Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 21

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS implements the measures included in Amendment 21 to the Atlantic Sea Scallop Fishery Management Plan as adopted and submitted by the New England Fishery Management Council. This action allows for more controlled access to the scallop resource by the limited access and limited access general category fleets and increases monitoring to a growing directed scallop fishery in Federal waters, including the Northern Gulf of Maine Management Area. These management measures are intended to promote conservation of the scallop resource in the Northern Gulf of Maine Management Area and to manage total removals from the area by all fishery components. Amendment 21 also expands flexibility in the limited access general category individual fishing quota fishery to reduce impacts of potential decreases in ex-vessel price and increases in operating costs.

DATES:

Effective March 31, 2022.

ADDRESSES:

The Council has prepared a draft Environmental Assessment (EA) for this action that describes the measures contained in Amendment 21 to the Atlantic Sea Scallop Fishery Management Plan (FMP) and other considered alternatives and analyzes the impacts of these measures and alternatives. The Council submitted a draft of the amendment to NMFS that includes the draft EA, a description of the Council's preferred alternatives, the Council's rationale for selecting each alternative, and a Regulatory Impact Review (RIR). Copies of supporting documents used by the New England Fishery Management Council, including the EA and RIR, are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950 and accessible via the internet in documents available at: https://www.nefmc.org/library/amendment-21.

Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0546.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

On December 3, 2021, pursuant to section 304(a)(3) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS approved Amendment 21 to the Atlantic Sea Scallop FMP in its entirety as recommended by the New England Fishery Management Council. The Council developed this action, and the measures described in this rule, to adjust the Northern Gulf of Maine (NGOM) Management Program to allow more controlled access by the limited access and limited access general category (LAGC) components, increase monitoring to support a growing directed scallop fishery in Federal waters, and adjust the LAGC individual fishing quota (IFQ) program to support overall economic performance while allowing for continued participation in the general category fishery at varying levels.

This final rule implements Amendment 21, which:

• Accounts for biomass in the NGOM as part of the overfishing limit (OFL) and the acceptable biological catch (ABC) to be consistent with other portions of scallop resource management;
• Develops landing limits for all permit categories in the NGOM and establishes an 800,000-lb (362,874-kg) NGOM Set-Aside trigger for the NGOM directed fishery, with a sharing agreement for access by all permit categories for allocation above the trigger. Allocation above the trigger will be split 5 percent for the NGOM fleet and 95 percent for limited access and LAGC IFQ fleets;

○ The NGOM Set-Aside supports a directed LAGC fishery (including NGOM and LAGC IFQ permitted vessels) at a possession limit of 200 lb (90.7 kg) per vessel per day.

○ The Council will determine how allocation above the NGOM Set-Aside trigger could be harvested by the limited access and LAGC IFQ components in a subsequent specifications package or framework adjustment.

• Expands the scallop industry-funded observer program to monitor directed scallop fishing in the NGOM by using a portion of the NGOM allocation to off-set monitoring costs;
• Allocates 25,000 lb (11,340 kg) of the NGOM allocation to increase the overall Scallop Research Set-Aside (RSA) and support Scallop RSA compensation fishing;
• Increases the LAGC IFQ possession limit from 600 lb (272 kg) to 800 lb (363 kg) per trip only for access area trips;
• Prorates the daily observer compensation rate in 12-hour increments for observed LAGC IFQ trips longer than 1 day; and
• Allows for temporary transfers of IFQ from limited access vessels with IFQ to LAGC IFQ-only vessels.

The Magnuson-Stevens Act requires NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with an FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law.

NMFS published a Notice of Availability (NOA) announcing its review of the Amendment on September 8, 2021 (86 FR 50320). The public comment period on the NOA ended on November 8, 2021. NMFS published a proposed rule for Amendment 21 on October 5, 2021 (86 FR 54903). The public comment period for the proposed rule ended on November 4, 2021.

Accounting for the NGOM as Part of the Acceptable Biological Catch and Annual Catch Limit

Amendment 21 modifies the annual catch limit (ACL) flowchart to account for the scallop biomass in the NGOM as part of the legal limits in the fishery by adding biomass from the area into calculations of the OFL and ABC. This action moves the accounting of the NGOM ACL from only within the OFL into the OFL and ABC/ACL for the entire fishery (Figure 1). By including exploitable scallop biomass from the NGOM as part of the scallop OFL and ABC, the ACL and sub-ACLs for the limited access and LAGC IFQ, and the limited access annual catch target (ACT) will increase. The observer set-aside will also increase with the NGOM as part of the OFL/ABC. The ABC/ACL will be reduced by the NGOM Set-Aside value, along with the Research and Observer Set-Asides and incidental catch (Figure 1). The Council will set specifications for the NGOM though future specifications actions.

The Council will use the following approach to include the NGOM in the ACL flowchart:

1. Exploitable biomass from surveyed areas of the NGOM will be estimated;

2. The contribution to the OFL will be calculated at the fishing mortality (F) rate equal to the estimate of F at Maximum Sustainable Yield (F_MSY) for Georges Bank from the most recent research or management track assessment, unless direct estimates of F_MSY for the Gulf of Maine are available; and

3. Combining OFL values from areas on Georges Bank/Mid Atlantic and the NGOM could be done in a single model ( e.g., add the NGOM to the Scallop Area Management Simulator model), or as separate calculations. The method will, in part, be determined by the available data.

Incorporating the NGOM into the ACL flowchart will have no impact on limited access days-at-sea (DAS), or any other fishery allocation that is part of the annual projected landings (APL).

Creating the NGOM Total Allowable Limit

Amendment 21 requires that the Council set an overall total allowable limit (TAL) for the NGOM management area for all permit categories. If NGOM survey data are available, the NGOM TAL will be developed using a projection method to estimate exploitable biomass in upcoming fishing years. The allowable landings will be set by applying an F rate ranging from F=0.15 to F=0.25 to exploitable biomass in open areas of the NGOM, as specified by the Council. Modifying the F rate used to set the NGOM TAL could be adjusted in a future specification or framework action. A portion of the NGOM TAL will be added to the fishery-wide RSA (described below). In addition, one percent of the NGOM's contribution to the fishery-wide ABC will be removed from the NGOM TAL to off-set monitoring costs (described below).

NGOM Set-Aside and NGOM Annual Projected Landings

The remaining portion of NGOM TAL after contributions to the fishery-wide observer and RSAs are removed will then be allocated to the NGOM Set-Aside up to the NGOM Set-Aside trigger (800,000 lb (362,874 kg)). The NGOM Set-Aside supports a directed LAGC fishery (including NGOM and LAGC IFQ permitted vessels) in the NGOM Management Area at a possession limit of 200 lb (91 kg) per vessel per day. If there is additional allocation available above the 800,000-lb (362,874-kg) trigger, the allocation above the trigger will be shared between the NGOM Set-Aside (5 percent of the allocation above the trigger) and the NGOM APL (95 percent of the allocation above the trigger). The NGOM APL will then be added to the overall APL to increase allocations for the limited access and LAGC IFQ fleets. If there is allocation above the NGOM Set-Aside trigger, the Council will determine the methods of how the NGOM APL could be harvested by the limited access and LAGC IFQ components in a subsequent specifications package or framework adjustment.

The trip limit for LAGC vessels fishing the NGOM Set-Aside ( i.e., NGOM and IFQ vessels) will be 200 lb (90.7 kg) per vessel per day. Landings from LAGC IFQ vessels fishing the NGOM Set-Aside will be deducted from their IFQ as well as from the NGOM Set-Aside. LAGC vessels with incidental catch permits (LAGC Category C) will be permitted to land up to 40 lb (18 kg) per day while fishing on non-scallop trips in the NGOM, if the area is open for LAGC vessels fishing against the NGOM Set-Aside. Scallop landings by vessels with LAGC incidental permits will not count against the NGOM Set-Aside. Incidental catch from the area will be tracked as part of the final year-end catch accounting.

For catch accounting purposes, all landings from the NGOM will be included in the review of year-end catch data.

NGOM Accountability Measures

Any overage of NGOM Set-Aside or NGOM APL allocations fished inside the NGOM Management Area will be subject to a pound-for-pound payback in a subsequent fishing year after an overage is determined. If reliable data are available to calculate an overage (Year 1), NMFS may implement these accountability measures (AM) in the following fishing year (Year 2) through the rulemaking process for updated fishery specifications. If reliable data are not available in time for the start of the following fishing year, then the AMs will be implemented 2 years after the overage occurred (Year 3). Data may not be available by the start of the following fishing year because NMFS does not complete final catch accounting until June of the following fishing year. For example, if an overage occurred in fishing year 2021, NMFS would not have the final accounting data until June of fishing year 2022. The AMs could then be implemented at the April 1 start of fishing year 2023.

Expanding the Scallop Industry-Funded Observer Program to the NGOM

Amendment 21 expands the observer call-in requirement to all scallop vessels operating in the NGOM, including NGOM-permitted vessels. This expansion of the call-in requirement facilitates observer coverage in the NGOM Management Area.

This action removes one percent of the NGOM ABC from the NGOM TAL to offset monitoring costs for vessels fishing in this area. This allocation will be removed from the NGOM TAL before allocating to the NGOM set-aside. This allocation could be used to support monitoring of all permit categories that have access to the NGOM Management Area. The NGOM monitoring set-aside will be added to the fishery-wide observer set-aside that is calculated as one percent of the ABC.

The scallop observer program will be expanded to cover directed scallop trips in Federal waters in the NGOM Management Area. Scallop trips by LAGC vessels in the NGOM are currently not covered by the observer program. This expanded program will utilize the cumulative allocation of the NGOM observer set-aside and the observer set-aside to support observer coverage in the scallop fishery. All compensation allocation for all observed trips will come out of the same pool, and NMFS will administer a single scallop observer program. At a minimum, observer coverage levels for the NGOM Management Area will be set to meet Standardized Bycatch Reporting Methodology requirements.

The amount of daily compensation available for LAGC trips in the NGOM may vary from the daily compensation rate for LAGC IFQ vessels that have a higher trip limit. Vessels selected to carry an observer will be able to land the full amount of the daily observer compensation rate in addition to the NGOM trip limit. For example, if the daily compensation rate is set at 100 lb (45 kg), vessels with observers would be able to land 300 lb (136 kg) that trip.

NGOM Research Set-Aside

Amendment 21 sets aside 25,000 lb (11,340 kg) from the NGOM TAL to support RSA compensation fishing in the NGOM management area and increase the overall allocation available for the scallop RSA program. The total amount of RSA available will be the sum of the NGOM RSA and the existing 1.25 million-lb (566,990-kg) fishery-wide RSA ( i.e., 1.275 million lb (573,330 kg)).

RSA compensation fishing in the NGOM management area will be allowed. Although, NGOM RSA will be combined with the overall RSA, RSA compensation fishing in the NGOM will be capped at the available NGOM RSA, i.e., 25,000 lb (11,340 kg). Any vessels that are awarded NGOM RSA compensation are required to declare into the area and fish exclusively within the NGOM Management Area. Compensation fishing in the NGOM Management Area could be done to support any research project awarded through the Scallop RSA. However, projects focusing on research in the NGOM will have the first opportunity to fish compensation allocation in the NGOM. NMFS would administer this process.

This action does not mandate that NGOM RSA be harvested strictly in the NGOM Management Area. Vessels allocated NGOM RSA will have an option to fish NGOM RSA in the NGOM or in any other area available to RSA compensation fishing.

Limited Access General Category Individual Fishing Quota Possession Limit

Amendment 21 increases the LAGC IFQ possession limit to 800 lb (363 kg) for access area trips and maintains the 600-lb (272-kg) possession limit for open area trips. The LAGC IFQ component has been subject to a possession limit since the program's inception through Amendment 11. Interest in increasing the 600-lb (272-kg) trip limit through this action is based on the continued increase of operating expenses, which are principally driven by fuel costs associated with longer steam times. For LAGC IFQ vessels that elect to do so, transiting farther offshore to fish access areas with higher landings per unit of effort and improved meat yield leads to increased trip costs due to higher fuel expenses associated with longer steam times. Increasing the access area possession limit will reduce the overall number of trips and combined steam time needed to harvest quota from offshore access areas, thereby reducing overall trip costs ( i.e., fuel) and operating expenses ( i.e., vessel maintenance) relative to the current 600-lb (272-kg) limit. Increasing the access area possession limit could offer LAGC IFQ vessels more flexibility with regard to timing access area trips around weather conditions, which could potentially improve safety in this component of the fishery.

Observer Compensation Available for LAGC IFQ Vessels

Amendment 21 will make LAGC IFQ vessels eligible for additional compensation when carrying an observer on board and fishing trips longer than 1 day (24 hours). The daily compensation rate, as determined by NMFS, will be prorated at 12-hour increments for trips exceeding 24 hours. The amount of compensation a vessel could receive on 1 trip would be capped at 2 days (48 hours) and vessels fishing longer than 48 hours will not receive additional compensation allocation. For example, if the observer compensation rate is 200 lb/day (90.7 kg/day) and an LAGC IFQ vessel carrying an observer departs on July 1 at 2200 and lands on July 3 at 0100, the length of the trip would equal 27 hours, or 1 day and 3 hours. In this example, the LAGC IFQ vessel would be eligible for 1 day plus 12 hours of compensation allocation, i.e., 300 lb (136 kg). An LAGC IFQ vessel will be able to harvest the trip limit and the daily compensation rate on the observed trip, or the vessel could harvest any unfished compensation on a subsequent trip while adhering to the commercial possession limit.

Temporary Transfer of IFQ From Limited Access Vessels With IFQ (Combo Vessels) to LAGC IFQ-Only Vessels

Amendment 21 allows temporary transfers of IFQ from combo vessels to LAGC IFQ-only permits and maintains the existing prohibition on transferring quota to combo vessels. This action does not change how IFQ is allocated. Quota accumulation caps remain consistent with the limits established through Amendment 15 for LAGC IFQ-only permits, regardless of any additional quota that may become available through one-way, temporary transfers from combo vessels. An individual LAGC IFQ permit still may not hold more than 2.5 percent of the IFQ allocated to the LAGC IFQ component in a year and an ownership entity still may not hold more than 5 percent of the IFQ allocated to the LAGC IFQ component in a year. Allowing one-way, temporary transfers from combo vessels to LAGC IFQ-only permits increases the overall level of quota available to LAGC IFQ-only vessels, and it does not require changes to how allocations are estimated and distributed among the two fleets.

