[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Rules and Regulations]
[Pages 20728-20742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8386]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 111011616-2102-02]
RIN 0648-BB51


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 23

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

ACTION: Final rule.

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SUMMARY: This action approves Framework Adjustment 23 to the Atlantic 
Sea Scallop Fishery Management Plan (Framework 23) and implements its 
measures. Framework 23 was developed and adopted by the New England 
Fishery Management Council and includes measures to: Minimize impacts 
on sea turtles through the requirement of a turtle deflector dredge; 
improve the effectiveness of the scallop fishery's accountability 
measures related to the yellowtail flounder annual catch limits; adjust 
the limited access general category Northern Gulf of Maine management 
program; and modify the scallop vessel monitoring system trip 
notification procedures to improve flexibility for the scallop fleet.

DATES: Effective May 7, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
23 that describes the action and other considered alternatives and 
provides a thorough analysis of the impacts of these measures and 
alternatives. Copies of Framework 23, the EA, and the Initial 
Regulatory Flexibility Analysis (IRFA), are available upon request from 
Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Newburyport, MA 01950.

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, 
978-281-9244; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The New England Fishery Management Council (Council) adopted 
Framework 23 on September 27, 2011, initially submitted it to NMFS on 
October 25, 2011, for review and approval, and submitted a revised 
final framework document on November 30, 2011. Framework 23 includes 
measures that require vessels fishing in the Atlantic Sea Scallop 
fishery to use a turtle deflector dredge (TDD), including where, when, 
and to which vessels this TDD requirement applies. It also revises the 
current accountability measures (AMs) related to the yellowtail 
flounder (YTF) annual catch limits (sub-ACLs) for the Georges Bank (GB) 
and Southern New England/Mid-Atlantic (SNE/MA) YTF stock areas. These 
modifications only alter the months when a closure applies and do not 
change the locations for these seasonal closure AMs. Framework 23 also 
changes how scallop landings are applied to the Northern Gulf of Maine 
Management (NGOM) total allowable catch (TAC) when harvested by 
federally NGOM-permitted vessels. Finally, Framework 23 implements 
procedural changes to when and where a vessel can declare a scallop 
trip through vessel monitoring systems (VMS).
    The Council reviewed the Framework 23 proposed rule regulations as 
drafted by NMFS, which included regulations proposed by NMFS under the 
authority of section 305(d) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), and deemed them 
to be necessary and consistent with section 303(c) of the Magnuson-
Stevens Act. The proposed rule for Framework 23 published in the 
Federal Register on January 3, 2012 (77 FR 52), with a 15-day public 
comment period that ended January 18, 2012. Three comments were 
received on the proposed measures.
    The final Framework 23 management measures are described below. 
Details concerning the Council's development of these measures were 
presented in the

[[Page 20729]]

preamble of the proposed rule and are not repeated here.

Requirement To Use a TDD

    This action implements a requirement that all limited access (LA) 
vessels (regardless of permit category or dredge size), and limited 
access general category (LAGC) Individual Fishing Quota (IFQ) vessels 
that fish with a dredge with a width of 10.5 ft (3.2 m) or greater, use 
a TDD in the Mid-Atlantic (west of 71[deg] W long.) from May through 
October.
    The TDD is designed to reduce injury and mortality of sea turtles 
that come into contact with scallop dredges on the sea floor by 
deflecting sea turtles over the dredge frame and dredge bag. The TDD 
includes five modifications to the standard commercial dredge frame:
    (1) The cutting bar must be located in front of the depressor 
plate.
    (2) The angle between the front edge of the cutting bar and the top 
of the dredge frame must be less than or equal to 45 degrees.
    (3) All bale bars must be removed, except the outer bale (single or 
double) bars and the center support beam, leaving an otherwise 
unobstructed space between the cutting bar and forward bale wheels, if 
present. The center support beam must be less than 6 in (15.24 cm) 
wide. For the purpose of flaring and safe handling of the dredge, a 
minor appendage not to exceed 12 in (30.5 cm) in length may be attached 
to the outer bale bar.
    (4) Struts must be spaced no more than 12 in (30.5 cm) apart from 
each other.
    (5) The TDD must include a straight extension (``bump out'') 
connecting the outer bale bars to the dredge frame. This ``bump out'' 
must exceed 12 in (30.5 cm) in length.
    Each element of this dredge is based on direct field research that 
has been conducted over several years. The combination of these 
modifications is designed to reduce the likelihood of a sea turtle 
passing under the dredge frame when the gear is on the seafloor, which 
could result in the sea turtle being crushed or injured. Available 
information indicates that these modifications cumulatively benefit sea 
turtle conservation, while not compromising the structural integrity of 
the dredge design and scallop yield. These TDD components can be 
modified by future actions, if additional modifications are developed 
to further minimize impacts on sea turtles or improve the effectiveness 
of these measures.
    This action requires that all LA vessels, regardless of permit 
category or dredge width, and all LAGC IFQ vessels that fish with 
dredge gear greater than or equal to 10.5 feet (3.2 m) in width in the 
applicable area and season, use a TDD. Because the bump out 
modification has not yet been fully tested on small dredges, Framework 
23 exempts LA scallop vessels that use dredges with a width less than 
10.5 ft (3.2 m) from that requirement of the TDD. Thus, LA vessels 
fishing with dredges less than 10.5 ft (3.2 m) in width only have to 
use a TDD with the first four modifications listed above. If an LA 
vessel fishes with two dredges at a time, both of which are less than 
10.5 ft (3.2 m) in width, neither dredge is required to have the bump 
out extension, even though the combined width of both dredges is 
greater than 10.5 ft (3.2 m). The bump out exemption does not apply to 
LAGC vessels that use dredges less than 10.5 ft (3.2 m) wide because 
such vessels are exempted from the requirement to use a TDD entirely, 
due to concerns of the financial burden that building a new dredge 
would have on these small day boats, which may have lower IFQ 
allocations. If an LAGC vessel fishes with two dredges, both of which 
are less than 10.5 ft (3.2 m) wide, neither dredge is required to 
comply with the TDD requirements, even though the combined width of 
both dredges is greater than 10.5 ft (3.2 m).
    Due to the time it will take manufacturers to develop TDDs for the 
scallop fishery, this measure will be effective 1 year after the 
effective date of Framework 23 (e.g., if Framework 23 is effective on 
March 15, 2012, the TDD regulations would be effective on March 15, 
2013, and TDDs would be required to be used starting May 1, 2013). This 
delay also provides vessel operators and crew time to fish with the new 
dredge design before the TDD season begins, should they choose to do 
so.
    This TDD requirement is an important measure to ensure compliance 
with the second reasonable and prudent measure (RPM<greek-i>2) and 
accompanying terms and conditions (T/C) of the 2008 Biological Opinion 
(2008 Biological Opinion) on the Scallop FMP. RPM<greek-i>2 states that 
``NMFS must continue to investigate and implement, as appropriate, gear 
modifications for scallop dredge and trawl gear to reduce the capture 
of sea turtles and/or the severity of the interactions that occur.'' 
Along with effort restrictions in the Mid-Atlantic, which are required 
under the first RPM of the 2008 Biological Opinion, and previously 
implemented regulations requiring the use of chain mate (50 CFR 
223.206(d)(11)), TDDs are expected to provide an additional 
conservation benefit to sea turtles by reducing the severity of any 
interactions that occur.

Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs

1. Revised AM Closure Schedules
    This action also revises the YTF seasonal closure AM schedules in 
both GB and SNE/MA such that the closures will occur during months with 
the highest YTF catch rates, rather than being in place for consecutive 
months beginning at the start of the fishing year (FY). These AM 
adjustments still only apply to LA vessels. Table 1 compares the 
current SNE/MA AM schedule with the new Framework 23 schedule. The 
major difference for SNE/MA is that the Framework 23 closure schedule 
occurs in the early spring and winter first, rather than starting with 
the spring and summer, as under the current AM for that stock area. AMs 
will occur in the same FY, with the winter closures occurring at the 
end of the FY.

                     Table 1--Comparison of Current SNE/MA AM Schedule and the Framework 23
----------------------------------------------------------------------------------------------------------------
                      Current AM schedule                                           Proposed
----------------------------------------------------------------------------------------------------------------
           Percent overage                    LA closure            Percent overage             LA closure
----------------------------------------------------------------------------------------------------------------
1-2..................................  March..................  2 or less..............  Mar-Apr.
3-5..................................  Mar-Apr................  2.1-3..................  Mar-Apr, and Feb.
6-8..................................  Mar-May................  3.1-7..................  Mar-May, and Feb.
9-12.................................  Mar-June...............  7.1-9..................  Mar-May, and Jan-Feb.
13-14................................  Mar-July...............  9.1-12.................  Mar-May, and Dec-Feb.
15...................................  Mar-Aug................  12.1-15................  Mar-June, and Dec-Feb.
16...................................  Mar-Sept...............  15.1-16................  Mar-June, and Nov-Feb.
17...................................  Mar-Oct................  16.1-18................  Mar-July, and Nov-Feb.
18...................................  Mar-Nov................  18.1-19................  Mar-Aug, and Oct-Feb.

[[Page 20730]]

 
19...................................  Mar-Jan................  19.1 or more...........  Mar-Feb.
20 and higher........................  Mar-Feb.
----------------------------------------------------------------------------------------------------------------

    Tables 2 and 3 compare the current GB AM schedules with the new 
Framework 23 schedules. The GB AM schedule is still complex because the 
extent of the closure period depends on whether or not Closed Area II 
Scallop Access Area (CAII) is open in the FY following a GB sub-ACL 
overage. In general, the major difference is that the current GB AM 
closures begin in the fall, when GB YTF catch rates are highest, 
followed by the winter months. The updated GB schedule will begin the 
closures at a time of year when scallop meat weights are lowest, thus 
impacts on the scallop resource and fishery should be lower compared to 
closing the area beginning in March through the spring and summer when 
scallop meat weights are larger. Similar to the Framework 23 SNE/MA 
schedule, all closures will occur in the same FY.

