Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 21, 36559-36576 [2010-15501]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Rules and Regulations]
[Pages 36559-36576]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15501]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100107011-0248-03]
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: Final rule.

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SUMMARY: NMFS is implementing measures specified in 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 specifies 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 (YTF) 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 LAGC individual fishing quota (IFQ) program; and 
minor adjustments to the industry-funded observer program. This action 
also adjusts regulatory language to eliminate duplicative and outdated 
text, and to clarify provisions in the regulations that are currently 
unclear.

DATES: Effective June 28, 2010.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
21 that describes the action and other considered alternatives and 
provides a thorough analysis of the impacts of the 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.

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

SUPPLEMENTARY INFORMATION:

Background

    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. Framework 21 measures will replace 
those that were specified for the March 1, 2010, start of the fishing 
year (FY). Framework 21 specifies measures only for FY 2010. 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 
(MSA) for FY 2011 and beyond. Framework 22 will be developed by the 
Council to set the specifications for FYs 2011 and 2012.
    The Council approved Framework 21 at its November 18, 2009, meeting 
and submitted Framework 21 to NMFS for review on December 21, 2009. At 
its November 2009 meeting, the Council focused on two F target 
alternatives that did not involve a new access area closure: A target F 
of 0.24 (TAC of 47.3 M lb), and a lower target F of 0.20 (TAC of 41.5 M 
lb), which was ultimately selected by the Council. The Council's quota 
allocation recommendation for FY 2010 became very controversial due to 
industry concerns over the FY 2010 economic impacts of what some

[[Page 36560]]

believed to be an overly precautionary F target. Following public 
testimony from both scallop and groundfish fishery participants who 
supported adoption of a higher allocation alternative, and an in-depth 
review of the two alternatives, the Council amended its previous 
Framework 21 decision and voted to adopt the higher F target of 0.24 
for FY 2010 at its January 27, 2010, meeting. The Council's rationale 
for the amended decision was primarily based on the fact that the 
Framework 21 allocation alternatives were analyzed using a revised 
landings-per-unit effort (LPUE) calculation applied to the DAS model 
that would likely be more reflective of actual fishing effort than the 
DAS model used in Framework 19 to the FMP. Framework 19's LPUE model 
had underestimated fishing effort in open areas in FYs 2008 and 2009, 
resulting in higher levels of harvest than projected. The adjusted LPUE 
used in Framework 21 increased, resulting in lower overall DAS 
allocations that take into account higher effort levels. After an 
extensive discussion of the aggregate impacts of the revised LPUE 
calculation, in addition to setting a lower F target, the Council 
determined that the higher F target (0.24), in addition to the revised 
DAS model, would better achieve OY while also being appropriately 
precautionary. The Council subsequently revised its recommendations for 
action in Framework 21 and resubmitted the document with updated 
analyses reflecting the higher F target allocation to NMFS for review 
on March 19, 2010.
    The Council reviewed the Framework 21 proposed rule regulations as 
drafted by NMFS, which included regulations proposed by NMFS under the 
authority of section 305(d) of the MSA, and on March 30, 2010, deemed 
them to be necessary and consistent with section 303(c) of the MSA. The 
proposed rule for Framework 21 published in the Federal Register on 
April 27, 2010, with a 15-day public comment period that ended May 12, 
2010. Three comments were received on the proposed measures.
    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.
    The final management measures are described below. Details 
concerning the Council's development of these measures were presented 
in the preamble of the proposed rule and are not repeated here.

Acceptable Biological Catch (ABC) and TAC

    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, the PDT developed and analyzed allocation alternatives with various 
F targets below 0.284 in order to prevent localized overfishing in 
areas that are accessible to the fleet. Based on these analyses, and in 
order to minimize adverse impacts on Essential Fish Habitat (EFH), 
minimize bycatch, and achieve OY to the extent practicable, the Council 
ultimately 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 implements the following vessel-specific DAS 
allocations for FY 2010: Full-time vessels will be allocated 38 DAS; 
part-time vessels will be allocated 15 DAS; and occasional vessels will 
be allocated 3 DAS.
    Because Framework 21 was not implemented by the start of the FY on 
March 1, 2010, and the regulations in effect at the start of FY 2010 
are inconsistent with Framework 21 specifications, it is possible that 
a scallop vessel may have exceeded its DAS allocation during the 
interim period between March 1, 2010, and the effective date of this 
final rule. Therefore, any limited access open area DAS used in FY 2010 
by a vessel that is above the final FY 2010 allocation for that vessel 
will be deducted from the vessel's FY 2011 DAS allocation.

Open Area DAS Adjustment if Access Area Yellowtail Flounder (YTF) TAC 
Is Attained

    Under the Northeast Multispecies FMP, 10 percent of the Southern 
New England (SNE) YTF TAC is allocated to scallop vessels fishing in 
the Nantucket Lightship Access Area (NLAA). For FY 2010, this equates 
to 47 mt; 103,617 lb (April 9, 2010; 75 FR 18356). If the NLAA YTF TAC 
is caught, the NLAA will be closed to further scallop fishing for the 
remainder of the FY. If a vessel has unutilized trip(s) after the 
access area is closed due to reaching the YTF TAC, it will be allocated 
additional open area DAS at a reduced rate. This trip/DAS conversion 
will 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). Full-time vessels will 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 
will be allocated 4.6 DAS and 1.9 DAS, respectively.
    If a vessel has unused compensation trip(s) from a previously 
broken trip(s) when the access area closes due to reaching the YTF 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) NLAA compensation trip (half of the full possession 
limit) at the time of a NLAA YTF TAC closure, the vessel will be 
allocated 2.9 DAS (half of the 5.8 DAS that will be allocated for a 
full NLAA trip).

