20728 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

We published the withdrawn rule as 

a direct final rule under 33 CFR 1.05– 

55 because we considered the rule to be 

noncontroversial and therefore did not 

expect any adverse comments. In the 

direct final rule, we notified the public 

of our intent to make the rule effective 

on April 12, 2012, unless an adverse 

comment or notice of intent to submit 

an adverse comment was received on or 

before February 13, 2012. 

We received two submissions from 

the same commenter during the 

comment period, and we determined 

that both are adverse comments, as 

explained below. As such, we are 

withdrawing the direct final rule. We 

plan to consider the issues raised in the 

adverse comments in a notice of 

proposed rulemaking. 

Withdrawal 

We received two comments in 

response to the direct final rule. In the 

first comment, the commenter stated 

that without a definition of the term ‘‘oil 

in bulk,’’ the rule would be ineffective. 

In the second comment, the commenter 

stated that without a definition of the 

term ‘‘manned,’’ the rule would be 

ineffective. In the direct final rule, we 

explained that a comment is considered 

adverse if the commenter explains why 

this rule or part of this rule would be 

inappropriate, including a challenge to 

its underlying premise or approach, or 

would be ineffective or unacceptable 

without a change. We have determined 

that both comments received are 

adverse comments. 

In the first comment, the commenter 

expressed concern that, without a 

definition of ‘‘in bulk,’’ the rule does not 

make it clear whether a barge that 

carries flammable or combustible 

liquids, including oil, in bulk for use by 

the vessel and not as cargo, is exempt 

from inspection and certification. 

Furthermore, the commenter asked at 

what quantity of such flammable or 

combustible liquid carried in bulk is the 

barge no longer considered exempt 

under the rule. The commenter also 

expressed concern that without a 

definition of ‘‘in bulk,’’ barges that carry 

flammable or combustible liquid, 

including oil, in bulk as cargo would be 

subject to inspection regardless of how 

small the quantity. 

In the second comment, the 

commenter requested a definition for 

the term ‘‘manned,’’ and stated that 

without such a definition, the rule 

would be ineffective. The commenter 

was concerned that there are times 

when barges that do not require 

manning to operate have personnel on 

board to prepare the barges for transfer 

and off-load, and that without a 

definition in the rule, it is not clear 

whether barges with personnel 

permissively on board require 

inspection or are exempt. 

Authority 

We issue this notice of withdrawal 

under the authority of 33 U.S.C. 494, 

502, 525, 33 CFR 1.05–55, and 

Department of Homeland Security 

Delegation No. 0170.1. 

Because we consider these comments 

to be adverse, we are withdrawing the 

direct final rule. We plan to seek 

comment on these concerns in a 

forthcoming notice of proposed 

rulemaking. 

J.G. Lantz, 

Director of Commercial Regulations and 

Standards, U.S. Coast Guard. 

[FR Doc. 2012–8310 Filed 4–5–12; 8:45 am] 

BILLING CODE 9110–04–P 

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. 

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 MagnusonStevens 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 


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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 MidAtlantic (west of 71° 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#2) and accompanying terms and 

conditions (T/C) of the 2008 Biological 

Opinion (2008 Biological Opinion) on 

the Scallop FMP. RPM#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. 


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20730 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

TABLE 1—COMPARISON OF CURRENT SNE/MA AM SCHEDULE AND THE FRAMEWORK 23—Continued 

Current AM schedule Proposed 

Percent overage LA closure Percent overage LA closure 

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 reexamine 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 


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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 watersonly 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-bytrip 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 

§ 648.10 to more clearly indicate the 

reporting requirements for various 

aspects of the scallop fishery (e.g., prelanding notification requirements and 

state water exemption trip declaration 

requirements), to reflect the instructions 


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20732 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

currently available through on-board 

VMS units. Additionally, there are 

currently prohibitions in § 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 industryfunded 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 

§ 648.14, since such an explanation 

exists for LA vessels. A restriction on 

transferring IFQ in § 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 § 648.81(a)(1) as 

the line extending between the points 

CI1 (41°30′ N lat.; 69°23′ W long.) and 

CI2 (40°45′ N lat.; 68°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 westernmost 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#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#2 and T/C#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 nondiscretionary 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#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#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#2, but that does not change the 

fact that RPM#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 


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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 § 648.14(i)(2)(ii)(B)(3) and 

§ 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 


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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° 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 nonselected 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 shortterm 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° W long. covers the 

majority of areas the scallop fishery and 

expected turtle interactions in the MidAtlantic 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° 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 


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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-bytrip 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 longterm, 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. 


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20736 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

■ 2. In § 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: 

§ 648.10 VMS and DAS requirements for 

vessel owner/operators. 

* * * * * 

(e) * * * 

(5) * * * 

(i) A vessel subject to the VMS 

requirements of § 648.9 and paragraphs 

(b) through (d) of this section that has 

crossed the VMS Demarcation Line 

under paragraph (a) of this section is 

deemed to be fishing under the DAS 

program, the 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 

§ 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°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 

§ 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 PreLanding 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 


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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 § 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 §§ 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 § 648.94(c). 

* * * * * 

■ 3. In § 648.11, paragraphs (g)(1) and 

(g)(5)(i)(A) are revised to read as 

follows: 

§ 648.11 At-sea sea sampler/observer 

coverage. 

* * * * * 

(g) * * * 

(1) General. Unless otherwise 

specified, owners, operators, and/or 

managers of vessels issued a Federal 

scallop permit under § 648.4(a)(2), and 

specified in paragraph (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 § 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 

§ 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 industryfunded 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 


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20738 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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. In § 648.14, 

■ 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; 

■ 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 

■ 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: 

§ 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 § 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 

§ 648.51(b)(5), and turtle dredge chain 

mat requirements in § 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 § 648.10, unless the 

vessel has been issued an LAGC scallop 

permit pursuant to § 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 § 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 § 648.10(f), fail to declare out of the 

fishery in port and have fishing gear 

unavailable for immediate use as 

defined in § 648.23(b), until declared 

into the scallop fishery. 

(D) Once declared into the scallop 

fishery in accordance with § 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 § 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 

§ 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 

§ 648.10(f), fail to declare out of the 

fishery in port and have fishing gear 

unavailable for immediate use as 

defined in § 648.23(b), until declared 

into the scallop fishery. 

(D) Once declared into the scallop 

fishery in accordance with § 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 § 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 

§ 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 § 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 

§ 648.54. 

(E) Possess more than 50 bu (17.6 hL) 

of in-shell scallops, as specified in 

§ 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 § 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 

§ 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 

§ 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 § 648.62. 

(iv) Fish for, possess, or retain 

scallops in Federal waters of the NGOM 

after declaring a trip into NGOM state 

waters. 

* * * * * 

■ 4. In § 648.51, paragraph (b)(1) is 

revised and paragraph (b)(5) is added to 

read as follows: 

§ 648.51 Gear and crew restrictions. 

* * * * * 


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(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 § 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 § 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 

§ 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° 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° 

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 § 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. 

* * * * * 

■ 5. In § 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: 

§ 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 § 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 × 18.4 meats/lb)/(18.4 meats/ 

lb × 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 

§ 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 


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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. 

* * * * * 

■ 6. In § 648.55, paragraphs (c)(1) and 

(c)(5) are revised to read as follows: 

§ 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 

§ 648.53(b)(4)(iii). 

* * * * * 

■ 7. In § 648.56, paragraph (d) is revised 

to read as follows: 

§ 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 § 648.53(a) prior to setting 

ACLs for the limited access and LAGC 

fleets, as specified in § 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 § 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. 

* * * * * 

■ 8. In § 648.59, paragraph (b)(3) and the 

heading of paragraph (c) are revised to 

read as follows: 

§ 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 § 648.81(a)(1), that 

lies between points CAIA3 and CAIA4: 

Point Latitude Longitude 

CAIA1 .......... 41°26′ N 68°30′ W 

CAIA2 .......... 40°58′ N 68°30′ W 

CAIA3 .......... 40°54.95′ N 68°53.40′ W 

CAIA4 .......... 41°04.30′ N 69°01.29′ W 

CAIA1 .......... 41°26′ N 68°30′ W 

* * * * * 

(c) Closed Area II Access Area. 

* * * * * 

■ 9. In § 648.60, the section heading is 

revised and paragraph (g)(2) is revised 

to read as follows: 

§ 648.60 Sea scallop access area program 

requirements. 

* * * * * 

(g) * * * 

(2) Limited Access General Category 

Gear restrictions. An LAGC IFQ scallop 


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vessel authorized to fish in the Access 

Areas specified in § 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 

§ 648.59 may not exceed 31 ft (9.4 m). 

Dredge width is measured at the widest 

point in the bail of the dredge. 

* * * * * 

■ 10. In § 648.61, paragraph (a)(4) is 

revised to read as follows: 

§ 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 

§ 648.81(a)(1), that lies between those 

points: 

CLOSED AREA I—NORTH HABITAT

CLOSURE AREA

Point N. lat. W. long. 

CI1 ............... 41°30′ 69°23′ 

CI4 ............... 41°30′ 68°30′ 

CIH1 ............. 41°26′ 68°30′ 

CIH2 ............. 41°04.30′ N 69°01.29′ W 

CI1 ............... 41°30′ 69°23′ 

CLOSED AREA I—SOUTH HABITAT

CLOSURE AREA

Point N. lat. W. long. 

CIH3 ............. 40°54.95′ N 68°53.40′ W 

CIH4 ............. 40°58′ 68°30′ 

CI3 ............... 40°45′ 68°30′ 

CI2 ............... 40°45′ 68°45′ 

CIH3 ............. 40°54.95′ N 68°53.40′ W 

* * * * * 

■ 11. In § 648.62, the section heading, 

paragraphs (a), (b) introductory text, 

(b)(2), and (c) are revised to read as 

follows: 

§ 648.62 Northern Gulf of Maine (NGOM) 

Management Program. 

(a) The NGOM scallop management 

area is the area north of 42°20’ N. lat. 

and within the boundaries of the Gulf of 

Maine Scallop Dredge Exemption Area 

as specified in § 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 § 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 § 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 

§ 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 § 648.23(b), no vessel issued a 

scallop permit pursuant to § 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 § 648.4(a)(2)(i) that 

have declared a trip under the scallop 

DAS program, a vessel issued a scallop 

permit pursuant to § 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 § 648.10. If the vessel has a 

NGOM permit, the vessel can declare 

either a Federal NGOM trip or a statewaters 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. 

* * * * * 

■ 12. In § 648.63, paragraphs (b)(2)(i) 

and (b)(2)(iii) are revised to read as 

follows: 

§ 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 § 648.53(a), similar to an 

IFQ scallop vessel’s IFQ as specified in 

§ 648.53(h). The sector’s percentage 

share of the IFQ scallop fishery ACL 

catch shall not change, but the amount 


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20742 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

of allocation based on the percentage 

share will change based on the ACL 

specified in § 648.53(a). 

* * * * * 

(iii) A sector shall not be allocated 

more than 20 percent of the ACL for IFQ 

vessels specified in § 648.53(a)(4)(i) or 

(ii). 

* * * * * 

■ 13. In § 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: 

§ 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 subACL, 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/MidAtlantic 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 


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