[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Proposed Rules]
[Pages 19929-19950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8444]


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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.

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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 set-aside (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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Fax: (978) 281-9135, Attn: Peter Christopher.
    <bullet> 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

[[Page 19930]]

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 
<a href="/cdn-cgi/l/email-protection#1857514a59474b6d7a75716b6b7177765877757a367d7768367f776e"><span class="__cf_email__" data-cfemail="a3eceaf1e2fcf0d6c1cecad0d0cacccde3cccec18dc6ccd38dc4ccd5">[email protected]</span></a>, 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 F<INF>MSY</INF> 
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

[[Page 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 F<INF>MAX</INF> will be used as a proxy 
for F<INF>MSY</INF>. However, SAW 50 approved a direct estimate of 
F<INF>MSY</INF>. Therefore, Amendment 15 would replace the current 
B<INF>MAX</INF> and F<INF>MAX</INF> with B<INF>MSY</INF> and 
F<INF>MSY</INF>. 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 B<INF>MSY</INF> and F<INF>MSY</INF>. Under Amendment 
15, the new overfishing definition would read:

    If stock biomass is equal or greater than B<INF>MSY</INF> 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 F<INF>MSY</INF>, 
currently estimated as 0.38. If the total stock biomass is below 
B<INF>MSY</INF>, overfishing occurs when F exceeds the level that 
has a 50-percent probability to rebuild stock biomass to 
B<INF>MSY</INF> in 10 years. The scallop stock is in an overfished 
condition when stock biomass is below \1/2\ B<INF>MSY</INF>, 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\ 
B<INF>MSY</INF>.

    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 spatially-average 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:
    <bullet> Growth;
    <bullet> Maturity and fecundity;
    <bullet> Shell height/meat weight relationship;
    <bullet> Natural mortality;
    <bullet> Catch data;
    <bullet> Discards and discard mortality;
    <bullet> Incidental mortality;
    <bullet> Commercial shell height data;
    <bullet> Commercial and survey gear selectivity;
    <bullet> Commercial and survey dredge efficiency;
    <bullet> Stock-recruitment relationship; and
    <bullet> 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

[[Page 19932]]

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 full-time vessels, the DAS 
reduction per vessel would be 1.9 DAS. Part time vessel DAS would be 
reduced by 0.76 DAS (40 percent of the full time deduction) and 
occasional vessel DAS would be reduced by 0.16 DAS (1/12th of the full 
time deduction). Part time and occasional proportional deductions are 
consistent with the way that DAS are assigned in the fishery. The AM 
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

[[Page 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 individual-vessel 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 pre-
identified 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

[[Page 19934]]

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 bottom-
tending gear under the NE Multispecies FMP) to minimize the adverse 
impacts of scallop fishing. This change in the EFH closed areas under 
the Scallop FMP 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 third-year 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

[[Page 19935]]

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

[[Page 19936]]

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 
e-mail at <a href="/cdn-cgi/l/email-protection#d7989e85968884a2b5babea4a4beb8b997b8bab5f9b2b8a7f9b0b8a1"><span class="__cf_email__" data-cfemail="83cccad1c2dcd0f6e1eeeaf0f0eaecedc3eceee1ade6ecf3ade4ecf5">[email protected]</span></a>, 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

[[Page 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 short-term cash reserves 
to finance operations through several months or years until the 
positive effects of the regulations start paying off. In the long-term, 
the economic impacts of the combined measures on the participants of 
the scallop are expected to be positive.

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 set-aside 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

[[Page 19938]]

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 short-term 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 sub-ACL, if the scallop fishery exceeds 
the sub-ACL, is a seasonal closure of areas that have been pre-
identified to have high YTF bycatch rates. The applicable area 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.

[[Page 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.

[[Page 19940]]

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


Sec.  648.4  Vessel permits.

    (a) * * *
    (2) * * *
    (i) Limited access scallop permits. Any vessel of the United States 
that possesses or lands more than 600 lb (272.2 kg) of shucked 
scallops, or 50 bu (17.6 hL) of in-shell scallops per trip South of 
42[deg]20' N. Lat., or 75 bu (26.4 hL) of in-shell scallops per trip 
North of 42[deg]20' N. Lat, or possesses more than 100 bu (35.2 hL) of 
in-shell scallops seaward of the VMS Demarcation Line, except vessels 
that fish exclusively in State waters for scallops, must have been 
issued and carry on board a valid limited access scallop permit.
* * * * *
    (ii) * * *
    (A) Individual fishing quota LAGC permit. To possess or land up to 
600 lb (272.2 kg) of shucked meats, or land up to 75 bu (26.4 hL) of 
in-shell scallops per trip, or possess up to 100 bu (35.2 hL) of in-
shell scallops seaward of the VMS demarcation line, a vessel must have 
been issued an individual fishing quota LAGC scallop permit (IFQ 
scallop permit). Issuance of an initial IFQ scallop permit is 
contingent upon the vessel owner submitting the required application 
and other information that demonstrates that the vessel meets the 
eligibility criteria specified in paragraph (a)(2)(ii)(D) of this 
section.
* * * * *
    3. In Sec.  648.10, paragraphs (e)(5)(i), (e)(5)(ii), (f)(4)(i), 
and (h)(8) are revised to read as follows:


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

* * * * *
    (e) * * *
    (5) * * *
    (i) A vessel subject to the VMS requirements of Sec.  648.9 and 
paragraphs (b) through (d) of this section that has crossed the VMS 
Demarcation Line under paragraph (a) of this section is deemed to be 
fishing under the DAS program, the LAGC IFQ or NGOM scallop fishery, or 
other fishery requiring the operation of VMS as applicable, unless 
prior to leaving port, the vessel's owner or authorized representative 
declares the vessel out of the scallop, NE multispecies, or monkfish 
fishery, as applicable, for a specific time period. NMFS must be 
notified by transmitting the appropriate VMS code through the VMS, or 
unless the vessel's owner or authorized representative declares the 
vessel will be fishing in the Eastern U.S./Canada Area, as described in 
Sec.  648.85(a)(3)(ii), under the provisions of that program.
    (ii) Notification that the vessel is not under the DAS program, the 
LAGC IFQ or NGOM scallop fishery, or any other fishery requiring the 
operation of VMS, must be received by NMFS prior to the vessel leaving 
port. A vessel may not change its status after the vessel leaves port 
or before it returns to port on any fishing trip.
* * * * *
    (f) * * *
    (4) * * *.
    (i) The owner or operator of a limited access, 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 Sec.  648.60(a)(9), and trips 
accompanied by a NMFS-approved observer. The reports must be submitted 
for each day (beginning at 0000 hr and ending at 2400 hr) and not later 
than 0900 hours of the following day. Such reports must include the 
following information:
    (A) FVTR serial number;
    (B) Date fish were caught;
    (C) Total pounds of scallop meats kept;
    (D) Total pounds of yellowtail flounder kept;
    (E) Total pounds of yellowtail flounder discarded; and
    (F) Total pounds of all other fish kept.
* * * * *
    (h) * * *
    (8) Any vessel issued a limited access scallop permit and not 
issued an LAGC scallop permit that possesses or lands scallops; any 
vessel issued a limited access scallop and LAGC IFQ scallop permit that 
possesses or lands more than 600 lb (272.2 kg) of scallops; any vessel 
issued a limited access scallop and LAGC NGOM scallop permit that 
possesses or lands more than 200 lb (90.7 kg) of scallops; any vessel 
issued a limited access scallop and LAGC IC scallop permit that 
possesses or lands more than 40 lb (18.1 kg) of scallops; any vessel 
issued a limited access NE multispecies permit subject to the NE 
multispecies DAS program requirements that possesses or lands regulated 
NE multispecies, except as provided in Sec. Sec.  648.10(h)(9)(ii), 
648.17, and 648.89; any vessel issued a limited access monkfish permit 
subject to the monkfish DAS program and call-in requirement that 
possesses or lands monkfish above the incidental catch trip limits 
specified in Sec.  648.94(c); and any vessel issued a limited access 
red crab permit subject to the red crab DAS program and call-in 
requirement that possesses or lands red

[[Page 19941]]

crab above the incidental catch trip limits specified in Sec.  
648.263(b)(1) shall be deemed to be in its respective DAS program for 
purposes of counting DAS and will be charged DAS from its time of 
sailing to landing, regardless of whether the vessel's owner or 
authorized representative provides adequate notification as required by 
paragraphs (e) through (h) of this section.
* * * * *
    4. In Sec.  648.11, paragraphs (g)(1) and (g)(2)(ii) are revised to 
read as follows:


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

* * * * *
    (g) * * *
    (1) General. Unless otherwise specified, owners, operators, and/or 
managers of vessels issued a Federal scallop permit under Sec.  
648.4(a)(2), and specified in paragraph (b) of this section, must 
comply with this section and are jointly and severally responsible for 
their vessel's compliance with this section. To facilitate the 
deployment of at-sea observers, all sea scallop vessels issued limited 
access permits fishing in open areas or Sea Scallop Access Areas, and 
LAGC IFQ vessels fishing under the Sea Scallop Access Area program 
specified in Sec.  648.60, are required to comply with the additional 
notification requirements specified in paragraph (g)(2) of this 
section. When NMFS notifies the vessel owner, operator, and/or manager 
of any requirement to carry an observer on a specified trip in either 
an Access Area or Open Area as specified in paragraph (g)(3) of this 
section, the vessel may not fish for, take, retain, possess, or land 
any scallops without carrying an observer. Vessels may only embark on a 
scallop trip in open areas or Access Areas without an observer if the 
vessel owner, operator, and/or manager has been notified that the 
vessel has received a waiver of the observer requirement for that trip 
pursuant to paragraphs (g)(3) and (g)(4)(ii) of this section.
    (2) * * *
    (ii) LAGC IFQ vessels. LAGC IFQ vessel owners, operators, or 
managers must notify the NMFS/NEFOP by telephone by 0001 hr of the 
Thursday preceding the week (Sunday through Saturday) that they intend 
to start a scallop trip in an access area. If selected, up to two Sea 
Scallop Access Area trips that start during the specified week (Sunday 
through Saturday) can be selected to be covered by an observer. NMFS/
NEFOP must be notified by the owner, operator, or vessel manager of any 
trip plan changes at least 48 hr prior to vessel departure.
* * * * *
    5. In Sec.  648.14, paragraphs (i)(1)(ii), (i)(1)(iii)(A)(1)(iii), 
(i)(1)(iii)(A)(2)(iii), (i)(1)(iii)(A)(3) introductory text, 
(i)(4)(i)(A), (i)(4)(ii)(B), and (i)(4)(iii)(B) are revised, paragraph 
(i)(2)(viii) is added, and paragraph (i)(3)(iii)(E) is removed as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (i) * * *
    (1) * * *
    (ii) Gear and crew requirements. Have a shucking or sorting machine 
on board a vessel while in possession of more than 600 lb (272.2 kg) of 
shucked scallops, unless that vessel has not been issued a scallop 
permit and fishes exclusively in State waters.
    (iii) * * *
    (A) * * *
    (1) * * *
    (iii) The scallops were harvested by a vessel that has been issued 
and carries on board an IFQ scallop permit and is properly declared 
into the IFQ scallop fishery or is properly declared into the NE 
multispecies or Atlantic surfclam or quahog fishery and is not fishing 
in a sea scallop access area.
* * * * *
    (2) * * *
    (iii) The scallops were harvested by a vessel that has been issued 
and carries on board an IFQ scallop permit issued pursuant to Sec.  
648.4(a)(2)(ii)(A), is fishing outside of the NGOM scallop management 
area, and is properly declared into the general category scallop 
fishery or is properly declared into the NE multispecies or Atlantic 
surfclam or quahog fishery and is not fishing in a sea scallop access 
area.
* * * * *
    (3) In excess of 600 lb (272.2 kg) of shucked scallops at any time, 
50 bu (17.6 hL) of in-shell scallops per trip South of 42[deg]20[min] 
N. Lat. and shoreward of the VMS Demarcation Line, or 75 bu (26.4 hL) 
of in-shell scallops per trip North of 42[deg]20[min] N. Lat and 
shoreward of the VMS demarcation line, or 100 bu (35.2 hL) in-shell 
scallops seaward of the VMS Demarcation Line, unless:
* * * * *
    (2) * * *
    (viii) Fish for scallops in, or possess scallops or land scallops 
from, the yellowtail flounder accountability measure closed areas 
specified in Sec.  648.64 during the period specified in the notice 
announcing the closure and based on the closure table specified in 
Sec.  648.64 .
* * * * *
    (4) * * *
    (i) * * *
    (A) Fish for or land per trip, or possess at any time, in excess of 
600 lb (272.2 kg) of shucked, or 75 bu (26.4 hL) of in-shell scallops 
per trip, or, or 100 bu (35.2 hL) in-shell scallops seaward of the VMS 
Demarcation Line, unless the vessel is carrying an observer as 
specified in Sec.  648.11 while participating in the Area Access 
Program specified in Sec.  648.60 and an increase in the possession 
limit is authorized by the Regional Administrator and not exceeded by 
the vessel, as specified in Sec. Sec.  648.52(g) and 648.60(d)(2).
* * * * *
    (ii) * * *
    (B) Have an IFQ allocation on an IFQ scallop vessel of more than 
2.5 percent of the total IFQ scallop TAC as specified in Sec.  
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 Sec.  648.51, paragraphs (d)(1) and (e) introductory text are 
revised to read as follows:


Sec.  648.51  Gear and crew restrictions.

* * * * *
    (d) * * *
    (1) Shucking machines are prohibited on all limited access vessels 
fishing under the scallop DAS program, or any vessel in possession of 
more than 600 lb (272.2 kg) of scallops, unless the vessel has not been 
issued a limited access scallop permit and fishes exclusively in State 
waters.
* * * * *
    (e) Small dredge program restrictions. Any vessel owner whose 
vessel is assigned to either the part-time or Occasional category may 
request, in the application for the vessel's annual permit, to be 
placed in one category higher. Vessel owners making such request may be 
placed in the appropriate higher category for the entire year, if they 
agree to comply with the following restrictions, in addition to, and 
notwithstanding other restrictions of this part, when fishing under the 
DAS program described in Sec.  648.53:
* * * * *
    7. In Sec.  648.52, paragraph (a) is revised to read as follows:


Sec.  648.52  Possession and landing limits.

    (a) A vessel issued an IFQ scallop permit that is declared into the 
IFQ scallop fishery as specified in Sec.  648.10(b), or on a properly 
declared

[[Page 19942]]

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


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

    (a) Scallop fishery ABC. The ABC for the scallop fishery shall be 
established through the framework adjustment process specified in Sec.  
648.55 and is equal to the overall scallop fishery ACL. The ABC/ACL 
shall be divided as sub-ACLs between limited access vessels, limited 
access vessels that are fishing under a limited access general category 
permit, and limited access general category vessels as specified in 
paragraphs (a)(3) and (a)(4) of this section, after deducting the 
scallop incidental catch target TAC specified in paragraph (a)(2) of 
this section, observer set-aside specified in paragraph (g)(1) of this 
section, and research set-aside specified in Sec.  648.56(d).
    (1) ABC/ACL for fishing years 2011 through 2013 shall be:
    (i) 2011. To be determined.
    (ii) 2012. To be determined.
    (iii) 2013. To be determined.
    (2) Scallop incidental catch target TAC. The incidental catch 
target TAC for vessels with incidental catch scallop permits is to be 
determined for fishing years 2011, 2012, and 2013.
    (3) Limited access fleet sub-ACL and ACT. The limited access 
scallop fishery shall be allocated 94.5 percent of the ACL specified in 
paragraph (a)(1) of this section, after deducting incidental catch, 
observer set-aside, and research set-aside, as specified in this 
paragraph (a). ACT for the limited access scallop fishery shall be 
established through the framework adjustment process described in Sec.  
648.55. DAS specified in paragraph (b) of this section shall be based 
on the ACTs specified in paragraph (a)(3)(ii) of this section.
    (i) The limited access fishery sub-ACLs for the 2011 through 2013 
fishing years are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (ii) The limited access fishery ACTs for the 2011 through 2013 
fishing years are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (4) LAGC fleet sub-ACL. The sub-ACL for the LAGC IFQ fishery shall 
be equal to 5.5 percent of the ACL specified in paragraph (a)(1) of 
this section, after deducting incidental catch, observer set-aside, and 
research set-aside, as specified in this paragraph (a). The LAGC IFQ 
fishery ACT shall be equal to the LAGC IFQ fishery's ACL. The ACL for 
the LAGC IFQ fishery for vessels issued only a LAGC IFQ scallop permit 
shall be equal to 5 percent of the ACL specified in paragraph (a)(1) of 
this section, after deducting incidental catch, observer set-aside, and 
research set-aside, as specified in this paragraph (a). The ACL for the 
LAGC IFQ fishery for vessels issued both a LAGC IFQ scallop permit and 
a limited access scallop permit shall be 0.5 percent of the ACL 
specified in paragraph (a)(1) of this section, after deducting 
incidental catch, observer set-aside, and research set-aside, as 
specified in this paragraph (a).
    (i) The ACLs for the 2011 through 2013 fishing years for LAGC IFQ 
vessels without a limited access scallop permit are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (ii) The ACLs for the 2011 through 2013 fishing years for vessels 
issued both a LAGC and a limited access scallop permit are:
    (A) 2011. To be determined.
    (B) 2012. To be determined.
    (C) 2013. To be determined.
    (b) DAS allocations. DAS allocations for limited access scallop 
trips in all areas other than those specified in Sec.  648.59 shall be 
specified through the framework adjustment process, as specified in 
Sec.  648.55, using the ACT specified in paragraph (a)(3)(ii) of this 
section. A vessel's DAS, shall be determined and specified in paragraph 
(b)(4) of this section by dividing the total DAS specified in the 
framework adjustment by the LPUE specified in paragraph (b)(1) of this 
section, then dividing by the total number of vessels in the fleet.
    (1) Landings per unit effort (LPUE). LPUE is an estimate of the 
average amount of scallops, in pounds, that the limited access scallop 
fleet lands per DAS fished. The estimated LPUE is the average LPUE for 
all limited access scallop vessels fishing under DAS, and shall be used 
to calculate DAS specified in paragraph (b)(4) of this section, the DAS 
reduction for the AM specified in paragraph (b)(4)(ii) of this section, 
and the observer set-aside DAS allocation specified in paragraph (g)(1) 
of this section. LPUE shall be:
    (i) 2011. To be determined.
    (ii) 2012. To be determined.
    (iii) 2013. To be determined.
* * * * *
    (4) Each vessel qualifying for one of the three DAS categories 
specified in the table in this paragraph (b)(4) (full-time, part-time, 
or occasional) shall be allocated the maximum number of DAS for each 
fishing year it may participate in the open area limited access scallop 
fishery, according to its category, excluding carryover DAS in 
accordance with paragraph (d) of this section. DAS allocations shall be 
determined by distributing the portion of ACT specified in paragraph 
(a)(3)(ii), as reduced by access area allocations, as specified in 
Sec.  648.59, and dividing that among vessels in the form of DAS 
calculated by applying estimates of open area LPUE specified in 
paragraph (b)(1) of this section. Part-time and occasional scallop 
vessels shall be equal to 40 percent and 8.33 percent of the full-time 
DAS allocations, respectively. The annual open area DAS allocations for 
each category of vessel for the fishing years indicated are as follows:

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

     (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

[[Page 19943]]

limited access vessel shall be reduced by an amount equal to the amount 
of landings in excess of the ACL divided by the applicable LPUE for the 
fishing year in which the AM will apply as specified in paragraph 
(b)(1) of this section, then divided by the number of scallop vessels 
eligible to be issued a full-time limited access scallop permit. For 
example, assuming a 300,000-lb (136-mt) overage of the ACL in 2011, an 
open area LPUE of 2,500 lb (1.13 mt) per DAS in 2012, and 313 full-time 
vessels, each full time vessel's DAS would be reduced by 0.38 DAS 
(300,000 lb (136 mt)/2,500 lb (1.13 mt) per DAS = 120 lb (0.05 mt) per 
DAS/313 vessels = 0.38 DAS per vessel). Deductions for part-time and 
occasional scallop vessels shall be equal to 40 percent and 8 percent 
of the full-time DAS deduction, respectively, as calculated pursuant to 
this paragraph (b)(4)(ii). The AM shall take effect in the fishing year 
following the fishing year in which the overage occurred. For example, 
landings in excess of the ACL in fishing year 2011 would result in the 
DAS reduction AM in fishing year 2012. If the AM takes effect, and a 
limited access vessel uses more open area DAS in the fishing year in 
which the AM is applied, the vessel shall have the DAS used in excess 
of the allocation after applying the AM deducted from its open area DAS 
allocation in the subsequent fishing year. For example, a vessel 
initially allocated 32 DAS in 2011 uses all 32 DAS prior to application 
of the AM. If, after application of the AM, the vessel's DAS allocation 
is reduced to 31 DAS, the vessel's DAS in 2012 would be reduced by 1 
DAS.
    (iii) Limited access AM exception--(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) x 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 Sec.  648.55. If a biennial framework 
action is not undertaken by the Council and implemented by NMFS before 
the beginning of the third year of each biennial adjustment, the third-
year measures specified in the biennial framework adjustment shall 
remain in effect for the next fishing year. If a new biennial or other 
framework adjustment is not implemented by NMFS by the conclusion of 
the third year, the management measures from that third year would 
remain in place until a new action is implemented. The Council may also 
recommend adjustments to DAS allocations or other measures through a 
framework adjustment at any time.
    (d) End-of-year carry-over for open area DAS. With the exception of 
vessels that held a Confirmation of Permit History as described in 
Sec.  648.4(a)(2)(i)(J) for the entire fishing year preceding the 
carry-over year, limited access vessels that have unused Open Area DAS 
on the last day of February of any year may carry over a maximum of 10 
DAS, not to exceed the total Open Area DAS allocation by permit 
category, into the next year. DAS carried over into the next fishing 
year may only be used in Open Areas. Carry-over DAS are accounted for 
in setting the ACT for the limited access fleet, as specified in 
paragraph (a)(3)(ii) of this section. Therefore, if carry-over DAS 
result or contribute to an overage of the ACL, the limited access fleet 
AM specified in paragraph (b)(4)(ii) of this section would still apply, 
provided the AM exception specified in paragraph (b)(4)(iii) of this 
section is not invoked.
* * * * *
    (g) Set-asides for observer coverage. (1) To help defray the cost 
of carrying an observer, 1 percent of the ABC/ACL specified in 
paragraph (a)(1) of this section shall be set aside to be used by 
vessels that are assigned to take an at-sea observer on a trip. The 
total TAC for observer set aside is 273 mt in fishing year 2011, 289 mt 
in fishing year 2012, and 287 mt in fishing year 2013. This 1 percent 
is divided proportionally into access areas and open areas, as 
specified in Sec.  648.60(d)(1) and (g)(2), 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

[[Page 19944]]

rates for each trip on which the vessel carries an observer. For each 
DAS that a vessel fishes for scallops with an observer on board, the 
DAS shall be charged at a reduced rate, based on an adjustment factor 
determined by the Regional Administrator on an annual basis, dependent 
on the cost of observers, catch rates, and amount of available DAS set-
aside. The Regional Administrator shall notify vessel owners of the 
cost of observers and the DAS adjustment factor through a permit holder 
letter issued prior to the start of each fishing year. This DAS 
adjustment factor may also be changed during the fishing year if 
fishery conditions warrant such a change. The number of DAS that are 
deducted from each trip based on the adjustment factor shall be 
deducted from the observer DAS set-aside amount in the applicable 
fishing year. Utilization of the DAS set-aside shall be on a first-
come, first-served basis. When the DAS set-aside for observer coverage 
has been utilized, vessel owners shall be notified that no additional 
DAS remain available to offset the cost of carrying observers. The 
obligation to carry and pay for an observer shall not be waived if set-
aside is not available.
    (h) * * *
    (2) * * *
    (iii) Contribution percentage. A vessel's contribution percentage 
shall be determined by dividing its contribution factor by the sum of 
the contribution factors of all vessels issued an IFQ scallop permit. 
Continuing the example in paragraph (h)(1)(ii)(D) of this section, the 
sum of the contribution factors for 380 IFQ scallop vessels is 
estimated, for the purpose of this example, to be 4.18 million lb 
(1,896 mt). The contribution percentage of the above vessel is 1.45 
percent (60,687 lb (27,527 kg)/4.18 million lb (1,896 mt) = 1.45 
percent). The contribution percentage for a vessel that is issued an 
IFQ scallop permit and that has permanently transferred all of its IFQ 
to another IFQ vessel, as specified in paragraph (h)(5)(ii) of this 
section, shall be equal to 0 percent.
* * * * *
    (v) End-of-year carry-over for IFQ. (A) With the exception of 
vessels that held a confirmation of permit history as described in 
Sec.  648.4(a)(2)(ii)(L) for the entire fishing year preceding the 
carry-over year, LAGC IFQ vessels that have unused IFQ on the last day 
of February of any year may carry over up to 15 percent of the vessel's 
original IFQ and transferred (either temporary or permanent) IFQ into 
the next fishing year. For example, a vessel with a 10,000 lb (4,536 
kg) IFQ and 5,000 lb (2,268 kg) leased IFQ may carry over 2,250 lb 
(1,020 kg) of IFQ (i.e, 15 percent of 15,000 lb (6,804 kg) into the 
next fishing year if it landed 12,750 lb (5,783 kg) (i.e., 85 percent 
of 15,000 lb (6,804 kg) of scallops or less in the preceding fishing 
year. Using the same IFQ values from the example, if the vessel landed 
14,000 lb (6,350 kg) of scallops, it could carry over 1,000 lb (454 kg) 
of scallops into the next fishing year.
    (B) For accounting purposes, the combined total of all vessels' IFQ 
carry-over shall be added to the LAGC IFQ fleet's applicable ACL for 
the carry-over year. Any IFQ carried over that is landed in the carry-
over fishing year shall be counted against the ACL specified in 
paragraph (a)(4)(i) of this section, as increased by the total carry-
over for all LAGC IFQ vessels, as specified in this paragraph 
(h)(2)(v)(B).
    (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 Sec.  
648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section, results in 
an IFQ that exceeds 2.5 percent of the 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

[[Page 19945]]

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:


Sec.  648.55  Framework adjustments to management measures.

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

[[Page 19946]]

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

[[Page 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 
Sec.  600.10 of this chapter. In developing such recommendation, the 
Council shall define gear management areas, each not to exceed 2,700 
mi\2\ (6,993 km\2\), and seek industry comments by referring the matter 
to its standing industry advisory committee for gear conflict, or to 
any ad hoc industry advisory committee that may be formed. The standing 
industry advisory committee or ad hoc committee on gear conflict shall 
hold public meetings seeking comments from affected fishers and develop 
findings and recommendations on addressing the gear conflict. After 
receiving the industry advisory committee findings and recommendations, 
or at any other time, the Council shall determine whether it is 
necessary to adjust or add management measures to address gear 
conflicts and which FMPs must be modified to address such conflicts. If 
the Council determines that adjustments or additional measures are 
necessary, it shall develop and analyze appropriate management actions 
for the relevant FMPs over the span of at least two Council meetings. 
The Council shall provide the public with advance notice of the 
availability of the recommendation, the appropriate justification and 
economic and biological analyses, and opportunity to comment on them 
prior to and at the second or final Council meeting before submission 
to the Regional Administrator. The Council's recommendation on 
adjustments or additions to management measures for gear conflicts must 
come from one or more of the following categories:
    (1) Monitoring of a radio channel by fishing vessels;
    (2) Fixed-gear location reporting and plotting requirements;
    (3) Standards of operation when gear conflict occurs;
    (4) Fixed-gear marking and setting practices;
    (5) Gear restrictions for specific areas (including time and area 
closures);
    (6) VMS;
    (7) Restrictions on the maximum number of fishing vessels or amount 
of gear; and
    (8) Special permitting conditions.
    (h) The measures shall be evaluated and approved by the relevant 
committees with oversight authority for the affected FMPs. If there is 
disagreement between committees, the Council may return the proposed 
framework adjustment to the standing or ad hoc gear conflict committee 
for further review and discussion.
    (i) Unless otherwise specified, after developing a framework 
adjustment and receiving public testimony, the Council shall make a 
recommendation to the Regional Administrator. The Council's 
recommendation must include supporting rationale and, if management 
measures are recommended, an analysis of impacts and a recommendation 
to the Regional Administrator on whether to publish the framework 
adjustment as a final rule. If the Council recommends that the 
framework adjustment should be published as a final rule, the Council 
must consider at least the following factors and provide support and 
analysis for each factor considered:
    (1) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether regulations have to be in place for an 
entire harvest/fishing season;
    (2) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry, 
consistent with the Administrative Procedure Act, in the development of 
the Council's recommended management measures;
    (3) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts; and
    (4) Whether there will be a continuing evaluation of management 
measures adopted following their promulgation as a final rule.
    (j) If the Council's recommendation includes adjustments or 
additions to management measures, and if, after reviewing the Council's 
recommendation and supporting information:
    (1) The Regional Administrator approves the Council's recommended 
management measures, the Secretary may, for good cause found pursuant 
to the Administrative Procedure Act, waive the requirement for a 
proposed rule and opportunity for public comment in the Federal 
Register. The Secretary, in doing so, shall publish only the final 
rule. Submission of a recommendation by the Council for a 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

[[Page 19948]]

under section 305(c) of the Magnuson-Stevens Act.
    9. Section 648.56 is revised to read as follows:


Sec.  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 set-aside as specified in Sec. Sec.  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 Sec.  
648.53(a) prior to setting ACLs for the limited access and LAGC fleets, 
as specified in Sec.  648.53(a)(3)(i) and (a)(4)(i), respectively. 
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 Sec.  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 lower-than-expected scallop 
price, unused RSA allocation can be provided to that year's awarded 
projects to compensate for the funding shortfall, or to expand a 
project, rather than having that RSA go unused. NMFS shall identify the 
process for the reallocation of available RSA pounds as part of the FFO 
for the RSA program. The FFO shall specify the conditions under which a 
project that has been awarded RSA could be provided additional RSA 
pounds as supplemental compensation to account for lower-than-expected 
scallop price or for expansion of the project, timing of reallocation, 
and information submission requirements.
    (f) 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 Sec.  648.51, seasonal 
closures of access areas specified in Sec.  648.59, and the restriction 
on fishing in only one access area during a trip specified in Sec.  
648.60(a)(4). The RSA project proposal must list which of these 
measures for which an exemption is required. An exemption shall be 
provided by Letter of Authorization issued by the Regional 
Administrator. RSA compensation fishing trips and combined compensation 
and research trips are not eligible for these exemptions.
    (h) Upon completion of scallop research projects approved pursuant 
to this section and the applicable NOAA grants review process, 
researchers must provide the Council and NMFS with a report of research 
findings, which must include at least the following: A detailed 
description of methods of data collection and analysis; a discussion of 
results and any relevant conclusions presented in a format that is 
understandable to a non-technical audience; and a detailed final 
accounting of all funds used to conduct the sea scallop research.
    10. In Sec.  648.60, paragraph (a)(5)(iii) is removed and reserved, 
and paragraphs (a)(9), (c)(3), and (e)(1) are revised to read as 
follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) * * *
    (9) Reporting. The owner or operator must submit reports through 
the VMS, as specified in Sec.  648.10(f)(4)(i).
* * * * *
    (c) * * *
    (3) The vessel owner/operator must report the termination of the 
trip prior to entering the access area if the trip is terminated while 
transiting to the area, or prior to leaving the Sea Scallop Access Area 
if the trip is terminated after entering the access area, by VMS e-mail 
messaging, with the following information: Vessel name, vessel owner, 
vessel operator, time of trip termination, reason for terminating the 
trip (for NMFS recordkeeping purposes), expected date and time of 
return to port, and amount of scallops on board in pounds;
* * * * *
    (e) * * *
    (1) Research set-aside may be harvested in an access area that is 
open in the applicable fishing year, as specified in Sec.  648.59.
* * * * *
    11. Section 648.61 is revised to read as follows:


Sec.  648.61  EFH closed areas.

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

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

     (2) Cashes Ledge Habitat Closure Area. The restrictions specified 
in

[[Page 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[deg]01'   69[deg]03'
CLH2..........................................   43[deg]01'   68[deg]52'
CLH3..........................................   42[deg]45'   68[deg]52'
CLH4..........................................   42[deg]45'   69[deg]03'
CLH1..........................................   43[deg]01'   69[deg]03'
------------------------------------------------------------------------

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

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

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

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


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

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

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

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

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

     (b) Transiting. A vessel may transit the EFH Closure Areas as 
defined in paragraphs (a)(1) through (6) of this section, unless 
otherwise restricted, provided that its gear is stowed in accordance 
with the provisions of Sec.  648.23(b). A vessel may transit the CAII 
EFH closed area, as defined in paragraph (a)(6) of this section, 
provided there is a compelling safety reason to enter the area and all 
gear is stowed in accordance with the provisions of Sec.  648.23(b).
    12. In Sec.  648.62, paragraph (b)(3) is added to read as follows:


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

* * * * *
    (b) * * *
    (3) If the TAC specified in paragraph (b)(1) of this section is 
exceeded, the amount of NGOM scallop landings in excess of the TAC 
specified in paragraph (b)(1) of this section shall be deducted from 
the NGOM TAC for the subsequent fishing year, as soon as practicable, 
once scallop landings data for for the NGOM fishery is available.
* * * * *
    13. Section 648.64 is added to subpart D to read as follows:


Sec.  648.64  Yellowtail Flounder Sub-ACLs and AMs for the Scallop 
Fishery.

    (a) As specified in Sec.  648.55(d), and pursuant to the biennial 
framework adjustment process specified in Sec.  648.90, the scallop 
fishery shall be allocated a sub-ACL for the Georges Bank and Southern 
New England/Mid-Atlantic stocks of yellowtail flounder. The sub-ACL for 
the 2011 through 2013 fishing years are as follows:
    (1) 2011. 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[deg]50'  66[deg]51.9
                                                                      4'
GBYT AM 2.....................................  40[deg]30.7  65[deg]44.9
                                                         5'           6'
GBYT AM 3.....................................   40[deg]30'   66[deg]40'
GBYT AM 4.....................................   40[deg]40'   66[deg]40'
GBYT AM 5.....................................   40[deg]40'   66[deg]50'
GBYT AM 6.....................................   40[deg]50'   66[deg]50'
GBYT AM 7.....................................   40[deg]50'   67[deg]00'
GBYT AM 8.....................................   41[deg]00'   67[deg]00'
GBYT AM 9.....................................   41[deg]00'   67[deg]20'
GBYT AM 10....................................   41[deg]10'   67[deg]20'
GBYT AM 11....................................   41[deg]10'   67[deg]40'
GBYT AM 12....................................   41[deg]50'   67[deg]40'
GBYT AM 1.....................................   41[deg]50'  66[deg]51.9
                                                                      4'
------------------------------------------------------------------------

     (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 
sub-ACL, as follows:
    (i) For years when the Closed Area II Sea Scallop Access Area is 
open, the closure duration shall be:

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

     (ii) For fishing years when the Closed Area II Sea Scallop Access 
Area is

[[Page 19950]]

closed to scallop fishing, the closure duration shall be:

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

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

                 Southern New England Yellowtail Closure
------------------------------------------------------------------------
               Point                   N. lat.      W. long.
-------------------------------------------------------------
SNEYT AM 1.........................  41[deg]28.4  71[deg]10.2
                                               '           5'
SNEYT AM 2.........................  41[deg]28.5   71[deg]10'
                                              7'
SNEYT AM 3.........................   41[deg]20'   71[deg]10'
SNEYT AM 4.........................   41[deg]20'   70[deg]50'
SNEYT AM 5.........................   41[deg]20'   70[deg]30'
SNEYT AM 6.........................   41[deg]18'   70[deg]15'
SNEYT AM 7.........................  41[deg]17.6  70[deg]12.5
                                              9'           4'
SNEYT AM 8.........................  41[deg]14.7   70[deg]00'
                                              3'
SNEYT AM 9.........................   39[deg]50'   70[deg]00'
SNEYT AM 10........................   39[deg]50'   71[deg]00'
SNEYT AM 11........................   39[deg]50'   71[deg]40'
SNEYT AM 12........................   40[deg]00'   71[deg]40'
SNEYT AM 13........................   40[deg]00'   73[deg]00'
SNEYT AM 14........................  40[deg]41.2   73[deg]00'
                                              3'
SNEYT AM 15........................   41[deg]00'   71[deg]55'
SNEYT AM 16........................   41[deg]00'   71[deg]40'
SNEYT AM 17........................   41[deg]20'   71[deg]40'
SNEYT AM 18........................  41[deg]21.1   71[deg]40'
                                              5'
------------------------------------------------------------------------

     (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 
Sec.  648.90(a)(4) and Sec.  648.90(a)(6) to be exceeded, the Regional 
Administrator shall implement the yellowtail flounder AM closure for 
the area, as defined in paragraph (b)(1) or (c)(1) of this section as 
soon as practicable after the effective date of this regulation. The 
closure shall be effective on the date specified by the Regional 
Administrator and the area shall remained closed for a period of time 
equal to the period of time specified in paragraphs (b)(2)(i)(A), 
(b)(2)(i)(B), or (c)(2) of this section, as applicable. For example, if 
the overage is 3 to 5 percent for the Southern New England/Mid-Atlantic 
yellowtail stock, and the closure is effective beginning July 15, 2011, 
the closure shall remain in effect through September 15, 2011, a 2-
month period equivalent to the March-April, 2-month closure specified 
in paragraph (c)(2) of this section.

[FR Doc. 2011-8444 Filed 4-8-11; 8:45 am]
BILLING CODE 3510-22-P


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