Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery and Northeast Multispecies Fishery; Framework Adjustment 26; Endangered and Threatened Wildlife; Sea Turtle Conservation

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS approves and implements through regulations the measures included in Framework Adjustment 26 to the Atlantic Sea Scallop Fishery Management Plan, which the New England Fishery Management Council adopted and submitted to NMFS for approval. The purpose of Framework 26 is to prevent overfishing, improve yield-per-recruit, and improve the overall management of the Atlantic sea scallop fishery. Framework 26 sets fishing specifications for 2015, including catch limits, days-at-sea allocations, individual fishing quotas, and sea scallop access area trip allocations. In addition, Framework 26 closes a portion of the Elephant Trunk Access Area and extends the boundaries of the Nantucket Lightship Access Area to protect small scallops, adjusts the State Waters Exemption Program, allows for Vessel Monitoring System declaration changes for vessels to steam home with product on board, implements a proactive accountability measure to protect windowpane flounder and yellowtail flounder, aligns two gear measures designed to protect sea turtles, and implements other measures to improve the management of the scallop fishery. Aligning the gear measures designed to protect sea turtles involves modifying existing regulations implemented under the Endangered Species Act; therefore, this action is implemented under joint authority of the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

Effective May 1, 2015, except for the amendment to § 648.51(b)(4)(iv), which will be effective May 21, 2015.

ADDRESSES:

The Council developed an environmental assessment (EA) for this action that describes the action and other considered alternatives and provides a thorough analysis of the impacts of these measures. Copies of the Framework, the EA, and the Initial Regulatory Flexibility Analysis (IRFA), are available upon request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/IRFA is also accessible via the Internet at http://www.nefmc.org/scallops/index.html or http://www.greateratlantic.fisheries.noaa.gov/regs/2015/March/15scalfw26turtlepr.html .

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

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

The Council adopted Framework 26 on November 20, 2014, and submitted it to NMFS on February 17, 2015, for review and approval. Framework 26 specifies measures for fishing year 2015, but includes fishing year 2016 measures that will go into place as a default, should the next specifications-setting framework be delayed beyond the start of fishing year 2016. Fishing year 2015 default allocations have been in place since March 1, 2015, and allow for only 17 DAS and zero access area trips. The default measures are replaced by the higher Framework 26 allocations described below. Details concerning the development of these measures were contained in the preamble of the proposed rule and are not repeated here.

Specification of Scallop Overfishing Limit (OFL), Acceptable Biological Catch (ABC), Annual Catch Limits (ACLs), Annual Catch Targets (ACTs), and Set-Asides for the 2015 Fishing Year and Default Specifications for Fishing Year 2016

The allocations incorporate new biomass reference points that resulted from the Northeast Fisheries Science Center's most recent scallop stock benchmark assessment that was completed in July 2014. The assessment reviewed and updated the data and models used to assess the scallop stock and ultimately updated the reference points for status determinations. A comparison of the old and new reference points is outlined in Table 1.

Due to these reference point updates, we are updating the fishing mortality rates that the Council uses to set OFL, ABC, and ACL through this action. The Council set OFL based on an F of 0.48, equivalent to the F threshold updated through the 2014 assessment. The Council set ABC and the equivalent total ACL for each fishing year using an F of 0.38, which is the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee recommended scallop fishery ABCs for the 2015 and 2016 fishing years of 55.9 million lb (25,352 mt) and 70.1 million lb (31,807 mt), respectively, after accounting for discards and incidental mortality. The Scientific and Statistical Committee will reevaluate an ABC for 2016 when the Council develops the next framework adjustment. Table 2 outlines the scallop fishery catch limits derived from the ABC values.

This action deducts 567 mt of scallops annually for 2015 and 2016 from the ABC and sets it aside as the Scallop research set-aside (RSA) to fund scallop research and to compensate participating vessels through the sale of scallops harvested under RSA projects. Framework 26 allows RSA to be harvested from the Mid-Atlantic Access Area that is opened for 2015, once this action is approved and implemented, but would prevent RSA harvesting from access areas under 2016 default measures. Of this 1.25 M lb (567 mt) allocation, NMFS has already allocated 397,470 lb (180.3 mt) to previously funded multi-year projects as part of the 2014 RSA awards process. NMFS reviewed proposals submitted for consideration of 2015 RSA awards and will be selecting projects for funding in the near future.

This action also sets aside 1 percent of the ABC for the industry-funded observer program to help defray the cost to scallop vessels that carry an observer. The observer set-asides for fishing years 2015 and 2016 are 254 mt and 318 mt, respectively. In fishing year 2015, the compensation rates for limited access vessels in open areas fishing under days-at-sea (DAS) is 0.08 DAS per DAS fished, and for access area trips the compensation rate is 150 lb, in addition to the vessel's possession limit for the trip for each day or part of a day an observer is onboard. LAGC IFQ vessels may possess an additional 150 lb per trip in open areas when carrying an observer. NMFS may adjust the compensation rate throughout the fishing year, depending on how quickly the fleets are using the set aside. The 2016 observer set-aside may be adjusted by the Council when it develops specific, non-default measures for 2016.

Open Area DAS Allocations

This action implements vessel-specific DAS allocations for each of the three limited access scallop DAS permit categories (i.e., full-time, part-time, and occasional) for 2015 and 2016 (Table 3). Fishing year 2015 DAS allocations are almost identical to those allocated to the limited access fleet in 2014 (31 DAS for full-time, 12 DAS for part-time, and 3 DAS for occasional vessels). Fishing year 2016 DAS allocations are precautionary, and are set at 75 percent of what current biomass projections indicate could be allocated to each limited access scallop vessel for the entire fishing year. This is to avoid over-allocating DAS to the fleet in the event that the framework that would set those allocations is delayed past the start of the 2016 fishing year. The allocations in Table 3 exclude any DAS deductions that are required if the limited access scallop fleet exceeded its 2014 sub-ACL. The DAS values in Table 3 take into account a slight DAS reduction (0.14 DAS) to account for vessels steaming to southern ports while not accruing DAS (See Adjustment to Vessel Monitoring System (VMS) Declaration Procedures for Some Open Area Trips). In addition, the Council requested that DAS allocations now be specified to the hundredth decimal place, rather than rounding up or down to whole DAS. This is consistent with DAS accounting as vessels use DAS throughout the year. Table 3 also includes 2015 Default DAS that are replaced by the 2015 DAS.

LA Allocations and Trip Possession Limits for Scallop Access Areas

For fishing year 2015 and the start of 2016, Framework 26 closes all three Georges Bank Access Areas (i.e., Nantucket Lightship (NLS), Closed Area 1, and Closed Area 2 Access Areas) and opens all three Mid-Atlantic Access Areas (i.e., Elephant Trunk, Delmarva, and Hudson Canyon Access Areas combined). This action extends the boundaries of the NLS Access Area that will be closed to the scallop fleet to include a concentration of small scallops near the existing boundary along the southeast corner, currently considered part of the open area. Opening this NLS extended closure area, which increases the NLS Access Area boundary by 158 square miles (409 square km), will be reconsidered in a future framework action when the scallops are larger and ready for harvest.

This action opens all three Mid-Atlantic access areas to both the limited access and LAGC IFQ fleet, and treats the three areas as one single area. This is named the Mid-Atlantic Access Area under this action. Scallop vessels are able to fish across all three areas in a single access area trip, except in one area within the Mid-Atlantic Access Area that is closed to scallop fishing. This area is seven 10-minute squares (i.e., 548 square nautical miles, 1419 square km) in the northwest corner of the Elephant Trunk Access Area, and is closed to protect small scallops. This area constitutes roughly 35 percent of the current Elephant Trunk Access Area. The closure allows for the small concentrations of scallops in this portion of the access area to be protected as they grow to a more harvestable size. This action prohibits transiting across this small area due to its small size and because the incentive to fish in the area is relatively high due to the high abundance of scallops.

Table 4 outlines the limited access allocations that can be fished from the Mid-Atlantic Access Area. Vessels can take this allocation in as many trips as needed, so long as vessels do not exceed the trip possession limits (also in Table 4). These access area allocations for 2015 represent a 112-percent increase in access area allocations compared to 2014.

This action also modifies access area trip reporting procedures by requiring that each limited access vessel submit a pre-landing notification form through its VMS unit prior to returning to port at the end of each access area trip, including trips where no scallops are landed. These pre-landing notifications replace the current broken trip and compensation trip procedures. Vessels are no longer required to submit a broken trip notification form if they are unable to land their full possession limits on an access area trip. Vessels also no longer need to apply to NMFS to receive, or wait for NMFS to issue, a compensation trip to fish their remaining access area scallop allocation.

For example, under Framework 26 access area allocations, a full-time vessel receives 51,000 lb (23,133 kg) in the Mid-Atlantic Access Area. That allocation can be landed on as many or as few trips as needed, so long as the 17,000-lb (7,711-kg) possession limit is not exceeded on any one trip. The vessel may choose to fish its full allocation over the course of three trips, landing the maximum allowance of 17,000 lb (7,711 kg) on each trip, or it can choose to fish its full allocation over the course of two, three, or more trips, landing less than the trip possession limit on each trip. Regardless, the vessel must submit a pre-landing notification form prior to returning to port for each access area trip, but does not have to wait for NMFS to issue a compensation trip prior to starting its next access area trip.

Under this action, each vessel automatically carries over unharvested access area allocation that the vessel can fish in the first 60 days of the subsequent fishing year, as long as the access area is open for scallop fishing during that time. This change results in little change to the amount of carryover NMFS expects from year to year because most vessels with unharvested access area pounds took advantage of the broken trip provisions. Also, Framework 26 accounts for the uncertainty associated with carryover by setting the limited access fishery's ACT lower than the fishery's ACL. The ACT is meant to prevent carryover from causing the fleet to exceed an ACL.

Although vessel owners are ultimately responsible for tracking their own scallop access area landings and ensuring they do not exceed their annual allocations, NMFS will match dealer-reported scallop landing records with access area trip declarations and make that information available on the web-based allocation monitoring tool, Fish-On-Line, which each vessel owner can access and review.

Adjustment to VMS Declaration Procedures for Some Open Area Trips

This action enables a vessel to declare out of a DAS trip at or south of Cape May, NJ (specifically, at or south of 39° N. lat.), once it goes inside the VMS demarcation line, and then, with scallops on board, steam seaward of the VMS demarcation line to ports south of Cape May, NJ, without being charged DAS. This measure does not apply to vessels that intend to land scallops in ports north of Cape May, NJ. Once this change in declaration to “declare out of fishery” has been made, vessels are required to submit a scallop pre-landing notification form through VMS, return directly to port and offload scallops immediately, and stow all gear. In addition, such vessels are prohibited from having on board any in-shell scallops. The purpose of the is measure is to provide an incentive for vessels to land scallops in the fishery's southern-most ports by reducing some of the steaming time to return from more distant and heavily fished fishing grounds.

Because this change in when some vessels may “clock out” of their DAS could impact overall DAS allocations to the fleet, this action also reduces the overall DAS allocated to each limited access scallop vessel. The DAS adjustment (which has already been calculated into the DAS allocations proposed in Table 3) is a decrease of 0.14 DAS for full-time vessels and 0.06 DAS for part-time vessels. This measure, including the appropriate DAS deductions, was supported by the Council's Advisory Panel.

Additional Access Area Measures To Reduce Impacts on Small Scallops

1. Crew Limit Restrictions in Access Areas. This action implements crew limits for all access areas. In an effort to protect small scallops and discourage vessels from high-grading (discarding smaller scallops in exchange for larger ones), Framework 26 imposes a crew limit of eight individuals per limited access vessel, including the captain, when fishing in any scallop access area. If a vessel is participating in the small dredge program, it may not have more than six people on board, including the captain, on an access area trip. These crew limits may be reevaluated in a future framework action.

2. Delayed Harvesting of Default 2016 Mid-Atlantic Access Area Allocations. Although the Framework includes precautionary access area allocations for the 2016 fishing year (see 2016 allocations in Table 4), vessels have to wait to fish these allocations until April 1, 2016. This precautionary measure is designed to protect scallops when scallop meat weights are lower than other times of the year (generally, this change in meat-weight is a physiological change in scallops due to spawning). However, if a vessel has not fully harvested its 2015 scallop access area allocation in fishing year 2015, it may still fish the remainder of its allocation in the first 60 days of 2016 (i.e., March 1, 2016, through April 29, 2016).

3. 2016 RSA Harvest Restrictions. This action prohibits vessels participating in RSA projects from harvesting RSA in the Mid-Atlantic Access Area under default 2016 measures. At the start of 2016, RSA can only be harvested from open areas. This will be re-evaluated for the remainder of 2016 in the framework action that would set final 2016 specifications.

LAGC Measures

1. Sub-ACL for LAGC vessels with IFQ permits. For LAGC vessels with IFQ permits, this action implements a 1,225-mt ACL for 2015 and an initial ACL of 1,545 mt for 2016 (Table 2). We calculate IFQ allocations by applying each vessel's IFQ contribution percentage to these ACLs. These allocations assume that no LAGC IFQ AMs are triggered. If a vessel exceeds its IFQ in a given fishing year, its IFQ for the subsequent fishing year would be reduced by the amount of the overage.

Because Framework 26 is being implemented after the March 1 start of fishing year 2015, the default 2015 IFQ allocations went into place automatically on March 1, 2015. This action increases the current vessel IFQ allocations. NMFS sent a letter to IFQ permit holders providing both March 1, 2015, IFQ allocations and Framework 26 IFQ allocations so that vessel owners know what mid-year adjustments will occur now that Framework 26 is approved.

2. Sub-ACL for Limited Access Scallop Vessels with IFQ Permits. For limited access scallop vessels with IFQ permits, this action implements a 123-mt ACL for 2015, and an initial 154-mt ACL for 2016 (Table 2). We calculate IFQ allocations by applying each vessel's IFQ contribution percentage to these ACLs. These allocations assume that no LAGC IFQ accountability measures (AMs) are triggered. If a vessel exceeds its IFQ in a given fishing year, its IFQ for the subsequent fishing year will be reduced by the amount of the overage.

3. LAGC IFQ Trip Allocations and Possession Limits for Scallop Access Areas. Framework 26 allocates the LAGC IFQ vessels a fleetwide number of trips that can be taken in the Mid-Atlantic Access Area. Framework 26 allocates 2,065 and 602 trips in 2015 and 2016, respectively, to this area. Under default 2016 measures, LAGC IFQ vessels must wait to fish these trips until April 1, 2016.

These trip allocations are equivalent to the overall proportion of total catch from access areas compared to total catch. For example, the total projected catch for the scallop fishery in 2015 is 20,865 mt, and 8,700 mt are projected to come from access areas, roughly 41.7 percent. If the same proportion is applied to total LAGC IFQ catch, the total allocation to LAGC IFQ vessels from access areas would be about 600 mt, roughly 44.5 percent of the total LAGC IFQ sub-ACL for 2015 (1,348 mt).

4. Northern Gulf of Maine (NGOM) TAC. This action allocates a 70,000-lb (31,751-kg) annual NGOM TAC for fishing years 2015 and 2016. The allocation for 2015 assumes that there are no overages in 2014, which would trigger a pound-for-pound deduction in 2015 to account for the overage.

5. Scallop Incidental Catch Target TAC. This action allocates a 50,000-lb (22,680-kg) scallop incidental catch target TAC for fishing years 2015 and 2016 to account for mortality from this component of the fishery, and to ensure that F targets are not exceeded. The Council and NMFS may adjust this target TAC in a future action if vessels catch more scallops under the incidental target TAC than predicted.

Adjustments to Gear Modifications To Protect Sea Turtles

This action adjusts season regulations for the sea turtle deflector dredge (TDD) and area regulations for the sea turtle chain mat to make them consistent by moving the chain mat requirement line to 71° W. long. and changing the end of the TDD season from October to November. By making the area and season for these two gear modifications consistent, west of 71° W. long. from May through November, the conservation benefit of the current chain mat and TDD requirements is maintained, while reducing the regulatory complexity of differing seasons and areas. Any reduction in the size of the area in which chain mats would be required is balanced by an extension of the season that TDDs would be required.

This action also makes a very slight modification to the TDD gear regulations for safety purposes. Current TDD gear regulations allow for a flaring bar to ensure safe handling of the dredge. Prior to this action, this flaring bar could only be attached to the dredge frame on one side. This action adjusts this regulation to allow for a bar or “u”-shaped flaring mechanism to support safety at sea. Allowing a u-shaped flaring mechanism should not have an impact on sea turtles and the effectiveness of the TDD because the flaring bar or mechanism would still be prohibited from being attached within 12 inches (30.5 cm) of the “bump out” of the TDD and not between the bale bars. This change requires that each side of the bar or mechanism be no more than 12 inches (30.5 cm) in length.

This action does not change any other regulatory requirements for the use of chain mats and TDDs.

Adjustments to the State Water Exemption Program To Include NGOM Management Area Exemptions

Framework 26 modifies the State Water Exemption Program to include a new exemption that enables scallop vessels to continue to fish in state waters after the NGOM hard TAC is reached. This action expands the exemptions to include this new measure related to the NGOM. Specifically, states within the NGOM management area (i.e., Massachusetts, New Hampshire, and Maine) can request an exemption from the regulation that requires that scallop vessels must stop fishing in the state waters portion of the NGOM once the Federal TAC has been reached. States have to apply for this exemption and specify to which vessels this would apply (e.g., vessels with NGOM permits, IFQ permits, incidental permits, or limited access permits).

This measure alleviates the concerns of Maine permit holders about their ability to fish in state waters when the state season is open in the winter if the NGOM TAC is reached by giving the state the ability to apply for an exemption through the State Water Exemption Program. Because the NGOM Federal TAC is set based only on the Federal portion of the resource, NMFS does not expect this measure to compromise the Atlantic Sea Scallop Fishery Management Plan's (FMP's) limits on catch and mortality.

Proactive AMs for Flatfish Protection

Prior to Framework 26, all scallop vessels (i.e., limited access and LAGC) fishing for scallops with dredges in open areas west of 71° W. long. were required to have their dredges configured so that no dredge has more than seven rows of rings in the apron (i.e., the area between the terminus of the dredge (clubstick) and the twine top) on the topside of the dredge. The twine top helps finfish (flatfish in particular) escape from the dredge during fishing and the maximum number of rows of rings prevents fishermen from making the twine top small and ineffective in reducing bycatch. Framework 26 extends this proactive accountability measure to all areas where scallop fishing occurs (i.e., all access and open areas). This increased spatial coverage may further reduce flatfish bycatch by preventing dredge configurations using more than seven rows of rings. This is considered to be a proactive AM because it may help the fishery stay below the sub-ACLs for flatfish (yellowtail flounder and windowpane flounder, currently). Additionally, this measure enables vessels to voluntarily fish with an even shorter apron (less than seven rings), to proactively reduce flatfish bycatch in any area or season.

Regulatory Corrections Under Regional Administrator Authority

This rule includes several revisions to the regulatory text to address text that is unnecessary, outdated, unclear, or otherwise could be improved. NMFS changes these consistent with section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. Two revisions clarify how to apply and measure gear modifications to ensure compliance. The first revision at § 648.51 clarifies where to measure meshes to ensure twine top compliance. The second revision at § 648.53 clarifies an example on how the hanging ratio should be applied and measured if the windowpane reactive AM implemented through Framework 25 (June 26, 2014; 79 FR 34251) is triggered.

This action also modifies the VMS catch report requirements at § 648.10(f)(4)(i) to only include the information used by NMFS to monitor flatfish bycatch. The form currently requires that the amount of yellowtail flounder discards be reported daily. This requirement has been in place since Amendment 15 to the Scallop FMP (76 FR 43746; July 21, 2011), which established the yellowtail flounder AMs in the FMP. However, since the implementation of Amendment 15, the scallop fishery now has other bycatch sub-ACLs and AMs (e.g., SNE/MA windowpane flounder) which are not captured in this form. In addition, current bycatch monitoring relies solely on observer reports to determine bycatch discards for these species. In order to minimize confusion, and because this information is not necessary for bycatch monitoring, we will remove the reference to reporting yellowtail discards. Instead, the vessels will report daily scallop catch and the amount of all other species kept.

In addition, this action adjusts the regulations at § 648.53(a) to clarify that the values for ABC/ACL stated in the regulations reflect the levels from which ACTs are set, thus they do not include estimates of discards and incidental mortality. This regulatory clarification is at the request of the Council and more accurately reflects the process for establishing ABCs and ACLs in the scallop fishery.

Comments and Responses

NMFS received six comment letters in response to the proposed rule from: Fisheries Survival Fund, a scallop fishing industry organization; the Maine Department of Marine Resources; and four individuals. We provide responses below to the issues these commenters raised. NMFS may only approve, disapprove, or partially approve measures in Framework 26, and cannot substantively amend, add, or delete measures beyond what is necessary under section 305(d) of the Magnuson-Stevens Act to discharge its responsibility to carry out such measures.

Comment 1: Fisheries Survival Fund, which represents a majority of the limited access scallop fleet, was supportive of this action, but asked that we waive the delay of effectiveness period for the measures related to access area allocations and DAS. It asked that we retain the 30-day delay of effectiveness period for other measures that may require some time for the industry to make the necessary changes, e.g., gear modifications.

Response: NMFS agrees with the timing suggestions and will be implementing all measures upon publication of this final rule, with the exception of the maximum seven-row apron requirement. This measure will have a 30-day delay in effectiveness.

Comment 2: One commenter was concerned that, because the Georges Bank Access Areas are closing and the Mid-Atlantic Access Area is opening in May, there may be a gear conflict with 15-20 monkfish gillnetters in the Delmarva Access Area. The commenter was concerned that the scallop vessels would dredge through their gear because April through June is the height of the monkfish fishing season.

Response: The scallop fishery operates year round. The delayed opening of Delmarva in fishing year 2014 (mid-June instead of March 1) was a result of a delay in the Council's submission of Framework Adjustment 26 to the Atlantic Sea Scallop FMP due to additional alternatives that were added late in the process. This action was intended to be in place before May. In the past, when we had 2-year specifications, the Delmarva area was opened on March 1. Also, the Delmarva area is currently opened to scallop fishing from 2014 carryover trips and will be through April. The commenter did not ask us to delay access to this area to give the monkfish fleet time to make the necessary adjustments, but they asked that we not allow scallopers in the area until they were done fishing. We cannot delay access area trips to prevent gear conflict because the Council did not address this issue in Framework 26. Section 305(1)(K) of the Magnuson-Stevens Act prohibits the negligent removal or damaging of fishing gear owned by another person, which is located in the exclusive economic zone, or the fish contained in such fishing gear. We will remind the scallop fleet of this prohibition in a bulletin announcing the implementation of Framework 26.

Comment 3: The Maine Department of Marine Resources commented in support of the rule, in particular, the proposed modifications to the State Water Exemption Program.

Response: NMFS appreciates the comment.

Comment 4: One commenter stated that fishing year 2015 scallop quotas should be reduced by 25 percent to account for poaching.

Response: There is no evidence in the record to support neither this assertion nor the need to reduce scallop quotas by 25 percent to address poaching. As we discuss in the preambles to both the proposed and final rules, the quota allocations for fishing years 2015 and 2016 are based on the best scientific information available and are consistent with the control rules outlined in the ACL process established under Amendment 15 to the FMP. We do not currently consider scallops overfished or subject to overfishing. Sufficient analysis and scientific justification for our action in this final rule are contained within the supporting documents.

Comment 5: One commenter stated that anyone who kills a turtle should be fined $1 million.

Response: As discussed in the preamble, the measures in this action to address turtle interactions were determined to be conservation neutral by balancing the smaller area for the turtle chain mat requirement with the additional months for the Turtle Deflector Dredge. Addressing any fines for the incidental take of turtles is not within the scope or authority for this type of action.

Comment 6: One commenter requested that we increase the 40-lb possession limit for vessels with incidental LAGC permits.

Response: Framework 26 did not include or analyze any alternatives regarding changes to possession limits for LAGC incidental permits. NMFS can only approve or disapprove this framework and cannot in this action add additional substantive measures not contained in the framework. The Council would have to consider this change in a subsequent action.

Comment 7: One commenter simply stated that he opposed this action because he loves and needs scallops.

Response: Framework 26 creates two closure areas to protect small scallops in the Elephant Trunk and Nantucket Lightship Access Areas, and NMFS has managed scallop fishing through area-based management since 1999. By protecting small scallops through area-based management, NMFS and the Council hope to support long term optimum yield. Under this management, NMFS and the Council intend to support this fishery that fills a demand for scallops that the U.S. and world love.

Changes From Proposed Rule to Final Rule

We corrected a typographical error that referenced section § 648.65, and we included changes to the regulatory text to §§ 648.58, 648.59, and 648.61 clarify the description of the regulated areas defined under the Scallop FMP.

Classification

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

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

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

This action contains collection-of-information requirements subject the Paperwork Reduction Act (PRA). The two requirements were approved by OMB under the NMFS Greater Atlantic Region Scallop Report Family of Forms (OMB Control No. 0648-0491). Under Framework 26, all 347 limited access vessels are required to submit a pre-landing notification form for each access area trip through their VMS units. This information collection is intended to improve access area trip monitoring, as well as streamline a vessel's ability to fish multiple access area trips. Although this is a new requirement, it replaces other reporting procedures currently required for breaking an access area trip and receiving permission to take a compensation trip to harvest remaining unharvested scallop pounds from an access area trip. The action also includes a new requirement for some limited access vessels to report a pre-landing notification form through their VMS unit before changing their open area trip declaration to a “declared out of fishery declaration,” which is expected to add a burden to a very small portion of the fleet. Public reporting burden for submitting these pre-landing notification forms is estimated to average 5 minutes per response with an associated cost of $1.25, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This requirement applies to a few vessels that intend to land open area scallops at ports south of Cape May, NJ, and want to steam to those ports while not using DAS. This new pre-landing requirement is necessary to enforce a measure intended to assist shoreside businesses in southern ports by providing an incentive for vessels to steam to ports far away from popular open area fishing grounds.

In a given fishing year, NMFS estimates that for access area reporting, each of the 313 full-time limited access vessels will submit a pre-landing report 5 times (1,565 responses), and each of the 34 part-time limited access vessel will submit a pre-landing report up to 3 times (102 responses), for a total of 1,667 responses. These 1,667 responses impose total compliance costs of $2,084 on the whole fishery, but this cost is offset by the reduction in burden from the replaced trip termination and compensation trip reporting procedures, which were estimated to cost a total of $300 annually. Thus, the additional burden for this new pre-landing requirement is $1,785 ($2,085−$300), or $5.14 per vessel. This is likely an overestimate, but accounts for the potential of higher access area scallop allocations in future fishing years.

For the new DAS pre-landing requirements, NMFS estimates that this will likely impact 30 vessels and result in each of those vessels reporting one time a year. Public reporting burden for submitting these pre-landing notification forms is also estimated to average 5 minutes per response with an associated cost of $1.25. Therefore, the total cost of this will impose total compliance costs of $38 (30 vessels × $1.25). The total additional burden for all vessels from both of these new pre-landing requirements is $1,823.

The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for the scallop fishery and certain fish stocks constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness and to make the majority of Framework 26 final measures effective May 1, 2015, or upon publication in the Federal Register if published after May 1, 2015. The only exception to this waiver is the proactive accountability measure for bycatch requiring a maximum of seven rows of rings in the topside of the apron found in § 648.51(b)(4)(iv). This measure is effective 30 days after the publication date, in order to give vessels the opportunity to modify their gear to comply with regulations.

If there is a 30-day delay in implementing the measures in Framework 26, the scallop fleet will continue under the current default access area, DAS, IFQ, RSA, and observer set-aside allocations. These default allocations were purposely set to be more conservative than what would eventually be implemented under Framework 26. Under default measures, each full-time vessel has 17 DAS and no access area allocation. If the rule is not in place May 1, many scallopers will not be able to fish because they have already used a significant portion of their default DAS. This action gives them another 13.86 DAS. More importantly, the entire fleet will not be allowed in the Access Area. Each full time vessel will receive an additional 51,000 to be harvested in the Mid-Atlantic Access Area with this action. This action, therefore, relieves restrictions on the scallop fleet by providing full-time vessels with an additional 13.86 DAS (30.86 DAS total) and 51,000 lb in access area allocation. Further, the catch rates, meat weights, and meat quality in Mid-Atlantic Access Area are best from May through July. Improving these parameters helps conserve the scallop resources in the access areas because it limits the number of individuals that scallop fishermen must harvest to reach a possession limit. Maximizing catch rates, meat weights, and meat quality will help the scallop fleet achieve optimum yield in the Mid-Atlantic Access Area, which is the central goal of the access area rotation program. Therefore, the greatest benefits to the scallop fishing industry, the scallop resource, and the public would come from earlier access in May. This provides more time for vessels to fish during the most productive time for the resource. Delaying the implementation of Framework 26 for 30 days would be contrary to the public interest because continuing with these lower allocations would negatively impact the access area rotation program, as well as the scallop fleet economically. Any delay in implementation past May 1st would reduce the amount of time that scallop fishermen are able to fish in the Mid-Atlantic Access Area under the conditions that are ideal under the access area rotation program.

For the reasons discussed above, to maximize conservation and economic benefits it necessary to allow access to the Mid-Atlantic Access Area on May 1. NMFS was unable to allow for a 30-day delay in effectiveness for Framework 26 rulemaking and allow access to the Mid-Atlantic Access Area on May 1. The Council's February 2015 submission of Framework 26 initiated a timeline for implementation that did not for both the 30-day delay in effectiveness and May 1 access to the Mid-Atlantic Access Area. However, NMFS must also consider the need of the scallop industry to have prior notice in order to make the necessary preparations to comply with changes to the gear required by the proactive accountability measure for bycatch. For these reasons, NMFS has determined that implementing these measures immediately, and with a 30-day delay in effectiveness of the proactive accountability measure for bycatch, would have the greatest public benefit.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 26 in this final rule. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, a summary of the analyses completed in the Framework 26 EA, and this portion of the preamble. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this rule is contained in Framework 26 and in the preamble to the proposed and this final rule, and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and a copy of the IRFA, the Regulatory Impact Review (RIR), and the EA are available upon request (see ADDRESSES).

A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

NMFS received no public comments directly in response to the IRFA summary or regarding economic impacts in the proposed rule.

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

The regulations affect all vessels with limited access and LAGC scallop permits. The Framework 26 document provides extensive information on the number and size of vessels and small businesses that will be affected by these regulations, by port and state (see ADDRESSES). There were 313 vessels that obtained full-time limited access permits in 2013, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time limited access permits in the sea scallop fishery. No vessels were issued occasional scallop permits. NMFS issued 212 LAGC IFQ permits in 2013, and 155 of these vessels actively fished for scallops that year (the remaining permits likely leased out scallop IFQ allocations with their permits in Confirmation of Permit History). The Small Business Administration (SBA) defines a small business in shellfish fishery as a firm that is independently owned and operated and not dominant in its field of operation, with receipts of up to $5.5 M annually. Matching the potentially impacted 2013 fishing year permits described above (LA and LAGC IFQ) to calendar year 2013 ownership data results in 172 distinct ownership entities for the limited access fleet and 115 distinct ownership entities for the LAGC IFQ fleet. Of these, and based on the SBA guidelines, 154 of the limited access distinct ownership entities and all 115 of the LAGC IFQ entities are categorized as small. The remaining 18 of the limited access entities are categorized as large entities, all of which are shellfish businesses.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

This action contains collection-of-information requirements subject to the PRA. The OMB, under the NMFS Greater Atlantic Region Scallop Report Family of Forms (OMB Control No. 0648-0491), approved the two requirements.

Under this action, all 347 limited access vessels are required to submit a pre-landing notification form for each access area trip through their VMS units. NMFS intends that this information collection will improve access area trip monitoring, as well as streamline a vessel's ability to fish multiple access area trips. Although this is a new requirement, it replaces other reporting procedures currently required for breaking an access area trip and receiving permission to take a compensation trip to harvest remaining unharvested scallop pounds from an access area trip. The action also includes a new requirement for some limited access vessels to report a pre-landing notification form through their VMS unit before changing their open area trip declaration to a “declared out of fishery declaration,” which is expected to add a burden to a very small portion of the fleet. This requirement only applies to a few vessels that intend to land open area scallops at ports south of Cape May, NJ, and want to steam to those ports while not using DAS. This new pre-landing requirement is necessary to enforce a measure intended to assist shoreside businesses in southern ports by providing an incentive for vessels to steam to ports far away from popular open area fishing grounds.

Notification requires the dissemination of the following information: Operator's permit number; amount of scallop meats and/or bushels to be landed; the estimated time of arrival; the landing port and state where the scallops will be offloaded; and the vessel trip report (VTR) serial number recorded from that trip's VTR. This information will be used by the NMFS Office of Law Enforcement to monitor vessel activity and ensure compliance with the regulations.

The burden estimates for these new requirements apply to all limited access vessels. In a given fishing year, NMFS estimates that for access area reporting, each of the 313 full-time limited access vessels will submit a pre-landing report 5 times (1,565 responses), and each of the 34 part-time limited access vessel will submit a pre-landing report up to 3 times (102 responses), for a total of 1,667 responses. Public reporting burden for submitting these pre-landing notification forms is estimated to average 5 minutes per response with an associated cost of $1.25, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Therefore, 1,667 responses impose total compliance costs of $2,084 across the whole fishery; however, this new requirement replaces current trip termination and compensation trip reporting procedures, which were estimated to cost a total of $300 annually, so the additional burden for this new pre-landing requirement is actually $1,785 ($2,085−$300), or $5.14 per vessel. This figure is likely an overestimate, but accounts for the potential of higher access area scallop allocations in future fishing years. For the new DAS pre-landing requirements, NMFS estimates that this will likely impact 30 vessels and result in each of those vessels reporting one time a year. Public reporting burden for submitting these pre-landing notification forms is also estimated to average 5 minutes per response with an associated cost of $1.25. Therefore, the total cost of this will impose total compliance costs of $38 (30 vessels x $1.25). The total additional burden from both of these new pre-landing requirements will be $1,823.

NMFS sought public comment regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. NMFS did not receive any comments regarding these collections of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

This action contains no other compliance costs. 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

During the development of Framework 26, NMFS and the Council considered ways to reduce the regulatory burden on, and provide flexibility for, the regulated entities in this action. For example, they removed the requirement to send in broken trip forms and process compensation trips, and they allowed carryover of all access area allocation 60 days into the following fishing year. Final actions and alternatives are described in detail in Framework 26, which includes an EA, RIR, and IRFA (available at ADDRESSES). The measures implemented by this final rule minimize the long-term economic impacts on small entities to the extent practicable. The only alternatives for the prescribed catch limits that were analyzed were those that met the legal requirements to implement effective conservation measures. Catch limits are fundamentally a scientific calculation based on the Scallop FMP control rules and SSC approval, and therefore are legally limited to the numbers contained in this rule. Moreover, the limited number of alternatives available for this action must be evaluated in the context of an ever-changing fishery management plan that has considered numerous alternatives over the years and have provided many mitigating measures applicable every fishing year.

Overall, this rule minimizes adverse long-term impacts by ensuring that management measures and catch limits result in sustainable fishing mortality rates that promote stock rebuilding, and as a result, maximize yield. The measures implemented by this final rule also provide additional flexibility for fishing operations in the short-term. This final rule implements several measures that enable small entities to offset some portion of the estimated economic impacts. These measure include: Removing the requirement to send in broken trip and compensation trip forms; allowing vessels to harvest access area quota in any of the three access areas; aligning the gear designed to protect sea turtles; allowing vessel landing at a port south of 39 degrees N. lat. to “declare out of fishery with product on board” to reduce DAS use while transiting; and modifying the State Waters Exemption Program to allow vessels to continue to fish in state waters if the NGOM TAC is reached.

List of Subjects

50 CFR Part 223

• Endangered and threatened species
• Exports
• Imports
• Transportation

50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

For the reasons set out in the preamble, 50 CFR parts 223 and 648 is amended as follows:

PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

1. The authority citation for part 223 continues to read as follows:

Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

2. In § 223.206, paragraph (d)(11) is revised to read as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

4. In § 648.10, paragraphs (e)(5)(iii) and (f)(4) are revised, and paragraph (f)(6) is added to read as follows:

5. In § 648.14, paragraphs (i)(2)(ii)(B), (i)(2)(iii)(C), (i)(2)(v)(D), (i)(3)(iii)(C) and (D), (i)(4)(i)(C), and (i)(5)(iii) are revised, and paragraphs (i)(2)(iv)(D) and (E) and (i)(2)(v)(E) are added to read as follows:

4. In § 648.51:

a. Paragraphs (b)(4)(iv) and (v), (b)(5)(ii)(A) introductory text, (b)(5)(ii)(A)( 3), and (c) introductory text are revised;

b. Paragraph (c)(1) is removed and reserved; and

c. Paragraph (e)(3)(i) is revised.

The revisions read as follows:

5. In § 648.53:

a. Paragraphs (a), (b)(1), and (b)(4) are revised;

b. Paragraph (f)(3) is added; and

c. Paragraph (g)(1) is revised.

The revisions and additions read as follows:

6. In § 648.54, paragraphs (a)(4) and (b) through (g) are revised, and paragraph (h) is added, to read as follows:

7. Section 648.58 is revised to read as follows:

9. In § 648.60, paragraphs (a)(1), (a)(3), (a)(5)(i), (a)(9), (c), (e)(1), and (g)(3)(i) are revised to read as follows:

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

11. In § 648.64, paragraph (a) is revised to read as follows:

12. In § 648.65, paragraph (b)(3)(ii) is revised to read as follows: