from 
$108,152 to $18,661 lower than the Closure (0.18), Closure (0.20), and 
No Action alternatives. However, because the proposed action will 
allocate fewer open area DAS in FY 2010 compared to these three 
alternatives, and also will allocate access area trips in more 
productive areas compared to No Action, the trip costs would be 
comparatively reduced. The average trip costs per vessel ($111,621) 
would decline by a range of 20 to 9 percent in comparison to the higher 
DAS alternatives. The allowance for carry-over DAS is another factor 
that could also mitigate some of the negative impacts of the proposed 
action on vessel revenues and profits in FY 2010. Vessels may save up 
to 10 of their open area DAS in FY 2009 to mitigate the slightly 
smaller FY 2010 DAS allocations compared to No Action, Closure (0.18), 
or Closure (0.20) alternatives.
    Although the No Closure (0.20) alternative would produce the 
greatest benefits over the long term, it would result in a 13-percent 
and 11-percent loss in FY 2010 average annual revenue compared to No 
Action and the proposed action, respectively. The proposed action would 
result in average FY 2010 revenues that are $109,563 greater than the 
No Closure (0.20) alternative. Although the proposed action will have 
marginally smaller positive long-term economic impacts in comparison to 
the No Closure (0.20) alternative, Framework 21 is only addressing the 
allocations for FY 2010 and future management measures in FY 2011 and 
beyond will affect these forecasts.
    Under all alternatives, including No Action, the LAGC fleet is 
allocated 5 percent of the TAC. This means the relative comparison of 
the proposed action to the other alternatives is similar to the limited 
access fleet. For example, similar to full-time limited access vessels, 
the revenues of LAGC vessels are expected to be 2 percent lower under 
the proposed action than under No Action in FY 2010.
    Compared to FYs 2008 and 2009, however, the revenues of LAGC 
vessels will decline by a larger percentage due to the implementation 
of the IFQ program, as required by Amendment 11 to the FMP. The total 
scallop revenue for the general category fishery was estimated to be 
$30.8 million for FY 2008 and $29.6 million for FY 2009, averaging 
$30.2 million across both FYs. During FYs 2008 and 2009, the LAGC 
fishery was under a transition period while the final decisions for IFQ 
permit

[[Page 22079]]