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

    In FY 2010, full-time scallop vessels are 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 is 
allocated two trips, which can 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 is allocated one trip, which can be 
taken in any one open access area. The FY 2010 limited access scallop 
possession limit for access area trips is 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 Framework 21 was not implemented by the start of the FY on 
March 1, 2010, and the regulations in

[[Page 36561]]

effect at the start of FY 2010 are inconsistent with Framework 21 
specifications, it is possible that scallop vessels could exceed their 
ETAA access area trip allocation during the interim period between 
March 1, 2010, and the effective date of this final rule. There were 
three ETAA trips allocated for full-time scallop vessels at the start 
of FY 2010, but this final rule allocates only two trips. If a full-
time vessel takes three trips into the ETAA during FY 2010, the 
vessel's FY 2011 overall access area trip allocation will be reduced by 
one trip to account for the FY 2010 overage. The access area trip 
allocations for FY 2011 are not yet determined; vessel owners who 
exceed their ETAA trip allocations for FY 2010 will have their overage 
deducted from their ETAA allocation, if there is a trip allocated into 
the ETAA for FY 2011. If no ETAA trips are allocated in FY 2011, vessel 
owners will be given the opportunity to select the area from which 
their trip overage would be deducted, with NMFS determining the area, 
if the vessel owner fails to respond.
    Framework 21 reduces the access area possession limit for part-time 
and occasional vessels. Therefore, it is also possible that a part-time 
or occasional vessel may have exceeded its trip possession limit during 
the interim period between March 1, 2010, and the effective date of 
this final rule. If a part-time or occasional vessel exceeds its FY 
2010 possession limit, the overage will be deducted from that vessel's 
FY 2011 possession limit allocation.

LAGC Measures

    1. TAC for LAGC vessels with IFQ permits. This action specifies a 
2,326,700-lb (1,055-mt) annual TAC for LAGC vessels with IFQ permits 
for FY 2010. IFQ allocations will 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 specifies a 232,670-lb (106-mt) annual TAC for limited access 
scallop vessels with IFQ permits for FY 2010. IFQ allocations will 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 is 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. These areas will close to LAGC vessels when the 
Regional Administrator determines that the allocated number of trips 
have been taken in the respective areas.
    Framework 21 reduces the number of LAGC trips into the ETAA and 
Delmarva. Therefore, it is possible that LAGC scallop vessels could 
exceed the FY 2010 fleet-wide trip allocations in the ETAA and 
Delmarva. If LAGC vessels exceed the number of allocated trips from the 
ETAA or Delmarva in FY 2010, the number of excess trips will be 
deducted from the LAGC IFQ fleet access area trip allocation in FY 2011 
in the ETAA or Delmarva, respectively.
    4. Northern Gulf of Maine (NGOM) TACS. This action specifies a 
70,000-lb (31,751-kg) annual NGOM TAC for FY 2010.
    5. Scallop Incidental Catch Target TAC. This action specifies 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 are: NLAA--117,820 lb (53 mt); ETAA--227,060 lb (103 mt); 
and Delmarva--117,700 lb (53 mt). The FY 2010 RSA DAS allocation is 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. Unless changed by the Regional 
Administrator, the current compensation rate for FY 2010 will continue, 
as follows: Limited access DAS vessels carrying an observer on access 
area trips will receive 180 lb (82 kg) of scallops per day, or part of 
a day, in ETAA, Delmarva, and NLAA; LAGC IFQ vessels carrying an 
observer on access area trips will receive 180 lb (82 kg) of scallops 
per trip in ETAA, Delmarva, and NLAA; 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 re-evaluate the 
compensation rates for FY 2010 should new information regarding 
monitoring and coverage levels indicate the need for adjustment. The 
2010 observer set-aside access area allocations are: 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 allocation is 135 DAS.

Reasonable and Prudent Measures

    The Incidental Take Statement of the March 14, 2008, Biological 
Opinion required NMFS to implement five non-discretionary reasonable 
and prudent measures (RPMs) identified as necessary or appropriate to 
minimize the impacts of any incidental take, as well as Terms and 
Conditions for implementing each RPM. Framework 21 includes management 
measures to comply with the first of these RPMs, which requires 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 requires 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 defined 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 FYs in Framework 22 and subsequent actions.
    This action will 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 will 
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), during the period June 
15, 2010, through August 31, 2010. Compliance with the trip restriction 
will be monitored by pounds of scallops 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 will 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

[[Page 36562]]

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, this final rule allocates three total 
trips into the Mid-Atlantic access areas to a full-time vessel for FY 
2010 (One trip in Delmarva; two trips in the ETAA). 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 conduct the compensation trip on or 
after November 1, 2010 (i.e., after the ETAA and Delmarva seasonal 
closures).
    Part-time and occasional vessels are not affected by this trip 
restriction because they are not allocated more than two trips during 
the entire FY. LAGC IFQ vessels are also not affected by this trip 
restriction.

