E7-24907. Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 20

AGENCY:

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

ACTION:

Final Rule.

SUMMARY:

NMFS issues this final rule to approve and implement measures contained in Framework Adjustment 20 (Framework 20) to the Atlantic Sea Scallop Fishery Management Plan (FMP). This action maintains the trip allocations and possession limits established by the interim measures that were enacted by NMFS on June 21, 2007, for the Elephant Trunk Access Area (ETAA) in 2007 to reduce the potential for overfishing the Atlantic sea scallop (scallop) resource and excessive scallop mortality. This action reduces the number of scallop trips to the ETAA, and prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside ot the boundaries of the ETAA (deckloading). The action also clarifies that the current restriction on landing no more than one scallop trip per calendar day for vessels fishing under general category rules does not prohibit a vessel from leaving on a scallop trip on the same calendar day that the vessel landed scallops.

DATES:

This rule is effective December 24, 2007.

ADDRESSES:

Copies of Framework Adjustment 20 are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2,Newburyport, MA 01950. The framework document is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Don Frei, Fishery Management Specialist, 978-281-9221; fax [phone].

SUPPLEMENTARY INFORMATION:

Background

The proposed rule for Framework 20 was published in the Federal Register on October 30, 2007 (72 FR 61320). Comments were accepted through November 14, 2007. By approving Framework 20 this action adjusts measures approved as part of Framework 18 to the FMP (Framework 18) (71 FR 33211, June 8, 2006), and maintains the provisions of the interim action that: (1) Reduce the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb); (2) reduce the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels would be increased from 16,800 lb (7,620 kg) per trip to 18,000 lb (8,165 kg) per trip); (3) reduce the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip; (4) reduce the general category scallop fleet ETAA trip allocation from 1,360 trips to 865 trips; and (5) prohibit the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallops outside of the boundaries of the ETAA ( or deckloading, i.e., leaving a high volume of scallops on deck after leaving an access area so that the scallops can be shucked on the way back to port).

The Council developed Framework 20 to prevent the Framework 18 measures from going back into effect when the interim measures expire on December 23, 2007. If this were to happen, it would restore the higher trip allocations and allow additional effort by the fleet, resulting in overfishing for the last 2 months (January and February 2008) of the 2007 fishing year (FY). Such an outcome would undermine the effect of the interim measures in preventing overfishing.

Approved Management Measures

In the proposed rule, NMFS requested comments on all proposed management measures, and received one comment on the proposed rule. The approved management measures are discussed below. No measures in Framework 20 were disapproved. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

1. ETAA Trip Reduction

This action maintains the reduction in the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb (8,165 kg)); the reduction in the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels remains at 16,800 lb (7,620 kg) per trip); and the reduction in the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at § 648.60(a)(5) published for Framework 18 specified that an occasional vessel's possession limit is 7,500 lb (3,402 kg) per trip. However, Framework 18 intended and analyzed a possession limit of 10,500 lb (4,763 kg) per trip for the 2007 FY. This action also maintains the reduction in the general category scallop fleet trip allocation from 1,360 to 865 trips in the ETAA.

Reducing the number of trips for scallop vessels in the ETAA addresses the concern that overfishing of the scallop resource may occur in 2007. Although the biomass in the ETAA remains very high relative to the rest of the scallop resource, it is less abundant than was projected in Framework 18. As a result, even though the fishing mortality is expected to be lower than the target fishing mortality in the area, it would be high enough at the lower biomass to contribute to overfishing in 2007. Part-time vessels have a trip reduction with an increase in the possession limit to ensure that the total access area catch for part-time vessels remains at 40 percent of the full-time access area catch, as intended by the FMP. Occasional vessels have one trip to any access area, but have a possession limit of 7,500 lb (3,402 kg) for the trip, ensuring that the total access area catch for occasional vessels remains at 8.3 percent of the full-time access area catch. Reducing trips in the ETAA was contemplated in Framework 18 and the potential impacts of the trip reductions were fully analyzed in Framework 18.

2. Prohibition on Deckloading

This action maintains the prohibition on the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA for vessels on ETAA trips. Deckloading is the practice of loading the deck of a vessel with the scallop catch from several tows and shucking the scallops while steaming back to port. If allowed to deckload, vessel could leave the area, and the vessel crews can spend the time steaming home sorting and shucking scallops, thereby reducing overall trip costs. This can result in a vessel having more scallops on board than are necessary to achieve the possession limit. The excess scallops are discarded. In addition, due to deckloading, scallops remain on deck longer, increasing discard mortality. In the ETAA, deckloading may cause even higher scallop mortality, since catch rates are expected to be very high, there is a mix of scallop sizes in the area, and scallop crews may discard smaller scallops in favor of larger scallops. Although the amount of additional mortality cannot be precisely estimated, prohibiting deckloading on ETAA trips is a complementary measure that will help prevent additional scallop mortality.

3. Regulatory Change

This final rule implements a regulatory change making the regulations consistent with the original intent of Amendment 4 to the FMP (Amendment 4) (59 FR 2757, January 19, 1994) . Amendment 4 intended that general category scallop vessels cannot land scallops on more than one trip per calendar day. NMFS implemented the scallop regulations consistent with this intent until it was recently discovered that the regulations, as written, prohibit such vessels from “fishing for” scallops more than once per calendar day. This prohibited a vessel from leaving on a scallop trip on a calendar day if scallops had previously been landed that calendar day. The general category scallop industry is concerned that interpreting the regulation this way may encourage unsafe fishing behavior to complete as many trips as possible while avoiding the “one trip per calendar day” restriction. For example, if a vessel owner has to wait a full calendar day to set sail on a subsequent trip, he/she may sail despite hazardous weather. To make the regulations consistent with Amendment 4, NMFS implements the regulatory change in this final rule that prohibits a general category scallop vessel from landing scallops on more than one trip per calendar day, but allows vessels to depart on a subsequent scallop trip on the same calendar day that the vessel landed scallops.

The trip allocations and possession limits for the ETAA in 2007 are intended to be effective for the remainder of the 2007 fishing year. However the FMP currently specifies that if framework measures to change annual scallop measures are not implemented by March 1 of each fishing year, the scallop DAS and access area allocations remain in effect until replaced by new measures. Therefore, if Framework 19 to the FMP (adopted by the Council in October 2007) is not completed by March 1, 2007, the trip allocations and possession limits for the ETAA in 2007 will remain in effect until modified by Framework 19 measures. The prohibition on deckloading and the regulatory change to the “one per calender day” landing restriction is permanent, unless modified by the Council and NMFS through subsequent action.

Comments and Responses

NMFS received one comment on the proposed rule to implement Framework 20 that was in favor of extending DAS limitations on scallop fishing for the purpose of preventing overfishing. This comment did not address any specific measures in Framework 20 and therefore was not pertinent to the decision to implement this action.

Classification

NMFS has determined that this final rule is consistent with the FMP and has determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effective date under authority contained in 5 U.S.C. 553(d)(3) for this rule because provisions in this rule are critical for the sustainable management of the scallop resource and need to be implemented in a timely manner. This action extends interim measures for the Elephant Trunk Access Area (ETAA), implemented in December 2006 to reduce overfishing for the 2007 fishing year (March 1, 2007, through February 29, 2008). If this rule is implemented after December 23, 2007 Framework 18 measures will come into effect, which would likely cause overfishing in the 2007 fishing year as a result of the higher trip allocations. Overfishing of the scallop resource in the 2007 fishing year would make future measures already developed by the Council for the 2008 and 2009 fishing years less likely to achieve their goals of preventing overfishing and providing for optimum yield to the industry on a continuing basis. In turn, the Council would likely have to consider more restrictive measures to account for the unexpected overfishing in 2007, which would likely cause short term losses for the industry. In addition, this action extends measures currently in place and does not implement any new compliance requirements on the scallop industry.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act has prepared a FRFA in support of Framework 20. The FRFA describes the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities.

The FRFA incorporates the economic impacts and analysis summarized in the IRFA for the proposed rule to implement Framework 20 (72 FR 61320, October 30, 2007), the comments and responses in this final rule, and the corresponding economic analyses prepared for Framework 20 (e.g., the EA and RIR). The contents of these incorporated documents are not repeated in detail here. A copy of the IRFA, the RIR and the EA are available on request (see ADDRESSES). A description of the reasons for this action, the objectivs of the action, and the legal basis for this final rule are found in Framework 20 and the preamble to the proposed and final rules.

Statement of Need for this Action

The purpose of this action is to prevent the Framework 18 measures from reverting back into effect when the interim measures expire on December 23, 2007. If this were to happen, it would restore the higher trip allocations and allow additional effort by the fleet, resulting in overfishing for the last 2 months of the 2007 fishing year (FY). Such an outcome would undermine the effect of the interim measures in preventing overfishing.

Description of the Small Business Entities to Which this Action Will Apply

The regulations associated with Framework 20 will affect vessels with limited access scallop and general category permits. According to NMFS Northeast Region permit data as of October 2006, 351 vessels were issued limited access scallop permits, with 318 full-time, 32 part-time, and 1 occasional limited access permit issued. In addition, 2,501 open access general category permits were issued. 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 landings data for the period 2004 to 2006. Therefore, there will be no differential impact from this action between large and small entities. According to this information, annual revenue from scallops averaged over a million dollars per limited access vessel in 2005. Total revenues per vessel were higher when revenues from species other than scallops were included, but still averaged less than $3 million per vessel. Average scallop revenue per general category vessel was $88,702 in 2005, though it exceeded $240,000 when revenue from other species was included.

Proposed Reporting, Recordkeeping, and Other Compliance Requirements

There are no new reporting, recordkeeping, or other compliance requirements associated with the measures proposed in Framework 20.

Description of the Steps 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

The regulations implementing Framework 20 were developed to ensure that scallop landings and economic benefits would be kept to sustainable levels. Therefore, overall positive economic impacts are expected as a result of preventing overfishing. The prohibition on deckloading on ETAA trips is expected to help prevent additional scallop mortality associated with discards and thus would improve yield, revenues, and economic benefits from the resource. The owners of vessels that fish for scallops would benefit over the long-term if overfishing is prevented. There was strong industry support for the proposed action in public testimony before the Council at the meeting when it adopted Framework 20.

While a range of alternatives were considered in Framework 18, which established the management measures for 2006 and 2007, the only other alternative the Council considered in Framework 20 was to take no action. If no action had been taken, the Framework 18 measures would revert into effect, with the potential that fishing activity during January and February 2008 would lead to overfishing in the 2007 FY. Overfishing would have had negative impacts on scallop biomass, with landings, revenues and economic benefits likely to decline in future years as a result. The Council found this to be unacceptable and adopted Framework 20 to prevent this outcome. Other alternatives that the Council could have considered included overall reductions in effort or reductions in trip allocations in other areas. Such actions would have had other negative economic impacts since reductions in DAS or trip allocations would still have been necessary. In addition, these actions would have been more suitable for an annual adjustment rather than the extension of interim measures through Framework 20. The Council therefore did not consider and analyze these alternatives.

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

Dated: December 17, 2007.

William T. Hogarth,

Assistant Administrator for Fisheries, 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 § 648.14, paragraph (i)(1) is removed and reserved, paragraph (i)(2) is revised, and paragraphs (h)(27), (i)(13), and (i)(14) are added to read as follows:

§ 648.14

Prohibitions.

(h) * * *

(27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

(i) * * *

(2) Land scallops on more than one trip per calendar day.

(13) Fish for or land per trip, or possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell scallops, unless the vessel is participating in the Area Access Program specified in § 648.60, is carrying an observer as specified in § 648.11, and an increase in the possession limit is authorized as specified in § 648.60(d)(2).

(14) Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

3. In § 648.52, paragraph (e) is added to read as follows:

§ 648.52

Possession and landing limits.

(e) Owners or operators of a vessel that is declared into the Elephant Trunk Access Area Sea Scallop Area Access Program as described in § 648.60, are prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).

§ 648.58

[Amended]

4. In § 648.58, paragraph (a) is removed and reserved.

5. In § 648.59, paragraphs (e)(1) and (e)(4) are revised to read as follows:

§ 648.59

Sea Scallop Access Areas.

(e) * * *

(1) From March 1, 2007, through February 29, 2012, and subject to the seasonal restrictions specified in paragraph (e)(3) of this section, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Elephant Trunk Sea Scallop Access Area, described in paragraph (e)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60.

(4) Number of trips— (i) Limited access vessels. Based on its permit category, a vessel issued a limited access scallop permit may fish no more than the maximum number of trips in the Elephant Trunk Sea Scallop Access Area between March 1, 2007, and February 29, 2008, as specified in § 648.60(a)(3)(i), unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains an Elephant Trunk Sea Scallop Access Area trip and gives up a trip into another Sea Scallop Access Area, as specified in § 648.60(a)(3)(ii), or unless the vessel is taking a compensation trip for a prior Elephant Trunk Access Area trip that was terminated early, as specified in § 648.60(c).

(ii) General category vessels. Subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), a vessel issued a general category scallop permit may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the Federal Register, in accordance with § 648.60(g)(4), that the 865 trips allocated for the period March 1, 2007, through February 29, 2008, have been taken, in total, by all general category scallop vessels, unless transiting pursuant to paragraph (f) of this section. The Regional Administrator shall notify all general category scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken.

6. In § 648.60, paragraphs (a)(3)(i), (a)(3)(ii)(B), (a)(5)(i), (d)(1)(v), (e)(1)(v), and (g)(3)(iv) are revised to read as follows:

§ 648.60

Sea scallop area access program requirements.

(a) * * *

(3) * * *

(i) Limited Access Vessel trips. (A) Except as provided in paragraph (c) of this section, paragraphs (a)(3)(i)(B) through (E) of this section specify the total number of trips that a limited access scallop vessel may take into Sea Scallop Access Areas during applicable seasons specified in § 648.59. The number of trips per vessel in any one Sea Scallop Access Area may not exceed the maximum number of trips allocated for such Sea Scallop Access Area as specified in § 648.59, unless the vessel owner has exchanged a trip with another vessel owner for an additional Sea Scallop Access Area trip, as specified in paragraph (a)(3)(ii) of this section, has been allocated a compensation trip pursuant to paragraph (c) of this section.

(B) Full-time scallop vessels. In the 2007 fishing year, a full-time scallop vessel may take one trip in the Closed Area I Access Area, one trip in the Nantucket Lightship Access Area, and three trips in the Elephant Trunk Access Area.

(C) Part-time scallop vessels. In the 2007 fishing year, a part-time scallop vessel may take one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; or one trip in the Closed Area I Access Area and one trip in the Elephant Trunk Access Area; or one trip in the Nantucket Lightship Access Area and one trip in the Elephant Trunk Access Area; or two trips in the Elephant Trunk Access Area.

(D) Occasional scallop vessels. An occasional scallop vessel may take one trip in the 2007 fishing year into any of the Access Areas described in § 648.59 that is open during the specified fishing years.

(E) Hudson Canyon Access Area trips. In addition to the number of trips specified in paragraphs (a)(3)(i) (B) and (C) of this section, vessels may fish remaining Hudson Canyon Access Area trips allocated for the 2005 fishing year in the Hudson Canyon Access Area in the 2006 and/or 2007 fishing year, as specified in § 648.59(a)(3). The maximum number of trips that a vessel could take in the Hudson Canyon Access Area in the 2005 fishing year was three trips, unless a vessel acquired additional trips through an authorized one-for-one exchange as specified in paragraph (a)(3)(ii) of this section. Full-time scallop vessels were allocated three trips into the Hudson Canyon Access Area. Part-time vessels were allocated two trips that could be distributed among Closed Area I, Closed Area II, and the Hudson Canyon Access Areas, not to exceed one trip in the Closed Area I or Closed Area II Access Areas. Occasional vessels were allocated one trip that could be taken in any Access Area that was open in the 2005 fishing year.

(ii) * * *

(B) Limited access scallop vessels involved in an exchange of Closed Area II and/or Nantucket Lightship Closed Area Access Area trips for the 2006 fishing year, and Elephant Trunk Access Area trips for the 2007 fishing year shall be subject to a reduction of the vessels' allocated trips so that the total number of allocated Elephant Trunk Access Area trips between two vessels that were involved in such an exchange shall be six for full-time vessels and four for part-time vessels in the 2007 fishing year. Reductions will be applied equally to both vessels' resulting Elephant Trunk Access Area allocation for the 2007 fishing year after the exchange is taken into account, unless the vessel giving Elephant Trunk Access Area trips to another vessel has one or zero Elephant Trunk Access Area trips remaining after the exchange. In such a case, the vessel that received the Elephant Trunk Access Area trips will be subject to a reduction of up to four Elephant Trunk Access Area trips.

(5) * * *

(i) Scallop possession limits. Unless authorized by the Regional Administrator, as specified in paragraphs (c) and (d) of this section, after declaring a trip into a Sea Scallop Access Area, a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, scallops, up to the maximum amounts specified in paragraphs (a)(5)(i)(A) and (B) of this section. No vessel declared into the Elephant Trunk Access Area as described in § 648.59(e) may possess more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).

(A) Up to 18,000 lb (8,165 kg) of shucked scallops for full-time and part-time scallop vessels.

(B) Up to 7,500 lb (3,402 kg) of shucked scallops for occasional scallop vessels.

(d) * * *

(1) * * *

(v) Elephant Trunk Access Area. From March 1, 2007, through February 29, 2008, the observer set-aside for the Elephant Trunk Access Area is 173,100 lb (78.5 mt).

(e) * * *

(1) * * *

(v) Elephant Trunk Access Area. From March 1, 2007, through February 29, 2008, the research set-aside for the Elephant Trunk Access Area is 346,200 lb (157 mt).

(g) * * *

(3) * * *

(v) Elephant Trunk Access Area. 346,000 lb (157 mt) in 2007.