appeals were determined. The transition period allocated 10 percent of 
the TAC to LAGC IFQ vessels, as well as vessels that were granted a 
letter of authorization to fish for scallops while their IFQ permit 
applications were under appeal. FY 2010 marks the first year that the 
IFQ program is in effect, and LAGC IFQ vessels are now allocated 5 
percent of the TAC. As a result, revenues for LAGC vessels under the 
proposed action are projected to be $17 million, representing a 43-
percent decline. The short- and long-term economic impacts of 
allocating 5 percent of the total TAC to LAGC vessels were analyzed in 
Amendment 11 to the FMP. The economic impacts of the proposed TAC are 
within the range of the impacts previously analyzed in these documents.
    The proposed action will have positive economic impacts for the 
LAGC fishery starting in FY 2011, as the LAGC TAC is expected to 
increase compared to the FY 2010 allocation.
2. Open Area DAS Adjustment if Access Area Yellowtail TAC Is Attained
    The proposed action maintains a provision that allocates additional 
open area DAS if an access area closes due to the attainment of the 
scallop yellowtail TAC. This would continue the current measures with 
the same impacts as the No Action alternative. This conversion will 
help to minimize lost catch and revenue if the NLAA closes due to the 
full harvest of yellowtail quota. As a result, this measure will have 
positive economic impacts on scallop vessels, although the scallop 
pounds per trip could be lower than the allocated pounds for NLAA trips 
due to proration to assure that the measure is conservation neutral. 
There were no alternatives considered that would generate higher 
economic benefits for the participants of the scallop fishery.
3. Research and Observer Set-Aside TACs
    The proposed action would continue to set aside 2 percent of the 
scallop TAC for the RSA program and 1 percent of the scallop TAC for 
the industry-funded observer set-aside program. These set-asides are 
expected to have indirect economic benefits for the scallop fishery by 
improving scallop information and data made possible by research and 
the observer program. Although allocating higher set-aside percentages 
could result in higher indirect benefits to the scallop fleet by 
increasing available funds for research and the observer program, these 
set-aside increases could decrease direct economic benefits to the 
fishery by reducing revenues, and no such alternatives were considered.
4. Access Area Management
    The proposed action and the alternatives include access into both 
ETAA and Delmarva for both the limited access DAS and LAGC fleets. By 
itself, allocations for these highly productive areas in FY 2010 will 
have positive economic impacts on both limited access and LAGC vessels. 
The only alternative that would generate higher benefits than the 
proposed action is the No Action alternative, which would allocate 
three trips to ETAA. This number of trips is higher than the projected 
biomass in that area can support. As a result, the No Action 
alternative would have negative impacts on the biomass and yield from 
the ETAA after FY 2010. As experienced in the Hudson Canyon Access Area 
in FY 2005, excessive harvest in an access area can lead to rapid, 
almost immediate, depletion of the area's resource, leading to poor 
catch rates and elevated fishing costs.
    The proposed action and alternatives considered, with the exception 
of No Action, all would allocate one access area trip into the NLAA. 
The biomass in this area is estimated to be high and trip costs will be 
lower because the same amount of scallops could be landed in a shorter 
time frame compared to areas with lower scallop abundance. Providing 
allocations to high abundance areas will help increase yield, landings, 
and revenues from the fishery both in the short and long term, 
benefiting both limited access and LAGC vessels that participate in the 
scallop fishery. Because there is no trip allocation to the NLAA area 
under No Action, economic benefits would be lower both in the short and 
long term compared to the proposed alternative, and other alternatives 
considered.
5. NGOM Hard TAC
    The proposed action specifies a 70,000-lb (31,751-kg) TAC for the 
NGOM. This is the same TAC as the No Action alternative and all other 
alternatives. The FMP specifies that the NGOM TAC should be based on 
historic landings levels until the stock in the NGOM can be assessed 
formally, and there has been no stock assessment to date. The NGOM TAC 
has been specified at this level since FY 2008, and the fishery has 
harvested less than 15 percent of the TAC in each of those years, 
therefore, the TAC has no negative economic impacts.
6. Allow Leasing of Partial LAGC IFQ Allocations
    LAGC IFQ allocations can only be leased in their entirety under 
current regulations. The proposed action would allow LAGC IFQ vessels 
owners (or IFQ CPH owners) to lease some or all of their IFQ 
allocations to other vessels during a given FY. The proposed action 
would provide increased flexibility for LAGC IFQ vessel owners. As a 
result, this measure would have positive impacts on vessel revenues and 
profits. The only alternative is the No Action alternative, which would 
require that vessel owners lease entire unused quota allocations.
7. Reasonable and Prudent Measures
    The proposed action would close the Delmarva access area in 
September and October and would limit the maximum number of trips (two 
per full-time vessel) that can be taken in the Mid-Atlantic areas from 
June 15 to August 31. Because fishing effort is shifted to a relatively 
less productive season, total fleet trip costs are expected to increase 
slightly (i.e., less than 0.2 percent) due to reduced scallop catch 
rates. Since there is no change in the scallop possession limit, the 
trips that are shifted from this season are expected to be taken 
outside of this time period without a loss in total revenue, as long as 
this measure does not, as expected, have a negative impact on prices. 
The closure in the Delmarva access area from September 1-October 31 
applies to all scallop vessels, including LAGC IFQ vessels. This 
measure is not expected to affect the LAGC fleet specifically, since 
the access area trips for this fleet are allocated as a fleet-wide 
number of trips, and tend to be used outside of the closure period. No 
other alternatives considered would generate higher benefits for the 
scallop vessels, other than the No Action alternative. The No Action 
alternative, however, would not comply with the RPMs specified in the 
Biological Opinion. The proposed action is expected to minimize the 
effort shift from the given time period compared to the other action 
alternatives considered by the Council; thus, there are no other 
alternatives that would generate higher benefits for the scallop 
vessels.
8. Limit the Amount of Observer Compensation for LAGC Vessels in Access 
Areas
    The proposed action includes a provision to limit the total amount 
of observer compensation LAGC IFQ vessels can receive on observed trips 
in access areas to the equivalent of 1 day's compensation, regardless 
of trip length.

[[Page 22080]]

The No Action alternative would continue to provide LAGC IFQ vessels 
observer compensation on a daily basis and would generate higher 
benefits for the scallop vessels while the observer set-aside is 
available. This, however, may exhaust the set-aside TAC before the end 
of the FY. The current LAGC IFQ access area observer compensation 
contributed to fully harvesting the FY 2009 observer set-aside earlier 
than anticipated. This had negative impacts fleet-wide because vessels 
had to provide full payment to observers without available observer 
compensation after the observer set-aside was exhausted, with negative 
impacts that were not equally distributed across the fleet.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 22, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority:  16 U.S.C. 1801 et seq.

    2. In Sec.  648.10, revise paragraph (f)(4) to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (f) * * *
    (4) Catch reports. (i) All scallop vessels fishing in the Sea 
Scallop Area Access Program as described in Sec.  648.60 are required 
to submit daily reports, through VMS, of scallops kept and yellowtail 
flounder caught (including discarded yellowtail flounder) on each 
Access Area trip. The VMS catch reporting requirements are specified in 
Sec.  648.60(a)(9).
    (ii) Pre-landing notification forms for IFQ and NGOM vessels. Using 
the Scallop Pre-Landing Notification form, a vessel issued an IFQ or 
NGOM scallop permit must report through VMS the amount of any scallops 
kept on each trip declared as a scallop trip, including declared 
scallop trips where no scallops were landed. In addition, vessels with 
an IFQ or NGOM permit must submit a Scallop Pre-Landing Notification 
form on trips that are not declared as scallop trips, but on which 
scallops are kept incidentally. A limited access vessel that also holds 
an IFQ or NGOM permit must submit the Scallop Pre-Landing Notification 
form only when fishing under the provisions of the vessel's IFQ or NGOM 
permit. VMS Scallop Pre-Landing Notification forms must be submitted no 
less than 6 hr prior to crossing the VMS Demarcation Line on the way 
back to port, and must include the amount of scallop meats or bushels 
to be landed, the estimated time of arrival in port, the port at which 
the scallops will be landed, and the VTR serial number recorded from 
that trip's VTR. If the scallop harvest ends less than 6 hr prior to 
landing, then the Scallop Pre-Landing Notification form must be 
submitted immediately upon leaving the fishing grounds.
* * * * *
    3. In Sec.  648.11, revise paragraph (g)(5)(i)(A) to read as 
follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (g) * * *
    (5) * * *
    (i) * * *
    (A) Access Area Trips. (1) For purposes of determining the daily 
rate for an observed scallop trip in a Sea Scallop Access Area when the 
observer set-aside specified in Sec.  648.60(d)(1) has not been fully 
utilized, a service provider shall charge a vessel owner from the time 
an observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, or any portion of a 24-hr 
period, regardless of the calendar day. For example, if a vessel with 
an observer departs on July 1 at 10 pm and lands on July 3 at 1 am, the 
time at sea equals 27 hr, which would equate to 2 full ``days.''
    (2) For purposes of determining the daily rate for an observed 
scallop trip in a Sea Scallop Access Area when the industry-funded 
observer set-asides have been fully utilized, a service provider shall 
charge a vessel owner from the time an observer boards a vessel until 
the vessel disembarks (dock to dock), where ``day'' is defined as a 24-
hr period, and portions of the other days would be pro-rated at an 
hourly charge (taking the daily rate divided by 24). For example, if a 
vessel with an observer departs on July 1 at 10 pm and lands on July 3 
at 1 am, the time spent at sea equals 27 hr, so the provider may charge 
1 day and 3 hr.
* * * * *
    4. In Sec.  648.14, paragraphs (i)(2)(vi)(F) and G) are added, 
paragraph (i)(4)(i)(A) is revised, and paragraph (i)(4)(iii)(F) is 
removed and reserved to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (i) * * *
    (2) * * *
    (vi) * * *
    (F) Declare more than two access area trips into the Delmarva and 
Elephant Trunk Access Areas, as specified in Sec.  648.59(a) and (e), 
during the period June 15 through August 31, unless at least one trip 
is terminated early and trips in excess of two are declared 
compensation trips authorized under Sec.  648.60(c); and
    (G) Vessels do not fish for, possess, or retain more than a 
combined total of 36,000 lb (16,329 kg) of scallops from the Delmarva 
and Elephant Trunk Access Areas specified in Sec.  648.59(a) and (e) 
during the period June 15 through August 31. This restriction does not 
include the additional possession allowance to defray the cost of 
carrying an observer, as specified in Sec.  648.60(d), that occur 
during observed trips between June 15 through August 31.
* * * * *
    (4) * * *
    (i) Possession and landing. (A) Fish for or land per trip, or 
possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 
bu (17.6 hL) of in-shell scallops shoreward of the VMS Demarcation 
Line, unless the vessel is participating in the Area Access Program 
specified in Sec.  648.60; is carrying an observer as specified in 
Sec.  648.11; and, an increase in the possession limit is authorized by 
the Regional Administrator and not exceeded by the vessel, as specified 
in Sec. Sec.  648.52(g) and 648.60(d)(2).
* * * * *
    5. In Sec.  648.52, paragraphs (a) and (f) are revised, and 
paragraph (g) is added to read as follows:


Sec.  648.52  Possession and landing limits.

    (a) A vessel issued an IFQ scallop permit that is declared into the 
IFQ scallop fishery as specified in Sec.  648.10(b), unless as 
specified in paragraph (g) of this section or exempted under the state 
waters exemption program described in Sec.  648.54, may not possess or 
land, per trip, more than 400 lb (181.4 kg) of shucked scallops, or 
possess more than 50 bu (17.6 hL) of in-shell scallops shoreward of the 
VMS Demarcation Line. Such a vessel may land scallops only once in any 
calendar day. Such a vessel may possess up to 100 bu (35.2 hl) of in-
shell scallops seaward of the

[[Page 22081]]

VMS demarcation line on a properly declared IFQ scallop trip.
* * * * *
    (f) A vessel that is declared into the Sea Scallop Area Access 
Program as described in Sec.  648.60, may not possess more than 50 bu 
(17.6 hL) of in-shell scallops outside of the Access Areas described in 
Sec.  648.59(a) through (e).
    (g) Possession limit to defray the cost of observers in Access 
Areas for LAGC IFQ vessels. An LAGC IFQ vessel with an observer on 
board may retain, per observed trip, up to 1 day's allowance of the 
possession limit allocated to limited access vessels, as established by 
the Regional Administrator in accordance with Sec.  648.60(d), provided 
the observer set-aside specified in Sec.  648.60(d)(1) has not been 
fully utilized. For example, if the limited access vessel daily 
possession limit to defray the cost of an observer is 180 lb (82 kg), 
the LAGC IFQ possession limit to defray the cost of an observer would 
be 180 lb (82 kg) per trip, regardless of trip length.
    6. In Sec.  648.53, paragraphs (a)(1), (a)(4)(i), (a)(5), (a)(9), 
(b)(1), (b)(4), (b)(5)(i), (g)(1), (g)(2), (h)(5)(i), (h)(5)(iii), 
(h)(5)(iv)(A), (h)(5)(iv)(B), and (h)(5)(iv)(C) are revised; the 
introductory text in paragraph (h)(2) is revised; and paragraphs 
(a)(2), (a)(4)(ii), (a)(7), (a)(8), and (b)(5)(ii) are removed and 
reserved to read as follows.


Sec.  648.53  Target total allowable catch, DAS allocations, and 
Individual Fishing Quotas.

    (a) * * *
    (1) 2010 fishing year target TAC for scallop fishery. The 2010 
fishing year TAC is 21,445 mt, 94.5 percent of which shall be allocated 
to the limited access fishery, 5 percent of which shall be allocated to 
IFQ scallop vessels, and 0.5 percent of which shall be issued to 
limited access vessels also issued IFQ scallop permits and that are 
fishing under general category regulations. These percentages reflect 
the TAC allocations prior to the deduction of set-asides for observer 
coverage and research.
* * * * *
    (4) * * *
    (i) 2010 fishing year. The target TAC for limited access vessels 
fishing under the scallop DAS program specified in this section is 
10,330 mt, including open area DAS for observer and research set-aside 
TACs.
* * * * *
    (5) TACs for IFQ scallop vessels. The TACs specified in this 
paragraph (a)(5) have accounted for the access area set-asides 
specified in Sec.  648.60(d) and (e).
    (i) IFQ vessels without a limited access scallop permit. For the 
2010 fishing year, such vessels are allocated 1,055 mt, which includes 
both the open area TAC (547 mt) and the access area TACs specified in 
Sec.  648.59.
    (ii) IFQ scallop vessels with a limited access scallop permit. Such 
vessels that are fishing under an IFQ scallop permit outside of the 
scallop DAS and Area Access programs as a limited access vessel shall 
be allocated 0.5 percent of the annual target TAC specified in 
accordance with this paragraph (a). For the 2010 fishing year, the IFQ 
TAC for IFQ vessels with a limited access scallop permit is 106 mt.
* * * * *
    (9) Scallop incidental catch target TAC. The 2010 incidental catch 
target TAC for vessels with incidental catch scallop permits is 50,000 
lb (22,680 kg).
    (b) * * *
    (1) Total DAS to be used in all areas other than those specified in 
Sec.  648.59, shall be specified through the framework adjustment 
process as specified in Sec.  648.55, using the target TAC for open 
areas specified in paragraph (a) of this section and estimated catch 
per unit effort. The total DAS for 2010 are 13,324. After accounting 
for applicable set-asides, the total DAS allocated the limited access 
fishery are 12,920.
* * * * *
    (4) Each vessel qualifying for one of the three DAS categories 
specified in the table in this paragraph (b)(4) (Full-time, Part-time, 
or Occasional) shall be allocated the maximum number of DAS for each 
fishing year it may participate in the open area limited access scallop 
fishery, according to its category. A vessel whose owner/operator has 
declared out of the scallop fishery, pursuant to the provisions of 
Sec.  648.10, or that has used up its maximum allocated DAS, may leave 
port without being assessed a DAS, as long as it has made an 
appropriate VMS declaration, as specified in Sec.  648.10(f), does not 
fish for or land per trip, or possess at any time, more than 400 lb 
(181.4 kg) of shucked or 50 bu (17.6 hL) of in-shell scallops, and 
complies with all other requirements of this part. The annual open area 
DAS allocations for each category of vessel for the fishing years 
indicated, after deducting DAS for observer and research DAS set-
asides, are as follows:

------------------------------------------------------------------------
                          DAS category                             2010
------------------------------------------------------------------------
Full-time......................................................       38
Part-time......................................................       15
Occasional.....................................................        3
------------------------------------------------------------------------

     (i) A limited access vessel that lawfully uses more open area DAS 
in the 2010 fishing year than specified in this section shall have the 
DAS used in excess of the 2010 allocation specified in this paragraph 
(b)(4) deducted from its 2011 open area DAS allocation.
    (ii) [Reserved]
    (5) * * *
    (i) When the Nantucket Lightship Access Area closes due to the 
yellowtail flounder bycatch TAC, for each remaining complete trip in 
the Nantucket Lightship Access Area, a full-time vessel may fish an 
additional 5.8 DAS in open areas, a part-time vessel may fish an 
additional 4.6 DAS in open areas, and an occasional vessel may fish an 
additional 1.9 DAS during the same fishing year. A complete trip is 
deemed to be a trip that is not subject to a reduced possession limit 
under the broken trip provision in Sec.  648.60(c). If a vessel has 
unused broken trip compensation trip(s), as specified in Sec.  
648.60(c), when the Nantucket Lightship Access Area closes due to the 
yellowtail flounder bycatch TAC, it will be issued additional DAS in 
proportion to the unharvested possession limit. For example, if a full-
time vessel had an unused 9,000-lb (4,082-kg) Nantucket Lightship 
Access Area compensation trip (half of the possession limit) at the 
time of a Nantucket Lightship Access Area yellowtail flounder bycatch 
TAC closure, the vessel will be allocated 2.9 DAS (half of 5.8 DAS).
* * * * *
    (g) * * *
    (1) DAS set-aside for observer coverage. As specified in paragraph 
(b)(2) of this section, to help defray the cost of carrying an 
observer, 1 percent of the total DAS specified in paragraph (b)(1) of 
this section shall be set aside from the total DAS available for 
allocation, to be used by vessels that are assigned to take an at-sea 
observer on a trip other than an Area Access Program trip. The DAS set-
aside for observer coverage is 135 DAS for the 2010 fishing year. 
Vessels carrying an observer shall be compensated with reduced DAS 
accrual rates for each trip on which the vessel carries an observer. 
For each DAS that a vessel fishes for scallops with an observer on 
board, the DAS shall be charged at a reduced rate, based on an 
adjustment factor determined by the Regional Administrator on an annual 
basis, dependent on the cost of observers, catch rates, and amount of 
available DAS set-aside. The Regional Administrator shall notify vessel 
owners of the cost of observers and the DAS adjustment factor through a 
permit holder letter issued prior to the start of each fishing year. 
This DAS adjustment factor may also be changed during the