Specifications and Framework Adjustment Process

The regulations at 50 CFR part 648.55 list management measures that may be changed or implemented through specifications or framework actions. During the development of Amendment 21, the Council identified a list of specific issues that may be addressed through future specifications actions or framework adjustments. The existing scallop regulations do not need to be expanded to address concepts that the Council would like to adjust through a specifications package or a framework adjustment in the future. The Council's list included:

1. § 648.55(f)(25) Set-asides for funding research;

a. Contribution of RSA percentage and/or assigned pounds from the NGOM allocation.

2. § 648.55(f)(31) Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;

a. Observer set-aside percentage from the NGOM Allocation.

3. § 648.55(f)(35) Adjustments to the Northern Gulf of Maine scallop fishery measures;

a. Partition the NGOM into multiple sub-areas with separate allocations;

b. Partition the NGOM Set-Aside is multiple seasons;

c. Modify the F rate used to set the NGOM TAL; and

d. Harvest methods of the NGOM APL by the IFQ and limited access boats.

4. § 648.55(f)(37) Increases or decreases in the LAGC possession limit;

a. Accounting for access area trips in the LAGC IFQ fishery.

5. § 648.55(f)(38) Adjustments to aspects of ACL management, including accountability measures;

a. Modify how the NGOM is accounted for in the calculation of OFL, ABC, and ACLs.

In addition, the Council clarified that it could develop options for electronic monitoring to replace at-sea monitors in a future framework based on existing language in these existing regulations:

1. § 648.55(f)(31) Modifications to provisions associated with observer set-asides; observer coverage; observer deployment; observer service provider; and/or the observer certification regulations;

2. § 648.11(g) Industry-funded monitoring programs. FMPs managed by the Council, including Atlantic Herring, Atlantic Salmon, Atlantic Sea Scallops, Deep-Sea Red Crab, Northeast Multispecies, and Northeast Skate Complex, may include industry-funded monitoring (IFM) programs to supplement existing monitoring required by the Standard Bycatch Reporting Methodology (SBRM), Endangered Species Act, and the Marine Mammal Protection Act. IFM programs may use observers, monitors, including at-sea monitors and portside samplers, and electronic monitoring to meet specified IFM coverage targets. The ability to meet IFM coverage targets may be constrained by the availability of Federal funding to pay NMFS cost responsibilities associated with IFM.

Regulatory Adjustments and Corrections Under Regional Administrator Authority

NMFS is making several changes consistent with section 305(d) of the 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. These adjustments do not make any substantive changes to the implications of the current regulations. First, NMFS revises § 648.14(i) to more clearly define the prohibitions based on the scallop regulations at § 648 Subpart D. As a result, this rule includes revisions to the regulatory text that reorganize and condense references to possession limits and restrictions. The specific regulations being revised or removed are specified in Table 1.

Second, in §§ 648.2, 648.14(i), 648.52, 648.55, and 648.59, NMFS makes revisions to consistently reference the Scallop Access Area Program throughout the regulations. Third, in § 648.14(i)(x), NMFS clarifies the presumption related to where scallops are caught ( i.e., Federal/state waters), not whether a vessel has a Federal scallop permit. Fourth, NMFS updates §§ 648.14(i)(x)(3)(iv)(B) and 648.52(a)(1) with a corrected reference to § 648.10(f). Fifth, in § 648.52(b), (c), (d), (e), (f), NMFS adds headings for consistency across paragraphs. Sixth, in § 648.52(f), NMFS removes duplicative possession limit language for IFQ vessels. Seventh, in § 648.53(h)(3)(i)(A) and (B), NMFS clarifies that the IFQ accumulation cap applies to the annual IFQ allocation, not the IFQ sub-ACL. Eighth, in § 648.53(h)(5)(i) and (ii), NMFS clarifies that these regulations apply to IFQ permit holders regardless of whether the permit is in confirmation of permit history (CPH). Ninth, in § 648.59(b)(4), to promote safety at sea, at the request of the Council, NMFS will allow vessels to enter or exit a Scallop Access Area more than once per trip if there is a compelling safety reason.

Finally, due to the extensive regulatory changes in this action, we are updating references throughout the scallop regulations that will change based on these regulatory adjustments. We have included a summary of all of the regulatory changes in this rule in Table 1.

Comments and Responses

We received eight comment letters on this action. Six individuals commented in support of the action. One individual and Fisheries Survival Fund (FSF), which represents the significant majority of full-time Limited Access permit holders in the Atlantic scallop fishery, commented in opposition to some measures in Amendment 21.

Comment 1: A general category industry member commented that the IFQ possession limit should be increased to at least 1,000 lb (454 kg) because vessels must travel 3 to 12 hours to fish in open and access areas. He comments that increasing the trip limit to all areas would reduce risk to vessels and reduce trip costs and the carbon footprint of the fleet.

Response: Amendment 21 increases the IFQ possession limit to 800 lb (363 kg) per trip for access area-only trips to address some of the issues raised by the commenter. The higher possession limit in access areas will reduce the number of trips and combined steam time needed to harvest quota from offshore access areas, thereby reducing overall trip costs ( i.e., fuel) and operating expenses ( i.e., vessel maintenance) relative to the current 600-lb (272 kg) limit. Increasing the access area possession limit to 800 lb (363 kg) could offer LAGC IFQ vessels more flexibility with regard to timing access area trips around weather conditions, which could potentially improve safety in this component of the fishery. In developing Amendment 21, the Council balanced the issues raised by the commenter and the Amendment's vision for the LAGC component, “a fleet made up of relatively small vessels, with possession limits to maintain the historical character of this fleet and provide opportunities to various participants including vessels from smaller coastal communities.”

Comment 2: The same general category industry member commented that the Council should close the entire NGOM to limited access vessels because they decimate the available stock for the general category when they fish in the area.

Response: The purpose of Amendment 21, specific to the NGOM, is to allow for more controlled access by the limited access and LAGC components and increase monitoring in ways that support a growing directed scallop fishery in Federal waters. The 800,000-lb (362,874-kg) set aside supports some additional participation in the NGOM fishery by LAGC vessels without impacting the current harvest levels of existing participants. Amendment 21 provides the Council with the tools to control removals from the NGOM and better conserve the resource in the area. Further, it provides the mechanism to develop more controlled access to the NGOM by the limited access fleet once the allocation to the area exceeds the NGOM set-aside trigger. The Council considered limiting the cumulative maximum dredge width that could be fished in the NGOM, but ultimately found that there is no biological benefit to the resource in mandating smaller dredge sizes for the limited access fleet in the NGOM.

Comment 3: FSF commented that the NGOM set-aside amount of 800,000 lb (362,874 kg) developed in Amendment 21 does not provide “orderly access” to the limited access fleet because it would exclude limited access participants even during years of abundance. FSF continues that the recently-utilized 135,000-lb (61,235-kg) set-aside has already accommodated growth of the NGOM fishery, which was created to be a part-time dayboat fishery for vessels that predominately fish for other species (via Amendment 11). NGOM trips are set at 200 lb (90.7 kg); thus, under an 800,000-lb (362,874-kg) set-aside there would be 4,000 trips available, a number disproportionate to the size of the part-time NGOM scallop fishery.

Response: Using an 800,000-lb (362,874-kg) trigger for the NGOM set-aside supports increased fishing opportunities for all permit categories in the area and addresses the Council's vision of continued participation in the general category fishery at varying levels and providing opportunities to various participants, including vessels from smaller coastal communities, as stated in Amendment 11 and reaffirmed through this action.

There are a total of 427 LAGC permits that potentially could fish in the NGOM set-aside. In addition, there are 338 IFQ permits that could fish the NGOM set-aside (765 vessels total). In 2019, 110 NGOM permits were issued, and 41 vessels (a combination of NGOM and IFQ vessels) landed scallops from the area. An 800,000-lb (362,874-kg) trigger supports additional participation in the NGOM fishery by some of the remaining 724 vessels that could access this fishery without impacting the current harvest levels of existing participants.

Further, because the LAGC share of the NGOM total allowable catch has been harvested in about a month in recent years ( i.e., 2018-2021), setting a trigger value above recent allocation levels has the potential to lengthen the season for LAGC vessels and expand opportunities across more of the fishing year.

When the allocation to the NGOM is over this trigger, 5 percent will go to the NGOM set-aside, and 95 percent will go to the NGOM APL. This is intended to support access to the scallop resource in the area by limited access, LAGC IFQ, and LAGC NGOM vessels. Allocating 95 percent of the allocation over the trigger to the NGOM APL would quickly increase the share for the limited access and LAGC IFQ as the exploitable biomass in the area grows. This option would add to the existing allocations for the limited access and LAGC IFQ that come from Georges Bank and the Mid-Atlantic.

In 2017, the limited access fleet fished heavily in the NGOM on DAS. The limited access fleet landed an estimated 1,578,020 lb (715,778 kg) of scallops from March 1 through March 22. This shows that NGOM is capable of having biomass above the 800,000-lb (362,874-kg) trigger.

Comment 4: FSF commented that, since Amendment 11, set-aside has been set at levels that are consistent with NGOM vessels' participation in the fishery. For many years, the set-aside was 70,000 lb (31,751 kg) and in 2019, it was increased to 135,000 lb (61,235 kg). Amendment 21, however, would establish an annual set-aside of 800,000 lb (362,874 kg) for NGOM vessels. FSF comments that this is not consistent with historic allocations, nor is a set-aside of 800,000 lb (362,874 kg) consistent with either Amendment 21's Purpose and Need or its Goals and Objectives. Accordingly, FSF states that Amendment 21's allocation approach is arbitrary and capricious. Achievable access to the NGOM is important to the limited access fleet in the face of climate change and potential shifts in species abundance and distribution.

Response: NMFS disagrees that the allocation approach was arbitrary and that the allocation method is not consistent with the Purpose and Need or the Goals and Objectives of the Amendment. The purpose of Amendment 21, specific to the NGOM, is to allow for more controlled access by the limited access and LAGC components and increase monitoring in ways that support a growing directed scallop fishery in Federal waters. The need for this action is to promote conservation of the scallop resource in the NGOM and to manage total removals from the area by all fishery components. The Goals and Objectives specific to the NGOM are to:

1. Support a growing directed scallop fishery in Federal waters in the NGOM;

2. Allow for orderly access to the scallop resource in this area by the LAGC and limited access components; and

3. Establishing mechanisms to set allowable catches and accurately monitor catch and bycatch from the NGOM.

Amendment 11 allowed limited access vessels to access the NGOM on DAS. However, at the time, there had not been significant limited access fishing in the area for many years. In 2016, the limited access fleet began fishing in the area, landing 292,517 lb (132,683 kg) in 74 days before the area closed. In 2017, the limited access fleet returned to the NGOM landing 1,578,020 lb (715,778 kg) of scallops in 23 days before the area closed. It was this drastic increase in effort by the limited access fleet on DAS that led to the Council's desire to have better controls on limited access removals from the NGOM to better conserve the resource in the area. Amendment 21 provides the Council with the tools to control removals from the NGOM and better conserve the resource in the area. Further, it provides the mechanism to develop more controlled access to the NGOM by the limited access fleet once the allocation to the area exceeds the NGOM set-aside trigger.

The 800,000-lb (362,874-kg) set-aside was not selected by the Council to be allocated only to the vessels that are accessing the NGOM currently. As stated above, there are a total of 427 LAGC permits and 338 IFQ permits that could fish the NGOM set-aside. In 2019, 110 NGOM permits were issued, and 41 vessels (NGOM and IFQ) landed scallops from the area. The 800,000-lb (362,874-kg) set aside supports some additional participation in the NGOM fishery by LAGC vessels without impacting the current harvest levels of existing participants.

Comment 5: FSF comments that the F rate being used to set the NGOM scallop allocation has no official Council sanction, nor is it subject to notice and comment rulemaking, as it should be. Nothing in Amendment 21 or its decision-making materials established this F range for the NGOM annual harvest setting. They comment that it does not appear that the Council considered either this F range or any methodology to set any F range for the NGOM as part of its Amendment 21 deliberations. Rather, at a meeting on February 27, 2020, the Scallop Committee passed a motion “to apply a range of F rates for setting the NGOM total allowable landings (TAL) in allocation alternatives being considered in Amendment 21 as F = 0.15 to F = 0.25.” From there, FSF argues the F rate was impermissibly taken as a given throughout the remainder of the Amendment 21 development process and is included in the Amendment 21 proposed rule as if it had Council sanction.

Response: NMFS disagrees that the F rate was impermissibly taken as a “given.” The motion in question specifically grants permission to apply F rates of F = 0.15 to F = 0.25 to the NGOM allocation alternatives. This motion carried 7-0-0 at the Scallop Oversight Committee. The rationale for this motion states, “Recent framework actions have analyzed F rates from F = 0.15 up to F = 0.25. This could be a way to grow the biomass in the NGOM management area and support sustainable annual harvest. Modifying the F rate used to set the NGOM TAL could be adjusted in a future framework.” This rationale is consistent with the need to promote conservation of the scallop resource in the NGOM. Further, Amendment 21 is clear that the Council can adjust the F rate for the NGOM in a future framework action to set specifications annually, making it subject to notice and comment rulemaking, annually. For future specifications-setting actions, the Council is in no way bound by these F rates considered for the allocation alternatives in Amendment 21.

Comment 6: FSF commented that the F rate for the NGOM was not included as part of the Amendment 21 analyses, and that Amendment 21's resulting economic analyses are therefore incomplete. The proposed rule states that Amendment 21 “maximizes yields and economic benefits,” but the supporting analyses do not provide any practical indication of its relative impacts on the NGOM and non-NGOM vessels, respectively.

FSF continues that, while the economic analyses compare the revenue generated by the LAGC and limited access fleets, respectively, with NGOM allocations of 100,000 lb (45,359 kg) to 6,000,000 lb (2,721,554 kg), these analyses do not integrate the F rate limit contained in Amendment 21 into the analyses. FSF comments that the F rate is a material element of the equation, and that an agency action is arbitrary and capricious if it fails to consider an important aspect of the problem.

Response: The NGOM is considered to be data poor relative to Georges Bank and the mid-Atlantic. The Gulf of Maine, and the NGOM management unit, have not been regularly surveyed for scallops. The NGOM is outside the areas covered by the stock assessment models (Georges Bank and the mid-Atlantic). The F rates considered in Amendment 21 were selected to promote conservation. Further, because the NGOM is currently considered data poor, during the discussion of the motion to include these F rates, the Committee agreed that being able to adjust fishing mortality rates in a future action will be important, especially if methods to setting harvest levels in the NGOM evolve/improve over time. Given this, and given that the F rates considered in the Amendment 21 allocation alternatives are adjustable during any specifications-setting framework, it is not necessary to directly compare F rates as part of the allocation alternatives.

The economic analysis does address the relative impacts on limited access and LAGC vessels. The economic impacts of this measure are likely to be mixed and dependent on the size of the NGOM allocation. When scallop biomass in the NGOM management area is relatively low, and catch rates are low, the impact on the limited access component could be negligible compared to No Action because these vessels would be unlikely to fish their DAS in the management area rather than on Georges Bank or in the mid-Atlantic. When the NGOM allocation is below the set-aside trigger, the limited access and LAGC IFQ components would not receive any additional allocation, which would also be the case under No Action.

Compared to No Action, the preferred alternative is expected to have a direct positive impact when the NGOM allocation is above the set-aside trigger because the limited access and LAGC IFQ components would receive 95 percent of the allocation above the trigger, have access to the area, and would not have to fish DAS when accessing the area. This allocation would be in addition to the allocations from Georges Bank and the mid-Atlantic that these permit holders receive each year. This is particularly important if the spatial extent of the scallop resource shifts in response to climate change. Further, because the preferred alternative would set landings limits for all components, there is a lower risk of harvest exceeding the allocation to the area compared to No Action.

Comment 7: FSF comments that if the F for the NGOM were set close to F = 0.39, a set-aside of 800,000 lb (362,874 kg) would still be largely exclusionary. Under Amendment 21, revenues for the limited access fleet would not equalize with the NGOM vessels until 1,688,888 lb (766,067 kg) of scallops are harvested from the NGOM. Conversely, under the 95 percent/5 percent split and a 500,000-lb (226,796-kg) NGOM set-aside, revenues would equalize between the two fleets at roughly 1,000,000 lb (453,592 kg).

Response: As stated above, in fishing year 2017, the limited access fleet harvested 1,578,020 lb (715,778 kg) from the NGOM in 23 days. The Council believes that these levels of harvest are possible again and developed Amendment 21 to account for scenarios where removals were more consistent with removals from other areas in Georges Bank and the mid-Atlantic ( i.e., millions of lb instead of hundreds of thousands of lb).

Comment 8: FSF commented that, the NGOM is part of the Atlantic sea scallop stock's range that must be managed as a unit under National Standard 3.

Response: The Council manages the scallop resource throughout its range. Under the Scallop FMP, target fishing mortality rate and stock biomass are applied to the scallop resource, which spans from North Carolina to the U.S./Canada boundary. This represents the entire range of scallop stocks under Federal jurisdiction. Amendment 21 accounts for the scallop biomass in the NGOM as part of the legal limits in the fishery by adding biomass from the area into calculations of the OFL and ABC. Amendment 21 moves the accounting of the NGOM ACL from only within the OFL into the OFL and ABC/ACL for the entire fishery. The NGOM ACL will be set consistent with how the rest of the scallop fishery is managed, at the catch level equal to the F that has a 75-percent probability of remaining below the F associated with overfishing.

Comment 9: FSF comments that prorating the daily observer compensation rate in 12-hour increments for observed LAGC IFQ trips longer than 1 day threatens to reopen a loophole where IFQ vessels modify their behavior and fishing patterns to extend their trips to purposefully benefit from the additional compensation. Further, FSF comments that there is also no conservation benefit to the allocation contained in this proposed rule change, which is a known and documented detriment.

Response: NMFS disagrees. Aligning the amount that vessels can be compensated when carrying an observer with the length of a typical LAGC IFQ trip will reduce the risk of observer bias in the LAGC IFQ fishery. This is true in the current fishery that has a 600-lb (272-kg) trip limit and would hold true in the future with the larger 800-lb (363-kg) possession limit in access areas ( i.e., areas further offshore that take longer to access), which could result in longer trips. Currently, LAGC IFQ vessels are allowed 1 day of compensation for carrying an observer regardless of the length of a trip, but are required to assume the cost of having the observer on board even when a trip exceeds the 1-day limit. Prorating additional compensation in 12-hour increments over one 24-hour day and capping the amount of compensation that could be allocated on a single trip would make the level of compensation to a vessel more accurate with regard to the cost of carrying an observer on board for the full length of a trip and reduce the incentive for vessels to fish longer trips for the purpose of receiving additional compensation. Relieving vessels of the additional cost burden for trips of over 1 day will reduce the likelihood that fishing behavior will be different for observed trips versus unobserved trips. In addition, considering that observer data is a critical need for accurately characterizing the behavior of the LAGC IFQ component and for documenting interactions with protected species, non-target species, and discards, it is likely that reducing any potential observer bias would reduce uncertainty around the impacts of these interactions and improve observer data when analyzed by the Council in future specifications actions. Having less uncertainty in the data streams used to inform impacts of the scallop fishery would likely have conservation benefits to the fishery as a whole in the future.

Comment 10: FSF strongly supports the 95/5 percent split above the set aside.

Response: NMFS thanks FSF for the comment.

Classification

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this Amendment and final rule are consistent with the Amendment 21, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of 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. 13132 and E.O. 12630, respectively.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification.

During the development of preferred alternatives in Amendment 21, NMFS and the Council considered ways to reduce the regulatory burden and provide flexibility to the regulated community. The measures implemented by Amendment 21 related to NGOM allocations and the LAGC IFQ possession limit in access areas, along with other Amendment 21 actions, increase the economic benefits on small entities both in the short- and long-term. The action for the NGOM allocation adjusts landing limits and related research and observer set-asides based on annual scallop surveys in the NGOM area, leading to increased harvest and wider fishery participation in the future. However, there would be no change to the LAGC IFQ allocation when increasing the LAGC IFQ possession limit in access areas.

Overall, the preferred alternatives in Amendment 21 ensure that catch levels are sustainable, reduce the risk of overfishing, and maximize yield and economic benefits. The establishment of the NGOM Set-Aside and the increase to the LAGC IFQ access area possession limit are expected to have an immediate positive economic gain with potential for increased fishing participants/participation or effort, particularly in the NGOM area when there are more scallop fishing opportunities. The preferred alternatives in other actions of Amendment 21 also have overall positive economic effects benefitting both small and large entities.

As a result, a regulatory flexibility analysis is not required and none has been prepared.

This final rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule revises the existing requirements for the collection of information OMB Control No. 0648-0546 by expanding the number of vessels required to carry observers and call-in to the observer program. Prior to Amendment 21, NGOM-permitted vessels were not required to carry observers. Amendment 21 would require that NGOM vessels call in to the observer program and, when selected, procure and carry an observer. Expanding the observer call-in requirement to directed scallop fishing in the NGOM means that monitoring requirements will be consistent for all scallop permit types across the entirety of the Atlantic sea scallop resource within the U.S. Exclusive Economic Zone. This change increases the number of respondents by 110 (512 respondents to 622 respondents). This results in an additional 933 burden hours (5,252 hours to 6,185 hours) and an additional $5,608 ($44,937 to $50,545) in total annual cost burden to the respondents. Public reporting burden for calling into the observer program is estimated to average 10 minutes, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0546.

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.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

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

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.2, revise the definition of “Open areas” to read as follows:

3. In § 648.14:

a. Revise paragraphs (i)(1)(iii) and (x), the paragraph (i)(2)(vi) subject heading, and paragraphs (i)(2)(vi)(C), (D), and (E);

b. Remove paragraphs (i)(3)(iii)(C) and (D);

c. Revise paragraph (i)(3)(iv)(B), (i)(3)(v)(C) and (D), and (i)(4)(i)(A);

d. Remove and reserve paragraph (i)(4)(i)(B);

e. Revise paragraph (i)(4)(i)(C);

f. Remove and reserve paragraph (i)(4)(i)(D);

g. Remove paragraphs (i)(4)(i)(G) and (H);

h. Revise paragraphs (i)(4)(ii)(A) and (B);

i. Remove and reserve paragraph (i)(5)(ii);

j. Revise paragraph (i)(5)(iii); and

l. Remove paragraph (i)(6).

The revisions read as follows:

4. In § 648.52, revise paragraphs (a) through (f) to read as follows:

5. In § 648.53:

a. Revise paragraphs (a)(3)(ii) and (a)(8);

b. Add paragraph (a)(9); and

c. Revise paragraphs (g)(1), (h)(3)(i)(A) and (B), (h)(5)(i), (h)(5)(ii)(A), and (h)(5)(iii).

The revisions and addition read as follows:

6. In § 648.55, revise paragraph (a)(1) and paragraph (f) introductory text to read as follows:

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

8. In § 648.59, revise the section heading and paragraphs (a) introductory text, (a)(3), (b)(4), (g)(3)(i), and (g)(4)(ii) to read as follows: