[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Proposed Rules]
[Pages 38352-38355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6016]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060621176-6176-01; I.D. 052306A]
RIN 0648-AU50


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Great South Channel Scallop Dredge Exemption Area

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes to modify the regulations implementing the 
Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow 
vessels issued either a General Category Atlantic sea scallop permit or 
a limited access sea scallop permit, when not fishing under a scallop 
days-at-sea (DAS) limitation, to fish for scallops with small dredges 
(combined width not to exceed 10.5 ft (3.2 m)) within the Great South 
Channel Scallop Dredge Exemption Area. This proposed rule responds to a 
request from the fishing industry to add this area to the list of 
exempted fisheries. The intent of this action is to allow small scallop 
dredge vessels to harvest scallops in a manner that is consistent with 
the bycatch reduction objectives of the FMP.

DATES: Comments must be received no later than 5 p.m., eastern daylight 
time, on July 21, 2006.

ADDRESSES: Comments may be submitted by any of the following methods:
     E-mail: [email protected]. Include in the subject line the 
following: ``Comments on General Category Scallop Dredge Exemption.''
     Federal e-Rulemaking Portal: http:/www.regulations.gov.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope, ``Comments on General Category Scallop Dredge 
Exemption.''
     Fax: (978) 281-9135.
    Copies of supporting documents, including the Regulatory Impact 
Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and 
the Environmental Assessment (EA) prepared for this action are 
available from Patricia A. Kurkul, Regional Administrator, NMFS, at the 
above address. A summary of the IRFA is provided in the Classification 
section of this proposed rule.

FOR FURTHER INFORMATION CONTACT: Tobey H. Curtis, Fishery Management 
Specialist, 978-281-9273, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Current regulations, implemented under Framework Adjustment 9 and 
expanded under Amendment 7 to the FMP, contain a multispecies fishing 
mortality and bycatch reduction measure that is applied to the Gulf of 
Maine (GOM), Georges Bank (GB), and Southern New England (SNE) 
Exemption Areas. A vessel may not fish in these areas unless it is 
fishing under a NE multispecies or a scallop day-at-sea (DAS) 
allocation, is fishing with exempted gear, is fishing under the Small 
Vessel Handgear (A or B) or Party/Charter permit restrictions, or is 
fishing in an exempted fishery. The procedure for adding, modifying, or 
deleting fisheries from the list of exempted fisheries is found in 50 
CFR part 648.80. A fishery may be exempted by the Regional 
Administrator (RA), after consultation with the New England

[[Page 38353]]

Fishery Management Council (Council), if the RA determines, based on 
available data or information, that the bycatch of regulated species 
is, or can be reduced to, less than 5 percent by weight of the total 
catch and that such exemption will not jeopardize the fishing mortality 
objectives of the FMP.
    On October 25, 2005, a request was submitted on behalf of the 
General Category scallop fleet to establish an additional exempted 
scallop dredge fishery in the GOM/GB Exemption Area, particularly in 
Statistical Areas 521 and 526, in the vicinity of traditional 
scalloping grounds within the area known as the Great South Channel, 
off Cape Cod, MA. Neither the GOM Scallop Dredge Exemption Area, 
established in Framework 21 to the FMP (February 1997), nor the SNE 
Scallop Dredge Exemption Area, established in Amendment 13 to the FMP 
(April 2004), include these statistical areas within their exemption 
programs. Therefore, a new exempted fishery is needed to allow General 
Category scallop vessels to fish in statistical areas 521 and 526, 
provided the fishery does not jeopardize the fishing mortality 
objectives of the FMP. During its November 2005 meeting, the Council 
voted to concur with the RA's determination regarding the exemption 
request, and to approve it if it was found to be consistent with the 
regulations and FMP objectives.
    The data analyzed for this industry request consisted of observer 
data from both General Category and limited access scallop dredge trips 
in the GOM/GB Exemption Area from 2000 to 2005. A total of 31 General 
Category trips and 91 limited access trips were observed during that 
period. Because observer data were sparse outside of statistical areas 
521 and 526, the analyses focused on these two areas. Bycatch rates 
were calculated on a trip-by-trip basis by adding up the total weights 
(lb) of multispecies, scallops (in-shell weight), and all other catch 
on each observed trip, and then calculating the percentage of the total 
catch represented by regulated multispecies. The percent bycatch of 
regulated multispecies in statistical areas 521 and 526 ranged from 0 
to 0.4 percent in General Category trips (N=5), and 0 to 3.7 percent in 
limited access trips (N=37). No observed scallop dredge trips in 
statistical areas 521 or 526 exceeded 5 percent. The mean percent 
bycatch of regulated species by weight of the total catch across all 
areas in the General Category and limited access fisheries was less 
than 5 percent. From a total of five observed General Category trips 
into statistical areas 521 and 526, the mean percent bycatch was 0.1 
percent of the total catch. From the 37 observed limited access scallop 
dredge trips into those same areas, the mean percent bycatch was 
estimated to be 0.9 percent of the total catch. Even though the 
analyses were conducted at the statistical area scale, when spatially 
plotted, the vast majority of the observed trips occurred within a 
discrete portion of the statistical areas, primarily in the Great South 
Channel. Based on this information, the proposed exemption area is 
constrained to the area from which the most data were available.
    The primary groundfish species of concern with this proposed action 
is yellowtail flounder, which is currently overfished and not yet 
meeting its required rebuilding schedule as mandated by Amendment 13 to 
the FMP. Fishing Year (FY) 2006 total allowable catch (TAC) is, 
therefore, very low for SNE and Cape Cod (CC)/GOM stocks, and any 
additional sources of mortality must be carefully considered. Although 
overall regulated species bycatch rates were very low, yellowtail and 
winter flounders were the primary bycatch species on the observed trips 
in the Great South Channel area. Based on the observed bycatch rates of 
yellowtail flounder in scallop dredges in this area, and projections of 
the annual number of General Category scallop dredge trips to this 
area, however, the total catch of yellowtail flounder in this exemption 
program would likely represent less than 0.5 percent of the FY 2006 
TACs for SNE and CC/GOM stocks. Additionally, the opening of the Great 
South Channel to General Category scallop vessels may redistribute the 
effort in this fishery away from other areas that have higher bycatch 
rates of yellowtail flounder. The proposed exemption is therefore 
expected to meet both the bycatch and the fishing mortality 
requirements of the regulations.

Proposed Measures

Great South Channel Scallop Dredge Exemption Area

    Based on the analysis of available data, the bycatch of regulated 
species by scallop dredge vessels is less than 5 percent, by weight, of 
the total catch in the Great South Channel. Therefore, the RA has 
determined that an exempted scallop dredge fishery in a specifically 
defined portion of the Great South Channel meets the exemption 
requirements specified in Sec.  648.80(a)(8). At this time, there are 
not sufficient data to determine if a scallop dredge fishery in any 
other area would also meet the exemption requirements.
    Therefore, this rule proposes to implement an exempted fishery for 
vessels fishing with General Category scallop permits, or limited 
access scallop permits not fishing under a DAS allocation, to use small 
dredges with a combined width not greater than 10.5 ft (3.2 m) in 
portions of the Great South Channel (see area definition below). This 
area would be referred to as the Great South Channel Scallop Dredge 
Exemption Area (GSC Area). Portions of the GSC Area would be seasonally 
closed to protect SNE, GB, and Cape Cod (CC)/GOM yellowtail flounder 
during their peak spawning periods. Peak spawning periods are defined 
in the EA prepared for Framework Action 40-B to the FMP. The portion of 
the GSC Area that lies within statistical areas 525 and 526 (SNE and GB 
yellowtail flounder stock areas) would be closed from April 1 through 
June 30. The portion of the GSC that lies within statistical area 521 
(CC/GOM yellowtail flounder stock area) would be closed from June 1 
through June 30.
    Vessels fishing in this exemption that wish to land more than 40 lb 
(18.1 kg) of shucked (5 bu (1.76 hL) unshucked) scallops would be 
required to have a Category 1B General Category scallop permit, an 
operational Vessel Monitoring System (VMS), and would be allowed to 
land a maximum of 400 lb (181.4 kg) of shucked (50 bu (17.62 hL) 
unshucked) scallops per trip. Vessels with a limited access scallop 
permit would also be allowed to participate in the exemption when not 
fishing under a scallop DAS, and would be restricted to the Category 1B 
General Category scallop permit regulations. These vessels would not be 
allowed to fish for, possess on board, or land any fish species other 
than scallops. Other than the seasonal closures between April and June, 
these regulations are consistent with those of the existing scallop 
dredge exemption areas defined at Sec.  648.80(a)(11) and (b)(11). 
Regulations governing the scallop fishery can be found at 50 CFR 648, 
subpart D.

Classification

    NMFS has determined that this proposed rule is consistent with the 
FMP and preliminarily determined that the rule is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which 
describes the economic impacts that this proposed

[[Page 38354]]

rule, if adopted, would have on small entities. A description of the 
reasons why this action is being considered, as well as the objectives 
of and legal basis for this proposed rule is found in the preamble to 
this proposed rule. There are no Federal rules that duplicate, overlap, 
or conflict with the proposed rule. This action proposes to create a 
new scallop dredge exemption area for General Category scallop vessels 
in the GOM/GB Exemption Area. This action was compared to three 
different alternatives for the boundaries of the exemption area. 
Alternatives to the proposed exemption area included exempting all of 
statistical areas 521 and 526, exempting the entirety of the GOM/GB 
Exemption Area, and a No Action alternative, which would continue to 
prohibit General Category scallop dredge vessels from fishing outside 
of the existing scallop dredge exemption areas.

Description and Estimate of the Number of Small Entities to Which This 
Proposed Rule Would Apply

    The Small Business Administration (SBA) defines a small commercial 
fishing entity as a firm with gross receipts not exceeding $4 million. 
As of March 2006, a total of 2,814 vessels had been issued open access 
General Category scallop permits in the NE region. Approximately 30 
percent of these were issued the Category 1B permit, which allows up to 
400 lb (181.4 kg) of scallop meats per trip, and are considered to be 
vessels that primarily rely on scallops for the bulk of their revenues. 
Any of these permitted vessels would be allowed to participate in this 
exemption program, but the area proposed to be exempt has traditionally 
been mostly fished by vessels from Massachusetts and Maine. Average 
2005 scallop revenues for General Category scallop vessels was $87,369 
per vessel, though there was great variation from vessel to vessel, 
ranging from less than $7,000 to over $160,000 per vessel. The majority 
of these vessels also receive additional revenues from a variety of 
other species. Each vessel in this analysis is treated as a single 
entity for purposes of size determination and impact assessment. All 
commercial fishing entities would fall under the SBA size standard for 
small commercial fishing entities. Therefore, there is no differential 
impact between large and small entities. A more complete description of 
the General Category fishery can be found in Framework Adjustment 18 to 
the Atlantic Sea Scallop FMP, available from the Council 
(www.nefmc.org).

Economic Impacts of This Proposed Action

    The economic impacts of the proposed action are expected to be 
positive. This action would open a valuable scallop fishing ground to 
the General Category scallop fleet, and would allow the fleet to 
utilize these resources in a manner consistent with the bycatch and 
mortality objectives of the FMP. The demand for scallops has increased 
significantly in recent years, and revenues for General Category 
vessels are also expected to increase if the exemption area is 
approved. There is evidence that some General Category vessels have 
been fishing in this area for years, despite the fact that it is 
outside of the existing Scallop Dredge Exemption Areas. Their profits 
from scallop fishing have declined since access to this area was 
prohibited and enforced. The ports in Cape Cod and southern 
Massachusetts will be the most impacted, due to their proximity to the 
proposed exemption area.

Economic Impacts of Alternatives to the Proposed Action

    Three alternatives other than the preferred alternative were 
considered. The alternative that proposed to exempt the entirety of 
statistical areas 521 and 526 throughout the year to General Category 
scallop vessels, and the alternative that proposed to exempt the much 
larger area of the GOM/GB Exemption Area year-round would also have 
positive economic impacts; possibly slightly more positive than the 
preferred alternative due to the larger exempted area and the lack of a 
closure period. These alternatives were rejected, however, due 
primarily to the lack of observer data needed to estimate the bycatch 
rates of regulated multispecies throughout these areas. Potentially 
negative economic impacts would result if this action was delayed for 
the time period that would be necessary to collect the required 
observer data. The No Action alternative was the only alternative that 
could pose negative economic impacts by continuing to prohibit General 
Category scallop vessels from fishing in the Great South Channel.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 29, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons stated in the preamble 50 CFR part 648 is proposed 
to be 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.  648.14, paragraph (a)(43) is revised to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (a) * * *
    (43) Violate any of the provisions of Sec.  648.80, including 
paragraphs (a)(5), the small-mesh northern shrimp fishery exemption 
area; (a)(6), the Cultivator Shoal whiting fishery exemption area; 
(a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket 
Shoals dogfish fishery exemption area; (a)(11), the GOM Scallop Dredge 
Exemption Area; (a)(12), the Nantucket Shoals mussel and sea urchin 
dredge exemption area; (a)(13), the GOM/GB monkfish gillnet exemption 
area; (a)(14), the GOM/GB dogfish gillnet exemption area; (a)(15), the 
Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great 
South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small 
mesh); (b)(5); the SNE monkfish and skate trawl exemption area; (b)(6), 
the SNE monkfish and skate gillnet exemption area; (b)(8), the SNE 
mussel and sea urchin dredge exemption area; (b)(9), the SNE little 
tunny gillnet exemption area; and (b)(11), the SNE Scallop Dredge 
Exemption Area. Each violation of any provision in Sec.  648.80 
constitutes a separate violation.
* * * * *
    3. In Sec.  648.80, paragraphs (a)(3)(viii) and (a)(7)(ii) are 
revised, and paragraph (a)(18) is added to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (a) * * *
    (3) * * *
    (viii) Other restrictions and exemptions. Vessels are prohibited 
from fishing in the GOM/GB Exemption Area as defined in paragraph 
(a)(17) of this section, except if fishing with exempted gear (as 
defined under this part) or under the exemptions specified in 
paragraphs (a)(5) through (7), (a)(9) through (16), (a)(18), (d), (e), 
(h), and (i) of this section; or if fishing under a NE multispecies 
DAS; or if fishing under the Small Vessel or Handgear A exemptions 
specified in Sec.  648.82(u)(5) and (6), respectively; or if fishing 
under a scallop DAS in accordance with paragraph (h) of this section; 
or if fishing pursuant to a NE multispecies open access Charter/Party 
or Handgear

[[Page 38355]]

permit, or if fishing as a charter/party or private recreational vessel 
in compliance with the regulations specified in Sec.  648.89. Any gear 
on a vessel, or used by a vessel, in this area must be authorized under 
one of these exemptions or must be stowed as specified in Sec.  
648.23(b).
* * * * *
    (7) * * *
    (ii) Vessels subject to the minimum mesh size restrictions 
specified in paragraphs (a)(3) or (4) of this section may transit 
through the Scallop Dredge Fishery Exemption Areas defined in 
paragraphs (a)(11) and (18) of this section with nets on board with a 
mesh size smaller than the minimum size specified, provided that the 
nets are stowed in accordance with one of the methods specified in 
Sec.  648.23(b), and provided the vessel has no fish on board.
* * * * *
    (18) Great South Channel Scallop Dredge Exemption Area. Vessels 
issued a limited access scallop permit that have declared out of the 
DAS program as specified in Sec.  648.10, or that have used up their 
DAS allocations, and vessels issued a General Category scallop permit, 
may fish in the Great South Channel Scallop Dredge Exemption Area as 
defined under paragraph (a)(18)(i) of this section, when not under a NE 
multispecies or scallop DAS, provided the vessel complies with the 
requirements specified in paragraph (a)(18)(ii) of this section.
    (i) Area Definition. The Great South Channel Scallop Dredge 
Exemption Area is defined by the straight lines connecting the 
following points in the order stated (copies of a chart depicting the 
area are available from the Regional Administrator upon request):

            Great South Channel Scallop Dredge Exemption Area
------------------------------------------------------------------------
                 Point                      N. lat.          W. long.
------------------------------------------------------------------------
GSC 1.................................  41[deg]50.52'    69[deg]40'
GSC 2.................................  40[deg]50'       68[deg]49.2'
GSC 3.................................  40[deg]50'       69[deg]29.46'
GSC 4.................................  41[deg]10'       69[deg]50'
GSC 5.................................  41[deg]10'       70[deg]00'
GSC 6.................................  41[deg]35'       70[deg]00'
GSC 7.................................  41[deg]35'       69[deg]40'
------------------------------------------------------------------------

    (ii) Requirements. (A) A vessel fishing in the Great South Channel 
Scallop Dredge Exemption Area specified in this paragraph (a)(18) may 
not fish for, possess on board, or land any species of fish other than 
Atlantic sea scallops.
    (B) The combined dredge width in use by, or in possession on board, 
vessels fishing in the Great South Channel Scallop Dredge Exemption 
Area may not exceed 10.5 ft (3.2 m), measured at the widest point in 
the bail of the dredge.
    (C) GSC SNE/GB Yellowtail Flounder Peak Spawning Closure. No vessel 
that qualifies under this exemption, as defined in this paragraph 
(a)(18), may fish for Atlantic sea scallops in the Great South Channel 
Scallop Dredge Exemption Area that lies within the SNE and GB 
yellowtail flounder stock areas (statistical areas 525 and 526) between 
April 1 and June 30, as defined by the straight lines connecting the 
following points in the order stated below.

             GSC SNE/GB Yellowtail Flounder Spawning Closure
------------------------------------------------------------------------
                 Point                      N. lat.          W. long.
------------------------------------------------------------------------
YTA 1.................................  41[deg]20'       70[deg]00'
YTA 2.................................  41[deg]20'       69[deg]50'
YTA 3.................................  41[deg]10'       69[deg]50'
YTA 4.................................  41[deg]10'       69[deg]30'
YTA 5.................................  41[deg]00'       69[deg]30'
YTA 6.................................  41[deg]00'       68[deg]57.58'
YTA 7.................................  40[deg]50'       68[deg]49.20'
YTA 8.................................  40[deg]50'       69[deg]29.46'
YTA 9.................................  41[deg]10'       69[deg]50'
YTA 10................................  41[deg]10'       70[deg]00'
YTA 11................................  \(1)\            70[deg]00'
------------------------------------------------------------------------
\(1)\ Intersection of south-facing coastline of Nantucket, MA, and
  70[deg]00 [min] W. Long.

    (D) GSC CC/GOM Yellowtail Flounder Peak Spawning Closure. No vessel 
that qualifies under this exemption, as defined in this paragraph 
(a)(18), may fish for Atlantic sea scallops in the Great South Channel 
Scallop Dredge Exemption Area that lies within the CC/GOM yellowtail 
flounder stock area (statistical area 521) between June 1 and June 30 
of each year, as defined by the straight lines connecting the following 
points in the order stated below.

             GSC CC/GOM Yellowtail Flounder Spawning Closure
------------------------------------------------------------------------
                 Point                      N. lat.          W. long.
------------------------------------------------------------------------
YTB 1.................................  41[deg]33.05'    70[deg]00'
YTB 2.................................  41[deg]20'       70[deg]00'
YTB 3.................................  41[deg]20'       69[deg]50'
YTB 4.................................  41[deg]10'       69[deg]50'
YTB 5.................................  41[deg]10'       69[deg]30'
YTB 6.................................  41[deg]00'       69[deg]30'
YTB 7.................................  41[deg]00'       68[deg]57.58'
YTB 8.................................  41[deg]50.52'    69[deg]40'
YTB 9.................................  41[deg]35'       69[deg]40'
YTB 10................................  41[deg]35'       70[deg]00'
------------------------------------------------------------------------

* * * * *
    4. Sec.  648.81, paragraph (g)(2)(iii) is revised to read as 
follows:


Sec.  648.81  NE multispecies closed areas and measures to protect EFH.

* * * * *
    (g) * * *
    (2) * * *
    (iii) That are fishing with or using scallop dredge gear when 
fishing under a scallop DAS, and provided that the vessel complies with 
the NE multispecies possession restrictions for scallop vessels 
specified at Sec.  648.80(h); or when lawfully fishing in the Scallop 
Dredge Fishery Exemption Areas, as described in paragraphs (a)(11) and 
(18) of this section.
* * * * *
[FR Doc. 06-6016 Filed 6-30-06; 1:19 pm]
BILLING CODE 3510-22-S