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]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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]


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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.

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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

[[Page 19938]]

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