Adjustments to the Industry-Funded Observer Program

    The following measures were developed by the Council 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. This action requires that 
for access area trips declared after the effective date of this action, 
the possession limit to defray the cost of an observer for LAGC IFQ 
vessels fishing in access areas 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 will be 180 lb (82 kg) per observed trip. In this 
scenario, an LAGC IFQ vessel with an onboard observer will 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 compensation, during an 
access area trip, regardless of trip length. The intent of this measure 
is to avoid allocating observer compensation in excess of the amount 
necessary to pay for the observer costs for these trips in order to 
minimize the possibility of fully harvesting the observer set-aside in 
an access area prior to the end of the FY.
    2. Providers must charge a prorated fee for vessels fishing in 
access areas if the observer set-aside has been fully harvested. This 
action requires that, for observed access area trips declared after 
NMFS announces that the annual observer set-aside for a given access 
area is fully exhausted, service providers must prorate their fees on 
an hourly basis for the remainder of the FY, similar to how observer 
fees are charged for vessels fishing on open area scallop trips. The 
intent of this measure is avoid observer fees charged in excess of 
actual time spent on an observed trip in an access area once the set-
aside allocated to that specific access area is no longer available to 
defray observer costs.

Adjustments to the IFQ Program

    This final rule will enable the owner of an IFQ vessel or IFQ 
confirmation of permit history (CPH) to lease some or all of its IFQ to 
or from and other IFQ vessel during a single FY. This measure removes 
the restriction that requires leasing only of an entire IFQ. This 
alternative only applies to leases, and not to permanent transfers, 
which will 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 requires 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 may be transferred in full to another vessel.
    This action also revises regulatory text to remove or clarify text 
that was duplicative and unnecessary, outdated, or unclear.

Comments and Responses

    Three comment letters were received in response to the proposed 
rule from an individual; the Fisheries Survival Fund (FSF), writing on 
behalf of full-time limited access scallop fleet members; and Oceana, 
an environmental organization. The comments relating to the proposed 
Framework 21 measures are responded to below. Other comments, including 
those raising specific concerns about the contents and development of 
the March 14, 2008, Biological Opinion for the sea scallop fishery, are 
not the subject of this rulemaking and are therefore not responded to 
in this document. The FSF stated in its comment letter that it intended 
to incorporate by reference other comments made during the Council's 
development of Framework 21; NMFS notes that the rulemaking process 
does not recognize such non-specific incorporation by reference. As a 
general matter, NMFS is constrained to only approve, disapprove, or 
partially approve measures in Framework 21, and cannot substantively 
amend or add to these regulations beyond what is necessary under 
section 305(d) of the MSA to discharge its responsibility to carry out 
such measures.
    Comment 1: The FSF noted that it disagrees with the requirements of 
the Biological Opinion, characterizing them as ultraconservative, but 
reluctantly accepted the measures specified to comply with the RPM in 
the Biological Opinion. The FSF noted that, while the measures meet the 
criteria of having no more than a minor impact on the fishery, they 
will have negative economic impacts on the scallop industry because 
they will divert fishing activity to sub-optimal times of the year, 
when scallop yields are lower. However, FSF recognized that the 
findings of the Biological Opinion impose legal duties on NMFS that 
must be addressed through Framework 21, and that the scallop fleet will 
have to bear the costs of the measures.
    Response: NMFS recognizes that FSF has concerns about the 
Biological Opinion that are not directly related to this rulemaking. 
NMFS agrees that the Framework 21 analysis shows that there will be 
some economic losses as a result of the diversion of fishing from the 
Mid-Atlantic region during a productive fishing period into areas and 
times with lower scallop yields. As FSF notes, however, the analysis 
concluded that the measures would comply with the RPM specified in the 
Biological Opinion, and have no more than a minor impact on the 
fishery, as required by the Endangered Species Act (ESA).
    Comment 2: Oceana contended that Framework 21 fails to protect 
threatened and endangered sea turtles, fails to protect habitat, fails 
to reduce bycatch of sea turtles and finfish, and fails to achieve OY 
of scallops. Oceana suggests that NMFS should disapprove the use of the 
F=0.24 target and should approve and implement the measures developed 
by the Council to be consistent with the F=0.20 target. Oceana 
suggested that NMFS should disapprove Framework 21 and return the 
document to the Council for revision.
    Response: Additional specific concerns noted by Oceana are 
characterized further and responded to in subsequent comments. NMFS 
disagrees with Oceana's suggestion that Framework 21 should be 
disapproved.

