[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Rules and Regulations]
[Pages 20728-20742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8386]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 111011616-2102-02]
RIN 0648-BB51
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Framework Adjustment 23
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This action approves Framework Adjustment 23 to the Atlantic
Sea Scallop Fishery Management Plan (Framework 23) and implements its
measures. Framework 23 was developed and adopted by the New England
Fishery Management Council and includes measures to: Minimize impacts
on sea turtles through the requirement of a turtle deflector dredge;
improve the effectiveness of the scallop fishery's accountability
measures related to the yellowtail flounder annual catch limits; adjust
the limited access general category Northern Gulf of Maine management
program; and modify the scallop vessel monitoring system trip
notification procedures to improve flexibility for the scallop fleet.
DATES: Effective May 7, 2012.
ADDRESSES: An environmental assessment (EA) was prepared for Framework
23 that describes the action and other considered alternatives and
provides a thorough analysis of the impacts of these measures and
alternatives. Copies of Framework 23, 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
The New England Fishery Management Council (Council) adopted
Framework 23 on September 27, 2011, initially submitted it to NMFS on
October 25, 2011, for review and approval, and submitted a revised
final framework document on November 30, 2011. Framework 23 includes
measures that require vessels fishing in the Atlantic Sea Scallop
fishery to use a turtle deflector dredge (TDD), including where, when,
and to which vessels this TDD requirement applies. It also revises the
current accountability measures (AMs) related to the yellowtail
flounder (YTF) annual catch limits (sub-ACLs) for the Georges Bank (GB)
and Southern New England/Mid-Atlantic (SNE/MA) YTF stock areas. These
modifications only alter the months when a closure applies and do not
change the locations for these seasonal closure AMs. Framework 23 also
changes how scallop landings are applied to the Northern Gulf of Maine
Management (NGOM) total allowable catch (TAC) when harvested by
federally NGOM-permitted vessels. Finally, Framework 23 implements
procedural changes to when and where a vessel can declare a scallop
trip through vessel monitoring systems (VMS).
The Council reviewed the Framework 23 proposed rule regulations as
drafted by NMFS, which included regulations proposed by NMFS under the
authority of section 305(d) of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), and deemed them
to be necessary and consistent with section 303(c) of the Magnuson-
Stevens Act. The proposed rule for Framework 23 published in the
Federal Register on January 3, 2012 (77 FR 52), with a 15-day public
comment period that ended January 18, 2012. Three comments were
received on the proposed measures.
The final Framework 23 management measures are described below.
Details concerning the Council's development of these measures were
presented in the
[[Page 20729]]
preamble of the proposed rule and are not repeated here.
Requirement To Use a TDD
This action implements a requirement that all limited access (LA)
vessels (regardless of permit category or dredge size), and limited
access general category (LAGC) Individual Fishing Quota (IFQ) vessels
that fish with a dredge with a width of 10.5 ft (3.2 m) or greater, use
a TDD in the Mid-Atlantic (west of 71[deg] W long.) from May through
October.
The TDD is designed to reduce injury and mortality of sea turtles
that come into contact with scallop dredges on the sea floor by
deflecting sea turtles over the dredge frame and dredge bag. The TDD
includes five modifications to the standard commercial dredge frame:
(1) The cutting bar must be located in front of the depressor
plate.
(2) The angle between the front edge of the cutting bar and the top
of the dredge frame must be less than or equal to 45 degrees.
(3) All bale bars must be removed, except the outer bale (single or
double) bars and the center support beam, leaving an otherwise
unobstructed space between the cutting bar and forward bale wheels, if
present. The center support beam must be less than 6 in (15.24 cm)
wide. For the purpose of flaring and safe handling of the dredge, a
minor appendage not to exceed 12 in (30.5 cm) in length may be attached
to the outer bale bar.
(4) Struts must be spaced no more than 12 in (30.5 cm) apart from
each other.
(5) The TDD must include a straight extension (``bump out'')
connecting the outer bale bars to the dredge frame. This ``bump out''
must exceed 12 in (30.5 cm) in length.
Each element of this dredge is based on direct field research that
has been conducted over several years. The combination of these
modifications is designed to reduce the likelihood of a sea turtle
passing under the dredge frame when the gear is on the seafloor, which
could result in the sea turtle being crushed or injured. Available
information indicates that these modifications cumulatively benefit sea
turtle conservation, while not compromising the structural integrity of
the dredge design and scallop yield. These TDD components can be
modified by future actions, if additional modifications are developed
to further minimize impacts on sea turtles or improve the effectiveness
of these measures.
This action requires that all LA vessels, regardless of permit
category or dredge width, and all LAGC IFQ vessels that fish with
dredge gear greater than or equal to 10.5 feet (3.2 m) in width in the
applicable area and season, use a TDD. Because the bump out
modification has not yet been fully tested on small dredges, Framework
23 exempts LA scallop vessels that use dredges with a width less than
10.5 ft (3.2 m) from that requirement of the TDD. Thus, LA vessels
fishing with dredges less than 10.5 ft (3.2 m) in width only have to
use a TDD with the first four modifications listed above. If an LA
vessel fishes with two dredges at a time, both of which are less than
10.5 ft (3.2 m) in width, neither dredge is required to have the bump
out extension, even though the combined width of both dredges is
greater than 10.5 ft (3.2 m). The bump out exemption does not apply to
LAGC vessels that use dredges less than 10.5 ft (3.2 m) wide because
such vessels are exempted from the requirement to use a TDD entirely,
due to concerns of the financial burden that building a new dredge
would have on these small day boats, which may have lower IFQ
allocations. If an LAGC vessel fishes with two dredges, both of which
are less than 10.5 ft (3.2 m) wide, neither dredge is required to
comply with the TDD requirements, even though the combined width of
both dredges is greater than 10.5 ft (3.2 m).
Due to the time it will take manufacturers to develop TDDs for the
scallop fishery, this measure will be effective 1 year after the
effective date of Framework 23 (e.g., if Framework 23 is effective on
March 15, 2012, the TDD regulations would be effective on March 15,
2013, and TDDs would be required to be used starting May 1, 2013). This
delay also provides vessel operators and crew time to fish with the new
dredge design before the TDD season begins, should they choose to do
so.
This TDD requirement is an important measure to ensure compliance
with the second reasonable and prudent measure (RPM2) and
accompanying terms and conditions (T/C) of the 2008 Biological Opinion
(2008 Biological Opinion) on the Scallop FMP. RPM2 states that
``NMFS must continue to investigate and implement, as appropriate, gear
modifications for scallop dredge and trawl gear to reduce the capture
of sea turtles and/or the severity of the interactions that occur.''
Along with effort restrictions in the Mid-Atlantic, which are required
under the first RPM of the 2008 Biological Opinion, and previously
implemented regulations requiring the use of chain mate (50 CFR
223.206(d)(11)), TDDs are expected to provide an additional
conservation benefit to sea turtles by reducing the severity of any
interactions that occur.
Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs
1. Revised AM Closure Schedules
This action also revises the YTF seasonal closure AM schedules in
both GB and SNE/MA such that the closures will occur during months with
the highest YTF catch rates, rather than being in place for consecutive
months beginning at the start of the fishing year (FY). These AM
adjustments still only apply to LA vessels. Table 1 compares the
current SNE/MA AM schedule with the new Framework 23 schedule. The
major difference for SNE/MA is that the Framework 23 closure schedule
occurs in the early spring and winter first, rather than starting with
the spring and summer, as under the current AM for that stock area. AMs
will occur in the same FY, with the winter closures occurring at the
end of the FY.
Table 1--Comparison of Current SNE/MA AM Schedule and the Framework 23
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Current AM schedule Proposed
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Percent overage LA closure Percent overage LA closure
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1-2.................................. March.................. 2 or less.............. Mar-Apr.
3-5.................................. Mar-Apr................ 2.1-3.................. Mar-Apr, and Feb.
6-8.................................. Mar-May................ 3.1-7.................. Mar-May, and Feb.
9-12................................. Mar-June............... 7.1-9.................. Mar-May, and Jan-Feb.
13-14................................ Mar-July............... 9.1-12................. Mar-May, and Dec-Feb.
15................................... Mar-Aug................ 12.1-15................ Mar-June, and Dec-Feb.
16................................... Mar-Sept............... 15.1-16................ Mar-June, and Nov-Feb.
17................................... Mar-Oct................ 16.1-18................ Mar-July, and Nov-Feb.
18................................... Mar-Nov................ 18.1-19................ Mar-Aug, and Oct-Feb.
[[Page 20730]]
19................................... Mar-Jan................ 19.1 or more........... Mar-Feb.
20 and higher........................ Mar-Feb.
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Tables 2 and 3 compare the current GB AM schedules with the new
Framework 23 schedules. The GB AM schedule is still complex because the
extent of the closure period depends on whether or not Closed Area II
Scallop Access Area (CAII) is open in the FY following a GB sub-ACL
overage. In general, the major difference is that the current GB AM
closures begin in the fall, when GB YTF catch rates are highest,
followed by the winter months. The updated GB schedule will begin the
closures at a time of year when scallop meat weights are lowest, thus
impacts on the scallop resource and fishery should be lower compared to
closing the area beginning in March through the spring and summer when
scallop meat weights are larger. Similar to the Framework 23 SNE/MA
schedule, all closures will occur in the same FY.
Table 2--Comparison of Current GB AM Schedule and the Framework 23 Schedule for Years When CAII Is Open
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Current AM schedule Proposed
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Percent overage LA closure Percent overage LA closure
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1.................................... Mar-May................ 3 or less.............. Oct-Nov.
2-24................................. Mar-June............... 3.1-14................. Sept-Nov.
25-38................................ Mar-July............... 14.1-16................ Sept-Jan.
39-57................................ Mar-Aug................ 16.1-39................ Aug-Jan.
58-63................................ Mar-Sept............... 39.1-56................ Jul-Jan.
64-65................................ Mar-Oct................ Greater than 56........ Mar-Feb.
66-68................................ Mar-Nov.
69................................... Mar-Dec.
70 and higher........................ Mar-Feb.
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Table 3--Comparison of Current GB AM Schedule and the Framework 23 Schedule for Years When CAII Is Closed
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Current AM schedule Proposed
----------------------------------------------------------------------------------------------------------------
Percent overage LA closure Percent overage LA closure
----------------------------------------------------------------------------------------------------------------
1.................................... Mar-May................ 1.9 or less............ Sept-Nov.
2.................................... Mar-June............... 2.0-2.9................ Aug-Jan.
3.................................... Mar-July............... 3.0-3.9................ Mar, and Aug-Feb.
4-5.................................. Mar-Aug................ 4.0-4.9................ Mar, and Jul-Feb.
6 and higher......................... Mar-Feb................ 5.0-5.9................ Mar-May, and Jul-Feb.
6.0 or greater......... Mar-Feb.
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2. Re-Evaluating AM Determination Mid-Year
This action modifies the YTF AM regulations by allowing NMFS to re-
examine the implementation of an AM once the FY has ended and all data
are available. After the end of a given FY, if available end-of-year
data results in different projected YTF catch levels than those that
determined the initial announcement of any AM triggering (e.g., the
extent of the estimated overage was higher or lower than originally
estimated, or that an AM should or should not have been triggered),
NMFS will adjust the AM determination to reflect the best information
available. Currently the only sub-ACLs allocated to the scallop fishery
are for SNE/MA YTF and GB YTF, but the Council's intent is for this
flexibility to apply to any species' sub-ACL, should they be
implemented in the scallop fishery in the future.
On or around January 15 of each year, the Regional Administrator is
required to determine if the bycatch sub-ACLs are projected to be
exceeded for that FY. If a sub-ACL is exceeded, a closure will be
implemented in the following FY based on the overage schedule specified
in this final rule. Several months after an FY is complete, a final
estimate of YTF catch in the scallop fishery will be completed when all
observer and scallop catch data are available. The timing of the final
YTF year-end estimate is ultimately based on the availability of the
observer data for a given FY. Ideally, observer data in open areas will
be available 90 days after the completion of an observed trip. As such,
the earliest month that the complete FY observer data would be
available is likely June of the following FY. If the final estimate of
YTF catch differs from the original estimate, this action gives the
Regional Administrator the authority to revise the AM for the YTF sub-
ACLs based on the final estimates. Due to the timing of the current
AMs, there may not always be an opportunity to adjust AMs if the
seasonal closure has already occurred during that FY, but the intent is
to be more flexible to incorporate updated information when possible.
This action does not give the
[[Page 20731]]
Regional Administrator authority to impose AMs outside the scope of
approved measures.
In November 2011, the Council adopted Framework Adjustment 47
(Framework 47) to the Northeast (NE) Multispecies FMP. Under Framework
47, the YTF AMs applicable to the scallop fishery would only be
triggered if either the entire YTF ACL for a given stock area (SNE/MA
or GB) is exceeded, or the scallop fishery exceeds its ACL by 50
percent or more. For example, if the entire YTF ACL for SNE/MA is
exceeded in a given FY, and the scallop fishery exceeded its sub-ACL by
1.5 percent, an AM would be triggered for the following scallop FY
based on the new Framework 23 schedule (i.e., a portion of SNE/MA would
close in March and April). However, if the scallop fishery exceeded its
sub-ACL by 1.5 percent but the total ACL for SNE/MA was not exceeded,
no AM would be triggered in the scallop fishery for the following FY
(i.e., an AM would only be triggered if the scallop FY exceeded its
sub-ACL by 150 percent). The proposed rule for Framework 47 (77 FR
18179) published in the Federal Register on March 27, 2012, with the
public comment period ending on April 11, 2012. NMFS anticipates that
Framework 47, if approved, would be effective in May 2012.
Modifications to the NGOM Management Program
To address some concerns regarding the management of the NGOM, this
action allows federally permitted NGOM vessels to declare a state
waters-only trip within the NGOM and not have those landings applied to
the Federal NGOM TAC. If the vessel decides to fish exclusively in
state waters within the NGOM area (i.e., MA, NH, and ME state waters),
on a trip-by-trip basis, the scallop catch from state water only trips
will not be applied against the Federal NGOM TAC. On a trip-by-trip
basis, each NGOM vessel can decide which area it is going to fish in
(i.e., Federal or state NGOM trip). A NGOM vessel may still fish in
both state and Federal waters on a single trip, but that vessel will
need to declare a Federal trip before leaving, and the entire catch
from that trip will be applied to the Federal TAC, even if some of it
was harvested in state waters.
Currently, NGOM and IFQ vessels that declare NGOM trips must have
all landings applied to the Federal TAC, regardless of whether or not
they were fishing in state or Federal waters of the NGOM. Although this
action makes adjustments for NGOM-permitted vessels, the Council did
not include a similar provision for IFQ vessels that fish in the NGOM.
As a result, IFQ vessels will continue to have all of their landings
applied to the NGOM TAC, as well as their IFQ allocations, when fishing
in Federal or state waters within the NGOM.
Once the Federal TAC is closed, all federally permitted scallop
vessels (i.e., LA, IFQ, and NGOM) are prohibited from fishing in any
part of the NGOM until the next FY, unless they permanently relinquish
their Federal NGOM permits and fish exclusively in state waters. This
action does not change this provision for any scallop vessel, including
NGOM vessels. NGOM vessels cannot declare state-only NGOM trips after
the effective date of the Federal NGOM closure.
To date, the annual NGOM TAC of 70,000 lb (31.75 mt) has not been
fully harvested in any FY, and most NGOM landings come from vessels
fishing in state waters. Framework 23 does not change the NGOM hard TAC
of 70,000 lb (31.75 mt). The Council will reevaluate the NGOM TAC in
the next framework adjustment that will set the specifications for FYs
2013 and 2014.
Although this action applies to all NGOM permitted vessels, the
ability for such vessels to fish in state waters within the NGOM (i.e.,
ME, NH, MA state waters) depends on whether or not such vessels have
the necessary state permits to do so. In addition, NGOM permit holders
still have to abide by the more restrictive possession limit of either
their state or Federal NGOM scallop permit. This action does not exempt
vessels from their Federal possession limit when fishing in state
waters of the NGOM. To be exempt from Federal scallop possession
limits, a state would have to apply for such exemption through the
scallop state waters exemption program.
Adjustments to VMS Trip Notifications for Scallop Vessels
This action implements a measure that changes the current VMS trip
declaration requirement for scallop vessels only, allowing them to
declare a scallop trip anywhere shoreward of the VMS Demarcation Line,
rather than from a designated port. Under current regulations, vessels
that are involved in VMS fisheries (e.g., vessels with scallop,
monkfish, multispecies, surfclam/quahog, and herring permits) must make
their VMS trip declarations from inside a port. This action adjusts
this process by allowing scallop vessels the authority to declare their
scallop trips outside of a designated port, prior to crossing the VMS
Demarcation Line and fishing, but does not change the trip declaration
requirements for any other fishery. The Council's rationale for this
alternative is to improve safety by eliminating the requirement that
sometimes results in scallop vessels steaming into unfamiliar ports to
declare their scallop trips before being able to fish. The Council may
choose to address this issue in other VMS fisheries in future actions
for those FMPs, and NMFS recommends that the Council discuss this
further for other FMPs in order to be consistent, where possible, when
addressing safety issues across all fisheries requiring VMS.
The Council has implemented this action for LA, LAGC IFQ, and LAGC
NGOM vessels, although many of these scallop-permitted vessels will
likely continue to declare from port, regardless of the option to do
otherwise. The only vessels that will likely take advantage of this
increased flexibility in trip declarations are the LA vessels declaring
scallop DAS trips for fishing grounds that are far from their home
port. These trips are what most commonly require a vessel to go into an
unfamiliar port to declare into the DAS program because DAS begin to
accrue once a vessel crosses to the seaward side of the VMS Demarcation
Line and it is not possible, safe, or practicable to remain inside the
VMS Demarcation Line throughout the steam to the fishing grounds.
Because the current estimate of landings-per-unit-effort (LPUE) is
calculated using DAS charged, this action does not change how LPUE is
estimated, and increased catch is not expected.
Other Clarifications and Modifications
This action includes several revisions to the regulatory text to
address text that is duplicative and unnecessary, outdated, unclear, or
otherwise could be improved through revision. For example, there are
terms and cross references in the current regulations that are now
inaccurate due to the regulatory adjustments made through Amendment 15
rulemaking (i.e., references to ``TAC'' in some cases should now refer
to ``annual catch limits (ACLs)''). NMFS revises the regulations to
clarify the terminology intended by Amendment 15 to the FMP (76 FR
43746, July 21, 2011), and to provide more ease in locating these
regulations by updating cross references.
This action also clarifies the intent of certain regulations. For
example, the VMS regulations are clarified in Sec. 648.10 to more
clearly indicate the reporting requirements for various aspects of the
scallop fishery (e.g., pre-landing notification requirements and state
water exemption trip declaration requirements), to reflect the
instructions
[[Page 20732]]
currently available through on-board VMS units. Additionally, there are
currently prohibitions in Sec. 648.14 that imply that NGOM and
incidental scallop vessels may retain more scallops than their
allowable possession limit if they are assigned industry-funded
observers during scallop trips. This text is unnecessary and confusing,
because NGOM and incidental scallop vessels are not part of the scallop
industry-funded observer program, and therefore would not be assigned
such observers. As such, NMFS removes these references from the
regulations. NMFS also clarifies how LAGC vessels are charged fees by
observer providers in Sec. 648.14, since such an explanation exists
for LA vessels. A restriction on transferring IFQ in Sec.
648.53(h)(5)(iii) is also clarified to allow vessels to complete
multiple IFQ transfers during the course of a FY, as long as the
transfers are for a portion of the IFQ and do not exceed the total
yearly allocation. NMFS received some applications for permanent
transfers of 100 percent of a vessel's IFQ in the same FY that IFQ was
already leased from the same vessel. While this activity remains
prohibited because transfers of allocation percentage is effectively a
transfer of pounds, the restriction was not intended to prevent someone
from completing multiple transfers of portions of their IFQ. As a
result, the regulations are clarified to indicate that such multiple
IFQ transfers are possible during a single FY.
NMFS also removes outdated text regarding LAGC quarterly TACs,
which ceased to exist after the IFQ program was implemented in FY 2010,
and references to the CAII rotational management schedule, which was
intended to be removed in the rulemaking for Framework 22, along with
the schedules for the other GB access areas. NMFS makes these changes
consistent with section 305(d) of the Magnuson-Stevens Act.
NMFS also changes, pursuant to its authority under section 305(d)
of the Magnuson-Stevens Act, the coordinates of the Closed Area I (CAI)
access area and the CAI North and South essential fish habitat (EFH)
areas. These coordinates were initially developed through Framework 16
to the FMP (69 FR 63460, November 2, 2004) and were implemented through
Amendment 15 for FY 2011. During the course of FY 2011, vessels fishing
in the CAI access area discovered that the new coordinates for the
access area created a western boundary that is \1/4\ of a mile (0.4 km)
to the east of the CAI western boundary, described in Sec.
648.81(a)(1) as the line extending between the points CI1 (41[deg]30' N
lat.; 69[deg]23' W long.) and CI2 (40[deg]45' N lat.; 68[deg]45' W
long.). However, the access area was designed to cover the whole middle
portion of CAI and extend out to the CAI western boundary. In reviewing
the coordinates, NMFS found that the western coordinates for the CAI
access area were established using imprecise matching of coordinates to
the CAI western boundary line. NMFS updates these coordinates in the
regulations to extend the western boundary of CAI. To avoid any
confusion on intent, in the case that various mapping software used by
the industry or NOAA's Office of Law Enforcement provide slightly
different results, NMFS also clarifies that the western boundary of the
CAI access area is the same as the western boundary of CAI that lies
between the two western-most coordinates of the CAI access area. Since
these two coordinates also are included in the coordinates of the CAI
North and CAI South EFH closed areas, NMFS changes those EFH area
coordinates as well.
Finally, although this does not affect the current regulations,
NMFS clarifies an error in table 3 of the final rule to Framework 22
(76 FR 43774; July 21, 2011). The scallop sub-ACL values of YTF in GB
and SNE/MA were mistakenly reversed in this table and should have
stated that the FY 2011 sub-ACLs in GB and SNE/MA are 200.8 mt and 82
mt, respectively, and the FY 2012 sub-ACLs in GB and SNE/MA are 307.5
mt and 127 mt, respectively. The regulations already indicate the
correct values for these FYs, so this action makes no regulatory
changes due to this error.
Comments and Responses
NMFS received three comment letters in response to the proposed
rule from: A representative from Nordic Fisheries, a family-owned
company that runs out of New Bedford, MA; the Fisheries Survival Fund
(FSF), writing on behalf of full-time limited access scallop fleet
members; and Oceana, a non-profit organization focused on ocean-related
environmental issues. Six relevant issues relating to the proposed
Framework 23 measures were raised; responses are provided below. NMFS
may only approve, disapprove, or partially approve measures in
Framework 23, 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: A representative of Nordic Fisheries generally supports
the proposed measures in Framework 23, but commented that the final
rule should mention that the TDD requirement meets RPM2 and
associated T/C of the 2008 Biological Opinion as an appropriate gear
modification for a scallop dredge to reduce the capture of sea turtles.
Response 1: Based on its Endangered Species Act Section 7
consultation on the proposed Framework 23 measures, NMFS agrees that
the TDD measures support the RPM2 and T/C2 of the
2008 Biological Opinion and has stated this in the preamble to this
final rule.
Comment 2: FSF commented in support of the proposed measures, and
expressed their satisfaction with industry, Council, and NMFS
coordination on regulatory language describing the TDD requirement.
However, FSF continue to note their opinion that the TDD requirement
should remove the need for ``area closures and other fishery
restrictions implemented as RPMs for the scallop fishery.''
Response 2: The RPMs and implementing T/Cs included in a Biological
Opinion are non-discretionary actions that must be implemented. The
2008 Biological Opinion included a number of RPMs to minimize
incidental take of sea turtles, including RPMs that are both gear-based
and effort-based. NMFS assumes that FSF's comment regarding ``area
closures and other fishery restrictions'' refers to the effort-based
RPM, RPM1, which requires that NMFS limit the amount of
allocated scallop fishing effort that can be used in the Mid-Atlantic
during the time of year when sea turtle distribution overlaps with
scallop fishing activity. The gear-based RPM (RPM2) requires
that NMFS continue to investigate and implement, as appropriate,
scallop gear modifications to reduce the capture of sea turtles and/or
the severity of the interactions that occur. These two RPMs are
distinct from one another: The TDD meets the requirements of gear-based
RPM2, but that does not change the fact that RPM1
must still be implemented. The current RPMs will be revisited when
formal Section 7 consultation on the Scallop FMP is reinitiated and a
new Biological Opinion is prepared, at which time all changes in the
operation of the fishery that have occurred since the previous
consultation in 2008 will be examined.
Comment 3: FSF also expressed concern that the yellowtail flounder
AMs should not be implemented the subsequent year of an overage, but
rather should be implemented in Year 3 (i.e., if the overage occurs in
2011, the accountability measure should be implemented in 2013). FSF
noted that if
[[Page 20733]]
the estimation of yellowtail flounder bycatch is completed before the
end of the fishing year, it is unlikely that all of the data will be
accounted for in the mid-year projection. Since the scallop fleet is
more active in the beginning of the fishing year, FSF commented that
the bycatch rate is not likely to be accurate and will have to be
adjusted mid-year, which could potentially lead to adverse consequences
to the scallop fleet.
Response 3: NMFS recognizes that the subsequent-year AMs are a
concern to the industry, and is generally supportive of the Council
considering modifications to the year the YTF AM in the scallop fishery
would be implemented. However, as the preamble to the proposed rule for
this action states, the measures in Framework 23 regarding YTF AMs do
not give the Regional Administrator the authority to impose AMs outside
the scope of the Council's approved measures. Neither Amendment 15 nor
Framework 23 adopted measures to include Year 3 YTF AMs in the scallop
fishery. However, the Council recently included such a measure to be
considered in Framework Adjustment 24 (Framework 24) to the Scallop
FMP, which is in the early stages of development.
Comment 4: FSF also discussed the need to revisit imposing YTF AMs
on the LAGC fleet.
Response 4: NMFS agrees and continues to work with the Council on
upcoming actions to address the LAGC fleet with regard to YTF AMs in
the scallop fishery. The Council intends to address this issue in
Framework 24.
Comment 5: Oceana commented in general support of Framework 23
measures, but specifically recommended changes to the proposed TDD
measures. Oceana believes that the TDD should be implemented in the
summer of 2012 and that the delay to 2013 is unnecessary and
unsupported. Oceana also commented that the TDD should be required for
a longer timeframe and should apply to all scallop vessels, but did not
offer any argument to why the proposed measures are not sufficient.
Response 5: When implementing gear modifications such as TDD, NMFS
must take into account the amount of time it will take for the industry
to come into compliance with the new requirement. The scallop industry
stated during development of Framework 23 measures that gear
manufacturers would not be able to make enough dredges in time for
everyone to come into compliance during the 2012 season. It is
therefore not reasonable to require the gear until 2013. The Council
considered an alternative that would have required all scallop vessels
to adhere to the TDD requirement, but ultimately did not adopt that
measure due to concerns that requiring TDDs on smaller LAGC vessels may
not be economically feasible. Although sea turtle interactions in the
Mid-Atlantic scallop fishery may occur in November when TDDs are not
required, the adopted timeframe of May through October is still
expected to have positive impacts on sea turtles. This time period
includes all the months when observed takes have occurred in the
scallop dredge fishery (June through October), and also includes May to
account for the fact that turtles are expected to be in that area based
upon best available data. In addition, although the TDD requirement is
for vessels to use this gear for 6 months, it is likely that many
vessels will choose to use this gear for longer time periods, perhaps
even year-round (i.e., If they fish in the Mid-Atlantic primarily and
do not want to bother switching back to the standard commercial dredge
after the TDD timeframe). Therefore, the timeframe is reasonably
expected to have the intended benefit for sea turtles without unduly
restricting scallop vessels, and is consistent with the 2008 Biological
Opinion.
Comment 6: Oceana also commented that NMFS should analyze annually
the effectiveness of the TDD and promote future research to monitor its
impacts on the fishery and sea turtle interactions. In addition, Oceana
requested that Framework 23 implement a requirement for the Limited
Access bottom trawl fleet to use Turtle Excluder Devices (TED).
Independent of Framework 23, NMFS is considering measures to address
sea turtle takes in the Mid-Atlantic trawl fisheries.
Response 6: Analyzing the TDDs effectiveness is a requirement of
the 2008 Biological Opinion. As such, we intend on continuing to
evaluate the effectiveness of gear modifications used in the scallop
fishery and other measures designed to protect sea turtles, as needed.
Oceana's request to implement a TED requirement for the LA bottom trawl
fleet was not proposed by Framework 23 and, therefore, is beyond the
scope and purpose of this action.
Changes From Proposed Rule to Final Rule
In Sec. 648.14(i)(2)(ii)(B)(3) and Sec. 648.51(b)(5)(ii), the TDD
regulations were clarified to indicate that the TDD will not be
required until May 1, 2013.
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 Office of Management and Budget has determined that this rule
is not significant according to Executive Order 12866.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has completed a final regulatory flexibility analysis (FRFA) in
support of Framework 23 in this final rule. The FRFA consists of and
incorporates the IRFA, the relevant analyses and summaries thereof
prepared for Framework 23, and the following discussion. This FRFA
describes the economic impact that this final rule, along with non-
adopted alternatives, will have on small entities. A copy of the IRFA,
the RIR, and the EA are available upon request (see ADDRESSES).
Statement of Objective and Need
This action implements four specific management measures applicable
to the scallop fishery for FY 2012 and beyond. A description of the
action, why it is being considered, and the legal basis for this action
are contained in Framework 23 and in the preambles of the proposed and
final rules, and are not repeated here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
No public comments were received in response to the IRFA summary in
the proposed rule or the economic impacts of these measures more
generally on small businesses. Summaries of the public comments and
NMFS' responses are provided in the ``Comments and Responses'' section
of this final rule.
Description and Estimate of Number of Small Entities to Which the Rule
Would Apply
For the purposes of the RFA, the Small Business Administration
(SBA) defines a small business entity in any fish-harvesting or
hatchery business as a firm that is independently owned and operated
and not dominant in its field of operation (including its affiliates),
with receipts of up to $4 million annually. All of the vessels in the
Atlantic sea scallop fishery are considered small business entities
because all of them grossed less than $3 million according to the
dealer's data for
[[Page 20734]]
FYs 1994 to 2010. In FY 2010, total average revenue per full-time
scallop vessel was just over $1.2 million, and total average scallop
revenue per LAGC vessel was just under $120,000. The IRFA for this and
prior Scallop FMP actions do not consider individual entity ownership
of multiple vessels. More information about common ownership is being
gathered, but the effects of common ownership relative to small versus
large entities under the RFA is still unclear and will be addressed in
future analyses.
The Office of Advocacy at the Small Business Association (SBA)
suggests two criteria to consider in determining the significance of
regulatory impacts; namely, disproportionality and profitability. The
disproportionality criterion compares the effects of the regulatory
action on small versus large entities (using the SBA-approved size
definition of ``small entity''), not the difference between segments of
small entities. Because Framework 23 estimates that no individual
vessel grosses more than $3 million in any FY from 1994 through 2010,
all permit holders in the sea scallop fishery were considered small
business entities for the purpose of this analysis. Therefore, it is
not necessary to perform the disproportionality assessment to compare
the effects of the regulatory actions on small versus large entities. A
summary of the economic impacts relative to the profitability criterion
is provided below.
The measures contained in this final rule affect vessels with LA
and LAGC scallop permits. The Framework 23 document from the Council
provides extensive information on the number and size of vessels and
small businesses that would be affected by the proposed regulations, by
port and state. There were 313 vessels that obtained full-time LA
permits in 2010, including 250 dredge, 52 small-dredge, and 11 scallop
trawl permits. In the same year, there were also 34 part-time (i.e.,
vessels that receive annual scallop allocations that are 40 percent of
what is allocated to full-time vessels, based on the permit eligibility
criteria established through Amendment 4 to the Scallop FMP) LA permits
in the sea scallop fishery. No vessels were issued occasional scallop
permits (i.e., vessels that receive annual scallop allocations that are
8.33 percent of what is allocated to full-time vessels, based on the
permit eligibility criteria established through Amendment 4 to the
Scallop FMP). In FY 2010, the first year of the LAGC IFQ program, 333
active IFQ (including IFQ permits issued to vessels with a LA scallop
permit), 122 NGOM, and 285 incidental catch permits were issued. Since
all scallop permits are limited access, vessel owners only cancel
permits if they decide to stop fishing for scallops on the permitted
vessel permanently. This is likely to be infrequent due to the value of
retaining the permit. As such, the number of scallop permits could
decline over time, but the decline would likely be less than 10 permits
per year.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action contains no new collection-of-information, reporting,
or recordkeeping requirements. It does not duplicate, overlap, or
conflict with any other Federal law.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
A summary of the economic impacts of adopted and alternative
measures is provided below. A detailed analysis of the economic impacts
can be found in Section 5.4 of the Framework 23 document (see
ADDRESSES). All economic values are presented in terms of 2010 dollars.
In summary, in the short-term, the aggregate economic impact of
this action on small businesses could range from a low negative to low
positive, depending on the extent that positive impacts of the measures
outweigh the costs of TDD requirement. These measures are not expected
to have significant impacts on the viability of the vessels, especially
in a highly profitable industry like the scallop fishery. Over the
long-term, Framework 23 is expected to have positive economic impacts
for the participants of the scallop fishery and related businesses.
This action is not expected to have a considerable adverse impact on
the net revenues and profits of the majority of the scallop vessels in
the short and the medium term.
Economic Impacts of the Final Action
The following describes all of the alternatives considered by the
Council.
1. Requirement To Use a TDD
This action implements a requirement for some scallop vessels to
use a TDD from May 1 through October 31 in waters west of 71[deg] W
long. This requirement is applicable to all LA vessels (regardless of
permit category or dredge size) and to those LAGC vessels that fish
with a dredge(s) that has a width of 10.5 ft (3.2 m) or greater. The
Council estimates that the cost of a new dredge plus the cost of
freight would be about $5,000 for a standard dredge, and $2,500 to
$3,000 for smaller dredges. The cost of buying a dredge and the freight
cost will be a very small proportion (1 to 2 percent) of the average
scallop revenues per LA vessel, even when the maximum estimate of costs
is used. For an average LAGC vessel that uses only one dredge, the cost
could be small, as well, amounting to about 2 percent of scallop
revenue. Alternatively, for some vessels that use two dredges, the cost
of buying and installing the dredges could be higher. Some of these
vessels could choose to fish during times and in areas for which a TDD
is not required.
The Council considered two other alternatives regarding which
vessels would be required to use a TDD: One would have required the TDD
for all LA vessels and no LAGC vessels, and thus would not have any
adverse impacts on the LAGC IFQ vessels. The other non-selected
alternative would have required the use of TDD for all vessels,
including all LA and LAGC IFQ vessels, and would have had negative
impacts on some LAGC IFQ vessels that use smaller dredges. There are
some short-term costs associated with buying and installing TDDs under
all alternatives, but these costs are not large and are not expected to
have adverse impacts on the financial viability of small business
entities. Indirect positive economic benefits over the medium to long
term are expected to outweigh these costs under the adopted measure,
particularly because it exempts LAGC vessels that use small dredges.
The option to have the TDD be required west of 71[deg] W long.
covers the majority of areas the scallop fishery and expected turtle
interactions in the Mid-Atlantic overlap and excludes GB, where
interactions with turtles are rare. This adopted measure minimizes the
economic impacts for scallop vessels that fish solely in GB east of
71[deg] W long. and those that fish in the Gulf of Maine. The adopted
measure exempts LAGC vessels with dredges less than 10.5 ft (3.2 m) in
width from TDD requirement, mitigating some of these negative impacts
on the smaller boats fishing in those areas. The only other location
option related to the TDD requirement was the area used to set effort
limitations in Framework 22, which is the greatest area of overlap in
the
[[Page 20735]]
distribution of scallop fishing gear and sea turtles, with the
exception of waters due south of Rhode Island. Thus, the adopted
location option excludes those areas that LAGC vessels are active, and
minimizes the negative economic impacts of TDD requirement on those
vessels. Exempting LAGC vessels that use a dredge less than 10.5 ft
(3.2 m) wide mitigates the impacts of the adopted boundary option and
minimizes the differences between the impacts of the two location
options considered.
Based on research indicating that using a TDD is not expected to
have negative impacts on scallop landings, the season for the TDD
requirement will probably have marginal economic impacts on the fishery
overall. LA vessels are unlikely to change dredges during the year,
once they are required to operate with a TDD during a part of the year.
Therefore, the relative difference between the adopted season option
(May 1 through October 31) and other non-selected options (i.e., May 1
through November 1, or June 1 through October 31) is likely to have
only negligible impacts on these vessels. The difference between the
season options could impact LAGC IFQ vessels relatively more than the
LA vessels, but exempting LAGC IFQ vessels that use dredges less than
10.5 ft (3.2 m) wide prevents the adopted measure from negatively
affecting smaller vessels. The increase in costs could also be
minimized to some degree by leasing quota to LAGC IFQ vessels that fish
in other areas. The shortest season considered by the Council (June
through October) would have had the least impacts, and the longest
considered season option (May through November) would have had the
largest impact on vessels. The adopted season option maximizes the
benefits of reducing the impacts on turtles, while not impacting a
large proportion of scallop landings.
The adopted implementation date of the TDD requirements, 1 year
after Framework 23 is implemented (i.e., May 2013, if Framework 23 is
implemented in March 2012), allows manufacturers enough time to build
dredges and gives vessels time to fish with the new dredge before the
TDD requirement begins. A shorter period for implementation, such as
the non-selected options for 90 days and 180 days after Framework 23's
implementation, would not be feasible because so many dredges need to
be built and it may not be possible to have all dredges manufactured in
time. Overall, there are no other alternatives that would generate
higher economic benefits for the participants of the scallop fishery.
2. Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs
This action revises the YTF seasonal closure AM schedules in both
GB and SNE/MA such that the closures will be during months with the
highest YTF catch rates when an overage occurs, rather than beginning
at the start of the FY and running for consecutive months under No
Action. Overall, these modifications are not expected to have large
impacts on scallop vessels, given that only a small percentage of LA
scallop landings took place in those areas. Because the revised closure
schedules include the winter months, they will shift effort to seasons
when the meat weights are larger, benefiting the scallop resource and
increasing landings and overall economic benefits for the scallop
vessels in the medium to long term. There are no other alternatives
that would generate higher economic benefits for the participants of
the scallop fishery.
The action to re-evaluate the AM determination mid-year, thus
allowing for more flexibility in determining the appropriate AM
seasonal closure length, is positive for LA scallop vessels compared to
No Action. Although adjusting the FY to which the AMs would apply could
result in higher benefits to the scallop fishery (e.g., if YTF AMs were
triggered the year after the overage occurred), these measures were not
considered by the Council and can be re-examined in a future framework
action. Thus, given the two alternatives considered by the Council, the
selected action generates the higher economic benefits for the
participants of the scallop fishery.
3. Modifications to the NGOM Management Program
This action allows all vessels with a Federal NGOM permit to fish
exclusively in state waters, on a trip-by-trip basis, without the
scallop catch from exclusive state water trips counted against the
Federal NGOM TAC. This change is not expected to have any significant
impacts under the current resource conditions on landings and revenues
from this area. However, if the scallop resource abundance and landings
within the State of Maine's waters increase in the future, this action
could prevent a reduction in landings from federally permitted NGOM
vessels fishing in the NGOM. This action could potentially have
positive economic impacts on the vessels that fish both in the state
and Federal waters. In addition, this action will keep the Federal NGOM
hard-TAC at 70,000 lb (31.74 mt), which will have a positive economic
impact on the participants of the NGOM scallop fishery. The only other
TAC alternative would have lowered the Federal TAC to 31,000 lb (14.06
mt) to prevent excess fishing in the NGOM above potentially sustainable
levels. Although the selected TAC alternative, if continued over the
long-term, could result in reduced landings and revenues for the NGOM
fishery if effort in Federal waters increases substantially, given the
present lack of effort in the Federal portion of the NGOM, it is
unlikely that keeping the TAC at this level will cause near-term
problems. In addition, the Council will re-evaluate the NGOM TAC in the
next framework adjustment that will set the specifications for FYs 2013
and 2014. Thus, there are no alternatives that would generate higher
economic benefits for the participants of the scallop fishery.
4. Change to When a Scallop Trip Can Be Declared Through VMS
This action allows a vessel to declare into the scallop fishery
shoreward of the VMS Demarcation Line rather than from a designated
port, enabling the vessel to reduce steaming time to scallop fishing
grounds and decease its fuel and oil costs. Therefore, this
modification will have positive economic impacts on scallop vessels and
small business entities. The only other alternative considered by the
Council was No Action and, as such, there are no alternatives that
would generate higher economic benefits for the participants of the
scallop fishery.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency will publish
one or more guides to assist small entities in complying with the rule,
and will designate such publications as ``small entity compliance
guides.'' The agency will explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
a small entity compliance guide (the guide) was prepared. Copies of
this final rule are available from the Northeast Regional Office, and
the guide (i.e., permit holder letter) will be sent to all holders of
permits for the scallop fishery and available online. The guide and
this final rule will be available upon request.
[[Page 20736]]
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: April 2, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.10, paragraphs (e)(5)(i), (e)(5)(ii), (f) introductory
text, (f)(1), (f)(2), (f)(3), (f)(4)(ii), (f)(5)(i)(A), (g)(1), (h)(1)
introductory text, and (h)(8) are revised, and (g)(3)(iii) is added to
read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owner/operators.
* * * * *
(e) * * *
(5) * * *
(i) A vessel subject to the VMS requirements of Sec. 648.9 and
paragraphs (b) through (d) of this section that has crossed the VMS
Demarcation Line under paragraph (a) of this section is deemed to be
fishing under the DAS program, the Access Area Program, the LAGC IFQ or
NGOM scallop fishery, or other fishery requiring the operation of VMS
as applicable, unless prior to leaving port, the vessel's owner or
authorized representative declares the vessel out of the scallop, NE
multispecies, or monkfish fishery, as applicable, for a specific time
period. NMFS must be notified by transmitting the appropriate VMS code
through the VMS, or unless the vessel's owner or authorized
representative declares the vessel will be fishing in the Eastern U.S./
Canada Area, as described in Sec. 648.85(a)(3)(ii), under the
provisions of that program.
(ii) Notification that the vessel is not under the DAS program, the
Access Area Program, the LAGC IFQ or NGOM scallop fishery, or any other
fishery requiring the operation of VMS, must be received by NMFS prior
to the vessel leaving port. A vessel may not change its status after
the vessel leaves port or before it returns to port on any fishing
trip, unless the vessel is a scallop vessel and is exempted, as
specified in paragraph (f) of this section.
* * * * *
(f) Atlantic sea scallop vessel VMS notification requirements. Less
than 1 hr prior to leaving port, the owner or authorized representative
of a scallop vessel that is required to use VMS as specified in
paragraph (b)(1) of this section must notify the Regional Administrator
by transmitting the appropriate VMS code that the vessel will be
participating in the scallop DAS program, Area Access Program, LAGC
scallop fishery, or will be fishing outside of the scallop fishery
under the requirements of its other Federal permits, or that the vessel
will be steaming to another location prior to commencing its fishing
trip by transmitting a ``declared out of fishery'' VMS code. If the
owner or authorized representative of a scallop vessel declares out of
the fishery for the steaming portion of the trip, the vessel cannot
possess, retain, or land scallops, or fish for any other fish. Prior to
commencing the fishing trip following a ``declared out of fishery''
trip, the owner or authorized representative must notify the Regional
Administrator by transmitting the appropriate VMS code, before first
crossing the VMS Demarcation Line, that the vessel will be
participating in the scallop DAS program, Area Access Program, or LAGC
scallop fishery. VMS codes and instructions are available from the
Regional Administrator upon request.
(1) IFQ scallop vessels. An IFQ scallop vessel that has crossed the
VMS Demarcation Line specified under paragraph (a) of this section is
deemed to be fishing under the IFQ program, unless prior to the vessel
leaving port, the vessel's owner or authorized representative declares
the vessel out of the scallop fishery (i.e., agrees that the vessel
will not possess, retain, or land scallops while declared out of the
fishery) by notifying the Regional Administrator through the VMS. If
the vessel has not fished for any other fish (i.e., steaming only),
after declaring out of the fishery, leaving port, and steaming to
another location, the owner or authorized representative of an IFQ
scallop vessel may declare into the IFQ fishery without entering
another port by making a declaration before first crossing the VMS
Demarcation Line. An IFQ scallop vessel that is fishing north of
42[deg]20' N. lat. is deemed to be fishing under the NGOM scallop
fishery unless prior to the vessel leaving port, the vessel's owner or
authorized representative declares the vessel out of the scallop
fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section,
and the vessel does not possess, retain, or land scallops while under
such a declaration. After declaring out of the fishery, leaving port,
and steaming to another location, if the IFQ scallop vessel has not
fished for any other fish (i.e., steaming only), the vessel may declare
into the NGOM fishery without entering another port by making a
declaration before first crossing the VMS Demarcation Line.
(2) NGOM scallop fishery. A NGOM scallop vessel is deemed to be
fishing in Federal waters of the NGOM management area and will have its
landings applied against the NGOM management area TAC, specified in
Sec. 648.62(b)(1), unless:
(i) Prior to the vessel leaving port, the vessel's owner or
authorized representative declares the vessel out of the scallop
fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section,
and the vessel does not possess, retain, or land scallops while under
such a declaration. After declaring out of the fishery, leaving port,
and steaming to another location, if the NGOM scallop vessel has not
fished for any other fish (i.e., steaming only), the vessel may declare
into the NGOM fishery without entering another port by making a
declaration before first crossing the VMS Demarcation Line.
(ii) The vessel has specifically declared into the state-only NGOM
fishery, thus is fishing exclusively in the state waters portion of the
NGOM management area.
(3) Incidental scallop fishery. An Incidental scallop vessel that
has crossed the VMS Demarcation Line on any declared fishing trip for
any species is deemed to be fishing under the Incidental scallop
fishery.
* * * * *
(4) * * *
(ii) Scallop Pre-Landing Notification Form for IFQ and NGOM
vessels. Using the Scallop Pre-Landing Notification Form, a vessel
issued an IFQ or NGOM scallop permit must report through VMS the amount
of any scallops kept on each trip declared as a scallop trip, including
declared scallop trips where no scallops were landed. In addition,
vessels with an IFQ or NGOM permit must submit a Scallop Pre-Landing
Notification Form on trips that are not declared as scallop trips, but
on which scallops are kept incidentally. A limited access vessel that
also holds an IFQ or NGOM permit must submit the Scallop Pre-Landing
Notification Form only when fishing under the provisions of the
vessel's IFQ or NGOM permit. VMS Scallop Pre-Landing Notification forms
must be submitted no less than 6 hr prior to crossing the VMS
Demarcation Line on the way back to port, and, if scallops will be
landed, must include the vessel's captain/operator name, the
[[Page 20737]]
amount of scallop meats and/or bushels to be landed, the estimated time
of arrival in port, the port at which the scallops will be landed, the
VTR serial number recorded from that trip's VTR, and whether any
scallops were caught in the NGOM. If the scallop harvest ends less than
6 hr prior to landing, then the Scallop Pre-Landing Notification form
must be submitted immediately upon leaving the fishing grounds. If no
scallops will be landed, the form only requires the vessel's captain/
operator name, the VTR serial number recorded from that trip's VTR, and
indication that no scallops will be landed. If the report is being
submitted as a correction of a prior report, the information entered
into the notification form will replace the data previously submitted
in the prior report.
(5) * * *
(i) * * *
(A) Notify the Regional Administrator, via their VMS, prior to each
trip of the vessel under the state waters exemption program, that the
vessel will be fishing exclusively in state waters; and
* * * * *
(g) * * *
(1) Unless otherwise specified in this part, or via letters sent to
affected permit holders under paragraph (e)(1)(iv) of this section, the
owner or authorized representative of a vessel that is required to use
VMS, as specified in paragraph (b) of this section, unless exempted
under paragraph (f) of this section, must notify the Regional
Administrator of the vessel's intended fishing activity by entering the
appropriate VMS code prior to leaving port at the start of each fishing
trip.
* * * * *
(3) * * *
(iii) The vessel carries onboard a valid limited access or LAGC
scallop permit, has declared out of the fishery in port, and is
steaming to another location, pursuant to paragraph (f) of this
section.
* * * * *
(h) * * *
(1) Less than 1 hr prior to leaving port, for vessels issued a
limited access NE multispecies DAS permit or, for vessels issued a
limited access NE multispecies DAS permit and a limited access monkfish
permit (Category C, D, F, G, or H), unless otherwise specified in
paragraph (h) of this section, or an occasional scallop permit as
specified in this paragraph (h), and, prior to leaving port for vessels
issued a limited access monkfish Category A or B permit, the vessel
owner or authorized representative must notify the Regional
Administrator that the vessel will be participating in the DAS program
by calling the call-in system and providing the following information:
* * * * *
(8) Regardless of whether a vessel's owner or authorized
representative provides correct notification as required by paragraphs
(e) through (h) of this section, a vessel meeting any of the following
descriptions shall be deemed to be in its respective fishery's DAS or
Scallop Access Area Program for the purpose of counting DAS or scallop
access area trips/pounds, and, shall be charged DAS from the time of
sailing to landing:
(i) Any vessel issued a limited access scallop permit and not
issued an LAGC scallop permit that possesses or lands scallops;
(ii) A vessel issued a limited access scallop and LAGC IFQ scallop
permit that possesses or lands more than 600 lb (272.2 kg) of scallops,
unless otherwise specified in Sec. 648.60(d)(2);
(iii) Any vessel issued a limited access scallop and LAGC NGOM
scallop permit that possesses or lands more than 200 lb (90.7 kg) of
scallops;
(iv) Any vessel issued a limited access scallop and LAGC IC scallop
permit that possesses or lands more than 40 lb (18.1 kg) of scallops;
(v) Any vessel issued a limited access NE multispecies permit
subject to the NE multispecies DAS program requirements that possesses
or lands regulated NE multispecies, except as provided in Sec. Sec.
648.10(h)(9)(ii), 648.17, and 648.89; and
(vi) Any vessel issued a limited access monkfish permit subject to
the monkfish DAS program and call-in requirement that possesses or
lands monkfish above the incidental catch trip limits specified in
Sec. 648.94(c).
* * * * *
0
3. In Sec. 648.11, paragraphs (g)(1) and (g)(5)(i)(A) are revised to
read as follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(g) * * *
(1) General. Unless otherwise specified, owners, operators, and/or
managers of vessels issued a Federal scallop permit under Sec.
648.4(a)(2), and specified in paragraph (a) of this section, must
comply with this section and are jointly and severally responsible for
their vessel's compliance with this section. To facilitate the
deployment of at-sea observers, all sea scallop vessels issued limited
access permits fishing in open areas or Sea Scallop Access Areas, and
LAGC IFQ vessels fishing under the Sea Scallop Access Area program
specified in Sec. 648.60, are required to comply with the additional
notification requirements specified in paragraph (g)(2) of this
section. When NMFS notifies the vessel owner, operator, and/or manager
of any requirement to carry an observer on a specified trip in either
an Access Area or Open Area as specified in paragraph (g)(3) of this
section, the vessel may not fish for, take, retain, possess, or land
any scallops without carrying an observer. Vessels may only embark on a
scallop trip in open areas or Access Areas without an observer if the
vessel owner, operator, and/or manager has been notified that the
vessel has received a waiver of the observer requirement for that trip
pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.
* * * * *
(5) * * *
(i) * * *
(A) Access Area trips. (1) For purposes of determining the daily
rate for an observed scallop trip on a limited access vessel in a Sea
Scallop Access Area when that specific Access Area's observer set-aside
specified in Sec. 648.60(d)(1) has not been fully utilized, a service
provider may charge a vessel owner for no more than the time an
observer boards a vessel until the vessel disembarks (dock to dock),
where ``day'' is defined as a 24-hr period, or any portion of a 24-hr
period, regardless of the calendar day. For example, if a vessel with
an observer departs on July 1 at 10 p.m. and lands on July 3 at 1 a.m.,
the time at sea equals 27 hr, which would equate to 2 full ``days.''
