[Federal Register: October 30, 2007 (Volume 72, Number 209)]
[Proposed Rules]
[Page 61320-61323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc07-17]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.: 070817468-7594-01]
RIN 0648-AV91
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: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Framework Adjustment 20
(Framework 20) to the Atlantic Sea Scallop Fishery Management Plan
(FMP), which was developed by the New England Fishery Management
Council (Council). Framework 20 would maintain in effect the interim
measures that were enacted by NMFS on June 21, 2007, to reduce the
potential for overfishing the Atlantic sea scallop (scallop) resource
and excessive scallop mortality resulting from deck loading. The action
reduces the number of scallop trips to the Elephant Trunk Access Area
(ETAA), and prohibits the retention of more than 50 U.S. bushels (17.62
hL) of in-shell scallop outside of the boundaries of the ETAA. The
proposed rule 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.
Framework 20 would extend these interim measures, which are scheduled
to expire on December 23, 2007, through the end of the scallop fishing
year on February 29, 2008. Framework 20 would make the clarification of
the restriction on landing more than one trip per calendar day
permanent under the Scallop FMP.
DATES: Comments must be received at the appropriate address or fax
number (see ADDRESSES) by 5 p.m., local time, on November 14, 2007.
ADDRESSES: You may submit comments, identified by RIN number 0648-AV91,
by any one of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov;
Fax: (978) 281-9135;
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930.
Mark the outside of the envelope, ``Comments on Scallop Framework 20.''
Instructions: all comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publically
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments. Attachment to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file format only.
Copies of Framework 20 and its Regulatory Impact Review (RIR),
including the Initial Regulatory Flexibility Analysis (IRFA), are
available on request from Paul J. Howard, Executive Director, New
England Fishery Management Council, 50 Water Street, Newburyport, MA
01950. These documents are also available online at http://www.nefmc.org
.
FOR FURTHER INFORMATION CONTACT: Don Frei, Fishery Management
Specialist, 978-281-9221; fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
Interim measures currently in effect were enacted to supercede
measures that were scheduled to go into effect on January 1, 2007,
under Framework 18 to the FMP (Framework 18). The interim action was
enacted in response to findings of the Scallop Plan Development Team
(PDT), which advised the Council on November 7, 2006, that reducing the
number of trips in the ETAA, delaying the opening, and prohibiting
``deckloading,'' would reduce the potential for overfishing the scallop
resource in 2007. The Council voted in November 2006 to recommend that
NMFS implement interim measures consistent with the PDT's memorandum.
On December 22, 2006, (71 FR 76945) NMFS implemented an interim final
rule adopting these recommendations. This interim final rule was
extended on June 21, 2007, (72 FR 29889) and is scheduled to expire on
December 23, 2007.
Framework 20 would maintain the provisions of the interim action
that: (1) Reduced 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) reduced 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) reduced the occasional vessel possession limit from
10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip; (4)
reduced the general category scallop fleet ETAA trip allocation from
1,360 trips to 865 trips; and (5) prohibited the retention or deck
loading (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 in) of
more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the
boundaries of the ETAA.
The Council developed Framework 20 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 (January and February
2008) of the 2007 fishing year (FY). Such an outcome would undermine
the effect of the interim measures in preventing overfishing.
Proposed Measures
1. ETAA Trip Reduction
Framework 20 would maintain 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
[[Page 61321]]
(4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at
Sec. 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. Framework 20 would also
maintain 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 would
address 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 would 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 would
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
Framework 20 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. Under the current Access Area regulations, vessels can
deckload and 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 estimated,
prohibiting deckloading on ETAA trips is a complementary measure that
will help prevent additional scallop mortality.
3. Regulatory Change
Framework 20 would also implement a regulatory change to make the
regulations consistent with the original intent of Amendment 4 to the
FMP (Amendment 4). Amendment 4 intended that general category scallop
vessels could not 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 day. The
general category scallop industry is concerned that interpreting the
regulation this way may encourage unsafe fishing behavior to avoid the
``one trip per calendar day'' restriction. Therefore, to make the
regulations consistent with Amendment 4, NMFS is proposing a regulatory
change that would prohibit a general category scallop vessel from
landing scallops on more than one trip per calendar day, but would
allow vessels to depart on a subsequent scallop trip on the same
calendar day that the vessel landed scallops.
Classification
NMFS has determined that this proposed rule is consistent with the
FMP and has preliminarily determined that the rule is consistent with
the Magnuson-Stevens Act and other applicable laws.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An initial IRFA was prepared, as required by section 603 of the
Regulatory Flexibility Act (RFA). The IRFA describes the economic
impact this proposed rule, if adopted, would have on small entities. A
description of the action, why it is being considered, and the legal
basis for this action are contained at the beginning of this section in
the preamble and in the SUMMARY section of the preamble. A copy of this
analysis is available from the Council (see ADDRESSES). A summary of
the analysis follows.
Description of the Small Business Entities
The proposed regulations implementing Framework 20 would 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. 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.
Economic Impacts of the Proposed Measures and Alternatives
The proposed 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.
A range of alternatives was considered in Framework 18 including:
Scallop fishery specifications for 2006 and 2007 (open area days-at-sea
and scallop access area trip allocations); scallop area rotation
program adjustments; a seasonal closure of the
[[Page 61322]]
ETAA; and revisions to management measures that would improve
administration of the FMP. Most of the alternatives in Framework 18
were not considered by the Council in Framework 20 because they would
have been outside the scope of the action intended to implement the
interim measures through the end of the 2007 fishing year. The only
measure in Framework 18 relevant to Framework 20 is the measure that
allowed the Regional Administrator to reduce the number of ETAA trips
through a rulemaking procedure based on biomass trigger points and
resulting trip reductions that were included in the scallop
regulations. NMFS could not use that procedure because the trip
reduction recommended by the Council was based on overall fishing
mortality, not the specified trigger points in the regulations, and
NMFS promulgated the interim rule for the ETAA. The economic impacts of
the reduction of ETAA trips through the Framework 18 rulemaking
procedure, and the no action alternative to that measure, were fully
analyzed in Framework 18 and are the basis of the economic impacts
analysis of Framework 20.
The only other alternative the Council considered in Framework 20
was therefore to take no action. If no action had been taken, the
Framework 18 measures would revert back into effect, which would
increase the number of trips for full-time scallop vessels in the ETAA
to five trips (an increase of two trips) and general category vessels
would be allocated 1,360 trips (an increase of 495 trips). There is a
very high likelihood that the additional trips would be taken because
the scallops can be caught efficiently in the ETAA and the value of
scallops is high. This would increase the potential that the additional
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 the reduced number of trips in the ETAA
under Framework 20 to prevent this outcome. NMFS proposes regulations
consistent with the Council's recommendation for the same reasons.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: October 24, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.14, 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:
Sec. 648.14 Prohibitions.
* * * * *
(h) * * *
(27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as
specified in Sec. 648.52(d), outside the boundaries of the Elephant
Trunk Access Area specified in Sec. 648.59(e) by a vessel that is
declared into the Elephant Trunk Access Area under the Area Access
Program as specified in Sec. 648.60.
(i) * * *
(1) [Reserved]
(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 Sec. 648.60, is carrying an observer as specified in
Sec. 648.11, and an increase in the possession limit is authorized as
specified in Sec. 648.60(d)(2).
(14) Possess more than 50 bu (17.6 hL) of in-shell scallops, as
specified in Sec. 648.52(d), outside the boundaries of the Elephant
Trunk Access Area specified in Sec. 648.59(e) by a vessel that is
declared into the Elephant Trunk Access Area under the Area Access
Program as specified in Sec. 648.60.
* * * * *
3. In Sec. 648.52, paragraph (e) is added to read as follows:
Sec. 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 Sec. 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 Sec. 648.59(e).
Sec. 648.58 [Amended]
4. In Sec. 648.58, paragraph (a) is removed and reserved.
5. In Sec. 648.59, paragraphs (e)(1) and (e)(4) are revised to
read as follows:
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
648.60(c).
(ii) General category vessels. Subject to the possession limits
specified in Sec. Sec. 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 Sec. 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 Sec. 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:
[[Page 61323]]
Sec. 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)
specify the total number of trips that a limited access scallop vessel
may take into Sea Scallop Access Areas during applicable seasons
specified in Sec. 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 Sec.
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
* * * * *
[FR Doc. 07-5384 Filed 10-25-07; 2:44 pm]
BILLING CODE 3510-22-S