Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery and Northeast Multispecies Fishery; Framework Adjustment 25

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS approves and implements regulations for Framework Adjustment 25 to the Atlantic Sea Scallop Fishery Management Plan (Framework 25), which the New England Fishery Management Council adopted and submitted to NMFS for approval. Framework 25 sets specifications for the Atlantic sea scallop fishery for fishing year 2014, including days-at-sea allocations, individual fishing quotas, and sea scallop access area trip allocations. This action also sets precautionary default FY 2015 specifications, in case NMFS implements the next framework after the March 1, 2015, start of fishing year 2015, and the fishery must operate under transitional measures. Framework 25 also allows vessels to land pounds that went unharvested in Closed Area I Access Area in 2012 and 2013 in a future year; develops Southern New England/Mid-Atlantic windowpane flounder accountability measures; and provides full-time scallop vessels the option to exchange their allocated Delmarva Access Area trip for 5 days-at-sea.

DATES:

Effective June 16, 2014, except for the amendment to § 648.51(b)(4)(iv)(B) in amendatory instruction 4.b, which is effective July 16, 2014.

ADDRESSES:

The Council developed an environmental assessment (EA) for this action that describes the action and other considered alternatives and provides a thorough analysis of the impacts of these measures. Copies of the Framework, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/IRFA is also accessible via the Internet at http://www.nefmc.org/scallops/index.html.

Copies of the small entity compliance guide are available from John K. Bullard, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, or available on the Internet at http://www.nero.noaa.gov/sustainable/species/scallop/.

FOR FURTHER INFORMATION CONTACT:

Travis Ford, Fishery Policy Analyst, 978-281-9233.

SUPPLEMENTARY INFORMATION:

Background

The scallop fishery's management unit ranges from the shorelines of Maine through North Carolina to the outer boundary of the Exclusive Economic Zone. The Scallop Fishery Management Plan (FMP), first established in 1982, includes a number of amendments and framework adjustments that have revised and refined the fishery's management. The Council sets scallop fishery specifications through framework adjustments that occur annually or biennially. This action includes allocations for fishing year (FY) 2014, as well as other scallop fishery management measures.

The Council adopted Framework 25 on January 29, 2014, and initially submitted it to NMFS on March 13, 2014, for review and approval. The Council submitted a revised final framework document on April 17, 2014. Framework 25 specifies measures for FY 2014, but includes FY 2015 measures that will go into place as a default, should the next specifications-setting framework be delayed beyond the start of FY 2015. NMFS is implementing Framework 25 after the start of FY 2014; FY 2014 default measures have been in place since March 1, 2014. Because the default allocation for the Limited Access General Category (LAGC) Individual Fishing Quota (IFQ) fleet is higher for FY 2014 than what is set under Framework 25, we identify and describe payback measures below to address unintended consequences of the late implementation of this action. This action includes some measures that are not explicitly in Framework 25, which we are implementing under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). This section of the MSA provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the MSA. These measures, which are separately identified and described below, are necessary to address unintended consequences of the late implementation of this action, as well as to clarify implied measures which may not have been explicitly included in Framework 25. The Council has reviewed the Framework 25 proposed rule regulations as drafted by NMFS and deemed them to be necessary and appropriate as specified in section 303(c) of the MSA. The proposed rule for Framework 25 published in the Federal Register on May 9, 2014 (79 FR 26690), with a 15-day public comment period that ended May 27, 2014. NMFS received two comments on the proposed measures.

The final Framework 25 management measures are described below. NMFS presented details concerning the Council's development of and rationale for these measures in the preamble of the proposed rule and has not repeated them in this final rule.

Specification of Scallop Overfishing Limit (OFL), Acceptable Biological Catch (ABC), Annual Catch Limits (ACLs), Annual Catch Targets (ACTs), and Set-Asides for FY 2014 and Default Specifications for FY 2015

The Council sets the OFL based on a fishing mortality rate (F) of 0.38, equivalent to the F threshold updated through the most recent scallop stock assessment. The Council sets the ABC and the equivalent total ACL for each FY based on an F of 0.32, which is the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee recommended scallop fishery ABCs for FYs 2014 and 2015 of 45.8 M lb (20,782 mt) and 52.9 M lb (23,982 mt), respectively, after accounting for discards and incidental mortality. The Scientific and Statistical Committee will reevaluate an ABC for FY 2015 when the Council develops the next framework adjustment.

Table 1 outlines the scallop fishery catch limits derived from the ABC values. After deducting the incidental target total allowable catch (TAC) and the research and observer set-asides, the Council proportions out the remaining ACL available to the fishery according to the fleet allocations established in Amendment 11 to the Scallop FMP (Amendment 11; 72 FR 20090; April 14, 2008): 94.5 percent allocated to the limited access (LA) scallop fleet (i.e., the larger “trip boat” fleet); 5 percent allocated to the LAGC IFQ fleet (i.e., the smaller “day boat” fleet); and the remaining 0.5 percent allocated to LA scallop vessels that also have LAGC IFQ permits. We refer to these separate ACLs and their corresponding ACTs as sub-ACLs and sub-ACTs, respectively, throughout this action. Amendment 15 to the Scallop FMP (76 FR 43746; July 21, 2011) specified that no buffers to account for management uncertainty are necessary in setting the LAGC sub-ACLs, meaning that the LAGC sub-ACL would equal the LAGC sub-ACT. As a result, the LAGC sub-ACL values in Table 1, based on an F of 0.32, represent the amount of catch that NMFS will use to calculate IFQ percentage shares for each vessel's IFQ for a given FY. For the LA fleet, the Council set a management uncertainty buffer based on the F associated with a 75-percent probability of remaining below the F associated with ABC/ACL, which results in an F of 0.28.

This action deducts 1.25 M lb (567 mt) of scallops annually for FYs 2014 and 2015 from the ABC and sets it aside as the Scallop RSA to fund scallop research and to compensate participating vessels through the sale of scallops harvested under RSA projects. Beginning March 1, 2014, this set-aside is available for harvest by RSA-funded projects in open areas. In an effort to reduce mortality of both larger and smaller scallops in the Nantucket Lightship (NLS) and Delmarva (DMV) access areas, Framework 25 does not allow RSA to be harvested from these two areas, and once this action is approved and implemented, applicable vessels will be able to harvest RSA from the Closed Area II access area (CA2) or open areas.

This action also removes 1 percent from the ABC and set it aside for the industry-funded observer program to help defray the cost of carrying an observer. The observer set-aside for FYs 2014 and 2015 are 208 mt (458,562 lb) and 240 mt (529,110 lb), respectively.

Temporary Adjustment to the Principles Used for Setting Target Catch Levels

This action temporarily modifies a current principle used for setting target catch levels in this fishery. Specifically, the overfishing definition approved in Amendment 15 includes three main principles to set target catch: (1) F in open areas cannot exceed 0.38; (2) spatially averaged F target is limited to 0.28 for all areas combined (open and closed areas); and (3) F targets for access areas are based on a time-averaged principle (i.e., higher F in some years followed by closures or limited fishing levels in subsequent years). This action temporarily modifies the first principle, and allows open area F to exceed F threshold (0.38) for FY 2014 only. Because NMFS does not consider this a modification of the overall overfishing definition for the fishery as a whole, this temporary change is a frameworkable measure under the Scallop FMP. This minor, temporary adjustment is consistent with the FMP, and, when analyzed in connection with measures for access to closed areas, still consistent with achieving an overall F of 0.28. Open area F will increase to a level that provides projected catch levels similar to FY 2013, but will not exceed an overall combined F of 0.28 for all areas. The OFL for the scallop stock as a whole (F of 0.38) will remain unchanged. The estimates of F for this action are 0.52 for open areas, and 0.21 for all areas combined. Framework 25 projects that this level of effort in the open area will provide short-term economic benefits that outweigh any reduction in benefits due to projected marginal reductions in future DAS allocations in open areas.

Open Area Days-at-Sea (DAS) Allocations

This action implements vessel-specific DAS allocations for each of the three LA scallop DAS permit categories (i.e., full-time, part-time, and occasional) for FYs 2014 and 2015 (Table 2). The FY 2014 DAS allocations in Table 2 represent an increase in DAS for full-time, part-time, and occasional vessels from the allocations set at the start of FY 2014 (i.e., 23, 9, and 2 DAS, respectively). FY 2015 DAS allocations are precautionary, and are set at 75 percent of what current biomass projections indicate could be allocated to each LA scallop vessel for the entire FY so as to avoid over-allocating DAS to the fleet in the event that the framework that will set those allocations, if delayed past the start of FY 2015, estimates that DAS should be less than currently projected. The allocations in Table 2 exclude any DAS deductions that are required if the limited access scallop fleet exceeded its 2013 sub-ACL.

LA Trip Allocations, the Random Allocation Process, and Possession Limits for Scallop Access Areas

Framework 25 maintains the current closure of the ETA for FYs 2014 and 2015. In addition, Framework 25 closes the Hudson Canyon Access Area (HCA) and the Closed Area 1 Access Area (CA1) for FYs 2014 and 2015 because these access areas are no longer able to support profitable trips and to protect recruitment in HCA.

For FY 2014, full-time LA vessels will receive two 12,000-lb (5,443-kg) access area trips. We will allocate each vessel allocate one trip in either the NLS or CA2 access area, and one trip in the DMV. Table 3 shows the total number of trips allocated to full-time vessels for each area.

Part-time vessels will receive one FY 2014 access area trip allocation in 2014 equivalent to 9,600 lb (4,354 kg), and vessels with limited access occasional permits will receive one 2,000-lb (907-kg) trip. These trips could be taken in any one of the access areas that is open to the fishery for FY 2014 (i.e., DMV, NLS, or CA2).

In order to ensure appropriate access area allocations in the next framework adjustment, Framework 26, we did not allocate any access area trips under FY 2015 default measures. The next framework that would replace these FY 2015 default measures would include the FY 2015 access area allocations based on updated scallop projections. If Framework 26 is delayed past March 1, 2015, scallop vessels will be restricted to fishing in open areas until final FY 2015 specifications are implemented. However, vessels will be able to fish FY 2014 compensation trips in the access areas that were open in FY 2014 (e.g., DMV, NLS, and CA2) for the first 60 days that those areas are open in FY 2015, or until Framework 26 is approved and implemented, whichever occurs first. NMFS does not expect this level of effort to greatly impact the scallop resource or affect FY 2015 allocations.

In order to avoid allocating trips into access areas with scallop biomass levels not large enough to support a full trip by all 313 LA full-time vessels, Framework 25 allocates “split-fleet” trips into certain access areas. First, Framework 25 allocates each full-time vessel one trip in the DMV area. Then Framework 25 randomly allocates one trip to each full-time vessel into either NLS or CA2. In order to facilitate trading trips between vessels, the Council has already specified allocations for full-time vessels for FY 2014. These allocations are listed in Appendix IV of the Framework 25 document (See ADDRESSES), as well as NMFS's Web site.

Ability To Exchange a DMV Trip for 5 DAS

In response to uncertain projections of scallop sizes and densities in DMV, this action gives LA vessels the flexibility to exchange their 12,000-pound DMV trip for 5 open area DAS. If a vessel chooses not to fish in DMV and, instead, fish take the additional 5 DAS, the vessel will automatically receive the additional 5 DAS in one of two ways. First, DMV will close 90 days after the implementation of Framework 25. If a vessel does not take its DMV trip before DMV closes, that vessel will automatically be credited 5 additional DAS. For example, Vessel A will receive 31 DAS once this action goes into place. When DMV closes 90 days after the implementation of Framework 25, if Vessel A never declared or fished a DMV trip, then Vessel A will automatically be credited with 5 additional DAS, giving Vessel A a total of 36 DAS for FY 2014. Alternatively, a vessel could fish its initial allocation of 31 open area DAS before the DMV closes, then fish five additional DAS by deciding not fish a DMV trip, regardless of whether the DMV has closed. For example, if Vessel B fishes a total of 31 DAS prior to the DMV closing, it could fish up to an additional 5 DAS even if the DMV hasn't closed. Vessel B could not fish in the DMV subsequent to using any or all of the additional 5 DAS. We will track trips and declarations to automatically convert the non-used DMV trip into 5 additional DAS. We will notify all vessel owners of this process upon the implementation of this action.

LAGC Measures

1. Sub-ACL for LAGC vessels with IFQ permits. For LAGC vessels with IFQ permits, this action sets a 2,202,859-lb (999.2-mt) ACL for FY 2014 and an initial ACL of 2,552,105 lb (1,158 mt) for FY 2015 (Table 1). We calculate IFQ allocations by applying each vessel's IFQ contribution percentage to these ACLs. These allocations assume that no LAGC IFQ AMs are triggered. If a vessel exceeds its IFQ in a given FY, its IFQ for the subsequent FY will be reduced by the amount of the overage.

Because Framework 25 is going into effect after the March 1 start of FY 2014, we implemented the default FY 2014 IFQ allocations. These default FY 2014 IFQ allocations are higher than those set by Framework 25. To provide the ability for IFQ permit holders to transfer the entirety of their final FY 2014 quota, industry members requested that vessels have access to their full allocation at the beginning of the FY. Consequently, it is possible that scallop vessels could exceed their Framework 25 IFQ allocations during this interim period between March 1, 2014, and NMFS's implementation of the IFQ allocations in Framework 25. To account for this possibility, Framework 25 specifies the following payback measure for LAGC IFQ vessels: If a vessel transfers (i.e., temporary lease or permanent transfer) all of its allocation to other vessels prior to Framework 25's implementation (i.e., transfers more than it is ultimately allocated for FY 2014), the vessel that transferred in the pounds will receive a pound-for-pound deduction in FY 2014 (not the vessel that leased out the IFQ). This is the identical process that NMFS took at the start of last year (FY 2013) to account for lower allocations that will be implemented mid-year. Examples on how these payback measures would be applied are available in the preamble to the proposed rule. LAGC permit holders have been notified of these potential payback provisions.

The onus is on the vessel owners to have a business plan to account for the mid-year adjustments in light of these payback measures. We sent a letter to IFQ permit holders providing both March 1, 2014, IFQ allocations and Framework 25 proposed IFQ allocations so that vessel owners know how much they can transfer to avoid any overages incurred through transferring full allocations prior to the implementation of Framework 25. We have explained the consequences of owners' leasing decisions that involve full allocations that will be reduced under Framework 25.

2. Sub-ACL for LA Scallop Vessels with IFQ Permits. For LA scallop vessels with IFQ permits, this action sets a 220,286-lb (99.9-mt) ACL for FY 2014 and an initial 255,210-lb (116-mt) ACL for FY 2015 (Table 1). We calculate IFQ allocations by applying each vessel's IFQ contribution percentage to these ACLs. These allocations assume that no LAGC IFQ AMs are triggered. If a vessel exceeds its IFQ in a given FY, its IFQ for the subsequent FY will be reduced by the amount of the overage.

If a vessel fishes all of the scallop IFQ it receives at the start of FY 2014, it will incur a pound-for-pound overage deduction that will be applied against its FY 2015 IFQ allocation, along with any other overages incurred in FY 2014, as part of the individual AM applied to the LA vessels with LAGC IFQ permits. These vessels cannot participate in the IFQ transfer program, so transferring in more quota is not an option.

3. LAGC IFQ Trip Allocations and Possession Limits for Scallop Access Areas. Table 4 outlines the total number of FY 2014 LAGC IFQ fleetwide access area trips. Once the total number of trips is projected to be fished, we will close that access area to LAGC IFQ vessels for the remainder of FY 2014.

To make up for the fact that the IFQ vessels will not be able to access CA2, the Council specified in Framework 25 to include 5.5 percent of the CA2 available TAC in setting LAGC IFQ fleetwide access area trip allocations, essentially shifting those CA2 trips to other access areas closer to shore, so that LAGC IFQ vessels will have the opportunity to harvest up to 5.5 percent of the overall access area TAC, not just that available in areas open to them. Specifically, this action will equally divide 226 trips that would have been allocated to CA2 into the other 2 areas (DMV and NLS), adding 113 additional trips per area.

In order to preserve appropriate access area allocations, there will be no access area trips allocated to LAGC IFQ vessels under FY 2015 default measures. The next framework that will replace these FY 2015 default measures will include the FY 2015 access area allocations based on updated scallop projections. If Framework 26 is delayed past March 1, 2015, LAGC IFQ scallop vessels will be restricted to fishing their IFQ allocations in open areas until final FY 2015 specifications are implemented.

4. NGOM TAC. This action sets a 70,000-lb (31,751-kg) annual NGOM TAC for FYs 2014 and 2015. The allocation for FY 2015 assumes that there are no overages in FY 2014, which will trigger a pound-for-pound deduction in FY 2015 to account for the overage.

5. Scallop Incidental Catch Target TAC. This action sets a 50,000-lb (22,680-kg) scallop incidental catch target TAC for FYs 2014 and 2015 to account for mortality from this component of the fishery, and to ensure that F-targets are not exceeded.

Restrictions to the DMV

1. Seasonal Restriction

Framework 25 allows all scallop vessels to fish their FY 2014 DMV trips from June 16, 2014 until September 15, 2014. The closure of DMV following the 3-month fishery reduces mortality by concentrating harvest in the area when meat yields are the highest.

2. Crew Limit Restrictions

In an effort to protect small scallops and discourage vessels from highgrading (discarding smaller scallops in favor of larger ones), Framework 25 imposes a crew limit of seven individuals per LA vessel in DMV. If a vessel is participating in the small dredge program it may not have more than five people on board.

Unharvested Pounds in Closed Area 1

1. FY 2012

Towards the end of FY 2012 and into FY 2013, catch rates in CA1 began to drop below profitable levels. Many vessels were unable to harvest the pounds associated with their CA1 trips. This action allows unused pounds associated with FY 2012 CA1 trips to be to be harvested by some of those vessels in CA1 when it reopens in the future. For FY 2012 CA1 trips, this opportunity is limited to vessels that submitted a broken trip adjustment sheet and qualified for a compensation trip.

2. FY 2013

Because catch rates had not yet begun to fall in CA1 during development of the FY 2013 specifications, Framework 24 allocated an additional 118 trips into CA1 in FY 2013. Most of the vessels allocated CA1 FY 2013 trips were unable to fish some or any of their trips. Framework 25 allows unharvested pounds associated with FY 2013 CA1 trips to be harvested by the vessel in CA1 when it reopens in the future. Because the potential for this provision had been discussed throughout the year, for FY 2013 CA1 trips, vessels are not required to submit a broken trip adjustment sheet to receive the opportunity to harvest these unused pounds. Instead, NMFS will determine which vessels have scallop pounds left to harvest and will inform vessel owners after Framework 25 is implemented.

Any CA1 pounds that will be allocated to vessels from FYs 2012 or 2013 to be harvested in a future FY will come off that future FY's LA sub-ACL. The Scallop FMP sets an ACL for every FY based on the most up-to-date surveys, and we cannot allocate the fleet any additional scallops above this limit even if they are “carried over” from prior years.

Addition of Southern New England/Mid-Atlantic (SNE/MA) Windowpane Flounder AMs

Framework Adjustment 48 to the Northeast Multispecies FMP (78 FR 26118, May 3, 2013) established a sub-ACL for SNE/MA windowpane flounder. This action contains two measures for AMs to respond to and prevent, reactive and proactive, respectively, overages in the SNE/MA windowpane flounder sub-ACL.

1. Reactive AM

This action adds a reactive AM for SNE/MA windowpane flounder. If the scallop sub-ACL for the scallop fishery is exceeded, the area west of 71° W. Long., excluding Mid-Atlantic access areas (HCA, ETA, and DMV), will be considered the SNE/MA windowpane flounder gear restricted area. Scallop vessels participating in the DAS or LAGC IFQ scallop fisheries would be required to comply with the gear restrictions described below for the months of February or February through March, depending on the severity of the overage (Table 5).

When a vessel is subject to the SNE/MA windowpane flounder accountability measure gear restricted area, the vessel will be required to fish with dredges where:

(1) The maximum number of rows of rings in the apron of the topside does not exceed five rows; and

(2) The maximum hanging ratio for a net, net material, or any other material on the top of a scallop dredge (twine top) possessed or used by vessels fishing with scallop dredge gear does not exceed 1.5:1 overall. An overall hanging ratio of 1.5:1 means that the twine top is hung alternating 2 meshes per ring and 1 mesh per ring (counted at the bottom where the twine top connects to the apron), for an overall average of 1.5 meshes per ring for the entire width of the twine top. For example, an apron that is 40 meshes wide (not including any ring in the side pieces) will only be able to use a twine top with 60 or fewer meshes so that the overall ratio of meshes to rings did not exceed 1.5 (60 meshes/40 rings = 1.5) (copies of a figure depicting this gear are available from the Regional Administrator upon request).

2. Proactive AM

In addition to the reactive AM described above, this action implements a gear restriction in the area west of 71° W. Long., excluding Mid-Atlantic access areas that are meant to help reduce bycatch of windowpane flounder and other species of flatfish. This is considered to be a proactive AM because it may avoid the exceeding of the sub-ACL for this stock. The specific gear restriction requires dredge vessels to have a maximum of seven rows in the apron. Current twine top restrictions state that a dredge greater than 8 feet (2.44 m) in width, must have at least 7 rows of rings between the terminus of the dredge (clubstick) and the twine top. However, recent gear research has shown that a shorter apron, for example five rows of rings from the clubstick, may reduce flatfish bycatch.

This measure applies to the area west of 71° W. Long., excluding Mid-Atlantic access areas, year-round. This measure may reduce flatfish bycatch by requiring vessels that fish in the AM area all year to use a maximum of seven rows, and enable vessels to voluntarily fish with an even shorter apron, less than seven rings, to proactively reduce flatfish bycatch in any area or season. This measure applies to all scallop dredge vessels (LA and LAGC IFQ).

Other Clarifications and Modifications

This rule includes several revisions to the regulations to address text that is duplicative and unnecessary, outdated, unclear, or otherwise could be improved. NMFS sets these changes consistent with section 305(d) of the MSA. For example, we are removing regulations that referred to payback measure from FY 2013 due to the delayed implementation of Framework 24. We are revising the regulations to remove measures intended by previous rulemaking, and to provide more ease in locating these regulations by updating cross references.

This action also implements revisions that will clarify the intent of certain regulations. For example, and we are adding clarifying language to the IFQ quota transfer regulations to make it clear that the intent of Amendment 11 to the Scallop FMP was to allow vessels in confirmation of permit history to transfer IFQ. Additionally, regulations are unclear regarding how a LAGC IFQ vessel's potential carryover is calculated. We are clarifying that a vessel's potential carryover is 15 percent of the vessel's original IFQ and the total of transferred in minus transferred out IFQ. As such, NMFS clarifies these regulations. NMFS also adds more description to some access area and habitat closed area coordinates to clarify the boundaries of those areas.

Comments and Responses

NMFS received two comment letters in response to the proposed rule from: Fisheries Survival Fund (FSF), a scallop fishing industry representative, and one individual. Commenters raised four relevant issues relating to the proposed Framework 25 measures, and we provide responses below. NMFS may only approve, disapprove, or partially approve measures in Framework 25, and cannot substantively amend, add, or delete measures beyond what is necessary under section 305(d) of the MSA to discharge its responsibility to carry out such measures.

Comment 1: One commenter stated that FY 2014 scallop quotas should be reduced by 25 percent. The commenter provided no rationale for why the selected quotas should be reduced in the manner suggested.

Response: The reasons presented by the Council and NMFS for recommending the quota allocations for FYs 2014 and 2015, which we discuss in the preambles to both the proposed and final rules, are based on the best scientific information available and are consistent with the control rules outlined in Amendment 15's ACL process. Scallops are currently not considered overfished or subject to overfishing. Sufficient analysis and scientific justification for NMFS's action in this final rule are contained within the supporting documents.

Comment 2: FSF had concerns regarding timing for implementation of the proposed specifications and suggested that we proceed with the final rule and implementation of this action as quickly as possible, with the exception of the proactive SNE/MA windowpane flounder AM to provide vessel owners a small amount of time to complete gear modifications and ensure compliance with the new rules.

Response: NMFS agrees with their timing suggestions and will be implementing all measures upon publication of this final rule, with the exception of the SNE/MA windowpane flounder proactive AM, which will have a 30-day delay in effectiveness.

Comment 3: FSF commented that when CA1 trips were cut short in 2012 and 2013, fishery participants had a clear expectation that the remaining portions of these trips would be available for harvest in addition to regular allocations when CA1 reopens and not deducted from the LA fishery's sub-ACL for the year in which they are used as the proposed rule suggests.

Response: The EA and proposed rule for Framework 25 are both clear that CA1 pounds carried over from 2012 or 2013 will be deducted from the LA fishery's sub-ACL for the year in which they are used and not additional catch above the LA sub-ACL. NMFS reiterated this requirement to industry representatives and Council members throughout the development of Framework 25. The overfishing definition approved in Amendment 15 includes a principle to set target catch so that spatially averaged F target is limited to 0.28 for all areas combined (open and closed areas). Any fishing effort that results from the allocation carried over from CA1 trips in fishing years 2012 and 2013 must be included in the biologically-based catch limit for the year in which we allocate CA1 makeup trips.

Comment 4: FSF commented that the regulatory language in the proposed rule describing the process for implementing SNE/MA windowpane flounder AMs is ambiguous and could be interpreted to require that the AM be implemented immediately upon determination of the overage instead of the year following the overage.

Response: This action does not adjust the existing language for how we implement AMs in the scallop FMP. Framework 25 references existing regulations found at § 648.90(a)(5)(iv) that were developed in Framework Adjustment 23 to the Atlantic Sea Scallop FMP (77 FR 20728, April 6, 2012). However, in response to this comment, we made minor edits to the regulatory language in § 648.65(b)(2) and § 648.65(c)(1) to help clarify the Council's intent that AMs will not be implemented in the year of an overage.

Changes From Proposed Rule to Final Rule

In response to a comment received during the public comment period, we made minor edits to the regulatory language in § 648.65(b)(2) and § 648.65(c)(1) to help clarify the Council's intent that SNE/MA windowpane flounder AMs will be implemented in the year following an overage.

Classification

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the MSA, and other applicable law.

The Office of Management and Budget has determined that this rule is not significant according to Executive Order 12866.

This final rule does not contain policies with federalism or “takings” implications, as those terms are defined in E.O. 1312 and E.O. 12630, respectively.

This rule does not contain a collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act.

The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for the scallop fishery and certain fish stocks constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness and to make the majority of Framework 25 final measures effective June 16, 2014. The only exception to this that the proactive AM for SNE/MA windowpane flounder found in § 648.51(b)(4)(iv)(B) is effective July 16, 2014, in order to give vessels the opportunity to modify their gear to comply with regulations.

If there is a 30-day delay in implementing the measures in Framework 25, the scallop fleet will continue under the current default access area, DAS, IFQ, RSA and OBS allocations. These default allocations were purposely set to be more conservative than what would eventually be implemented under Framework 25. Under default measures, each full-time vessel has 23 DAS and no access area trips. This action will provide full-time vessels with an additional 8 DAS (31 DAS total) and two 12,000 lb access area trips. Further, the catch rates and meat quality in DMV will be best in June and July, so the longer we delay access to DMV, the less productive the area will be. Delaying the implementation of Framework 25 for 30 days would be contrary to the public interest because continuing with these lower allocations would negatively impact the access area rotation program, as well as the scallop fleet economically.

NMFS was unable to allow for a 30-day delay in effectiveness for Framework 25 rulemaking due to the Council's April 2014 submission of Framework 25. However, NMFS must also consider the need of the scallop industry to have prior notice in order to make the necessary preparations to comply with the gear changes required by the SNE/MA windowpane flounder proactive AM. For these reasons, NMFS has determined that implementing these measures immediately, and with a 30-day delay in effectiveness of the SNE/MA windowpane flounder proactive AM, would have the greatest public benefit.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), completed a final regulatory flexibility analysis (FRFA) in support of Framework 25 in this final rule. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, a summary of the analyses completed in the Framework 25 EA, and this portion of the preamble. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 25 and in the preamble to the proposed and this final rule, and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and a copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES).

An IRFA has been prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA consists of Framework 25 analyses, its draft IRFA, and the preamble to this action.

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

NMFS received no public comments directly in response to the IRFA prepared for the proposed rule.

Description and Estimate of Number of Small Entities to Which the Final Rule Will Apply

Framework 25 measures affect all vessels with LA and LAGC scallop permits. The Framework 25 document provides extensive information on the number and size of vessels and small businesses that will be affected by these regulations, by port and state (see ADDRESSES). There were 313 vessels that obtained full-time LA permits in 2012, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits. NMFS issued 278 LAGC-IFQ permits in 2012. Since all scallop permits are limited access, vessel owners would cancel permits only if they decide to stop fishing for scallops on the permitted vessel permanently or if they transfer IFQ to another IFQ vessel and permanently relinquish the vessel's scallop permit. This is not likely to occur due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but would likely be fewer than 10 permits per year.

The RFA defines a small business in shellfish fishery as a firm that is independently owned and operated and not dominant in its field of operation, with receipts of up to $5 M annually. In scallop FMP actions prior to Framework 24, each vessel was considered a small business entity and was treated individually for the purposes of the RFA analyses. Since Framework 24, the Council recognizes ownership affiliations and makes very basic connections between multiple vessels to single owners and makes distinctions between large business entities and small business entities, as defined by the RFA. Every LA vessel has multiple owners and some owners of a particular vessel have ownership interest in other vessels with different entities. There have been 132 distinct business entities (23 larger business entities and 109 small business entities) in the scallop limited access fishery as of FY 2012, slightly lower than the number of businesses in FY 2010. The primary industry of all these individual businesses was identified as “scallop” fishery, because their revenues from the scallop fishery exceeded the revenues from all other species. Scallop revenue averaged over 96-percent of the total revenue during FYs 2010-2012 for the businesses with LA permits. The sum of annual gross receipts from all scallop vessels operated by the majority of the multiple boat owners (but not all) would exceed $5 M in 2011 and 2012, qualifying them as “large” entities. From FY 2010 to FY 2012, 193 vessels, including LA and LAGC permitted-vessels, belonged to 23 large business entities that grossed more than $5 M annually in scallop revenue. In the same year, 155 vessels belonged to 109 small business entities (ownership ranged from 1 to 4 vessels) that grossed less than $5 M a year in scallop revenue.

The Office of Advocacy at the Small Business Administration (SBA) suggests two criteria to consider in determining the significance of regulatory impacts on small entities; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. The changes in profits, costs, and net revenues due to Framework 25 are not expected to be disproportional for small versus large entities since each vessel will receive the same number of open areas DAS and access area trips allocations according to the categories they belong to (i.e., the allocations for all full-time vessels are identical, and the allocations for the part-time and occasional vessels are proportional to the full-time allocations, 40 percent and 8.33 percent of the full-time allocations, respectively). As a result, this action has proportionally similar impacts on revenues and profits of each vessel and each multi-vessel owner compared both to status quo (i.e., FY 2013) and no action levels. Therefore, this action is not expected to have disproportionate impacts or place a substantial number of small entities at a competitive disadvantage relative to large entities. A summary of the economic impacts relative to the profitability criterion is provided in the proposed rule under “Economic Impacts of Proposed Measures and Alternatives.”

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

During the development of Framework 25, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. Final actions and alternatives are described in detail in Framework 25, which includes an EA, RIR, and IRFA (available at ADDRESSES). The measures implemented by this final rule minimize the long-term economic impacts on small entities to the extent practicable. Reasonable alternatives, particularly for the prescribed catch limits, are limited because of the legal requirements to implement effective conservation measures which necessarily may result in negative impacts that cannot be effectively mitigated. Catch limits are fundamentally a scientific calculation based on the scallop FMP control rules and SSC approval, and, therefore are legally limited to the numbers contained in this rule. Moreover, the limited number of alternatives available for this action must be evaluated in the context of an ever-changing fishery management plan that has considered numerous alternatives over the years and have provided many mitigating measures applicable every fishing year.

Allocations for the LA and LAGC Scallop Fleets

The open area DAS allocations are expected to prevent overfishing in open areas. The Framework 25 analysis of the fleet-wide aggregate economic impacts indicate that the selected alternative and all other alternatives are expected to be positive both in the short (2014) and the long term compared to the No Action alternative. The No Action alternative would have allocated 23 DAS to the fleet and no Access Area trips for FY 2014. The selected alternative (Alternative 4) will result in highest landings (17,463 mt), revenues ($427.8 M) and total economic benefits ($429.9 M) in 2014 among all the alternatives considered. The total economic benefits of this alternative exceeds the No Action levels by $151.8 in FY 2014 and by $6.5 M ($26.3M) over the long-term if a 7-percent (3-percent) discount rate was used to estimate the present value of cumulative benefits. However, long-term economic benefits under the preferred alternative are less than the benefits for Alternative 3 using a 7-percent discount rate, and less than the benefits for Alternative 2, Alternative 3 and Alternative 5 using a discount rate of 3-percent to estimate cumulative present value of net economic benefits. These alternatives were not selected because the short-term economic benefits of Alternative 4 outweighed those of these alternatives. Alternative 6 was not selected because the Council did not want to further increase the effort in the open area.

In summary, the economic impacts of the selected LA and LAGC allocation measures are expected to have positive impacts on the revenues and profits of the small businesses in the scallop industry in FY 2014, compared to the No Action alternative and similar impacts compared to FY 2013 conditions. Over the long term, the economic impacts of the selected alternative on the majority of small business entities in scallop fishing industry are projected to be positive when compared to No Action.

Measures To Address Unused CA1 Trips

This action allows rollover of unused FY 2012 and FY 2013 CA1 trips a future FY. This action will have positive economic impacts on vessels with unused trips by allowing them to land their CA1 allocations in a future year and low negative impacts on the rest of the fishery since this rollover would likely result in reduction in allocations in future years for the fleet. A No Action Alternative was considered for this measure, but it was rejected because it would prevent a vessel from fully utilizing its allocation if it had, for example, a broken trip, which would have a negative impact on the revenues and profits if those vessels with unused trips.

This measure will impact future access for the LA fishery overall since this unused catch will need to be accounted for within the LA sub-ACL. Future access in and around CA1 will be lower for the overall fleet compared to No Action. Spreading access over 2 years would lower those negative impacts somewhat although not totally. Therefore, the economic impacts of the preferred alternatives are positive for those vessels that are allowed to use their unused trips in a future year and would be low negative on the remainder of the fleet with no unused trips.

NGOM TAC

This action sets the NGOM TAC at 70,000 lbs for FY 2014. The selected action (No Action alternative) specifies a 70,000-lb (31,751-kg) TAC for the NGOM and will not have additional economic impacts on the participants of the NGOM fishery. The NGOM TAC has been specified at this level since FY 2008, and the fishery has harvested less than 60 percent of the TAC in each FY; therefore, the TAC has no negative economic impacts. There are no alternatives that would generate higher benefits for NGOM scallop vessels. The alternative for setting the NGOM TAC at 58,000 lb (26,308 kg) is expected to reduce the chance of excess fishing in Federal waters in the NGOM management area, but considering that NGOM vessels have never exceeded the TAC, neither alternative is expected to impact vessels. Thus, negligible economic impacts are expected from the No Action alternative and the other NGOM Alternative.

SNE/MA Windowpane Flounder AMs

This action implements a gear restricted area for a specified period of time with higher bycatch rates of SNE/MA windowpane flounder if the scallop fishery exceeds its sub-ACL and the entire ACL is exceeded, or the sub-ACL is exceeded by more than 50 percent. The AM area is in all waters west of 71° W. Long., not including scallop access areas. If AMs are triggered and the overage by the scallop fishery is estimated to be >0 and <20-percent the AM would be in place for the month of February. If the overage is over 20 percent the AM season would be for the months of February and March. Further, this action implements a proactive AM that requires all scallop dredge vessels (LA and LAGC) to fish with a maximum of seven rows of rings in the apron of their dredge in waters west of 71° W. Long., excluding the Mid-Atlantic access areas to reduce the chance the fishery would exceed the sub-ACL.

Alternative 2 considered area closures for a windowpane flounder reactive AM. Alternative 2 was not selected because the scallop industry prefers gear restricted areas as opposed area closures and the gear restricted area. This allows them to continue to fish throughout the year and have a positive economic impact compared to area closures. Further, the larger gear restricted area in Alternative 3 (the selected alternative) presented a more enforceable and less confusing AM compared to Alternative 2.

Overall, this rule minimizes adverse long-term impacts by ensuring that management measures and catch limits result in sustainable fishing mortality rates that promote stock rebuilding, and as a result, maximize yield. The measures implemented by this final rule also provide additional flexibility for fishing operations in the short-term. This final rule implements several measures that enable small entities to offset some portion of the estimated economic impacts. These measure include: Prorating LAGC IFQ access area trips to incorporate CA2; temporarily modifying a current principle used for setting target catch levels in this fishery to provide additional DAS; implementing a reactive AM that employs a gear restriction as opposed to an area closure; allowing full-time vessels to exchange their DMV trip for 5 DAS; and allowing vessel to land unharvest CA1 pounds in a future FY.

This final action prorates LAGC IFQ trips proportionally in all open access areas excluding CA2, with positive economic impacts on the LAGC vessels because they will be able to use CA2 trips in areas closer to the shore with lower trip costs, and will offset some of the negative impacts of the reduced FY 2013 allocation.

This action also temporarily modifies a current principle used for setting target catch levels in this fishery. Specifically, this action allows open area F to exceed threshold (0.38) for FY 2014 only to provide additional DAS to vessels in a year when catch available in access areas is lower than previous years.

Unlike the current limited access AMs that close areas for up to a full FY, the SNE/MA windowpane flounder AM that will be implemented with this final rule allow for fishing to continue in the stock area but with further gear restrictions. The Council developed this measure to allow vessels to continue to target scallops with a gear that avoided flatfish at a greater rate than standard scallop dredge gear.

This final rule also allows full-time vessels to exchange their DMV trip for 5 additional DAS. Because the viability of the DMV area was unknown at the time of Framework 25's development, this action gives vessels the flexibility exchange their DMV trip for 5 DAS if catch rates in DMV are not profitable.

By allowing vessel to land unharvest CA1 pounds in a future FY, vessels that unexpectedly were unable to harvest pounds from CA1 in recent years, will be given the opportunity to offset any unharvested catch in a future FY when CA1 reopens.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the scallop fishery. The guide and this final rule will be available upon request.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This action contains no new collection-of-information, reporting, or recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal law.

This action contains no other compliance costs. It does not duplicate, overlap, or conflict with any other Federal law.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as follows:

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

2. In § 648.10, paragraph (f)(4)(i) is revised to read as follows:

3. In § 648.14:

a. Revise paragraphs (i)(1)(iii)(A)( 3) introductory text, (i)(2)(ii)(B)(3), (i)(2)(ii)(B)(5), (i)(2)(ii)(B)(6), and (i)(2)(ii)(B)(9);

b. Add paragraph (i)(2)(ix); and

c. Remove and reserve paragraph (i)(4)(iii)(D).

The additions and revisions read as follows:

4a. In § 648.51, effective June 16, 2014, paragraph (b)(3)(iii) is removed, and paragraphs (b)(4)(iv) introductory text, (b)(4)(iv)(A), (b)(5)(ii)(A) introductory text, (b)(5)(ii)(C), (c) introductory text, (c)(1), (c)(2), and (e)(3)(i), are revised to read as follows:

4b. In § 648.51, effective July 16, 2014, paragraph (b)(4)(iv)(B) is revised to read as follows:

5. In § 648.53:

a. Revise paragraphs (a) introductory text, (a)(1), (a)(3), (a)(4)(i), and (a)(4)(ii);

b. Revise paragraphs (b)(1)(i) and (ii), and (b)(4) introductory text;

c. Add paragraph (b)(4)(i); and

d. Revise paragraphs (g)(1) introductory text, (h)(2)(v)(A), (h)(5)(i), (h)(5)(ii)(A), (h)(5)(iii), (h)(5)(iv) introductory text, (h)(5)(iv)(A), and (h)(5)(iv)(D).

The additions and revisions read as follows:

6. In § 648.55, paragraph (d) is revised to read as follows:

7. Section 648.57 is revised to read as follows:

8. In § 648.58 paragraph (b) is revised to read as follows:

9. In § 648.59, paragraphs (b), (c), (d), and (e) are revised to read as follows:

10. In § 648.60:

a. Revise paragraphs (a) introductory text, (a)(3)(i), and (a)(5)(i);

b. Add paragraph (a)(3)(iii); and

c. Revise paragraphs (c)(5)(ii), (c)(5)(v), (e), and (g).

The additions and revisions read as follows:

11. Section 648.61 is revised to read as follows:

12. In § 648.64, paragraphs (a), (b)(1), (c)(1)(i), (c)(2)(ii), (c)(2)(iii), and (c)(2)(iv) are revised to read as follows:

13. Section 648.65 is added to subpart D to read as follows: