Magnuson-Stevens Fishery Conservation and Management Act (MSA) Provisions; Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery Management Plan (Scallop FMP), 43746-43772 [2011-18311]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43746-43772]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18311]



[[Page 43745]]

Vol. 76

Thursday,

No. 140

July 21, 2011

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 648





Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
Provisions; Fisheries of the Northeastern United States; Atlantic Sea 
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery 
Management Plan (Scallop FMP); Final Rule

Federal Register / Vol. 76 , No. 140 / Thursday, July 21, 2011 / 
Rules and Regulations

[[Page 43746]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110329229-1370-03]
RIN 0648-BA71


Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
Provisions; Fisheries of the Northeastern United States; Atlantic Sea 
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery 
Management Plan (Scallop FMP)

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

ACTION: Final rule.

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SUMMARY: NMFS hereby implements measures approved in Amendment 15 to 
the Scallop FMP (Amendment 15), which was developed by the New England 
Fishery Management Council (Council). 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) individual 
fishing quota (IFQ) fishery; adjustments to the scallop research set-
aside (RSA) program; and additions to the list of measures that can be 
adjusted by framework adjustments. NMFS has disapproved a provision 
that would have allocated additional scallop catch to the LAGC fleet 
because it was not consistent with National Standard 1 and the ACL 
requirement of the MSA.

DATES: Effective July 21, 2011.

ADDRESSES: A final environmental impact statement (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.
    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 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 subject to overfishing, 
the MSA requires that such measures be implemented by 2010. For fishery 
resources that are not subject to overfishing, 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 subject to overfishing. 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 (LA) 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, which 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. The Notice of 
Availability (NOA) for Amendment 15 was published March 24, 2011 (76 FR 
16595), with a comment period ending May 23, 2011. The proposed rule 
for Amendment 15 was published April 11, 2011 (76 FR 19929), with a 
comment period ending May 26, 2011.
    This final rule implementing Amendment 15 establishes the mechanism 
for implementing ACLs and AMs, which in turn will generate scallop 
fishery specifications, including days-at-sea (DAS), access area trip 
allocations, and individual fishing quotas (IFQs). Amendment 15 does 
not include ACLs 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. If Framework 22 is 
approved, a final rule implementing Framework 22 measures will be 
published shortly after publication of this final rule.
    The Council 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.

Disapproved Measure

    NMFS has disapproved the proposed measure that would have allocated 
additional catch to the LAGC IFQ fleet if the limited access fleet's AM 
exception were implemented. The Council adopted, and NMFS has approved, 
a LA fleet AM exception that could exempt the LA fleet from its AM, 
even if the LA fleet exceeds its sub-ACL in a given FY. The exception 
will be implemented if the actual F for the total ACL is lower than the 
estimated F for the scallop fishery's ACL for that year, based on an 
evaluation by the Council's Scallop Plan Development Team (PDT) after 
the end of the fishing year. Estimated F could be higher than actual F 
if landings per unit effort (LPUE) had been underestimated relative to 
the status of the resource, so that the estimated F, and consequently 
the specified ACL, was inconsistent with actual resource conditions.
    The Council also adopted a related measure that would have 
allocated additional catch to the LAGC IFQ fleet if the LA fleet's AM 
exception was enacted after the LA sub-ACL was exceeded, in a manner 
proportional to the LA fleet's overage. The Council's rationale was 
that, if the LA fleet did not have to have its AM triggered, the LAGC 
IFQ fleet should benefit in some way too (i.e., the LAGC IFQ fleet 
should also

[[Page 43747]]

benefit from an underestimate of ABC/ACL based on the re-evaluation of 
F). Also, the Council was concerned that an inequity could occur 
because the LA fleet would have harvested more scallops than it was 
allocated, without being held accountable. Had the original F estimate 
been accurate, the ``extra'' scallops could have been distributed to 
both the LA and LAGC IFQ fleets in setting the allocations. To account 
for the inequity, the LAGC IFQ fleet would be allocated 5.5 percent of 
the LA fleet's overage of its sub-ACL. The additional allocation to the 
LAGC IFQ fleet would be distributed through adjustment of IFQs in the 
FY following the evaluation.
    Under the LA fleet AM exception measure, the LA fleet could have 
exceeded its prescribed ACL, and could have unaccounted catch, but 
there would be a process for evaluating the overage relative to the F 
related to the total ACL (which is equal to the acceptable biological 
catch (ABC)). However, the proposed measure that would have allocated 
additional catch to the LAGC IFQ fleet if the AM exception is triggered 
would not have evaluated the reallocation relative to ABC, ACL, sub-
ACLs, or the associated Fs, and therefore could have risked exceeding 
the ABC/ACL. Because the proposed AM exception would have been 
automatic, additional catch would have been allocated in the following 
FY without consideration of whether the additional catch would cause 
the overall ACL, or F associated with that ACL, to be exceeded when 
combined with total catch in that year. This is contrary to the 
Council's intent to build precaution into establishing ACLs and sub-
ACLs in the fishery. As a result, this measure would risk overfishing. 
Because there is no assurance that allocating additional catch to the 
LAGC IFQ fleet would prevent overfishing, the measure is inconsistent 
with National Standard 1 of the MSA. The measure is also inconsistent 
with the MSA requirement at Section 303(a)(15) that FMPs ``establish a 
mechanism for specifying ACLs in the plan * * * at a level such that 
overfishing does not occur in the fishery, including measures to ensure 
accountability.''
    In addition, this substantive measure was added to Amendment 15 at 
the last Council meeting before adoption of Amendment 15 and, as such, 
is inconsistent with MSA and National Environmental Policy Act 
procedures because the process did not provide sufficient opportunity 
for full open public and Council consideration of the impacts of the 
measure and its implications on ACL management of the scallop fishery. 
NMFS has therefore disapproved the proposed measure.

Approved Management Measures

1. ACL Flow Chart

    Amendment 15 establishes a method for accounting for all catch in 
the scallop fishery and includes designations of Overfishing Limit 
(OFL), 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 will 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 is specified as the 
level of landings, and associated F that, above which, overfishing is 
occurring. OFL will 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. ACL 
will be equal to ABC, but to account for scientific uncertainty, ABC 
will 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 is established at the ABC/ACL level, but will not be 
subtracted from ABC/ACL. Since the NGOM portion of the scallop fishery 
is not part of the scallop assessment, the catch will be added and 
specified as a separate Total Allowable Catch (TAC), in addition to 
ABC/ACL. After removing observer and RSA (1 percent of the ABC/ACL and 
1.25 M lb (567 mt) (proposed in Amendment 15), respectively), Amendment 
15 establishes separate sub-ACLs for the LA and LAGC fisheries. To 
account for management uncertainty, Amendment 15 establishes ACTs for 
each fleet. For the LA fleet, the ACT will 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 will 
be set equal to the LAGC fleet's sub-ACL.

2. Modification of the OFD

    Amendment 15 modifies the current OFD to provide for better 
management of the scallop fishery under area rotation. The Hybrid OFD 
combines the overfishing threshold from the status quo OFD for open 
areas with a time-averaged F approach for access areas. The F target in 
the open areas will be set at a level that is no higher than the 
overfishing threshold (currently F = 0.38). In access areas, it will 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 can 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 OFD and overfishing reference points that are replaced by the 
approved measures in Amendment 15 were based on the assumption that F 
is spatially uniform. In the scallop fishery this assumption was 
inaccurate, because of unfished biomass in closed areas, variable Fs in 
access areas, and spatially variable F in open areas. Under the 
replaced OFD, closed and access areas protected the scallop stock from 
recruitment overfishing, but growth overfishing could have occurred in 
the open areas because the OFD averaged 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 replaced OFD would become. 
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 replaced OFD was 
consistent with MSA requirements, and was effective at keeping the 
scallop fishery above the overfished level and preventing overfishing 
overall, certain resource and fishery conditions as described above 
reduced the effectiveness of the FMP. The approved OFD in Amendment 15 
better reflects conditions of the fishery.

3. OFD Reference Points

    The previous OFD stated that FMAX will be used as a 
proxy for FMSY. However, SAW 50 approved a direct estimate 
of FMSY. Therefore, Amendment 15 replaces the previous 
BMAX and FMAX with BMSY and 
FMSY. Final results from SAW 50 were available in August 
2010, and both the

[[Page 43748]]

Scallop Committee and the Council's Scientific and Statistical 
Committee (SSC) reviewed the results and agreed that the OFD should be 
updated to reflect new biological reference points based on 
BMSY and FMSY. Under Amendment 15, the new OFD 
shall 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 (GB) 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 changes to the OFD also require revisions of the current 
framework provisions in the scallop fishery regulations at Sec.  
648.55. Under the previous 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 F may be elevated relative to the condition of the 
resource in open areas, thus preventing OY from being achieved. Because 
the approved 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 provides 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 assessment 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 Council's Scallop 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 sets 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 can 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 Councils Scallop 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 will then be specified as a separate level of landings that will 
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 will be specified similar to state waters 
scallop catch, except that the NGOM landings level will be based on 
historical landings or available resource surveys in the NGOM, and will 
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 will be accounted for in the 
subsequent FY through a reduction of the landings limit that is equal 
to the overage from the prior FY.
    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 will be removed from ABC 
prior to establishing the research and observer set-asides and ACLs for 
the LA 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 will be adjusted in the subsequent FY(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 will 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 will be 
allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels 
will be allocated 5.5 percent of the ABC/ACL landings. Both allocations 
will 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 will have carryover provisions and RSA catch 
can be carried over into the subsequent FY. For the purpose of 
accounting relative to ABC and ACL, landings from carryover DAS, IFQ, 
or TAC will 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 specifies 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 LPUE, and realized 
efficiency and LPUE during the course of the FY. Management uncertainty 
for the LAGC IFQ fleet is considered very low because it would result 
from landings in excess

[[Page 43749]]

of a vessel's IFQ, which can be audited and accounted for through data 
reviews each year. Although ACT can be specified for the LAGC fishery, 
it will be set equal to the fleet's ACL initially, unless revised by 
the Council. An ACT for the LA fleet to account for management 
uncertainty will 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 will 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 will be distributed evenly to limited 
access vessels. For example, an overage of 1.5 million 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 
will take effect in the FY following the FY in which the ACL was 
exceeded. Since the AM will apply mid-year, vessels may have already 
used more DAS in that FY 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 will 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 FY. For example, if a vessel 
initially allocated 32 DAS in FY 2011 uses all 32 DAS prior to 
application of the AM, and after application of the AM, the vessel's 
DAS allocation is reduced to 31 DAS, the vessel's DAS in FY 2012 would 
be reduced by 1 DAS.

9. LA Fleet AM Exception

    Even if the ACL is exceeded, 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 may 
not be necessary if the F limits are not exceeded. To address this, 
Amendment 15 includes an exception provision that will stop the AM from 
taking effect if, in an analysis of the preceding FY before the AM goes 
into effect, the actual F for the scallop fishery in the prior FY was 
one standard deviation (currently estimated to be 0.04) below the 
overall F for the scallop fishery's ACL (i.e., the total ACL set equal 
to ABC). With an F=0.32 for the ACL, one standard deviation below would 
be F=0.28. If the fishery's actual F is below 0.28, the AM would not be 
implemented. However, if the fishery's actual F is 0.28 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 
fishery and resource information, determine the F, and recommend, 
through the Council, whether or not the AM should be implemented. To 
ensure compliance with applicable laws, the Regional Administrator has 
discretion to implement the exception or implement the AM in accordance 
with the Administrative Procedure Act (APA), 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, will be considered at the same time 
to ensure that multiple adjustments of DAS do not occur in the same FY, 
if possible. The decision to implement the AM or the AM exception will 
be made by the Regional Administrator on or about September 30 of each 
year.

10. AM for the LAGC IFQ Fleet

    If an LAGC vessel exceeds its IFQ, its IFQ will be reduced by the 
amount equal to the overage as soon as possible in the FY immediately 
following the FY in which the IFQ overage occurred. Since the AM will 
apply mid-year, vessels may have already used more IFQ in that FY 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 will 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 FY. 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 FY 2010, 
and is initially allocated 1,300 lb (589.7 kg) of scallops in FY 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 FY 2010. If that 
vessel lands 1,300 lb (589.7 kg) of scallops in FY 2011 prior to 
application of the 200 lb (90.7 kg) deduction as the AM, the vessel 
would be subject to a deduction of 200 lb (90.7 kg) in FY 2012.
    For vessels involved in a temporary IFQ transfer, the entire 
deduction will apply to the vessel that acquired IFQ, not the 
transferring vessel. A vessel that has an overage that exceeds its IFQ 
in the subsequent FY will 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 FY over a 3-year period, that harvests 
2,500 lb (1,134 kg) of scallops the first year will 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, can 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 individual vessel overages of IFQ will 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 will 
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 FY over a 3-year period, that harvests 2,500 lb (1,134 
kg) of scallops the first year, will have a 1,500-lb (680-kg) IFQ 
deduction, so that it will 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, can 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 did incorporate ACT 
into the LAGC IFQ fleet allocation, but chose not to apply any 
management uncertainty buffer for the fleet at this time. This can be 
adjusted through the framework process if an ACT is needed to address 
management uncertainty.

11. Yellowtail Flounder (YTF) Sub-ACL

    To account for YTF catch in the scallop fishery, Amendment 15 
establishes 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)

[[Page 43750]]

and GB YTF sub-ACLs for the scallop fishery. The amount of YTF 
estimated to be harvested annually will depend on the scallop DAS and 
access area allocations, and can be adjusted through the NE 
Multispecies FMP framework adjustment process.

12. YTF Sub-ACL AM

    Areas within the GB and SNE/MA YTF stock areas that have been pre-
identified will 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 in Amendment 15 as the statistical areas that have high 
bycatch of YTF in the scallop fishery. For the GB YTF stock, the 
closure will 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 will also be closed. 
For the SNE/MA YTF stock, statistical areas 537, 539, and 613 will 
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 will 
close to LA vessels only; LAGC vessels are 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 was estimated to be low. However, any YTF catch by 
LAGC vessels as they continue to fish will count toward that stock 
area's sub-ACL for the scallop fishery (and will contribute to an 
overage of the sub-ACL for the scallop fishery). The YTF closure AM 
will 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 
will determine whether the YTF sub-ACL is expected to (or has been) 
exceeded that FY. NMFS will 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 FY 2010 (specified under the NE 
Multispecies FMP), and that causes the entire applicable YT ACL to be 
exceeded for FY 2010, the scallop fishery will be subject to the 
applicable YTF AM. To implement the YTF AM for FY 2011, NMFS would have 
had to determine the length of the closure as specified below, 
beginning when Amendment 15 is effective. However, NMFS determined 
through analysis of FY 2010 catch and fishery data that the scallop 
fishery did cause the overall YTF ACL to be exceeded. The AM for 2011 
is therefore not necessary. For the 2012 fishing year and beyond, the 
YTF closure AM areas will remain closed for the length of time 
specified in the following tables, and will be in place for one FY 
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.
------------------------------------------------------------------------

13. 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 is required for all scallop trips in all 
areas. Vessel operators are required to report the following 
information: Fishing 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 are required to submit VMS catch reports for every day fished 
by 9:00 a.m. of the day following the day on which fishing occurred, 
consistent with access area catch reporting.

14. LAGC IFQ Vessel Possession Limit Increase

    IFQ scallop vessels are 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 
previous 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit. 
This measure addresses concerns that the previous possession limit was 
not economically feasible due to increased costs. The new 600-lb 
(272.2-kg) possession limit is not expected to change the ``small 
boat'' nature of the LAGC fishery, and remains 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 of landings are 
constrained by the IFQ allocations.

15. IFQ Carryover

    An IFQ vessel that has unused IFQ at the end of the FY can carry 
over its unused IFQ, up to 15 percent of the IFQ issued to the vessel, 
including transferred IFQ, for that FY into the next FY. Any IFQ that 
was leased, but not used, by a vessel can 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 carryover will be 
added to the LAGC IFQ fleet's applicable ACL for the FY in which the 
carryover IFQ is allocated. Any IFQ carried over that is landed will be 
counted against the ACL as increased by the total carryover for all 
LAGC IFQ vessels. Carryover will retroactively apply to unused FY 2010 
IFQ and FY 2011 IFQs will be adjusted.

16. Increase the IFQ Vessel Cap to 2.5 Percent

    The 2-percent IFQ cap per vessel is increased to 2.5 percent of the 
total LAGC IFQ sub-ACL allocation to allow more flexibility and promote 
efficiency for vessels in fishing IFQs available to them. The 2.5-
percent IFQ cap does not apply to IFQ vessels that also are issued a LA 
scallop permit. IFQ that is carried over does not contribute to the 
vessel's 2.5-percent IFQ cap because the

[[Page 43751]]

carryover is a temporary increase of the vessel's IFQ based on under-
harvest the prior year. Because there is also a 5-percent overall cap 
on how much IFQ one entity may own, a vessel owner can own only two 
vessels to meet the 5-percent ownership cap. This alternative provides 
more flexibility to vessel owners to more effectively and efficiently 
fish their IFQs.

17. Permanent IFQ Transfers Separate From LAGC IFQ Permit

    LAGC IFQ permit owners may permanently transfer some or all of 
their IFQ and its IFQ contribution percentage, independent of their IFQ 
permit, to another LAGC IFQ permit holder while retaining the permit 
itself. This measure enables vessel owners additional flexibility to 
buy or sell IFQ without impacting other permits on their vessel. This 
allowance only applies 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.

18. Revision of the EFH Closed Areas

    To establish compatibility with the NE Multispecies FMP, Amendment 
15 modifies 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 replaces 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), CAII, Nantucket Lightship 
Closed Area (NLCA), and Western Gulf of Maine, Jeffrey's Bank, and 
Cashes Ledge Habitat Closed Areas. Coordinates for these areas are 
provided in the regulations in this final rule. A chart depicting these 
areas is in the FEIS for Amendment 15 (see ADDRESSES). These areas are 
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 makes 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 were inconsistent with the area 
rotation program established under the Scallop FMP because they were 
restricted to areas smaller than designed. These areas were originally 
implemented under Joint Framework 16/39, but were vacated by a Federal 
Court order resulting from a lawsuit on that action. That order 
specified that the EFH closed areas could only be changed through an 
FMP amendment. The EFH closed areas in this final rule address the 
inconsistency while the Council continues to develop EFH measures under 
Phase 2 of its Omnibus EFH Amendment. In addition, the access areas in 
CAI and the NLCA have been changed to reflect the revised boundaries, 
and are now consistent with the original area rotation strategy 
implemented under Amendment 10 to the FMP and Joint Framework 16/39.

19. Establish Third-Year Default Measures Through the Biennial 
Framework Process

    Fishery specifications in the scallop fishery are generally set 
every 2 yr, through the biennial framework adjustment process. This 
measure extends 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 FY 
roll over to the next FY while the implementation of the new set of 
management measures is pending, but the measures that roll over are 
often not appropriate for the status of the resource because they were 
established specific to the resource conditions in the prior (second) 
year. 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 will 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.

20. New Frameworkable Measures

    The following measures are 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 can be modified upward or downward by framework action. The 
intent of this measure 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: All of the ACL-related 
measures specified in this action can be modified through framework 
actions including: 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 will include an 
analysis of the impacts of the specific boundaries considered. This 
additional framework authority will not allow adoption of new EFH 
closed areas.
Adjusting RSA Allocation
    Under Amendment 15, 1.25 million lb (567 mt) of scallops is set 
aside annually for scallop RSA projects, regardless of the total 
projected catch for the fishery. In the future, the value could be 
increased or decreased by framework action.

21. Changes to the Scallop RSA Program

    Amendment 15 contains 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.
Announce (Publish) Federal Funding Opportunity (FFO) as Early as 
Possible
    The announcement of the FFO will 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 
will maximize time for research and compensation trips before the end 
of the FY. This will 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
    Previously, research priorities, TACs for RSAs, and approved 
research

[[Page 43752]]

