Rule2022-00367
Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 21
Primary source
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Published
January 12, 2022
Effective
March 31, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS implements the measures included in Amendment 21 to the Atlantic Sea Scallop Fishery Management Plan as adopted and submitted by the New England Fishery Management Council. This action allows for more controlled access to the scallop resource by the limited access and limited access general category fleets and increases monitoring to a growing directed scallop fishery in Federal waters, including the Northern Gulf of Maine Management Area. These management measures are intended to promote conservation of the scallop resource in the Northern Gulf of Maine Management Area and to manage total removals from the area by all fishery components. Amendment 21 also expands flexibility in the limited access general category individual fishing quota fishery to reduce impacts of potential decreases in ex-vessel price and increases in operating costs.
Full Text
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<title>Federal Register, Volume 87 Issue 8 (Wednesday, January 12, 2022)</title>
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[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Rules and Regulations]
[Pages 1688-1700]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00367]
[[Page 1688]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No.: 220105-0005]
RIN 0648-BK68
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Amendment 21
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS implements the measures included in Amendment 21 to the
Atlantic Sea Scallop Fishery Management Plan as adopted and submitted
by the New England Fishery Management Council. This action allows for
more controlled access to the scallop resource by the limited access
and limited access general category fleets and increases monitoring to
a growing directed scallop fishery in Federal waters, including the
Northern Gulf of Maine Management Area. These management measures are
intended to promote conservation of the scallop resource in the
Northern Gulf of Maine Management Area and to manage total removals
from the area by all fishery components. Amendment 21 also expands
flexibility in the limited access general category individual fishing
quota fishery to reduce impacts of potential decreases in ex-vessel
price and increases in operating costs.
DATES: Effective March 31, 2022.
ADDRESSES: The Council has prepared a draft Environmental Assessment
(EA) for this action that describes the measures contained in Amendment
21 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and other
considered alternatives and analyzes the impacts of these measures and
alternatives. The Council submitted a draft of the amendment to NMFS
that includes the draft EA, a description of the Council's preferred
alternatives, the Council's rationale for selecting each alternative,
and a Regulatory Impact Review (RIR). Copies of supporting documents
used by the New England Fishery Management Council, including the EA
and RIR, are available from: Thomas A. Nies, Executive Director, New
England Fishery Management Council, 50 Water Street, Newburyport, MA
01950 and accessible via the internet in documents available at:
<a href="https://www.nefmc.org/library/amendment-21">https://www.nefmc.org/library/amendment-21</a>.
Comments regarding the burden-hour estimates or other aspects of
the collection-of-information requirements contained in this rule may
be submitted to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular
information collection by using the search function and entering either
the title of the collection or the OMB Control Number 0648-0546.
FOR FURTHER INFORMATION CONTACT: Travis Ford, Fishery Policy Analyst,
(978) 281-9233.
SUPPLEMENTARY INFORMATION:
Background
On December 3, 2021, pursuant to section 304(a)(3) of the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),
NMFS approved Amendment 21 to the Atlantic Sea Scallop FMP in its
entirety as recommended by the New England Fishery Management Council.
The Council developed this action, and the measures described in this
rule, to adjust the Northern Gulf of Maine (NGOM) Management Program to
allow more controlled access by the limited access and limited access
general category (LAGC) components, increase monitoring to support a
growing directed scallop fishery in Federal waters, and adjust the LAGC
individual fishing quota (IFQ) program to support overall economic
performance while allowing for continued participation in the general
category fishery at varying levels.
This final rule implements Amendment 21, which:
<bullet> Accounts for biomass in the NGOM as part of the
overfishing limit (OFL) and the acceptable biological catch (ABC) to be
consistent with other portions of scallop resource management;
<bullet> Develops landing limits for all permit categories in the
NGOM and establishes an 800,000-lb (362,874-kg) NGOM Set-Aside trigger
for the NGOM directed fishery, with a sharing agreement for access by
all permit categories for allocation above the trigger. Allocation
above the trigger will be split 5 percent for the NGOM fleet and 95
percent for limited access and LAGC IFQ fleets;
[cir] The NGOM Set-Aside supports a directed LAGC fishery
(including NGOM and LAGC IFQ permitted vessels) at a possession limit
of 200 lb (90.7 kg) per vessel per day.
[cir] The Council will determine how allocation above the NGOM Set-
Aside trigger could be harvested by the limited access and LAGC IFQ
components in a subsequent specifications package or framework
adjustment.
<bullet> Expands the scallop industry-funded observer program to
monitor directed scallop fishing in the NGOM by using a portion of the
NGOM allocation to off-set monitoring costs;
<bullet> Allocates 25,000 lb (11,340 kg) of the NGOM allocation to
increase the overall Scallop Research Set-Aside (RSA) and support
Scallop RSA compensation fishing;
<bullet> Increases the LAGC IFQ possession limit from 600 lb (272
kg) to 800 lb (363 kg) per trip only for access area trips;
<bullet> Prorates the daily observer compensation rate in 12-hour
increments for observed LAGC IFQ trips longer than 1 day; and
<bullet> Allows for temporary transfers of IFQ from limited access
vessels with IFQ to LAGC IFQ-only vessels.
The Magnuson-Stevens Act requires NMFS to approve, partially
approve, or disapprove measures proposed by the Council based on
whether the measures are consistent with an FMP, the Magnuson-Stevens
Act and its National Standards, and other applicable law.
NMFS published a Notice of Availability (NOA) announcing its review
of the Amendment on September 8, 2021 (86 FR 50320). The public comment
period on the NOA ended on November 8, 2021. NMFS published a proposed
rule for Amendment 21 on October 5, 2021 (86 FR 54903). The public
comment period for the proposed rule ended on November 4, 2021.
Accounting for the NGOM as Part of the Acceptable Biological Catch and
Annual Catch Limit
Amendment 21 modifies the annual catch limit (ACL) flowchart to
account for the scallop biomass in the NGOM as part of the legal limits
in the fishery by adding biomass from the area into calculations of the
OFL and ABC. This action moves the accounting of the NGOM ACL from only
within the OFL into the OFL and ABC/ACL for the entire fishery (Figure
1). By including exploitable scallop biomass from the NGOM as part of
the scallop OFL and ABC, the ACL and sub-ACLs for the limited access
and LAGC IFQ, and the limited access annual catch target (ACT) will
increase. The observer set-aside will also increase with the NGOM as
part of the OFL/ABC. The ABC/ACL will be reduced by the NGOM Set-Aside
value, along with the Research and Observer Set-Asides and incidental
catch (Figure 1). The Council will set specifications for the NGOM
though future specifications actions.
[[Page 1689]]
The Council will use the following approach to include the NGOM in
the ACL flowchart:
1. Exploitable biomass from surveyed areas of the NGOM will be
estimated;
2. The contribution to the OFL will be calculated at the fishing
mortality (F) rate equal to the estimate of F at Maximum Sustainable
Yield (F<INF>MSY</INF>) for Georges Bank from the most recent research
or management track assessment, unless direct estimates of
F<INF>MSY</INF> for the Gulf of Maine are available; and
3. Combining OFL values from areas on Georges Bank/Mid Atlantic and
the NGOM could be done in a single model (e.g., add the NGOM to the
Scallop Area Management Simulator model), or as separate calculations.
The method will, in part, be determined by the available data.
Incorporating the NGOM into the ACL flowchart will have no impact
on limited access days-at-sea (DAS), or any other fishery allocation
that is part of the annual projected landings (APL).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR12JA22.026
BILLING CODE 3510-22-C
Creating the NGOM Total Allowable Limit
Amendment 21 requires that the Council set an overall total
allowable limit (TAL) for the NGOM management area for all permit
categories. If NGOM survey data are available, the NGOM TAL will be
developed using a projection method to estimate exploitable biomass in
upcoming fishing years. The allowable landings will be set by applying
an F rate ranging from F=0.15 to F=0.25 to exploitable biomass in open
areas of the NGOM, as specified by the Council. Modifying the F rate
used to set the NGOM TAL could be adjusted in a future specification or
framework action. A portion of the NGOM TAL will be added to the
fishery-wide RSA (described below). In addition, one percent of the
NGOM's contribution to the fishery-wide ABC will be removed from the
NGOM TAL to off-set monitoring costs (described below).
NGOM Set-Aside and NGOM Annual Projected Landings
The remaining portion of NGOM TAL after contributions to the
fishery-wide observer and RSAs are removed will then be allocated to
the NGOM Set-Aside up to the NGOM Set-Aside trigger (800,000 lb
(362,874 kg)). The NGOM Set-Aside supports a directed LAGC
[[Page 1690]]
fishery (including NGOM and LAGC IFQ permitted vessels) in the NGOM
Management Area at a possession limit of 200 lb (91 kg) per vessel per
day. If there is additional allocation available above the 800,000-lb
(362,874-kg) trigger, the allocation above the trigger will be shared
between the NGOM Set-Aside (5 percent of the allocation above the
trigger) and the NGOM APL (95 percent of the allocation above the
trigger). The NGOM APL will then be added to the overall APL to
increase allocations for the limited access and LAGC IFQ fleets. If
there is allocation above the NGOM Set-Aside trigger, the Council will
determine the methods of how the NGOM APL could be harvested by the
limited access and LAGC IFQ components in a subsequent specifications
package or framework adjustment.
