Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 22, 43774-43797 [2011-18314]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43774-43797]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18314]



[[Page 43773]]

Vol. 76

Thursday,

No. 140

July 21, 2011

Part III





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 648





Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 22; Final Rule

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

[[Page 43774]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110118038-1314-02]
RIN 0648-BA72


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 22

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS is implementing measures specified in Framework 
Adjustment 22 (Framework 22) to the Atlantic Sea Scallop Fishery 
Management Plan (FMP), which was developed and adopted by the New 
England Fishery Management Council (Council). The specifications in 
Framework 22 are based on, and are being implemented in conjunction 
with, the management measures in Amendment 15 to the FMP (Amendment 15) 
that establish the process for setting annual catch limits (ACLs) and 
accountability measures (AMs) to bring the FMP into compliance with the 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA). The purpose of Framework 22 is to set the 
following scallop management measures for the 2011 through 2013 fishing 
years (FYs): The overfishing limit (OFL), acceptable biological catches 
(ABC), ACLs, and annual catch targets (ACTs) for both the limited 
access (LA) and limited access general category (LAGC) fleets; open 
area days-at-sea (DAS) and Sea Scallop Access Area (access area) trip 
allocations; DAS adjustments if an access area yellowtail flounder 
(YTF) total allowable catch (TAC) is caught; LAGC-specific allocations, 
including access area trip allocations for vessels with individual 
fishing quotas (IFQs), the Northern Gulf of Maine (NGOM) TAC, and the 
incidental target TAC; management measures to minimize impacts of 
incidental take of sea turtles as required by the March 14, 2008, 
Atlantic Sea Scallop Biological Opinion (Biological Opinion); and the 
elimination of the default Georges Bank (GB) access area rotation 
schedule. Consistent with proposed measures in Amendment 15, Framework 
22 sets FY 2013 management measures as precautionary default measures, 
to be applied if a new biennial framework adjustment is not implemented 
by the start of FY 2013.

DATES: Effective August 1, 2011.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
22 that describes the action and other considered alternatives and 
provides a thorough analysis of the impacts of the measures and 
alternatives. Copies of Framework 22, the EA, and the Initial 
Regulatory Flexibility Analysis (IRFA) are available upon request from 
Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Newburyport, MA 01950.

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

SUPPLEMENTARY INFORMATION: 

Background

    Framework 22 was developed and adopted by the Council, partially in 
conjunction with and based on Amendment 15 measures, in order to comply 
with requirements of the MSA and to meet the FMP's objectives to 
prevent overfishing and improve yield-per-recruit from the fishery. 
Consequently, the authority to implement Framework 22 is in part based 
on NMFS' approval of Amendment 15, which is concurrently under 
rulemaking. Framework 22 specifies measures for FYs 2011 through 2013. 
FY 2013 measures will go into place as a default, should the biennial 
framework to specify FY 2013-2014 measures be delayed beyond the start 
of FY 2013.
    The Council adopted Framework 22 on November 17, 2010, and 
submitted it to NMFS on March 22, 2011. The Council reviewed the 
Framework 22 proposed rule regulations as drafted by NMFS, which 
included regulations proposed by NMFS under the authority of section 
305(d) of the MSA, and on March 18, 2011, deemed them to be necessary 
and consistent with section 303(c) of the MSA. The proposed rule for 
Framework 22 published in the Federal Register on April 29, 2011 (76 FR 
23940), with a 30-day public comment period that ended May 31, 2011. 
Three comments were received on the proposed measures. On May 4, 2011, 
during the public comment period of the proposed rule, the Council and 
the scallop industry requested that emergency action be taken by NMFS 
to close the Nantucket Lightship (NLS) access area prior to its 
scheduled opening on June 15, 2011. NMFS agreed with taking this action 
and the emergency rule published in the Federal Register on June 1, 
2011 (76 FR 31491). Although Framework 22 closes NLS, because Framework 
22 was not approved and implemented by June 15, 2011, the area would 
have opened under the roll-over FY 2010 measures. This emergency 
closure prevented potentially high levels of scallop and YTF catch that 
could have resulted from opening the area prior to the approval and 
implementation of Framework 22, which could have been detrimental to 
the long-term management and health of the scallop fishery. This final 
rule will continue the NLS closure for the remainder of FY 2011 and, as 
such, the regulatory text of this action will replace regulations put 
in place by the emergency action.
    The final Framework 22 management measures are described below. 
Details concerning the Council's development of these measures were 
presented in the preamble of the proposed rule and are not repeated 
here.

Specification of Scallop OFL, ABC, ACL, and ACTs for FYs 2011 and 2012 
and Default Specifications for FY 2013

    These specifications are set in accordance with measures and 
criteria in Amendment 15. The OFL is set based on a fishing mortality 
rate (F) of 0.38, equivalent to the F threshold updated through the 
most recent scallop stock assessment. The ABC and equivalent total ACL 
for each FY are based on an F of 0.32, the F associated with a 25-
percent probability of exceeding the OFL. The Council's Scientific and 
Statistical Committee (SSC) recommended ABCs for the FY 2011 and 2012 
scallop fisheries of 60.1 M lb (27,269 mt) and 63.8 M lb (28,961 mt), 
respectively, after accounting for discards and incidental mortality. 
The Scallop Plan Development Team (PDT) estimated the FY 2013 ABC of 
63.3 M lb (28,700 mt) using the same approach that was reviewed and 
approved by the SSC to set the ABC for FYs 2011 and 2012. The decision 
to include third-year default measures occurred after the SSC made ABC 
recommendations for this action. The SSC will recommend an ABC in 
conjunction with the next biennial framework adjustment for FY 2013 and 
FY 2014, as well as a default ABC for FY 2015.
    Table 1 outlines the scallop fishery catch limits that are derived 
from these ABC values. After deducting the incidental target TAC and 
the research and observer set-asides, the remaining ACL available to 
the fishery is proportioned out according to Amendment 11 fleet 
allocations, with 94.5 percent allocated to the LA scallop fleet, 5 
percent allocated to the LAGC IFQ fleet, and the remaining 0.5 percent

[[Page 43775]]

allocated to LA scallop vessels that also have LAGC IFQ permits. These 
separate ACLs and their corresponding ACTs are referred to as sub-ACLs 
and sub-ACTs, respectively, throughout this action. Amendment 15 
determined that no buffers to account for management uncertainty are 
necessary in setting the LAGC sub-ACLs, meaning that the LAGC sub-ACLs 
equal the LAGC sub-ACTs. As a result, the LAGC sub-ACL values in Table 
1, based on an F of 0.32, represent the amount of catch from which IFQ 
percent shares will be applied to calculate each vessel's IFQ for a 
given FY. For the LA fleet, Amendment 15 set a management uncertainty 
buffer based on the F associated with a 75-percent probability of 
remaining below the F associated with ABC/ACL, which results in an F of 
0.28.

        Table 1--Scallop Catch Limits for FYs 2011 Through 2013 for Both the LA and LAGC IFQ Fleets (mt)
----------------------------------------------------------------------------------------------------------------
                                                                       2011            2012            2013
----------------------------------------------------------------------------------------------------------------
OFL.............................................................          32,387          34,382          34,081
ABC/ACL.........................................................          27,269          28,961          28,700
Incidental TAC..................................................              23              23              23
Research Set-Aside (RSA)........................................             567             567             567
Observer Set-aside (1 percent of ABC/ACL).......................             273             290             287
LA sub-ACL(94.5 percent of total ACL, after deducting set-asides          24,954          26,537          26,293
 and incidental catch)..........................................
LA sub-ACT (adjusted for management uncertainty)................          21,431          23,546          19,688
LAGC IFQ sub-ACL (5.0 percent of total ACL, after deducting set-           1,320           1,404           1,391
 asides and incidental catch)...................................
LAGC IFQ sub-ACL for vessels with LA scallop permits (0.5                    132             140             139
 percent of total ACL, after deducting set-asides and incidental
 catch).........................................................
----------------------------------------------------------------------------------------------------------------

    These allocations do not account for any adjustments that would be 
made year-to-year if the AMs specified in Amendment 15 are triggered 
due to annual landings exceeding the ACL.
Open Area DAS Allocations
    This action implements vessel-specific DAS allocations for each of 
the three limited access scallop DAS permit categories (i.e., full-
time, part-time, and occasional) for FYs 2011 through 2013 (Table 2). 
FY 2013 DAS allocations are set at a precautionary level equal to 75 
percent of what current biomass projections indicate could be allocated 
to each LA scallop vessel for the entire FY to avoid over-allocating 
DAS to the fleet in the event that the framework that would set those 
allocations, if delayed past the start of FY 2013, estimates that DAS 
should be less than currently projected.

  Table 2--Scallop Open Area DAS Allocations for FYs 2011 Through 2013
------------------------------------------------------------------------
                      Scallop open area allocations
-------------------------------------------------------------------------
             Permit  category                FY 2011   FY 2012   FY 2013
------------------------------------------------------------------------
Full-Time.................................        32        34        26
------------------------------------------------------------------------
Part-Time.................................        13        14        11
------------------------------------------------------------------------
Occasional................................         3         3         3
------------------------------------------------------------------------

    Because Framework 22 was not implemented at the March 1 start of FY 
2011, and the DAS allocated at the start of FY 2011 are higher than 
those specified in Framework 22, it is possible that scallop vessels 
could exceed their Framework 22 DAS allocations during the interim 
period between March 1, 2011, and the effective date of this final 
rule. Therefore, Framework 22 specifies that the number of LA open area 
DAS used in FY 2011 by a vessel (excluding carryover DAS) that exceed 
the final FY 2011 open area DAS allocation for that vessel will be 
deducted from the vessel's FY 2012 open area DAS allocation. For 
example, if a full time vessel fishes 38 DAS between March 1, 2011, and 
the effective date of this final rule, 6 DAS (i.e., 38 DAS -32 DAS) 
will be deducted from that vessel's FY 2012 DAS allocation, resulting 
in a total of 28 DAS for FY 2012.

Open Area DAS Adjustment if Access Area YTF TAC is Attained

    Under the Northeast (NE) Multispecies FMP, 10 percent of the GB YTF 
TAC (i.e., total GB YTF ACL) is allocated to scallop vessels fishing in 
the Closed Area I (CAI) and Closed Area II (CAII) Access Areas, 
combined; and 10 percent of the Southern New England/Mid-Atlantic (SNE/
MA) YTF TAC (i.e., total SNE/MA YTF ACL) is allocated to scallop 
vessels fishing in NLS. Framework Adjustment 45 to the NE Multispecies 
FMP (76 FR 23042; April 25, 2011) set the total YTF ACLs outlined in 
Table 3 for FYs 2011 and 2012 (FY 2013 values will be determined in a 
future framework adjustment to the NE multispecies FMP). Table 3 also 
includes the TACs available for the scallop access areas (i.e., 10 
percent of each total ACL) and, for comparison, the sub-ACLs allocated 
to the scallop fishery. The scallop fishery's YTF sub-ACLs and YTF 
access area TACs are not additive. For example, YTF catch from CAII is 
applied to both the GB sub-ACL and the YTF TAC available for the two GB 
access area.

            Table 3--Total ACLs, Scallop Sub-ACLs, and Access Area TACs for YTF in FYs 2011 and 2012
----------------------------------------------------------------------------------------------------------------
                                                                              Scallop access    Scallop sub-ACL
                FY                       YTF stock         Total ACL (mt)   area YTF TAC (mt)         (mt)
----------------------------------------------------------------------------------------------------------------
FY 2011..........................  GB..................              1,416              141.6               82
                                   SNE.................                641               64.1              200.8
FY 2012..........................  GB..................                936               93.6              127

[[Page 43776]]

 
                                   SNE.................              1,426              142.6              307.5
----------------------------------------------------------------------------------------------------------------

    Under the NE multispecies regulations, if the GB or SNE/MA YTF TAC 
is caught, CAI and CAII, and/or NLS will close to further scallop 
fishing for the remainder of the FY. If a vessel has unutilized trip(s) 
after an access area is closed due to reaching the YTF TAC, it will be 
allocated additional open area DAS at a reduced rate. Unused access 
area trip(s) will be converted to open area DAS so that scallop fishing 
mortality that would have resulted from the access area trip(s) will be 
equivalent to the scallop fishing mortality resulting from the open 
area DAS allocation. The conversion used to allocate additional DAS 
from a YTF access area closure is based on Framework 22's FYs 2011-2013 
LA scallop possession limits for access area trips of 18,000 lb (8,165 
kg) for full-time vessels, 14,400 lb (6,532 kg) for part-time vessels, 
and 6,000 lb (2,723 kg) for occasional vessels, and are as follows: For 
a given FY, the pounds remaining from an access area trip(s) (i.e., 
from a fully unused trip(s) and/or unused compensation trip(s)) is 
first multiplied by the average meat count (i.e., number of shucked 
scallop abductor muscles per lb) from that area and then subsequently 
divided by both the open area average meat count and by the open area 
landings-per-unit-effort (LPUE), resulting in a DAS allocation 
comparable to the unused access area pounds. For example, in FY 2011, 
based on a catch limit of 18,000 lb (8,165 kg), and average meat count 
for scallops in CAI estimated to be 10.6 meats/lb, 190,800 scallops 
would be removed per full-time trip (18,000 lb (8,165 kg) x 10.6 meats/
lb = 190,800 meats). The meat count and LPUE for open areas in FY 2011 
are estimated to be 18.4 meats/lb and 2,441 lb/DAS, respectively. The 
estimated number of open area DAS a full-time vessel would use to catch 
the same number of scallops as it would in CAI with an 18,000-lb 
(8,165-kg) possession limit is estimated to be 4.3 DAS (190,800 
scallops/(18.4 meats/lb x 2,441 lb/DAS = 4.3 DAS). Therefore, if a 
full-time vessel had an unused CAI trip at the time of a CAI YTF TAC 
closure, the vessel will be allocated 4.3 DAS in open areas. Table 4 
outlines the DAS/trip conversion for unused full-time, part-time, and 
occasional vessels access area trips. This trip/DAS conversion applies 
to all full-time vessels, but only to occasional or part-time vessels 
that have no other available access areas in which to take their access 
area trip(s). If a vessel has an unused compensation trip in an access 
area that closes due to YTF, the same calculation outlined above 
applies, resulting in a proportional DAS increase to that of a fully 
unused trip allocation. For example, in FY 2011, if a full-time vessel 
had an unused 9,000-lb (4,082-kg) CAI compensation trip (i.e., half of 
the full-time vessel's 18,000-lb (8,165-kg) possession limit) at the 
time of a CAI YTF TAC closure, the vessel will be allocated 2.15 DAS 
(i.e., half of the 4.3 DAS that is allocated for a full unused CAI 
trip).

