[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43746-43772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18311]



[[Page 43745]]

Vol. 76

Thursday,

No. 140

July 21, 2011

Part II





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 648





Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
Provisions; Fisheries of the Northeastern United States; Atlantic Sea 
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery 
Management Plan (Scallop FMP); Final Rule

  Federal Register / Vol. 76 , No. 140 / Thursday, July 21, 2011 / 
Rules and Regulations  

[[Page 43746]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110329229-1370-03]
RIN 0648-BA71


Magnuson-Stevens Fishery Conservation and Management Act (MSA) 
Provisions; Fisheries of the Northeastern United States; Atlantic Sea 
Scallop Fishery; Amendment 15 to the Atlantic Sea Scallop Fishery 
Management Plan (Scallop FMP)

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS hereby implements measures approved in Amendment 15 to 
the Scallop FMP (Amendment 15), which was developed by the New England 
Fishery Management Council (Council). Amendment 15 was developed 
primarily to implement annual catch limits (ACLs) and accountability 
measures (AMs) to bring the Scallop FMP into compliance with 
requirements of the MSA as reauthorized in 2007. Amendment 15 includes 
additional measures recommended by the Council, including: A revision 
of the overfishing definition (OFD); modification of the essential fish 
habitat (EFH) closed areas under the Scallop FMP; adjustments to 
measures for the Limited Access General Category (LAGC) individual 
fishing quota (IFQ) fishery; adjustments to the scallop research set-
aside (RSA) program; and additions to the list of measures that can be 
adjusted by framework adjustments. NMFS has disapproved a provision 
that would have allocated additional scallop catch to the LAGC fleet 
because it was not consistent with National Standard 1 and the ACL 
requirement of the MSA.

DATES: Effective July 21, 2011.

ADDRESSES: A final environmental impact statement (FEIS) was prepared 
for Amendment 15 that describes the proposed action and its 
alternatives and provides a thorough analysis of the impacts of 
proposed measures and their alternatives. Copies of Amendment 15, 
including the FEIS and the IRFA, are available 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.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to the Office of Management and Budget (OMB) by e-mail at 
[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy 
Analyst, phone (978) 281-9288, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    In January 2007, the MSA was reauthorized and included a provision 
requiring each FMP to use ACLs to prevent overfishing, including 
measures to ensure accountability, should the ACLs be exceeded. For 
fishery resources that were determined to be subject to overfishing, 
the MSA requires that such measures be implemented by 2010. For fishery 
resources that are not subject to overfishing, such measures must be 
implemented by 2011. Scallop fishery management measures to comply with 
the MSA's ACL and AM requirements are required for 2011, because the 
scallop resource is not subject to overfishing. To meet this 
requirement, the Council initiated development of Amendment 15 on March 
5, 2008, by publishing a Notice of Intent to develop Amendment 15 (73 
FR 11888, March 5, 2008) and prepare an EIS to analyze the impacts of 
the proposed management alternatives. The Council intended that 
Amendment 15 would address three goals: (1) Bring the Scallop FMP into 
compliance with new requirements of the reauthorized MSA; (2) address 
excess capacity in the limited access (LA) scallop fishery; and (3) 
consider measures to adjust several aspects of the overall program to 
make the scallop FMP more effective. Following the public comment 
period that ended on August 23, 2010, the Council adopted Amendment 15 
on September 29, 2010. The Council voted to adopt most of the measures 
proposed in the amendment except permit stacking and leasing 
alternatives, which had been designed to address excess capacity, after 
considering extensive written and oral public comment on the measures. 
Ultimately the Council rejected these measures due to concerns that the 
measures would have unacceptable negative economic and social impacts 
on the scallop fleet and fishing communities. The Notice of 
Availability (NOA) for Amendment 15 was published March 24, 2011 (76 FR 
16595), with a comment period ending May 23, 2011. The proposed rule 
for Amendment 15 was published April 11, 2011 (76 FR 19929), with a 
comment period ending May 26, 2011.
    This final rule implementing Amendment 15 establishes the mechanism 
for implementing ACLs and AMs, which in turn will generate scallop 
fishery specifications, including days-at-sea (DAS), access area trip 
allocations, and individual fishing quotas (IFQs). Amendment 15 does 
not include ACLs and fishery specifications. These specifications will 
be established through the separate action of Framework 22 to the FMP 
for fishing years (FYs) 2011, 2012, and 2013. Framework 22 includes 
specific measures that address the change from DAS, access areas, and 
trip allocations that became effective on March 1, 2011, to different 
allocations implemented under Framework 22. If Framework 22 is 
approved, a final rule implementing Framework 22 measures will be 
published shortly after publication of this final rule.
    The Council reviewed the Amendment 15 proposed regulations as 
drafted by NMFS and deemed them to be necessary and appropriate as 
required by section 303(c) of the MSA.

Disapproved Measure

    NMFS has disapproved the proposed measure that would have allocated 
additional catch to the LAGC IFQ fleet if the limited access fleet's AM 
exception were implemented. The Council adopted, and NMFS has approved, 
a LA fleet AM exception that could exempt the LA fleet from its AM, 
even if the LA fleet exceeds its sub-ACL in a given FY. The exception 
will be implemented if the actual F for the total ACL is lower than the 
estimated F for the scallop fishery's ACL for that year, based on an 
evaluation by the Council's Scallop Plan Development Team (PDT) after 
the end of the fishing year. Estimated F could be higher than actual F 
if landings per unit effort (LPUE) had been underestimated relative to 
the status of the resource, so that the estimated F, and consequently 
the specified ACL, was inconsistent with actual resource conditions.
    The Council also adopted a related measure that would have 
allocated additional catch to the LAGC IFQ fleet if the LA fleet's AM 
exception was enacted after the LA sub-ACL was exceeded, in a manner 
proportional to the LA fleet's overage. The Council's rationale was 
that, if the LA fleet did not have to have its AM triggered, the LAGC 
IFQ fleet should benefit in some way too (i.e., the LAGC IFQ fleet 
should also

[[Page 43747]]

benefit from an underestimate of ABC/ACL based on the re-evaluation of 
F). Also, the Council was concerned that an inequity could occur 
because the LA fleet would have harvested more scallops than it was 
allocated, without being held accountable. Had the original F estimate 
been accurate, the ``extra'' scallops could have been distributed to 
both the LA and LAGC IFQ fleets in setting the allocations. To account 
for the inequity, the LAGC IFQ fleet would be allocated 5.5 percent of 
the LA fleet's overage of its sub-ACL. The additional allocation to the 
LAGC IFQ fleet would be distributed through adjustment of IFQs in the 
FY following the evaluation.
    Under the LA fleet AM exception measure, the LA fleet could have 
exceeded its prescribed ACL, and could have unaccounted catch, but 
there would be a process for evaluating the overage relative to the F 
related to the total ACL (which is equal to the acceptable biological 
catch (ABC)). However, the proposed measure that would have allocated 
additional catch to the LAGC IFQ fleet if the AM exception is triggered 
would not have evaluated the reallocation relative to ABC, ACL, sub-
ACLs, or the associated Fs, and therefore could have risked exceeding 
the ABC/ACL. Because the proposed AM exception would have been 
automatic, additional catch would have been allocated in the following 
FY without consideration of whether the additional catch would cause 
the overall ACL, or F associated with that ACL, to be exceeded when 
combined with total catch in that year. This is contrary to the 
Council's intent to build precaution into establishing ACLs and sub-
ACLs in the fishery. As a result, this measure would risk overfishing. 
Because there is no assurance that allocating additional catch to the 
LAGC IFQ fleet would prevent overfishing, the measure is inconsistent 
with National Standard 1 of the MSA. The measure is also inconsistent 
with the MSA requirement at Section 303(a)(15) that FMPs ``establish a 
mechanism for specifying ACLs in the plan * * * at a level such that 
overfishing does not occur in the fishery, including measures to ensure 
accountability.''
    In addition, this substantive measure was added to Amendment 15 at 
the last Council meeting before adoption of Amendment 15 and, as such, 
is inconsistent with MSA and National Environmental Policy Act 
procedures because the process did not provide sufficient opportunity 
for full open public and Council consideration of the impacts of the 
measure and its implications on ACL management of the scallop fishery. 
NMFS has therefore disapproved the proposed measure.

Approved Management Measures

1. ACL Flow Chart

    Amendment 15 establishes a method for accounting for all catch in 
the scallop fishery and includes designations of Overfishing Limit 
(OFL), ABC, ACLs, and Annual Catch Targets (ACT) for the scallop 
fishery, as well as scallop catch for the Northern Gulf of Maine 
(NGOM), incidental, and state waters catch components of the scallop 
fishery. The scallop fishery assessment will determine the exploitable 
biomass, including an assessment of discard and incidental mortality 
(mortality of scallops resulting from interaction, but not capture, in 
the scallop fishery). Based on the assessment, OFL is specified as the 
level of landings, and associated F that, above which, overfishing is 
occurring. OFL will account for landings of scallops in state waters by 
vessels without Federal scallop permits. The current assessment of the 
scallop fishery (SAW 50, 2010) determined that the F associated with 
the OFL is 0.38. Since discard and incidental mortality are accounted 
for in the scallop resource assessment and removed prior to setting 
ABC, the specification of ABC, ACL, and ACT; as well as the NGOM and 
incidental catch; are represented by landings as a proxy for catch. ACL 
will be equal to ABC, but to account for scientific uncertainty, ABC 
will be less than OFL, with an associated F that has a 25-percent 
probability of exceeding F associated with OFL (i.e., a 75-percent 
probability of being below the F associated with OFL). SAW 50 
determined that the F associated with the ABC/ACL is 0.32. Catch from 
the NGOM is established at the ABC/ACL level, but will not be 
subtracted from ABC/ACL. Since the NGOM portion of the scallop fishery 
is not part of the scallop assessment, the catch will be added and 
specified as a separate Total Allowable Catch (TAC), in addition to 
ABC/ACL. After removing observer and RSA (1 percent of the ABC/ACL and 
1.25 M lb (567 mt) (proposed in Amendment 15), respectively), Amendment 
15 establishes separate sub-ACLs for the LA and LAGC fisheries. To 
account for management uncertainty, Amendment 15 establishes ACTs for 
each fleet. For the LA fleet, the ACT will have an associated F that 
has a 25-percent chance of exceeding ABC. The F associated with this 
ACT is currently estimated to be 0.28. For the LAGC fleet, the ACT will 
be set equal to the LAGC fleet's sub-ACL.

2. Modification of the OFD

    Amendment 15 modifies the current OFD to provide for better 
management of the scallop fishery under area rotation. The Hybrid OFD 
combines the overfishing threshold from the status quo OFD for open 
areas with a time-averaged F approach for access areas. The F target in 
the open areas will be set at a level that is no higher than the 
overfishing threshold (currently F = 0.38). In access areas, it will be 
set annually at a level that results in F no higher than 
FMSY when averaged over time with the F in that access area, 
including times when the access area was closed. The combined target F 
for all areas can be no higher than that which gives a 25-percent 
probability of exceeding the F associated with ABC (F = 0.32), which is 
currently calculated to be F = 0.28, taking into account all sources of 
F in the scallop fishery.
    The OFD and overfishing reference points that are replaced by the 
approved measures in Amendment 15 were based on the assumption that F 
is spatially uniform. In the scallop fishery this assumption was 
inaccurate, because of unfished biomass in closed areas, variable Fs in 
access areas, and spatially variable F in open areas. Under the 
replaced OFD, closed and access areas protected the scallop stock from 
recruitment overfishing, but growth overfishing could have occurred in 
the open areas because the OFD averaged spatially across open and 
closed areas (i.e., F is higher in open areas to compensate for the 
zero F in closed areas). The greater the fraction of scallops in the 
closed areas, the more ineffective the replaced OFD would become. 
Additionally, when more biomass is within closed areas, the estimated 
whole-stock F may be more sensitive to recruitment and measurement 
error than to changes in effort. Therefore, while the replaced OFD was 
consistent with MSA requirements, and was effective at keeping the 
scallop fishery above the overfished level and preventing overfishing 
overall, certain resource and fishery conditions as described above 
reduced the effectiveness of the FMP. The approved OFD in Amendment 15 
better reflects conditions of the fishery.

3. OFD Reference Points

    The previous OFD stated that FMAX will be used as a 
proxy for FMSY. However, SAW 50 approved a direct estimate 
of FMSY. Therefore, Amendment 15 replaces the previous 
BMAX and FMAX with BMSY and 
FMSY. Final results from SAW 50 were available in August 
2010, and both the

[[Page 43748]]

Scallop Committee and the Council's Scientific and Statistical 
Committee (SSC) reviewed the results and agreed that the OFD should be 
updated to reflect new biological reference points based on 
BMSY and FMSY. Under Amendment 15, the new OFD 
shall read:

    If stock biomass is equal or greater than BMSY as 
measured by an absolute value of scallop meat (mt) (estimated in 
2009 at 125,358 mt scallop meat in the Georges Bank (GB) and Mid-
Atlantic resource areas), overfishing occurs when F exceeds 
FMSY, currently estimated as 0.38. If the total stock 
biomass is below BMSY, overfishing occurs when F exceeds 
the level that has a 50-percent probability to rebuild stock biomass 
to BMSY in 10 years. The scallop stock is in an 
overfished condition when stock biomass is below \1/2\ 
BMSY, and in that case overfishing occurs when F is above 
a level expected to rebuild in 5 years, or above zero when the stock 
is below \1/4\ BMSY.

    The changes to the OFD also require revisions of the current 
framework provisions in the scallop fishery regulations at Sec.  
648.55. Under the previous OFD, the framework adjustment process 
included provisions that ensure that measures achieve optimum yield 
(OY) on a continuing basis. These provisions were established as part 
of Amendment 10 to the FMP because of the potential inconsistency 
between rotational area management and use of a spatially-average OFD, 
whereby open area F may be elevated relative to the condition of the 
resource in open areas, thus preventing OY from being achieved. Because 
the approved OFD drastically reduces the risk of inappropriate open 
area fishing levels, due to application of the threshold F to drive 
open area fishing levels, the framework provisions specifically 
designed to adjust Council recommendations to ensure that OY is 
achieved are no longer necessary.

4. Scientific Uncertainty and ABC Control Rule

    Amendment 15 includes two different assessments of scientific 
uncertainty, based on the following scientific parameters that are 
utilized in scallop resource and fishery assessments:
     Growth;
     Maturity and fecundity;
     Shell height/meat weight relationship;
     Natural mortality;
     Catch data;
     Discards and discard mortality;
     Incidental mortality;
     Commercial shell height data;
     Commercial and survey gear selectivity;
     Commercial and survey dredge efficiency;
     Stock-recruitment relationship; and
     Density dependence.
    The first assessment of scientific uncertainty is qualitative and 
is based on the level of uncertainty, importance, and effect of the 
parameters. Uncertainty, importance, and effect of the parameters on 
the scallop resource and fishery assessment are characterized 
numerically on a scale of low to high. This first assessment of 
scientific uncertainty provides managers with an indication of the 
overall level of scientific uncertainty, which would help determine a 
buffer between the OFL and ABC. The Council concluded in Amendment 15 
that scientific uncertainty in the scallop resource and fishery is low.
    The second assessment of scientific uncertainty enables the Council 
to establish ABC that has a low risk of exceeding OFL. Based on the 
parameters for determining scientific uncertainty, an analytical model 
developed by the Council's Scallop PDT specifies the probability of 
exceeding the OFL at a specified F associated with the corresponding 
catch level. Using this model, and given the overall low level of 
scientific uncertainty, the ABC control rule sets ABC at a level that 
has a 25-percent probability of exceeding OFL (i.e., a 75-percent 
probability that it will not exceed OFL). This value can be modified 
through the framework adjustment process.

5. State Waters Catch, NGOM TAC, and Incidental Catch

    Scallop catch from state waters by vessels not issued a Federal 
scallop permit is a relatively small component of overall scallop 
catch, and the scallop resource in state waters is not part of the 
Federal scallop resource survey. To account for scallop landings from 
state waters, the Councils Scallop PDT will estimate landings annually, 
based on available state waters landings information, and include it in 
the specification of OFL. The amount of scallop landings in state 
waters will then be specified as a separate level of landings that will 
be compared to actual landings each year, and adjusted as necessary in 
subsequent years. This component of overall catch is not specified as 
an ACL and has no associated AM, since there is no Federal authority to 
adjust catch by vessels without a Federal permit.
    Scallop catch in the NGOM will be specified similar to state waters 
scallop catch, except that the NGOM landings level will be based on 
historical landings or available resource surveys in the NGOM, and will 
be included in the specification of ABC. While there is no Federal 
survey in the NGOM, independent surveys have been conducted and, if 
continued, would provide survey information for NGOM landings 
specifications each year. Although this component of overall scallop 
catch is not formally an ACL, an overage will be accounted for in the 
subsequent FY through a reduction of the landings limit that is equal 
to the overage from the prior FY.
    Incidental catch has been estimated to be 50,000 lb (24,948 kg), 
and data continue to support this value, based on historical and 
predicted landing levels. Incidental catch will be removed from ABC 
prior to establishing the research and observer set-asides and ACLs for 
the LA and LACG IFQ fleets. This component of overall scallop catch 
does not have a specific AM, but if incidental catch is higher than 
predicted, the landings limit will be adjusted in the subsequent FY(s) 
by removing more incidental catch from ABC.

6. Separate ACLs for the LA and LAGC IFQ Fleets as Sub-ACLs

    The LA and LAGC IFQ fleets will be allocated landings as sub-ACLs 
of the overall scallop fishery ACL with the same allocation values that 
were established under Amendment 11 to the FMP: LA vessels will be 
allocated 94.5 percent of the ABC/ACL landings; and LAGC IFQ vessels 
will be allocated 5.5 percent of the ABC/ACL landings. Both allocations 
will be made after deducting incidental catch and research and observer 
set-asides from ABC. Sub-ACLs were established for these two fleets so 
that AMs would be based on each fleet's harvest relative to its own 
ACL, without requiring that one fleet would be penalized for an overage 
of the other. Both fleets will have carryover provisions and RSA catch 
can be carried over into the subsequent FY. For the purpose of 
accounting relative to ABC and ACL, landings from carryover DAS, IFQ, 
or TAC will apply to the FY in which they are landed (i.e., not to the 
FY for which they were allocated).

7. Management Uncertainty and ACT

    Amendment 15 specifies that management uncertainty in the scallop 
fishery mainly results from the uncertainty associated with carryover 
DAS, vessel upgrades and replacements, and open area catch under DAS. 
The uncertainty associated with these measures results from a 
difference between estimated vessel efficiency and LPUE, and realized 
efficiency and LPUE during the course of the FY. Management uncertainty 
for the LAGC IFQ fleet is considered very low because it would result 
from landings in excess

[[Page 43749]]

of a vessel's IFQ, which can be audited and accounted for through data 
reviews each year. Although ACT can be specified for the LAGC fishery, 
it will be set equal to the fleet's ACL initially, unless revised by 
the Council. An ACT for the LA fleet to account for management 
uncertainty will be set at a level with an associated F that has a 25-
percent probability of exceeding ABC, which is currently 0.28.

8. AMs for the LA Fleet

    The primary AM for the LA fleet requires a DAS reduction for the 
fleet in open areas that will approximate the catch overage of the ACT. 
Using the ACT for determining the overage is designed to account for 
management uncertainty and to better prevent vessels from exceeding the 
fleet's ACL. The DAS reduction will be distributed evenly to limited 
access vessels. For example, an overage of 1.5 million lb (680 mt) 
would have a DAS equivalent of 625 DAS, based on an LPUE of 2,400 lb 
(1.1 mt) per DAS. Divided across 327 full-time vessels, the DAS 
reduction per vessel would be 1.9 DAS. Part time vessel DAS would be 
reduced by 0.76 DAS (40 percent of the full time deduction) and 
occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full 
time deduction). Part-time and occasional proportional deductions are 
consistent with the way that DAS are assigned in the fishery. The AM 
will take effect in the FY following the FY in which the ACL was 
exceeded. Since the AM will apply mid-year, vessels may have already 
used more DAS in that FY than are ultimately allocated after applying 
the AM. If this occurs, a vessel that exceeds the DAS it is allocated 
after the AM is applied will have the amount of DAS used in excess of 
the vessel's final DAS allocation after the AM is applied deducted from 
its DAS allocation in the subsequent FY. For example, if a vessel 
initially allocated 32 DAS in FY 2011 uses all 32 DAS prior to 
application of the AM, and after application of the AM, the vessel's 
DAS allocation is reduced to 31 DAS, the vessel's DAS in FY 2012 would 
be reduced by 1 DAS.

9. LA Fleet AM Exception

    Even if the ACL is exceeded, the F associated with the fleet's ACL 
may not be exceeded if, in retrospect, some of the assumptions for 
determining the ACL, such as LPUE relative to the status of the 
resource or the biomass were underestimated. Since the overall goal of 
the ACL is to ensure that F limits are not exceeded, enacting an AM may 
not be necessary if the F limits are not exceeded. To address this, 
Amendment 15 includes an exception provision that will stop the AM from 
taking effect if, in an analysis of the preceding FY before the AM goes 
into effect, the actual F for the scallop fishery in the prior FY was 
one standard deviation (currently estimated to be 0.04) below the 
overall F for the scallop fishery's ACL (i.e., the total ACL set equal 
to ABC). With an F=0.32 for the ACL, one standard deviation below would 
be F=0.28. If the fishery's actual F is below 0.28, the AM would not be 
implemented. However, if the fishery's actual F is 0.28 or above, the 
AM would take effect. When fishery data are available after the FY 
ends, and before the AM takes effect, the Scallop PDT will evaluate 
fishery and resource information, determine the F, and recommend, 
through the Council, whether or not the AM should be implemented. To 
ensure compliance with applicable laws, the Regional Administrator has 
discretion to implement the exception or implement the AM in accordance 
with the Administrative Procedure Act (APA), after considering the 
Council's recommendation.
    The application of the AM described in item 8 above, and the AM 
exception described in this item 9, will be considered at the same time 
to ensure that multiple adjustments of DAS do not occur in the same FY, 
if possible. The decision to implement the AM or the AM exception will 
be made by the Regional Administrator on or about September 30 of each 
year.

10. AM for the LAGC IFQ Fleet

    If an LAGC vessel exceeds its IFQ, its IFQ will be reduced by the 
amount equal to the overage as soon as possible in the FY immediately 
following the FY in which the IFQ overage occurred. Since the AM will 
apply mid-year, vessels may have already used more IFQ in that FY than 
is ultimately allocated after applying the AM. If this occurs, a vessel 
that exceeds the IFQ it is allocated after the AM is applied will have 
the amount of IFQ landed in excess of the vessel's final IFQ allocation 
after the AM is applied deducted from its IFQ allocation in the 
subsequent FY. For example, a vessel with an initial IFQ of 1,000 lb 
(453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in FY 2010, 
and is initially allocated 1,300 lb (589.7 kg) of scallops in FY 2011. 
That vessel would be subject to an IFQ reduction equal to 200-lb (90.7-
kg) to account for the 200 lb (90.7 kg) overage in FY 2010. If that 
vessel lands 1,300 lb (589.7 kg) of scallops in FY 2011 prior to 
application of the 200 lb (90.7 kg) deduction as the AM, the vessel 
would be subject to a deduction of 200 lb (90.7 kg) in FY 2012.
    For vessels involved in a temporary IFQ transfer, the entire 
deduction will apply to the vessel that acquired IFQ, not the 
transferring vessel. A vessel that has an overage that exceeds its IFQ 
in the subsequent FY will be subject to an IFQ reduction in subsequent 
years until the overage is paid back. For example, a vessel with an IFQ 
of 1,000 lb (454 kg) in each FY over a 3-year period, that harvests 
2,500 lb (1,134 kg) of scallops the first year will have a 1,500-lb 
(680-kg) IFQ deduction, so that it would have zero pounds to harvest in 
year-2, and 500 lb (227 kg) to harvest in year-3. A vessel that has a 
``negative'' IFQ balance, as described in the example, can lease or 
transfer IFQ to balance the IFQ, provided there are no sanctions or 
other enforcement penalties that would prohibit the vessel from 
acquiring IFQ.
    Applying the AM to an individual vessel's IFQ was considered 
appropriate because individual vessel overages of IFQ will be the only 
cause of exceeding the ACL for the IFQ fleet. A vessel that has an 
overage in one FY that exceeds its entire IFQ in the subsequent FY will 
be required to take IFQ reductions in subsequent years until the 
overage is paid back. For example, a vessel with an IFQ of 1,000 lb 
(454 kg) in each FY over a 3-year period, that harvests 2,500 lb (1,134 
kg) of scallops the first year, will have a 1,500-lb (680-kg) IFQ 
deduction, so that it will have zero pounds to harvest in year-2, and 
500 lb (227 kg) to harvest in year-3. A vessel that has a ``negative'' 
IFQ balance, as described in the example, can lease IFQ to balance the 
IFQ, provided there are no sanctions or other enforcement actions that 
would prohibit the vessel from acquiring IFQ. These automatic IFQ 
deductions do not excuse a vessel from any enforcement actions that may 
be applicable for the overage. The Council determined that this 
individual-vessel AM would be more equitable than penalizing others in 
the fleet for single-vessel overages. The Council did incorporate ACT 
into the LAGC IFQ fleet allocation, but chose not to apply any 
management uncertainty buffer for the fleet at this time. This can be 
adjusted through the framework process if an ACT is needed to address 
management uncertainty.

11. Yellowtail Flounder (YTF) Sub-ACL

    To account for YTF catch in the scallop fishery, Amendment 15 
establishes sub-ACLs (called ``sub'' ACLs to reflect that these ACLs 
are part of the overall ACL established in the NE Multispecies FMP) for 
the Southern New England/Mid-Atlantic (SNE/MA)

[[Page 43750]]

and GB YTF sub-ACLs for the scallop fishery. The amount of YTF 
estimated to be harvested annually will depend on the scallop DAS and 
access area allocations, and can be adjusted through the NE 
Multispecies FMP framework adjustment process.

12. YTF Sub-ACL AM

    Areas within the GB and SNE/MA YTF stock areas that have been pre-
identified will close to scallop fishing in the FY following a FY in 
which the YTF sub-ACL for the scallop fishery is exceeded. These areas 
were identified in Amendment 15 as the statistical areas that have high 
bycatch of YTF in the scallop fishery. For the GB YTF stock, the 
closure will be in statistical area 562, which extends from just west 
of Closed Area II (CAII), through that closed area, and to the 
southeast of that closed area. In addition, a small portion of 
statistical area 525 within the CAII access area will also be closed. 
For the SNE/MA YTF stock, statistical areas 537, 539, and 613 will 
close under the YTF AM. Coordinates of these YTF AM closed areas are 
included in the proposed regulations in this proposed rule. A chart 
depicting the areas is in the Amendment 15 FEIS (see ADDRESSES). The 
Council decided that the statistical areas included in each YTF AM will 
close to LA vessels only; LAGC vessels are exempt from these closures 
if fishing in an exempted area authorized under the NE Multispecies 
FMP, because these exemptions were created because bycatch of YTF in 
the LAGC fishery was estimated to be low. However, any YTF catch by 
LAGC vessels as they continue to fish will count toward that stock 
area's sub-ACL for the scallop fishery (and will contribute to an 
overage of the sub-ACL for the scallop fishery). The YTF closure AM 
will be effective in the scallop FY directly following the year in 
which the YTF sub-ACL is exceeded. By January 15 of each year, NMFS 
will determine whether the YTF sub-ACL is expected to (or has been) 
exceeded that FY. NMFS will announce the closure to the scallop fleet 
as soon as possible following the determination, and the closure would 
take effect on March 1. The Council also specified that if the scallop 
fishery exceeds its YTF allocation in FY 2010 (specified under the NE 
Multispecies FMP), and that causes the entire applicable YT ACL to be 
exceeded for FY 2010, the scallop fishery will be subject to the 
applicable YTF AM. To implement the YTF AM for FY 2011, NMFS would have 
had to determine the length of the closure as specified below, 
beginning when Amendment 15 is effective. However, NMFS determined 
through analysis of FY 2010 catch and fishery data that the scallop 
fishery did cause the overall YTF ACL to be exceeded. The AM for 2011 
is therefore not necessary. For the 2012 fishing year and beyond, the 
YTF closure AM areas will remain closed for the length of time 
specified in the following tables, and will be in place for one FY 
only:

           SNE/MA YT Closure AM Duration for Specified Overage
------------------------------------------------------------------------
 Percent overage  of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1-2..............................  March.
3-5..............................  March through April.
6-8..............................  March through May.
9-12.............................  March through June.
13-14............................  March through July.
15...............................  March through August.
16...............................  March through September.
17...............................  March through October.
18...............................  March through November.
19...............................  March through January.
20 and higher....................  March through February.
------------------------------------------------------------------------


 GB YT Closure AM Duration for Specified Overage in Years When the CAII
                           Access Area Is Open
------------------------------------------------------------------------
 Percent overage  of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1................................  March through May.
2-24.............................  March through June.
25-38............................  March through July.
39-57............................  March through August.
58-63............................  March through September.
64-65............................  March through October.
66-68............................  March through November.
69...............................  March through December.
70 and higher....................  March through February.
------------------------------------------------------------------------


 GB YT Closure AM Duration for Specified Overage in Years When the CAII
                          Access Area Is Closed
------------------------------------------------------------------------
  Percent overage  of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1.................................  March through May.
2.................................  March through June.
3.................................  March through July.
4-5...............................  March through August.
6 and higher......................  March through February.
------------------------------------------------------------------------

13. Monitoring the YTF Sub-ACL

    In order to more effectively monitor YTF bycatch in open areas, the 
daily vessel monitoring system (VMS) catch report that is currently 
required in access areas only is required for all scallop trips in all 
areas. Vessel operators are required to report the following 
information: Fishing vessel trip report (FVTR) serial number; date fish 
caught; total pounds of scallop meats kept; total pounds of YTF kept; 
total pounds of YTF discarded; and total pounds of all other fish kept. 
Vessels are required to submit VMS catch reports for every day fished 
by 9:00 a.m. of the day following the day on which fishing occurred, 
consistent with access area catch reporting.

14. LAGC IFQ Vessel Possession Limit Increase

    IFQ scallop vessels are allowed to harvest 600 lb (272.2 kg) of 
shucked scallops or 75 bu (26.4 hL) of in-shell scallops per trip, an 
increase of 200 lb (90.7 kg) or 25 bu (8.8 hL) per trip from the 
previous 400-lb (181.4-kg) or 50-bu (17.6-hL) possession/trip limit. 
This measure addresses concerns that the previous possession limit was 
not economically feasible due to increased costs. The new 600-lb 
(272.2-kg) possession limit is not expected to change the ``small 
boat'' nature of the LAGC fishery, and remains consistent with the 
Council's vision for LAGC vessels, while enabling vessel owners to 
maintain profits under rising costs. The increase is also consistent 
with the conservation objectives of the FMP because of landings are 
constrained by the IFQ allocations.

15. IFQ Carryover

    An IFQ vessel that has unused IFQ at the end of the FY can carry 
over its unused IFQ, up to 15 percent of the IFQ issued to the vessel, 
including transferred IFQ, for that FY into the next FY. Any IFQ that 
was leased, but not used, by a vessel can also be carried over by the 
vessel that acquired the IFQ (for monitoring and accounting purposes, 
leased-in IFQ is used first, in the order acquired). For accounting 
purposes, the combined total of all vessels' IFQ carryover will be 
added to the LAGC IFQ fleet's applicable ACL for the FY in which the 
carryover IFQ is allocated. Any IFQ carried over that is landed will be 
counted against the ACL as increased by the total carryover for all 
LAGC IFQ vessels. Carryover will retroactively apply to unused FY 2010 
IFQ and FY 2011 IFQs will be adjusted.

16. Increase the IFQ Vessel Cap to 2.5 Percent

    The 2-percent IFQ cap per vessel is increased to 2.5 percent of the 
total LAGC IFQ sub-ACL allocation to allow more flexibility and promote 
efficiency for vessels in fishing IFQs available to them. The 2.5-
percent IFQ cap does not apply to IFQ vessels that also are issued a LA 
scallop permit. IFQ that is carried over does not contribute to the 
vessel's 2.5-percent IFQ cap because the

[[Page 43751]]

carryover is a temporary increase of the vessel's IFQ based on under-
harvest the prior year. Because there is also a 5-percent overall cap 
on how much IFQ one entity may own, a vessel owner can own only two 
vessels to meet the 5-percent ownership cap. This alternative provides 
more flexibility to vessel owners to more effectively and efficiently 
fish their IFQs.

17. Permanent IFQ Transfers Separate From LAGC IFQ Permit

    LAGC IFQ permit owners may permanently transfer some or all of 
their IFQ and its IFQ contribution percentage, independent of their IFQ 
permit, to another LAGC IFQ permit holder while retaining the permit 
itself. This measure enables vessel owners additional flexibility to 
buy or sell IFQ without impacting other permits on their vessel. This 
allowance only applies to IFQ permit holders that do not also have a LA 
scallop permit to prevent crossover of IFQ allocations between the two 
IFQ fleets that have separate allocations.

18. Revision of the EFH Closed Areas

    To establish compatibility with the NE Multispecies FMP, Amendment 
15 modifies the EFH closed areas in the Scallop FMP by removing the 
four EFH closed areas that were implemented in Amendment 10 to the 
Scallop FMP, and replaces them with EFH closed areas that are identical 
to the EFH closed areas implemented under the NE Multispecies FMP. 
These areas are the Closed Area I (CAI), CAII, Nantucket Lightship 
Closed Area (NLCA), and Western Gulf of Maine, Jeffrey's Bank, and 
Cashes Ledge Habitat Closed Areas. Coordinates for these areas are 
provided in the regulations in this final rule. A chart depicting these 
areas is in the FEIS for Amendment 15 (see ADDRESSES). These areas are 
closed to scallop fishing (and closed to all mobile bottom-tending gear 
under the NE Multispecies FMP) to minimize the adverse impacts of 
scallop fishing. This change in the EFH closed areas under the Scallop 
FMP makes the EFH closed areas consistent between the Scallop FMP and 
the NE Multispecies FMP, as intended under Joint Frameworks 16 to the 
Scallop FMP and 39 to the NE Multispecies FMP (Joint Framework 16/39) 
(69 FR 63460, November 2, 2004). With inconsistent areas, the scallop 
access areas in CAI, CAII, and the NLCA were inconsistent with the area 
rotation program established under the Scallop FMP because they were 
restricted to areas smaller than designed. These areas were originally 
implemented under Joint Framework 16/39, but were vacated by a Federal 
Court order resulting from a lawsuit on that action. That order 
specified that the EFH closed areas could only be changed through an 
FMP amendment. The EFH closed areas in this final rule address the 
inconsistency while the Council continues to develop EFH measures under 
Phase 2 of its Omnibus EFH Amendment. In addition, the access areas in 
CAI and the NLCA have been changed to reflect the revised boundaries, 
and are now consistent with the original area rotation strategy 
implemented under Amendment 10 to the FMP and Joint Framework 16/39.

19. Establish Third-Year Default Measures Through the Biennial 
Framework Process

    Fishery specifications in the scallop fishery are generally set 
every 2 yr, through the biennial framework adjustment process. This 
measure extends the fishery specification process to include a third 
year of allocation measures that would be effective if subsequent 
framework actions are delayed. Currently, measures from the prior FY 
roll over to the next FY while the implementation of the new set of 
management measures is pending, but the measures that roll over are 
often not appropriate for the status of the resource because they were 
established specific to the resource conditions in the prior (second) 
year. By setting the measures for the third year in the framework, the 
measures are more likely to be appropriate for the condition of the 
fishery and resource. Third-year measures will need to be set with 
sufficient precaution to take into account the uncertainty associated 
with projections for the third year. The third-year measures would be 
superseded by the measures developed in the biennial framework 
adjustment for that year as soon as it is implemented.

20. New Frameworkable Measures

    The following measures are added to the current list of measures 
that can be adjusted under the Scallop FMP by framework action.
    Modify the LAGC possession limit: The possession limit for LAGC 
vessels can be modified upward or downward by framework action. The 
intent of this measure is that any modification of the possession limit 
would not modify the nature of the LAGC fleet and would be consistent 
with the Council's vision to maintain a small-vessel fleet under LAGC 
provisions. While the Council specified in the Amendment 15 document 
that the possession-limit adjustments could be done for IFQ vessels, it 
also determined that the regulations should specify that possession 
limit adjustments could be made through the framework process for all 
LAGC vessels, including LAGC NGOM and Incidental vessels.
    Adjustment to aspects of ACL management: All of the ACL-related 
measures specified in this action can be modified through framework 
actions including: Definitions and specification of OFL, ABC, ACLs and 
ACTs, all of which are specifically intended to be changed in future 
frameworks or specification packages as new information becomes 
available about the resource and fishery; buffers identified for 
management uncertainty or scientific uncertainty (ABC control rule); 
AMs for scallop ACLs and other sub-ACLs allocated to the scallop 
fishery; monitoring and reporting requirements associated with ACLs; 
timing of AM measures; and adoption of sub-ACLs for other species that 
are not currently part of this program.
Adjusting EFH Closed Area Management Boundaries
    The framework action proposing the boundary change will include an 
analysis of the impacts of the specific boundaries considered. This 
additional framework authority will not allow adoption of new EFH 
closed areas.
Adjusting RSA Allocation
    Under Amendment 15, 1.25 million lb (567 mt) of scallops is set 
aside annually for scallop RSA projects, regardless of the total 
projected catch for the fishery. In the future, the value could be 
increased or decreased by framework action.

21. Changes to the Scallop RSA Program

    Amendment 15 contains several adjustments designed to improve the 
RSA Program so that it is more efficient, and so that awards under the 
Federal grants process can be provided near or before the start of the 
scallop FY on March 1.
Announce (Publish) Federal Funding Opportunity (FFO) as Early as 
Possible
    The announcement of the FFO will be published as soon as possible 
in the year preceding the year in which research would be conducted. If 
this results in more timely reviewing and processing of awards, this 
will maximize time for research and compensation trips before the end 
of the FY. This will be facilitated by the Amendment 15 proposal to 
allocate 1.25 M lb (567 mt) to RSA program annually (see below).
Enable Multi-Year Awards
    Previously, research priorities, TACs for RSAs, and approved 
research

[[Page 43752]]

projects were limited to 1 yr. Under Amendment 15, RSA proposals and 
compensation may span up to 2 yr, corresponding with the biennial 
framework process. Projects could be awarded for 1 or 2 yr. Applicants 
can apply for RSA for the first year, second year, or both. This 
measure increases flexibility for the applicant, provides funding for 
some longer term projects, and potentially reduces time and resources 
spent on the application and review process.
Establish RSA Allocation as a Fixed Amount of Pounds Rather Than a 
Percent of Total Catch
    Previously, 2 percent of access area TACs and open area DAS were 
set aside for the Scallop RSA Program. TAC and DAS vary depending on 
the total TAC and DAS for the fishery. Amendment 15 modifies the 
Scallop RSA Program so that 1.25 M lb (567 mt) is set aside for the 
Scallop RSA Program. In addition, open area RSA will be awarded in 
pounds rather than DAS. Total projected catch for the fishery may vary 
from year to year, but the amount of catch set-aside for research will 
be constant at 1.25 M lb (567 mt), unless changed through a framework 
adjustment. Assuming a projected catch of about 50 million lb (22,680 
mt) for the fishery, 1.25 M lb (567 mt) equals about 2.5 percent. This 
is higher than recent levels to recognize the importance of research 
and scallop resource surveys for the success of the area rotation 
program, but it does not create a separate pool of RSA for scallop 
resource surveys.
    Allocating this fixed amount should enable the grant awards to be 
issued earlier, because the amount of TAC available for research will 
be known in advance and will not change from year to year. The specific 
areas that will have available RSA would be identified in the 
framework, but RSA awards can still be made before approval of the 
framework, based on total scallop pounds needed to fund the research. 
Recipients could either choose to wait until NMFS approval of the 
framework to begin compensation fishing within approved access areas, 
or could begin compensation fishing in open areas prior to approval of 
the framework. The intent is to help improve timeliness of the scallop 
RSA program. This should only be an issue for the first year of a 
framework, because area-specific RSA pounds will be known for the 
second year of the framework action.
Rollover of Unused RSA Pounds To Compensate Awarded Projects
    If updated analyses suggest that the price per pound estimates used 
in the FFO were low, and if all the scallop RSA TAC is not allocated, 
NMFS can allocate unused TAC to compensate awarded projects or to 
expand a project rather than having that RSA go unused. If there is RSA 
TAC available after all awards are made, a project that was already 
awarded RSA would be permitted to apply for additional TAC to expand 
its research project or for compensation if the actual scallop price 
per pound was less than estimated. The implementation details of this 
were not specified in Amendment 15. This provision enables NMFS to 
provide the opportunity for this reallocation of available RSA pounds 
as part of the original FFO for the project. The FFO will specify the 
conditions under which a project that has been awarded RSA could be 
provided additional RSA pounds as supplemental compensation to account 
for lower-than-expected scallop price or for expansion of the approved 
project.
Extension for Harvesting RSA Compensation
    Previously all RSA TAC had to be harvested by the end of the FY for 
which it is awarded. Amendment 15 allows an RSA award recipient to 
harvest RSA compensation TAC for up to 3 months (i.e., prior to June 1) 
into the subsequent FY. Allowing vessels involved in RSA projects to 
harvest RSA TAC into the next FY provides flexibility for participating 
vessels and researchers, and is consistent with carryover provisions 
for the fishery as a whole.
Specify Regulations From Which RSA Projects Would Be Exempt
    This final rule establishes a list of the scallop management 
measures from which RSA funded projects may be exempt. The researcher 
will need to list the measures the project is proposed to be exempt 
from in the RSA proposal. The researcher will not need to apply for an 
exempted fishing permit (EFP) to be exempt from the following 
restrictions: Crew restrictions; seasonal closures in access areas; and 
the requirement to return to port if fishing in more than one area. 
These exemptions will be issued by the Regional Administrator through a 
letter of authorization. The exemptions will be issued for research 
trips under the applicable RSA project. RSA compensation fishing trips 
are not eligible for exemption from these restrictions because 
compensation trips are intended only to provide researchers with the 
ability to collect funds through normal fishing operations.
Increase Public Input on RSA Proposals
    Although the Council recommended that the Council's Scallop 
Advisory Panel members play a more prominent role in setting research 
priorities and reviewing proposals, no regulations implementing this 
suggestion are necessary. NMFS will seek more input from the Council's 
Scallop Advisors through the next solicitation for scallop RSA 
proposals. Review of RSA projects under the Federal grants program is 
limited to individuals that do not have any relationship to or vested 
interest in the proposed research.

Comments and Responses

    Nine relevant comment letters were received on Amendment 15 and its 
proposed rule. Four addressed the regulatory text included in the 
proposed rule, with the rest addressing other topics.

General Comments

    Comment 1: Comments from five individuals focused on the 
qualification criteria for the LAGC scallop fishery. Commenters 
believed that the qualification period of 2000 through 2004 unfairly 
eliminated vessels from the fishery that had a history of fishing for 
scallops after 2004.
    Response: The LAGC fishery was implemented through Amendment 11 and 
its measures were previously available for public comment prior to its 
approval. While Amendment 15 does include measures affecting the LAGC 
fishery, they are not related to the original qualification criteria or 
development of the IFQ program.
    Comment 2: One commenter states that all species, including 
scallops, are overfished, and that NMFS gathers its stock information 
purely from the fishing industry.
    Response: NMFS has partially approved Amendment 15 because it is 
consistent with the MSA and promotes a sustainable scallop fishery that 
will be available to future generations. Comments that scallops are 
overfished and that the only data used to assess stocks is provided by 
the fishing industry are inaccurate, and not relevant to the measures 
included in Amendment 15.

LAGC Trip Limits

    Comment 3: One commenter opposed raising the trip limits for the 
LAGC IFQ fleet. The commenter believes that the small-boat nature of 
the fishery could be

[[Page 43753]]

compromised and the LAGC IFQ fleet would begin to resemble the limited 
access fleet.
    Response: LAGC IFQ vessels are limited individually by their yearly 
allocation and by a cap of 2.5 percent of the overall quota. The 600-lb 
(272.2-kg) possession limit is expected to increase efficiency for some 
IFQ vessels and should enable vessel owners to better offset rising 
trip costs. Raising the daily trip limits for LAGC vessels from 400 lb 
(181.4 kg) to 600 lb (272.2 kg) is unlikely to change the small-boat 
nature of the IFQ fishery. The Council was concerned about this as well 
and rejected higher possession limits as a result.
    Comment 4: One commenter stated that he has been reduced from a 400 
lb (181.4 kg) trip limit to a 40 lb (18.1 kg) trip limit. He requested 
that the trip limit be raised to 250 lb (113.4 kg) for general category 
permits.
    Response: It appears that the commenter is commenting on the LAGC 
incidental catch (IC) permit, which has a 40-lb (18.1-kg) trip limit. 
The LAGC IC trip limit was implemented through Amendment 11, and its 
measures were previously available for public comment prior to its 
approval. While Amendment 15 includes measures pertaining to the LAGC 
IFQ trip limit, they are not related to the IC permit.
    Comment 5: One commenter questioned raising the trip limits for the 
LAGC IFQ fleet. The commenter asked why, after significantly reducing 
the number of boats in the LAGC IFQ fleet (through the LAGC 
qualification process), the trip limits are being raised. He believes 
that the possibility of higher trip limits should have equated to 
flexibility in the form of a hardship clause associated with the LAGC 
IFQ qualification process.
    Response: The inclusion of a hardship clause in the LAGC 
qualification process was discussed by the Council during public 
hearings in the process of creating Amendment 11, and it was eventually 
not adopted. The change in LAGC IFQ trip limits in Amendment 15 is not 
related to the decrease in the number of general category vessels and, 
as such, has no relation to the possibility of a hardship clause 
associated with the LAGC IFQ qualification process.

ACLs and AMs

    Comment 6: Oceana contended that Amendment 15 fails to account for 
incidental catch of a variety of species. They stated that the Council 
failed to include enough species in the FMP for ACL management, and 
that other species, like sponges and starfish, should be included as 
ecosystem component species. Oceana commented that, by not considering 
the inclusion of a wider range of species in the Scallop FMP, the 
Council failed to comply with requirements of the MSA and failed to 
comply with procedural and analytical requirements of NEPA and the MSA. 
Oceana also commented that the Council acted arbitrarily and 
capriciously in excluding additional species and in establishing the 5-
percent catch level criteria for considering inclusion of non-target 
species in the Scallop FMP.
    Response: Oceana has commented similarly on other ACL amendments. 
In a pending lawsuit on similar grounds, Oceana has also challenged the 
approval and implementation of Amendment 16 to the NE Multispecies FMP. 
ACLs must be established for each managed species to prevent or end 
overfishing and the MSA guidelines for implementing ACLs allow but do 
not mandate the Council, at its discretion, to designate other species 
as target, non-target species, or ecosystem components, if appropriate. 
The only species that the Council identified as a non-target species 
with a sub-ACL is YTF, and the Council's justification for such a 
decision is sound. YTF is historically one of the highest non-target 
catches in the scallop fishery. While other species are caught in the 
scallop fishery, they are not caught at the same level as YTF. The Mid-
Atlantic Council has proposed ACLs for summer flounder, which are also 
caught in the scallop fishery. However, all other species caught are 
reported and information on catch is available for analysis to 
determine if additional management measures for such species are needed 
under the Scallop FMP. The Council has determined that the primary FMP 
will establish ACLs for the target species, and that AMs will be borne 
by the fishery that targets the fish, even if that means that the 
scallop fishery has triggered the AM. The Council used this rationale 
to recommend the 5-percent threshold for establishing sub-ACLs in the 
Scallop FMP. Although Oceana disagrees with this approach, this 
decision by the Council is sound and in compliance with the MSA.
    Comment 7: FSF commented that the approach to specification-setting 
based on the ACL flow chart and establishing scientific uncertainty are 
overly cautious and can prevent the achievement of OY. FSF expressed 
concern that the analytical model that determines the reduction from 
OFL to ABC based on scientific uncertainty has many ``less than 
rigorous'' qualitative assumptions. FSF supports making changes to the 
ABC control rule frameworkable and recommended that the Council and 
NMFS revisit the formula in the near term to ensure that the fishery's 
optimum yield is achieved.
    Response: The PDT developed the mechanism for evaluating the risk 
of exceeding OFL over the course of several meetings. The SSC 
ultimately approved the PDT's uncertainty mechanism. As such, this 
approach is based on best available science. It establishes a 
sufficient level of precaution in managing the scallop fishery under 
ACLs while providing catch levels that are similar to status quo 
management. If and when new scientific information becomes available, 
it will be incorporated into the assessment of the scallop resource and 
fishery, and the evaluation of risk associated with scientific 
uncertainty.
    Comment 8: The Fisheries Survival Fund (FSF) strongly opposed 
provisions that would re-distribute catch allocation to the LAGC fleet 
if the limited access fleet's AM exception is enacted. FSF stated that 
this provision was not properly developed or analyzed, and was added to 
Amendment 15 in the ``final hour'' of deliberation. Further, FSF 
believes that this reallocation raises concerns about the lack of 
precautionary measures in the LAGC fishery that would be equivalent to 
establishing the ACT for the limited access fleet.
    Response: NMFS agrees with FSF's concerns about this measure and 
this measure has been disapproved for the reasons stated above.
    Comment 9: FSF commented that the AM exception trigger level of F = 
0.24 is incorrect and that under the AM exception, the F associated 
with the catch by LA vessels should be evaluated against the overall 
ACL, not the sub-ACL for the LA fleet.
    Response: This trigger level was incorrect in the proposed rule and 
the error has been corrected in this final rule. The mistake occurred 
because the Amendment 15 document referred to current F reference 
points that would be increased under Amendment 15. The increased 
threshold, in particular the ABC/ACL F = 0.32 (as opposed to the 
current F = 0.28 threshold), means that the AM exception trigger should 
be set at 0.28 instead of 0.24. The Amendment 15 document is clear that 
the AM would not take effect if the F associated with the limited 
access fishery's catch is lower than the F associated with the whole 
fishery's ACL (i.e., the ACL for the limited access and LAGC fleets 
combined).
    Comment 10: FSF commented that the provision that exempts LAGC IFQ 
vessels from the YTF AM should be

[[Page 43754]]

disapproved because it unfairly provides an exemption from the AM for a 
small group of vessels and because there is new information suggesting 
that the IFQ fleet has a high level of YTF bycatch. FSF commented that 
``* * * it is easy to envision many ways in which this discriminatory 
provision can run afoul of National Standards 2 (best science), 4 
(conservation and management measure should be fair and equitable and 
reasonably calculated to promote conservation), and 9 (practicable 
reduction of bycatch).''
    Response: The level of YTF bycatch by LAGC vessels in Southern New 
England (SNE) waters identified through recent bycatch analysis does 
raise a concern because it indicates that the LAGC fishery accounts for 
more approximately 20 percent of the SNE/Mid-Atlantic (MA) YTF catch in 
the scallop fishery. NMFS does not believe that the analysis represents 
sufficient justification to disapprove the measure because it does not 
violate any national standard or required provision of the MSA, as 
alleged by FSF. Moreover, this new analysis was not available or 
considered by the Council in time for the development and Council 
approval of Amendment 15. In addition, the analysis of YTF catch in 
2010 does not present sufficient information to characterize the 
overall continual bycatch level in the individual fishing quota sector 
of the scallop fishery. NMFS has reviewed 2008 and 2009 fishery data 
and preliminary results show that the catch rate of YTF in the LAGC 
fishery was substantially lower in those years than in 2010. NMFS has 
therefore asked the Council to consider this new analysis for possible 
future changes to the Scallop FMP. In addition, the Council is 
considering issues related YTF catch by LAGC vessels, including the 
application of separate ACLs and AMs, under Framework Adjustment 23 to 
the Scallop FMP.
    NMFS does not agree that the exemption is necessarily 
discriminatory or unfairly applied to the IFQ fleet in violation of 
National Standard 4. FSF states that the LAGC IFQ and limited access 
fleets are ``similar.'' This is not accurate, because fishing 
opportunities for IFQ vessels are more restricted than LA vessels. 
Although some limited access vessels have fished heavily in the SNE 
region recently due to high catch rates, limited access vessels are 
more mobile and are not as constrained to fishing in waters close to 
its home port. LAGC vessels are more constrained to fish within areas 
nearer to the vessel's home port due to vessel size and historical 
fishing practices. For LAGC IFQ vessels with ports in Rhode Island and 
Long Island, the closure AM could prevent them from operating at all 
while limited access vessels and LAGC IFQ vessels in other ports would 
be able to continue fishing. This exemption would prevent closures to 
the LAGC IFQ fleet that would substantially reduce their fishing 
opportunities in a more significant way than the limited access fleet. 
NMFS therefore finds, on balance, that the measure is not inconsistent 
with National Standard 4.
    In addition, an overage of the YTF ACL that could be caused by 
yellowtail flounder bycatch in both sectors of the scallop industry 
would result in an AM that is consistent with the conservation measures 
and goals for yellowtail flounder under both the NE Multispecies and 
Scallop FMPs. Disapproving the exemption for LAGC vessels from the AM 
as a result of information showing the fishery catches yellowtail would 
not provide measures to sufficiently offset the negative impacts of 
closing the fishery to certain LAGC vessel owners that rely on that 
area to harvest scallops.
    Comment 11: FSF commented that AMs for the LA fleet should be 
applied in the second FY after the ACL overage rather than in the first 
FY following the overage. FSF commented that vessels may have used all 
of their allocated DAS prior to the AM becoming effective. By then 
applying the DAS adjustments through the AM, vessels could be subject 
to a DAS reduction in the subsequent FY. FSF believes that this would 
be a disruption to fishing activity, would cause confusion, and would, 
in effect, make the AM effective in the second FY after the ACL overage 
as a result of the DAS payback in the subsequent FY. FSF pointed out 
that this is an administrative measure and that there is no requirement 
in the law that puts temporal restrictions on AMs.
    Response: AMs could be established in the second FY following the 
ACL-overage; however, the Council was clear that its intent was to 
implement AMs as soon as possible, and that AMs for the LA fleet should 
be implemented in the first FY following the ACL overage. The Council 
stated this in its letter deeming the Amendment 15 proposed regulations 
in response to draft regulations that specified that AMs would be 
implemented in the second FY following the ACL overage. Specifically, 
the Council's letter stated:

    During development of Amendment 15 it was uncertain if 
subsequent year AMs were workable, but in the end the Council 
supported that if feasible, AMs are more effective if they can be 
implemented in the subsequent fishing year. So while there may be 
places in the document that suggest AMs may have to be two years 
out, the final intent of the Council was to make all AMs effective 
the subsequent year: LA AMs, LAGC AMs, NGOM AM, as well as AMs 
related to the YT flounder sub-ACL.

    NMFS agrees that implementing AMs in the first FY after the ACL-
overage is consistent with the final guidelines for implementing AMs 
(74 FR 3211, January 16, 2009) which specify that ``If an ACL was 
exceeded, AMs must be triggered and implemented as soon as possible to 
correct the operation issue that caused the ACL overage * * * .'' NMFS 
has not therefore changed the provision based on FSF's comment because 
the Council's intent was clear, but NMFS also recognizes the 
operational complexity that may result from mid-year adjustment of DAS. 
Therefore, the Council has been informed of FSFs concerns so that 
changes, if appropriate, can be considered in a future action.
    Comment 12: Oceana contended that Amendment 15 fails to implement 
sufficient AMs for YTF. It commented that the ``real time'' AMs in the 
form of in-season closures were not sufficiently considered and that 
the LAGC exemption could significantly affect YTF recovery.
    Response: Both the NE Multispecies and the Scallop FMP incorporate 
``next year'' AMs through Amendment 16 and Amendment 15, respectively. 
Although the Council considered inseason AMs for the YTF sub-ACL, it 
chose to implement the ``next year'' AMs consistent with the NE 
Multispecies FMP and in order to prevent inseason scallop fishery 
problems that could result. Mainly, the Council was concerned that 
inseason AMs might actually increase YTF bycatch because vessel owners 
and operators would race to complete trips before the yellowtail sub-
ACL would be harvested. This derby effect would decrease incentive to 
avoid YTF thereby potentially increasing yellowtail catch.

EFH

    Comment 13: Oceana opposed the proposed modification of the EFH 
closed areas under Amendment 15, and stated that the changes to the EFH 
closed areas should be included in Phase 2 of the EFH Omnibus 
Amendment, rather than in Amendment 15. Oceana believes that Amendment 
15 fails to use updated analytical models used in the development of 
the EFH Omnibus Amendment.
    Response: NMFS disagrees, and believes that the appropriate first 
step in maintaining EFH closed areas while the EFH Omnibus Amendment 
continues to be developed is to make the EFH closed

[[Page 43755]]

areas consistent between the Scallop and NE Multispecies FMPs as 
intended. The areas have not been made consistent because a Federal 
court ruled that an earlier attempt to modify the EFH closed areas 
through a framework adjustment was not an appropriate procedural 
mechanism for making such change. There was never a determination that 
the designated areas were flawed in any way. Joint Framework 16/39 
previously analyzed these EFH closed areas, as well as the expansion of 
the access areas within CAI and NLCA. The analysis determined that the 
elimination of conflicts between the two FMPs will result in the 
closure of the same areas to gears used in both fisheries, thus 
providing more effective protection of benthic EFH from the adverse 
effects of fishing. Although the scallop access areas will slightly 
expand within portions of CAI and NLCA, the EFH value of the revised 
EFH closed area is not significantly different from the EFH value of 
the area that currently is protected. The overall substrate 
compositions of both areas (i.e., highly dynamic sandy environments) is 
very similar and the areas where access would be expanded are not areas 
of high habitat vulnerability. In addition, since the areas were 
designed under both the Scallop and NE Multispecies FMPs to protect NE 
multispecies EFH, the only reason that they have not been made 
consistent is that there has not been an appropriate Scallop FMP 
amendment that could address the issue. Furthermore, implementing the 
changes to the EFH closed areas through Amendment 15 will have no 
impact on the designation of areas to protect EFH under the EFH Omnibus 
Amendment.
    Comment 14: FSF commented that it strongly supports the 
modification of the EFH closed areas, and that aligning the EFH 
closures in the scallop FMP with the closures in the NE Multispecies 
FMP concludes a long overdue housekeeping of the regulations. FSF 
commented that having consistent EFH closed areas will mean that more 
of the scallop resource will be available for harvest in the rotational 
management scheme, representing a tremendous benefit to the fishery and 
the nation.
    Response: NMFS agrees that the modification of the EFH closed areas 
makes the management of Georges Bank and Southern New England access 
areas consistent with the original intent of the Scallop FMP while 
remaining consistent with the NE Multispecies FMP and continued 
protection of NE Multispecies habitat.

Catch Monitoring

    Comment 15: Oceana contended that Amendment 15 fails to include 
alternatives to monitor ACLs and ensure accountability. Oceana does not 
believe that the status quo monitoring program, with the addition of 
daily reporting of YTF catch, will be sufficient. Oceana does not 
believe that this monitoring system has been sufficiently analyzed and 
questioned the reliability of self-reported bycatch. Oceana also noted 
that NMFS stated that observer coverage levels are insufficient to 
monitor catch (referencing a memorandum from the Director of the 
Northeast Fisheries Science Center).
    Response: NMFS will utilize a statistical monitoring approach, 
called the cumulative kept-all catch estimate (kept-all estimate), that 
applies catch data from observed trips to catch reports submitted by 
vessel operators. This methodology was developed for Northeast 
fisheries, peer reviewed and accepted, and included in the standardized 
bycatch reporting methodology (SBRM). The addition of daily VMS catch 
reporting will enable NMFS to more effectively expand the kept-all 
estimate to the scallop fishery. Observer coverage in the scallop 
fishery is determined through the SBRM and expanded to account for 
specific species monitoring needs (such as elevated coverage rates and 
seasonal coverage rate considerations). The combination of the expanded 
catch reporting and the observer coverage in the scallop fishery is 
sufficient to monitor the YTF catch relative to the yellowtail sub-ACL. 
The YTF sub-ACL will not trigger real-time closures. As such, more 
rigorous analysis of data throughout most of the scallop FY can be done 
to ensure that all data are captured and matched appropriately to 
scallop trips. This may not be possible with an inseason closure, 
because it would allow less time to review data and would require a 
quicker decision process to avoid exceeding an ACL.
    Oceana's concerns about vessel operator self-reporting are 
unfounded. Vessel operators report catch, including discards and kept 
landings. Discards can be compared to observer reports, which are 
considered the most reliable discard information. Kept scallops and 
fish are compared to dealer reports. Although the daily catch reports 
will be used to provide periodic reports, the dealer-reported landings, 
which are matched to scallop trips and daily reports, will ultimately 
provide the data for the kept-all estimate. A large portion of the 
scallop industry has demonstrated a strong interest and willingness to 
work collaboratively to prevent excessive YTF catch. An example is the 
participation of several scallop vessels in a recent voluntary YTF 
catch reporting program administered by the University of 
Massachusetts, Dartmouth, School for Marine Science and Technology 
(SMAST).
    NMFS believes that Oceana's use of the Northeast Fishery Science 
Center Director's memorandum regarding the Northeast Multispecies 
Sector program is taken out of context. The SBRM establishes observer 
coverage levels that are sufficient to meet minimum bycatch monitoring 
needs. The SBRM levels are then expanded to account for variations in 
the fisheries. The issues with monitoring sector allocations are 
different, because the amount of catch allocated to each sector is 
relatively small, requiring more vigorous monitoring to ensure the 
allocations are not exceeded. Therefore, the Science Director's 
memorandum should not be considered to be applicable to all fisheries 
and monitoring programs for stock-wide ACLs or large sub-ACLs.

Overfishing Definition

    Comment 16: FSF commented that it continues to have concerns about 
the hybrid OFD proposed in Amendment 15. It commented that the concern 
that the status quo OFD could result in growth overfishing has not been 
borne out, the stock continues to thrive in the open areas, with more 
and larger scallops appearing year after year, and rotational 
management continues to be a success. FSF commented that as the hybrid 
OFD is implemented, NMFS must make every effort to ensure the effects 
of the hybrid OFD are clear and transparent to all the stakeholders in 
the scallop fishery. Further, FSF commented that NMFS needs to ensure 
that the full extent of the scallop resource is being captured by 
surveys, in particular in the nearshore areas outside of the routine 
NOAA [Woods Hole] surveys. FSF noted that information from nearshore 
areas is becoming more important as the fishery becomes managed by ACLs 
and on a more explicitly spatial basis.
    Response: The hybrid OFD is aligned better with area rotation than 
the status quo OFD. Although the scallop resource in open areas has 
remained very productive and has supported successful fishing 
opportunities, the potential for the opposite result with the status 
quo OFD is high. Amendment 15 explains that if a large amount of the 
scallop resource is within areas closed to scallop fishing, the open 
area F would be driven up to account for lower

[[Page 43756]]

fishing mortality stock-wide. If total biomass declines from its 
current levels, and a high amount of that biomass is in areas closed to 
scallop fishing, the hybrid OFD is expected to protect against growth 
overfishing in open areas that would be caused by elevated F under the 
status quo OFD. The Scallop PDT has frequently discussed the issue of 
additional surveys in nearshore areas, particularly in the Mid-Atlantic 
region and will continue to do so in the development of measures under 
the next biennial framework.

Third-Year Default Measures Through the Biennial Framework Process

    Comment 17: FSF supports the provision establishing third-year 
default measures through the biennial framework process. FSF commented 
that this provision represents a common sense solution to avoid 
problems with potentially delayed framework actions. FSF commented that 
it is only a partial and imperfect solution and that FSF is committed 
to working NMFS to achieve the common goal of timely implementation of 
the scallop regulations. FSF commented that there is no sound reason 
for the continuing lengthy post-promulgation reviews that have 
endemically caused the scallop specifications to be delayed until well 
into the scallop fishing year.
    Response: NMFS agrees that this will improve the transition to new 
measures but will not solve the recurring problem of management 
measures being implemented after the start of the fishing year. NMFS is 
committed to working with the Council, Northeast Fisheries Science 
Center and industry to work on solutions.

Changes From Proposed Rule to Final Rule

    In Sec.  648.14(i)(4)(ii)(B) and (i)(4)(iii)(B), the term TAC is 
changed to ACL, and a reference to Sec.  648.53(a)(5) is changed to 
Sec.  648.53(a)(4)(i) in order to reference the correct ACL.
    In Sec.  648.53(b)(4)(iii)(A), the F trigger for the LA AM 
exception is changed from F = 0.24 to F = 0.28, and the F associated 
with the fishery's total ACL is changed from F = 0.28 to F = 0.32.
    In Sec.  648.53, paragraph (b)(4)(iii)(B) has been removed because 
the measure was disapproved by NMFS.
    In Sec.  648.53(b)(4)(iv), the F trigger for the LA AM exception is 
changed from F = 0.24 to F = 0.28, for the reasons stated above.
    In Sec.  648.53, paragraph (h)(2)(v)(B) is clarified so that IFQ 
carried over from one FY to the next is not applicable to the 2.5-
percent IFQ cap or the 5-percent ownership cap for the FY in which the 
carryover IFQ is applied.
    In Sec.  648.53(h)(3)(ii)(A), the reference to Sec.  
648.53(a)(3)(ii) and (iii) is changed to (a)(4)(i) in order to 
reference the correct ACL.
    In Sec.  648.53(h)(5)(iii) and (h)(5)(iv)(C), the term TAC is 
changed to ACL to reflect ACL management measures.
    In Sec.  648.53(h)(5)(iv), the restriction pertaining to when IFQ 
transfers must be submitted is clarified to indicate that vessel owners 
may not have sufficient time in the remaining FY to utilize transferred 
IFQ for which an application was received less than 45 prior to the end 
of the FY.
    In Sec.  648.55(f)(26), the term DAS is removed because DAS set-
asides have been eliminated under Amendment 15.
    In Sec.  648.56, paragraph (a) is changed to clarify the timing of 
the FFO and to change the regulatory reference from Sec.  648.53(b)(3) 
to Sec.  648.56(d), because Sec.  648.53(b)(3) no longer includes DAS 
set-asides, since Amendment 15 allocates set-aside only in pounds of 
scallops.
    In Sec.  648.56, paragraph (c) is revised by changing NMFS to NOAA, 
since the responsibility to administer the Federal grants program is 
not delegated to NMFS.
    In Sec.  648.56, paragraph (d) is revised to clarify how set-aside 
pounds will be awarded relative to access areas.
    In Sec.  648.56, paragraph (f) is revised to clarify the 
administration of scallop RSA award carryover.
    Revisions to the area coordinates for the Sea Scallop Access Areas 
have been included in Sec.  648.59(b)(3) and (d)(3) to reflect the 
revised coordinates resulting from the change to the EFH closed areas 
specified in Sec.  648.61.
    In Sec.  648.64, values for YTF sub-ACLs are included for FYs 2011 
and 2012.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the national standards and other 
provisions of the MSA and other applicable laws.
    The Office of Management and Budget has determined that this rule 
is not significant according to Executive Order 12866.
    The Assistant Administrator for Fisheries has determined that the 
need to implement these measures in an expedited manner in order to 
help achieve conservation objectives for the scallop fishery and 
certain fish stocks, as well as threatened and endangered sea turtles, 
constitutes good cause, under authority contained in 5 U.S.C. 
553(d)(3), to waive the 30-day delay in effectiveness.
    The measures in this final rule to implement Amendment 15 include 
regulatory changes that are administrative and are only minor 
adjustments to the Scallop FMP management measures overall. The ACL 
management measures in Amendment 15 are administrative, establishing 
the mechanism for managing the scallop fishery under ACL requirements. 
Actual values for ACLs are established under Framework 22, if approved, 
and delaying the effectiveness of the ACL provisions in Amendment 15 
would constrain the timing of implementation of the measures under 
Framework 22, including the appropriate management measures and vessel 
allocations for FY 2011. FY 2011 began on March 1, 2011, and the 
scallop fishery has been operating under FY 2010 management measures, 
including DAS, observer set-aside, and access area trip allocations, in 
lieu of Framework 22 FY 2011 measures. The DAS current allocations are 
higher than the measures proposed in Framework 22, which were developed 
to reflect an updated estimate of the annual catch that can be 
harvested without resulting in overfishing. Accordingly, a delay in 
effectiveness for this final rule risks creating a race for fish in 
advance of Framework 22 measures, and vessel owners and operators have 
the potential of exceeding the FY 2011 catch levels specified in 
Framework 22. Further continuation of the inconsistent FY 2010 
management measures increases the risk that the actual F will exceed 
the target level upon which Framework 22 management measures are based. 
Allocations in FY 2011 need to be lower than those in place in FY 2010 
in order to meet the management target F specified in the ACL measures 
of this final rule. Estimates from the 2010 stock assessment, which 
were endorsed by the SARC-50 review panel, are best available science, 
and show that biomass was just above, and fishing mortality was at, MSY 
levels in 2009. In addition, actual F has been higher than projected in 
FYs 2008-2010, a situation which was addressed in both this final 
rule's ACL measures and the DAS model used to calculate Framework 22 
vessel allocations. Constraining the implementation of Framework 22 by 
instituting a delay in Amendment 15 effectiveness would be contrary to 
the public interest because continuing this trend in higher-than-
projected F could result in overfishing and future decreases in 
allowable harvest. Current scallop catch rates in open areas have been 
the highest on record, and vessels may continue to fish beyond their

[[Page 43757]]

Framework 22 DAS allocations until this action is effective because 
they are limited in where else they can fish.
    In addition, Framework 22 includes management measures necessary to 
achieve conservation objectives for threatened and endangered sea 
turtles by limiting the number of Mid-Atlantic scallop access area 
trips each vessel can take between June 15 and October 31, 2011. This 
limitation complies with one of the reasonable and prudent measures in 
the most recent Biological Opinion completed for the scallop fishery. 
If implementation of Amendment 15 is delayed further beyond June 15, 
2011, thus further delaying the Framework 22 turtle conservation 
measures, the measures from last year will continue. The measures 
currently in place allow for more fishing effort during these months 
than intended under Framework 22 and further delay could potentially 
compromise sea turtle conservation benefits during this short window.
    Expediting the implementation of the Amendment 15 ACL management 
measures, thus enabling the final rule to Framework 22 to establish 
actual ACL values, will also have greater public benefit because 
enacting the allocations of IFQ and access area trips would have 
positive impacts on the economics of the fishery. Currently, vessels 
have already fished their limited number of scallop access area trips 
and have no other access areas available from which to harvest 
scallops. Amendment 15 will enable Framework 22 to open up three 
additional access areas for vessels and take pressure off of vessel 
owners/operators from using more DAS than allocated in FY 2011. In 
addition, LAGC IFQ vessels will be able to take advantage of this final 
rule's management measures, such as increased trip possession limits, 
carryover allocations, and improved permanent transfer opportunities, 
while also benefiting from their increased IFQ allocations specified 
through the final rule to Framework 22.
    A delay in effectiveness for the Amendment 15 management measures 
that improve the RSA program is also contrary to the public interest 
and undermines the ability of researchers to complete their research 
projects and potentially hinder the quality of their research. 
Proposals that have been submitted for NOAA Grants Program review are 
currently awaiting final award notification from NOAA. This cannot 
occur until the revisions to the RSA program under Amendment 15 are 
effective. Many of the projects conducted under the Scallop RSA program 
rely on careful timing for research activity and coordination with 
participating vessels. Further, many of the Scallop RSA projects 
completed in the past provide critical information for continued 
improvements to the overall management of the scallop fishery. 
Therefore, in order to ensure that RSA projects can be issued final 
grants awards and begin research operations and coordination with 
participating vessels, the measures that improve the RSA program should 
be effective upon publication of this final rule.
    NMFS was unable to incorporate the 30-day delay in effectiveness 
into the timeline for Amendment 15 rulemaking due to the delay in the 
Council's adoption of Amendment 15 from June 2010 to September 2010, 
and Amendment 15 was not formally submitted to NMFS until January 2011. 
In addition, the Council submitted Framework 22 in late March 2011, 
more than 3 weeks after the March 1 start of the 2011 scallop FY. With 
such delays, NMFS was unable to complete the rulemaking process, make a 
final determination to approve the amendment, and implement Amendment 
15 measures in the 2 months prior to the start of FY 2011. As a result, 
the final allocations for FY 2011, as specified through the final rule 
to Framework 22, could not have been implemented prior to the start of 
FY 2011 or to the implementation of this final rule to Amendment 15.
    The Council prepared an FEIS for Amendment 15; an NOA was published 
on April 1, 2011. The FEIS describes the impacts of the proposed 
Amendment 15 measures on the environment. ACL and AM measures under 
Amendment 15 would have minimal impacts on the human environment 
compared to taking no action, because both establish similar 
limitations on scallop fishing. Other measures to improve management of 
the scallop fishery are expected to have positive impacts on the human 
environment, as a result of improved management of the scallop fishery.
    This rule contains a revision to a current collection-of-
information requirement subject to review and approval by OMB under the 
Paperwork Reduction Act (PRA). Public reporting burden for this 
collection of information, the expansion of the VMS catch report to all 
areas (OMB Control Number 0648-0491), is estimated to average 2 min per 
response. This estimate includes the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information. Send 
comments on these or any other aspects of the collection of information 
to OMB by e-mail at [email protected], or fax to (202) 395-
7285 and to the Regional Administrator at the address provided in the 
ADDRESSES section of this rule.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has prepared a final regulatory flexibility analysis (FRFA) in 
support of Amendment 15. 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 
Amendment 15, the comments and responses in this final rule, and the 
corresponding economic analyses prepared for Amendment 15 (i.e., the 
FEIS and the RIR). The contents of these incorporated documents are not 
repeated in detail here. A copy of the IRFA, the RIR, and the FEIS are 
available upon request (see ADDRESSES). A description of the reasons 
for this action, the objectives of the action, and the legal basis for 
this final rule are found in Amendment 15 and the preamble to the 
proposed and final rules.

Statement of Objective and Need

    This action proposes to implement ACL and AMs for the scallop 
fishery, as well as other measures to improve management of the scallop 
fishery. A description of the management measures, why this action is 
being considered, and the legal basis for this action are contained in 
the preamble of this final rule and are not repeated here.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS did not receive any comments pertaining to the IRFA or the 
economic impacts of these measures more generally on small businesses. 
Summaries of the public comments and NMFS's responses are provided in 
the ``Comments and Responses'' section of this final rule.

[[Page 43758]]

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

    These final regulations will affect vessels with LA and LAGC 
scallop permits. The FEIS for Amendment 15 provides extensive 
information on the number and size of vessels and small businesses that 
would be affected by the proposed regulations, by port and state. There 
were 313 vessels that obtained full-time LA permits in 2010, including 
250 dredge, 52 small-dredge and 11 scallop trawl permits. In the same 
year, there were also 34 part-time LA permits in the sea scallop 
fishery. No vessels were issued occasional scallop permits. By the 
start of FY 2010, the first year of the LAGC IFQ program, 362 IFQ 
permits (including 40 IFQ permits issued to vessels with a LA scallop 
permit), 127 NGOM, and 294 incidental catch permits were issued.
    The RFA defines a small business entity in any fish-harvesting or 
hatchery business as a firm that is independently owned and operated 
and not dominant in its field of operation (including its affiliates), 
with receipts of up to $4 million annually. The vessels in the Atlantic 
sea scallop fishery are considered small business entities because all 
of them grossed less than $3 million according to dealer data for FYs 
1994 to 2009. In FY 2009, total average revenue per full-time scallop 
vessel was just over $1 million, and total average scallop revenue per 
general category vessel was just under $80,000. The IRFA was completed 
consistent with analyses under the RFA for recent scallop actions, and 
as such, considers receipts of individual vessels and did not consider 
individual entity ownership of multiple vessels.
    The Office of Advocacy at the Small Business Association (SBA) 
suggests two criteria to consider in determining the significance of 
regulatory impacts; namely, disproportionality and profitability. The 
disproportionality criterion compares the effects of the regulatory 
action on small versus large entities (using the SBA-approved size 
definition of ``small entity''), not the difference between segments of 
small entities. Amendment 15 is not expected to have significant 
regulatory impacts on the basis of the disproportionality criterion, 
because all entities are considered to be small entities in the scallop 
fishery and, therefore, the action will not place a substantial number 
of small entities at a significant competitive disadvantage relative to 
large entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action implements an expansion of current VMS catch reporting 
requiring all LA and LAGC IFQ scallop vessels to report YTF catch (kept 
and discards) and all other species kept (including scallops) on all 
scallop trips. Such reports must be submitted for each day fished by 9 
a.m. of the day following the day on which the fishing activity 
occurred. Previously, this requirement applied only to access area 
scallop trips. The expansion of the requirement to all areas increases 
the current burden cost of 333 hr at a total cost of $4,995 to 1,000 
hr, at a total cost of $15,000 for all scallop vessels combined. The 
expansion is needed to monitor YTF bycatch relative to the sub-ACL for 
YTF under Amendment 15.
    Amendment 15 does not duplicate, overlap, or conflict with any 
other Federal law.

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

    A summary of the economic impacts of adopted and alternative 
measures is provided below. Detailed economic impact analysis is 
provided in Section 5.4 and Appendix III of the FEIS for Amendment 15 
(see ADDRESSES).
    Each vessel within the same permit category (i.e., full-time, part-
time, and occasional) is allocated the same number of DAS and access 
area trips. LAGC IFQ vessels receive 5.5 percent of the total fishery 
ACL after research and observer set-asides are removed, and IFQs are 
proportionately allocated based on a percent share of the 5.5-percent 
fleetwide allocation. Therefore, those measures that affect overall 
projected landings will have proportional impacts on all the 
participants because allocations for all vessels will be adjusted up or 
down in the same percentage. Some of the other measures are specific to 
each fishery, however, and they will result in differential impacts, as 
discussed below for each individual action. In summary, although some 
specific measures, such as the hybrid OFD, catch limits, and AMs will 
have some negative impacts on the revenues and profits from the scallop 
fishery in the short-term, the benefits from the other measures, 
including the measures that reduce scientific or management 
uncertainty, the modification of the EFH areas, modifications to the 
LAGC possession limits and other related measures are expected to 
offset in part or in full these short-term negative effects. As a 
result, the aggregate economic impacts of Amendment 15 measures, 
combined, in the short-term are likely to range from small negative to 
small positive. The action is not expected to have significant impacts 
on the viability of the vessels, because these impacts are estimated to 
be relatively small. In addition, even with negative impacts, the 
profit rate is estimated to exceed 20 percent of the gross revenue in 
the scallop industry, providing for short-term cash reserves to finance 
operations through several months or years until the positive effects 
of the regulations start paying off. In the long term, the economic 
impacts of the combined measures on the participants of the scallop are 
expected to be positive.
    NMFS evaluated the Council's proposed measures relative to 
compliance with the MSA, including national standards, required 
provisions, and discretionary provisions, as well as with applicable 
laws and the FMP. NMFS has determined that Amendment 15, as partially 
approved by NMFS, is consistent with all National Standards and 
required provisions of the MSA. Without Amendment 15, the Scallop FMP 
would not be in compliance with the new ACL and AM requirements of the 
MSA and the management improvements and efficiencies created through 
other Amendment 15 measures would not be achieved. This would 
ultimately compromise NMFS's ability to effectively manage the scallop 
fishery overall.
    The evaluation of Amendment 15 measures concluded that the suite of 
measures combine to minimize the negative impacts on qualified vessels. 
Positive impacts on the scallop fishery fleets are expected as the 
management measures in Amendment 15 continue to prevent overfishing, 
achieve OY on a continuing basis, and improve overall management 
efficiency.
    A description of significant alternatives to the measures approved 
in Amendment 15, which affect the impact on small entities, and the 
reasons why these other alternatives were not adopted by the Council 
follows. NMFS does not have the discretion under the MSA to implement 
measures that were not adopted by the Council. Under the MSA, NMFS must 
either approve or

[[Page 43759]]

disapprove Council recommended alternatives or the action as a whole if 
alternatives cannot be disapproved without compromising the action as a 
whole. The discussion of the reasons for rejecting alternatives is 
relative to the Council's decision, with the exception of the measure 
that was disapproved by NMFS.

1. Compliance With MSA

ACL Structure and Subcomponents
    Establishing ACLs in the Scallop FMP is expected to have long-term 
economic benefits on the fishery by helping to ensure that ACLs are set 
at or below ABC, in order to prevent the resource from being overfished 
and overfishing from occurring. Buffers for scientific and management 
uncertainty reduce the risk of fishery exceeding its ACL, thus reducing 
the risk of overfishing the scallop resource, with positive impacts on 
the overall scallop yield, revenues, and total economic benefits from 
the fishery. Establishing catch limits is expected to result in a 
similar landings stream compared to the status quo management. Even if 
the landing streams changed as a result of the new measures, the risk 
to the resource from overfishing due to scientific or management 
uncertainty is minimized because sources of uncertainty are better 
accounted for. This, in turn, is expected to keep the landings and 
economic benefits relatively more stable and reduce the uncertainty in 
business decisions over the long-term. The separation of an ACL into 
two sub-ACLs with associated ACTs is expected to have positive impacts 
on the scallop fishery and its subcomponents. Separating the two fleets 
with separate ACLs prevents one component of the fishery from impacting 
the catch levels of the other. This prevents negative economic impacts 
from spreading from one fleet to the other. No alternatives would 
generate higher economic benefits for the participants of the scallop 
fishery. Under the No Action alternative, there is a risk of 
overfishing the resource due to the scientific and management 
uncertainty that is not adequately addressed currently. Existing 
measures do not have well-defined accountability and payback mechanisms 
if catch limits are exceeded due to these sources of uncertainty, which 
could result in continual reductions in allocations, effort levels, and 
trips.

2. Implementation of AMs

    LA AMs consist of the use of an ACT, and an overall DAS reduction 
to account for any overages. The deduction is applied in the FY 
following the FY in which the overage occurred (e.g., an overage in FY 
2011 would result in a DAS reduction in FY 2013). The overall economic 
impacts in the short term on the participants of the scallop fishery 
depend on whether or not the ACT prevents an ACL overage. Exceeding ACL 
in one FY will have positive economic impacts on the participants of 
the scallop fishery in that FY, but it would be followed by negative 
impacts in the FY in which the AM is applied, since DAS would be 
deducted based on the level of the overage. The short term impacts 
averaged over the applicable FYs would be neutral or small. The 
proposed action also includes an exception to the LA AM, which would 
stop the AM from being implemented, even if the LA sub-ACL exceeded. If 
there is no biological harm, and updated estimates of F are actually 
lower than what was projected, there will be no reason for a DAS 
reduction in the subsequent year. This minimizes or even eliminates any 
potentially negative impacts, since the AM would not be implemented.
    For the LAGC fishery, if an individual vessel exceeds its IFQ 
(including leased IFQ), the amount of IFQ equal to the overage is 
deducted from the vessel's IFQ in the FY following the FY in which the 
overage occurred. Similarly, if the NGOM component of the fishery 
exceeds the overall hard-TAC (equal to the NGOM ACL) after all data are 
final, then the hard TAC could be reduced by the amount equal to the 
overage in the following FY. Exceeding the vessel's IFQ in one FY will 
have positive economic impacts in that FY, followed by negative impacts 
in the FY in which the deduction is applied, so the short-term impacts 
averaged over these 2 FYs would be neutral or small. The measures help 
reduce the risks of exceeding ACLs and have positive impacts on the 
scallop yields and economic impacts from the fishery as a whole over 
the long term.
    The Council also considered making the AMs effective in the second 
FY following the FY in which the overage occurred. This would have very 
similar economic impacts to the proposed application of AMs, except 
that the negative impacts would be delayed for 1 FY.

3. ACLs and AMs for YTF

    The AM for the YTF sub-ACL, if the scallop fishery exceeds the sub-
ACL, is a seasonal closure of areas that have been pre-identified to 
have high YTF bycatch rates. The applicable area will be closed in the 
subsequent FY for a specified period of time to only LA scallop vessels 
(LAGC vessels are exempt from the closure). This measure could increase 
fishing costs and have negative impacts on the scallop revenues and 
profits if the effort is moved to less productive areas with lower 
LPUE, or to areas with a predominance of smaller scallops with a lower 
price. Implementation of the closure in the subsequent FY, rather than 
in-season, prevents derby-style fishing and minimize the negative 
impacts on prices and revenues associated with it. Exempting LAGC trips 
from this AM prevents high distributional impacts for LAGC vessels that 
have a dependence on fishing within the proposed closure areas in SNE 
waters.
    The alternative that would close an entire YTF stock area would 
have greater negative impacts on scallop revenues and profits compared 
to adopted measures. The alternatives that would institute either a 
fleet maximum DAS or an individual maximum number of DAS that could be 
used in a stock area for year 3 to account for an overage of the YTF 
sub-ACL in year 1 could reduce the negative impacts on scallop 
revenues, costs, and total economic benefits by preventing derby 
fishing and allowing more time for the scallop fleet to make 
adjustments for exceeding the YTF ACLs. However, it would apply 
penalties to the whole fleet for overages that may have been caused by 
only a part of the fleet. In addition, these options could increase the 
administration costs by making it necessary to monitor DAS-used by YTF 
stock areas, which would require additional reporting and recordkeeping 
requirements.

4. Measures To Adjust the OFD

    The adoption of the hybrid OFD could result in a reduction in 
revenues and profits compared to no action alternative in the short to 
medium term. During the first 10 yr of implementation, average scallop 
revenue per vessel net of trips costs are expected to decline by about 
5.8 percent. The hybrid OFD is expected have positive economic impacts 
over the long term, however, since this definition will provide more 
flexibility to meet the area rotation objectives and is expected to 
increase catch by 10 percent, with larger average scallop size. In 
addition, this alternative could potentially reduce area swept, thus 
reducing adverse effects on bycatch, seabed habitats, and EFH, with 
indirect positive impacts on the scallop fishery. For example, a 
reduction in bycatch prevents triggering YTF AM measures, and the 
negative impacts on scallop landings and revenues associated with such 
a measure. This

[[Page 43760]]

could offset some of the short-term potentially negative economic 
impacts from the hybrid OFD.
    The status quo OFD is estimated to result in higher revenues and 
profits in the short-term compared to the hybrid OFD. However, this 
alternative was not selected by the Council because it is not 
consistent with the spatial management of the scallop fishery, has 
higher risks for the scallop resource, and lower economic benefits for 
the scallop fishery over the long-term compared to the hybrid OFD.

5. IFQ Carryover

    The IFQ carryover provision allows LAGC IFQ vessels to carry up to 
15 percent of a vessel's IFQ, including leased IFQ, to the following 
FY, if the vessel has unused IFQ at the end of the FY. This provides 
flexibility and safety-at-sea benefits in the case of unforeseen 
circumstances or bad weather that prevents the vessel from using all of 
its IFQ. As a result, this provides opportunity for vessels to land 
their unused IFQ in the next FY, with positive economic impacts for 
vessels, the LAGC fishery, and overall scallop revenue and profits.
    The no action alternative has smaller economic benefits compared to 
the adopted carryover provision because it would not allow IFQ to be 
carried over into the subsequent FY. The Council also considered 
allowing a vessel's entire IFQ to be carried over, which would have 
provided higher immediate economic benefits than the adopted carryover 
provision. However, transferring a larger portion, or the entire amount 
of the unused IFQ could increase management uncertainty, which could 
result in application of an ACT, set below the ACL, to serve as a 
buffer to protect against the uncertainty. This overall reduction for 
the following FY would have negative impacts on the IFQ allocations and 
economic benefits in future years.

6. Modification of the LAGC IFQ Vessel Possession Limit

    An increase in the LAGC IFQ possession limit from 400 lb (181.4 kg) 
to 600 lb (272.2 kg) is expected to reduce the fishing time and trip 
costs, because it is expected to increase trip efficiency and reduce 
steaming time over the course of the FY. In addition, it could increase 
profits for these vessels or offset the cost of elevated fuel prices. 
As a result, the 600-lb (272.2-kg) possession limit is expected have 
positive economic impacts on the scallop fishery compared to the no 
action alternative.
    Alternatives to the proposed action included eliminating the 
possession limit and increasing it to 1,000 lb (454 kg) per trip. These 
alternatives produce higher benefits than the proposed option by 
maximizing trip revenue compared to fishing costs. However, these 
alternatives could change the nature of the LAGC IFQ fishery from a 
small-scale fishery to a full-time operation like the LA fishery, which 
would run counter to the FMP's objective of preserving the small-scale 
nature of the fishery for the LAGC IFQ fleet. It may result in 
consolidation that would eliminate operations with smaller IFQs or that 
have less total share of the IFQ fishery. These alternatives were not 
selected because the Council continues to support the LAGC IFQ fishery 
as a small-vessel fishery, consistent with its goals and vision for the 
fishery as developed under Amendment 11 to the FMP.

7. Increase in the Maximum IFQ per Vessel

    Changing the 2-percent maximum quota per vessel to 2.5 percent 
provides more flexibility to vessels to adjust their harvest levels to 
changes in the scallop resource conditions. In addition, since a vessel 
owner could meet the 5-percent ownership cap by owning only two 
vessels, it eliminates ownership costs associated with multiple 
vessels. The increase to a 2.5-percent cap, therefore, has positive 
impacts on profitability. The no action alternative for increasing the 
maximum IFQ per vessel would not improve flexibility and would have 
negative economic impacts associated with costs of vessel ownership 
compared to the proposed action.

8. Allowing LAGC Quota To Be Split From IFQ Permits

    Allowing the IFQ to be split from the IFQ permit improves 
flexibility and facilitates movement of quota between fishermen. It 
also increases the likelihood that all IFQ will be harvested, thereby 
reducing management uncertainty. It allows fishermen to combine their 
allocations and to benefit from an economically viable operation when 
the allocations of some vessels are too small to make scallop fishing 
profitable. This measure is therefore likely to have positive impacts 
on revenues and profits for the participants of the IFQ fishery.
    The Council rejected an alternative that would have allowed quota 
to be transferred between the LA/IFQ fleet and IFQ-only fleet. This 
alternative would have resulted in larger economic benefits for LAGC 
IFQ vessels because it would provide another source of IFQ. However, 
this option was not chosen by the Council mostly due to concerns about 
the difficulty of monitoring mixed quota from the two categories, since 
they are allocated quota from two separate pools.
    Under the no action alternative, LAGC IFQ vessels that want to 
permanently transfer quota have to purchase LAGC IFQ permit as well as 
all the other permits a vessel has, which makes purchasing of LAGC IFQ 
very expensive. It also is a deterrent to engaging in permanent 
transfers, since some owners would prefer to retain the permits for 
other fisheries. The no action alternative, therefore, would have 
reduced benefits compared to the adopted measure.

9. Measures To Address EFH Closed Areas

    This action modifies the EFH areas closed to scallop gear under 
Scallop Amendment 10 to be consistent with NE Multispecies Amendment 
13, and eliminate the areas closed for EFH under Amendment 10. As a 
result, effort could be allocated to CAI (where the scallops are larger 
and yield is higher), instead of allocating more open area effort in 
areas with potentially lower catch rates. This is expected to have 
positive impacts on the scallop resource and future yield, and to 
increase the scallop revenues by about $8 million (assuming a price of 
$7.00 per lb) per year. Fishing in more productive areas is also 
expected to reduce the fishing costs. Therefore, the revised EFH closed 
areas are expected to have positive impacts on revenues and profits 
from the scallop fishery. The Council considered taking no action, but 
such action would have lower economic benefits than the proposed 
action, since it would not provide access to portions of the scallop 
resource that would improve yield and reduce fishing costs.

10. Measures To Improve RSA Program

    These measures are expected to have positive indirect economic 
benefits for the sea scallop fishery by improving the timing and 
administration of the RSA program. Having dedicated resources for 
funding research to survey access areas will improve the Council's 
ability to allocate the appropriate amount of effort to prevent 
overfishing and optimize yield. Exempting RSA projects (if identified 
in the proposal) from crew restrictions, the seasonal closure in 
Elephant Trunk, and the requirement to return to port if fishing in 
more than one area will allow more flexibility and more effective 
research. If, as a result of these measures, the program can be more 
streamlined, and worthwhile

[[Page 43761]]

projects can occur with fewer obstacles, better and timelier research 
will result in indirect benefits on the scallop resource and yield and 
will increase economic benefits from the scallop fishery. Several 
alternatives were considered by the Council, but they all would have 
similar impacts. Therefore, the adopted Scallop RSA Program revisions 
are based on policy decisions that reflect the most efficient and 
effective way of implementing the RSA Program.

11. Third-Year Default Measures in the Framework Adjustment Process and 
Addition to the List of Frameworkable Items in the FMP

    A third year of specifications will be established through the 
framework adjustment process in order to prevent outdated measures from 
being implemented due to the delay in the implementation of the 2-yr 
framework actions. It serves as a safety mechanism to prevent against 
management measure rollovers during implementation delays. These 
rollover measures complicate management of the scallop fishery, do not 
make sense for the industry, and may cause undesired negative effects 
or require further management intervention. Therefore, including third-
year specifications alleviates some of the implementation issues caused 
by the time lag between the FY and the time when the survey data become 
available. Since the measures that are created for year 3 will result 
in landings more consistent with the updated scallop biomass estimates 
and PDT recommendations, this action is expected to have positive 
indirect effects on the participants of the scallop fishery. There are 
no other alternatives that would result in larger economic benefits.
    Expanding the list of frame workable items allows the Council to 
more easily adjust the allocations according to the resource conditions 
and as needed in terms of research priorities or to make further 
changes to benefit EFH. As a result, these measures are expected to 
have positive impacts on the scallop fishery and its participants. 
There are no other alternatives that would result in larger economic 
benefits.

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 scallop fishery. In addition, copies of this final rule and 
guide (i.e., permit holder letter) are available from the Regional 
Administrator and are also available from NMFS, Northeast Region (see 
ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: July 14, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.4, paragraphs (a)(2)(i) introductory text, and 
(a)(2)(ii)(A) are revised to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (2) * * *
    (i) Limited access scallop permits. Any vessel of the United States 
that possesses or lands more than 600 lb (272.2 kg) of shucked 
scallops, or 50 bu (17.6 hL) of in-shell scallops per trip South of 
42[deg]20' N. Lat., or 75 bu (26.4 hL) of in-shell scallops per trip 
North of 42[deg]20' N. Lat, or possesses more than 100 bu (35.2 hL) of 
in-shell scallops seaward of the VMS Demarcation Line, except vessels 
that fish exclusively in state waters for scallops, must have been 
issued and carry on board a valid limited access scallop permit.
* * * * *
    (ii) * * *
    (A) Individual fishing quota LAGC permit. To possess or land up to 
600 lb (272.2 kg) of shucked meats, or land up to 75 bu (26.4 hL) of 
in-shell scallops per trip, or possess up to 100 bu (35.2 hL) of in-
shell scallops seaward of the VMS demarcation line, a vessel must have 
been issued an individual fishing quota LAGC scallop permit (IFQ 
scallop permit). Issuance of an initial IFQ scallop permit is 
contingent upon the vessel owner submitting the required application 
and other information that demonstrates that the vessel meets the 
eligibility criteria specified in paragraph (a)(2)(ii)(D) of this 
section.
* * * * *

0
3. In Sec.  648.10, paragraphs (e)(5)(i), (e)(5)(ii), (f)(4)(i), and 
(h)(8) are revised to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (e) * * *
    (5) * * *
    (i) A vessel subject to the VMS requirements of Sec.  648.9 and 
paragraphs (b) through (d) of this section that has crossed the VMS 
Demarcation Line under paragraph (a) of this section is deemed to be 
fishing under the DAS program, the LAGC IFQ or NGOM scallop fishery, or 
other fishery requiring the operation of VMS as applicable, unless 
prior to leaving port, the vessel's owner or authorized representative 
declares the vessel out of the scallop, NE multispecies, or monkfish 
fishery, as applicable, for a specific time period. NMFS must be 
notified by transmitting the appropriate VMS code through the VMS, or 
unless the vessel's owner or authorized representative declares the 
vessel will be fishing in the Eastern U.S./Canada Area, as described in 
Sec.  648.85(a)(3)(ii), under the provisions of that program.
    (ii) Notification that the vessel is not under the DAS program, the 
LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the 
operation of VMS, must be received by NMFS prior to the vessel leaving 
port. A vessel may not change its status after the vessel leaves port 
or before it returns to port on any fishing trip.
* * * * *
    (f) * * *
    (4) * * *
    (i) The owner or operator of a limited access or LAGC IFQ vessel 
that fishes for, possesses, or retains scallops, and is not fishing 
under a NE Multispecies DAS or sector allocation, must submit reports 
through the VMS, in accordance with instructions to be provided by the 
Regional Administrator, for each day fished, including open area trips, 
access area trips as described in Sec.  648.60(a)(9), and trips 
accompanied by a NMFS-approved observer. The reports must be submitted 
for each day (beginning at 0000 hr and ending at 2400 hr) and not later 
than 0900 hours of the following day. Such reports must include the 
following information:
    (A) FVTR serial number;
    (B) Date fish were caught;
    (C) Total pounds of scallop meats kept;

[[Page 43762]]

    (D) Total pounds of yellowtail flounder kept;
    (E) Total pounds of yellowtail flounder discarded; and
    (F) Total pounds of all other fish kept.
* * * * *
    (h) * * *
    (8) Any vessel issued a limited access scallop permit and not 
issued an LAGC scallop permit that possesses or lands scallops; any 
vessel issued a limited access scallop and LAGC IFQ scallop permit that 
possesses or lands more than 600 lb (272.2 kg) of scallops; any vessel 
issued a limited access scallop and LAGC NGOM scallop permit that 
possesses or lands more than 200 lb (90.7 kg) of scallops; any vessel 
issued a limited access scallop and LAGC IC scallop permit that 
possesses or lands more than 40 lb (18.1 kg) of scallops; any vessel 
issued a limited access NE multispecies permit subject to the NE 
multispecies DAS program requirements that possesses or lands regulated 
NE multispecies, except as provided in Sec. Sec.  648.10(h)(9)(ii), 
648.17, and 648.89; any vessel issued a limited access monkfish permit 
subject to the monkfish DAS program and call-in requirement that 
possess or lands monkfish above the incidental catch trip limits 
specified in Sec.  648.94(c); and any vessel issued a limited access 
red crab permit subject to the red crab DAS program and call-in 
requirement that possesses or lands red crab above the incidental catch 
trip limits specified in Sec.  648.263(b)(1) shall be deemed to be in 
its respective DAS program for purposes of counting DAS and will be 
charged DAS from its time of sailing to landing, regardless of whether 
the vessel's owner or authorized representative provides adequate 
notification as required by paragraphs (e) through (h) of this section.
* * * * *

0
4. In Sec.  648.11, paragraphs (g)(1) and (g)(2)(ii) are revised to 
read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (g) * * *
    (1) General. Unless otherwise specified, owners, operators, and/or 
managers of vessels issued a Federal scallop permit under Sec.  
648.4(a)(2), and specified in paragraph (b) of this section, must 
comply with this section and are jointly and severally responsible for 
their vessel's compliance with this section. To facilitate the 
deployment of at-sea observers, all sea scallop vessels issued limited 
access permits fishing in open areas or Sea Scallop Access Areas, and 
LAGC IFQ vessels fishing under the Sea Scallop Access Area program 
specified in Sec.  648.60, are required to comply with the additional 
notification requirements specified in paragraph (g)(2) of this 
section. When NMFS notifies the vessel owner, operator, and/or manager 
of any requirement to carry an observer on a specified trip in either 
an Access Area or Open Area as specified in paragraph (g)(3) of this 
section, the vessel may not fish for, take, retain, possess, or land 
any scallops without carrying an observer. Vessels may only embark on a 
scallop trip in open areas or Access Areas without an observer if the 
vessel owner, operator, and/or manager has been notified that the 
vessel has received a waiver of the observer requirement for that trip 
pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.
    (2) * * *
    (ii) LAGC IFQ vessels. LAGC IFQ vessel owners, operators, or 
managers must notify the NMFS/NEFOP by telephone by 0001 hr of the 
Thursday preceding the week (Sunday through Saturday) that they intend 
to start a scallop trip in an access area. If selected, up to two Sea 
Scallop Access Area trips that start during the specified week (Sunday 
through Saturday) can be selected to be covered by an observer. NMFS/
NEFOP must be notified by the owner, operator, or vessel manager of any 
trip plan changes at least 48 hr prior to vessel departure.
* * * * *

0
5. In Sec.  648.14, paragraphs (i)(1)(ii), (i)(1)(iii)(A)(1)(iii), 
(i)(1)(iii)(A)(2)(iii), (i)(1)(iii)(A)(3) introductory text, 
(i)(4)(i)(A), (i)(4)(ii)(B), and (i)(4)(iii)(B) are revised; paragraph 
(i)(2)(viii) is added; and paragraph (i)(3)(iii)(E) is removed as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (i) * * *
    (1) * * *
    (ii) Gear and crew requirements. Have a shucking or sorting machine 
on board a vessel while in possession of more than 600 lb (272.2 kg) of 
shucked scallops, unless that vessel has not been issued a scallop 
permit and fishes exclusively in state waters.
    (iii) * * *
    (A) * * *
    (1) * * *
    (iii) The scallops were harvested by a vessel that has been issued 
and carries on board an IFQ scallop permit and is properly declared 
into the IFQ scallop fishery or is properly declared into the NE 
multispecies or Atlantic surfclam or quahog fishery and is not fishing 
in a sea scallop access area.
* * * * *
    (2) * * *
    (iii) The scallops were harvested by a vessel that has been issued 
and carries on board an IFQ scallop permit issued pursuant to Sec.  
648.4(a)(2)(ii)(A), is fishing outside of the NGOM scallop management 
area, and is properly declared into the general category scallop 
fishery or is properly declared into the NE multispecies or Atlantic 
surfclam or quahog fishery and is not fishing in a sea scallop access 
area.
* * * * *
    (3) In excess of 600 lb (272.2 kg) of shucked scallops at any time, 
50 bu (17.6 hL) of in-shell scallops per trip South of 42[deg]20[min] 
N. Lat. and shoreward of the VMS Demarcation Line, or 75 bu (26.4 hL) 
of in-shell scallops per trip North of 42[deg]20[min] N. Lat and 
shoreward of the VMS demarcation line, or 100 bu (35.2 hL) in-shell 
scallops seaward of the VMS Demarcation Line, unless:
* * * * *
    (2) * * *
    (viii) Fish for scallops in, or possess scallops or land scallops 
from, the yellowtail flounder accountability measure closed areas 
specified in Sec.  648.64 during the period specified in the notice 
announcing the closure and based on the closure table specified in 
Sec.  648.64.
* * * * *
    (4) * * *
    (i) * * *
    (A) Fish for or land per trip, or possess at any time, in excess of 
600 lb (272.2 kg) of shucked, or 75 bu (26.4 hL) of in-shell scallops 
per trip, or 100 bu (35.2 hL) in-shell scallops seaward of the VMS 
Demarcation Line, unless the vessel is carrying an observer as 
specified in Sec.  648.11 while participating in the Area Access 
Program specified in Sec.  648.60 and an increase in the possession 
limit is authorized by the Regional Administrator and not exceeded by 
the vessel, as specified in Sec. Sec.  648.52(g) and 648.60(d)(2).
* * * * *
    (ii) * * *
    (B) Have an IFQ allocation on an IFQ scallop vessel of more than 
2.5 percent of the total IFQ scallop ACL as specified in Sec.  
648.53(a)(4)(i).
* * * * *
    (iii) * * *
    (B) Apply for an IFQ transfer that will result in the receiving 
vessel having an IFQ allocation in excess of 2.5 percent of the total 
IFQ scallop ACL as specified in Sec.  648.53(a)(4)(i).
* * * * *

0
6. In Sec.  648.51, paragraphs (d)(1) and (e) introductory text are 
revised to read as follows:

[[Page 43763]]

Sec.  648.51  Gear and crew restrictions.

* * * * *
    (d) * * *
    (1) Shucking machines are prohibited on all limited access vessels 
fishing under the scallop DAS program, or any vessel in possession of 
more than 600 lb (272.2 kg) of scallops, unless the vessel has not been 
issued a limited access scallop permit and fishes exclusively in state 
waters.
* * * * *
    (e) Small dredge program restrictions. Any vessel owner whose 
vessel is assigned to either the part-time or Occasional category may 
request, in the application for the vessel's annual permit, to be 
placed in one category higher. Vessel owners making such request may be 
placed in the appropriate higher category for the entire year, if they 
agree to comply with the following restrictions, in addition to, and 
notwithstanding other restrictions of this part, when fishing under the 
DAS program described in Sec.  648.53:
* * * * *

0
7. In Sec.  648.52, paragraph (a) is revised to read as follows:


Sec.  648.52  Possession and landing limits.

    (a) A vessel issued an IFQ scallop permit that is declared into the 
IFQ scallop fishery as specified in Sec.  648.10(b), or on a properly 
declared NE multispecies, surfclam, or ocean quahog trip and not 
fishing in a scallop access area, unless as specified in paragraph (g) 
of this section or exempted under the state waters exemption program 
described in Sec.  648.54, may not possess or land, per trip, more than 
600 lb (272.2 kg) of shucked scallops, or possess more than 75 bu (26.4 
hL) of in-shell scallops shoreward of the VMS Demarcation Line. Such a 
vessel may land scallops only once in any calendar day. Such a vessel 
may possess up to 100 bu (35.2 hL) of in-shell scallops seaward of the 
VMS demarcation line on a properly declared IFQ scallop trip, or on a 
properly declared NE multispecies, surfclam, or ocean quahog trip and 
not fishing in a scallop access area.
* * * * *

0
8. In Sec.  648.53,
0
a. The section heading is revised;
0
b. Paragraphs (a), (b)(1), (b)(4) introductory text, (c), (d), (g), 
(h)(2)(iii), (h)(3)(i)(A), (h)(3)(i)(B), (h)(3)(i)(C), (h)(3)(ii)(A), 
(h)(4) introductory text, (h)(5)(ii), (h)(5)(iii), and (h)(5)(iv) are 
revised;
0
c. Paragraphs (b) introductory text, (b)(4)(ii), (h)(2)(v), and 
(h)(2)(vi) are added;
0
d. Paragraphs (a)(5), (a)(6), and (a)(9), (b)(2), and (b)(4)(i) are 
removed and reserved.
    The revisions and additions read as follows:


Sec.  648.53  Acceptable biological catch (ABC), annual catch limits 
(ACL), annual catch targets (ACT), DAS allocations, and individual 
fishing quotas.

    (a) Scallop fishery ABC. The ABC for the scallop fishery shall be 
established through the framework adjustment process specified in Sec.  
648.55 and is equal to the overall scallop fishery ACL. The ABC/ACL 
shall be divided as sub-ACLs between limited access vessels, limited 
access vessels that are fishing under a limited access general category 
permit, and limited access general category vessels as specified in 
paragraphs (a)(3) and (a)(4) of this section, after deducting the 
scallop incidental catch target TAC specified in paragraph (a)(2) of 
this section, observer set-aside specified in paragraph (g)(1) of this 
section, and research set-aside specified in Sec.  648.56(d).
    (1) ABC/ACL for fishing years 2011 through 2013 shall be:
    (i) 2011. To be determined.
    (ii) 2012. To be determined.
    (iii) 2013. To be determined.
    (2) Scallop incidental catch target TAC. The incidental catch 
target TAC for vessels with incidental catch scallop permits is to be 
determined for fishing years 2011, 2012, and 2013.
    (3) Limited access fleet sub-ACL and ACT. The limited access 
scallop fishery shall be allocated 94.5 percent of the ACL specified in 
paragraph (a)(1) of this section, after deducting incidental catch, 
observer set-aside, and research set-aside, as specified in this 
paragraph (a). ACT for the limited access scallop fishery shall be 
established through the framework adjustment process described in Sec.  
648.55. DAS specified in paragraph (b) of this section shall be based 
on the ACTs specified in paragraph (a)(3)(ii) of this section.
    (i) The limited access fishery sub-ACLs for the 2011 through 2013 
fishing years are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (ii) The limited access fishery ACTs for the 2011 through 2013 
fishing years are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (4) LAGC fleet sub-ACL. The sub-ACL for the LAGC IFQ fishery shall 
be equal to 5.5 percent of the ACL specified in paragraph (a)(1) of 
this section, after deducting incidental catch, observer set-aside, and 
research set-aside, as specified in this paragraph (a). The LAGC IFQ 
fishery ACT shall be equal to the LAGC IFQ fishery's ACL. The ACL for 
the LAGC IFQ fishery for vessels issued only a LAGC IFQ scallop permit 
shall be equal to 5 percent of the ACL specified in paragraph (a)(1) of 
this section, after deducting incidental catch, observer set-aside, and 
research set-aside, as specified in this paragraph (a). The ACL for the 
LAGC IFQ fishery for vessels issued both a LAGC IFQ scallop permit and 
a limited access scallop permit shall be 0.5 percent of the ACL 
specified in paragraph (a)(1) of this section, after deducting 
incidental catch, observer set-aside, and research set-aside, as 
specified in this paragraph (a).
    (i) The ACLs for the 2011 through 2013 fishing years for LAGC IFQ 
vessels without a limited access scallop permit are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (ii) The ACLs for the 2011 through 2013 fishing years for vessels 
issued both a LAGC and a limited access scallop permit are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (b) DAS allocations. DAS allocations for limited access scallop 
trips in all areas other than those specified in Sec.  648.59 shall be 
specified through the framework adjustment process, as specified in 
Sec.  648.55, using the ACT specified in paragraph (a)(3)(ii) of this 
section. A vessel's DAS, shall be determined and specified in paragraph 
(b)(4) of this section by dividing the total DAS specified in the 
framework adjustment by the LPUE specified in paragraph (b)(1) of this 
section, then dividing by the total number of vessels in the fleet.
    (1) Landings per unit effort (LPUE). LPUE is an estimate of the 
average amount of scallops, in pounds, that the limited access scallop 
fleet lands per DAS fished. The estimated LPUE is the average LPUE for 
all limited access scallop vessels fishing under DAS, and shall be used 
to calculate DAS specified in paragraph (b)(4) of this section, the DAS 
reduction for the AM specified in paragraph (b)(4)(ii) of this section, 
and the observer set-aside DAS allocation specified in paragraph (g)(1) 
of this section. LPUE shall be:
    (i) 2011. To be determined.
    (ii) 2012. To be determined.
    (iii) 2013. To be determined.
* * * * *
    (4) Each vessel qualifying for one of the three DAS categories 
specified in the

[[Page 43764]]

table in this paragraph (b)(4) (full-time, part-time, or occasional) 
shall be allocated the maximum number of DAS for each fishing year it 
may participate in the open area limited access scallop fishery, 
according to its category, excluding carryover DAS in accordance with 
paragraph (d) of this section. DAS allocations shall be determined by 
distributing the portion of ACT specified in paragraph (a)(3)(ii), as 
reduced by access area allocations, as specified in Sec.  648.59, and 
dividing that among vessels in the form of DAS calculated by applying 
estimates of open area LPUE specified in paragraph (b)(1) of this 
section. Part-time and occasional scallop vessels shall be equal to 40 
percent and 8.33 percent of the full-time DAS allocations, 
respectively. The annual open area DAS allocations for each category of 
vessel for the fishing years indicated are as follows:

------------------------------------------------------------------------
                          DAS category                             2010
------------------------------------------------------------------------
Full-time......................................................       38
Part-time......................................................       15
Occasional.....................................................        3
------------------------------------------------------------------------

* * * * *
    (ii) Accountability measures (AM). Unless the limited access AM 
exception is implemented in accordance with the provision specified in 
paragraph (b)(4)(iii) of this section, if the ACL specified in 
paragraph (a)(3)(i) of this section is exceeded for the applicable 
fishing year, the DAS specified in paragraph (b)(4) of this section for 
each limited access vessel shall be reduced by an amount equal to the 
amount of landings in excess of the ACL divided by the applicable LPUE 
for the fishing year in which the AM will apply as specified in 
paragraph (b)(1) of this section, then divided by the number of scallop 
vessels eligible to be issued a full-time limited access scallop 
permit. For example, assuming a 300,000-lb (136-mt) overage of the ACL 
in 2011, an open area LPUE of 2,500 lb (1.13 mt) per DAS in 2012, and 
313 full-time vessels, each full time vessel's DAS would be reduced by 
0.38 DAS (300,000 lb (136 mt)/2,500 lb (1.13 mt) per DAS = 120 lb (0.05 
mt) per DAS/313 vessels = 0.38 DAS per vessel). Deductions for part-
time and occasional scallop vessels shall be equal to 40 percent and 8 
percent of the full-time DAS deduction, respectively, as calculated 
pursuant to this paragraph (b)(4)(ii). The AM shall take effect in the 
fishing year following the fishing year in which the overage occurred. 
For example, landings in excess of the ACL in fishing year 2011 would 
result in the DAS reduction AM in fishing year 2012. If the AM takes 
effect, and a limited access vessel uses more open area DAS in the 
fishing year in which the AM is applied, the vessel shall have the DAS 
used in excess of the allocation after applying the AM deducted from 
its open area DAS allocation in the subsequent fishing year. For 
example, a vessel initially allocated 32 DAS in 2011 uses all 32 DAS 
prior to application of the AM. If, after application of the AM, the 
vessel's DAS allocation is reduced to 31 DAS, the vessel's DAS in 2012 
would be reduced by 1 DAS.
    (iii) Limited access AM exception--If it is determined by NMFS in 
accordance with paragraph (b)(4)(ii) of this section, that the fishing 
mortality rate associated with total scallop landings in a fishing year 
is less than 0.28, the AM specified in paragraph (b)(4)(ii) of this 
section shall not take effect. The fishing mortality rate of 0.28 is 
the fishing mortality that is one standard deviation below the fishing 
mortality rate for the scallop fishery ACL (i.e., ABC), currently 
estimated at 0.32.
    (iv) Limited access fleet AM and exception provision timing. The 
Regional Administrator shall determine whether the limited access fleet 
exceeded its ACL specified in paragraph (a)(3)(i) of this section by 
July of the fishing year following the year for which landings are 
being evaluated. On or about July 1, the Regional Administrator shall 
notify the New England Fishery Management Council (Council) of the 
determination of whether or not the ACL for the limited access fleet 
was exceeded, and the amount of landings in excess of the ACL. Upon 
this notification, the Scallop Plan Development Team (PDT) shall 
evaluate the overage and determine if the fishing mortality rate 
associated with total scallop landings is less than 0.28. On or about 
September 1 of each year, the Scallop PDT shall notify the Council of 
its determination, and the Council, on or about September 30, shall 
make a recommendation, based on the Scallop PDT findings, concerning 
whether to invoke the limited access AM exception. If NMFS concurs with 
the Scallop PDT recommendation to invoke the limited access AM 
exception, in accordance with the APA, the limited access AM shall not 
be implemented. If NMFS does not concur, in accordance with the APA, 
the limited access AM shall be implemented as soon as possible after 
September 30 each year.
* * * * *
    (c) Adjustments in annual DAS allocations. Annual DAS allocations 
shall be established for 3 fishing years through biennial framework 
adjustments as specified in Sec.  648.55. If a biennial framework 
action is not undertaken by the Council and implemented by NMFS before 
the beginning of the third year of each biennial adjustment, the third-
year measures specified in the biennial framework adjustment shall 
remain in effect for the next fishing year. If a new biennial or other 
framework adjustment is not implemented by NMFS by the conclusion of 
the third year, the management measures from that third year would 
remain in place until a new action is implemented. The Council may also 
recommend adjustments to DAS allocations or other measures through a 
framework adjustment at any time.
    (d) End-of-year carry-over for open area DAS. With the exception of 
vessels that held a Confirmation of Permit History as described in 
Sec.  648.4(a)(2)(i)(J) for the entire fishing year preceding the 
carry-over year, limited access vessels that have unused Open Area DAS 
on the last day of February of any year may carry over a maximum of 10 
DAS, not to exceed the total Open Area DAS allocation by permit 
category, into the next year. DAS carried over into the next fishing 
year may only be used in Open Areas. Carry-over DAS are accounted for 
in setting the ACT for the limited access fleet, as specified in 
paragraph (a)(3)(ii) of this section. Therefore, if carry-over DAS 
result or contribute to an overage of the ACL, the limited access fleet 
AM specified in paragraph (b)(4)(ii) of this section would still apply, 
provided the AM exception specified in paragraph (b)(4)(iii) of this 
section is not invoked.
* * * * *
    (g) Set-asides for observer coverage. (1) To help defray the cost 
of carrying an observer, 1 percent of the ABC/ACL specified in 
paragraph (a)(1) of this section shall be set aside to be used by 
vessels that are assigned to take an at-sea observer on a trip. The 
total TAC for observer set aside is 273 mt in fishing year 2011, 289 mt 
in fishing year 2012, and 287 mt in fishing year 2013. This 1 percent 
is divided proportionally into access areas and open areas, as 
specified in Sec.  648.60(d)(1) and (g)(2) of this paragraph, 
respectively.
    (2) DAS set-aside for observer coverage. For vessels assigned to 
take an at-sea observer on a trip other than an Access Area Program 
trip, the open-area observer set-aside TACs are 139 mt, 161 mt, and 136 
mt for fishing years 2011, 2012, and 2013, respectively. The DAS set-
aside shall be determined by dividing these amounts by the LPUE 
specified in paragraph (b)(1)(i) of this

[[Page 43765]]

section for each specific fishing year. The DAS set-aside for observer 
coverage is 137 DAS for the 2011 fishing year, 133 DAS for the 2012 
fishing year, and 112 DAS for the 2013 fishing year. A vessel carrying 
an observer shall be compensated with reduced DAS accrual rates for 
each trip on which the vessel carries an observer. For each DAS that a 
vessel fishes for scallops with an observer on board, the DAS shall be 
charged at a reduced rate, based on an adjustment factor determined by 
the Regional Administrator on an annual basis, dependent on the cost of 
observers, catch rates, and amount of available DAS set-aside. The 
Regional Administrator shall notify vessel owners of the cost of 
observers and the DAS adjustment factor through a permit holder letter 
issued prior to the start of each fishing year. This DAS adjustment 
factor may also be changed during the fishing year if fishery 
conditions warrant such a change. The number of DAS that are deducted 
from each trip based on the adjustment factor shall be deducted from 
the observer DAS set-aside amount in the applicable fishing year. 
Utilization of the DAS set-aside shall be on a first-come, first-served 
basis. When the DAS set-aside for observer coverage has been utilized, 
vessel owners shall be notified that no additional DAS remain available 
to offset the cost of carrying observers. The obligation to carry and 
pay for an observer shall not be waived if set-aside is not available.
    (h) * * *
    (2) * * *
    (iii) Contribution percentage. A vessel's contribution percentage 
shall be determined by dividing its contribution factor by the sum of 
the contribution factors of all vessels issued an IFQ scallop permit. 
Continuing the example in paragraph (h)(1)(ii)(D) of this section, the 
sum of the contribution factors for 380 IFQ scallop vessels is 
estimated, for the purpose of this example, to be 4.18 million lb 
(1,896 mt). The contribution percentage of the above vessel is 1.45 
percent (60,687 lb (27,527 kg)/4.18 million lb (1,896 mt) = 1.45 
percent). The contribution percentage for a vessel that is issued an 
IFQ scallop permit and that has permanently transferred all of its IFQ 
to another IFQ vessel, as specified in paragraph (h)(5)(ii) of this 
section, shall be equal to 0 percent.
* * * * *
    (v) End-of-year carry-over for IFQ. (A) With the exception of 
vessels that held a confirmation of permit history as described in 
Sec.  648.4(a)(2)(ii)(L) for the entire fishing year preceding the 
carry-over year, LAGC IFQ vessels that have unused IFQ on the last day 
of February of any year may carry over up to 15 percent of the vessel's 
original IFQ and transferred (either temporary or permanent) IFQ into 
the next fishing year. For example, a vessel with a 10,000-lb (4,536-
kg) IFQ and 5,000-lb (2,268-kg) leased IFQ may carry over 2,250 lb 
(1,020 kg) of IFQ (i.e., 15 percent of 15,000 lb (6,804 kg) into the 
next fishing year if it landed 12,750 lb (5,783 kg) (i.e., 85 percent 
of 15,000 lb (6,804 kg) of scallops or less in the preceding fishing 
year. Using the same IFQ values from the example, if the vessel landed 
14,000 lb (6,350 kg) of scallops, it could carry over 1,000 lb (454 kg) 
of scallops into the next fishing year.
    (B) For accounting purposes, the combined total of all vessels' IFQ 
carry-over shall be added to the LAGC IFQ fleet's applicable ACL for 
the carry-over year. Any IFQ carried over that is landed in the carry-
over fishing year shall be counted against the ACL specified in 
paragraph (a)(4)(i) of this section, as increased by the total carry-
over for all LAGC IFQ vessels, as specified in this paragraph 
(h)(2)(v)(B). IFQ carry-over shall not be applicable to the calculation 
of the IFQ cap specified in paragraph (h)(3)(i) of this section and the 
ownership cap specified in paragraph (h)(3)(ii) of this section.
    (vi) AM for the IFQ fleet. If a vessel exceeds its IFQ, including 
all temporarily and permanently transferred IFQ, in a fishing year, the 
amount of landings in excess of the vessel's IFQ, including all 
temporarily and permanently transferred IFQ, shall be deducted from the 
vessel's IFQ as soon as possible in the fishing year following the 
fishing year in which the vessel exceeded its IFQ. If the AM takes 
effect, and an IFQ vessel lands more scallops than allocated after the 
AM is applied, the vessel shall have the IFQ landed in excess of its 
IFQ after applying the AM deducted from its IFQ in the subsequent 
fishing year. For example, a vessel with an initial IFQ of 1,000 lb 
(453.6 kg) in 2010 landed 1,200 lb (544.3 kg) of scallops in 2010, and 
is initially allocated 1,300 lb (589.7 kg) of scallops in 2011. That 
vessel would be subject to an IFQ reduction equal to 200 lb (90.7 kg) 
to account for the 200 lb (90.7 kg) overage in 2010. If that vessel 
lands 1,300 lb (589.7 kg) of scallops in 2011 prior to application of 
the 200-lb (90.7-kg) deduction, the vessel would be subject to a 
deduction of 200 lb (90.7 kg) in 2012. For vessels involved in a 
temporary IFQ transfer, the entire deduction shall apply to the vessel 
that acquired IFQ, not the transferring vessel. A vessel that has an 
overage that exceeds its IFQ in the subsequent fishing year shall be 
subject to an IFQ reduction in subsequent years until the overage is 
paid back. For example, a vessel with an IFQ of 1,000 lb (454 kg) in 
each year over a 3-year period, that harvests 2,500 lb (1,134 kg) of 
scallops the first year, would have a 1,500-lb (680-kg) IFQ deduction, 
so that it would have zero pounds to harvest in year 2, and 500 lb (227 
kg) to harvest in year 3. A vessel that has a ``negative'' IFQ balance, 
as described in the example, could lease or transfer IFQ to balance the 
IFQ, provided there are no sanctions or other enforcement penalties 
that would prohibit the vessel from acquiring IFQ.
    (3) * * *
    (i) * * *
    (A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C) 
of this section, a vessel issued an IFQ scallop permit or confirmation 
of permit history shall not be issued more than 2.5 percent of the ACL 
allocated to the IFQ scallop vessels as described in paragraphs 
(a)(4)(i) and (iii) of this section.
    (B) A vessel may be initially issued more than 2.5 percent of the 
ACL allocated to the IFQ scallop vessels as described in paragraphs 
(a)(4)(i) of this section, if the initial determination of its 
contribution factor specified in accordance with Sec.  
648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section, results in 
an IFQ that exceeds 2.5 percent of the ACL allocated to the IFQ scallop 
vessels as described in paragraph (a)(4)(i) of this section. A vessel 
that is allocated an IFQ that exceeds 2.5 percent of the ACL allocated 
to the IFQ scallop vessels as described in paragraphs (a)(4)(i) of this 
section, in accordance with this paragraph (h)(3)(i)(B), may not 
receive IFQ through an IFQ transfer, as specified in paragraph (h)(5) 
of this section.
    (C) A vessel initially issued a 2008 IFQ scallop permit or 
confirmation of permit history, or that was issued or renewed a limited 
access scallop permit or confirmation of permit history for a vessel in 
2009 and thereafter, in compliance with the ownership restrictions in 
paragraph (h)(3)(i)(A) of this section, is eligible to renew such 
permits(s) and/or confirmation(s) of permit history, regardless of 
whether the renewal of the permit or confirmations of permit history 
will result in the 2.5-percent IFQ cap restriction being exceeded.
    (ii) * * *
    (A) For any vessel acquired after June 1, 2008, a vessel owner is 
not eligible to be issued an IFQ scallop permit for the vessel, and/or 
a confirmation of permit

[[Page 43766]]

history, and is not eligible to transfer IFQ to the vessel, if, as a 
result of the issuance of the permit and/or confirmation of permit 
history, or IFQ transfer, the vessel owner, or any other person who is 
a shareholder or partner of the vessel owner, will have an ownership 
interest in more than 5 percent of the ACL allocated to the IFQ scallop 
vessels as described in paragraphs (a)(4)(i) of this section.
* * * * *
    (4) IFQ cost recovery. A fee, not to exceed 3 percent of the ex-
vessel value of IFQ scallops harvested, shall be collected to recover 
the costs associated with management, data collection, and enforcement 
of the IFQ program. The owner of a vessel issued an IFQ scallop permit 
and subject to the IFQ program specified in this paragraph (h) shall be 
responsible for paying the fee as specified by NMFS in this paragraph 
(h)(4). An IFQ scallop vessel shall incur a cost recovery fee liability 
for every landing of IFQ scallops. The IFQ scallop permit holder shall 
be responsible for collecting the fee for all of its vessels' IFQ 
scallop landings, and shall be responsible for submitting this payment 
to NMFS once per year. The cost recovery fee for all landings, 
regardless of ownership changes throughout the fishing year, shall be 
the responsibility of the official owner of the vessel, as recorded in 
the vessel permit or confirmation of permit history file, at the time 
the bill is sent.
* * * * *
    (5) * * *
    (ii) Permanent IFQ transfers. Subject to the restrictions in 
paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop 
vessel not issued a limited access scallop permit may transfer IFQ 
permanently to or from another IFQ scallop vessel. Any such transfer 
cannot be limited in duration and is permanent, unless the IFQ is 
subsequently transferred to another IFQ scallop vessel, other than the 
originating IFQ scallop vessel, in a subsequent fishing year. If a 
vessel permanently transfers its entire IFQ to another vessel, the LAGC 
IFQ scallop permit shall remain valid on the transferring vessel, 
unless the owner of the transferring vessel cancels the IFQ scallop 
permit. Such cancellation shall be considered voluntary relinquishment 
of the IFQ permit, and the vessel shall be ineligible for an IFQ 
scallop permit unless it replaces another vessel that was issued an IFQ 
scallop permit. The Regional Administrator has final approval authority 
for all IFQ transfer requests.
    (iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel 
not issued a limited access scallop permit that has fished under its 
IFQ in a fishing year may not transfer that vessel's IFQ to another IFQ 
scallop vessel in the same fishing year. Requests for IFQ transfers 
cannot be less than 100 lb (46.4 kg), unless that value reflects the 
total IFQ amount remaining on the transferor's vessel, or the entire 
IFQ allocation. IFQ can be transferred only once during a given fishing 
year. A transfer of an IFQ may not result in the sum of the IFQs on the 
receiving vessel exceeding 2.5 percent of the ACL allocated to IFQ 
scallop vessels. A transfer of an IFQ, whether temporary or permanent, 
may not result in the transferee having a total ownership of, or 
interest in, general category scallop allocation that exceeds 5 percent 
of the ACL allocated to IFQ scallop vessels. Limited access scallop 
vessels that are also issued an IFQ scallop permit may not transfer to 
or receive IFQ from another IFQ scallop vessel.
    (iv) Application for an IFQ transfer. The owner of a vessel 
applying for a transfer of IFQ must submit a completed application form 
obtained from the Regional Administrator. The application must be 
signed by both parties (transferor and transferee) involved in the 
transfer of the IFQ, and must be submitted to the NMFS Northeast 
Regional Office at least 30 days before the date on which the 
applicants desire to have the IFQ effective on the receiving vessel. 
The Regional Administrator shall notify the applicants of any 
deficiency in the application pursuant to this section. Applications 
may be submitted at any time during the scallop fishing year, provided 
the vessel transferring the IFQ to another vessel has not utilized any 
of its own IFQ in that fishing year. Applications for temporary 
transfers received less than 45 days prior to the end of the fishing 
year may not be processed in time for a vessel to utilize the 
transferred IFQ, if approved, prior to the expiration of the fishing 
year.
    (A) Application information requirements. An application to 
transfer IFQ must contain at least the following information: 
Transferor's name, vessel name, permit number, and official number or 
state registration number; transferee's name, vessel name, permit 
number, and official number or state registration number; total price 
paid for purchased IFQ; signatures of transferor and transferee; and 
date the form was completed. In addition, applications to transfer IFQ 
must indicate the amount, in pounds, of the IFQ allocation transfer, 
which may not be less than 100 lb (45 kg), unless that value reflects 
the total IFQ amount remaining on the transferor's vessel, or the 
entire IFQ allocation. Information obtained from the transfer 
application will be held confidential, and will be used only in 
summarized form for management of the fishery.
    (B) Approval of IFQ transfer applications. Unless an application to 
transfer IFQ is denied according to paragraph (h)(5)(iii)(C) of this 
section, the Regional Administrator shall issue confirmation of 
application approval to both parties involved in the transfer within 30 
days of receipt of an application.
    (C) Denial of transfer application. The Regional Administrator may 
reject an application to transfer IFQ for the following reasons: The 
application is incomplete; the transferor or transferee does not 
possess a valid limited access general category permit; the 
transferor's vessel has fished under its IFQ prior to the completion of 
the transfer request; the transferor's or transferee's vessel or IFQ 
scallop permit has been sanctioned, pursuant to a final administrative 
decision or settlement of an enforcement proceeding; the transfer will 
result in the transferee's vessel having an allocation that exceeds 2.5 
percent of the ACL allocated to IFQ scallop vessels; the transfer will 
result in the transferee having a total ownership of or interest in 
general category scallop allocation that exceeds 5 percent of the ACL 
allocated to IFQ scallop vessels; or any other failure to meet the 
requirements of the regulations in 50 CFR 648. Upon denial of an 
application to transfer IFQ, the Regional Administrator shall send a 
letter to the applicants describing the reason(s) for the rejection. 
The decision by the Regional Administrator is the final agency 
decision, and there is no opportunity to appeal the Regional 
Administrator's decision. An application that was denied can be 
resubmitted if the discrepancy(ies) that resulted in denial are 
resolved.

0
9. Section 648.55 is revised to read as follows:


Sec.  648.55  Framework adjustments to management measures.

    (a) At least biennially, the Council shall assess the status of the 
scallop resource, determine the adequacy of the management measures to 
achieve scallop resource conservation objectives, and initiate a 
framework adjustment to establish scallop fishery management measures 
for the 2-year period beginning with the scallop fishing year 
immediately following the year in which the action is initiated. The 
PDT shall prepare a Stock Assessment and Fishery Evaluation

[[Page 43767]]

(SAFE) Report that provides the information and analysis needed to 
evaluate potential management adjustments. The framework adjustment 
shall establish OFL, ABC, ACL, ACT, DAS allocations, rotational area 
management programs, percentage allocations for limited access general 
category vessels in Sea Scallop Access Areas, scallop possession 
limits, AMs, and other measures to achieve FMP objectives and limit 
fishing mortality. The Council's development of rotational area 
management adjustments shall take into account at least the following 
factors: General rotation policy; boundaries and distribution of 
rotational closures; number of closures; minimum closure size; maximum 
closure extent; enforceability of rotational closed and re-opened 
areas; monitoring through resource surveys; and re-opening criteria. 
Rotational closures should be considered where projected annual change 
in scallop biomass is greater than 30 percent. Areas should be 
considered for Sea Scallop Access Areas where the projected annual 
change in scallop biomass is less than 15 percent.
    (b) The preparation of the SAFE Report shall begin on or about June 
1 of the year preceding the fishing year in which measures will be 
adjusted.
    (c) OFL, ABC, ACL, ACT, and AMs. The Council shall specify OFL, 
ABC, ACL, ACT, and AMs, as applicable, for each year covered under the 
biennial or other framework adjustment.
    (1) OFL. OFL shall be based on an updated scallop resource and 
fishery assessment provided by either the Scallop PDT or a formal stock 
assessment. OFL shall include all sources of scallop mortality and 
shall include an upward adjustment to account for catch of scallops in 
state waters by vessels not issued Federal scallop permits. The fishing 
mortality rate (F) associated with OFL shall be the threshold F, above 
which, overfishing is occurring in the scallop fishery. The F 
associated with OFL shall be used to derive specifications for ABC, 
ACL, and ACT, as specified in paragraphs (a)(2) through (5) of this 
section.
    (2) The specification of ABC, ACL, and ACT shall be based upon the 
following overfishing definition: The F shall be set so that in access 
areas, averaged for all years combined over the period of time that the 
area is closed and open to scallop fishing as an access area, it does 
not exceed the established F threshold for the scallop fishery; in open 
areas it shall not exceed the F threshold for the scallop fishery; and 
for access and open areas combined, it is set at a level that has a 75-
percent probability of remaining below the F associated with ABC, as 
specified in paragraph (c)(2) of this section, taking into account all 
sources of fishing mortality in the limited access and LAGC fleets of 
the scallop fishery.
    (3) ABC. The Council shall specify ABC for each year covered under 
the biennial or other framework adjustment. ABC shall be the catch that 
has an associated F that has a 75-percent probability of remaining 
below the F associated with OFL. ABC shall be equal to ACL for the 
scallop fishery.
    (4) Deductions from ABC. Incidental catch, equal to the value 
established in Sec.  648.53(a)(2), shall be removed from ABC/ACL. One 
percent of ABC/ACL shall be removed from ABC/ACL for observer set-
aside. Scallop catch equal to the value specified in Sec.  648.56(d) 
shall be removed from ABC/ACL for research set-aside. These deductions 
for incidental catch, observer set-aside, and research set-aside, shall 
be made prior to establishing ACLs for the limited access and LAGC 
fleets, as specified in paragraph (c)(4) of this section.
    (5) Sub-ACLs for the limited access and LAGC fleets. The Council 
shall specify sub-ACLs for the limited access and LAGC fleets for each 
year covered under the biennial or other framework adjustment. After 
applying the deductions as specified in paragraph (a)(4) of this 
section, a sub-ACL equal to 94.5 percent of the ABC/ACL shall be 
allocated to the limited access fleet. After applying the deductions as 
specified in paragraph (a)(4) of this section, a sub-ACL of 5.5 percent 
of ABC/ACL shall be allocated to the LAGC fleet, so that 5 percent of 
ABC/ACL is allocated to the LAGC fleet of vessels that do not also have 
a limited access scallop permit, and 0.5 percent of the ABC/ACL is 
allocated to the LAGC fleet of vessels that have limited access scallop 
permits. This specification of sub-ACLs shall not account for catch 
reductions associated with the application of AMs or adjustment of the 
sub-ACL as a result of the disclaimer provision as specified in Sec.  
648.53(b)(4)(iii).
    (6) ACT for the limited access and LAGC fleets. The Council shall 
specify ACTs for the limited access and LAGC fleets for each year 
covered under the biennial or other framework adjustment. The ACT for 
the limited access fishery shall be set at a level that has an 
associated F with a 75-percent probability of remaining below the F 
associated with ABC/ACL. The LAGC ACT shall be set equal to the LAGC 
sub-ACL as specified in paragraph (a)(5) of this section.
    (7) AMs. The Council shall specify AMs for the limited access and 
LAGC fleets for each year covered under the biennial or other framework 
adjustment. For the limited access scallop fleet, AMs result in a DAS 
reduction for each limited access scallop vessel as specified in Sec.  
648.53(b)(4)(ii). For the LAGC scallop fleet, AMs result in an IFQ 
deduction for each vessel issued a LAGC scallop permit as specified in 
Sec.  648.53(h)(2)(vi).
    (d) Yellowtail flounder sub-ACL. The Council shall specify the 
yellowtail flounder sub-ACL allocated to the scallop fishery through 
the framework adjustment process specified in Sec.  648.90.
    (e) Third-year default management measures. The biennial framework 
action shall include default management measures that shall be 
effective in the third year unless replaced by the measures included in 
the next biennial framework action. If the biennial framework action is 
not published in the Federal Register with an effective date on or 
before March 1, in accordance with the Administrative Procedure Act, 
the third-year measures shall be effective beginning March 1 of each 
fishing year until the framework adjustment is implemented, or for the 
entire fishing year if the framework adjustment is completed or is not 
implemented by NMFS for the third year. The framework action shall 
specify the measures necessary to address inconsistencies between 
specifications and allocations for the period after March 1 but before 
the framework adjustment is implemented for that year. In the case of 
third-year measures of a biennial adjustment being implemented, if no 
framework adjustment has been implemented by March 1 of the following 
year, the measures from the preceding year shall continue to be in 
effect until replaced by subsequent action.
    (f) After considering the PDT's findings and recommendations, or at 
any other time, if the Council determines that adjustments to, or 
additional management measures are necessary, it shall develop and 
analyze appropriate management actions over the span of at least two 
Council meetings. To address interactions between the scallop fishery 
and sea turtles and other protected species, such adjustments may 
include proactive measures including, but not limited to, the timing of 
Sea Scallop Access Area openings, seasonal closures, gear 
modifications, increased observer coverage, and additional research. 
The Council shall provide the public with advance notice of the 
availability of

[[Page 43768]]

both the proposals and the analyses, and opportunity to comment on them 
prior to and at the second Council meeting. The Council's 
recommendation on adjustments or additions to management measures must 
include measures to prevent overfishing of the available biomass of 
scallops and ensure that OY is achieved on a continuing basis, and must 
come from one or more of the following categories:
    (1) Total allowable catch and DAS changes;
    (2) Shell height;
    (3) Offloading window reinstatement;
    (4) Effort monitoring;
    (5) Data reporting;
    (6) Trip limits;
    (7) Gear restrictions;
    (8) Permitting restrictions;
    (9) Crew limits;
    (10) Small mesh line;
    (11) Onboard observers;
    (12) Modifications to the overfishing definition;
    (13) VMS Demarcation Line for DAS monitoring;
    (14) DAS allocations by gear type;
    (15) Temporary leasing of scallop DAS requiring full public 
hearings;
    (16) Scallop size restrictions, except a minimum size or weight of 
individual scallop meats in the catch;
    (17) Aquaculture enhancement measures and closures;
    (18) Closed areas to increase the size of scallops caught;
    (19) Modifications to the opening dates of closed areas;
    (20) Size and configuration of rotational management areas;
    (21) Controlled access seasons to minimize bycatch and maximize 
yield;
    (22) Area-specific trip allocations;
    (23) TAC specifications and seasons following re-opening;
    (24) Limits on number of area closures;
    (25) Set-asides for funding research;
    (26) Priorities for scallop-related research that is funded by 
research TAC set-aside;
    (27) Finfish TACs for controlled access areas;
    (28) Finfish possession limits;
    (29) Sea sampling frequency;
    (30) Area-specific gear limits and specifications;
    (31) Modifications to provisions associated with observer set-
asides; observer coverage; observer deployment; observer service 
provider; and/or the observer certification regulations;
    (32) Specifications for IFQs for limited access general category 
vessels;
    (33) Revisions to the cost recovery program for IFQs;
    (34) Development of general category fishing industry sectors and 
fishing cooperatives;
    (35) Adjustments to the Northern Gulf of Maine scallop fishery 
measures;
    (36) VMS requirements;
    (37) Increases or decreases in the LAGC possession limit;
    (38) Adjustments to aspects of ACL management;
    (39) Adjusting EFH closed area management boundaries or other 
associated measures; and
    (40) Any other management measures currently included in the FMP.
    (g) The Council may make recommendations to the Regional 
Administrator to implement measures in accordance with the procedures 
described in this section to address gear conflict as defined under 
Sec.  600.10 of this chapter. In developing such recommendation, the 
Council shall define gear management areas, each not to exceed 2,700 
mi\2\ (6,993 km\2\), and seek industry comments by referring the matter 
to its standing industry advisory committee for gear conflict, or to 
any ad hoc industry advisory committee that may be formed. The standing 
industry advisory committee or ad hoc committee on gear conflict shall 
hold public meetings seeking comments from affected fishers and develop 
findings and recommendations on addressing the gear conflict. After 
receiving the industry advisory committee findings and recommendations, 
or at any other time, the Council shall determine whether it is 
necessary to adjust or add management measures to address gear 
conflicts and which FMPs must be modified to address such conflicts. If 
the Council determines that adjustments or additional measures are 
necessary, it shall develop and analyze appropriate management actions 
for the relevant FMPs over the span of at least two Council meetings. 
The Council shall provide the public with advance notice of the 
availability of the recommendation, the appropriate justification and 
economic and biological analyses, and opportunity to comment on them 
prior to and at the second or final Council meeting before submission 
to the Regional Administrator. The Council's recommendation on 
adjustments or additions to management measures for gear conflicts must 
come from one or more of the following categories:
    (1) Monitoring of a radio channel by fishing vessels;
    (2) Fixed-gear location reporting and plotting requirements;
    (3) Standards of operation when gear conflict occurs;
    (4) Fixed-gear marking and setting practices;
    (5) Gear restrictions for specific areas (including time and area 
closures);
    (6) VMS;
    (7) Restrictions on the maximum number of fishing vessels or amount 
of gear; and
    (8) Special permitting conditions.
    (h) The measures shall be evaluated and approved by the relevant 
committees with oversight authority for the affected FMPs. If there is 
disagreement between committees, the Council may return the proposed 
framework adjustment to the standing or ad hoc gear conflict committee 
for further review and discussion.
    (i) Unless otherwise specified, after developing a framework 
adjustment and receiving public testimony, the Council shall make a 
recommendation to the Regional Administrator. The Council's 
recommendation must include supporting rationale and, if management 
measures are recommended, an analysis of impacts and a recommendation 
to the Regional Administrator on whether to publish the framework 
adjustment as a final rule. If the Council recommends that the 
framework adjustment should be published as a final rule, the Council 
must consider at least the following factors and provide support and 
analysis for each factor considered:
    (1) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether regulations have to be in place for an 
entire harvest/fishing season;
    (2) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry, 
consistent with the Administrative Procedure Act, in the development of 
the Council's recommended management measures;
    (3) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts; and
    (4) Whether there will be a continuing evaluation of management 
measures adopted following their promulgation as a final rule.
    (j) If the Council's recommendation includes adjustments or 
additions to management measures, and if, after reviewing the Council's 
recommendation and supporting information:
    (1) The Regional Administrator approves the Council's recommended 
management measures, the Secretary may, for good cause found pursuant 
to the Administrative Procedure Act, waive the requirement for a 
proposed rule and opportunity for public comment in the Federal 
Register. The Secretary, in doing so, shall publish only the final 
rule. Submission of a recommendation by the Council for a

[[Page 43769]]

final rule does not affect the Secretary's responsibility to comply 
with the Administrative Procedure Act; or
    (2) The Regional Administrator approves the Council's 
recommendation and determines that the recommended management measures 
should be published first as a proposed rule, the action shall be 
published as a proposed rule in the Federal Register. After additional 
public comment, if the Regional Administrator concurs with the Council 
recommendation, the action shall be published as a final rule in the 
Federal Register; or
    (3) The Regional Administrator does not concur, the Council shall 
be notified, in writing, of the reasons for the non-concurrence.
    (k) Nothing in this section is meant to derogate from the authority 
of the Secretary to take emergency action under section 305(c) of the 
Magnuson-Stevens Act.

0
10. Section 648.56 is revised to read as follows:


Sec.  648.56  Scallop research.

    (a) At least biennially, in association with the biennial framework 
process, the Council and NMFS shall prepare and issue an announcement 
of Federal Funding Opportunity (FFO) that identifies research 
priorities for projects to be conducted by vessels using research set-
aside as specified in paragraph (d) of this section and Sec.  
648.60(e), provides requirements and instructions for applying for 
funding of a proposed RSA project, and specifies the date by which 
applications must be received. The FFO shall be published as soon as 
possible by NMFS and shall provide the opportunity for applicants to 
apply for projects to be awarded for 1 or 2 years by allowing 
applicants to apply for RSA funding for the first year, second year, or 
both.
    (b) Proposals submitted in response to the FFO must include the 
following information, as well as any other specific information 
required within the FFO: A project summary that includes the project 
goals and objectives, the relationship of the proposed research to 
scallop research priorities and/or management needs, project design, 
participants other than the applicant, funding needs, breakdown of 
costs, and the vessel(s) for which authorization is requested to 
conduct research activities.
    (c) NOAA shall make the final determination as to what proposals 
are approved and which vessels are authorized to take scallops in 
excess of possession limits, or take additional trips into Open or 
Access Areas. NMFS shall provide authorization of such activities to 
specific vessels by letter of acknowledgement, letter of authorization, 
or Exempted Fishing Permit issued by the Regional Administrator, which 
must be kept on board the vessel.
    (d) Available RSA allocation shall be 1.25 million lb (567 mt) 
annually, which shall be deducted from the ABC/ACL specified in Sec.  
648.53(a) prior to setting ACLs for the limited access and LAGC fleets, 
as specified in Sec.  648.53(a)(3)(i) and (a)(4)(i), respectively. 
Approved RSA projects shall be allocated an amount of scallop pounds 
that can be harvested in open areas and available access areas. The 
specific access areas that are open to RSA harvest shall be specified 
through the framework process and identified in Sec.  648.60(e)(1). In 
a year in which a framework adjustment is under review by the Council 
and/or NMFS, NMFS shall make RSA awards prior to approval of the 
framework, if practicable, based on total scallop pounds needed to fund 
each research project. Recipients may begin compensation fishing in 
open areas prior to approval of the framework, or wait until NMFS 
approval of the framework to begin compensation fishing within approved 
access areas.
    (e) If all RSA TAC is not allocated in a fishing year, and proceeds 
from compensation fishing for approved projects fall short of funds 
needed to cover a project's budget due to a lower-than-expected scallop 
price, unused RSA allocation can be provided to that year's awarded 
projects to compensate for the funding shortfall, or to expand a 
project, rather than having that RSA go unused. NMFS shall identify the 
process for the reallocation of available RSA pounds as part of the FFO 
for the RSA program. The FFO shall specify the conditions under which a 
project that has been awarded RSA could be provided additional RSA 
pounds as supplemental compensation to account for lower-than-expected 
scallop price or for expansion of the project, timing of reallocation, 
and information submission requirements.
    (f) If all RSA pounds awarded to a project cannot be harvested 
during the applicable fishing year, RSA TAC awarded to that project may 
be harvested through May 31 of the fishing year subsequent to the 
fishing year in which the set-aside is awarded.
    (g) Vessels conducting research under an approved RSA project may 
be exempt from crew restrictions specified in Sec.  648.51, seasonal 
closures of access areas specified in Sec.  648.59, and the restriction 
on fishing in only one access area during a trip specified in Sec.  
648.60(a)(4). The RSA project proposal must list which of these 
measures for which an exemption is required. An exemption shall be 
provided by Letter of Authorization issued by the Regional 
Administrator. RSA compensation fishing trips and combined compensation 
and research trips are not eligible for these exemptions.
    (h) Upon completion of scallop research projects approved pursuant 
to this section and the applicable NOAA grants review process, 
researchers must provide the Council and NMFS with a report of research 
findings, which must include at least the following: A detailed 
description of methods of data collection and analysis; a discussion of 
results and any relevant conclusions presented in a format that is 
understandable to a non-technical audience; and a detailed final 
accounting of all funds used to conduct the sea scallop research.

0
11. In Sec.  648.59, paragraphs (b)(3) and (d)(3) are revised to read 
as follows.


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (b) * * *
    (3) The Closed Area I Access Area is defined by straight lines 
connecting the following points in the order stated (copies of a chart 
depicting this area are available from the Regional Administrator upon 
request):

------------------------------------------------------------------------
              Point                     Latitude           Longitude
------------------------------------------------------------------------
CAIA1............................  41[deg]26' N        68[deg]30' W
CAIA2............................  40[deg]58' N        68[deg]30' W
CAIA3............................  40[deg]55' N        68[deg]53' W
CAIA4............................  41[deg]04.5' N      69[deg]01' W
CAIA1............................  41[deg]26' N        68[deg]30' W
------------------------------------------------------------------------

* * * * *
    (d) * * *
    (3) The Nantucket Lightship Sea Scallop Access Area is defined by 
straight lines connecting the following points in the order stated 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request):

------------------------------------------------------------------------
               Point                    Latitude           Longitude
------------------------------------------------------------------------
NLAA1.............................  40[deg]50' N      69[deg]30' W
NLAA2.............................  40[deg]50' N      69[deg]00' W
NLAA3.............................  40[deg]20' N      69[deg]00' W
NLAA4.............................  40[deg]20' N      69[deg]30' W
NLAA1.............................  40[deg]50' N      69[deg]30' W
------------------------------------------------------------------------

* * * * *

0
12. In Sec.  648.60, paragraph (a)(5)(iii) is removed and reserved, and 
paragraphs (a)(9), (c)(3), and (e)(1) are revised to read as follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) * * *

[[Page 43770]]

    (9) Reporting. The owner or operator must submit reports through 
the VMS, as specified in Sec.  648.10(f)(4)(i).
* * * * *
    (c) * * *
    (3) The vessel owner/operator must report the termination of the 
trip prior to entering the access area if the trip is terminated while 
transiting to the area, or prior to leaving the Sea Scallop Access Area 
if the trip is terminated after entering the access area, by VMS e-mail 
messaging, with the following information: Vessel name, vessel owner, 
vessel operator, time of trip termination, reason for terminating the 
trip (for NMFS recordkeeping purposes), expected date and time of 
return to port, and amount of scallops on board in pounds;
* * * * *
    (e) * * *
    (1) Research set-aside may be harvested in an access area that is 
open in the applicable fishing year, as specified in Sec.  648.59.
* * * * *

0
13. Section 648.61 is revised to read as follows:


Sec.  648.61  EFH closed areas.

    (a) No vessel fishing for scallops, or person on a vessel fishing 
for scallops, may enter, fish in, or be in the EFH Closure Areas 
described in paragraphs (a)(1) through (6) of this section, unless 
otherwise specified. A chart depicting these areas is available from 
the Regional Administrator upon request.
    (1) Western GOM Habitat Closure Area. The restrictions specified in 
paragraph (a) of this section apply to the Western GOM Habitat Closure 
Area, which is the area bounded by straight lines connecting the 
following points in the order stated:

                    Western GOM Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
WGM4...............................  43[deg]15'         70[deg]15'
WGM1...............................  42[deg]15'         70[deg]15'
WGM5...............................  42[deg]15'         70[deg]00'
WGM6...............................  43[deg]15'         70[deg]00'
WGM4...............................  43[deg]15'         70[deg]15'
------------------------------------------------------------------------

     (2) Cashes Ledge Habitat Closure Area. The restrictions specified 
in paragraph (a) of this section apply to the Cashes Ledge Habitat 
Closure Area, which is the area bounded by straight lines connecting 
the following points in the order stated:

                    Cashes Ledge Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
CLH1...............................  43[deg]01'         69[deg]03'
CLH2...............................  43[deg]01'         68[deg]52'
CLH3...............................  42[deg]45'         68[deg]52'
CLH4...............................  42[deg]45'         69[deg]03'
CLH1...............................  43[deg]01'         69[deg]03'
------------------------------------------------------------------------

     (3) Jeffrey's Bank Habitat Closure Area. The restrictions 
specified in paragraph (a) of this section apply to the Jeffrey's Bank 
Habitat Closure Area, which is the area bounded by straight lines 
connecting the following points in the order stated:

                   Jeffrey's Bank Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
JB1................................  43[deg]40'         68[deg]50'
JB2................................  43[deg]40'         68[deg]40'
JB3................................  43[deg]20'         68[deg]40'
JB4................................  43[deg]20'         68[deg]50'
JB1................................  43[deg]40'         68[deg]50'
------------------------------------------------------------------------

     (4) Closed Area I Habitat Closure Areas. The restrictions 
specified in paragraph (a) of this section apply to the Closed Area I 
Habitat Closure Areas, Closed Area I-North and Closed Area I-South, 
which are the areas bounded by straight lines connecting the following 
points in the order stated:

                Closed Area I--North Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
CI1................................  41[deg]30'         69[deg]23'
CI4................................  41[deg]30'         68[deg]30'
CIH1...............................  41[deg]26'         68[deg]30'
CIH2...............................  41[deg]04'         69[deg]01'
CI1................................  41[deg]30'         69[deg]23'
------------------------------------------------------------------------


                Closed Area I--South Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
CIH3...............................  40[deg]55'         68[deg]53'
CIH4...............................  40[deg]58'         68[deg]30'
CI3................................  40[deg]45'         68[deg]30'
CI2................................  40[deg]45'         68[deg]45'
CIH3...............................  40[deg]55'         68[deg]53'
------------------------------------------------------------------------

    (5) Closed Area II Habitat Closure Area. The restrictions specified 
in this paragraph (a) apply to the Closed Area II Habitat Closure Area 
(also referred to as the Habitat Area of Particular Concern), which is 
the area bounded by straight lines connecting the following points in 
the order stated:

                   Closed Area II Habitat Closure Area
------------------------------------------------------------------------
               Point                      N. Lat.           W. Long.
------------------------------------------------------------------------
CIIH1..............................  42[deg]10'         67[deg]20'
CIIH2..............................  42[deg]10'         67[deg]9.3'
CIIH3..............................  42[deg]00'         67[deg]0.5'
CIIH4..............................  42[deg]00'         67[deg]10'
CIIH5..............................  41[deg]50'         67[deg]10'
CIIH6..............................  41[deg]50'         67[deg]20'
CIIH1..............................  42[deg]10'         67[deg]20'
------------------------------------------------------------------------

     (6) Nantucket Lightship Habitat Closure Area. The restrictions 
specified in paragraph (a) of this section apply to the Nantucket 
Lightship Habitat Closure Area, which is the area bounded by straight 
lines connecting the following points in the order stated:

                 Nantucket Lightship Habitat Closed Area
------------------------------------------------------------------------
               Point                      N. lat.           W. long.
------------------------------------------------------------------------
NLH1...............................  41[deg]10'         70[deg]00'
NLH2...............................  41[deg]10'         69[deg]50'
NLH3...............................  40[deg]50'         69[deg]30'
NLH4...............................  40[deg]20'         69[deg]30'
NLH5...............................  40[deg]20'         70[deg]00'
NLH1...............................  41[deg]10'         70[deg]00'
------------------------------------------------------------------------

     (b) Transiting. A vessel may transit the EFH Closure Areas as 
defined in paragraphs (a)(1) through (6) of this section, unless 
otherwise restricted, provided that its gear is stowed in accordance 
with the provisions of Sec.  648.23(b). A vessel may transit the CAII 
EFH closed area, as defined in paragraph (a)(6) of this section, 
provided there is a compelling safety reason to enter the area and all 
gear is stowed in accordance with the provisions of Sec.  648.23(b).

0
14. In Sec.  648.62, paragraph (b)(3) is added to read as follows:


Sec.  648.62  Northern Gulf of Maine (NGOM) scallop management area.

* * * * *
    (b) * * *
    (3) If the TAC specified in paragraph (b)(1) of this section is 
exceeded, the amount of NGOM scallop landings in excess of the TAC 
specified in paragraph (b)(1) of this section shall be deducted from 
the NGOM TAC for the subsequent fishing year, as soon as practicable, 
once scallop landings data for the NGOM fishery is available.
* * * * *

0
15. Section 648.64 is added to read as follows:


Sec.  648.64  Yellowtail flounder sub-ACLs and AMs for the scallop 
fishery.

    (a) As specified in Sec.  648.55(d), and pursuant to the biennial 
framework

[[Page 43771]]

adjustment process specified in Sec.  648.90, the scallop fishery shall 
be allocated a sub-ACL for the Georges Bank and Southern New England/
Mid-Atlantic stocks of yellowtail flounder. The sub-ACL for the 2011 
through 2013 fishing years are as follows:
    (1) 2011. 82 mt for the Southern New England/Mid-Atlantic stock of 
yellowtail flounder and 200.8 mt for the Georges Bank stock of 
yellowtail flounder.
    (2) 2012. 127 mt for the Southern New England/Mid-Atlantic stock of 
yellowtail flounder and 307.5 mt for the Georges Bank stock of 
yellowtail flounder.
    (3) 2013. To be determined.
    (b) Georges Bank accountability measure. (1) If the Georges Bank 
yellowtail flounder sub-ACL for the scallop fishery is exceeded, the 
area defined by the following coordinates shall be closed to scallop 
fishing by vessels issued a limited access scallop permit for the 
period of time specified in paragraph (b)(2) of this section:

                     Georges Bank Yellowtail Closure
------------------------------------------------------------------------
               Point                     N. lat.            W. long.
------------------------------------------------------------------------
GBYT AM 1.........................  41[deg]50'         66[deg]51.94'
GBYT AM 2.........................  40[deg]30.75'      65[deg]44.96'
GBYT AM 3.........................  40[deg]30'         66[deg]40'
GBYT AM 4.........................  40[deg]40'         66[deg]40'
GBYT AM 5.........................  40[deg]40'         66[deg]50'
GBYT AM 6.........................  40[deg]50'         66[deg]50'
GBYT AM 7.........................  40[deg]50'         67[deg]00'
GBYT AM 8.........................  41[deg]00'         67[deg]00'
GBYT AM 9.........................  41[deg]00'         67[deg]20'
GBYT AM 10........................  41[deg]10'         67[deg]20'
GBYT AM 11........................  41[deg]10'         67[deg]40'
GBYT AM 12........................  41[deg]50'         67[deg]40'
GBYT AM 1.........................  41[deg]50'         66[deg]51.94'
------------------------------------------------------------------------

     (2) Duration of closure. The Georges Bank yellowtail flounder 
accountability measure closed area shall remain closed for the period 
of time, not to exceed 1 fishing year, as specified for the 
corresponding percent overage of the Georges Bank yellowtail flounder 
sub-ACL, as follows:
    (i) For years when the Closed Area II Sea Scallop Access Area is 
open, the closure duration shall be:

------------------------------------------------------------------------
  Percent overage of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1................................  March through May.
2-24.............................  March through June.
25-38............................  March through July.
39-57............................  March through August.
58-63............................  March through September.
64-65............................  March through October.
66-68............................  March through November.
69...............................  March through December.
70 and higher....................  March through February.
------------------------------------------------------------------------

     (ii) For fishing years when the Closed Area II Sea Scallop Access 
Area is closed to scallop fishing, the closure duration shall be:

------------------------------------------------------------------------
  Percent overage of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1................................  March through May.
2................................  March through June.
3................................  March through July.
4-5..............................  March through August.
6 and higher.....................  March through February.
------------------------------------------------------------------------

     (c) Southern New England/Mid-Atlantic accountability measure. (1) 
If the Southern New England/Mid-Atlantic yellowtail flounder sub-ACL 
for the scallop fishery is exceeded, the area defined by the following 
coordinates shall be closed to scallop fishing by vessels issued a 
limited access scallop permit for the period of time specified in 
paragraph (c)(2) of this section:

                 Southern New England Yellowtail Closure
------------------------------------------------------------------------
               Point                     N. lat.            W. long.
------------------------------------------------------------------------
SNEYT AM 1........................  41[deg]28.4'       71[deg]10.25'
SNEYT AM 2........................  41[deg]28.57'      71[deg]10'
SNEYT AM 3........................  41[deg]20'         71[deg]10'
SNEYT AM 4........................  41[deg]20'         70[deg]50'
SNEYT AM 5........................  41[deg]20'         70[deg]30'
SNEYT AM 6........................  41[deg]18'         70[deg]15'
SNEYT AM 7........................  41[deg]17.69'      70[deg]12.54'
SNEYT AM 8........................  41[deg]14.73'      70[deg]00'
SNEYT AM 9........................  39[deg]50'         70[deg]00'
SNEYT AM 10.......................  39[deg]50'         71[deg]00'
SNEYT AM 11.......................  39[deg]50'         71[deg]40'
SNEYT AM 12.......................  40[deg]00'         71[deg]40'
SNEYT AM 13.......................  40[deg]00'         73[deg]00'
SNEYT AM 14.......................  40[deg]41.23'      73[deg]00'
SNEYT AM 15.......................  41[deg]00'         71[deg]55'
SNEYT AM 16.......................  41[deg]00'         71[deg]40'
SNEYT AM 17.......................  41[deg]20'         71[deg]40'
SNEYT AM 18.......................  41[deg]21.15'      71[deg]40'
------------------------------------------------------------------------

     (2) Duration of closure. The Southern New England/Mid-Atlantic 
yellowtail flounder accountability measure closed area shall remain 
closed for the period of time, not to exceed 1 fishing year, as 
specified for the corresponding percent overage of the Southern New 
England/Mid-Atlantic yellowtail flounder sub-ACL, as follows:

------------------------------------------------------------------------
  Percent overage of YTF sub-ACL             Length of closure
------------------------------------------------------------------------
1-2..............................  March.
3-5..............................  March and April.
6-8..............................  March through May.

[[Page 43772]]

 
9-12.............................  March through June.
13-14............................  March through July.
15...............................  March through August.
16...............................  March through September.
17...............................  March through October.
18...............................  March through November.
19...............................  March through January.
20 and higher....................  March through February.
------------------------------------------------------------------------

     (d) Exemption for LAGC IFQ vessels. Vessels issued an LAGC IFQ 
permit and fishing under the LAGC IFQ scallop fishery shall be exempt 
from the closure(s) specified in paragraphs (b) and (c) of this 
section. Yellowtail bycatch by such vessels shall be counted against 
the applicable yellowtail flounder sub-ACL specified in paragraph (a) 
of this section.
    (e) Process for implementing the AM. On or about January 15 of each 
year, the Regional Administrator shall determine whether a yellowtail 
flounder sub-ACL was exceeded, or is projected to be exceeded, by 
scallop vessels prior to the end of the scallop fishing year ending on 
February 28/29. The determination shall include the amount of the 
overage or projected amount of the overage, specified as a percentage 
of the overall sub-ACL for the applicable yellowtail flounder stock, in 
accordance with the values specified in paragraph (a) of this section. 
The Regional Administrator shall implement the AM in accordance with 
the APA and notify owners of limited access scallop vessels by letter 
identifying the length of the closure and a summary of the yellowtail 
flounder catch, overage, and projection that resulted in the closure.
    (f) AM for the 2011 fishing year. AMs shall be applied in the 2011 
fishing year for any overage of the applicable yellowtail flounder 
stock's total ACL in the 2010 fishing year in accordance with the APA. 
If a 2010 yellowtail flounder subcomponent catch allocation was 
exceeded in the 2010 fishing year, and that overage caused the total 
yellowtail flounder ACL for that stock specified in accordance with 
Sec.  648.90(a)(4) and Sec.  648.90(a)(6) to be exceeded, the Regional 
Administrator shall implement the yellowtail flounder AM closure for 
the area, as defined in paragraph (b)(1) or (c)(1) of this section as 
soon as practicable after the effective date of this regulation. The 
closure shall be effective on the date specified by the Regional 
Administrator and the area shall remained closed for a period of time 
equal to the period of time specified in paragraphs (b)(2)(i)(A), 
(b)(2)(i)(B), or (c)(2) of this section, as applicable. For example, if 
the overage is 3 to 5 percent for the Southern New England/Mid-Atlantic 
yellowtail stock, and the closure is effective beginning July 15, 2011, 
the closure shall remain in effect through September 15, 2011, a 2-
month period equivalent to the March-April, 2-month closure specified 
in paragraph (c)(2) of this section.

[FR Doc. 2011-18311 Filed 7-20-11; 8:45 am]
BILLING CODE 3510-22-P