[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Rules and Regulations]
[Pages 9580-9588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4782]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030108004-3044-02; ID 010303B]
RIN 0648-AQ28


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 15

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement Framework 15 to the 
Atlantic Sea Scallop Fishery Management Plan (FMP) developed by the New 
England Fishery Management Council (Council). This final rule 
implements management measures for the 2003 fishing year, including a 
days-at-sea (DAS) adjustment, and continuation of a Sea Scallop Area 
Access Program (Area Access Program) for 2003. The intent of this 
action is to achieve the goals and objectives of the FMP under the 
Magnuson-Stevens Fishery Conservation and Management Act and to achieve 
optimum yield (OY) in the scallop fishery. In addition, this final rule 
includes regulatory text that codifies an additional gear stowage 
provision for scallop dredge gear that was established by the 
Administrator, Northeast Region, NMFS (Regional Administrator) in 2001.

DATES: Effective March 1, 2003.

ADDRESSES: Copies of Framework Adjustment 15, its Regulatory Impact 
Review (RIR) including the Initial Regulatory Flexibility Analysis 
(IRFA), and the Environmental Assessment (EA) are available on request 
from Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Newburyport, MA 01950. These documents are 
also available online at http://www.nefmc.org. A copy of the Final 
Regulatory Flexibility Analysis (FRFA) is available from Patricia A. 
Kurkul,

[[Page 9581]]

Regional Administrator, NMFS, Northeast Region, One Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, 978-281-9288; fax 78-281-9135; e-mail [email protected].

SUPPLEMENTARY INFORMATION: On September 12, 2002, the Council adopted 
Framework 15 to the FMP, which includes annual management measures for 
the 2003 fishing year (March 1, 2003, through February 29, 2004). On 
January 16, 2003, NMFS published a proposed rule for Framework 15 (68 
FR 2303). Framework 15 increases the annual DAS allocation and extends 
the Area Access Program in the Hudson Canyon and Virginia Beach Access 
Areas (Access Areas) for 2003. The only modification to the measures 
that have been in effect for the 2002 fishing year is an increase in 
the possession limit allowed to vessels participating in the Area 
Access Program. Framework 15 was developed during the latter stages of 
development of Amendment 10 to the FMP (Amendment 10) because it was 
clear that Amendment 10 would not be implemented by the start of the 
2003 fishing year and, therefore, Framework 15 is considered to be an 
action of limited scope, which is intended to be a stop-gap measure 
until Amendment 10 is implemented. Additional details concerning the 
justification for and development of Framework 15 and the implementing 
regulations were provided in the preamble to the proposed rule and are 
not repeated here.
    Framework 15 increases the annual DAS allocation from the DAS 
allocations scheduled to take effect in 2003 under Amendment 7 to the 
FMP. Framework 15 implements 120 full-time, 48 part-time, and 10 
occasional DAS, which is an increase from the scheduled DAS of 45, 18, 
and 4 DAS allocations for full-time, part-time, and occasional vessels, 
respectively. These DAS allocations in Framework 15 are the same as the 
DAS that have been implemented since 1999. Framework 15 also extends 
the Area Access Program in the Access Areas for 2003.
    The DAS allocations in Framework 15 are intended to achieve a 
fishing mortality rate (F) that is consistent with the F target in the 
FMP. The DAS allocations in Framework 15 are expected to achieve an F 
of approximately 0.155 for the resource overall. Although this F is 
still well below the F target, it reduces the potential for more 
damaging effects on the scallop resource and for impacts on the 
physical environment that may be associated with higher DAS 
allocations.
    The increase in the Area Access Program possession limit is 
intended to create an incentive for vessels to fish within the Area 
Access Program and is consistent with increasing catch rates in the 
areas. Due to stock abundance in the Areas, a higher level of F can 
occur in the Areas. This higher F allows for more trips and a higher 
trip limit, thereby creating more opportunity for vessels to fish in 
the Areas. The increased opportunity to fish in the Areas should create 
an incentive for vessels to utilize the Area Access Program where the 
scallop resource can be harvested at higher rates, thereby removing 
fishing pressure from other areas that may be more sensitive to fishing 
pressure.

