Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery Management Plan, 19929-19950 [2011-8444]
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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have made a preliminary determination
that this action is one of a category of
actions which do not individually or
cumulatively have a significant effect on
the human environment. This proposed
rule involves implementation of
regulations within 33 CFR Part 100
applicable to organized marine events
on the navigable waters of the United
States that could negatively impact the
safety of waterway users and shore side
activities in the event area, and is
categorically excluded from further
analysis under paragraph 34(g) of the
Commandant Instruction. This category
of water activities includes but is not
limited to sail boat regattas, boat
parades, power boat racing, swimming
events, crew racing, canoe and sail
board racing. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this proposed rule.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water),
Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR part 100 as follows:
commissioned, warrant, or petty officer
on board and displaying a Coast Guard
ensign.
(c) Special local regulations: (1)
Except for persons or vessels authorized
by the Coast Guard Patrol Commander,
no person or vessel may enter or remain
in the regulated area.
(2) The operator of any vessel in the
regulated area must: (i) Stop the vessel
immediately when directed to do so by
the Coast Guard Patrol Commander or
any Official Patrol.
(ii) Proceed as directed by the Coast
Guard Patrol Commander or any Official
Patrol.
(d) Enforcement period: This section
will be enforced as follows; (1) from
6 a.m. until 6 p.m. on June 25, 2011.
(2) In the case of inclement weather
this marine event may be postponed and
rescheduled for 6 a.m. to 6 p.m. on June
26, 2011.
(3) The Coast Guard will publish a
notice in the Fifth Coast Guard District
Local Notice to Mariners and issue
marine information broadcast on VHF–
FM marine band radio announcing
specific event date and times.
Dated: March 23, 2011.
Mark P. O’Malley,
Captain, U.S. Coast Guard, Captain of the
Port Baltimore.
[FR Doc. 2011–8519 Filed 4–8–11; 8:45 am]
PART 100—SAFETY OF LIFE ON
NAVIGABLE WATERS
BILLING CODE 9110–04–P
1. The authority citation for part 100
continues to read as follows:
Authority: 33 U.S.C. 1233.
2. Add a temporary section, § 100.35–
T05–0182 to read as follows:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 100.35–T05–0182 Special Local
Regulations for Marine Events; Patapsco
River, Northwest Harbor, Baltimore, MD.
50 CFR Part 648
(a) Regulated area. The following
locations are regulated areas: All waters
of the Patapsco River, Northwest
Harbor, within an area bounded by the
following lines of reference: Bounded
on the west by a line running along
longitude 076°35′35″ W; bounded on the
east by a line running along longitude
076°35′10″ W; bounded on the north by
a line running along latitude 39°16′40″
N; and bounded on the south by the
shoreline between the east and west
lines of reference in Baltimore, MD. All
coordinates reference Datum NAD 1983.
(b) Definitions: (1) Coast Guard Patrol
Commander means a commissioned,
warrant, or petty officer of the U.S.
Coast Guard who has been designated
by the Commander, Coast Guard Sector
Baltimore.
(2) Official Patrol means any vessel
assigned or approved by Commander,
Coast Guard Sector Baltimore with a
RIN 0648–BA71
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[Docket No. 110329229–1219–02]
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Atlantic
Sea Scallop Fishery; Amendment 15 to
the Atlantic Sea Scallop Fishery
Management Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes regulations to
implement Amendment 15 to the
Atlantic Sea Scallop Fishery
Management Plan (FMP), which was
developed by the New England Fishery
Management Council (Council). The
Council submitted Amendment 15,
SUMMARY:
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19929
incorporating the Final Environmental
Impact Statement (FEIS) and the Initial
Regulatory Flexibility Analysis (IRFA),
for review by the Secretary of
Commerce. NMFS has also published a
Notice of Availability requesting
comments from the public on
Amendment 15 pursuant to the
Magnuson-Stevens Fishery
Conservation and Management Act
(MSA). Amendment 15 was developed
primarily to implement annual catch
limits (ACLs) and accountability
measures (AMs) to bring the Scallop
FMP into compliance with requirements
of the MSA as reauthorized in 2007.
Amendment 15 includes additional
measures recommended by the Council,
including: A revision of the overfishing
definition (OFD); modification of the
essential fish habitat (EFH) closed areas
under the Scallop FMP; adjustments to
measures for the Limited Access
General Category (LAGC) fishery;
adjustments to the scallop research setaside (RSA) program; and additions to
the list of measures that can be adjusted
by framework adjustments.
DATES:
Comments must be received by 5
p.m., Eastern Standard Time, by May
26, 2011.
ADDRESSES: An FEIS was prepared for
Amendment 15 that describes the
proposed action and its alternatives and
provides a thorough analysis of the
impacts of proposed measures and their
alternatives. Copies of Amendment 15,
including the FEIS and the IRFA, are
available from Paul J. Howard,
Executive Director, New England
Fishery Management Council, 50 Water
Street, Newburyport, MA 01950. These
documents are also available online at
https://www.nefmc.org.
You may submit comments, identified
by 0648–BA71, by any one of the
following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal https://
www.regulations.gov.
• Fax: (978) 281–9135, Attn: Peter
Christopher.
• Mail: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, 55 Great Republic
Drive, Gloucester, MA 01930. Mark the
outside of the envelope, ‘‘Comments on
Scallop Amendment 15 Proposed
Regulations.’’
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
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submit Confidential Business
Information or otherwise sensitive or
protected information. NMFS will
accept anonymous comments.
Attachments to electronic comments
will be accepted in Microsoft Word,
Excel, WordPerfect, or Adobe PDF file
formats only.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this rule
should be submitted to the Regional
Administrator at the address above and
to the Office of Management and Budget
(OMB) by e-mail at
OIRA_Submission@omb.eop.gov, or fax
to (202) 395–7285.
FOR FURTHER INFORMATION CONTACT:
Peter Christopher, Fishery Policy
Analyst, phone (978) 281–9288, fax
(978) 281–9135.
SUPPLEMENTARY INFORMATION:
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Background
In January 2007, the MSA was
reauthorized and included a new
provision requiring each FMP to use
ACLs to prevent overfishing, including
measures to ensure accountability,
should the ACLs be exceeded. For
fishery resources that were determined
to be overfished, the MSA requires that
such measures be implemented by 2010.
For fishery resources that are not
overfished, such measures must be
implemented by 2011. Scallop fishery
management measures to comply with
the MSA’s ACL and AM requirements
are required for 2011, because the
scallop resource is not overfished. To
meet this requirement, the Council
initiated development of Amendment
15 on March 5, 2008, by publishing a
Notice of Intent to develop Amendment
15 (73 FR 11888, March 5, 2008) and
prepare an EIS to analyze the impacts of
the proposed management alternatives.
The Council intended that Amendment
15 would address three goals: (1) Bring
the Scallop FMP into compliance with
new requirements of the reauthorized
MSA; (2) address excess capacity in the
limited access scallop fishery; and (3)
consider measures to adjust several
aspects of the overall program to make
the Scallop FMP more effective.
Following the public comment period
that ended on August 23, 2010, the
Council adopted Amendment 15 on
September 29, 2010. The Council voted
to adopt most of the measures proposed
in the amendment except permit
stacking and leasing alternatives that
had been designed to address excess
capacity, after considering extensive
written and oral public comment on the
measures. Ultimately the Council
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rejected these measures due to concerns
that the measures would have
unacceptable negative economic and
social impacts on the scallop fleet and
fishing communities.
Amendment 15 would establish the
mechanism for implementing ACLs and
AMs, which in turn would generate
scallop fishery specifications, including
days-at-sea (DAS), access area trip
allocations, and individual fishing
quotas (IFQs). Amendment 15 does not
include actual catch limits and fishery
specifications. These specifications will
be established through the separate
action of Framework 22 to the FMP for
fishing years (FYs) 2011, 2012, and
2013. Framework 22 includes specific
measures that address the change from
DAS, access areas, and trip allocations
that became effective on March 1, 2011,
to different allocations implemented
under Framework 22. The Council
adopted Framework 22 and submitted it
to NMFS for review. NMFS’ review of
Framework 22 is on the same timeline
as Amendment 15.
The Council has reviewed the
Amendment 15 proposed regulations as
drafted by NMFS and deemed them to
be necessary and appropriate as
required by section 303(c) of the MSA.
Recommended Management Measures
1. ACL Flow Chart
Amendment 15 would establish how
the Scallop FMP would account for all
catch in the scallop fishery and would
include designations of Overfishing
Limit (OFL), Acceptable Biological
Catch (ABC), ACLs, and Annual Catch
Targets (ACT) for the scallop fishery, as
well as scallop catch for the Northern
Gulf of Maine (NGOM), incidental, and
State waters catch components of the
scallop fishery. The scallop fishery
assessment would determine the
exploitable biomass, including an
assessment of discard and incidental
mortality (mortality of scallops resulting
from interaction, but not capture, in the
scallop fishery). Based on the
assessment, OFL would be specified as
the level of landings, and associated
fishing mortality rate (F) that, above
which, overfishing is occurring. OFL
would account for landings of scallops
in State waters by vessels without
Federal scallop permits. The current
assessment of the scallop fishery (SAW
50, 2010) determined that the F
associated with the OFL is 0.38. Since
discard and incidental mortality are
accounted for in the scallop resource
assessment and removed prior to setting
ABC, the specification of ABC, ACL,
and ACT, as well as the NGOM and
incidental catch, are represented by
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landings as a proxy for catch. ABC
would be equal to overall ACL, but to
account for scientific uncertainty, ABC
would be less than OFL, with an
associated F that has a 25-percent
probability of exceeding F associated
with OFL (i.e., a 75-percent probability
of being below the F associated with
OFL). SAW 50 determined that the F
associated with the ABC/ACL is 0.32.
Catch from the NGOM would be
established at the ABC/ACL level, but
would not be subtracted from ABC/ACL.
Since this portion of the scallop fishery
is not part of the scallop assessment, the
catch would be added and specified as
a separate Total Allowable Catch (TAC)
in addition to ABC/ACL. After removing
observer set-aside and RSA (1 percent of
the ABC/ACL and 1.25 M lb (567 mt)
(proposed in Amendment 15),
respectively), Amendment 15 would
establish separate sub-ACLs for the
limited access (LA) and LAGC fisheries.
To account for management uncertainty,
Amendment 15 proposes ACTs for each
fleet. For the LA fleet, the ACT would
have an associated F that has a 25percent chance of exceeding ABC. The
F associated with this ACT is currently
estimated to be 0.28. For the LAGC fleet,
the ACT would be set equal to the LAGC
fleet’s sub-ACL.
2. Modification of the OFD
Amendment 15 proposes to modify
the current OFD to provide for better
management of the scallop fishery
under area rotation. The proposed
Hybrid OFD combines the overfishing
threshold from the status quo
overfishing definition for open areas
with a time-averaged fishing mortality F
approach for access areas. The F target
in the open areas would be set at a level
that is no higher than the overfishing
threshold (currently F = 0.38). In access
areas, it would be set annually at a level
that results in F no higher than FMSY
when averaged over time with the F in
that access area, including times when
the access area was closed. The
combined target F for all areas could be
no higher than that which gives a 25percent probability of exceeding the F
associated with ABC (F = 0.32), which
is currently calculated to be F = 0.28,
taking into account all sources of F in
the scallop fishery.
The current OFD and overfishing
reference points are based on the
assumption that F is spatially uniform.
In the scallop fishery this assumption is
inaccurate, because of unfished biomass
in closed areas, variable Fs in access
areas, and spatially variable fishing
mortality in open areas. Under the
current OFD, closed and access areas
protect the scallop stock from
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recruitment overfishing, but growth
overfishing may occur in the open areas
because the current OFD averages
spatially across open and closed areas,
i.e., F is higher in open areas to
compensate for the zero F in closed
areas. The greater the fraction of
scallops in the closed areas, the more
ineffective the current OFD becomes.
Additionally, when more biomass is
within closed areas, the estimated
whole-stock F may be more sensitive to
recruitment and measurement error than
to changes in effort. Therefore, while the
scallop fishery’s current OFD is
consistent with MSA requirements, and
has been effective at keeping the scallop
fishery above the overfished level and
preventing overfishing overall, certain
resource and fishery conditions as
described above may reduce the
effectiveness of the FMP.
3. OFD Reference Points
The current OFD states that FMAX will
be used as a proxy for FMSY. However,
SAW 50 approved a direct estimate of
FMSY. Therefore, Amendment 15 would
replace the current BMAX and FMAX with
BMSY and FMSY. Final results from SAW
50 were available in August 2010, and
both the Scallop Committee and the
Council’s Scientific and Statistical
Committee (SSC) reviewed the results
and agreed that the existing OFD should
be updated to reflect new biological
reference points based on BMSY and
FMSY. Under Amendment 15, the new
overfishing definition would read:
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If stock biomass is equal or greater than
BMSY as measured by an absolute value of
scallop meat (mt) (estimated in 2009 at
125,358 mt scallop meat in the Georges Bank
and Mid-Atlantic resource areas), overfishing
occurs when F exceeds FMSY, currently
estimated as 0.38. If the total stock biomass
is below BMSY, overfishing occurs when F
exceeds the level that has a 50-percent
probability to rebuild stock biomass to BMSY
in 10 years. The scallop stock is in an
overfished condition when stock biomass is
below 1⁄2 BMSY, and in that case overfishing
occurs when F is above a level expected to
rebuild in 5 years, or above zero when the
stock is below 1⁄4 BMSY.
The proposed changes to the OFD
would also require revisions of the
current framework provisions in the
scallop fishery regulations at 50 CFR
648.55. Under the current OFD, the
framework adjustment process included
provisions that ensure that measures
achieve optimum yield (OY) on a
continuing basis. These provisions were
established as part of Amendment 10 to
the FMP because of the potential
inconsistency between rotational area
management and use of a spatiallyaverage OFD, whereby open area fishing
mortality may be elevated relative to the
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condition of the resource in open areas,
thus preventing OY from being
achieved. Because the proposed OFD
drastically reduces the risk of
inappropriate open area fishing levels,
due to application of the threshold F to
drive open area fishing levels, the
framework provisions specifically
designed to adjust Council
recommendations to ensure that OY is
achieved are no longer necessary.
4. Scientific Uncertainty and ABC
Control Rule
Amendment 15 includes two different
assessments of scientific uncertainty,
based on the following scientific
parameters that are utilized in scallop
resource and fishery assessments:
• Growth;
• Maturity and fecundity;
• Shell height/meat weight
relationship;
• Natural mortality;
• Catch data;
• Discards and discard mortality;
• Incidental mortality;
• Commercial shell height data;
• Commercial and survey gear
selectivity;
• Commercial and survey dredge
efficiency;
• Stock-recruitment relationship; and
• Density dependence.
The first assessment of scientific
uncertainty is qualitative and is based
on the level of uncertainty, importance,
and effect of the parameters.
Uncertainty, importance, and effect of
the parameters on the scallop resource
and fishery assessment are characterized
numerically on a scale of low to high.
This first assessment of scientific
uncertainty would provide managers
with an indication of the overall level of
scientific uncertainty, which would
help determine a buffer between the
OFL and ABC. The Council concluded
in Amendment 15 that scientific
uncertainty in the scallop resource and
fishery is low.
The second consideration of scientific
uncertainty enables the Council to
establish ABC that has a low risk of
exceeding OFL. Based on the parameters
for determining scientific uncertainty,
an analytical model developed by the
PDT specifies the probability of
exceeding the OFL at a specified F
associated with the corresponding catch
level. Using this model, and given the
overall low level of scientific
uncertainty, the ABC control rule would
set ABC at a level that has a 25-percent
probability of exceeding OFL (i.e., a
75-percent probability that it will not
exceed OFL). This value could be
modified through the framework
adjustment process.
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5. State Waters Catch, NGOM TAC, and
Incidental Catch
Scallop catch from State waters by
vessels not issued a Federal scallop
permit is a relatively small component
of overall scallop catch, and the scallop
resource in State waters is not part of
the Federal scallop resource survey. To
account for scallop landings from State
waters, the Council’s Scallop Plan
Development Team (PDT) will estimate
landings annually, based on available
State waters landings information, and
include it in the specification of OFL.
The amount of scallop landings in State
waters would then be specified as a
separate level of landings that would be
compared to actual landings each year,
and adjusted as necessary in subsequent
years. This component of overall catch
is not specified as an ACL and has no
associated AM, since there is no Federal
authority to adjust catch by vessels
without a Federal permit.
Scallop catch in the NGOM would be
specified similar to State waters scallop
catch, except that the NGOM landings
level would be based on historical
landings or available resource surveys
in the NGOM, and would be included
in the specification of ABC. While there
is no Federal survey in the NGOM,
independent surveys have been
conducted, and if continued, would
provide survey information for NGOM
landings specifications each year.
Although this component of overall
scallop catch is not formally an ACL, an
overage is accounted for in the
subsequent year through a reduction of
the landings limit that is equal to the
overage from the prior year.
Incidental catch has been estimated to
be 50,000 lb (24,948 kg), and data
continue to support this value, based on
historical and predicted landing levels.
Incidental catch would be removed from
ABC prior to establishing the research
and observer set-asides and ACLs for the
limited access and LACG IFQ fleets.
This component of overall scallop catch
does not have a specific AM, but if
incidental catch is higher than
predicted, the landings limit would be
adjusted in the subsequent year(s) by
removing more incidental catch from
ABC.
6. Separate ACLs for the LA and LAGC
IFQ Fleets as Sub-ACLs
The LA and LAGC IFQ fleets would
be allocated landings as sub-ACLs of the
overall scallop fishery ACL with the
same allocation values that were
established under Amendment 11 to the
FMP: LA vessels would be allocated
94.5 percent of the ABC/ACL landings;
and LAGC IFQ vessels would be
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allocated 5.5 percent of the ABC/ACL
landings. Both allocations would be
made after deducting incidental catch
and research and observer set-asides
from ABC. Sub-ACLs were established
for these two fleets so that AMs would
be based on each fleet’s harvest relative
to its own ACL, without requiring that
one fleet would be penalized for an
overage of the other. Both fleets would
have carryover provisions (existing for
the LA and proposed under Amendment
15 for the LAGC fleet) and RSA catch
could be carried over into the
subsequent year. For the purpose of
accounting relative to ABC and ACL,
landings from carryover DAS, IFQ, or
TAC would apply to the FY in which
they are landed (i.e., not to the FY for
which they were allocated).
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7. Management Uncertainty and ACT
Amendment 15 proposes that
management uncertainty in the scallop
fishery mainly results from the
uncertainty associated with carryover
DAS, vessel upgrades and replacements,
and open area catch under DAS. The
uncertainty associated with these
measures results from a difference
between estimated vessel efficiency and
landings per unit effort (LPUE), and
realized efficiency and LPUE during the
course of the fishing year. Management
uncertainty for the LAGC IFQ fleet is
considered very low because it would
result from landings in excess of a
vessel’s IFQ, which can be audited and
accounted for through data reviews each
year. Although ACT could be specified
for the LAGC fishery, it would be equal
to the fleet’s ACL initially, unless
revised by the Council. An ACT for the
LA fleet to account for management
uncertainty would be set at a level with
an associated F that has a 25-percent
probability of exceeding ABC, which is
currently 0.28.
8. AMs for the LA Fleet
The primary AM for the LA fleet
requires a DAS reduction for the fleet in
open areas that would approximate the
catch overage of the ACT. Using the
ACT for determining the overage is
designed to account for management
uncertainty and to better prevent vessels
from exceeding the fleet’s ACL. The
DAS reduction would be distributed
evenly to limited access vessels. For
example, an overage of 1,500,000 lb (680
mt) would have a DAS equivalent of 625
DAS, based on an LPUE of 2,400 lb (1.1
mt) per DAS. Divided across 327 fulltime vessels, the DAS reduction per
vessel would be 1.9 DAS. Part time
vessel DAS would be reduced by 0.76
DAS (40 percent of the full time
deduction) and occasional vessel DAS
would be reduced by 0.16 DAS (1/12th
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of the full time deduction). Part time
and occasional proportional deductions
are consistent with the way that DAS
are assigned in the fishery. The AM
would take effect in the fishing year
following the fishing year in which the
ACL was exceeded. Since the AM
would apply mid-year, vessels may have
already used more DAS in that fishing
year than are ultimately allocated after
applying the AM. If this occurs, a vessel
that exceeds the DAS it is allocated after
the AM is applied would have the
amount of DAS used in excess of the
vessel’s final DAS allocation after the
AM is applied deducted from its DAS
allocation in the subsequent fishing
year. For example, a vessel initially
allocated 32 DAS in 2011 uses all 32
DAS prior to application of the AM. If,
after application of the AM, the vessel’s
DAS allocation is reduced to 31 DAS,
the vessel’s DAS in 2012 would be
reduced by 1 DAS.
9. LA Fleet AM Exception
Even if the ACL is exceeded,
triggering the AM for the LA fleet, the
F associated with the fleet’s ACL may
not be exceeded if, in retrospect, some
of the assumptions for determining the
ACL, such as LPUE relative to the status
of the resource or the biomass were
underestimated. Since the overall goal
of the ACL is to ensure that F limits are
not exceeded, enacting an AM would
not be necessary if the F limits are not
exceeded. To address this, Amendment
15 includes an exception provision
(called a ‘‘disclaimer’’ in the
amendment) that would stop the AM
from taking effect if, in an analysis of
the preceding fishing year before the
AM goes into effect, the actual F
resulting from the fishery in the prior
year was one standard deviation below
the overall F for the fleet’s ACL. With
an F = 0.28 for the ACL, one standard
deviation below would be F = 0.24. If
the fishery’s F is below 0.24, the AM
would not be implemented. However, if
the fishery’s F is 0.24 or above, the AM
would take effect. When fishery data are
available after the FY ends, and before
the AM takes effect, the Scallop PDT
will evaluate the fishery, determine the
F and would recommend through the
Council whether or not the AM should
be implemented. To ensure compliance
with applicable laws, the Regional
Administrator would have discretion to
implement the exception or implement
the AM in accordance with the
Administrative Procedure Act (APA),
5 U.S.C. 553 et seq., after considering
the Council’s recommendation.
The application of the AM described
in item 8 above, and the AM exception
described in this item 9, would be
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considered at the same time to ensure
that multiple adjustments of DAS do not
occur in one fishing year, if possible.
The decision to implement the AM or
the AM exception would be made by the
Regional Administrator on or about
September 30 of each year.
10. Increase of LAGC IFQ ACL if LA AM
Exception Is Enacted
If the LA fleet’s AM exception is
enacted, a portion of landings would be
re-distributed to the LAGC fleet for
equity purposes. Under the exception,
the LA fleet would have exceeded its
ACL, but no AM would be put in place,
as described in item 9 above. Because
the LA fleet still would have harvested
more scallops than allocated, without
being held accountable, an inequity
would be created. Had the ACL been
higher, commensurate with the analysis
of the prior fishing year, those ‘‘extra’’
scallops could have been distributed to
the LAGC IFQ fleets as well. To account
for the inequity, the LAGC IFQ fleet
would be allocated 5.5 percent of the LA
fleet’s overage of its ACL. The
additional allocation to the LAGC IFQ
fleet would be distributed through
adjustment of IFQs, upon
implementation of the exception on or
about September 30 of each year. An
amount equivalent to the amount
allocated to the LAGC IFQ fleet would
be deducted from the LA ACL. The
deduction would not affect the LA
fleet’s ACT or DAS allocations, but
would establish a lower threshold for
the LA fishery for triggering AMs.
11. AM for the LAGC IFQ Fleet
Amendment 15 proposes that, if an
LAGC vessel exceeds its IFQ, its IFQ
would be reduced by the amount equal
to the overage as soon as possible in the
fishing year immediately following the
fishing year in which the IFQ overage
occurred. Since the AM would apply
mid-year, vessels may have already used
more IFQ in that fishing year than is
ultimately allocated after applying the
AM. If this occurs, a vessel that exceeds
the IFQ it is allocated after the AM is
applied would have the amount of IFQ
landed in excess of the vessel’s final IFQ
allocation after the AM is applied
deducted from its IFQ allocation in the
subsequent fishing year. For example, a
vessel with an initial IFQ of 1,000 lb
(453.6 kg) in 2010 landed 1,200 lb
(544.3 kg) of scallops in 2010, and is
initially allocated 1,300 lb (589.7 kg) of
scallops in 2011. That vessel would be
subject to an IFQ reduction equal to 200
lb (90.7 kg) to account for the 200 lb
(90.7 kg) overage in 2010. If that vessel
lands 1,300 lb (589.7 kg) of scallops in
2011 prior to application of the 200 lb
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(90.7 kg) deduction as the AM, the
vessel would be subject to a deduction
of 200 lb (90.7 kg) in 2012.
For vessels involved in a temporary
IFQ transfer, the entire deduction shall
apply to the vessel that acquired IFQ,
not the transferring vessel. A vessel that
has an overage that exceeds its IFQ in
the subsequent fishing year shall be
subject to an IFQ reduction in
subsequent years until the overage is
paid back. For example, a vessel with an
IFQ of 1,000 lb (454 kg) in each year
over a 3-year period, that harvests 2,500
lb (1,134 kg) of scallops the first year,
would have a 1,500-lb (680-kg) IFQ
deduction, so that it would have zero
pounds to harvest in year 2, and 500 lb
(227 kg) to harvest in year 3. A vessel
that has a ‘‘negative’’ IFQ balance, as
described in the example, could lease or
transfer IFQ to balance the IFQ,
provided there are no sanctions or other
enforcement penalties that would
prohibit the vessel from acquiring IFQ.
Applying the AM to an individual
vessel’s IFQ was considered appropriate
because the Council determined that
individual vessel overages of IFQ would
be the only cause of exceeding the ACL
for the IFQ fleet. A vessel that has an
overage in one FY that exceeds its entire
IFQ in the subsequent FY would be
required to take IFQ reductions in
subsequent years until the overage is
paid back. For example, a vessel with an
IFQ of 1,000 lb (454 kg) in each year
over a 3-year period, that harvests 2,500
lb (1,134 kg) of scallops the first year,
would have a 1,500-lb (680-kg) IFQ
deduction, so that it would have zero
pounds to harvest in year 2, and 500 lb
(227 kg) to harvest in year 3. A vessel
that has a ‘‘negative’’ IFQ balance, as
described in the example, could lease
IFQ to balance the IFQ, provided there
are no sanctions or other enforcement
actions that would prohibit the vessel
from acquiring IFQ. These automatic
IFQ deductions do not excuse a vessel
from any enforcement actions that may
be applicable for the overage. The
Council determined that this individualvessel AM would be more equitable
than penalizing others in the fleet for
single-vessel overages. The Council
incorporated ACT into the LAGC IFQ
fleet allocation, but chose not to apply
any management uncertainty buffer for
the fleet at this time. This could be
adjusted through the framework process
if an ACT is needed to address
management uncertainty.
12. Yellowtail Flounder (YTF) Sub-ACL
To account for YTF catch in the
scallop fishery, Amendment 15 would
establish sub-ACLs (called ‘‘sub’’ ACLs
to reflect that these ACLs are part of the
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overall ACL established in the NE
Multispecies FMP). for the Southern
New England/Mid-Atlantic (SNE/MA)
and Georges Bank (GB) YTF sub-ACLs
for the scallop fishery. The amount of
YTF estimated to be harvested annually
would depend on the scallop DAS and
access area allocations, and could be
adjusted through the NE Multispecies
FMP framework adjustment process.
13. YTF Sub-ACL AM
Areas within the GB and SNE/MA
YTF stock areas that have been preidentified would close to scallop fishing
in the FY following a FY in which the
YTF sub-ACL for the scallop fishery is
exceeded. These areas were identified
during the final development of
Amendment 15 as the statistical areas
that have high bycatch of YTF in the
scallop fishery. For the GB YTF stock,
the closure would be in statistical area
562, which extends from just west of
Closed Area II (CAII), through that
closed area, and to the southeast of that
closed area. In addition, a small portion
of statistical area 525 within the CAII
access area would also be closed. For
the SNE/MA YTF stock, statistical areas
537, 539, and 613 would close under the
YTF AM. Coordinates of these YTF AM
closed areas are included in the
proposed regulations in this proposed
rule. A chart depicting the areas is in
the Amendment 15 FEIS (see
ADDRESSES). The Council decided that
the statistical areas included in each
YTF AM would close to LA vessels
only; LAGC vessels would be exempt
from these closures if fishing in an
exempted area authorized under the NE
Multispecies FMP, because these
exemptions were created because
bycatch of YTF in the LAGC fishery is
extremely low. However, any YTF catch
by LAGC vessels as they continue to fish
would count toward that stock area’s
sub-ACL for the scallop fishery (and
would contribute to an overage of the
sub-ACL for the scallop fishery). The
YTF closure AM would be effective in
the scallop FY directly following the
year in which the YTF sub-ACL is
exceeded. By January 15 of each year,
NMFS would determine whether the
YTF sub-ACL is expected to (or has
been) exceeded that year. NMFS would
announce the closure to the scallop fleet
as soon as possible following the
determination, and the closure would
take effect on March 1. The Council also
specified that if the scallop fishery
exceeds its YTF allocation in 2010
(specified under the NE Multispecies
FMP), and that causes the entire
applicable YT ACL to be exceeded for
the 2010 fishing year, the scallop fishery
will be subject to the applicable YTF
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AM. To implement the YTF AM for the
2011 fishing year, NMFS would
determine the length of the closure as
specified below, beginning when
Amendment 15 is effective, if approved.
For the 2012 fishing year and beyond,
the YTF closure AM areas would remain
closed for the length of time specified in
the following tables, and would be in
place for one fishing year only:
SNE/MA YT CLOSURE AM DURATION
FOR SPECIFIED OVERAGE
Percent overage
of YTF sub-ACL
1–2 ....................
3–5 ....................
6–8 ....................
9–12 ..................
13–14 ................
15 ......................
16 ......................
17 ......................
18 ......................
19 ......................
20 and higher ...
Length of closure
March.
March through
March through
March through
March through
March through
March through
March through
March through
March through
March through
April.
May.
June.
July.
August.
September.
October.
November.
January.
February.
GB YT CLOSURE AM DURATION FOR
SPECIFIED OVERAGE IN YEARS
WHEN THE CAII ACCESS AREA IS
OPEN
Percent overage
of YTF sub-ACL
1 ........................
2–24 ..................
25–38 ................
39–57 ................
58–63 ................
64–65 ................
66–68 ................
69 ......................
70 and higher ...
Length of closure
March
March
March
March
March
March
March
March
March
through
through
through
through
through
through
through
through
through
May.
June.
July.
August.
September.
October.
November.
December.
February.
GB YT CLOSURE AM DURATION FOR
SPECIFIED OVERAGE IN YEARS
WHEN THE CAII ACCESS AREA IS
CLOSED
Percent overage
of YTF sub-ACL
1 ........................
2 ........................
3 ........................
4–5 ....................
6 and higher .....
Length of closure
March
March
March
March
March
through
through
through
through
through
May.
June.
July.
August.
February.
14. Monitoring the YTF Sub-ACL
In order to more effectively monitor
YTF bycatch in open areas, the daily
vessel monitoring system (VMS) catch
report that is currently required in
access areas only would be required for
all scallop trips in all areas. Vessel
operators would be required to report
the following information: Fishing
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vessel trip report (FVTR) serial number;
date fish caught; total pounds of scallop
meats kept; total pounds of YTF kept;
total pounds of YTF discarded; and total
pounds of all other fish kept. Vessels
would be required to submit VMS catch
reports for every day fished by 9 a.m. of
the day following the day on which
fishing occurred, consistent with access
area catch reporting.
15. LAGC IFQ Vessel Possession Limit
Increase
IFQ scallop vessels would be allowed
to harvest 600 lb (272.2 kg) of shucked
scallops or 75 bu (26.4 hL) of in-shell
scallops per trip, an increase of 200 lb
(90.7 kg) or 25 bu (8.8 hL) per trip from
the current 400-lb (181.4-kg) or 50-bu
(17.6-hL) possession/trip limit. This
alternative would address concerns that
the current possession limit is not
economically feasible due to increased
costs. The 600-lb (272.2-kg) possession
limit is not expected to change the
‘‘small boat’’ nature of the LAGC fishery,
and would remain consistent with the
Council’s vision for LAGC vessels,
while enabling vessel owners to
maintain profits under rising costs. The
increase is also consistent with the
conservation objectives of the FMP
because landings are constrained by the
IFQ allocations.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
16. IFQ Carryover
Amendment 15 proposes to allow IFQ
vessels that have unused IFQ at the end
of the FY to carry over up to 15 percent
of their unused IFQ to the subsequent
FY. Any IFQ that was leased by but not
used by a vessel could also be carried
over by the vessel that acquired the IFQ
(for monitoring and accounting
purposes, leased-in IFQ is used first, in
the order acquired). For accounting
purposes, the combined total of all
vessels’ IFQ carry-over shall be added to
the LAGC IFQ fleet’s applicable ACL for
the carry-over year. Any IFQ carried
over that is landed in the carry-over
fishing year shall be counted against the
ACL specified in paragraph (a)(4)(i) of
this section, as increased by the total
carry-over for all LAGC IFQ vessels, as
specified in paragraph (h)(2)(v)(B).
17. Increase the IFQ Vessel Cap to 2.5
Percent
This proposed measure would
increase the 2-percent IFQ cap per
vessel to 2.5 percent of the total IFQ
allocation to allow more flexibility and
promote efficiency for vessels in fishing
IFQs available to them. IFQ that is
carried over would not contribute to the
vessel’s 2.5-percent IFQ cap because the
carryover is a temporary increase of the
vessel’s IFQ based on underharvest the
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prior year. Because there is also a 5percent overall cap on how much IFQ
on entity may own, a vessel owner
would now be permitted to own only
two vessels to meet the 5-percent
ownership cap, rather than having to
own more than two vessels. This
alternative would provide increased
flexibility to vessel owners to more
effectively and efficiently fish their
IFQs.
originally implemented under that
action, but were vacated by a Federal
Court order resulting from a lawsuit on
Joint Framework 16/39. That order
specified that the EFH closed areas
could only be changed through an FMP
amendment. This proposed action
would address the inconsistency while
the Council continues to develop EFH
measures under Phase 2 of its Omnibus
EFH Amendment.
18. Permanent IFQ Transfers Separate
From LAGC IFQ Permit
This alternative would allow LAGC
IFQ permit owners to permanently
transfer some or all of their quota
allocation, independent of their IFQ
permit, to another LAGC IFQ permit
holder while retaining the permit itself.
This measure would enable vessel
owners additional flexibility to buy or
sell IFQ without impacting other
permits on their vessel. This allowance
would only apply to IFQ permit holders
that do not also have a LA scallop
permit to prevent crossover of IFQ
allocations between the two IFQ fleets
that have separate allocations.
20. Establish Third-Year Default
Measures Through the Biennial
Framework Process
Fishery specifications in the scallop
fishery are generally set every 2 years,
through the biennial framework
adjustment process. This alternative
would extend the fishery specification
process to include a third year of
allocation measures that would be
effective if subsequent framework
actions are delayed. Currently, measures
from the prior year roll over to the next
FY while the implementation of the new
set of management measures is pending.
However, the measures that roll over are
often not appropriate for the status of
the resource. By setting the measures for
the third year in the framework, the
measures are more likely to be
appropriate for the condition of the
fishery and resource. Third-year
measures would need to be set with
sufficient precaution to take into
account the uncertainty associated with
projections for the third year. The thirdyear measures would be superseded by
the measures developed in the biennial
framework adjustment for that year as
soon as it is implemented.
19. Revision of the EFH Closed Areas
To establish compatibility with the
NE Multispecies FMP, Amendment 15
would modify the EFH closed areas in
the Scallop FMP by removing the four
EFH closed areas that were
implemented in Amendment 10 to the
Scallop FMP, and it would replacing
them with EFH closed areas that are
identical to the EFH closed areas
implemented under the NE Multispecies
FMP. These areas are the Closed Area I
(CAI), Closed Area II (CAII), Nantucket
Lightship, Western Gulf of Maine,
Jeffrey’s Bank, and Cashes Ledge Habitat
Closed Areas. Coordinates for the area
are provided in the proposed
regulations in this proposed rule. A
chart depicting the areas is in the FEIS
for Amendment 15 (see ADDRESSES).
These areas would be closed to scallop
fishing (and closed to all mobile bottomtending gear under the NE Multispecies
FMP) to minimize the adverse impacts
of scallop fishing. This change in the
EFH closed areas under the Scallop
FMP would make the EFH closed areas
consistent between the Scallop FMP and
the NE Multispecies FMP, as intended
under Joint Frameworks 16 to the
Scallop FMP and 39 to the NE
Multispecies FMP (Joint Framework 16/
39) (69 FR 63460, November 2, 2004).
With inconsistent areas, the scallop
access areas in CAI, CAII, and the NLCA
are inconsistent with the area rotation
program established under the Scallop
FMP because they are restricted to areas
smaller than designed. These areas were
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21. New Frameworkable Measures
The following measures would be
added to the current list of measures
that can be adjusted under the Scallop
FMP by framework action.
Modify the LAGC possession limit:
The possession limit for LAGC vessels
could be modified upward or downward
by framework action. The intent is that
any modification of the possession limit
would not modify the nature of the
LAGC fleet and would be consistent
with the Council’s vision to maintain a
small-vessel fleet under LAGC
provisions. While the Council specified
in the Amendment 15 document that
the possession limit adjustments could
be done for IFQ vessels, it also
determined that the regulations should
specify that possession limit
adjustments could be made through the
framework process for all LAGC vessels,
including LAGC NGOM and Incidental
vessels.
Adjustment to aspects of ACL
management: This action proposes a
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new management strategy under ACL
management that will use many new
measures. All of the measures specified
in this action would be able to be
modified through framework actions.
The specific ACL-related measures that
could be modified by framework
include: Modifying associated
definitions and specification of OFL,
ABC, ACLs and ACTs, all of which are
specifically intended to be changed in
future frameworks or specification
packages as new information becomes
available about the resource and fishery;
buffers identified for management
uncertainty or scientific uncertainty
(ABC control rule); AMs for scallop
ACLs and other sub-ACLs allocated to
the scallop fishery; monitoring and
reporting requirements associated with
ACLs; timing of AM measures; and
adoption of sub-ACLs for other species
that are not currently part of this
program.
Adjusting EFH Closed Area
Management Boundaries
The framework action proposing the
boundary change would include an
analysis of the impacts of the specific
boundaries considered. This additional
framework authority would not allow
adoption of new EFH closed areas.
Adjusting RSA Allocation
Amendment 15 proposes to allocate
1.25 million lb (567 mt) of scallops for
RSA, regardless of the total projected
catch for the fishery. In the future, the
value could be increased or decreased
by framework action.
22. Changes to the Scallop RSA Program
Amendment 15 includes several
adjustments designed to improve the
RSA Program so that it is more efficient,
and so that awards under the Federal
grants process can be provided near or
before the start of the scallop FY on
March 1. The following improvements
are proposed:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
Announce (Publish) Federal Funding
Opportunity (FFO) as Early as Possible
Amendment 15 proposes that the
announcement of the funding
opportunity should be published as
soon as possible in the year preceding
the year in which research would be
conducted. If this results in more timely
reviewing and processing of awards,
this would maximize time for research
and compensation trips before the end
of the FY. This would be facilitated by
the Amendment 15 proposal to allocate
1.25 M lb (567 mt) to RSA program
annually (see below).
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Enable Multi-Year Awards
Currently, research priorities, TACs
for RSAs, and approved research
projects are limited to 1 year.
Amendment 15 would allow RSA
proposals and compensation to span up
to 2 years, corresponding with the
biennial framework process. Projects
could be awarded for 1 or 2 years.
Under this alternative, applicants could
apply for RSA for the first year, second
year, or both. This alternative would
increase flexibility for the applicant,
provide funding for some longer term
projects, and potentially reduce time
and resources spent on the application
and review process.
Establish RSA Allocation as a Fixed
Amount of Pounds Rather Than a
Percent of Total Catch
Currently 2 percent of access area
TACs and open area DAS are set aside
for the RSA program. That amount of
TAC and DAS varies depending on the
total TAC and DAS for the fishery.
Amendment 15 would modify the
scallop RSA program so that 1.25 M lb
(567 mt) would be set aside for the RSA
program. In addition, open area RSA
would be awarded in pounds rather
than DAS. Total projected catch for the
fishery may vary from year to year, but
the amount of catch set-aside for
research would be constant at 1.25 M lb
(567 mt), unless changed through a
framework adjustment. Assuming a
projected catch of about 50 million lb
(22,680 mt) for the fishery, 1.25 M lb
(567 mt) equals about 2.5 percent. This
is higher than recent levels to recognize
the importance of research and scallop
resource surveys for the success of the
area rotation program, but would not
create a separate pool of RSA for scallop
resource surveys.
Allocating this fixed amount could
enable the grant awards to be issued
earlier, because the amount of TAC
available for research would be known
in advance and would not change from
year to year. The specific areas that
would have available RSA would be
identified in the framework, but RSA
awards could still be made before
approval of the framework, based on
total scallop pounds needed to fund the
research. Recipients could either choose
to wait for NMFS approval of the
framework to begin compensation
fishing within approved access areas, or
could begin compensation fishing in
open areas prior to approval of the
framework. The intent of this alternative
is to help improve timeliness of the
scallop RSA program. This should only
be an issue for the first year of a
framework, because area-specific RSA
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19935
pounds will be known for the second
year of the framework action.
Rollover of Unused RSA Pounds to
Compensate Awarded Projects
Amendment 15 includes a provision
that specifies that if updated analyses
suggest that the price per pound
estimates used in the FFO were low,
and if all RSA TAC is not allocated,
NMFS could allocate unused TAC to
compensate awarded projects or to
expand a project rather than having that
RSA go unused. Amendment 15
proposes that if there is RSA TAC
available after all awards are made, a
project that was already awarded RSA
would be permitted to apply for
additional TAC to expand its research
project or for compensation if the actual
scallop price per pound was less than
estimated. The implementation details
of this proposal were not specified in
Amendment 15. Therefore, under the
authority of section 305(d) of the MSA,
NMFS proposes that this provision
would enable NMFS to provide the
opportunity for reallocation of available
RSA pounds as part of the original FFO
for the project. The FFO would specify
the conditions under which a project
that has been awarded RSA could be
provided additional RSA pounds as
supplemental compensation to account
for lower-than-expected scallop price or
for expansion of the approved project.
Extension for Harvesting RSA
Compensation
Currently all RSA TAC has to be
harvested by the end of the FY for
which it is awarded. This measure
would allow an RSA award recipient to
harvest RSA compensation TAC for up
to 3 months (i.e., prior to June 1) into
the subsequent FY. Allowing vessels
involved in RSA projects to harvest RSA
TAC into the next FY would provide
flexibility for participating vessels and
researchers, and is consistent with
carryover provisions for the fishery as a
whole.
Specify Regulations From Which RSA
Projects Would be Exempt
Amendment 15 proposes a list of the
scallop management measures from
which RSA funded projects may be
exempt. The researcher would need to
list the measures the project is proposed
to be exempt from in the RSA proposal.
The researcher would not need to apply
for an exempted fishing permit (EFP) to
be exempt from the following
restrictions: Crew restrictions; seasonal
closures in access areas; and the
requirement to return to port if fishing
in more than one area. These
exemptions would be issued by the
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Regional Administrator through a letter
of authorization. The exemptions would
be issued for research trips under the
applicable RSA project. RSA
compensation fishing trips would not be
eligible for exemption from these
restrictions because compensation trips
are intended only to provide researchers
with the ability to collect funds through
normal fishing operations.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
Increase Public Input on RSA Proposals
Although the Council recommended
that the Council’s Scallop Advisory
Panel members play a more prominent
role in setting research priorities and
reviewing proposals, no proposed
regulations are necessary to effectuate
that recommendation. NMFS would
seek more input from the Council’s
Scallop Advisors through the next
solicitation for scallop RSA proposals.
Review of RSA projects under the
Federal grants program is limited to
individuals who do not have any
relationship or vested interest in
proposed research.
Public comments are being solicited
on Amendment 15 and its incorporated
documents through the end of the
comment period stated in this proposed
rule (see DATES). NMFS has also
published a Notice of Availability, with
a comment period ending May 23, 2011,
(76 FR 16595, March 24, 2011). All
comments received by May 23, 2011,
whether specifically directed to
Amendment 15 or the proposed rule for
Amendment 15, will be considered in
the approval/disapproval decision on
Amendment 15. Comments received
after that date will not be considered in
the decision to approve or disapprove
Amendment 15. To be considered,
comments must be received by close of
business on the last day of the comment
period; that does not mean postmarked
or otherwise transmitted by that date.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this proposed rule is consistent
with the Scallop 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.
This proposed rule contains a revision
to a current collection-of-information
requirement subject to review and
approval by OMB under the Paperwork
Reduction Act (PRA). Public reporting
burden for this collection of
information, the expansion of the VMS
catch report to all areas (OMB Control
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15:50 Apr 08, 2011
Jkt 223001
Number 0648–0491), is estimated to
average 2 min per response. This
estimate includes the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection information.
Public comment is sought regarding:
Whether this proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information shall have practical utility;
the accuracy of the burden estimate;
ways to enhance the quality, utility, and
clarity of the information to be
collected; and ways to minimize the
burden of the collection of information,
including through the use of automated
collection techniques or other forms of
information technology. Send comments
on these or any other aspects of the
collection of information to OMB by email at OIRA_Submission@omb.eop.gov,
or fax to (202) 395–7285 and to the
Regional Administrator at the address
provided in the ADDRESSES section of
this proposed rule.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
An IRFA has been prepared, as
required by section 603 of the
Regulatory Flexibility Act (RFA). The
IRFA consists of the relevant analyses,
including the draft IRFA, included in
Amendment 15, and the preamble to
this proposed rule. A summary of the
analysis follows.
Statement of Objective and Need
This action proposes to implement
ACL and AMs for the scallop fishery, as
well as other measures to improve
management of the scallop fishery. A
description of the management
measures, why this action 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 proposed regulations would
affect vessels with LA and LAGC scallop
permits. The FEIS for Amendment 15
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.
There were 313 vessels that obtained
full-time LA permits in 2010, including
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250 dredge, 52 small-dredge and 11
scallop trawl permits. In the same year,
there were also 34 part-time LA permits
in the sea scallop fishery. No vessels
were issued occasional scallop permits.
By the start of FY 2010, the first year of
the LAGC IFQ program, 362 IFQ permits
(including 40 IFQ permits issued to
vessels with a LA scallop permit), 127
NGOM, and 294 incidental catch
permits were issued. Since all scallop
permits are limited access, vessel
owners would only cancel permits if
they decide to stop fishing for scallops
on the permitted vessel permanently or
if they transfer IFQ to another IFQ
vessel and permanently relinquish the
vessel’s scallop permit. This is likely to
be infrequent due to the value of
retaining the permit. As such, the
number of scallop permits could decline
over time, but would likely be less than
10 permits per year.
The RFA defines a small business
entity in any fish-harvesting or hatchery
business as a firm that is independently
owned and operated and not dominant
in its field of operation (including its
affiliates), with receipts of up to
$4 million annually. The vessels in the
Atlantic sea scallop fishery are
considered small business entities
because all of them grossed less than
$3 million according to the dealer’s data
for FYs 1994 to 2009. In FY 2009, total
average revenue per full-time scallop
vessel was just over $1 million, and
total average scallop revenue per general
category vessel was just under $80,000.
The IRFA for this and prior Scallop
FMP actions has not considered
individual entity ownership of multiple
vessels. More information about
common ownership is being gathered,
but the effects of common ownership
relative to small v large entities under
the RFA is still unclear and will be
addressed in future analyses.
The Small Business Association
(SBA) suggests two criteria to consider
in determining the significance of
regulatory impacts; namely,
disproportionality and profitability. The
disproportionality criterion compares
the effects of the regulatory action on
small versus large entities (using the
SBA-approved size definition of ‘‘small
entity’’), not the difference between
segments of small entities. Amendment
15 is not expected to have significant
regulatory impacts on the basis of the
disproportionality criterion, because all
entities are considered to be small
entities in the scallop fishery and,
therefore, the proposed action would
not place a substantial number of small
entities at a significant competitive
disadvantage relative to large entities. A
summary of the economic impacts
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relative to the profitability criterion is
provided below under ‘‘Economic
Impacts of Proposed Measures and
Alternatives.’’
emcdonald on DSK2BSOYB1PROD with PROPOSALS
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
This action would implement an
expansion of current VMS catch
reporting that would require all LA,
LAGC IFQ, and LAGC NGOM scallop
vessels to report YTF catch (kept and
discards) and all other species kept
(including scallops) on all scallop trips.
Such reports would have to be
submitted for each day fished by 9 a.m.
of the day following the day on which
the fishing activity occurred. Currently
this requirement applies only to access
area scallop trips. The expansion of the
requirement to all areas would increase
the current burden cost of 333 hours at
a total cost of $4,995 to 1,000 hours at
a total cost of $15,000 for all scallop
vessels combined. The expansion is
needed to monitor YTF bycatch relative
to the sub-ACL for YTF proposed under
Amendment 15. Amendment 15 does
not duplicate, overlap, or conflict with
any other Federal law.
Economic Impacts of Proposed
Measures and Alternatives
A summary of the economic impacts
of proposed and alternative measures is
provided below. Detailed economic
impact analysis is provided in Section
5.4 and Appendix III of the FEIS for
Amendment 15 (see ADDRESSES).
Each vessel within the same permit
category (i.e., full-time, part-time, and
occasional) is allocated the same
number of DAS and access area trips.
LAGC IFQ vessels receive 5.5 percent of
the projected catch after research and
observer set-asides are removed, and
IFQs are proportionately allocated based
on a percent share of the 5.5-percent
fleetwide allocation. Therefore, those
measures that affect overall projected
landings will have proportional impacts
on all the participants because
allocations for all vessels will be
adjusted up or down in the same
percentage. Some of the other proposed
measures are specific to each fishery,
however, and they will result in
differential impacts, as discussed below
for each individual action. In summary,
although some specific measures
proposed in Amendment 15, such as the
hybrid OFD, catch limits, and AMs
could have some negative impacts on
the revenues and profits from the
scallop fishery in the short-term, the
benefits from the other proposed
alternatives, including the measures that
would reduce scientific or management
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uncertainty, the modification of the EFH
areas, modifications to the LAGC
possession limits and other related
measures are expected to offset in part
or in full these short-term negative
effects. As a result, the aggregate
economic impacts of Amendment 15
measures, combined, in the short-term
are likely to range from small negative
impacts to small positive impacts. The
proposed action is not expected to have
significant impacts on the viability of
the vessels, because these impacts are
estimated to be relatively small. In
addition, even with negative impacts,
the profit rate is estimated to exceed 20
percent of the gross revenue in the
scallop industry, providing for shortterm cash reserves to finance operations
through several months or years until
the positive effects of the regulations
start paying off. In the long-term, the
economic impacts of the combined
measures on the participants of the
scallop are expected to be positive.
Economic Impacts of the Individual
Measures
Amendment 15 includes ACLs and
AMs to bring the Scallop FMP into
compliance with requirements of the
MSA as reauthorized in 2007. Although
the Council discussed various ways of
establishing ACLs throughout the
development of Amendment 15, the
only alternative was to take no action.
Alternatives to proposed AMs would
have implemented AMs a full year after
the end of the fishing year in which the
overage occurred. The Council
considered two alternatives to the
proposed revision of the OFD. One
alternative maintained the current OFD
and another based the OFD on a
resource-wide and time-averaged
approach. The Council’s decision to
modify the essential fish habitat (EFH)
closed areas under the Scallop FMP had
only the alternative to take no action.
The Council considered several
alternatives to the various adjustments
to measures for the LAGC fishery and
determined that additional alternatives
were not necessary. Specifically, the
Council considered various increases to
the LAGC IFQ fishery possession limit,
no increase to the maximum IFQ a
vessel can be allocated, no allowance to
carry over IFQ from one fishing year to
the next, no allowance to transfer IFQ
separately from the IFQ permit, and a
suite of measures to regulate the
formation of community fishing
associations. The Council also
considered several alternatives to the
proposed adjustments to the scallop
RSA program, including separating setaside TAC for scallop resource surveys,
and various ways of allocating RSA TAC
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that remains available after all approved
projects are awarded in a particular
year. Since the Council can only
establish framework measures for those
measures that are included in the FMP
already, the only alternative to the
proposed additions to the list of
measures that can be adjusted by
framework adjustments is to not add
measures or add only a subset of the
measures. Under the MSA, NMFS can
only approve or disapprove
management measures recommended by
the Council. Therefore, NMFS cannot
replace proposed alternatives with other
measures considered by not adopted by
the Council.
1. Compliance With MSA
ACL Structure and Subcomponents
This new requirement is expected to
have long-term economic benefits on the
fishery by helping to ensure that catch
limits (ACLs) are set at or below ABC,
in order to prevent the resource from
being overfished and overfishing from
occurring. Buffers for scientific and
management uncertainty would reduce
the risk of fishery exceeding its ACL,
thus reducing the risk of overfishing the
scallop resource, with positive impacts
on the overall scallop yield, revenues,
and total economic benefits from the
fishery. Establishing catch limits is
expected to result in a similar landings
stream compared to the status quo
management. Even if the landing
streams changed as a result of the new
measures, the risk to the resource from
overfishing due to scientific or
management uncertainty would be
minimized under the proposed
measures, because these sources of
uncertainty are better accounted for.
This, in turn, is expected to keep the
landings and economic benefits
relatively more stable and reduce the
uncertainty in business decisions over
the long-term. The separation of an ACL
into two sub-ACLs with associated
ACTs is expected to have positive
impacts on the scallop fishery and its
subcomponents. Separating the two
fleets with separate ACLs prevents one
component of the fishery from
impacting the catch levels of the other.
This would prevent negative economic
impacts from spreading from one fleet to
the other. There are no alternatives that
would generate higher economic
benefits for the participants of the
scallop fishery. Under the No Action
alternative, there is a risk of overfishing
the resource due to the scientific and
management uncertainty that is not
adequately addressed currently. Existing
measures do not have well-defined
accountability and payback mechanisms
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if catch limits are exceeded due to these
sources of uncertainty, which could
result in continual reductions in
allocations, effort levels, and trips.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
2. Implementation of AMs
LA AMs would consist of the use of
an ACT, and an overall DAS reduction
to account for any overages. The
deduction would be applied in the
second FY following the FY in which
the overage occurred (e.g., an overage in
FY 2011 would result in a DAS
reduction in FY 2013). The overall
economic impacts in the short-term on
the participants of the scallop fishery
depend on whether or not the ACT
prevents an ACL overage. Exceeding the
ACL in one year will have positive
economic impacts on the participants of
the scallop fishery in that year, but it
would be followed by negative impacts
in the year in which the AM is applied,
since DAS would be deducted based on
the level of the overage. The short-term
impacts averaged over the applicable
years would be neutral or small. The
proposed action also includes a
disclaimer for when the LA AM would
not be triggered, even if the LA sub-ACL
exceeded. If there is no biological harm,
and updated estimates of F are actually
lower than what was projected, there
will be no reason for a DAS reduction
in the subsequent year. This would
minimize or even eliminate any
potentially negative impacts, since the
AM would not be implemented.
For the LAGC fishery, if an individual
vessel exceeds its IFQ (including leased
IFQ), the amount of IFQ equal to the
overage would be deducted from the
vessel’s IFQ in the FY following the FY
in which the overage occurred.
Similarly, this action proposes that if
the NGOM component of the fishery
exceeds the overall hard-TAC (equal to
the NGOM ACL) after all data is final,
then the hard TAC could be reduced by
the amount equal to the overage in the
following FY. Exceeding the vessel’s
IFQ in one year will have positive
economic impacts in that year, followed
by negative impacts in the year in which
the deduction is applied, so the shortterm impacts averaged over these 2
years would be neutral or small. The
measures would help reduce the risks of
exceeding ACLs and would have
positive impacts on the scallop yields
and economic impacts from the fishery
as a whole over the long-term.
The Council also considered making
the AMs effective in the second year
following FY in which the overage
occurred. This would have very similar
economic impacts to the proposed
application of AMs, except that the
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negative impacts would be delayed for
1 year.
3. Trigger of LA AM Disclaimer and
Allocations to the LAGC
If the LA AM disclaimer is triggered,
5.5 percent of the difference between
the exceeded LA sub-ACL and the
actual LA landings will be allocated to
the LAGC fleet the following FY. This
measure would have positive economic
impacts on the LAGC vessels and
prevent the LA fishery from receiving a
higher share of the total catch than
allocated to them by Amendment 15
provisions. The no action alternative
would generate negative economic
impacts compared to the proposed
action, because it would not provide the
LAGC fleet with similar additional
catch.
4. ACLs and AMs for YTF
The proposed AM for the YTF subACL, if the scallop fishery exceeds the
sub-ACL, is a seasonal closure of areas
that have been pre-identified to have
high YTF bycatch rates. The applicable
area would be closed in the subsequent
FY for a specified period of time to only
LA scallop vessels (LAGC vessels would
be exempt from the closure). This
measure could increase fishing costs
and have negative impacts on the
scallop revenues and profits if the effort
is moved to less productive areas with
lower LPUE, or to areas with a
predominance of smaller scallops with
a lower price. Implementation of the
closure in the subsequent year, rather
than in-season, would prevent derby
style fishing and minimize the negative
impacts on prices and revenues
associated with it. Exempting LAGC
trips from this AM would prevent high
distributional impacts for LAGC vessels
that have a dependence on fishing
within the proposed closure areas in
SNE waters.
The alternative that would close an
entire YTF stock area would have
greater negative impacts on scallop
revenues and profits compared to
options that would close only specific
portions of areas with high YTF
bycatch. Higher negative impacts result
from a very large portion of the scallop
fishery being closed compared to
discrete areas under the proposed
alternative. Economic benefits from
minimizing YTF bycatch in the year
following an overage under the stock
wide area closure alternatives would
accrue over the long term if YTF stocks
improve and the likelihood of scallop
fishery closures is reduced. However,
the proposed measure provides nearly
the same bycatch reduction for YTF
because the areas are where the highest
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YTF bycatch occurs in the scallop
fishery. The immediate economic
benefits of the proposed measure
therefore outweighs the long term
potential benefits associated with the
stock wide closure. The alternatives that
would institute either a fleet maximum
DAS or an individual maximum number
of DAS that can be used in a stock area
for year 3 to account for an overage of
the YTF sub-ACL in year 1 could reduce
the negative impacts on scallop
revenues, costs, and total economic
benefits by preventing derby fishing and
allowing more time for the scallop fleet
to make adjustments for exceeding the
YTF ACLs. However, it would apply
penalties to the whole fleet for overages
that may have been caused by only a
part of the fleet. In addition, these
options could increase the
administration costs by making it
necessary to monitor DAS-used by YTF
stock areas, which would require
additional reporting and recordkeeping
requirements.
5. Measures to Adjust the OFD
The adoption of the hybrid OFD could
result in a reduction in revenues and
profits compared to no action
alternative in the short to medium term.
During the first 10 years of
implementation, average scallop
revenue per vessel net of trips costs are
expected to decline by about 5.8
percent. This alternative is expected
have positive economic impacts over
the long-term, however, since this
definition will provide more flexibility
to meet the area rotation objectives and
is expected to increase catch by 10
percent with larger average scallop size.
In addition, this alternative could
potentially reduce area swept, thus
would reduce adverse effects on
bycatch, seabed habitats, and EFH, with
indirect positive impacts on the scallop
fishery. For example, a reduction in
bycatch would prevent triggering YTF
AM measures, and the negative impacts
on scallop landings and revenues
associated with such a measure. This
could offset some of the short-term
potentially negative economic impacts
from the hybrid OFD.
The status quo OFD is estimated to
result in higher revenues and profits in
the short-term compared to the hybrid
overfishing definition. This alternative
was not selected by the Council because
it is not consistent with the spatial
management of the scallop fishery, has
higher risks for the scallop resource, and
lower economic benefits for the scallop
fishery over the long-term compared to
the proposed measure.
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6. IFQ Carryover
The proposed carryover provision
would allow LAGC IFQ vessels to carry
up to 15 percent of a vessel’s IFQ,
including leased IFQ, to the following
FY, if the vessel has unused IFQ at the
end of the FY. This would provide
flexibility and safety-at-sea benefits in
the case of unforeseen circumstances or
bad weather that prevents the vessel
from using all of its IFQ. As a result, this
would give opportunity to vessels to
land their unused quote in the next year
with positive economic impacts for
vessels, the LAGC fishery, and overall
scallop revenue and profits.
The no action alternative would have
smaller economic benefits compared to
the proposed option because it would
not allow IFQ to be carried over into the
subsequent FY. The Council also
considered allowing a vessel’s entire
IFQ to be carried over, which would
have provided higher immediate
economic benefits than the proposed
option. However, transferring a larger
portion or the entire amount of the
unused quota could increase
management uncertainty, which could
result in application of an ACT, set
below the ACL, to serve as a buffer to
protect against the uncertainty. This
overall reduction for the following FY
would have negative impacts on the
quota allocations and economic benefits
in future years.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
7. Modification of the LAGC IFQ Vessel
Possession Limit
An increase in the general category
possession limit from 400 lb (181.4 kg)
to 600 lb (272.2 kg) is expected to
reduce the fishing time and trip costs,
because it would increase trip efficiency
and reduce steaming time over the
course of the FY. In addition, it could
increase profits for these vessels or
offset the cost of elevated fuel prices. As
a result, the proposed option is expected
have positive economic impacts on the
scallop fishery compared to the no
action alternative.
Alternatives to the proposed action
included eliminating the possession
limit and increasing it to 1,000 lb (454
kg) per trip. These alternatives would
produce higher benefits than the
proposed option by maximizing trip
revenue compared to fishing costs.
However, this alternative could change
the nature of the LAGC fishery from a
small scale fishery to a full-time
operation like the LA fishery, which
would run counter to the FMP’s
objective of preserving the small scale
nature of the fishery for the LAGC fleet.
It may result in consolidation that
would eliminate operations with
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19939
smaller IFQs or that have less total share
of the IFQ fishery. This alternative was
not selected because the Council
continues to support the LAGC fishery
as a small vessel fishery, consistent with
its goals and vision for the fishery as
developed under Amendment 11 to the
FMP.
transfers, since some owners would
prefer to retain the permits for other
fisheries. The no action alternative,
therefore, would have reduced benefits
compared to the proposed action.
8. Increase in the Maximum IFQ per
Vessel
The proposed action to change the
2-percent maximum quota per vessel to
2.5 percent would provide more
flexibility to vessels to adjust their
harvest levels to changes in the scallop
resource conditions. In addition, since a
vessel owner could meet the 5-percent
ownership cap by owning only two
vessels, it would eliminate ownership
costs associated with multiple vessels.
The proposed increase to a 2.5-percent
cap would, therefore, have positive
impacts on profitability. The no action
alternative for increasing the maximum
IFQ per vessel would not improve
flexibility and would have negative
economic impacts associated with costs
of vessel ownership compared to the
proposed action.
The proposed option would modify
the EFH areas closed to scallop gear
under Scallop Amendment 10 to be
consistent with NE Multispecies
Amendment 13, and eliminate the areas
closed for EFH under Amendment 10.
As a result, effort could be allocated to
CAI (where the scallops are larger and
yield is higher), instead of allocating
more open area effort in areas with
potentially lower catch rates. This is
estimated to have positive impacts on
the scallop resource and future yield,
and to increase the scallop revenues by
about $8 million (assuming a price of
$7.00 per lb) per year. Fishing in more
productive areas would also reduce the
fishing costs. Therefore, the proposed
measure is expected to have positive
impacts on revenues and profits from
the scallop fishery. The Council
considered taking no action, but such
action would have lower economic
benefits than the proposed action, since
it would not provide access to portions
of the scallop resource that would
improve yield and reduce fishing costs.
9. Allowing LAGC Quota To Be Split
From IFQ Permits
The proposed measure to allow the
IFQ to be split from the IFQ permit
would improve flexibility and facilitate
movement of quota between fishermen.
It would also increase the likelihood
that all IFQ will be harvested, thereby
reducing management uncertainty. It
would allow fishermen to combine their
allocations and to benefit from an
economically viable operation when the
allocations of some vessels are too small
to make scallop fishing profitable. The
proposed measure is therefore likely to
have positive impacts on revenues and
profits for the participants of the IFQ
fishery.
The Council rejected an alternative
that would have allowed quota to be
transferred between the LA/IFQ fleet
and IFQ-only fleet. This alternative
would have resulted in larger economic
benefits for LAGC vessels because it
would provide another source of IFQ.
However, this option was not chosen by
the Council mostly due to concerns
about the difficulty of monitoring mixed
quota from the two categories, since
they are allocated quota from two
separate pools.
Under the no action alternative, LAGC
vessels that want to permanently
transfer quota have to purchase LAGC
permit as well as all the other permits
a vessel has, which makes purchasing of
LAGC IFQ very expensive. It also is a
deterrent to engaging in permanent
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10. Measures to Address EFH Closed
Areas
11. Measures to Improve RSA Program
These alternatives are expected to
have positive indirect economic benefits
for the sea scallop fishery by improving
the timing and administration of the
RSA program. Having dedicated
resources for funding research to survey
access areas will improve the Council’s
ability to allocate the appropriate
amount of effort to prevent overfishing
and optimize yield. Exempting RSA
projects (if identified in the proposal)
from crew restrictions, the seasonal
closure in Elephant Trunk, and the
requirement to return to port if fishing
in more than one area will allow more
flexibility and more effective research.
If, as a result of these measures, the
program can be more streamlined, and
worthwhile projects can occur with
fewer obstacles, better and more timely
research will result in indirect benefits
to the scallop resource and yield and
will increase economic benefits from the
scallop fishery. Several alternatives
were considered by the Council, but
they all would have similar impacts.
Therefore, the proposed measures are
based on policy decisions that reflect
the most efficient and effective way of
implementing the RSA Program.
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12. Third-Year Default Measures in the
Framework Adjustment Process and
Addition to the List of Frameworkable
Items in the FMP
The proposed action includes adding
a third year of specifications to the
framework process in order to prevent
outdated measures from getting
implemented due to the delay in the
implementation of the 2-year framework
actions. It would serve as a ‘‘safety
mechanism’’ to prevent against ‘‘No
Action’’ rollovers during
implementation delays. These ‘‘No
Action’’ rollover measures complicate
management of the scallop fishery, do
not make sense for the industry, and
may cause undesired negative effects or
require further management
intervention. Therefore, including thirdyear specifications would alleviate some
of the implementation issues caused by
the time lag between the FY and the
time when the survey data becomes
available. Since the measures that are
created for year 3 will result in landings
more consistent with the updated
scallop biomass estimates and PDT
recommendations, this action is
expected to have positive indirect
effects on the participants of the scallop
fishery. There are no other alternatives
that would result in larger economic
benefits.
Expanding the list of adjustable
framework items would allow the
Council to more easily adjust the
allocations according to the resource
conditions and as needed in terms of
research priorities or to make further
changes to benefit EFH. As a result,
these measures are expected to have
positive impacts on the scallop fishery
and its participants. There are no other
alternatives that would result in larger
economic benefits.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: April 4, 2011.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
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 § 648.4, paragraphs (a)(2)(i)
introductory text, and (a)(2)(ii)(A) are
revised to read as follows:
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§ 648.4
Vessel permits.
(a) * * *
(2) * * *
(i) Limited access scallop permits.
Any vessel of the United States that
possesses or lands more than 600 lb
(272.2 kg) of shucked scallops, or 50 bu
(17.6 hL) of in-shell scallops per trip
South of 42°20′ N. Lat., or 75 bu (26.4
hL) of in-shell scallops per trip North of
42°20′ N. Lat, or possesses more than
100 bu (35.2 hL) of in-shell scallops
seaward of the VMS Demarcation Line,
except vessels that fish exclusively in
State waters for scallops, must have
been issued and carry on board a valid
limited access scallop permit.
*
*
*
*
*
(ii) * * *
(A) Individual fishing quota LAGC
permit. To possess or land up to 600 lb
(272.2 kg) of shucked meats, or land up
to 75 bu (26.4 hL) of in-shell scallops
per trip, or possess up to 100 bu (35.2
hL) of in-shell scallops seaward of the
VMS demarcation line, a vessel must
have been issued an individual fishing
quota LAGC scallop permit (IFQ scallop
permit). Issuance of an initial IFQ
scallop permit is contingent upon the
vessel owner submitting the required
application and other information that
demonstrates that the vessel meets the
eligibility criteria specified in paragraph
(a)(2)(ii)(D) of this section.
*
*
*
*
*
3. In § 648.10, paragraphs (e)(5)(i),
(e)(5)(ii), (f)(4)(i), and (h)(8) are revised
to read as follows:
§ 648.10 VMS and DAS requirements for
vessel owners/operators.
*
*
*
*
*
(e) * * *
(5) * * *
(i) A vessel subject to the VMS
requirements of § 648.9 and paragraphs
(b) through (d) of this section that has
crossed the VMS Demarcation Line
under paragraph (a) of this section is
deemed to be fishing under the DAS
program, the LAGC IFQ or NGOM
scallop fishery, or other fishery
requiring the operation of VMS as
applicable, unless prior to leaving port,
the vessel’s owner or authorized
representative declares the vessel out of
the scallop, NE multispecies, or
monkfish fishery, as applicable, for a
specific time period. NMFS must be
notified by transmitting the appropriate
VMS code through the VMS, or unless
the vessel’s owner or authorized
representative declares the vessel will
be fishing in the Eastern U.S./Canada
Area, as described in § 648.85(a)(3)(ii),
under the provisions of that program.
(ii) Notification that the vessel is not
under the DAS program, the LAGC IFQ
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Sfmt 4702
or NGOM scallop fishery, or any other
fishery requiring the operation of VMS,
must be received by NMFS prior to the
vessel leaving port. A vessel may not
change its status after the vessel leaves
port or before it returns to port on any
fishing trip.
*
*
*
*
*
(f) * * *
(4) * * *.
(i) The owner or operator of a limited
access, LAGC IFQ, or LAGC NGOM
vessel that fishes for, possesses, or
retains scallops, and is not fishing under
a NE Multispecies DAS or sector
allocation, must submit reports through
the VMS, in accordance with
instructions to be provided by the
Regional Administrator, for each day
fished, including open area trips, access
area trips as described in § 648.60(a)(9),
and trips accompanied by a NMFSapproved observer. The reports must be
submitted for each day (beginning at
0000 hr and ending at 2400 hr) and not
later than 0900 hours of the following
day. Such reports must include the
following information:
(A) FVTR serial number;
(B) Date fish were caught;
(C) Total pounds of scallop meats
kept;
(D) Total pounds of yellowtail
flounder kept;
(E) Total pounds of yellowtail
flounder discarded; and
(F) Total pounds of all other fish kept.
*
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*
*
(h) * * *
(8) Any vessel issued a limited access
scallop permit and not issued an LAGC
scallop permit that possesses or lands
scallops; any vessel issued a limited
access scallop and LAGC IFQ scallop
permit that possesses or lands more
than 600 lb (272.2 kg) of scallops; any
vessel issued a limited access scallop
and LAGC NGOM scallop permit that
possesses or lands more than 200 lb
(90.7 kg) of scallops; any vessel issued
a limited access scallop and LAGC IC
scallop permit that possesses or lands
more than 40 lb (18.1 kg) of scallops;
any vessel issued a limited access NE
multispecies permit subject to the NE
multispecies DAS program requirements
that possesses or lands regulated NE
multispecies, except as provided in
§§ 648.10(h)(9)(ii), 648.17, and 648.89;
any vessel issued a limited access
monkfish permit subject to the monkfish
DAS program and call-in requirement
that possesses or lands monkfish above
the incidental catch trip limits specified
in § 648.94(c); and any vessel issued a
limited access red crab permit subject to
the red crab DAS program and call-in
requirement that possesses or lands red
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crab above the incidental catch trip
limits specified in § 648.263(b)(1) shall
be deemed to be in its respective DAS
program for purposes of counting DAS
and will be charged DAS from its time
of sailing to landing, regardless of
whether the vessel’s owner or
authorized representative provides
adequate notification as required by
paragraphs (e) through (h) of this
section.
*
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4. In § 648.11, paragraphs (g)(1) and
(g)(2)(ii) are revised to read as follows:
§ 648.11 At-sea sea sampler/observer
coverage.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
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(g) * * *
(1) General. Unless otherwise
specified, owners, operators, and/or
managers of vessels issued a Federal
scallop permit under § 648.4(a)(2), and
specified in paragraph (b) of this
section, must comply with this section
and are jointly and severally responsible
for their vessel’s compliance with this
section. To facilitate the deployment of
at-sea observers, all sea scallop vessels
issued limited access permits fishing in
open areas or Sea Scallop Access Areas,
and LAGC IFQ vessels fishing under the
Sea Scallop Access Area program
specified in § 648.60, are required to
comply with the additional notification
requirements specified in paragraph
(g)(2) of this section. When NMFS
notifies the vessel owner, operator,
and/or manager of any requirement to
carry an observer on a specified trip in
either an Access Area or Open Area as
specified in paragraph (g)(3) of this
section, the vessel may not fish for, take,
retain, possess, or land any scallops
without carrying an observer. Vessels
may only embark on a scallop trip in
open areas or Access Areas without an
observer if the vessel owner, operator,
and/or manager has been notified that
the vessel has received a waiver of the
observer requirement for that trip
pursuant to paragraphs (g)(3) and
(g)(4)(ii) of this section.
(2) * * *
(ii) LAGC IFQ vessels. LAGC IFQ
vessel owners, operators, or managers
must notify the NMFS/NEFOP by
telephone by 0001 hr of the Thursday
preceding the week (Sunday through
Saturday) that they intend to start a
scallop trip in an access area. If selected,
up to two Sea Scallop Access Area trips
that start during the specified week
(Sunday through Saturday) can be
selected to be covered by an observer.
NMFS/NEFOP must be notified by the
owner, operator, or vessel manager of
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any trip plan changes at least 48 hr prior
to vessel departure.
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5. In § 648.14, paragraphs (i)(1)(ii),
(i)(1)(iii)(A)(1)(iii), (i)(1)(iii)(A)(2)(iii),
(i)(1)(iii)(A)(3) introductory text,
(i)(4)(i)(A), (i)(4)(ii)(B), and (i)(4)(iii)(B)
are revised, paragraph (i)(2)(viii) is
added, and paragraph (i)(3)(iii)(E) is
removed as follows:
§ 648.14
Prohibitions.
*
*
*
*
*
(i) * * *
(1) * * *
(ii) Gear and crew requirements. Have
a shucking or sorting machine on board
a vessel while in possession of more
than 600 lb (272.2 kg) of shucked
scallops, unless that vessel has not been
issued a scallop permit and fishes
exclusively in State waters.
(iii) * * *
(A) * * *
(1) * * *
(iii) The scallops were harvested by a
vessel that has been issued and carries
on board an IFQ scallop permit and is
properly declared into the IFQ scallop
fishery or is properly declared into the
NE multispecies or Atlantic surfclam or
quahog fishery and is not fishing in a
sea scallop access area.
*
*
*
*
*
(2) * * *
(iii) The scallops were harvested by a
vessel that has been issued and carries
on board an IFQ scallop permit issued
pursuant to § 648.4(a)(2)(ii)(A), is
fishing outside of the NGOM scallop
management area, and is properly
declared into the general category
scallop fishery or is properly declared
into the NE multispecies or Atlantic
surfclam or quahog fishery and is not
fishing in a sea scallop access area.
*
*
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*
*
(3) In excess of 600 lb (272.2 kg) of
shucked scallops at any time, 50 bu
(17.6 hL) of in-shell scallops per trip
South of 42°20′ N. Lat. and shoreward
of the VMS Demarcation Line, or 75 bu
(26.4 hL) of in-shell scallops per trip
North of 42°20′ N. Lat and shoreward of
the VMS demarcation line, or 100 bu
(35.2 hL) in-shell scallops seaward of
the VMS Demarcation Line, unless:
*
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*
(2) * * *
(viii) Fish for scallops in, or possess
scallops or land scallops from, the
yellowtail flounder accountability
measure closed areas specified in
§ 648.64 during the period specified in
the notice announcing the closure and
based on the closure table specified in
§ 648.64 .
*
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*
*
*
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19941
(4) * * *
(i) * * *
(A) Fish for or land per trip, or
possess at any time, in excess of 600 lb
(272.2 kg) of shucked, or 75 bu (26.4 hL)
of in-shell scallops per trip, or, or 100
bu (35.2 hL) in-shell scallops seaward of
the VMS Demarcation Line, unless the
vessel is carrying an observer as
specified in § 648.11 while participating
in the Area Access Program specified in
§ 648.60 and an increase in the
possession limit is authorized by the
Regional Administrator and not
exceeded by the vessel, as specified in
§§ 648.52(g) and 648.60(d)(2).
*
*
*
*
*
(ii) * * *
(B) Have an IFQ allocation on an IFQ
scallop vessel of more than 2.5 percent
of the total IFQ scallop TAC as specified
in § 648.53(a)(5).
*
*
*
*
*
(iii) * * *
(B) Apply for an IFQ transfer that will
result in the receiving vessel having an
IFQ allocation in excess of 2.5 percent
of the total IFQ scallop TAC.
*
*
*
*
*
6. In § 648.51, paragraphs (d)(1) and
(e) introductory text are revised to read
as follows:
§ 648.51
Gear and crew restrictions.
*
*
*
*
*
(d) * * *
(1) Shucking machines are prohibited
on all limited access vessels fishing
under the scallop DAS program, or any
vessel in possession of more than 600 lb
(272.2 kg) of scallops, unless the vessel
has not been issued a limited access
scallop permit and fishes exclusively in
State waters.
*
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*
(e) Small dredge program restrictions.
Any vessel owner whose vessel is
assigned to either the part-time or
Occasional category may request, in the
application for the vessel’s annual
permit, to be placed in one category
higher. Vessel owners making such
request may be placed in the
appropriate higher category for the
entire year, if they agree to comply with
the following restrictions, in addition to,
and notwithstanding other restrictions
of this part, when fishing under the DAS
program described in § 648.53:
*
*
*
*
*
7. In § 648.52, paragraph (a) is revised
to read as follows:
§ 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
§ 648.10(b), or on a properly declared
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NE multispecies, surfclam, or ocean
quahog trip and not fishing in a scallop
access area, unless as specified in
paragraph (g) of this section or
exempted under the State waters
exemption program described in
§ 648.54, may not possess or land, per
trip, more than 600 lb (272.2 kg) of
shucked scallops, or possess more than
75 bu (26.4 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
VMS demarcation line on a properly
declared IFQ scallop trip, or on a
properly declared NE multispecies,
surfclam, or ocean quahog trip and not
fishing in a scallop access area.
*
*
*
*
*
8. In § 648.53,
a. The section heading and paragraphs
(a), (b) introductory text, (b)(1), (b)(4),
(c), (d), (g), (h)(2)(iii), (h)(3)(i)(A),
(h)(3)(i)(B), (h)(3)(i)(C), (h)(4)
introductory text, (h)(5)(ii), (h)(5)(iii),
and (h)(5)(iv) are revised,
b. Paragraphs (h)(2)(v), and (h)(2)(vi)
are added; and
c. Paragraphs (a)(5), (a)(6), and (a)(9),
(b)(2), and (b)(4)(i) are removed and
reserved
The revisions and additions read as
follows:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 648.53 Acceptable biological catch
(ABC), annual catch limits (ACL), annual
catch targets (ACT), DAS allocations, and
individual fishing quotas.
(a) Scallop fishery ABC. The ABC for
the scallop fishery shall be established
through the framework adjustment
process specified in § 648.55 and is
equal to the overall scallop fishery ACL.
The ABC/ACL shall be divided as subACLs between limited access vessels,
limited access vessels that are fishing
under a limited access general category
permit, and limited access general
category vessels as specified in
paragraphs (a)(3) and (a)(4) of this
section, after deducting the scallop
incidental catch target TAC specified in
paragraph (a)(2) of this section, observer
set-aside specified in paragraph (g)(1) of
this section, and research set-aside
specified in § 648.56(d).
(1) ABC/ACL for fishing years 2011
through 2013 shall be:
(i) 2011. To be determined.
(ii) 2012. To be determined.
(iii) 2013. To be determined.
(2) Scallop incidental catch target
TAC. The incidental catch target TAC
for vessels with incidental catch scallop
permits is to be determined for fishing
years 2011, 2012, and 2013.
(3) Limited access fleet sub-ACL and
ACT. The limited access scallop fishery
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shall be allocated 94.5 percent of the
ACL specified in paragraph (a)(1) of this
section, after deducting incidental
catch, observer set-aside, and research
set-aside, as specified in this paragraph
(a). ACT for the limited access scallop
fishery shall be established through the
framework adjustment process
described in § 648.55. DAS specified in
paragraph (b) of this section shall be
based on the ACTs specified in
paragraph (a)(3)(ii) of this section.
(i) The limited access fishery subACLs for the 2011 through 2013 fishing
years are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(ii) The limited access fishery ACTs
for the 2011 through 2013 fishing years
are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(4) LAGC fleet sub-ACL. The sub-ACL
for the LAGC IFQ fishery shall be equal
to 5.5 percent of the ACL specified in
paragraph (a)(1) of this section, after
deducting incidental catch, observer setaside, and research set-aside, as
specified in this paragraph (a). The
LAGC IFQ fishery ACT shall be equal to
the LAGC IFQ fishery’s ACL. The ACL
for the LAGC IFQ fishery for vessels
issued only a LAGC IFQ scallop permit
shall be equal to 5 percent of the ACL
specified in paragraph (a)(1) of this
section, after deducting incidental
catch, observer set-aside, and research
set-aside, as specified in this paragraph
(a). The ACL for the LAGC IFQ fishery
for vessels issued both a LAGC IFQ
scallop permit and a limited access
scallop permit shall be 0.5 percent of
the ACL specified in paragraph (a)(1) of
this section, after deducting incidental
catch, observer set-aside, and research
set-aside, as specified in this paragraph
(a).
(i) The ACLs for the 2011 through
2013 fishing years for LAGC IFQ vessels
without a limited access scallop permit
are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(ii) The ACLs for the 2011 through
2013 fishing years for vessels issued
both a LAGC and a limited access
scallop permit are:
(A) 2011. To be determined.
(B) 2012. To be determined.
(C) 2013. To be determined.
(b) DAS allocations. DAS allocations
for limited access scallop trips in all
areas other than those specified in
§ 648.59 shall be specified through the
framework adjustment process, as
specified in § 648.55, using the ACT
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Fmt 4702
Sfmt 4702
specified in paragraph (a)(3)(ii) of this
section. A vessel’s DAS, shall be
determined and specified in paragraph
(b)(4) of this section by dividing the
total DAS specified in the framework
adjustment by the LPUE specified in
paragraph (b)(1) of this section, then
dividing by the total number of vessels
in the fleet.
(1) Landings per unit effort (LPUE).
LPUE is an estimate of the average
amount of scallops, in pounds, that the
limited access scallop fleet lands per
DAS fished. The estimated LPUE is the
average LPUE for all limited access
scallop vessels fishing under DAS, and
shall be used to calculate DAS specified
in paragraph (b)(4) of this section, the
DAS reduction for the AM specified in
paragraph (b)(4)(ii) of this section, and
the observer set-aside DAS allocation
specified in paragraph (g)(1) of this
section. LPUE shall be:
(i) 2011. To be determined.
(ii) 2012. To be determined.
(iii) 2013. To be determined.
*
*
*
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*
(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,
excluding carryover DAS in accordance
with paragraph (d) of this section. DAS
allocations shall be determined by
distributing the portion of ACT
specified in paragraph (a)(3)(ii), as
reduced by access area allocations, as
specified in § 648.59, and dividing that
among vessels in the form of DAS
calculated by applying estimates of
open area LPUE specified in paragraph
(b)(1) of this section. Part-time and
occasional scallop vessels shall be equal
to 40 percent and 8.33 percent of the
full-time DAS allocations, respectively.
The annual open area DAS allocations
for each category of vessel for the
fishing years indicated are as follows:
DAS category
Full-time ....................................
Part-time ...................................
Occasional ................................
2010
38
15
3
(i) [Reserved]
(ii) Accountability measures (AM).
Unless the limited access AM exception
is implemented accordance with the
provision specified in paragraph
(b)(4)(iii) of this section, if the ACL
specified in paragraph (a)(3)(i) of this
section is exceeded for the applicable
fishing year, the DAS specified in
paragraph (b)(4) of this section for each
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limited access vessel shall be reduced
by an amount equal to the amount of
landings in excess of the ACL divided
by the applicable LPUE for the fishing
year in which the AM will apply as
specified in paragraph (b)(1) of this
section, then divided by the number of
scallop vessels eligible to be issued a
full-time limited access scallop permit.
For example, assuming a 300,000-lb
(136-mt) overage of the ACL in 2011, an
open area LPUE of 2,500 lb (1.13 mt) per
DAS in 2012, and 313 full-time vessels,
each full time vessel’s DAS would be
reduced by 0.38 DAS (300,000 lb (136
mt)/2,500 lb (1.13 mt) per DAS = 120 lb
(0.05 mt) per DAS/313 vessels = 0.38
DAS per vessel). Deductions for parttime and occasional scallop vessels
shall be equal to 40 percent and
8 percent of the full-time DAS
deduction, respectively, as calculated
pursuant to this paragraph (b)(4)(ii). The
AM shall take effect in the fishing year
following the fishing year in which the
overage occurred. For example, landings
in excess of the ACL in fishing year
2011 would result in the DAS reduction
AM in fishing year 2012. If the AM takes
effect, and a limited access vessel uses
more open area DAS in the fishing year
in which the AM is applied, the vessel
shall have the DAS used in excess of the
allocation after applying the AM
deducted from its open area DAS
allocation in the subsequent fishing
year. For example, a vessel initially
allocated 32 DAS in 2011 uses all 32
DAS prior to application of the AM. If,
after application of the AM, the vessel’s
DAS allocation is reduced to 31 DAS,
the vessel’s DAS in 2012 would be
reduced by 1 DAS.
(iii) Limited access AM exception—
(A) If it is determined by NMFS in
accordance with paragraph (b)(4)(ii) of
this section, that the fishing mortality
rate associated with the limited access
fleet’s landings in a fishing year is less
than 0.24, the AM specified in
paragraph (b)(4)(ii) of this section shall
not take effect. The fishing mortality
rate of 0.24 is the fishing mortality that
is one standard deviation below the
fishing mortality rate for the scallop
fishery ACL, currently estimated at 0.28.
(B) If the limited access AM exception
described in this paragraph (b)(4)(iii) is
invoked, the Regional Administrator
shall increase the sub-ACL for the LAGC
IFQ fleet specified in paragraph (a)(4)(i)
of this section by the amount of scallops
equal to 5.5 percent of the amount of
scallop landings in excess of the limited
access fleet’s ACL specified in
paragraph (a)(3)(i) of this section. The
applicable sub-ACL for the limited
access fleet specified in paragraph
(a)(3)(i) of this section shall be reduced
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by the amount equivalent to the increase
in the sub-ACL for LAGC IFQ specified
pursuant to this paragraph (b)(4)(iii)(B).
For example, if the limited access
fishery ACL is exceeded by 1 million lb
(453.6 mt), but the exception is invoked,
the LAGC sub-ACL shall be increased,
and the limited access fleet’s ACL
decreased, by 55,000 lb (24.9 mt)
(1 million lb (453.6 mt) × 5.5% (0.055)
= 55,000 lb (24.9 mt). The ACL
adjustments in this paragraph
(b)(4)(iii)(B) shall take effect in the
fishing year immediately following the
fishing year in which the overage of the
ACL occurred. For example, for an ACL
overage in the 2011 fishing year, the
adjustments due to implementation of
the exception would be implemented in
the 2012 fishing year.
(iv) Limited access fleet AM and
exception provision timing. The
Regional Administrator shall determine
whether the limited access fleet
exceeded its ACL specified in paragraph
(a)(3)(i) of this section by July of the
fishing year following the year for
which landings are being evaluated. On
or about July 1, the Regional
Administrator shall notify the New
England Fishery Management Council
(Council) of the determination of
whether or not the ACL for the limited
access fleet was exceeded, and the
amount of landings in excess of the
ACL. Upon this notification, the Scallop
Plan Development Team (PDT) shall
evaluate the overage and determine if
the fishing mortality rate associated
with total landings by the limited access
scallop fleet is less than 0.24. On or
about September 1 of each year, the
Scallop PDT shall notify the Council of
its determination, and the Council, on
or about September 30, shall make a
recommendation, based on the Scallop
PDT findings, concerning whether to
invoke the limited access AM exception.
If NMFS concurs with the Scallop PDT
recommendation to invoke the limited
access AM exception, in accordance
with the APA, the limited access AM
shall not be implemented. If NMFS does
not concur, in accordance with the
APA, the limited access AM shall be
implemented as soon as possible after
September 30 each year.
*
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*
(c) Adjustments in annual DAS
allocations. Annual DAS allocations
shall be established for 3 fishing years
through biennial framework
adjustments as specified in § 648.55. If
a biennial framework action is not
undertaken by the Council and
implemented by NMFS before the
beginning of the third year of each
biennial adjustment, the third-year
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19943
measures specified in the biennial
framework adjustment shall remain in
effect for the next fishing year. If a new
biennial or other framework adjustment
is not implemented by NMFS by the
conclusion of the third year, the
management measures from that third
year would remain in place until a new
action is implemented. The Council
may also recommend adjustments to
DAS allocations or other measures
through a framework adjustment at any
time.
(d) End-of-year carry-over for open
area DAS. With the exception of vessels
that held a Confirmation of Permit
History as described in § 648.4(a)(2)(i)(J)
for the entire fishing year preceding the
carry-over year, limited access vessels
that have unused Open Area DAS on the
last day of February of any year may
carry over a maximum of 10 DAS, not
to exceed the total Open Area DAS
allocation by permit category, into the
next year. DAS carried over into the
next fishing year may only be used in
Open Areas. Carry-over DAS are
accounted for in setting the ACT for the
limited access fleet, as specified in
paragraph (a)(3)(ii) of this section.
Therefore, if carry-over DAS result or
contribute to an overage of the ACL, the
limited access fleet AM specified in
paragraph (b)(4)(ii) of this section would
still apply, provided the AM exception
specified in paragraph (b)(4)(iii) of this
section is not invoked.
*
*
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*
*
(g) Set-asides for observer coverage.
(1) To help defray the cost of carrying
an observer, 1 percent of the ABC/ACL
specified in paragraph (a)(1) of this
section shall be set aside to be used by
vessels that are assigned to take an atsea observer on a trip. The total TAC for
observer set aside is 273 mt in fishing
year 2011, 289 mt in fishing year 2012,
and 287 mt in fishing year 2013. This 1
percent is divided proportionally into
access areas and open areas, as specified
in § 648.60(d)(1) and (g)(2), respectively.
(2) DAS set-aside for observer
coverage. For vessels assigned to take an
at-sea observer on a trip other than an
Access Area Program trip, the open-area
observer set-aside TACs are 139 mt, 161
mt, and 136 mt for fishing years 2011,
2012, and 2013, respectively. The DAS
set-aside shall be determined by
dividing these amounts by the LPUE
specified in paragraph (b)(1)(i) of this
section for each specific fishing year.
The DAS set-aside for observer coverage
is 137 DAS for the 2011 fishing year,
133 DAS for the 2012 fishing year, and
112 DAS for the 2013 fishing year. A
vessel carrying an observer shall be
compensated with reduced DAS accrual
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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
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 setaside amount in the applicable fishing
year. Utilization of the DAS set-aside
shall be on a first-come, first-served
basis. When the DAS set-aside for
observer coverage has been utilized,
vessel owners shall be notified that no
additional DAS remain available to
offset the cost of carrying observers. The
obligation to carry and pay for an
observer shall not be waived if set-aside
is not available.
(h) * * *
(2) * * *
(iii) Contribution percentage. A
vessel’s contribution percentage shall be
determined by dividing its contribution
factor by the sum of the contribution
factors of all vessels issued an IFQ
scallop permit. Continuing the example
in paragraph (h)(1)(ii)(D) of this section,
the sum of the contribution factors for
380 IFQ scallop vessels is estimated, for
the purpose of this example, to be 4.18
million lb (1,896 mt). The contribution
percentage of the above vessel is 1.45
percent (60,687 lb (27,527 kg)/4.18
million lb (1,896 mt) = 1.45 percent).
The contribution percentage for a vessel
that is issued an IFQ scallop permit and
that has permanently transferred all of
its IFQ to another IFQ vessel, as
specified in paragraph (h)(5)(ii) of this
section, shall be equal to 0 percent.
*
*
*
*
*
(v) End-of-year carry-over for IFQ. (A)
With the exception of vessels that held
a confirmation of permit history as
described in § 648.4(a)(2)(ii)(L) for the
entire fishing year preceding the carryover year, LAGC IFQ vessels that have
unused IFQ on the last day of February
of any year may carry over up to 15
percent of the vessel’s original IFQ and
transferred (either temporary or
permanent) IFQ into the next fishing
year. For example, a vessel with a
10,000 lb (4,536 kg) IFQ and 5,000 lb
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(2,268 kg) leased IFQ may carry over
2,250 lb (1,020 kg) of IFQ (i.e, 15 percent
of 15,000 lb (6,804 kg) into the next
fishing year if it landed 12,750 lb (5,783
kg) (i.e., 85 percent of 15,000 lb (6,804
kg) of scallops or less in the preceding
fishing year. Using the same IFQ values
from the example, if the vessel landed
14,000 lb (6,350 kg) of scallops, it could
carry over 1,000 lb (454 kg) of scallops
into the next fishing year.
(B) For accounting purposes, the
combined total of all vessels’ IFQ carryover shall be added to the LAGC IFQ
fleet’s applicable ACL for the carry-over
year. Any IFQ carried over that is
landed in the carry-over fishing year
shall be counted against the ACL
specified in paragraph (a)(4)(i) of this
section, as increased by the total carryover for all LAGC IFQ vessels, as
specified in this paragraph (h)(2)(v)(B).
(vi) AM for the IFQ fleet. If a vessel
exceeds its IFQ, including all
temporarily and permanently
transferred IFQ, in a fishing year, the
amount of landings in excess of the
vessel’s IFQ, including all temporarily
and permanently transferred IFQ, shall
be deducted from the vessel’s IFQ as
soon as possible in the fishing year
following the fishing year in which the
vessel exceeded its IFQ. If the AM takes
effect, and an IFQ vessel lands more
scallops than allocated after the AM is
applied, the vessel shall have the IFQ
landed in excess of its IFQ after
applying the AM deducted from its IFQ
in the subsequent fishing year. For
example, a vessel with an initial IFQ of
1,000 lb (453.6 kg) in 2010 landed 1,200
lb (544.3 kg) of scallops in 2010, and is
initially allocated 1,300 lb (589.7 kg) of
scallops in 2011. That vessel would be
subject to an IFQ reduction equal to 200
lb (90.7 kg) to account for the 200 lb
(90.7 kg) overage in 2010. If that vessel
lands 1,300 lb (589.7 kg) of scallops in
2011 prior to application of the 200 lb
(90.7 kg) deduction, the vessel would be
subject to a deduction of 200 lb (90.7 kg)
in 2012. For vessels involved in a
temporary IFQ transfer, the entire
deduction shall apply to the vessel that
acquired IFQ, not the transferring
vessel. A vessel that has an overage that
exceeds its IFQ in the subsequent
fishing year shall be subject to an IFQ
reduction in subsequent years until the
overage is paid back. For example, a
vessel with an IFQ of 1,000 lb (454 kg)
in each year over a 3-year period, that
harvests 2,500 lb (1,134 kg) of scallops
the first year, would have a 1,500-lb
(680-kg) IFQ deduction, so that it would
have zero pounds to harvest in year 2,
and 500 lb (227 kg) to harvest in year
3. A vessel that has a ‘‘negative’’ IFQ
balance, as described in the example,
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could lease or transfer IFQ to balance
the IFQ, provided there are no sanctions
or other enforcement penalties that
would prohibit the vessel from
acquiring IFQ.
(3) * * *
(i) * * *
(A) Unless otherwise specified in
paragraphs (h)(3)(i)(B) and (C) of this
section, a vessel issued an IFQ scallop
permit or confirmation of permit history
shall not be issued more than 2.5
percent of the TAC allocated to the IFQ
scallop vessels as described in
paragraphs (a)(3)(ii) and (iii) of this
section.
(B) A vessel may be initially issued
more than 2.5 percent of the TAC
allocated to the IFQ scallop vessels as
described in paragraphs (a)(3)(ii) and
(iii) of this section, if the initial
determination of its contribution factor
specified in accordance with
§ 648.4(a)(2)(ii)(E) and paragraph
(h)(2)(ii) of this section, results in an
IFQ that exceeds 2.5 percent of the TAC
allocated to the IFQ scallop vessels as
described in paragraphs (a)(3)(ii) and
(iii) of this section. A vessel that is
allocated an IFQ that exceeds 2.5
percent of the TAC allocated to the IFQ
scallop vessels as described in
paragraphs (a)(3)(ii) and (iii) of this
section, in accordance with this
paragraph (h)(3)(i)(B), may not receive
IFQ through an IFQ transfer, as
specified in paragraph (h)(5) of this
section.
(C) A vessel initially issued a 2008
IFQ scallop permit or confirmation of
permit history, or that was issued or
renewed a limited access scallop permit
or confirmation of permit history for a
vessel in 2009 and thereafter, in
compliance with the ownership
restrictions in paragraph (h)(3)(i)(A) of
this section, is eligible to renew such
permit(s) and/or confirmation(s) of
permit history, regardless of whether the
renewal of the permit or confirmations
of permit history will result in the 2.5
percent IFQ cap restriction being
exceeded.
*
*
*
*
*
(4) IFQ cost recovery. A fee, not to
exceed 3 percent of the ex-vessel value
of IFQ scallops harvested, shall be
collected to recover the costs associated
with management, data collection, and
enforcement of the IFQ program. The
owner of a vessel issued an IFQ scallop
permit and subject to the IFQ program
specified in this paragraph (h), shall be
responsible for paying the fee as
specified by NMFS in this paragraph
(h)(4). An IFQ scallop vessel shall incur
a cost recovery fee liability for every
landing of IFQ scallops. The IFQ scallop
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permit holder shall be responsible for
collecting the fee for all of its vessels’
IFQ scallop landings, and shall be
responsible for submitting this payment
to NMFS once per year. The cost
recovery fee for all landings, regardless
of ownership changes throughout the
fishing year, shall be the responsibility
of the official owner of the vessel, as
recorded in the vessel permit or
confirmation of permit history file, at
the time the bill is sent.
*
*
*
*
*
(5) * * *
(ii) Permanent 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 transfer IFQ
permanently to or from another IFQ
scallop vessel. Any such transfer cannot
be limited in duration and is permanent,
unless the IFQ is subsequently
transferred to another IFQ scallop
vessel, other than the originating IFQ
scallop vessel, in a subsequent fishing
year. If a vessel permanently transfers
its entire IFQ to another vessel, the
LAGC IFQ scallop permit shall remain
valid on the transferring vessel, unless
the owner of the transferring vessel
cancels the IFQ scallop permit. Such
cancellation shall be considered
voluntary relinquishment of the IFQ
permit, and the vessel shall be ineligible
for an IFQ scallop permit unless it
replaces another vessel that was issued
an IFQ scallop permit. The Regional
Administrator has final approval
authority for all 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. Requests for IFQ
transfers cannot be less than 100 lb (46.4
kg), unless that value reflects the total
IFQ amount remaining on the
transferor’s vessel, or the entire IFQ
allocation. 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 2.5 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 to or receive IFQ from
another IFQ scallop vessel.
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(iv) Application for an IFQ transfer.
The owner of a vessel applying for a
transfer of IFQ must submit a completed
application form obtained from the
Regional Administrator. The application
must be signed by both parties
(transferor and transferee) involved in
the transfer of the IFQ, and must be
submitted to the NMFS Northeast
Regional Office at least 30 days before
the date on which the applicants desire
to have the IFQ effective on the
receiving vessel. The Regional
Administrator shall notify the
applicants of any deficiency in the
application pursuant to this section.
Applications may be submitted at any
time during the scallop fishing year,
provided the vessel transferring the IFQ
to another vessel has not utilized any of
its own IFQ in that fishing year.
Applications for temporary transfers
received less than 45 days prior to the
end of the fishing year may not be
processed in time for a vessel to utilize
the transferred IFQ prior to the
expiration of the fishing year for which
the IFQ transfer, if approved, would be
effective.
(A) Application information
requirements. An application to transfer
IFQ must contain at least the following
information: Transferor’s name, vessel
name, permit number, and official
number or State registration number;
transferee’s name, vessel name, permit
number, and official number or State
registration number; total price paid for
purchased IFQ; signatures of transferor
and transferee; and date the form was
completed. In addition, applications to
transfer IFQ must indicate the amount,
in pounds, of the IFQ allocation
transfer, which may not be less than 100
lb (45 kg), unless that value reflects the
total IFQ amount remaining on the
transferor’s vessel, or the entire IFQ
allocation. Information obtained from
the transfer application will be held
confidential, and will be used only in
summarized form for management of the
fishery.
(B) Approval of IFQ transfer
applications. Unless an application to
transfer IFQ is denied according to
paragraph (h)(5)(iii)(C) of this section,
the Regional Administrator shall issue
confirmation of application approval to
both parties involved in the transfer
within 30 days of receipt of an
application.
(C) Denial of transfer application. The
Regional Administrator may reject an
application to transfer IFQ for the
following reasons: The application is
incomplete; the transferor or transferee
does not possess a valid limited access
general category permit; the transferor’s
vessel has fished under its IFQ prior to
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19945
the completion of the transfer request;
the transferor’s or transferee’s vessel or
IFQ scallop permit has been sanctioned,
pursuant to a final administrative
decision or settlement of an
enforcement proceeding; the transfer
will result in the transferee’s vessel
having an allocation that exceeds 2.5
percent of the TAC allocated to IFQ
scallop vessels; the transfer will 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; or any other failure to
meet the requirements of the regulations
in 50 CFR 648. Upon denial of an
application to transfer IFQ, the Regional
Administrator shall send a letter to the
applicants describing the reason(s) for
the rejection. The decision by the
Regional Administrator is the final
agency decision, and there is no
opportunity to appeal the Regional
Administrator’s decision. An
application that was denied can be
resubmitted if the discrepancy(ies) that
resulted in denial are resolved.
8. Section 648.55 is revised to read as
follows:
§ 648.55 Framework adjustments to
management measures.
(a) At least Biennially, the Council
shall assess the status of the scallop
resource, determine the adequacy of the
management measures to achieve
scallop resource conservation
objectives, and initiate a framework
adjustment to establish scallop fishery
management measures for the 2-year
period beginning with the scallop
fishing year immediately following the
year in which the action is initiated.
The PDT shall prepare a Stock
Assessment and Fishery Evaluation
(SAFE) Report that provides the
information and analysis needed to
evaluate potential management
adjustments. The framework adjustment
shall establish OFL, ABC, ACL, ACT,
DAS allocations, rotational area
management programs, percentage
allocations for limited access general
category vessels in Sea Scallop Access
Areas, scallop possession limits, AMs,
and other measures to achieve FMP
objectives and limit fishing mortality.
The Council’s development of rotational
area management adjustments shall take
into account at least the following
factors: General rotation policy;
boundaries and distribution of
rotational closures; number of closures;
minimum closure size; maximum
closure extent; enforceability of
rotational closed and re-opened areas;
monitoring through resource surveys;
and re-opening criteria. Rotational
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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules
Closures should be considered where
projected annual change in scallop
biomass is greater than 30 percent.
Areas should be considered for Sea
Scallop Access Areas where the
projected annual change in scallop
biomass is less than 15 percent.
(b) The preparation of the SAFE
Report shall begin on or about June 1 of
the year preceding the fishing year in
which measures will be adjusted.
(c) OFL, ABC, ACL, ACT, and AMs.
The Council shall specify OFL, ABC,
ACL, ACT, and AMs, as applicable, for
each year covered under the biennial or
other framework adjustment.
(1) OFL. OFL shall be based on an
updated scallop resource and fishery
assessment provided by either the
Scallop PDT or a formal stock
assessment. OFL shall include all
sources of scallop mortality and shall
include an upward adjustment to
account for catch of scallops in State
waters by vessels not issued Federal
scallop permits. The fishing mortality
rate (F) associated with OFL shall be the
threshold F, above which, overfishing is
occurring in the scallop fishery. The F
associated with OFL shall be used to
derive specifications for ABC, ACL, and
ACT, as specified in paragraphs (a)(2)
through (5) of this section.
(2) The specification of ABC, ACL,
and ACT shall be based upon the
following overfishing definition: The F
shall be set so that in access areas,
averaged for all years combined over the
period of time that the area is closed
and open to scallop fishing as an access
area, it does not exceed the established
F threshold for the scallop fishery; in
open areas it shall not exceed the F
threshold for the scallop fishery; and for
access and open areas combined, it is
set at a level that has a 75-percent
probability of remaining below the F
associated with ABC, as specified in
paragraph (c)(2) of this section, taking
into account all sources of fishing
mortality in the limited access and
LAGC fleets of the scallop fishery.
(3) ABC. The Council shall specify
ABC for each year covered under the
biennial or other framework adjustment.
ABC shall be the catch that has an
associated F that has a 75-percent
probability of remaining below the F
associated with OFL. ABC shall be equal
to ACL for the scallop fishery.
(4) Deductions from ABC. Incidental
catch, equal to the value established in
§ 648.53(a)(2), shall be removed from
ABC/ACL. One percent of ABC/ACL
shall be removed from ABC/ACL for
observer set-aside. Scallop catch equal
to the value specified in § 648.56(d)
shall be removed from ABC/ACL for
research set-aside. These deductions for
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incidental catch, observer set-aside, and
research set-aside, shall be made prior
to establishing ACLs for the limited
access and LAGC fleets, as specified in
paragraph (c)(4) of this section.
(5) Sub-ACLs for the limited access
and LAGC fleets. The Council shall
specify sub-ACLs for the limited access
and LAGC fleets for each year covered
under the biennial or other framework
adjustment. After applying the
deductions as specified in paragraph
(a)(4) of this section, a sub-ACL equal to
94.5 percent of the ABC/ACL shall be
allocated to the limited access fleet.
After applying the deductions as
specified in paragraph (a)(4) of this
section, a sub-ACL of 5.5 percent of
ABC/ACL shall be allocated to the
LAGC fleet, so that 5 percent of ABC/
ACL is allocated to the LAGC fleet of
vessels that do not also have a limited
access scallop permit, and 0.5 percent of
the ABC/ACL is allocated to the LAGC
fleet of vessels that have limited access
scallop permits. This specification of
sub-ACLs shall not account for catch
reductions associated with the
application of AMs or adjustment of the
sub-ACL as a result of the disclaimer
provision as specified in
§ 648.53(b)(4)(iii).
(6) ACT for the limited access and
LAGC fleets. The Council shall specify
ACTs for the limited access and LAGC
fleets for each year covered under the
biennial or other framework adjustment.
The ACT for the limited access fishery
shall be set at a level that has an
associated F with a 75-percent
probability of remaining below the F
associated with ABC/ACL. The LAGC
ACT shall be set equal to the LAGC subACL as specified in paragraph (a)(5) of
this section.
(7) AMs. The Council shall specify
AMs for the limited access and LAGC
fleets for each year covered under the
biennial or other framework adjustment.
For the limited access scallop fleet, AMs
result in a DAS reduction for each
limited access scallop vessel as
specified in § 648.53(b)(4)(ii). For the
LAGC scallop fleet, AMs result in an
IFQ deduction for each vessel issued a
LAGC scallop permit as specified in
§ 648.53(h)(2)(vi).
(d) Yellowtail flounder sub-ACL. The
Council shall specify the yellowtail
flounder sub-ACL allocated to the
scallop fishery through the framework
adjustment process specified in
§ 648.90.
(e) Third-year default management
measures. The biennial framework
action shall include default
management measures that shall be
effective in the third year unless
replaced by the measures included in
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the next biennial framework action. If
the biennial framework action is not
published in the Federal Register with
an effective date on or before March 1,
in accordance with the Administrative
Procedure Act, the third-year measures
shall be effective beginning March 1 of
each fishing year until the framework
adjustment is implemented, or for the
entire fishing year if the framework
adjustment is completed or is not
implemented by NMFS for the third
year. The framework action shall specify
the measures necessary to address
inconsistencies between specifications
and allocations for the period after
March 1 but before the framework
adjustment is implemented for that year.
In the case of third-year measures of a
biennial adjustment being implemented,
if no framework adjustment has been
implemented by March 1 of the
following year, the measures from the
preceding year shall continue to be in
effect until replaced by subsequent
action.
(f) After considering the PDT’s
findings and recommendations, or at
any other time, if the Council
determines that adjustments to, or
additional management measures are
necessary, it shall develop and analyze
appropriate management actions over
the span of at least two Council
meetings. To address interactions
between the scallop fishery and sea
turtles and other protected species, such
adjustments may include proactive
measures including, but not limited to,
the timing of Sea Scallop Access Area
openings, seasonal closures, gear
modifications, increased observer
coverage, and additional research. The
Council shall provide the public with
advance notice of the availability of
both the proposals and the analyses, and
opportunity to comment on them prior
to and at the second Council meeting.
The Council’s recommendation on
adjustments or additions to management
measures must include measures to
prevent overfishing of the available
biomass of scallops and ensure that OY
is achieved on a continuing basis, and
must come from one or more of the
following categories:
(1) Total allowable catch and DAS
changes;
(2) Shell height;
(3) Offloading window reinstatement;
(4) Effort monitoring;
(5) Data reporting;
(6) Trip limits;
(7) Gear restrictions;
(8) Permitting restrictions;
(9) Crew limits;
(10) Small mesh line;
(11) Onboard observers;
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(12) Modifications to the overfishing
definition;
(13) VMS Demarcation Line for DAS
monitoring;
(14) DAS allocations by gear type;
(15) Temporary leasing of scallop
DAS requiring full public hearings;
(16) Scallop size restrictions, except a
minimum size or weight of individual
scallop meats in the catch;
(17) Aquaculture enhancement
measures and closures;
(18) Closed areas to increase the size
of scallops caught;
(19) Modifications to the opening
dates of closed areas;
(20) Size and configuration of
rotational management areas;
(21) Controlled access seasons to
minimize bycatch and maximize yield;
(22) Area-specific trip allocations;
(23) TAC specifications and seasons
following re-opening;
(24) Limits on number of area
closures;
(25) Set-asides for funding research;
(26) Priorities for scallop-related
research that is funded by a TAC or DAS
set-aside;
(27) Finfish TACs for controlled
access areas;
(28) Finfish possession limits;
(29) Sea sampling frequency;
(30) Area-specific gear limits and
specifications;
(31) Modifications to provisions
associated with observer set-asides;
observer coverage; observer deployment;
observer service provider; and/or the
observer certification regulations;
(32) Specifications for IFQs for
limited access general category vessels;
(33) Revisions to the cost recovery
program for IFQs;
(34) Development of general category
fishing industry sectors and fishing
cooperatives;
(35) Adjustments to the Northern Gulf
of Maine scallop fishery measures;
(36) VMS requirements;
(37) Increases or decreases in the
LAGC possession limit;
(38) Adjustments to aspects of ACL
management;
(39) Adjusting EFH closed area
management boundaries or other
associated measures; and
(40) Any other management measures
currently included in the FMP.
(g) The Council may make
recommendations to the Regional
Administrator to implement measures
in accordance with the procedures
described in this section to address gear
conflict as defined under § 600.10 of
this chapter. In developing such
recommendation, the Council shall
define gear management areas, each not
to exceed 2,700 mi2 (6,993 km2), and
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seek industry comments by referring the
matter to its standing industry advisory
committee for gear conflict, or to any ad
hoc industry advisory committee that
may be formed. The standing industry
advisory committee or ad hoc
committee on gear conflict shall hold
public meetings seeking comments from
affected fishers and develop findings
and recommendations on addressing the
gear conflict. After receiving the
industry advisory committee findings
and recommendations, or at any other
time, the Council shall determine
whether it is necessary to adjust or add
management measures to address gear
conflicts and which FMPs must be
modified to address such conflicts. If
the Council determines that adjustments
or additional measures are necessary, it
shall develop and analyze appropriate
management actions for the relevant
FMPs over the span of at least two
Council meetings. The Council shall
provide the public with advance notice
of the availability of the
recommendation, the appropriate
justification and economic and
biological analyses, and opportunity to
comment on them prior to and at the
second or final Council meeting before
submission to the Regional
Administrator. The Council’s
recommendation on adjustments or
additions to management measures for
gear conflicts must come from one or
more of the following categories:
(1) Monitoring of a radio channel by
fishing vessels;
(2) Fixed-gear location reporting and
plotting requirements;
(3) Standards of operation when gear
conflict occurs;
(4) Fixed-gear marking and setting
practices;
(5) Gear restrictions for specific areas
(including time and area closures);
(6) VMS;
(7) Restrictions on the maximum
number of fishing vessels or amount of
gear; and
(8) Special permitting conditions.
(h) The measures shall be evaluated
and approved by the relevant
committees with oversight authority for
the affected FMPs. If there is
disagreement between committees, the
Council may return the proposed
framework adjustment to the standing or
ad hoc gear conflict committee for
further review and discussion.
(i) Unless otherwise specified, after
developing a framework adjustment and
receiving public testimony, the Council
shall make a recommendation to the
Regional Administrator. The Council’s
recommendation must include
supporting rationale and, if management
measures are recommended, an analysis
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19947
of impacts and a recommendation to the
Regional Administrator on whether to
publish the framework adjustment as a
final rule. If the Council recommends
that the framework adjustment should
be published as a final rule, the Council
must consider at least the following
factors and provide support and
analysis for each factor considered:
(1) Whether the availability of data on
which the recommended management
measures are based allows for adequate
time to publish a proposed rule, and
whether regulations have to be in place
for an entire harvest/fishing season;
(2) Whether there has been adequate
notice and opportunity for participation
by the public and members of the
affected industry, consistent with the
Administrative Procedure Act, in the
development of the Council’s
recommended management measures;
(3) Whether there is an immediate
need to protect the resource or to
impose management measures to
resolve gear conflicts; and
(4) Whether there will be a continuing
evaluation of management measures
adopted following their promulgation as
a final rule.
(j) If the Council’s recommendation
includes adjustments or additions to
management measures, and if, after
reviewing the Council’s
recommendation and supporting
information:
(1) The Regional Administrator
approves the Council’s recommended
management measures, the Secretary
may, for good cause found pursuant to
the Administrative Procedure Act,
waive the requirement for a proposed
rule and opportunity for public
comment in the Federal Register. The
Secretary, in doing so, shall publish
only the final rule. Submission of a
recommendation by the Council for a
final rule does not affect the Secretary’s
responsibility to comply with the
Administrative Procedure Act; or
(2) The Regional Administrator
approves the Council’s recommendation
and determines that the recommended
management measures should be
published first as a proposed rule, the
action shall be published as a proposed
rule in the Federal Register. After
additional public comment, if the
Regional Administrator concurs with
the Council recommendation, the action
shall be published as a final rule in the
Federal Register; or
(3) The Regional Administrator does
not concur, the Council shall be
notified, in writing, of the reasons for
the non-concurrence.
(k) Nothing in this section is meant to
derogate from the authority of the
Secretary to take emergency action
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under section 305(c) of the MagnusonStevens Act.
9. Section 648.56 is revised to read as
follows:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
§ 648.56
Scallop research.
(a) Annually, the Council and NMFS
shall prepare and issue an
announcement of Federal Funding
Opportunity (FFO) that identifies
research priorities for projects to be
conducted by vessels using research setaside as specified in §§ 648.53(b)(3) and
648.60(e), provides requirements and
instructions for applying for funding of
a proposed RSA project, and specifies
the date by which applications must be
received. The FFO shall be published as
soon as possible by NMFS and shall
provide the opportunity for applicants
to apply for projects to be awarded for
1 or 2 years by allowing applicants to
apply for RSA funding for the first year,
second year, or both.
(b) Proposals submitted in response to
the FFO must include the following
information, as well as any other
specific information required within the
FFO: A project summary that includes
the project goals and objectives, the
relationship of the proposed research to
scallop research priorities and/or
management needs, project design,
participants other than the applicant,
funding needs, breakdown of costs, and
the vessel(s) for which authorization is
requested to conduct research activities.
(c) NMFS shall make the final
determination as to what proposals are
approved and which vessels are
authorized to take scallops in excess of
possession limits, or take additional
trips into Open or Access Areas. NMFS
shall provide authorization of such
activities to specific vessels by letter of
acknowledgement, letter of
authorization, or Exempted Fishing
Permit issued by the Regional
Administrator, which must be kept on
board the vessel.
(d) Available RSA allocation shall be
1.25 million lb (567 mt) annually, which
shall be deducted from the ABC/ACL
specified in § 648.53(a) prior to setting
ACLs for the limited access and LAGC
fleets, as specified in § 648.53(a)(3)(i)
and (a)(4)(i), respectively. Vessels
participating in approved RSA projects
shall be allocated an amount of scallop
pounds that can be harvested in open
areas, and an amount of pounds that can
be harvested in each access area. In
addition to open areas each year, the
specific access areas that would have
available RSA shall be specified through
the framework process and identified in
§ 648.60. In a year in which a framework
adjustment is under review by the
Council and/or NMFS, NMFS shall
VerDate Mar<15>2010
15:50 Apr 08, 2011
Jkt 223001
make RSA awards prior to approval of
the framework, if practicable, based on
total scallop pounds needed to fund
each research project. Recipients may
begin compensation fishing in open
areas prior to approval of the
framework, or wait until NMFS
approval of the framework to begin
compensation fishing within approved
access areas.
(e) If all RSA TAC is not allocated in
a fishing year, and proceeds from
compensation fishing for approved
projects fall short of funds needed to
cover a project’s budget due to a lowerthan-expected scallop price, unused
RSA allocation can be provided to that
year’s awarded projects to compensate
for the funding shortfall, or to expand a
project, rather than having that RSA go
unused. NMFS shall identify the
process for the reallocation of available
RSA pounds as part of the FFO for the
RSA program. The FFO shall specify the
conditions under which a project that
has been awarded RSA could be
provided additional RSA pounds as
supplemental compensation to account
for lower-than-expected scallop price or
for expansion of the project, timing of
reallocation, and information
submission requirements.
(f) A vessels participating in research
may harvest RSA through May 31 of the
subsequent fishing year if it, combined
with other participating vessels, if any,
is unable to harvest all of the awarded
RSA in the fishing year for which the
RSA pounds were awarded.
(g) Vessels conducting research under
an approved RSA project may be
exempt from crew restrictions specified
in § 648.51, seasonal closures of access
areas specified in § 648.59, and the
restriction on fishing in only one access
area during a trip specified in
§ 648.60(a)(4). The RSA project proposal
must list which of these measures for
which an exemption is required. An
exemption shall be provided by Letter of
Authorization issued by the Regional
Administrator. RSA compensation
fishing trips and combined
compensation and research trips are not
eligible for these exemptions.
(h) Upon completion of scallop
research projects approved pursuant to
this section and the applicable NOAA
grants review process, researchers must
provide the Council and NMFS with a
report of research findings, which must
include at least the following: A
detailed description of methods of data
collection and analysis; a discussion of
results and any relevant conclusions
presented in a format that is
understandable to a non-technical
audience; and a detailed final
PO 00000
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Fmt 4702
Sfmt 4702
accounting of all funds used to conduct
the sea scallop research.
10. In § 648.60, paragraph (a)(5)(iii) is
removed and reserved, and paragraphs
(a)(9), (c)(3), and (e)(1) are revised to
read as follows:
§ 648.60 Sea scallop area access program
requirements.
(a) * * *
(9) Reporting. The owner or operator
must submit reports through the VMS,
as specified in § 648.10(f)(4)(i).
*
*
*
*
*
(c) * * *
(3) The vessel owner/operator must
report the termination of the trip prior
to entering the access area if the trip is
terminated while transiting to the area,
or prior to leaving the Sea Scallop
Access Area if the trip is terminated
after entering the access area, by VMS
e-mail messaging, with the following
information: Vessel name, vessel owner,
vessel operator, time of trip termination,
reason for terminating the trip (for
NMFS recordkeeping purposes),
expected date and time of return to port,
and amount of scallops on board in
pounds;
*
*
*
*
*
(e) * * *
(1) Research set-aside may be
harvested in an access area that is open
in the applicable fishing year, as
specified in § 648.59.
*
*
*
*
*
11. Section 648.61 is revised to read
as follows:
§ 648.61
EFH closed areas.
(a) No vessel fishing for scallops, or
person on a vessel fishing for scallops,
may enter, fish in, or be in the EFH
Closure Areas described in paragraphs
(a)(1) through (6) of this section, unless
otherwise specified. A chart depicting
these areas is available from the
Regional Administrator upon request.
(1) Western GOM Habitat Closure
Area. The restrictions specified in
paragraph (a) of this section apply to the
Western GOM Habitat Closure Area,
which is the area bounded by straight
lines connecting the following points in
the order stated:
WESTERN GOM HABITAT CLOSURE
AREA
Point
WGM4
WGM1
WGM5
WGM6
WGM4
...............
...............
...............
...............
...............
N. lat.
43°15′
42°15′
42°15′
43°15′
43°15′
W. long.
70°15′
70°15′
70°00′
70°00′
70°15′
(2) Cashes Ledge Habitat Closure
Area. The restrictions specified in
E:\FR\FM\11APP1.SGM
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paragraph (a) of this section apply to the
Cashes Ledge Habitat Closure Area,
which is the area bounded by straight
lines connecting the following points in
the order stated:
as the Habitat Area of Particular
Concern), which is the area bounded by
straight lines connecting the following
points in the order stated:
CLOSED AREA II HABITAT CLOSURE
AREA
CASHES LEDGE HABITAT CLOSURE
AREA
Point
Point
CLH1
CLH2
CLH3
CLH4
CLH1
N. lat.
.................
.................
.................
.................
.................
43°01′
43°01′
42°45′
42°45′
43°01′
69°03′
68°52′
68°52′
69°03′
69°03′
(3) Jeffrey’s Bank Habitat Closure
Area. The restrictions specified in
paragraph (a) of this section apply to the
Jeffrey’s Bank Habitat Closure Area,
which is the area bounded by straight
lines connecting the following points in
the order stated:
CIIH1
CIIH2
CIIH3
CIIH4
CIIH5
CIIH6
CIIH1
JB1
JB2
JB3
JB4
JB1
N. lat.
....................
....................
....................
....................
....................
43°40′
43°40′
43°20′
43°20′
43°40′
68°50′
68°40′
68°40′
68°50′
68°50′
CLOSED AREA I—NORTH HABITAT
CLOSURE AREA
N. lat.
CI1 ....................
CI4 ....................
CIH1 ..................
CIH2 ..................
CI1 ....................
41°30′
41°30′
41°26′
41°04′
41°30′
W. long.
69°23′
68°30′
68°30′
69°01′
69°23′
CLOSED AREA I—SOUTH HABITAT
CLOSURE AREA
emcdonald on DSK2BSOYB1PROD with PROPOSALS
Point
N. lat.
CIH3 ..................
CIH4 ..................
CI3 ....................
CI2 ....................
CIH3 ..................
40°55′
40°58′
40°45′
40°45′
40°55′
W. long.
68°53′
68°30′
68°30′
68°45′
68°53′
(5) Closed Area II Habitat Closure
Area. The restrictions specified in this
paragraph (a) apply to the Closed Area
II Habitat Closure Area (also referred to
VerDate Mar<15>2010
15:50 Apr 08, 2011
.................
.................
.................
.................
.................
.................
.................
42°10′
42°10′
42°00′
42°00′
41°50′
41°50′
42°10′
67°20′
67°9.3′
67°0.5′
67°10′
67°10′
67°20′
67°20′
Jkt 223001
(a) As specified in § 648.55(d), and
pursuant to the biennial framework
adjustment process specified in
§ 648.90, the scallop fishery shall be
allocated a sub-ACL for the Georges
Bank and Southern New England/MidAtlantic stocks of yellowtail flounder.
The sub-ACL for the 2011 through 2013
fishing years are as follows:
(1) 2011. To be determined.
(2) 2012. To be determined.
(3) 2013. To be determined.
(b) Georges Bank Accountability
Measure. (1) If the Georges Bank
yellowtail flounder sub-ACL for the
scallop fishery is exceeded, the area
defined by the following coordinates
shall be closed to scallop fishing by
vessels issued a limited access scallop
permit for the period of time specified
in paragraph (b)(2) of this section:
GEORGES BANK YELLOWTAIL CLOSURE
NANTUCKET LIGHTSHIP HABITAT
CLOSED AREA
W. long.
(4) Closed Area I Habitat Closure
Areas. The restrictions specified in
paragraph (a) of this section apply to the
Closed Area I Habitat Closure Areas,
Closed Area I—North and Closed Area
I—South, which are the areas bounded
by straight lines connecting the
following points in the order stated:
Point
W. long.
(6) Nantucket Lightship Habitat
Closure Area. The restrictions specified
in paragraph (a) of this section apply to
the Nantucket Lightship Habitat Closure
Area, which is the area bounded by
straight lines connecting the following
points in the order stated:
JEFFREY’S BANK HABITAT CLOSURE
AREA
Point
N. lat.
W. long.
§ 648.64 Yellowtail Flounder Sub-ACLs
and AMs for the Scallop Fishery.
Point
NLH1
NLH2
NLH3
NLH4
NLH5
NLH1
N. lat.
.................
.................
.................
.................
.................
.................
41°10′
41°10′
40°50′
40°20′
40°20′
41°10′
W. long.
70°00′
69°50′
69°30′
69°30′
70°00′
70°00′
(b) Transiting. A vessel may transit
the EFH Closure Areas as defined in
paragraphs (a)(1) through (6) of this
section, unless otherwise restricted,
provided that its gear is stowed in
accordance with the provisions of
§ 648.23(b). A vessel may transit the
CAII EFH closed area, as defined in
paragraph (a)(6) of this section,
provided there is a compelling safety
reason to enter the area and all gear is
stowed in accordance with the
provisions of § 648.23(b).
12. In § 648.62, paragraph (b)(3) is
added to read as follows:
Point
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
GBYT
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
1 ......
2 ......
3 ......
4 ......
5 ......
6 ......
7 ......
8 ......
9 ......
10 ....
11 ....
12 ....
1 ......
N. lat.
41°50′
40°30.75′
40°30′
40°40′
40°40′
40°50′
40°50′
41°00′
41°00′
41°10′
41°10′
41°50′
41°50′
W. long.
66°51.94′
65°44.96′
66°40′
66°40′
66°50′
66°50′
67°00′
67°00′
67°20′
67°20′
67°40′
67°40′
66°51.94′
(2) Duration of closure. The Georges
Bank yellowtail flounder accountability
measure closed area shall remain closed
for the period of time, not to exceed one
fishing year, as specified for the
corresponding percent overage of the
Georges Bank yellowtail flounder subACL, as follows:
(i) For years when the Closed Area II
Sea Scallop Access Area is open, the
closure duration shall be:
§ 648.62 Northern Gulf of Maine (NGOM)
scallop management area.
*
*
*
*
*
(b) * * *
(3) If the TAC specified in paragraph
(b)(1) of this section is exceeded, the
amount of NGOM scallop landings in
excess of the TAC specified in
paragraph (b)(1) of this section shall be
deducted from the NGOM TAC for the
subsequent fishing year, as soon as
practicable, once scallop landings data
for for the NGOM fishery is available.
*
*
*
*
*
13. Section 648.64 is added to subpart
D to read as follows:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
Percent overage
of YTF sub-ACL
1 ........................
2–24 ..................
25–38 ................
39–57 ................
58–63 ................
64–65 ................
66–68 ................
69 ......................
70 and higher ...
Length of closure
March
March
March
March
March
March
March
March
March
through
through
through
through
through
through
through
through
through
May.
June.
July.
August.
September.
October.
November.
December.
February.
(ii) For fishing years when the Closed
Area II Sea Scallop Access Area is
E:\FR\FM\11APP1.SGM
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closed to scallop fishing, the closure
duration shall be:
Percent overage
of YTF sub-ACL
1 ........................
2 ........................
3 ........................
4–5 ....................
6 and higher .....
Length of closure
March
March
March
March
March
through
through
through
through
through
May.
June.
July.
August.
February.
(c) Southern New England/MidAtlantic Accountability Measure. (1) If
the Southern New England/MidAtlantic yellowtail flounder sub-ACL for
the scallop fishery is exceeded, the area
defined by the following coordinates
shall be closed to scallop fishing by
vessels issued a limited access scallop
permit for the period of time specified
in paragraph (c)(2) of this section:
SOUTHERN NEW ENGLAND YELLOWTAIL
CLOSURE
Point
emcdonald on DSK2BSOYB1PROD with PROPOSALS
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
SNEYT
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
AM
N. lat.
1 ....
2 ....
3 ....
4 ....
5 ....
6 ....
7 ....
8 ....
9 ....
10 ..
11 ..
12 ..
13 ..
14 ..
15 ..
16 ..
17 ..
18 ..
VerDate Mar<15>2010
41°28.4′
41°28.57′
41°20′
41°20′
41°20′
41°18′
41°17.69′
41°14.73′
39°50′
39°50′
39°50′
40°00′
40°00′
40°41.23′
41°00′
41°00′
41°20′
41°21.15′
17:11 Apr 08, 2011
W. long.
71°10.25′
71°10′
71°10′
70°50′
70°30′
70°15′
70°12.54′
70°00′
70°00′
71°00′
71°40′
71°40′
73°00′
73°00′
71°55′
71°40′
71°40′
71°40′
Jkt 223001
(2) Duration of closure. The Southern
New England/Mid-Atlantic yellowtail
flounder accountability measure closed
area shall remain closed for the period
of time, not to exceed one fishing year,
as specified for the corresponding
percent overage of the Southern New
England/Mid-Atlantic yellowtail
flounder sub-ACL, as follows:
Percent overage
of YTF sub-ACL
Length of closure
1–2 ....................
3–5 ....................
6–8 ....................
9–12 ..................
13–14 ................
15 ......................
16 ......................
17 ......................
18 ......................
19 ......................
20 and higher ...
March.
March and April.
March through May.
March through June.
March through July.
March through August.
March through September.
March through October.
March through November.
March through January.
March through February.
(d) Exemption for LAGC IFQ vessels.
Vessels issued an LAGC IFQ permit and
fishing under the LAGC IFQ scallop
fishery shall be exempt from the
closure(s) specified in paragraphs (b)
and (c) of this section. Yellowtail
bycatch by such vessels shall be
counted against the applicable
yellowtail flounder sub-ACL specified
in paragraph (a) of this section.
(e) Process for implementing the AM.
On or about January 15 of each year, the
Regional Administrator shall determine
whether a yellowtail flounder sub-ACL
was exceeded, or is projected to be
exceeded, by scallop vessels prior to the
end of the scallop fishing year ending
on February 28/29. The determination
shall include the amount of the overage
or projected amount of the overage,
specified as a percentage of the overall
sub-ACL for the applicable yellowtail
PO 00000
Frm 00038
Fmt 4702
Sfmt 9990
flounder stock, in accordance with the
values specified in paragraph (a) of this
section. The Regional Administrator
shall implement the AM in accordance
with the APA and notify owners of
limited access scallop vessels by letter
identifying the length of the closure and
a summary of the yellowtail flounder
catch, overage, and projection that
resulted in the closure.
(f) AM for the 2011 fishing year. AMs
shall be applied in the 2011 fishing year
for any overage of the applicable
yellowtail flounder stock’s total ACL in
the 2010 fishing year in accordance with
the APA. If a 2010 yellowtail flounder
subcomponent catch allocation was
exceeded in the 2010 fishing year, and
that overage caused the total yellowtail
flounder ACL for that stock specified in
accordance with § 648.90(a)(4) and
§ 648.90(a)(6) to be exceeded, the
Regional Administrator shall implement
the yellowtail flounder AM closure for
the area, as defined in paragraph (b)(1)
or (c)(1) of this section as soon as
practicable after the effective date of this
regulation. The closure shall be effective
on the date specified by the Regional
Administrator and the area shall
remained closed for a period of time
equal to the period of time specified in
paragraphs (b)(2)(i)(A), (b)(2)(i)(B), or
(c)(2) of this section, as applicable. For
example, if the overage is 3 to 5 percent
for the Southern New England/MidAtlantic yellowtail stock, and the
closure is effective beginning July 15,
2011, the closure shall remain in effect
through September 15, 2011, a
2-month period equivalent to the
March–April, 2-month closure specified
in paragraph (c)(2) of this section.
[FR Doc. 2011–8444 Filed 4–8–11; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\11APP1.SGM
11APP1
Agencies
[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Proposed Rules]
[Pages 19929-19950]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8444]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 110329229-1219-02]
RIN 0648-BA71
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Atlantic Sea
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery
Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS proposes regulations to implement Amendment 15 to the
Atlantic Sea Scallop Fishery Management Plan (FMP), which was developed
by the New England Fishery Management Council (Council). The Council
submitted Amendment 15, incorporating the Final Environmental Impact
Statement (FEIS) and the Initial Regulatory Flexibility Analysis
(IRFA), for review by the Secretary of Commerce. NMFS has also
published a Notice of Availability requesting comments from the public
on Amendment 15 pursuant to the Magnuson-Stevens Fishery Conservation
and Management Act (MSA). Amendment 15 was developed primarily to
implement annual catch limits (ACLs) and accountability measures (AMs)
to bring the Scallop FMP into compliance with requirements of the MSA
as reauthorized in 2007. Amendment 15 includes additional measures
recommended by the Council, including: A revision of the overfishing
definition (OFD); modification of the essential fish habitat (EFH)
closed areas under the Scallop FMP; adjustments to measures for the
Limited Access General Category (LAGC) fishery; adjustments to the
scallop research set-aside (RSA) program; and additions to the list of
measures that can be adjusted by framework adjustments.
DATES:
Comments must be received by 5 p.m., Eastern Standard Time, by May
26, 2011.
ADDRESSES: An FEIS was prepared for Amendment 15 that describes the
proposed action and its alternatives and provides a thorough analysis
of the impacts of proposed measures and their alternatives. Copies of
Amendment 15, including the FEIS and the IRFA, are available from Paul
J. Howard, Executive Director, New England Fishery Management Council,
50 Water Street, Newburyport, MA 01950. These documents are also
available online at https://www.nefmc.org.
You may submit comments, identified by 0648-BA71, by any one of the
following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal https://www.regulations.gov.
Fax: (978) 281-9135, Attn: Peter Christopher.
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930. Mark the outside of the envelope, ``Comments on Scallop
Amendment 15 Proposed Regulations.''
Instructions: All comments received are a part of the public record
and will generally be posted to https://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not
[[Page 19930]]
submit Confidential Business Information or otherwise sensitive or
protected information. NMFS will accept anonymous comments. Attachments
to electronic comments will be accepted in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule should be submitted to the Regional Administrator at the address
above and to the Office of Management and Budget (OMB) by e-mail at
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy
Analyst, phone (978) 281-9288, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
In January 2007, the MSA was reauthorized and included a new
provision requiring each FMP to use ACLs to prevent overfishing,
including measures to ensure accountability, should the ACLs be
exceeded. For fishery resources that were determined to be overfished,
the MSA requires that such measures be implemented by 2010. For fishery
resources that are not overfished, such measures must be implemented by
2011. Scallop fishery management measures to comply with the MSA's ACL
and AM requirements are required for 2011, because the scallop resource
is not overfished. To meet this requirement, the Council initiated
development of Amendment 15 on March 5, 2008, by publishing a Notice of
Intent to develop Amendment 15 (73 FR 11888, March 5, 2008) and prepare
an EIS to analyze the impacts of the proposed management alternatives.
The Council intended that Amendment 15 would address three goals: (1)
Bring the Scallop FMP into compliance with new requirements of the
reauthorized MSA; (2) address excess capacity in the limited access
scallop fishery; and (3) consider measures to adjust several aspects of
the overall program to make the Scallop FMP more effective. Following
the public comment period that ended on August 23, 2010, the Council
adopted Amendment 15 on September 29, 2010. The Council voted to adopt
most of the measures proposed in the amendment except permit stacking
and leasing alternatives that had been designed to address excess
capacity, after considering extensive written and oral public comment
on the measures. Ultimately the Council rejected these measures due to
concerns that the measures would have unacceptable negative economic
and social impacts on the scallop fleet and fishing communities.
Amendment 15 would establish the mechanism for implementing ACLs
and AMs, which in turn would generate scallop fishery specifications,
including days-at-sea (DAS), access area trip allocations, and
individual fishing quotas (IFQs). Amendment 15 does not include actual
catch limits and fishery specifications. These specifications will be
established through the separate action of Framework 22 to the FMP for
fishing years (FYs) 2011, 2012, and 2013. Framework 22 includes
specific measures that address the change from DAS, access areas, and
trip allocations that became effective on March 1, 2011, to different
allocations implemented under Framework 22. The Council adopted
Framework 22 and submitted it to NMFS for review. NMFS' review of
Framework 22 is on the same timeline as Amendment 15.
The Council has reviewed the Amendment 15 proposed regulations as
drafted by NMFS and deemed them to be necessary and appropriate as
required by section 303(c) of the MSA.
Recommended Management Measures
1. ACL Flow Chart
Amendment 15 would establish how the Scallop FMP would account for
all catch in the scallop fishery and would include designations of
Overfishing Limit (OFL), Acceptable Biological Catch (ABC), ACLs, and
Annual Catch Targets (ACT) for the scallop fishery, as well as scallop
catch for the Northern Gulf of Maine (NGOM), incidental, and State
waters catch components of the scallop fishery. The scallop fishery
assessment would determine the exploitable biomass, including an
assessment of discard and incidental mortality (mortality of scallops
resulting from interaction, but not capture, in the scallop fishery).
Based on the assessment, OFL would be specified as the level of
landings, and associated fishing mortality rate (F) that, above which,
overfishing is occurring. OFL would account for landings of scallops in
State waters by vessels without Federal scallop permits. The current
assessment of the scallop fishery (SAW 50, 2010) determined that the F
associated with the OFL is 0.38. Since discard and incidental mortality
are accounted for in the scallop resource assessment and removed prior
to setting ABC, the specification of ABC, ACL, and ACT, as well as the
NGOM and incidental catch, are represented by landings as a proxy for
catch. ABC would be equal to overall ACL, but to account for scientific
uncertainty, ABC would be less than OFL, with an associated F that has
a 25-percent probability of exceeding F associated with OFL (i.e., a
75-percent probability of being below the F associated with OFL). SAW
50 determined that the F associated with the ABC/ACL is 0.32. Catch
from the NGOM would be established at the ABC/ACL level, but would not
be subtracted from ABC/ACL. Since this portion of the scallop fishery
is not part of the scallop assessment, the catch would be added and
specified as a separate Total Allowable Catch (TAC) in addition to ABC/
ACL. After removing observer set-aside and RSA (1 percent of the ABC/
ACL and 1.25 M lb (567 mt) (proposed in Amendment 15), respectively),
Amendment 15 would establish separate sub-ACLs for the limited access
(LA) and LAGC fisheries. To account for management uncertainty,
Amendment 15 proposes ACTs for each fleet. For the LA fleet, the ACT
would have an associated F that has a 25-percent chance of exceeding
ABC. The F associated with this ACT is currently estimated to be 0.28.
For the LAGC fleet, the ACT would be set equal to the LAGC fleet's sub-
ACL.
2. Modification of the OFD
Amendment 15 proposes to modify the current OFD to provide for
better management of the scallop fishery under area rotation. The
proposed Hybrid OFD combines the overfishing threshold from the status
quo overfishing definition for open areas with a time-averaged fishing
mortality F approach for access areas. The F target in the open areas
would be set at a level that is no higher than the overfishing
threshold (currently F = 0.38). In access areas, it would be set
annually at a level that results in F no higher than FMSY
when averaged over time with the F in that access area, including times
when the access area was closed. The combined target F for all areas
could be no higher than that which gives a 25-percent probability of
exceeding the F associated with ABC (F = 0.32), which is currently
calculated to be F = 0.28, taking into account all sources of F in the
scallop fishery.
The current OFD and overfishing reference points are based on the
assumption that F is spatially uniform. In the scallop fishery this
assumption is inaccurate, because of unfished biomass in closed areas,
variable Fs in access areas, and spatially variable fishing mortality
in open areas. Under the current OFD, closed and access areas protect
the scallop stock from
[[Page 19931]]
recruitment overfishing, but growth overfishing may occur in the open
areas because the current OFD averages spatially across open and closed
areas, i.e., F is higher in open areas to compensate for the zero F in
closed areas. The greater the fraction of scallops in the closed areas,
the more ineffective the current OFD becomes. Additionally, when more
biomass is within closed areas, the estimated whole-stock F may be more
sensitive to recruitment and measurement error than to changes in
effort. Therefore, while the scallop fishery's current OFD is
consistent with MSA requirements, and has been effective at keeping the
scallop fishery above the overfished level and preventing overfishing
overall, certain resource and fishery conditions as described above may
reduce the effectiveness of the FMP.
3. OFD Reference Points
The current OFD states that FMAX will be used as a proxy
for FMSY. However, SAW 50 approved a direct estimate of
FMSY. Therefore, Amendment 15 would replace the current
BMAX and FMAX with BMSY and
FMSY. Final results from SAW 50 were available in August
2010, and both the Scallop Committee and the Council's Scientific and
Statistical Committee (SSC) reviewed the results and agreed that the
existing OFD should be updated to reflect new biological reference
points based on BMSY and FMSY. Under Amendment
15, the new overfishing definition would read:
If stock biomass is equal or greater than BMSY as
measured by an absolute value of scallop meat (mt) (estimated in
2009 at 125,358 mt scallop meat in the Georges Bank and Mid-Atlantic
resource areas), overfishing occurs when F exceeds FMSY,
currently estimated as 0.38. If the total stock biomass is below
BMSY, overfishing occurs when F exceeds the level that
has a 50-percent probability to rebuild stock biomass to
BMSY in 10 years. The scallop stock is in an overfished
condition when stock biomass is below \1/2\ BMSY, and in
that case overfishing occurs when F is above a level expected to
rebuild in 5 years, or above zero when the stock is below \1/4\
BMSY.
The proposed changes to the OFD would also require revisions of the
current framework provisions in the scallop fishery regulations at 50
CFR 648.55. Under the current OFD, the framework adjustment process
included provisions that ensure that measures achieve optimum yield
(OY) on a continuing basis. These provisions were established as part
of Amendment 10 to the FMP because of the potential inconsistency
between rotational area management and use of a spatially-average OFD,
whereby open area fishing mortality may be elevated relative to the
condition of the resource in open areas, thus preventing OY from being
achieved. Because the proposed OFD drastically reduces the risk of
inappropriate open area fishing levels, due to application of the
threshold F to drive open area fishing levels, the framework provisions
specifically designed to adjust Council recommendations to ensure that
OY is achieved are no longer necessary.
4. Scientific Uncertainty and ABC Control Rule
Amendment 15 includes two different assessments of scientific
uncertainty, based on the following scientific parameters that are
utilized in scallop resource and fishery assessments:
Growth;
Maturity and fecundity;
Shell height/meat weight relationship;
Natural mortality;
Catch data;
Discards and discard mortality;
Incidental mortality;
Commercial shell height data;
Commercial and survey gear selectivity;
Commercial and survey dredge efficiency;
Stock-recruitment relationship; and
Density dependence.
The first assessment of scientific uncertainty is qualitative and
is based on the level of uncertainty, importance, and effect of the
parameters. Uncertainty, importance, and effect of the parameters on
the scallop resource and fishery assessment are characterized
numerically on a scale of low to high. This first assessment of
scientific uncertainty would provide managers with an indication of the
overall level of scientific uncertainty, which would help determine a
buffer between the OFL and ABC. The Council concluded in Amendment 15
that scientific uncertainty in the scallop resource and fishery is low.
The second consideration of scientific uncertainty enables the
Council to establish ABC that has a low risk of exceeding OFL. Based on
the parameters for determining scientific uncertainty, an analytical
model developed by the PDT specifies the probability of exceeding the
OFL at a specified F associated with the corresponding catch level.
Using this model, and given the overall low level of scientific
uncertainty, the ABC control rule would set ABC at a level that has a
25-percent probability of exceeding OFL (i.e., a 75-percent probability
that it will not exceed OFL). This value could be modified through the
framework adjustment process.
5. State Waters Catch, NGOM TAC, and Incidental Catch
Scallop catch from State waters by vessels not issued a Federal
scallop permit is a relatively small component of overall scallop
catch, and the scallop resource in State waters is not part of the
Federal scallop resource survey. To account for scallop landings from
State waters, the Council's Scallop Plan Development Team (PDT) will
estimate landings annually, based on available State waters landings
information, and include it in the specification of OFL. The amount of
scallop landings in State waters would then be specified as a separate
level of landings that would be compared to actual landings each year,
and adjusted as necessary in subsequent years. This component of
overall catch is not specified as an ACL and has no associated AM,
since there is no Federal authority to adjust catch by vessels without
a Federal permit.
Scallop catch in the NGOM would be specified similar to State
waters scallop catch, except that the NGOM landings level would be
based on historical landings or available resource surveys in the NGOM,
and would be included in the specification of ABC. While there is no
Federal survey in the NGOM, independent surveys have been conducted,
and if continued, would provide survey information for NGOM landings
specifications each year. Although this component of overall scallop
catch is not formally an ACL, an overage is accounted for in the
subsequent year through a reduction of the landings limit that is equal
to the overage from the prior year.
Incidental catch has been estimated to be 50,000 lb (24,948 kg),
and data continue to support this value, based on historical and
predicted landing levels. Incidental catch would be removed from ABC
prior to establishing the research and observer set-asides and ACLs for
the limited access and LACG IFQ fleets. This component of overall
scallop catch does not have a specific AM, but if incidental catch is
higher than predicted, the landings limit would be adjusted in the
subsequent year(s) by removing more incidental catch from ABC.
6. Separate ACLs for the LA and LAGC IFQ Fleets as Sub-ACLs
The LA and LAGC IFQ fleets would be allocated landings as sub-ACLs
of the overall scallop fishery ACL with the same allocation values that
were established under Amendment 11 to the FMP: LA vessels would be
allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels
would be
[[Page 19932]]
allocated 5.5 percent of the ABC/ACL landings. Both allocations would
be made after deducting incidental catch and research and observer set-
asides from ABC. Sub-ACLs were established for these two fleets so that
AMs would be based on each fleet's harvest relative to its own ACL,
without requiring that one fleet would be penalized for an overage of
the other. Both fleets would have carryover provisions (existing for
the LA and proposed under Amendment 15 for the LAGC fleet) and RSA
catch could be carried over into the subsequent year. For the purpose
of accounting relative to ABC and ACL, landings from carryover DAS,
IFQ, or TAC would apply to the FY in which they are landed (i.e., not
to the FY for which they were allocated).
7. Management Uncertainty and ACT
Amendment 15 proposes that management uncertainty in the scallop
fishery mainly results from the uncertainty associated with carryover
DAS, vessel upgrades and replacements, and open area catch under DAS.
The uncertainty associated with these measures results from a
difference between estimated vessel efficiency and landings per unit
effort (LPUE), and realized efficiency and LPUE during the course of
the fishing year. Management uncertainty for the LAGC IFQ fleet is
considered very low because it would result from landings in excess of
a vessel's IFQ, which can be audited and accounted for through data
reviews each year. Although ACT could be specified for the LAGC
fishery, it would be equal to the fleet's ACL initially, unless revised
by the Council. An ACT for the LA fleet to account for management
uncertainty would be set at a level with an associated F that has a 25-
percent probability of exceeding ABC, which is currently 0.28.
8. AMs for the LA Fleet
The primary AM for the LA fleet requires a DAS reduction for the
fleet in open areas that would approximate the catch overage of the
ACT. Using the ACT for determining the overage is designed to account
for management uncertainty and to better prevent vessels from exceeding
the fleet's ACL. The DAS reduction would be distributed evenly to
limited access vessels. For example, an overage of 1,500,000 lb (680
mt) would have a DAS equivalent of 625 DAS, based on an LPUE of 2,400
lb (1.1 mt) per DAS. Divided across 327 full-time vessels, the DAS
reduction per vessel would be 1.9 DAS. Part time vessel DAS would be
reduced by 0.76 DAS (40 percent of the full time deduction) and
occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full
time deduction). Part time and occasional proportional deductions are
consistent with the way that DAS are assigned in the fishery. The AM
would take effect in the fishing year following the fishing year in
which the ACL was exceeded. Since the AM would apply mid-year, vessels
may have already used more DAS in that fishing year than are ultimately
allocated after applying the AM. If this occurs, a vessel that exceeds
the DAS it is allocated after the AM is applied would have the amount
of DAS used in excess of the vessel's final DAS allocation after the AM
is applied deducted from its DAS allocation in the subsequent fishing
year. For example, a vessel initially allocated 32 DAS in 2011 uses all
32 DAS prior to application of the AM. If, after application of the AM,
the vessel's DAS allocation is reduced to 31 DAS, the vessel's DAS in
2012 would be reduced by 1 DAS.
9. LA Fleet AM Exception
Even if the ACL is exceeded, triggering the AM for the LA fleet,
the F associated with the fleet's ACL may not be exceeded if, in
retrospect, some of the assumptions for determining the ACL, such as
LPUE relative to the status of the resource or the biomass were
underestimated. Since the overall goal of the ACL is to ensure that F
limits are not exceeded, enacting an AM would not be necessary if the F
limits are not exceeded. To address this, Amendment 15 includes an
exception provision (called a ``disclaimer'' in the amendment) that
would stop the AM from taking effect if, in an analysis of the
preceding fishing year before the AM goes into effect, the actual F
resulting from the fishery in the prior year was one standard deviation
below the overall F for the fleet's ACL. With an F = 0.28 for the ACL,
one standard deviation below would be F = 0.24. If the fishery's F is
below 0.24, the AM would not be implemented. However, if the fishery's
F is 0.24 or above, the AM would take effect. When fishery data are
available after the FY ends, and before the AM takes effect, the
Scallop PDT will evaluate the fishery, determine the F and would
recommend through the Council whether or not the AM should be
implemented. To ensure compliance with applicable laws, the Regional
Administrator would have discretion to implement the exception or
implement the AM in accordance with the Administrative Procedure Act
(APA), 5 U.S.C. 553 et seq., after considering the Council's
recommendation.
The application of the AM described in item 8 above, and the AM
exception described in this item 9, would be considered at the same
time to ensure that multiple adjustments of DAS do not occur in one
fishing year, if possible. The decision to implement the AM or the AM
exception would be made by the Regional Administrator on or about
September 30 of each year.
10. Increase of LAGC IFQ ACL if LA AM Exception Is Enacted
If the LA fleet's AM exception is enacted, a portion of landings
would be re-distributed to the LAGC fleet for equity purposes. Under
the exception, the LA fleet would have exceeded its ACL, but no AM
would be put in place, as described in item 9 above. Because the LA
fleet still would have harvested more scallops than allocated, without
being held accountable, an inequity would be created. Had the ACL been
higher, commensurate with the analysis of the prior fishing year, those
``extra'' scallops could have been distributed to the LAGC IFQ fleets
as well. To account for the inequity, the LAGC IFQ fleet would be
allocated 5.5 percent of the LA fleet's overage of its ACL. The
additional allocation to the LAGC IFQ fleet would be distributed
through adjustment of IFQs, upon implementation of the exception on or
about September 30 of each year. An amount equivalent to the amount
allocated to the LAGC IFQ fleet would be deducted from the LA ACL. The
deduction would not affect the LA fleet's ACT or DAS allocations, but
would establish a lower threshold for the LA fishery for triggering
AMs.
11. AM for the LAGC IFQ Fleet
Amendment 15 proposes that, if an LAGC vessel exceeds its IFQ, its
IFQ would be reduced by the amount equal to the overage as soon as
possible in the fishing year immediately following the fishing year in
which the IFQ overage occurred. Since the AM would apply mid-year,
vessels may have already used more IFQ in that fishing year than is
ultimately allocated after applying the AM. If this occurs, a vessel
that exceeds the IFQ it is allocated after the AM is applied would have
the amount of IFQ landed in excess of the vessel's final IFQ allocation
after the AM is applied deducted from its IFQ allocation in the
subsequent fishing year. For example, a vessel with an initial IFQ of
1,000 lb (453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in
2010, and is initially allocated 1,300 lb (589.7 kg) of scallops in
2011. That vessel would be subject to an IFQ reduction equal to 200 lb
(90.7 kg) to account for the 200 lb (90.7 kg) overage in 2010. If that
vessel lands 1,300 lb (589.7 kg) of scallops in 2011 prior to
application of the 200 lb
[[Page 19933]]
(90.7 kg) deduction as the AM, the vessel would be subject to a
deduction of 200 lb (90.7 kg) in 2012.
For vessels involved in a temporary IFQ transfer, the entire
deduction shall apply to the vessel that acquired IFQ, not the
transferring vessel. A vessel that has an overage that exceeds its IFQ
in the subsequent fishing year shall be subject to an IFQ reduction in
subsequent years until the overage is paid back. For example, a vessel
with an IFQ of 1,000 lb (454 kg) in each year over a 3-year period,
that harvests 2,500 lb (1,134 kg) of scallops the first year, would
have a 1,500-lb (680-kg) IFQ deduction, so that it would have zero
pounds to harvest in year 2, and 500 lb (227 kg) to harvest in year 3.
A vessel that has a ``negative'' IFQ balance, as described in the
example, could lease or transfer IFQ to balance the IFQ, provided there
are no sanctions or other enforcement penalties that would prohibit the
vessel from acquiring IFQ.
Applying the AM to an individual vessel's IFQ was considered
appropriate because the Council determined that individual vessel
overages of IFQ would be the only cause of exceeding the ACL for the
IFQ fleet. A vessel that has an overage in one FY that exceeds its
entire IFQ in the subsequent FY would be required to take IFQ
reductions in subsequent years until the overage is paid back. For
example, a vessel with an IFQ of 1,000 lb (454 kg) in each year over a
3-year period, that harvests 2,500 lb (1,134 kg) of scallops the first
year, would have a 1,500-lb (680-kg) IFQ deduction, so that it would
have zero pounds to harvest in year 2, and 500 lb (227 kg) to harvest
in year 3. A vessel that has a ``negative'' IFQ balance, as described
in the example, could lease IFQ to balance the IFQ, provided there are
no sanctions or other enforcement actions that would prohibit the
vessel from acquiring IFQ. These automatic IFQ deductions do not excuse
a vessel from any enforcement actions that may be applicable for the
overage. The Council determined that this individual-vessel AM would be
more equitable than penalizing others in the fleet for single-vessel
overages. The Council incorporated ACT into the LAGC IFQ fleet
allocation, but chose not to apply any management uncertainty buffer
for the fleet at this time. This could be adjusted through the
framework process if an ACT is needed to address management
uncertainty.
12. Yellowtail Flounder (YTF) Sub-ACL
To account for YTF catch in the scallop fishery, Amendment 15 would
establish sub-ACLs (called ``sub'' ACLs to reflect that these ACLs are
part of the overall ACL established in the NE Multispecies FMP). for
the Southern New England/Mid-Atlantic (SNE/MA) and Georges Bank (GB)
YTF sub-ACLs for the scallop fishery. The amount of YTF estimated to be
harvested annually would depend on the scallop DAS and access area
allocations, and could be adjusted through the NE Multispecies FMP
framework adjustment process.
13. YTF Sub-ACL AM
Areas within the GB and SNE/MA YTF stock areas that have been pre-
identified would close to scallop fishing in the FY following a FY in
which the YTF sub-ACL for the scallop fishery is exceeded. These areas
were identified during the final development of Amendment 15 as the
statistical areas that have high bycatch of YTF in the scallop fishery.
For the GB YTF stock, the closure would be in statistical area 562,
which extends from just west of Closed Area II (CAII), through that
closed area, and to the southeast of that closed area. In addition, a
small portion of statistical area 525 within the CAII access area would
also be closed. For the SNE/MA YTF stock, statistical areas 537, 539,
and 613 would close under the YTF AM. Coordinates of these YTF AM
closed areas are included in the proposed regulations in this proposed
rule. A chart depicting the areas is in the Amendment 15 FEIS (see
ADDRESSES). The Council decided that the statistical areas included in
each YTF AM would close to LA vessels only; LAGC vessels would be
exempt from these closures if fishing in an exempted area authorized
under the NE Multispecies FMP, because these exemptions were created
because bycatch of YTF in the LAGC fishery is extremely low. However,
any YTF catch by LAGC vessels as they continue to fish would count
toward that stock area's sub-ACL for the scallop fishery (and would
contribute to an overage of the sub-ACL for the scallop fishery). The
YTF closure AM would be effective in the scallop FY directly following
the year in which the YTF sub-ACL is exceeded. By January 15 of each
year, NMFS would determine whether the YTF sub-ACL is expected to (or
has been) exceeded that year. NMFS would announce the closure to the
scallop fleet as soon as possible following the determination, and the
closure would take effect on March 1. The Council also specified that
if the scallop fishery exceeds its YTF allocation in 2010 (specified
under the NE Multispecies FMP), and that causes the entire applicable
YT ACL to be exceeded for the 2010 fishing year, the scallop fishery
will be subject to the applicable YTF AM. To implement the YTF AM for
the 2011 fishing year, NMFS would determine the length of the closure
as specified below, beginning when Amendment 15 is effective, if
approved. For the 2012 fishing year and beyond, the YTF closure AM
areas would remain closed for the length of time specified in the
following tables, and would be in place for one fishing year only:
SNE/MA YT Closure AM Duration for Specified Overage
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1-2................................... March.
3-5................................... March through April.
6-8................................... March through May.
9-12.................................. March through June.
13-14................................. March through July.
15.................................... March through August.
16.................................... March through September.
17.................................... March through October.
18.................................... March through November.
19.................................... March through January.
20 and higher......................... March through February.
------------------------------------------------------------------------
GB YT Closure AM Duration for Specified Overage in Years When the CAII
Access Area Is Open
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2-24.................................. March through June.
25-38................................. March through July.
39-57................................. March through August.
58-63................................. March through September.
64-65................................. March through October.
66-68................................. March through November.
69.................................... March through December.
70 and higher......................... March through February.
------------------------------------------------------------------------
GB YT Closure AM Duration for Specified Overage in Years When the CAII
Access Area Is Closed
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1..................................... March through May.
2..................................... March through June.
3..................................... March through July.
4-5................................... March through August.
6 and higher.......................... March through February.
------------------------------------------------------------------------
14. Monitoring the YTF Sub-ACL
In order to more effectively monitor YTF bycatch in open areas, the
daily vessel monitoring system (VMS) catch report that is currently
required in access areas only would be required for all scallop trips
in all areas. Vessel operators would be required to report the
following information: Fishing
[[Page 19934]]
vessel trip report (FVTR) serial number; date fish caught; total pounds
of scallop meats kept; total pounds of YTF kept; total pounds of YTF
discarded; and total pounds of all other fish kept. Vessels would be
required to submit VMS catch reports for every day fished by 9 a.m. of
the day following the day on which fishing occurred, consistent with
access area catch reporting.
15. LAGC IFQ Vessel Possession Limit Increase
IFQ scallop vessels would be allowed to harvest 600 lb (272.2 kg)
of shucked scallops or 75 bu (26.4 hL) of in-shell scallops per trip,
an increase of 200 lb (90.7 kg) or 25 bu (8.8 hL) per trip from the
current 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit.
This alternative would address concerns that the current possession
limit is not economically feasible due to increased costs. The 600-lb
(272.2-kg) possession limit is not expected to change the ``small
boat'' nature of the LAGC fishery, and would remain consistent with the
Council's vision for LAGC vessels, while enabling vessel owners to
maintain profits under rising costs. The increase is also consistent
with the conservation objectives of the FMP because landings are
constrained by the IFQ allocations.
16. IFQ Carryover
Amendment 15 proposes to allow IFQ vessels that have unused IFQ at
the end of the FY to carry over up to 15 percent of their unused IFQ to
the subsequent FY. Any IFQ that was leased by but not used by a vessel
could also be carried over by the vessel that acquired the IFQ (for
monitoring and accounting purposes, leased-in IFQ is used first, in the
order acquired). For accounting purposes, the combined total of all
vessels' IFQ carry-over shall be added to the LAGC IFQ fleet's
applicable ACL for the carry-over year. Any IFQ carried over that is
landed in the carry-over fishing year shall be counted against the ACL
specified in paragraph (a)(4)(i) of this section, as increased by the
total carry-over for all LAGC IFQ vessels, as specified in paragraph
(h)(2)(v)(B).
17. Increase the IFQ Vessel Cap to 2.5 Percent
This proposed measure would increase the 2-percent IFQ cap per
vessel to 2.5 percent of the total IFQ allocation to allow more
flexibility and promote efficiency for vessels in fishing IFQs
available to them. IFQ that is carried over would not contribute to the
vessel's 2.5-percent IFQ cap because the carryover is a temporary
increase of the vessel's IFQ based on underharvest the prior year.
Because there is also a 5-percent overall cap on how much IFQ on entity
may own, a vessel owner would now be permitted to own only two vessels
to meet the 5-percent ownership cap, rather than having to own more
than two vessels. This alternative would provide increased flexibility
to vessel owners to more effectively and efficiently fish their IFQs.
18. Permanent IFQ Transfers Separate From LAGC IFQ Permit
This alternative would allow LAGC IFQ permit owners to permanently
transfer some or all of their quota allocation, independent of their
IFQ permit, to another LAGC IFQ permit holder while retaining the
permit itself. This measure would enable vessel owners additional
flexibility to buy or sell IFQ without impacting other permits on their
vessel. This allowance would only apply to IFQ permit holders that do
not also have a LA scallop permit to prevent crossover of IFQ
allocations between the two IFQ fleets that have separate allocations.
19. Revision of the EFH Closed Areas
To establish compatibility with the NE Multispecies FMP, Amendment
15 would modify the EFH closed areas in the Scallop FMP by removing the
four EFH closed areas that were implemented in Amendment 10 to the
Scallop FMP, and it would replacing them with EFH closed areas that are
identical to the EFH closed areas implemented under the NE Multispecies
FMP. These areas are the Closed Area I (CAI), Closed Area II (CAII),
Nantucket Lightship, Western Gulf of Maine, Jeffrey's Bank, and Cashes
Ledge Habitat Closed Areas. Coordinates for the area are provided in
the proposed regulations in this proposed rule. A chart depicting the
areas is in the FEIS for Amendment 15 (see ADDRESSES). These areas
would be closed to scallop fishing (and closed to all mobile bottom-
tending gear under the NE Multispecies FMP) to minimize the adverse
impacts of scallop fishing. This change in the EFH closed areas under
the Scallop FMP would make the EFH closed areas consistent between the
Scallop FMP and the NE Multispecies FMP, as intended under Joint
Frameworks 16 to the Scallop FMP and 39 to the NE Multispecies FMP
(Joint Framework 16/39) (69 FR 63460, November 2, 2004). With
inconsistent areas, the scallop access areas in CAI, CAII, and the NLCA
are inconsistent with the area rotation program established under the
Scallop FMP because they are restricted to areas smaller than designed.
These areas were originally implemented under that action, but were
vacated by a Federal Court order resulting from a lawsuit on Joint
Framework 16/39. That order specified that the EFH closed areas could
only be changed through an FMP amendment. This proposed action would
address the inconsistency while the Council continues to develop EFH
measures under Phase 2 of its Omnibus EFH Amendment.
20. Establish Third-Year Default Measures Through the Biennial
Framework Process
Fishery specifications in the scallop fishery are generally set
every 2 years, through the biennial framework adjustment process. This
alternative would extend the fishery specification process to include a
third year of allocation measures that would be effective if subsequent
framework actions are delayed. Currently, measures from the prior year
roll over to the next FY while the implementation of the new set of
management measures is pending. However, the measures that roll over
are often not appropriate for the status of the resource. By setting
the measures for the third year in the framework, the measures are more
likely to be appropriate for the condition of the fishery and resource.
Third-year measures would need to be set with sufficient precaution to
take into account the uncertainty associated with projections for the
third year. The third-year measures would be superseded by the measures
developed in the biennial framework adjustment for that year as soon as
it is implemented.
21. New Frameworkable Measures
The following measures would be added to the current list of
measures that can be adjusted under the Scallop FMP by framework
action.
Modify the LAGC possession limit: The possession limit for LAGC
vessels could be modified upward or downward by framework action. The
intent is that any modification of the possession limit would not
modify the nature of the LAGC fleet and would be consistent with the
Council's vision to maintain a small-vessel fleet under LAGC
provisions. While the Council specified in the Amendment 15 document
that the possession limit adjustments could be done for IFQ vessels, it
also determined that the regulations should specify that possession
limit adjustments could be made through the framework process for all
LAGC vessels, including LAGC NGOM and Incidental vessels.
Adjustment to aspects of ACL management: This action proposes a
[[Page 19935]]
new management strategy under ACL management that will use many new
measures. All of the measures specified in this action would be able to
be modified through framework actions. The specific ACL-related
measures that could be modified by framework include: Modifying
associated definitions and specification of OFL, ABC, ACLs and ACTs,
all of which are specifically intended to be changed in future
frameworks or specification packages as new information becomes
available about the resource and fishery; buffers identified for
management uncertainty or scientific uncertainty (ABC control rule);
AMs for scallop ACLs and other sub-ACLs allocated to the scallop
fishery; monitoring and reporting requirements associated with ACLs;
timing of AM measures; and adoption of sub-ACLs for other species that
are not currently part of this program.
Adjusting EFH Closed Area Management Boundaries
The framework action proposing the boundary change would include an
analysis of the impacts of the specific boundaries considered. This
additional framework authority would not allow adoption of new EFH
closed areas.
Adjusting RSA Allocation
Amendment 15 proposes to allocate 1.25 million lb (567 mt) of
scallops for RSA, regardless of the total projected catch for the
fishery. In the future, the value could be increased or decreased by
framework action.
22. Changes to the Scallop RSA Program
Amendment 15 includes several adjustments designed to improve the
RSA Program so that it is more efficient, and so that awards under the
Federal grants process can be provided near or before the start of the
scallop FY on March 1. The following improvements are proposed:
Announce (Publish) Federal Funding Opportunity (FFO) as Early as
Possible
Amendment 15 proposes that the announcement of the funding
opportunity should be published as soon as possible in the year
preceding the year in which research would be conducted. If this
results in more timely reviewing and processing of awards, this would
maximize time for research and compensation trips before the end of the
FY. This would be facilitated by the Amendment 15 proposal to allocate
1.25 M lb (567 mt) to RSA program annually (see below).
Enable Multi-Year Awards
Currently, research priorities, TACs for RSAs, and approved
research projects are limited to 1 year. Amendment 15 would allow RSA
proposals and compensation to span up to 2 years, corresponding with
the biennial framework process. Projects could be awarded for 1 or 2
years. Under this alternative, applicants could apply for RSA for the
first year, second year, or both. This alternative would increase
flexibility for the applicant, provide funding for some longer term
projects, and potentially reduce time and resources spent on the
application and review process.
Establish RSA Allocation as a Fixed Amount of Pounds Rather Than a
Percent of Total Catch
Currently 2 percent of access area TACs and open area DAS are set
aside for the RSA program. That amount of TAC and DAS varies depending
on the total TAC and DAS for the fishery. Amendment 15 would modify the
scallop RSA program so that 1.25 M lb (567 mt) would be set aside for
the RSA program. In addition, open area RSA would be awarded in pounds
rather than DAS. Total projected catch for the fishery may vary from
year to year, but the amount of catch set-aside for research would be
constant at 1.25 M lb (567 mt), unless changed through a framework
adjustment. Assuming a projected catch of about 50 million lb (22,680
mt) for the fishery, 1.25 M lb (567 mt) equals about 2.5 percent. This
is higher than recent levels to recognize the importance of research
and scallop resource surveys for the success of the area rotation
program, but would not create a separate pool of RSA for scallop
resource surveys.
Allocating this fixed amount could enable the grant awards to be
issued earlier, because the amount of TAC available for research would
be known in advance and would not change from year to year. The
specific areas that would have available RSA would be identified in the
framework, but RSA awards could still be made before approval of the
framework, based on total scallop pounds needed to fund the research.
Recipients could either choose to wait for NMFS approval of the
framework to begin compensation fishing within approved access areas,
or could begin compensation fishing in open areas prior to approval of
the framework. The intent of this alternative is to help improve
timeliness of the scallop RSA program. This should only be an issue for
the first year of a framework, because area-specific RSA pounds will be
known for the second year of the framework action.
Rollover of Unused RSA Pounds to Compensate Awarded Projects
Amendment 15 includes a provision that specifies that if updated
analyses suggest that the price per pound estimates used in the FFO
were low, and if all RSA TAC is not allocated, NMFS could allocate
unused TAC to compensate awarded projects or to expand a project rather
than having that RSA go unused. Amendment 15 proposes that if there is
RSA TAC available after all awards are made, a project that was already
awarded RSA would be permitted to apply for additional TAC to expand
its research project or for compensation if the actual scallop price
per pound was less than estimated. The implementation details of this
proposal were not specified in Amendment 15. Therefore, under the
authority of section 305(d) of the MSA, NMFS proposes that this
provision would enable NMFS to provide the opportunity for reallocation
of available RSA pounds as part of the original FFO for the project.
The FFO would specify the conditions under which a project that has
been awarded RSA could be provided additional RSA pounds as
supplemental compensation to account for lower-than-expected scallop
price or for expansion of the approved project.
Extension for Harvesting RSA Compensation
Currently all RSA TAC has to be harvested by the end of the FY for
which it is awarded. This measure would allow an RSA award recipient to
harvest RSA compensation TAC for up to 3 months (i.e., prior to June 1)
into the subsequent FY. Allowing vessels involved in RSA projects to
harvest RSA TAC into the next FY would provide flexibility for
participating vessels and researchers, and is consistent with carryover
provisions for the fishery as a whole.
Specify Regulations From Which RSA Projects Would be Exempt
Amendment 15 proposes a list of the scallop management measures
from which RSA funded projects may be exempt. The researcher would need
to list the measures the project is proposed to be exempt from in the
RSA proposal. The researcher would not need to apply for an exempted
fishing permit (EFP) to be exempt from the following restrictions: Crew
restrictions; seasonal closures in access areas; and the requirement to
return to port if fishing in more than one area. These exemptions would
be issued by the
[[Page 19936]]
Regional Administrator through a letter of authorization. The
exemptions would be issued for research trips under the applicable RSA
project. RSA compensation fishing trips would not be eligible for
exemption from these restrictions because compensation trips are
intended only to provide researchers with the ability to collect funds
through normal fishing operations.
Increase Public Input on RSA Proposals
Although the Council recommended that the Council's Scallop
Advisory Panel members play a more prominent role in setting research
priorities and reviewing proposals, no proposed regulations are
necessary to effectuate that recommendation. NMFS would seek more input
from the Council's Scallop Advisors through the next solicitation for
scallop RSA proposals. Review of RSA projects under the Federal grants
program is limited to individuals who do not have any relationship or
vested interest in proposed research.
Public comments are being solicited on Amendment 15 and its
incorporated documents through the end of the comment period stated in
this proposed rule (see DATES). NMFS has also published a Notice of
Availability, with a comment period ending May 23, 2011, (76 FR 16595,
March 24, 2011). All comments received by May 23, 2011, whether
specifically directed to Amendment 15 or the proposed rule for
Amendment 15, will be considered in the approval/disapproval decision
on Amendment 15. Comments received after that date will not be
considered in the decision to approve or disapprove Amendment 15. To be
considered, comments must be received by close of business on the last
day of the comment period; that does not mean postmarked or otherwise
transmitted by that date.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Scallop 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.
This proposed rule contains a revision to a current collection-of-
information requirement subject to review and approval by OMB under the
Paperwork Reduction Act (PRA). Public reporting burden for this
collection of information, the expansion of the VMS catch report to all
areas (OMB Control Number 0648-0491), is estimated to average 2 min per
response. This estimate includes the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to OMB by
e-mail at OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285 and to
the Regional Administrator at the address provided in the ADDRESSES
section of this proposed rule.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
An IRFA has been prepared, as required by section 603 of the
Regulatory Flexibility Act (RFA). The IRFA consists of the relevant
analyses, including the draft IRFA, included in Amendment 15, and the
preamble to this proposed rule. A summary of the analysis follows.
Statement of Objective and Need
This action proposes to implement ACL and AMs for the scallop
fishery, as well as other measures to improve management of the scallop
fishery. A description of the management measures, why this action 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 proposed regulations would affect vessels with LA and LAGC
scallop permits. The FEIS for Amendment 15 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. There
were 313 vessels that obtained full-time LA permits in 2010, including
250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same
year, there were also 34 part-time LA permits in the sea scallop
fishery. No vessels were issued occasional scallop permits. By the
start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ
permits (including 40 IFQ permits issued to vessels with a LA scallop
permit), 127 NGOM, and 294 incidental catch permits were issued. Since
all scallop permits are limited access, vessel owners would only cancel
permits if they decide to stop fishing for scallops on the permitted
vessel permanently or if they transfer IFQ to another IFQ vessel and
permanently relinquish the vessel's scallop permit. This is likely to
be infrequent due to the value of retaining the permit. As such, the
number of scallop permits could decline over time, but would likely be
less than 10 permits per year.
The RFA defines a small business entity in any fish-harvesting or
hatchery business as a firm that is independently owned and operated
and not dominant in its field of operation (including its affiliates),
with receipts of up to $4 million annually. The vessels in the Atlantic
sea scallop fishery are considered small business entities because all
of them grossed less than $3 million according to the dealer's data for
FYs 1994 to 2009. In FY 2009, total average revenue per full-time
scallop vessel was just over $1 million, and total average scallop
revenue per general category vessel was just under $80,000. The IRFA
for this and prior Scallop FMP actions has not considered individual
entity ownership of multiple vessels. More information about common
ownership is being gathered, but the effects of common ownership
relative to small v large entities under the RFA is still unclear and
will be addressed in future analyses.
The Small Business Association (SBA) suggests two criteria to
consider in determining the significance of regulatory impacts; namely,
disproportionality and profitability. The disproportionality criterion
compares the effects of the regulatory action on small versus large
entities (using the SBA-approved size definition of ``small entity''),
not the difference between segments of small entities. Amendment 15 is
not expected to have significant regulatory impacts on the basis of the
disproportionality criterion, because all entities are considered to be
small entities in the scallop fishery and, therefore, the proposed
action would not place a substantial number of small entities at a
significant competitive disadvantage relative to large entities. A
summary of the economic impacts
[[Page 19937]]
relative to the profitability criterion is provided below under
``Economic Impacts of Proposed Measures and Alternatives.''
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action would implement an expansion of current VMS catch
reporting that would require all LA, LAGC IFQ, and LAGC NGOM scallop
vessels to report YTF catch (kept and discards) and all other species
kept (including scallops) on all scallop trips. Such reports would have
to be submitted for each day fished by 9 a.m. of the day following the
day on which the fishing activity occurred. Currently this requirement
applies only to access area scallop trips. The expansion of the
requirement to all areas would increase the current burden cost of 333
hours at a total cost of $4,995 to 1,000 hours at a total cost of
$15,000 for all scallop vessels combined. The expansion is needed to
monitor YTF bycatch relative to the sub-ACL for YTF proposed under
Amendment 15. Amendment 15 does not duplicate, overlap, or conflict
with any other Federal law.
Economic Impacts of Proposed Measures and Alternatives
A summary of the economic impacts of proposed and alternative
measures is provided below. Detailed economic impact analysis is
provided in Section 5.4 and Appendix III of the FEIS for Amendment 15
(see ADDRESSES).
Each vessel within the same permit category (i.e., full-time, part-
time, and occasional) is allocated the same number of DAS and access
area trips. LAGC IFQ vessels receive 5.5 percent of the projected catch
after research and observer set-asides are removed, and IFQs are
proportionately allocated based on a percent share of the 5.5-percent
fleetwide allocation. Therefore, those measures that affect overall
projected landings will have proportional impacts on all the
participants because allocations for all vessels will be adjusted up or
down in the same percentage. Some of the other proposed measures are
specific to each fishery, however, and they will result in differential
impacts, as discussed below for each individual action. In summary,
although some specific measures proposed in Amendment 15, such as the
hybrid OFD, catch limits, and AMs could have some negative impacts on
the revenues and profits from the scallop fishery in the short-term,
the benefits from the other proposed alternatives, including the
measures that would reduce scientific or management uncertainty, the
modification of the EFH areas, modifications to the LAGC possession
limits and other related measures are expected to offset in part or in
full these short-term negative effects. As a result, the aggregate
economic impacts of Amendment 15 measures, combined, in the short-term
are likely to range from small negative impacts to small positive
impacts. The proposed action is not expected to have significant
impacts on the viability of the vessels, because these impacts are
estimated to be relatively small. In addition, even with negative
impacts, the profit rate is estimated to exceed 20 percent of the gross
revenue in the scallop industry, providing for short-term cash reserves
to finance operations through several months or years until the
positive effects of the regulations start paying off. In the long-term,
the economic impacts of the combined measures on the participants of
the scallop are expected to be positive.
Economic Impacts of the Individual Measures
Amendment 15 includes ACLs and AMs to bring the Scallop FMP into
compliance with requirements of the MSA as reauthorized in 2007.
Although the Council discussed various ways of establishing ACLs
throughout the development of Amendment 15, the only alternative was to
take no action. Alternatives to proposed AMs would have implemented AMs
a full year after the end of the fishing year in which the overage
occurred. The Council considered two alternatives to the proposed
revision of the OFD. One alternative maintained the current OFD and
another based the OFD on a resource-wide and time-averaged approach.
The Council's decision to modify the essential fish habitat (EFH)
closed areas under the Scallop FMP had only the alternative to take no
action. The Council considered several alternatives to the various
adjustments to measures for the LAGC fishery and determined that
additional alternatives were not necessary. Specifically, the Council
considered various increases to the LAGC IFQ fishery possession limit,
no increase to the maximum IFQ a vessel can be allocated, no allowance
to carry over IFQ from one fishing year to the next, no allowance to
transfer IFQ separately from the IFQ permit, and a suite of measures to
regulate the formation of community fishing associations. The Council
also considered several alternatives to the proposed adjustments to the
scallop RSA program, including separating set-aside TAC for scallop
resource surveys, and various ways of allocating RSA TAC that remains
available after all approved projects are awarded in a particular year.
Since the Council can only establish framework measures for those
measures that are included in the FMP already, the only alternative to
the proposed additions to the list of measures that can be adjusted by
framework adjustments is to not add measures or add only a subset of
the measures. Under the MSA, NMFS can only approve or disapprove
management measures recommended by the Council. Therefore, NMFS cannot
replace proposed alternatives with other measures considered by not
adopted by the Council.
1. Compliance With MSA
ACL Structure and Subcomponents
This new requirement is expected to have long-term economic
benefits on the fishery by helping to ensure that catch limits (ACLs)
are set at or below ABC, in order to prevent the resource from being
overfished and overfishing from occurring. Buffers for scientific and
management uncertainty would reduce the risk of fishery exceeding its
ACL, thus reducing the risk of overfishing the scallop resource, with
positive impacts on the overall scallop yield, revenues, and total
economic benefits from the fishery. Establishing catch limits is
expected to result in a similar landings stream compared to the status
quo management. Even if the landing streams changed as a result of the
new measures, the risk to the resource from overfishing due to
scientific or management uncertainty would be minimized under the
proposed measures, because these sources of uncertainty are better
accounted for. This, in turn, is expected to keep the landings and
economic benefits relatively more stable and reduce the uncertainty in
business decisions over the long-term. The separation of an ACL into
two sub-ACLs with associated ACTs is expected to have positive impacts
on the scallop fishery and its subcomponents. Separating the two fleets
with separate ACLs prevents one component of the fishery from impacting
the catch levels of the other. This would prevent negative economic
impacts from spreading from one fleet to the other. There are no
alternatives that would generate higher economic benefits for the
participants of the scallop fishery. Under the No Action alternative,
there is a risk of overfishing the resource due to the scientific and
management uncertainty that is not adequately addressed currently.
Existing measures do not have well-defined accountability and payback
mechanisms
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if catch limits are exceeded due to these sources of uncertainty, which
could result in continual reductions in allocations, effort levels, and
trips.
2. Implementation of AMs
LA AMs would consist of the use of an ACT, and an overall DAS
reduction to account for any overages. The deduction would be applied
in the second FY following the FY in which the overage occurred (e.g.,
an overage in FY 2011 would result in a DAS reduction in FY 2013). The
overall economic impacts in the short-term on the participants of the
scallop fishery depend on whether or not the ACT prevents an ACL
overage. Exceeding the ACL in one year will have positive economic
impacts on the participants of the scallop fishery in that year, but it
would be followed by negative impacts in the year in which the AM is
applied, since DAS would b