 Table 4--Scallop Access Area Trip/DAS Conversions if CAI, CAII, and/or NLS Close Due to Full Harvest of GB and/
                                                or SNE/MA YTF TAC
----------------------------------------------------------------------------------------------------------------
                                  Access area trip conversion to open area DAS
-----------------------------------------------------------------------------------------------------------------
         Permit category                    FY                  CAI                CAII               NLS
----------------------------------------------------------------------------------------------------------------
                                   2011................                4.3                5.7  .................
Full-Time........................  2012................                4.4                5.4                4.3
                                   2013................  .................                5.4                4.9
                                   2011................                3.4                4.5  .................
Part-Time........................  2012................                3.6                4.3                3.4
                                   2013................  .................                4.3                3.9
                                   2011................                1.4                1.9  .................
Occasional.......................  2012................                1.5                1.8                1.4
                                   2013................  .................                1.8                1.6
----------------------------------------------------------------------------------------------------------------

LA Trip Allocations, the Random Allocation Process, and Possession 
Limits for Scallop Access Areas

    This action specifies a new access area allocation scheme for full-
time vessels fishing in scallop access areas. In terms of allocations 
to the fleet, full-time LA scallop vessels will receive four access 
area trips in each FY from 2011 through 2013. In order to avoid 
allocating trips into access areas with scallop biomass levels not 
large enough to support a full trip by all 313 LA full-time vessels in 
a single FY, Framework 22 allocates ``split-fleet'' trips into certain 
access areas. In order to make this process as fair as possible to 
scallop vessel owners, prior to the start of each FY, NMFS will 
randomly allocate half of the full-time vessels a full trip into a 
specific area(s), and half of the full-time vessels a full trip into a 
different area(s) through the process outlined in Framework 22. 
Ultimately, all vessels receive the same number of total access area 
trips, although the specific areas to which they have access may differ 
(Table 4). This allocation scheme is a ``random allocation process'' 
rather than a lottery. The process and rationale for randomly 
allocating access area trips to full-time vessels are more fully 
described in detail in the preamble of the proposed rule and in Section 
2.4.2 of the Council's Framework 22 document and is not repeated here.
    In order to facilitate trading trips between vessels, the FY 2011 
allocations for full-time vessels have already been identified, and can 
be found in Section 2.4.2 of the Framework 22 document (See ADDRESSES), 
as well as NMFS' Web site. NMFS will update these preliminary 
allocations, subject to permit renewal requirements, with any

[[Page 43777]]

changes in vessel ownership and/or vessel replacements. An updated list 
of FY 2011 vessel assignments will be posted on NMFS' Web site and 
mailed to LA permit holders prior to the effective date of this final 
rule. The split-fleet trip assignments will also be made publically 
available through NMFS' Web site and in permit holder letters prior to 
the start of FYs 2012 and 2013. The decision to use a random allocation 
process to allocate access area trips to full-time vessels will be re-
evaluated in a future framework adjustment.
    In FY 2011, all full-time scallop vessels are allocated one trip in 
the Delmarva Access Area (Delmarva), one trip into the Hudson Canyon 
Access Area (HC), and one trip into CAI (Table 5). In addition, 157 
full-time vessels are allocated one trip into CAII, and the other 156 
full-time vessels are allocated an additional trip into CAI, for a 
total of four access area trips per full-time vessel. A part-time 
scallop vessel is allocated two trips, which could be taken in one of 
the following combinations: Two trips in CAI; one trip in the CAI and 
one trip in CAII; one trip in CAI and one trip in HC; one trip in CAI 
and one trip in Delmarva; one trip in CAII and one trip in HC; one trip 
in CAII and one trip in Delmarva; or one trip in HC and one trip in 
Delmarva. An occasional vessel is allocated one trip, which could be 
taken in any one open access area.
    Because these trip allocations are being implemented after March 1, 
2011, and the current regulations that rolled over into FY 2011 are 
inconsistent with the proposed specifications, it is possible that 
during the interim between the start of FY 2011 and the implementation 
of this rule, a scallop vessel could take a trip in an area not open 
under these final measures. For example, under the current roll-over 
provisions, at the start of FY 2011, the Elephant Trunk Access Area 
(ETAA) is an access area, and full-time vessels have received the same 
allocation as they received in FY 2010 (i.e., two ETAA trips, one 
Delmarva trip, and one NLS trip). However, Framework 22 changes the 
ETAA into an open area to be fished under DAS allocations and continues 
the NLS emergency closure for the duration of FY 2011. Framework 22 has 
accounted for the ETAA changing from an access area to an open area by 
including the calculated biomass in this and other areas in the overall 
open area DAS allocations for FY 2011.
    If, during FY 2011, a vessel fishes on an ETAA trip allocated 
during the interim period between the start of FY 2011 and the 
implementation of this rule, any pounds landed from a declared ETAA 
trip shall be converted to the equivalent DAS and deducted from that 
vessel's open area DAS allocations in FY 2012. The pounds a vessel 
lands from the ETAA shall first be multiplied by the estimated ETAA 
average meat count (18.4 meats/lb) and then divided by the product of 
the estimated open area average meat count (also 18.4 meats/lb) 
multiplied by the estimated open area LPUE for FY 2011 (2,441 lb/DAS). 
For example, if a full-time vessel lands the full 18,000-lb (8,165-kg) 
possession limit on an ETAA trip in FY 2011, that vessel shall incur a 
DAS deduction of 7.4 DAS in FY 2012 ((18,000 lb x 18.4 meats/lb)/(18.4 
meats/lb x 2,441 lb/DAS)), to account for those landings, resulting in 
a total FY 2012 DAS allocation of 26.8 DAS (i.e., 34 DAS minus 7.4 
DAS). Part-time and occasional vessels receive deductions of 5.9 DAS 
and 2.5 DAS, respectively, for landing their full trip possession 
limits from the ETAA in FY 2011. If a vessel only lands a portion of 
its full possession limit, the applicable DAS reduction shall be 
proportional to those landings. For example, if a full-time vessel 
lands 9,000 lb (4,082 kg) during a declared ETAA trip in FY 2011, that 
vessel's FY 2012 DAS allocation shall be reduced by 3.7 DAS (i.e., half 
of the DAS that will be deducted for a full trip).
    Framework 22 includes a provision that this DAS deduction does not 
apply to vessels that fished compensation trips in the ETAA from trips 
broken during the last 60 days of FY 2010. The regulations allow for 
these compensation trips to be taken within the first 60 days of the 
subsequent FY if the access area from where the trip was broken remains 
open. Because the ETAA was still considered an access area under the 
roll-over regulations at the start of FY 2011, any FY 2010 compensation 
trips started prior to April 29, 2011, will not be counted against FY 
2011 DAS.
    Due to the emergency action to close NLS, vessels did not have the 
opportunity to fish in NLS. This final rule continues the NLS closure 
for the duration of FY 2011. Because of the emergency rule, the pay-
back measure included in the proposed rule for Framework 22 to account 
for scallops that could be landed from vessels that declare NLS trips 
in FY 2011 is no longer necessary.
    Because Delmarva was the only access area that remains open under 
the measures in place at the start of FY 2011 and specified in this 
final rule implementing Framework 22, the preamble to the proposed rule 
discussed the potential complications for vessels that exchanged a 
Delmarva trip for a trip in the ETAA prior to the implementation of 
Framework 22. In summary, if a vessel owner gave up its Delmarva trip 
through an exchange with another vessel owner, and gained an additional 
ETAA as a result, its three ETAA trips (i.e., the two ETAA trips 
allocated at the start of FY 2011 and its ETAA trip gained through the 
trip exchange) would disappear after Framework 22 is implemented, 
assuming the vessel did not declare into and land scallops from the 
ETAA. With the loss of its two ETAA trips, one NLS trip, and one traded 
Delmarva trip, the vessel would end up with a total FY 2011 access area 
allocation of three trips (e.g., one in HC, and either two in CAI or 
one in CAI and one in CAII). Conversely, the vessel that gained the 
additional Delmarva trip through the exchange would ultimately have a 
total FY 2011 access area trip allocation of five trips (e.g., two in 
Delmarva, one in HC, and either two in CAI or one in CAI and one in 
CAII). To avoid potential inequitable consequences of trip exchanges 
due to the late implementation of Framework 22 to the extent 
practicable, this final rule specifies that if a vessel acquired an 
additional unused ETAA trip through a trip exchange, it will be 
credited for that trip with additional DAS, equivalent to the trip's 
possession limit, as soon as possible after Framework 22's 
implementation. For example, a full-time vessel that had exchanged for 
an ETAA trip will receive a DAS credit of 7.4 DAS if that vessel did 
not declare into and fish that ETAA trip. That vessel will then have a 
total FY 2011 DAS allocation of 39.4 DAS (32 DAS plus 7.4 DAS). 
Similarly, part-time vessels will receive a credit of 5.9 DAS, if they 
initially received an additional ETAA trip through a trip exchange that 
is later removed upon implementation of Framework 22. In order to apply 
this trip exchange DAS conversion consistently, if the vessel fishes 
any part of an ETAA trip it gained through a trip exchange, those 
landings will be converted to DAS, using the same calculation described 
previously, and deducted from any DAS credit applied to FY 2011, rather 
than deducted in FY 2012. Although the Council has generally applied 
pay-back measures due to late framework implementation in the 
subsequent FY, this DAS credit, if applied to the subsequent FY, could 
have unintended ACL implications in FY 2012 by increasing the risk that 
the

[[Page 43778]]

LA fleet could exceed the ACL for that FY.
    Framework 22 limits each full-time vessel to a total of only four 
access area trips in FY 2011. For the reason outlined above, a full-
time vessel that receives an additional Delmarva trip through a trip 
exchange prior to Framework 22's implementation may end up with five 
access area trips as a result of the mid-year implementation of this 
rule. However, because this result would create an inconsistency in 
measures, this final rule clarifies that the 4-trip limit supersedes 
the potential for a vessel owner to have 5 access area trips, to avoid 
the potential risk of exceeding FY 2011 catch limits. If a full-time 
vessel receives a final FY 2011 allocation of five trips due to a 
previous trip exchange, that vessel must relinquish one trip in FY 2011 
from its available access area trip allocation so that it receives the 
same number of access area trips as all other full-time vessels (i.e., 
four trips). As soon as possible after the publication of this final 
rule, NMFS will send a notification letter to the owner of such a 
vessel regarding the requirement that one of the vessel's unused access 
area trips must be relinquished in FY 2011 to account for the previous 
trip exchange. The vessel owner will be given the opportunity to select 
the area from which the trip will be deducted, with NMFS determining 
the area if the vessel owner fails to respond within 30 days as 
requested.
    No access area trips were allocated for CAI and CAII, and HC closed 
prior to this final rule, so no trips into those areas could be taken 
until Framework 22 is effective.
    In FY 2012, all full-time scallop vessels are allocated a total of 
four access area trips (Table 5). Each full-time vessel is allocated 
one trip into CAII, and one trip into HC. The remaining two access area 
trips are allocated in the following combinations: One trip in CAI and 
one trip in NLS; one trip in CAI and one additional trip in HC; one 
trip in CAI and one trip in Delmarva; one trip in NLS and an additional 
trip in HC; one trip in NLS and one trip in Delmarva; or an additional 
trip in HC and one in Delmarva. Trip assignments, based on a random 
vessel assignment to the four applicable areas noted above, will be 
available prior to the start of FY 2012. Each part-time scallop vessel 
is allocated two trips in FY 2012, which could be taken in one of the 
following combinations: Two trips in HC; one trip in the CAI and one 
trip in NLS; one trip in CAI and one trip in HC; one trip in CAI and 
one trip in Delmarva; one trip in NLS and one trip in HC; one trip in 
NLS and one trip in Delmarva; or one trip in HC and one trip in 
Delmarva. Each occasional vessel is allocated one trip, which could be 
taken in any one open access area.
    At the start of FY 2013, all full-time scallop vessels will be 
allocated one trip in CAII, one trip in NLS, and one trip in HC (Table 
5). In addition, half the fleet will be allocated a trip in Delmarva 
and the other half of the fleet will be allocated another trip in HC, 
for a total of four access area trips for each full-time vessel. These 
allocations will be assigned and made publically available prior to the 
start of FY 2013. A part-time scallop vessel will be allocated two 
trips, which could be taken in one of the following combinations: Two 
trips in HC; one trip in CAII and one trip in NLS; one trip in CAII and 
one trip in HC; one trip in CAII and one trip in Delmarva; one trip in 
NLS and one trip in HC; one trip in NLS and one trip in Delmarva; or 
one trip in HC and one trip in Delmarva. An occasional vessel will be 
allocated one trip, which could be taken in any one open access area.


      Table 5--Scallop Access Area Trip Allocations for Full-Time LA Scallop Vessels During FY 2011-2013.*
----------------------------------------------------------------------------------------------------------------
                                            CAI            CAII           NLAA            HC          Delmarva
----------------------------------------------------------------------------------------------------------------
2011................................             1.5            0.5  .............            1              1
2012................................             0.5            1              0.5            1.5            0.5
2013................................  ..............            1              1              1.5            0.5
----------------------------------------------------------------------------------------------------------------
* Split-fleet trips are identified by ``0.5'' and ``1.5'': The ``0.5'' indicates that half the fleet will be
  allocated one full trip into a specific access area and the ``1.5'' indicates that all full-time vessels will
  be allocated one full trip into a specific access area and half of the vessels will be allocated an additional
  full trip into that area.

LAGC Measures

    1. Sub-ACL for LAGC IFQ Vessels. For LAGC IFQ vessels, this final 
rule sets a 2,910,800-lb (1,320-mt) ACL for FY 2011, a 3,095,450-lb 
(1,404-mt) ACL for FY 2012, and an initial ACL of 3,067,000 lb (1,391 
mt) for FY 2013 (Table 1). IFQ allocations, not including carryover 
IFQ, are calculated by applying each vessel's IFQ contribution 
percentage to these ACLs. These allocations assume that no LAGC IFQ AMs 
are triggered. If a vessel exceeds its IFQ in a given FY, its IFQ for 
the subsequent FY will be deducted by the amount of the overage.
    2. Sub-ACL for LA Scallop Vessels With IFQ Permits. For LA scallop 
vessels with IFQ permits, this final rule sets a 291,080-lb (132-mt) 
ACL for FY 2011, a 309,550-lb (140-mt) ACL for FY 2012, and an initial 
ACL of 306,700-lb (139 mt) for FY 2013 (Table 1). IFQ allocations, not 
including carryover IFQ, are calculated by applying each vessel's IFQ 
contribution percentage to these ACLs. These allocations assume that no 
LAGC IFQ AMs are triggered. If a vessel exceeds its IFQ in a given FY, 
its IFQ for the subsequent FY will be reduced by the amount of the 
overage.
    3. LAGC IFQ Trip Allocations and Possession Limits for Scallop 
Access Areas. The LAGC IFQ fishery is allocated 5.5 percent of the 
overall TAC in each access area for FYs 2011 through 2013. LAGC IFQ 
vessels are not allocated trips into CAII, because these vessels are 
not expected to fish in that area due to its distance from shore. These 
percentages result in a specific number of fleet-wide trips for LAGC 
vessels fishing in access areas (Table 6). The areas will close to LAGC 
vessels when the Regional Administrator determines that the allocated 
number of trips have been taken in the applicable area.

   Table 6--LAGC Fleet-Wide Access Area Trip Allocations for FYs 2011
                              Through 2013
------------------------------------------------------------------------
                Access area                  FY 2011   FY 2012   FY 2013
------------------------------------------------------------------------
CAI.......................................       890       296  ........
CAII......................................         0         0         0
NLS.......................................  ........       296       595
HC........................................       593       887       893
Delmarva..................................       593       296       298
------------------------------------------------------------------------

    Because this action is implemented after the start of FY 2011, and 
the FY 2010 regulations that continued into FY 2011 are inconsistent 
with the regulations in this final rule, it is possible that LAGC 
scallop vessels could exceed the final FY 2011 fleet-wide trip 
allocation in Delmarva under Framework 22. The current regulations

[[Page 43779]]

allocate a total of 714 LAGC trips into Delmarva. If LAGC vessels 
exceed the final number of allocated trips from Delmarva in FY 2011, 
the number of excess trips will be deducted from the LAGC IFQ fleet 
Delmarva trip allocation in FY 2012. Although there have been some LAGC 
trips into the ETAA at the start of FY 2011, this area changes to an 
open area under this final rule. Because any landings from trips taken 
in the ETAA will be deducted from each vessel's IFQ allocations, and 
because there are no specific fleet-wide trips allocated to LAGC 
vessels fishing in open areas, there is no pay-back measure associated 
with LAGC vessels that fished in the ETAA prior to the implementation 
of this final rule.
    4. NGOM TAC. This action sets a 70,000-lb (31,751-kg) annual NGOM 
TAC for FYs 2011 through 2013. These allocations for FY 2012 and FY 
2013 assume that in a given FY there are no overages, which would 
trigger a pound-for-pound deduction in the subsequent FY to account for 
the overage based on the measures in Amendment 15.
    5. Scallop Incidental Catch Target TAC. This action sets a 50,000-
lb (22,680-kg) scallop incidental catch target TAC for FYs 2011 through 
2013 to account for mortality from this component of the fishery, and 
to ensure that F-targets are not exceeded.

Research Set-Aside (RSA) Allocations

    As specified in Amendment 15, this action deducts 1.25 M lb (567 
mt) of scallops annually for FYs 2011 through 2013 from the ABC and 
sets it aside as the Scallop RSA to fund scallop research and to 
compensate participating vessels through the sale of scallops harvested 
under RSA projects. Upon the effective date of Amendment 15 measures, 
this set-aside will be available for harvest in open areas. Framework 
22 sets the access area rotation schedule, and vessels will be able to 
harvest RSA from access areas upon the effective date of this final 
rule to implement Framework 22 measures. Unlike previous scallop 
framework adjustments, Framework 22 does not set specific RSA quota 
allocations within specific access areas. Projects are now assigned 
harvest allocations through the RSA application review and approval 
process, and a vessel with available RSA could harvest allotted RSA 
from an access area until the RSA allocated to that vessel and/or 
project is fully harvested.

Observer Set-Aside Allocations

    This action removes 1 percent from the ABC and sets it aside for 
the industry-funded observer program to help defray the cost of 
carrying an observer. This observer set-aside is further divided 
proportionally into access areas and open areas. Scallop vessels on an 
observed DAS trip are charged a reduced DAS rate, and scallop vessels 
on an observed access area trip are authorized an increased possession 
limit. The Regional Administrator has specified the following 
compensation rate for FY 2011: Vessels carrying an observer will 
receive 180 lb (82 kg) of scallops per day, or part of a day, when 
fishing in an access area, and LA DAS vessels will be compensated 0.08 
DAS per DAS fished during observed open area trips (i.e., vessels will 
be charged 0.92 DAS per DAS fished with an observer onboard). The 
Regional Administrator shall periodically review, at least once prior 
to each fishing year, all available fishery information to determine if 
these rates should be adjusted. The FY 2011 through 2013 observer set-
aside allocations for open and access areas are outlined in Table 7.

 Table 7--Open Area, Access Area, and Total Observer Set-Aside TACs for
                          FYs 2011 Through 2013
                    [Mt, unless otherwise specified]
------------------------------------------------------------------------
                   Area                      FY 2011   FY 2012   FY 2013
------------------------------------------------------------------------
Open areas................................       139       161       136
Open (in DAS).............................       137       133       112
CAI.......................................        51        16       N/A
CAII......................................        16        31        36
NLS.......................................       N/A        16        38
HC........................................        34        49        57
Delmarva..................................        34        16        19
                                           -----------------------------
    Total.................................       273       290       287
------------------------------------------------------------------------

Measures To Minimize the Impacts of Incidental Take of Sea Turtles

    Under the Endangered Species Act (ESA), each Federal agency is 
required to ensure its actions are not likely to jeopardize the 
continued existence of any listed species or critical habitat. If a 
Federal action is likely to adversely affect a listed species, section 
7 of the ESA requires formal consultation. To date, five formal 
consultations, with resulting Biological Opinions, have been completed 
on the Atlantic sea scallop fishery. All five have had the same 
conclusion: The continued authorization of the scallop fishery may 
adversely affect, but is not likely to jeopardize, the continued 
existence of four sea turtles species (Kemp's ridley, loggerhead, 
green, and leatherback). In the accompanying Incidental Take Statements 
of the Biological Opinions, NMFS is required to identify and implement 
non-discretionary reasonable and prudent measures (RPMs) necessary or 
appropriate to minimize the impacts of any incidental take, as well as 
Terms and Conditions (T/C) for implementing each RPM. RPMs and T/C 
cannot alter the basic design, location, scope, duration, or timing of 
the action, and may involve only minor changes. Five RPMs and T/Cs were 
identified in the most recent Biological Opinion, as amended on 
February 5, 2009. This final rule includes management measures to 
comply with the first of these RPMs, which requires a limit of fishing 
effort in the Mid-Atlantic during times when sea turtle distribution is 
expected to overlap with scallop fishing activity. The Biological 
Opinion requires that this restriction be limited to a level that will 
not result in more than a minor impact on the scallop fishery.
    For FYs 2011 through 2013, Framework 22 defines ``more than a minor 
impact'' on the fishery as one that results in a 10-percent or greater 
shift in baseline effort from the Mid-Atlantic during June 15 through 
October 31 into other areas and times of year when sea turtle 
interactions are less likely. This definition, as well as management 
measures to comply with the Biological Opinion and any future 
Biological Opinions, will be re-evaluated for FY 2013 and future 
fishing years in subsequent framework actions (or if a new Biological 
Opinion occurs, a framework can be reinitiated). An informal 
consultation under the ESA was prepared to analyze the impact of the 
Framework 22 on threatened and endangered sea turtles and NMFS has 
determined that fishing activities pursuant to Framework 22 will not 
affect endangered and threatened species or critical habitat in any 
manner not considered in prior consultations on this fishery.
    For FYs 2011 through 2013, each full-time and part-time vessel will 
be restricted to taking one access area trip to areas in the Mid-
Atlantic (i.e., HC and Delmarva) during June 15 through October 31 of 
each FY. However, this final rule includes an additional provision for 
full-time vessels: If a vessel has traded access area trips with 
another vessel so that it has a total allocation of four trips in the 
Mid-Atlantic access areas, the vessel will be able to fish up to two of 
the four trips from June 15 through October 31. This measure is only 
applicable to full-time vessels, because part-time vessels are only 
allocated a total of two access area trips to be fished in any open 
access area. Occasional vessels are not affected by this measure 
because they are only

[[Page 43780]]

allocated a single access area trip. This provision is to minimize any 
distributional impacts that may result from the ``split fleet'' trip 
random allocation assignment and allows for more flexibility in access 
area trip exchanges. LAGC vessels fishing in the Mid-Atlantic access 
areas under the fleet-wide IFQ trips are also not affected by this trip 
restriction.
    Compliance with the trip restriction will be monitored using pounds 
landed during June 15 through October 31, rather than trip 
declarations, which could result in landings that are less than the 
allowable trip possession limit. For example, full-time and part-time 
LA vessels will be restricted to landing a maximum of 18,000 lb (8,165 
kg) per trip for full-time vessels and 14,400 lb (6,532 kg) per trip 
for part-time vessels from those areas (i.e., the equivalent of one 
full access area trip, depending on the permit category's possession 
limit). Additionally, if a full-time vessel has acquired four Mid-
Atlantic access trips due to a trip exchange(s), that vessel will be 
restricted to landing a combined maximum of 36,000 lb (16,329 kg) from 
HC and Delmarva (i.e., the equivalent of two full access area trips). 
Compensation trips may not be combined during this time period in a way 
that will allow more than 14,400 lb (6,532 kg) for part-time vessels, 
18,000 lb (8,165 kg) for full-time vessels, or 36,000 lb (16,329 kg) 
for full-time vessels with a total allocation of four Mid-Atlantic 
access area trips, to be landed from HC and Delmarva, combined, from 
June 15 through October 31 of FYs 2011 through 2013. For example, if a 
full-time vessel is allocated two total trips into the Mid-Atlantic 
access areas and that vessel declared and subsequently broke one of the 
two trips into Mid-Atlantic access areas prior to June 15, it will have 
one full trip (i.e., 18,000 lb, 8,165 kg) available for use during the 
trip-restriction window. In that case, the vessel could only harvest up 
to 18,000 lb (8,165 kg) total from June 15 through October 31, in the 
Mid-Atlantic access areas, either by fishing its compensation trip and 
part of its full access area trip, or by fishing only one full access 
area trip and waiting to declare the compensation trip on or after 
November 1. If a vessel fishes any part of an access area trip in HC or 
Delmarva during this time period (i.e., starts a trip on June 13 and 
ends the trip on June 15), landings from that trip will count towards 
the one- or two-trip limit. The additional pounds allocated to vessels 
with on-board observers during trips taken within this time period will 
not count towards the aforementioned possession and landing 
restrictions.
    Because this final rule is implemented mid-year, and the current 
regulations are inconsistent with the proposed specifications, it is 
possible that full-time and part-time vessels could exceed their final 
FY 2011 access area trip restrictions prior to this rule becoming 
effective. If this measure is implemented after June 15, 2011, a full-
time or part-time vessel that landed more than 18,000 lb (8,165 kg) or 
14,400 lb (6,532 kg), respectively (i.e., more than the equivalent of 
one full access area trip), between June 15, 2011, and the 
implementation of Framework 22, will be prevented from taking an access 
area trip in FY 2012 in the Mid-Atlantic during June 15 through 
October. Alternatively, a full-time vessel could make up for the 
overage by trading in trips so that it had a total of four trips 
allocated into the Mid-Atlantic access areas and continue to fish up to 
a maximum of 36,000 lb (16,329 kg) through October 31, 2011 (i.e., the 
equivalent of two full access area trips).
    Under this final rule, the Delmarva and ETAA seasonal closures are 
no longer in effect.