projects were limited to 1 yr. Under Amendment 15, RSA proposals and 
compensation may span up to 2 yr, corresponding with the biennial 
framework process. Projects could be awarded for 1 or 2 yr. Applicants 
can apply for RSA for the first year, second year, or both. This 
measure increases flexibility for the applicant, provides funding for 
some longer term projects, and potentially reduces 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
    Previously, 2 percent of access area TACs and open area DAS were 
set aside for the Scallop RSA Program. TAC and DAS vary depending on 
the total TAC and DAS for the fishery. Amendment 15 modifies the 
Scallop RSA Program so that 1.25 M lb (567 mt) is set aside for the 
Scallop RSA Program. In addition, open area RSA will 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 will 
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 it does not create a separate pool of RSA for scallop 
resource surveys.
    Allocating this fixed amount should enable the grant awards to be 
issued earlier, because the amount of TAC available for research will 
be known in advance and will not change from year to year. The specific 
areas that will have available RSA would be identified in the 
framework, but RSA awards can still be made before approval of the 
framework, based on total scallop pounds needed to fund the research. 
Recipients could either choose to wait until 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 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
    If updated analyses suggest that the price per pound estimates used 
in the FFO were low, and if all the scallop RSA TAC is not allocated, 
NMFS can allocate unused TAC to compensate awarded projects or to 
expand a project rather than having that RSA go unused. 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 
were not specified in Amendment 15. This provision enables NMFS to 
provide the opportunity for this reallocation of available RSA pounds 
as part of the original FFO for the project. The FFO will 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
    Previously all RSA TAC had to be harvested by the end of the FY for 
which it is awarded. Amendment 15 allows 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 provides 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
    This final rule establishes a list of the scallop management 
measures from which RSA funded projects may be exempt. The researcher 
will need to list the measures the project is proposed to be exempt 
from in the RSA proposal. The researcher will 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 will be issued by the Regional Administrator through a 
letter of authorization. The exemptions will be issued for research 
trips under the applicable RSA project. RSA compensation fishing trips 
are not 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 regulations implementing this 
suggestion are necessary. NMFS will 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 that do not have any relationship to or vested 
interest in the proposed research.

Comments and Responses

    Nine relevant comment letters were received on Amendment 15 and its 
proposed rule. Four addressed the regulatory text included in the 
proposed rule, with the rest addressing other topics.

General Comments

    Comment 1: Comments from five individuals focused on the 
qualification criteria for the LAGC scallop fishery. Commenters 
believed that the qualification period of 2000 through 2004 unfairly 
eliminated vessels from the fishery that had a history of fishing for 
scallops after 2004.
    Response: The LAGC fishery was implemented through Amendment 11 and 
its measures were previously available for public comment prior to its 
approval. While Amendment 15 does include measures affecting the LAGC 
fishery, they are not related to the original qualification criteria or 
development of the IFQ program.
    Comment 2: One commenter states that all species, including 
scallops, are overfished, and that NMFS gathers its stock information 
purely from the fishing industry.
    Response: NMFS has partially approved Amendment 15 because it is 
consistent with the MSA and promotes a sustainable scallop fishery that 
will be available to future generations. Comments that scallops are 
overfished and that the only data used to assess stocks is provided by 
the fishing industry are inaccurate, and not relevant to the measures 
included in Amendment 15.

LAGC Trip Limits

    Comment 3: One commenter opposed raising the trip limits for the 
LAGC IFQ fleet. The commenter believes that the small-boat nature of 
the fishery could be

[[Page 43753]]

compromised and the LAGC IFQ fleet would begin to resemble the limited 
access fleet.
    Response: LAGC IFQ vessels are limited individually by their yearly 
allocation and by a cap of 2.5 percent of the overall quota. The 600-lb 
(272.2-kg) possession limit is expected to increase efficiency for some 
IFQ vessels and should enable vessel owners to better offset rising 
trip costs. Raising the daily trip limits for LAGC vessels from 400 lb 
(181.4 kg) to 600 lb (272.2 kg) is unlikely to change the small-boat 
nature of the IFQ fishery. The Council was concerned about this as well 
and rejected higher possession limits as a result.
    Comment 4: One commenter stated that he has been reduced from a 400 
lb (181.4 kg) trip limit to a 40 lb (18.1 kg) trip limit. He requested 
that the trip limit be raised to 250 lb (113.4 kg) for general category 
permits.
    Response: It appears that the commenter is commenting on the LAGC 
incidental catch (IC) permit, which has a 40-lb (18.1-kg) trip limit. 
The LAGC IC trip limit was implemented through Amendment 11, and its 
measures were previously available for public comment prior to its 
approval. While Amendment 15 includes measures pertaining to the LAGC 
IFQ trip limit, they are not related to the IC permit.
    Comment 5: One commenter questioned raising the trip limits for the 
LAGC IFQ fleet. The commenter asked why, after significantly reducing 
the number of boats in the LAGC IFQ fleet (through the LAGC 
qualification process), the trip limits are being raised. He believes 
that the possibility of higher trip limits should have equated to 
flexibility in the form of a hardship clause associated with the LAGC 
IFQ qualification process.
    Response: The inclusion of a hardship clause in the LAGC 
qualification process was discussed by the Council during public 
hearings in the process of creating Amendment 11, and it was eventually 
not adopted. The change in LAGC IFQ trip limits in Amendment 15 is not 
related to the decrease in the number of general category vessels and, 
as such, has no relation to the possibility of a hardship clause 
associated with the LAGC IFQ qualification process.

ACLs and AMs

    Comment 6: Oceana contended that Amendment 15 fails to account for 
incidental catch of a variety of species. They stated that the Council 
failed to include enough species in the FMP for ACL management, and 
that other species, like sponges and starfish, should be included as 
ecosystem component species. Oceana commented that, by not considering 
the inclusion of a wider range of species in the Scallop FMP, the 
Council failed to comply with requirements of the MSA and failed to 
comply with procedural and analytical requirements of NEPA and the MSA. 
Oceana also commented that the Council acted arbitrarily and 
capriciously in excluding additional species and in establishing the 5-
percent catch level criteria for considering inclusion of non-target 
species in the Scallop FMP.
    Response: Oceana has commented similarly on other ACL amendments. 
In a pending lawsuit on similar grounds, Oceana has also challenged the 
approval and implementation of Amendment 16 to the NE Multispecies FMP. 
ACLs must be established for each managed species to prevent or end 
overfishing and the MSA guidelines for implementing ACLs allow but do 
not mandate the Council, at its discretion, to designate other species 
as target, non-target species, or ecosystem components, if appropriate. 
The only species that the Council identified as a non-target species 
with a sub-ACL is YTF, and the Council's justification for such a 
decision is sound. YTF is historically one of the highest non-target 
catches in the scallop fishery. While other species are caught in the 
scallop fishery, they are not caught at the same level as YTF. The Mid-
Atlantic Council has proposed ACLs for summer flounder, which are also 
caught in the scallop fishery. However, all other species caught are 
reported and information on catch is available for analysis to 
determine if additional management measures for such species are needed 
under the Scallop FMP. The Council has determined that the primary FMP 
will establish ACLs for the target species, and that AMs will be borne 
by the fishery that targets the fish, even if that means that the 
scallop fishery has triggered the AM. The Council used this rationale 
to recommend the 5-percent threshold for establishing sub-ACLs in the 
Scallop FMP. Although Oceana disagrees with this approach, this 
decision by the Council is sound and in compliance with the MSA.
    Comment 7: FSF commented that the approach to specification-setting 
based on the ACL flow chart and establishing scientific uncertainty are 
overly cautious and can prevent the achievement of OY. FSF expressed 
concern that the analytical model that determines the reduction from 
OFL to ABC based on scientific uncertainty has many ``less than 
rigorous'' qualitative assumptions. FSF supports making changes to the 
ABC control rule frameworkable and recommended that the Council and 
NMFS revisit the formula in the near term to ensure that the fishery's 
optimum yield is achieved.
    Response: The PDT developed the mechanism for evaluating the risk 
of exceeding OFL over the course of several meetings. The SSC 
ultimately approved the PDT's uncertainty mechanism. As such, this 
approach is based on best available science. It establishes a 
sufficient level of precaution in managing the scallop fishery under 
ACLs while providing catch levels that are similar to status quo 
management. If and when new scientific information becomes available, 
it will be incorporated into the assessment of the scallop resource and 
fishery, and the evaluation of risk associated with scientific 
uncertainty.
    Comment 8: The Fisheries Survival Fund (FSF) strongly opposed 
provisions that would re-distribute catch allocation to the LAGC fleet 
if the limited access fleet's AM exception is enacted. FSF stated that 
this provision was not properly developed or analyzed, and was added to 
Amendment 15 in the ``final hour'' of deliberation. Further, FSF 
believes that this reallocation raises concerns about the lack of 
precautionary measures in the LAGC fishery that would be equivalent to 
establishing the ACT for the limited access fleet.
    Response: NMFS agrees with FSF's concerns about this measure and 
this measure has been disapproved for the reasons stated above.
    Comment 9: FSF commented that the AM exception trigger level of F = 
0.24 is incorrect and that under the AM exception, the F associated 
with the catch by LA vessels should be evaluated against the overall 
ACL, not the sub-ACL for the LA fleet.
    Response: This trigger level was incorrect in the proposed rule and 
the error has been corrected in this final rule. The mistake occurred 
because the Amendment 15 document referred to current F reference 
points that would be increased under Amendment 15. The increased 
threshold, in particular the ABC/ACL F = 0.32 (as opposed to the 
current F = 0.28 threshold), means that the AM exception trigger should 
be set at 0.28 instead of 0.24. The Amendment 15 document is clear that 
the AM would not take effect if the F associated with the limited 
access fishery's catch is lower than the F associated with the whole 
fishery's ACL (i.e., the ACL for the limited access and LAGC fleets 
combined).
    Comment 10: FSF commented that the provision that exempts LAGC IFQ 
vessels from the YTF AM should be

[[Page 43754]]

disapproved because it unfairly provides an exemption from the AM for a 
small group of vessels and because there is new information suggesting 
that the IFQ fleet has a high level of YTF bycatch. FSF commented that 
``* * * it is easy to envision many ways in which this discriminatory 
provision can run afoul of National Standards 2 (best science), 4 
(conservation and management measure should be fair and equitable and 
reasonably calculated to promote conservation), and 9 (practicable 
reduction of bycatch).''
    Response: The level of YTF bycatch by LAGC vessels in Southern New 
England (SNE) waters identified through recent bycatch analysis does 
raise a concern because it indicates that the LAGC fishery accounts for 
more approximately 20 percent of the SNE/Mid-Atlantic (MA) YTF catch in 
the scallop fishery. NMFS does not believe that the analysis represents 
sufficient justification to disapprove the measure because it does not 
violate any national standard or required provision of the MSA, as 
alleged by FSF. Moreover, this new analysis was not available or 
considered by the Council in time for the development and Council 
approval of Amendment 15. In addition, the analysis of YTF catch in 
2010 does not present sufficient information to characterize the 
overall continual bycatch level in the individual fishing quota sector 
of the scallop fishery. NMFS has reviewed 2008 and 2009 fishery data 
and preliminary results show that the catch rate of YTF in the LAGC 
fishery was substantially lower in those years than in 2010. NMFS has 
therefore asked the Council to consider this new analysis for possible 
future changes to the Scallop FMP. In addition, the Council is 
considering issues related YTF catch by LAGC vessels, including the 
application of separate ACLs and AMs, under Framework Adjustment 23 to 
the Scallop FMP.
    NMFS does not agree that the exemption is necessarily 
discriminatory or unfairly applied to the IFQ fleet in violation of 
National Standard 4. FSF states that the LAGC IFQ and limited access 
fleets are ``similar.'' This is not accurate, because fishing 
opportunities for IFQ vessels are more restricted than LA vessels. 
Although some limited access vessels have fished heavily in the SNE 
region recently due to high catch rates, limited access vessels are 
more mobile and are not as constrained to fishing in waters close to 
its home port. LAGC vessels are more constrained to fish within areas 
nearer to the vessel's home port due to vessel size and historical 
fishing practices. For LAGC IFQ vessels with ports in Rhode Island and 
Long Island, the closure AM could prevent them from operating at all 
while limited access vessels and LAGC IFQ vessels in other ports would 
be able to continue fishing. This exemption would prevent closures to 
the LAGC IFQ fleet that would substantially reduce their fishing 
opportunities in a more significant way than the limited access fleet. 
NMFS therefore finds, on balance, that the measure is not inconsistent 
with National Standard 4.
    In addition, an overage of the YTF ACL that could be caused by 
yellowtail flounder bycatch in both sectors of the scallop industry 
would result in an AM that is consistent with the conservation measures 
and goals for yellowtail flounder under both the NE Multispecies and 
Scallop FMPs. Disapproving the exemption for LAGC vessels from the AM 
as a result of information showing the fishery catches yellowtail would 
not provide measures to sufficiently offset the negative impacts of 
closing the fishery to certain LAGC vessel owners that rely on that 
area to harvest scallops.
    Comment 11: FSF commented that AMs for the LA fleet should be 
applied in the second FY after the ACL overage rather than in the first 
FY following the overage. FSF commented that vessels may have used all 
of their allocated DAS prior to the AM becoming effective. By then 
applying the DAS adjustments through the AM, vessels could be subject 
to a DAS reduction in the subsequent FY. FSF believes that this would 
be a disruption to fishing activity, would cause confusion, and would, 
in effect, make the AM effective in the second FY after the ACL ov