     Table 2--Comparison of Current GB AM Schedule and the Framework 23 Schedule for Years When CAII Is Open
----------------------------------------------------------------------------------------------------------------
                      Current AM schedule                                           Proposed
----------------------------------------------------------------------------------------------------------------
           Percent overage                    LA closure            Percent overage             LA closure
----------------------------------------------------------------------------------------------------------------
1....................................  Mar-May................  3 or less..............  Oct-Nov.
2-24.................................  Mar-June...............  3.1-14.................  Sept-Nov.
25-38................................  Mar-July...............  14.1-16................  Sept-Jan.
39-57................................  Mar-Aug................  16.1-39................  Aug-Jan.
58-63................................  Mar-Sept...............  39.1-56................  Jul-Jan.
64-65................................  Mar-Oct................  Greater than 56........  Mar-Feb.
66-68................................  Mar-Nov.
69...................................  Mar-Dec.
70 and higher........................  Mar-Feb.
----------------------------------------------------------------------------------------------------------------


    Table 3--Comparison of Current GB AM Schedule and the Framework 23 Schedule for Years When CAII Is Closed
----------------------------------------------------------------------------------------------------------------
                      Current AM schedule                                           Proposed
----------------------------------------------------------------------------------------------------------------
           Percent overage                    LA closure            Percent overage             LA closure
----------------------------------------------------------------------------------------------------------------
1....................................  Mar-May................  1.9 or less............  Sept-Nov.
2....................................  Mar-June...............  2.0-2.9................  Aug-Jan.
3....................................  Mar-July...............  3.0-3.9................  Mar, and Aug-Feb.
4-5..................................  Mar-Aug................  4.0-4.9................  Mar, and Jul-Feb.
6 and higher.........................  Mar-Feb................  5.0-5.9................  Mar-May, and Jul-Feb.
                                                                6.0 or greater.........  Mar-Feb.
----------------------------------------------------------------------------------------------------------------

2. Re-Evaluating AM Determination Mid-Year
    This action modifies the YTF AM regulations by allowing NMFS to re-
examine the implementation of an AM once the FY has ended and all data 
are available. After the end of a given FY, if available end-of-year 
data results in different projected YTF catch levels than those that 
determined the initial announcement of any AM triggering (e.g., the 
extent of the estimated overage was higher or lower than originally 
estimated, or that an AM should or should not have been triggered), 
NMFS will adjust the AM determination to reflect the best information 
available. Currently the only sub-ACLs allocated to the scallop fishery 
are for SNE/MA YTF and GB YTF, but the Council's intent is for this 
flexibility to apply to any species' sub-ACL, should they be 
implemented in the scallop fishery in the future.
    On or around January 15 of each year, the Regional Administrator is 
required to determine if the bycatch sub-ACLs are projected to be 
exceeded for that FY. If a sub-ACL is exceeded, a closure will be 
implemented in the following FY based on the overage schedule specified 
in this final rule. Several months after an FY is complete, a final 
estimate of YTF catch in the scallop fishery will be completed when all 
observer and scallop catch data are available. The timing of the final 
YTF year-end estimate is ultimately based on the availability of the 
observer data for a given FY. Ideally, observer data in open areas will 
be available 90 days after the completion of an observed trip. As such, 
the earliest month that the complete FY observer data would be 
available is likely June of the following FY. If the final estimate of 
YTF catch differs from the original estimate, this action gives the 
Regional Administrator the authority to revise the AM for the YTF sub-
ACLs based on the final estimates. Due to the timing of the current 
AMs, there may not always be an opportunity to adjust AMs if the 
seasonal closure has already occurred during that FY, but the intent is 
to be more flexible to incorporate updated information when possible. 
This action does not give the

[[Page 20731]]

Regional Administrator authority to impose AMs outside the scope of 
approved measures.
    In November 2011, the Council adopted Framework Adjustment 47 
(Framework 47) to the Northeast (NE) Multispecies FMP. Under Framework 
47, the YTF AMs applicable to the scallop fishery would only be 
triggered if either the entire YTF ACL for a given stock area (SNE/MA 
or GB) is exceeded, or the scallop fishery exceeds its ACL by 50 
percent or more. For example, if the entire YTF ACL for SNE/MA is 
exceeded in a given FY, and the scallop fishery exceeded its sub-ACL by 
1.5 percent, an AM would be triggered for the following scallop FY 
based on the new Framework 23 schedule (i.e., a portion of SNE/MA would 
close in March and April). However, if the scallop fishery exceeded its 
sub-ACL by 1.5 percent but the total ACL for SNE/MA was not exceeded, 
no AM would be triggered in the scallop fishery for the following FY 
(i.e., an AM would only be triggered if the scallop FY exceeded its 
sub-ACL by 150 percent). The proposed rule for Framework 47 (77 FR 
18179) published in the Federal Register on March 27, 2012, with the 
public comment period ending on April 11, 2012. NMFS anticipates that 
Framework 47, if approved, would be effective in May 2012.

Modifications to the NGOM Management Program

    To address some concerns regarding the management of the NGOM, this 
action allows federally permitted NGOM vessels to declare a state 
waters-only trip within the NGOM and not have those landings applied to 
the Federal NGOM TAC. If the vessel decides to fish exclusively in 
state waters within the NGOM area (i.e., MA, NH, and ME state waters), 
on a trip-by-trip basis, the scallop catch from state water only trips 
will not be applied against the Federal NGOM TAC. On a trip-by-trip 
basis, each NGOM vessel can decide which area it is going to fish in 
(i.e., Federal or state NGOM trip). A NGOM vessel may still fish in 
both state and Federal waters on a single trip, but that vessel will 
need to declare a Federal trip before leaving, and the entire catch 
from that trip will be applied to the Federal TAC, even if some of it 
was harvested in state waters.
    Currently, NGOM and IFQ vessels that declare NGOM trips must have 
all landings applied to the Federal TAC, regardless of whether or not 
they were fishing in state or Federal waters of the NGOM. Although this 
action makes adjustments for NGOM-permitted vessels, the Council did 
not include a similar provision for IFQ vessels that fish in the NGOM. 
As a result, IFQ vessels will continue to have all of their landings 
applied to the NGOM TAC, as well as their IFQ allocations, when fishing 
in Federal or state waters within the NGOM.
    Once the Federal TAC is closed, all federally permitted scallop 
vessels (i.e., LA, IFQ, and NGOM) are prohibited from fishing in any 
part of the NGOM until the next FY, unless they permanently relinquish 
their Federal NGOM permits and fish exclusively in state waters. This 
action does not change this provision for any scallop vessel, including 
NGOM vessels. NGOM vessels cannot declare state-only NGOM trips after 
the effective date of the Federal NGOM closure.
    To date, the annual NGOM TAC of 70,000 lb (31.75 mt) has not been 
fully harvested in any FY, and most NGOM landings come from vessels 
fishing in state waters. Framework 23 does not change the NGOM hard TAC 
of 70,000 lb (31.75 mt). The Council will reevaluate the NGOM TAC in 
the next framework adjustment that will set the specifications for FYs 
2013 and 2014.
    Although this action applies to all NGOM permitted vessels, the 
ability for such vessels to fish in state waters within the NGOM (i.e., 
ME, NH, MA state waters) depends on whether or not such vessels have 
the necessary state permits to do so. In addition, NGOM permit holders 
still have to abide by the more restrictive possession limit of either 
their state or Federal NGOM scallop permit. This action does not exempt 
vessels from their Federal possession limit when fishing in state 
waters of the NGOM. To be exempt from Federal scallop possession 
limits, a state would have to apply for such exemption through the 
scallop state waters exemption program.

Adjustments to VMS Trip Notifications for Scallop Vessels

    This action implements a measure that changes the current VMS trip 
declaration requirement for scallop vessels only, allowing them to 
declare a scallop trip anywhere shoreward of the VMS Demarcation Line, 
rather than from a designated port. Under current regulations, vessels 
that are involved in VMS fisheries (e.g., vessels with scallop, 
monkfish, multispecies, surfclam/quahog, and herring permits) must make 
their VMS trip declarations from inside a port. This action adjusts 
this process by allowing scallop vessels the authority to declare their 
scallop trips outside of a designated port, prior to crossing the VMS 
Demarcation Line and fishing, but does not change the trip declaration 
requirements for any other fishery. The Council's rationale for this 
alternative is to improve safety by eliminating the requirement that 
sometimes results in scallop vessels steaming into unfamiliar ports to 
declare their scallop trips before being able to fish. The Council may 
choose to address this issue in other VMS fisheries in future actions 
for those FMPs, and NMFS recommends that the Council discuss this 
further for other FMPs in order to be consistent, where possible, when 
addressing safety issues across all fisheries requiring VMS.
    The Council has implemented this action for LA, LAGC IFQ, and LAGC 
NGOM vessels, although many of these scallop-permitted vessels will 
likely continue to declare from port, regardless of the option to do 
otherwise. The only vessels that will likely take advantage of this 
increased flexibility in trip declarations are the LA vessels declaring 
scallop DAS trips for fishing grounds that are far from their home 
port. These trips are what most commonly require a vessel to go into an 
unfamiliar port to declare into the DAS program because DAS begin to 
accrue once a vessel crosses to the seaward side of the VMS Demarcation 
Line and it is not possible, safe, or practicable to remain inside the 
VMS Demarcation Line throughout the steam to the fishing grounds. 
Because the current estimate of landings-per-unit-effort (LPUE) is 
calculated using DAS charged, this action does not change how LPUE is 
estimated, and increased catch is not expected.

Other Clarifications and Modifications

    This action includes several revisions to the regulatory text to 
address text that is duplicative and unnecessary, outdated, unclear, or 
otherwise could be improved through revision. For example, there are 
terms and cross references in the current regulations that are now 
inaccurate due to the regulatory adjustments made through Amendment 15 
rulemaking (i.e., references to ``TAC'' in some cases should now refer 
to ``annual catch limits (ACLs)''). NMFS revises the regulations to 
clarify the terminology intended by Amendment 15 to the FMP (76 FR 
43746, July 21, 2011), and to provide more ease in locating these 
regulations by updating cross references.
    This action also clarifies the intent of certain regulations. For 
example, the VMS regulations are clarified in Sec.  648.10 to more 
clearly indicate the reporting requirements for various aspects of the 
scallop fishery (e.g., pre-landing notification requirements and state 
water exemption trip declaration requirements), to reflect the 
instructions

[[Page 20732]]

currently available through on-board VMS units. Additionally, there are 
currently prohibitions in Sec.  648.14 that imply that NGOM and 
incidental scallop vessels may retain more scallops than their 
allowable possession limit if they are assigned industry-funded 
observers during scallop trips. This text is unnecessary and confusing, 
because NGOM and incidental scallop vessels are not part of the scallop 
industry-funded observer program, and therefore would not be assigned 
such observers. As such, NMFS removes these references from the 
regulations. NMFS also clarifies how LAGC vessels are charged fees by 
observer providers in Sec.  648.14, since such an explanation exists 
for LA vessels. A restriction on transferring IFQ in Sec.  
648.53(h)(5)(iii) is also clarified to allow vessels to complete 
multiple IFQ transfers during the course of a FY, as long as the 
transfers are for a portion of the IFQ and do not exceed the total 
yearly allocation. NMFS received some applications for permanent 
transfers of 100 percent of a vessel's IFQ in the same FY that IFQ was 
already leased from the same vessel. While this activity remains 
prohibited because transfers of allocation percentage is effectively a 
transfer of pounds, the restriction was not intended to prevent someone 
from completing multiple transfers of portions of their IFQ. As a 
result, the regulations are clarified to indicate that such multiple 
IFQ transfers are possible during a single FY.
    NMFS also removes outdated text regarding LAGC quarterly TACs, 
which ceased to exist after the IFQ program was implemented in FY 2010, 
and references to the CAII rotational management schedule, which was 
intended to be removed in the rulemaking for Framework 22, along with 
the schedules for the other GB access areas. NMFS makes these changes 
consistent with section 305(d) of the Magnuson-Stevens Act.
    NMFS also changes, pursuant to its authority under section 305(d) 
of the Magnuson-Stevens Act, the coordinates of the Closed Area I (CAI) 
access area and the CAI North and South essential fish habitat (EFH) 
areas. These coordinates were initially developed through Framework 16 
to the FMP (69 FR 63460, November 2, 2004) and were implemented through 
Amendment 15 for FY 2011. During the course of FY 2011, vessels fishing 
in the CAI access area discovered that the new coordinates for the 
access area created a western boundary that is \1/4\ of a mile (0.4 km) 
to the east of the CAI western boundary, described in Sec.  
648.81(a)(1) as the line extending between the points CI1 (41[deg]30' N 
lat.; 69[deg]23' W long.) and CI2 (40[deg]45' N lat.; 68[deg]45' W 
long.). However, the access area was designed to cover the whole middle 
portion of CAI and extend out to the CAI western boundary. In reviewing 
the coordinates, NMFS found that the western coordinates for the CAI 
access area were established using imprecise matching of coordinates to 
the CAI western boundary line. NMFS updates these coordinates in the 
regulations to extend the western boundary of CAI. To avoid any 
confusion on intent, in the case that various mapping software used by 
the industry or NOAA's Office of Law Enforcement provide slightly 
different results, NMFS also clarifies that the western boundary of the 
CAI access area is the same as the western boundary of CAI that lies 
between the two western-most coordinates of the CAI access area. Since 
these two coordinates also are included in the coordinates of the CAI 
North and CAI South EFH closed areas, NMFS changes those EFH area 
coordinates as well.
    Finally, although this does not affect the current regulations, 
NMFS clarifies an error in table 3 of the final rule to Framework 22 
(76 FR 43774; July 21, 2011). The scallop sub-ACL values of YTF in GB 
and SNE/MA were mistakenly reversed in this table and should have 
stated that the FY 2011 sub-ACLs in GB and SNE/MA are 200.8 mt and 82 
mt, respectively, and the FY 2012 sub-ACLs in GB and SNE/MA are 307.5 
mt and 127 mt, respectively. The regulations already indicate the 
correct values for these FYs, so this action makes no regulatory 
changes due to this error.

Comments and Responses

    NMFS received three comment letters in response to the proposed 
rule from: A representative from Nordic Fisheries, a family-owned 
company that runs out of New Bedford, MA; the Fisheries Survival Fund 
(FSF), writing on behalf of full-time limited access scallop fleet 
members; and Oceana, a non-profit organization focused on ocean-related 
environmental issues. Six relevant issues relating to the proposed 
Framework 23 measures were raised; responses are provided below. NMFS 
may only approve, disapprove, or partially approve measures in 
Framework 23, and cannot substantively amend, add, or delete measures 
beyond what is necessary under section 305(d) of the MSA to discharge 
its responsibility to carry out such measures.
    Comment 1: A representative of Nordic Fisheries generally supports 
the proposed measures in Framework 23, but commented that the final 
rule should mention that the TDD requirement meets RPM<greek-i>2 and 
associated T/C of the 2008 Biological Opinion as an appropriate gear 
modification for a scallop dredge to reduce the capture of sea turtles.
    Response 1: Based on its Endangered Species Act Section 7 
consultation on the proposed Framework 23 measures, NMFS agrees that 
the TDD measures support the RPM<greek-i>2 and T/C<greek-i>2 of the 
2008 Biological Opinion and has stated this in the preamble to this 
final rule.
    Comment 2: FSF commented in support of the proposed measures, and 
expressed their satisfaction with industry, Council, and NMFS 
coordination on regulatory language describing the TDD requirement. 
However, FSF continue to note their opinion that the TDD requirement 
should remove the need for ``area closures and other fishery 
restrictions implemented as RPMs for the scallop fishery.''
    Response 2: The RPMs and implementing T/Cs included in a Biological 
Opinion are non-discretionary actions that must be implemented. The 
2008 Biological Opinion included a number of RPMs to minimize 
incidental take of sea turtles, including RPMs that are both gear-based 
and effort-based. NMFS assumes that FSF's comment regarding ``area 
closures and other fishery restrictions'' refers to the effort-based 
RPM, RPM<greek-i>1, which requires that NMFS limit the amount of 
allocated scallop fishing effort that can be used in the Mid-Atlantic 
during the time of year when sea turtle distribution overlaps with 
scallop fishing activity. The gear-based RPM (RPM<greek-i>2) requires 
that NMFS continue to investigate and implement, as appropriate, 
scallop gear modifications to reduce the capture of sea turtles and/or 
the severity of the interactions that occur. These two RPMs are 
distinct from one another: The TDD meets the requirements of gear-based 
RPM<greek-i>2, but that does not change the fact that RPM<greek-i>1 
must still be implemented. The current RPMs will be revisited when 
formal Section 7 consultation on the Scallop FMP is reinitiated and a 
new Biological Opinion is prepared, at which time all changes in the 
operation of the fishery that have occurred since the previous 
consultation in 2008 will be examined.
    Comment 3: FSF also expressed concern that the yellowtail flounder 
AMs should not be implemented the subsequent year of an overage, but 
rather should be implemented in Year 3 (i.e., if the overage occurs in 
2011, the accountability measure should be implemented in 2013). FSF 
noted that if

[[Page 20733]]

the estimation of yellowtail flounder bycatch is completed before the 
end of the fishing year, it is unlikely that all of the data will be 
accounted for in the mid-year projection. Since the scallop fleet is 
more active in the beginning of the fishing year, FSF commented that 
the bycatch rate is not likely to be accurate and will have to be 
adjusted mid-year, which could potentially lead to adverse consequences 
to the scallop fleet.
    Response 3: NMFS recognizes that the subsequent-year AMs are a 
concern to the industry, and is generally supportive of the Council 
considering modifications to the year the YTF AM in the scallop fishery 
would be implemented. However, as the preamble to the proposed rule for 
this action states, the measures in Framework 23 regarding YTF AMs do 
not give the Regional Administrator the authority to impose AMs outside 
the scope of the Council's approved measures. Neither Amendment 15 nor 
Framework 23 adopted measures to include Year 3 YTF AMs in the scallop 
fishery. However, the Council recently included such a measure to be 
considered in Framework Adjustment 24 (Framework 24) to the Scallop 
FMP, which is in the early stages of development.
    Comment 4: FSF also discussed the need to revisit imposing YTF AMs 
on the LAGC fleet.
    Response 4: NMFS agrees and continues to work with the Council on 
upcoming actions to address the LAGC fleet with regard to YTF AMs in 
the scallop fishery. The Council intends to address this issue in 
Framework 24.
    Comment 5: Oceana commented in general support of Framework 23 
measures, but specifically recommended changes to the proposed TDD 
measures. Oceana believes that the TDD should be implemented in the 
summer of 2012 and that the delay to 2013 is unnecessary and 
unsupported. Oceana also commented that the TDD should be required for 
a longer timeframe and should apply to all scallop vessels, but did not 
offer any argument to why the proposed measures are not sufficient.
    Response 5: When implementing gear modifications such as TDD, NMFS 
must take into account the amount of time it will take for the industry 
to come into compliance with the new requirement. The scallop industry 
stated during development of Framework 23 measures that gear 
manufacturers would not be able to make enough dredges in time for 
everyone to come into compliance during the 2012 season. It is 
therefore not reasonable to require the gear until 2013. The Council 
considered an alternative that would have required all scallop vessels 
to adhere to the TDD requirement, but ultimately did not adopt that 
measure due to concerns that requiring TDDs on smaller LAGC vessels may 
not be economically feasible. Although sea turtle interactions in the 
Mid-Atlantic scallop fishery may occur in November when TDDs are not 
required, the adopted timeframe of May through October is still 
expected to have positive impacts on sea turtles. This time period 
includes all the months when observed takes have occurred in the 
scallop dredge fishery (June through October), and also includes May to 
account for the fact that turtles are expected to be in that area based 
upon best available data. In addition, although the TDD requirement is 
for vessels to use this gear for 6 months, it is likely that many 
vessels will choose to use this gear for longer time periods, perhaps 
even year-round (i.e., If they fish in the Mid-Atlantic primarily and 
do not want to bother switching back to the standard commercial dredge 
after the TDD timeframe). Therefore, the timeframe is reasonably 
expected to have the intended benefit for sea turtles without unduly 
restricting scallop vessels, and is consistent with the 2008 Biological 
Opinion.
    Comment 6: Oceana also commented that NMFS should analyze annually 
the effectiveness of the TDD and promote future research to monitor its 
impacts on the fishery and sea turtle interactions. In addition, Oceana 
requested that Framework 23 implement a requirement for the Limited 
Access bottom trawl fleet to use Turtle Excluder Devices (TED). 
Independent of Framework 23, NMFS is considering measures to address 
sea turtle takes in the Mid-Atlantic trawl fisheries.
    Response 6: Analyzing the TDDs effectiveness is a requirement of 
the 2008 Biological Opinion. As such, we intend on continuing to 
evaluate the effectiveness of gear modifications used in the scallop 
fishery and other measures designed to protect sea turtles, as needed. 
Oceana's request to implement a TED requirement for the LA bottom trawl 
fleet was not proposed by Framework 23 and, therefore, is beyond the 
scope and purpose of this action.

Changes From Proposed Rule to Final Rule

    In Sec.  648.14(i)(2)(ii)(B)(3) and Sec.  648.51(b)(5)(ii), the TDD 
regulations were clarified to indicate that the TDD will not be 
required until May 1, 2013.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is consistent with the national standards and other 
provisions of the MSA and other applicable laws.
    The Office of Management and Budget has determined that this rule 
is not significant according to Executive Order 12866.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has completed a final regulatory flexibility analysis (FRFA) in 
support of Framework 23 in this final rule. The FRFA consists of and 
incorporates the IRFA, the relevant analyses and summaries thereof 
prepared for Framework 23, and the following discussion. This FRFA 
describes the economic impact that this final rule, along with non-
adopted alternatives, will have on small entities. A copy of the IRFA, 
the RIR, and the EA are available upon request (see ADDRESSES).

Statement of Objective and Need

    This action implements four specific management measures applicable 
to the scallop fishery for FY 2012 and beyond. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained in Framework 23 and in the preambles of the proposed and 
final rules, and are not repeated here.

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

    No public comments were received in response to the IRFA summary in 
the proposed rule or the economic impacts of these measures more 
generally on small businesses. Summaries of the public comments and 
NMFS' responses are provided in the ``Comments and Responses'' section 
of this final rule.

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

    For the purposes of the RFA, the Small Business Administration 
(SBA) 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. All of the vessels in the 
Atlantic sea scallop fishery are considered small business entities 
because all of them grossed less than $3 million according to the 
dealer's data for

[[Page 20734]]

FYs 1994 to 2010. In FY 2010, total average revenue per full-time 
scallop vessel was just over $1.2 million, and total average scallop 
revenue per LAGC vessel was just under $120,000. The IRFA for this and 
prior Scallop FMP actions do not consider individual entity ownership 
of multiple vessels. More information about common ownership is being 
gathered, but the effects of common ownership relative to small versus 
large entities under the RFA is still unclear and will be addressed in 
future analyses.
    The Office of Advocacy at the Small Business Association (SBA) 
suggests two criteria to consider in determining the significance of 
regulatory impacts; namely, disproportionality and profitability. The 
disproportionality criterion compares the effects of the regulatory 
action on small versus large entities (using the SBA-approved size 
definition of ``small entity''), not the difference between segments of 
small entities. Because Framework 23 estimates that no individual 
vessel grosses more than $3 million in any FY from 1994 through 2010, 
all permit holders in the sea scallop fishery were considered small 
business entities for the purpose of this analysis. Therefore, it is 
not necessary to perform the disproportionality assessment to compare 
the effects of the regulatory actions on small versus large entities. A 
summary of the economic impacts relative to the profitability criterion 
is provided below.
    The measures contained in this final rule affect vessels with LA 
and LAGC scallop permits. The Framework 23 document from the Council 
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 (i.e., 
vessels that receive annual scallop allocations that are 40 percent of 
what is allocated to full-time vessels, based on the permit eligibility 
criteria established through Amendment 4 to the Scallop FMP) LA permits 
in the sea scallop fishery. No vessels were issued occasional scallop 
permits (i.e., vessels that receive annual scallop allocations that are 
8.33 percent of what is allocated to full-time vessels, based on the 
permit eligibility criteria established through Amendment 4 to the 
Scallop FMP). In FY 2010, the first year of the LAGC IFQ program, 333 
active IFQ (including IFQ permits issued to vessels with a LA scallop 
permit), 122 NGOM, and 285 incidental catch permits were issued. Since 
all scallop permits are limited access, vessel owners only cancel 
permits if they decide to stop fishing for scallops on the permitted 
vessel permanently. 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 the decline would likely be less than 10 permits 
per year.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action contains no new collection-of-information, reporting, 
or recordkeeping requirements. It does not duplicate, overlap, or 
conflict with any other Federal law.

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

    A summary of the economic impacts of adopted and alternative 
measures is provided below. A detailed analysis of the economic impacts 
can be found in Section 5.4 of the Framework 23 document (see 
ADDRESSES). All economic values are presented in terms of 2010 dollars.
    In summary, in the short-term, the aggregate economic impact of 
this action on small businesses could range from a low negative to low 
positive, depending on the extent that positive impacts of the measures 
outweigh the costs of TDD requirement. These measures are not expected 
to have significant impacts on the viability of the vessels, especially 
in a highly profitable industry like the scallop fishery. Over the 
long-term, Framework 23 is expected to have positive economic impacts 
for the participants of the scallop fishery and related businesses. 
This action is not expected to have a considerable adverse impact on 
the net revenues and profits of the majority of the scallop vessels in 
the short and the medium term.

Economic Impacts of the Final Action

    The following describes all of the alternatives considered by the 
Council.
1. Requirement To Use a TDD
    This action implements a requirement for some scallop vessels to 
use a TDD from May 1 through October 31 in waters west of 71[deg] W 
long. This requirement is applicable to all LA vessels (regardless of 
permit category or dredge size) and to those LAGC vessels that fish 
with a dredge(s) that has a width of 10.5 ft (3.2 m) or greater. The 
Council estimates that the cost of a new dredge plus the cost of 
freight would be about $5,000 for a standard dredge, and $2,500 to 
$3,000 for smaller dredges. The cost of buying a dredge and the freight 
cost will be a very small proportion (1 to 2 percent) of the average 
scallop revenues per LA vessel, even when the maximum estimate of costs 
is used. For an average LAGC vessel that uses only one dredge, the cost 
could be small, as well, amounting to about 2 percent of scallop 
revenue. Alternatively, for some vessels that use two dredges, the cost 
of buying and installing the dredges could be higher. Some of these 
vessels could choose to fish during times and in areas for which a TDD 
is not required.
    The Council considered two other alternatives regarding which 
vessels would be required to use a TDD: One would have required the TDD 
for all LA vessels and no LAGC vessels, and thus would not have any 
adverse impacts on the LAGC IFQ vessels. The other non-selected 
alternative would have required the use of TDD for all vessels, 
including all LA and LAGC IFQ vessels, and would have had negative 
impacts on some LAGC IFQ vessels that use smaller dredges. There are 
some short-term costs associated with buying and installing TDDs under 
all alternatives, but these costs are not large and are not expected to 
have adverse impacts on the financial viability of small business 
entities. Indirect positive economic benefits over the medium to long 
term are expected to outweigh these costs under the adopted measure, 
particularly because it exempts LAGC vessels that use small dredges.
    The option to have the TDD be required west of 71[deg] W long. 
covers the majority of areas the scallop fishery and expected turtle 
interactions in the Mid-Atlantic overlap and excludes GB, where 
interactions with turtles are rare. This adopted measure minimizes the 
economic impacts for scallop vessels that fish solely in GB east of 
71[deg] W long. and those that fish in the Gulf of Maine. The adopted 
measure exempts LAGC vessels with dredges less than 10.5 ft (3.2 m) in 
width from TDD requirement, mitigating some of these negative impacts 
on the smaller boats fishing in those areas. The only other location 
option related to the TDD requirement was the area used to set effort 
limitations in Framework 22, which is the greatest area of overlap in 
the

[[Page 20735]]

distribution of scallop fishing gear and sea turtles, with the 
exception of waters due south of Rhode Island. Thus, the adopted 
location option excludes those areas that LAGC vessels are active, and 
minimizes the negative economic impacts of TDD requirement on those 
vessels. Exempting LAGC vessels that use a dredge less than 10.5 ft 
(3.2 m) wide mitigates the impacts of the adopted boundary option and 
minimizes the differences between the impacts of the two location 
options considered.
    Based on research indicating that using a TDD is not expected to 
have negative impacts on scallop landings, the season for the TDD 
requirement will probably have marginal economic impacts on the fishery 
overall. LA vessels are unlikely to change dredges during the year, 
once they are required to operate with a TDD during a part of the year. 
Therefore, the relative difference between the adopted season option 
(May 1 through October 31) and other non-selected options (i.e., May 1 
through November 1, or June 1 through October 31) is likely to have 
only negligible impacts on these vessels. The difference between the 
season options could impact LAGC IFQ vessels relatively more than the 
LA vessels, but exempting LAGC IFQ vessels that use dredges less than 
10.5 ft (3.2 m) wide prevents the adopted measure from negatively 
affecting smaller vessels. The increase in costs could also be 
minimized to some degree by leasing quota to LAGC IFQ vessels that fish 
in other areas. The shortest season considered by the Council (June 
through October) would have had the least impacts, and the longest 
considered season option (May through November) would have had the 
largest impact on vessels. The adopted season option maximizes the 
benefits of reducing the impacts on turtles, while not impacting a 
large proportion of scallop landings.
    The adopted implementation date of the TDD requirements, 1 year 
after Framework 23 is implemented (i.e., May 2013, if Framework 23 is 
implemented in March 2012), allows manufacturers enough time to build 
dredges and gives vessels time to fish with the new dredge before the 
TDD requirement begins. A shorter period for implementation, such as 
the non-selected options for 90 days and 180 days after Framework 23's 
implementation, would not be feasible because so many dredges need to 
be built and it may not be possible to have all dredges manufactured in 
time. Overall, there are no other alternatives that would generate 
higher economic benefits for the participants of the scallop fishery.
2. Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs
    This action revises the YTF seasonal closure AM schedules in both 
GB and SNE/MA such that the closures will be during months with the 
highest YTF catch rates when an overage occurs, rather than beginning 
at the start of the FY and running for consecutive months under No 
Action. Overall, these modifications are not expected to have large 
impacts on scallop vessels, given that only a small percentage of LA 
scallop landings took place in those areas. Because the revised closure 
schedules include the winter months, they will shift effort to seasons 
when the meat weights are larger, benefiting the scallop resource and 
increasing landings and overall economic benefits for the scallop 
vessels in the medium to long term. There are no other alternatives 
that would generate higher economic benefits for the participants of 
the scallop fishery.
    The action to re-evaluate the AM determination mid-year, thus 
allowing for more flexibility in determining the appropriate AM 
seasonal closure length, is positive for LA scallop vessels compared to 
No Action. Although adjusting the FY to which the AMs would apply could 
result in higher benefits to the scallop fishery (e.g., if YTF AMs were 
triggered the year after the overage occurred), these measures were not 
considered by the Council and can be re-examined in a future framework 
action. Thus, given the two alternatives considered by the Council, the 
selected action generates the higher economic benefits for the 
participants of the scallop fishery.
3. Modifications to the NGOM Management Program
    This action allows all vessels with a Federal NGOM permit to fish 
exclusively in state waters, on a trip-by-trip basis, without the 
scallop catch from exclusive state water trips counted against the 
Federal NGOM TAC. This change is not expected to have any significant 
impacts under the current resource conditions on landings and revenues 
from this area. However, if the scallop resource abundance and landings 
within the State of Maine's waters increase in the future, this action 
could prevent a reduction in landings from federally permitted NGOM 
vessels fishing in the NGOM. This action could potentially have 
positive economic impacts on the vessels that fish both in the state 
and Federal waters. In addition, this action will keep the Federal NGOM 
hard-TAC at 70,000 lb (31.74 mt), which will have a positive economic 
impact on the participants of the NGOM scallop fishery. The only other 
TAC alternative would have lowered the Federal TAC to 31,000 lb (14.06 
mt) to prevent excess fishing in the NGOM above potentially sustainable 
levels. Although the selected TAC alternative, if continued over the 
long-term, could result in reduced landings and revenues for the NGOM 
fishery if effort in Federal waters increases substantially, given the 
present lack of effort in the Federal portion of the NGOM, it is 
unlikely that keeping the TAC at this level will cause near-term 
problems. In addition, the Council will re-evaluate the NGOM TAC in the 
next framework adjustment that will set the specifications for FYs 2013 
and 2014. Thus, there are no alternatives that would generate higher 
economic benefits for the participants of the scallop fishery.
4. Change to When a Scallop Trip Can Be Declared Through VMS
    This action allows a vessel to declare into the scallop fishery 
shoreward of the VMS Demarcation Line rather than from a designated 
port, enabling the vessel to reduce steaming time to scallop fishing 
grounds and decease its fuel and oil costs. Therefore, this 
modification will have positive economic impacts on scallop vessels and 
small business entities. The only other alternative considered by the 
Council was No Action and, as such, there are no alternatives that 
would generate higher economic benefits for the participants of the 
scallop fishery.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency will publish 
one or more guides to assist small entities in complying with the rule, 
and will designate such publications as ``small entity compliance 
guides.'' The agency will explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
a small entity compliance guide (the guide) was prepared. Copies of 
this final rule are available from the Northeast Regional Office, and 
the guide (i.e., permit holder letter) will be sent to all holders of 
permits for the scallop fishery and available online. The guide and 
this final rule will be available upon request.

[[Page 20736]]

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 2, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.10, paragraphs (e)(5)(i), (e)(5)(ii), (f) introductory 
text, (f)(1), (f)(2), (f)(3), (f)(4)(ii), (f)(5)(i)(A), (g)(1), (h)(1) 
introductory text, and (h)(8) are revised, and (g)(3)(iii) is added to 
read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owner/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 Access Area 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 
Access Area 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, unless the vessel is a scallop vessel and is exempted, as 
specified in paragraph (f) of this section.
* * * * *
    (f) Atlantic sea scallop vessel VMS notification requirements. Less 
than 1 hr prior to leaving port, the owner or authorized representative 
of a scallop vessel that is required to use VMS as specified in 
paragraph (b)(1) of this section must notify the Regional Administrator 
by transmitting the appropriate VMS code that the vessel will be 
participating in the scallop DAS program, Area Access Program, LAGC 
scallop fishery, or will be fishing outside of the scallop fishery 
under the requirements of its other Federal permits, or that the vessel 
will be steaming to another location prior to commencing its fishing 
trip by transmitting a ``declared out of fishery'' VMS code. If the 
owner or authorized representative of a scallop vessel declares out of 
the fishery for the steaming portion of the trip, the vessel cannot 
possess, retain, or land scallops, or fish for any other fish. Prior to 
commencing the fishing trip following a ``declared out of fishery'' 
trip, the owner or authorized representative must notify the Regional 
Administrator by transmitting the appropriate VMS code, before first 
crossing the VMS Demarcation Line, that the vessel will be 
participating in the scallop DAS program, Area Access Program, or LAGC 
scallop fishery. VMS codes and instructions are available from the 
Regional Administrator upon request.
    (1) IFQ scallop vessels. An IFQ scallop vessel that has crossed the 
VMS Demarcation Line specified under paragraph (a) of this section is 
deemed to be fishing under the IFQ program, unless prior to the vessel 
leaving port, the vessel's owner or authorized representative declares 
the vessel out of the scallop fishery (i.e., agrees that the vessel 
will not possess, retain, or land scallops while declared out of the 
fishery) by notifying the Regional Administrator through the VMS. If 
the vessel has not fished for any other fish (i.e., steaming only), 
after declaring out of the fishery, leaving port, and steaming to 
another location, the owner or authorized representative of an IFQ 
scallop vessel may declare into the IFQ fishery without entering 
another port by making a declaration before first crossing the VMS 
Demarcation Line. An IFQ scallop vessel that is fishing north of 
42[deg]20' N. lat. is deemed to be fishing under the NGOM scallop 
fishery unless prior to the vessel leaving port, the vessel's owner or 
authorized representative declares the vessel out of the scallop 
fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, 
and the vessel does not possess, retain, or land scallops while under 
such a declaration. After declaring out of the fishery, leaving port, 
and steaming to another location, if the IFQ scallop vessel has not 
fished for any other fish (i.e., steaming only), the vessel may declare 
into the NGOM fishery without entering another port by making a 
declaration before first crossing the VMS Demarcation Line.
    (2) NGOM scallop fishery. A NGOM scallop vessel is deemed to be 
fishing in Federal waters of the NGOM management area and will have its 
landings applied against the NGOM management area TAC, specified in 
Sec.  648.62(b)(1), unless:
    (i) Prior to the vessel leaving port, the vessel's owner or 
authorized representative declares the vessel out of the scallop 
fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, 
and the vessel does not possess, retain, or land scallops while under 
such a declaration. After declaring out of the fishery, leaving port, 
and steaming to another location, if the NGOM scallop vessel has not 
fished for any other fish (i.e., steaming only), the vessel may declare 
into the NGOM fishery without entering another port by making a 
declaration before first crossing the VMS Demarcation Line.
    (ii) The vessel has specifically declared into the state-only NGOM 
fishery, thus is fishing exclusively in the state waters portion of the 
NGOM management area.
    (3) Incidental scallop fishery. An Incidental scallop vessel that 
has crossed the VMS Demarcation Line on any declared fishing trip for 
any species is deemed to be fishing under the Incidental scallop 
fishery.
* * * * *
    (4) * * *
    (ii) Scallop Pre-Landing Notification Form for IFQ and NGOM 
vessels. Using the Scallop Pre-Landing Notification Form, a vessel 
issued an IFQ or NGOM scallop permit must report through VMS the amount 
of any scallops kept on each trip declared as a scallop trip, including 
declared scallop trips where no scallops were landed. In addition, 
vessels with an IFQ or NGOM permit must submit a Scallop Pre-Landing 
Notification Form on trips that are not declared as scallop trips, but 
on which scallops are kept incidentally. A limited access vessel that 
also holds an IFQ or NGOM permit must submit the Scallop Pre-Landing 
Notification Form only when fishing under the provisions of the 
vessel's IFQ or NGOM permit. VMS Scallop Pre-Landing Notification forms 
must be submitted no less than 6 hr prior to crossing the VMS 
Demarcation Line on the way back to port, and, if scallops will be 
landed, must include the vessel's captain/operator name, the

[[Page 20737]]

amount of scallop meats and/or bushels to be landed, the estimated time 
of arrival in port, the port at which the scallops will be landed, the 
VTR serial number recorded from that trip's VTR, and whether any 
scallops were caught in the NGOM. If the scallop harvest ends less than 
6 hr prior to landing, then the Scallop Pre-Landing Notification form 
must be submitted immediately upon leaving the fishing grounds. If no 
scallops will be landed, the form only requires the vessel's captain/
operator name, the VTR serial number recorded from that trip's VTR, and 
indication that no scallops will be landed. If the report is being 
submitted as a correction of a prior report, the information entered 
into the notification form will replace the data previously submitted 
in the prior report.
    (5) * * *
    (i) * * *
    (A) Notify the Regional Administrator, via their VMS, prior to each 
trip of the vessel under the state waters exemption program, that the 
vessel will be fishing exclusively in state waters; and
* * * * *
    (g) * * *
    (1) Unless otherwise specified in this part, or via letters sent to 
affected permit holders under paragraph (e)(1)(iv) of this section, the 
owner or authorized representative of a vessel that is required to use 
VMS, as specified in paragraph (b) of this section, unless exempted 
under paragraph (f) of this section, must notify the Regional 
Administrator of the vessel's intended fishing activity by entering the 
appropriate VMS code prior to leaving port at the start of each fishing 
trip.
* * * * *
    (3) * * *
    (iii) The vessel carries onboard a valid limited access or LAGC 
scallop permit, has declared out of the fishery in port, and is 
steaming to another location, pursuant to paragraph (f) of this 
section.
* * * * *
    (h) * * *
    (1) Less than 1 hr prior to leaving port, for vessels issued a 
limited access NE multispecies DAS permit or, for vessels issued a 
limited access NE multispecies DAS permit and a limited access monkfish 
permit (Category C, D, F, G, or H), unless otherwise specified in 
paragraph (h) of this section, or an occasional scallop permit as 
specified in this paragraph (h), and, prior to leaving port for vessels 
issued a limited access monkfish Category A or B permit, the vessel 
owner or authorized representative must notify the Regional 
Administrator that the vessel will be participating in the DAS program 
by calling the call-in system and providing the following information:
* * * * *
    (8) Regardless of whether a vessel's owner or authorized 
representative provides correct notification as required by paragraphs 
(e) through (h) of this section, a vessel meeting any of the following 
descriptions shall be deemed to be in its respective fishery's DAS or 
Scallop Access Area Program for the purpose of counting DAS or scallop 
access area trips/pounds, and, shall be charged DAS from the time of 
sailing to landing:
    (i) Any vessel issued a limited access scallop permit and not 
issued an LAGC scallop permit that possesses or lands scallops;
    (ii) A vessel issued a limited access scallop and LAGC IFQ scallop 
permit that possesses or lands more than 600 lb (272.2 kg) of scallops, 
unless otherwise specified in Sec.  648.60(d)(2);
    (iii) 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;
    (iv) 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;
    (v) 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; and
    (vi) 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).
* * * * *

0
3. In Sec.  648.11, paragraphs (g)(1) and (g)(5)(i)(A) 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 (a) 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.
* * * * *
    (5) * * *
    (i) * * *
    (A) Access Area trips. (1) For purposes of determining the daily 
rate for an observed scallop trip on a limited access vessel in a Sea 
Scallop Access Area when that specific Access Area's observer set-aside 
specified in Sec.  648.60(d)(1) has not been fully utilized, a service 
provider may charge a vessel owner for no more than the time an 
observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, or any portion of a 24-hr 
period, regardless of the calendar day. For example, if a vessel with 
an observer departs on July 1 at 10 p.m. and lands on July 3 at 1 a.m., 
the time at sea equals 27 hr, which would equate to 2 full ``days.''
    (2) For purposes of determining the daily rate in a specific Sea 
Scallop Access Area for an observed scallop trip on a limited access 
vessel taken after NMFS has announced the industry-funded observer set-
aside in that specific Access Area has been fully utilized, a service 
provider may charge a vessel owner for no more than the time an 
observer boards a vessel until the vessel disembarks (dock to dock), 
where ``day'' is defined as a 24-hr period, and portions of the other 
days would be pro-rated at an hourly charge (taking the daily rate 
divided by 24). For example, if a vessel with an observer departs on 
July 1 at 10 p.m. and lands on July 3 at 1 a.m., the time spent at sea 
equals 27 hr, which would equate to 1 day and 3 hr.
    (3) For purposes of determining the daily rate in a specific Sea 
Scallop Access Area for observed scallop trips on an LAGC vessel, 
regardless of the status of the industry-funded observer set-aside, a 
service provider may charge

[[Page 20738]]

a vessel owner for no more than the time an observer boards a vessel 
until the vessel disembarks (dock to dock), where ``day'' is defined as 
a 24-hr period, and portions of the other days would be pro-rated at an 
hourly charge (taking the daily rate divided by 24). For example, if a 
vessel with an observer departs on July 1 at 10 p.m. and lands on July 
3 at 1 a.m., the time spent at sea equals 27 hr, which would equate to 
1 day and 3 hr.
* * * * *

0
3. In Sec.  648.14,
0
a. Paragraphs (i)(1)(iii)(A)(1)(iv), (i)(1)(iv)(C), (i)(2)(ii)(B)(3), 
(i)(2)(iv)(A), (i)(3)(iii)(C), (i)(3)(iv)(B), (i)(3)(v)(B), 
(i)(4)(i)(C), (i)(4)(i)(D), (i)(4)(i)(E), (i)(4)(ii)(A), 
(i)(4)(iii)(A), (i)(5)(i), and (i)(5)(iii) are revised;
0
b. Paragraphs (i)(1)(iv)(E), (i)(2)(v)(C), (i)(2)(v)(D), (i)(3)(iv)(C), 
(i)(3)(iv)(D) and (i)(5)(iv) are added; and
0
c. Paragraphs (i)(1)(iii)(A)(1)(v) and (i)(1)(iii)(A)(2)(v) are removed 
and reserved.
    The revisions and additions read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (i) * * *
    (1) * * *
    (iii) * * *
    (A) * * *
    (1) * * *
    (iv) The scallops were harvested by a vessel that has been issued 
and carries on board an NGOM or IFQ scallop permit, and is properly 
declared into the NGOM scallop management area, and the NGOM TAC 
specified in Sec.  648.62 has been harvested.
* * * * *
    (iv) * * *
    (C) Purchase, possess, or receive for commercial purposes; or 
attempt to purchase or receive for commercial purposes; scallops from a 
vessel other than one issued a valid limited access or LAGC scallop 
permit, unless the scallops were harvested by a vessel that has not 
been issued a Federal scallop permit and fishes for scallops 
exclusively in state waters.
* * * * *
    (E) Fish for, possess, or retain scallops in Federal waters of the 
NGOM management area on a vessel that has been issued and carries on 
board a NGOM permit and has declared into the state waters fishery of 
the NGOM management area.
* * * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (3) After April 30, 2013, fail to comply with the turtle deflector 
dredge vessel gear restrictions specified in Sec.  648.51(b)(5), and 
turtle dredge chain mat requirements in Sec.  223.206(d)(11) of this 
chapter.
* * * * *
    (iv) * * *
    (A) Fish for, possess, or land scallops after using up the vessel's 
annual DAS allocation and Access Area trip allocations, or when not 
properly declared into the DAS or an Area Access program pursuant to 
Sec.  648.10, unless the vessel has been issued an LAGC scallop permit 
pursuant to Sec.  648.4(a)(2)(ii) and is lawfully fishing in a LAGC 
scallop fishery, unless exempted from DAS allocations as provided in 
state waters exemption, specified in Sec.  648.54.
* * * * *
    (v) * * *
    (C) If a limited access scallop vessel declares a scallop trip 
before first crossing the VMS Demarcation Line, but not necessarily 
from port, in accordance with Sec.  648.10(f), fail to declare out of 
the fishery in port and have fishing gear unavailable for immediate use 
as defined in Sec.  648.23(b), until declared into the scallop fishery.
    (D) Once declared into the scallop fishery in accordance with Sec.  
648.10(f), change its VMS declaration until the trip has ended and 
scallop catch has been offloaded.
* * * * *
    (3) * * *
    (iii) * * *
    (C) Declare into the NGOM scallop management area after the 
effective date of a notification published in the Federal Register 
stating that the NGOM scallop management area TAC has been harvested as 
specified in Sec.  648.62.
* * * * *
    (iv) * * *
    (B) Fail to comply with any requirement for declaring in or out of 
the LAGC scallop fishery or other notification requirements specified 
in Sec.  648.10(b).
    (C) If an LAGC scallop vessel declares a scallop trip shoreward of 
the VMS Demarcation Line, but not necessarily from port, in accordance 
with Sec.  648.10(f), fail to declare out of the fishery in port and 
have fishing gear unavailable for immediate use as defined in Sec.  
648.23(b), until declared into the scallop fishery.
    (D) Once declared into the scallop fishery in accordance with Sec.  
648.10(f), change its VMS declaration until the trip has ended and 
scallop catch has been offloaded.
    (v) * * *
    (B) Declare into or leave port for an area specified in Sec.  
648.59(b) through (d) after the effective date of a notification 
published in the Federal Register stating that the number of LAGC trips 
have been taken, as specified in Sec.  648.60.
* * * * *
    (4) * * *
    (i) * * *
    (C) Declare into the NGOM scallop management area after the 
effective date of a notification published in the Federal Register 
stating that the NGOM scallop management area TAC has been harvested as 
specified in Sec.  648.62.
    (D) Possess more than 100 bu (35.2 hL) of in-shell scallops seaward 
of the VMS Demarcation Line and not be participating in the Access Area 
Program, or possess or land per trip more than 50 bu (17.6 hL) of in-
shell scallops shoreward of the VMS Demarcation Line, unless exempted 
from DAS allocations as provided in Sec.  648.54.
    (E) Possess more than 50 bu (17.6 hL) of in-shell scallops, as 
specified in Sec.  648.52(d), outside the boundaries of a Sea Scallop 
Access Area by a vessel that is declared into the Access Area Program 
as specified in Sec.  648.60.
* * * * *
    (ii) * * *
    (A) Have an ownership interest in vessels that collectively are 
allocated more than 5 percent of the total IFQ scallop ACL as specified 
in Sec.  648.53(a)(5)(ii) and (iii).
* * * * *
    (iii) * * *
    (A) Apply for an IFQ transfer that will result in the transferee 
having an aggregate ownership interest in more than 5 percent of the 
total IFQ scallop ACL.
* * * * *
    (5) * * *
    (i) Declare into, or fish for or possess scallops outside of the 
NGOM Scallop Management Area as defined in Sec.  648.62.
* * * * *
    (iii) Fish for, possess, or land scallops in state or Federal 
waters of the NGOM management area after the effective date of 
notification in the Federal Register that the NGOM scallop management 
area TAC has been harvested as specified in Sec.  648.62.
    (iv) Fish for, possess, or retain scallops in Federal waters of the 
NGOM after declaring a trip into NGOM state waters.
* * * * *

0
4. In Sec.  648.51, paragraph (b)(1) is revised and paragraph (b)(5) is 
added to read as follows:


Sec.  648.51  Gear and crew restrictions.

* * * * *

[[Page 20739]]

    (b) * * *
    (1) Maximum dredge width. The combined dredge width in use by or in 
possession on board such vessels shall not exceed 31 ft (9.4 m) 
measured at the widest point in the bail of the dredge, except as 
provided under paragraph (e) of this section and in Sec.  648.60(g)(2). 
However, component parts may be on board the vessel such that they do 
not conform with the definition of ``dredge or dredge gear'' in Sec.  
648.2, i.e., the metal ring bag and the mouth frame, or bail, of the 
dredge are not attached, and such that no more than one complete spare 
dredge could be made from these component's parts.
* * * * *
    (5) Restrictions applicable to sea scallop dredges in the mid-
Atlantic--(i) Requirement to use chain mats. See Sec.  223.206(d)(11) 
of this chapter for chain mat requirements for scallop dredges.
    (ii) Requirement to use a turtle deflector dredge (TDD) frame--(A) 
Beginning May 1, 2013, and from May 1 through October 31 every year, 
any limited access scallop vessel using a dredge, regardless of dredge 
size or vessel permit category, or any LAGC IFQ scallop vessel fishing 
with a dredge with a width of 10.5 ft (3.2 m) or greater, that is 
fishing for scallops in waters west of 71[deg] W long., from the 
shoreline to the outer boundary of the Exclusive Economic Zone, must 
use a TDD. The TDD requires five modifications to the rigid dredge 
frame, as specified in paragraphs (b)(5)(ii)(A)(1) through 
(b)(5)(ii)(A)(5) of this section. See paragraph (b)(5)(ii)(E) of this 
section for more specific descriptions of the dredge elements mentioned 
below.
    (1) The cutting bar must be located in front of the depressor 
plate.
    (2) The angle between the front edge of the cutting bar and the top 
of the dredge frame must be less than or equal to 45 degrees.
    (3) All bale bars must be removed, except the outer bale (single or 
double) bars and the center support beam, leaving an otherwise 
unobstructed space between the cutting bar and forward bale wheels, if 
present. The center support beam must be less than 6 in (15.24 cm) 
wide. For the purpose of flaring and safe handling of the dredge, a 
minor appendage not to exceed 12 in (30.5 cm) in length may be attached 
to the outer bale bar;
    (4) Struts must be spaced 12 in (30.5 cm) apart or less from each 
other.
    (5) Unless exempted, as specified in paragraph (b)(5)(ii)(B) of 
this section, the TDD must include a straight extension (``bump out'') 
connecting the outer bale bars to the dredge frame. This ``bump out'' 
must exceed 12 in (30.5 cm) in length.
    (B) A limited access scallop vessel that uses a dredge with a width 
less than 10.5 ft (3.2 m) is required to use a TDD except that such a 
vessel is exempt from the ``bump out'' requirement specified in 
paragraph (b)(5)(ii)(A)(5) of this section. This exemption does not 
apply to LAGC vessels that use dredges with a width of less than 10.5 
ft (3.2 m) because such vessels are exempted from the requirement to 
use a TDD, as specified in paragraph (b)(5)(ii) of this section.
    (C) Vessels subject to the requirements in paragraph (b)(5)(ii) of 
this section transiting waters west of 71[deg] W long., from the 
shoreline to the outer boundary of the Exclusive Economic Zone, are 
exempted from the requirement to only possess and use TDDs, provided 
the dredge gear is stowed in accordance with Sec.  648.23(b) and not 
available for immediate use.
    (D) TDD-related definitions. (1) The cutting bar refers to the 
lowermost horizontal bar connecting the outer bails at the dredge 
frame.
    (2) The depressor plate, also known as the pressure plate, is the 
angled piece of steel welded along the length of the top of the dredge 
frame.
    (3) The top of the dredge frame refers to the posterior point of 
the depressor plate.
    (4) The struts are the metal bars connecting the cutting bar and 
the depressor plate.
* * * * *

0
5. In Sec.  648.53, paragraphs (b)(4)(vii), (h)(2) introductory text, 
(h)(2)(i), (h)(2)(ii)(C), (h)(2)(iv), (h)(3)(i)(A), and (h)(5)(iii) are 
revised to read as follows:


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

* * * * *
    (b) * * *
    (4) * * *
    (vii) If, prior to the implementation of Framework 22, a vessel 
owner exchanges an Elephant Trunk Access Area trip for another access 
area trip as specified in Sec.  648.60(a)(3)(ii) in fishing year 2011, 
the vessel that receives an additional Elephant Trunk Access Area trip 
will receive a DAS credit of 7.4 DAS in FY 2011, resulting in a total 
fishing year 2011 DAS allocation of 39.4 DAS (32 DAS plus 7.4 DAS). 
This DAS credit from unused Elephant Trunk Access Area trip gained 
through a trip exchange is based on a full-time vessel's 18,000-lb 
(8,165-kg) possession limit and is calculated by using the formula 
specified in paragraph (b)(4)(vi) of this section, but the DAS 
conversion is applied as a DAS credit in the 2011 fishing year, rather 
than as a DAS deduction in fishing year 2012. Similarly, using the same 
calculation with a 14,400-lb (6,532-kg) possession limit, part-time 
vessels will receive a credit of 5.9 DAS if the vessel owner received 
an additional Elephant Trunk Access Area trip through a trip exchange 
in the interim between the start of the 2011 fishing year and the 
implementation of Framework 22 and did not use it. If a vessel fishes 
any part of an Elephant Trunk Access Area trip gained through a trip 
exchange, those landings would be deducted from any DAS credit applied 
to the 2011 fishing year. For example, if a full-time vessel lands 
10,000 lb (4,536 kg) from an Elephant Trunk Access Area trip gained 
through a trip exchange, the pounds landed would be converted to DAS 
and deducted from the trip-exchange credit as follows: The 10,000 lb 
(4,536 kg) is first be multiplied by the estimated average meat count 
in the Elephant Trunk Access Area (18.4 meats/lb) and then divided by 
the estimated open area average meat count (also 18.4 meats/lb) and by 
the estimated open area LPUE for fishing year 2011 (2,441 lb/DAS), 
resulting in a DAS deduction of 4.1 DAS ((10,000 lb x 18.4 meats/lb)/
(18.4 meats/lb x 2,441 lb/DAS) = 4.1 DAS). Thus, this vessel would 
receive a reduced DAS credit in FY 2011 to account for the Elephant 
Trunk Access Area trip exchange of 3.3 DAS (7.4 DAS - 4.1 DAS = 3.7 
DAS).
* * * * *
    (h) * * *
    (2) Calculation of IFQ. The ACL allocated to IFQ scallop vessels, 
and the ACL allocated to limited access scallop vessels issued IFQ 
scallop permits, as specified in paragraphs (a)(4)(i) and (ii) of this 
section, shall be used to determine the IFQ of each vessel issued an 
IFQ scallop permit. Each fishing year, the Regional Administrator shall 
provide the owner of a vessel issued an IFQ scallop permit issued 
pursuant to Sec.  648.4(a)(2)(ii) with the scallop IFQ for the vessel 
for the upcoming fishing year.
    (i) Individual fishing quota. The IFQ for an IFQ scallop vessel 
shall be the vessel's contribution percentage as specified in paragraph 
(h)(2)(iii) of this section and determined using the steps specified in 
paragraphs (h)(2)(ii) of this section, multiplied by the ACL allocated 
to the IFQ scallop fishery, or limited access vessels issued an IFQ 
scallop permit, as specified in paragraphs (a)(4)(i) and (ii) of this 
section.
    (ii) * * *
    (C) Index to determine contribution factor. For each eligible IFQ 
scallop

[[Page 20740]]

vessel, the best year as determined pursuant to paragraph 
(a)(2)(ii)(E)(1) of this section shall be multiplied by the appropriate 
index factor specified in the following table, based on years active as 
specified in paragraph (a)(2)(ii)(E)(2) of this section. The resulting 
contribution factor shall determine its IFQ for each fishing year based 
on the allocation to general category scallop vessels as specified in 
paragraph (a)(4) of this section and the method of calculating the IFQ 
provided in paragraph (h) of this section.

------------------------------------------------------------------------
                      Years active                         Index factor
------------------------------------------------------------------------
1.......................................................           0.75
2.......................................................           0.875
3.......................................................           1.0
4.......................................................           1.125
5.......................................................           1.25
------------------------------------------------------------------------

* * * * *
    (iv) Vessel IFQ Example. Continuing the example in paragraphs 
(h)(1)(ii)(D) and (h)(1)(iii) of this section, with an ACL allocated to 
IFQ scallop vessels estimated for this example to be equal to 2.5 
million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg) 
(1.45 percent * 2.5 million lb (1,134 mt)).
* * * * *
    (3) * * *
    (i) * * *
    (A) Unless otherwise specified in paragraphs (h)(3)(i)(B) and (C) 
of this section, a vessel issued an IFQ scallop permit or confirmation 
of permit history shall not be issued more than 2.5 percent of the ACL 
allocated to the IFQ scallop vessels as described in paragraph 
(a)(4)(ii) of this section.
* * * * *
    (5) * * *
    (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. A vessel's total IFQ allocation can be transferred only 
once during a given fishing year. For example, a vessel owner can 
complete several transfers of portions of his/her vessel's IFQ during 
the fishing year, but cannot complete a temporary transfer of a portion 
of its IFQ then request to either temporarily or permanently transfer 
the entire IFQ in the same fishing year. A transfer of an IFQ may not 
result in the sum of the IFQs on the receiving vessel exceeding 2.5 
percent of the ACL allocated to IFQ scallop vessels. A transfer of an 
IFQ, whether temporary or permanent, may not result in the transferee 
having a total ownership of, or interest in, general category scallop 
allocation that exceeds 5 percent of the ACL allocated to IFQ scallop 
vessels. Limited access scallop vessels that are also issued an IFQ 
scallop permit may not transfer to or receive IFQ from another IFQ 
scallop vessel.
* * * * *

0
6. In Sec.  648.55, paragraphs (c)(1) and (c)(5) are revised to read as 
follows:


Sec.  648.55  Framework adjustments to management measures.

* * * * *
    (c) * * *
    (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 (c)(2) through (c)(5) 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 limited access AM exception as specified in 
Sec.  648.53(b)(4)(iii).
* * * * *

0
7. In Sec.  648.56, paragraph (d) is revised to read as follows:


Sec.  648.56  Scallop research.

* * * * *
    (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) and (a)(4), respectively. Approved 
RSA projects shall be allocated an amount of scallop pounds that can be 
harvested in open areas and available access areas. The specific access 
areas that are open to RSA harvest shall be specified through the 
framework process as identified in Sec.  648.60(e)(1). In a year in 
which a framework adjustment is under review by the Council and/or 
NMFS, NMFS shall make RSA awards prior to approval of the framework, if 
practicable, based on total scallop pounds needed to fund each research 
project. Recipients may begin compensation fishing in open areas prior 
to approval of the framework, or wait until NMFS approval of the 
framework to begin compensation fishing within approved access areas.
* * * * *

0
8. In Sec.  648.59, paragraph (b)(3) and the heading of paragraph (c) 
are revised to read as follows:


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (b) * * *
    (3) The Closed Area I Access Area is defined by straight lines 
connecting the following points in the order stated (copies of a chart 
depicting this area are available from the Regional Administrator upon 
request), and so that the line connecting points CAIA3 and CAIA4 is the 
same as the portion of the western boundary line of Closed Area I, 
defined in Sec.  648.81(a)(1), that lies between points CAIA3 and 
CAIA4:

------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
CAIA1..........................  41[deg]26' N         68[deg]30' W
CAIA2..........................  40[deg]58' N         68[deg]30' W
CAIA3..........................  40[deg]54.95' N      68[deg]53.40' W
CAIA4..........................  41[deg]04.30' N      69[deg]01.29' W
CAIA1..........................  41[deg]26' N         68[deg]30' W
------------------------------------------------------------------------

* * * * *
    (c) Closed Area II Access Area.
* * * * *

0
9. In Sec.  648.60, the section heading is revised and paragraph (g)(2) 
is revised to read as follows:


Sec.  648.60  Sea scallop access area program requirements.

* * * * *
    (g) * * *
    (2) Limited Access General Category Gear restrictions. An LAGC IFQ 
scallop

[[Page 20741]]

vessel authorized to fish in the Access Areas specified in Sec.  
648.59(a) through (e) must fish with dredge gear only. The combined 
dredge width in use by, or in possession on board of, an LAGC scallop 
vessel fishing in Closed Area I, Closed Area II, and Nantucket 
Lightship Access Areas may not exceed 10.5 ft (3.2 m). The combined 
dredge width in use by, or in possession on board of, an LAGC scallop 
vessel fishing in the remaining Access Areas described in Sec.  648.59 
may not exceed 31 ft (9.4 m). Dredge width is measured at the widest 
point in the bail of the dredge.
* * * * *

0
10. In Sec.  648.61, paragraph (a)(4) is revised to read as follows:


Sec.  648.61  EFH Closed Areas.

    (a) * * *
    (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, and so that the line connecting points CI1 and CIH1, 
and CI2 and CIH3 is the same as the portion of the western boundary 
line of Closed Area I, defined in Sec.  648.81(a)(1), that lies between 
those points:

                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]04.30' N      69[deg]01.29' W
CI1............................  41[deg]30'           69[deg]23'
------------------------------------------------------------------------


                Closed Area I--South Habitat Closure Area
------------------------------------------------------------------------
             Point                     N. lat.             W. long.
------------------------------------------------------------------------
CIH3...........................  40[deg]54.95' N      68[deg]53.40' W
CIH4...........................  40[deg]58'           68[deg]30'
CI3............................  40[deg]45'           68[deg]30'
CI2............................  40[deg]45'           68[deg]45'
CIH3...........................  40[deg]54.95' N      68[deg]53.40' W
------------------------------------------------------------------------

* * * * *

0
11. In Sec.  648.62, the section heading, paragraphs (a), (b) 
introductory text, (b)(2), and (c) are revised to read as follows:


Sec.  648.62  Northern Gulf of Maine (NGOM) Management Program.

    (a) The NGOM scallop management area is the area north of 
42[deg]20' N. lat. and within the boundaries of the Gulf of Maine 
Scallop Dredge Exemption Area as specified in Sec.  648.80(a)(11). To 
fish for or possess scallops in the NGOM scallop management area, a 
vessel must have been issued a scallop permit as specified in Sec.  
648.4(a)(2).
    (1) If a vessel has been issued a NGOM scallop permit, the vessel 
is restricted to fishing for or possessing scallops only in the NGOM 
scallop management area.
    (2) Scallop landings by vessels issued NGOM permits shall be 
deducted from the NGOM scallop total allowable catch when vessels 
fished all or part of a trip in the Federal waters portion of the NGOM. 
If a vessel with a NGOM scallop permit fishes exclusively in state 
waters within the NGOM, scallop landings from those trips will not be 
deducted from the Federal NGOM quota.
    (3) Scallop landings by all vessels issued LAGC IFQ scallop permits 
and fishing in the NGOM scallop management area shall be deducted from 
the NGOM scallop total allowable catch specified in paragraph (b) of 
this section. Scallop landings by IFQ scallop vessels fishing in the 
NGOM scallop management area shall be deducted from their respective 
scallop IFQs. Landings by incidental catch scallop vessels and limited 
access scallop vessels fishing under the scallop DAS program shall not 
be deducted from the NGOM total allowable catch specified in paragraph 
(b) of this section.
    (4) A vessel issued a NGOM or IFQ scallop permit that fishes in the 
NGOM may fish for, possess, or retain up to 200 lb (90.7 kg) of shucked 
or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu 
(17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line. A 
vessel issued an incidental catch general category scallop permit that 
fishes in the NGOM may fish for, possess, or retain only up to 40 lb of 
shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up 
to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation 
Line.
    (b) Total allowable catch. The total allowable catch for the NGOM 
scallop management area shall be specified through the framework 
adjustment process. The total allowable catch for the NGOM scallop 
management area shall be based on the Federal portion of the scallop 
resource in the NGOM. The total allowable catch shall be determined by 
historical landings until additional information on the NGOM scallop 
resource is available, for example through an NGOM resource survey and 
assessment. The ABC/ACL as specified in Sec.  648.53(a) shall not 
include the total allowable catch for the NGOM scallop management area, 
and landings from the NGOM scallop management area shall not be counted 
against the ABC/ACL specified in Sec.  648.53(a).
* * * * *
    (2) Unless a vessel has fished for scallops outside of the NGOM 
scallop management area and is transiting the NGOM scallop management 
area with all fishing gear stowed in accordance with Sec.  648.23(b), 
no vessel issued a scallop permit pursuant to Sec.  648.4(a)(2) may 
possess, retain, or land scallops in the NGOM scallop management area 
once the Regional Administrator has provided notification in the 
Federal Register that the NGOM scallop total allowable catch in 
accordance with this paragraph (b) has been reached. Once the NGOM hard 
TAC is reached, a vessel issued a NGOM permit may no longer declare a 
state-only NGOM scallop trip and fish for scallops exclusively in state 
waters within the NGOM. A vessel that has not been issued a Federal 
scallop permit that fishes exclusively in state waters is not subject 
to the closure of the NGOM scallop management area.
* * * * *
    (c) VMS requirements. Except scallop vessels issued a limited 
access scallop permit pursuant to Sec.  648.4(a)(2)(i) that have 
declared a trip under the scallop DAS program, a vessel issued a 
scallop permit pursuant to Sec.  648.4(a)(2) that intends to fish for 
scallops in the NGOM scallop management area or fishes for, possesses, 
or lands scallops in or from the NGOM scallop management area, must 
declare a NGOM scallop management area trip and report scallop catch 
through the vessel's VMS unit, as required in Sec.  648.10. If the 
vessel has a NGOM permit, the vessel can declare either a Federal NGOM 
trip or a state-waters NGOM trip. If a vessel intends to fish any part 
of a NGOM trip in Federal NGOM waters, it may not declare into the 
state water NGOM fishery.
* * * * *

0
12. In Sec.  648.63, paragraphs (b)(2)(i) and (b)(2)(iii) are revised 
to read as follows:


Sec.  648.63  General category sectors and harvest cooperatives.

* * * * *
    (b) * * *
    (2) * * *
    (i) The sector allocation shall be equal to a percentage share of 
the ACL allocation for IFQ scallop vessels specified in Sec.  
648.53(a), similar to an IFQ scallop vessel's IFQ as specified in Sec.  
648.53(h). The sector's percentage share of the IFQ scallop fishery ACL 
catch shall not change, but the amount

[[Page 20742]]

of allocation based on the percentage share will change based on the 
ACL specified in Sec.  648.53(a).
* * * * *
    (iii) A sector shall not be allocated more than 20 percent of the 
ACL for IFQ vessels specified in Sec.  648.53(a)(4)(i) or (ii).
* * * * *

0
13. In Sec.  648.64, paragraphs (b)(2)(i), (b)(2)(ii), (c)(2), and (e) 
are revised, and paragraph (f) is removed and reserved to read as 
follows:


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

* * * * *
    (b) * * *
    (2) * * *
    (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
------------------------------------------------------------------------
3 or less.............................  October through November.
3.1-14................................  September through November.
14.1-16...............................  September through January.
16.1-39...............................  August through January.
39.1-56...............................  July through January.
Greater than 56.......................  March through February.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
    Percent overage of YTF sub-ACL              Length of closure
------------------------------------------------------------------------
1.9 or less...........................  September through November.
2.0-2.9...............................  August through January.
3.0-3.9...............................  March and August through
                                         February.
4.0-4.9...............................  March and July through February.
5.0-5.9...............................  March through May and July
                                         through February.
6.0 or greater........................  March through February.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
    Percent overage of YTF sub-ACL              Length of closure
------------------------------------------------------------------------
2 or less.............................  March through April.
2.1-3.................................  March through April, and
                                         February.
3.1-7.................................  March through May, and February.
7.1-9.................................  March through May and January
                                         through February.
9.1-12................................  March through May and December
                                         through February.
12.1-15...............................  March through June and December
                                         through February.
15.1-16...............................  March through June and November
                                         through February.
16.1-18...............................  March through July and November
                                         through February.
18.1-19...............................  March through August and October
                                         through February.
19.1 or more..........................  March through February.
------------------------------------------------------------------------

* * * * *
    (e) Process for implementing the AM. On or about January 15 of each 
year, based upon catch and other information available to NMFS, 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. 
Based on this initial projection in mid-January, 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. The 
initial projected estimate shall be updated after the end of each 
scallop fishing year once complete fishing year information becomes 
available. An AM implemented at the start of the fishing year will be 
reevaluated and adjusted proportionately, if necessary, once updated 
information is obtained. For example, if in January 2013, the 
preliminary estimate of 2012 Southern New England/Mid-Atlantic 
yellowtail flounder catch is estimated to be 5 percent over the 2012 
sub-ACL, the Regional Administrator shall implement AMs for the 2013 
scallop fishing year in that stock area. Based on the schedule in 
paragraph (c)(2) of this section, limited access vessels would be 
prohibited from fishing in the area specified in paragraph (c)(1) of 
this section for 4 months (i.e., March through May 2013, and February 
2014). Continuing the example, after the 2012 fishing year is 
completed, if the final estimate of Southern New England/Mid-Atlantic 
yellowtail flounder catch indicates the scallop fishery caught 1.5 
percent of the sub-ACL, rather than 5 percent, the Regional 
Administrator, in accordance with the APA, would adjust the AM for the 
2014 fishing year based on the overage schedule in paragraph (c)(2) of 
this section. As a result, limited access vessels would be subject to a 
2-month seasonal closure in March and April 2013. In this example, due 
to the availability of final fishing year data, it is possible that the 
original AM closure was already in effect during the month of May. 
However, the unnecessary AM closure in February 2014 would be avoided. 
If the Regional Administrator determines that a final estimate is 
higher than the original projection, the Regional Administrator, if 
necessary, shall make adjustments to the current fishing year's 
respective AM closure schedules in accordance with the overage schedule 
in paragraphs (b)(2)(i), (b)(2)(ii), and (c)(2) of this section.

[FR Doc. 2012-8386 Filed 4-5-12; 8:45 am]
BILLING CODE 3510-22-P