Elimination of the GB Access Area Rotational Schedule

    This action eliminates the default GB access area schedule that was 
implemented through Framework 16 to the FMP (69 FR 63460; November 2, 
2004). The Council intended that this default cycle would be in place 
until the Council modified it through a future action. The schedule has 
based access area openings on the premise that an area would be open 
for 1 year, followed by a 2-year closure. However, the schedule has 
been consistently revised in framework actions based on area-specific 
scallop biomass projections. The pre-defined schedule has led to 
inconsistencies between roll-over measures at the start of a FY when a 
framework is delayed and unnecessary confusion. This final rule removes 
the schedule from the regulations, allowing for the GB access area 
scheduled openings to be based on updated resource information. Third-
year default measures (e.g., FY 2013) will provide the access area 
schedule for a subsequent FY if the subsequent framework action is 
delayed past the start of the FY.
Comments and Responses
    NMFS received three comment letters in response to the proposed 
rule from the Fisheries Survival Fund (FSF), writing on behalf of full-
time limited access scallop fleet members; a member of the United 
National Fishermen's Association; and an individual. Six relevant 
issues relating to the proposed Framework 22 measures were raised and 
are responded to below. Other comments were not relevant to this 
rulemaking and are therefore not responded to in this final rule. FSF 
submitted comments that were related to Amendment 15 management 
measures, and those will be addressed in the final rule to Amendment 
15. NMFS may only approve, disapprove, or partially approve measures in 
Framework 22, and cannot substantively amend, add, or delete measures 
beyond what is necessary under section 305(d) of the MSA to discharge 
its responsibility to carry out such measures.
    Comment 1: Although generally supportive of Framework 22 management 
measures, FSF commented that there is an ongoing appearance of 
exceeding catch targets in the scallop fishery due to precautionary DAS 
allocations based on underestimated LPUE in open areas. FSF also 
commented that, because the inshore areas are not being surveyed by 
NMFS, overall scallop biomass is consistently underestimated, and they 
requested increased survey coverage and expansion of cooperative 
surveys with the industry.
    Response: NMFS recognizes that Framework 22 allocates open area DAS 
that are lower than Framework 21 allocations, but disagrees that these 
DAS allocations are overly precautionary. These decreases are the 
result of modifications to the LPUE calculation applied to the DAS 
model used in Framework 22. Underestimation of this increase in LPUE in 
previous frameworks resulted in greater-than-expected landings due to 
higher DAS allocations. The adjusted LPUE values have increased, 
resulting in lower overall DAS allocations that take into account 
higher effort levels. In addition, the fleet dynamics model, which 
predicts the level and location of fishing effort under proposed 
measures, has been adjusted to more accurately predict LPUE by 
predicting that effort will be concentrated in areas with the highest 
yield per day fished. Even with the decrease in DAS allocations, total 
landings are projected to be slightly higher than FY 2010 landings, as 
projected under Framework 21.
    An increase in LPUE is not necessarily a reliable indicator of 
increased biomass and, as such, the recent increases in LPUE do not 
necessarily demonstrate that surveys are underestimating overall 
biomass. Current scallop catch rates in open areas

[[Page 43781]]

have been the highest on record. Although the increase is in part due 
to increased open area biomass as observed in surveys (the most recent 
survey was in May-July 2010), LPUE has increased considerably faster 
than survey biomass, likely due to improved efficiencies of commercial 
operations and the larger meat sizes that allow more pounds to be 
shucked per hour.
    There were some survey tows conducted in inshore areas in recent 
years, and an estimate of the biomass from non-regularly surveyed areas 
was included in the last stock assessment. Estimates from the 2010 
stock assessment, which were endorsed by the SARC-50 review panel, are 
best available science, and show that biomass was just above, and 
fishing mortality at, maximum sustainable yield (MSY) levels in 2009. 
The survey data indicate that allocations in FY 2011 need to be lower 
than those in place in FY 2009 in order to meet the management target 
F.
    While the commenter may find higher DAS allocations preferable, 
NMFS must approve or disapprove the measure in Framework 22, and has 
determined that the DAS allocations proposed through Framework 22 are 
consistent with National Standard 1 of the MSA and are based on the 
best scientific information available, as required by National Standard 
2.
    With regards to increased cooperative surveys, Amendment 15 had 
made a number of adjustments to the Scallop RSA Program, including 
increasing the RSA quota to 1.25 M lb (567 mt), which will allow for 
more research projects to be funded through this process. NMFS 
continues to encourage industry members to participate in the RSA 
Program.
    Comment 2: FSF stated that the timing of scallop framework actions 
needs to be expedited so that mid-year implementation of specifications 
is avoided.
    Response: Although NMFS also has concerns about the timing of 
scallop framework actions, and agrees that it would be better for all 
stakeholders if these actions were developed and implemented prior to 
the start of the first scallop FY to which they apply, NMFS does not 
consider the timing problems to be a fatal flaw to Framework 22. NMFS 
will continue to work with the Council and the industry to avoid these 
delays in the future. As FSF mentioned in its comment letter, 
specifying third-year default measures will assist in reducing the need 
for confusing and cumbersome payback measures that have been included 
in a number of scallop frameworks, which have been incorporated due to 
early anticipation during the development process that these measures 
would be delayed past the start of the FY to which they apply.
    Comment 3: A member of the United National Fishermen's Association 
expressed frustration that the management measures in Framework 22 are 
confusing, but did not clarify whether the confusion lies in the 
organization of the EA or the management measures themselves. The 
commenter also stated that Framework 22 measures should be applied in 
FY 2012, rather than in FY 2011.
    Response: Although the commenter did not specify which management 
measures he felt were confusing, or offer specific suggestions to help 
simplify such measures, NMFS recognizes that confusion can arise when 
development and implementation of specification-setting frameworks are 
delayed past the start of the FY for which they are intended to be 
applied. As mentioned above, including third-year default measures will 
reduce future confusion and the need for burdensome payback measures in 
the future. NMFS disagrees that the specifications for FY 2011 should 
remain as they currently are and that management measures in this 
action should only be effective beginning in FY 2012. The roll-over FY 
2010 measures currently in place do not reflect the most recent 
information on scallop biomass available for sustainable harvest in FY 
2011. The FY 2011 allocations in Framework 22 are based on the best 
scientific information for FY 2011 and are more economically favorable 
to the scallop industry: Total fleet revenue is estimated to increase 
by $35 M in FY 2011 compared to the revenues anticipated under the 
management measures that have been in effect since March 1, 2011. Since 
there is no basis to disapprove the application of these measures to FY 
2011, the MSA requires their implementation in 2011.
    Comment 4: FSF requested that Framework 22 and Amendment 15 be 
implemented at the earliest time possible.
    Response: NMFS recognizes that ideally Framework 22 would have been 
implemented on or before March 1, 2011, but for various reasons during 
the development and submission of this action, and because it relies on 
the approval of Amendment 15, which was also delayed, implementing 
these measures at the start of FY 2011 was not possible. Applicable 
laws, including the MSA and the Administrative Procedure Act (APA), 
impose certain time constraints to ensure there has been adequate prior 
notice of opportunity for public comment and adequate time to ensure 
that regulated members of the public can be notified of this rule. For 
these reasons there has been necessary delay in implementing Framework 
22.
    Comment 5: One commenter suggested that the scallop quotas should 
be reduced by 50 percent because they are too high, but provided no 
rationale for why the quotas should be reduced in the manner suggested.
    Response: There is no known scientific basis for why such a 
reduction is necessary. The reasons presented by the Council and NMFS 
for recommending the quota allocations for FYs 2011 through 2013, which 
are discussed in the preambles to both the proposed rule and this rule, 
are based on the best scientific information available and are 
consistent with the control rules outlined in Amendment 15's ACL 
process. Scallops are currently not considered overfished or subject to 
overfishing. Sufficient analysis and scientific justification for NMFS' 
action in this final rule are contained within the supporting 
documents.
    Comment 6: One commenter suggested that Framework 22 should have 
required an EIS rather than an EA, but did not provide any 
justification for why an EIS would be necessary.
    Response: NOAA Administrative Order 216-6 (NAO 216-6) (May 20, 
1999) contains criteria for determining the significance of the impacts 
of a proposed action. On July 22, 2005, NOAA published a Policy 
Directive with guidelines for the preparation of a Finding of No 
Significant Impacts. In addition, the Council of Environmental Quality 
(CEQ) regulations at 40 CFR 1508.27 state that the significance of an 
action should be analyzed both in terms of ``context'' and 
``intensity.'' The significance of this action was analyzed based on 
the NAO 216-6 criteria, the 2005 NOAA Policy Directive, and CEQ's 
context and intensity criteria. Based on the analysis contained in the 
supporting EA prepared for Framework 22, as well as the EIS for 
Amendment 15, NMFS determined that Framework 22 will not significantly 
impact the quality of the human environment and all beneficial and 
adverse impacts of the action have been addressed to reach the 
conclusion of no significant impacts. Therefore, NMFS finds that 
preparation of an EIS for this action is unnecessary.
Changes From Proposed Rule to Final Rule
    In Sec.  648.58, paragraph (e) is removed to eliminate the 
temporary regulations added by the June 1, 2011, emergency action to 
close NLS.