Approved Measures

    This action implements an annual DAS allocation of 120, 48, and 10 
DAS for full-time, part-time, and occasional scallop vessels, 
respectively, for the 2003 fishing year. This represents an increase 
over the DAS allocations that would otherwise have become effective 
March 1, 2003, under Amendment 7 to the FMP (i.e., 45 full-time, 18 
part-time, and 4 occasional). The 120, 48, and 10 DAS allocations have 
been in place each year since 1999, due to better conditions in the 
scallop resource than were anticipated in Amendment 7.
    This final rule continues the Area Access Program that was 
implemented in the 2001 and 2002 fishing years. The Area Access Program 
allows controlled scallop fishing in the Hudson Canyon and Virginia 
Beach Sea Scallop Access Areas. Vessels are prohibited from fishing for 
scallops in the Sea Scallop Access Areas unless they are fishing under 
the Area Access Program. The intent of the Area Access Program is to 
prevent the uncontrolled harvest of a sensitive portion of the scallop 
resource while increasing the social benefits by allowing all limited 
access vessels the opportunity to fish in the Areas without creating a 
derby fishery, thereby increasing economic benefits by promoting an 
orderly fishery.
    The 2003 Area Access Program begins on March 1, 2003. The 2003 Area 
Access Program will end when the total allowable catch (TAC) allocated 
to the Area Access Program is caught, or when vessels have used up 
their allocated number of trips.
    The Area Access Program includes a TAC of 17.06 million lb (7,740 
mt) and 0.23 million lb (105 mt) for the Hudson Canyon and Virginia 
Beach Sea Scallop Access Areas, respectively. These TACs include set-
asides of 2 percent and 1 percent to defray the costs of observers and 
research, respectively. The TACs are expected to achieve an F of 0.32 
in each of the two areas. Although this F exceeds the target F of 0.22 
for the scallop fishery, it is not expected to jeopardize the 
rebuilding potential for the Mid-Atlantic stock. Rather, it is 
anticipated that the higher F for the Access Areas will allow greater 
levels of effort and catch within the Access Areas, thereby reducing 
effort and catch in other areas of the Mid-Atlantic. Therefore, overall 
F for sea scallops in the 2003 fishing year is expected to be 0.155. 
This anticipated impact on the distribution of fishing effort is 
expected to continue to provide for rebuilding of the Mid-Atlantic 
scallop stock and the scallop resource as a whole.
    All limited access scallop vessels, including vessels that replace 
vessels that hold a scallop Confirmation of Permit History, are 
eligible to fish for the sea scallop TAC under the Area Access Program. 
Full-time and part-time scallop vessels are restricted to a total of 
three annual trips into the Hudson Canyon and Virginia Beach Sea 
Scallop Access Areas. A trip into either of the Areas will count as one 
of the allowed trips. Vessels participating in the Area Access Program 
are allowed to take only one of the three allocated trips before May 1, 
and only two of the three allocated trips before June 1. This measure 
is meant to prevent a derby style fishery from occurring and may reduce 
the potential for bycatch by limiting trips in late spring when 
bycatch, particularly of summer flounder, could be problematic. Vessels 
in the occasional permit category are allowed to conduct only one trip 
into the Area of their choice. Participating scallop vessels are 
allowed to possess and land from the Areas up to 21,000 lb (9,525.4 kg) 
of scallop meats per trip.
    After taking into account data on the number of eligible vessels 
participating, and on the total number of trips taken, the Regional 
Administrator will consider adjusting the sea scallop possession limit 
for the Hudson Canyon and Virginia Beach Sea Scallop Access Areas any 
time during the season and, on or after October 1, 2003, will consider 
allocating one or more additional trips for full-time and part-time 
vessels. In order for additional trips to be allocated, a sufficient 
amount of the sea scallop TAC must remain to warrant such an adjustment 
or allocation. In order for a vessel to participate in any additional 
Area Access Program trips that may be allocated on or after October 1, 
2003, that vessel must have started at least one Area Access Program 
trip prior to September 1, 2003. Vessels with

[[Page 9582]]

 occasional permits will not be allocated any additional trips.
    Any trip of 10 DAS or less by a vessel fishing in the Area Access 
Program will be counted as 10 DAS. Any trip of over 10 DAS will be 
counted as the actual DAS used (e.g., if a vessel used 12 DAS, 12 DAS 
would be deducted from its annual DAS allocation). The purpose of the 
minimum 10 DAS count is to reduce the number of DAS that are available 
for use by vessels to fish in other areas, thereby reducing fishing 
mortality on the scallop resource overall by potentially reducing the 
number of scallops caught under DAS.
    Vessels are allowed to use dredges or trawls when fishing in the 
Area Access Program. Dredge gear is required to be outfitted with a 
twine top with a minimum mesh size of 10 inches (25.40 cm). The purpose 
of increasing the minimum twine top mesh size measurement from 8 inches 
(20.32 cm) to 10 inches (25.40 cm) for the Area Access Program is to 
reduce bycatch of groundfish and other finfish. Research and experience 
from the Georges Bank and Southern New England Closed Area Sea Scallop 
Exemption Program demonstrate that the 10-inch (25.40-cm) mesh size may 
significantly reduce bycatch of certain species, especially flatfish 
species.
    All scallop vessels fishing in the Area Access Program are required 
to have installed on board an operational vessel monitoring system 
(VMS) unit that meets the minimum performance criteria as specified at 
Sec.  648.9(b). Vessels with occasional permits are the only limited 
access scallop vessels not currently required to have a VMS unit and 
would, therefore, be required to install an approved VMS unit in order 
to participate in the Area Access Program. Scallop vessels planning to 
fish in the Area Access Program are required to so declare by notifying 
the Regional Administrator through the VMS as described below.
    Each vessel operator is required to inform NMFS of his/her 
intention to fish in the Sea Scallop Access Areas prior to the 25th day 
of the month preceding the month in question through the VMS e-mail 
system (e.g., if the vessel plans to fish in these areas in July, it 
would need to notify the Regional Administrator by June 25). This 
notification requirement facilitates placement of observers and 
provides for an estimate of the number of potential Area Access Program 
participating vessels in order to make preliminary projections of 
potential TAC harvest rates.
    Vessel operators are required to report the following information 
to the Regional Administrator prior to the 25th day of the month 
preceding the month in question: Vessel name and permit number, owner 
and operator's name, owner and operator's phone numbers, the area to be 
fished, and the anticipated number of trips to be taken in the area in 
question.
    In addition, for the purpose of selecting vessels for observer 
deployment, a vessel's operator is required to provide notice to NMFS 
of the time, port of departure, and specific Access Area to be fished, 
at least 5 working days prior to the beginning of any trip on which it 
declares into the Area Access Program.
    On the day the vessel leaves port to fish under the Area Access 
Program, the vessel owner or operator must declare into the Program 
through the VMS. Declaration into the fishery allows for more accurate 
and timely monitoring of the catch in the fishery.
    The operator of each vessel participating in the Area Access 
Program is required to report specific information on a daily basis 
through the VMS. For each day of an Area Access Program trip, a 
vessel's operator is required to report the daily pounds (kg) of 
scallop meats kept, the area fished that day, and the Fishing Vessel 
Trip Report page numbers corresponding to the respective Sea Scallop 
Access Area trip. In addition, vessel operators on vessels carrying an 
observer are required to provide a separate report of the daily pounds 
(kg) of scallop meats kept on tows that were observed on that trip.
    Vessels that have declared a trip into the Area Access Program are 
prohibited from possessing more than 50 U.S. bu (17.62 hl) shell-stock 
or 400 lb (181.4 kg) of meats of shell stock when outside the Access 
Areas. This limit for shell stock is considered part of the overall 
Area Access Program possession limit. A limit on the amount of sea 
scallops landed in the shell is necessary to monitor and enforce the 
overall meat weight possession limit requirement. Allowing vessels to 
retain a relatively minor amount of shell stock helps satisfy a market 
for large, whole scallops, without compromising the enforceability of 
the possession limit.
    General category permitted vessels and limited access scallop 
vessels fishing outside a scallop DAS are allowed to fish in the Access 
Areas throughout the year, provided that no more than 100 lb (45.36 kg) 
of scallop meats are possessed on board the vessel when the vessel is 
in the Access Areas. These vessels are prohibited from possessing in-
shell scallops while inside the Access Areas, except they are allowed 
to possess an equivalent of in-shell scallops that are necessary to 
provide 100 lb (45.36 kg) of scallop meats. Vessels not fishing under 
the Area Access Program are allowed to transit the Access Areas with 
more than these possession limits on board, provided their gear is 
properly stowed according to Sec.  648.23(b). This measure is intended 
to allow an incidental catch of scallops for scallop vessels that fish 
for other species outside the Access Areas and to allow for more direct 
transiting to and from other fishing areas.
    To improve the enforceability of the Area Access Program, all 
limited access scallop vessels equipped with a VMS unit will be polled 
twice per hour, regardless of whether the vessel is enrolled in the 
Area Access Program or not. Also, vessels are required to stow all 
dredge or trawl gear while transiting to and from the Access Areas 
pursuant to the applicable gear stowage requirements specified in Sec.  
648.23. A new dredge gear stowage requirement included in this rule 
improves safety on board vessels transiting to and from the Access 
Areas. Finally, to ensure effective enforcement of the Area Access 
Program measures, vessels participating in the Area Access Program must 
land their scallop catch at one location for each trip.
    Vessels are required to carry observers when requested. The Council 
has recommended 10-percent observer coverage for the Hudson Canyon 
Access Area and 20-percent observer coverage for the Virginia Beach 
Access Area. Observers will obtain information on catch, catch rates, 
and bycatch and may obtain information on gear efficiency and 
selectivity and on other characteristics of the fishery. The vessel 
owner is responsible for paying for the cost of the observer, 
regardless of whether any scallops are caught on the trip. At the 
discretion of the Regional Administrator, scallop vessels may be 
allocated an additional amount of sea scallops, not to exceed a 
cumulative total of 155 mt or 2 mt for the Hudson Canyon and Virginia 
Beach Access Areas, respectively, for each trip on which an observer is 
taken, to help defray the cost of the observer. Additional scallops to 
fund observers may not exceed a value equal to 2 percent of the overall 
scallop TAC. One percent of the scallop TAC for both the Hudson Canyon 
and Virginia Beach Access Areas has been set aside to pay for 
observers. Similarly, a value equal to 1 percent of the overall TAC has 
been added on to the amount of observer TAC, also to help vessels pay 
for the cost of observers. The allocation of 1 percent set-aside and 1 
percent

[[Page 9583]]

additional observer TAC is consistent with the Area Access Program in 
2001 and 2002, as well as the Georges Bank Closed Area Exemption 
Program. A TAC set-aside of 1 percent to fund research is also included 
as part of the Area Access Program. Amounts over the trip limits for 
sea scallop meats to be allocated for defraying research costs are 
limited, by area, up to 77 mt or 1 mt for the Hudson Canyon and 
Virginia Beach Access Areas, respectively. This research program for 
the Access Areas is modeled after the research program in the 2000 
Georges Bank Sea Scallop Exemption Program. A Request for Proposals 
notice published in the Federal Register on January 17, 2003 (68 FR 
2527), provides information on the submission process, eligibility 
criteria, proposal requirements and priorities, project evaluation, 
application deadlines and other requirements.
    Finally, this final rule codifies a scallop dredge gear stowage 
provision that was established by the Regional Administrator in 2001. 
The new provision eliminates the need for vessel operators to 
disconnect towing wires and reel them fully onto the winch in order for 
the gear to be considered properly stowed. Reconnecting the wires at 
sea was determined to be dangerous, particularly in rough seas. The 
Regional Administrator has the authority to establish new gear stowage 
provisions through notification through a permit holder letter. 
Subsequent codification of the provision ensures proper implementation 
of the requirement.
    A discussion of comments received in response to the proposed rule 
for Framework 15, and their responses, follows.

Comments and Responses

    Two comments were received on the proposed rule for Framework 15. 
While one comment was generally in support of the action, the other 
opposed it. Many of the specific issues raised in each comment 
highlight issues that were analyzed in Framework 15. Many of the issues 
and analyses included in Framework 15 are summarized in the following 
responses and the commenters and other interested members of the public 
should refer to the Framework 15 document for a more detailed 
discussion of the analyses (See ADDRESSES for a copy of Framework 15).
    Comment 1: The Fisheries Survival Fund (FSF) commented in support 
of the measures contained in Framework 15, and urged timely 
implementation in order to avoid ``economically devastating'' default 
DAS reductions. The FSF urged NMFS to give more emphasis in the final 
rule to the habitat and bycatch benefits of the 120-DAS allocation 
compared to the higher DAS allocation of 140 DAS that was calculated to 
be more consistent with the FMP's target F.
    Response: NMFS acknowledges FSF's comments in support of Framework 
15. With respect to the benefits of implementing 120 full-time DAS 
versus other DAS alternatives, NMFS has relied on the comparisons of 
costs and benefits of the various alternatives included in Framework 
15. The habitat and bycatch benefits cannot be precisely determined 
because it is not possible to predict fully the behavior of the fishing 
fleet in response to these regulations. The amount of habitat and 
bycatch impact depends not only on the total fleet activity, but also 
on the distribution of fishing activity relative to the distribution of 
vulnerable habitats and bycatch. While less fishing usually means fewer 
impacts, and distribution of habitat or bycatch is known at a broad 
scale, the response of the fleet to changes in resource distribution 
and different DAS allocations is not well known. If reductions in DAS 
allocations were to cause industry to concentrate effort in less remote 
but more sensitive areas with respect to habitat and bycatch, then the 
benefits of lower DAS would be reduced. The Council recommended, and 
NMFS concurs, that the 120 full-time DAS allocation (48 part-time and 
10 occasional DAS), combined with the Area Access Program, as a 1-year 
action, complies best with the goals and objectives of the Scallop FMP. 
Given the uncertainties of the fleet response to this action, the 
action is intended to balance conservation of the scallop resource and 
the economic benefits derived from fishing while minimizing, to the 
extent practicable, the known adverse effects on the environment, 
including habitat and species caught as bycatch, in the scallop 
fishery.
    Comment 2: The FSF urged NMFS to reconsider industry 
recommendations for measures to address the issue of trips into the 
Area Access Program that are terminated unexpectedly. They advocate 
more flexibility in determining if such ``broken'' trips should be 
charged fewer DAS than the 10 DAS that are automatically charged under 
the Area Access Program. The FSF believes this is required by National 
Standard 10 of the Magnuson-Stevens Act, concerning safety at sea.
    Response: NMFS understands the problems that arise as a result of 
the automatic deduction of 10 DAS for Area Access trips, but the 
Council, working within the short-term context of this action, was 
unable to develop measures necessary to address broken trips that are 
clearly understood and can be effectively administered. There are 
alternatives being developed in Amendment 10 to address this concern. 
In the meantime, NMFS has determined that this concern can be addressed 
sufficiently through ad hoc determinations for each instance of a 
broken trip.
    Comment 3: Oceana and the Conservation Law Foundation (Oceana/CLF) 
commented that Framework 15 allows overfishing in the open areas on 
Georges Bank and in the Mid-Atlantic. Oceana/CLF contends that the DAS 
alternative selected (120 full-time, 48 part-time, and 10 occasional 
DAS) does not constitute a sustainable management strategy for the sea 
scallop resource and is, therefore, inconsistent with the Magnuson-
Stevens Act requirements to prevent overfishing. In addition, Oceana/
CLF commented that overfishing in the Mid-Atlantic continues, despite 
actions under previous Frameworks that were intended to redirect effort 
into controlled access programs, but failed to do so. Oceana/CLF 
asserts that NMFS should adequately justify its support of the 120 DAS 
(``risk-prone'') alternative and better elaborate on the long-term 
effects of the action in the environmental analyses.
    Response: The FMP and overfishing definition do not consider the 
open and closed areas separately (with the exception of the special 
program for the Area Access Program). While projections indicate that 
the DAS allocations, if analyzed according to discrete areas, may 
result in overexploitation of scallops in some areas, Framework 15 is 
based on analyzing fishing mortality on the resource as a whole. Under 
this analysis, the fishery overall would not exceed the F target of 
0.22, due in part to continued large concentrations of scallops that 
cannot be fished in the Georges Bank and Southern New England 
groundfish closed areas.
    The analyses in Framework 15 indicate that the 120-DAS alternative 
complies with the Magnuson-Stevens Act and achieves the goals and 
objectives of the FMP. Framework 15 clearly demonstrates that 
overfishing will not occur on the resource as a whole and that F will 
likely be less than Amendment 7 targets. The current condition of the 
scallop resource is rebuilt for both the Georges Bank and Mid-Atlantic 
stocks. To fish at the DAS level scheduled in Amendment 7 would cause 
the fishing level to fall

[[Page 9584]]

unnecessarily well below OY and cause substantial adverse economic and 
social effects on the scallop industry under rebuilt resource 
conditions.
    The F in the Mid-Atlantic continues to be high, despite efforts in 
recent years to reduce the effective F through the Area Access Program. 
However, the FMP does not prescribe different management measures for 
each stock, consistent with National Standard 3. To enhance the 
incentive to fish in the Access Areas, Framework 15 allows for an 
increase in the F for the Area Access Program, which results in an 
increase in the possession limit. It is expected that this enhanced 
incentive will reduce fishing pressure in the Mid-Atlantic region 
outside of the Access Areas.
    Comment 4: Oceana/CLF commented that the 100 DAS alternative has 
greater environmental, biological, and economic benefits than the 120-
DAS alternative. Oceana/CLF commented that it is unclear what rationale 
NMFS is using to justify its proposed action of 120 DAS, when the 
analyses in Framework 15 clearly support the 100-DAS allocation 
alternative, touting the following environmental, biological and 
economic benefits: (1) Reduced unsustainable fishing mortality in the 
open fishing areas; (2) higher long-term net benefit ($38 - $42 
million); (3) likely increase in future landings, rather than the sharp 
decline predicted under the proposed action; (4) reduced area affected 
by scallop dredging; and (5) reduced operational costs, and increased 
producer surplus and net benefits.
    Response: Oceana/CLF has focused on the long-term effects of the 
DAS to be implemented through Framework 15. Framework 15 is intended as 
a short-term action while the comprehensive Amendment 10 is developed 
and implemented. In light of the short-term context of Framework 15, 
NMFS disagrees that Framework 15 clearly supports the 100 DAS 
alternative, since short-term losses associated with the alternative 
are not clearly outweighed by the benefits of the reduced DAS. The 
analysis demonstrates that the 120-DAS alternative, combined with the 
Area Access Program, has noticeably higher economic and social benefits 
with only marginal loss of benefits to the scallop resource overall and 
the environment in the short-term. NMFS believes that the short-term 
effects of the action are more relevant, because Framework 15 does not 
contemplate continuation of these measures alone for more than 1 year, 
despite the analyses that project the effects of the action over as 
many as 10 years.
    Comment 5: Oceana/CLF commented that Framework 15 does not contain 
measures adequate to minimize adverse fishing impacts on known gravel 
habitats and sensitive EFH in open areas on Georges Bank. Oceana/CLF 
asserts that the 120-DAS alternative in Framework 15 ``dramatically 
increases'' the amount of EFH impacted by scallop dredging by 60 to 80 
percent. Oceana/CLF also commented that the increase in EFH affected by 
scallop dredging under the 120-DAS alternative is exacerbated by a lack 
of management measures specifically designed to protect EFH. Oceana/CLF 
contends that prior scallop amendments modified the framework process 
''...so that habitat conservation measures may be approved by the 
Council in a more timely manner than the plan amendment process.'' 
Oceana/CLF commented that NMFS and the Council cannot rely on future 
amendments in the Scallop and Northeast Multispecies FMPs to implement 
appropriate measures to minimize the impacts on EFH. Finally, Oceana/
CLF urged NMFS to take immediate action under Framework 15 to minimize 
fishing impacts on known gravel habitats and sensitive juvenile cod EFH 
and other groundfish EFH in the open areas on Georges Bank.
    Response: NMFS disagrees that Framework 15 dramatically increases 
the amount of EFH impacted by scallop dredging. To draw that 
conclusion, Oceana/CLF compares the action in Framework 15 to the 
default measures that would otherwise become effective March 1, 2003. 
These measures include 45 full-time, 18 part-time, and 4 occasional DAS 
allocations that are well below any level of fishing effort that has 
occurred in the scallop fishery under recent management and recent 
historical scallop fishing activity. This conclusion ignores the 
practicability standard for analyzing the appropriateness of habitat 
mitigating measures. The 120-DAS alternative maintains the DAS 
allocations that have been in place since 1999. Therefore, the 
Framework 15 DAS allocation does not actually increase impacts on EFH 
at all, when compared to the status quo of current fishing activities.
    Frameworks are required to comply with the Magnuson-Stevens Act and 
minimize the adverse effects of fishing on EFH to the extent 
practicable. In light of the drastic DAS reductions that would occur 
under Amendment 7, Framework 15 implements a more appropriate DAS 
allocation and takes practicable steps to minimize the impacts of the 
scallop fishery on EFH in order to comply with the Magnuson-Stevens Act 
and to meet the goals and objectives of the FMP. It is not correct that 
framework actions must necessarily include a full reconsideration of 
EFH, or of any of the other 21 frameworkable measures included in the 
FMP.
    Framework 15 was developed during the latter stages of development 
of Amendment 10 because it was clear that Amendment 10 would not be 
implemented by the start of the 2003 fishing year and, therefore, 
Framework 15 is considered to be an action of limited scope, which is 
intended to be a stop-gap measure until Amendment 10 is implemented. 
The Council is required to adjust management measures on an annual 
basis in order to make measures consistent with the condition of the 
resource and the status of the fishery. The Council and NMFS are 
maintaining extensive closures of areas of high scallop abundance and 
potential prime scallop fishing areas on Georges Bank and in Southern 
New England waters, which provide substantial protection of habitat. 
The Council is carrying out a full reconsideration of measures to 
address EFH through the more extensive public process associated with 
Amendment 10. NMFS notes that the measures have been highly 
controversial and complex and have been the subject of lengthy debate.
    Taking into account the short-term context of Framework 15, the OY 
calculations, the areas closed to scallop fishing, and other measures 
already in place that provide extensive EFH protection, Framework 15 
minimizes the impacts on EFH to the extent practicable.
    Comment 6: Oceana/CLF commented that Framework 15 does not contain 
measures adequate to accurately report or minimize bycatch of 
overfished groundfish, skates and other marine life. Specifically, 
Oceana/CLF commented that high levels of bycatch of fish and other 
marine life continue in the scallop fishery--most of it unaccounted for 
due to a lack of observer coverage and unreliable vessel trip report 
data. Oceana/CLF urged NMFS to improve its compliance with the 
Endangered Species Act (ESA) with regard to the scallop fishery and to 
complete a Biological Opinion (BO) for Framework 15 prior to its 
approval and implementation. Oceana/CLF concluded by requesting that 
NMFS not approve Framework 15 until it contains adequate measures to: 
(1) protect sensitive juvenile cod and other sensitive groundfish EFH; 
(2) increase levels of observer coverage throughout the entire scallop 
fishery; and (3) stop all illegal takes of threatened and endangered 
sea turtles and minimize bycatch of other overfished and at-risk 
species (e.g.,

[[Page 9585]]

barndoor skate, monkfish, and other skates).
    Response: National Standard 9 requires that FMPs minimize, to the 
extent practicable, bycatch and bycatch mortality. Measures currently 
in place in the scallop fishery, and the measures included in Framework 
15, take practicable steps to reduce bycatch in the sea scallop 
fishery. Gear restrictions, i.e. increasing the minimum twine top mesh 
size to 10 inches (25.40 cm), in the Area Access Program are intended 
to reduce bycatch in scallop dredge gear. NMFS is attempting to improve 
observer coverage in this and other fisheries, i.e. increased 
percentage coverage in access areas (10-20 percent) although a large 
increase in observer coverage is limited by Agency resources. Limiting 
the number of trips by month in the Area Access Program is also 
designed to reduce bycatch. In addition, maintaining groundfish closed 
areas will reduce bycatch of such species as yellowtail flounder and 
skates in the scallop fishery overall. Oceana/CLF specifically noted 
that much bycatch is unaccounted for due to lack of observer coverage. 
The lack of more specific information about bycatch and how to avoid it 
complicates efforts to develop specific management measures to reduce 
it. In light of the limited scope and context of Framework 15, NMFS has 
determined that Framework 15 complies with the Magnuson-Stevens Act 
concerning bycatch requirements. The specific concerns raised by 
Oceana/CLF have been addressed in Framework 15.
    In response to reports of sea turtle takes in the sea scallop 
fishery, NMFS reinitiated consultation under section 7 of the ESA on 
December 21, 2001. NMFS completed a BO for the scallop fishery as a 
whole, including the measures included in Framework 15, on [insert date 
BO completed]. The BO concluded that the continued implementation of 
the scallop fishery and the proposed activity may adversely affect but 
is not likely to jeopardize the continued existence of loggerhead, 
Kemp's ridley, green, and leatherback sea turtles. In the BO, NMFS 
provides an incidental take statement allowing the annual take of 88 
loggerhead (up to 25 lethal), 7 Kemp's ridley (2 lethal), and 1 green 
(lethal or non-lethal) sea turtles in the sea scallop dredge fishery. 
In addition, the incidental take statement allows the lethal or non-
lethal observed annual take of one loggerhead, Kemp's ridley, green, or 
leatherback sea turtles in the scallop trawl fishery.

Changes From the Proposed Rule

    One change to the regulatory text in the proposed rule has been 
made. In Sec.  648.58, paragraph (c)(6) is revised to more clearly 
address the intent of the prohibition to prevent vessels participating 
in the Area Access Program from loading up on shell-stock and then 
shucking the scallops inside the VMS demarcation line.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Framework 15 is necessary for the conservation and management of the 
Atlantic sea scallop fishery and that it is consistent with the 
Magnuson-Stevens Act and other applicable laws.
    For the reasons stated below, the Assistant Administrator for NOAA 
(AA) waives the 30-day delay in effectiveness for the Framework 15 
measures under 5 U.S.C. 553(d)(1) because this rule relieves a 
restriction.
    This action implements DAS allocations of 120, 48, and 10 DAS for 
full-time, part-time, and occasional scallop vessels, respectively, and 
continues the Hudson Canyon and Mid-Atlantic Area Access Program with 
an increase in the possession limit for vessels participating in the 
Area Access Program. Scallop vessels are precluded from: exceeding the 
DAS that are allocated to the vessel based on its permit category; 
fishing in the Hudson Canyon or Virginia Beach Access Areas unless they 
are participating in the Area Access Program; fishing for more than 
three trips in the Area Access Program; possessing more than the sea 
scallop possession limit in the Area Access Program; and violating any 
provisions of the regulations of the Northeastern United States that 
are not modified by this action.
    The annual DAS allocations implemented in this final rule are less 
restrictive than the DAS allocations that would otherwise go into 
effect on March 1, 2003. The DAS scheduled to take effect on March 1, 
2003, would have considerable negative economic and social impacts 
because limited access scallop vessels would only be able to fish 45 
full-time, 18 part-time, and 4 occasional DAS, as compared to 120 full-
time, 48 part-time and 10 occasional DAS under the preferred 
alternative. Further, the DAS allocation under Framework 15 would be 
the same as the allocation last year and therefore would be no more 
restrictive. In addition, the Area Access Program is a continuation of 
the program that has been in place for the last 2 years. The only 
change to the program is an increase in the possession limit. The 
Council prepared an environmental assessment (EA) for this framework 
and the Assistant Administrator for Fisheries, NMFS, concluded that 
there will be no significant impact on the human environment as a 
result of this rule. This action will result in a minor increase in 
fishing mortality on sea scallops and will allow continued economic 
viability of the fishery. The Area Access Program will provide an 
incentive for vessels to direct fishing effort away from more sensitive 
open areas in the Mid-Atlantic. A copy of the EA is available from the 
Council (see ADDRESSES).
    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act, NMFS 
prepared an FRFA for Framework 15, which consists of the IRFA, comments 
and responses contained in this final rule, and a summary of the 
analyses prepared in support of this final rule. A copy of the FRFA is 
available from the Regional Administrator (see ADDRESSES). The preamble 
to the proposed rule included a detailed summary of the analyses 
contained in the IRFA, and that discussion is not repeated in its 
entirety here. A copy of the IRFA is available from the Council (see 
ADDRESSES).
    The reasons why action by the agency is being considered and the 
objectives of the action are explained in the preambles to the proposed 
rule and this final rule and are not repeated here. This action does 
not contain reporting and recordkeeping requirements. It will not 
duplicate, overlap, or conflict with any other Federal rules. This 
action is taken under authority of the Magnuson-Stevens Fishery 
Conservation and Management Act and regulations at 50 CFR part 648.

Public Comments

    Two sets of comments were received on the proposed rule and are 
responded to in this rule. One comment addressed indirectly the results 
of the IRFA and the second set of comments related to issues other than 
economic impacts. In this comment, the FSF urged timely implementation 
of the Framework 15 measures in order to avoid ``economically 
devastating'' default DAS reductions. NMFS agrees with the FSF that the 
DAS reductions included in Amendment 7 to the FMP and scheduled to take 
effect on March 1, 2003, under the no action alternative will have 
substantially negative economic impacts for vessels participating in 
the sea scallop fishery and would not be necessary, given the

[[Page 9586]]

condition of the scallop resource. This ``no action'' alternative would 
be inconsistent with National Standard 1 because it would fail to 
achieve OY in the scallop fishery. It may also cause safety at sea 
concerns, as vessels may push crews and trip lengths to hazardous 
levels.

Number of Small Entities

    This action and its alternatives could affect any commercial vessel 
holding an active Federal permit for sea scallops. Data from the 2001 
Northeast permit database show that 310 commercial vessels were 
permitted with limited access scallop permits, and 2,293 commercial 
vessels were permitted with general category (open access) scallop 
permits. Information from the 2002 fishery remains incomplete. The 
majority, if not all, of the federally permitted vessels readily fall 
within the Small Business Administration's (SBA) definition of small 
business and the Regulatory Flexibility Act's definition of ``small 
entity.'' The management measures included in this final rule propose 
to increase DAS allocations in the same proportion for each category of 
the limited access scallop permit. The resulting increase in profits, 
costs and net revenues are not expected to be disproportional for small 
versus large entities.

Minimizing Economic Impacts on Small Entities

    Framework 15 contains six alternatives, including no action and 
status quo alternatives. Each alternative, with the exception of the no 
action alternative, consists of DAS allocations for full-time, part-
time, and occasional scallop vessels and a TAC and possession limit 
derived from a target F for the Access Areas. The alternatives are 
described in this discussion as the full-time DAS allocation and the 
target F rate in the Area Access Program. The no action alternative 
would implement 45 full-time, 18 part-time, and 4 occasional DAS and 
would open the Hudson Canyon and Virginia Beach Access Areas to general 
scallop fishery management. The status quo alternative includes 120 
full-time DAS and an Area Access Program F of 0.2.
    This final rule will implement the 120 full-time DAS with an Area 
Access Program F = 0.32, which minimizes economic impacts on small 
entities. The impacts of the proposed alternatives on revenues, costs, 
and profits of an average vessel were analyzed. The increase in the 
days-at-sea allocations to 100, 120 or 140 full-time DAS allocations 
from the 45 full-time DAS allocation scheduled for the 2003 fishing 
year under Amendment 7 and the Area Access Program will have positive 
economic impacts on the vessels. The revenues per full-time vessel in 
2003 are expected to increase by 56 percent for the preferred action 
(120 DAS, F=0.22), and by 38 percent (100 DAS, F=0.2) to 58 percent 
(140 DAS, F=0.32) for non-preferred alternatives compared to the no 
action (45 full-time DAS, no Area Access Program). The no action 
alternative would represent a 15-percent decline in revenues from 
actual revenues in 2002. The profits are expected to more than double 
under all alternatives including the preferred action relative to the 
no action alternative. Although the analysis in this section is 
conducted for an average full-time vessel in the scallop fishery, the 
results are expected to be positive for all full-time, part-time and 
occasional vessels as well since their DAS allocations will also be 
adjusted upwards and they will be able to participate in the Area 
Access Program.

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 shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall 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 small entity compliance guide was prepared. 
The guide will be sent to all holders of permits issued for the 
Atlantic sea scallop fishery. In addition, copies of this final rule 
and guide (i.e., permit holder letter) are available from the Regional 
Administrator (see ADDRESSES) and are also available at the following 
web site: http://www.nmfs.gov/ro/doc/nero.html.
    A formal section 7 consultation under the ESA was initiated for the 
scallop fishery, including the measures contained in Framework 15. In a 
BO dated [insert date of BO], the AA determined that fishing activities 
conducted in the scallop fishery, including activities under Framework 
15 and their implementing regulations, are not likely to jeopardize the 
continued existence of any endangered or threatened species under the 
jurisdiction of NMFS, or result in the destruction or adverse 
modification of critical habitat.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 25, 2003.
Rebecca Lent,
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

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. In Sec.  648.23, paragraph (b)(2) is revised to read as follows:


Sec.  648.23  Gear restrictions.

* * * * *
    (b) * * *
    (2) Scallop dredges. (i) The towing wire is detached from the 
scallop dredge, the towing wire is completely reeled up onto the winch, 
the dredge is secured and the dredge or the winch is covered so that it 
is rendered unuseable for fishing; or
    (ii) The towing wire is detached from the dredge and attached to a 
bright-colored poly ball no less than 24 inches (60.9 cm) in diameter, 
with the towing wire left in its normal operating position (through the 
various blocks) and either is wound back to the first block (in the 
gallows) or is suspended at the end of the lifting block where its 
retrieval does not present a hazard to the crew and where it is readily 
visible from above.
* * * * *

    3. In Sec.  648.53, the table in paragraph (b) is revised to read 
as follows:


Sec.  648.53  DAS allocations.

* * * * *
    (b) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                DAS Category                  1999-2000  2000-2001  2001-2002  2002-2003  2003-2004  2004-2005  2005-2006  2006-2007  2007-2008    2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Full-time                                          120        120        120        120        120         34         35         38         36        60
Part-time                                           48         48         48         48         48         14         14         15         17        24

[[Page 9587]]

 
Occasional                                          10         10         10         10         10          3          3          3          4         5
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    4. In Sec.  648.57, the introductory text of paragraphs (a) and (b) 
are revised to read as follows:


Sec.  648.57  Closed and regulated areas.

    (a) Hudson Canyon Sea Scallop Access Area. Through February 29, 
2004, except as provided in Sec. Sec.  648.52 and 648.58, no vessel may 
fish for scallops in or land scallops from the area known as the Hudson 
Canyon Sea Scallop Access Area, and no vessel may possess scallops in 
the Hudson Canyon Sea Scallop Access Area, unless such vessel is only 
transiting the area with all fishing gear unavailable for immediate use 
as defined in Sec.  648.23(b), or there is a compelling safety reason 
to be in such areas without all such gear being unavailable for 
immediate use. The Hudson Canyon Sea Scallop Access Area (copies of a 
chart depicting this area are available from the Regional Administrator 
upon request) is defined by straight lines connecting the following 
points in the order stated:
* * * * *
    (b) Virginia Beach Sea Scallop Access Area. Through February 29, 
2004, except as provided in Sec. Sec.  648.52 and 648.58, no vessel may 
fish for scallops in or land scallops from the area known as the 
Virginia Beach Sea Scallop Access Area, and no vessel may possess 
scallops in the Virginia Beach Sea Scallop Access Area, unless such 
vessel is only transiting the areas with all fishing gear unavailable 
for immediate use as defined in Sec.  648.23(b), or, there is a 
compelling safety reason to be in such areas without all such gear 
being unavailable for immediate use. The Virginia Beach Sea Scallop 
Access Area (copies of a chart depicting this area are available from 
the Regional Administrator upon request) is defined by straight lines 
connecting the following points in the order stated:
* * * * *

    5. In Sec.  648.58, paragraphs (c)(1), (c)(4), (c)(6), (e)(2), 
(e)(3)(ii), (e)(4)(ii), and (f) are revised to read as follows:


Sec.  648.58  Sea Scallop Area Access Program.

* * * * *
    (c) * * *
    (1) Season--From March 1, 2003, through February 29, 2004, vessels 
participating in the Sea Scallop Area Access Program may fish for or 
possess sea scallop in or from the respective Sea Scallop Access Areas 
specified in Sec.  648.57, unless access to these areas is terminated 
as specified in paragraph (f) of this section. Should the 2002 fishing 
year season be closed early (i.e., prior to February 28, 2003), as 
described in this paragraph (c)(1), the Sea Scallop Area Access Program 
season for fishing year 2003 will begin on April 1, 2003.
* * * * *
    (4) Number of trips--(i) Full and part-time vessels. Full and part-
time vessels are restricted to a total of three trips into the Sea 
Scallop Access Areas, unless otherwise authorized by the Regional 
Administrator as specified in paragraph (e)(2) of this section. A trip 
to either Area counts as one trip. Full-time and part-time vessels 
participating in the Sea Scallop Area Access Program may start no more 
than one of their three allowed Area Access Program trips before May 1, 
2003, and no more than two of their three allowed Area Access Program 
trips before June 1, 2003.
    (ii) Occasional scallop vessels. Occasional vessels may fish only 
one trip under the Sea Scallop Area Access Program. The one allowed 
trip may be conducted in either the Hudson Canyon or Virginia Beach Sea 
Scallop Access Area specified in Sec.  648.57 at any time during the 
season, as specified in paragraph (c)(1) of this section.
* * * * *
    (6) Possession and landing limits--Unless otherwise authorized by 
the Regional Administrator as specified in paragraph (e) of this 
section, after declaring into the Sea Scallop Area Access Program in 
fishing year 2003, a vessel owner or operator may fish for, possess, 
and land up to 21,000 lb (9,525.4 kg) of scallop meats per trip. No 
vessel participating in the Sea Scallop Area Access Program may possess 
shoreward of the VMS demarcation line or land, more than 50 bu (17.62 
hl) of in-shell scallops.
* * * * *
    (e) * * *
    (2) Adjustment process for number of trips for Hudson Canyon and 
the Virginia Beach Sea Scallop Access Areas. On or after October 1, 
2003, if the scallop catch in the Hudson Canyon and/or Virginia Beach 
Sea Scallop Access Areas is less than the scallop TACs specified for 
fishing year 2003 in paragraph (f) of this section, the Regional 
Administrator may allocate one or more additional trips for the Hudson 
Canyon and/or Virginia Beach Sea Scallop Access Areas for full and 
part-time limited access sea scallop vessels that declared into and 
began a trip under the Sea Scallop Area Access Program prior to 
September 1, 2003. This adjustment may be made if the Regional 
Administrator determines that such adjustment will likely allow the 
scallop TAC to be reached without exceeding it. Notification of this 
adjustment to the trip limit will be provided to the vessel through a 
permit holder letter issued by the Regional Administrator. Vessels with 
occasional permits would not be allocated an additional trip.
    (3) * * *
    (ii) Observer set-aside limits by area. The cumulative amount of 
scallop authorized under this part to be taken by vessels in excess of 
the possession limits specified in paragraph (c)(6) of this section to 
defray the cost of an observer shall not exceed 2 percent of the 
overall TAC for each Sea Scallop Access Area. The following amounts 
represent 2 percent of those TACs:
    (A) Hudson Canyon Sea Scallop Access Area - 2003 area access 
program - 155 mt;
    (B) Virginia Beach Sea Scallop Access Area - 2003 area access 
program - 2 mt.
* * * * *
    (4) * * *
    (ii) Research set-aside limits and number of trips by area. The 
cumulative amount of scallop authorized under this part to be taken by 
vessels in excess of the possession limits specified in paragraph 
(c)(6) of this section to defray the cost of sea scallop research shall 
not exceed 1 percent of the overall TAC for each Sea Scallop Access 
Area. The following amounts represent 1 percent of those TACs:
    (A) Hudson Canyon Sea Scallop Access Area - 2003 area access 
program - 77 mt;
    (B) Virginia Beach Sea Scallop Access Area - 2003 area access 
program - 1 mt.
* * * * *
    (f) Termination of the Sea Scallop Area Access Program--(1) Hudson 
Canyon Sea Scallop Access Area. The Hudson Canyon Sea Scallop Access 
Area fishery for fishing year 2003 shall be terminated as of the date 
the Regional Administrator projects that 7,585 mt of sea scallops (the 
TAC less the observer and research set-asides) will be caught

[[Page 9588]]

by vessels fishing in the Hudson Canyon Sea Scallop Access Area 
described in this section. NMFS shall publish notification of the 
termination in the Federal Register.
    (2) Virginia Beach Sea Scallop Access Area. The Virginia Beach Sea 
Scallop Access Area fishery for fishing year 2003 shall be terminated 
as of the date the Regional Administrator projects that 103 mt of sea 
scallops (the TAC less the observer and research set-asides) will be 
caught by vessels fishing in the Virginia Beach Sea Scallop Access Area 
described in this section. NMFS shall publish notification of the 
termination in the Federal Register.
* * * * *
[FR Doc. 03-4782 Filed 2-25-03; 2:55 pm]
BILLING CODE 3510-22-S