[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72626-72630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24907]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070817468-7715-02]
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: Final Rule.

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SUMMARY: NMFS issues this final rule to approve and implement measures 
contained in Framework Adjustment 20 (Framework 20) to the Atlantic Sea 
Scallop Fishery Management Plan (FMP). This action maintains the trip

[[Page 72627]]

allocations and possession limits established by the interim measures 
that were enacted by NMFS on June 21, 2007, for the Elephant Trunk 
Access Area (ETAA) in 2007 to reduce the potential for overfishing the 
Atlantic sea scallop (scallop) resource and excessive scallop 
mortality. This action reduces the number of scallop trips to the ETAA, 
and prohibits the retention of more than 50 U.S. bushels (17.62 hL) of 
in-shell scallop outside ot the boundaries of the ETAA (deckloading). 
The action 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.

DATES: This rule is effective December 24, 2007.

ADDRESSES: Copies of Framework Adjustment 20 are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street, Mill 2,Newburyport, MA 01950. The framework document is 
also accessible via the Internet at http://www.nero.noaa.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    The proposed rule for Framework 20 was published in the Federal 
Register on October 30, 2007 (72 FR 61320). Comments were accepted 
through November 14, 2007. By approving Framework 20 this action 
adjusts measures approved as part of Framework 18 to the FMP (Framework 
18) (71 FR 33211, June 8, 2006), and maintains the provisions of the 
interim action that: (1) Reduce 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) reduce 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) reduce the occasional vessel 
possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 
kg) per trip; (4) reduce the general category scallop fleet ETAA trip 
allocation from 1,360 trips to 865 trips; and (5) prohibit the 
retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallops 
outside of the boundaries of the ETAA ( or deckloading, 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 back to port).
    The Council developed Framework 20 to prevent the Framework 18 
measures from going 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.

Approved Management Measures

    In the proposed rule, NMFS requested comments on all proposed 
management measures, and received one comment on the proposed rule. The 
approved management measures are discussed below. No measures in 
Framework 20 were disapproved. Details concerning the Council's 
development of these measures were presented in the preamble of the 
proposed rule and are not repeated here.

1. ETAA Trip Reduction

    This action maintains 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 (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. This action also 
maintains 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 
addresses 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 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 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

    This action 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 and shucking the scallops while steaming back to port. If 
allowed to deckload, vessel could 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 
precisely estimated, prohibiting deckloading on ETAA trips is a 
complementary measure that will help prevent additional scallop 
mortality.

3. Regulatory Change

    This final rule implements a regulatory change making the 
regulations consistent with the original intent of Amendment 4 to the 
FMP (Amendment 4) (59 FR 2757, January 19, 1994) . Amendment 4 intended 
that general category scallop vessels cannot 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 calendar day. The general category

[[Page 72628]]

scallop industry is concerned that interpreting the regulation this way 
may encourage unsafe fishing behavior to complete as many trips as 
possible while avoiding the ``one trip per calendar day'' restriction. 
For example, if a vessel owner has to wait a full calendar day to set 
sail on a subsequent trip, he/she may sail despite hazardous weather. 
To make the regulations consistent with Amendment 4, NMFS implements 
the regulatory change in this final rule that prohibits a general 
category scallop vessel from landing scallops on more than one trip per 
calendar day, but allows vessels to depart on a subsequent scallop trip 
on the same calendar day that the vessel landed scallops.
    The trip allocations and possession limits for the ETAA in 2007 are 
intended to be effective for the remainder of the 2007 fishing year. 
However the FMP currently specifies that if framework measures to 
change annual scallop measures are not implemented by March 1 of each 
fishing year, the scallop DAS and access area allocations remain in 
effect until replaced by new measures. Therefore, if Framework 19 to 
the FMP (adopted by the Council in October 2007) is not completed by 
March 1, 2007, the trip allocations and possession limits for the ETAA 
in 2007 will remain in effect until modified by Framework 19 measures. 
The prohibition on deckloading and the regulatory change to the ``one 
per calender day'' landing restriction is permanent, unless modified by 
the Council and NMFS through subsequent action.

Comments and Responses

    NMFS received one comment on the proposed rule to implement 
Framework 20 that was in favor of extending DAS limitations on scallop 
fishing for the purpose of preventing overfishing. This comment did not 
address any specific measures in Framework 20 and therefore was not 
pertinent to the decision to implement this action.

Classification

    NMFS has determined that this final rule is consistent with the FMP 
and has determined that the rule is consistent with the Magnuson-
Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
to waive the 30-day delay in effective date under authority contained 
in 5 U.S.C. 553(d)(3) for this rule because provisions in this rule are 
critical for the sustainable management of the scallop resource and 
need to be implemented in a timely manner. This action extends interim 
measures for the Elephant Trunk Access Area (ETAA), implemented in 
December 2006 to reduce overfishing for the 2007 fishing year (March 1, 
2007, through February 29, 2008). If this rule is implemented after 
December 23, 2007 Framework 18 measures will come into effect, which 
would likely cause overfishing in the 2007 fishing year as a result of 
the higher trip allocations. Overfishing of the scallop resource in the 
2007 fishing year would make future measures already developed by the 
Council for the 2008 and 2009 fishing years less likely to achieve 
their goals of preventing overfishing and providing for optimum yield 
to the industry on a continuing basis. In turn, the Council would 
likely have to consider more restrictive measures to account for the 
unexpected overfishing in 2007, which would likely cause short term 
losses for the industry. In addition, this action extends measures 
currently in place and does not implement any new compliance 
requirements on the scallop industry.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act has 
prepared a FRFA in support of Framework 20. The FRFA describes the 
economic impact that this final rule, along with other non-preferred 
alternatives, will have on small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA for the proposed rule to implement Framework 20 (72 FR 
61320, October 30, 2007), the comments and responses in this final 
rule, and the corresponding economic analyses prepared for Framework 20 
(e.g., the EA and RIR). The contents of these incorporated documents 
are not repeated in detail here. A copy of the IRFA, the RIR and the EA 
are available on request (see ADDRESSES). A description of the reasons 
for this action, the objectivs of the action, and the legal basis for 
this final rule are found in Framework 20 and the preamble to the 
proposed and final rules.

Statement of Need for this Action

    The purpose of this action is 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 of the 2007 fishing year (FY). Such 
an outcome would undermine the effect of the interim measures in 
preventing overfishing.

Description of the Small Business Entities to Which this Action Will 
Apply

    The regulations associated with Framework 20 will 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. Therefore, there will be no 
differential impact from this action between large and small entities. 
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.

Description of the Steps taken to Minimize the Significant Economic 
Impact on Small Entities Consistent with the Stated Objectives of 
Applicable Statutes, Including a Statement of the Factual, Policy and 
Legal Reasons for Selecting the Alternative Adopted in the Final Rule 
and Why Each One of the Other Significant Alternatives to the Rule 
Considered by the Agency Which Affect the Impact on Small Entities was 
Rejected

    The 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

[[Page 72629]]

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.
    While a range of alternatives were considered in Framework 18, 
which established the management measures for 2006 and 2007, the only 
other alternative the Council considered in Framework 20 was to take no 
action. If no action had been taken, the Framework 18 measures would 
revert into effect, with the potential that 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 Framework 20 to prevent this outcome. Other alternatives that 
the Council could have considered included overall reductions in effort 
or reductions in trip allocations in other areas. Such actions would 
have had other negative economic impacts since reductions in DAS or 
trip allocations would still have been necessary. In addition, these 
actions would have been more suitable for an annual adjustment rather 
than the extension of interim measures through Framework 20. The 
Council therefore did not consider and analyze these alternatives.

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

    Dated: December 17, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.14, 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) * * *
    (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.
* * * * *

0
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]

0
4. In Sec.  648.58, paragraph (a) is removed and reserved.

0
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.
* * * * *

0
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:


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) of 
this section 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

[[Page 72630]]

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. E7-24907 Filed 12-20-07; 8:45 am]
BILLING CODE 3510-22-S