[[Page 43782]]

    In Sec.  648.59, paragraphs (b)(3) and (d)(3) are added to 
incorporate the updated access area coordinates for CAI and NLS, 
respectively. In addition, paragraph (d)(5) is revised to no longer 
include pay-back measures applicable to vessels if they fished in the 
NLS in FY 2011 prior to the implementation of Framework 22 management 
measures. These payback measures are no longer necessary due to the 
emergency action that closed the NLS prior to June 15, 2011. This 
closure will be continued throughout the rest of the NLS open season as 
part of Framework 22 measures.
    In Sec.  648.60, the text in paragraph (a)(3)(i) has been clarified 
to explain how vessels that end up with a total allocation of five 
access area trips (i.e., one more trip than permitted through this 
final action) as a result of a trip exchange that occurred prior to the 
mid-year implementation of Framework 22, will relinquish one of their 
trips in FY 2011 to account for the unintended overage.
    Other editorial and minor changes were made throughout the rule to 
clarify various provisions in this action. In addition, any relevant 
changes to the regulatory text at Sec.  648.53 made in the Amendment 15 
final rule were also incorporated in this rule.
Classification
    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the national standards and other 
provisions of the MSA and other applicable laws. The regulatory 
language in this final rule has incorporated, where applicable, the 
regulatory language in Amendment 15.
    The Office of Management and Budget has determined that this rule 
is not significant according to Executive Order 12866.
    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in an expedited manner in order to 
help achieve conservation objectives for the scallop fishery and 
certain fish stocks, as well as threatened and endangered sea turtles, 
constitutes good cause, under authority contained in 5 U.S.C. 
553(d)(3), to waive the 30-day delay in effectiveness.
    If there is a 30-day delay in implementing the measures in 
Framework 22, the scallop fleet will continue under the current access 
area schedule, as well as access area trip, DAS, IFQ, RSA and observer 
set-aside allocations. The DAS allocations are higher than the measures 
in Framework 22, which were developed to reflect an updated estimate of 
the annual catch that can be harvested without resulting in 
overfishing. Accordingly, a delay in effectiveness risks creating a 
race to fish in advance of this rule's measures, and vessel owners and 
operators have the potential of exceeding the catch levels specified in 
Framework 22 for FY 2011. Allocations in FY 2011 need to be lower than 
those in place in FY 2010 in order to meet the management target F. 
Estimates from the 2010 stock assessment, which were endorsed by the 
SARC-50 review panel, are best available science, and show that biomass 
was just above, and fishing mortality was at, MSY levels in 2009. In 
addition, actual F has been higher than projected in FYs 2008-2010, a 
situation which was addressed in the DAS model used to calculate the 
Framework 22 allocations. Further continuation of the inconsistent FY 
2010 management measures increases the risk that the actual F will 
exceed the target level upon which Framework 22 management measures are 
based. Constraining the implementation of Framework 22 by instituting a 
30-day delay in effectiveness would be contrary to the public interest 
because continuing this trend in higher-than-projected F could result 
in overfishing and future decreases in allowable harvest. Current 
scallop catch rates in open areas have been the highest on record, and 
vessels may continue to fish beyond their Framework 22 DAS allocations 
until this action is effective because they are limited in where else 
they can fish.
    In addition, Framework 22 includes management measures to minimize 
fishery interaction with threatened and endangered sea turtles and 
prevent overfishing. Specifically, Framework 22 includes a measure that 
specifies vessels may take only one access area trip in HC and Delmarva 
(combined) between June 15 and October 31, 2011. This limitation 
complies with one of the RPMs in the most recent Biological Opinion 
completed for the scallop fishery. The Biological Opinion examined 
fishery interactions with threatened and endangered sea turtles and 
specified RPMs to minimize the impacts on sea turtles. If 
implementation is delayed further beyond June 15, 2011, the measures 
from last year will continue (i.e., up to two trips in Delmarva or the 
ETAA combined). Although many vessels have already utilized their 
Delmarva trip and it may be unlikely that vessels will fis