[[Page 22082]]

fishing year if fishery conditions warrant such a change. The number of 
DAS that are deducted from each trip based on the adjustment factor 
shall be deducted from the observer DAS set-aside amount in the 
applicable fishing year. Utilization of the DAS set-aside shall be on a 
first-come, first-served basis. When the DAS set-aside for observer 
coverage has been utilized, vessel owners shall be notified that no 
additional DAS remain available to offset the cost of carrying 
observers. The obligation to carry and pay for an observer shall not be 
waived due to the absence of set-aside DAS allocations.
    (2) DAS set-aside for research. As specified in paragraph (b)(2) of 
this section, to help support the activities of vessels participating 
in certain research, as specified in Sec.  648.56, the DAS set-aside 
for research is 269 DAS for the 2010 fishing year.
    (h) * * *
    (2) Calculation of IFQ. The total allowable catch allocated to IFQ 
scallop vessels, and the TAC allocated to limited access scallop 
vessels issued IFQ scallop permits, as specified in paragraphs 
(a)(5)(i) and (ii) of this section, shall be used to determine the IFQ 
of each vessel issued an IFQ scallop permit. Each fishing year, the 
Regional Administrator shall provide the owner of a vessel issued an 
IFQ scallop permit issued pursuant to Sec.  648.4(a)(2)(ii) with the 
scallop IFQ for the vessel for the upcoming fishing year.
* * * * *
    (5) * * *
    (i) Temporary IFQ transfers. Subject to the restrictions in 
paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop 
vessel not issued a limited access scallop permit may temporarily 
transfer its entire IFQ allocation, or a portion of its IFQ allocation, 
to another IFQ scallop vessel. Temporary IFQ transfers shall be 
effective only for the fishing year in which the temporary transfer is 
requested and processed. IFQ can be transferred only once during a 
given fishing year. Temporary IFQ transfers must be in the amount of at 
least 100 lb (45 kg), or the entire allocation may be transferred to 
another vessel. If a vessel has previously transferred a portion of its 
IFQ and the remaining allocation is less than 100 lb (45 kg), the 
remaining IFQ may be transferred in full to another vessel. The 
Regional Administrator has final approval authority for all temporary 
IFQ transfer requests.
* * * * *
    (iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel 
not issued a limited access scallop permit that has fished under its 
IFQ in a fishing year may not transfer that vessel's IFQ to another IFQ 
scallop vessel in the same fishing year. IFQ can be transferred only 
once during a given fishing year. A transfer of an IFQ may not result 
in the sum of the IFQs on the receiving vessel exceeding 2 percent of 
the TAC allocated to IFQ scallop vessels. A transfer of an IFQ, whether 
temporary or permanent, may not result in the transferee having a total 
ownership of or interest in general category scallop allocation that 
exceeds 5 percent of the TAC allocated to IFQ scallop vessels. Limited 
access scallop vessels that are also issued an IFQ scallop permit may 
not transfer or receive IFQ from another IFQ scallop vessel.
    (iv) * * *
    (A) Application information requirements. An application to 
transfer IFQ must contain at least the following information: 
Transferor's name, vessel name, permit number