(2) For purposes of determining the daily rate in a specific Sea
Scallop Access Area for an observed scallop trip on a limited access
vessel taken after NMFS has announced the industry-funded observer set-
aside in that specific Access Area has been fully utilized, a service
provider may charge a vessel owner for no more than the time an
observer boards a vessel until the vessel disembarks (dock to dock),
where ``day'' is defined as a 24-hr period, and portions of the other
days would be pro-rated at an hourly charge (taking the daily rate
divided by 24). For example, if a vessel with an observer departs on
July 1 at 10 p.m. and lands on July 3 at 1 a.m., the time spent at sea
equals 27 hr, which would equate to 1 day and 3 hr.
(3) For purposes of determining the daily rate in a specific Sea
Scallop Access Area for observed scallop trips on an LAGC vessel,
regardless of the status of the industry-funded observer set-aside, a
service provider may charge
[[Page 20738]]
a vessel owner for no more than the time an observer boards a vessel
until the vessel disembarks (dock to dock), where ``day'' is defined as
a 24-hr period, and portions of the other days would be pro-rated at an
hourly charge (taking the daily rate divided by 24). For example, if a
vessel with an observer departs on July 1 at 10 p.m. and lands on July
3 at 1 a.m., the time spent at sea equals 27 hr, which would equate to
1 day and 3 hr.
* * * * *
0
3. In Sec. 648.14,
0
a. Paragraphs (i)(1)(iii)(A)(1)(iv), (i)(1)(iv)(C), (i)(2)(ii)(B)(3),
(i)(2)(iv)(A), (i)(3)(iii)(C), (i)(3)(iv)(B), (i)(3)(v)(B),
(i)(4)(i)(C), (i)(4)(i)(D), (i)(4)(i)(E), (i)(4)(ii)(A),
(i)(4)(iii)(A), (i)(5)(i), and (i)(5)(iii) are revised;
0
b. Paragraphs (i)(1)(iv)(E), (i)(2)(v)(C), (i)(2)(v)(D), (i)(3)(iv)(C),
(i)(3)(iv)(D) and (i)(5)(iv) are added; and
0
c. Paragraphs (i)(1)(iii)(A)(1)(v) and (i)(1)(iii)(A)(2)(v) are removed
and reserved.
The revisions and additions read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(i) * * *
(1) * * *
(iii) * * *
(A) * * *
(1) * * *
(iv) The scallops were harvested by a vessel that has been issued
and carries on board an NGOM or IFQ scallop permit, and is properly
declared into the NGOM scallop management area, and the NGOM TAC
specified in Sec. 648.62 has been harvested.
* * * * *
(iv) * * *
(C) Purchase, possess, or receive for commercial purposes; or
attempt to purchase or receive for commercial purposes; scallops from a
vessel other than one issued a valid limited access or LAGC scallop
permit, unless the scallops were harvested by a vessel that has not
been issued a Federal scallop permit and fishes for scallops
exclusively in state waters.
* * * * *
(E) Fish for, possess, or retain scallops in Federal waters of the
NGOM management area on a vessel that has been issued and carries on
board a NGOM permit and has declared into the state waters fishery of
the NGOM management area.
* * * * *
(2) * * *
(ii) * * *
(B) * * *
(3) After April 30, 2013, fail to comply with the turtle deflector
dredge vessel gear restrictions specified in Sec. 648.51(b)(5), and
turtle dredge chain mat requirements in Sec. 223.206(d)(11) of this
chapter.
* * * * *
(iv) * * *
(A) Fish for, possess, or land scallops after using up the vessel's
annual DAS allocation and Access Area trip allocations, or when not
properly declared into the DAS or an Area Access program pursuant to
Sec. 648.10, unless the vessel has been issued an LAGC scallop permit
pursuant to Sec. 648.4(a)(2)(ii) and is lawfully fishing in a LAGC
scallop fishery, unless exempted from DAS allocations as provided in
state waters exemption, specified in Sec. 648.54.
* * * * *
(v) * * *
(C) If a limited access scallop vessel declares a scallop trip
before first crossing the VMS Demarcation Line, but not necessarily
from port, in accordance with Sec. 648.10(f), fail to declare out of
the fishery in port and have fishing gear unavailable for immediate use
as defined in Sec. 648.23(b), until declared into the scallop fishery.
(D) Once declared into the scallop fishery in accordance with Sec.
648.10(f), change its VMS declaration until the trip has ended and
scallop catch has been offloaded.
* * * * *
(3) * * *
(iii) * * *
(C) Declare into the NGOM scallop management area after the
effective date of a notification published in the Federal Register
stating that the NGOM scallop management area TAC has been harvested as
specified in Sec. 648.62.
* * * * *
(iv) * * *
(B) Fail to comply with any requirement for declaring in or out of
the LAGC scallop fishery or other notification requirements specified
in Sec. 648.10(b).
(C) If an LAGC scallop vessel declares a scallop trip shoreward of
the VMS Demarcation Line, but not necessarily from port, in accordance
with Sec. 648.10(f), fail to declare out of the fishery in port and
have fishing gear unavailable for immediate use as defined in Sec.
648.23(b), until declared into the scallop fishery.
(D) Once declared into the scallop fishery in accordance with Sec.
648.10(f), change its VMS declaration until the trip has ended and
scallop catch has been offloaded.
(v) * * *
(B) Declare into or leave port for an area specified in Sec.
648.59(b) through (d) after the effective date of a notification
published in the Federal Register stating that the number of LAGC trips
have been taken, as specified in Sec. 648.60.
* * * * *
(4) * * *
(i) * * *
(C) Declare into the NGOM scallop management area after the
effective date of a notification published in the Federal Register
stating that the NGOM scallop management area TAC has been harvested as
specified in Sec. 648.62.
(D) Possess more than 100 bu (35.2 hL) of in-shell scallops seaward
of the VMS Demarcation Line and not be participating in the Access Area
Program, or possess or land per trip more than 50 bu (17.6 hL) of in-
shell scallops shoreward of the VMS Demarcation Line, unless exempted
from DAS allocations as provided in Sec. 648.54.
(E) Possess more than 50 bu (17.6 hL) of in-shell scallops, as
specified in Sec. 648.52(d), outside the boundaries of a Sea Scallop
Access Area by a vessel that is declared into the Access Area Program
as specified in Sec. 648.60.
* * * * *
(ii) * * *
(A) Have an ownership interest in vessels that collectively are
allocated more than 5 percent of the total IFQ scallop ACL as specified
in Sec. 648.53(a)(5)(ii) and (iii).
* * * * *
(iii) * * *
(A) Apply for an IFQ transfer that will result in the transferee
having an aggregate ownership interest in more than 5 percent of the
total IFQ scallop ACL.
* * * * *
(5) * * *
(i) Declare into, or fish for or possess scallops outside of the
NGOM Scallop Management Area as defined in Sec. 648.62.
* * * * *
(iii) Fish for, possess, or land scallops in state or Federal
waters of the NGOM management area after the effective date of
notification in the Federal Register that the NGOM scallop management
area TAC has been harvested as specified in Sec. 648.62.
(iv) Fish for, possess, or retain scallops in Federal waters of the
NGOM after declaring a trip into NGOM state waters.
* * * * *
0
4. In Sec. 648.51, paragraph (b)(1) is revised and paragraph (b)(5) is
added to read as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
[[Page 20739]]
(b) * * *
(1) Maximum dredge width. The combined dredge width in use by or in
possession on board such vessels shall not exceed 31 ft (9.4 m)
measured at the widest point in the bail of the dredge, except as
provided under paragraph (e) of this section and in Sec. 648.60(g)(2).
However, component parts may be on board the vessel such that they do
not conform with the definition of ``dredge or dredge gear'' in Sec.
648.2, i.e., the metal ring bag and the mouth frame, or bail, of the
dredge are not attached, and such that no more than one complete spare
dredge could be made from these component's parts.
* * * * *
(5) Restrictions applicable to sea scallop dredges in the mid-
Atlantic--(i) Requirement to use chain mats. See Sec. 223.206(d)(11)
of this chapter for chain mat requirements for scallop dredges.
(ii) Requirement to use a turtle deflector dredge (TDD) frame--(A)
Beginning May 1, 2013, and from May 1 through October 31 every year,
any limited access scallop vessel using a dredge, regardless of dredge
size or vessel permit category, or any LAGC IFQ scallop vessel fishing
with a dredge with a width of 10.5 ft (3.2 m) or greater, that is
fishing for scallops in waters west of 71[deg] W long., from the
shoreline to the outer boundary of the Exclusive Economic Zone, must
use a TDD. The TDD requires five modifications to the rigid dredge
frame, as specified in paragraphs (b)(5)(ii)(A)(1) through
(b)(5)(ii)(A)(5) of this section. See paragraph (b)(5)(ii)(E) of this
section for more specific descriptions of the dredge elements mentioned
below.
(1) The cutting bar must be located in front of the depressor
plate.
(2) The angle between the front edge of the cutting bar and the top
of the dredge frame must be less than or equal to 45 degrees.
(3) All bale bars must be removed, except the outer bale (single or
double) bars and the center support beam, leaving an otherwise
unobstructed space between the cutting bar and forward bale wheels, if
present. The center support beam must be less than 6 in (15.24 cm)
wide. For the purpose of flaring and safe handling of the dredge, a
minor appendage not to exceed 12 in (30.5 cm) in length may be attached
to the outer bale bar;
(4) Struts must be spaced 12 in (30.5 cm) apart or less from each
other.
(5) Unless exempted, as specified in paragraph (b)(5)(ii)(B) of
this section, the TDD must include a straight extension (``bump out'')
connecting the outer bale bars to the dredge frame. This ``bump out''
must exceed 12 in (30.5 cm) in length.
(B) A limited access scallop vessel that uses a dredge with a width
less than 10.5 ft (3.2 m) is required to use a TDD except that such a
vessel is exempt from the ``bump out'' requirement specified in
paragraph (b)(5)(ii)(A)(5) of this section. This exemption does not
apply to LAGC vessels that use dredges with a width of less than 10.5
ft (3.2 m) because such vessels are exempted from the requirement to
use a TDD, as specified in paragraph (b)(5)(ii) of this section.
(C) Vessels subject to the requirements in paragraph (b)(5)(ii) of
this section transiting waters west of 71[deg] W long., from the
shoreline to the outer boundary of the Exclusive Economic Zone, are
exempted from the requirement to only possess and use TDDs, provided
the dredge gear is stowed in accordance with Sec. 648.23(b) and not
available for immediate use.
(D) TDD-related definitions. (1) The cutting bar refers to the
lowermost horizontal bar connecting the outer bails at the dredge
frame.
(2) The depressor plate, also known as the pressure plate, is the
angled piece of steel welded along the length of the top of the dredge
frame.
(3) The top of the dredge frame refers to the posterior point of
the depressor plate.
(4) The struts are the metal bars connecting the cutting bar and
the depressor plate.
* * * * *
0
5. In Sec. 648.53, paragraphs (b)(4)(vii), (h)(2) introductory text,
(h)(2)(i), (h)(2)(ii)(C), (h)(2)(iv), (h)(3)(i)(A), and (h)(5)(iii) are
revised to read as follows:
Sec. 648.53 Acceptable biological catch (ABC), annual catch limits
(ACL), annual catch targets (ACT), DAS allocations, and individual
fishing quotas (IFQ).
* * * * *
(b) * * *
(4) * * *
(vii) If, prior to the implementation of Framework 22, a vessel
owner exchanges an Elephant Trunk Access Area trip for another access
area trip as specified in Sec. 648.60(a)(3)(ii) in fishing year 2011,
the vessel that receives an additional Elephant Trunk Access Area trip
will receive a DAS credit of 7.4 DAS in FY 2011, resulting in a total
fishing year 2011 DAS allocation of 39.4 DAS (32 DAS plus 7.4 DAS).
This DAS credit from unused Elephant Trunk Access Area trip gained
through a trip exchange is based on a full-time vessel's 18,000-lb
(8,165-kg) possession limit and is calculated by using the formula
specified in paragraph (b)(4)(vi) of this section, but the DAS
conversion is applied as a DAS credit in the 2011 fishing year, rather
than as a DAS deduction in fishing year 2012. Similarly, using the same
calculation with a 14,400-lb (6,532-kg) possession limit, part-time
vessels will receive a credit of 5.9 DAS if the vessel owner received
an additional Elephant Trunk Access Area trip through a trip exchange
in the interim between the start of the 2011 fishing year and the
implementation of Framework 22 and did not use it. If a vessel fishes
any part of an Elephant Trunk Access Area trip gained through a trip
exchange, those landings would be deducted from any DAS credit applied
to the 2011 fishing year. For example, if a full-time vessel lands
10,000 lb (4,536 kg) from an Elephant Trunk Access Area trip gained
through a trip exchange, the pounds landed would be converted to DAS
and deducted from the trip-exchange credit as follows: The 10,000 lb
(4,536 kg) is first be multiplied by the estimated average meat count
in the Elephant Trunk Access Area (18.4 meats/lb) and then divided by
the estimated open area average meat count (also 18.4 meats/lb) and by
the estimated open area LPUE for fishing year 2011 (2,441 lb/DAS),
resulting in a DAS deduction of 4.1 DAS ((10,000 lb x 18.4 meats/lb)/
(18.4 meats/lb x 2,441 lb/DAS) = 4.1 DAS). Thus, this vessel would
receive a reduced DAS credit in FY 2011 to account for the Elephant
Trunk Access Area trip exchange of 3.3 DAS (7.4 DAS - 4.1 DAS = 3.7
DAS).
* * * * *
(h) * * *
(2) Calculation of IFQ. The ACL allocated to IFQ scallop vessels,
and the ACL allocated to limited access scallop vessels issued IFQ
scallop permits, as specified in paragraphs (a)(4)(i) and (ii) of this
section, shall be used to determine the IFQ of each vessel issued an
IFQ scallop permit. Each fishing year, the Regional Administrator shall
provide the owner of a vessel issued an IFQ scallop permit issued
pursuant to Sec. 648.4(a)(2)(ii) with the scallop IFQ for the vessel
for the upcoming fishing year.
(i) Individual fishing quota. The IFQ for an IFQ scallop vessel
shall be the vessel's contribution percentage as specified in paragraph
(h)(2)(iii) of this section and determined using the steps specified in
paragraphs (h)(2)(ii) of this section, multiplied by the ACL allocated
to the IFQ scallop fishery, or limited access vessels issued an IFQ
scallop permit, as specified in paragraphs (a)(4)(i) and (ii) of this
section.
(ii) * * *
(C) Index to determine contribution factor. For each eligible IFQ
scallop
[[Page 20740]]
vessel, the best year as determined pursuant to paragraph
(a)(2)(ii)(E)(1) of this section shall be multiplied by the appropriate
index factor specified in the following table, based on years active as
specified in paragraph (a)(2)(ii)(E)(2) of this section. The resulting
contribution factor shall determine its IFQ for each fishing year based
on the allocation to general category scallop vessels as specified in
paragraph (a)(4) of this section and the method of calculating the IFQ
provided in paragraph (h) of this section.
------------------------------------------------------------------------
Years active Index factor
------------------------------------------------------------------------
1....................................................... 0.75
2....................................................... 0.875
3....................................................... 1.0
4....................................................... 1.125
5....................................................... 1.25
------------------------------------------------------------------------
* * * * *
(iv) Vessel IFQ Example. Continuing the example in paragraphs
(h)(1)(ii)(D) and (h)(1)(iii) of this section, with an ACL allocated to
IFQ scallop vessels estimated for this example to be equal to 2.5
million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg)
(1.45 percent * 2.5 million lb (1,134 mt)).
* * * * *
(3) * * *
(i) * * *
(A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C)
of this section, a vessel issued an IFQ scallop permit or confirmation
of permit history shall not be issued more than 2.5 percent of the ACL
allocated to the IFQ scallop vessels as described in paragraph
(a)(4)(ii) of this section.
* * * * *
(5) * * *
(iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel
not issued a limited access scallop permit that has fished under its
IFQ in a fishing year may not transfer that vessel's IFQ to another IFQ
scallop vessel in the same fishing year. Requests for IFQ transfers
cannot be less than 100 lb (46.4 kg), unless that value reflects the
total IFQ amount remaining on the transferor's vessel, or the entire
IFQ allocation. A vessel's total IFQ allocation can be transferred only
once during a given fishing year. For example, a vessel owner can
complete several transfers of portions of his/her vessel's IFQ during
the fishing year, but cannot complete a temporary transfer of a portion
of its IFQ then request to either temporarily or permanently transfer
the entire IFQ in the same fishing year. A transfer of an IFQ may not
result in the sum of the IFQs on the receiving vessel exceeding 2.5
percent of the ACL allocated to IFQ scallop vessels. A transfer of an
IFQ, whether temporary or permanent, may not result in the transferee
having a total ownership of, or interest in, general category scallop
allocation that exceeds 5 percent of the ACL allocated to IFQ scallop
vessels. Limited access scallop vessels that are also issued an IFQ
scallop permit may not transfer to or receive IFQ from another IFQ
scallop vessel.
* * * * *
0
6. In Sec. 648.55, paragraphs (c)(1) and (c)(5) are revised to read as
follows:
Sec. 648.55 Framework adjustments to management measures.
* * * * *
(c) * * *
(1) OFL. OFL shall be based on an updated scallop resource and
fishery assessment provided by either the Scallop PDT or a formal stock
assessment. OFL shall include all sources of scallop mortality and
shall include an upward adjustment to account for catch of scallops in
state waters by vessels not issued Federal scallop permits. The fishing
mortality rate (F) associated with OFL shall be the threshold F, above
which overfishing is occurring in the scallop fishery. The F associated
with OFL shall be used to derive specifications for ABC, ACL, and ACT,
as specified in paragraphs (c)(2) through (c)(5) of this section.
* * * * *
(5) Sub-ACLs for the limited access and LAGC fleets. The Council
shall specify sub-ACLs for the limited access and LAGC fleets for each
year covered under the biennial or other framework adjustment. After
applying the deductions as specified in paragraph (a)(4) of this
section, a sub-ACL equal to 94.5 percent of the ABC/ACL shall be
allocated to the limited access fleet. After applying the deductions as
specified in paragraph (a)(4) of this section, a sub-ACL of 5.5 percent
of ABC/ACL shall be allocated to the LAGC fleet, so that 5 percent of
ABC/ACL is allocated to the LAGC fleet of vessels that do not also have
a limited access scallop permit, and 0.5 percent of the ABC/ACL is
allocated to the LAGC fleet of vessels that have limited access scallop
permits. This specification of sub-ACLs shall not account for catch
reductions associated with the application of AMs or adjustment of the
sub-ACL as a result of the limited access AM exception as specified in
Sec. 648.53(b)(4)(iii).
* * * * *
0
7. In Sec. 648.56, paragraph (d) is revised to read as follows:
Sec. 648.56 Scallop research.
* * * * *
(d) Available RSA allocation shall be 1.25 million lb (567 mt)
annually, which shall be deducted from the ABC/ACL specified in Sec.
648.53(a) prior to setting ACLs for the limited access and LAGC fleets,
as specified in Sec. 648.53(a)(3) and (a)(4), respectively. Approved
RSA projects shall be allocated an amount of scallop pounds that can be
harvested in open areas and available access areas. The specific access
areas that are open to RSA harvest shall be specified through the
framework process as identified in Sec. 648.60(e)(1). In a year in
which a framework adjustment is under review by the Council and/or
NMFS, NMFS shall make RSA awards prior to approval of the framework, if
practicable, based on total scallop pounds needed to fund each research
project. Recipients may begin compensation fishing in open areas prior
to approval of the framework, or wait until NMFS approval of the
framework to begin compensation fishing within approved access areas.
* * * * *
0
8. In Sec. 648.59, paragraph (b)(3) and the heading of paragraph (c)
are revised to read as follows:
Sec. 648.59 Sea Scallop Access Areas.
* * * * *
(b) * * *
(3) The Closed Area I Access Area is defined by straight lines
connecting the following points in the order stated (copies of a chart
depicting this area are available from the Regional Administrator upon
request), and so that the line connecting points CAIA3 and CAIA4 is the
same as the portion of the western boundary line of Closed Area I,
defined in Sec. 648.81(a)(1), that lies between points CAIA3 and
CAIA4:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
CAIA1.......................... 41[deg]26' N 68[deg]30' W
CAIA2.......................... 40[deg]58' N 68[deg]30' W
CAIA3.......................... 40[deg]54.95' N 68[deg]53.40' W
CAIA4.......................... 41[deg]04.30' N 69[deg]01.29' W
CAIA1.......................... 41[deg]26' N 68[deg]30' W
------------------------------------------------------------------------
* * * * *
(c) Closed Area II Access Area.
* * * * *
0
9. In Sec. 648.60, the section heading is revised and paragraph (g)(2)
is revised to read as follows:
Sec. 648.60 Sea scallop access area program requirements.
* * * * *
(g) * * *
(2) Limited Access General Category Gear restrictions. An LAGC IFQ
scallop
[[Page 20741]]
vessel authorized to fish in the Access Areas specified in Sec.
648.59(a) through (e) must fish with dredge gear only. The combined
dredge width in use by, or in possession on board of, an LAGC scallop
vessel fishing in Closed Area I, Closed Area II, and Nantucket
Lightship Access Areas may not exceed 10.5 ft (3.2 m). The combined
dredge width in use by, or in possession on board of, an LAGC scallop
vessel fishing in the remaining Access Areas described in Sec. 648.59
may not exceed 31 ft (9.4 m). Dredge width is measured at the widest
point in the bail of the dredge.
* * * * *
0
10. In Sec. 648.61, paragraph (a)(4) is revised to read as follows:
Sec. 648.61 EFH Closed Areas.
(a) * * *
(4) Closed Area I Habitat Closure Areas. The restrictions specified
in paragraph (a) of this section apply to the Closed Area I Habitat
Closure Areas, Closed Area I-North and Closed Area I-South, which are
the areas bounded by straight lines connecting the following points in
the order stated, and so that the line connecting points CI1 and CIH1,
and CI2 and CIH3 is the same as the portion of the western boundary
line of Closed Area I, defined in Sec. 648.81(a)(1), that lies between
those points:
Closed Area I--North Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CI1............................ 41[deg]30' 69[deg]23'
CI4............................ 41[deg]30' 68[deg]30'
CIH1........................... 41[deg]26' 68[deg]30'
CIH2........................... 41[deg]04.30' N 69[deg]01.29' W
CI1............................ 41[deg]30' 69[deg]23'
------------------------------------------------------------------------
Closed Area I--South Habitat Closure Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
CIH3........................... 40[deg]54.95' N 68[deg]53.40' W
CIH4........................... 40[deg]58' 68[deg]30'
CI3............................ 40[deg]45' 68[deg]30'
CI2............................ 40[deg]45' 68[deg]45'
CIH3........................... 40[deg]54.95' N 68[deg]53.40' W
------------------------------------------------------------------------
* * * * *
0
11. In Sec. 648.62, the section heading, paragraphs (a), (b)
introductory text, (b)(2), and (c) are revised to read as follows:
Sec. 648.62 Northern Gulf of Maine (NGOM) Management Program.
(a) The NGOM scallop management area is the area north of
42[deg]20' N. lat. and within the boundaries of the Gulf of Maine
Scallop Dredge Exemption Area as specified in Sec. 648.80(a)(11). To
fish for or possess scallops in the NGOM scallop management area, a
vessel must have been issued a scallop permit as specified in Sec.
648.4(a)(2).
(1) If a vessel has been issued a NGOM scallop permit, the vessel
is restricted to fishing for or possessing scallops only in the NGOM
scallop management area.
(2) Scallop landings by vessels issued NGOM permits shall be
deducted from the NGOM scallop total allowable catch when vessels
fished all or part of a trip in the Federal waters portion of the NGOM.
If a vessel with a NGOM scallop permit fishes exclusively in state
waters within the NGOM, scallop landings from those trips will not be
deducted from the Federal NGOM quota.
(3) Scallop landings by all vessels issued LAGC IFQ scallop permits
and fishing in the NGOM scallop management area shall be deducted from
the NGOM scallop total allowable catch specified in paragraph (b) of
this section. Scallop landings by IFQ scallop vessels fishing in the
NGOM scallop management area shall be deducted from their respective
scallop IFQs. Landings by incidental catch scallop vessels and limited
access scallop vessels fishing under the scallop DAS program shall not
be deducted from the NGOM total allowable catch specified in paragraph
(b) of this section.
(4) A vessel issued a NGOM or IFQ scallop permit that fishes in the
NGOM may fish for, possess, or retain up to 200 lb (90.7 kg) of shucked
or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu
(17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line. A
vessel issued an incidental catch general category scallop permit that
fishes in the NGOM may fish for, possess, or retain only up to 40 lb of
shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up
to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation
Line.
(b) Total allowable catch. The total allowable catch for the NGOM
scallop management area shall be specified through the framework
adjustment process. The total allowable catch for the NGOM scallop
management area shall be based on the Federal portion of the scallop
resource in the NGOM. The total allowable catch shall be determined by
historical landings until additional information on the NGOM scallop
resource is available, for example through an NGOM resource survey and
assessment. The ABC/ACL as specified in Sec. 648.53(a) shall not
include the total allowable catch for the NGOM scallop management area,
and landings from the NGOM scallop management area shall not be counted
against the ABC/ACL specified in Sec. 648.53(a).
* * * * *
(2) Unless a vessel has fished for scallops outside of the NGOM
scallop management area and is transiting the NGOM scallop management
area with all fishing gear stowed in accordance with Sec. 648.23(b),
no vessel issued a scallop permit pursuant to Sec. 648.4(a)(2) may
possess, retain, or land scallops in the NGOM scallop management area
once the Regional Administrator has provided notification in the
Federal Register that the NGOM scallop total allowable catch in
accordance with this paragraph (b) has been reached. Once the NGOM hard
TAC is reached, a vessel issued a NGOM permit may no longer declare a
state-only NGOM scallop trip and fish for scallops exclusively in state
waters within the NGOM. A vessel that has not been issued a Federal
scallop permit that fishes exclusively in state waters is not subject
to the closure of the NGOM scallop management area.
* * * * *
(c) VMS requirements. Except scallop vessels issued a limited
access scallop permit pursuant to Sec. 648.4(a)(2)(i) that have
declared a trip under the scallop DAS program, a vessel issued a
scallop permit pursuant to Sec. 648.4(a)(2) that intends to fish for
scallops in the NGOM scallop management area or fishes for, possesses,
or lands scallops in or from the NGOM scallop management area, must
declare a NGOM scallop management area trip and report scallop catch
through the vessel's VMS unit, as required in Sec. 648.10. If the
vessel has a NGOM permit, the vessel can declare either a Federal NGOM
trip or a state-waters NGOM trip. If a vessel intends to fish any part
of a NGOM trip in Federal NGOM waters, it may not declare into the
state water NGOM fishery.
* * * * *
0
12. In Sec. 648.63, paragraphs (b)(2)(i) and (b)(2)(iii) are revised
to read as follows:
Sec. 648.63 General category sectors and harvest cooperatives.
* * * * *
(b) * * *
(2) * * *
(i) The sector allocation shall be equal to a percentage share of
the ACL allocation for IFQ scallop vessels specified in Sec.
648.53(a), similar to an IFQ scallop vessel's IFQ as specified in Sec.
648.53(h). The sector's percentage share of the IFQ scallop fishery ACL
catch shall not change, but the amount
[[Page 20742]]
of allocation based on the percentage share will change based on the
ACL specified in Sec. 648.53(a).
* * * * *
(iii) A sector shall not be allocated more than 20 percent of the
ACL for IFQ vessels specified in Sec. 648.53(a)(4)(i) or (ii).
* * * * *
0
13. In Sec. 648.64, paragraphs (b)(2)(i), (b)(2)(ii), (c)(2), and (e)
are revised, and paragraph (f) is removed and reserved to read as
follows:
Sec. 648.64 Yellowtail flounder sub-ACLs and AMs for the scallop
fishery.
* * * * *
(b) * * *
(2) * * *
(i) For years when the Closed Area II Sea Scallop Access Area is
open, the closure duration shall be:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
3 or less............................. October through November.
3.1-14................................ September through November.
14.1-16............................... September through January.
16.1-39............................... August through January.
39.1-56............................... July through January.
Greater than 56....................... March through February.
------------------------------------------------------------------------
(ii) For fishing years when the Closed Area II Sea Scallop Access
Area is closed to scallop fishing, the closure duration shall be:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
1.9 or less........................... September through November.
2.0-2.9............................... August through January.
3.0-3.9............................... March and August through
February.
4.0-4.9............................... March and July through February.
5.0-5.9............................... March through May and July
through February.
6.0 or greater........................ March through February.
------------------------------------------------------------------------
* * * * *
(c) * * *
(2) Duration of closure. The Southern New England/Mid-Atlantic
yellowtail flounder accountability measure closed area shall remain
closed for the period of time, not to exceed 1 fishing year, as
specified for the corresponding percent overage of the Southern New
England/Mid-Atlantic yellowtail flounder sub-ACL, as follows:
------------------------------------------------------------------------
Percent overage of YTF sub-ACL Length of closure
------------------------------------------------------------------------
2 or less............................. March through April.
2.1-3................................. March through April, and
February.
3.1-7................................. March through May, and February.
7.1-9................................. March through May and January
through February.
9.1-12................................ March through May and December
through February.
12.1-15............................... March through June and December
through February.
15.1-16............................... March through June and November
through February.
16.1-18............................... March through July and November
through February.
18.1-19............................... March through August and October
through February.
19.1 or more.......................... March through February.
------------------------------------------------------------------------
* * * * *
(e) Process for implementing the AM. On or about January 15 of each
year, based upon catch and other information available to NMFS, the
Regional Administrator shall determine whether a yellowtail flounder
sub-ACL was exceeded, or is projected to be exceeded, by scallop
vessels prior to the end of the scallop fishing year ending on February
28/29. The determination shall include the amount of the overage or
projected amount of the overage, specified as a percentage of the
overall sub-ACL for the applicable yellowtail flounder stock, in
accordance with the values specified in paragraph (a) of this section.
Based on this initial projection in mid-January, the Regional
Administrator shall implement the AM in accordance with the APA and
notify owners of limited access scallop vessels by letter identifying
the length of the closure and a summary of the yellowtail flounder
catch, overage, and projection that resulted in the closure. The
initial projected estimate shall be updated after the end of each
scallop fishing year once complete fishing year information becomes
available. An AM implemented at the start of the fishing year will be
reevaluated and adjusted proportionately, if necessary, once updated
information is obtained. For example, if in January 2013, the
preliminary estimate of 2012 Southern New England/Mid-Atlantic
yellowtail flounder catch is estimated to be 5 percent over the 2012
sub-ACL, the Regional Administrator shall implement AMs for the 2013
scallop fishing year in that stock area. Based on the schedule in
paragraph (c)(2) of this section, limited access vessels would be
prohibited from fishing in the area specified in paragraph (c)(1) of
this section for 4 months (i.e., March through May 2013, and February
2014). Continuing the example, after the 2012 fishing year is
completed, if the final estimate of Southern New England/Mid-Atlantic
yellowtail flounder catch indicates the scallop fishery caught 1.5
percent of the sub-ACL, rather than 5 percent, the Regional
Administrator, in accordance with the APA, would adjust the AM for the
2014 fishing year based on the overage schedule in paragraph (c)(2) of
this section. As a result, limited access vessels would be subject to a
2-month seasonal closure in March and April 2013. In this example, due
to the availability of final fishing year data, it is possible that the
original AM closure was already in effect during the month of May.
However, the unnecessary AM closure in February 2014 would be avoided.
If the Regional Administrator determines that a final estimate is
higher than the original projection, the Regional Administrator, if
necessary, shall make adjustments to the current fishing year's
respective AM closure schedules in accordance with the overage schedule
in paragraphs (b)(2)(i), (b)(2)(ii), and (c)(2) of this section.
[FR Doc. 2012-8386 Filed 4-5-12; 8:45 am]
BILLING CODE 3510-22-P