[[Page 36563]]

NMFS has found that the measures in Framework 21 comply with the MSA, 
ESA, NEPA, and all other applicable laws. Oceana's comments are based 
largely on the comparison of the impacts of the management alternatives 
considered by the Council. These alternatives included measures that 
would have achieved the F=0.24 and F=0.20 targets. There is no legal 
requirement when such alternatives are considered to necessarily select 
the more restrictive alternative for implementation. The analysis in 
Framework 21 demonstrates that the F=0.24 target is not expected to 
result in overfishing and would achieve OY on a continuing basis, fully 
in compliance with MSA and the FMP. The F=0.24 target is approximately 
80 percent of the F=0.284 overfishing threshold, and is consistent with 
the overfishing definition in the FMP. Framework 21 complies with NEPA, 
as it clearly presents the purpose and need for Framework 21, includes 
all necessary components of a NEPA document, fully analyzes and 
compares the impacts of a well-developed range of alternatives, and 
makes conclusions directly based on the information and analyses.
    NMFS notes that a disapproval of Framework 21 would mean that the 
current management program would continue in effect. While the overall 
TAC is slightly higher in Framework 21 than the status quo, it is 
distributed to the fishery in a way that results in fewer open area DAS 
and access area trips. This, in turn, represents a reduction of the 
amount of the sea bottom where fishing occurs (overall swept area), 
with associated reductions in bycatch and habitat impacts. Failing to 
enact the measures in Framework 21 at this time would mean that there 
would be no measures to reduce interactions with sea turtles, as 
specified in the Biological Opinion.
    Comment 3: Oceana's comments about ESA requirements include 
concerns that there should be a reintiation of consultation on this 
fishery and that the current Biological Opinion for the scallop fishery 
must be updated because new information is available concerning 
loggerhead sea turtles as reflected in a status review and by a 
proposed listing of the North Atlantic distinct population segment as 
endangered. Although Oceana stops short of advocating disapproval of 
Framework 21 while a reintiation occurs, it recommends that NFMS should 
implement the F=0.20 alternative originally adopted by the Council and 
that there should be specific management measures that would apply to 
both the open area and access areas in the Mid-Atlantic region. Oceana 
objects to the fact that the DAS allocated in Framework 21 are higher 
than those that would have been allocated if the target F was 0.20. 
Because the measures proposed in Framework 21 are applicable only to 
the access areas, Oceana contends that the measures do not comply with 
the requirements of the Biological Opinion.
    Response: NMFS has determined that the measures in Framework 21 
comply with the requirements of the MSA, the ESA and, specifically, the 
current Biological Opinion, even in light of the new status review and 
proposed listing. As a preliminary matter, NMFS is constrained from 
implementing the F=0.20 alternative or any new sea turtle measures 
under the MSA because it can only approve, disapprove, or partially 
approve measures included in a framework adjustment. NMFS does not 
believe that the 2009 loggerhead sea turtle status review or proposed 
listing is cause to reinitiate ESA Section 7 consultation on the 
Atlantic sea scallop fishery. The status review did not focus on the 
scallop fishery or Framework 21, and therefore there is no new 
information provided in the status review specifically regarding the 
exposure of loggerhead sea turtles to scallop fishing gear. The status 
review provides no new information regarding risk from Framework 21 or 
the scallop fishery to loggerhead sea turtles. The status review states 
that the decline of loggerhead sea turtles in the Northwest Atlantic is 
largely driven by mortality due to bycatch throughout the North 
Atlantic Ocean; however, these bycatch mortalities are from multiple 
fisheries operating under the jurisdiction of multiple countries, not 
just the U.S. Atlantic sea scallop fishery. The Population Viability 
Analysis conducted for the 2008 Biological Opinion, which specifically 
examined the effects of the scallop fishery on sea turtles in the North 
Atlantic, found that the mortality caused by the scallop fishery did 
not significantly alter the risk of extinction or quasi-extinction of 
loggerheads in the North Atlantic. The status review used the same 
nesting beach abundance data as the March 14, 2008, Biological Opinion, 
and the two documents identify the same key nesting beach and oceanic 
threats to survival and recovery of the species. Both documents 
utilized similar modeling techniques, and used the same nesting data. 
Because the status review's modeling exercise relied on essentially the 
same information that was used in the Biological Opinion, the status 
review does not provide new information that indicates effects of 
Framework 21 or the scallop fishery on loggerhead sea turtles, in a 
manner or to an extent not considered in the 2008 Biological Opinion. 
The comments made by Oceana related to the loggerhead sea turtle status 
review also presume the outcome of the agency process relating to 
making a future listing decision. If NMFS and the U.S. Fish and 
Wildlife Service (FWS) do make a final listing decision to list the 
Northwest Atlantic Distinct Population Segment of loggerhead sea 
turtles (as described in the status review and the proposed rule 
published on March 16, 2010 (75 FR 12597)), then reinitiation of 
consultation will be required. However, without such a final listing 
decision, NMFS does not consider the triggers for reinitiation of 
consultation to have been met. The publication of the status review in 
and of itself does not meet the triggers for reinitiation and, thus, by 
logical extension, there are no grounds for adjusting the RPMs or 
enacting any other restrictive measures relating to sea turtle 
protection.
    NMFS has found that Framework 21 complies with the requirements of 
the RPM, and also meets the ESA criteria of having no more than minor 
impact on the fishery. Framework 21 includes measures to assure 
compliance with RPM 1 of the March 14, 2008 (amended February 
5, 2009) Biological Opinion. This RPM stated that ``NMFS must limit the 
amount of allocated scallop fishing effort by `limited access scallop 
vessels' as such vessels are defined in the regulations (50 CFR 648.2), 
that can be used in the area and during the time of year when sea 
turtle distribution overlaps with scallop fishing activity.'' The non-
discretionary Term and Condition that implements the RPM above mandates 
that ``no later than the 2010 scallop FY, NMFS must limit the amount of 
allocated limited access scallop fishing effort that can be used in 
waters south of the northern boundaries of statistical areas 612, 613, 
533, 534, 541-543 during the periods in which turtle takes have 
occurred. Restrictions on fishing effort described above shall be 
limited to a level that will not result in more than a minor impact on 
the fishery.'' The Council took these requirements into account 
throughout the development of Framework 21 and considered measures to 
limit effort in the Mid-Atlantic area from mid-June through the end of 
October that also would not result in more than a minor impact on the 
fishery. The measures ranged from limits on DAS or access area trips 
that could be used in that area and time

[[Page 36564]]

period, seasonal closures of access areas in the Mid-Atlantic, and 
reduced possession limits in Mid-Atlantic access areas.
    After a number of discussions, the Council decided that Framework 
21 measures would include a seasonal closure of the Delmarva access 
area and a limit on the number of Mid-Atlantic access area trips. The 
restrictions are intended to remove fishing effort during the time when 
effort overlaps with sea turtle distribution. The seasonal closure of 
the Delmarva access area takes place from September 1 through October 
31. This measure will remove an estimated 563 DAS from the sea turtle 
window. Although this measure may increase the DAS needed to land the 
same amount of pounds of scallops in other areas, this increase in 
effort will take place in areas and at times of the year when sea 
turtles are less abundant in the action area. Limiting the number of 
Mid-Atlantic access area trips that can be taken during times when sea 
turtles are most abundant will likely benefit sea turtles. Each vessel 
is restricted to taking two of the three allocated access area trips in 
the Mid-Atlantic during June 15 to October 31. Since both Mid-Atlantic 
access areas are now closed from September 1 to October 31 to reduce 
impacts on sea turtles, the limit is applicable for June 15 through 
August 31. Limiting the maximum number of trips to two per vessel will 
move 358 DAS from the sea turtle window to the rest of the year, which 
constitutes a 3.5-percent effort shift. In summary, the combined 
measures will result in an 8.9-percent shift of effort from the sea 
turtle window (June 15-October 31) into the rest of the year, which is 
slightly below a threshold level suggested by the Scallop PDT (10 
percent) for a minor change to the fishery based on the analyses 
prepared by the Scallop PDT for the RPM in Framework 21. Thus, the 
measures taken in Framework 21 meet the requirements of the RPM and 
Term and Condition in the March 14, 2008 (amended February 5, 2009) 
Biological Opinion in that they shift effort away from times and areas 
where the fishery and sea turtles overlap, but do not result in more 
than a minor impact on the fishery.
    With respect to compliance with the ESA, NMFS has concluded that 
the operation of the scallop fishery under Framework 21 measures will 
not affect endangered and threatened species in a way that has not 
already been considered and analyzed. Considering all aspects of 
Framework 21, including the measures to implement the RPM and term and 
condition from the Biological Opinion and the F=0.24 target, overall 
fishing effort in the fishery will be reduced compared to that which 
would occur in the absence of Framework 21 and to that considered in 
the Biological Opinion. It is significant, also, that Framework 21 is a 
one-year measure only. The Council and NMFS will need to reconsider the 
adequacy of sea turtle measures for FYs beyond 2010, and, if there are 
any changes based on new information or a determination concerning the 
proposed listing, reintiation would be required and new measures may be 
appropriate.
    Comment 4: Oceana commented that, by allowing fishing levels 
consistent with the F=0.24 target, Framework 21 fails to minimize 
bycatch of finfish and adverse effects on EFH. Oceana concluded that 
the amount of swept area would have been lower under a target F=0.20. 
This, Oceana concluded, means that Framework 21 does not minimize 
impacts on adverse impacts to the extent practicable to EFH. Oceana 
expressed concern that estimates of YTF bycatch are higher under the 
higher target F, and will likely have impacts on the fledgling sector 
management program for NE multispecies.
    Response: As noted in Response to Comment 2, when the Council 
compares alternatives, there is no legal requirement to select the most 
restrictive alternative for implementation. The measures in Framework 
21 achieve a variety of objectives, including preventing overfishing 
and achieving OY of scallops. This action must be put into perspective 
of the overall FMP, which contains more comprehensive analysis and 
consideration of bycatch and EFH concerns. This action merely makes 
adjustments to the FMP on a one-year basis and is limited in scope. In 
the process of achieving those FMP objectives, the Council and NMFS 
must only minimize adverse impacts on EFH and minimize bycatch to the 
extent practicable. The National Standard Guidelines for minimizing EFH 
impacts and bycatch explicitly acknowledge that social and economic 
impacts are important considerations in determining the practicablilty 
of EFH and bycatch reduction measures (see 50 CFR 600.350(d)(3) and 
600.815(a)(2)(iii)). The Council and NMFS are also required to minimize 
the economic impacts when there are multiple alternatives that may be 
consistent with conservation objectives. NMFS has concluded that 
Framework 21 analyzes and balances these objectives and complies with 
all applicable legal requirements.
    Comment 5: The FSF commented that the Framework 21 allocations 
based on the F=0.24 target are overly precautionary, and that at least 
one additional access area trip is justified based on levels of scallop 
abundance. The FSF criticized the Council for not considering an 
alternative that included an additional access area trip. However, FSF 
concluded that the recommended specifications are fully within the 
legal parameters established in the MSA and the National Standard 1 
guidelines.
    Response: The allocations for access areas and open areas combine 
to achieve the F=0.24 target. NMFS notes that allocating additional 
access area trips likely would have reduced open area DAS because of 
the additional mortality caused by fishing within Closed Area I or 
Closed Area II.
    Comment 6: Oceana commented that Framework 21 establishes a level 
of fishing at the F=0.24 target that allows localized overfishing of 
the scallop resource, which is illegal. It further alleges that the 
Council was swayed by political pressure to select the F=0.24 target in 
order to reap short-term gains for the scallop fishery in FY 2010. 
Oceana encouraged NMFS to disapprove the F=0.24 strategy and substitute 
the more risk-averse and profitable F=0.20 strategy for FY 2010. Oceana 
commented that the F=0.24 strategy provides only minor short-term 
economic benefits for the fishery that come at a considerable cost to 
the ocean ecosystem, in violation of MSA requirements.
    Response: The analysis of the impacts of Framework 21 management 
measures on the scallop resource demonstrate clearly that the F=0.24 
target is not expected to result in overfishing and is expected to 
achieve OY on a continuing basis. The MSA requires overfishing to be 
prevented on the stock as a whole, and, in fact, the MSA does not 
define localized overfishing. The area rotation management program 
established by the FMP presumes that F will vary by area, depending 
upon the distribution of biomass. The analysis of economic impacts 
demonstrates that cumulative profits over several years may be 
marginally higher under the F=0.20 target, but the Council chose to 
adopt measures with marginally lower cumulative profits because of its 
concern about the negative economic, community, and social impacts that 
could have resulted in the first year of the management measures under 
F=0.20. There was great concern among some members of the public that 
the future return in landings and revenue under F=0.20 would not 
outweigh the risk of lost market share that could occur in FY 2010, 
particularly if a lower quota resulted in a ripple effect

[[Page 36565]]

throughout the major ports that could potentially affect business and 
fisheries outside of those directly tied to scallops. Should this 
occur, businesses currently impacted by the recent economic climate 
would have a difficult time recovering their losses in the future, 
regardless of whether the allocations increased after FY 2010. 
Ultimately, the Council considered that the longer-term benefits do not 
outweigh these short-term impacts. Although this action will have 
marginally smaller positive long-term economic impacts in comparison to 
the F=0.20 alternative, Framework 21 is only addressing the allocations 
for FY 2010. Future management measures in FY 2011 and beyond will 
affect these forecasts. NMFS finds that this is fully consistent with 
the MSA because Framework 21 measures under the F=0.24 alternative 
prevent overfishing the scallop stock, achieve OY on a continuing 
basis, and reduce negative impacts on fishing communities.
    Comment 7: The FSF suggested that the final rule for Framework 21 
clarify how ETAA trips will be addressed in FY 2011 if a vessel exceeds 
its Framework 21 two-trip allocation by taking three trips prior to the 
implementation of Framework 21, as allowed.
    Response: NMFS has clarified that a vessel will lose one access 
area trip if it takes more than two trips allocated in the ETAA under 
Framework 21 prior to the effective date of Framework 21. It is not yet 
known whether the ETAA will be open as an access area in FY 2011. If 
the ETAA is open, the deduction would be taken from the FY 2011 ETAA 
allocation. If the ETAA is not open, vessel owners would be given the 
opportunity to select the access area from which the overage would be 
deducted, with NMFS determining the area, if the vessel owner fails to 
respond. This is consistent with the Framework 21 access area trip 
provisions described in Section 2.2.3 of the Framework 21 document.
    Comment 8: The FSF urged NMFS to recalculate the conversion factor 
that would be used to convert unused NLAA access area trips into open 
area DAS if the area is closed due to attainment of the YTF TAC. The 
FSF believes that the FMP requires the 5.8 DAS given as compensation 
for an NLAA trip to be increased in order to assure that a vessel with 
unharvested poundage from the NLAA trip is able to harvest the full 
amount of 18,000 lb (8,165 kg) of scallops (the amount allocated for a 
full-time vessel trip into the NLAA).
    Response: The FSF has incorrectly characterized the objective of 
the FMP measure that specifies that unused NLAA trips will be converted 
to open area DAS. This measure was initially established through Joint 
Framework 16/39 (69 FR 63460; November 2, 2004), which modified both 
the Sea Scallop and NE Multispecies FMPs and went into effect in FY 
2005. The objective of the measure is not, as FSF states, to assure 
that vessels should be allocated DAS that are sufficient to fully 
harvest 18,000 lb (8,165 kg). The measure, which is described in 
Section 2.5.1.1 of Framework 21, was established to ensure that the 
transfer of fishing effort from the access area to the open area is 
conservation neutral. This calculation takes into account the expected 
average landings per DAS based on relative biomass and scallop size in 
open areas, compared to the NLAA. Framework 21 calculated that, in the 
NLAA, based on the F=0.24 target, the average NLAA scallop meat count 
will be 11.5 meats per lb--therefore 207,000 scallops (18,000 lb * 
11.5) would be removed per trip. In the open areas, the average meat 
count will be 21.2 meats per lb, so that 207,000 scallops per trip 
correspond to 9,764 lb (4,429 kg) of scallops (207,000 lb/21.2 meats 
per lb). With an expected landings per unit effort of 1,693 lb (768 kg) 
per DAS, the open area DAS to harvest 9,764 lb (4,429 kg) is 5.77 DAS 
(9,764 lb/1,693 lb per DAS).
    Comment 9: The FSF commented in support of the regulatory changes 
related to the industry funded observer program compensation rates for 
vessels that carry observers. The FSF supports the provision that 
requires observer service providers to prorate the observer coverage 
fee if the set aside is exhausted.
    Response: The measures have been enacted through this action.

Changes From Proposed Rule to Final Rule

    The section heading of Sec.  648.10 is revised to correct an 
inadvertent change made through a previous action, paragraph (c)(1) is 
revised to clarify the current Vessel Monitoring System (VMS) 
regulations, and paragraph (f)(4) is revised to correctly reference the 
name of the required catch report for NGOM and LAGC vessels.
    In Sec.  648.11, paragraph (g)(5)(i)(A) is revised to clarify that 
observer service providers must charge a prorated fee when issuing an 
observer to a vessel on an access area trip after NMFS has announced 
that the observer set-aside for that specific access area has been 
fully utilized.
    In Sec.  648.14, paragraph (i)(4)(i) is revised to clarify that 
LAGC IFQ vessels may only exceed the possession and landing limit if 
granted observer compensation while carrying an observer in an access 
area.
    Other editorial and minor changes were made throughout the rule to 
clarify various provisions in this action.

Classification

    NMFS has determined that Framework 21 as implemented by this rule 
is necessary for the conservation and management of the Atlantic sea 
scallop fishery and is consistent with the MSA and other applicable 
law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in an expedited manner in order to 
help achieve conservation objectives for threatened and endangered sea 
turtles and certain fish stocks constitutes good cause, under authority 
contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in 
effectiveness. Framework 21 includes management measures to minimize 
fishery interaction with threatened and endangered sea turtles and 
prevent overfishing. Specifically, Framework 21 includes a measure that 
specifies that vessels may take only two of their three allocated 
access area trips in the ETAA and Delmarva between June 15 and August 
31, 2010. This limitation complies with one of the RPMs required in the 
most recent Biological Opinion completed for the scallop fishery. The 
Biological Opinion examined fishery interactions with threatened and 
endangered sea turtles and specified RPMs to minimize the impacts on 
sea turtles. If implementation is delayed greatly beyond June 15, 2010, 
sea turtle conservation benefits during this short window of time will 
be compromised.
    In addition, if there is a delay in implementing the measures in 
Framework 21, the scallop fleet will continue under the current DAS, 
observer set-aside, access area trip allocations, and access area trip 
possession limits for part-time and occasional vessels. These 
allocations are higher than the measures specified in Framework 21, 
which were developed to reflect an updated estimate of the annual catch 
that can be harvested without resulting in overfishing. As a result, 
vessel owners and operators have the potential of exceeding the catch 
levels specified in Framework 21. Further continuation of the 
inconsistent FY 2009 management measures increases the risk that the 
actual F will exceed the target level upon which Framework 21 
management measures are based. Actual F was higher than

[[Page 36566]]

projected in both FYs 2008 and 2009, a situation which was addressed in 
the DAS model used to calculate the Framework 21 allocations. 
Continuing this trend in higher-than-projected fishing mortality could 
result in overfishing and future decreases in allowable harvest.
    NMFS was unable to incorporate the delay in effectiveness into the 
timeline for Framework 21 rulemaking due to the Council's January 2010 
reconsideration and amendment of its initial Framework 21 
recommendations, which were originally submitted to NMFS on December 
21, 2009. The Council resubmitted the Framework 21 document with 
updated analyses to NMFS on March 19, 2010, after the March 1 start of 
the 2010 scallop FY.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has completed a final regulatory flexibility analysis (FRFA) in 
support of Framework 21 in this final rule. The FRFA incorporates the 
IRFA, a summary of the significant issues raise by the public comments 
in response to the IRFA, and NMFS's responses to those comments, and a 
summary of the analyses prepared for Framework 21. This FRFA describes 
the economic impact that this final rule, along with non-adopted 
alternatives, will have on small entities. A copy of the IRFA, the RIR, 
and the EA are available upon request (see ADDRESSES).

Statement of Objective and Need for This Action

    This action specifies the FY 2010 management measures 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 to the proposed and final rules 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 small entities. All of the vessels grossed less than $3 M 
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 M 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.
    Framework 21 measures 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 these 
measures, 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.