The trip limit for LAGC vessels fishing the NGOM Set-Aside (i.e.,
NGOM and IFQ vessels) will be 200 lb (90.7 kg) per vessel per day.
Landings from LAGC IFQ vessels fishing the NGOM Set-Aside will be
deducted from their IFQ as well as from the NGOM Set-Aside. LAGC
vessels with incidental catch permits (LAGC Category C) will be
permitted to land up to 40 lb (18 kg) per day while fishing on non-
scallop trips in the NGOM, if the area is open for LAGC vessels fishing
against the NGOM Set-Aside. Scallop landings by vessels with LAGC
incidental permits will not count against the NGOM Set-Aside.
Incidental catch from the area will be tracked as part of the final
year-end catch accounting.
For catch accounting purposes, all landings from the NGOM will be
included in the review of year-end catch data.
NGOM Accountability Measures
Any overage of NGOM Set-Aside or NGOM APL allocations fished inside
the NGOM Management Area will be subject to a pound-for-pound payback
in a subsequent fishing year after an overage is determined. If
reliable data are available to calculate an overage (Year 1), NMFS may
implement these accountability measures (AM) in the following fishing
year (Year 2) through the rulemaking process for updated fishery
specifications. If reliable data are not available in time for the
start of the following fishing year, then the AMs will be implemented 2
years after the overage occurred (Year 3). Data may not be available by
the start of the following fishing year because NMFS does not complete
final catch accounting until June of the following fishing year. For
example, if an overage occurred in fishing year 2021, NMFS would not
have the final accounting data until June of fishing year 2022. The AMs
could then be implemented at the April 1 start of fishing year 2023.
Expanding the Scallop Industry-Funded Observer Program to the NGOM
Amendment 21 expands the observer call-in requirement to all
scallop vessels operating in the NGOM, including NGOM-permitted
vessels. This expansion of the call-in requirement facilitates observer
coverage in the NGOM Management Area.
This action removes one percent of the NGOM ABC from the NGOM TAL
to offset monitoring costs for vessels fishing in this area. This
allocation will be removed from the NGOM TAL before allocating to the
NGOM set-aside. This allocation could be used to support monitoring of
all permit categories that have access to the NGOM Management Area. The
NGOM monitoring set-aside will be added to the fishery-wide observer
set-aside that is calculated as one percent of the ABC.
The scallop observer program will be expanded to cover directed
scallop trips in Federal waters in the NGOM Management Area. Scallop
trips by LAGC vessels in the NGOM are currently not covered by the
observer program. This expanded program will utilize the cumulative
allocation of the NGOM observer set-aside and the observer set-aside to
support observer coverage in the scallop fishery. All compensation
allocation for all observed trips will come out of the same pool, and
NMFS will administer a single scallop observer program. At a minimum,
observer coverage levels for the NGOM Management Area will be set to
meet Standardized Bycatch Reporting Methodology requirements.
The amount of daily compensation available for LAGC trips in the
NGOM may vary from the daily compensation rate for LAGC IFQ vessels
that have a higher trip limit. Vessels selected to carry an observer
will be able to land the full amount of the daily observer compensation
rate in addition to the NGOM trip limit. For example, if the daily
compensation rate is set at 100 lb (45 kg), vessels with observers
would be able to land 300 lb (136 kg) that trip.
NGOM Research Set-Aside
Amendment 21 sets aside 25,000 lb (11,340 kg) from the NGOM TAL to
support RSA compensation fishing in the NGOM management area and
increase the overall allocation available for the scallop RSA program.
The total amount of RSA available will be the sum of the NGOM RSA and
the existing 1.25 million-lb (566,990-kg) fishery-wide RSA (i.e., 1.275
million lb (573,330 kg)).
RSA compensation fishing in the NGOM management area will be
allowed. Although, NGOM RSA will be combined with the overall RSA, RSA
compensation fishing in the NGOM will be capped at the available NGOM
RSA, i.e., 25,000 lb (11,340 kg). Any vessels that are awarded NGOM RSA
compensation are required to declare into the area and fish exclusively
within the NGOM Management Area. Compensation fishing in the NGOM
Management Area could be done to support any research project awarded
through the Scallop RSA. However, projects focusing on research in the
NGOM will have the first opportunity to fish compensation allocation in
the NGOM. NMFS would administer this process.
This action does not mandate that NGOM RSA be harvested strictly in
the NGOM Management Area. Vessels allocated NGOM RSA will have an
option to fish NGOM RSA in the NGOM or in any other area available to
RSA compensation fishing.
Limited Access General Category Individual Fishing Quota Possession
Limit
Amendment 21 increases the LAGC IFQ possession limit to 800 lb (363
kg) for access area trips and maintains the 600-lb (272-kg) possession
limit for open area trips. The LAGC IFQ component has been subject to a
possession limit since the program's inception through Amendment 11.
Interest in increasing the 600-lb (272-kg) trip limit through this
action is based on the continued increase of operating expenses, which
are principally driven by fuel costs associated with longer steam
times. For LAGC IFQ vessels that elect to do so, transiting farther
offshore to fish access areas with higher landings per unit of effort
and improved meat yield leads to increased trip costs due to higher
fuel expenses associated with longer steam times. Increasing the access
area possession limit will reduce the overall number of trips and
combined steam time needed to harvest quota from offshore access areas,
thereby reducing overall trip costs (i.e., fuel) and operating expenses
(i.e., vessel maintenance) relative to the current 600-lb (272-kg)
limit. Increasing the access area possession limit could offer LAGC IFQ
vessels more flexibility with regard to timing access area trips around
weather conditions, which could potentially improve safety in this
component of the fishery.
[[Page 1691]]
Observer Compensation Available for LAGC IFQ Vessels
Amendment 21 will make LAGC IFQ vessels eligible for additional
compensation when carrying an observer on board and fishing trips
longer than 1 day (24 hours). The daily compensation rate, as
determined by NMFS, will be prorated at 12-hour increments for trips
exceeding 24 hours. The amount of compensation a vessel could receive
on 1 trip would be capped at 2 days (48 hours) and vessels fishing
longer than 48 hours will not receive additional compensation
allocation. For example, if the observer compensation rate is 200 lb/
day (90.7 kg/day) and an LAGC IFQ vessel carrying an observer departs
on July 1 at 2200 and lands on July 3 at 0100, the length of the trip
would equal 27 hours, or 1 day and 3 hours. In this example, the LAGC
IFQ vessel would be eligible for 1 day plus 12 hours of compensation
allocation, i.e., 300 lb (136 kg). An LAGC IFQ vessel will be able to
harvest the trip limit and the daily compensation rate on the observed
trip, or the vessel could harvest any unfished compensation on a
subsequent trip while adhering to the commercial possession limit.
Temporary Transfer of IFQ From Limited Access Vessels With IFQ (Combo
Vessels) to LAGC IFQ-Only Vessels
Amendment 21 allows temporary transfers of IFQ from combo vessels
to LAGC IFQ-only permits and maintains the existing prohibition on
transferring quota to combo vessels. This action does not change how
IFQ is allocated. Quota accumulation caps remain consistent with the
limits established through Amendment 15 for LAGC IFQ-only permits,
regardless of any additional quota that may become available through
one-way, temporary transfers from combo vessels. An individual LAGC IFQ
permit still may not hold more than 2.5 percent of the IFQ allocated to
the LAGC IFQ component in a year and an ownership entity still may not
hold more than 5 percent of the IFQ allocated to the LAGC IFQ component
in a year. Allowing one-way, temporary transfers from combo vessels to
LAGC IFQ-only permits increases the overall level of quota available to
LAGC IFQ-only vessels, and it does not require changes to how
allocations are estimated and distributed among the two fleets.
Specifications and Framework Adjustment Process
The regulations at 50 CFR part 648.55 list management measures that
may be changed or implemented through specifications or framework
actions. During the development of Amendment 21, the Council identified
a list of specific issues that may be addressed through future
specifications actions or framework adjustments. The existing scallop
regulations do not need to be expanded to address concepts that the
Council would like to adjust through a specifications package or a
framework adjustment in the future. The Council's list included:
1. Sec. 648.55(f)(25) Set-asides for funding research;
a. Contribution of RSA percentage and/or assigned pounds from the
NGOM allocation.
2. Sec. 648.55(f)(31) Modifications to provisions associated with
observer set-asides; observer coverage; observer deployment; observer
service provider; and/or the observer certification regulations;
a. Observer set-aside percentage from the NGOM Allocation.
3. Sec. 648.55(f)(35) Adjustments to the Northern Gulf of Maine
scallop fishery measures;
a. Partition the NGOM into multiple sub-areas with separate
allocations;
b. Partition the NGOM Set-Aside is multiple seasons;
c. Modify the F rate used to set the NGOM TAL; and
d. Harvest methods of the NGOM APL by the IFQ and limited access
boats.
4. Sec. 648.55(f)(37) Increases or decreases in the LAGC
possession limit;
a. Accounting for access area trips in the LAGC IFQ fishery.
5. Sec. 648.55(f)(38) Adjustments to aspects of ACL management,
including accountability measures;
a. Modify how the NGOM is accounted for in the calculation of OFL,
ABC, and ACLs.
In addition, the Council clarified that it could develop options
for electronic monitoring to replace at-sea monitors in a future
framework based on existing language in these existing regulations:
1. Sec. 648.55(f)(31) Modifications to provisions associated with
observer set-asides; observer coverage; observer deployment; observer
service provider; and/or the observer certification regulations;
2. Sec. 648.11(g) Industry-funded monitoring programs. FMPs
managed by the Council, including Atlantic Herring, Atlantic Salmon,
Atlantic Sea Scallops, Deep-Sea Red Crab, Northeast Multispecies, and
Northeast Skate Complex, may include industry-funded monitoring (IFM)
programs to supplement existing monitoring required by the Standard
Bycatch Reporting Methodology (SBRM), Endangered Species Act, and the
Marine Mammal Protection Act. IFM programs may use observers, monitors,
including at-sea monitors and portside samplers, and electronic
monitoring to meet specified IFM coverage targets. The ability to meet
IFM coverage targets may be constrained by the availability of Federal
funding to pay NMFS cost responsibilities associated with IFM.
Regulatory Adjustments and Corrections Under Regional Administrator
Authority
NMFS is making several changes consistent with section 305(d) of
the Magnuson-Stevens Act, which provides that the Secretary of Commerce
may promulgate regulations necessary to ensure that amendments to an
FMP are carried out in accordance with the FMP and the Magnuson-Stevens
Act. These adjustments do not make any substantive changes to the
implications of the current regulations. First, NMFS revises Sec.
648.14(i) to more clearly define the prohibitions based on the scallop
regulations at Sec. 648 Subpart D. As a result, this rule includes
revisions to the regulatory text that reorganize and condense
references to possession limits and restrictions. The specific
regulations being revised or removed are specified in Table 1.
Second, in Sec. Sec. 648.2, 648.14(i), 648.52, 648.55, and 648.59,
NMFS makes revisions to consistently reference the Scallop Access Area
Program throughout the regulations. Third, in Sec. 648.14(i)(x), NMFS
clarifies the presumption related to where scallops are caught (i.e.,
Federal/state waters), not whether a vessel has a Federal scallop
permit. Fourth, NMFS updates Sec. Sec. 648.14(i)(x)(3)(iv)(B) and
648.52(a)(1) with a corrected reference to Sec. 648.10(f). Fifth, in
Sec. 648.52(b), (c), (d), (e), (f), NMFS adds headings for consistency
across paragraphs. Sixth, in Sec. 648.52(f), NMFS removes duplicative
possession limit language for IFQ vessels. Seventh, in Sec.
648.53(h)(3)(i)(A) and (B), NMFS clarifies that the IFQ accumulation
cap applies to the annual IFQ allocation, not the IFQ sub-ACL. Eighth,
in Sec. 648.53(h)(5)(i) and (ii), NMFS clarifies that these
regulations apply to IFQ permit holders regardless of whether the
permit is in confirmation of permit history (CPH). Ninth, in Sec.
648.59(b)(4), to promote safety at sea, at the request of the Council,
NMFS will allow vessels to enter or exit a Scallop Access Area more
than once per trip if there is a compelling safety reason.
Finally, due to the extensive regulatory changes in this action, we
are updating references throughout the scallop regulations that will
change based on these regulatory adjustments.
[[Page 1692]]
We have included a summary of all of the regulatory changes in this
rule in Table 1.
Table 1--Summary of Regulatory Changes to 50 CFR Part 648
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Section Authority Summary of changes
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Sec. Sec. 648.2, 648.14(i), 305(d)........... Changing to
648.52, 648.55, 648.59. consistently
reference the
Scallop Access Area
Program throughout
the regulations.
Sec. 648.14(i)(iii)......... 305(d)........... Clarifying possession
limits and
restrictions which
are already
described in Sec.
Sec. 648.52 and
648.59.
Sec. 648.14(i)(x)........... 305(d)........... Clarifying the
presumption related
to where scallops
are caught (i.e.,
Federal/state
waters), not whether
a vessel has a
Federal scallop
permit.
Sec. 648.14(i)(x)(3)(iii)(C) 305(d)........... Clarifying possession
and (D). limits and
restrictions which
are already
described in Sec.
648.52 for LAGC
vessels in the NGOM
are clearly stated
later in the section
specific to IFQ and
NGOM vessels.
Deleting to remove
duplicative text.
Sec. Sec. 305(d)........... Updating with
648.14(i)(x)(3)(iv)(B), corrected reference
648.52(a)(1). to Sec. 648.10(f).
Sec. 648.14(i)(x)(4)(i)(A).. 305(d) and Revising IFQ
Amendment 21. possession and
landing regulations
based on Amendment
21 measures. Clarify
regulations by
referencing IFQ
possession limits
for open and access
areas in Sec.
648.52(a).
Sec. 648.14(i)(x)(4)(i)(C).. Amendment 21..... Updating NGOM
landings and
possession
regulations with
Amendment 21
language (i.e., NGOM
Set-Aside).
Sec. 648.14(i)(x)(4)(i)(D) 305(d)........... Reducing duplicative
and (G). language around
possession and
landing limits that
are clearly stated
later in Sec.
648.52(a) and (c).
Sec. 648.14(i)(x)(5)(ii).... 305(d)........... Clarifying by cutting
duplicative landings
and possession
prohibition, and
referencing NGOM
possession limit
that is clearly
stated in Sec.
648.52(a).
Sec. 648.14(i)(x)(5)(iii)... Amendment 21..... Updating NGOM
regulations with
Amendment 21
language (i.e., NGOM
Set-Aside).
Sec. 648.14(i)(x)(6)........ 305(d)........... Clarifying
regulations by
removing duplicative
landing and
possession limit
prohibition for
incidental permits,
and referencing
incidental
possession limit
that is clearly
stated in Sec.
648.52.
Sec. 648.52(a)(1) and (2)... Amendment 21..... Updating regulations
with LAGC IFQ
possession limits
for open and access
area trips.
Sec. 648.52(a)(2)........... Amendment 21..... Clarifying that
default access area
trips in fishing
year 2022 will be
subject to the 600-
lb (272-kg) trip
limit.
Sec. 648.52(b), (c), (d), 305(d)........... Adding headings for
(e), (f). consistency.
Sec. 648.52(a)(2)........... Amendment 21..... Making in-shell
possession limit
consistent with
increased LAGC IFQ
access area trip
limit.
Sec. 648.52(b).............. Amendment 21..... Updating NGOM
regulations with
Amendment 21
language (i.e., NGOM
Set-Aside).
Sec. 648.52(f).............. 305(d)........... Removing duplicative
possession limit
language for IFQ
vessels.
Sec. 648.53(a)(3)(ii)....... Amendment 21..... Updating APL language
to incorporate NGOM
catch limit
measures.
Sec. 648.53(a)(8)........... Amendment 21..... Adding language
describing NGOM TAL
and allocation
structure.
Sec. 648.53(g)(1)........... Amendment 21..... Including NGOM
contribution to
observer set-aside.
Sec. 648.53(h)(3)(i)(A) and 305(d)........... Clarifying that the
(B). IFQ accumulation cap
applies to the
annual IFQ
allocation, not the
IFQ sub-ACL.
Sec. 648.53(h)(5)(i) and 305(d)........... Clarifying that these
(ii). regulations apply to
IFQ permit holders
regardless of
whether permit is in
CPH.
Sec. 648.53(h)(5)(i)(B)..... Amendment 21..... Specifying that
temporary transfers
from combo vessels
to IFQ-only are
allowed.
Sec. 648.53(h)(5)(ii)(A) and Amendment 21..... Clarifying that combo
(iii). vessels are
prohibited from
permanently
transferring or
receiving IFQ.
Sec. 648.55(a)(1)........... Amendment 21..... Updating language to
reflect NGOM catch
limits.
Sec. 648.56(d).............. Amendment 21..... Including NGOM
contribution to RSA.
Sec. 648.59(b)(4)........... 305(d)........... Adjusting to promote
safety at sea.
------------------------------------------------------------------------
Comments and Responses
We received eight comment letters on this action. Six individuals
commented in support of the action. One individual and Fisheries
Survival Fund (FSF), which represents the significant majority of full-
time Limited Access permit holders in the Atlantic scallop fishery,
commented in opposition to some measures in Amendment 21.
Comment 1: A general category industry member commented that the
IFQ possession limit should be increased to at least 1,000 lb (454 kg)
because vessels must travel 3 to 12 hours to fish in open and access
areas. He comments that increasing the trip limit to all areas would
reduce risk to
[[Page 1693]]
vessels and reduce trip costs and the carbon footprint of the fleet.
Response: Amendment 21 increases the IFQ possession limit to 800 lb
(363 kg) per trip for access area-only trips to address some of the
issues raised by the commenter. The higher possession limit in access
areas will reduce the number of trips and combined steam time needed to
harvest quota from offshore access areas, thereby reducing overall trip
costs (i.e., fuel) and operating expenses (i.e., vessel maintenance)
relative to the current 600-lb (272 kg) limit. Increasing the access
area possession limit to 800 lb (363 kg) could offer LAGC IFQ vessels
more flexibility with regard to timing access area trips around weather
conditions, which could potentially improve safety in this component of
the fishery. In developing Amendment 21, the Council balanced the
issues raised by the commenter and the Amendment's vision for the LAGC
component, ``a fleet made up of relatively small vessels, with
possession limits to maintain the historical character of this fleet
and provide opportunities to various participants including vessels
from smaller coastal communities.''
Comment 2: The same general category industry member commented that
the Council should close the entire NGOM to limited access vessels
because they decimate the available stock for the general category when
they fish in the area.
Response: The purpose of Amendment 21, specific to the NGOM, is to
allow for more controlled access by the limited access and LAGC
components and increase monitoring in ways that support a growing
directed scallop fishery in Federal waters. The 800,000-lb (362,874-kg)
set aside supports some additional participation in the NGOM fishery by
LAGC vessels without impacting the current harvest levels of existing
participants. Amendment 21 provides the Council with the tools to
control removals from the NGOM and better conserve the resource in the
area. Further, it provides the mechanism to develop more controlled
access to the NGOM by the limited access fleet once the allocation to
the area exceeds the NGOM set-aside trigger. The Council considered
limiting the cumulative maximum dredge width that could be fished in
the NGOM, but ultimately found that there is no biological benefit to
the resource in mandating smaller dredge sizes for the limited access
fleet in the NGOM.
Comment 3: FSF commented that the NGOM set-aside amount of 800,000
lb (362,874 kg) developed in Amendment 21 does not provide ``orderly
access'' to the limited access fleet because it would exclude limited
access participants even during years of abundance. FSF continues that
the recently-utilized 135,000-lb (61,235-kg) set-aside has already
accommodated growth of the NGOM fishery, which was created to be a
part-time dayboat fishery for vessels that predominately fish for other
species (via Amendment 11). NGOM trips are set at 200 lb (90.7 kg);
thus, under an 800,000-lb (362,874-kg) set-aside there would be 4,000
trips available, a number disproportionate to the size of the part-time
NGOM scallop fishery.
Response: Using an 800,000-lb (362,874-kg) trigger for the NGOM
set-aside supports increased fishing opportunities for all permit
categories in the area and addresses the Council's vision of continued
participation in the general category fishery at varying levels and
providing opportunities to various participants, including vessels from
smaller coastal communities, as stated in Amendment 11 and reaffirmed
through this action.
There are a total of 427 LAGC permits that potentially could fish
in the NGOM set-aside. In addition, there are 338 IFQ permits that
could fish the NGOM set-aside (765 vessels total). In 2019, 110 NGOM
permits were issued, and 41 vessels (a combination of NGOM and IFQ
vessels) landed scallops from the area. An 800,000-lb (362,874-kg)
trigger supports additional participation in the NGOM fishery by some
of the remaining 724 vessels that could access this fishery without
impacting the current harvest levels of existing participants.
Further, because the LAGC share of the NGOM total allowable catch
has been harvested in about a month in recent years (i.e., 2018-2021),
setting a trigger value above recent allocation levels has the
potential to lengthen the season for LAGC vessels and expand
opportunities across more of the fishing year.
When the allocation to the NGOM is over this trigger, 5 percent
will go to the NGOM set-aside, and 95 percent will go to the NGOM APL.
This is intended to support access to the scallop resource in the area
by limited access, LAGC IFQ, and LAGC NGOM vessels. Allocating 95
percent of the allocation over the trigger to the NGOM APL would
quickly increase the share for the limited access and LAGC IFQ as the
exploitable biomass in the area grows. This option would add to the
existing allocations for the limited access and LAGC IFQ that come from
Georges Bank and the Mid-Atlantic.
In 2017, the limited access fleet fished heavily in the NGOM on
DAS. The limited access fleet landed an estimated 1,578,020 lb (715,778
kg) of scallops from March 1 through March 22. This shows that NGOM is
capable of having biomass above the 800,000-lb (362,874-kg) trigger.
Comment 4: FSF commented that, since Amendment 11, set-aside has
been set at levels that are consistent with NGOM vessels' participation
in the fishery. For many years, the set-aside was 70,000 lb (31,751 kg)
and in 2019, it was increased to 135,000 lb (61,235 kg). Amendment 21,
however, would establish an annual set-aside of 800,000 lb (362,874 kg)
for NGOM vessels. FSF comments that this is not consistent with
historic allocations, nor is a set-aside of 800,000 lb (362,874 kg)
consistent with either Amendment 21's Purpose and Need or its Goals and
Objectives. Accordingly, FSF states that Amendment 21's allocation
approach is arbitrary and capricious. Achievable access to the NGOM is
important to the limited access fleet in the face of climate change and
potential shifts in species abundance and distribution.
Response: NMFS disagrees that the allocation approach was arbitrary
and that the allocation method is not consistent with the Purpose and
Need or the Goals and Objectives of the Amendment. The purpose of
Amendment 21, specific to the NGOM, is to allow for more controlled
access by the limited access and LAGC components and increase
monitoring in ways that support a growing directed scallop fishery in
Federal waters. The need for this action is to promote conservation of
the scallop resource in the NGOM and to manage total removals from the
area by all fishery components. The Goals and Objectives specific to
the NGOM are to:
1. Support a growing directed scallop fishery in Federal waters in
the NGOM;
2. Allow for orderly access to the scallop resource in this area by
the LAGC and limited access components; and
3. Establishing mechanisms to set allowable catches and accurately
monitor catch and bycatch from the NGOM.
Amendment 11 allowed limited access vessels to access the NGOM on
DAS. However, at the time, there had not been significant limited
access fishing in the area for many years. In 2016, the limited access
fleet began fishing in the area, landing 292,517 lb (132,683 kg) in 74
days before the area closed. In 2017, the limited access fleet returned
to the NGOM landing 1,578,020 lb (715,778 kg) of scallops in 23 days
before the area closed. It was this drastic increase in effort by the
limited access fleet on DAS that led to
[[Page 1694]]
the Council's desire to have better controls on limited access removals
from the NGOM to better conserve the resource in the area. Amendment 21
provides the Council with the tools to control removals from the NGOM
and better conserve the resource in the area. Further, it provides the
mechanism to develop more controlled access to the NGOM by the limited
access fleet once the allocation to the area exceeds the NGOM set-aside
trigger.
The 800,000-lb (362,874-kg) set-aside was not selected by the
Council to be allocated only to the vessels that are accessing the NGOM
currently. As stated above, there are a total of 427 LAGC permits and
338 IFQ permits that could fish the NGOM set-aside. In 2019, 110 NGOM
permits were issued, and 41 vessels (NGOM and IFQ) landed scallops from
the area. The 800,000-lb (362,874-kg) set aside supports some
additional participation in the NGOM fishery by LAGC vessels without
impacting the current harvest levels of existing participants.
Comment 5: FSF comments that the F rate being used to set the NGOM
scallop allocation has no official Council sanction, nor is it subject
to notice and comment rulemaking, as it should be. Nothing in Amendment
21 or its decision-making materials established this F range for the
NGOM annual harvest setting. They comment that it does not appear that
the Council considered either this F range or any methodology to set
any F range for the NGOM as part of its Amendment 21 deliberations.
Rather, at a meeting on February 27, 2020, the Scallop Committee passed
a motion ``to apply a range of F rates for setting the NGOM total
allowable landings (TAL) in allocation alternatives being considered in
Amendment 21 as F = 0.15 to F = 0.25.'' From there, FSF argues the F
rate was impermissibly taken as a given throughout the remainder of the
Amendment 21 development process and is included in the Amendment 21
proposed rule as if it had Council sanction.
Response: NMFS disagrees that the F rate was impermissibly taken as
a ``given.'' The motion in question specifically grants permission to
apply F rates of F = 0.15 to F = 0.25 to the NGOM allocation
alternatives. This motion carried 7-0-0 at the Scallop Oversight
Committee. The rationale for this motion states, ``Recent framework
actions have analyzed F rates from F = 0.15 up to F = 0.25. This could
be a way to grow the biomass in the NGOM management area and support
sustainable annual harvest. Modifying the F rate used to set the NGOM
TAL could be adjusted in a future framework.'' This rationale is
consistent with the need to promote conservation of the scallop
resource in the NGOM. Further, Amendment 21 is clear that the Council
can adjust the F rate for the NGOM in a future framework action to set
specifications annually, making it subject to notice and comment
rulemaking, annually. For future specifications-setting actions, the
Council is in no way bound by these F rates considered for the
allocation alternatives in Amendment 21.
Comment 6: FSF commented that the F rate for the NGOM was not
included as part of the Amendment 21 analyses, and that Amendment 21's
resulting economic analyses are therefore incomplete. The proposed rule
states that Amendment 21 ``maximizes yields and economic benefits,''
but the supporting analyses do not provide any practical indication of
its relative impacts on the NGOM and non-NGOM vessels, respectively.
FSF continues that, while the economic analyses compare the revenue
generated by the LAGC and limited access fleets, respectively, with
NGOM allocations of 100,000 lb (45,359 kg) to 6,000,000 lb (2,721,554
kg), these analyses do not integrate the F rate limit contained in
Amendment 21 into the analyses. FSF comments that the F rate is a
material element of the equation, and that an agency action is
arbitrary and capricious if it fails to consider an important aspect of
the problem.
Response: The NGOM is considered to be data poor relative to
Georges Bank and the mid-Atlantic. The Gulf of Maine, and the NGOM
management unit, have not been regularly surveyed for scallops. The
NGOM is outside the areas covered by the stock assessment models
(Georges Bank and the mid-Atlantic). The F rates considered in
Amendment 21 were selected to promote conservation. Further, because
the NGOM is currently considered data poor, during the discussion of
the motion to include these F rates, the Committee agreed that being
able to adjust fishing mortality rates in a future action will be
important, especially if methods to setting harvest levels in the NGOM
evolve/improve over time. Given this, and given that the F rates
considered in the Amendment 21 allocation alternatives are adjustable
during any specifications-setting framework, it is not necessary to
directly compare F rates as part of the allocation alternatives.
The economic analysis does address the relative impacts on limited
access and LAGC vessels. The economic impacts of this measure are
likely to be mixed and dependent on the size of the NGOM allocation.
When scallop biomass in the NGOM management area is relatively low, and
catch rates are low, the impact on the limited access component could
be negligible compared to No Action because these vessels would be
unlikely to fish their DAS in the management area rather than on
Georges Bank or in the mid-Atlantic. When the NGOM allocation is below
the set-aside trigger, the limited access and LAGC IFQ components would
not receive any additional allocation, which would also be the case
under No Action.
Compared to No Action, the preferred alternative is expected to
have a direct positive impact when the NGOM allocation is above the
set-aside trigger because the limited access and LAGC IFQ components
would receive 95 percent of the allocation above the trigger, have
access to the area, and would not have to fish DAS when accessing the
area. This allocation would be in addition to the allocations from
Georges Bank and the mid-Atlantic that these permit holders receive
each year. This is particularly important if the spatial extent of the
scallop resource shifts in response to climate change. Further, because
the preferred alternative would set landings limits for all components,
there is a lower risk of harvest exceeding the allocation to the area
compared to No Action.
Comment 7: FSF comments that if the F for the NGOM were set close
to F = 0.39, a set-aside of 800,000 lb (362,874 kg) would still be
largely exclusionary. Under Amendment 21, revenues for the limited
access fleet would not equalize with the NGOM vessels until 1,688,888
lb (766,067 kg) of scallops are harvested from the NGOM. Conversely,
under the 95 percent/5 percent split and a 500,000-lb (226,796-kg) NGOM
set-aside, revenues would equalize between the two fleets at roughly
1,000,000 lb (453,592 kg).
Response: As stated above, in fishing year 2017, the limited access
fleet harvested 1,578,020 lb (715,778 kg) from the NGOM in 23 days. The
Council believes that these levels of harvest are possible again and
developed Amendment 21 to account for scenarios where removals were
more consistent with removals from other areas in Georges Bank and the
mid-Atlantic (i.e., millions of lb instead of hundreds of thousands of
lb).
Comment 8: FSF commented that, the NGOM is part of the Atlantic sea
scallop stock's range that must be managed as a unit under National
Standard 3.
Response: The Council manages the scallop resource throughout its
range. Under the Scallop FMP, target fishing
[[Page 1695]]
mortality rate and stock biomass are applied to the scallop resource,
which spans from North Carolina to the U.S./Canada boundary. This
represents the entire range of scallop stocks under Federal
jurisdiction. Amendment 21 accounts for the scallop biomass in the NGOM
as part of the legal limits in the fishery by adding biomass from the
area into calculations of the OFL and ABC. Amendment 21 moves the
accounting of the NGOM ACL from only within the OFL into the OFL and
ABC/ACL for the entire fishery. The NGOM ACL will be set consistent
with how the rest of the scallop fishery is managed, at the catch level
equal to the F that has a 75-percent probability of remaining below the
F associated with overfishing.
Comment 9: FSF comments that prorating the daily observer
compensation rate in 12-hour increments for observed LAGC IFQ trips
longer than 1 day threatens to reopen a loophole where IFQ vessels
modify their behavior and fishing patterns to extend their trips to
purposefully benefit from the additional compensation. Further, FSF
comments that there is also no conservation benefit to the allocation
contained in this proposed rule change, which is a known and documented
detriment.
Response: NMFS disagrees. Aligning the amount that vessels can be
compensated when carrying an observer with the length of a typical LAGC
IFQ trip will reduce the risk of observer bias in the LAGC IFQ fishery.
This is true in the current fishery that has a 600-lb (272-kg) trip
limit and would hold true in the future with the larger 800-lb (363-kg)
possession limit in access areas (i.e., areas further offshore that
take longer to access), which could result in longer trips. Currently,
LAGC IFQ vessels are allowed 1 day of compensation for carrying an
observer regardless of the length of a trip, but are required to assume
the cost of having the observer on board even when a trip exceeds the
1-day limit. Prorating additional compensation in 12-hour increments
over one 24-hour day and capping the amount of compensation that could
be allocated on a single trip would make the level of compensation to a
vessel more accurate with regard to the cost of carrying an observer on
board for the full length of a trip and reduce the incentive for
vessels to fish longer trips for the purpose of receiving additional
compensation. Relieving vessels of the additional cost burden for trips
of over 1 day will reduce the likelihood that fishing behavior will be
different for observed trips versus unobserved trips. In addition,
considering that observer data is a critical need for accurately
characterizing the behavior of the LAGC IFQ component and for
documenting interactions with protected species, non-target species,
and discards, it is likely that reducing any potential observer bias
would reduce uncertainty around the impacts of these interactions and
improve observer data when analyzed by the Council in future
specifications actions. Having less uncertainty in the data streams
used to inform impacts of the scallop fishery would likely have
conservation benefits to the fishery as a whole in the future.
Comment 10: FSF strongly supports the 95/5 percent split above the
set aside.
Response: NMFS thanks FSF for the comment.
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this Amendment and final
rule are consistent with the Amendment 21, other provisions of the
Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866.
This final rule does not contain policies with federalism or
``takings'' implications, as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification.
During the development of preferred alternatives in Amendment 21,
NMFS and the Council considered ways to reduce the regulatory burden
and provide flexibility to the regulated community. The measures
implemented by Amendment 21 related to NGOM allocations and the LAGC
IFQ possession limit in access areas, along with other Amendment 21
actions, increase the economic benefits on small entities both in the
short- and long-term. The action for the NGOM allocation adjusts
landing limits and related research and observer set-asides based on
annual scallop surveys in the NGOM area, leading to increased harvest
and wider fishery participation in the future. However, there would be
no change to the LAGC IFQ allocation when increasing the LAGC IFQ
possession limit in access areas.
Overall, the preferred alternatives in Amendment 21 ensure that
catch levels are sustainable, reduce the risk of overfishing, and
maximize yield and economic benefits. The establishment of the NGOM
Set-Aside and the increase to the LAGC IFQ access area possession limit
are expected to have an immediate positive economic gain with potential
for increased fishing participants/participation or effort,
particularly in the NGOM area when there are more scallop fishing
opportunities. The preferred alternatives in other actions of Amendment
21 also have overall positive economic effects benefitting both small
and large entities.
As a result, a regulatory flexibility analysis is not required and
none has been prepared.
This final rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA). This rule revises the
existing requirements for the collection of information OMB Control No.
0648-0546 by expanding the number of vessels required to carry
observers and call-in to the observer program. Prior to Amendment 21,
NGOM-permitted vessels were not required to carry observers. Amendment
21 would require that NGOM vessels call in to the observer program and,
when selected, procure and carry an observer. Expanding the observer
call-in requirement to directed scallop fishing in the NGOM means that
monitoring requirements will be consistent for all scallop permit types
across the entirety of the Atlantic sea scallop resource within the
U.S. Exclusive Economic Zone. This change increases the number of
respondents by 110 (512 respondents to 622 respondents). This results
in an additional 933 burden hours (5,252 hours to 6,185 hours) and an
additional $5,608 ($44,937 to $50,545) in total annual cost burden to
the respondents. Public reporting burden for calling into the observer
program is estimated to average 10 minutes, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
We invite the general public and other Federal agencies to comment
on proposed and continuing information collections, which helps us
assess the impact of our information collection requirements and
minimize the public's reporting burden. Written comments and
recommendations for this
[[Page 1696]]
information collection should be submitted on the following website:
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by using the search function and entering either the title
of the collection or the OMB Control Number 0648-0546.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: January 6, 2022.
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 amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, revise the definition of ``Open areas'' to read as
follows:
Sec. 648.2 Definitions.
* * * * *
Open areas, with respect to the Atlantic sea scallop fishery, means
any area that is not subject to restrictions of the Scallop Access Area
Program specified in Sec. Sec. 648.59 and 648.60, the Northern Gulf of
Maine Management Area specified in Sec. 648.62, Habitat Management
Areas specified in Sec. 648.370, Dedicated Habitat Research areas
specified in Sec. 648.371, the Frank R. Lautenberg Deep-Sea Coral
Protection Area described in Sec. 648.372, or the New England Deep-Sea
Coral Protection Area in Sec. 648.373.
* * * * *
0
3. In Sec. 648.14:
0
a. Revise paragraphs (i)(1)(iii) and (x), the paragraph (i)(2)(vi)
subject heading, and paragraphs (i)(2)(vi)(C), (D), and (E);
0
b. Remove paragraphs (i)(3)(iii)(C) and (D);
0
c. Revise paragraph (i)(3)(iv)(B), (i)(3)(v)(C) and (D), and
(i)(4)(i)(A);
0
d. Remove and reserve paragraph (i)(4)(i)(B);
0
e. Revise paragraph (i)(4)(i)(C);
0
f. Remove and reserve paragraph (i)(4)(i)(D);
0
g. Remove paragraphs (i)(4)(i)(G) and (H);
0
h. Revise paragraphs (i)(4)(ii)(A) and (B);
0
i. Remove and reserve paragraph (i)(5)(ii);
0
j. Revise paragraph (i)(5)(iii); and
0
l. Remove paragraph (i)(6).
The revisions read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(i) * * *
(1) * * *
(iii) Possession and landing. Fish for, land, or possess on board a
vessel per trip, or possess at any time prior to a transfer to another
person for a commercial purpose, other than solely for transport on
land in excess of any of the possession and/or landing limits described
in Sec. Sec. 648.52 and 648.59.
* * * * *
(x) Presumption. For purposes of this section, the following
presumption applies: Scallops that are possessed or landed at or prior
to the time when the scallops are received by a dealer, or scallops
that are possessed by a dealer, are deemed to be harvested from the
EEZ, unless the preponderance of evidence demonstrates that such
scallops were harvested by a vessel fishing exclusively for scallops in
state waters.
* * * * *
(2) * * *
(vi) Scallop Rotational Area Management Program and Scallop Access
Area Program requirements.
* * * * *
(C) Fish for, possess, or land scallops in or from a Scallop Access
Area in excess of the vessel's remaining specific allocation for that
area as specified in Sec. 648.59(b)(3) or the amount permitted to be
landed from that area.
(D) Possess more than 50 bu (17.6 hL) of in-shell scallops outside
the boundaries of a Scallop Access Area by a vessel that is declared
into the Scallop Access Area Program as specified in Sec. 648.59.
(E) Fish for, possess, or land scallops in or from any Scallop
Access Area without an observer on board, unless the vessel owner,
operator, or manager has received a waiver to carry an observer for the
specified trip and area fished.
* * * * *
(3) * * *
(iv) * * *
(B) Fail to comply with any requirement for declaring in or out of
the LAGC scallop fishery or other notification requirements specified
in Sec. 648.10(f).
* * * * *
(v) * * *
(C) Fish for or land per trip, or possess in excess of 40 lb (18.1
kg) of shucked scallops at any time in or from any Scallop Access Area
specified at Sec. 648.60, unless declared into the Scallop Access Area
Program.
(D) Fish for, possess, or land scallops in or from any Scallop
Access Area without an observer on board, unless the vessel owner,
operator, or manager has received a waiver to carry an observer for the
specified trip and area fished.
* * * * *
(4) * * *
(i) * * *
(A) Fish for or land per trip, or possess at any time, in excess of
the possession and landing limits described in Sec. 648.52(a).
* * * * *
(C) Declare into the NGOM scallop management area and fish against
the NGOM Set-Aside after the effective date of a notification published
in the Federal Register stating that after the NGOM Set-Aside has been
harvested as specified in Sec. 648.62, unless the vessel is fishing
exclusively in state waters, declared a state-waters only NGOM trip,
and is participating in an approved state waters exemption program as
specified in Sec. 648.54, or unless the vessel is participating in the
scallop RSA program as specified in Sec. 648.56.
* * * * *
(ii) * * *
(A) Have an ownership interest in vessels that collectively are
allocated more than 5 percent of the total IFQ scallop APL as specified
in Sec. 648.53(a)(9).
(B) Have an IFQ allocation on an IFQ scallop vessel of more than
2.5 percent of the total IFQ scallop APL as specified in Sec.
648.53(a)(9).
* * * * *
(5) * * *
(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 LAGC share of the NGOM
Set-Aside has been harvested as specified in Sec. 648.62, unless the
vessel is fishing exclusively in state waters, declared a state-waters
only NGOM trip, and is participating in an approved state waters
exemption program as specified in Sec. 648.54, or unless the vessel is
participating in the scallop RSA program as specified in Sec. 648.56.
* * * * *
0
4. In Sec. 648.52, revise paragraphs (a) through (f) to read as
follows:
[[Page 1697]]
Sec. 648.52 Possession and landing limits.
(a) IFQ trips--(1) Open area trips. A vessel issued an IFQ scallop
permit that is declared into the IFQ scallop fishery in the open area,
as specified in Sec. 648.10(f), or on a properly declared NE
multispecies, surfclam, or ocean quahog trip (or other fishery
requiring a VMS declaration) and not fishing in a scallop access area,
unless as specified in paragraph (g) of this section or exempted under
the state waters exemption program described in Sec. 648.54, may not
possess or land, per trip, more than 600 lb (272 kg) of shucked
scallops, or possess more than 75 bu (26.4 hL) of in-shell scallops
shoreward of the VMS Demarcation Line. Such a vessel may land scallops
only once in any calendar day. Such a vessel may possess up to 100 bu
(35.2 hL) of in-shell scallops seaward of the VMS Demarcation Line on a
properly declared IFQ scallop trip, or on a properly declared NE
multispecies, surfclam, or ocean quahog trip, or other fishery
requiring a VMS declaration, and not fishing in a scallop access area.
(2) Access areas trips. A vessel issued an IFQ scallop permit that
is declared into the IFQ Scallop Access Area Program, as specified in
Sec. 648.10(f), may not possess or land, per trip, more than 800 lb
(363 kg) of shucked scallops, or possess more than 100 bu (35.2 hL) of
in-shell scallops shoreward of the VMS Demarcation Line. Such a vessel
may land scallops only once in any calendar day. Such a vessel may
possess up to 100 bu (35.2 hL) of in-shell scallops seaward of the VMS
Demarcation Line on a properly declared IFQ scallop access area trip.
Vessels fishing the 2022 default access area trips shall be subject to
a 600-lb (272-kg) possession limit, as described in Sec.
648.59(g)(3)(v).
(b) NGOM trips. A vessel issued an NGOM scallop permit, or an IFQ
scallop permit that is declared into the NGOM scallop fishery and
fishing against the NGOM Set-Aside as described in Sec. 648.62, unless
exempted under the state waters exemption program described under Sec.
648.54, may not possess or land, per trip, more than 200 lb (90.7 kg)
of shucked scallops, or possess more than 25 bu (8.81 hL) of in-shell
scallops shoreward of the VMS Demarcation Line. Such a vessel may land
scallops only once in any calendar day. Such a vessel may possess up to
50 bu (17.6 hL) of in-shell scallops seaward of the VMS demarcation
line on a properly declared NGOM scallop fishery trip.
(c) Incidental trips. A vessel issued an Incidental scallop permit,
or an IFQ scallop permit that is not declared into the IFQ scallop
fishery or on a properly declared NE multispecies, surfclam, or ocean
quahog trip or other fishery requiring a VMS declaration as required
under Sec. 648.10(f), unless exempted under the state waters exemption
program described under Sec. 648.54, may not possess or land, per
trip, more than 40 lb (18.1 kg) of shucked scallops, or possess more
than 5 bu (1.76 hL) of in-shell scallops shoreward of the VMS
Demarcation Line. Such a vessel may land scallops only once in any
calendar day. Such a vessel may possess up to 10 bu (3.52 hL) of in-
shell scallops seaward of the VMS Demarcation Line.
(d) Limited access vessel access area trips. Owners or operators of
vessels with a limited access scallop permit that have properly
declared into the Scallop Access Area Program as described in Sec.
648.59 are prohibited from fishing for or landing per trip, or
possessing at any time, scallops in excess of any sea scallop
possession and landing limit set by the Regional Administrator in
accordance with Sec. 648.59(b)(5).
(e) Limited access vessel open area in-shell scallop possession
limit. Owners or operators of vessels issued limited access permits are
prohibited from fishing for, possessing, or landing per trip more than
50 bu (17.6 hl) of in-shell scallops shoreward of the VMS Demarcation
Line, unless when fishing under the state waters exemption specified
under Sec. 648.54.
(f) Limited access vessel access area in-shell scallop possession
limit. A limited access vessel that is declared into the Scallop Area
Access Program as described in Sec. 648.59, may not possess more than
50 bu (17.6 hL) of in-shell scallops outside of the Access Areas
described in Sec. 648.60.
* * * * *
0
5. In Sec. 648.53:
0
a. Revise paragraphs (a)(3)(ii) and (a)(8);
0
b. Add paragraph (a)(9); and
0
c. Revise paragraphs (g)(1), (h)(3)(i)(A) and (B), (h)(5)(i),
(h)(5)(ii)(A), and (h)(5)(iii).
The revisions and addition read as follows:
Sec. 648.53 Overfishing limit (OFL), acceptable biological catch
(ABC), annual catch limits (ACL), annual catch targets (ACT), annual
projected landings (APL), DAS allocations, individual fishing quotas
(IFQ).
(a) * * *
(3) * * *
(ii) APL. The APL shall be equal to the combined projected landings
by the limited access and LAGC IFQ, in open areas, access areas, and
Northern Gulf of Maine management area after set-asides (RSA, NGOM, and
observer) and incidental landings are accounted for, for a given
fishing year. Projected scallop landings are calculated by estimating
the landings that will come from open area, access area, and Northern
Gulf of Maine effort combined for both limited access and LAGC IFQ
fleets. These projected landings shall not exceed the overall ABC/ACL
and ACT, as described in paragraph (a) of this section.
* * * * *
(8) Northern Gulf of Maine Total Allowable Landings (TAL). The NGOM
TAL is the landings available for harvest from the NGOM Management
Area. The TAL shall be set by applying a fishing mortality rate of F =
0.15 to F = 0.25 to exploitable biomass estimated from open areas of
the NGOM.
(i) NGOM Observer Set-Aside. The NGOM TAL shall be reduced by 1
percent to off-set monitoring costs for vessels fishing in this area.
The NGOM monitoring set-aside would be added to the fishery-wide
observer set-aside, as described in paragraph (g) of this section.
(ii) NGOM Research Set-Aside. The NGOM TAL shall be reduced by
25,000 lb (11,340 kg) to be added to the fishery-wide research set-
aside, as described in Sec. 648.56(d).
(iii) Northern Gulf of Maine Set-Aside. The NGOM Set-Aside shall be
the portion of the NGOM TAL that is available for harvest by the LAGC
IFQ and NGOM fleets at 200 lb (90.7 kg) per trip per day as set through
specifications. After the observer and research set-asides are removed,
the first 800,000 lb (362,874 kg) of the NGOM TAL shall be allocated to
the NGOM Set-Aside. For all allocation above 800,000 lb (362,874 kg), 5
percent shall go to the NGOM Set-Aside, and 95 percent shall go to the
NGOM Annual Projected Landings.
(iv) NGOM APL. The NGOM APL shall be the portion of the NGOM TAL
that is available for harvest for the limited access and LAGC IFQ
fleets set through specifications after the observer and research set-
asides are removed and the first 800,000 lb (362,874 kg) of the NGOM
TAL are allocated to the NGOM Set-Aside. For all allocation above
800,000 lb (362,874 kg), 5 percent shall go to the NGOM set-aside, and
95 percent shall go to the NGOM APL. The method in which the limited
access and LAGC IFQ components will access the NGOM APL will be
determined in future specifications.
(9) Scallop fishery catch limits. The following catch limits will
be effective for the 2021 and 2022 fishing years:
[[Page 1698]]
Table 1 to Paragraph (a)(9)--Scallop Fishery Catch Limits
------------------------------------------------------------------------
Catch limits 2021 (mt) 2022 (mt) \1\
------------------------------------------------------------------------
OFL..................................... 45,392 41,926
ABC/ACL (discards removed).............. 30,517 28,074
Incidental Catch........................ 23 23
RSA..................................... 567 567
Observer Set-Aside...................... 305 281
ACL for fishery......................... 29,622 27,203
Limited Access ACL...................... 27,993 25,707
LAGC Total ACL.......................... 1,629 1,496
LAGC IFQ ACL (5 percent of ACL)......... 1,481 1,360
Limited Access with LAGC IFQ ACL (0.5 148 136
percent of ACL)........................
Limited Access ACT...................... 24,260 22,279
APL (after set-asides removed).......... 17,269 (1)
Limited Access APL (94.5 percent of APL) 16,319 (1)
Total IFQ Annual Allocation (5.5 percent 950 712
of APL) \2\............................
LAGC IFQ Annual Allocation (5 percent of 863 648
APL) \2\...............................
Limited Access with LAGC IFQ Annual 86 65
Allocation (0.5 percent of APL) \2\....
------------------------------------------------------------------------
\1\ The catch limits for the 2022 fishing year are subject to change
through a future specifications action or framework adjustment. This
includes the setting of an APL for 2022 that will be based on the 2021
annual scallop surveys. The 2022 default allocations for the limited
access component are defined for DAS in paragraph (b)(3) of this
section and for access areas in Sec. 648.59(b)(3)(i)(B).
\2\ As specified in paragraph (a)(6)(iii)(B) of this section, the 2022
IFQ annual allocations are set at 75 percent of the 2021 IFQ Annual
Allocations.
* * * * *
(g) * * *
(1) To help defray the cost of carrying an observer, 1 percent of
the ABC/ACL defined in paragraph (a)(3) of this section and 1 percent
of the NGOM ABC/ACL shall be set aside to be used by vessels that are
assigned to take an at-sea observer on a trip. This observer set-aside
is specified through the specifications or framework adjustment process
defined in Sec. 648.55.
* * * * *
(h) * * *
(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 IFQ-
only annual allocation to the IFQ scallop vessels as described in
paragraph (a)(6) of this section.
(B) A vessel may be initially issued more than 2.5 percent of the
IFQ-only annual allocation allocated to the IFQ scallop vessels as
described in paragraph (a)(6) of this section, if the initial
determination of its contribution factor specified in accordance with
Sec. 648.4(a)(2)(ii)(E) and paragraph (h)(2)(ii) of this section,
results in an IFQ that exceeds 2.5 percent of the IFQ-only annual
allocation to the IFQ scallop vessels as described in paragraph (a)(6)
of this section. A vessel that is allocated an IFQ that exceeds 2.5
percent of the IFQ-only annual allocation to the IFQ scallop vessels as
described in paragraph (a)(6) of this section, in accordance with this
paragraph (h)(3)(i)(B), may not receive IFQ through an IFQ transfer, as
specified in paragraph (h)(5) of this section. All scallops that have
been allocated as part of the original IFQ allocation or transferred to
a vessel during a given fishing year shall be counted towards the
vessel cap.
* * * * *
(5) * * *
(i) Temporary IFQ transfers--(A) IFQ-only vessels. Subject to the
restrictions in paragraph (h)(5)(iii) of this section, the owner of an
IFQ scallop vessel (and/or IFQ scallop permit in confirmation of permit
history) not issued a limited access scallop permit may temporarily
transfer (e.g., lease) its entire IFQ allocation, or a portion of its
IFQ allocation, to another IFQ scallop vessel (and/or IFQ scallop
permit in confirmation of permit history) not issued a limited access
scallop permit. Temporary IFQ transfers shall be effective only for the
fishing year in which the temporary transfer is requested and
processed. IFQ can be temporarily transferred more than once (i.e., re-
transferred). For example, if a vessel temporarily transfers IFQ to a
vessel, the transferee vessel may re-transfer any portion of that IFQ
to another vessel. There is no limit on how many times IFQ can be re-
transferred in a fishing year. The Regional Administrator has final
approval authority for all temporary IFQ transfer requests.
(B) Limited access vessels with LAGC IFQ. Subject to the
restrictions in paragraph (h)(5)(iii) of this section, the owner of a
limited access vessel with LAGC IFQ (and/or a limited access permit
with LAGC IFQ in confirmation of permit history) may temporarily
transfer (e.g., lease) its entire IFQ allocation, or a portion of its
IFQ allocation, to an IFQ-only scallop vessel that does not have a
limited access permit. Temporary IFQ transfers shall be effective only
for the fishing year in which the temporary transfer is requested and
processed. IFQ can be temporarily transferred more than once (i.e., re-
transferred). The Regional Administrator has final approval authority
for all temporary IFQ transfer requests.
* * * * *
(ii) * * *
(A) Subject to the restrictions in paragraph (h)(5)(iii) of this
section, the owner of an IFQ scallop vessel (and/or IFQ scallop permit
in confirmation of permit history) not issued a limited access scallop
permit may transfer IFQ permanently to or from another IFQ scallop
vessel (and/or IFQ scallop permit in confirmation of permit history)
not issued a limited access scallop permit. Any such transfer cannot be
limited in duration and is permanent as to the transferee, unless the
IFQ is subsequently permanently transferred to another IFQ scallop
vessel. IFQ may be permanently transferred to a vessel and then be re-
transferred (temporarily transferred (i.e., leased) or permanently
transferred) by such vessel to another vessel in the same fishing year.
There is no limit on how many times IFQ can be re-transferred in a
fishing year. Limited access vessels with LAGC IFQ permits
[[Page 1699]]
are prohibited from permanently transferring or receiving IFQ.
* * * * *
(iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel
(and/or IFQ scallop permit in confirmation of permit history) not
issued a limited access scallop permit may transfer that vessel's IFQ
to another IFQ scallop vessel, regardless of whether or not the vessel
has fished under its IFQ in the same fishing year. Requests for IFQ
transfers cannot be less than 100 lb (46.4 kg), unless that the
transfer reflects the total IFQ amount remaining on the transferor's
vessel, or the entire IFQ allocation. IFQ may be temporarily or
permanently transferred to a vessel and then temporarily re-transferred
(i.e., leased) or permanently re-transferred by such vessel to another
vessel in the same fishing year. There is no restriction on how many
times IFQ can be re-transferred. A transfer of an IFQ may not result in
the sum of the IFQs on the receiving vessel exceeding 2.5 percent of
the allocation to IFQ-only 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 allocation to IFQ-only scallop
vessels. Limited access scallop vessels that are also issued an IFQ
scallop permit may not permanently transfer or receive IFQ. Further,
they may not temporarily receive IFQ.
* * * * *
0
6. In Sec. 648.55, revise paragraph (a)(1) and paragraph (f)
introductory text to read as follows:
Sec. 648.55 Specifications and framework adjustments to management
measures.
(a) * * *
(1) The Scallop Plan Development Team (PDT) shall meet at least
every 2 years to assess the status of the scallop resource and to
develop and recommend the following specifications for a period of up
to 2 years, as well as second or third-year default measures, for
consideration by the New England Fishery Management Council's Atlantic
Sea Scallop Oversight Committee and Advisory Panel: OFL, overall ABC/
ACL, sub-ACLs, sub-ACTs, DAS open area allocations, possession limits,
modifications to rotational area management (e.g., schedule, rotational
closures and openings, seasonal restrictions, modifications to
boundaries, etc.), access area limited access poundage allocations and
LAGC IFQ fleet-wide trip allocations, annual incidental catch target
TAC, and NGOM TAL.
* * * * *
(f) Framework adjustments. The Council may at any time initiate a
framework adjustment to add or adjust management measures within the
Scallop FMP if it finds that action is necessary to meet or be
consistent with the goals and objectives of the FMP. The Council shall
develop and analyze appropriate management actions over the span of at
least two Council meetings. To address interactions between the scallop
fishery and sea turtles and other protected species, such adjustments
may include proactive measures including, but not limited to, the
timing of Sea Scallop Access Area openings, seasonal closures, gear
modifications, increased observer coverage, and additional research.
The Council shall provide the public with advance notice of the
availability of both the proposals and the analyses, and opportunity to
comment on them prior to and at the second Council meeting. The
Council's recommendation on adjustments or additions to management
measures may include specifications measures specified in paragraph (a)
of this section, which must satisfy the criteria set forth Sec.
648.53(a) in order to prevent overfishing of the available biomass of
scallops and ensure that OY is achieved on a continuing basis. Other
measures that may be changed or implemented through framework action
include:
* * * * *
0
7. In Sec. 648.56, revise paragraph (d) to read as follows:
Sec. 648.56 Scallop research.
* * * * *
(d) Available RSA allocation shall be 1.275 million lb (578 mt)
annually, which shall be deducted from the ABC/ACL specified in Sec.
648.53(a) prior to setting ACLs for the limited access and LAGC fleets,
as specified in Sec. 648.53(a)(3) and (4), respectively. Approved RSA
projects shall be allocated an amount of scallop allocation that can be
harvested in open areas, available access areas, and the NGOM. The
specific access areas that are open to RSA harvest and the amount of
NGOM allocation to be landed through RSA harvest shall be specified
through the framework process as identified in Sec. 648.59(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 allocation needed to
fund each research project. Recipients may begin compensation fishing
in open areas prior to approval of the framework, or wait until NMFS
approval of the framework to begin compensation fishing within approved
access areas.
* * * * *
0
8. In Sec. 648.59, revise the section heading and paragraphs (a)
introductory text, (a)(3), (b)(4), (g)(3)(i), and (g)(4)(ii) to read as
follows:
Sec. 648.59 Scallop Rotational Area Management Program and Scallop
Access Area Program requirements.
(a) The Scallop Rotational Area Management Program consists of
Scallop Rotational Areas, as defined in Sec. 648.2. Guidelines for
this area rotation program (i.e., when to close an area and reopen it
to scallop fishing) are provided in Sec. 648.55(a)(6). Whether a
rotational area is open or closed to scallop fishing in a given year,
and the appropriate level of access by limited access and LAGC IFQ
vessels, are specified through the specifications or framework
adjustment processes defined in Sec. 648.55. When a rotational area is
open to the scallop fishery, it is called an Access Area and scallop
vessels fishing in the area are subject to the Scallop Access Area
Program Requirements specified in this section. Areas not defined as
Scallop Rotational Areas specified in Sec. 648.60, Habitat Management
Areas specified in Sec. 648.370, or areas closed to scallop fishing
under other FMPs, are governed by other management measures and
restrictions in this part and are referred to as Open Areas.
* * * * *
(3) Transiting a Scallop Access Area. Any sea scallop vessel that
has not declared a trip into the Scallop Access Area Program may enter
a Scallop Access Area, and possess scallops not caught in the Scallop
Access Areas, for transiting purposes only, provided the vessel's
fishing gear is stowed and not available for immediate use as defined
in Sec. 648.2. Any scallop vessel that has declared a trip into the
Scallop Area Access Program may not enter or be in another Scallop
Access Area on the same trip except such vessel may transit another
Scallop Access Area provided its gear is stowed and not available for
immediate use as defined in Sec. 648.2, or there is a compelling
safety reason to be in such areas without such gear being stowed. A
vessel may only transit the Closed Area II Scallop Rotational Area, as
defined in Sec. 648.60(d), if there is a compelling safety reason for
transiting the area and the vessel's fishing gear is
[[Page 1700]]
stowed and not available for immediate use as defined in Sec. 648.2.
(b) * * *
(4) Area fished. While on a Scallop Access Area trip, a vessel may
not fish for, possess, or land scallops in or from areas outside the
Scallop Access Area in which the vessel operator has declared the
vessel will fish during that trip, and may not enter or exit the
specific declared Scallop Access Area more than once per trip unless
there is a compelling safety reason. A vessel on a Scallop Access Area
trip may not enter or be in another Scallop Access Area on the same
trip except such vessel may transit another Scallop Access Area as
provided for under paragraph (a)(3) of this section.
* * * * *
(g) * * *
(3) * * *
(i) An LAGC scallop vessel authorized to fish in the Scallop
Rotational Areas specified in Sec. 648.60 or in paragraph (g)(3)(iv)
of this section may land scallops, subject to the possession limit
specified in Sec. 648.52(a)(2), unless the Regional Administrator has
issued a notice that the number of LAGC IFQ access area trips have been
or are projected to be taken. All LAGC IFQ access area trips must be
taken in the fishing year that they are allocated (i.e., there are no
carryover trips). The total number of LAGC IFQ trips in an Access Area
is specified in the specifications or framework adjustment processes
defined in Sec. 648.55.
* * * * *
(4) * * *
(ii) Other species. Unless issued an LAGC IFQ scallop permit and
fishing under an approved NE multispecies SAP under NE multispecies
DAS, an LAGC IFQ vessel fishing in the Closed Area I, Closed Area II,
Closed Area II Extension, and Nantucket Lightship Rotational Areas
specified in Sec. 648.60, and the Nantucket Lightship North Scallop
Access Area specified in paragraph (g)(3)(iv) of this section is
prohibited from possessing any species of fish other than scallops and
monkfish, as specified in Sec. 648.94(c)(8)(i). Such a vessel may fish
in an approved SAP under Sec. 648.85 and under multispecies DAS in the
scallop access area, provided that it has not declared into the Scallop
Access Area Program. Such a vessel is prohibited from fishing for,
possessing, or landing scallops.
[FR Doc. 2022-00367 Filed 1-11-22; 8:45 am]
BILLING CODE 3510-22-P
</pre></body>
</html>Indexed from Federal Register on January 12, 2022.
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