[Federal Register: April 14, 2008 (Volume 73, Number 72)]
[Rules and Regulations]
[Page 20089-20133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ap08-22]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 648
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Amendment 11; Final Rule
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 071130780-8013-02]
RIN 0648-AU32
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Amendment 11
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is implementing approved measures contained in Amendment
11 to the Atlantic Sea Scallop Fishery Management Plan (FMP), developed
by the New England Fishery Management Council (Council). Amendment 11
was developed by the Council to control the capacity of the open access
general category fleet. Amendment 11 establishes a new management
program for the general category scallop fishery, including a limited
access program with individual fishing quotas (IFQs) for qualified
general category vessels, a specific allocation for general category
fisheries, and other measures to improve management of the general
category scallop fishery.
DATES: Effective June 1, 2008.
ADDRESSES: A final supplemental environmental impact statement (FSEIS)
was prepared for Amendment 11 that describes the action and other
considered alternatives and provides a thorough analysis of the impacts
of the approved measures and alternatives. Copies of Amendment 11 and
the FSEIS are available on request from Paul J. Howard, Executive
Director, New England Fishery Management Council (Council), 50 Water
Street, Newburyport, MA 01950. These documents are also available
online at: http://www.nero.noaa.gov/nero/hotnews/scallamend11/.
Written comments regarding the burden-hour estimate or other
aspects of the collection-of-information requirement contained in this
final rule should be submitted to the Regional Administrator at 1
Blackburn Drive, Gloucester, MA 01930, and by e-mail to David_
Rostker@omb.eop.gov, or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Peter Christopher, Fishery Policy
Analyst, phone 978-281-9288, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
Prior to the implementation of Amendment 11, the general category
scallop fishery was an open access fishery allowing any vessel to fish
for up to 400 lb (181.4 kg) of Atlantic sea scallops (scallops),
provided the vessel has been issued a general category or limited
access scallop permit. This open access fishery was established in 1994
by Amendment 4 to the FMP (Amendment 4) to allow vessels fishing in
non-scallop fisheries to catch scallops as incidental catch, and to
allow a small-scale scallop fishery to continue outside of the limited
access and effort control programs that applied to the large-scale
scallop fishery. Over time, participation in the general category
fishery has increased. In 1994, there were 1,992 general category
permits issued. By 2005 that number had increased to 2,950. In 1994,
181 general category vessels landed scallops, while in 2005 more than
600 did.
Out of concern about the level of fishing effort and harvest from
the general category scallop fleet, the Council recommended that a
Federal Register notice be published to notify the public that the
Council was considering limiting entry to the general category scallop
fishery as of a specified control date. NMFS subsequently established
the control date of November 1, 2004 (69 FR 63341). In January 2006,
the Council began the development of Amendment 11 to evaluate
alternatives for a limited access program and other measures for
general category vessels. The Council held 35 public meetings on
Amendment 11 between January 2006 and June 2007. After considering a
wide range of issues, alternatives, and public input, the Council
adopted a draft supplemental environmental impact statement (DSEIS) for
Amendment 11 on April 11, 2007. Amendment 11 was adopted by the Council
on June 20, 2007. The Notice of Availability (NOA) for Amendment 11 was
published on November 30, 2007, (72 FR 67691) with a comment period
ending on January 29, 2008. A proposed rule for Amendment 11 was
published on December 17, 2007 (72 FR 71315), with a comment period
ending on January 31, 2008. On February 27, 2008, NMFS approved
Amendment 11 on behalf of the Secretary of Commerce.
Amendment 11 establishes criteria and authority for determining the
percentage of scallop catch allocated to the general category fleet,
and establishes the IFQ program. However, these specific allocation
amounts have been developed by the Council as part of Framework 19 to
the FMP (Framework 19), which will establish scallop fishery management
measures for the 2008 and 2009 fishing years.
Approved Measures
In a comment letter on the proposed rule, the Council suggested
interpretations of the Council's intent regarding some of the measures
and regulations. NMFS has accepted some of the Council's
interpretations and clarifications which are reflected in the
descriptions of the management measures and in the regulatory text in
this final rule. Responses to comments identify whether NMFS agreed or
disagreed with the Council's recommendations. Changes in the
descriptions of the management measures from the proposed rule's
descriptions are noted below. Changes in the regulatory text from the
proposed rule are noted under ``Changes from Proposed Rule to Final
Rule'' in the preamble of this final rule.
The FSEIS for Amendment 11 included a description of each of the
measures approved by the Council, but the description of the measures
lack the regulatory detail necessary to ensure effective implementation
and administration of the approved management measures. Under its
authority granted by section 305(d) of the Magnuson-Stevens Act (16
U.S.C. Sec. 1855(d)), NMFS added regulatory provisions in the proposed
rule and in this final rule to ensure that the regulations are
sufficiently detailed to ensure effective implementation,
administration, and enforcement of the approved measures. While most of
the measures described below required such additional regulatory
detail, the most prominent regulatory additions appear in the limited
access permit program, IFQ transfers, transition to IFQ, and Sector
provisions.
Limited Access Program for the General Category Fishery
Amendment 11 requires vessels to be issued a limited access general
category (LAGC) scallop permit in order to land scallops under general
category rules. All general category permits are limited access,
requiring that a vessel owner submit an application demonstrating that
the vessel is eligible for the permit. The current general category
permits (1A-non VMS, and 1B-VMS permits) are replaced with three types
of LAGC scallop permits: IFQ LAGC scallop permit (IFQ scallop permit);
Northern Gulf of Maine (NGOM) LAGC scallop permit (NGOM scallop
permit); and
[[Page 20091]]
incidental catch LAGC scallop permit (Incidental scallop permit).
A vessel is eligible to be issued an IFQ scallop permit if NMFS
records verify that the vessel landed at least 1,000 lb (454 kg) of
scallop meats in any fishing year between March 1, 2000, and November
1, 2004, and a general category scallop permit had been issued to the
vessel during the fishing year in which the landings were made.
The owner of a vessel who cannot qualify for an IFQ scallop permit
can instead choose to apply for and be issued an NGOM or Incidental
scallop permit. These permits have the same qualification requirement
but have different restrictions. A vessel owner might choose the NGOM
scallop permit if he or she wanted to land up to 200 lb (90.7 kg) per
trip and fish exclusively within the most Northern portion of the
scallop resource. A vessel owner might choose the Incidental scallop
permit if he or she wants to retain up to 40 lb (18.1 kg) of scallops
per trip while fishing for other species.
A vessel qualifies for the NGOM or Incidental scallop permit if it
was issued a valid general category scallop permit as of November 1,
2004. There are no landings eligibility criteria. The NGOM scallop
permit allows the vessel to fish in the NGOM exclusively, defined as
the waters north of 42[deg]20' N. lat. and within the Gulf of Maine
Scallop Dredge Exemption Area as defined in Sec. 648.80(a)(11), and
are subject to additional restrictions outlined in the description of
the NGOM Scallop Management Area below. The Incidental scallop permit
allows a vessel to possess and land up to 40 lb (18.1 kg) of scallops
per trip in all areas and is intended to allow landing of incidental
scallop catch. The Council also indicated in its description of this
measure that some vessels that qualify for an IFQ scallop permit may
opt for the Incidental scallop permit because it allows vessels to land
an incidental catch of scallops on an unlimited number of trips. In
response to the proposed rule, the Council commented that a vessel that
qualifies for an IFQ permit, but for which the owner elects to be
issued an NGOM or Incidental scallop permit, automatically qualifies
for an NGOM scallop permit. This clarification was necessary because a
vessel that qualifies for an IFQ scallop permit would not necessarily
meet the requirement that it held a general category scallop permit as
of November 1, 2004 (i.e., it could have been issued a general category
only in 1 year prior to the 2004 fishing year). However, the Council
intended that the NGOM and Incidental Catch scallop permits have more
liberal qualification requirements, allowing a qualified IFQ scallop
vessel to choose the other permit category.
Initial Application for a LAGC Scallop Permit
A vessel owner is required to submit an initial application for a
LAGC scallop permit or confirmation of permit history (CPH) within 90
days of the effective date of the final regulations. The Council
recommended the shorter than usual application period to expedite the
transition to the IFQ program. The IFQ program cannot be implemented
until all IFQ permits are issued because the number of vessels and the
contribution factors for all qualified IFQ scallop vessels will be used
to determine each vessel's IFQ share of the TAC allocated to IFQ
scallop vessels (see ``IFQs for Limited Access General Category Scallop
Vessels'' below).
Limited Access Vessel Permit Provisions
Amendment 11 establishes measures to govern future transactions
related to limited access vessels, such as purchases, sales, or
reconstruction. These measures apply to all LAGC scallop vessels. The
Council clarified that this was the Council's intent. Except as noted,
the provisions in Amendment 11 are consistent with those that govern
most of the other Northeast region limited access fisheries; there are
some differences in the limited access program for American lobster.
1. Initial Eligibility
Initial eligibility for an LAGC scallop permit must be established
during the first year after the implementation of Amendment 11. A
vessel owner is required to submit an application for an LAGC scallop
permit or CPH no later than 90 days from effective date of this final
rule.
2. Landings History
Amendment 11 specifies landings and permit history criteria that a
vessel must meet to qualify for LAGC permits. It also specifies that an
IFQ scallop vessel will be allocated IFQ based on its best year of
scallop landings and the number of fishing years it was active during
the qualification period of March 1, 2000, through November 1, 2004.
Amendment 11 specifies that qualifying landings must be from the same
scallop fishing year (March 1 through February 28/29, or through
November 1, 2004, for the 2004 fishing year) that a vessel was issued a
general category scallop permit during the qualification period.
Therefore, this final rule requires that, for any landings to be used
in determining eligibility, best year of fishing, years active, and the
resulting contribution factor, the vessel must have been issued a
general category scallop permit in the fishing year the landings were
made.
The best year of scallop landings is the scallop fishing year
during the qualification period with the highest amount of scallop
meats landed, provided the vessel was issued a general category scallop
permit. Years active is the number of scallop fishing years during the
qualification period (through November 1, 2004) that the vessel landed
at least 1 lb (0.45 kg) of scallops, provided the vessel was issued a
general category scallop permit. In-shell scallop landings reported in
pounds of scallops are converted to meat-weight using the formula of
8.33 lb (3.78 kg) of scallop meats for each pound of in-shell scallops,
for qualification purposes. In-shell scallop landings reported in
bushels of scallops are converted to meat-weight using the formula of 8
lb (3.63 kg) of scallop meats per bushel of in-shell scallops.
NMFS landings data from dealer reports will be used to determine a
vessel's eligibility for an IFQ scallop permit, a qualified IFQ scallop
vessel's best year of scallop landings, and years active in the general
category scallop fishery. The NMFS permit database shall be used to
determine permit criteria eligibility for all LAGC scallop permits.
Applicants are allowed to appeal the denial of an LAGC permit, or
contribution factor (based on best year and years active), through the
eligibility appeals process described below.
The Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) restricts the release of confidential fishery
information to anyone other than the owner of the vessel at the time
the data were compiled. Due to this restriction, for qualifying vessel
IFQ information, for vessels that are currently owned by someone other
than the owner of the vessel that made the landings, NMFS may be
restricted in the release of the contribution factor if the release of
such information is inconsistent with the MSA. NMFS understands that
this may add complexity to the qualification and appeals process, but
will work with vessel owners to ensure fairness in the appeals process.
3. Confirmation of Permit History
A person who does not currently own a fishing vessel, but who has
owned a qualifying vessel that has sunk, or been destroyed, or
transferred to another person, is required to apply for and receive a
CPH if the fishing and permit
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history of such vessel has been retained lawfully by the applicant and
the applicant wishes to maintain eligibility for an LAGC scallop
permit. An application for a CPH to establish the initial LAGC
qualification of a vessel must be made within 90 days of the effective
date of the final regulations for Amendment 11. The CPH provides a
benefit to a vessel owner by securing limited access eligibility
through a registration system when the individual does not currently
own a vessel. To be eligible to obtain a CPH, the applicant must show
that the qualifying vessel meets the eligibility requirements for the
applicable LAGC permit, and that all other permit restrictions
described below are satisfied. Issuance of a valid CPH preserves the
eligibility of the applicant to apply for an LAGC permit for a
replacement vessel based on the qualifying LAGC scallop vessel's
fishing and permit history at a subsequent time. A CPH must be applied
for in order for the applicant to preserve the LAGC scallop permit
eligibility of the qualifying vessel. IFQ would be issued for IFQ
scallop vessels in CPH, and IFQ associated with a CPH can be
transferred. IFQ associated with a CPH counts toward a vessel owner's
overall ownership of IFQ, and is restricted under the 5-percent
ownership cap.
4. Permit Transfers
An LAGC scallop permit and fishery history is presumed to transfer
with a vessel at the time it is bought, sold, or otherwise transferred
from one owner to another, unless it is retained through a written
agreement signed by both parties in the vessel sale or transfer.
5. Permit Splitting
Amendment 11 includes the permit-splitting provision currently in
effect for other limited access fisheries in the Northeast region for
transactions occurring after the initial qualification and permit
issuance period. Therefore, after the initial issuance of an LAGC
scallop permit, it cannot be issued to a vessel if the vessel's permit
or fishing history has been used to qualify another vessel for a
limited access permit. This means all limited access permits, including
LAGC scallop permits, must be transferred as a package when a vessel is
replaced or sold. However, Amendment 11 explicitly states that the
permit-splitting provision does not apply to the transfer/sale of
general category scallop fishing history prior to the implementation of
Amendment 11, if any limited access permits were issued to the subject
vessel, with the exception of limited access vessels that qualify for
an LAGC scallop permit. Thus, vessel owners who sold vessels with
limited access permits and retained the general category scallop
fishing history with the intention of qualifying a different vessel for
the LAGC scallop permit are allowed to do so under Amendment 11. A
vessel with an existing limited access scallop permit (i.e., full-time,
part-time, or occasional) that also qualifies for an LAGC scallop
permit cannot split the LAGC scallop permit or fishing history from the
limited access scallop permit.
6. Qualification Restriction
Except as provided under the permit splitting provision above,
consistent with previous limited access programs, no more than one
vessel can qualify, at any one time, for a limited access permit or CPH
based on that or another vessel's fishing and permit history, unless
more than one owner has independently established fishing and permit
history on the vessel during the qualification period and has either
retained the fishing and permit history, as specified above, or owns
the vessel at the time of initial application under Amendment 11. If
more than one vessel owner claimed eligibility for a limited access
permit or CPH, based on a vessel's single fishing and permit history,
the NMFS Northeast Regional Administrator (Regional Administrator) will
determine who is entitled to qualify for the permit or CPH.
7. Appeal of Permit Denial
Amendment 11 specifies an appeals process for applicants who have
been denied an LAGC scallop permit. Such applicants may appeal in
writing to the Regional Administrator within 30 days of the denial, and
any such appeal must be based on the grounds that the information used
by the Regional Administrator was incorrect.
The appeals process allows an opportunity for a hearing before a
hearing officer designated by the Regional Administrator. The owner of
a vessel denied an LAGC scallop permit can fish for scallops under the
applicable general category scallop regulations, provided that the
denial has been appealed, the appeal is pending, and the vessel has on
board a letter from the Regional Administrator authorizing the vessel
to fish under the LAGC scallop permit category. The Regional
Administrator shall issue such a letter for the pendency of any appeal,
if requested. If the appeal is ultimately denied, the Regional
Administrator shall send a notice of final denial to the vessel owner;
and the authorizing letter would become invalid 5 days after receipt of
the notice of denial, but no longer than 10 days after the date that
the denial letter is sent.
8. Vessel Upgrades
A vessel issued an LAGC scallop permit is not limited by vessel
size upgrade restrictions if the owner wished to modify or replace the
vessel. However, if that vessel has also been issued limited access
permits under Sec. 648.4 that have upgrade restrictions (i.e., all
other limited access permits issued in accordance with Sec. 648.4),
the upgrade restrictions for that fishery shall apply to any
modification or replacement, unless the permit with the restrictions
were permanently relinquished as specified under ``voluntary
relinquishment of eligibility,'' below.
9. Vessel Baselines
A vessel's baseline refers to those specifications (length overall,
gross registered tonnage, net tonnage, and horsepower) from which any
future vessel size change is measured. Because there are no vessel size
upgrade restrictions, a vessel issued an LAGC scallop permit does not
have baseline size and horsepower specifications. However, if that
vessel has also been issued limited access permits under Sec. 648.4
that have upgrade restrictions, any size change shall be restricted by
those baseline specification requirements, unless those permits were
permanently relinquished as specified in ``voluntary relinquishment of
eligibility'' below.
10. Vessel Replacements
The term vessel replacement (vessel replacement), in general,
refers to replacing an existing limited access vessel with another
vessel. This final rule requires that the same entity must own both the
LAGC scallop vessel (or fishing history) that is being replaced, and
the replacement vessel. Unlimited upgrades of vessel size and
horsepower through a vessel replacement is allowed, unless the vessel
to be replaced is restricted on upgrades because it has been issued
other limited access permits pursuant to Sec. 648.4.
11. Ownership Cap
A vessel issued an IFQ scallop permit may not be allocated more
than 2 percent of the TAC allocated to the fleet of vessels issued IFQ
scallop permits. In addition, an individual may not have ownership
interest in more than 5 percent of the TAC allocated to the fleet of
vessels issued IFQ scallop permits. The only exceptions to these
ownership cap provisions are if a vessel's initial contribution factor
results in the
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ownership of more than 2 percent of the overall TAC initially upon
initial application for the IFQ scallop permit, or if the vessel owner
owns more than 5 percent of the overall TAC initially upon initial
application for the IFQ scallop permits. This restriction does not
apply to existing limited access scallop vessels that also have been
issued an IFQ scallop permit, since such vessels are already subject to
the 5-percent ownership cap for limited access permits and because such
vessels would not be permitted to transfer IFQ between vessels.
12. Voluntary Relinquishment of Eligibility
A vessel owner can voluntarily exit the LAGC fishery by permanently
relinquishing the permit. In some circumstances, doing so would allow
vessel owners to choose between different permits, with different
restrictions, without being bound by the more restrictive requirement
(e.g., lobster permit holders may choose to relinquish their other
Northeast region limited access permits to avoid being subject to the
reporting requirements associated with those other permits). If a
vessel's LAGC scallop permit or CPH is voluntarily relinquished to the
Regional Administrator, no LAGC scallop permit can ever be reissued or
renewed based on that vessel's permit and fishing history.
13. Permit Renewals and CPH Issuance
A vessel owner must maintain the limited access permit status for
an eligible vessel by renewing the permits on an annual basis or
applying for issuance of a CPH. All LAGC scallop permits must be issued
on an annual basis by the last day of the fishing year for which the
permit is required, unless a CPH has been issued. However, as a
condition of the permit, the vessel may not fish for, catch, possess,
or land, in or from Federal or state waters, any species of fish
authorized by the permit, unless and until the permit has been issued
or renewed in any fishing year, or the permit either has been
voluntarily relinquished or otherwise forfeited, revoked, or
transferred from the vessel. A complete application for such permits
must be received no later than 30 days before the last day of each
fishing year. A CPH does not need to be renewed annually. Once a CPH
has been issued to an individual who has retained the LAGC scallop
permit and fishing history of a vessel, it remains valid until it is
replaced by a vessel permit through the vessel replacement process.
A vessel's LAGC scallop permit history shall be cancelled due to
the failure to renew, in which case no LAGC scallop permit can ever be
reissued or renewed based on that vessel's permit and fishing history.
Amendment 11 establishes an IFQ cost recovery program, with the
payment procedures and details to be established in Framework 19. Under
the IFQ program, up to 3 percent of the ex-vessel value of IFQ scallop
landings will be collected by NMFS to offset the cost of managing,
enforcing, and implementing the IFQ program, as required by the
Magnuson-Stevens Act. NMFS will not renew an IFQ scallop permit for a
subsequent fishing year for a vessel for which the owner failed to pay
cost recovery fees by the specified due date. If a vessel owner fails
to pay his or her cost recovery fee by the end of the fishing year for
which the IFQ scallop permit has not been renewed due to failure to pay
the cost recovery fee, no IFQ scallop permit could ever be reissued or
renewed based on that vessel's permit and fishing history. The Council
has proposed detailed cost recovery provisions as part of Framework 19
to the FMP.
Limited Access Scallop Vessels Fishing Under General Category Rules
A vessel issued one of the existing limited access scallop permits
(i.e., a full-time, part-time, or occasional scallop permit) may also
be eligible to be issued a LAGC scallop permit if it meets the
qualification criteria described above. Such a vessel is allowed to
fish under general category regulations when not fishing under the
scallop DAS or Area Access programs. Existing limited access scallop
vessels were not required to be issued a general category scallop
permit. Therefore, to be issued an Incidental or NGOM scallop permit,
the limited access vessel must have been issued a valid limited access
scallop permit as of November 1, 2004. To be issued the IFQ scallop
permit, an existing limited access scallop vessel must have been issued
a valid limited access scallop permit during the period March 1, 2000,
through November 1, 2004, and must meet the landings criteria specified
in ``Limited Access Program for the General Category Fishery'' and
``Landings History'' above. LAGC scallop permit eligibility established
while the vessel was also a limited access scallop vessel cannot be
split from the limited access vessel. Limited access scallop vessels
that also qualify for an IFQ scallop permit cannot transfer IFQ.
Therefore, neither the general category maximum allocation restriction
nor the maximum percentage ownership restriction for general category
TAC apply. The limited access general category permit and IFQ scallop
permit cannot be split from the limited access scallop permit. A
limited access scallop vessel that does not qualify for a LAGC scallop
permit cannot fish for, possess, or retain scallops when not fishing
under the scallop DAS and Area Access programs.
Allocation of the Total Annual Projected Scallop Catch to the General
Category Fishery Under the IFQ Program
Once the IFQ program is implemented, 5 percent of the total
projected annual scallop catch will be allocated to vessels with IFQ
scallop permits. This will be calculated by deducting estimated catch
by Incidental scallop vessels from the total projected annual scallop
catch. Five percent of the resultant catch will then be allocated to
the IFQ scallop fishery. IFQs for IFQ scallop vessels will be derived
from the 5-percent TAC allocation. The 5-percent allocation will not
apply to current limited access vessels that also have IFQ scallop
permits. Limited access scallop vessels with IFQ scallop permits will
be allocated 0.5 percent of the total projected annual scallop catch
after deduction of incidental catch. IFQs for these vessels will be
derived from the 0.5-percent TAC allocation. The remaining 94.5 percent
of the total projected annual scallop catch, after deduction of
incidental catch, shall be allocated for harvest by the current limited
access scallop fishery. Based on a comment from the Council, NMFS has
clarified that the NGOM TAC will not be deducted from the overall TACs,
as was incorrectly described in the proposed rule preamble.
IFQs for Limited Access General Category Scallop Vessels
A vessel issued an IFQ scallop permit will be allocated a
percentage of the TAC allocated to the IFQ scallop fishery based on the
vessel's ``contribution factor.'' The contribution factor for each
vessel will be determined by multiplying a vessel's best fishing year
of landings during the March 1, 2000, through November 1, 2004,
qualification period by an index factor based on the number of years
the vessel was active in the scallop fishery during the qualification
period. A vessel will be determined to have been active in the scallop
fishery if it landed at least 1 lb (0.45 kg) of scallops. Landings to
determine the best year and years active must have been from November
1, 2004, or earlier during the March 1, 2000, through November 1, 2004,
qualification period. The index factors for varying levels of
participation during the
[[Page 20094]]
qualification period are: 0.75 for 1 year; 0.875 for 2 years; 1.0 for 3
years; 1.125 for 4 years; and 1.25 for 5 years. The index factor is
intended to provide more weight in calculating the allocation for
vessels that participated in the general category fishery for a longer
period of time. A vessel's contribution percentage will be determined
by dividing its contribution factor by the sum of the contribution
factors of all vessels issued a limited access general category scallop
permit. A vessel's IFQ shall be determined by multiplying the TAC for
IFQ scallop vessels by the vessel's contribution percentage. The IFQs
will be rounded up to the nearest 10 lb (4.5 kg). IFQ will be issued to
owners of CPHs, since that vessel's contribution would be included in
the determination of IFQs as described below. IFQ associated with a CPH
is transferable.
The following is an example of how a vessel's IFQ will be
determined, using hypothetical values: A vessel landed 48,550 lb
(22,023 kg) of scallops in its best year, and was active in the general
category scallop fishery for 5 years. The vessel's contribution factor
would be equal to 60,687 lb (27,527 kg) (48,550 lb (22,023 kg) x 1.25 =
60,687 lb (27,527 kg)). In this example, the highest total scallop
landings is assumed to be 3.8 million lb (1,724 mt), and the number of
qualifying vessels is assumed to be 380. The sum of the contribution
factors for limited access general category scallop vessels is assumed
to be 4.18 million lb (1,896 mt). The contribution percentage of the
above vessel would therefore be 1.45 percent (60,687 lb (27,527 kg) /
4.18 million lb (1,896 mt) = 1.45 percent). The vessel's IFQ would be
the vessel's contribution percentage (1.45 percent) multiplied by the
TAC allocated to all IFQ scallop vessels. Assuming a TAC equal to 2.5
million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg)
(1.45 percent x 2.5 million lb (1,134 mt) = 36,250 lb (16,443 kg)).
The IFQ program cannot be implemented until all IFQ scallop permits
and CPHs have been issued because the calculation of the IFQ shares
requires the contribution factors for all qualified IFQ scallop vessels
to be totaled. However, eligibility, best year, and the contribution
factor for each vessel will be determined upon initial application for
a limited access general category scallop permit. This issue is
discussed under the ``Measures for the Transition Period to IFQ''
description below.
IFQ Transfers
IFQ scallop vessel and CPH owners can transfer IFQ on a temporary
or permanent basis. A temporary IFQ transfer (or lease) allows one IFQ
scallop vessel to combine IFQs to increase fishing opportunity for a
single fishing year. A permanent IFQ transfer permanently moves the IFQ
from one vessel to another. Since a permanent IFQ transfer requires the
vessel to transfer the IFQ scallop permit (and any other permits) to
the transferee, the transferring vessel is not eligible to enter into
an agreement to transfer IFQ back to the vessel, unless the vessel
replaced another IFQ scallop vessel. Each IFQ allocation must be
transferred in full before it is utilized, and a vessel that uses IFQ
in a fishing year cannot transfer its IFQ during that fishing year. An
IFQ can be transferred only once in a fishing year. An IFQ transfer
will not be approved if it would result in the receiving IFQ scallop
vessel having a share of more than 2 percent of the total TAC
allocation to the IFQ fishery. IFQ transfers will not be permitted for
existing limited access scallop vessels that also have been issued an
IFQ scallop permit.
IFQ Cost Recovery
The Magnuson-Stevens Act requires any Limited Access Privilege
Program which includes IFQ programs to include a cost recovery program,
whereby NMFS would collect up to 3 percent of ex-vessel value of landed
product to cover actual costs directly related to management, data
collection, and enforcement of an IFQ program. The authority and
procedures for collection of cost recovery fees are established in this
rule. Further details of the cost recovery program have been proposed
in Framework 19, in which TACs would be established for LAGC scallop
vessels. The proposed rule for Amendment 11 specified that the cost
recovery fee for an IFQ that was temporarily transferred to another IFQ
scallop vessel would be the responsibility of the owner of the
transferring IFQ scallop vessel, not the owner of the receiving IFQ
scallop vessel. However, in developing the actual IFQ cost recovery
provisions in Framework 19, NMFS has determined that both vessel owners
involved in IFQ transfers may be held responsible for non-payment of
cost recovery fees. Therefore, this final rule clarifies that the
transferor and transferee would be held jointly and severally
responsible for non-payment of the cost recovery fee.
Measures for the Transition Period to IFQ
Amendment 11 recognizes that it will take 12 to 24 months, or
longer, to determine the universe of qualified vessels that would be
issued an IFQ scallop permit. The time is necessary to accommodate
applicants who pursue permits through the appeals process. As a result,
it will not be possible to implement an IFQ program at the same time
that NMFS is in the process of determining eligibility and contribution
factors. Recognizing the timing issue, Amendment 11 specifies measures
for a transition period. During the transition period, the general
category scallop fishery will be allocated 10 percent of the total
projected scallop catch. The resulting TAC will be divided by quarter
(Q1: March through May; Q2: June through August; Q3: September through
November; Q4: December through February). Framework 19 proposes the
percentage allocation of the TAC for each quarter. Vessels that qualify
for an IFQ scallop permit and vessels under appeal for an IFQ scallop
permit will be authorized to fish for scallops, subject to the
quarterly TAC, with all landings counted toward the TAC. When the TAC
is projected to be attained, the general category fishery will close
for the remainder of the quarter. Any underage or overage of the first
quarter will be applied to the third quarter, and any underage or
overage of the second and/or third quarter will be applied to the
fourth quarter. The quarterly TACs for the 2008 fishing year, beginning
March 1, 2008, will be specified in Framework 19. A quarterly TAC is
proposed rather than an annual TAC due to concerns about derby fishing.
This quarterly distribution of TAC is intended to reduce the negative
effects of a race to take the TAC. The 10-percent allocation will
result in a TAC that is intended to be consistent with recent
projections for scallop mortality from the general category fishery and
will account for additional effort expected from vessels under the
appeals process.
Although there appears to be some confusion based on the comment
from the Council about the level of scallop TAC to be allocated to the
general category scallop fishery in the unlikely event that the IFQ
program is not implemented by the start of the 2010 fishing year,
Amendment 11 clearly states that the level should be 10 percent for the
entire transition period, without regard to how long it takes.
Therefore, NMFS has specified in this final rule that the 10-percent
allocation of TAC to the general category scallop fishery, divided by
quarter, would continue beyond the 2009 fishing year if the IFQ program
cannot be implemented.
[[Page 20095]]
Mechanism To Allow Voluntary Sectors in the General Category Fishery
Amendment 11 includes a mechanism to allow the owners of IFQ
scallop vessels to form voluntary sectors that could manage their own
fishing activity as a group. This rule outlines the procedures that
must be used to form a sector, and the sector program requirements. The
sector provisions include: Restrictions on participation; definition
and requirements for operations plans; specifications for the review,
approval, and revocation process; allocation of TAC to sectors; sector
share determination; restrictions on sector membership changes;
restrictions on interactions between sectors; monitoring and
enforcement provisions for sectors; a prohibition on trading of
allocation between sectors; restrictions on vessel movement between
sectors; and a 20-percent maximum total allocation for a single sector.
The 400-lb (181.4-kg) possession limit is maintained for vessels in a
sector. The formation of sectors is intended to provide greater
flexibility for participants and create outcomes that are more socially
and economically relevant for fishing groups within the biological
limitations of the fishery. The 20-percent cap on a sector's share of
the IFQ is intended to prevent one sector from controlling an excessive
percentage of the general category allocation. Unlike the sector
program for the Northeast multispecies fishery, Amendment 11 does not
allow sectors to be exempt from any scallop regulations, except that
participating vessels would not be restricted by their IFQs. Amendment
11 specified the sector provisions but omitted some of the details
necessary for implementation of sector provisions. Under its authority
granted by section 305(d) of the Magnuson-Stevens Act (16 U.S.C.
1855(d)), NMFS has included regulations in the Sector provisions in
Sec. 648.63 that are necessary to ensure effective implementation and
administration of the Sector provisions, and to ensure consistency with
some of the Sector provisions for the NE Multispecies FMP.
NGOM Scallop Management Area
The NGOM scallop management area is defined as waters north of
42[deg]20' N. lat. and within the Gulf of Maine Scallop Dredge
Exemption Area specified in Sec. 648.80(a)(11). The proposed rule for
Amendment 11 specified that the NGOM Scallop Management Area was all
areas north of 42[deg]20' N. lat., but the Council commented that
Amendment 11 specifies that the area is confined within the Gulf of
Maine Scallop Dredge Exemption Area as well. The NGOM scallop
management area is managed separately, because the Council clarified
that the fishery there has unique characteristics. The abundance of
scallops in the NGOM fluctuates more widely, supporting sporadic
fisheries, and scallops are confined to small ``patchy'' areas
throughout the area. There are times and areas within the NGOM that
have sufficient abundance of scallops in small areas to support a
substantial fishery and other times and areas that do not. The NGOM
scallop management area measures establish scallop fishing controls
appropriate for the fishery while protecting the resource in the area
from overharvest, if and when scallops are present in the area.
Measures include the separate NGOM general category scallop permit and
qualification criteria; a TAC based on historical landings from Federal
waters in the NGOM; a possession limit of 200 lb (90.7 kg) of scallops
per trip, with one trip per calendar day allowed; a provision that an
IFQ vessel fishing in the NGOM scallop management area shall have
scallop landings deducted from its IFQ and the NGOM scallop management
area TAC; and a prohibition on possession of scallops by any vessel,
once the NGOM scallop management area TAC is harvested. Amendment 11
does not include specific restrictions for vessels fishing under
scallop DAS in the NGOM, except that such vessels cannot continue
fishing in the NGOM once the TAC for the area has been reached.
Monitoring
All LAGC scallop vessels are required to install and operate a
vessel monitoring system (VMS). Operators of IFQ and NGOM scallop
vessels are required to declare a general category trip or other
fishing activity code, as appropriate. In addition, IFQ and NGOM
scallop vessels are required to report scallop landings through VMS.
This provision improves monitoring of the IFQ program by requiring
vessels to report their catch, approximate time of landing, and port of
landing before crossing the VMS demarcation line in order to enhance
enforcement of the IFQ program and NGOM scallop fishery. The report
submitted through VMS includes the vessel trip report (VTR) serial
number, amount of scallops on-board, the port of landing, and the
approximate time of arrival in port, and any other information relevant
to a general category trip as required by the Regional Administrator.
This monitoring requirement enables NMFS to monitor the TAC and IFQs on
a more real-time basis.
Change Issuance Date of General Category Permit
The issuance date of general category permits is changed from May 1
to March 1 of each year to be consistent with the scallop fishing year.
Synchronizing the issuance of general category scallop permits with the
scallop fishing year makes this permit consistent with the existing
limited access scallop permit issuance date.
Other Measures
This action clarifies that vessels that are fishing under a
Northeast multispecies or monkfish DAS are not restricted to the 144-ft
(43.9-m) net sweep restriction at Sec. 648.52 that currently specifies
that a vessel using a net with a sweep greater than 144 ft (43.9 m)
cannot fish for, possess, retain, or land more than 40 lb (18.1 kg) of
shucked or 5 bu (1.76 hL) of in-shell scallops. The Council recommended
this change because the 144-ft (43.9-m) restriction was not intended to
apply to vessels fishing for other species that would have an
incidental catch of scallops, provided the vessel is issued the
appropriate LAGC scallop permit.
This action allows an IFQ scallop vessel to possess up to 100 bu
(35.2 hL) of in-shell scallops seaward of the VMS demarcation line
only. Once shoreward of the VMS demarcation line, a vessel could
possess only 50 bu (17.6 hL) of in-shell scallops. This measure is
included because scallop vessel owners and operators testified that it
often takes more than 50 bu (17.6 hL) of in-shell scallops to yield 400
lb (181.4 kg) of scallop meats. NMFS noted in the proposed rule that
similar increases were not specified by the Council for the NGOM
possession limits of 200 lb (90.7 kg) of shucked or 25 bu (8.8 hL) in-
shell scallops, or the 40 lb (18.1 kg) of shucked or 5 bu (1.76 hL) of
in-shell scallops. However, given the rationale for the increased
possession limit, NMFS noted that would be inconsistent to apply the
increased possession limit for only one LAGC scallop permit category or
declared fishing activity. Under its authority granted by section
305(d) of the Magnuson-Stevens Act (16 U.S.C. Sec. 1855(d)), NMFS
specified that vessels fishing for scallops up to 200 lb (90.7 kg) or
25 bu (8.8 hL), or up to 40 lb (18.1 kg) or 5 bu (1.76 hL), could
possess up to 50 bu (17.6 hL) or 10 bu (3.52 hL), respectively, seaward
of the VMS Demarcation Line. The Council reviewed this issue in the
proposed rule and concluded that NMFS's interpretation was correct.
[[Page 20096]]
Finally, this final rule clarifies the ownership cap restriction on
current limited access vessels specified at Sec. 648.4(a)(2)(i)(M).
The ownership cap restriction was implemented through Amendment 4 (59
FR 2757, January 19, 1994). Currently, the regulation states that an
individual may not own, or have an ownership interest in, more than 5
percent of limited access scallop vessels. The provision in Amendment 4
is as follows: ``No entity or individual may have ownership interest in
more than 5 percent of the total number of scallop permits issued at
implementation and through the appeals process.'' However, the
regulations were not clear whether this cap applies to CPHs. Provisions
for CPH were implemented in 1995 (60 FR 62224, December 5, 1995), after
the 5-percent cap provision in Amendment 4 was implemented. The
regulations did not mention CPHs, which represent sunken or destroyed
vessels, or vessels that were sold without fishing and permit history,
that are eligible for limited access scallop permits. In terms of
future ownership, a CPH is equivalent to a limited access permit. Since
it is clear that the Council intended the ownership cap to restrict an
owner to having an ownership interest in no more than 5 percent of all
limited access scallop permits, this final rule clarifies that an
individual cannot own more than 5 percent of the limited access permit
eligibilities in the form of a limited access permit or CPH. This
clarification makes the regulations consistent with the Council's
original intent under Amendment 4. This issue was not recommended by
the Council as part of Amendment 11. Rather, NMFS proposed the
clarification in the Amendment 11 proposed rule as a regulatory
amendment. No comments, other than from the Council verifying that the
change is appropriate, were received on this proposed measure.
Comments and Responses
A total of 24 relevant comment letters were received from general
category scallop vessel owners, industry representatives, and other
interested public on Amendment 11 and the proposed rule. Four comments
were also received from a general category vessel owner, two industry
representatives, and the Council on the proposed rule after the close
of the NOA comment period. All but one of these comments addressed the
regulatory text included in the proposed rule. Comments on the proposed
rule received after the close of the NOA comment period that addressed
issues in Amendment 11 are reflected in the comments and responses
below. The Council provided comments and recommendations on Amendment
11 based on review by the Council's Scallop Oversight Committee
(Committee) and staff through a letter signed by the Executive Director
of the Council.
General Comments
Comment 1: Two individuals requested an extension of the comment
period on Amendment 11 and the proposed rule.
Response: NMFS has a statutory requirement to approve, partially
approve, or disapprove an amendment within 95 days from the date that
the amendment has been officially transmitted to NMFS; otherwise, the
amendment is automatically approved. The day by which NMFS had to make
the decision for Amendment 11 was February 28, 2008. In order to ensure
that NMFS considers public comments within that statutory time period,
it must limit comment periods to 60 days for the amendment NOA and 45
days for the proposed rule (the Magnuson-Stevens Act requires 15 to 60
days for the proposed rule comment period, but NMFS typically allows 45
days). If the comment period on the proposed rule ends after the NOA
comment period, those comments received on the proposed rule but after
the end of the NOA comment period may be excluded from NMFS's
consideration relative to the decision on the amendment. Therefore,
NMFS cannot extend the comment period on an amendment NOA, and prefers
to keep the proposed rule comment period consistent with the NOA
comment period. Moreover, given that Amendment 11 has been in
development in the public arena by the Council for approximately 2
years, NMFS considers the public comment period to be adequate.
Comment 2: One commenter appeared to oppose Amendment 11, but urged
overall management changes to protect the oceans for future
generations. The commenter stated that ``* * * total take should be
banned * * *'' and that ``* * * a moratorium on all catch of this
should be in effect for 5 years for species regeneration * * *.'' The
same individual commented that the total overall quota should be cut by
50 percent this year, and by 10 percent each year thereafter, to let
all species recover. The commenter provided no additional details or
suggestions on the relevance of the comments to Amendment 11.
Response: NMFS approved Amendment 11 because it is consistent with
the Magnuson-Stevens Act and promotes a sustainable scallop fishery.
Banning or reducing scallop catch as suggested by the commenter would
be inconsistent with NMFS's responsibilities under the Magnuson-Stevens
Act.
Comment 3: One individual addressed several issues relative to the
historical development of the general category fishery and the
differences between the limited access and general category fleets.
Another commenter stated that the continuation of a directed, full-time
general category fishery is not consistent with the original intent of
the general category fleet as a part-time fishery for vessels that did
not qualify for, or did not want to participate in, the limited access
scallop permits in 1994.
Response: The Council recognized more recent developments in the
general category fishery, which resulted in the development of
Amendment 11. The general category fishery has changed since its
inception in 1994, and the Council considered the recent growth in the
general category scallop fishery after the control date to be its
primary concern, regardless of whether the fishery was historically a
directed scallop fishery or not. Amendment 4 to the FMP did not
guarantee that general category scallop vessels would be able to
continue fishing without controls on the number of overall
participants. Without specific restrictions against it in any FMP
action, including and since Amendment 4, the general category scallop
fishery was allowed to expand beyond what some believe was the original
intent of Amendment 4. Amendment 11 recognizes the expansion while
providing general category fishery participants that developed a
directed fishery the ability to continue fishing at levels consistent
with their recent participation. Amendment 11 also prevents future
expansion of the fishery.
Comment 4: Several commenters stated that some parties involved in
the development of Amendment 11 made biased decisions based on personal
gain or agenda.
Response: There is no evidence to suggest bias of various
participants in the development of Amendment 11. The Council's
decisions were based on numerous meetings open to the public and on
information, comments, and input provided by the public.
Comment 5: Several individuals urged no action on Amendment 11.
Response: The analysis supporting Amendment 11 demonstrates that
uncontrolled entry and effort levels in the general category fishery
cannot continue. Maintaining a large number of
[[Page 20097]]
general category vessels would continue to allow catch levels by this
component of the fishery to expand and compromise the ability to
effectively manage the scallop fishery overall. Uncontrolled, the
general category fishery could contribute to excess fishing mortality
on the scallop resource. Although one of the most difficult management
programs to implement due to the level of controversy, limited access
and the associated measures in Amendment 11 are necessary to ensure a
sustainable scallop fishery. Furthermore, the Council could not
accurately establish catch limits in the future, now a requirement of
the Magnuson-Stevens Act, without controls on the level of catch and
effort in this segment of the fishery.
The impacts of Amendment 11 are largely social and economic and
will be positive in the long term. The measures will have direct
negative economic impacts on vessel owners that do not have a
qualifying vessel or that have fished more intensely recently than
during the qualifying time period. However, as more fully discussed
below, a control date announcing the possibility of a limited access
program was published on November 1, 2004. The control date's purpose
was to provide fishers with advance notice that they may not qualify
for entry into, or full participation in, the general category scallop
fishery. The intent of the control date was to deter individuals from
unduly investing in or relying on this fishery without full and fair
warning of the consequences of future limitation on access to the
fishery.
The social and economic impacts on qualified vessels and all of the
fishery participants will be positive over time as the general category
fishery is better integrated into the management program of the FMP,
which strives to maximize yields through Area Rotation Program, effort
controls, and restrictions on the general category fleet. Although
limited access is one of the most controversial management programs to
implement, limited access and the associated measures in Amendment 11
are necessary to ensure a sustainable scallop fishery.
Comment 6: Several commenters stated that Amendment 11 will
eliminate the small vessels in the fishery and allow large vessels and
large fishing operations to continue. Commenters urged NMFS to allow
both small and large vessel operations to continue in the scallop
fishery. One commenter believes that Amendment 11 will do irreparable
harm to several small fishing businesses that do not deserve to be
closed out and believes that many provisions in Amendment 11 may be
inconsistent with Federal laws mandating equal treatment of permit
holders.
Response: The source of concern that small vessels will be
eliminated is not clear. The Council recognized this potential impact,
particularly with an IFQ fishery, and designed Amendment 11 consistent
with its vision to ``* * * maintain a fleet made up of relatively small
vessels, with possession limits to maintain the historical character of
the fleet * * *.'' To achieve this, Amendment 11 includes provisions to
promote the continued operations of small operations. A vessel may only
be allocated up to 2 percent of the TAC allocated to all IFQ vessels
combined, and an individual may own only up to 5 percent of the TAC
allocated to all IFQ vessels. The 400-lb (181.4-kg) possession limit
also remains under Amendment 11. These factors should ensure only
minimal shifting to large-scale operations and that the small-vessel
character of the fleet is maintained. While some consolidation is
possible through the IFQ transfer program, it is unlikely, with the
percentage allocation limits, that the fishery will evolve into a large
vessel or large-scale operations fishery. Based on these analyses, NMFS
determined that Amendment 11 is consistent with all National Standards,
including National Standard 4 (which requires management measures to be
fair and equitable, but which recognizes that fishing privileges may
need to be allocated among fishermen), and National Standard 8
(requiring management measures to minimize adverse economic impacts, to
the extent practicable, on fishing communities).
Comment 7: An individual representing fishing vessel owners from
New Jersey commented on behalf of the fishermen that they are
supportive of the proposed amendment and options implementing a limited
access program with IFQs, in trips or pounds, based on a vessel's
landings in its best year from 2000 to 2004. The group of fishermen
supported measures in Amendment 11, except that they would prefer a
qualification landings criterion of 5,000 lb (2,268 kg), rather than
1,000 lb (453.6 kg), because it would allow the IFQs to be better
distributed among a smaller number of vessels. The comment urged NMFS
to implement IFQs as soon as possible and provided suggestions on how
appeals could be handled to expedite the process during the transition
period. Other suggestions on alternatives were also provided in the
comment letter.
Response: NMFS agrees with the comments supporting Amendment 11
measures and approved Amendment 11. However, under the Magnuson-Stevens
Act, NMFS cannot implement substantial measures that were not adopted
by the Council or that are inconsistent with Amendment 11. NMFS may
only approve, disapprove, or partially approve an amendment submitted
by the Council. NMFS will ensure that the IFQ program is implemented as
soon as possible. NMFS intends that the IFQ program will be implemented
on March 1, 2009, as intended in Amendment 11.
Comment 8: One individual commented that some scallop permit
holders are not aware of how Amendment 11 will impact them.
Response: Amendment 11 was developed over the course of
approximately 2 years through a public process, including 35 meetings
open to the public. The Council's development was well publicized by
the Council and general and industry-focused media. Therefore, it is
not clear how any individual with a stake in the fishery could have
been completely unaware of Amendment 11 and its impacts. Once adopted
by the Council, NMFS published a proposed rule and made the FSEIS
available for public review. The FSEIS described and analyzed the
impacts of all of the measures and alternatives and has been available
in its final form since November 2007. In such a highly regulated
fishery, it is a vessel owner's responsibility to understand current
and upcoming regulations and the impacts that the proposed regulations
may have on the vessel's ability to continue fishing.
Comment 9: One individual commented that Amendment 11 does not
address problems that it will create in terms of loss of jobs.
Response: NMFS acknowledges that Amendment 11 will have some
negative impacts, particularly on owners of vessels that do not qualify
for the limited access general category scallop permit. However, NMFS
concluded that the limited access program, including the use of the
November 1, 2004, control date as a cutoff for eligibility, is a
necessary component of a comprehensive management approach to control
capacity and fishing mortality in the general category scallop fishery.
NMFS considered all of the impacts relative to the sustainability of
the scallop fishery and the FMP's objective to maximize scallop yield,
as well as the impacts on fishery participants. The analysis supporting
Amendment 11 demonstrates that uncontrolled entry and effort levels in
the general category
[[Page 20098]]
fishery cannot continue. Without controls on access to the fishery, a
large number of vessels would continue to exceed estimated catch levels
and compromise our ability to effectively manage the scallop fishery
overall. Also, without the constraints in Amendment 11, the general
category fishery could contribute to excess fishing mortality on the
scallop resource. Amendment 11 concludes that the long-term economic
and social impacts would be negative if open access continues in the
general category fishery. Based on these analyses, NMFS determined that
Amendment 11 is consistent with National Standard 4, regarding fairness
and equity, and National Standard 8, requiring measures to minimize
adverse impacts, to the extent practicable, on fishing communities.
Comment 10: One individual commented that the general category
fishery has less environmental impact on the ocean than the limited
access component of the fishery and that Amendment 11 is therefore not
necessary.
Response: An FSEIS, describing and analyzing the environmental
impacts of the proposed and alternative measures, was completed for
this action. Although reduced fishing time associated with the
relatively low 400-lb (181.4-kg) possession limit has less
environmental impact compared to higher catches associated with DAS
vessels, the general category fishery as a whole contributes to the
environmental impacts of the fishery, both in terms of effects on
essential fish habitat (EFH) and bycatch. While it may be true that a
general category vessel may not have as much impact on the environment
as a DAS vessel, the commenter's argument is not valid in the context
of Amendment 11. The effects of Amendment 11 are cumulative, in
particular if participation and effort expand under an open access
fishery.
Comment 11: One individual commented that analyses in Amendment 11
are flawed; specifically those that conclude that general category
vessels are less efficient and can fish more days per year than limited
access vessels, that Amendment 11 would provide benefits to the nation,
and positive impacts on general category vessels overall.
Response: Amendment 11 includes thorough descriptions of the
scallop fishery and participating vessels, and analyses of the impacts.
Analytical models predict the economic benefits and costs of all of the
alternatives considered in Amendment 11. The analyses and models are
based on information gathered throughout the development of Amendment
11. These analyses were revised and perfected throughout the
development process and were available for public review during the
public meetings held on Amendment 11.
Comment 12: One commenter stated that controls on the general
category fishery were considered by the Council initially out of
concern over a large increase in active vessels, but not as a result of
overfishing caused by the general category fleet.
Response: The relatively rapid and large increase in the size of
the active general category fleet concerned both NMFS and the Council
and resulted in the development of Amendment 11. The reason that such
an increase was a concern is that the level of general category fishing
continually exceeded the estimated level of fishing that was
incorporated into annual management measures that were designed to
achieve target fishing mortality rates. By exceeding the estimated
catch, the unconstrained general category fishery was a threat to
meeting the fishing mortality targets and the Magnuson-Stevens Act
requirement to prevent overfishing. Therefore, while overfishing may
not have been caused only by the general category fleet, the
unconstrained expansion and effort in the fishery, combined with full
utilization of effort and trips by the limited access fleet,
contributed to overfishing in the years when overfishing was occurring.
Comment 13: One individual stated that Amendment 11 allows an
inequity to continue by maintaining more restrictive gear size
restrictions in the Southern New England (SNE), Gulf of Maine, and
Great South Channel sea scallop exemption areas that do not apply west
of 72[deg]20' N. lat. In addition, the commenter stated that there are
differences in bycatch in these areas that were not addressed in
Amendment 11. The commenter believes that the perceived inequity will
do serious harm to many vessels in the northern half of the general
category scallop fishery.
Response: The scallop dredge exemption areas referenced in the
comment have been implemented under the Northeast Multispecies Fishery
Management Plan (NE Multispecies FMP) to ensure that bycatch of
regulated multispecies in the scallop dredge fishery does not
compromise rebuilding efforts in the NE Multispecies FMP. Other than
the dredge size restriction in the NGOM Scallop Management Area,
Amendment 11 does not have different gear restrictions for different
areas. However, Amendment 11 does recognize that the NE Multispecies
FMP has restricted when and where general category scallop vessels can
fish in terms of the description of the fishery and by incorporating
data from the fishery overall. Nevertheless, modifying gear
restrictions that have been implemented under the NE Multispecies FMP
is outside of the scope of Amendment 11.
Comment 14: Several comments suggested that Amendment 11 is not
necessary because the scallop resource is in good condition. Many
references were made to the 45th Stock Assessment Workshop and Stock
Assessment Review Committee report (June 2007) (SAW 45), which
concluded that the scallop fishery was not overfished in 2006 and
overfishing was not occurring that year. Commenters stated that, based
on the conclusions of SAW 45, the measures in Amendment 11 are not
necessary because the general category fishery is not causing
overfishing. One individual commented that, with general category
landings only equal to about 12 percent of the catch, the adverse
impacts of these vessels are unclear.
Response: Amendment 11 does not state that the general category
fishery caused overfishing historically. Until Amendment 11, an
estimated amount of fishing effort and fishing mortality from the
general category fleet was calculated into estimated catch levels and
effort allocations for the limited access scallop fleet. Amendment 11
recognizes that, without controls on the number of participants, the
general category fleet can expand, especially when the resource
conditions are very good. In these instances, the effort and catch in
the general category fishery would likely be underestimated and could
contribute to overfishing if combined with full utilization of limited
access effort. Other types of controls, such as an overall TAC, were
considered in Amendment 11 and prior FMP actions (Framework 18 and
Amendment 10, specifically), but rejected because, without a limit on
the number of participants, the general category fleet would have the
capacity to rapidly harvest the TAC. This would not maximize yield,
would promote derby and unsafe fishing conditions, and would be
inconsistent with the FMP.
Comment 15: Several individuals commented that general category
vessel caught scallops are fresher and are more in demand than scallops
from limited access boats that are at sea for several days at a time.
Commenters were concerned that Amendment 11 would eliminate this higher
quality product from the markets.
[[Page 20099]]
Response: The FMP does not manage the scallop resource relative to
condition of the scallops for sale to the seafood market. While other
Federal programs are focused on ensuring seafood quality, the role of
the FMP is to maximize yield from the resource while maintaining a
sustainable fishery. Landings of scallops from both the limited access
and general category fleets command a high market price, and high
product quality is sought in all markets. The relative quality of the
landings between the general category and limited access fleets is not
a factor in the decision on Amendment 11.
Comment 16: One commenter stated that scallop trip boats have
control over the scallop fishery, which creates hardship on general
category scallop vessel owners and families who depend on this for
their livelihood.
Response: It is not clear from the comment how the limited access
fleet and fishery creates hardships on the general category fleet and
the vessel owners' families. Since the implementation of limited access
in 1994, vessels with limited access scallop permits have historically
landed as much as 98 percent of the scallop catch, and about 85 percent
of the catch, more recently. The limited access scallop fleet,
therefore, does control, and has the most impact on, many aspects of
the fishery, including market price, fishing mortality, and overall
impacts. However, the general category fishery is an important
component of the scallop fishery that contributes to overall fishing
mortality and conditions in the fishery that the Council and NMFS must
address. Amendment 11 achieves this goal, while allowing both the
limited access and general category fleets to harvest the portion of
the catch that reflects historical average shares (with a slight
increase in the general category share and decrease in average limited
access share).
Comment 17: One individual commented that flexibility in fishing
practices is necessary for small vessel owners to continue to make a
living fishing. The commenter stated that, if a fishery becomes
difficult or impossible to pursue, the small vessel must shift to
another fishery, but that Amendment 11 would take away the opportunity
to shift between fisheries.
Response: NMFS must manage the scallop fishery to ensure that the
fishery remains sustainable. While NMFS understands that fishing
opportunities are becoming more limited, it cannot compromise the
sustainability of one fishery in order to allow vessel owners to enter
another fishery.
Control Date and Limited Access
Comment 18: Several commenters supported the inclusion of the
control date as a qualification criterion for the general category
fishery.
Response: NMFS has approved the limited access program based on the
November 1, 2004, control date.
Comment 19: Two individuals commented that, because they were not
aware of the November 1, 2004, control date, they purchased vessels
and/or scallop fishing equipment, investing substantial amounts of
money into the fishery. These comments indicated that NMFS's Federal
fishery permit application packages should have included information
about the control date to warn applicants. They expressed concern that
Amendment 11 would eliminate them from the fishery because they entered
after the control date and asked that NMFS not use the control date or
qualification criteria to qualify vessels.
Response: Not including the control date information on permit
application packages does not invalidate the control date, nor does it
warrant expansion of the limited access qualification criteria to
include the period after the control date. The control date was
published in the Federal Register on November 1, 2004, announced to all
permit holders, and posted on the NMFS Northeast Region's Web site. It
was also announced and discussed in various fisheries publications
throughout the region (e.g., Commercial Fisheries News and National
Fisherman, two of the most widely known publications for fisheries in
the region and nationwide). Individuals that are engaged in a Federal
fishery should be aware of the highly regulated nature of the industry.
While there is no legal requirement to establish a control date, the
control date's purpose was to provide fishers with advance notice that
they may not qualify for entry into, or full participation in, the
general category scallop fishery, with the intent that individuals
would not unduly invest in or rely on this fishing without full and
fair warning of the consequences of a limited access fishery. Based on
the increase in catch and vessels demonstrated in the Amendment 11
FSEIS, it appears that even the period after the control date was
viewed as an opportunity to fish for scallops and accrue income, even
if temporary. Despite their knowledge of the control date, a large
number of vessel owners entered the fishery because of the short-term
profits that could be accrued. This post-control date expansion of the
fishery was a primary concern of the Council during development of
Amendment 11.
Comment 20: One individual commented that NMFS should have stopped
issuing general category permits in 2004.
Response: NMFS cannot implement a moratorium on permits (i.e., a
limited access permit program) without the approval of the majority of
the voting members of the Council, as specified in section 304(c)(3) of
the Magnuson-Stevens Act. After publication of the control date, NMFS
encouraged the Council to develop management measures to control the
general category fishery with consideration of the control date.
Comment 21: One commenter suggested that vessels in the SNE region
be allowed to appeal for a lower qualification amount based on
investment in the fishery and some unspecified amount of landings,
since an area in SNE was opened to general category scallop vessels in
May 2004. The commenter stated that allowing such vessels to qualify
through expanded qualification criteria or through the appeals process
would not add many vessels, but could help a few vessels that depend on
the scallop fishery for some of the year. The commenter believes that
additional effort from these vessels would be minimal, and that the
NGOM should not be treated differently than other areas.
Response: The reasons that area-specific management and
qualification criteria were not considered, with the exception of the
NGOM Scallop Management Area, are described in the responses to
Comments 12 and 42.
Comment 22: A general category vessel owner expressed concern that
Amendment 11 does not evaluate the number of qualifying vessels that
have been inactive since the 2000 through 2004 qualification period,
and does not consider the impact on the fishery or current
participants.
Response: Amendment 11 enables vessels that have not been active
since the qualification period to qualify for an LAGC permit based on
their fishing history prior to the control date. The Amendment 11 FSEIS
fully analyzes the impacts on qualifying vessels, which the FSEIS
evaluates based on fishing history during the qualification period.
During NMFS's review of permit applications, some vessels may emerge
that have not been recently active, but the Amendment 11 FSEIS has
evaluated the impacts on the resource, the fishery, the participants,
and the environment relative to the vessels that meet the qualification
criteria, which includes
[[Page 20100]]
vessels that have not been active after the control date.
Comment 23: Two general category scallop vessel owners expressed
concern about the lack of broad appeals criteria in Amendment 11 that
would allow appeals outside of simple discrepancies between dealer and
owner records, and to address circumstances relative to re-rigging and
new construction, which would protect fishermen who were in the re-
rigging process when the control date was implemented. The commenters
question the exclusion of such a provision when the scallop resource is
in good condition, whereas it was adopted in Amendment 4 to the FMP
when the resource was in one of its worst historical conditions. The
commenters raised concern about the decisions of managers involved in
the process, relative to the qualification and appeals process.
Response: This issue was discussed during the Council's development
of Amendment 11 and the final Amendment 11 document did not include a
re-rigging provision. The Council determined that it would be difficult
to consider legitimate re-rigging for scallops, given the ease of
converting a vessel to be a scallop vessel. In addition, the Council
was concerned about the large influx of vessels and increased landings
in 2005, which presumably included vessels that re-rigged for
scalloping in 2004. The Council was concerned that, if a re-rigging
clause were included, and vessel owners could show landings in 2005, it
would be easy for someone to claim that they were re-rigging their
vessel prior to the control date. The high landings in 2005 would
result in more qualifiers and less ability to allocate IFQ consistent
with qualifiers' historical levels of landings. Although re-rigging
provisions were considered in other limited access programs, the
Council had no obligation to include such a provision in Amendment 11,
and provided a valid reason for excluding the provision in Amendment
11.
Comment 24: An individual commented that VTR data should be able to
distinguish between a vessel's state and Federal waters landings to
avoid qualifying vessels, or setting their IFQs, based on landings from
state waters.
Response: It is not clear why qualifying a vessel that had state
waters landings of scallops while it held a Federal general category
scallop permit is inconsistent with the goals of Amendment 11. If a
vessel was issued a Federal scallop permit, all landings would have
been considered for determinations of fishing mortality for the scallop
resource overall.
Comment 25: One individual commented that limited access scallop
vessels should not be allowed to continue to fish with a general
category permit or under general category rules under Amendment 11. The
commenter believes that the issue was not sufficiently considered by
the Council.
Response: Amendment 11 was the second action in which the Council
considered restrictions on limited access vessels fishing under general
category rules. Under Amendment 10 to the FMP, the Council recommended
that the limited access fleet be prohibited from landing scallops
outside of DAS or access area trips. However, the Council recommended
this measure as a way to prevent overfishing despite information
showing that the limited access fleet harvested less than one half of a
percent of the scallop catch while fishing outside of DAS. NMFS
disapproved the measure because the reason the Council provided for
including the measure was not supported by the information in Amendment
10. Amendment 11 recognizes that some limited access vessels, including
part-time and occasional scallop vessels, have relied on this portion
of their catch historically. Therefore, maintaining the allowance for
limited access vessels to harvest scallops with an LAGC scallop permit
is consistent with Amendment 11's goal to preserve the historical
participants in the general category scallop fishery.
Comment 26: One individual commented that he has fished for
scallops for approximately 30 years and will not qualify for an LAGC
permit. The commenter expressed concern that Amendment 11 does not
allow appeals based on hardships.
Response: NMFS has opposed ``hardship'' grounds for appeal unless
the Council recommends objective criteria for determining what
qualifies as ``hardship.'' Without such criteria, NMFS would be forced
to determine which vessels qualify and which do not by exercising its
discretion in a very subjective way. This would lead to unpredictable
numbers of qualifying vessels, which would make it difficult, if not
impossible, to predict the efficacy of the limited access system
achieving its objectives. NMFS believes that this kind of decision
should be made and recommended by the Council, consistent with the
Magnuson-Stevens Act. Because ``hardship'' is very difficult to define
in advance and apply in one case to another, the Council has not been
able, or willing, to develop such appeal criteria. Therefore, Amendment
11 contains only objective appeal criteria, allowing appeals to be
based only on the grounds that the denial of the application for an
LAGC scallop permit was based on incorrect information.
Comment 27: One individual commented that the control date caused
the increase in fishing effort in the general category fishery after it
was announced.
Response: NMFS and the Council acknowledge that fishing effort and
participation in the general category fishery increased substantially
after the control date, although one of the express purposes of the
control date was to curtail speculative entry into the fishery. Based
on the increase in catch and active general category vessels identified
in the Amendment 11 FSEIS, it appears that even the period after the
control date was viewed as an opportunity to fish for scallops and
accrue income, even if temporary. Despite the knowledge of the control
date, and the fair warning they received concerning the potential
ineligibility to fish, a large number of vessel owners entered the
fishery to reap the short-term profits that could be accrued. This
post-control date expansion of the fishery was a primary concern of the
Council during development of Amendment 11 and guided it, in part, in
choosing management measures. Allocation between IFQ scallop vessels
and limited access scallop vessels.
Comment 28: An individual commented that Amendment 11 violates
National Standard 4 because limited access vessels receive a
disproportionately high allocation and that, under Amendment 11, one
individual limited access boat owner will be allowed to harvest more
than the entire general category fleet combined. Another commenter was
concerned that the allocation of 5 percent to the general category
fleet is disproportionately high.
Response: Amendment 11 developed an allocation for the general
category fleet that is consistent with the historical average catch
while allowing some expansion to account for the growth in the fishery.
Limited access vessels have been allocated the majority of the scallop
catch through DAS and access area trips. To allocate substantially more
scallop catch than the historical average to the general category fleet
would not be equitable because it would not be consistent with catch in
the limited access fishery or the general category fishery. Amendment
11 allocates 5 percent of the total scallop catch to general category
vessels based on the historical average landings. While that average is
about 2.5 percent,
[[Page 20101]]
Amendment 11 allocates 5 percent in recognition of the changes that the
general category fishery has experienced, and to allow some expansion
from the historical average. This rationale is entirely consistent with
National Standard 4 guidelines, which allow allocating fishing
privileges to some, at the expense of others, in order to achieve
biological objectives; and it is consistent with section 303(b)(6) of
the Magnuson-Stevens Act, which allows establishment of a limited
access system after taking into account such factors as historical
fishing practices, present participation, and economics of the fishery.
Comment 29: One commenter opposed an allocation of scallop TAC to
the general category fishery, including the quarterly TAC during the
transition period, and supported a target TAC that would be maintained
through continuation of the 400-lb (181.4-kg) possession limit. The
commenter believes that it is inappropriate to establish a TAC for the
general category fishery until inequities involving vessels that fished
more recently in the SNE scallop dredge exemption area. The commenter
stated that the quarterly TAC during the transition would result in
southern states rapidly harvesting the TAC, thus disadvantaging vessels
from New England.
Response: Without an overall TAC, the general category fishery
would continue to be unconstrained. Furthermore, new Magnuson-Stevens
Reauthorization Act provisions for annual catch limits require that all
catch from fisheries managed by FMPs be accounted for, and that
measures to prevent exceeding that catch level must be implemented.
Although these new requirements must be implemented by 2011 for the
FMP, including provisions to meet the new requirement in Amendment 11
reduces the amount of issues the Council will need to consider in a
future action to bring the FMP into compliance with the new
requirement.
Comment 30: One commenter opposed the cost recovery program
included in Amendment 11 because the commenter does not believe that
general category vessel owners should be required to pay to go to work.
The commenter questioned why the general category fishery would be the
first fishery that would be subject to the requirement, when fuel and
insurance costs are increasing.
Response: The Magnuson-Stevens Act requires NMFS to implement a
cost recovery program to collect up to 3 percent of the ex-vessel value
of IFQ landed scallops to help recover costs directly related to the
management, data collection, and enforcement of the IFQ program. The
cost recovery program in the IFQ general category scallop fishery will
be one of the first cost recovery programs in the Northeast Region;
cost recovery programs are also in development for the surfclam and
ocean quahog ITQ program and a tilefish ITQ program being developed by
the Mid-Atlantic Fishery Management Council. Similar programs have
already been implemented in the Alaska and Southeast Regions.
Comment 31: A general category scallop vessel owner commented that
the allocation of 5 percent to the general category fleet under
Amendment 11 only recognizes bycatch of scallops in other fisheries and
does not represent an equitable allocation to vessels that direct
fishing on scallops.
Response: Amendment 11 analyzed a range of allocations from 2 to 11
percent of the total scallop catch and recommended a level that fairly
reflects past and current landings. These values were based on
historical landings by the general category fleet, and as such,
included directed trips and trips on which scallops were caught as
incidental catch. Although an allocation of 5 percent of the catch is
less than the catch by the general category fishery in recent years, it
is higher than the historical average of 2.5 percent and allows for
some expansion from historical fishing levels.
Comment 32: One individual commented that the Council should have
used recent years and future projections to determine the general
category share of the scallop catch, rather than basing the catch on a
level consistent with a depleted resource.
Response: Amendment 11 included a range of allocation for the
general category scallop fishery, from 2 to 11 percent, based on
historical amount of catch, including more recent levels. The Council
determined that 5 percent would best reflect the historical level of
general category catch while accommodating some expansion from the
historical level. The Council determined that the higher level of catch
would not reflect the historical average catch of the fishery.
Comment 33: An industry representative commented that Amendment 11
included a 10-percent allocation to the general category fleet while
the fishery is in transition to the IFQ program for the 2008 fishing
year only. The industry representative commented that the Council
authorized up to a 2 fishing year transitional 10-percent allocation in
Amendment 11, but recommended a 1-year transitional 10-percent
allocation in Framework 19.
Response: NMFS disagrees that the transitional period was intended
to be in place only for the 2008 fishing year. The Amendment 11
document is clear in Section 3.1.2.8 that the transition period,
regardless of length, would have the same allocation strategy. While
the Council and NMFS do not expect the IFQ program to be delayed beyond
the 2009 fishing year, NMFS cannot predict the amount of time that it
will actually take to determine all of the qualified IFQ scallop
vessels and cannot therefore confirm that the IFQ program can be
implemented in the 2010 fishing year at the latest. Because the
Amendment 11 document does not specify that transition measures would
be different after 2009 fishing year, the final rule specifies that the
10-percent allocation, divided into quarterly TACs, would remain in
effect for the duration of the transition period, regardless of when
the transition period ends. The Council's decisions relative to
allocations in Framework 19 presumed that the IFQ program would be in
place, but do not supersede the decision in Amendment 11 to have
consistent management measures in place for the duration of the
transitional period.
Comment 34: An industry representative commented that the appeals
process during the transition should not result in a delay of the IFQ
program. The commenter believes that all categories of appeal should be
able to be addressed relatively quickly by NMFS and questions whether
the 10-percent allocation during the transition to accommodate
appealing vessels is justified, since the majority of appellants would
be appealing to make the minimal qualification amount of 1,000 lb
(453.6 kg).
Response: In order to allocate IFQs with the formula adopted by the
Council, NMFS must know every qualifying IFQ vessel, since each
vessel's IFQ is based, in part, on every other vessel's contribution to
the overall scallop landings. For a period of time after
implementation, NMFS will be conducting appeals and issuing new permits
to vessels as appeals are approved. Appeals can be difficult to
complete quickly, regardless of the reason. NMFS cannot predict how
long the process of determining every qualified IFQ vessel will take.
Based on previous limited access programs implemented by NMFS, it is
possible that finalizing appeals will take more than 1 year. NMFS will
attempt to resolve appeals in time to implement the IFQ program on
March 1, 2009. The Council also provided no mechanism to allow the IFQ
to be implemented mid-year.
[[Page 20102]]
IFQ
Comment 35: One individual commented that the IFQ referendum
required under the reauthorized Magnuson-Stevens Act should have been
completed, despite the fact that the Council approved Amendment 11
before the referendum was required.
Response: The referendum was not required for any IFQ program for
which final action had been taken by the Council before July 11, 2007,
6 months after the Magnuson-Stevens Act was reauthorized. This delay
allowed the Council to continue considering an IFQ program, which it
had included in Amendment 11 well before the Magnuson-Stevens Act was
reauthorized, without having to be concerned about how a referendum
would be handled and what the impacts might be.
Comment 36: One comment, endorsed by 31 general category and
limited access scallop vessel owners, stated that Amendment 11 would
result in a reduction in catch of about 40 percent or more to a
fisherman that is 100-percent dependent on the fishery.
Response: A vessel's IFQ will be based on its best year during the
qualification period, indexed by a factor based on the number of years
the vessel was active during the qualification period. Because landings
have increased in the years since the control date, including overall
landings and landings by vessel, it is likely that some vessels may not
be allocated catch that is consistent with recent landings. However,
such reductions are necessary to ensure that all IFQ vessels are
allocated a fair share of the TAC allocated to the IFQ fleet, and that
TAC objectives are met. Amendment 11 fully analyzed the impacts of
these measures on fishing fleets.
Comment 37: One individual commented that IFQs are an attempt to
try to hide overfishing that is presently occurring in the scallop
fishery.
Response: The measures in Amendment 11, including the limited
access and IFQ programs, are intended to prevent overfishing. It is not
clear why an IFQ program would ``hide'' overfishing.
Comment 38: One commenter preferred that IFQ could be stacked on a
vessel up to 2.5 percent of the TAC, rather than the 2 percent
proposed. The commenter stated that allowing 2.5 percent of the TAC to
be combined on one vessel would make the general category fishery more
efficient, more manageable, and more sustainable, and would result in
fewer vessels in the fishery, less paperwork, and would make the
fishery more fuel efficient. The comment stated that there should not
be a limit on the number of permits that can be stacked to achieve the
2.5-percent limit in order to allow fishermen that depend on the
fishery to achieve a higher share or stake in the fishery if they
decide to. The commenter stated that this would give back to the
general category dependant fisherman more of his/her historical
participation. The comment was endorsed by 31 general category and
limited access scallop vessel owners.
Response: Although the Council did not specifically consider an
alternative that would allow stacking up to 2.5 percent, it did
consider a sufficient range of levels and NMFS approved the level
selected. Under the Magnuson-Stevens Act, NMFS cannot implement an
alternative as part of Amendment 11 that was not recommended by the
Council. The Council did consider a cap of 60,000 lb (27,216 kg) or 150
trips per vessel, but determined that, if the overall TAC was very low
in a particular year, setting the cap in pounds or trips could result
in excessive (or insufficient) consolidation on one vessel. The cap in
terms of percent of overall TAC allowed the value of the cap to adjust
consistent with the TAC.
Comment 39: A general category vessel owner preferred a 10-percent
index value for best year and stated that a vessel that has fished
multiple years and is being rated by its best year should not be given
a baseline number that is more than that of a vessel that has fished
only 1 year, if a weighted average must be chosen.
Response: These types of concerns and different alternatives were
weighed and considered by the Council in developing Amendment 11 and by
NMFS in approving the amendment. Amendment 11 recognizes that some
vessels relied more on the scallop fishery than others and provides
those vessels with more weight in their IFQ determination based on the
importance of the fishery to the vessel. The approved index values
result in IFQ allocations that give more weight to vessels that
depended on the fishery for more time during the qualification period.
Comment 40: One commenter opposed the IFQ contribution factor
because of inequities between various regions of the fishery
(particular focus on the SNE scallop fishery), and suggested that there
should be a SNE exemption to alleviate the problems. The commenter
stated that allocation should be one-to-one, presumably meaning that
the amount caught during the historical period would be the amount
allocated. The commenter stated that, with the contribution factor
based on best year and years active, SNE vessels should be exempt with
a one-to-one allocation. Another general category scallop vessel owner
echoed this comment, stating that the reason that such vessels should
be exempted from the contribution factor is that the SNE exemption was
only open for 6 months prior to the control date.
Response: These types of concerns and alternatives were weighed and
considered by the Council in developing Amendment 11 and by NMFS in
approving the amendment. Some of the reasons that area-specific
management and qualification criteria were not selected, with the
exception of the NGOM Scallop Management Area, are described in the
responses to Comments 12 and 42. Amendment 11 includes an index factor
based on the years a vessel was active during the qualification period
to adjust a vessel's contribution to the IFQ. This adjustment provides
additional contribution for vessels that were active in, and relied
more on, the scallop fishery for a longer period of time. A one-to-one
contribution may not represent a fair allocation. As an example, a one-
to-one contribution factor would make a vessel with only 1 year active
in the scallop fishery equal to a vessel with the same best year
landings but that was active for 5 years during the qualification
period.
Comment 41: An industry representative commented that the
qualification criteria and individual allocation in pounds would help
ensure that more active participants will achieve more significant
allocations while scaling back general category effort overall. The
industry representative commented that the scale-back of effort is
appropriate, given the reductions in effort for the limited access
fleet. The industry representative also commented that individual
allocations and the IFQ transfer provisions accommodate general
category vessel owners' concerns about maintaining participation in the
fishery.
Response: NMFS agrees that the qualification criteria and
allocations provide for appropriate distribution of the IFQ scallop
fishery TAC to qualifiers and that the TAC represents an appropriate
reduction of catch relative to more recent years in the general
category scallop fishery. NMFS also agrees that the IFQ provisions,
including the IFQ transfer provisions, provide IFQ scallop vessel
owners with sustainable fishing opportunities under Amendment 11.
[[Page 20103]]
Sectors
Comment 42: Several commenters supported sectors, but one
individual expressed concern that NMFS and fishermen are not prepared
for their complexity for management and enforcement.
Response: NMFS is concerned about the potential for increased
volume in sector proposals from both the scallop and multispecies
industry. However, NMFS has approved the sector mechanism under
Amendment 11 because it can result in effective and cooperative
management of the IFQ scallop fishery. NMFS is preparing for the
expansion of sector management through its Amendment 11 implementation
strategy, combined with efforts to improve review and coordination of
sector proposals and plans in the Northeast Regional Office.
Comment 43: An industry representative supports the prohibition on
exemptions under the sector provisions.
Response: Although the Council could consider exemptions under the
sector provisions consistent with its sector guidelines, it chose not
to include exemptions in order to preserve the characteristics of the
historical general category scallop fishery while allowing sector
management.
NGOM Scallop Management Area
Comment 44: A fishing industry representative urged NMFS to
disapprove the NGOM Scallop Management Area because it would have
disproportionate and negative impacts on vessels that qualify for an
IFQ scallop permit that also have a history of fishing in the NGOM
area. The representative states that, for IFQ scallop vessels, the
lower possession limit in the NGOM area disadvantages IFQ scallop
vessels because it is inconsistent with the higher (400-lb (181.4-kg))
possession limit in the rest of the general category scallop fishery.
The commenter was concerned because the proposed rule implied that a
vessel qualified for an IFQ scallop permit could opt for an incidental
scallop permit instead, allowing the vessel to take ``unlimited'' trips
at 40 lb (18.1 kg) each, although this would not apply to the NGOM
where the fishery would be closed to all scallop harvest once the TAC
is harvested.
Response: The comment implies that vessels that qualify for IFQ
scallop permits that have fished in the NGOM are confined to fishing
within that area and there are no other alternatives for such vessels.
To the contrary, the IFQ scallop permit allows maximum fishing
flexibility within the general category scallop fishery under Amendment
11. Not only can IFQ scallop vessels fish under their IFQ in any area
open to scallop fishing, but if an owner chooses, he/she can transfer
the IFQ to another IFQ scallop vessel. This provides an owner the
option of fishing in other areas, or negotiating a business agreement
to transfer the IFQ. On the other hand, vessels that do not qualify for
the IFQ scallop permit have only the option of fishing in the NGOM or
under the Incidental scallop permit. Further, the FSEIS for Amendment
11 demonstrates that the reliance on the Gulf of Maine for a scallop
fishery during the qualification period, and more recently, has been
extremely low. The majority of scallop landings originate from more
southern areas of the Gulf of Maine, and from Georges Bank, SNE, and
Mid-Atlantic general category scallop fisheries. In addition, Amendment
11 estimates that 70 vessels from Maine and 148 vessels from
Massachusetts and New Hampshire would qualify for an IFQ scallop
permit, with the majority of landings by those vessels coming from
outside the boundaries of the NGOM scallop management area. To
disapprove the NGOM for the advantage of the minority of the IFQ
scallop fleet would result in no additional protective measures in the
NGOM, where the fishery is distinct. This would be ineffective and
would not meet the goal of the NGOM scallop management area to preserve
the fishery in the area for any future fisheries that may occur. NMFS
has therefore determined that the measures for the NGOM scallop
management area are necessary and appropriate for the management of the
scallop fishery. With respect to the implication that Incidental
scallop vessels can take unlimited number of 40-lb (18.1 kg) trips,
NMFS will clarify that would not be possible in the NGOM scallop
management area because incidental catch is counted against the TAC and
the possession of scallops in the NGOM scallop management area after
the TAC has been reached is prohibited.
Comment 45: An individual commented that the NGOM Scallop
Management Area was created solely for residents of Maine, and that the
NGOM Scallop Management Area is inconsistent with National Standard 4
of the Magnuson-Stevens Act.
Response: National Standard 4 states that measures shall not
discriminate between residents of different states. The NGOM Scallop
Management Area does not base any measures on being a resident of the
State of Maine. Although the area is adjacent to the entire coast of
Maine and may attract more Maine fishers, it also includes waters off
of Massachusetts and New Hampshire. Furthermore, any LAGC vessel could
fish in the NGOM Scallop Management Area under Amendment 11. The area
is a special management area, similar to the Sea Scallop Access Areas,
which aims to prevent overharvest of a unique portion of the scallop
resource and was designed to allow additional fishers to qualify to
fish in the area that may not have qualified for the IFQ scallop
permit. The NGOM Scallop Management Area measures are therefore
consistent with National Standard 4.
Comment 46: The State of Maine commented on the proposed NGOM TAC
specification. Although the comment is specific to the actual TAC
recommended by the Council under Framework 19, the comment appears to
take issue with the foundation of the TAC, in that it excludes landings
from state waters. The comment provides details regarding how the State
of Maine would prefer that the TAC be established, primarily by
including landings by federally permitted vessels in state waters and
landings by limited access vessels fishing in the NGOM area. Maine
believes that, by including these sources of landings, the TAC should
be 126,000 lb (57,153 kg) as opposed to the 70,000 lb (31,751 kg) TAC
proposed by the Council under Framework 19. A fishing industry
representative commented that the TAC in the NGOM cannot be calculated
without an assessment of the biomass and appropriate fishing mortality
rate in the area.
Response: The value of the TAC is not specified in Amendment 11,
but is instead proposed in Framework 19. The Council deliberated this
issue at length for both Amendment 11 and Framework 19. Proponents
argued, and Amendment 11 explains, that the NGOM Scallop Management
Area is necessary as a placeholder for future scallop fishing Federal
waters in the event that a large amount of harvestable scallops return
to the Gulf of Maine. Based on this rationale, the Council determined
that the TAC for the NGOM Scallop Management Area would be based on the
``Federal portion of the resource only,'' meaning that landings from
state waters would be excluded. Furthermore, landings by limited access
vessels fishing under DAS were excluded because they are not a
component of the general category landings or TAC.
Comment 47: One commenter stated that the NGOM measures are useless
in Amendment 11 because there are no scallops in the NGOM to be fished.
[[Page 20104]]
Response: The NGOM Scallop Management Area would provide for
limited fishing opportunities for vessels that do not qualify for IFQ
scallop permits. It was also designed to be a placeholder for a future
Federal waters fishery in the area, should the scallop resource become
more abundant in the area. Although not currently surveyed by NMFS or
other entities, the Gulf of Maine contains scallops and has supported a
small fishery in recent years.
Comment 48: One commenter supported the creation of the NGOM
scallop management area but believes that the SNE area also deserves
the same exemption status, with a 400-lb (181.4-kg) possession limit,
because the area was closed to scallop fishing from 1996 through May
2004.
Response: The SNE exemption was implemented under the NE
Multispecies FMP in May 2004. The NGOM Scallop Management Area appears
to have highlighted the SNE exemption because the Council adopted area-
specific measures only for the NGOM but excluded qualification criteria
specific to the area or for vessels that fished in the area. The NGOM
Scallop Management Area was developed because the fishery in the area
is different from the rest of the fishery (it is patchy and sporadic).
Although the SNE exemption area was not opened to scalloping until
2004, there are no noteable differences in the fishery in that area
that would warrant special management measures. The fishery in the NGOM
is not integrated into the overall scallop fishery to the extent other
areas, including the SNE, are. In addition, the NGOM area is not fished
as actively and consistently as the SNE area has been recently. In
addition, there would be no fair or equitable way to allow more lenient
qualification criteria for vessels that fished within the SNE exemption
area. Vessels that fished only in the SNE exemption area for scallops
would have relied on the scallop fishery only between May and November,
when the area was opened and the vessels first began to fish for
scallops. Excluding a provision specific to these vessels is consistent
with Amendment 11's goal to limit the fishery and allocation to vessels
that had a reliance on the scallop fishery prior to the control date.
Other Measures
Comment 49: One commenter agrees that VMS should be required, but
expressed concern about the cost of operating VMS units.
Response: VMS are necessary in the general category fishery to
track landings and activity relative to IFQs, the NGOM Scallop
Management Area, and access areas. Most LAGC vessels are already
operating a VMS under existing FMP requirements, or requirements under
the NE Multispecies FMP (for vessels that do not qualify for an IFQ
scallop permit). NMFS has estimated the cost of all new trip
declarations and catch reports for all IFQ vessels combined to be
approximately $15,000 annually (or about $42 per vessel annually,
assuming 369 qualified IFQ scallop vessels). The increase in VMS
operating costs would therefore be just over $3.00 per month, which
NMFS considers a reasonable cost. A detailed description of the costs
for new information collection requirements is included in the Final
Regulatory Flexibility Analysis (FRFA).
Comment 50: An industry representative supported continuation of
the 400-lb (181.4-kg) possession limit to prevent against consolidation
of general category effort and capitalization of a new offshore scallop
vessel fleet.
Response: NMFS agrees that the 400-lb (181.4-kg) possession limit
is necessary to prevent capitalization of a new type of general
category scallop fishery that is inconsistent with the Council's vision
to maintain the small-scale characteristics of the general category
fishery.
Comment 51: An industry representative supports the 40-lb (18.1-kg)
possession limit for Incidental scallop vessels to allow for incidental
catch in other fisheries while discouraging directed fishing with the
low limit.
Response: NMFS agrees that the 40-lb (18.1-kg) possession limit for
Incidental Catch scallop vessels is important to ensure that this
sector of the general category fishery continues to focus on incidental
catch and does not expand into a directed fishery.
Comments on Proposed Measures and Regulations
1. Vessel Permits
Comment 52: An industry representative suggested a revision to
Sec. 648.4(a)(2)(i)(I) to clarify that a limited access scallop vessel
could also be issued an LAGC scallop permit because, as written, the
industry representative believed that the regulation prohibited a
limited access vessel from also being issued an LAGC scallop permit.
Response: NMFS recognizes this ambiguity in the proposed rule and
has revised the regulation to allow a limited access scallop vessel to
be issued an LAGC scallop permit as well.
Comment 53: An industry representative commented that in Sec.
648.4, paragraph (a)(2)(i)(P) should be redesignated as paragraph
(a)(2)(i)(R), because paragraphs (a)(2)(i)(P) and (Q) already are
designated.
Response: NMFS disagrees. In Sec. 648.4, paragraph (a)(2)(i)(O)
was the final paragraph, and is now followed by paragraph (a)(2)(i)(P).
Comment 54: An industry representative recommended that, in Sec.
648.4, paragraph (a)(2)(ii) should be reworded to more clearly convey
the intent.
Response: NMFS agrees and has reworded the regulation to be more
clear.
Comment 55: An industry representative commented that, in Sec.
648.4, paragraph (a)(2)(ii)(E) contains an incorrect reference to best
year and years active regulations in Sec. 648.53.
Response: NMFS agrees and has corrected the references.
Comment 56: The Council commented that it is not clear in Sec.
648.4(a)(2)(ii)(F) that a vessel that qualifies for an IFQ permit can
choose not to apply for an IFQ scallop permit and instead qualify for a
NGOM or Incidental Catch scallop permit. The Council stated that
Amendment 11 specifies that an NGOM and Incidental Catch scallop permit
requires a vessel to have a general category scallop permit as of
November 1, 2004, but a vessel that qualifies for an IFQ scallop permit
may not meet that criterion if it had a permit prior to, but not on,
the control date. The Council confirmed that, since the qualification
for the NGOM and Incidental Catch scallop permits are intended to be
less restrictive, a vessel that qualifies for an IFQ permit can choose
to apply for an NGOM or Incidental Catch scallop permit and would
qualify for the less restrictive permit. The Council recommended that
the regulation reflect this intent.
Response: NMFS has revised regulatory text in Sec. 648.4(a)(2)(ii)
to clarify that a vessel that qualifies for an IFQ scallop permit could
be issued an NGOM or Incidental Catch scallop permit instead, even if
the vessel did not have a permit as of the November 1, 2004, control
date.
Comment 57: The Council agreed with NMFS's interpretation in the
proposed rule that limited access permit provisions would apply to all
LAGC scallop permits.
Response: The regulations reflect this comment and no change to the
regulations is necessary.
Comment 58: The Council suggested that the regulations pertaining
to landings qualification for the IFQ
[[Page 20105]]
scallop permit be explicit that landings must have occurred as of the
November 1, 2004, control date and not beyond in the 2004 fishing year.
Response: NMFS has revised the regulations to be clear that all
landings must have occurred as of the November 1, 2004, control date
for qualification, best year, and years active determinations.
Comment 59: The Council commented that the proposed rule preamble
should not have stated that a vessel's IFQ scallop permit would be
invalidated for failure to pay cost recovery fees, but rather that the
permit would not be renewed for the subsequent fishing year.
Response: NMFS has clarified the regulations. However, these
provisions were more specifically discussed under the Council's
development of Framework 19 to the FMP. Proposed regulations for
Framework 19 describe in detail the process and consequences for non-
payment of IFQ cost recovery fees.
2. Transition to IFQ
Comment 60: The Council commented that regulations at Sec.
648.53(a)(2) and (3) in the proposed rule do not clearly present the
transition measures that would apply in 2009. The Council also
commented that the regulations should indicate that the 10-percent
allocation to general category fleet during the transition to IFQ
should be in effect no longer than through the 2009 fishing year. After
2009, the general category fleet would be allocated 5 percent of the
scallop catch. The Council commented that it never intended the
transition to extend longer than 2 years. An industry representative
also commented that the regulations pertaining to allocations for the
2008 and 2009 fishing years, particularly with respect to the
transition to IFQ, are inconsistent with the Council's intent to allow
transition to IFQs for no more than 2 years. The industry
representative stated that NMFS does not have the authority to extend
the transition measures beyond 2 years because such measures were not
adopted by the Council.
Response: NMFS has clarified the allocations and transition
measures for the 2009 fishing years consistent with the Council's
intent. However, as justified in the response to Comment 33, NMFS has
clarified in this final rule that the 10-percent allocation divided by
quarter would remain in place for the duration of the transition
period, even if the transition period extends beyond the 2009 fishing
year. Despite the comments and recommendations by the Council and
industry representative, the Amendment 11 document and discussion
clearly supports the continuation of the transition period allocation
of 10 percent to the general category fishery for any period after 2009
that remains under transition. Although it is clear that the Council
expects the transition period to last up to 2 years, there are no
specifications in Amendment 11 for measures beyond the 2009 fishing
year if the transition period continues. NMFS is not extending the
transition period through the measures in this final rule, but rather
is specifying that the Council's approved transition period measures
would remain in place if the IFQ program cannot be implemented after
the 2009 fishing year. Although NMFS does not expect the IFQ program to
be delayed beyond the 2009 fishing year, it cannot predict how long it
will take to identify the universe of IFQ scallop vessels in order to
implement the IFQ program.
3. IFQ
Comment 61: The Council agreed with NMFS's interpretation in the
proposed rule that a CPH would be issued IFQ and that the IFQ
associated with a CPH could be transferred.
Response: The regulations reflect this comment and no change to the
regulations is necessary.
Comment 62: An industry representative commented that, in Sec.
648.53(h)(4), NMFS incorrectly characterized the cost recovery
requirement of the Magnuson-Stevens Act by stating that ``The owner of
a vessel issued an IFQ scallop permit and subject to the IFQ program
specified in * * * this section must pay a portion of the proceeds from
scallop fishing to NMFS to help NMFS recover up to 3 percent of the
cost of administering and enforcing the IFQ program.'' The industry
representative pointed out that this is inconsistent with the Magnuson-
Stevens Act and the proposed rule preamble, which provide that industry
may be charged up to 3 percent of the value of the landed product to
cover actual costs related to the IFQ program and its enforcement.
Response: NMFS agrees and has clarified this statement in this
final rule.
4. NGOM
Comment 63: The Council and an industry representative commented
that the proposed rule does not consistently and properly state that
the NGOM TAC is separate from the rest of the scallop fishery's overall
TAC.
Response: NMFS agrees and has clarified in this final rule that the
NGOM Scallop Management Area TAC is separate from the TACs for the rest
of the general category scallop fishery.
Comment 64: The Council and an industry representative commented
that the area definition for the NGOM must be corrected to include the
area north of 42[deg]20[min] N. Lat. and within the Gulf of Maine
Scallop Dredge Exemption Area, as approved by the Council.
Response: NMFS agrees that the NGOM Scallop Management Area should
be confined to the area north of 42[deg]20[min] N Lat. and within the
Gulf of Maine Scallop Dredge Exemption Area and has made that change in
the final rule.
Comment 65: The Council commented that scallop catch by Incidental
Catch scallop vessels should count against the NGOM TAC, consistent
with the proposed rule.
Response: The regulations reflect this comment and no change to the
regulations is necessary.
5. Sectors
Comment 66: An industry representative commented that, in Sec.
648.63(b)(6), a phrase prohibiting the exemption from the 400-lb (181.4
kg) possession limit should be included to provide ``absolute clarity
that no vessel operating in a sector is exempt from the 400-lb
possession limit.''
Response: This revision is not necessary. The paragraph is clear
that no exemption can be granted to sectors under the FMP except for
relief of a vessel's own limitation of its IFQ. Singling out one
provision for which an exemption cannot be issued would be confusing,
since one could question why other provisions are not equally
emphasized.
6. Other Measures
Comment 67: An industry representative commented that, in Sec.
648.9, the use of the phrase ``general scallop permit'' is inconsistent
with the use of ``LAGC scallop permit'' in all other sections of the
proposed rule.
Response: NMFS agrees and has changed ``general scallop permit'' to
``LAGC scallop permit.''
Comment 68: An industry representative commented that the use of
``general category scallop fishery'' in Sec. 648.10 is unclear and
questioned whether the phrase has utility in light of changes in the
proposed rule to LAGC and other new references to the limited access
general category scallop fishery.
Response: NMFS has not modified the regulations based on this
comment. The ``general category fishery'' describes the fishery that is
conducted by LAGC scallop vessels.
[[Page 20106]]
Comment 69: An industry representative questioned the elimination
of the regulation in Sec. 648.10 requiring the use of VMS by small
dredge category scallop vessels.
Response: While NMFS has eliminated the specific regulation at
Sec. 648.10(b)(1)(iii) in the Amendment 11 final rule, Sec.
648.10(b)(1)(i) requires that all scallop vessels, except occasional
scallop vessels that do not fish in access areas, must operate VMS
units. No change is therefore necessary.
Comment 70: An industry representative commented that, in Sec.
648.14, paragraph (a)(57)(iii)(D) appears to allow an IFQ scallop
vessel that also holds a limited access scallop permit to possess more
than 400 lb (181.4 kg) of scallops while fishing under the IFQ scallop
permit and outside of scallop DAS or the Area Access Program. The
industry representative suggested deleting the paragraph.
Response: NMFS agrees and has removed the paragraph and re-
designated paragraph (a)(57)(iii)(E) as (a)(57)(iii)(D).
Comment 71: An industry representative commented that, in Sec.
648.55(a), the scallop regulations should no longer refer to ``the
adequacy of management measures to achieve the stock-rebuilding
objectives.''
Response: NMFS agrees that references to rebuilding the scallop
resource may be misleading since the scallop resource is currently
rebuilt. NMFS has revised this section of the regulation to be more
generic to the conservation objectives of the FMP.
Comment 72: An industry representative suggested that, in Sec.
648.55, paragraph (e)(1) should be revised to read ``Target total
allowable catch and DAS changes.''
Response: NMFS disagrees that this change is necessary. By changing
the regulation to allow changes to target TACs and DAS, the Council
would be precluded from establishing the hard TACs for the general
category fleet through the framework process, since no other framework
provision listed in Sec. 648.55(e) would allow such specification.
NMFS concludes that ``Total allowable catch'' can be either a target or
hard TAC.
Comment 73: The Council agreed with NMFS's interpretation that the
increase of the possession limit of in-shell scallops seaward of the
VMS demarcation line should apply to all LAGC scallop permitted vessels
rather than just the IFQ scallop vessels.
Response: The regulations reflect this comment and no change to the
regulations is necessary.
Comment 74: The Council commented that, while it did not recall
specific discussion of the change in the ownership cap, as proposed by
NMFS in the proposed rule, it agrees with the regulatory change so that
the regulations are consistent with the original provision in Amendment
4.
Response: NMFS brought this issue to the attention of the Scallop
Committee and the Council during the final development of Amendment 11.
NMFS used the Amendment 11 proposed rule as a mechanism to propose,
under its authority granted by section 305(d) of the Magnuson-Stevens
Act (16 U.S.C. Sec. 1855(d)), the regulatory amendment to make the
ownership cap and CPH regulations consistent with the intent of
Amendment 4 to the FMP. As a regulatory amendment promulgated under the
authority of the Secretary, the Council need not deem the regulation
necessary and appropriate. NMFS generally confines regulatory
amendments to those issues that are clarifications of existing
regulations to improve consistency with an FMP's provisions or original
intent of a measure that was inadvertently misrepresented in the final
regulations implementing the measure.
Changes From Proposed Rule to Final Rule
In Sec. 648.4, paragraph (a)(2)(i)(O) is revised to correct the
reference to the vessel replacement provisions in paragraph
(a)(1)(i)(E) of that section.
In Sec. 648.4, paragraph (a)(2)(ii) is revised to clarify that all
vessels fishing for scallops must have an LAGC scallop permit, or a
limited access scallop permit.
In Sec. 648.4, paragraph (a)(2)(ii)(B) is revised to clarify the
requirement that NGOM scallop vessels must fish within the NGOM scallop
management area boundaries defined in Sec. 648.62.
In Sec. 648.4, paragraph (a)(2)(ii)(D)(2) is revised to clarify
that scallop landings must have occurred on or before November 1, 2004,
and to specify the conversion rates for in-shell scallops to meat-
weight.
In Sec. 648.4, paragraph (a)(2)(ii)(E) is revised to correct
references to Sec. 648.53(h) for IFQ calculations.
In Sec. 648.4, paragraph (a)(2)(ii)(F) is revised to clarify the
requirement to have a general category scallop permit as of November 1,
2004, and that a vessel that qualifies for an IFQ scallop permit
automatically qualifies for an NGOM or Incidental scallop permit if the
owner of the IFQ scallop vessel elects instead to be issued an NGOM or
Incidental scallop permit.
In Sec. 648.4, paragraph (a)(2)(ii)(G)(3) is revised to clarify
the restriction on permit splitting prior to the effective date of
Amendment 11.
In Sec. 648.4, paragraph (a)(2)(ii)(N) is revised to clarify the
permit splitting restriction.
In Sec. 648.4, paragraph (a)(2)(ii)(O)(4) is revised to clarify
the provision allowing vessels to fish under a temporary letter of
authorization while an appeal is pending.
In Sec. 648.9(c)(2)(D), ``general category scallop permit'' is
replaced with ``LAGC scallop permit.''
In Sec. 648.10, paragraph (b)(4)(iv) is revised to clarify the
requirement for daily catch reports through VMS by vessels fishing in
the Area Access Program.
In Sec. 648.14, paragraph (a)(56) reference to the trip
declaration is deleted to avoid requiring Incidental scallop vessels
from declaring a general category scallop trip.
In Sec. 648.14, the text in paragraph (a)(57)(iii)(D) is replaced
with the text of paragraph (a)(57)(iii)(E), and paragraph
(a)(57)(iii)(E) is removed. Paragraph (a)(57)(iii)(D) is revised by
deleting the trip declaration requirement to avoid requiring Incidental
scallop vessels from declaring a general category scallop trip.
In Sec. 648.14, the revision of paragraph (h)(19) has been re-
designated as a revisions to paragraph (h)(20).
In Sec. 648.14, paragraph (i)(1)(ii) is revised to prohibit a
vessel from landing scallops more than once per calendar day, rather
than from fishing for, possessing, or landing scallops more than once
per calendar day.
In Sec. 648.14, paragraph (i)(1)(iv) is revised to clarify that
declaration requirements do not apply to Incidental scallop vessels.
In Sec. 648.14, paragraph (i)(2)(xiii) is revised by eliminating
the term ``sub-lease'' since ``lease'' is not used elsewhere in the
scallop regulations pertaining to IFQ transfers.
In Sec. 648.52, paragraphs (a), (b), and (c) are revised to
restrict a vessel to landing scallops only once per calendar day,
rather than fishing for, possessing, or landing scallops only once per
calendar day.
In Sec. 648.53, paragraph (a) is revised in its entirety to
clarify the TAC allocations and the transition measures to IFQ.
In Sec. 648.53, paragraph (a)(9) is added to specify the
incidental catch TAC.
In Sec. 648.53, paragraphs (h)(2)(ii)(A) and (B) are revised to
clarify that landings of scallops for ``best year'' and ``years
active'' determinations must have occurred on or before November 1,
2004.
[[Page 20107]]
In Sec. 648.53, paragraph (h)(3)(i) is revised to specify that a
vessel can exceed the 2-percent IFQ limit if its contribution
percentage specified during the initial application process results in
the vessel's allocation exceeding 2 percent.
In Sec. 648.53, paragraph (h)(3)(i) is revised to specify that a
vessel owner can exceed the 5-percent ownership cap if the total IFQ
for all of the vessels combined upon initial application/issuance of
the IFQ scallop permit results in the owner having an ownership
interest in more than 5 percent of the TAC allocated to the IFQ scallop
fleet.
In Sec. 648.53, paragraph (h)(4) is revised to clarify that the
cost recovery fee is equal to 3 percent of the value of landed
scallops, not 3 percent of the cost of administering the IFQ program.
In addition, this paragraph clarifies the general requirements for IFQ
vessel owners involved in a temporary transfer of IFQ to pay cost
recovery fees.
In Sec. 648.53, paragraph (h)(5)(ii) is revised to specify that a
permanent transfer cannot be limited in duration.
In Sec. 648.53, the term ``lease'' has been removed from the
heading of paragraph (h)(5)(iv)(C) to be consistent with terminology
for the IFQ transfer program throughout the scallop regulations.
In Sec. 648.55, paragraph (a) is revised by replacing ``rebuilding
objectives'' with ``scallop resource conservation objectives.''
In Sec. 648.59, paragraphs (b)(5)(i), (c)(5)(i), (d)(5)(i), and
(e)(6)(i) are revised to include a provision to specify the TACs for
each access area that would be used to determine the number of limited
access trips per area and for each category of limited access scallop
trips.
In Sec. 648.59, paragraphs (b)(5)(ii)(B), (c)(5)(ii)(B), and
(d)(5)(ii)(B) are revised to reflect the 2008 fishing year
specifications.
In Sec. 648.59, paragraph (e)(6)(i) and (ii) are re-designated as
paragraphs (e)(4)(i) and (ii). Paragraph (e)(6) is no longer included
in Sec. 648.59.
In Sec. 648.62, paragraph (a) is revised to clarify that the NGOM
scallop management area is defined as the area north of 42[deg]20' N.
lat. and within the Gulf of Maine Scallop Dredge Exemption Area.
In Sec. 648.62, paragraph (b)(2) is revised to clarify the
reference to the NGOM scallop management area definition.
In Sec. 648.63, paragraph (c)(1)(L) is added to require submission
of other necessary and appropriate information as part of the Sector
operations plan.
In Sec. 648.63, paragraph (d)(3) is revised to reflect current
timing requirements for submission of annual operations plans by
Sectors. The December 1 date specified in the proposed rule would not
provide NMFS with sufficient time to complete all associated review
requirements for Sector operations plan submissions. This change is
consistent with current provisions accepted for the NE Multispecies FMP
Sector policy and operating provisions.
Classification
NMFS has determined that the amendment this final rule implements
is consistent with the national standards of the Magnuson-Stevens Act
and other applicable laws. NMFS, in making that determination, has
taken into account the data, views, and comments received during the
comment period.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
The Council prepared an FSEIS for Amendment 11; an NOA was
published on October 19, 2007. The FSEIS describes the impacts of the
proposed Amendment 11 measures on the environment. Since most of the
measures would determine whether or not fishers can continue fishing
for scallops, and at what level in the future, the majority of the
impacts are social and economic. Although the impacts may be negative
in the short term, particularly at an individual fisher level, the
long-term benefits of a sustainable scallop fishery would be positive.
Elimination of the open access fishery is expected to have positive
impacts on the biological and physical environment.
This final rule contains collection-of-information requirements
subject to the Paperwork Reduction Act (PRA) and which has been
approved by OMB under control number 0648-0529. Public reporting burden
for these collections of information are estimated to average as
follows:
Add PRA Approval Number to Req's--Need OMB Approval First
1. Initial application for an IFQ scallop permit, OMB
0648-0491--30 min per response;
2. Initial application for an NGOM or Incidental scallop permit,
OMB 0648-0491--15 min per response;
3. Completion of ownership cap form for IFQ scallop vessel owners,
OMB 0648-0491--5 min per response;
4. Appeal for an LAGC scallop permit and IFQ scallop vessel
contribution factor, OMB 0648-0491--2 hr per response;
5. Application for a vessel replacement or confirmation of permit
history OMB 0648-0491--3 hr per response;
6. Purchase and installation of a VMS unit for general category
scallop vessels, OMB 0648-0491--2 hr per response;
7. IFQ scallop vessel VMS trip notification requirements, OMB
0648-0491--2 min per response;
8. NGOM scallop fishery VMS trip notification requirements, OMB
0648-0491--2 min per response;
9. Incidental catch vessel VMS trip notification requirements, OMB
0648-0491--2 min per response;
10. Pre-landings VMS notification requirements, OMB 0648-
0491--5 min per response;
11. Application for an IFQ transfer, OMB 0648-0491--10 min
per response;
12. Electronic payment of cost recovery payment, OMB 0648-
0491--2 hr per response;
13. LAGC scallop fishery sector applications, OMB 0648-
0491--150 hr per response; and
14. Sector operations plans, OMB 0648-0491--100 hr per
response.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection information. Send
comments regarding these burden estimates, or any other aspect of this
data collection, including suggestions for reducing the burden, to NMFS
(see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to
202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to 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.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), has prepared a FRFA in support of Amendment 11. The FRFA
describes the economic impact that this final rule, along with other
non-preferred alternatives, will have on small entities.
The FRFA incorporates the economic impacts and analysis summarized
in the IRFA for the proposed rule to implement Amendment 11, the
comments and responses in this final rule, and the corresponding
economic analyses prepared for Amendment 11 (e.g., the FSEIS and the
RIR). The contents of these incorporated documents are not repeated in
detail here. A copy of the IRFA, the RIR, and the FSEIS are available
upon request (see ADDRESSES). A description of the reasons for this
action, the objectives of
[[Page 20108]]
the action, and the legal basis for this final rule are found in
Amendment 11 and the preamble to the proposed and final rules.
Statement of Need for This Action
The purpose of this action is to improve the management of the
general category scallop fishery and the scallop fishery overall.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
Fishing privileges will be assigned based on a vessel's fishing
history and vessels that do not meet the qualification requirements for
an LAGC scallop permit will no longer be eligible to fish for scallops
unless the vessel replaces a vessel that is qualified for on the of the
LAGC scallop permits. The allocation of scallop catch to the general
category fleets will further restrict the amount of revenues derived
from scallop landings by the general category fleet while ensuring that
fishing mortality objectives of the FMP are achieved. The impacts of
Amendment 11 are therefore largely social and economic. The measures
will have direct negative economic impacts on vessel owners that do not
have a qualifying vessel or that have fished more intensely recently
than during the qualifying time period. As a result, the majority of
comments opposing Amendment 11 that are described in the ``Comments and
Responses'' section of the preamble of this final rule addressed issues
relative to the IRFA in that commenters expressed concern directly and
indirectly about the economic impacts of the measures and the impacts
on small-scale vessel operations. NMFS's assessment of the issues
raised in comments and responses is provided in the ``Comments and
Responses'' section of the preamble of this final rule and are not
repeated here. After taking all public comments into consideration,
NMFS approved Amendment 11 on February 27, 2008.
Description and Estimate of Number of Small Entities To Which the Rule
Would Apply
All vessels in the Atlantic sea scallop fishery are considered
small business entities because all of them grossed less than $4.5
million according to dealer data for the 2004 and 2005 fishing years.
Therefore, there are no disproportionate impacts on small entities.
According to this information, annual total revenue averaged about
$940,065 per limited access vessel in 2004, and over $1 million per
limited access vessel in 2005. Total revenues per vessel, including
revenues from species other than scallops, exceeded these amounts, but
were less than $4.5 million per vessel. Average scallop revenue per
general category vessel was $35,090 in fishing year (FY) 2004 and
$88,702 in FY 2005. Average total revenue per general category vessel
was higher, exceeding $240,000 in FY's 2004 and 2005. According to the
preliminary estimates, average revenues per vessel were lower in the
first 11 months of 2006 for all permit categories, because of lower
scallop landings and prices.
The measures proposed in Amendment 11 would affect vessels with
limited access scallop and general category permits. Section 4.4
(Fishery-related businesses and communities) of the Amendment 11
document provides extensive information on the number and size of
vessels and small businesses that will be affected by the regulations,
by port and state. These affected entities are the owners of 318
vessels that were issued full-time permits in 2006 (including 55 small-
dredge and 14 scallop trawl permits; 32 part-time; and 1 occasional
limited access permit). In addition, 2,501 permits were issued to
vessels in the open access General Category, and more than 500 of these
vessels landed scallops during the last 2 years.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action contains several new collection-of-information,
reporting, and recordkeeping requirements. The following describes
these requirements.
1. Application Process
NMFS estimates that there will be 500 applicants for an IFQ scallop
permit, 200 applicants for a NGOM scallop permit, and 500 applicants
for an Incidental scallop permit. Each IFQ scallop permit application
will take approximately 30 min per application, while each NGOM and
Incidental scallop permit application will take approximately 15 min to
process. Consequently, the total time burden for the initial
applications will be approximately 425 hr. Amendment 11 estimates that
370 IFQ scallop permit, 190 NGOM scallop permit, and 465 Incidental
scallop vessels are expected to qualify and consequently renew their
application each year. Permit renewal is estimated to take 15 min per
application, on average, for a total burden of approximately 256 hr per
year. The 3-year average total public time burden for IFQ, NGOM, and
Incidental scallop permit initial applications, and permits renewals is
expected to be approximately 312 hr. The labor cost, at an hourly rate
of $15, will to be $4,680.
To implement the 5-percent IFQ ownership cap, vessel owners will be
required to submit an ownership form with each permit renewal. Since
there will be an estimated 370 IFQ permits, there will be about 370
ownership forms each year. NMFS estimates that it will take 5 min to
complete each ownership form; therefore, the annual reporting burden
will be about 31 hr, or 21 hr, averaged over the first 3 years. At an
hourly rate of $15, the annualized time burden will be approximately
$315.
About 80 applicants are expected to appeal the denial of their
permit application over the course of the 3-month application period.
The appeals process is estimated to take 2 hr per appeal, on average,
for a total burden of 160 hr. The burden of this one-time appeal,
annualized over 3 years, will be about 54 hr. At an hourly rate of $15,
the time burden will be approximately $810.
2. Vessel Replacement, Upgrade, and Permit History Applications
A standard form for vessel replacements, upgrades, and permit
history applications (RUPH application) will be used for LAGC scallop
permits, although vessel upgrades will not apply for LAGC scallop
vessels unless the vessel is issued other limited access fishery
permits that have upgrade restrictions. With the exception of upgrade
restrictions, LAGC scallop vessels will be subject to similar
replacement and permit history restrictions as other Northeast Region
limited access fisheries. Completion of an RUPH application requires an
estimated 3 hr per response. It is estimated that 100 RUPH applications
will be received annually. The resultant burden will be up to 300 hr.
At an hourly rate of $15 per hour, the total public cost burden for
RUPH applications will be about $4,500 per year.
3. New VMS Requirements
This action will require vessels issued any of the LAGC scallop
permits to install VMS. Most vessels that qualify for an IFQ scallop
permit have been participating in the directed general category scallop
fishery, which already had VMS requirements prior to the implementation
of Amendment 11. Therefore, it is likely that most vessels that will
qualify for an IFQ permit
[[Page 20109]]
already have VMS. Vessels that qualify for an Incidental or NGOM
scallop permit will not likely be participating in the directed general
category scallop fishery. However, vessels that qualify for an
Incidental or NGOM scallop permit may already have VMS reporting
requirements through other fisheries, particularly the NE multispecies
fishery. It is possible that some new permit holders will decide to
purchase and install new VMS units in order to participate in one of
these fisheries. Therefore, NMFS estimates that up to 10 vessels will
purchase and install VMS units as a result of Amendment 11. NMFS
estimates that it will take 2 hr to purchase each unit, for a total
time burden of 20 hr; annualized over 3 years, the burden will be about
7 hr per year. NMFS anticipates that a vessel owner will hire a VMS
technician to install the VMS unit; therefore there will be no
installation time burden for the vessel owner. At an hourly rate of $15
per hour, the total public cost burden for VMS purchases will be $105
per unit. Since position polling is automated, there is no associated
time burden with this reporting requirement.
4. Trip Notification Requirements
Each time a LAGC scallop vessel leaves port or is moved from the
dock or mooring, the operator must submit a VMS trip declaration code
to notify NMFS of the vessel's fishing activity.
According to 2007 VMS trip declaration data for 1B scallop vessels,
approximately 40 percent of the time general category 1B vessels
declare a general category scallop trip; the remainder are codes for
other activities (if a vessel leaves port, general category regulations
require it to declare a trip, regardless of the fishing activity). The
2008 scallop harvest specifications have not yet been finalized, but
the proposed IFQ quota is 2.5 million lb (1,134 mt). Assuming each trip
harvests the 400-lb (181.4-kg) possession limit, there will be an
estimated 6,250 IFQ trip declarations per year, with an additional
9,375 trip declarations for some activity other than scallop fishing,
for a total of 15,625 trip declarations per year. NMFS assumes that the
vessel operator will submit a power-down code to reduce polling costs
and conserve battery power following each trip. NMFS estimates that it
takes approximately 2 min to submit a trip declaration or power-down
code. NMFS estimates that the IFQ fleet will submit 31,250 VMS
declaration codes (15,625 trip declarations and 15,625 corresponding
power-down code submissions); therefore, the annual IFQ trip
declaration time burden will be 1,042 hr. At an hourly rate of $15,
this burden will be $15,630.
5. NGOM Notification Requirements
The proposed NGOM TAC is expected to be 64,000 to 100,030 lb
(29,030 to 45,373 kg) each year. Assuming each trip lands the 200-lb
(90.7-kg) possession limit, and using the upper limit of the proposed
TAC, it is projected that there will be up to 500 NGOM trip
declarations per year. For economic purposes it is unlikely that a
vessel owner will incur the cost of a VMS unit solely to have a NGOM
permit. Therefore, assuming these vessels already have VMS reporting
requirements for other fisheries, VMS declaration reporting
requirements for activities other than NGOM activity have already been
accounted for in other approved PRA collections. The increased
reporting burden resulting from the NGOM permit category will be
approximately 500 trip declarations and 500 power-down declarations.
Assuming each declaration takes approximately 2 min, the annual NGOM
trip declaration time burden will be approximately 34 hr. At an hourly
rate of $15, this burden will be $510.
6. Incidental Scallop Vessel VMS Notification Requirements
In 2004 and 2005, dealer data indicated that the percentage of
scallops landed in quantities of 40 lb (18.1 kg) or less was 0.02 and
0.06 percent, respectively, of the total scallop landings. The average
scallop landings on these trips in FY 2004 and 2005 was 19,363 lb
(8,783 kg). Using this average, NMFS estimates that approximately 500
general category trips landed scallops incidental to other fishing.
Assuming this rate will remain approximately the same, an estimated 500
Incidental trip declarations will be made annually. As previously
noted, for economic purposes it is unlikely that a vessel owner will
incur the cost of a VMS unit solely to have an Incidental scallop
permit. Therefore, assuming these vessels already have VMS reporting
requirements for other fisheries, VMS declaration reporting
requirements for activities other than Incidental scallop permit
activity have already been accounted for in other approved PRA
collections. The increased reporting burden resulting from the
Incidental scallop permit category will be approximately 500 trip
declarations and 500 power-down declarations. Assuming each trip
declaration takes approximately 2 min, the annual Incidental scallop
trip declaration time burden will be approximately 34 hr. At an hourly
rate of $15, this burden will be $510.
7. Pre-Landing Notification Requirements
VMS pre-landing notification forms will be required for each IFQ
and NGOM scallop trip. Therefore, there will be 6,250 IFQ and 500 NGOM
scallop vessel pre-landing notification forms submitted annually. NMFS
estimates that it will take 5 min for each of the 6,750 reports, for an
annual pre-landing notification time burden of 563 hr. At an hourly
rate of $15, this burden will be $8,445.
8. State Waters Exemption Program Requirements
The state waters exemption program enrollment form is estimated to
take 5 min to submit through the VMS--the same amount of time as it has
taken to enroll through interactive voice response system currently
used. State waters exemption program trip declaration requirements are
already accounted for in an approved collection under OMB Control No.
0648-0202. Therefore, this burden will not increase the cost to vessel
owners declaring into the state waters exemption program.
9. IFQ Transfers
IFQ transfers will apply to IFQ scallop vessels, except that
current limited access scallop vessels that also have been issued an
IFQ scallop permit will not be permitted to transfer IFQ. Using the
Northeast Region's Northeast Multispecies DAS leasing program (OMB
Control No. 0648-0475) as a proxy for the response rate for the IFQ
transfer program, NMFS anticipates that there will be approximately 75
temporary transfers annually. Each application will include information
from both parties involved in the temporary transfer; therefore there
will be two responses per application. NMFS estimates that it will take
5 min per response, or 10 min per temporary IFQ transfer application.
Therefore, the total estimated annual burden will be 13 hr. At an
hourly rate of $15/hour, the total public cost burden for temporary IFQ
transfer applications will be $195 per year.
The Northeast Multispecies DAS Permanent Transfer Program cannot be
easily correlated with the general category permanent transfer program
because the Northeast Multispecies Program has a 20-percent
conservation tax on all transfers, while there will be no conservation
tax on scallop IFQ transfers. Although NMFS anticipates that there will
be more IFQ transfers than DAS transfers, IFQ transfers will be
[[Page 20110]]
restricted by the requirement that no IFQ vessel owner could have an
ownership interest in more than 5 percent of the total TAC for IFQ
scallop vessels, and no vessel could have more than 2 percent of the
total TAC for IFQ scallop vessels at any time. NMFS anticipates that
there will be approximately 10 permanent IFQ transfers per year. Each
application will include information from both parties involved in the
transfer; therefore there will be two responses per application. It is
estimated that it will take 5 min per response, or 10 min per permanent
transfer application. Therefore, the estimated permanent IFQ transfer
burden will be 2 hr per year. At an hourly rate of $15 per hour, the
total public cost burden for permanent quota transfer applications will
be $30 per year.
10. Cost Recovery
Since cost recovery for the scallop IFQ program is new, and there
are no other current cost recovery programs in Northeast Region
fisheries, the burden per response used by the Alaska Region's Alaska
Individual Fishing Quota Cost-Recovery Program Requirements (OMB
Control No. 0648-0398) was used as a proxy for the scallop IFQ program.
Each IFQ permit holder will be required to submit a cost recovery
payment once annually, which will take 2 hr per response. There will be
370 payments (one per qualified IFQ scallop vessel) that will take
approximately 740 hr in total. At an hourly rate of $15/hour, the total
public cost burden for cost recovery will be $11,100 per year.
11. LAGC Sector Program
NMFS estimates that there could be up to nine sector proposals
received over the next 3 years (2008-2009)--five in the first year, two
in the second year, and two in the third year. The earliest that the
sectors proposed in the 2008 year could be implemented is the 2009
fishing year. Therefore, these sectors will be required to submit
operation plans for the 2010 fishing year.
Any person could submit a sector allocation proposal for a group of
LAGC scallop vessels to the Council at least 1 year in advance of the
anticipated start of a sector program, and request that the sector be
implemented through the framework procedure specified at Sec. 648.55.
Based upon consultations with the Northeast multispecies sector
program, it is estimated it will take 150 hr to prepare and submit a
sector proposal. Therefore, the 3-year average annualized time burden
for sector proposals will be 450 hr per year. At an hourly rate of $15
per hour, the total public cost burden for sector proposals will be
$6,750 per year.
A sector is required to resubmit its operations plan to the
Regional Administrator no later than December 1 of each year, whether
or not the plan has changed. Based upon consultations with the
Northeast multispecies sector program, each operations plan takes
approximately 100 hr. The earliest sector operation plans will be
submitted in 2010 for the proposals submitted in 2008. Therefore, NMFS
estimates it will take 500 hr to submit five operation plans. The 3-
year average annualized time burden will be 167 hr per year. At an
hourly rate of $15 per hour, the annual time burden cost will be
approximately $2,500.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
The following discussion also includes a description of the
economic impacts of the proposed action compared to significant non-
selected alternatives as required under the RFA for inclusion in the
FRFA.
In summary, the proposed limited access program could have negative
economic impacts in the short term on the estimated 373 vessels that
would not qualify for a LAGC scallop permit, with adverse impacts
compared to 2005 scallop revenue estimated to be less than 5 percent
for 119 vessels, 5 to 49 percent for 58 vessels, and 50 percent or more
for 196 vessels. The measures would also have negative impacts on about
153 out of 369 vessels that are estimated to qualify for the IFQ
scallop permit, with adverse impacts compared to 2005 scallop revenue
estimated to be less than 5 percent for 26 of these vessels, 5 to 50
percent for 70 vessels, and over 50 percent for 57 vessels. Altogether,
approved Amendment 11 measures could reduce total revenues of 381
vessels of more than 5 percent in the short-term. There are several
measures in the proposed action, however, to help mitigate and reduce
the potential negative impacts on these vessels. Qualifying vessels
would be permitted to stack allocation up to 2 percent of the entire
general category allocation and to transfer (i.e., lease or buy) IFQ on
a permanent or temporary basis. This would enable vessel owners who do
not receive an adequate amount of allocation to increase their scallop
revenue to mitigate negative impacts. Furthermore, there is a provision
to allow the formation of voluntary sectors. It may be beneficial for a
group of vessels from a fishing community, for example, to organize and
apply for a sector in the general category fishery. Negative impacts on
some vessel owners may be mitigated if a vessel would qualify for a
NGOM scallop permit that authorizes it to fish for scallops at a
reduced level. In addition, many of the vessels that would not qualify
for the IFQ scallop permit would qualify for an Incidental scallop
permit that would authorize the vessel to land up to 40 lb (18.1 kg) of
scallops per trip.
Continuation of the open access fishery under the no action
alternative would not guarantee that the affected vessel owners would
get more scallop revenue than they could with the proposed limited
access program. With continued open access, there would always be the
risk of more vessels entering the fishery, with the potential for
overcapitalization of the scallop fishery and overfishing of the
scallop resource. Overfishing would likely cause a reduction in
landings per unit effort, an increase in fishing costs per pound of
scallops, and dissipation of the profits for all limited access and
general category vessels.
There would also be possible future negative effects on the
existing limited access scallop vessels with the continuation of the
open access program because the need to prevent an increase in overall
fishing mortality would at some point reduce the DAS allocations for
the limited access fleet to compensate for projected general category
catch. Assuming a scallop harvest of 50 million lb (22,680 mt), an
increase in the share of general category landings to 20 percent of the
total scallop landings would result in a decline of 17 percent to 21
percent of the net vessel share (as a proxy for profits) for the
limited access vessels. Given that, in 2005, the general category
landings increased to 14 percent of the total landings from about 5
percent in 2004, a further increase in general category effort could
occur without a limited access program.
Because it would prevent further expansion of the general category
fishery, the economic impacts of the proposed measures on the 351
existing limited access vessels would be positive both in the short and
the long term. Reducing the general category catch from recent levels
could increase the
[[Page 20111]]
total DAS allocations for those vessels, resulting in approximately a
7-percent increase in their revenues compared to the status quo levels.
Similarly, the general category limited access program would benefit
the current limited access vessels that qualify for an IFQ permit,
although the proposed 0.5-percent allocation of the total scallop TAC
could lower their landings compared to recent levels (1.5 percent and
0.75 percent of overall scallop landings in 2005 and 2006,
respectively).
The overall economic impacts of the limited entry in the medium to
long term are expected to be positive for the sea scallop fishery as a
whole, compared to taking no action. The proposed action would restrict
the estimated number of participants in the general category fishery to
369 vessels that meet the IFQ permit qualification criteria. The
allocation of a 5-percent TAC for the general category would cap the
fishing mortality from this component of the fleet. The limited access
program would also prevent the profits of the qualifiers and limited
access vessels from being dissipated due to an increase in fleet
capacity that would likely occur with continued open access.
NMFS evaluated the Council's proposed measures relative to
compliance with the Magnuson-Stevens Act, including national standards,
required provisions, and the discretionary provision pertaining to
limited access programs, as well as with applicable laws and the FMP.
NMFS has determined that Amendment 11 is consistent with all National
Standards, including National Standard 4 (which requires management
measures to be fair and equitable, but which recognizes that fishing
privilege may need to be allocated among fishermen), and National
Standard 8 (requiring management measures to minimize adverse economic
impacts, to the extent practicable, on fishing communities). Without
Amendment 11 and the controls on access to the fishery, estimated catch
levels would continue to be exceeded, compromising NMFS's ability to
effectively manage the scallop fishery overall. Uncontrolled, the
general category fishery could contribute to excess fishing mortality
on the scallop resource. As a result, the long-term economic and social
impacts would be negative for the scallop fishery as a whole. All
general category fishermen are small scale fishermen, given the
vessels' relatively low level of scallop catch compared to vessels in
the limited access fleet. All scallop fishing vessels are small
entities as defined by the RFA.
Amendment 11 measures will impact all scallop vessels to varying
degrees. General category scallop landings and revenues since the
November 1, 2004, control date have been the highest on record.
Amendment 11 will curtail this recent ramp-up in effort, thus having a
negative impact on revenues of some fishermen. Amendment 11 will have
short-term negative economic and social impacts on vessel owners that
fished more intensely recently than they did during the qualifying time
period. Vessel owners with historical landings and participation
similar to current levels will be the least impacted.
Negative impacts on non-qualified vessels (i.e., post-control date
entrants) will be most severe, since their revenues from scallop
landings will be terminated. Amendment 11 contains no provisions
specifically designed to minimize negative impacts on non-qualified
vessels, although various alternatives to allow such vessels to
continue fishing were considered and rejected by the Council because
they were not consistent with the goal of Amendment 11 to reduce
capacity and mortality in the general category fishery. These vessels
entered the fishery after the November 1, 2004, control date, despite
the control date's intent to deter individuals from unduly investing
in, or relying on this fishery. In order for the effort reduction to be
meaningful, while allowing remaining fishery participants to have
reasonable opportunities to fish, some vessels must be eliminated. NMFS
has concluded that the historic participants should have the
opportunity to continue to fish.
The evaluation of Amendment 11 measures concluded that the suite of
measures; in particular the limited access program, the IFQ program,
IFQ transfer provisions, and sector provisions; combine to minimize the
negative impacts on qualified vessels. Positive impacts on the
qualified participants, as well as the existing limited access fleet,
are expected as the harvest capacity of, and fishing mortality by the
general category fleet is controlled.
A description of significant alternatives to the measures approved
as part of Amendment 11 which affect the impact on small entities and
the reasons why these other alternatives were not adopted follows.
Landings Criteria
Two alternatives to the proposed landings qualification criteria
were considered: Scallop landings on one trip during the qualification
period of 100 lb (45.4 kg) or more; and cumulative annual landings of
5,000 lb (2,268 kg). The 100-lb (45.4-kg) landing qualification
criteria is estimated to qualify more vessels (548) for limited access
and have a lower negative impact on the recent participants than the
preferred alternative. On the other hand, by increasing the number of
participants, this alternative would result in a lower share of general
category TAC for each qualifier and would thus have a negative impact
on individual vessels, especially on vessel owners that have a high
dependence on scallop revenue as a source of income. For example, the
average allocation per vessel would decline from 5,429 lb (2,462 kg) to
3,650 lb (1,656 kg) per vessel if the poundage criterion was set at 100
lb (45.4 kg) instead of at 1,000 lb (454 kg) for a general category TAC
of 2 million lb (907 mt). The alternative 5,000-lb (2,268-kg) landings
qualification criterion is estimated to qualify only 188 vessels for
limited access and, thus, would increase the share of each qualifier in
general category TAC. As a result, average allocation per vessel would
increase to 10,638 lb (4,825 kg) with a 2-million-lb (907-mt) general
category TAC. Although this alternative would have positive economic
impacts on the vessels that had a much higher historical dependence on
scallops as a source of their income, it would deny eligibility to a
much larger number of vessels that historically derived some revenue
from scallop fishery. The proposed 1,000-lb (454-kg) alternative would
deny eligibility to a large number of vessels that have small landings
of scallops (i.e., that landed between 100 and 999 lb (45.4 kg to 453
kg)), while qualifying vessels that depend on scallops to a larger
degree.
Qualification Time Period
Eligibility for limited access would require a vessel to have made
the required amount of landings in any scallop fishing year during a
specified time period. In addition to the proposed March 1, 2000,
through November 1, 2004, qualification period, the Council considered
two alternative qualification periods: March 1, 1994, through November
1, 2004; and March 1, 2003, through November 1, 2004. The economic
impacts of the qualification period, combined with the landing
criteria, are analyzed in several sub-sections of Section 5.4 of the
Amendment 11 document and are summarized here. The impacts on the
general category permit holders and vessels that qualify for limited
access are analyzed in Section 5.4.3 of the Amendment 11 document. The
impacts on revenues, fishing costs, average net
[[Page 20112]]
revenues, crew and vessel shares are analyzed in Section 5.4.5 of the
Amendment 11 document, for various levels of general category TAC. The
impacts of the proposed 5-yr qualification period and other
alternatives on recent participants in the general category fishery are
analyzed in Section 5.4.6 of the Amendment 11 document.
The proposed 5-yr qualification period, combined with the 1,000-lb
(454-kg) landings criteria, is expected to have positive economic
impacts in the short and long term on vessel owners with vessels that
qualify for limited access. It would provide access to those general
category vessels that were active in the fishery in recent years, as
well as to historical participants that were active from March 1, 2000,
through November 1, 2004. The proposed 1,000-lb (454-kg) poundage
criterion and the 5-yr qualification period would qualify 369 vessels,
but would deny eligibility to 90 vessels that meet the 1,000-lb (454-
kg) criterion for their activity during FY 1994-1999. The economic
impacts on these historic participants would be negative in terms of a
loss in future potential revenue from scallops, unless they buy a
vessel that qualifies for limited access. The proposed 5-yr
qualification period would not have any impact on the current income of
most of these vessels, given that most have not been active since 2000;
only 10 vessels are estimated to have participated in the fishery after
the control date (November 1, 2004). The longer qualification period
would cause the general category TAC to be divided among a larger
number of vessels, most of which were not recently active in the
fishery, and vessels that depend on scallops would receive a smaller
share than they would with the proposed 5-yr qualification period. This
would have negative economic impacts on the vessels that depend on
scallops to a larger degree. There are also some measures included in
the proposed action that could mitigate some of these adverse economic
impacts on non-qualifiers. If these vessels had a permit before the
control date, they could obtain an incidental catch permit and land up
to 40 lb (18.1 kg) per trip, and thus still earn some revenue from
scallops. Other vessel owners could choose to obtain an NGOM scallop
permit and participate in the NGOM fishery, subject to a possession
limit of 200 lb (90.7 kg) per trip and a hard TAC.
The 2-yr qualification period alternative would have restricted
eligibility to 277 general category vessels that landed 1,000 lb (454
kg) or more of scallops during the period March 1, 2003, through
November 1, 2004, instead of 369 vessels under the proposed action.
Although this alternative would result in a larger share per vessel
qualified for limited access, it was found to be inequitable to
participants who did not fish for scallops in 2003-2004, but who did
fish in recent years since 2000.
IFQ Vessel Contribution Factor
Under the proposed action, each IFQs vessel's contribution factor
would be determined by identifying the year with the highest landings
during the qualification time period, and multiplying it by an index
that increases as the number of years in which the vessel landed
scallops during the qualification time period increases. For example,
the index is 0.75 if the vessel landed scallops in 1 year, and 1.25 if
the vessel landed scallops in 5 years. Therefore, the proposed action
would allocate more pounds to those vessels that were active in the
fishery for a longer period of time.
In addition to the proposed measure, the Council considered three
alternatives to calculate the contribution factor. One alternative used
the vessel's best year of landings during the qualification time
period. Another alternative used the vessel's best year multiplied by a
lower range of index factor than the proposed action. The third
alternative used either the best year of landings during the
qualification time period, or the indexed best year of landings during
the qualification time period, but capped the contribution at 50,000 lb
(22,680 kg) of scallops. The economic impacts of the contribution
factor alternatives are analyzed in Section 5.4.7.1 through 5.4.7.2 of
the Amendment 11 document.
The alternatives to the proposed option would have distributional
economic impacts less favorable to the vessels that were active in the
fishery for many years. The alternative that used a lower range of
index values (0.9 to 1.10, rather than 0.75 to 1.25) would provide only
a slight increase in IFQ share for vessels that were active in the
fishery for a long period of time, while only slightly decreasing share
for vessels that were in the general category scallop fishery for only
1 year. This would have had more negative impacts on a larger number of
vessels that had a longer history in the general category scallop
fishery. The alternative allocation based on best year (Section
3.1.2.3.1 of the Amendment 11 document) would have had negative
economic impacts on those vessels that had a longer history of
participation, since allocation would be determined regardless of years
active. For the same reason, this alternative would have had positive
economic impacts on those vessels that had a shorter history of
participation. The final alternative, which would establish the 50,000-
lb (22,680-kg) cap on a vessel's contribution factor, would prevent a
vessel from getting a larger share of the fishery even if it had very
high historical landings. This alternative would have impacted vessels
with higher landings more severely than vessels with lower landings,
and was therefore not selected. The proposed alternative using the
best-year indexed by the number of years active is intended to help
reduce the negative impacts on those participants with an established
history and long-term investment in scallop fishing.
Scallop Allocation for LACG Scallop Vessels
The Council considered several ways of allocating IFQ to vessels
that qualify for a LAGC scallop permit (excluding NGOM and Incidental
scallop vessels). These included: Allocations by vessel in pounds of
scallops or number of trips per vessel; allocations to two allocation
tiers where every vessel in a tier would receive the same allocation;
allocation to three allocation tiers; a fleetwide hard TAC; and a
fleetwide hard TAC allocated into either quarters or trimesters. The
Council also considered a stand-alone IFQ alternative that would confer
eligibility on IFQ vessels based only on past permit issuance, and
would use the contribution factor alternative adopted by the Council to
allocate a vessel's IFQ. The economic impacts of the allocation
alternatives are analyzed in section 5.4.8 of the Amendment 11
document.
Under the proposed action, NMFS would calculate a vessel's IFQ by
multiplying the overall general category TAC by the vessel's
contribution factor. An example demonstrating the calculation of a
vessel's IFQ is provided in the ``IFQs for Limited Access General
Category Scallop Vessels'' section of the preamble of this proposed
rule.
The allocation of IFQ would eliminate the derby fishing effect that
results from a TAC because an IFQ assures that each vessel can land a
given quantity anytime during the fishing year. Vessel owners would
have the flexibility to select the time and the area to fish in order
to minimize their costs and/or maximize their revenues. Since the
fishing effort would be spread over a longer period of time, the price
of scallops would be more stable throughout the season. This, combined
with the availability of a fresh and/or higher quality scallops over a
longer season, would benefit consumers
[[Page 20113]]
as well as producers. Therefore, the proposed allocation alternative
would have positive economic impacts on the vessels that qualify for
limited access general category fishery. Although maintaining the 400-
lb (181.4-kg) possession limit would cause some inefficiencies and
result in higher costs compared to a higher possession limit
(alternative 2,000 lb (907 kg) per trip), this provision is intended to
help preserve the historical small-boat character of this fleet.
The non-selected alternative that would have allocated a number of
trips to each scallop vessel has an advantage over the IFQ alternative
because it is easier to monitor and enforce, but could result in either
reduced revenue or increased costs for vessels that catch less than 400
lb (181.4 kg) of scallops on any trip, because the trip would have been
considered to be used irrespective of amount landed. Another non-
selected alternative would have established two permit tiers to which
vessels would be assigned based on the level of historical scallop
landings. Vessels that had historical landings of less than 5,000 lb
(2,268 kg) would have a possession limit of 200 lb (90.7 kg), while
vessels that had historical landings greater than 5,000 lb (2,268 kg)
would have a scallop possession limit of 400 lb (181.4 kg) per trip.
The alternative did not restrict the number of trips that could be
taken or pounds that could be landed by vessels within a tier. This
alternative would have negative economic impacts on vessels that landed
less than 5,000 lb (2,268 kg) and would be restricted to a 200-lb
(90.7-kg) possession limit because it would reduce landings from recent
historical levels. The three-tiered allocation alternative would
allocate equal pounds or trips to each vessel within one of three tiers
based on the vessel's historical level of landings, with the pounds or
trips allocated to each tier based on the average amount of scallops
landed by vessels in each tier. As a result, this alternative would
have negative impacts on a vessel in a tier that landed a higher amount
of scallops than the average for the tier. The stand-alone alternative
would allocate IFQ to a larger number of vessels, but would have
negative distributional impacts on vessels that have had higher recent
annual landings of scallops. Instead of individual allocation, the
alternative that would establish a hard TAC with limited entry vessel
permits could lead to a race to fish and market gluts. This could have
negative economic impacts, especially on smaller vessels that fish
seasonally and cannot access all areas due to the constraints on their
capacity. A fleet-wide hard TAC allocated by trimester or by quarter
would extend the fishing season and reduce negative impacts from derby
fishing and market gluts, to some extent. These alternatives would have
larger negative distributional impacts on some vessels compared to the
proposed IFQ program, and other vessel allocation alternatives
considered, because the opportunity to fish and land scallops would be
dependent upon the level of fishing by other vessels. For example, a
vessel may not get the opportunity to fish for scallops at all under a
quarterly fleetwide TAC alternative if other general category vessels
quickly harvest the entire TAC. If such a vessel had landings of
scallops before Amendment 11, the vessel would experience scallop
revenue losses compared to alternatives that would allow the vessel to
fish for scallops regardless of the scallop fishing activity of other
vessels.
Limited Entry Permit Provisions
Amendment 11 includes most of the provisions adopted in other
limited access fisheries in the Northeast Region to govern the initial
qualification process, future ownership changes, and vessel
replacements. For the most part, there is no direct economic impact of
these provisions. The nature of a limited access program requires rules
for governing the transfer of limited access fishing permits. The
procedures have been relatively standard for previous limited access
programs, which makes it easier for a vessel owner issued permits for
several limited access fisheries to undertake vessel transactions. The
standard provisions adopted in Amendment 11 are those governing change
in ownership; replacement vessels; CPH; abandonment or voluntary
relinquishment of permits; and appeal of denial of permits. In
addition, IFQ scallop vessels would be restricted to a cap on the
amount of IFQ they could own. This ownership cap restriction is based
on a similar ownership cap provision for current limited access
vessels. This action would modify some of the other provisions for LAGC
scallop vessels. LAGC scallop vessels would not have any vessel size
and horsepower upgrade restrictions for vessel modifications or vessel
replacements (unless the vessel has other limited access permits). This
action would also allow a vessel owner to retain a general category
scallop fishing history prior to the implementation of Amendment 11 to
be eligible for issuance of the LAGC scallop permit based on the
eligibility of the vessel that was sold, even if the vessel was sold
with other limited access permits. Amendment 11 allows the general
category fishing history to be retained and split from other limited
access permits prior to the effective date of Amendment 11. This is a
departure from other limited access permit programs that prohibit such
histories from being split from other fishing history. Allowing the
splitting avoids complicated ownership disputes between individuals
that completed vessel sale transactions that effectively split fishing
history before and during the development of Amendment 11.
The economic impacts of the limited access permit provisions are
analyzed in section 5.4.9 of the Amendment 11 document. Measures
allowing vessel owners to appeal limited access permit denials would
indirectly benefit all participants by ensuring that only those vessels
that provide verification of permit and landings history would qualify
and receive allocation based on accurate records. The proposed
regulations regarding qualification with retained vessel histories
would have positive economic impacts for participants that sold their
vessel to another but retained the fishing history. The proposed action
would allow a vessel owner to modify a LAGC scallop vessel's size or
horsepower without any upgrade restriction, provided that there are no
other limited access permits issued to the vessel. This would provide
flexibility for the vessel owners to adjust their fishing power under
changing fishery conditions. Flexibility with a vessel's size and
horsepower could also improve safety at sea. Since the vessels would be
allocated individual pounds, this is not expected to impact the total
scallop landings or provide an unfair advantage to larger vessels.
Amendment 11 would allow a vessel owner to obtain permanent or
temporary transfers of IFQ, up to 2 percent of the total general
category allocation per vessel. This would help vessel owners to
maintain an economically viable operation if the allocations for
separate vessels are too low to generate revenue to cover variable and
fixed expenses. It could also allow a vessel owner to sell or lease a
small IFQ to another vessel owner, which would generate income from the
IFQ without operating costs. This measure, combined with a restriction
that an individual could not have an ownership interest in more than 5
percent of the overall TAC, would also prevent a few individuals or
corporations from dominating the fishery and would help to redistribute
gains from the limited access more equitably among more fishermen. Non-
preferred alternatives considered other ways to limit the accumulation
of IFQ. One would have allowed two
[[Page 20114]]
allocations only to be combined, and the other set a cap of 60,000 lb
(27,216 kg) total allocation. The selected alternative provided more
flexibility while maintaining an overall limit on the amount of IFQ
that could be held by a single vessel.
Non-preferred alternatives would have prohibited IFQ transfers,
would have maintained vessel size and horsepower upgrade restrictions
consistent with other limited access permits (allowed upgrades up to 10
percent in length, and gross and net tonnage, and 20 percent in
horsepower), and would have prohibited IFQ transfers, providing less
flexibility for vessel owners and reduced economic benefits.
Sectors
Amendment 11 proposes to allow participants in the IFQ scallop
fishery to organize voluntary fishing sectors. Amendment 11 specifies
sector requirements and the process through which proposals would be
submitted to the Council and NMFS. Amendment 11 does not establish
sectors--just the process under which future sectors could be proposed.
The proposed sector process would provide an opportunity for fishermen
to benefit from an economically viable operation when the allocations
of individual vessels are too small to make scallop fishing profitable.
In comparison, the only alternative to the proposed action would not
allow the formation of sectors, decreasing flexibility and eliminating
any possible future economic benefits of forming sectors.
Measures for Transition to the IFQ Program
Amendment 11 specifies measures that would be implemented for at
least 1 year, while the eligibility process for IFQ scallop permits is
underway to establish the fleet of IFQ scallop vessels. The economic
impacts of the transition period alternatives are analyzed in section
5.4.12 of the Amendment 11 document. The proposed interim alternative
would establish the following measures. These would help to prevent a
short-term increase in overfishing of the scallop resource by limiting
the general category landings to 10 percent of the total scallop
landings through specification of a TAC. The proposed action would
prevent further expansion in the general category catch and benefit the
participants of the general category fishery by providing some
adjustment time for general category vessels until the transition
period is over. The allocation amounts for many IFQ scallop vessels are
likely to be lower with the proposed 5-percent TAC for the IFQ fishery
than their recent landings. Although management of the general category
fishery by a fleetwide TAC during the transition period would create
some derby fishing, the allocation of the total TAC into quarters would
reduce derby effects to some extent, and lessen the negative economic
impacts associated with derby fishing. A 10-percent fleetwide TAC may
not constitute a significant constraint on recent landings, given that
only those vessels that qualify for an IFQ permit, or that are under
appeal for an IFQ permit, would be authorized to fish during the
transition period. General category scallop landings by those vessels
that had a permit before the control date were approximately 11 percent
of total landings in 2005.
An alternative was considered that would have established an annual
fleetwide TAC. It was not selected because the Council believed it
would increase the derby effect, with potential negative economic and
safety implications. It would increase the likelihood that a vessel
would not have the opportunity to fish for scallops because other
vessels could rapidly harvest the TAC. Another alternative proposed
that the transition year would have no TAC. It would eliminate the
incentives for derby style fishing and the economic impacts of this
alternative compared to the status quo would be negligible, provided
participation by general category vessels that had a permit before the
control date does not increase significantly above the recent levels.
On the other hand, it is possible for the number of appeals to be
greater than the number of vessels that fished during the recent years,
resulting in more vessels participating in the fishery. If this were to
happen, and the general category scallop landings increase above 10
percent of total scallop harvest, there could be short-term unexpected
increase in fishing mortality on the scallop resource.
NGOM Scallop Management Area
Amendment 11 includes management measures specific to the NGOM
scallop management area intended to allow a level of scallop fishing
activity to occur outside of the constraints of the IFQ program and
some other Amendment 11 provisions for general category vessels.
Measures include the establishment of a TAC for the area derived from
the Federal portion of the resource; a 200-lb (90.7-kg) possession
limit for NGOM and IFQ scallop vessels; a restriction on dredge size; a
restriction that catch by IFQ scallop vessels fishing in the area would
be deducted from the IFQ scallop vessel's IFQ and from the NGOM TAC;
trip declaration requirements; and a closure of the NGOM to all scallop
vessels (including current limited access scallop vessels and
Incidental scallop vessels) when the NGOM TAC is reached. The economic
impacts of the NGOM Scallop Management Area are analyzed in section
5.4.14.4 of the Amendment 11 document. The proposed NGOM Scallop
Management Area alternative would have positive economic impacts on a
large number of vessels that are not estimated to qualify for the IFQ
permit but that are estimated to qualify for an NGOM permit. These
vessels would have an opportunity to land scallops in this area when
the resource conditions are favorable. It would reduce the possession
limit for NGOM and IFQ scallop vessels to 200 lb (90.7 kg) per trip to
reduce incentives for larger vessels targeting scallops in this area.
Although reducing the possession limit would have negative economic
impacts on some vessels, the majority of the active vessels that would
qualify for the NGOM permit general category permit landed 200 lb (90.7
kg) or less of scallops from any one trip, therefore would not be
negatively impacted from 200 lb (90.7 kg) possession limit. In
comparison, the no action alternative would have had negative economic
impacts for vessels that could not qualify for the IFQ scallop permit.
Under one alternative, Amendment 11 provisions would not have
applied to NGOM and the general category vessels would have retained
the opportunity to fish for scallops in NGOM and land up to 400 lb
(181.4 kg) per trip. The lack of a TAC to limit landings, and the
higher possession limit, would have had positive economic impacts on
these vessels compared to the proposed alternative. On the other hand,
because this alternative would let any vessel obtain a permit to fish
in the area, it could lead to an influx of vessels from other areas to
participate in the open access fishery in the NGOM. This would have
negative impacts on the resource that made it unacceptable.
Another alternative proposed that, to qualify for an NGOM scallop
permit, a vessel would have to have landed 100 lb (45.4 kg) of scallops
during the period March 1, 1994, through November 1, 2004. The NGOM TAC
under this alternative would be based on all landings of scallops from
the NGOM area (not exclusively the Federal portion of the resource, as
in the proposed action). This alternative also would have allowed
vessels to continue fishing for up to 40 lb (18.1 kg) of scallops after
harvest of the NGOM TAC. This
[[Page 20115]]
alternative would also provide an advantage to IFQ scallop vessels by
allowing them to land 400 lb (181.4 kg) per trip from this area,
whereas NGOM scallop vessels could possess and land only up to 200 lb
(90.7 kg) per trip. This alternative was not adopted because the
qualification criteria would have had very little restriction on
participation, would have had excessive administrative costs, and would
not promote conservation of the scallop resource within the Gulf of
Maine or overall. While it would have qualified more vessels than the
proposed measure, the economic opportunity for those vessels would have
been diluted by a very large number of qualified vessels fishing for a
relatively small TAC.
The no action alternative for the NGOM Scallop Management Area
would not distinguish this area from other areas, and all Amendment 11
measures would apply equally throughout the range of the scallop
resource. It was not selected because it would have negative impacts on
vessels that traditionally fish in the NGOM and that could not qualify
for the IFQ permit.
Monitoring Provisions
The economic impacts of monitoring provisions proposed in Amendment
11 are analyzed in section 5.4.15 of the Amendment 11 document. Since
general category vessels that land over 40 lb (18.1 kg) of scallops are
already required to have a VMS onboard, the compliance costs of this
action are not expected to be significant. Vessels operating in the
Northeast multispecies fishery are also required to have operational
VMS units. Some of these vessel also have general category scallop
permits and would be expected to qualify for one of the LAGC scallop
permits. The majority of general category scallop vessels currently
operate VMS as required either by the scallop regulations or the
Northeast multispecies fishery regulations. The non-selected IVR
alternative does not have a distinct advantage compared to reporting
through VMS. The no action alternative would not have the associated
costs of reporting landings, but reporting of scallop catch for each
trip is essential to monitor and enforce the IFQ and NGOM scallop
fishery measures.
Limited Access Vessels Fishing Under General Category Rules
Amendment 11 provides the opportunity for current limited access
vessels (i.e., full-time, part-time, or occasional limited access
scallop vessels) to also be issued a LAGC scallop permit, if the vessel
meets the qualification criteria. The economic impacts of allowing
limited access vessels to continue to fish under general category rules
are analyzed in section 5.4.16.1 of the Amendment 11 document. The
proposed action would have positive economic impacts on 57 limited
access vessels (38 full-time, and 19 part-time and occasional) that
Amendment 11 estimates would qualify for an IFQ scallop permit. One
non-selected alternative would prevent any limited access vessel from
having a general category permit and another would prevent current
full-time limited access scallop vessels from fishing under general
category rules. This would result in negative economic impacts compared
to the proposed alternative for those vessels noted above that have a
historical level of participation in the general category fishery while
fishing outside of scallop DAS.
Under the proposed allocation to LAGC scallop vessels, 0.5 percent
of the overall scallop TAC would be allocated to vessels with IFQ
scallop permits that also have been issued a full-time, part-time, or
occasional limited access scallop permit. IFQs for these vessels would
be determined from the 0.5-percent TAC allocation. Under the transition
measure before the IFQ program is implemented, IFQ scallop vessels that
have also been issued a full-time, part-time, or occasional limited
access scallop permit would fish under the 10-percent TAC allocated to
the general category fleet. The proposed action would have positive
economic impacts on those vessels. The 0.5-percent TAC for the limited
access qualifiers is less than the percentage share of these vessels in
total general category scallop landings in recent years, but almost
equal to what was reported in FY 2004. Under one alternative, scallops
landed by limited access vessels under general category rules would be
deducted from the 5-percent TAC allocated to the IFQ vessels,
negatively impacting the general category vessels that qualify for
limited access, with small positive economic impacts on the limited
access scallop fleet. This alternative was therefore not selected, and
the separate 0.5-percent TAC is proposed.
Allocation Between Limited Access and General Category Fisheries
The Council considered alternative values for the TAC that would be
allocated to IFQ scallop vessels (excluding IFQ scallop vessels also
issued a full-time, part-time, or occasional limited access scallop
permit), equal to 2.5, 5.0, 7.0, 10.0, and 11.0 percent of the overall
projected scallop catch. The economic impacts of the various levels of
TAC allocation between the limited access and LAGC fishery are analyzed
in section 5.4.17 of the Amendment 11 document and have different
distributional impacts. The proposed 5-percent general category TAC
would have negative economic impacts on many general category vessels
compared to status quo management because the fishery landed twice that
level in both FY 2005 and FY 2006. On the other hand, the 5-percent TAC
is higher than the long-term average percentage share of total scallop
landings for the general category scallop fishery, which is 2.5 percent
of overall scallop landings. The 5-percent allocation corresponds to
the highest level reached by the general category fishery before the
control date. Therefore, this allocation is consistent with the
Council's decision in 2004 to implement a control date, recognizing
that the substantial increase in general category fishing effort could
lead to overfishing of the scallop resource and reduce economic
benefits for everyone in the fishery. The short-term and long-term
economic impacts of the 5-percent TAC, combined with the limited entry
program, compared to other alternative allocation amounts are discussed
extensively above and are not repeated here.
The proposed action includes several measures that could mitigate
some of the adverse economic impacts of the limited access program for
general category, including the 5-percent TAC. The separate limited
entry program for the NGOM is expected to provide an opportunity for
owners of vessels that would not qualify for the IFQ scallop permit,
but who have historically participated in the NGOM scallop fishery, to
fish for scallops at a reduced scale (at a lower possession limit of
200 lb (90.7 kg) per trip) when the resource conditions in this area
become favorable. The incidental catch permit would provide opportunity
for the vessels that land scallops occasionally up to 40 lb (18.1 kg)
per trip, including some vessels that qualify for limited access but
that received allocations lower than what they could land annually with
the incidental permit. Furthermore, Amendment 11 includes a provision
to allow vessel owners to combine IFQ allocations through the IFQ
transfer program, up to 2 percent of the TAC allocated to the IFQ
scallop fishery, so that vessel owners can buy or lease additional IFQ.
Similarly, the
[[Page 20116]]
proposed action to establish a process for sectors in the general
category fishery would provide an opportunity for fishermen to benefit
from an economically viable operation when the allocations of
individual vessels are too small to make scallop fishing profitable.
A lower TAC for general category would have larger negative
proportional impacts on general category vessels while potentially
increasing the revenues of the limited access fishery by a small
percentage. A higher percentage TAC would reduce the negative impacts
on general category vessels, but would lower the positive economic
impacts on the current limited access.
Incidental Catch Permit
The economic impacts of the proposed Incidental catch permit are
analyzed in section 5.4.18 of the Amendment 11 document. The proposed
action would create an incidental catch permit for vessels to retain
and sell up to 40 lb (18.1 kg) of scallop meats per trip, provided they
had been issued a general category scallop permit as of November 1,
2004. The economic impacts of this alternative would be positive on
vessels that do not qualify for the IFQ permit because it would allow
them to still earn some income from scallops under the incidental catch
permit. This measure could also benefit some vessels that qualify for
the IFQ permit with low allocations. The owner of such a vessel might
elect the Incidental scallop permit because the vessel could land more
total pounds of scallops on several 40-lb (18.1-kg) trips than it could
under its IFQ.
The only other alternative considered was no action, which would
allow vessels to possess and land, but not sell, an incidental catch of
scallops. This alternative would not provide any source of revenue for
vessels that do not qualify for the IFQ or NGOM scallop permit. It also
would complicate the Council's and NMFS's ability to determine the
overall level of scallop catch from a fleet of vessels without scallop
permits because none of the reporting and compliance measures would
apply to non-permitted vessels. This could result in more cautious
management measures in the future, with possible negative economic
impacts on all vessels issued scallop permits.
Changing of the Issuance Date of General Category Permits
Amendment 11 proposes to change the permit issuance date for
general category scallop permits from May 1 to March 1, to better align
the general category scallop fishery with the scallop fishing year of
March 1 through February 28/29. The economic impacts of changing the
date that general category permits are issued are analyzed in section
5.4.19 of the Amendment 11 document. Changing the general category
permit to March 1 is an administrative change and procedural adjustment
for owners accustomed to a May 1 permit renewal. The proposed measure
would allow, however, better estimation of the number of participants,
the level of effort in the fishery and allocation of TAC by aligning
the issuance date with date for the limited access fishery. As a
result, the proposed action would have indirect positive economic
impacts on the sea scallop fishery.
The Council considered revising the start of the fishing year to
May 1 or August 1. This would have had some positive impacts over the
long term by better aligning the fishing year with the scallop survey,
resulting in updated information on which to base the following year's
management. This would increase the confidence in the effectiveness of
scallop fishery management measures relative to the scallop fishing
mortality goals of the FMP. On the other hand, these alternatives were
strongly opposed by the scallop industry because it would require a
change in the business plans of the scallop vessel owners.
Other Measures Included in Amendment 11
Amendment 11 proposes two changes to scallop regulations, including
a clarification that the maximum sweep length for trawl gear under the
FMP would not apply to vessels fishing for Northeast multispecies or
monkfish, and an allowance for general category vessels to possess up
to 100 bu (35.2 hL) of in-shell scallops seaward of the VMS demarcation
line. The economic impacts of these measures are analyzed in sections
5.4.20 and 5.4.21 of the Amendment 11 document. Clarification of trawl
gear restriction for vessels fishing under a multispecies or monkfish
DAS would have positive economic impacts on those general category
vessels that catch scallops only incidentally, compared to no action.
Setting the possession limit at 100 bu (35.2 hL) seaward of the
demarcation line would have positive economic impacts on the general
category vessels when they catch scallops with lower meat yield. The
only alternative to both of these measures is the no action
alternative, which does not provide the benefits of the proposed action
noted above.
Change to Ownership Cap Restriction To Account for CPHs
This final rule includes a change to the ownership cap restriction
for current limited access scallop vessels to clarify that the
regulation was intended to apply to limited access scallop permits and
CPHs. Currently, if a vessel owner has been issued a CPH, that owner
cannot activate that CPH on a vessel if he/she already owns 5 percent
of the limited access scallop permits. That owner would therefore have
to sell a vessel to activate the CPH. This clarification of the
ownership cap to include CPH's does not change this, or the economic
impacts of the ownership cap restrictions. There are no alternatives to
clarifying the regulation, since the result would be that the scallop
regulations would continue to be inconsistent with the intent of the
original ownership cap restrictions included in the FMP.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide was prepared.
The guide will be sent to all holders of permits issued for the
Atlantic scallop fishery. In addition, copies of this final rule and
guide (i.e., permit holder letter) are available from the Regional
Administrator and are also available from NMFS, Northeast Region (see
ADDRESSES).
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: April 7, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
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.
[[Page 20117]]
0
2. In Sec. 648.2, definitions for ``limited access general category
(LAGC) scallop vessel'' and ``limited access scallop vessel'' are added
in alphabetical order to read as follows:
Sec. 648.2 Definitions.
* * * * *
Limited access general category (LAGC) scallop vessel means a
vessel that has been issued an individual fishing quota (IFQ), Northern
Gulf of Maine (NGOM), or incidental catch LAGC scallop permit pursuant
to Sec. 648.4(a)(2)(ii). An LAGC scallop vessel may also be issued a
limited access scallop permit.
* * * * *
Limited access scallop vessel means a vessel that has been issued a
limited access full-time, part-time, or occasional scallop permit
pursuant to Sec. 648.4(a)(2)(i). A limited access scallop vessel may
also be issued an LAGC scallop permit.
* * * * *
0
3. In Sec. 648.4, paragraphs (a)(1)(i)(I)(3), (a)(2) introductory
text, (a)(2)(i) introductory text, (a)(2)(i)(M)(1), (a)(2)(i)(M)(2),
(a)(2)(i)(O), (a)(2)(ii), and (e)(iv) are revised, and paragraph
(a)(2)(i)(P) is added to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(1) * * *
(i) * * *
(I) * * *
(3 ) With the exception of combination vessels, a vessel issued a
limited access sea scallop dredge permit pursuant to paragraph
(a)(2)(i) of this section is not eligible for limited access
multispecies permits. This restriction is not applicable to vessels
issued an LAGC scallop permit pursuant to paragraph (a)(2)(ii) of this
section, unless such vessel has also been issued a limited access
scallop permit pursuant to paragraph (a)(2)(i) of this section.
* * * * *
(2) Atlantic sea scallop vessels--Any vessel of the United States
that fishes for, possesses, or lands Atlantic sea scallops, except
vessels that fish exclusively in state waters for scallops, must have
been issued and carry on board a valid scallop vessel permit pursuant
to this section.
(i) Limited access scallop permits. Any vessel of the United States
that possesses or lands more than 400 lb (181.4 kg) of shucked
scallops, or 50 bu (17.6 hL) of in-shell scallops per trip, or
possesses more than 100 bu (35.2 hL) seaward of the VMS Demarcation
Line, except vessels that fish exclusively in state waters for
scallops, must have been issued and carry on board a valid limited
access scallop permit.
* * * * *
(M) * * *
(1) For any vessel acquired after March 1, 1994, a vessel owner is
not eligible to be issued a limited access scallop permit for the
vessel, and/or a confirmation of permit history, if, as a result of the
issuance of the permit and/or confirmation of permit history, the
vessel owner, or any other person who is a shareholder or partner of
the vessel owner, will have an ownership interest in a total number of
limited access scallop vessels and limited access scallop confirmations
of permit history in excess of 5 percent of the number of all limited
access scallop vessels and confirmations of permit history at the time
of permit application.
(2) Vessel owners who were initially issued a 1994 limited access
scallop permit or confirmation of permit history, or who were issued or
renewed a limited access scallop permit or confirmation of permit
history for a vessel in 1995 and thereafter, in compliance with the
ownership restrictions in paragraph (a)(2)(i)(M)(1) of this section,
are eligible to renew such permits(s) and/or confirmation(s) of permit
history, regardless of whether the renewal of the permits or
confirmations of permit history will result in the 5-percent ownership
restriction being exceeded.
* * * * *
(O) Replacement vessels. See paragraph (a)(1)(i)(E) of this
section.
(P) VMS requirement. A vessel issued a limited access scallop
permit, as specified in paragraph (a)(2)(i) of this section, except a
vessel issued an occasional scallop permit that is not fishing in a sea
scallop access area, must have an operational VMS installed. Prior to
issuance of a limited access scallop permit, NMFS must receive a signed
VMS certification from the vessel owner and be notified by the VMS
vendor that the unit has been installed and is operational.
(ii) LAGC scallop permits. Any vessel of the United States that has
not been issued a limited access scallop permit pursuant to paragraph
(a)(2)(i) of this section, and any vessel issued a limited access
scallop permit that fishes for scallops outside of the scallop DAS
program described in Sec. 648.53(b) or the Area Access program
described in Sec. 648.60, that possesses, retains, or lands scallops
in or from Federal waters, must be issued an LAGC scallop permit and
must comply with the permit requirements described in paragraphs
(a)(2)(ii)(A), (B), or (C) of this section. To be issued an LAGC
scallop permit, a vessel owner must meet the qualification criteria
specified in paragraphs (a)(2)(ii)(D) or (F) of this section and must
comply with the application procedures specified in paragraph
(a)(2)(ii)(H) of this section.
(A) Individual fishing quota LAGC permit. To possess or land up to
400 lb (181.4 kg) of shucked meats, or 50 bu (17.6 hL) of in-shell
scallops per trip, or possess up to 100 bu (35.2 hL) of in-shell
scallops seaward of the VMS demarcation line, a vessel must have been
issued an individual fishing quota LAGC scallop permit (IFQ scallop
permit). Issuance of an initial IFQ scallop permit is contingent upon
the vessel owner submitting the required application and other
information that demonstrates that the vessel meets the eligibility
criteria specified in paragraph (a)(2)(ii)(D) of this section.
(B) Northern Gulf of Maine LAGC permit. To possess or land up to
200 lb (90.7 kg) of shucked or 25 bu (8.81 hL) in-shell scallops per
trip, or to possess up to 50 bu (17.6 hL) seaward of the VMS
demarcation line in the NGOM Scallop Management Area, a vessel must
have been issued a Northern Gulf of Maine LAGC scallop permit (NGOM
scallop permit). A vessel issued a NGOM scallop permit may not fish for
scallops outside of the NGOM Scallop Management Area as defined in
Sec. 648.62, and may not possess or land more than 200 lb (90.7 kg) of
shucked or 25 bu (8.81 hL) of in-shell scallops at any time, except the
vessel may possess up to 50 bu (17.6 hL) of in-shell scallops seaward
of the VMS demarcation line. Issuance of an initial NGOM scallop permit
is contingent upon the vessel owner submitting the required application
and other information that demonstrates that the vessel meets the
eligibility criteria specified in paragraph (a)(2)(ii)(F) of this
section.
(C) Incidental catch LAGC permit. To possess or land up to 40 lb
(18.1 kg) of shucked or 5 bu (1.76 hL) in-shell scallops per trip, or
possess up to 10 bu (3.52 hL) in-shell scallops per trip seaward of the
VMS demarcation line, but not more than these amounts per trip, a
vessel must have been issued an incidental catch general category
scallop permit (Incidental scallop permit). A vessel issued an
incidental catch general scallop permit may not possess or land more
than 40 lb (18.1 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops
at any time, except the vessel may possess up to 10 bu (3.52 hL) of in-
shell scallops seaward of the VMS demarcation line. Issuance of an
initial incidental catch category scallop permit is contingent upon the
vessel owner submitting the
[[Page 20118]]
required application and other information that demonstrates that the
vessel meets the eligibility criteria specified in paragraph
(a)(2)(ii)(G) of this section.
(D) Eligibility for an IFQ scallop permit. A vessel is eligible for
and may be issued an IFQ scallop permit if it meets both eligibility
criteria specified in paragraphs (a)(2)(ii)(D)(1) and (2) of this
section, or is replacing a vessel that meets both the eligibility
criteria specified in paragraphs (a)(2)(ii)(D)(1) and (2) of this
section. A vessel owner may appeal NMFS's determination that a vessel
does not meet the requirements specified in paragraphs (a)(2)(ii)(D)(1)
and (2) of this section by complying with the appeal process, as
specified in paragraph (a)(2)(ii)(O) of this section.
(1) Permit criterion. A vessel must have been issued a general
category scallop permit in at least one scallop fishing year, as
defined in Sec. 648.2, between March 1, 2000, and November 1, 2004.
(2) Landings criterion. A vessel must have landed at least 1,000 lb
(454 kg) of shucked scallops in any one year when the vessel also held
a general category scallop permit as specified in paragraph
(a)(2)(ii)(D)(1) of this section. To qualify, scallop landings in the
2004 fishing year must have occurred on or before November 1, 2004.
NMFS dealer data shall be used to make the initial determination of
vessel eligibility. If a dealer reported more than 400 lb (181.4 kg) of
scallops on a trip, only 400 lb (181.4 kg) will be credited toward the
landings criteria. For dealer reports that indicate that the landings
were bushels of in-shell scallops, a conversion of 8 lb (3.63 kg) of
scallop meats per bushel will be used to calculate meat-weight, up to
the maximum of 400 lb (181.4 kg) per trip. For dealer reports that
indicate that the landings were reported in pounds of in-shell scallops
are converted to meat-weight using the formula of 8.33 lb (3.78 kg) of
scallop meats for each pound of in-shell scallops, up to the maximum of
400 lb (181.4 kg) per trip, for qualification purposes.
(E) Contribution factor for determining a vessel's IFQ. An eligible
IFQ scallop vessel's best year of scallop landings during the
qualification period of March 1, 2000, through November 1, 2004, as
specified in Sec. 648.53(h)(2)(ii)(a), and the vessel's number of
years active, as specified in Sec. 648.53(h)(2)(ii)(B), shall be used
to calculate a vessel's contribution factor, as specified in Sec.
648.53(h)(2)(ii)(C). A vessel owner that has applied for an IFQ scallop
permit will be notified of the vessel's contribution factor at the time
of issuance of the IFQ scallop permit, consistent with confidentiality
restrictions of the Magnuson-Stevens Act specified at 16 U.S.C. 1881a.
A vessel owner may appeal NMFS's determination of the IFQ scallop
vessel's contribution factor by complying with the appeal process as
specified in paragraph (a)(2)(ii)(O) of this section.
(F) Eligibility for NGOM or Incidental scallop permit. A vessel
that is not eligible for, or for which the vessel's owner chooses not
to apply for, an IFQ scallop permit, may be issued either a NGOM
scallop permit or an Incidental scallop permit if the vessel was issued
a general category scallop permit as of November 1, 2004, or if the
vessel is replacing a vessel that was issued a general category scallop
permit as of November 1, 2004. A vessel owner may appeal NMFS's
determination that a vessel does not meet this criterion by complying
with the appeal process as specified in paragraph (a)(2)(ii)(O) of this
section. A vessel that qualifies for an IFQ scallop permit
automatically qualifies for an NGOM or Incidental scallop permit if the
vessel's owner chooses to be issued an NGOM or Incidental scallop
permit instead of the IFQ scallop permit.
(G) LAGC permit restrictions--(1) Change of permit category.--(i)
IFQ scallop permit. A vessel issued an IFQ scallop permit may not
change its general category scallop permit category at any time without
voluntarily relinquishing its IFQ scallop permit eligibility as
specified in paragraph (a)(2)(ii)(M) of this section. If the vessel
owner has elected to relinquish the vessel's IFQ permit and instead be
issued an NGOM or Incidental scallop permit, the IFQ permit shall be
permanently relinquished.
(ii) NGOM and Incidental scallop permit. A vessel may be issued
either an NGOM or Incidental scallop permit for each fishing year, and
a vessel owner may not change his/her LAGC scallop permit category
during the fishing year, except as specified in this paragraph,
(a)(2)(ii)(G)(1)(ii). The owners of a vessel issued an NOGM or
Incidental scallop permit must elect a permit category in the vessel's
permit application and shall have one opportunity each fishing year to
request a change in its permit category by submitting an application to
the Regional Administrator within 45 days of the effective date of the
vessel's permit. After that date, the vessel must remain in that permit
category for the duration of the fishing year.
(2) VMS requirement. A vessel issued a LAGC permit must have an
operational VMS installed. Issuance of an Atlantic sea scallop permit
requires the vessel owner to submit a copy of the vendor's installation
receipt or provide verification of vendor activation from a NMFS-
approved VMS vendor as described in Sec. 648.9.
(H) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of
this section. Applications for an LAGC permit described in paragraph
(a)(2)(ii) of this section must be postmarked no later than August 30,
2008. Applications for LAGC permits that are not postmarked on or
before August 30, 2008, may be denied and returned to the sender with a
letter explaining the denial. Such denials may not be appealed and
shall be the final decision of the Department of Commerce.
(I) Qualification restriction. (1) See paragraph (a)(1)(i)(C) of
this section for restrictions applicable to limited access scallop
permits.
(2) Notwithstanding paragraph (a)(1)(i)(L) of this section, scallop
landings history generated by separate owners of a single vessel at
different times during the qualification period for LAGC scallop
permits may be used to qualify more than one vessel, provided that each
owner applying for an LAGC scallop permit demonstrates that he/she
created distinct fishing histories, that such histories have been
retained, and if the vessel was sold, that each applicant's eligibility
and fishing history is distinct.
(3) Notwithstanding paragraph (a)(1)(i)(L) of this section, a
vessel owner applying for a LAGC permit who sold or transferred a
vessel with non-scallop limited access permits, as specified in
paragraph (a)(1)(i)(D) of this section, and retained only the general
category scallop history of such vessel as specified in paragraph
(a)(1)(i)(D) of this section, before April 14, 2008, may use the
general category scallop history to qualify a different vessel for the
initial IFQ scallop permit, regardless of whether the history from the
sold or transferred vessel was used to qualify another vessel for
another limited access permit.
(J) Change in ownership. See paragraph (a)(1)(i)(D) of this
section.
(K) Replacement vessels. A vessel owner may apply to replace a
qualified LAGC vessel with another vessel that he/she owns. There are
no size or horsepower restrictions on replacing general LAGC vessels,
unless the qualified vessel that will be replaced is subject to such
restriction because of other limited access permits issued pursuant to
Sec. 648.4. In order for a LAGC that also has other limited access
permits issued pursuant to Sec. 648.4 to be replaced by a vessel that
does not meet
[[Page 20119]]
the replacement and upgrade restrictions specified for those other
limited access permits, the other limited access permits must be
permanently relinquished, as specified in paragraph (a)(1)(i)(K) of
this section.
(L) Confirmation of Permit History. See paragraph (a)(1)(i)(J) of
this section.
(M) Abandonment or voluntary relinquishment of permits. See
paragraph (a)(1)(i)(K) of this section.
(N) Restriction on permit splitting. Except as provided in
paragraphs (a)(2)(ii)(I)(2) and (3) of this section, paragraph
(a)(1)(i)(L) of this section applies.
(O) Appeal of denial of permit--(1) Eligibility. Any applicant
eligible to apply for an LAGC scallop permit who is denied such permit
may appeal the denial to the Regional Administrator within 30 days of
the notice of denial. Any such appeal may only be based on the grounds
that the information used by the Regional Administrator was incorrect.
The appeal must be in writing, must state the specific grounds for the
appeal, and must include information to support the appeal.
(2) Contribution factor appeals. Any applicant eligible to apply
for a IFQ scallop permit who disputes NMFS's determination of the
vessel's contribution factor specified in paragraph (a)(2)(ii)(E) of
this section may appeal NMFS's determination to the Regional
Administrator within 30 days of the notification of the vessel's best
year and years active. Any such appeal may only be based on the grounds
that the information used by the Regional Administrator was incorrect.
The appeal must be in writing, must state the specific grounds for the
appeal, and must include information to support the appeal. A vessel
owner may appeal both the eligibility criteria and the contribution
factor and must submit the appeal for both at the same time. An appeal
of contribution factor determinations shall be reviewed concurrently
with an eligibility appeal, if applicable.
(3) Appeal review. The Regional Administrator shall appoint a
designee who shall make the initial decision on the appeal. The
appellant may request a review of the initial decision by the Regional
Administrator by so requesting in writing within 30 days of the notice
of the initial decision. If the appellant does not request a review of
the initial decision within 30 days, the initial decision is the final
administrative action of the Department of Commerce. Such review will
be conducted by a hearing officer appointed by the Regional
Administrator. The hearing officer shall make findings and a
recommendation to the Regional Administrator, which shall be advisory
only. Upon receiving the findings and the recommendation, the Regional
Administrator shall issue a final decision on the appeal. The Regional
Administrator's decision is the final administrative action of the
Department of Commerce.
(4) Status of vessels pending appeal. A vessel denied an LAGC
scallop permit may fish while under appeal, provided that the denial
has been appealed, the appeal is pending, and the vessel has on board a
letter from the Regional Administrator temporarily authorizing the
vessel to fish under the limited access general category permit. The
Regional Administrator shall issue such a letter that shall be
effective only during the pendency of any appeal. The temporary letter
of authorization must be carried on board the vessel and all
requirements of the permit category for which the appeal has been made
shall apply. If the appeal is finally denied, the Regional
Administrator shall send a notice of final denial to the vessel owner;
the temporary authorizing letter becomes invalid 5 days after receipt
of the notice of denial, but no later than 10 days from the date of the
letter of denial, regardless of the date of the owner's receipt of the
denial.
* * * * *
(e) * * *
(1) * * *
(iv) An applicant for a limited access multispecies combination
vessel or individual DAS permit, a limited access scallop permit
(except an occasional scallop permit), an LAGC scallop permit, or
electing to use a VMS, has failed to meet all of the VMS requirements
specified in Sec. Sec. 648.9 and 648.10; or
* * * * *
0
4. In Sec. 648.5, paragraph (a) is revised to read as follows:
Sec. 648.5 Operator permits.
(a) General. Any operator of a vessel fishing for or possessing:
Atlantic sea scallops, NE multispecies, spiny dogfish, monkfish,
Atlantic herring, Atlantic surfclam, ocean quahog, Atlantic mackerel,
squid, butterfish, scup, black sea bass, or Atlantic bluefish,
harvested in or from the EEZ; tilefish harvested in or from the EEZ
portion of the Tilefish Management Unit; skates harvested in or from
the EEZ portion of the Skate Management Unit; or Atlantic deep-sea red
crab harvested in or from the EEZ portion of the Red Crab Management
Unit, issued a permit, including carrier and processing permits, for
these species under this part, must have been issued under this
section, and carry on board, a valid operator permit. An operator's
permit issued pursuant to part 622 or part 697 of this chapter
satisfies the permitting requirement of this section. This requirement
does not apply to operators of recreational vessels.
* * * * *
0
5. In Sec. 648.9, paragraphs (c)(1)(iii) and (c)(2)(i)(D) are revised
to read as follows:
Sec. 648.9 VMS requirements.
* * * * *
(c) * * *
(1) * * *
(iii) At least twice per hour, 24 hrs. a day, throughout the year,
for vessels issued a scallop permit and subject to the requirements of
Sec. 648.4(a)(2)(ii)(B).
(2) * * *
(i) * * *
(D) The vessel has been issued an LAGC scallop permit, is not in
possession of any scallops onboard the vessel, is tied to a permanent
dock or mooring, the vessel operator has notified NMFS through VMS by
transmitting the appropriate VMS power-down code that the VMS will be
powered down, and the vessel is not required by other permit
requirements for other fisheries to transmit the vessel's location at
all times. Such a vessel must repower the VMS and submit a valid VMS
activity declaration prior to moving from the fixed dock or mooring.
VMS codes and instructions are available from the Regional
Administrator upon request.
* * * * *
0
6. In Sec. 648.10, paragraphs (b)(1)(i), and (c) introductory text are
revised; paragraphs (b)(1)(iii) and (iv) are removed and reserved; and
paragraphs (b)(2)(i), and (ii), and (b)(4)(i) through (iv) are added to
read as follows:
Sec. 648.10 DAS and VMS notification requirements.
* * * * *
(b) * * *
(1) * * *
(i) A scallop vessel issued a Full-time or Part-time limited access
scallop permit or an LAGC scallop permit;
* * * * *
(iii)-(iv) [Reserved]
* * * * *
(2) * * *
(i) A vessel subject to the VMS requirements of Sec. 648.9 and
this paragraph (b) that has crossed the VMS Demarcation Line specified
under paragraph (a) of this section is deemed to be fishing under the
DAS program, the general category scallop fishery, or other fishery
requiring the operation of
[[Page 20120]]
VMS as applicable, unless prior to the vessel leaving port, the
vessel's owner or authorized representative declares the vessel out of
the scallop, NE multispecies, or monkfish fishery, as applicable, for a
specific time period by notifying NMFS by transmitting the appropriate
VMS code through the VMS, or unless the vessel's owner or authorized
representative declares the vessel will be fishing in the Eastern U.S./
Canada Area as described in Sec. 648.85(a)(3)(ii) under the provisions
of that program.
(ii) Notification that the vessel is not fishing under the DAS
program, the general category scallop fishery, or other fishery
requiring the operation of VMS, must be received prior to the vessel
leaving port. A vessel may not change its status after the vessel
leaves port or before it returns to port on any fishing trip.
* * * * *
(4) * * *
(i) IFQ scallop vessels. An IFQ scallop vessel that has crossed the
VMS Demarcation Line specified under paragraph (a) of this section is
deemed to be fishing under the IFQ program, unless prior to the vessel
leaving port, the vessel's owner or authorized representative declares
the vessel out of the scallop fishery (i.e., the vessel will not
possess, retain, or land scallops) for a specific time period by
notifying the Regional Administrator through the VMS. An IFQ scallop
vessel that is fishing north of 42[deg]20' N. lat. is deemed to be
fishing under the NGOM scallop fishery unless prior to the vessel
leaving port, the vessel's owner or authorized representative declares
the vessel out of the scallop fishery as specified in paragraphs
(b)(2)(i) and (ii) of this section, and the vessel does not possess,
retain, or land scallops.
(ii) NGOM scallop fishery. An NGOM scallop vessel is deemed to be
fishing under the NGOM scallop fishery unless prior to the vessel
leaving port, the vessel's owner or authorized representative declares
the vessel out of all fisheries as specified in paragraphs (b)(2)(i)
and (ii) of this section, and the vessel does not possess, retain, or
land scallops.
(iii) Incidental scallop fishery. An Incidental scallop vessel that
has crossed the demarcation line on any declared fishing trip for any
species is deemed to be fishing under the Incidental scallop fishery
unless prior to the vessel leaving port, the vessel's owner or
authorized representative declares the vessel out of all fisheries as
specified in paragraphs (b)(2)(i) and (ii) of this section, and the
vessel does not possess, retain, or land scallops.
(iv) Catch reports. All scallop vessels fishing in the Sea Scallop
Area Access Program as described in Sec. 648.60 are required to submit
a daily report through VMS of scallops kept and yellowtail flounder
caught (including discarded yellowtail flounder) on each Access Area
trip. The VMS catch reporting requirements are specified in Sec.
648.60(a)(9). A vessel issued an IFQ or NGOM scallop permit must report
through VMS the amount of scallops kept on each trip declared as a
scallop trip or on trips that are not declared through VMS as a scallop
trip, but on which scallops are caught incidentally. VMS catch reports
by IFQ and NGOM scallop vessels must be sent prior to crossing the VMS
demarcation line on the way into port at the end of the trip and must
include the amount of scallop meats to be landed, the estimated time of
arrival in port, the port at which the scallops will be landed, and the
vessel trip report serial number recorded from that trip's vessel trip
report.
* * * * *
(c) Call-in notification. The owner of a vessel issued a limited
access monkfish or red crab permit who is participating in a DAS
program and who is not required to provide notification using a VMS,
and a scallop vessel qualifying for a DAS allocation under the
occasional category that has not elected to fish under the VMS
notification requirements of paragraph (b) of this section and is not
participating in the Sea Scallop Area Access program as specified in
Sec. 648.60, and any vessel that may be required by the Regional
Administrator to use the call-in program under paragraph (d) of this
section, are subject to the following requirements:
* * * * *
0
7. In Sec. 648.14, paragraphs (a)(56), (a)(57), (a)(61), (f), (h)(1),
(h)(6), (h)(9), (h)(20), (h)(27), (i), and (s) are revised, and
paragraphs (a)(180) and (h)(28) are added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(56) Fish for, possess, or land, scallops without the vessel having
been issued and carrying onboard a valid scallop permit in accordance
with Sec. 648.4(a)(2), unless the scallops were harvested by a vessel
that has not been issued a Federal scallop permit and fishes for
scallops exclusively in state waters;
(57) Fish for or land per trip, or possess at any time prior to a
transfer to another person for a commercial purpose, other than solely
for transport:
(i) In excess of 40 lb (18.1 kg) shucked scallops at any time, 5 bu
(1.76 hl) in-shell scallops shoreward of the VMS Demarcation Line, or
10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation
Line, unless:
(A) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters;
(B) The scallops were harvested by a vessel that has been issued
and carries on board an IFQ scallop permit issued pursuant to Sec.
648.4(a)(2)(ii)(A) and is properly declared into the IFQ scallop
fishery;
(C) The scallops were harvested by a vessel that has been issued
and carries on board an NGOM scallop permit issued pursuant to Sec.
648.4(a)(2)(ii)(B), and is properly declared into the NGOM scallop
management area, and the NGOM TAC specified in Sec. 648.62 has not
been harvested; or
(D) The scallops were harvested by a vessel that has been issued
and carries on board an Incidental scallop permit allowing up to 40 lb
(18.1 kg) of shucked or 5 bu (1.76 hL) of in-shell scallops, is
carrying an at-sea observer, and is authorized by the Regional
Administrator to have an increased possession limit to compensate for
the cost of carrying the observer.
(ii) In excess of 200 lb (90.7 kg) shucked scallops at any time, 25
bu (8.8 hl) in-shell scallops inside the VMS Demarcation Line, or 50 bu
(17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line,
unless:
(A) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters;
(B) The scallops were harvested by a vessel that has been issued
and carries on board a limited access scallop permit and is properly
declared into the scallop DAS or Area Access program;
(C) The scallops were harvested by a vessel that has been issued
and carries on board an IFQ scallop permit issued pursuant to Sec.
648.4(a)(2)(ii)(A), is fishing outside of the NGOM scallop management
area, and is properly declared into the general category scallop
fishery;
(D) The scallops were harvested by a vessel that has been issued
and carries on board a scallop permit and the vessel is fishing in
accordance with the provisions of the state waters exemption program
specified in Sec. 648.54; or
(E) The scallops were harvested by a vessel that has been issued
and carries on board an NGOM scallop permit allowing up to 200 lb (90.7
kg) of shucked or 25 bu (8.8 hL) of in-shell scallops, is carrying an
at-sea observer,
[[Page 20121]]
and is authorized by the Regional Administrator to have an increased
possession limit to compensate for the cost of carrying the observer.
(iii) In excess of 400 lb (181.4 kg) shucked scallops at any time,
50 bu (17.6 hl) in-shell scallops shoreward of the VMS Demarcation
Line, or 100 bu (35.2 hL) in-shell scallops seaward of the VMS
Demarcation Line, unless:
(A) The scallops were harvested by a vessel that has not been
issued a scallop permit and fishes for scallops exclusively in state
waters.
(B) The scallops were harvested by a vessel that has been issued
and carries on board a limited access scallop permit issued pursuant to
Sec. 648.4(a)(2)(i) and is properly declared into the scallop DAS or
Area Access program;
(C) The scallops were harvested by a vessel that has been issued
and carries on board a scallop permit and the vessel is fishing in
accordance with the provisions of the state waters exemption program
specified in Sec. 648.54; or
(D) The scallops were harvested by a vessel that has been issued
and carries on board an IFQ scallop permit, is carrying an at-sea
observer, and is authorized by the Regional Administrator to have an
increased possession limit to compensate for the cost of carrying the
observer.
* * * * *
(61) Sell, barter or trade, or otherwise transfer, or attempt to
sell, barter or trade, or otherwise transfer, for a commercial purpose,
scallops, unless the vessel has been issued a valid scallop permit
pursuant to Sec. 648.4(a)(2), or the scallops were harvested by a
vessel that has not been issued a scallop permit and fishes for
scallops exclusively in state waters.
* * * * *
(180) Fail to comply with the requirements and restrictions for
general category scallop sectors specified in Sec. 648.63.
* * * * *
(f) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraph (a) of this section, it is
unlawful for any person owning or operating a vessel issued a scallop
permit under Sec. 648.4(a)(2) to land, or possess at or after landing,
in-shell scallops smaller than the minimum shell height specified in
Sec. 648.50(a).
* * * * *
(h) * * *
(1) Fish for, possess, or land scallops after using up the vessel's
annual DAS allocation and Access Area trip allocations, or when not
properly declared into the DAS or Area Access program pursuant to Sec.
648.10, unless the vessel has been issued an LAGC scallop permit
pursuant to Sec. 648.4(a)(2)(ii), has properly declared into a general
category scallop fishery, and does not exceed the allowed possession
limit for the LAGC scallop permit issued to the vessel as specified in
Sec. 648.52, or unless exempted from DAS allocations as provided in
Sec. 648.54.
* * * * *
(6) Have an ownership interest in more than 5 percent of the total
number of vessels issued limited access scallop permits and
confirmations of permit history, except as provided in Sec.
648.4(a)(2)(i)(M).
* * * * *
(9) Possess more than 40 lb (18.1 kg) of shucked, or 5 bu (1.76 hL)
of in-shell scallops, or participate in the scallop DAS or Area Access
programs, while in the possession of trawl nets that have a maximum
sweep exceeding 144 ft (43.9 m), as measured by the total length of the
footrope that is directly attached to the webbing of the net, except as
specified in Sec. 648.51(a)(1), unless the vessel is fishing under the
Northeast multispecies or monkfish DAS program.
* * * * *
(20) Fail to comply with any requirement for participating in the
State Waters Exemption Program specified in Sec. 648.54.
* * * * *
(27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as
specified in Sec. 648.52(f), outside the boundaries of the Elephant
Trunk Access Area specified in Sec. 648.59(e) by a vessel that is
properly declared into the Elephant Trunk Access Area under the Area
Access Program as specified in Sec. 648.60.
(28) Fish for or land per trip, or possess at any time, scallops in
the NGOM scallop management area after notification in the Federal
Register that the NGOM scallop management area TAC has been harvested,
as specified in Sec. 648.62, unless the vessel possesses or lands
scallops that were harvested south of 42[deg]20' N. lat., the vessel is
transiting the NGOM scallop management area, and the vessel's fishing
gear is properly stowed and unavailable for immediate use in accordance
with Sec. 648.23.
(i) LAGC scallop vessels. (1) In addition to the general
prohibitions specified in Sec. 600.725 of this chapter and in
paragraphs (a), (f), and (g) of this section, it is unlawful for any
person owning or operating a vessel issued an LAGC scallop permit to do
any of the following:
(i) Fail to comply with the LAGC scallop permit restrictions as
specified in Sec. 648.4(a)(2)(ii)(G) through (O);
(ii) Land scallops on more than one trip per calendar day;
(iii) Possess in-shell scallops while in possession of the maximum
allowed amount of shucked scallops specified for each LAGC scallop
permit category in Sec. 648.62;
(iv) Fish for, possess, or land scallops on a vessel that is
declared out of scallop fishing unless the vessel has been issued an
Incidental scallop permit;
(v) Possess or use trawl gear that does not comply with any of the
provisions or specifications in Sec. 648.51(a), unless the vessel is
fishing under the Northeast multispecies or monkfish DAS program;
(vi) Possess or use dredge gear that does not comply with any of
the provisions or specifications in Sec. 648.51(b);
(vii) Refuse, or fail, to carry an observer after being requested
to carry an observer by the Regional Administrator or designee;
(viii) Fail to provide an observer with required food,
accommodations, access, and assistance, as specified in Sec. 648.11;
(ix) Fail to comply with the notification requirements specified in
Sec. 648.11(g)(2) or refuse or fail to carry an observer after being
requested to carry an observer by the Regional Administrator or
Regional Administrator's designee;
(x) Fail to comply with any of the VMS requirements specified in
Sec. Sec. 648.10 and 648.60;
(xi) Fail to comply with any requirement for declaring in or out of
the general category scallop fishery or other notification requirements
specified in Sec. 648.10(b);
(xii) Fail to comply with any of the requirements specified in
Sec. 648.60;
(xiii) Declare into or leave port for an area specified in Sec.
648.59(b) through (d) after the effective date of the notification
published in the Federal Register stating that the general category
scallop TAC has been harvested as specified in Sec. 648.60;
(xiv) Declare into, or leave port for, an area specified in Sec.
648.59(b) through (d) after the effective date of the notification
published in the Federal Register stating that the number of general
category trips have been taken as specified in Sec. 648.60;
(xv) Declare into, or leave port for, an area specified in Sec.
648.59(b) through (d) after the effective date of the notification
published in the Federal Register stating that the yellowtail flounder
TAC has been harvested as specified in Sec. 648.85(c);
(xvi) Declare into, or leave port for, the NGOM scallop management
area specified in Sec. 648.62 after the effective
[[Page 20122]]
date of the notification published in the Federal Register stating that
the general category scallop TAC has been harvested as specified in
Sec. 648.62;
(xvii) Fish for, possess, or land scallops in or from the NGOM
scallop management area after the effective date of the notification
published in the Federal Register that the NGOM scallop management area
TAC has been harvested, as specified in Sec. 648.62, unless the vessel
possesses or lands scallops that were harvested south of 42[deg] 20' N.
Lat., the vessel is transiting the NGOM scallop management area, and
the vessel's fishing gear is properly stowed and unavailable for
immediate use in accordance with Sec. 648.23;
(xviii) Fail to comply with any of the requirements and
restrictions for general category sectors and harvesting cooperatives
specified in Sec. 648.63; or
(xix) Fish for, land, or possess scallops at any time after 10 days
from being notified that his or her appeal for an LAGC scallop permit
has been denied and that the denial is the final decision of the
Department of Commerce.
(2) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraphs (a), (f), and (g) of this
section, it is unlawful for any person owning or operating a vessel
issued an IFQ scallop permit to do any of the following:
(i) Fish for or land per trip, or possess at any time, in excess of
400 lb (181.4 kg) of shucked, or 50 bu (17.6 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);
(ii) Fish for or land per trip, or possess at any time, in excess
of 200 lb (90.7 kg) of shucked or 25 bu (8.8 hl) of in-shell scallops
in the NGOM scallop management area, unless the vessel is seaward of
the VMS Demarcation Line and in possession of no more than 50 bu (17.6
hL) in-shell scallops, when not declared into the NGOM scallop
management area, or is transiting the NGOM scallop management area with
gear properly stowed and unavailable for immediate use in accordance
with Sec. 648.23;
(iii) Possess more than 100 bu (35.2 hL) of in-shell scallops
seaward of the VMS demarcation line, or possess, or land per trip, more
than 50 bu (17.6 hL) of in-shell scallops shoreward of the VMS
demarcation line, unless exempted from DAS allocations as provided in
Sec. 648.54;
(iv) 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
properly declared into the Elephant Trunk Access Area under the Area
Access Program as specified in Sec. 648.60;
(v) Fish for, possess, or land scallops after the effective date of
the notification in the Federal Register that the quarterly TAC
specified in Sec. 648.53(a)(8) has been harvested;
(vi) Fish for, possess, or land scallops in excess of a vessel's
IFQ;
(vii) Have an ownership interest in vessels that collectively is
more than 5 percent of the total IFQ scallop TAC specified in
accordance with Sec. 648.53(a)(5)(ii) and (iii), except as provided in
Sec. 648.4(h)(3)(ii);
(viii) Have an IFQ allocation on an IFQ scallop vessel of more than
2 percent of the total IFQ scallop TAC specified in accordance with
Sec. 648.53(a)(5)(ii) and (iii), except as provided in Sec.
648.4(h)(3)(i);
(ix) Apply for an IFQ transfer that will result in the transferee
having an aggregate ownership interest in more than 5 percent of the
total IFQ scallop TAC, except as provided in Sec. 648.53(h)(3)(ii).
(x) Apply for an IFQ transfer that will result in the receiving
vessel having an IFQ allocation in excess of 2 percent of the total IFQ
scallop TAC, except as provided in Sec. 648.53(h)(3)(i);
(xi) Fish for, possess, or land transferred IFQ prior to approval
of the transfer by the Regional Administrator as specified in Sec.
648.53(h)(5)(iv)(B);
(xii) Provide false information in relation to or on an application
for an IFQ transfer required under Sec. 648.53(h)(5)(iv);
(xiii) Request to transfer IFQ that has already been temporarily
transferred from an IFQ scallop vessel in the same fishing year;
(xiv) Transfer scallop IFQ to another IFQ scallop vessel after the
transferring vessel has landed scallops;
(xv) Transfer a portion of a vessel's scallop IFQ; or
(xvi) Transfer scallop IFQ to, or receive scallop IFQ on, a vessel
that has not been issued a valid IFQ scallop permit.
(3) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraphs (a), (f), and (g) of this
section, it is unlawful for any person owning or operating a vessel
issued an NGOM scallop permit to do any of the following:
(i) Declare into or leave port for a scallop trip, or fish for or
possess scallops outside of the NGOM Scallop Management Area as defined
in Sec. 648.62;
(ii) Fish for or land per trip, or possess at any time, in excess
of 200 lb (90.7 kg) of shucked or 25 bu (8.81 hl) of in-shell scallops
in or from the NGOM scallop management area, except when seaward of the
VMS Demarcation Line and in possession of no more than 50 bu (17.6 hL)
in-shell scallops; or
(iii) Fish for, possess, or land scallops after the effective date
of notification in the Federal Register that the NGOM scallop
management area TAC has been harvested.
(4) In addition to the general prohibitions specified in Sec.
600.725 of this chapter and in paragraphs (a), (f), and (g) of this
section, it is unlawful for any person owning or operating a vessel
issued an Incidental scallop permit to fish for, possess, or retain,
more than 40 lb (18.1 kg) of shucked scallops, or 5 bu (1.76 hL) of in-
shell scallops, except the vessel may possess up to 10 bu (3.52 hL) of
in-shell scallops while seaward of the VMS Demarcation Line.
* * * * *
(s) Any person fishing for, possessing, or landing scallops at or
prior to the time when those scallops are received or possessed by a
dealer, is subject to all of the scallop prohibitions specified in this
section, unless the scallops were harvested by a vessel without a
scallop permit that fishes for scallops exclusively in state waters.
* * * * *
0
8. In Sec. 648.51, paragraphs (a)(1) and (a)(2)(i) are revised to read
as follows:
Sec. 648.51 Gear and crew restrictions.
(a) * * *
(1) Maximum sweep. The trawl sweep of nets shall not exceed 144 ft
(43.9 m), as measured by the total length of the footrope that is
directly attached to the webbing, unless the net is stowed and not
available for immediate use, as specified in Sec. 648.23, or unless
the vessel is fishing under the Northeast multispecies or monkfish DAS
programs.
(2) * * *
(i) Minimum mesh size. Subject to applicable minimum mesh size
restrictions for other fisheries as specified under this part, the mesh
size for any scallop trawl net in all areas shall not be smaller than
5.5 inches (13.97 cm).
* * * * *
0
9. Section 648.52 is revised to read as follows:
Sec. 648.52 Possession and landing limits.
(a) A vessel issued an IFQ scallop permit that is declared into the
IFQ
[[Page 20123]]
scallop fishery as specified in Sec. 648.10(b), unless exempted under
the state waters exemption program described under Sec. 648.54, may
not possess or land, per trip, more than 400 lb (181.4 kg) of shucked
scallops, or possess more than 50 bu (17.6 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.
(b) A vessel issued an NGOM scallop permit, or an IFQ scallop
permit that is declared into the NGOM scallop fishery 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, or 25 bu (8.81 hL) of in-shell
scallops. 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) A vessel issued an Incidental scallop permit, or an IFQ or NGOM
scallop permit that is not declared into the IFQ or NGOM scallop
fishery as required under Sec. 648.10(b)(4), 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, or 5
bu (1.76 hL) of in-shell scallops. 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) Owners or operators of vessels with a limited access scallop
permit that have properly declared into the Sea Scallop Area Access
Program as described in Sec. 648.60 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. 648.60(a)(5).
(e) Owners or operators of vessels issued limited access permits
fishing in or transiting the area south of 42[deg]20'N. lat. at any
time during a trip 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) A vessel that is declared into the Elephant Trunk Access Area
Sea Scallop Area Access Program as described in Sec. 648.60, may not
possess more than 50 bu (17.6 hL) of in-shell scallops outside of the
Elephant Trunk Access Area described in Sec. 648.59(e).
0
10. Section 648.53 is revised to read as follows:
Sec. 648.53 Total allowable catch, DAS allocations, and Individual
Fishing Quotas.
(a) Target total allowable catch (TAC) for scallop fishery. The
annual target total TAC for the scallop fishery shall be established
through the framework adjustment process specified in Sec. 648.55. The
annual target TAC shall include the TAC for all scallop vessels fishing
in open areas and Sea Scallop Access Areas, but shall exclude the TAC
established for the Northern Gulf of Maine Scallop Management Area as
specified in Sec. 648.62. After deducting the total estimated
incidental catch of scallops, as specified at Sec. 648.53(a)(9), by
vessels issued incidental catch general category scallop permits, and
limited access and limited access general category scallop vessels not
declared into the scallop fishery, the annual target TAC for open and
Sea Scallop Access Areas shall each be divided between limited access
vessels, limited access vessels that are fishing under a limited access
general category permit, and limited access general category vessels as
specified in paragraphs (a)(3) through (a)(6) of this section. In the
event that a framework adjustment does not implement an annual TAC for
a fishing or part of a fishing year, the preceding fishing year's
scallop regulations shall apply.
(1) 2008 fishing year target TAC for scallop fishery. To be
determined.
(2) 2009 fishing year target TAC for scallop fishery. To be
determined.
(3) Access area TAC. The TAC for each access area specified in
Sec. 648.59 shall be determined through the framework adjustment
process described in Sec. 648.55 and shall be specified in Sec.
648.59 for each access area. The TAC set-asides for observer coverage
and research shall be deducted from the TAC in each Access Area prior
to assigning the target TAC and trip allocations for limited access
scallop vessels, and prior to allocating TAC to limited access general
category vessels. The percentage of the TAC for each Access Area
allocated to limited access vessels, limited access general category
vessels, and limited access vessels fishing under limited access
general category permits shall be specified in accordance with Sec.
648.60 through the framework adjustment process specified in Sec.
648.55.
(4) Open area target TAC for limited access vessels.--(i) 2008
fishing year. For the 2008 fishing year, the target TAC for limited
access vessels fishing under the scallop DAS program specified in this
section is equal to 90 percent of the target TAC specified in
accordance with this paragraph (a), minus the TAC for all access areas
specified in accordance with paragraph (a)(3) of this section.
(ii) 2009 fishing year. Beginning March 1, 2009, unless the
implementation of the IFQ program is delayed beyond March 1, 2009, as
specified in paragraph (a)(7) of this section, the target TAC for
limited access vessels fishing under the scallop DAS program specified
in this section is equal to 94.5 percent of the target TAC specified in
accordance with this paragraph (a), minus the TAC for all access areas
specified in accordance with paragraph (a)(3) of this section. The
target TAC for limited access vessels fishing under the DAS program
shall be used to determine the DAS allocation for full-time, part-time,
and occasional scallop vessels will receive after deducting the DAS
set-asides for observer coverage and research.
(5) Open area TAC for IFQ scallop vessels--(i) 2008 fishing year.
For the 2008 fishing year, IFQ scallop vessels, and limited access
scallop vessels that are fishing under an IFQ scallop permit outside of
the scallop DAS and Area Access programs, shall be allocated 10 percent
of the annual target TAC specified in accordance with paragraph (a) of
this section minus the TAC for all access areas specified in accordance
with paragraph (a)(3) of this section.
(ii) 2009 fishing year and beyond for IFQ scallop vessels without a
limited access scallop permit. For the 2009 fishing year, unless the
IFQ program is delayed beyond March 1, 2009, as specified in paragraph
(a)(7) of this section, the TAC for IFQ scallop vessels without a
limited access scallop permit shall be equal to 5 percent of the target
TAC specified in accordance with this paragraph (a), minus the TAC for
all access areas specified in accordance with paragraph (a)(3) of this
section. If the IFQ program implementation is delayed beyond March 1,
2009, the allocation of TAC to IFQ scallop vessels is specified in
paragraph (a)(7) of this section.
(iii) 2009 fishing year and beyond for IFQ scallop vessels with a
limited access scallop permit. For the 2009 fishing year, unless the
IFQ program is delayed beyond March 1, 2009, as specified in paragraph
(a)(7) of this section, limited access scallop vessels that are fishing
under an IFQ scallop permit outside of the scallop DAS and Area Access
programs shall be allocated 0.5 percent of the annual target TAC
specified in accordance with this paragraph (a)
[[Page 20124]]
minus the TAC for all access areas specified in accordance with
paragraph (a)(3) of this section. If the IFQ program implementation is
delayed beyond March 1, 2009, the allocation of TAC to IFQ scallop
vessels is specified in paragraph (a)(7) of this section.
(6) Northern Gulf of Maine Scallop Fishery. The TAC for the
Northern Gulf of Maine Scallop Fishery shall be specified in accordance
with Sec. 648.62, through the framework adjustment process specified
in Sec. 648.55. The Northern Gulf of Maine Scallop Fishery TAC is
specified in Sec. 648.62(b)(1).
(7) Delay of the IFQ program. If the IFQ program implementation is
delayed beyond March 1, 2009, IFQ scallop vessels, including vessels
fishing under temporary letter of authorization while their appeal for
an IFQ scallop permit is pending, and limited access scallop vessels
that are fishing under an IFQ scallop permit outside of the scallop DAS
and Area Access programs, shall be allocated 10 percent of the annual
target TAC specified in accordance with paragraph (a) of this section
minus the TAC for all access areas specified in accordance with
paragraph (a)(3) of this section until the IFQ program is implemented.
The distribution of the TAC as specified in paragraph (a)(8) of this
section would remain in effect. If the Regional Administrator
determines that the IFQ program cannot be implemented by March 1, 2009,
NMFS shall inform all scallop vessel owners that the IFQ program shall
not take effect.
(8) Distribution of transition period TAC--(i) Allocation. For the
2008 fishing year, and 2009 fishing year, and beyond, if the IFQ
program is not implemented as specified in paragraph (a)(7) of this
section, the TAC for IFQ scallop vessels shall be allocated as
specified in paragraphs (a)(5) of this section into quarterly periods.
The percentage allocations for each period allocated to the IFQ scallop
vessels, including limited access vessels fishing under an IFQ scallop
permit and vessels under appeal for an IFQ scallop permit pursuant to
Sec. 648.4(a)(2)(ii) shall be specified in the framework adjustment
process in Sec. 648.55 and are specified in the following table:
----------------------------------------------------------------------------------------------------------------
Quarter Percent TAC
----------------------------------------------------------------------------------------------------------------
I. March-May.................................... 35 To be determined.
II. June-August................................. 40 To be determined.
III. September-November......................... 15 To be determined.
IV. December-February........................... 10 To be determined.
----------------------------------------------------------------------------------------------------------------
(ii) Deductions of landings. All landings by IFQ scallop vessels
and limited access vessels fishing under an IFQ scallop permit shall be
deducted from the TAC allocations specified in the table in paragraph
(a)(8)(i) of this section.
(iii) Closure of fishery for the quarter. No vessel issued an IFQ
scallop permit, or vessel issued a temporary letter of authorization to
fish for scallops while their appeal for an IFQ scallop permit is
pending pursuant to Sec. 648.4(a)(2)(ii), may possess, retain, or land
scallops once the Regional Administrator has provided notification in
the Federal Register that the scallop total allowable catch for the
specified quarter, in accordance with this paragraph (a)(8) has been
reached.
(iv) Overages and underages of quarterly TACs. Any overage or
underage of catch during quarter 1 as specified in this paragraph
(a)(8) shall be applied to the third quarter TAC as specified in this
paragraph (a)(8). Any overage or underage of catch during quarters 2
and 3, as specified in this paragraph (a)(8), shall be applied to the
fourth quarter TAC as specified in this paragraph (a)(8).
(9) Scallop incidental catch target TAC. To be determined.
(b) DAS allocations. (1) Total DAS to be used in all areas other
than those specified in Sec. 648.59, shall be specified through the
framework adjustment process as specified in Sec. 648.55, using the
target total allowable catch for open areas specified in paragraph (a)
of this section, and estimated catch per unit effort.
(2) Prior to setting the DAS allocations specified in paragraph
(b)(4) of this section, 1 percent of total available DAS will be set
aside to help defray the cost of observers, as specified in paragraph
(h)(1) of this section. Two percent of total available DAS will be set
aside to pay for scallop related research, as outlined in paragraph
(h)(2) of this section.
(3) Assignment to DAS categories. Subject to the vessel permit
application requirements specified in Sec. 648.4, for each fishing
year, each vessel issued a limited access scallop permit shall be
assigned to the DAS category (full-time, part-time, or occasional) it
was assigned to in the preceding year, except as provided under the
small dredge program specified in Sec. 648.51(e).
(4) Each vessel qualifying for one of the three DAS categories
specified in the table in this paragraph (b)(2) (Full-time, Part-time,
or Occasional) shall be allocated the maximum number of DAS for each
fishing year it may participate in the open area limited access scallop
fishery, according to its category. A vessel whose owner/operator has
properly declared out of the scallop DAS fishery, pursuant to the
provisions of Sec. 648.10, including vessels that have used up their
maximum allocated DAS, may leave port without being assessed a DAS, as
long as it has made appropriate VMS declaration as specified in Sec.
648.10(b)(4), possesses, fishes for, or retains the amount of scallops
allowed by its general category permit, does not possess, fish for, or
retain any scallops if the vessel does not have a general category
scallop permit, and complies with all other requirements of this part.
The annual open area DAS allocations for each category of vessel for
the fishing years indicated, after deducting DAS for observer and
research DAS set-asides, are as follows:
------------------------------------------------------------------------
DAS category 2007 2008
------------------------------------------------------------------------
Full-time................... 51 To be determined.
Part-time................... 20 To be determined.
Occasional.................. 4 To be determined.
------------------------------------------------------------------------
[[Page 20125]]
(5) Additional open area DAS. If a TAC for yellowtail flounder
specified in Sec. 648.85(c) is harvested for an Access Area specified
in Sec. 648.59(b) through (d), a scallop vessel with remaining trips
in the affected Access Area shall be allocated additional open area DAS
according to the calculations specified in paragraphs (b)(5)(i) through
(iii) of this section.
(i) For each remaining complete trip in Closed Area I, a vessel may
fish an additional 5.5 DAS in open areas during the same fishing year.
A complete trip is deemed to be a trip that is not subject to a reduced
possession limit under the broken trip provision in Sec. 648.60(c).
For example, a full-time scallop vessel with two complete trips
remaining in Closed Area I would be allocated 11 additional open area
DAS (2 times 5.5 = 11 DAS) if the TAC for yellowtail flounder allocated
to the scallop fishery for Closed Area I is harvested in that area.
Vessels allocated compensation trips as specified in Sec. 648.60(c)
that cannot be made because the yellowtail TAC in Closed Area I
allocated to the scallop fishery is harvested shall be allocated 0.458
additional DAS for each unused DAS in Closed Area I. Unused DAS shall
be calculated by dividing the compensation trip possession limit by
1,500 lb (680 kg), (the catch rate per DAS). For example, a vessel with
a 10,000-lb (4,536-kg) compensation trip remaining in Closed Area I
would be allocated 3.05 additional open area DAS in that same fishing
year (0.458 times 10,000 lb (4,536 kg)/1,500 lb (680 kg) per day).
(ii) For each remaining complete trip in Closed Area II, a vessel
may fish an additional 5.4 DAS in open areas during the same fishing
year. A complete trip is deemed to be a trip that is not subject to a
reduced possession limit under the broken trip provision in Sec.
648.60(c). For example, a full-time scallop vessel with two complete
trips remaining in Closed Area II would be allocated 10.8 additional
open area DAS (2 times 5.4 = 10.8 DAS) if the TAC for yellowtail
flounder allocated to the scallop fishery in Closed Area II is
harvested in that area. Vessels allocated compensation trips as
specified in Sec. 648.60(c) that cannot be made because the yellowtail
TAC in Closed Area II allocated to the scallop fishery is harvested
shall be allocated 0.450 additional DAS for each unused DAS in Closed
Area II. Unused DAS shall be calculated by dividing the compensation
trip possession limit by 1,500 lb (680 kg) (the catch rate per DAS).
For example, a vessel with a 10,000-lb (4,536-kg) compensation trip
remaining in Closed Area II would be allocated 3 additional open area
DAS in that same fishing year (0.450 times 10,000 lb (4,536 kg)/1,500
lb (680 kg) per day).
(iii) For each remaining complete trip in the Nantucket Lightship
Access Area, a vessel may fish an additional 4.9 DAS in open areas
during the same fishing year. A complete trip is deemed to be a trip
that is not subject to a reduced possession limit under the broken trip
provision in Sec. 648.60(c). For example, a full-time scallop vessel
with two complete trips remaining in Nantucket Lightship Access Area
would be allocated 9.8 additional open area DAS (2 times 4.9 = 9.8 DAS)
if the TAC for yellowtail flounder allocated to the scallop fishery in
the Nantucket Lightship Access Area is harvested in that area. Vessels
allocated compensation trips as specified in Sec. 648.60(c) that
cannot be made because the yellowtail TAC in Nantucket Lightship Access
Area allocated to the scallop fishery is harvested shall be allocated
0.408 additional DAS for each unused DAS in the Nantucket Lightship
Access Area. Unused DAS shall be calculated by dividing the
compensation trip possession limit by 1,500 lb (680 kg) (the catch rate
per DAS). For example, a vessel with a 10,000-lb (4,536-kg)
compensation trip remaining in Nantucket Lightship Access Area would be
allocated 2.7 additional open area DAS in that same fishing year (0.408
times 10,000 lb (4,536 kg)/1,500 lb (680 kg) per day).
(6) DAS allocations and other management measures are specified for
each scallop fishing year, which begins on March 1 and ends on February
28 (or February 29), unless otherwise noted. For example, the 2006
fishing year refers to the period March 1, 2006, through February 28,
2007.
(c) Adjustments in annual DAS allocations. Annual DAS allocations
shall be established for 2 fishing years through biennial framework
adjustments as specified in Sec. 648.55. If a biennial framework
action is not undertaken by the Council and implemented by NMFS, the
DAS allocations and Access Area trip allocations from the most recent
fishing year shall remain in effect for the next fishing year. The
Council may also recommend adjustments to DAS allocations through a
framework action at any time.
(d) End-of-year carry-over for open area DAS. With the exception of
vessels that held a Confirmation of Permit History as described in
Sec. 648.4(a)(1)(i)(J) for the entire fishing year preceding the
carry-over year, limited access vessels that have unused Open Area DAS
on the last day of February of any year may carry over a maximum of 10
DAS, not to exceed the total Open Area DAS allocation by permit
category, into the next year. DAS carried over into the next fishing
year may only be used in Open Areas. DAS sanctioned vessels will be
credited with unused DAS based on their unused DAS allocation, minus
total DAS sanctioned.
(e) Accrual of DAS. All DAS fished shall be charged to the nearest
minute. A vessel carrying an observer and authorized to be charged
fewer DAS in Open Areas based on the total available DAS set aside
under paragraph (g)(1) of this section shall be charged at a reduced
rate as specified in paragraph (g)(1) of this section.
(f) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea assisting in a USCG search and
rescue operation or assisting the USCG in towing a disabled vessel, and
that can document the occurrence through the USCG, will not accrue DAS
for the time documented.
(g) DAS set-asides--(1) DAS set-aside for observer coverage. As
specified in paragraph (b)(2) of this section, to help defray the cost
of carrying an observer, 1 percent of the total DAS shall be set aside
from the total DAS available for allocation, to be used by vessels that
are assigned to take an at-sea observer on a trip other than an Area
Access Program trip. The DAS set-aside for observer coverage for the
2007 fishing year is 165 DAS. Vessels carrying an observer shall be
compensated with reduced DAS accrual rates for each trip on which the
vessel carries an observer. For each DAS that a vessel fishes for
scallops with an observer on board, the DAS shall be charged at a
reduced rate based on an adjustment factor determined by the Regional
Administrator on an annual basis, dependent on the cost of observers,
catch rates, and amount of available DAS set-aside. The Regional
Administrator shall notify vessel owners of the cost of observers and
the DAS adjustment factor through a permit holder letter issued prior
to the start of each fishing year. The number of DAS that are deducted
from each trip based on the adjustment factor shall be deducted from
the observer DAS set-aside amount in the applicable fishing year.
Utilization of the DAS set-aside shall be on a first-come, first-served
basis. When the DAS set-aside for observer coverage has been utilized,
vessel owners shall be notified that no additional DAS remain available
to offset the cost of carrying observers. The obligation to carry and
pay for an observer shall not be waived due to the absence of set-aside
DAS allocations.
[[Page 20126]]
(2) DAS set-aside for research. As specified in paragraph (b)(2) of
this section, to help support the activities of vessels participating
in certain research, as specified in Sec. 648.56; the DAS set-aside
for research for the 2007 fishing year is 330 DAS. Vessels
participating in approved research shall be authorized to use
additional DAS in the applicable fishing year. Notification of
allocated additional DAS shall be provided through a letter of
authorization, or Exempted Fishing Permit issued by NMFS, or shall be
added to a participating vessel's open area DAS allocation, as
appropriate.
(h) Annual Individual fishing quotas--(1) IFQ restriction. For each
fishing year of the IFQ program, a vessel issued an IFQ scallop permit
may only harvest and land the total amount of scallop meats allocated
in accordance with this subpart. Unless otherwise specified in this
part, a vessel allocated scallop IFQ may not exceed the possession
limits specified in Sec. 648.52 on any trip.
(2) Calculation of IFQ. The total allowable catch allocated to IFQ
scallop vessels, and the total allowable catch allocated to limited
access scallop vessels issued IFQ scallop permits, as specified in
paragraphs (a)(3)(ii) and (iii) of this section, shall be used to
determine the IFQ of each vessel issued an IFQ scallop permit. Each
fishing year, the Regional Administrator shall provide the owner of a
vessel issued an IFQ scallop permit issued pursuant to Sec.
648.4(a)(2)(ii) with the scallop IFQ for the vessel for the upcoming
fishing year.
(i) Individual fishing quota. The IFQ for an IFQ scallop vessel
shall be the vessel's contribution percentage as specified in paragraph
(h)(2)(iii) of this section and determined using the steps specified in
paragraphs (h)(2)(ii) of this section, multiplied by the TAC allocated
to the IFQ scallop fishery, or limited access vessels issued an IFQ
scallop permit, as specified in paragraphs (a)(3)(ii) and (iii) of this
section.
(ii) Contribution factor. An IFQ scallop vessel's contribution
factor is calculated using the best year, years active, and index
factor as specified in paragraphs (h)(1)(ii)(A) through (C) of this
section. A vessel's contribution factor shall be provided to the owner
of a qualified limited access general category vessel following initial
application for an IFQ scallop permit as specified in Sec.
648.4(a)(2)(ii)(E), consistent with confidentiality restrictions of the
Magnuson-Stevens Act specified at 16 U.S.C. 1881a.
(A) Best year determination. An eligible IFQ scallop vessel's
highest scallop landings in any scallop fishing year that the vessel
was issued a general category scallop permit between March 1, 2000, and
November 1, 2004, shall be determined using NMFS dealer reports.
Scallop landings in the 2004 fishing year must have occurred on or
before November 1, 2004. If a dealer reported more than 400 lb (181.4
kg) of scallops landed on a trip, only 400 lb (181.4 kg) will be
credited for that trip toward the best year calculation. For dealer
reports that indicate clearly that the landings were bushels of in-
shell scallops, a conversion of 8.33 lb (3.78 kg) of scallop meats per
bushel shall be used to calculate meat-weight, up to a maximum of 400
lb (181.4 kg) per trip.
(B) Years active. For each eligible IFQ scallop vessel, the total
number of scallop fishing years during the period March 1, 2000,
through November 1, 2004, in which the vessel had a general category
scallop permit and landed at least 1 lb (0.45 kg) of scallop meats, or
in-shell scallops, shall be counted as active years based on NMFS
dealer reports. Scallop landings in the 2004 fishing year must have
occurred on or before November 1, 2004.
(C) Index to determine contribution factor. For each eligible IFQ
scallop vessel, the best year as determined pursuant to paragraph
(a)(2)(ii)(E)(1) of this section shall be multiplied by the appropriate
index factor specified in the following table, based on years active as
specified in paragraph (a)(2)(ii)(E)(2) of this section. The resulting
contribution factor shall determine its IFQ for each fishing year based
on the allocation to general category scallop vessels as specified in
Sec. 648.53(a)(2) and the method of calculating the IFQ provided in
Sec. 648.53(h).
------------------------------------------------------------------------
Years active Index factor
------------------------------------------------------------------------
1...................................................... 0.75
2...................................................... 0.875
3...................................................... 1.0
4...................................................... 1.125
5...................................................... 1.25
------------------------------------------------------------------------
(D) Contribution factor example. If a vessel landed 48,550 lb
(22,022 kg) of scallops in its best year, and was active in the general
category scallop fishery for 5 years, the vessel's contribution factor
is equal to 60,687 lb (27,527 kg) (48,550 lb (22,022 kg * 1.25).
(iii) Contribution percentage. A vessel's contribution percentage
will be determined by dividing its contribution factor by the sum of
the contribution factors of all vessels issued an IFQ scallop permit.
The sum of the contribution factors shall be determined when all IFQ
scallop vessels are identified. Continuing the example in paragraph
(h)(1)(ii)(D) of this section, the sum of the contribution factors for
380 IFQ scallop vessels is estimated for the purpose of this example to
be 4.18 million lb (1,896 mt). The contribution percentage of the above
vessel is 1.45 percent (60,687 lb (27,527 kg) /4.18 million lb (1,896
mt) = 1.45 percent).
(iv) Vessel IFQ Example. Continuing the example in paragraphs
(h)(1)(ii)(D) and (h)(1)(iii) of this section, with a TAC allocated to
IFQ scallop vessels estimated for this example to be equal to 2.5
million lb (1,134 mt), the vessel's IFQ would be 36,250 lb (16,443 kg)
(1.45 percent * 2.5 million lb (1,134 mt)).
(3) IFQ ownership restrictions--(i) IFQ scallop vessel IFQ cap. (A)
Unless otherwise specified in paragraph (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 percent of the TAC
allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) of this section.
(B) A vessel may be initially issued more than 2 percent of the TAC
allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) 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 percent of the TAC allocated to the IFQ scallop
vessels as described in paragraphs (a)(3)(ii) and (iii) of this
section. A vessel that is allocated an IFQ that exceeds 2 percent of
the TAC allocated to the IFQ scallop vessels as described in paragraphs
(a)(3)(ii) and (iii) of this section in accordance with this paragraph
(h)(3)(i)(B), may not transfer IFQ to that vessel, as specified in
paragraph (h)(5) of this section.
(C) A vessel initially issued a 2008 IFQ scallop permit or
confirmation of permit history, or issued or renewed a limited access
scallop permit or confirmation of permit history for a vessel in 2009
and thereafter, in compliance with the ownership restrictions in
paragraph (h)(3)(i)(A) of this section, are eligible to renew such
permits(s) and/or confirmation(s) of permit history, regardless of
whether the renewal of the permits or confirmations of permit history
will result in the 2-percent ownership restriction being exceeded.
(ii) IFQ ownership cap. (A) For any vessel acquired after June 1,
2008, a vessel owner is not eligible to be issued an IFQ scallop permit
for the vessel, and/or a confirmation of permit history, and is not
eligible to transfer IFQ to the vessel, if, as a result of the issuance
of
[[Page 20127]]
the permit and/or confirmation of permit history, or IFQ transfer, the
vessel owner, or any other person who is a shareholder or partner of
the vessel owner, will have an ownership interest in more than 5
percent of the TAC allocated to the IFQ scallop vessels as described in
paragraphs (a)(3)(ii) and (iii) of this section.
(B) Vessel owners who were initially issued a 2008 IFQ scallop
permit or confirmation of permit history, or who were issued or renewed
a limited access scallop permit or confirmation of permit history for a
vessel in 2009 and thereafter, in compliance with the ownership
restrictions in paragraph (h)(3)(ii)(A) of this section, are eligible
to renew such permits(s) and/or confirmation(s) of permit history,
regardless of whether the renewal of the permits or confirmations of
permit history will result in the 5-percent ownership restriction being
exceeded.
(C) Having an ownership interest includes, but is not limited to,
persons who are shareholders in a vessel owned by a corporation, who
are partners (general or limited) to a vessel owner, or who, in any
way, partly own a vessel.
(iii) Limited access scallop vessels that have been issued an IFQ
scallop permit. The IFQ scallop vessel IFQ cap and IFQ ownership cap
specified in this paragraph (h)(3) do not apply to limited access
scallop vessels that are also issued a limited access general category
scallop permit because such vessels are already subject to an ownership
limitation, as specified in Sec. 648.4(a)(2)(i)(M).
(4) IFQ cost recovery. NMFS shall collect a fee, not to exceed 3
percent of the ex-vessel value of fish harvested in a fishing year, to
recover the costs associated with management, data collection, and
enforcement of the IFQ program. Owners of IFQ scallop vessels shall be
responsible for paying the fee as required by NMFS. For IFQ scallop
vessel owners involved in a temporary transfer of IFQ as specified in
paragraph (h)(5) of this section, the transferor and transferee shall
be joint and severally responsible for any failure to pay cost recovery
fees. By agreeing to and accepting the transfer of IFQ, the transferee
waives confidentiality of information associated with landings of the
transferred IFQ for the use of the transferor only. The specific cost
recovery provisions shall be specified in the first framework
implementing the specifications for the IFQ program, including the
overall total allowable catch and eligible vessels' IFQs. Payment of
cost recovery funds shall be through electronic means unless otherwise
notified by the Regional Administrator.
(5) Transferring IFQ--(i) Temporary IFQ transfers. Subject to the
restrictions in paragraph (h)(5)(iii) of this section, the owner of an
IFQ scallop vessel not issued a limited access scallop permit may
temporarily transfer one or more entire IFQs to or from another IFQ
scallop vessel. Temporary IFQ transfers shall be effective only for the
fishing year in which the temporary transfer is requested and
processed. The Regional Administrator has final approval authority for
all temporary IFQ transfer requests.
(ii) Permanent IFQ transfers. Subject to the restrictions in
paragraph (h)(5)(iii) of this section, the owner of an IFQ scallop
vessel not issued a limited access scallop permit may transfer one or
more entire IFQs permanently to or from another IFQ scallop vessel. A
vessel permanently transferring its IFQ to another vessel must transfer
all of its Federal limited access permits for which it is eligible to
the transferee vessel in accordance with the vessel replacement
restrictions under Sec. 648.4, or permanently cancel such permits. Any
such transfer cannot be limited in duration and is permanent unless the
IFQ is subsequently transferred to another IFQ scallop vessel, other
than the originating IFQ scallop vessel, in a subsequent fishing year.
The Regional Administrator has final approval authority for all IFQ
transfer requests.
(iii) IFQ transfer restrictions. The owner of an IFQ scallop vessel
not issued a limited access scallop permit may transfer entire IFQ
allocations only. The owner of an IFQ scallop vessel not issued a
limited access scallop permit that has fished under its IFQ in a
fishing year may not transfer that vessel's IFQ to another IFQ scallop
vessel in the same fishing year. A transfer of an IFQ may not result in
the sum of the IFQs on the receiving vessel exceeding 2 percent of the
total allowable catch allocated to IFQ scallop vessels. Limited access
scallop vessels that are also issued an IFQ scallop permit may not
transfer or receive IFQ from another IFQ scallop vessel, either
temporarily or permanently. A vessel permanently transferring its IFQ
to another vessel must transfer all of its Federal limited access
permits for which it is eligible to the transferee vessel in accordance
with the vessel replacement restrictions under Sec. 648.4, or
permanently cancel such permits.
(iv) Application for an IFQ transfer. The owner of vessels applying
for a transfer IFQ must submit a completed application form obtained
from the Regional Administrator. The application must be signed by both
parties (transferor and transferee) involved in the transfer of the
IFQ, and must be submitted to the NMFS Northeast Regional Office at
least 30 days before the date on which the applicants desire to have
the IFQ effective on the receiving vessel. The Regional Administrator
shall notify the applicants of any deficiency in the application
pursuant to this section. Applications may be submitted at any time
during the scallop fishing year, provided the vessel transferring the
IFQ to another vessel has not utilized any of its own IFQ in that
fishing year. Applications for temporary transfers received 45 days
prior to the end of the fishing year may not be processed in time for a
vessel to utilize the transferred IFQ prior to the expiration of the
fishing year for which the IFQ transfer, if approved, would be
effective.
(A) Application information requirements. An application to
transfer IFQ must contain at least the following information:
Transferor's name, vessel name, permit number, and official number or
state registration number; transferee's name, vessel name, permit
number and official number or state registration number; total price
paid for purchased IFQ; signatures of transferor and transferee; and
date the form was completed. Information obtained from the transfer
application will be held confidential, and will be used only in
summarized form for management of the fishery. If applicable, an
application for a permanent IFQ transfer must be accompanied by
verification, in writing, that the transferor either has requested
cancellation of all limited access Federal fishing permits, or has
applied for a transfer of all of its limited access permits in
accordance with the vessel replacement restrictions under Sec. 648.4.
(B) Approval of IFQ transfer applications. Unless an application to
transfer IFQ is denied according to paragraph (h)(5)(iii)(C) of this
section, the Regional Administrator shall issue confirmation of
application approval to both parties involved in the transfer within 45
days of receipt of an application.
(C) Denial of transfer application. The Regional Administrator may
reject an application to transfer IFQ for the following reasons: The
application is incomplete; the transferor or transferee does not
possess a valid limited access general category permit; the
transferor's or transferee's vessel or IFQ scallop permit has been
sanctioned, pursuant to an enforcement proceeding; the transferor's or
transferee's vessel is prohibited from fishing; the transfer will
result in the transferee's vessel having
[[Page 20128]]
an allocation that exceeds 2 percent of the total allowable catch
allocated to IFQ scallop vessels; the transfer will result in the
transferee having ownership of general category scallop allocation that
exceeds 5 percent of the total allowable catch allocated to IFQ scallop
vessels; or any other failure to meet the requirements of this subpart.
Upon denial of an application to transfer IFQ, the Regional
Administrator shall send a letter to the applicants describing the
reason(s) for the rejection. The decision by the Regional Administrator
is the final agency decision and there is no opportunity to appeal the
Regional Administrator's decision.
0
11. In Sec. 648.54, paragraphs (b), (c)(3), and (f) are revised to
read as follows:
Sec. 648.54 State waters exemption.
* * * * *
(b) LAGC scallop vessel gear and possession limit restrictions. Any
vessel issued an LAGC scallop permit is exempt from the gear
restrictions specified in Sec. 648.51(a), (b), (e)(1), and (e)(2), and
the applicable possession limits specified in Sec. 648.52, while
fishing exclusively landward of the outer boundary of the waters of a
state that has been issued a state waters exemption, provided the
vessel complies with paragraphs (d) through (g) of this section.
* * * * *
(c) * * *
(3) Prior to Amendment 11 to the FMP, Maine, New Hampshire, and
Massachusetts were determined by the Regional Administrator to have
scallop fisheries and scallop conservation programs that do not
jeopardize the biomass and fishing mortality/effort limit objectives of
the FMP. States must resubmit information describing their scallop
fishery conservation programs so that the Regional Administrator can
determine if such states continue to have scallop fisheries and scallop
conservation programs that do not jeopardize the biomass and fishing
mortality/effort limit objectives of the FMP. In addition, these states
must immediately notify the Regional Administrator of any changes in
their respective scallop conservation program. The Regional
Administrator shall review these changes and, if a determination is
made that the state's conservation program jeopardizes the biomass and
fishing mortality/effort limit objectives of the FMP, or that the state
no longer has a scallop fishery, the Regional Administrator shall
publish a rule in the Federal Register, in accordance with the
Administrative Procedure Act, to eliminate the exemption for that
state. The Regional Administrator may determine that other states have
scallop fisheries and scallop conservation programs that do not
jeopardize the biomass and fishing mortality/effort limit objectives of
the FMP. In such case, the Regional Administrator shall publish a rule
in the Federal Register, in accordance with the Administrative
Procedure Act, to provide the exemption for such states.
* * * * *
(f) Duration of exemption. An exemption expires upon a change in
the vessel's name or ownership, or upon notification through VMS by the
participating vessel's owner.
* * * * *
0
12. In Sec. 648.55, paragraphs (a) and (e) are revised to read as
follows:
Sec. 648.55 Framework adjustments to management measures.
(a) Biennially, or upon a request from the Council, the Regional
Administrator shall provide the Council with information on the status
of the scallop resource. Within 60 days of receipt of that information,
the Council PDT shall assess the condition of the scallop resource to
determine the adequacy of the management measures to achieve scallop
resource conservation objectives. Based on this information, the PDT
shall prepare a Stock Assessment and Fishery Evaluation (SAFE) Report
that provides the information and analysis needed to evaluate potential
management adjustments. Based on this information and analysis, the
Council shall initiate a framework adjustment to establish or revise
total allowable catch, DAS allocations, rotational area management
programs, percentage allocations for limited access general category
vessels in Sea Scallop Access Areas, scallop possession limits, or
other measures to achieve FMP objectives and limit fishing mortality.
The Council's development of an area rotation program shall take into
account at least the following factors: General rotation policy;
boundaries and distribution of rotational closures; number of closures;
minimum closure size; maximum closure extent; enforceability of
rotational closed and re-opened areas; monitoring through resource
surveys; and re-opening criteria. Rotational Closures should be
considered where projected annual change in scallop biomass is greater
than 30 percent. Areas should be considered for Sea Scallop Access
Areas where the projected annual change in scallop biomass is less than
15 percent.
* * * * *
(e) After considering the PDT's findings and recommendations, or at
any other time, if the Council determines that adjustments to, or
additional management measures are necessary, it 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 must include measures to prevent overfishing of the available
biomass of scallops and ensure that OY is achieved on a continuing
basis, and must come from one or more of the following categories:
(1) Total allowable catch and DAS changes;
(2) Shell height;
(3) Offloading window reinstatement;
(4) Effort monitoring;
(5) Data reporting;
(6) Trip limits;
(7) Gear restrictions;
(8) Permitting restrictions;
(9) Crew limits;
(10) Small mesh line;
(11) Onboard observers;
(12) Modifications to the overfishing definition;
(13) VMS Demarcation Line for DAS monitoring;
(14) DAS allocations by gear type;
(15) Temporary leasing of scallop DAS requiring full public
hearings;
(16) Scallop size restrictions, except a minimum size or weight of
individual scallop meats in the catch;
(17) Aquaculture enhancement measures and closures;
(18) Closed areas to increase the size of scallops caught;
(19) Modifications to the opening dates of closed areas;
(20) Size and configuration of rotational management areas;
(21) Controlled access seasons to minimize bycatch and maximize
yield;
(22) Area-specific trip allocations;
(23) TAC specifications and seasons following re-opening;
[[Page 20129]]
(24) Limits on number of area closures;
(25) TAC or DAS set-asides for funding research;
(26) Priorities for scallop-related research that is funded by a
TAC or DAS set-aside;
(27) Finfish TACs for controlled access areas;
(28) Finfish possession limits;
(29) Sea sampling frequency;
(30) Area-specific gear limits and specifications;
(31) Modifications to provisions associated with observer set-
asides; observer coverage; observer deployment; observer service
provider; and/or the observer certification regulations;
(32) Specifications for IFQs for limited access general category
vessels;
(33) Revisions to the cost recovery program for IFQs;
(34) Development of general category fishing industry sectors and
fishing cooperatives;
(35) Adjustments to the Northern Gulf of Maine scallop fishery
measures;
(36) VMS requirements; and
(37) Any other management measures currently included in the FMP.
* * * * *
0
13. Section 648.57 is revised to read as follows:
Sec. 648.57 Sea scallop area rotation program.
An area rotation program is established for the scallop fishery,
which may include areas closed to scallop fishing defined in Sec.
648.58, and/or Sea Scallop Access Areas defined in Sec. 648.59,
subject to the Sea Scallop Area Access program requirements specified
in Sec. 648.60. Areas not defined as Rotational Closed Areas, Sea
Scallop Access Areas, EFH Closed Areas, or areas closed to scallop
fishing under other FMPs, are open to scallop fishing as governed by
the other management measures and restrictions in this part. The
Council's development of area rotation programs is subject to the
framework adjustment process specified in Sec. 648.55, including the
Area Rotation Program factors included in Sec. 648.55(a). The
percentage of the total allowable catch for each Sea Scallop Access
Area that is allocated to limited access scallop vessels and limited
access general category scallop vessels shall be specified in Sec.
648.59 through the framework adjustment process specified in Sec.
648.55.
0
14. In Sec. 648.59, paragraphs (b)(5)(i), (b)(5)(ii), (c)(5)(i),
(c)(5)(ii), (d)(5)(i), (d)(5)(ii), (e)(4)(i), and (e)(4)(ii) are
revised to read as follows:
Sec. 648.59 Sea Scallop Access Areas.
* * * * *
(b) * * *
(5) * * *
(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 Closed Area I Access Area 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 a Closed Area I
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 Closed Area I Access Area trip
that was terminated early, as specified in Sec. 648.60(c). The number
of trips allocated to limited access vessels in the Closed Area I
Access Area shall be based on the TAC for the access area, which will
be determined through the annual framework process and specified in
this paragraph (b)(5)(i).
(ii) LAGC scallop vessels. (A) The percentage of the Closed Area I
total allowable catch allocated to LAGC scallop vessels shall be
specified in this paragraph (b)(5)(ii) through the framework adjustment
process. The resulting total allowable catch allocated to LAGC scallop
vessels shall be specified in this paragraph (b)(5)(ii) and shall
determine the number of trips specified in paragraph (b)(5)(ii)(B) of
this section.
(B) Except as provided in paragraph (b)(5)(ii)(C) of this section,
subject to the possession limit specified in Sec. Sec. 648.52(a) and
(b), and 648.60(g), and subject to the seasonal restrictions specified
in paragraph (b)(4) of this section, an LAGC scallop vessel may not
enter in, or fish for, possess, or land sea scallops in or from the
Closed Area I Access Area once the Regional Administrator has provided
notification in the Federal Register, in accordance with Sec.
648.60(g)(4), the date on which 216 trips are projected to be taken, in
total, by all LAGC scallop vessels, unless transiting pursuant to
paragraph (f) of this section. The Regional Administrator shall notify
all LAGC scallop vessels of the date when the maximum number of allowed
trips have been, or are projected to be, taken for the 2008 fishing
year.
(C) A vessel issued a NE Multispecies permit and a LAGC scallop
permit that is fishing in an approved SAP under Sec. 648.85 under
multispecies DAS may fish in the Scallop Access Areas without being
subject to the restrictions of paragraph (b)(5)(ii)(A) of this section,
provided that it has not enrolled in the Scallop Area Access program.
Such vessel is prohibited from fishing for, possessing, or landing
scallops.
(c) * * *
(5) * * *
(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 Closed Area II Access Area, unless the
vessel owner has made an exchange with another vessel owner whereby the
vessel gains a Closed Area II 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 Closed Area II Access Area trip that was terminated early,
as specified in Sec. 648.60(c). The number of trips allocated to
limited access vessels in the Closed Area II Access Area shall be based
on the TAC for the access area, which will be determined through the
annual framework process and specified in this paragraph (c)(5)(i).
(ii) LAGC scallop vessels. (A) The percentage of the Closed Area II
total allowable catch allocated to LAGC scallop vessels shall be
specified in this paragraph (c)(5)(ii) through the framework adjustment
process. The resulting total allowable catch allocated to LAGC scallop
vessels shall be specified in this paragraph (c)(5)(ii) and shall
determine the number of trips specified in paragraph (c)(5)(ii)(B) of
this section.
(B) Except as provided in paragraph (c)(5)(ii)(C) of this section,
subject to the possession limits specified in Sec. Sec. 648.52(a) and
(b), and 648.60(g), and subject to the seasonal restrictions specified
in paragraph (c)(4) of this section, an LAGC scallop vessel may not
enter in, or fish for, possess, or land sea scallops in or from the
Closed Area II Access Area once the Regional Administrator has provided
notification in the Federal Register, in accordance with Sec.
648.60(g)(4), of the date on which the total number of trips is
projected to be taken, in total, by all LAGC scallop vessels, unless
transiting pursuant to paragraph (f) of this section. The Regional
Administrator shall notify all LAGC scallop vessels of the date when
the maximum number of allowed trips have been, or are projected to be,
taken.
(C) A vessel issued a NE Multispecies permit and an LAGC scallop
permit that is fishing in an approved SAP under Sec. 648.85 under
multispecies DAS may fish in the Scallop Access Areas without being
subject to the restrictions of paragraph (c)(5)(ii)(A) of this section,
provided that it has not enrolled in the Scallop Area Access program.
Such vessel is prohibited from fishing for, possessing, or landing
scallops.
[[Page 20130]]
(d) * * *
(5) * * *
(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 Nantucket Lightship Access Area, unless
the vessel owner has made an exchange with another vessel owner whereby
the vessel gains a Nantucket Lightship 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 Nantucket Lightship Closed Area Access Area trip that was
terminated early, as specified in Sec. 648.60(c). The number of trips
allocated to limited access vessels in the Nantucket Lightship Access
Area shall be based on the TAC for the access area, which will be
determined through the annual framework process and specified in this
paragraph (d)(5)(i).
(ii) LAGC scallop vessels. (A) The percentage of the Nantucket
Lightship Access Area total allowable catch allocated to LAGC scallop
vessels shall be specified in this paragraph (d)(5)(ii) through the
framework adjustment process. The resulting total allowable catch
allocated to LAGC scallop vessels shall be specified in this paragraph
(d)(5)(ii) and shall determine the number of trips specified in
paragraph (d)(5)(ii)(B) of this section.
(B) Except as provided in paragraph (d)(5)(ii)(C) of this section,
subject to the possession limits specified in Sec. Sec. 648.52(a) and
(b), and 648.60(g), an LAGC scallop vessel may not enter in, or fish
for, possess, or land sea scallops in or from the Nantucket Lightship
Access Area once the Regional Administrator has provided notification
in the Federal Register, in accordance with Sec. 648.60(g)(4), of the
date on which the total number of trips are projected to be taken, in
total, by all LAGC scallop vessels, unless transiting pursuant to
paragraph (f) of this section. The Regional Administrator shall notify
all LAGC scallop vessels of the date when the maximum number of allowed
trips have been, or are projected to be, taken.
(C) A vessel issued a NE Multispecies permit and an LAGC scallop
permit that is fishing in an approved SAP under Sec. 648.85 under
multispecies DAS may fish in the Scallop Access Areas without being
subject to the restrictions of paragraph (d)(5)(ii)(A) of this section,
provided that it has not enrolled in the Scallop Area Access program.
Such vessel is prohibited from fishing for, possessing, or landing
scallops.
(e) * * *
(4) * * *
(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,
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). The number of trips allocated to
limited access vessels in the Elephant Trunk Access Area shall be based
on the TAC for the access area, which will be determined through the
annual framework process and specified in this paragraph (e)(4)(i).
(ii) LAGC scallop vessels. (A) The percentage of the Elephant Trunk
Access Area total allowable catch allocated to LAGC scallop vessels
shall be specified in this paragraph (e)(4)(ii) through the framework
adjustment process. The resulting total allowable catch allocated to
limited access general category vessels shall be specified in this
paragraph (e)(4)(ii) and shall determine the number of trips specified
in paragraph (e)(4)(ii)(B) of this section.
(B) Subject to the possession limits specified in Sec. Sec.
648.52(a) and (b), and 648.60(g), an LAGC scallop vessel 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), of the date on which 865 trips allocated March 1, 2008,
are projected to be taken, in total, by all LAGC scallop vessels,
unless transiting pursuant to paragraph (f) of this section. The
Regional Administrator shall notify all LAGC scallop vessels of the
date when the maximum number of allowed trips have been, or are
projected to be, taken.
* * * * *
0
15. In Sec. 648.60, paragraph (a) introductory text, paragraphs (g)(1)
and (2), and paragraph (g)(3) introductory text are revised to read as
follows:
Sec. 648.60 Sea scallop area access program requirements.
(a) A limited access scallop vessel may only fish in the Sea
Scallop Access Areas specified in Sec. 648.59, subject to the seasonal
restrictions specified in Sec. 648.59, when fishing under a scallop
DAS, provided the vessel complies with the requirements specified in
paragraphs (a)(1) through (a)(9), and (b) through (f) of this section.
An LAGC scallop vessel may fish in the Sea Scallop Access Areas
specified in Sec. 648.59, subject to the seasonal restrictions
specified in Sec. 648.59, provided the vessel complies with the
requirements specified in paragraph (g) of this section.
* * * * *
(g) * * *
(1) An LAGC scallop vessel, except a vessel issued a NE
Multispecies permit and an LAGC scallop permit that is fishing in an
approved SAP under Sec. 648.85 under multispecies DAS that has not
enrolled in the LAGC Access Area fishery, may only fish in the Closed
Area I, Closed Area II, and Nantucket Lightship Sea Scallop Access
Areas specified in Sec. 648.59(b) through (d), subject to the seasonal
restrictions specified in Sec. 648.59(b)(4), (c)(4), and (d)(4), and
subject to the possession limit specified in Sec. 648.52(a), and
provided the vessel complies with the requirements specified in
paragraphs (a)(1), (a)(2), (a)(6) through (a)(9), (d), (e), (f), and
(g) of this section, and Sec. 648.85(c)(3)(ii). A vessel issued a NE
Multispecies permit and an LAGC scallop permit that is fishing in an
approved SAP under Sec. 648.85 under multispecies DAS that has not
enrolled in the Sea Scallop Area Access program as specified in
paragraph (a)(2) of this section is not subject to the restrictions and
requirements specified in Sec. 648.59(b)(5)(ii), (c)(5)(ii),
(d)(5)(ii), and this paragraph (g), but may not fish for, possess, or
land scallops on such trips.
(2) Gear restrictions. An LAGC scallop vessel authorized to fish in
the Access Areas specified in Sec. 648.59(b) through (d) must fish
with dredge gear only. The combined dredge width in use by, or in
possession on board, LAGC scallop vessels fishing in the Access Areas
described in Sec. 648.59(b) through (d) may not exceed 10.5 ft (3.2
m), measured at the widest point in the bail of the dredge.
(3) Scallop TAC. An LAGC scallop vessel authorized to fish in the
Access Areas specified in Sec. 648.59(b) through (e) may land
scallops, subject to the possession limit specified in Sec. 648.52(a),
unless the Regional Administrator has issued a notice that the scallop
TAC specified in Sec. 648.59(b)(5)(ii), (c)(5)(ii), (d)(5)(ii), and
(e)(4)(ii) in the Access Area has been or is projected to be harvested.
Upon a determination from the Regional Administrator that the scallop
TAC for a specified Access Area, as specified in this paragraph (g)(3),
has been, or is projected to be harvested, the Regional Administrator
shall publish notification of this determination in the
[[Page 20131]]
Federal Register, in accordance with the Administrative Procedure Act.
Once this determination has been made, and LAGC scallop vessel may not
fish for, possess, or land scallops in or from the specified Access
Area.
* * * * *
0
16. Section 648.62 is added to read as follows:
Sec. 648.62 Northern Gulf of Maine (NGOM) scallop management area.
(a) The NGOM scallop management area is the area north of 42(20' N.
lat. and within the boundaries of the Gulf of Maine Scallop Dredge
Exemption Area as specified in Sec. 648.80(a)(11). To fish for or
possess scallops in the NGOM scallop management area, a vessel must
have been issued a scallop permit as specified in Sec. 648.4(a)(2).
(1) If a vessel has been issued a NGOM scallop permit, the vessel
is restricted to fishing for or possessing scallops only in the NGOM
scallop management area.
(2) Scallop landings by all vessels issued LAGC scallop permits,
including IFQ scallop permits, and fishing in the NGOM scallop
management area shall be deducted from the NGOM scallop total allowable
catch specified in paragraph (b) of this section. Scallop landings by
IFQ scallop vessels fishing in the NGOM scallop management area shall
be deducted from their respective scallop IFQs. Landings by limited
access scallop vessels fishing under the scallop DAS program shall not
be deducted from the NGOM total allowable catch specified in paragraph
(b) of this section.
(3) A vessel issued a NGOM or IFQ scallop permit that fishes in the
NGOM may fish for, possess, or retain up to 200 lb (90.7 kg) of shucked
or 25 bu (8.81 hL) of in-shell scallops, and may possess up to 50 bu
(17.6 hL) of in-shell scallops seaward of the VMS Demarcation Line. A
vessel issued an incidental catch general category scallop permit that
fishes in the NGOM may fish for, possess, or retain only up to 40 lb of
shucked or 5 U.S. bu (1.76 hL) of in-shell scallops, and may possess up
to 10 bu (3.52 hL) of in-shell scallops seaward of the VMS Demarcation
Line.
(b) Total allowable catch. The total allowable catch for the NGOM
scallop management area shall be specified through the framework
adjustment process. The total allowable catch for the NGOM scallop
management area shall be based on the Federal portion of the scallop
resource in the NGOM. The total allowable catch shall be determined by
historical landings until additional information on the NGOM scallop
resource is available, for example through an NGOM resource survey and
assessment. The total allowable catch and allocations as specified in
Sec. 648.53(a) shall not include the total allowable catch for the
NGOM scallop management area, and landings from the NGOM scallop
management area shall not be counted against the total allowable catch
and allocations specified in Sec. 648.53(a).
(1) NGOM total allowable catch. To be determined.
(2) Unless a vessel has fished for scallops outside of the NGOM
scallop management area and is transiting NGOM scallop management area
with all fishing gear stowed in accordance with Sec. 648.23(b), no
vessel issued a scallop permit pursuant to Sec. 648.4(a)(2) may
possess, retain, or land scallops in the NGOM scallop management area
once the Regional Administrator has provided notification in the
Federal Register that the NGOM scallop total allowable catch in
accordance with this paragraph (b) has been reached. A vessel that has
not been issued a Federal scallop permit that fishes exclusively in
state waters is not subject to the closure of the NGOM scallop
management area.
(c) VMS requirements. Except scallop vessels issued a limited
access scallop permit pursuant to Sec. 648.4(a)(2)(i) that have
declared a trip under the scallop DAS program, a vessel issued a
scallop permit pursuant to Sec. 648.4(a)(2) that intends to fish for
scallops in the NGOM scallop management area or fishes for, possesses,
or lands scallops in or from the NGOM scallop management area, must
declare a NGOM scallop management area trip and report scallop catch
through the vessel's VMS unit, as required in Sec. 648.10.
(d) Gear restrictions. Except scallop vessels issued a limited
access scallop permit pursuant to Sec. 648.4(a)(2)(i) that have
properly declared a trip under the scallop DAS program, the combined
dredge width in use by, or in possession on board, LAGC scallop vessels
fishing in the NGOM scallop management area may not exceed 10.5 ft (3.2
m), measured at the widest point in the bail of the dredge.
0
17. Section 648.63 is added to read as follows:
Sec. 648.63 General category Sectors and harvesting cooperatives.
(a) Procedure for implementing Sector allocation proposals. (1) Any
person may submit a Sector allocation proposal for a group of LAGC
scallop vessels to the Council, at least 1 year in advance of the start
of the proposed sector, and request that the Sector be implemented
through a framework procedure specified at Sec. 648.55, in accordance
with the conditions and restrictions of this section.
(2) Upon receipt of a Sector allocation proposal, the Council must
decide whether to initiate such framework. Should a framework
adjustment to authorize a Sector allocation be initiated, the Council
shall follow the framework adjustment provisions of Sec. 648.55. Any
framework adjustment developed to implement a Sector allocation
proposal must be in compliance with the general requirements specified
in paragraphs (b) and (c) of this section. Vessels that do not join a
Sector remain subject to the LAGC scallop vessel regulations for non-
Sector vessels specified under this part.
(b) General requirements applicable to all Sector allocations. All
Sectors approved under the provisions of paragraph (a) of this section
must submit the documents specified under paragraphs (a)(1) and (c) of
this section, and comply with the conditions and restrictions of this
paragraph (b).
(1) Participation. (i) Only LAGC scallop vessels are eligible to
form Sectors, and Sectors may choose which eligible permit holders to
include or exclude in the sector, consistent with all applicable law. A
Sector may establish additional criteria for determining its
membership, provided such criteria are specified in the Sector's
operations plan and are consistent with all applicable law. Any
interested group that meets the eligibility criteria may submit a
proposal for a Sector. To initiate the process of Sector creation, a
group (two or more) of permit holders must agree to cooperate and
submit a binding plan for management of that Sector's allocation of
total allowable catch. Vessels that do not choose to participate in a
sector will fish under the IFQ program and remain in the non-sector
scallop fishery.
(ii) Participation by incidental catch or NGOM scallop vessels in
the Sector is subject to approval by the Council as part of the action
that implements the Sector allocation, provided the details of such
participation are specified in the Sector's operations plan. A Sector
allocation may be harvested by non-Sector members, provided the Sector
operations plan specifies that the Sector may authorize non-Sector
vessels to harvest the Sector allocation. In this case, if the Sector
is approved, the landings history of the participating non-Sector
vessels may not be used in the calculation of future Sector shares and
may not be used as scallop catch history for such vessels. The
operations plan must specify how such participating non-Sector shall be
subject to the rules of the Sector.
[[Page 20132]]
(iii) Once a vessel operator and/or vessel owner signs a binding
contract to have his/her vessel participate in a Sector, that vessel
must remain in the Sector for the remainder of the fishing year.
(iv) Vessels that fish in the LAGC scallop fishery outside the
Sector allocation in a given fishing year may not participate in a
Sector during that same fishing year, unless the Operations Plan
provides an acceptable method for accounting for IFQ used, or catch by
the vessel, prior to implementation of the Sector.
(v) Once a vessel operator and/or vessel owner has agreed to
participate in a Sector as specified in paragraph (b)(1)(iii) of this
section, that vessel must remain in the Sector for the entire fishing
year. If a permit is transferred by a Sector participant during the
fishing year, the new owner must also comply with the Sector
regulations for the remainder of the fishing year.
(vi) Vessels and vessel operators and/or vessel owners removed from
a Sector for violation of the Sector rules will not be eligible to fish
under the scallop regulations for non-Sector vessels specified under
this part either for any period specified in the final decision of
penalty or sanction.
(vii) If a pre-existing Sector accepts a new member, the percentage
share brought to the Sector is based on that vessel's average
qualification landings at the time it joins the Sector (i.e., the
vessel is treated as a ``Sector of one'' and a share based on the
appropriate adjusted TACs is calculated). This new single-vessel-Sector
share is added to the existing Sector. If a vessel leaves a Sector,
that Sector's share is reduced by the individual vessel share the
exiting vessel had when it joined the Sector.
(viii) A vessel may not be a member of more than one Sector. Once a
vessel enters into a Sector, it cannot fish during that fishing year
under the regulations that apply to the common pool. Additionally,
vessels cannot shift from one Sector to another during a single fishing
year. Therefore, if a vessel leaves a Sector for any reason, it cannot
participate in the general category scallop fishery during the
remainder of that fishing year
(2) Allocation of TAC to Sectors. (i) The Sector allocation shall
be equal to a percentage share of the TAC allocation for IFQ scallop
vessels specified in Sec. 648.53(a), similar to a IFQ scallop vessel's
IFQ as specified in Sec. 648.53(h). The Sector's percentage share of
the IFQ scallop fishery TAC catch shall not change, but the amount of
allocation based on the percentage share will change based on the TAC
specified in Sec. 648.53(a).
(ii) Sector share determination. When a Sector proposal is
submitted, NMFS shall verify the contribution percentage as specified
in Sec. 648.53(h)(2)(iii) for each vessel listed as a Sector member.
The Sector's share shall be the sum of the participating vessels'
contribution percentages.
(iii) A Sector shall not be allocated more than 20 percent of the
TAC for IFQ vessels specified in Sec. 648.53(a)(5)(ii) or (iii).
(3) Once a Sector's allocation is projected to be harvested, Sector
operations will be terminated for the remainder of the fishing year.
(4) If a Sector's allocation is exceeded in a given fishing year,
the Sector, each vessel, and vessel operator and/or vessel owner
participating in the Sector may be charged jointly and severally for
civil penalties and permit sanction pursuant to 15 CFR part 904. If a
Sector exceeds its allocation in more than one fishing year, the
Sector's authorization to operate may be withdrawn.
(5) A vessel operator and/or vessel owner participating in a Sector
is not subject to the limit on the vessel's catch based on the vessel's
own IFQ or contribution percentage as defined in Sec.
648.53(h)(2)(iii), provided the vessel is participating in the Sector
and carries on board a Letter of Authorization to participate in the
Sector and exempts the vessel from its IFQ limit and any other related
measures. The Sector shall determine how the Sector's allocation will
be divided between its participating vessels, regardless of whether the
catch by a participating vessel exceeds that vessel's own IFQ.
(6) Each vessel operator and/or vessel owner fishing under an
approved Sector must comply with all scallop management measures of
this part and other applicable law, unless exempted under a Letter of
Authorization, as specified in paragraph (b)(11) of this section. Each
vessel and vessel operator and/or vessel owner participating in a
Sector must also comply with all applicable requirements and conditions
of the Operations Plan specified in paragraph (c) of this section and
the Letter of Authorization issued pursuant to paragraph (b)(11) of
this section. It shall be unlawful to violate any such conditions and
requirements and each Sector, vessel, and vessel operator and/or vessel
owner participating in the Sector may be charged jointly and severally
for civil penalties and permit sanctions pursuant to 15 CFR part 904.
(7) Approved Sectors must submit an annual year-end report to NMFS
and the Council, within 60 days of the end of the fishing year, that
summarizes the fishing activities of its members, including harvest
levels of all federally managed species by Sector vessels, enforcement
actions, and other relevant information required to evaluate the
performance of the Sector.
(8) It shall be the responsibility of each Sector to track its
activity and internally enforce any provisions adopted through
procedures established in the operations plan and agreed to through the
Sector contract. Sector contracts should describe graduated sanctions,
including grounds for expulsion of Sector member vessels. The Sector
and participating Sector vessels shall be subject to NMFS enforcement
action for violations of the regulations pertaining to Sectors and
other regulations under 50 CFR part 648. Vessels operating within a
Sector are responsible for judgments against the Sector. Sector
operations plans shall specify how a Sector will monitor its landings
to assure that Sector landings do not exceed the Sector allocation. At
the end of the fishing year, NMFS shall evaluate landings using VMS and
any other available information to determine whether a Sector has
exceeded any of its allocations based on the list of participating
vessels submitted in the operations plan. If a Sector exceeds its TAC,
the Sector may have its authorization as a Sector withdrawn by the
Regional Administrator, after consultation with the Council, and may be
subject to enforcement action.
(9) Permanent or temporary transfers of allocation between Sectors
or between Sector and non-Sector participants is prohibited. For
purposes of harvesting a Sector allocation only, vessels under contract
to a Sector are assumed to be part of that Sector for the duration of
that contract.
(10) The Sector allocation proposal must contain an appropriate
analysis that assesses the impact of the proposed Sector, in compliance
with the National Environmental Policy Act.
(11) If a Sector is approved as specified in paragraph (d)(3) of
this section, the Regional Administrator shall issue a Letter of
Authorization to each vessel operator and/or owner for the
participating Sector vessel. The Letter of Authorization shall
authorize participation in the Sector operations and may exempt the
participating vessel from the requirement that the vessel cannot exceed
its own IFQ and related measures. The Letter of Authorization may
include requirements and conditions deemed necessary to ensure
effective administration of and compliance with the Sector's operations
plan and the Sector's allocation.
[[Page 20133]]
(c) Operations plans. (1) A group that wants to form a Sector and
receive an allocation must submit a legally binding operations plan to
the Council and the Regional Administrator. The operations plan must be
agreed upon and signed by all members of the Sector and, if approved,
shall constitute a contract.
(2) The operations plan among all of the Sector members must have,
at a minimum, the following components:
(i) A list of all participants;
(ii) A contract signed by all participants indicating their
agreement to abide by the operations plan;
(iii) An entity name, address, phone number, and the name and
contact information for a Sector representative (a manager or director)
that NMFS can contact regarding Sector management issues;
(iv) A plan explaining how the Sector will harvest its allocation,
including methods to inform NMFS of changes in those arrangements over
the year;
(v) The original distribution of catch history of vessels in the
Sector (maintaining vessel data confidentiality);
(vi) A plan detailing how the Sector will avoid exceeding its
allocated TACs, including provisions for monitoring and enforcement of
the Sector regulations, and documenting all landings and discards;
(vii) Rules for entry to and exit from the Sector, including
sanctions and procedures for removing members who do not comply with
the operations plan;
(viii) Procedure for notifying NMFS if a member is no longer part
of the Sector and the reason for leaving;
(ix) The process through which the operations plan can be amended
by Sector members;
(x) If the Sector plans to authorize non-Sector vessels to harvest
scallops allocated to the Sector, details of such arrangements must be
described in the operations plan;
(xi) Any documents and analyses necessary to comply with the
National Environmental Protection Act must be submitted to NMFS. The
development of the analytical document is the responsibility of the
applicants.
(xii) Any other information determined to be necessary and
appropriate.
(d) Sector review, approval, and revocation. (1) A Sector shall
submit its operations plan and any NEPA documents to the Regional
Administrator and the Council no less than 1 year prior to the date
that it wishes to begin operations under the Sector. The Council shall
consider this plan in the course of the periodic framework adjustment
or specification process and may, if approved, implement it through
either of those processes. After Council approval of a Sector, the
details of its operation shall be addressed between the Sector and
NMFS, although the New England Fishery Management Council may review
and provide comment on the proposed details.
(2) The Regional Administrator may withdraw approval of a Sector at
any time if he/she, in consultation with the New England Fishery
Management Council, determines that Sector participants are not
complying with the requirements of an approved operations plan or that
the continuation of the operations plan will undermine achievement of
fishing mortality objectives of the FMP. Withdrawal of approval of a
Sector shall be completed after notice and comment rulemaking, pursuant
to the Administrative Procedure Act.
(3) A Sector is required to resubmit its operations plan to the
Regional Administrator no later than July 1 of each year, whether or
not the plan has changed. Once the submission documents specified under
paragraphs (a)(1) and (c)(2) of this section have been determined to
comply with the requirements of this section, NMFS may consult with the
Council and shall approve or disapprove Sector operations consistent
with applicable law.
[FR Doc. E8-7795 Filed 4-11-08; 8:45 am]
BILLING CODE 3510-22-P