[Federal Register: February 28, 2003 (Volume 68, Number 40)]
[Rules and Regulations]
[Page 9580-9588]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-32]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 030108004-3044-02; ID 010303B]
RIN 0648-AQ28
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery; Framework Adjustment 15
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Framework 15 to the
Atlantic Sea Scallop Fishery Management Plan (FMP) developed by the New
England Fishery Management Council (Council). This final rule
implements management measures for the 2003 fishing year, including a
days-at-sea (DAS) adjustment, and continuation of a Sea Scallop Area
Access Program (Area Access Program) for 2003. The intent of this
action is to achieve the goals and objectives of the FMP under the
Magnuson-Stevens Fishery Conservation and Management Act and to achieve
optimum yield (OY) in the scallop fishery. In addition, this final rule
includes regulatory text that codifies an additional gear stowage
provision for scallop dredge gear that was established by the
Administrator, Northeast Region, NMFS (Regional Administrator) in 2001.
DATES: Effective March 1, 2003.
ADDRESSES: Copies of Framework Adjustment 15, its Regulatory Impact
Review (RIR) including the Initial Regulatory Flexibility Analysis
(IRFA), and the Environmental Assessment (EA) are available on request
from Paul J. Howard, Executive Director, New England Fishery Management
Council, 50 Water Street, Newburyport, MA 01950. These documents are
also available online at http://www.nefmc.org. A copy of the Final
also available online at http://www.nefmc.org. A copy of the Final
Regulatory Flexibility Analysis (FRFA) is available from Patricia A.
Kurkul,
[[Page 9581]]
Regional Administrator, NMFS, Northeast Region, One Blackburn Drive,
Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy
Analyst, 978-281-9288; fax 78-281-9135; e-mail peter.christopher
@noaa.gov.
SUPPLEMENTARY INFORMATION: On September 12, 2002, the Council adopted
Framework 15 to the FMP, which includes annual management measures for
the 2003 fishing year (March 1, 2003, through February 29, 2004). On
January 16, 2003, NMFS published a proposed rule for Framework 15 (68
FR 2303). Framework 15 increases the annual DAS allocation and extends
the Area Access Program in the Hudson Canyon and Virginia Beach Access
Areas (Access Areas) for 2003. The only modification to the measures
that have been in effect for the 2002 fishing year is an increase in
the possession limit allowed to vessels participating in the Area
Access Program. Framework 15 was developed during the latter stages of
development of Amendment 10 to the FMP (Amendment 10) because it was
clear that Amendment 10 would not be implemented by the start of the
2003 fishing year and, therefore, Framework 15 is considered to be an
action of limited scope, which is intended to be a stop-gap measure
until Amendment 10 is implemented. Additional details concerning the
justification for and development of Framework 15 and the implementing
regulations were provided in the preamble to the proposed rule and are
not repeated here.
Framework 15 increases the annual DAS allocation from the DAS
allocations scheduled to take effect in 2003 under Amendment 7 to the
FMP. Framework 15 implements 120 full-time, 48 part-time, and 10
occasional DAS, which is an increase from the scheduled DAS of 45, 18,
and 4 DAS allocations for full-time, part-time, and occasional vessels,
respectively. These DAS allocations in Framework 15 are the same as the
DAS that have been implemented since 1999. Framework 15 also extends
the Area Access Program in the Access Areas for 2003.
The DAS allocations in Framework 15 are intended to achieve a
fishing mortality rate (F) that is consistent with the F target in the
FMP. The DAS allocations in Framework 15 are expected to achieve an F
of approximately 0.155 for the resource overall. Although this F is
still well below the F target, it reduces the potential for more
damaging effects on the scallop resource and for impacts on the
physical environment that may be associated with higher DAS
allocations.
The increase in the Area Access Program possession limit is
intended to create an incentive for vessels to fish within the Area
Access Program and is consistent with increasing catch rates in the
areas. Due to stock abundance in the Areas, a higher level of F can
occur in the Areas. This higher F allows for more trips and a higher
trip limit, thereby creating more opportunity for vessels to fish in
the Areas. The increased opportunity to fish in the Areas should create
an incentive for vessels to utilize the Area Access Program where the
scallop resource can be harvested at higher rates, thereby removing
fishing pressure from other areas that may be more sensitive to fishing
pressure.
Approved Measures
This action implements an annual DAS allocation of 120, 48, and 10
DAS for full-time, part-time, and occasional scallop vessels,
respectively, for the 2003 fishing year. This represents an increase
over the DAS allocations that would otherwise have become effective
March 1, 2003, under Amendment 7 to the FMP (i.e., 45 full-time, 18
part-time, and 4 occasional). The 120, 48, and 10 DAS allocations have
been in place each year since 1999, due to better conditions in the
scallop resource than were anticipated in Amendment 7.
This final rule continues the Area Access Program that was
implemented in the 2001 and 2002 fishing years. The Area Access Program
allows controlled scallop fishing in the Hudson Canyon and Virginia
Beach Sea Scallop Access Areas. Vessels are prohibited from fishing for
scallops in the Sea Scallop Access Areas unless they are fishing under
the Area Access Program. The intent of the Area Access Program is to
prevent the uncontrolled harvest of a sensitive portion of the scallop
resource while increasing the social benefits by allowing all limited
access vessels the opportunity to fish in the Areas without creating a
derby fishery, thereby increasing economic benefits by promoting an
orderly fishery.
The 2003 Area Access Program begins on March 1, 2003. The 2003 Area
Access Program will end when the total allowable catch (TAC) allocated
to the Area Access Program is caught, or when vessels have used up
their allocated number of trips.
The Area Access Program includes a TAC of 17.06 million lb (7,740
mt) and 0.23 million lb (105 mt) for the Hudson Canyon and Virginia
Beach Sea Scallop Access Areas, respectively. These TACs include set-
asides of 2 percent and 1 percent to defray the costs of observers and
research, respectively. The TACs are expected to achieve an F of 0.32
in each of the two areas. Although this F exceeds the target F of 0.22
for the scallop fishery, it is not expected to jeopardize the
rebuilding potential for the Mid-Atlantic stock. Rather, it is
anticipated that the higher F for the Access Areas will allow greater
levels of effort and catch within the Access Areas, thereby reducing
effort and catch in other areas of the Mid-Atlantic. Therefore, overall
F for sea scallops in the 2003 fishing year is expected to be 0.155.
This anticipated impact on the distribution of fishing effort is
expected to continue to provide for rebuilding of the Mid-Atlantic
scallop stock and the scallop resource as a whole.
All limited access scallop vessels, including vessels that replace
vessels that hold a scallop Confirmation of Permit History, are
eligible to fish for the sea scallop TAC under the Area Access Program.
Full-time and part-time scallop vessels are restricted to a total of
three annual trips into the Hudson Canyon and Virginia Beach Sea
Scallop Access Areas. A trip into either of the Areas will count as one
of the allowed trips. Vessels participating in the Area Access Program
are allowed to take only one of the three allocated trips before May 1,
and only two of the three allocated trips before June 1. This measure
is meant to prevent a derby style fishery from occurring and may reduce
the potential for bycatch by limiting trips in late spring when
bycatch, particularly of summer flounder, could be problematic. Vessels
in the occasional permit category are allowed to conduct only one trip
into the Area of their choice. Participating scallop vessels are
allowed to possess and land from the Areas up to 21,000 lb (9,525.4 kg)
of scallop meats per trip.
After taking into account data on the number of eligible vessels
participating, and on the total number of trips taken, the Regional
Administrator will consider adjusting the sea scallop possession limit
for the Hudson Canyon and Virginia Beach Sea Scallop Access Areas any
time during the season and, on or after October 1, 2003, will consider
allocating one or more additional trips for full-time and part-time
vessels. In order for additional trips to be allocated, a sufficient
amount of the sea scallop TAC must remain to warrant such an adjustment
or allocation. In order for a vessel to participate in any additional
Area Access Program trips that may be allocated on or after October 1,
2003, that vessel must have started at least one Area Access Program
trip prior to September 1, 2003. Vessels with
[[Page 9582]]
occasional permits will not be allocated any additional trips.
Any trip of 10 DAS or less by a vessel fishing in the Area Access
Program will be counted as 10 DAS. Any trip of over 10 DAS will be
counted as the actual DAS used (e.g., if a vessel used 12 DAS, 12 DAS
would be deducted from its annual DAS allocation). The purpose of the
minimum 10 DAS count is to reduce the number of DAS that are available
for use by vessels to fish in other areas, thereby reducing fishing
mortality on the scallop resource overall by potentially reducing the
number of scallops caught under DAS.
Vessels are allowed to use dredges or trawls when fishing in the
Area Access Program. Dredge gear is required to be outfitted with a
twine top with a minimum mesh size of 10 inches (25.40 cm). The purpose
of increasing the minimum twine top mesh size measurement from 8 inches
(20.32 cm) to 10 inches (25.40 cm) for the Area Access Program is to
reduce bycatch of groundfish and other finfish. Research and experience
from the Georges Bank and Southern New England Closed Area Sea Scallop
Exemption Program demonstrate that the 10-inch (25.40-cm) mesh size may
significantly reduce bycatch of certain species, especially flatfish
species.
All scallop vessels fishing in the Area Access Program are required
to have installed on board an operational vessel monitoring system
(VMS) unit that meets the minimum performance criteria as specified at
Sec. 648.9(b). Vessels with occasional permits are the only limited
access scallop vessels not currently required to have a VMS unit and
would, therefore, be required to install an approved VMS unit in order
to participate in the Area Access Program. Scallop vessels planning to
fish in the Area Access Program are required to so declare by notifying
the Regional Administrator through the VMS as described below.
Each vessel operator is required to inform NMFS of his/her
intention to fish in the Sea Scallop Access Areas prior to the 25th day
of the month preceding the month in question through the VMS e-mail
system (e.g., if the vessel plans to fish in these areas in July, it
would need to notify the Regional Administrator by June 25). This
notification requirement facilitates placement of observers and
provides for an estimate of the number of potential Area Access Program
participating vessels in order to make preliminary projections of
potential TAC harvest rates.
Vessel operators are required to report the following information
to the Regional Administrator prior to the 25th day of the month
preceding the month in question: Vessel name and permit number, owner
and operator's name, owner and operator's phone numbers, the area to be
fished, and the anticipated number of trips to be taken in the area in
question.
In addition, for the purpose of selecting vessels for observer
deployment, a vessel's operator is required to provide notice to NMFS
of the time, port of departure, and specific Access Area to be fished,
at least 5 working days prior to the beginning of any trip on which it
declares into the Area Access Program.
On the day the vessel leaves port to fish under the Area Access
Program, the vessel owner or operator must declare into the Program
through the VMS. Declaration into the fishery allows for more accurate
and timely monitoring of the catch in the fishery.
The operator of each vessel participating in the Area Access
Program is required to report specific information on a daily basis
through the VMS. For each day of an Area Access Program trip, a
vessel's operator is required to report the daily pounds (kg) of
scallop meats kept, the area fished that day, and the Fishing Vessel
Trip Report page numbers corresponding to the respective Sea Scallop
Access Area trip. In addition, vessel operators on vessels carrying an
observer are required to provide a separate report of the daily pounds
(kg) of scallop meats kept on tows that were observed on that trip.
Vessels that have declared a trip into the Area Access Program are
prohibited from possessing more than 50 U.S. bu (17.62 hl) shell-stock
or 400 lb (181.4 kg) of meats of shell stock when outside the Access
Areas. This limit for shell stock is considered part of the overall
Area Access Program possession limit. A limit on the amount of sea
scallops landed in the shell is necessary to monitor and enforce the
overall meat weight possession limit requirement. Allowing vessels to
retain a relatively minor amount of shell stock helps satisfy a market
for large, whole scallops, without compromising the enforceability of
the possession limit.
General category permitted vessels and limited access scallop
vessels fishing outside a scallop DAS are allowed to fish in the Access
Areas throughout the year, provided that no more than 100 lb (45.36 kg)
of scallop meats are possessed on board the vessel when the vessel is
in the Access Areas. These vessels are prohibited from possessing in-
shell scallops while inside the Access Areas, except they are allowed
to possess an equivalent of in-shell scallops that are necessary to
provide 100 lb (45.36 kg) of scallop meats. Vessels not fishing under
the Area Access Program are allowed to transit the Access Areas with
more than these possession limits on board, provided their gear is
properly stowed according to Sec. 648.23(b). This measure is intended
to allow an incidental catch of scallops for scallop vessels that fish
for other species outside the Access Areas and to allow for more direct
transiting to and from other fishing areas.
To improve the enforceability of the Area Access Program, all
limited access scallop vessels equipped with a VMS unit will be polled
twice per hour, regardless of whether the vessel is enrolled in the
Area Access Program or not. Also, vessels are required to stow all
dredge or trawl gear while transiting to and from the Access Areas
pursuant to the applicable gear stowage requirements specified in Sec.
648.23. A new dredge gear stowage requirement included in this rule
improves safety on board vessels transiting to and from the Access
Areas. Finally, to ensure effective enforcement of the Area Access
Program measures, vessels participating in the Area Access Program must
land their scallop catch at one location for each trip.
Vessels are required to carry observers when requested. The Council
has recommended 10-percent observer coverage for the Hudson Canyon
Access Area and 20-percent observer coverage for the Virginia Beach
Access Area. Observers will obtain information on catch, catch rates,
and bycatch and may obtain information on gear efficiency and
selectivity and on other characteristics of the fishery. The vessel
owner is responsible for paying for the cost of the observer,
regardless of whether any scallops are caught on the trip. At the
discretion of the Regional Administrator, scallop vessels may be
allocated an additional amount of sea scallops, not to exceed a
cumulative total of 155 mt or 2 mt for the Hudson Canyon and Virginia
Beach Access Areas, respectively, for each trip on which an observer is
taken, to help defray the cost of the observer. Additional scallops to
fund observers may not exceed a value equal to 2 percent of the overall
scallop TAC. One percent of the scallop TAC for both the Hudson Canyon
and Virginia Beach Access Areas has been set aside to pay for
observers. Similarly, a value equal to 1 percent of the overall TAC has
been added on to the amount of observer TAC, also to help vessels pay
for the cost of observers. The allocation of 1 percent set-aside and 1
percent
[[Page 9583]]
additional observer TAC is consistent with the Area Access Program in
2001 and 2002, as well as the Georges Bank Closed Area Exemption
Program. A TAC set-aside of 1 percent to fund research is also included
as part of the Area Access Program. Amounts over the trip limits for
sea scallop meats to be allocated for defraying research costs are
limited, by area, up to 77 mt or 1 mt for the Hudson Canyon and
Virginia Beach Access Areas, respectively. This research program for
the Access Areas is modeled after the research program in the 2000
Georges Bank Sea Scallop Exemption Program. A Request for Proposals
notice published in the Federal Register on January 17, 2003 (68 FR
2527), provides information on the submission process, eligibility
criteria, proposal requirements and priorities, project evaluation,
application deadlines and other requirements.
Finally, this final rule codifies a scallop dredge gear stowage
provision that was established by the Regional Administrator in 2001.
The new provision eliminates the need for vessel operators to
disconnect towing wires and reel them fully onto the winch in order for
the gear to be considered properly stowed. Reconnecting the wires at
sea was determined to be dangerous, particularly in rough seas. The
Regional Administrator has the authority to establish new gear stowage
provisions through notification through a permit holder letter.
Subsequent codification of the provision ensures proper implementation
of the requirement.
A discussion of comments received in response to the proposed rule
for Framework 15, and their responses, follows.
Comments and Responses
Two comments were received on the proposed rule for Framework 15.
While one comment was generally in support of the action, the other
opposed it. Many of the specific issues raised in each comment
highlight issues that were analyzed in Framework 15. Many of the issues
and analyses included in Framework 15 are summarized in the following
responses and the commenters and other interested members of the public
should refer to the Framework 15 document for a more detailed
discussion of the analyses (See ADDRESSES for a copy of Framework 15).
Comment 1: The Fisheries Survival Fund (FSF) commented in support
of the measures contained in Framework 15, and urged timely
implementation in order to avoid ``economically devastating'' default
DAS reductions. The FSF urged NMFS to give more emphasis in the final
rule to the habitat and bycatch benefits of the 120-DAS allocation
compared to the higher DAS allocation of 140 DAS that was calculated to
be more consistent with the FMP's target F.
Response: NMFS acknowledges FSF's comments in support of Framework
15. With respect to the benefits of implementing 120 full-time DAS
versus other DAS alternatives, NMFS has relied on the comparisons of
costs and benefits of the various alternatives included in Framework
15. The habitat and bycatch benefits cannot be precisely determined
because it is not possible to predict fully the behavior of the fishing
fleet in response to these regulations. The amount of habitat and
bycatch impact depends not only on the total fleet activity, but also
on the distribution of fishing activity relative to the distribution of
vulnerable habitats and bycatch. While less fishing usually means fewer
impacts, and distribution of habitat or bycatch is known at a broad
scale, the response of the fleet to changes in resource distribution
and different DAS allocations is not well known. If reductions in DAS
allocations were to cause industry to concentrate effort in less remote
but more sensitive areas with respect to habitat and bycatch, then the
benefits of lower DAS would be reduced. The Council recommended, and
NMFS concurs, that the 120 full-time DAS allocation (48 part-time and
10 occasional DAS), combined with the Area Access Program, as a 1-year
action, complies best with the goals and objectives of the Scallop FMP.
Given the uncertainties of the fleet response to this action, the
action is intended to balance conservation of the scallop resource and
the economic benefits derived from fishing while minimizing, to the
extent practicable, the known adverse effects on the environment,
including habitat and species caught as bycatch, in the scallop
fishery.
Comment 2: The FSF urged NMFS to reconsider industry
recommendations for measures to address the issue of trips into the
Area Access Program that are terminated unexpectedly. They advocate
more flexibility in determining if such ``broken'' trips should be
charged fewer DAS than the 10 DAS that are automatically charged under
the Area Access Program. The FSF believes this is required by National
Standard 10 of the Magnuson-Stevens Act, concerning safety at sea.
Response: NMFS understands the problems that arise as a result of
the automatic deduction of 10 DAS for Area Access trips, but the
Council, working within the short-term context of this action, was
unable to develop measures necessary to address broken trips that are
clearly understood and can be effectively administered. There are
alternatives being developed in Amendment 10 to address this concern.
In the meantime, NMFS has determined that this concern can be addressed
sufficiently through ad hoc determinations for each instance of a
broken trip.
Comment 3: Oceana and the Conservation Law Foundation (Oceana/CLF)
commented that Framework 15 allows overfishing in the open areas on
Georges Bank and in the Mid-Atlantic. Oceana/CLF contends that the DAS
alternative selected (120 full-time, 48 part-time, and 10 occasional
DAS) does not constitute a sustainable management strategy for the sea
scallop resource and is, therefore, inconsistent with the Magnuson-
Stevens Act requirements to prevent overfishing. In addition, Oceana/
CLF commented that overfishing in the Mid-Atlantic continues, despite
actions under previous Frameworks that were intended to redirect effort
into controlled access programs, but failed to do so. Oceana/CLF
asserts that NMFS should adequately justify its support of the 120 DAS
(``risk-prone'') alternative and better elaborate on the long-term
effects of the action in the environmental analyses.
Response: The FMP and overfishing definition do not consider the
open and closed areas separately (with the exception of the special
program for the Area Access Program). While projections indicate that
the DAS allocations, if analyzed according to discrete areas, may
result in overexploitation of scallops in some areas, Framework 15 is
based on analyzing fishing mortality on the resource as a whole. Under
this analysis, the fishery overall would not exceed the F target of
0.22, due in part to continued large concentrations of scallops that
cannot be fished in the Georges Bank and Southern New England
groundfish closed areas.
The analyses in Framework 15 indicate that the 120-DAS alternative
complies with the Magnuson-Stevens Act and achieves the goals and
objectives of the FMP. Framework 15 clearly demonstrates that
overfishing will not occur on the resource as a whole and that F will
likely be less than Amendment 7 targets. The current condition of the
scallop resource is rebuilt for both the Georges Bank and Mid-Atlantic
stocks. To fish at the DAS level scheduled in Amendment 7 would cause
the fishing level to fall
[[Page 9584]]
unnecessarily well below OY and cause substantial adverse economic and
social effects on the scallop industry under rebuilt resource
conditions.
The F in the Mid-Atlantic continues to be high, despite efforts in
recent years to reduce the effective F through the Area Access Program.
However, the FMP does not prescribe different management measures for
each stock, consistent with National Standard 3. To enhance the
incentive to fish in the Access Areas, Framework 15 allows for an
increase in the F for the Area Access Program, which results in an
increase in the possession limit. It is expected that this enhanced
incentive will reduce fishing pressure in the Mid-Atlantic region
outside of the Access Areas.
Comment 4: Oceana/CLF commented that the 100 DAS alternative has
greater environmental, biological, and economic benefits than the 120-
DAS alternative. Oceana/CLF commented that it is unclear what rationale
NMFS is using to justify its proposed action of 120 DAS, when the
analyses in Framework 15 clearly support the 100-DAS allocation
alternative, touting the following environmental, biological and
economic benefits: (1) Reduced unsustainable fishing mortality in the
open fishing areas; (2) higher long-term net benefit ($38 - $42
million); (3) likely increase in future landings, rather than the sharp
decline predicted under the proposed action; (4) reduced area affected
by scallop dredging; and (5) reduced operational costs, and increased
producer surplus and net benefits.
Response: Oceana/CLF has focused on the long-term effects of the
DAS to be implemented through Framework 15. Framework 15 is intended as
a short-term action while the comprehensive Amendment 10 is developed
and implemented. In light of the short-term context of Framework 15,
NMFS disagrees that Framework 15 clearly supports the 100 DAS
alternative, since short-term losses associated with the alternative
are not clearly outweighed by the benefits of the reduced DAS. The
analysis demonstrates that the 120-DAS alternative, combined with the
Area Access Program, has noticeably higher economic and social benefits
with only marginal loss of benefits to the scallop resource overall and
the environment in the short-term. NMFS believes that the short-term
effects of the action are more relevant, because Framework 15 does not
contemplate continuation of these measures alone for more than 1 year,
despite the analyses that project the effects of the action over as
many as 10 years.
Comment 5: Oceana/CLF commented that Framework 15 does not contain
measures adequate to minimize adverse fishing impacts on known gravel
habitats and sensitive EFH in open areas on Georges Bank. Oceana/CLF
asserts that the 120-DAS alternative in Framework 15 ``dramatically
increases'' the amount of EFH impacted by scallop dredging by 60 to 80
percent. Oceana/CLF also commented that the increase in EFH affected by
scallop dredging under the 120-DAS alternative is exacerbated by a lack
of management measures specifically designed to protect EFH. Oceana/CLF
contends that prior scallop amendments modified the framework process
''...so that habitat conservation measures may be approved by the
Council in a more timely manner than the plan amendment process.''
Oceana/CLF commented that NMFS and the Council cannot rely on future
amendments in the Scallop and Northeast Multispecies FMPs to implement
appropriate measures to minimize the impacts on EFH. Finally, Oceana/
CLF urged NMFS to take immediate action under Framework 15 to minimize
fishing impacts on known gravel habitats and sensitive juvenile cod EFH
and other groundfish EFH in the open areas on Georges Bank.
Response: NMFS disagrees that Framework 15 dramatically increases
the amount of EFH impacted by scallop dredging. To draw that
conclusion, Oceana/CLF compares the action in Framework 15 to the
default measures that would otherwise become effective March 1, 2003.
These measures include 45 full-time, 18 part-time, and 4 occasional DAS
allocations that are well below any level of fishing effort that has
occurred in the scallop fishery under recent management and recent
historical scallop fishing activity. This conclusion ignores the
practicability standard for analyzing the appropriateness of habitat
mitigating measures. The 120-DAS alternative maintains the DAS
allocations that have been in place since 1999. Therefore, the
Framework 15 DAS allocation does not actually increase impacts on EFH
at all, when compared to the status quo of current fishing activities.
Frameworks are required to comply with the Magnuson-Stevens Act and
minimize the adverse effects of fishing on EFH to the extent
practicable. In light of the drastic DAS reductions that would occur
under Amendment 7, Framework 15 implements a more appropriate DAS
allocation and takes practicable steps to minimize the impacts of the
scallop fishery on EFH in order to comply with the Magnuson-Stevens Act
and to meet the goals and objectives of the FMP. It is not correct that
framework actions must necessarily include a full reconsideration of
EFH, or of any of the other 21 frameworkable measures included in the
FMP.
Framework 15 was developed during the latter stages of development
of Amendment 10 because it was clear that Amendment 10 would not be
implemented by the start of the 2003 fishing year and, therefore,
Framework 15 is considered to be an action of limited scope, which is
intended to be a stop-gap measure until Amendment 10 is implemented.
The Council is required to adjust management measures on an annual
basis in order to make measures consistent with the condition of the
resource and the status of the fishery. The Council and NMFS are
maintaining extensive closures of areas of high scallop abundance and
potential prime scallop fishing areas on Georges Bank and in Southern
New England waters, which provide substantial protection of habitat.
The Council is carrying out a full reconsideration of measures to
address EFH through the more extensive public process associated with
Amendment 10. NMFS notes that the measures have been highly
controversial and complex and have been the subject of lengthy debate.
Taking into account the short-term context of Framework 15, the OY
calculations, the areas closed to scallop fishing, and other measures
already in place that provide extensive EFH protection, Framework 15
minimizes the impacts on EFH to the extent practicable.
Comment 6: Oceana/CLF commented that Framework 15 does not contain
measures adequate to accurately report or minimize bycatch of
overfished groundfish, skates and other marine life. Specifically,
Oceana/CLF commented that high levels of bycatch of fish and other
marine life continue in the scallop fishery--most of it unaccounted for
due to a lack of observer coverage and unreliable vessel trip report
data. Oceana/CLF urged NMFS to improve its compliance with the
Endangered Species Act (ESA) with regard to the scallop fishery and to
complete a Biological Opinion (BO) for Framework 15 prior to its
approval and implementation. Oceana/CLF concluded by requesting that
NMFS not approve Framework 15 until it contains adequate measures to:
(1) protect sensitive juvenile cod and other sensitive groundfish EFH;
(2) increase levels of observer coverage throughout the entire scallop
fishery; and (3) stop all illegal takes of threatened and endangered
sea turtles and minimize bycatch of other overfished and at-risk
species (e.g.,
[[Page 9585]]
barndoor skate, monkfish, and other skates).
Response: National Standard 9 requires that FMPs minimize, to the
extent practicable, bycatch and bycatch mortality. Measures currently
in place in the scallop fishery, and the measures included in Framework
15, take practicable steps to reduce bycatch in the sea scallop
fishery. Gear restrictions, i.e. increasing the minimum twine top mesh
size to 10 inches (25.40 cm), in the Area Access Program are intended
to reduce bycatch in scallop dredge gear. NMFS is attempting to improve
observer coverage in this and other fisheries, i.e. increased
percentage coverage in access areas (10-20 percent) although a large
increase in observer coverage is limited by Agency resources. Limiting
the number of trips by month in the Area Access Program is also
designed to reduce bycatch. In addition, maintaining groundfish closed
areas will reduce bycatch of such species as yellowtail flounder and
skates in the scallop fishery overall. Oceana/CLF specifically noted
that much bycatch is unaccounted for due to lack of observer coverage.
The lack of more specific information about bycatch and how to avoid it
complicates efforts to develop specific management measures to reduce
it. In light of the limited scope and context of Framework 15, NMFS has
determined that Framework 15 complies with the Magnuson-Stevens Act
concerning bycatch requirements. The specific concerns raised by
Oceana/CLF have been addressed in Framework 15.
In response to reports of sea turtle takes in the sea scallop
fishery, NMFS reinitiated consultation under section 7 of the ESA on
December 21, 2001. NMFS completed a BO for the scallop fishery as a
whole, including the measures included in Framework 15, on [insert date
BO completed]. The BO concluded that the continued implementation of
the scallop fishery and the proposed activity may adversely affect but
is not likely to jeopardize the continued existence of loggerhead,
Kemp's ridley, green, and leatherback sea turtles. In the BO, NMFS
provides an incidental take statement allowing the annual take of 88
loggerhead (up to 25 lethal), 7 Kemp's ridley (2 lethal), and 1 green
(lethal or non-lethal) sea turtles in the sea scallop dredge fishery.
In addition, the incidental take statement allows the lethal or non-
lethal observed annual take of one loggerhead, Kemp's ridley, green, or
leatherback sea turtles in the scallop trawl fishery.
Changes From the Proposed Rule
One change to the regulatory text in the proposed rule has been
made. In Sec. 648.58, paragraph (c)(6) is revised to more clearly
address the intent of the prohibition to prevent vessels participating
in the Area Access Program from loading up on shell-stock and then
shucking the scallops inside the VMS demarcation line.
Classification
The Administrator, Northeast Region, NMFS, determined that
Framework 15 is necessary for the conservation and management of the
Atlantic sea scallop fishery and that it is consistent with the
Magnuson-Stevens Act and other applicable laws.
For the reasons stated below, the Assistant Administrator for NOAA
(AA) waives the 30-day delay in effectiveness for the Framework 15
measures under 5 U.S.C. 553(d)(1) because this rule relieves a
restriction.
This action implements DAS allocations of 120, 48, and 10 DAS for
full-time, part-time, and occasional scallop vessels, respectively, and
continues the Hudson Canyon and Mid-Atlantic Area Access Program with
an increase in the possession limit for vessels participating in the
Area Access Program. Scallop vessels are precluded from: exceeding the
DAS that are allocated to the vessel based on its permit category;
fishing in the Hudson Canyon or Virginia Beach Access Areas unless they
are participating in the Area Access Program; fishing for more than
three trips in the Area Access Program; possessing more than the sea
scallop possession limit in the Area Access Program; and violating any
provisions of the regulations of the Northeastern United States that
are not modified by this action.
The annual DAS allocations implemented in this final rule are less
restrictive than the DAS allocations that would otherwise go into
effect on March 1, 2003. The DAS scheduled to take effect on March 1,
2003, would have considerable negative economic and social impacts
because limited access scallop vessels would only be able to fish 45
full-time, 18 part-time, and 4 occasional DAS, as compared to 120 full-
time, 48 part-time and 10 occasional DAS under the preferred
alternative. Further, the DAS allocation under Framework 15 would be
the same as the allocation last year and therefore would be no more
restrictive. In addition, the Area Access Program is a continuation of
the program that has been in place for the last 2 years. The only
change to the program is an increase in the possession limit. The
Council prepared an environmental assessment (EA) for this framework
and the Assistant Administrator for Fisheries, NMFS, concluded that
there will be no significant impact on the human environment as a
result of this rule. This action will result in a minor increase in
fishing mortality on sea scallops and will allow continued economic
viability of the fishery. The Area Access Program will provide an
incentive for vessels to direct fishing effort away from more sensitive
open areas in the Mid-Atlantic. A copy of the EA is available from the
Council (see ADDRESSES).
This final rule has been determined to be not significant for the
purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 604(a) of the Regulatory Flexibility Act, NMFS
prepared an FRFA for Framework 15, which consists of the IRFA, comments
and responses contained in this final rule, and a summary of the
analyses prepared in support of this final rule. A copy of the FRFA is
available from the Regional Administrator (see ADDRESSES). The preamble
to the proposed rule included a detailed summary of the analyses
contained in the IRFA, and that discussion is not repeated in its
entirety here. A copy of the IRFA is available from the Council (see
ADDRESSES).
The reasons why action by the agency is being considered and the
objectives of the action are explained in the preambles to the proposed
rule and this final rule and are not repeated here. This action does
not contain reporting and recordkeeping requirements. It will not
duplicate, overlap, or conflict with any other Federal rules. This
action is taken under authority of the Magnuson-Stevens Fishery
Conservation and Management Act and regulations at 50 CFR part 648.
Public Comments
Two sets of comments were received on the proposed rule and are
responded to in this rule. One comment addressed indirectly the results
of the IRFA and the second set of comments related to issues other than
economic impacts. In this comment, the FSF urged timely implementation
of the Framework 15 measures in order to avoid ``economically
devastating'' default DAS reductions. NMFS agrees with the FSF that the
DAS reductions included in Amendment 7 to the FMP and scheduled to take
effect on March 1, 2003, under the no action alternative will have
substantially negative economic impacts for vessels participating in
the sea scallop fishery and would not be necessary, given the
[[Page 9586]]
condition of the scallop resource. This ``no action'' alternative would
be inconsistent with National Standard 1 because it would fail to
achieve OY in the scallop fishery. It may also cause safety at sea
concerns, as vessels may push crews and trip lengths to hazardous
levels.
Number of Small Entities
This action and its alternatives could affect any commercial vessel
holding an active Federal permit for sea scallops. Data from the 2001
Northeast permit database show that 310 commercial vessels were
permitted with limited access scallop permits, and 2,293 commercial
vessels were permitted with general category (open access) scallop
permits. Information from the 2002 fishery remains incomplete. The
majority, if not all, of the federally permitted vessels readily fall
within the Small Business Administration's (SBA) definition of small
business and the Regulatory Flexibility Act's definition of ``small
entity.'' The management measures included in this final rule propose
to increase DAS allocations in the same proportion for each category of
the limited access scallop permit. The resulting increase in profits,
costs and net revenues are not expected to be disproportional for small
versus large entities.
Minimizing Economic Impacts on Small Entities
Framework 15 contains six alternatives, including no action and
status quo alternatives. Each alternative, with the exception of the no
action alternative, consists of DAS allocations for full-time, part-
time, and occasional scallop vessels and a TAC and possession limit
derived from a target F for the Access Areas. The alternatives are
described in this discussion as the full-time DAS allocation and the
target F rate in the Area Access Program. The no action alternative
would implement 45 full-time, 18 part-time, and 4 occasional DAS and
would open the Hudson Canyon and Virginia Beach Access Areas to general
scallop fishery management. The status quo alternative includes 120
full-time DAS and an Area Access Program F of 0.2.
This final rule will implement the 120 full-time DAS with an Area
Access Program F = 0.32, which minimizes economic impacts on small
entities. The impacts of the proposed alternatives on revenues, costs,
and profits of an average vessel were analyzed. The increase in the
days-at-sea allocations to 100, 120 or 140 full-time DAS allocations
from the 45 full-time DAS allocation scheduled for the 2003 fishing
year under Amendment 7 and the Area Access Program will have positive
economic impacts on the vessels. The revenues per full-time vessel in
2003 are expected to increase by 56 percent for the preferred action
(120 DAS, F=0.22), and by 38 percent (100 DAS, F=0.2) to 58 percent
(140 DAS, F=0.32) for non-preferred alternatives compared to the no
action (45 full-time DAS, no Area Access Program). The no action
alternative would represent a 15-percent decline in revenues from
actual revenues in 2002. The profits are expected to more than double
under all alternatives including the preferred action relative to the
no action alternative. Although the analysis in this section is
conducted for an average full-time vessel in the scallop fishery, the
results are expected to be positive for all full-time, part-time and
occasional vessels as well since their DAS allocations will also be
adjusted upwards and they will be able to participate in the Area
Access Program.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a small entity compliance guide was prepared.
The guide will be sent to all holders of permits issued for the
Atlantic sea scallop fishery. In addition, copies of this final rule
and guide (i.e., permit holder letter) are available from the Regional
Administrator (see ADDRESSES) and are also available at the following
web site: http://www.nmfs.gov/ro/doc/nero.html.
A formal section 7 consultation under the ESA was initiated for the
scallop fishery, including the measures contained in Framework 15. In a
BO dated [insert date of BO], the AA determined that fishing activities
conducted in the scallop fishery, including activities under Framework
15 and their implementing regulations, are not likely to jeopardize the
continued existence of any endangered or threatened species under the
jurisdiction of NMFS, or result in the destruction or adverse
modification of critical habitat.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 25, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.23, paragraph (b)(2) is revised to read as follows:
Sec. 648.23 Gear restrictions.
* * * * *
(b) * * *
(2) Scallop dredges. (i) The towing wire is detached from the
scallop dredge, the towing wire is completely reeled up onto the winch,
the dredge is secured and the dredge or the winch is covered so that it
is rendered unuseable for fishing; or
(ii) The towing wire is detached from the dredge and attached to a
bright-colored poly ball no less than 24 inches (60.9 cm) in diameter,
with the towing wire left in its normal operating position (through the
various blocks) and either is wound back to the first block (in the
gallows) or is suspended at the end of the lifting block where its
retrieval does not present a hazard to the crew and where it is readily
visible from above.
* * * * *
3. In Sec. 648.53, the table in paragraph (b) is revised to read
as follows:
Sec. 648.53 DAS allocations.
* * * * *
(b) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
DAS Category 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007 2007-2008 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
Full-time 120 120 120 120 120 34 35 38 36 60
Part-time 48 48 48 48 48 14 14 15 17 24
[[Page 9587]]
Occasional 10 10 10 10 10 3 3 3 4 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
4. In Sec. 648.57, the introductory text of paragraphs (a) and (b)
are revised to read as follows:
Sec. 648.57 Closed and regulated areas.
(a) Hudson Canyon Sea Scallop Access Area. Through February 29,
2004, except as provided in Sec. Sec. 648.52 and 648.58, no vessel may
fish for scallops in or land scallops from the area known as the Hudson
Canyon Sea Scallop Access Area, and no vessel may possess scallops in
the Hudson Canyon Sea Scallop Access Area, unless such vessel is only
transiting the area with all fishing gear unavailable for immediate use
as defined in Sec. 648.23(b), or there is a compelling safety reason
to be in such areas without all such gear being unavailable for
immediate use. The Hudson Canyon Sea Scallop Access Area (copies of a
chart depicting this area are available from the Regional Administrator
upon request) is defined by straight lines connecting the following
points in the order stated:
* * * * *
(b) Virginia Beach Sea Scallop Access Area. Through February 29,
2004, except as provided in Sec. Sec. 648.52 and 648.58, no vessel may
fish for scallops in or land scallops from the area known as the
Virginia Beach Sea Scallop Access Area, and no vessel may possess
scallops in the Virginia Beach Sea Scallop Access Area, unless such
vessel is only transiting the areas with all fishing gear unavailable
for immediate use as defined in Sec. 648.23(b), or, there is a
compelling safety reason to be in such areas without all such gear
being unavailable for immediate use. The Virginia Beach Sea Scallop
Access Area (copies of a chart depicting this area are available from
the Regional Administrator upon request) is defined by straight lines
connecting the following points in the order stated:
* * * * *
5. In Sec. 648.58, paragraphs (c)(1), (c)(4), (c)(6), (e)(2),
(e)(3)(ii), (e)(4)(ii), and (f) are revised to read as follows:
Sec. 648.58 Sea Scallop Area Access Program.
* * * * *
(c) * * *
(1) Season--From March 1, 2003, through February 29, 2004, vessels
participating in the Sea Scallop Area Access Program may fish for or
possess sea scallop in or from the respective Sea Scallop Access Areas
specified in Sec. 648.57, unless access to these areas is terminated
as specified in paragraph (f) of this section. Should the 2002 fishing
year season be closed early (i.e., prior to February 28, 2003), as
described in this paragraph (c)(1), the Sea Scallop Area Access Program
season for fishing year 2003 will begin on April 1, 2003.
* * * * *
(4) Number of trips--(i) Full and part-time vessels. Full and part-
time vessels are restricted to a total of three trips into the Sea
Scallop Access Areas, unless otherwise authorized by the Regional
Administrator as specified in paragraph (e)(2) of this section. A trip
to either Area counts as one trip. Full-time and part-time vessels
participating in the Sea Scallop Area Access Program may start no more
than one of their three allowed Area Access Program trips before May 1,
2003, and no more than two of their three allowed Area Access Program
trips before June 1, 2003.
(ii) Occasional scallop vessels. Occasional vessels may fish only
one trip under the Sea Scallop Area Access Program. The one allowed
trip may be conducted in either the Hudson Canyon or Virginia Beach Sea
Scallop Access Area specified in Sec. 648.57 at any time during the
season, as specified in paragraph (c)(1) of this section.
* * * * *
(6) Possession and landing limits--Unless otherwise authorized by
the Regional Administrator as specified in paragraph (e) of this
section, after declaring into the Sea Scallop Area Access Program in
fishing year 2003, a vessel owner or operator may fish for, possess,
and land up to 21,000 lb (9,525.4 kg) of scallop meats per trip. No
vessel participating in the Sea Scallop Area Access Program may possess
shoreward of the VMS demarcation line or land, more than 50 bu (17.62
hl) of in-shell scallops.
* * * * *
(e) * * *
(2) Adjustment process for number of trips for Hudson Canyon and
the Virginia Beach Sea Scallop Access Areas. On or after October 1,
2003, if the scallop catch in the Hudson Canyon and/or Virginia Beach
Sea Scallop Access Areas is less than the scallop TACs specified for
fishing year 2003 in paragraph (f) of this section, the Regional
Administrator may allocate one or more additional trips for the Hudson
Canyon and/or Virginia Beach Sea Scallop Access Areas for full and
part-time limited access sea scallop vessels that declared into and
began a trip under the Sea Scallop Area Access Program prior to
September 1, 2003. This adjustment may be made if the Regional
Administrator determines that such adjustment will likely allow the
scallop TAC to be reached without exceeding it. Notification of this
adjustment to the trip limit will be provided to the vessel through a
permit holder letter issued by the Regional Administrator. Vessels with
occasional permits would not be allocated an additional trip.
(3) * * *
(ii) Observer set-aside limits by area. The cumulative amount of
scallop authorized under this part to be taken by vessels in excess of
the possession limits specified in paragraph (c)(6) of this section to
defray the cost of an observer shall not exceed 2 percent of the
overall TAC for each Sea Scallop Access Area. The following amounts
represent 2 percent of those TACs:
(A) Hudson Canyon Sea Scallop Access Area - 2003 area access
program - 155 mt;
(B) Virginia Beach Sea Scallop Access Area - 2003 area access
program - 2 mt.
* * * * *
(4) * * *
(ii) Research set-aside limits and number of trips by area. The
cumulative amount of scallop authorized under this part to be taken by
vessels in excess of the possession limits specified in paragraph
(c)(6) of this section to defray the cost of sea scallop research shall
not exceed 1 percent of the overall TAC for each Sea Scallop Access
Area. The following amounts represent 1 percent of those TACs:
(A) Hudson Canyon Sea Scallop Access Area - 2003 area access
program - 77 mt;
(B) Virginia Beach Sea Scallop Access Area - 2003 area access
program - 1 mt.
* * * * *
(f) Termination of the Sea Scallop Area Access Program--(1) Hudson
Canyon Sea Scallop Access Area. The Hudson Canyon Sea Scallop Access
Area fishery for fishing year 2003 shall be terminated as of the date
the Regional Administrator projects that 7,585 mt of sea scallops (the
TAC less the observer and research set-asides) will be caught
[[Page 9588]]
by vessels fishing in the Hudson Canyon Sea Scallop Access Area
described in this section. NMFS shall publish notification of the
termination in the Federal Register.
(2) Virginia Beach Sea Scallop Access Area. The Virginia Beach Sea
Scallop Access Area fishery for fishing year 2003 shall be terminated
as of the date the Regional Administrator projects that 103 mt of sea
scallops (the TAC less the observer and research set-asides) will be
caught by vessels fishing in the Virginia Beach Sea Scallop Access Area
described in this section. NMFS shall publish notification of the
termination in the Federal Register.
* * * * *
[FR Doc. 03-4782 Filed 2-25-03; 2:55 pm]
BILLING CODE 3510-22-S