Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 23

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action approves Framework Adjustment 23 to the Atlantic Sea Scallop Fishery Management Plan (Framework 23) and implements its measures. Framework 23 was developed and adopted by the New England Fishery Management Council and includes measures to: Minimize impacts on sea turtles through the requirement of a turtle deflector dredge; improve the effectiveness of the scallop fishery's accountability measures related to the yellowtail flounder annual catch limits; adjust the limited access general category Northern Gulf of Maine management program; and modify the scallop vessel monitoring system trip notification procedures to improve flexibility for the scallop fleet.

DATES:

Effective May 7, 2012.

ADDRESSES:

An environmental assessment (EA) was prepared for Framework 23 that describes the action and other considered alternatives and provides a thorough analysis of the impacts of these measures and alternatives. Copies of Framework 23, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950.

FOR FURTHER INFORMATION CONTACT:

Emily Gilbert, Fishery Policy Analyst, 978-281-9244; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

The New England Fishery Management Council (Council) adopted Framework 23 on September 27, 2011, initially submitted it to NMFS on October 25, 2011, for review and approval, and submitted a revised final framework document on November 30, 2011. Framework 23 includes measures that require vessels fishing in the Atlantic Sea Scallop fishery to use a turtle deflector dredge (TDD), including where, when, and to which vessels this TDD requirement applies. It also revises the current accountability measures (AMs) related to the yellowtail flounder (YTF) annual catch limits (sub-ACLs) for the Georges Bank (GB) and Southern New England/Mid-Atlantic (SNE/MA) YTF stock areas. These modifications only alter the months when a closure applies and do not change the locations for these seasonal closure AMs. Framework 23 also changes how scallop landings are applied to the Northern Gulf of Maine Management (NGOM) total allowable catch (TAC) when harvested by federally NGOM-permitted vessels. Finally, Framework 23 implements procedural changes to when and where a vessel can declare a scallop trip through vessel monitoring systems (VMS).

The Council reviewed the Framework 23 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and deemed them to be necessary and consistent with section 303(c) of the Magnuson-Stevens Act. The proposed rule for Framework 23 published in the Federal Register on January 3, 2012 (77 FR 52), with a 15-day public comment period that ended January 18, 2012. Three comments were received on the proposed measures.

The final Framework 23 management measures are described below. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

Requirement To Use a TDD

This action implements a requirement that all limited access (LA) vessels (regardless of permit category or dredge size), and limited access general category (LAGC) Individual Fishing Quota (IFQ) vessels that fish with a dredge with a width of 10.5 ft (3.2 m) or greater, use a TDD in the Mid-Atlantic (west of 71° W long.) from May through October.

The TDD is designed to reduce injury and mortality of sea turtles that come into contact with scallop dredges on the sea floor by deflecting sea turtles over the dredge frame and dredge bag. The TDD includes five modifications to the standard commercial dredge frame:

(1) The cutting bar must be located in front of the depressor plate.

(2) The angle between the front edge of the cutting bar and the top of the dredge frame must be less than or equal to 45 degrees.

(3) All bale bars must be removed, except the outer bale (single or double) bars and the center support beam, leaving an otherwise unobstructed space between the cutting bar and forward bale wheels, if present. The center support beam must be less than 6 in (15.24 cm) wide. For the purpose of flaring and safe handling of the dredge, a minor appendage not to exceed 12 in (30.5 cm) in length may be attached to the outer bale bar.

(4) Struts must be spaced no more than 12 in (30.5 cm) apart from each other.

(5) The TDD must include a straight extension (“bump out”) connecting the outer bale bars to the dredge frame. This “bump out” must exceed 12 in (30.5 cm) in length.

Each element of this dredge is based on direct field research that has been conducted over several years. The combination of these modifications is designed to reduce the likelihood of a sea turtle passing under the dredge frame when the gear is on the seafloor, which could result in the sea turtle being crushed or injured. Available information indicates that these modifications cumulatively benefit sea turtle conservation, while not compromising the structural integrity of the dredge design and scallop yield. These TDD components can be modified by future actions, if additional modifications are developed to further minimize impacts on sea turtles or improve the effectiveness of these measures.

This action requires that all LA vessels, regardless of permit category or dredge width, and all LAGC IFQ vessels that fish with dredge gear greater than or equal to 10.5 feet (3.2 m) in width in the applicable area and season, use a TDD. Because the bump out modification has not yet been fully tested on small dredges, Framework 23 exempts LA scallop vessels that use dredges with a width less than 10.5 ft (3.2 m) from that requirement of the TDD. Thus, LA vessels fishing with dredges less than 10.5 ft (3.2 m) in width only have to use a TDD with the first four modifications listed above. If an LA vessel fishes with two dredges at a time, both of which are less than 10.5 ft (3.2 m) in width, neither dredge is required to have the bump out extension, even though the combined width of both dredges is greater than 10.5 ft (3.2 m). The bump out exemption does not apply to LAGC vessels that use dredges less than 10.5 ft (3.2 m) wide because such vessels are exempted from the requirement to use a TDD entirely, due to concerns of the financial burden that building a new dredge would have on these small day boats, which may have lower IFQ allocations. If an LAGC vessel fishes with two dredges, both of which are less than 10.5 ft (3.2 m) wide, neither dredge is required to comply with the TDD requirements, even though the combined width of both dredges is greater than 10.5 ft (3.2 m).

