[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Proposed Rules]
[Pages 61320-61323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5384]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 070817468-7594-01]
RIN 0648-AV91


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 20

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 regulations to implement Framework Adjustment 20 
(Framework 20) to the Atlantic Sea Scallop Fishery Management Plan 
(FMP), which was developed by the New England Fishery Management 
Council (Council). Framework 20 would maintain in effect the interim 
measures that were enacted by NMFS on June 21, 2007, to reduce the 
potential for overfishing the Atlantic sea scallop (scallop) resource 
and excessive scallop mortality resulting from deck loading. The action 
reduces the number of scallop trips to the Elephant Trunk Access Area 
(ETAA), and prohibits the retention of more than 50 U.S. bushels (17.62 
hL) of in-shell scallop outside of the boundaries of the ETAA. The 
proposed rule also clarifies that the current restriction on landing no 
more than one scallop trip per calendar day for vessels fishing under 
general category rules does not prohibit a vessel from leaving on a 
scallop trip on the same calendar day that the vessel landed scallops. 
Framework 20 would extend these interim measures, which are scheduled 
to expire on December 23, 2007, through the end of the scallop fishing 
year on February 29, 2008. Framework 20 would make the clarification of 
the restriction on landing more than one trip per calendar day 
permanent under the Scallop FMP.

DATES: Comments must be received at the appropriate address or fax 
number (see ADDRESSES) by 5 p.m., local time, on November 14, 2007.

ADDRESSES: You may submit comments, identified by RIN number 0648-AV91, 
by any one of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov;
     Fax: (978) 281-9135;
     Mail: Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope, ``Comments on Scallop Framework 20.''
    Instructions: all comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publically 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachment to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file format only.
    Copies of Framework 20 and its Regulatory Impact Review (RIR), 
including the Initial Regulatory Flexibility Analysis (IRFA), 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.

FOR FURTHER INFORMATION CONTACT: Don Frei, Fishery Management 
Specialist, 978-281-9221; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Interim measures currently in effect were enacted to supercede 
measures that were scheduled to go into effect on January 1, 2007, 
under Framework 18 to the FMP (Framework 18). The interim action was 
enacted in response to findings of the Scallop Plan Development Team 
(PDT), which advised the Council on November 7, 2006, that reducing the 
number of trips in the ETAA, delaying the opening, and prohibiting 
``deckloading,'' would reduce the potential for overfishing the scallop 
resource in 2007. The Council voted in November 2006 to recommend that 
NMFS implement interim measures consistent with the PDT's memorandum. 
On December 22, 2006, (71 FR 76945) NMFS implemented an interim final 
rule adopting these recommendations. This interim final rule was 
extended on June 21, 2007, (72 FR 29889) and is scheduled to expire on 
December 23, 2007.
    Framework 20 would maintain the provisions of the interim action 
that: (1) Reduced the number of trips from five trips to three trips 
for full-time scallop vessels in the ETAA (scallop possession limit 
would remain at 18,000 lb); (2) reduced the number of trips from three 
trips to two trips (for all access areas) for part-time scallop vessels 
in the ETAA (scallop possession limit for part-time vessels would be 
increased from 16,800 lb (7,620 kg) per trip to 18,000 lb (8,165 kg) 
per trip); (3) reduced the occasional vessel possession limit from 
10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip; (4) 
reduced the general category scallop fleet ETAA trip allocation from 
1,360 trips to 865 trips; and (5) prohibited the retention or deck 
loading (i.e., leaving a high volume of scallops on deck after leaving 
an access area so that the scallops can be shucked on the way in) of 
more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the 
boundaries of the ETAA.
    The Council developed Framework 20 to prevent the Framework 18 
measures from reverting back into effect when the interim measures 
expire on December 23, 2007. If this were to happen, it would restore 
the higher trip allocations and allow additional effort by the fleet, 
resulting in overfishing for the last 2 months (January and February 
2008) of the 2007 fishing year (FY). Such an outcome would undermine 
the effect of the interim measures in preventing overfishing.

Proposed Measures

1. ETAA Trip Reduction

    Framework 20 would maintain the reduction in the number of trips 
from five trips to three trips for full-time scallop vessels in the 
ETAA (scallop possession limit would remain at 18,000 lb (8,165 kg)); 
the reduction in the number of trips from three trips to two trips (for 
all access areas) for part-time scallop vessels in the ETAA (scallop 
possession limit for part-time vessels remains at 16,800 lb (7,620 kg) 
per trip); and the reduction in the occasional vessel possession limit 
from 10,500 lb

[[Page 61321]]

(4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at 
Sec.  648.60(a)(5) published for Framework 18 specified that an 
occasional vessel's possession limit is 7,500 lb (3,402 kg) per trip. 
However, Framework 18 intended and analyzed a possession limit of 
10,500 lb (4,763 kg) per trip for the 2007 FY. Framework 20 would also 
maintain the reduction in the general category scallop fleet trip 
allocation from 1,360 to 865 trips in the ETAA.
    Reducing the number of trips for scallop vessels in the ETAA would 
address the concern that overfishing of the scallop resource may occur 
in 2007. Although the biomass in the ETAA remains very high relative to 
the rest of the scallop resource, it is less abundant than was 
projected in Framework 18. As a result, even though the fishing 
mortality is expected to be lower than the target fishing mortality in 
the area, it would be high enough at the lower biomass to contribute to 
overfishing in 2007. Part-time vessels would have a trip reduction with 
an increase in the possession limit to ensure that the total access 
area catch for part-time vessels remains at 40 percent of the full-time 
access area catch, as intended by the FMP. Occasional vessels would 
have one trip to any access area, but have a possession limit of 7,500 
lb (3,402 kg) for the trip, ensuring that the total access area catch 
for occasional vessels remains at 8.3 percent of the full-time access 
area catch. Reducing trips in the ETAA was contemplated in Framework 18 
and the potential impacts of the trip reductions were fully analyzed in 
Framework 18.

2. Prohibition on Deckloading

    Framework 20 maintains the prohibition on the retention of more 
than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the 
boundaries of the ETAA for vessels on ETAA trips. Deckloading is the 
practice of loading the deck of a vessel with the scallop catch from 
several tows. Under the current Access Area regulations, vessels can 
deckload and leave the area, and the vessel crews can spend the time 
steaming home sorting and shucking scallops, thereby reducing overall 
trip costs. This can result in a vessel having more scallops on board 
than are necessary to achieve the possession limit. The excess scallops 
are discarded. In addition, due to deckloading, scallops remain on deck 
longer, increasing discard mortality. In the ETAA, deckloading may 
cause even higher scallop mortality, since catch rates are expected to 
be very high, there is a mix of scallop sizes in the area, and scallop 
crews may discard smaller scallops in favor of larger scallops. 
Although the amount of additional mortality cannot be estimated, 
prohibiting deckloading on ETAA trips is a complementary measure that 
will help prevent additional scallop mortality.

3. Regulatory Change

    Framework 20 would also implement a regulatory change to make the 
regulations consistent with the original intent of Amendment 4 to the 
FMP (Amendment 4). Amendment 4 intended that general category scallop 
vessels could not land scallops on more than one trip per calendar day. 
NMFS implemented the scallop regulations consistent with this intent 
until it was recently discovered that the regulations, as written, 
prohibit such vessels from ``fishing for'' scallops more than once per 
calendar day. This prohibited a vessel from leaving on a scallop trip 
on a calendar day if scallops had previously been landed that day. The 
general category scallop industry is concerned that interpreting the 
regulation this way may encourage unsafe fishing behavior to avoid the 
``one trip per calendar day'' restriction. Therefore, to make the 
regulations consistent with Amendment 4, NMFS is proposing a regulatory 
change that would prohibit a general category scallop vessel from 
landing scallops on more than one trip per calendar day, but would 
allow vessels to depart on a subsequent scallop trip on the same 
calendar day that the vessel landed scallops.

Classification

    NMFS has determined that this proposed rule is consistent with the 
FMP and has preliminarily determined that the rule is consistent with 
the Magnuson-Stevens Act and other applicable laws.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial IRFA was prepared, as required by section 603 of the 
Regulatory Flexibility Act (RFA). The IRFA describes the economic 
impact this proposed rule, if adopted, would have on small entities. A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY section of the preamble. A copy of this 
analysis is available from the Council (see ADDRESSES). A summary of 
the analysis follows.

Description of the Small Business Entities

    The proposed regulations implementing Framework 20 would affect 
vessels with limited access scallop and general category permits. 
According to NMFS Northeast Region permit data as of October 2006, 351 
vessels were issued limited access scallop permits, with 318 full-time, 
32 part-time, and 1 occasional limited access permit issued. In 
addition, 2,501 open access general category permits were issued. 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 landings data for the period 2004 to 2006. According to 
this information, annual revenue from scallops averaged over a million 
dollars per limited access vessel in 2005. Total revenues per vessel 
were higher when revenues from species other than scallops were 
included, but still averaged less than $3 million per vessel. Average 
scallop revenue per general category vessel was $88,702 in 2005, though 
it exceeded $240,000 when revenue from other species was included.

Proposed Reporting, Recordkeeping, and Other Compliance Requirements

    There are no new reporting, recordkeeping, or other compliance 
requirements associated with the measures proposed in Framework 20.

Economic Impacts of the Proposed Measures and Alternatives

    The proposed regulations implementing Framework 20 were developed 
to ensure that scallop landings and economic benefits would be kept to 
sustainable levels. Therefore, overall positive economic impacts are 
expected as a result of preventing overfishing. The prohibition on 
deckloading on ETAA trips is expected to help prevent additional 
scallop mortality associated with discards and thus would improve 
yield, revenues, and economic benefits from the resource. The owners of 
vessels that fish for scallops would benefit over the long-term if 
overfishing is prevented. There was strong industry support for the 
proposed action in public testimony before the Council at the meeting 
when it adopted Framework 20.
    A range of alternatives was considered in Framework 18 including: 
Scallop fishery specifications for 2006 and 2007 (open area days-at-sea 
and scallop access area trip allocations); scallop area rotation 
program adjustments; a seasonal closure of the

[[Page 61322]]

ETAA; and revisions to management measures that would improve 
administration of the FMP. Most of the alternatives in Framework 18 
were not considered by the Council in Framework 20 because they would 
have been outside the scope of the action intended to implement the 
interim measures through the end of the 2007 fishing year. The only 
measure in Framework 18 relevant to Framework 20 is the measure that 
allowed the Regional Administrator to reduce the number of ETAA trips 
through a rulemaking procedure based on biomass trigger points and 
resulting trip reductions that were included in the scallop 
regulations. NMFS could not use that procedure because the trip 
reduction recommended by the Council was based on overall fishing 
mortality, not the specified trigger points in the regulations, and 
NMFS promulgated the interim rule for the ETAA. The economic impacts of 
the reduction of ETAA trips through the Framework 18 rulemaking 
procedure, and the no action alternative to that measure, were fully 
analyzed in Framework 18 and are the basis of the economic impacts 
analysis of Framework 20.
    The only other alternative the Council considered in Framework 20 
was therefore to take no action. If no action had been taken, the 
Framework 18 measures would revert back into effect, which would 
increase the number of trips for full-time scallop vessels in the ETAA 
to five trips (an increase of two trips) and general category vessels 
would be allocated 1,360 trips (an increase of 495 trips). There is a 
very high likelihood that the additional trips would be taken because 
the scallops can be caught efficiently in the ETAA and the value of 
scallops is high. This would increase the potential that the additional 
fishing activity during January and February 2008 would lead to 
overfishing in the 2007 FY. Overfishing would have had negative impacts 
on scallop biomass, with landings, revenues and economic benefits 
likely to decline in future years as a result. The Council found this 
to be unacceptable and adopted the reduced number of trips in the ETAA 
under Framework 20 to prevent this outcome. NMFS proposes regulations 
consistent with the Council's recommendation for the same reasons.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 24, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out 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 (i)(1) is removed and reserved, 
paragraph (i)(2) is revised, and paragraphs (h)(27), (i)(13), and 
(i)(14) are added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (h) * * *
    (27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of the Elephant 
Trunk Access Area specified in Sec.  648.59(e) by a vessel that is 
declared into the Elephant Trunk Access Area under the Area Access 
Program as specified in Sec.  648.60.
    (i) * * *
    (1) [Reserved]
    (2) Land scallops on more than one trip per calendar day.
* * * * *
    (13) Fish for or land per trip, or possess at any time, in excess 
of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell 
scallops, unless the vessel is participating in the Area Access Program 
specified in Sec.  648.60, is carrying an observer as specified in 
Sec.  648.11, and an increase in the possession limit is authorized as 
specified in Sec.  648.60(d)(2).
    (14) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of the Elephant 
Trunk Access Area specified in Sec.  648.59(e) by a vessel that is 
declared into the Elephant Trunk Access Area under the Area Access 
Program as specified in Sec.  648.60.
* * * * *
    3. In Sec.  648.52, paragraph (e) is added to read as follows:


Sec.  648.52  Possession and landing limits.

* * * * *
    (e) Owners or operators of a vessel that is declared into the 
Elephant Trunk Access Area Sea Scallop Area Access Program as described 
in Sec.  648.60, are prohibited from possessing more than 50 bu (17.62 
hL) of in-shell scallops outside of the Elephant Trunk Access Area 
described in Sec.  648.59(e).
Sec.  648.58 [Amended]
    4. In Sec.  648.58, paragraph (a) is removed and reserved.
    5. In Sec.  648.59, paragraphs (e)(1) and (e)(4) are revised to 
read as follows:


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (e) * * *
    (1) From March 1, 2007, through February 29, 2012, and subject to 
the seasonal restrictions specified in paragraph (e)(3) of this 
section, a vessel issued a scallop permit may fish for, possess, or 
land scallops in or from the area known as the Elephant Trunk Sea 
Scallop Access Area, described in paragraph (e)(2) of this section, 
only if the vessel is participating in, and complies with the 
requirements of, the area access program described in Sec.  648.60.
* * * * *
    (4) Number of trips--(i) Limited access vessels. Based on its 
permit category, a vessel issued a limited access scallop permit may 
fish no more than the maximum number of trips in the Elephant Trunk Sea 
Scallop Access Area between March 1, 2007, and February 29, 2008, as 
specified in Sec.  648.60(a)(3)(i), unless the vessel owner has made an 
exchange with another vessel owner whereby the vessel gains an Elephant 
Trunk Sea Scallop Access Area trip and gives up a trip into another Sea 
Scallop Access Area, as specified in Sec.  648.60(a)(3)(ii), or unless 
the vessel is taking a compensation trip for a prior Elephant Trunk 
Access Area trip that was terminated early, as specified in Sec.  
648.60(c).
    (ii) General category vessels. Subject to the possession limits 
specified in Sec. Sec.  648.52(a) and (b), and 648.60(g), a vessel 
issued a general category scallop permit may not enter in, or fish for, 
possess, or land sea scallops in or from the Elephant Trunk Sea Scallop 
Access Area once the Regional Administrator has provided notification 
in the Federal Register, in accordance with Sec.  648.60(g)(4), that 
the 865 trips allocated for the period March 1, 2007, through February 
29, 2008, have been taken, in total, by all general category scallop 
vessels, unless transiting pursuant to paragraph (f) of this section. 
The Regional Administrator shall notify all general category scallop 
vessels of the date when the maximum number of allowed trips have been, 
or are projected to be, taken.
* * * * *
    6. In Sec.  648.60, paragraphs (a)(3)(i), (a)(3)(ii)(B), (a)(5)(i), 
(d)(1)(v), (e)(1)(v), and (g)(3)(iv) are revised to read as follows:

[[Page 61323]]

Sec.  648.60  Sea scallop area access program requirements.

* * * * *
    (a) * * *
    (3) * * *
    (i) Limited Access Vessel trips. (A) Except as provided in 
paragraph (c) of this section, paragraphs (a)(3)(i)(B) through (E) 
specify the total number of trips that a limited access scallop vessel 
may take into Sea Scallop Access Areas during applicable seasons 
specified in Sec.  648.59. The number of trips per vessel in any one 
Sea Scallop Access Area may not exceed the maximum number of trips 
allocated for such Sea Scallop Access Area as specified in Sec.  
648.59, unless the vessel owner has exchanged a trip with another 
vessel owner for an additional Sea Scallop Access Area trip, as 
specified in paragraph (a)(3)(ii) of this section, has been allocated a 
compensation trip pursuant to paragraph (c) of this section.
    (B) Full-time scallop vessels. In the 2007 fishing year, a full-
time scallop vessel may take one trip in the Closed Area I Access Area, 
one trip in the Nantucket Lightship Access Area, and three trips in the 
Elephant Trunk Access Area.
    (C) Part-time scallop vessels. In the 2007 fishing year, a part-
time scallop vessel may take one trip in the Closed Area I Access Area 
and one trip in the Nantucket Lightship Access Area; or one trip in the 
Closed Area I Access Area and one trip in the Elephant Trunk Access 
Area; or one trip in the Nantucket Lightship Access Area and one trip 
in the Elephant Trunk Access Area; or two trips in the Elephant Trunk 
Access Area.
    (D) Occasional scallop vessels. An occasional scallop vessel may 
take one trip in the 2007 fishing year into any of the Access Areas 
described in Sec.  648.59 that is open during the specified fishing 
years.
    (E) Hudson Canyon Access Area trips. In addition to the number of 
trips specified in paragraphs (a)(3)(i) (B) and (C) of this section, 
vessels may fish remaining Hudson Canyon Access Area trips allocated 
for the 2005 fishing year in the Hudson Canyon Access Area in the 2006 
and/or 2007 fishing year, as specified in Sec.  648.59(a)(3). The 
maximum number of trips that a vessel could take in the Hudson Canyon 
Access Area in the 2005 fishing year was three trips, unless a vessel 
acquired additional trips through an authorized one-for-one exchange as 
specified in paragraph (a)(3)(ii) of this section. Full-time scallop 
vessels were allocated three trips into the Hudson Canyon Access Area. 
Part-time vessels were allocated two trips that could be distributed 
among Closed Area I, Closed Area II, and the Hudson Canyon Access 
Areas, not to exceed one trip in the Closed Area I or Closed Area II 
Access Areas. Occasional vessels were allocated one trip that could be 
taken in any Access Area that was open in the 2005 fishing year.
    (ii) * * *
    (B) Limited access scallop vessels involved in an exchange of 
Closed Area II and/or Nantucket Lightship Closed Area Access Area trips 
for the 2006 fishing year, and Elephant Trunk Access Area trips for the 
2007 fishing year shall be subject to a reduction of the vessels' 
allocated trips so that the total number of allocated Elephant Trunk 
Access Area trips between two vessels that were involved in such an 
exchange shall be six for full-time vessels and four for part-time 
vessels in the 2007 fishing year. Reductions will be applied equally to 
both vessels' resulting Elephant Trunk Access Area allocation for the 
2007 fishing year after the exchange is taken into account, unless the 
vessel giving Elephant Trunk Access Area trips to another vessel has 
one or zero Elephant Trunk Access Area trips remaining after the 
exchange. In such a case, the vessel that received the Elephant Trunk 
Access Area trips will be subject to a reduction of up to four Elephant 
Trunk Access Area trips.
* * * * *
    (5) * * *
    (i) Scallop possession limits. Unless authorized by the Regional 
Administrator, as specified in paragraphs (c) and (d) of this section, 
after declaring a trip into a Sea Scallop Access Area, a vessel owner 
or operator of a limited access scallop vessel may fish for, possess, 
and land, per trip, scallops, up to the maximum amounts specified in 
paragraphs (a)(5)(i)(A) and (B) of this section. No vessel declared 
into the Elephant Trunk Access Area as described in Sec.  648.59(e) may 
possess more than 50 bu (17.62 hL) of in-shell scallops outside of the 
Elephant Trunk Access Area described in Sec.  648.59(e).
    (A) Up to 18,000 lb (8,165 kg) of shucked scallops for full-time 
and part-time scallop vessels.
    (B) Up to 7,500 lb (3,402 kg) of shucked scallops for occasional 
scallop vessels.
* * * * *
    (d) * * *
    (1) * * *
    (v) Elephant Trunk Access Area. From March 1, 2007, through 
February 29, 2008, the observer set-aside for the Elephant Trunk Access 
Area is 173,100 lb (78.5 mt).
    * * * * *
    (e) * * *
    (1) * * *
    (v) Elephant Trunk Access Area. From March 1, 2007, through 
February 29, 2008, the research set-aside for the Elephant Trunk Access 
Area is 346,200 lb (157 mt).
* * * * *
    (g) * * *
    (3) * * *
    (v) Elephant Trunk Access Area. 346,000 lb (157 mt) in 2007.
* * * * *
[FR Doc. 07-5384 Filed 10-25-07; 2:44 pm]
BILLING CODE 3510-22-S