Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19929 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions which do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule involves implementation of 

regulations within 33 CFR Part 100 

applicable to organized marine events 

on the navigable waters of the United 

States that could negatively impact the 

safety of waterway users and shore side 

activities in the event area, and is 

categorically excluded from further 

analysis under paragraph 34(g) of the 

Commandant Instruction. This category 

of water activities includes but is not 

limited to sail boat regattas, boat 

parades, power boat racing, swimming 

events, crew racing, canoe and sail 

board racing. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 100 

Marine safety, Navigation (water), 

Reporting and recordkeeping 

requirements, Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 100 as follows: 

PART 100—SAFETY OF LIFE ON 

NAVIGABLE WATERS 

1. The authority citation for part 100 

continues to read as follows: 

Authority: 33 U.S.C. 1233. 

2. Add a temporary section, § 100.35– 

T05–0182 to read as follows: 

§ 100.35–T05–0182 Special Local 

Regulations for Marine Events; Patapsco 

River, Northwest Harbor, Baltimore, MD. 

(a) Regulated area. The following 

locations are regulated areas: All waters 

of the Patapsco River, Northwest 

Harbor, within an area bounded by the 

following lines of reference: Bounded 

on the west by a line running along 

longitude 076°35′35′′ W; bounded on the 

east by a line running along longitude 

076°35′10′′ W; bounded on the north by 

a line running along latitude 39°16′40′′ 

N; and bounded on the south by the 

shoreline between the east and west 

lines of reference in Baltimore, MD. All 

coordinates reference Datum NAD 1983. 

(b) Definitions: (1) Coast Guard Patrol 

Commander means a commissioned, 

warrant, or petty officer of the U.S. 

Coast Guard who has been designated 

by the Commander, Coast Guard Sector 

Baltimore. 

(2) Official Patrol means any vessel 

assigned or approved by Commander, 

Coast Guard Sector Baltimore with a 

commissioned, warrant, or petty officer 

on board and displaying a Coast Guard 

ensign. 

(c) Special local regulations: (1) 

Except for persons or vessels authorized 

by the Coast Guard Patrol Commander, 

no person or vessel may enter or remain 

in the regulated area. 

(2) The operator of any vessel in the 

regulated area must: (i) Stop the vessel 

immediately when directed to do so by 

the Coast Guard Patrol Commander or 

any Official Patrol. 

(ii) Proceed as directed by the Coast 

Guard Patrol Commander or any Official 

Patrol. 

(d) Enforcement period: This section 

will be enforced as follows; (1) from 

6 a.m. until 6 p.m. on June 25, 2011. 

(2) In the case of inclement weather 

this marine event may be postponed and 

rescheduled for 6 a.m. to 6 p.m. on June 

26, 2011. 

(3) The Coast Guard will publish a 

notice in the Fifth Coast Guard District 

Local Notice to Mariners and issue 

marine information broadcast on VHF– 

FM marine band radio announcing 

specific event date and times. 

Dated: March 23, 2011. 

Mark P. O’Malley, 

Captain, U.S. Coast Guard, Captain of the 

Port Baltimore. 

[FR Doc. 2011–8519 Filed 4–8–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 110329229–1219–02] 

RIN 0648–BA71 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Atlantic 

Sea Scallop Fishery; Amendment 15 to 

the Atlantic Sea Scallop Fishery 

Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 15 to the 

Atlantic Sea Scallop Fishery 

Management Plan (FMP), which was 

developed by the New England Fishery 

Management Council (Council). The 

Council submitted Amendment 15, 

incorporating the Final Environmental 

Impact Statement (FEIS) and the Initial 

Regulatory Flexibility Analysis (IRFA), 

for review by the Secretary of 

Commerce. NMFS has also published a 

Notice of Availability requesting 

comments from the public on 

Amendment 15 pursuant to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA). 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) fishery; 

adjustments to the scallop research setaside (RSA) program; and additions to 

the list of measures that can be adjusted 

by framework adjustments. 

DATES:

Comments must be received by 5 

p.m., Eastern Standard Time, by May 

26, 2011. 

ADDRESSES: An 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. 

You may submit comments, identified 

by 0648–BA71, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Peter 

Christopher. 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope, ‘‘Comments on 

Scallop Amendment 15 Proposed 

Regulations.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19930 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments. 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

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 

OIRA_Submission@omb.eop.gov, 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 new 

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 overfished, the MSA requires that 

such measures be implemented by 2010. 

For fishery resources that are not 

overfished, 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 overfished. 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 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 that 

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. 

Amendment 15 would establish the 

mechanism for implementing ACLs and 

AMs, which in turn would generate 

scallop fishery specifications, including 

days-at-sea (DAS), access area trip 

allocations, and individual fishing 

quotas (IFQs). Amendment 15 does not 

include actual catch limits 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. The Council 

adopted Framework 22 and submitted it 

to NMFS for review. NMFS’ review of 

Framework 22 is on the same timeline 

as Amendment 15. 

The Council has 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. 

Recommended Management Measures 

1. ACL Flow Chart 

Amendment 15 would establish how 

the Scallop FMP would account for all 

catch in the scallop fishery and would 

include designations of Overfishing 

Limit (OFL), Acceptable Biological 

Catch (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 would 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 would be specified as 

the level of landings, and associated 

fishing mortality rate (F) that, above 

which, overfishing is occurring. OFL 

would 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. ABC 

would be equal to overall ACL, but to 

account for scientific uncertainty, ABC 

would 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 would be 

established at the ABC/ACL level, but 

would not be subtracted from ABC/ACL. 

Since this portion of the scallop fishery 

is not part of the scallop assessment, the 

catch would be added and specified as 

a separate Total Allowable Catch (TAC) 

in addition to ABC/ACL. After removing 

observer set-aside and RSA (1 percent of 

the ABC/ACL and 1.25 M lb (567 mt) 

(proposed in Amendment 15), 

respectively), Amendment 15 would 

establish separate sub-ACLs for the 

limited access (LA) and LAGC fisheries. 

To account for management uncertainty, 

Amendment 15 proposes ACTs for each 

fleet. For the LA fleet, the ACT would 

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 would be set equal to the LAGC 

fleet’s sub-ACL. 

2. Modification of the OFD 

Amendment 15 proposes to modify 

the current OFD to provide for better 

management of the scallop fishery 

under area rotation. The proposed 

Hybrid OFD combines the overfishing 

threshold from the status quo 

overfishing definition for open areas 

with a time-averaged fishing mortality F 

approach for access areas. The F target 

in the open areas would be set at a level 

that is no higher than the overfishing 

threshold (currently F = 0.38). In access 

areas, it would 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 could 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 current OFD and overfishing 

reference points are based on the 

assumption that F is spatially uniform. 

In the scallop fishery this assumption is 

inaccurate, because of unfished biomass 

in closed areas, variable Fs in access 

areas, and spatially variable fishing 

mortality in open areas. Under the 

current OFD, closed and access areas 

protect the scallop stock from 


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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19931 

recruitment overfishing, but growth 

overfishing may occur in the open areas 

because the current OFD averages 

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 current OFD becomes. 

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 

scallop fishery’s current OFD is 

consistent with MSA requirements, and 

has been effective at keeping the scallop 

fishery above the overfished level and 

preventing overfishing overall, certain 

resource and fishery conditions as 

described above may reduce the 

effectiveness of the FMP. 

3. OFD Reference Points 

The current OFD states that FMAX will 

be used as a proxy for FMSY. However, 

SAW 50 approved a direct estimate of 

FMSY. Therefore, Amendment 15 would 

replace the current BMAX and FMAX with 

BMSY and FMSY. Final results from SAW 

50 were available in August 2010, and 

both the Scallop Committee and the 

Council’s Scientific and Statistical 

Committee (SSC) reviewed the results 

and agreed that the existing OFD should 

be updated to reflect new biological 

reference points based on BMSY and 

FMSY. Under Amendment 15, the new 

overfishing definition would 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 

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 proposed changes to the OFD 

would also require revisions of the 

current framework provisions in the 

scallop fishery regulations at 50 CFR 

648.55. Under the current 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 spatiallyaverage OFD, whereby open area fishing 

mortality may be elevated relative to the 

condition of the resource in open areas, 

thus preventing OY from being 

achieved. Because the proposed 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 would provide 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 consideration 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 

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 would 

set 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 could 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 Council’s Scallop Plan 

Development Team (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 would then be specified as a 

separate level of landings that would 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 would be 

specified similar to State waters scallop 

catch, except that the NGOM landings 

level would be based on historical 

landings or available resource surveys 

in the NGOM, and would 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 is accounted for in the 

subsequent year through a reduction of 

the landings limit that is equal to the 

overage from the prior year. 

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 would be removed from 

ABC prior to establishing the research 

and observer set-asides and ACLs for the 

limited access 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 would be 

adjusted in the subsequent year(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 would 

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 would be allocated 

94.5 percent of the ABC/ACL landings; 

and LAGC IFQ vessels would be 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19932 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

allocated 5.5 percent of the ABC/ACL 

landings. Both allocations would 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 would 

have carryover provisions (existing for 

the LA and proposed under Amendment 

15 for the LAGC fleet) and RSA catch 

could be carried over into the 

subsequent year. For the purpose of 

accounting relative to ABC and ACL, 

landings from carryover DAS, IFQ, or 

TAC would 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 proposes 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 

landings per unit effort (LPUE), and 

realized efficiency and LPUE during the 

course of the fishing year. Management 

uncertainty for the LAGC IFQ fleet is 

considered very low because it would 

result from landings in excess of a 

vessel’s IFQ, which can be audited and 

accounted for through data reviews each 

year. Although ACT could be specified 

for the LAGC fishery, it would be equal 

to the fleet’s ACL initially, unless 

revised by the Council. An ACT for the 

LA fleet to account for management 

uncertainty would 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 would 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 would be distributed 

evenly to limited access vessels. For 

example, an overage of 1,500,000 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 fulltime 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 

would take effect in the fishing year 

following the fishing year in which the 

ACL was exceeded. Since the AM 

would apply mid-year, vessels may have 

already used more DAS in that fishing 

year 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 would 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 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. 

9. LA Fleet AM Exception 

Even if the ACL is exceeded, 

triggering the AM for the LA fleet, 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 would 

not be necessary if the F limits are not 

exceeded. To address this, Amendment 

15 includes an exception provision 

(called a ‘‘disclaimer’’ in the 

amendment) that would stop the AM 

from taking effect if, in an analysis of 

the preceding fishing year before the 

AM goes into effect, the actual F 

resulting from the fishery in the prior 

year was one standard deviation below 

the overall F for the fleet’s ACL. With 

an F = 0.28 for the ACL, one standard 

deviation below would be F = 0.24. If 

the fishery’s F is below 0.24, the AM 

would not be implemented. However, if 

the fishery’s F is 0.24 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 the fishery, determine the 

F and would recommend through the 

Council whether or not the AM should 

be implemented. To ensure compliance 

with applicable laws, the Regional 

Administrator would have discretion to 

implement the exception or implement 

the AM in accordance with the 

Administrative Procedure Act (APA), 

5 U.S.C. 553 et seq., 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, would be 

considered at the same time to ensure 

that multiple adjustments of DAS do not 

occur in one fishing year, if possible. 

The decision to implement the AM or 

the AM exception would be made by the 

Regional Administrator on or about 

September 30 of each year. 

10. Increase of LAGC IFQ ACL if LA AM 

Exception Is Enacted 

If the LA fleet’s AM exception is 

enacted, a portion of landings would be 

re-distributed to the LAGC fleet for 

equity purposes. Under the exception, 

the LA fleet would have exceeded its 

ACL, but no AM would be put in place, 

as described in item 9 above. Because 

the LA fleet still would have harvested 

more scallops than allocated, without 

being held accountable, an inequity 

would be created. Had the ACL been 

higher, commensurate with the analysis 

of the prior fishing year, those ‘‘extra’’ 

scallops could have been distributed to 

the LAGC IFQ fleets as well. To account 

for the inequity, the LAGC IFQ fleet 

would be allocated 5.5 percent of the LA 

fleet’s overage of its ACL. The 

additional allocation to the LAGC IFQ 

fleet would be distributed through 

adjustment of IFQs, upon 

implementation of the exception on or 

about September 30 of each year. An 

amount equivalent to the amount 

allocated to the LAGC IFQ fleet would 

be deducted from the LA ACL. The 

deduction would not affect the LA 

fleet’s ACT or DAS allocations, but 

would establish a lower threshold for 

the LA fishery for triggering AMs. 

11. AM for the LAGC IFQ Fleet 

Amendment 15 proposes that, if an 

LAGC vessel exceeds its IFQ, its IFQ 

would be reduced by the amount equal 

to the overage as soon as possible in the 

fishing year immediately following the 

fishing year in which the IFQ overage 

occurred. Since the AM would apply 

mid-year, vessels may have already used 

more IFQ in that fishing year 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 would 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 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 


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Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19933 

(90.7 kg) deduction as the AM, 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. 

Applying the AM to an individual 

vessel’s IFQ was considered appropriate 

because the Council determined that 

individual vessel overages of IFQ would 

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 would 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 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 

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 individualvessel AM would be more equitable 

than penalizing others in the fleet for 

single-vessel overages. The Council 

incorporated ACT into the LAGC IFQ 

fleet allocation, but chose not to apply 

any management uncertainty buffer for 

the fleet at this time. This could be 

adjusted through the framework process 

if an ACT is needed to address 

management uncertainty. 

12. Yellowtail Flounder (YTF) Sub-ACL 

To account for YTF catch in the 

scallop fishery, Amendment 15 would 

establish 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) 

and Georges Bank (GB) YTF sub-ACLs 

for the scallop fishery. The amount of 

YTF estimated to be harvested annually 

would depend on the scallop DAS and 

access area allocations, and could be 

adjusted through the NE Multispecies 

FMP framework adjustment process. 

13. YTF Sub-ACL AM 

Areas within the GB and SNE/MA 

YTF stock areas that have been preidentified would 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 

during the final development of 

Amendment 15 as the statistical areas 

that have high bycatch of YTF in the 

scallop fishery. For the GB YTF stock, 

the closure would 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 would also be closed. For 

the SNE/MA YTF stock, statistical areas 

537, 539, and 613 would 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 would close to LA vessels 

only; LAGC vessels would be 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 is 

extremely low. However, any YTF catch 

by LAGC vessels as they continue to fish 

would count toward that stock area’s 

sub-ACL for the scallop fishery (and 

would contribute to an overage of the 

sub-ACL for the scallop fishery). The 

YTF closure AM would 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 would determine whether the 

YTF sub-ACL is expected to (or has 

been) exceeded that year. NMFS would 

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 2010 

(specified under the NE Multispecies 

FMP), and that causes the entire 

applicable YT ACL to be exceeded for 

the 2010 fishing year, the scallop fishery 

will be subject to the applicable YTF 

AM. To implement the YTF AM for the 

2011 fishing year, NMFS would 

determine the length of the closure as 

specified below, beginning when 

Amendment 15 is effective, if approved. 

For the 2012 fishing year and beyond, 

the YTF closure AM areas would remain 

closed for the length of time specified in 

the following tables, and would be in 

place for one fishing year 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. 

14. 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 would be required for 

all scallop trips in all areas. Vessel 

operators would be required to report 

the following information: Fishing 


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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 

would be required to submit VMS catch 

reports for every day fished by 9 a.m. of 

the day following the day on which 

fishing occurred, consistent with access 

area catch reporting. 

15. LAGC IFQ Vessel Possession Limit 

Increase 

IFQ scallop vessels would be 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 current 400-lb (181.4-kg) or 50-bu 

(17.6-hL) possession/trip limit. This 

alternative would address concerns that 

the current possession limit is not 

economically feasible due to increased 

costs. The 600-lb (272.2-kg) possession 

limit is not expected to change the 

‘‘small boat’’ nature of the LAGC fishery, 

and would remain 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 landings are constrained by the 

IFQ allocations. 

16. IFQ Carryover 

Amendment 15 proposes to allow IFQ 

vessels that have unused IFQ at the end 

of the FY to carry over up to 15 percent 

of their unused IFQ to the subsequent 

FY. Any IFQ that was leased by but not 

used by a vessel could 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 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 paragraph (h)(2)(v)(B). 

17. Increase the IFQ Vessel Cap to 2.5 

Percent 

This proposed measure would 

increase the 2-percent IFQ cap per 

vessel to 2.5 percent of the total IFQ 

allocation to allow more flexibility and 

promote efficiency for vessels in fishing 

IFQs available to them. IFQ that is 

carried over would not contribute to the 

vessel’s 2.5-percent IFQ cap because the 

carryover is a temporary increase of the 

vessel’s IFQ based on underharvest the 

prior year. Because there is also a 5- 

percent overall cap on how much IFQ 

on entity may own, a vessel owner 

would now be permitted to own only 

two vessels to meet the 5-percent 

ownership cap, rather than having to 

own more than two vessels. This 

alternative would provide increased 

flexibility to vessel owners to more 

effectively and efficiently fish their 

IFQs. 

18. Permanent IFQ Transfers Separate 

From LAGC IFQ Permit 

This alternative would allow LAGC 

IFQ permit owners to permanently 

transfer some or all of their quota 

allocation, independent of their IFQ 

permit, to another LAGC IFQ permit 

holder while retaining the permit itself. 

This measure would enable vessel 

owners additional flexibility to buy or 

sell IFQ without impacting other 

permits on their vessel. This allowance 

would only apply 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. 

19. Revision of the EFH Closed Areas 

To establish compatibility with the 

NE Multispecies FMP, Amendment 15 

would modify 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 it would replacing 

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), Closed Area II (CAII), Nantucket 

Lightship, Western Gulf of Maine, 

Jeffrey’s Bank, and Cashes Ledge Habitat 

Closed Areas. Coordinates for the area 

are provided in the proposed 

regulations in this proposed rule. A 

chart depicting the areas is in the FEIS 

for Amendment 15 (see ADDRESSES). 

These areas would be closed to scallop 

fishing (and closed to all mobile bottomtending 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 would make 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 

are inconsistent with the area rotation 

program established under the Scallop 

FMP because they are restricted to areas 

smaller than designed. These areas were 

originally implemented under that 

action, but were vacated by a Federal 

Court order resulting from a lawsuit on 

Joint Framework 16/39. That order 

specified that the EFH closed areas 

could only be changed through an FMP 

amendment. This proposed action 

would address the inconsistency while 

the Council continues to develop EFH 

measures under Phase 2 of its Omnibus 

EFH Amendment. 

20. Establish Third-Year Default 

Measures Through the Biennial 

Framework Process 

Fishery specifications in the scallop 

fishery are generally set every 2 years, 

through the biennial framework 

adjustment process. This alternative 

would extend 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 year roll over to the next 

FY while the implementation of the new 

set of management measures is pending. 

However, the measures that roll over are 

often not appropriate for the status of 

the resource. 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 would need to be set with 

sufficient precaution to take into 

account the uncertainty associated with 

projections for the third year. The thirdyear measures would be superseded by 

the measures developed in the biennial 

framework adjustment for that year as 

soon as it is implemented. 

21. New Frameworkable Measures 

The following measures would be 

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 

could be modified upward or downward 

by framework action. The intent 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: This action proposes a 


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new management strategy under ACL 

management that will use many new 

measures. All of the measures specified 

in this action would be able to be 

modified through framework actions. 

The specific ACL-related measures that 

could be modified by framework 

include: Modifying associated 

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 would include an 

analysis of the impacts of the specific 

boundaries considered. This additional 

framework authority would not allow 

adoption of new EFH closed areas. 

Adjusting RSA Allocation 

Amendment 15 proposes to allocate 

1.25 million lb (567 mt) of scallops for 

RSA, regardless of the total projected 

catch for the fishery. In the future, the 

value could be increased or decreased 

by framework action. 

22. Changes to the Scallop RSA Program 

Amendment 15 includes 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. The following improvements 

are proposed: 

Announce (Publish) Federal Funding 

Opportunity (FFO) as Early as Possible 

Amendment 15 proposes that the 

announcement of the funding 

opportunity should 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 would maximize time for research 

and compensation trips before the end 

of the FY. This would 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 

Currently, research priorities, TACs 

for RSAs, and approved research 

projects are limited to 1 year. 

Amendment 15 would allow RSA 

proposals and compensation to span up 

to 2 years, corresponding with the 

biennial framework process. Projects 

could be awarded for 1 or 2 years. 

Under this alternative, applicants could 

apply for RSA for the first year, second 

year, or both. This alternative would 

increase flexibility for the applicant, 

provide funding for some longer term 

projects, and potentially reduce 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 

Currently 2 percent of access area 

TACs and open area DAS are set aside 

for the RSA program. That amount of 

TAC and DAS varies depending on the 

total TAC and DAS for the fishery. 

Amendment 15 would modify the 

scallop RSA program so that 1.25 M lb 

(567 mt) would be set aside for the RSA 

program. In addition, open area RSA 

would 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 would 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 would not 

create a separate pool of RSA for scallop 

resource surveys. 

Allocating this fixed amount could 

enable the grant awards to be issued 

earlier, because the amount of TAC 

available for research would be known 

in advance and would not change from 

year to year. The specific areas that 

would have available RSA would be 

identified in the framework, but RSA 

awards could still be made before 

approval of the framework, based on 

total scallop pounds needed to fund the 

research. Recipients could either choose 

to wait for 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 of this alternative 

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 

Amendment 15 includes a provision 

that specifies that if updated analyses 

suggest that the price per pound 

estimates used in the FFO were low, 

and if all RSA TAC is not allocated, 

NMFS could allocate unused TAC to 

compensate awarded projects or to 

expand a project rather than having that 

RSA go unused. Amendment 15 

proposes that 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 proposal were not specified in 

Amendment 15. Therefore, under the 

authority of section 305(d) of the MSA, 

NMFS proposes that this provision 

would enable NMFS to provide the 

opportunity for reallocation of available 

RSA pounds as part of the original FFO 

for the project. The FFO would 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 

Currently all RSA TAC has to be 

harvested by the end of the FY for 

which it is awarded. This measure 

would allow 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 would provide 

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 

Amendment 15 proposes a list of the 

scallop management measures from 

which RSA funded projects may be 

exempt. The researcher would need to 

list the measures the project is proposed 

to be exempt from in the RSA proposal. 

The researcher would 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 would be issued by the 


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19936 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

Regional Administrator through a letter 

of authorization. The exemptions would 

be issued for research trips under the 

applicable RSA project. RSA 

compensation fishing trips would not be 

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 proposed 

regulations are necessary to effectuate 

that recommendation. NMFS would 

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 who do not have any 

relationship or vested interest in 

proposed research. 

Public comments are being solicited 

on Amendment 15 and its incorporated 

documents through the end of the 

comment period stated in this proposed 

rule (see DATES). NMFS has also 

published a Notice of Availability, with 

a comment period ending May 23, 2011, 

(76 FR 16595, March 24, 2011). All 

comments received by May 23, 2011, 

whether specifically directed to 

Amendment 15 or the proposed rule for 

Amendment 15, will be considered in 

the approval/disapproval decision on 

Amendment 15. Comments received 

after that date will not be considered in 

the decision to approve or disapprove 

Amendment 15. To be considered, 

comments must be received by close of 

business on the last day of the comment 

period; that does not mean postmarked 

or otherwise transmitted by that date. 

Classification 

Pursuant to section 304(b)(1)(A) of the 

Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

that this proposed rule is consistent 

with the Scallop FMP, other provisions 

of the Magnuson-Stevens Act, and other 

applicable law, subject to further 

consideration after public comment. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

This proposed 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. 

Public comment is sought regarding: 

Whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to OMB by email at OIRA_Submission@omb.eop.gov, 

or fax to (202) 395–7285 and to the 

Regional Administrator at the address 

provided in the ADDRESSES section of 

this proposed 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. 

An IRFA has been prepared, as 

required by section 603 of the 

Regulatory Flexibility Act (RFA). The 

IRFA consists of the relevant analyses, 

including the draft IRFA, included in 

Amendment 15, and the preamble to 

this proposed rule. A summary of the 

analysis follows. 

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 proposed rule and are not repeated 

here. 

Description and Estimate of Number of 

Small Entities to Which the Rule Would 

Apply 

The proposed regulations would 

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. Since all scallop 

permits are limited access, vessel 

owners would only cancel permits if 

they decide to stop fishing for scallops 

on the permitted vessel permanently or 

if they transfer IFQ to another IFQ 

vessel and permanently relinquish the 

vessel’s scallop permit. This is likely to 

be infrequent due to the value of 

retaining the permit. As such, the 

number of scallop permits could decline 

over time, but would likely be less than 

10 permits per year. 

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 the dealer’s 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 for this and prior Scallop 

FMP actions has not considered 

individual entity ownership of multiple 

vessels. More information about 

common ownership is being gathered, 

but the effects of common ownership 

relative to small v large entities under 

the RFA is still unclear and will be 

addressed in future analyses. 

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 proposed action would 

not place a substantial number of small 

entities at a significant competitive 

disadvantage relative to large entities. A 

summary of the economic impacts 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19937 

relative to the profitability criterion is 

provided below under ‘‘Economic 

Impacts of Proposed Measures and 

Alternatives.’’ 

Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

This action would implement an 

expansion of current VMS catch 

reporting that would require all LA, 

LAGC IFQ, and LAGC NGOM scallop 

vessels to report YTF catch (kept and 

discards) and all other species kept 

(including scallops) on all scallop trips. 

Such reports would have to be 

submitted for each day fished by 9 a.m. 

of the day following the day on which 

the fishing activity occurred. Currently 

this requirement applies only to access 

area scallop trips. The expansion of the 

requirement to all areas would increase 

the current burden cost of 333 hours at 

a total cost of $4,995 to 1,000 hours 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 proposed under 

Amendment 15. Amendment 15 does 

not duplicate, overlap, or conflict with 

any other Federal law. 

Economic Impacts of Proposed 

Measures and Alternatives 

A summary of the economic impacts 

of proposed 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 projected catch 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 proposed 

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 

proposed in Amendment 15, such as the 

hybrid OFD, catch limits, and AMs 

could have some negative impacts on 

the revenues and profits from the 

scallop fishery in the short-term, the 

benefits from the other proposed 

alternatives, including the measures that 

would 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 

impacts to small positive impacts. The 

proposed 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 shortterm 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. 

Economic Impacts of the Individual 

Measures 

Amendment 15 includes ACLs and 

AMs to bring the Scallop FMP into 

compliance with requirements of the 

MSA as reauthorized in 2007. Although 

the Council discussed various ways of 

establishing ACLs throughout the 

development of Amendment 15, the 

only alternative was to take no action. 

Alternatives to proposed AMs would 

have implemented AMs a full year after 

the end of the fishing year in which the 

overage occurred. The Council 

considered two alternatives to the 

proposed revision of the OFD. One 

alternative maintained the current OFD 

and another based the OFD on a 

resource-wide and time-averaged 

approach. The Council’s decision to 

modify the essential fish habitat (EFH) 

closed areas under the Scallop FMP had 

only the alternative to take no action. 

The Council considered several 

alternatives to the various adjustments 

to measures for the LAGC fishery and 

determined that additional alternatives 

were not necessary. Specifically, the 

Council considered various increases to 

the LAGC IFQ fishery possession limit, 

no increase to the maximum IFQ a 

vessel can be allocated, no allowance to 

carry over IFQ from one fishing year to 

the next, no allowance to transfer IFQ 

separately from the IFQ permit, and a 

suite of measures to regulate the 

formation of community fishing 

associations. The Council also 

considered several alternatives to the 

proposed adjustments to the scallop 

RSA program, including separating setaside TAC for scallop resource surveys, 

and various ways of allocating RSA TAC 

that remains available after all approved 

projects are awarded in a particular 

year. Since the Council can only 

establish framework measures for those 

measures that are included in the FMP 

already, the only alternative to the 

proposed additions to the list of 

measures that can be adjusted by 

framework adjustments is to not add 

measures or add only a subset of the 

measures. Under the MSA, NMFS can 

only approve or disapprove 

management measures recommended by 

the Council. Therefore, NMFS cannot 

replace proposed alternatives with other 

measures considered by not adopted by 

the Council. 

1. Compliance With MSA 

ACL Structure and Subcomponents 

This new requirement is expected to 

have long-term economic benefits on the 

fishery by helping to ensure that catch 

limits (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 would 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 would be 

minimized under the proposed 

measures, because these 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 would prevent negative economic 

impacts from spreading from one fleet to 

the other. There are no alternatives that 

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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19938 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

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 would consist of the use of 

an ACT, and an overall DAS reduction 

to account for any overages. The 

deduction would be applied in the 

second 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 the 

ACL in one year will have positive 

economic impacts on the participants of 

the scallop fishery in that year, but it 

would be followed by negative impacts 

in the year 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 

years would be neutral or small. The 

proposed action also includes a 

disclaimer for when the LA AM would 

not be triggered, 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 would 

minimize or even eliminate 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 would be deducted from the 

vessel’s IFQ in the FY following the FY 

in which the overage occurred. 

Similarly, this action proposes that if 

the NGOM component of the fishery 

exceeds the overall hard-TAC (equal to 

the NGOM ACL) after all data is 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 year will have positive 

economic impacts in that year, followed 

by negative impacts in the year in which 

the deduction is applied, so the shortterm impacts averaged over these 2 

years would be neutral or small. The 

measures would help reduce the risks of 

exceeding ACLs and would 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 year 

following 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 year. 

3. Trigger of LA AM Disclaimer and 

Allocations to the LAGC 

If the LA AM disclaimer is triggered, 

5.5 percent of the difference between 

the exceeded LA sub-ACL and the 

actual LA landings will be allocated to 

the LAGC fleet the following FY. This 

measure would have positive economic 

impacts on the LAGC vessels and 

prevent the LA fishery from receiving a 

higher share of the total catch than 

allocated to them by Amendment 15 

provisions. The no action alternative 

would generate negative economic 

impacts compared to the proposed 

action, because it would not provide the 

LAGC fleet with similar additional 

catch. 

4. ACLs and AMs for YTF 

The proposed AM for the YTF subACL, 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 would be closed in the subsequent 

FY for a specified period of time to only 

LA scallop vessels (LAGC vessels would 

be 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 year, rather 

than in-season, would prevent derby 

style fishing and minimize the negative 

impacts on prices and revenues 

associated with it. Exempting LAGC 

trips from this AM would prevent 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 

options that would close only specific 

portions of areas with high YTF 

bycatch. Higher negative impacts result 

from a very large portion of the scallop 

fishery being closed compared to 

discrete areas under the proposed 

alternative. Economic benefits from 

minimizing YTF bycatch in the year 

following an overage under the stock 

wide area closure alternatives would 

accrue over the long term if YTF stocks 

improve and the likelihood of scallop 

fishery closures is reduced. However, 

the proposed measure provides nearly 

the same bycatch reduction for YTF 

because the areas are where the highest 

YTF bycatch occurs in the scallop 

fishery. The immediate economic 

benefits of the proposed measure 

therefore outweighs the long term 

potential benefits associated with the 

stock wide closure. The alternatives that 

would institute either a fleet maximum 

DAS or an individual maximum number 

of DAS that can 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. 

5. 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 years of 

implementation, average scallop 

revenue per vessel net of trips costs are 

expected to decline by about 5.8 

percent. This alternative 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 

would reduce adverse effects on 

bycatch, seabed habitats, and EFH, with 

indirect positive impacts on the scallop 

fishery. For example, a reduction in 

bycatch would prevent triggering YTF 

AM measures, and the negative impacts 

on scallop landings and revenues 

associated with such a measure. This 

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 

overfishing definition. 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 proposed measure. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19939 

6. IFQ Carryover 

The proposed carryover provision 

would allow 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 would provide 

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 

would give opportunity to vessels to 

land their unused quote in the next year 

with positive economic impacts for 

vessels, the LAGC fishery, and overall 

scallop revenue and profits. 

The no action alternative would have 

smaller economic benefits compared to 

the proposed option 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 proposed 

option. However, transferring a larger 

portion or the entire amount of the 

unused quota 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 

quota allocations and economic benefits 

in future years. 

7. Modification of the LAGC IFQ Vessel 

Possession Limit 

An increase in the general category 

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 would 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 proposed option 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 would 

produce higher benefits than the 

proposed option by maximizing trip 

revenue compared to fishing costs. 

However, this alternative could change 

the nature of the LAGC 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 fleet. 

It may result in consolidation that 

would eliminate operations with 

smaller IFQs or that have less total share 

of the IFQ fishery. This alternative was 

not selected because the Council 

continues to support the LAGC fishery 

as a small vessel fishery, consistent with 

its goals and vision for the fishery as 

developed under Amendment 11 to the 

FMP. 

8. Increase in the Maximum IFQ per 

Vessel 

The proposed action to change the 

2-percent maximum quota per vessel to 

2.5 percent would provide 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 would eliminate ownership 

costs associated with multiple vessels. 

The proposed increase to a 2.5-percent 

cap would, therefore, have 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. 

9. Allowing LAGC Quota To Be Split 

From IFQ Permits 

The proposed measure to allow the 

IFQ to be split from the IFQ permit 

would improve flexibility and facilitate 

movement of quota between fishermen. 

It would also increase the likelihood 

that all IFQ will be harvested, thereby 

reducing management uncertainty. It 

would allow 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. The 

proposed 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 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 

vessels that want to permanently 

transfer quota have to purchase LAGC 

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 proposed action. 

10. Measures to Address EFH Closed 

Areas 

The proposed option would modify 

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 

estimated 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 would also reduce the 

fishing costs. Therefore, the proposed 

measure is 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. 

11. Measures to Improve RSA Program 

These alternatives 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 projects can occur with 

fewer obstacles, better and more timely 

research will result in indirect benefits 

to 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 proposed measures are 

based on policy decisions that reflect 

the most efficient and effective way of 

implementing the RSA Program. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19940 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

12. Third-Year Default Measures in the 

Framework Adjustment Process and 

Addition to the List of Frameworkable 

Items in the FMP 

The proposed action includes adding 

a third year of specifications to the 

framework process in order to prevent 

outdated measures from getting 

implemented due to the delay in the 

implementation of the 2-year framework 

actions. It would serve as a ‘‘safety 

mechanism’’ to prevent against ‘‘No 

Action’’ rollovers during 

implementation delays. These ‘‘No 

Action’’ 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 thirdyear specifications would alleviate some 

of the implementation issues caused by 

the time lag between the FY and the 

time when the survey data becomes 

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 adjustable 

framework items would allow 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. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Recordkeeping and 

reporting requirements. 

Dated: April 4, 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 proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.4, paragraphs (a)(2)(i) 

introductory text, and (a)(2)(ii)(A) are 

revised to read as follows: 

§ 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°20′ N. Lat., or 75 bu (26.4 

hL) of in-shell scallops per trip North of 

42°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. 

* * * * * 

3. In § 648.10, paragraphs (e)(5)(i), 

(e)(5)(ii), (f)(4)(i), and (h)(8) are revised 

to read as follows: 

§ 648.10 VMS and DAS requirements for 

vessel owners/operators. 

* * * * * 

(e) * * * 

(5) * * * 

(i) A vessel subject to the VMS 

requirements of § 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 § 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, LAGC IFQ, or LAGC NGOM 

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 § 648.60(a)(9), 

and trips accompanied by a NMFSapproved 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; 

(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 

§§ 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 possesses or lands monkfish above 

the incidental catch trip limits specified 

in § 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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19941 

crab above the incidental catch trip 

limits specified in § 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. 

* * * * * 

4. In § 648.11, paragraphs (g)(1) and 

(g)(2)(ii) are revised to read as follows: 

§ 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 § 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 § 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. 

* * * * * 

5. In § 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: 

§ 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 § 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°20′ N. Lat. and shoreward 

of the VMS Demarcation Line, or 75 bu 

(26.4 hL) of in-shell scallops per trip 

North of 42°20′ 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 

§ 648.64 during the period specified in 

the notice announcing the closure and 

based on the closure table specified in 

§ 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, 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 § 648.11 while participating 

in the Area Access Program specified in 

§ 648.60 and an increase in the 

possession limit is authorized by the 

Regional Administrator and not 

exceeded by the vessel, as specified in 

§§ 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 TAC as specified 

in § 648.53(a)(5). 

* * * * * 

(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 TAC. 

* * * * * 

6. In § 648.51, paragraphs (d)(1) and 

(e) introductory text are revised to read 

as follows: 

§ 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 § 648.53: 

* * * * * 

7. In § 648.52, paragraph (a) is revised 

to read as follows: 

§ 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 

§ 648.10(b), or on a properly declared 


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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 

§ 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. 

* * * * * 

8. In § 648.53, 

a. The section heading and paragraphs 

(a), (b) introductory text, (b)(1), (b)(4), 

(c), (d), (g), (h)(2)(iii), (h)(3)(i)(A), 

(h)(3)(i)(B), (h)(3)(i)(C), (h)(4) 

introductory text, (h)(5)(ii), (h)(5)(iii), 

and (h)(5)(iv) are revised, 

b. Paragraphs (h)(2)(v), and (h)(2)(vi) 

are added; and 

c. 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: 

§ 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 § 648.55 and is 

equal to the overall scallop fishery ACL. 

The ABC/ACL shall be divided as subACLs 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 § 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 § 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 subACLs 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 setaside, 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 

§ 648.59 shall be specified through the 

framework adjustment process, as 

specified in § 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 

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 § 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 

(i) [Reserved] 

(ii) Accountability measures (AM). 

Unless the limited access AM exception 

is implemented 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 


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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 parttime 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— 

(A) If it is determined by NMFS in 

accordance with paragraph (b)(4)(ii) of 

this section, that the fishing mortality 

rate associated with the limited access 

fleet’s landings in a fishing year is less 

than 0.24, the AM specified in 

paragraph (b)(4)(ii) of this section shall 

not take effect. The fishing mortality 

rate of 0.24 is the fishing mortality that 

is one standard deviation below the 

fishing mortality rate for the scallop 

fishery ACL, currently estimated at 0.28. 

(B) If the limited access AM exception 

described in this paragraph (b)(4)(iii) is 

invoked, the Regional Administrator 

shall increase the sub-ACL for the LAGC 

IFQ fleet specified in paragraph (a)(4)(i) 

of this section by the amount of scallops 

equal to 5.5 percent of the amount of 

scallop landings in excess of the limited 

access fleet’s ACL specified in 

paragraph (a)(3)(i) of this section. The 

applicable sub-ACL for the limited 

access fleet specified in paragraph 

(a)(3)(i) of this section shall be reduced 

by the amount equivalent to the increase 

in the sub-ACL for LAGC IFQ specified 

pursuant to this paragraph (b)(4)(iii)(B). 

For example, if the limited access 

fishery ACL is exceeded by 1 million lb 

(453.6 mt), but the exception is invoked, 

the LAGC sub-ACL shall be increased, 

and the limited access fleet’s ACL 

decreased, by 55,000 lb (24.9 mt) 

(1 million lb (453.6 mt) × 5.5% (0.055) 

= 55,000 lb (24.9 mt). The ACL 

adjustments in this paragraph 

(b)(4)(iii)(B) shall take effect in the 

fishing year immediately following the 

fishing year in which the overage of the 

ACL occurred. For example, for an ACL 

overage in the 2011 fishing year, the 

adjustments due to implementation of 

the exception would be implemented in 

the 2012 fishing year. 

(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 landings by the limited access 

scallop fleet is less than 0.24. 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 § 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 § 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 atsea 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 § 648.60(d)(1) and (g)(2), 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 

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 


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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 setaside 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 § 648.4(a)(2)(ii)(L) for the 

entire fishing year preceding the carryover 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 carryover 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 carryover for all LAGC IFQ vessels, as 

specified in this paragraph (h)(2)(v)(B). 

(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 TAC allocated to the IFQ 

scallop vessels as described in 

paragraphs (a)(3)(ii) and (iii) of this 

section. 

(B) A vessel may be initially issued 

more than 2.5 percent of the TAC 

allocated to the IFQ scallop vessels as 

described in paragraphs (a)(3)(ii) and 

(iii) of this section, if the initial 

determination of its contribution factor 

specified in accordance with 

§ 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 TAC 

allocated to the IFQ scallop vessels as 

described in paragraphs (a)(3)(ii) and 

(iii) of this section. A vessel that is 

allocated an IFQ that exceeds 2.5 

percent of the TAC allocated to the IFQ 

scallop vessels as described in 

paragraphs (a)(3)(ii) and (iii) 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 

permit(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. 

* * * * * 

(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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
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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 TAC 

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 

TAC 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 prior to the 

expiration of the fishing year for which 

the IFQ transfer, if approved, would be 

effective. 

(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 TAC 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 TAC 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. 

8. Section 648.55 is revised to read as 

follows: 

§ 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 

(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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19946 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

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 

§ 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 § 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 

§ 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 subACL 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 § 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 

§ 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 

§ 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 

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; 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19947 

(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 a TAC or DAS 

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 § 600.10 of 

this chapter. In developing such 

recommendation, the Council shall 

define gear management areas, each not 

to exceed 2,700 mi2 (6,993 km2), 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 

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 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
19948 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

under section 305(c) of the MagnusonStevens Act. 

9. Section 648.56 is revised to read as 

follows: 

§ 648.56 Scallop research. 

(a) Annually, 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 setaside as specified in §§ 648.53(b)(3) and 

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) NMFS 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 § 648.53(a) prior to setting 

ACLs for the limited access and LAGC 

fleets, as specified in § 648.53(a)(3)(i) 

and (a)(4)(i), respectively. Vessels 

participating in approved RSA projects 

shall be allocated an amount of scallop 

pounds that can be harvested in open 

areas, and an amount of pounds that can 

be harvested in each access area. In 

addition to open areas each year, the 

specific access areas that would have 

available RSA shall be specified through 

the framework process and identified in 

§ 648.60. 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 lowerthan-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) A vessels participating in research 

may harvest RSA through May 31 of the 

subsequent fishing year if it, combined 

with other participating vessels, if any, 

is unable to harvest all of the awarded 

RSA in the fishing year for which the 

RSA pounds were awarded. 

(g) Vessels conducting research under 

an approved RSA project may be 

exempt from crew restrictions specified 

in § 648.51, seasonal closures of access 

areas specified in § 648.59, and the 

restriction on fishing in only one access 

area during a trip specified in 

§ 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. 

10. In § 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: 

§ 648.60 Sea scallop area access program 

requirements. 

(a) * * * 

(9) Reporting. The owner or operator 

must submit reports through the VMS, 

as specified in § 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 § 648.59. 

* * * * * 

11. Section 648.61 is revised to read 

as follows: 

§ 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°15′ 70°15′ 

WGM1 ............... 42°15′ 70°15′ 

WGM5 ............... 42°15′ 70°00′ 

WGM6 ............... 43°15′ 70°00′ 

WGM4 ............... 43°15′ 70°15′ 

(2) Cashes Ledge Habitat Closure 

Area. The restrictions specified in 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 19949 

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°01′ 69°03′ 

CLH2 ................. 43°01′ 68°52′ 

CLH3 ................. 42°45′ 68°52′ 

CLH4 ................. 42°45′ 69°03′ 

CLH1 ................. 43°01′ 69°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°40′ 68°50′ 

JB2 .................... 43°40′ 68°40′ 

JB3 .................... 43°20′ 68°40′ 

JB4 .................... 43°20′ 68°50′ 

JB1 .................... 43°40′ 68°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°30′ 69°23′ 

CI4 .................... 41°30′ 68°30′ 

CIH1 .................. 41°26′ 68°30′ 

CIH2 .................. 41°04′ 69°01′ 

CI1 .................... 41°30′ 69°23′ 

CLOSED AREA I—SOUTH HABITAT

CLOSURE AREA

Point N. lat. W. long. 

CIH3 .................. 40°55′ 68°53′ 

CIH4 .................. 40°58′ 68°30′ 

CI3 .................... 40°45′ 68°30′ 

CI2 .................... 40°45′ 68°45′ 

CIH3 .................. 40°55′ 68°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°10′ 67°20′ 

CIIH2 ................. 42°10′ 67°9.3′ 

CIIH3 ................. 42°00′ 67°0.5′ 

CIIH4 ................. 42°00′ 67°10′ 

CIIH5 ................. 41°50′ 67°10′ 

CIIH6 ................. 41°50′ 67°20′ 

CIIH1 ................. 42°10′ 67°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°10′ 70°00′ 

NLH2 ................. 41°10′ 69°50′ 

NLH3 ................. 40°50′ 69°30′ 

NLH4 ................. 40°20′ 69°30′ 

NLH5 ................. 40°20′ 70°00′ 

NLH1 ................. 41°10′ 70°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 

§ 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 § 648.23(b). 

12. In § 648.62, paragraph (b)(3) is 

added to read as follows: 

§ 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 for the NGOM fishery is available. 

* * * * * 

13. Section 648.64 is added to subpart 

D to read as follows: 

§ 648.64 Yellowtail Flounder Sub-ACLs 

and AMs for the Scallop Fishery. 

(a) As specified in § 648.55(d), and 

pursuant to the biennial framework 

adjustment process specified in 

§ 648.90, the scallop fishery shall be 

allocated a sub-ACL for the Georges 

Bank and Southern New England/MidAtlantic stocks of yellowtail flounder. 

The sub-ACL for the 2011 through 2013 

fishing years are as follows: 

(1) 2011. To be determined. 

(2) 2012. To be determined. 

(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°50′ 66°51.94′ 

GBYT AM 2 ...... 40°30.75′ 65°44.96′ 

GBYT AM 3 ...... 40°30′ 66°40′ 

GBYT AM 4 ...... 40°40′ 66°40′ 

GBYT AM 5 ...... 40°40′ 66°50′ 

GBYT AM 6 ...... 40°50′ 66°50′ 

GBYT AM 7 ...... 40°50′ 67°00′ 

GBYT AM 8 ...... 41°00′ 67°00′ 

GBYT AM 9 ...... 41°00′ 67°20′ 

GBYT AM 10 .... 41°10′ 67°20′ 

GBYT AM 11 .... 41°10′ 67°40′ 

GBYT AM 12 .... 41°50′ 67°40′ 

GBYT AM 1 ...... 41°50′ 66°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 one 

fishing year, as specified for the 

corresponding percent overage of the 

Georges Bank yellowtail flounder subACL, 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 


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19950 Federal Register / Vol. 76, No. 69 / Monday, April 11, 2011 / Proposed Rules 

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/MidAtlantic Accountability Measure. (1) If 

the Southern New England/MidAtlantic 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°28.4′ 71°10.25′ 

SNEYT AM 2 .... 41°28.57′ 71°10′ 

SNEYT AM 3 .... 41°20′ 71°10′ 

SNEYT AM 4 .... 41°20′ 70°50′ 

SNEYT AM 5 .... 41°20′ 70°30′ 

SNEYT AM 6 .... 41°18′ 70°15′ 

SNEYT AM 7 .... 41°17.69′ 70°12.54′ 

SNEYT AM 8 .... 41°14.73′ 70°00′ 

SNEYT AM 9 .... 39°50′ 70°00′ 

SNEYT AM 10 .. 39°50′ 71°00′ 

SNEYT AM 11 .. 39°50′ 71°40′ 

SNEYT AM 12 .. 40°00′ 71°40′ 

SNEYT AM 13 .. 40°00′ 73°00′ 

SNEYT AM 14 .. 40°41.23′ 73°00′ 

SNEYT AM 15 .. 41°00′ 71°55′ 

SNEYT AM 16 .. 41°00′ 71°40′ 

SNEYT AM 17 .. 41°20′ 71°40′ 

SNEYT AM 18 .. 41°21.15′ 71°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 one 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. 

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 § 648.90(a)(4) and 

§ 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/MidAtlantic 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. 2011–8444 Filed 4–8–11; 8:45 am] 

BILLING CODE 3510–22–P 


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