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

    One commenter expressed concern about the economic impacts of the 
measures to comply with the Biological Opinion. The FSF noted that, 
while the measures meet the criteria of having no more than a minor 
impact on the fishery, they will have negative economic impacts on the 
scallop industry because they will divert fishing activity to sub-
optimal times of the year, when scallop yields are lower. However, FSF 
recognized that the findings of the Biological Opinion impose legal 
duties on NMFS that must be addressed through Framework 21, and that 
the scallop fleet will have to bear the costs of the measures. No 
modifications to the proposed rule were made as a result of this 
comment. As FSF recognized, the Framework 21 analysis concluded that 
the measures would comply with the RPM specified in the Biological 
Opinion, and have no more than a minor impact on the fishery, as 
required by the ESA.

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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

    The analysis of the fleet-wide aggregate economic impacts indicate 
that the final DAS allocations 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 this 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 M under No Action to $47 M under this action, reducing 
FY 2010 revenues for an average vessel by about 2 percent. In 
comparison to FYs 2008 and 2009 average, the adopted 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 adopted action ($7.27 per 
lb) compared with No Action ($7.07 per lb), the price in FY 2008 ($6.92 
per lb) and the price in FY 2009 ($6.45 per lb).
    Although this action will produce slightly less revenue in FY 2010 
compared to FYs 2008 and 2009, it will result in higher revenues for 
full-time limited access vessels from FY 2011 through FY 2016. This was 
also true of the non-selected alternatives.
    Over the short term, from FY 2010 through FY 2016, the action's 
cumulative revenues are estimated to be slightly lower than the No 
Action revenues, by $9 M, 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

[[Page 36567]]

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 this action and all the other alternatives considered. 
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 alternative 
implemented by this rule will generate $53 M more in total revenues 
than the No Action alternative.
    The non-selected Closure (F=0.20) and Closure (F=0.18) alternatives 
would allocate higher DAS (51 and 42 DAS, respectively) to full-time 
vessels than this action and would have had 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 (F=0.18) or Closure (F=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 this action.
    The revenue for an average full-time limited access vessel is 
estimated to be $931,799 for this action, which ranges from $108,152 to 
$18,661 lower than the Closure (F=0.18), Closure (F=0.20), and No 
Action alternatives. However, because this 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 mitigate some of the negative 
impacts of this 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 (F=0.18), or Closure (F=0.20) alternatives.
    Although the No Closure (F=0.20) alternative would produce the 
marginally greater benefits over the long term compared to the selected 
alternatives, it would result in a 13-percent and 11-percent loss in FY 
2010 average annual revenue compared to No Action and this action, 
respectively. This action would result in average FY 2010 revenues that 
are $109,563 greater than the No Closure (F=0.20) alternative. This 
action yields 5.8 M lb (2.6 M kg) more in 2010 than the No Closure 
(F=0.20) alternative, which equates to an increase in $41 M in ex-
vessel revenues. In consideration of the FY 2010 economic benefits 
under this action, the future return in landings and revenue under No 
Closure (F=0.20), representing an increase in 10.3 M lb (4.7 M kg) and 
$58 M over FYs 2011-2016, does not outweigh the risk of lost market 
share that could occur in FY 2010, particularly if a lower quota 
results in a ripple effect throughout the major ports that could 
potentially affect business and fisheries outside of those directly 
tied to scallops. Should this occur, businesses currently impacted by 
the recent economic climate would have a difficult time recovering 
their losses in the future, regardless of whether the allocations 
increased after FY 2010. This action also minimizes impacts on the 
fishery by helping to stabilize landings from year to year (i.e., 
between FY 2009 and FY 2011) compared to other alternatives considered. 
In addition, although this action will have marginally smaller positive 
long-term economic impacts in comparison to the No Closure (F=0.20) 
alternative, Framework 21 is only addressing the allocations for FY 
2010. 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 
this action to the other alternatives is similar to the comparison for 
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 this 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 M for FY 2008 and $29.6 M for FY 2009, averaging $30.2 M across 
both FYs. During FYs 2008 and 2009, the LAGC fishery was under a 
transition period while the final decisions for IFQ permit 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 this action are projected 
to be $17 M, 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 LAGC TAC are within the range of the impacts previously analyzed 
in Amendment 11.
    This 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.
    Other Framework 21 measures, such as observer program improvements, 
IFQ program improvements, NGOM hard TAC, and YTF TAC adjustments are 
expected to provide additional positive impacts by providing vessels 
the opportunity to reduce fishing costs and increase revenues from 
scallop fishing.

Economic Impacts of the Final Action

    The following describes all of the alternatives considered by the 
Council.
1. Open Area DAS Adjustment if Access Area YTF TAC Is Attained
    This action maintains a provision that allocates additional open 
area DAS if an access area closes due to the attainment of the scallop 
YTF TAC. This will 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 
the YTF 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 to address this issue that would generate 
higher economic benefits for the participants of the scallop fishery.
2. Research and Observer Set-Aside TACs
    This action will 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

[[Page 36568]]

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.
3. Access Area Management
    This action will allow 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 have generated higher benefits than the proposed action is 
the No Action alternative, which would have allocated three trips to 
ETAA, rather than two trips. This number of trips is higher than the 
projecte