Due to the time it will take manufacturers to develop TDDs for the scallop fishery, this measure will be effective 1 year after the effective date of Framework 23 (e.g., if Framework 23 is effective on March 15, 2012, the TDD regulations would be effective on March 15, 2013, and TDDs would be required to be used starting May 1, 2013). This delay also provides vessel operators and crew time to fish with the new dredge design before the TDD season begins, should they choose to do so.

This TDD requirement is an important measure to ensure compliance with the second reasonable and prudent measure (RPM#2) and accompanying terms and conditions (T/C) of the 2008 Biological Opinion (2008 Biological Opinion) on the Scallop FMP. RPM#2 states that “NMFS must continue to investigate and implement, as appropriate, gear modifications for scallop dredge and trawl gear to reduce the capture of sea turtles and/or the severity of the interactions that occur.” Along with effort restrictions in the Mid-Atlantic, which are required under the first RPM of the 2008 Biological Opinion, and previously implemented regulations requiring the use of chain mate (50 CFR 223.206(d)(11)), TDDs are expected to provide an additional conservation benefit to sea turtles by reducing the severity of any interactions that occur.

Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs

1. Revised AM Closure Schedules

This action also revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will occur during months with the highest YTF catch rates, rather than being in place for consecutive months beginning at the start of the fishing year (FY). These AM adjustments still only apply to LA vessels. Table 1 compares the current SNE/MA AM schedule with the new Framework 23 schedule. The major difference for SNE/MA is that the Framework 23 closure schedule occurs in the early spring and winter first, rather than starting with the spring and summer, as under the current AM for that stock area. AMs will occur in the same FY, with the winter closures occurring at the end of the FY.

Tables 2 and 3 compare the current GB AM schedules with the new Framework 23 schedules. The GB AM schedule is still complex because the extent of the closure period depends on whether or not Closed Area II Scallop Access Area (CAII) is open in the FY following a GB sub-ACL overage. In general, the major difference is that the current GB AM closures begin in the fall, when GB YTF catch rates are highest, followed by the winter months. The updated GB schedule will begin the closures at a time of year when scallop meat weights are lowest, thus impacts on the scallop resource and fishery should be lower compared to closing the area beginning in March through the spring and summer when scallop meat weights are larger. Similar to the Framework 23 SNE/MA schedule, all closures will occur in the same FY.

2. Re-Evaluating AM Determination Mid-Year

This action modifies the YTF AM regulations by allowing NMFS to re-examine the implementation of an AM once the FY has ended and all data are available. After the end of a given FY, if available end-of-year data results in different projected YTF catch levels than those that determined the initial announcement of any AM triggering (e.g., the extent of the estimated overage was higher or lower than originally estimated, or that an AM should or should not have been triggered), NMFS will adjust the AM determination to reflect the best information available. Currently the only sub-ACLs allocated to the scallop fishery are for SNE/MA YTF and GB YTF, but the Council's intent is for this flexibility to apply to any species' sub-ACL, should they be implemented in the scallop fishery in the future.

On or around January 15 of each year, the Regional Administrator is required to determine if the bycatch sub-ACLs are projected to be exceeded for that FY. If a sub-ACL is exceeded, a closure will be implemented in the following FY based on the overage schedule specified in this final rule. Several months after an FY is complete, a final estimate of YTF catch in the scallop fishery will be completed when all observer and scallop catch data are available. The timing of the final YTF year-end estimate is ultimately based on the availability of the observer data for a given FY. Ideally, observer data in open areas will be available 90 days after the completion of an observed trip. As such, the earliest month that the complete FY observer data would be available is likely June of the following FY. If the final estimate of YTF catch differs from the original estimate, this action gives the Regional Administrator the authority to revise the AM for the YTF sub-ACLs based on the final estimates. Due to the timing of the current AMs, there may not always be an opportunity to adjust AMs if the seasonal closure has already occurred during that FY, but the intent is to be more flexible to incorporate updated information when possible. This action does not give the Regional Administrator authority to impose AMs outside the scope of approved measures.

In November 2011, the Council adopted Framework Adjustment 47 (Framework 47) to the Northeast (NE) Multispecies FMP. Under Framework 47, the YTF AMs applicable to the scallop fishery would only be triggered if either the entire YTF ACL for a given stock area (SNE/MA or GB) is exceeded, or the scallop fishery exceeds its ACL by 50 percent or more. For example, if the entire YTF ACL for SNE/MA is exceeded in a given FY, and the scallop fishery exceeded its sub-ACL by 1.5 percent, an AM would be triggered for the following scallop FY based on the new Framework 23 schedule (i.e., a portion of SNE/MA would close in March and April). However, if the scallop fishery exceeded its sub-ACL by 1.5 percent but the total ACL for SNE/MA was not exceeded, no AM would be triggered in the scallop fishery for the following FY (i.e., an AM would only be triggered if the scallop FY exceeded its sub-ACL by 150 percent). The proposed rule for Framework 47 (77 FR 18179) published in the Federal Register on March 27, 2012, with the public comment period ending on April 11, 2012. NMFS anticipates that Framework 47, if approved, would be effective in May 2012.

Modifications to the NGOM Management Program

To address some concerns regarding the management of the NGOM, this action allows federally permitted NGOM vessels to declare a state waters-only trip within the NGOM and not have those landings applied to the Federal NGOM TAC. If the vessel decides to fish exclusively in state waters within the NGOM area (i.e., MA, NH, and ME state waters), on a trip-by-trip basis, the scallop catch from state water only trips will not be applied against the Federal NGOM TAC. On a trip-by-trip basis, each NGOM vessel can decide which area it is going to fish in (i.e., Federal or state NGOM trip). A NGOM vessel may still fish in both state and Federal waters on a single trip, but that vessel will need to declare a Federal trip before leaving, and the entire catch from that trip will be applied to the Federal TAC, even if some of it was harvested in state waters.

Currently, NGOM and IFQ vessels that declare NGOM trips must have all landings applied to the Federal TAC, regardless of whether or not they were fishing in state or Federal waters of the NGOM. Although this action makes adjustments for NGOM-permitted vessels, the Council did not include a similar provision for IFQ vessels that fish in the NGOM. As a result, IFQ vessels will continue to have all of their landings applied to the NGOM TAC, as well as their IFQ allocations, when fishing in Federal or state waters within the NGOM.

Once the Federal TAC is closed, all federally permitted scallop vessels (i.e., LA, IFQ, and NGOM) are prohibited from fishing in any part of the NGOM until the next FY, unless they permanently relinquish their Federal NGOM permits and fish exclusively in state waters. This action does not change this provision for any scallop vessel, including NGOM vessels. NGOM vessels cannot declare state-only NGOM trips after the effective date of the Federal NGOM closure.

To date, the annual NGOM TAC of 70,000 lb (31.75 mt) has not been fully harvested in any FY, and most NGOM landings come from vessels fishing in state waters. Framework 23 does not change the NGOM hard TAC of 70,000 lb (31.75 mt). The Council will reevaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014.

Although this action applies to all NGOM permitted vessels, the ability for such vessels to fish in state waters within the NGOM (i.e., ME, NH, MA state waters) depends on whether or not such vessels have the necessary state permits to do so. In addition, NGOM permit holders still have to abide by the more restrictive possession limit of either their state or Federal NGOM scallop permit. This action does not exempt vessels from their Federal possession limit when fishing in state waters of the NGOM. To be exempt from Federal scallop possession limits, a state would have to apply for such exemption through the scallop state waters exemption program.

Adjustments to VMS Trip Notifications for Scallop Vessels

This action implements a measure that changes the current VMS trip declaration requirement for scallop vessels only, allowing them to declare a scallop trip anywhere shoreward of the VMS Demarcation Line, rather than from a designated port. Under current regulations, vessels that are involved in VMS fisheries (e.g., vessels with scallop, monkfish, multispecies, surfclam/quahog, and herring permits) must make their VMS trip declarations from inside a port. This action adjusts this process by allowing scallop vessels the authority to declare their scallop trips outside of a designated port, prior to crossing the VMS Demarcation Line and fishing, but does not change the trip declaration requirements for any other fishery. The Council's rationale for this alternative is to improve safety by eliminating the requirement that sometimes results in scallop vessels steaming into unfamiliar ports to declare their scallop trips before being able to fish. The Council may choose to address this issue in other VMS fisheries in future actions for those FMPs, and NMFS recommends that the Council discuss this further for other FMPs in order to be consistent, where possible, when addressing safety issues across all fisheries requiring VMS.

The Council has implemented this action for LA, LAGC IFQ, and LAGC NGOM vessels, although many of these scallop-permitted vessels will likely continue to declare from port, regardless of the option to do otherwise. The only vessels that will likely take advantage of this increased flexibility in trip declarations are the LA vessels declaring scallop DAS trips for fishing grounds that are far from their home port. These trips are what most commonly require a vessel to go into an unfamiliar port to declare into the DAS program because DAS begin to accrue once a vessel crosses to the seaward side of the VMS Demarcation Line and it is not possible, safe, or practicable to remain inside the VMS Demarcation Line throughout the steam to the fishing grounds. Because the current estimate of landings-per-unit-effort (LPUE) is calculated using DAS charged, this action does not change how LPUE is estimated, and increased catch is not expected.

Other Clarifications and Modifications

This action includes several revisions to the regulatory text to address text that is duplicative and unnecessary, outdated, unclear, or otherwise could be improved through revision. For example, there are terms and cross references in the current regulations that are now inaccurate due to the regulatory adjustments made through Amendment 15 rulemaking (i.e., references to “TAC” in some cases should now refer to “annual catch limits (ACLs)”). NMFS revises the regulations to clarify the terminology intended by Amendment 15 to the FMP (76 FR 43746, July 21, 2011), and to provide more ease in locating these regulations by updating cross references.

This action also clarifies the intent of certain regulations. For example, the VMS regulations are clarified in § 648.10 to more clearly indicate the reporting requirements for various aspects of the scallop fishery (e.g., pre-landing notification requirements and state water exemption trip declaration requirements), to reflect the instructions currently available through on-board VMS units. Additionally, there are currently prohibitions in § 648.14 that imply that NGOM and incidental scallop vessels may retain more scallops than their allowable possession limit if they are assigned industry-funded observers during scallop trips. This text is unnecessary and confusing, because NGOM and incidental scallop vessels are not part of the scallop industry-funded observer program, and therefore would not be assigned such observers. As such, NMFS removes these references from the regulations. NMFS also clarifies how LAGC vessels are charged fees by observer providers in § 648.14, since such an explanation exists for LA vessels. A restriction on transferring IFQ in § 648.53(h)(5)(iii) is also clarified to allow vessels to complete multiple IFQ transfers during the course of a FY, as long as the transfers are for a portion of the IFQ and do not exceed the total yearly allocation. NMFS received some applications for permanent transfers of 100 percent of a vessel's IFQ in the same FY that IFQ was already leased from the same vessel. While this activity remains prohibited because transfers of allocation percentage is effectively a transfer of pounds, the restriction was not intended to prevent someone from completing multiple transfers of portions of their IFQ. As a result, the regulations are clarified to indicate that such multiple IFQ transfers are possible during a single FY.

NMFS also removes outdated text regarding LAGC quarterly TACs, which ceased to exist after the IFQ program was implemented in FY 2010, and references to the CAII rotational management schedule, which was intended to be removed in the rulemaking for Framework 22, along with the schedules for the other GB access areas. NMFS makes these changes consistent with section 305(d) of the Magnuson-Stevens Act.

NMFS also changes, pursuant to its authority under section 305(d) of the Magnuson-Stevens Act, the coordinates of the Closed Area I (CAI) access area and the CAI North and South essential fish habitat (EFH) areas. These coordinates were initially developed through Framework 16 to the FMP (69 FR 63460, November 2, 2004) and were implemented through Amendment 15 for FY 2011. During the course of FY 2011, vessels fishing in the CAI access area discovered that the new coordinates for the access area created a western boundary that is 1/4 of a mile (0.4 km) to the east of the CAI western boundary, described in § 648.81(a)(1) as the line extending between the points CI1 (41°30′ N lat.; 69°23′ W long.) and CI2 (40°45′ N lat.; 68°45′ W long.). However, the access area was designed to cover the whole middle portion of CAI and extend out to the CAI western boundary. In reviewing the coordinates, NMFS found that the western coordinates for the CAI access area were established using imprecise matching of coordinates to the CAI western boundary line. NMFS updates these coordinates in the regulations to extend the western boundary of CAI. To avoid any confusion on intent, in the case that various mapping software used by the industry or NOAA's Office of Law Enforcement provide slightly different results, NMFS also clarifies that the western boundary of the CAI access area is the same as the western boundary of CAI that lies between the two western-most coordinates of the CAI access area. Since these two coordinates also are included in the coordinates of the CAI North and CAI South EFH closed areas, NMFS changes those EFH area coordinates as well.

Finally, although this does not affect the current regulations, NMFS clarifies an error in table 3 of the final rule to Framework 22 (76 FR 43774; July 21, 2011). The scallop sub-ACL values of YTF in GB and SNE/MA were mistakenly reversed in this table and should have stated that the FY 2011 sub-ACLs in GB and SNE/MA are 200.8 mt and 82 mt, respectively, and the FY 2012 sub-ACLs in GB and SNE/MA are 307.5 mt and 127 mt, respectively. The regulations already indicate the correct values for these FYs, so this action makes no regulatory changes due to this error.

Comments and Responses

NMFS received three comment letters in response to the proposed rule from: A representative from Nordic Fisheries, a family-owned company that runs out of New Bedford, MA; the Fisheries Survival Fund (FSF), writing on behalf of full-time limited access scallop fleet members; and Oceana, a non-profit organization focused on ocean-related environmental issues. Six relevant issues relating to the proposed Framework 23 measures were raised; responses are provided below. NMFS may only approve, disapprove, or partially approve measures in Framework 23, 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: A representative of Nordic Fisheries generally supports the proposed measures in Framework 23, but commented that the final rule should mention that the TDD requirement meets RPM#2 and associated T/C of the 2008 Biological Opinion as an appropriate gear modification for a scallop dredge to reduce the capture of sea turtles.

Response 1: Based on its Endangered Species Act Section 7 consultation on the proposed Framework 23 measures, NMFS agrees that the TDD measures support the RPM#2 and T/C#2 of the 2008 Biological Opinion and has stated this in the preamble to this final rule.

Comment 2: FSF commented in support of the proposed measures, and expressed their satisfaction with industry, Council, and NMFS coordination on regulatory language describing the TDD requirement. However, FSF continue to note their opinion that the TDD requirement should remove the need for “area closures and other fishery restrictions implemented as RPMs for the scallop fishery.”

Response 2: The RPMs and implementing T/Cs included in a Biological Opinion are non-discretionary actions that must be implemented. The 2008 Biological Opinion included a number of RPMs to minimize incidental take of sea turtles, including RPMs that are both gear-based and effort-based. NMFS assumes that FSF's comment regarding “area closures and other fishery restrictions” refers to the effort-based RPM, RPM#1, which requires that NMFS limit the amount of allocated scallop fishing effort that can be used in the Mid-Atlantic during the time of year when sea turtle distribution overlaps with scallop fishing activity. The gear-based RPM (RPM#2) requires that NMFS continue to investigate and implement, as appropriate, scallop gear modifications to reduce the capture of sea turtles and/or the severity of the interactions that occur. These two RPMs are distinct from one another: The TDD meets the requirements of gear-based RPM#2, but that does not change the fact that RPM#1 must still be implemented. The current RPMs will be revisited when formal Section 7 consultation on the Scallop FMP is reinitiated and a new Biological Opinion is prepared, at which time all changes in the operation of the fishery that have occurred since the previous consultation in 2008 will be examined.

Comment 3: FSF also expressed concern that the yellowtail flounder AMs should not be implemented the subsequent year of an overage, but rather should be implemented in Year 3 (i.e., if the overage occurs in 2011, the accountability measure should be implemented in 2013). FSF noted that if the estimation of yellowtail flounder bycatch is completed before the end of the fishing year, it is unlikely that all of the data will be accounted for in the mid-year projection. Since the scallop fleet is more active in the beginning of the fishing year, FSF commented that the bycatch rate is not likely to be accurate and will have to be adjusted mid-year, which could potentially lead to adverse consequences to the scallop fleet.

Response 3: NMFS recognizes that the subsequent-year AMs are a concern to the industry, and is generally supportive of the Council considering modifications to the year the YTF AM in the scallop fishery would be implemented. However, as the preamble to the proposed rule for this action states, the measures in Framework 23 regarding YTF AMs do not give the Regional Administrator the authority to impose AMs outside the scope of the Council's approved measures. Neither Amendment 15 nor Framework 23 adopted measures to include Year 3 YTF AMs in the scallop fishery. However, the Council recently included such a measure to be considered in Framework Adjustment 24 (Framework 24) to the Scallop FMP, which is in the early stages of development.

Comment 4: FSF also discussed the need to revisit imposing YTF AMs on the LAGC fleet.

Response 4: NMFS agrees and continues to work with the Council on upcoming actions to address the LAGC fleet with regard to YTF AMs in the scallop fishery. The Council intends to address this issue in Framework 24.

Comment 5: Oceana commented in general support of Framework 23 measures, but specifically recommended changes to the proposed TDD measures. Oceana believes that the TDD should be implemented in the summer of 2012 and that the delay to 2013 is unnecessary and unsupported. Oceana also commented that the TDD should be required for a longer timeframe and should apply to all scallop vessels, but did not offer any argument to why the proposed measures are not sufficient.

Response 5: When implementing gear modifications such as TDD, NMFS must take into account the amount of time it will take for the industry to come into compliance with the new requirement. The scallop industry stated during development of Framework 23 measures that gear manufacturers would not be able to make enough dredges in time for everyone to come into compliance during the 2012 season. It is therefore not reasonable to require the gear until 2013. The Council considered an alternative that would have required all scallop vessels to adhere to the TDD requirement, but ultimately did not adopt that measure due to concerns that requiring TDDs on smaller LAGC vessels may not be economically feasible. Although sea turtle interactions in the Mid-Atlantic scallop fishery may occur in November when TDDs are not required, the adopted timeframe of May through October is still expected to have positive impacts on sea turtles. This time period includes all the months when observed takes have occurred in the scallop dredge fishery (June through October), and also includes May to account for the fact that turtles are expected to be in that area based upon best available data. In addition, although the TDD requirement is for vessels to use this gear for 6 months, it is likely that many vessels will choose to use this gear for longer time periods, perhaps even year-round (i.e., If they fish in the Mid-Atlantic primarily and do not want to bother switching back to the standard commercial dredge after the TDD timeframe). Therefore, the timeframe is reasonably expected to have the intended benefit for sea turtles without unduly restricting scallop vessels, and is consistent with the 2008 Biological Opinion.

Comment 6: Oceana also commented that NMFS should analyze annually the effectiveness of the TDD and promote future research to monitor its impacts on the fishery and sea turtle interactions. In addition, Oceana requested that Framework 23 implement a requirement for the Limited Access bottom trawl fleet to use Turtle Excluder Devices (TED). Independent of Framework 23, NMFS is considering measures to address sea turtle takes in the Mid-Atlantic trawl fisheries.

Response 6: Analyzing the TDDs effectiveness is a requirement of the 2008 Biological Opinion. As such, we intend on continuing to evaluate the effectiveness of gear modifications used in the scallop fishery and other measures designed to protect sea turtles, as needed. Oceana's request to implement a TED requirement for the LA bottom trawl fleet was not proposed by Framework 23 and, therefore, is beyond the scope and purpose of this action.

Changes From Proposed Rule to Final Rule

In § 648.14(i)(2)(ii)(B)(3) and § 648.51(b)(5)(ii), the TDD regulations were clarified to indicate that the TDD will not be required until May 1, 2013.

Classification

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.

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

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 23 in this final rule. The FRFA consists of and incorporates the IRFA, the relevant analyses and summaries thereof prepared for Framework 23, and the following discussion. This FRFA describes the economic impact that this final rule, along with non-adopted alternatives, will have on small entities. A copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES).

Statement of Objective and Need

This action implements four specific management measures applicable to the scallop fishery for FY 2012 and beyond. A description of the action, why it is being considered, and the legal basis for this action are contained in Framework 23 and in the preambles of the proposed and final rules, and are not repeated here.

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

No public comments were received in response to the IRFA summary in the proposed rule or the economic impacts of these measures more generally on small businesses. Summaries of the public comments and NMFS' responses are provided in the “Comments and Responses” section of this final rule.

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

For the purposes of the RFA, the Small Business Administration (SBA) defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. All of the vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to the dealer's data for FYs 1994 to 2010. In FY 2010, total average revenue per full-time scallop vessel was just over $1.2 million, and total average scallop revenue per LAGC vessel was just under $120,000. The IRFA for this and prior Scallop FMP actions do not consider individual entity ownership of multiple vessels. More information about common ownership is being gathered, but the effects of common ownership relative to small versus large entities under the RFA is still unclear and will be addressed in future analyses.

The Office of Advocacy at the Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; 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. Because Framework 23 estimates that no individual vessel grosses more than $3 million in any FY from 1994 through 2010, all permit holders in the sea scallop fishery were considered small business entities for the purpose of this analysis. Therefore, it is not necessary to perform the disproportionality assessment to compare the effects of the regulatory actions on small versus large entities. A summary of the economic impacts relative to the profitability criterion is provided below.

The measures contained in this final rule affect vessels with LA and LAGC scallop permits. The Framework 23 document from the Council provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time (i.e., vessels that receive annual scallop allocations that are 40 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP) LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits (i.e., vessels that receive annual scallop allocations that are 8.33 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP). In FY 2010, the first year of the LAGC IFQ program, 333 active IFQ (including IFQ permits issued to vessels with a LA scallop permit), 122 NGOM, and 285 incidental catch permits were issued. Since all scallop permits are limited access, vessel owners only cancel permits if they decide to stop fishing for scallops on the permitted vessel permanently. This is likely to be infrequent due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but the decline would likely be less than 10 permits per year.

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.

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

A summary of the economic impacts of adopted and alternative measures is provided below. A detailed analysis of the economic impacts can be found in Section 5.4 of the Framework 23 document (see ADDRESSES). All economic values are presented in terms of 2010 dollars.

In summary, in the short-term, the aggregate economic impact of this action on small businesses could range from a low negative to low positive, depending on the extent that positive impacts of the measures outweigh the costs of TDD requirement. These measures are not expected to have significant impacts on the viability of the vessels, especially in a highly profitable industry like the scallop fishery. Over the long-term, Framework 23 is expected to have positive economic impacts for the participants of the scallop fishery and related businesses. This action is not expected to have a considerable adverse impact on the net revenues and profits of the majority of the scallop vessels in the short and the medium term.

Economic Impacts of the Final Action

The following describes all of the alternatives considered by the Council.

1. Requirement To Use a TDD

This action implements a requirement for some scallop vessels to use a TDD from May 1 through October 31 in waters west of 71° W long. This requirement is applicable to all LA vessels (regardless of permit category or dredge size) and to those LAGC vessels that fish with a dredge(s) that has a width of 10.5 ft (3.2 m) or greater. The Council estimates that the cost of a new dredge plus the cost of freight would be about $5,000 for a standard dredge, and $2,500 to $3,000 for smaller dredges. The cost of buying a dredge and the freight cost will be a very small proportion (1 to 2 percent) of the average scallop revenues per LA vessel, even when the maximum estimate of costs is used. For an average LAGC vessel that uses only one dredge, the cost could be small, as well, amounting to about 2 percent of scallop revenue. Alternatively, for some vessels that use two dredges, the cost of buying and installing the dredges could be higher. Some of these vessels could choose to fish during times and in areas for which a TDD is not required.

The Council considered two other alternatives regarding which vessels would be required to use a TDD: One would have required the TDD for all LA vessels and no LAGC vessels, and thus would not have any adverse impacts on the LAGC IFQ vessels. The other non-selected alternative would have required the use of TDD for all vessels, including all LA and LAGC IFQ vessels, and would have had negative impacts on some LAGC IFQ vessels that use smaller dredges. There are some short-term costs associated with buying and installing TDDs under all alternatives, but these costs are not large and are not expected to have adverse impacts on the financial viability of small business entities. Indirect positive economic benefits over the medium to long term are expected to outweigh these costs under the adopted measure, particularly because it exempts LAGC vessels that use small dredges.

The option to have the TDD be required west of 71° W long. covers the majority of areas the scallop fishery and expected turtle interactions in the Mid-Atlantic overlap and excludes GB, where interactions with turtles are rare. This adopted measure minimizes the economic impacts for scallop vessels that fish solely in GB east of 71° W long. and those that fish in the Gulf of Maine. The adopted measure exempts LAGC vessels with dredges less than 10.5 ft (3.2 m) in width from TDD requirement, mitigating some of these negative impacts on the smaller boats fishing in those areas. The only other location option related to the TDD requirement was the area used to set effort limitations in Framework 22, which is the greatest area of overlap in the distribution of scallop fishing gear and sea turtles, with the exception of waters due south of Rhode Island. Thus, the adopted location option excludes those areas that LAGC vessels are active, and minimizes the negative economic impacts of TDD requirement on those vessels. Exempting LAGC vessels that use a dredge less than 10.5 ft (3.2 m) wide mitigates the impacts of the adopted boundary option and minimizes the differences between the impacts of the two location options considered.

Based on research indicating that using a TDD is not expected to have negative impacts on scallop landings, the season for the TDD requirement will probably have marginal economic impacts on the fishery overall. LA vessels are unlikely to change dredges during the year, once they are required to operate with a TDD during a part of the year. Therefore, the relative difference between the adopted season option (May 1 through October 31) and other non-selected options (i.e., May 1 through November 1, or June 1 through October 31) is likely to have only negligible impacts on these vessels. The difference between the season options could impact LAGC IFQ vessels relatively more than the LA vessels, but exempting LAGC IFQ vessels that use dredges less than 10.5 ft (3.2 m) wide prevents the adopted measure from negatively affecting smaller vessels. The increase in costs could also be minimized to some degree by leasing quota to LAGC IFQ vessels that fish in other areas. The shortest season considered by the Council (June through October) would have had the least impacts, and the longest considered season option (May through November) would have had the largest impact on vessels. The adopted season option maximizes the benefits of reducing the impacts on turtles, while not impacting a large proportion of scallop landings.

The adopted implementation date of the TDD requirements, 1 year after Framework 23 is implemented (i.e., May 2013, if Framework 23 is implemented in March 2012), allows manufacturers enough time to build dredges and gives vessels time to fish with the new dredge before the TDD requirement begins. A shorter period for implementation, such as the non-selected options for 90 days and 180 days after Framework 23's implementation, would not be feasible because so many dredges need to be built and it may not be possible to have all dredges manufactured in time. Overall, there are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.

2. Adjustments to the AMs Related to the Scallop Fishery's YTF Sub-ACLs

This action revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will be during months with the highest YTF catch rates when an overage occurs, rather than beginning at the start of the FY and running for consecutive months under No Action. Overall, these modifications are not expected to have large impacts on scallop vessels, given that only a small percentage of LA scallop landings took place in those areas. Because the revised closure schedules include the winter months, they will shift effort to seasons when the meat weights are larger, benefiting the scallop resource and increasing landings and overall economic benefits for the scallop vessels in the medium to long term. There are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.

The action to re-evaluate the AM determination mid-year, thus allowing for more flexibility in determining the appropriate AM seasonal closure length, is positive for LA scallop vessels compared to No Action. Although adjusting the FY to which the AMs would apply could result in higher benefits to the scallop fishery (e.g., if YTF AMs were triggered the year after the overage occurred), these measures were not considered by the Council and can be re-examined in a future framework action. Thus, given the two alternatives considered by the Council, the selected action generates the higher economic benefits for the participants of the scallop fishery.

3. Modifications to the NGOM Management Program

This action allows all vessels with a Federal NGOM permit to fish exclusively in state waters, on a trip-by-trip basis, without the scallop catch from exclusive state water trips counted against the Federal NGOM TAC. This change is not expected to have any significant impacts under the current resource conditions on landings and revenues from this area. However, if the scallop resource abundance and landings within the State of Maine's waters increase in the future, this action could prevent a reduction in landings from federally permitted NGOM vessels fishing in the NGOM. This action could potentially have positive economic impacts on the vessels that fish both in the state and Federal waters. In addition, this action will keep the Federal NGOM hard-TAC at 70,000 lb (31.74 mt), which will have a positive economic impact on the participants of the NGOM scallop fishery. The only other TAC alternative would have lowered the Federal TAC to 31,000 lb (14.06 mt) to prevent excess fishing in the NGOM above potentially sustainable levels. Although the selected TAC alternative, if continued over the long-term, could result in reduced landings and revenues for the NGOM fishery if effort in Federal waters increases substantially, given the present lack of effort in the Federal portion of the NGOM, it is unlikely that keeping the TAC at this level will cause near-term problems. In addition, the Council will re-evaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014. Thus, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.

4. Change to When a Scallop Trip Can Be Declared Through VMS

This action allows a vessel to declare into the scallop fishery shoreward of the VMS Demarcation Line rather than from a designated port, enabling the vessel to reduce steaming time to scallop fishing grounds and decease its fuel and oil costs. Therefore, this modification will have positive economic impacts on scallop vessels and small business entities. The only other alternative considered by the Council was No Action and, as such, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.

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 Northeast Regional Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the scallop fishery and available online. The guide and this final rule will be available upon request.

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, paragraphs (e)(5)(i), (e)(5)(ii), (f) introductory text, (f)(1), (f)(2), (f)(3), (f)(4)(ii), (f)(5)(i)(A), (g)(1), (h)(1) introductory text, and (h)(8) are revised, and (g)(3)(iii) is added to read as follows:

3. In § 648.11, paragraphs (g)(1) and (g)(5)(i)(A) are revised to read as follows:

3. In § 648.14,

a. Paragraphs (i)(1)(iii)(A)( 1)(iv), (i)(1)(iv)(C), (i)(2)(ii)(B)(3), (i)(2)(iv)(A), (i)(3)(iii)(C), (i)(3)(iv)(B), (i)(3)(v)(B), (i)(4)(i)(C), (i)(4)(i)(D), (i)(4)(i)(E), (i)(4)(ii)(A), (i)(4)(iii)(A), (i)(5)(i), and (i)(5)(iii) are revised;

b. Paragraphs (i)(1)(iv)(E), (i)(2)(v)(C), (i)(2)(v)(D), (i)(3)(iv)(C), (i)(3)(iv)(D) and (i)(5)(iv) are added; and

c. Paragraphs (i)(1)(iii)(A)( 1)(v) and (i)(1)(iii)(A)(2)(v) are removed and reserved.

The revisions and additions read as follows:

4. In § 648.51, paragraph (b)(1) is revised and paragraph (b)(5) is added to read as follows:

5. In § 648.53, paragraphs (b)(4)(vii), (h)(2) introductory text, (h)(2)(i), (h)(2)(ii)(C), (h)(2)(iv), (h)(3)(i)(A), and (h)(5)(iii) are revised to read as follows:

6. In § 648.55, paragraphs (c)(1) and (c)(5) are revised to read as follows:

7. In § 648.56, paragraph (d) is revised to read as follows:

8. In § 648.59, paragraph (b)(3) and the heading of paragraph (c) are revised to read as follows:

9. In § 648.60, the section heading is revised and paragraph (g)(2) is revised to read as follows:

10. In § 648.61, paragraph (a)(4) is revised to read as follows:

11. In § 648.62, the section heading, paragraphs (a), (b) introductory text, (b)(2), and (c) are revised to read as follows:

12. In § 648.63, paragraphs (b)(2)(i) and (b)(2)(iii) are revised to read as follows:

13. In § 648.64, paragraphs (b)(2)(i), (b)(2)(ii), (c)(2), and (e) are revised, and paragraph (f) is removed and reserved to read as follows: