Fisheries of the Northeastern United States; Framework Adjustment 33 to the Atlantic Sea Scallop Fishery Management Plan

AGENCY:

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

ACTION:

Interim final rule.

SUMMARY:

NMFS approves and implements Framework Adjustment 33 to the Atlantic Sea Scallop Fishery Management Plan. This action is necessary to set scallop specifications and other measures for fishing years 2021 and 2022, implement measures to protect small scallops, and to reduce bycatch of flatfish. This action is intended to prevent overfishing and improve both yield-per-recruit and the overall management of the Atlantic sea scallop resource.

DATES:

Effective May 19, 2021. Comments must be received by June 18, 2021.

ADDRESSES:

The New England Fishery Management Council developed an environmental assessment for this action that describes the measures in Framework Adjustment 33 and other considered alternatives and analyzes the impacts of the measures and alternatives. Copies of Framework 33, the environmental assessment, the Initial Regulatory Flexibility Analysis (IRFA), and information on the economic impacts of this rulemaking are available upon request 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/framework-33.

You may submit comments, identified by NOAA-NMFS-2021-0033, by the following method:

Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2021-0033 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

Instructions: Comments sent by any other method or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Copies of the small entity compliance guide are available from Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, or available on the internet at: https://www.fisheries.noaa.gov/species/atlantic-sea-scallop#commercial.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

The scallop fishery's management unit ranges from the shorelines of Maine through North Carolina to the outer boundary of the Exclusive Economic Zone. The Atlantic Sea Scallop Fishery Management Plan (FMP), established in 1982, includes a number of amendments and framework adjustments that have revised and refined the fishery's management. The New England Fishery Management Council sets scallop fishery catch limits and other management measures through specification or framework adjustments that occur annually or biennially. Due to the COVID-19 global pandemic, the annual scallop surveys that were to be conducted in the summer of 2020 were delayed and some canceled outright. Because of this, the Council had to delay final action and was not able to adopt Framework 33 until January 27, 2021. The Council submitted an environmental assessment to NMFS on April 7, 2021, for approval. The 2021 scallop fishing year began on April 1, 2021, and NMFS was unable to implement Framework 33 for the start of the fishing year. To help ensure that Framework 33 would be implemented as close as possible to April 1, 2021, the start of the fishing year, NMFS is implementing Framework 33 through this interim final rule but is also affording the public the opportunity to comment on this action by accepting public comment until June 18, 2021.

NMFS has approved all of the measures in Framework 33 recommended by the Council, as described below. The Council reviewed the regulations in this rule as drafted by NMFS and deemed them to be necessary and appropriate as specified in section 303(c) of the Magnuson-Stevens Fishery Conservation and Management Act. This interim final rule implements Framework 33, which sets scallop specifications and other measures for fishing years 2021 and 2022, including changes to the catch, effort, and quota allocations and adjustments to the rotational area management program for fishing year 2021, measures to reduce bycatch of flatfish, and default specifications for fishing year 2022. The Magnuson-Stevens Act allows NMFS to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with the FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. NMFS generally defers to the Council's policy choices unless there is a clear inconsistency with the law or the FMP.

Specification of Scallop Overfishing Limit (OFL), Acceptable Biological Catch (ABC), Annual Catch Limits (ACL), Annual Catch Targets (ACT), Annual Projected Landings (APL) and Set-Asides for the 2021 Fishing Year, and Default Specifications for Fishing Year 2022

The Council set the OFL based on a fishing mortality (F) of 0.61, equivalent to the F threshold updated through the Northeast Fisheries Science Center's most recent scallop management track assessment that was completed in September 2020. The ABC and the equivalent total ACL for each fishing year are based on an F of 0.45, which is the F associated with a 25-percent probability of exceeding the OFL. The Council's Scientific and Statistical Committee (SSC) recommended scallop fishery ABCs of 67.3 million lb (30,517 mt) for 2021 and 61.9 million lb (28,074 mt) for the 2022 fishing year, after accounting for discards and incidental mortality. The SSC will reevaluate and potentially adjust the ABC for 2022 when the Council develops the next framework adjustment.

Table 1 outlines the scallop fishery catch limits derived from the ABC values and the projected landings of the fleet. After deducting the incidental target total allowable catch (TAC), the research set-aside (RSA), and the observer set-aside, the remaining ACL available to the fishery is allocated according to the following fleet proportions established in Amendment 11 to the FMP (73 FR 20090; April 14, 2008): 94.5 percent is allocated to the limited access scallop fleet (i.e., the larger “trip boat” fleet); 5 percent is allocated to the limited access general category (LAGC) individual fishing quota (IFQ) fleet (i.e., the smaller “day boat” fleet); and the remaining 0.5 percent is allocated to limited access scallop vessels that also have LAGC IFQ permits. Amendment 15 to the FMP (76 FR 43746; July 21, 2011) specified that no buffers to account for management uncertainty are necessary in setting the LAGC ACLs, meaning that the LAGC ACL is equal to the LAGC ACT. For the limited access fleet, the management uncertainty buffer is based on the F associated with a 75-percent probability of remaining below the F associated with ABC/ACL, which, using the updated fishing mortality applied to the ABC/ACL, now results in an F of 0.39.

This action deducts 1.25 million lb (567 mt) of scallops annually for 2021 and 2022 from the ABC for use as the Scallop RSA to fund scallop research. Participating vessels are compensated through the sale of scallops harvested under RSA projects. Of the 1.25 million-lb (567-mt) allocation, NMFS has already allocated 310,904 lb (141,024 kg) to previously funded multi-year projects as part of the 2020 RSA awards process. NMFS reviewed proposals submitted for consideration of 2021 RSA awards and announced project selections on March 15, 2021. Details on the 2021 RSA awards can be found on our website here: https://www.fisheries.noaa.gov/new-england-mid-atlantic/science-data/2021-2022-sea-scallop-research-set-aside-projects-selected .

This action also deducts one 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-aside is 305 mt for 2021 and 281 mt for 2022. In fishing year 2021, the compensation rates for limited access vessels in open areas fishing under days-at-sea (DAS) is 0.13 DAS per DAS fished. For access area trips, the compensation rate is 250 lb (113 kg), 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 250 lb (113 kg) per trip 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 Council may adjust the 2022 observer set-aside when it develops specific, non-default measures for 2022.

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 2021 and 2022 (Table 2). The 2021 DAS allocations are the same as those allocated to the limited access fleet in 2020. Framework 33 sets 2022 DAS allocations at 75 percent of fishing year 2021 DAS allocations as a precautionary measure. This is to avoid over-allocating DAS to the fleet in the event that the 2022 specifications action is delayed past the start of the 2022 fishing year. The allocations in Table 2 exclude any DAS deductions that are required if the limited access scallop fleet exceeds its 2020 sub-ACL.

Changes to Fishing Year 2021 Sea Scallop Access Area Boundaries

For fishing year 2021 and the start of 2022, Framework 33 keeps the Mid-Atlantic Access Area (MAAA), Nantucket Lightship-South-Deep Access Area (NLS-S-D), and Closed Area I Access Area (CAI) open as access areas. However, Framework 33 will not allocate any additional landings from CAI for the limited access fleet (see below). In addition, this action opens one new area, Closed Area II Access Area (CAII), formerly known as the Closed Area II-Southwest and Extension Closed Area (Table 3).

Fishing Year 2021 Sea Scallop Closed Area Boundaries

Framework 33 will keep two existing closed areas closed, i.e., the Nantucket Lightship-Triangle Scallop Closed Area and the Stellwagen Bank Scallop Closed Area. In addition, Framework 33 closes two more areas to scallop fishing, i.e., the Nantucket Lightship-North Closed Area (NLS-N) (Table 4) and Closed Area II-East (CAII-E) Closed Area (Table 5), formerly known as the Closed Area II Rotational Area. Framework 33 is closing NLS-N because there is no longer enough harvestable biomass in the area to support a full trip for limited access vessels. This action is closing CAII-E to protect small scallops that have not yet recruited to the fishery and to reduce bycatch of Georges Bank yellowtail flounder and northern windowpane flounder on Georges Bank.

Extension of CAII Seasonal Closure To Mitigate Flatfish Bycatch

Framework 33 continues the extension of existing seasonal closure in CAII to reduce bycatch of northern windowpane flounder and Georges Bank yellowtail flounder. The seasonal closure in CAII occurs from August 15-November 15 of each year. Framework 32 to the Atlantic Sea Scallop FMP (85 FR 17754; March 31, 2020) extended that closure for 15 additional days from August 15-November 30 for the 2020 fishing year only. Framework 33 continues that 15-day extension for fishing year 2021.

Full-Time Limited Access Allocations and Trip Possession Limits for Scallop Access Areas

Table 6 provides the limited access full-time allocations for all of the access areas for the 2021 fishing year and the first 60 days of the 2022 fishing year. These allocations can be landed in as many trips as needed, so long as vessels do not exceed the possession limit (also in Table 6) on any one trip.

Part-Time Limited Access Allocations and Trip Possession Limits for Scallop Access Areas

Table 7 provides the limited access part-time allocations for all of the access areas for the 2021 fishing year and the first 60 days of the 2022 fishing year. These allocations can be landed in as many trips as needed, so long as the vessels do not exceed the possession limit (also in Table 8) on any one trip.

Closed Area I RSA-Only

Because of the limited amount of biomass in the CAI to support a full limited access trip, Framework 33 will not allocate any landings from CAI to the limited access fleet. CAI will only be available for the LAGC access area trips and RSA compensation fishing.

LAGC Measures

1. ACL and IFQ Allocation for LAGC Vessels with IFQ Permits. For LAGC vessels with IFQ permits, this action implements a 1,481-mt ACL for 2021 and a 1,360-mt default ACL for 2022 (see Table 1). These sub-ACLs have no associated regulatory or management requirements but provide a ceiling on overall landings by the LAGC IFQ fleets. The annual allocation to the LAGC IFQ-only fleet for fishing years 2021 and 2022 based on APL is 863 mt for 2021 and 648 mt for 2022 (see Table 1). Each vessel's IFQ is calculated from these allocations based on APL.

2. ACL and IFQ Allocation for Limited Access Scallop Vessels with IFQ Permits. For limited access scallop vessels with IFQ permits, this action implements a 148-mt ACL for 2021 and a default 136-mt ACL for 2022 (see Table 1). These sub-ACLs have no associated regulatory or management requirements but provide a ceiling on overall landings by this fleet. If the fleet were to reach this ceiling, any overages would be deducted from the following year's sub-ACL. The annual allocation to limited access vessels with IFQ permits is 86 mt for 2021 and 65 mt for 2022 (see Table 1). Each vessel's IFQ is calculated from these allocations based on APL.

3. LAGC IFQ Trip Allocations for Scallop Access Areas. Framework 33 allocates LAGC IFQ vessels a fleet-wide number of trips in CAI, NLS-S-D, and MAAA for fishing year 2021 and default trips in the MAAA for fishing year 2022 (see Table 8). The scallop catch associated with the total number of trips for all areas combined (2,283 trips) for fishing year 2021 is equivalent to the 5.5 percent of total projected catch from access areas.

4. Northern Gulf of Maine (NGOM) Total Allowable Catch (TAC). This action implements a 175,000-lb (79,379-kg) NGOM TAC for fishing year 2021 and a 74,000-lb (33,566-kg) default NGOM TAC for fishing year 2022. The final rule for NGOM portions of Framework 29 (83 FR 12857; March 26, 2018) developed a methodology for splitting the NGOM TAC between the LAGC and the limited access fleets. Framework 33 continues splitting the TAC using this methodology. The limited access portion of the TAC may only be fished by vessels participating in the RSA program that are participating in a project that has been allocated NGOM RSA allocation. The LAGC portion of the TAC may be fished by NGOM and LAGC IFQ vessels on trips with a 200-lb (90.7-kg) possession limit until the TAC has been harvested. Table 12 describes the division of the TAC for the 2021 and 2022 (default) fishing years.

During the 2019 fishing year the LAGC fleet exceeded its portion of the NGOM TAC by 3,278 lb (1,487 kg). This triggers a pound-for-pound deduction to the LAGC portion of the NGOM TAC to account for the overage. Because final catch accounting data for the 2019 fishing year was not available in time to implement this deduction in the 2020 fishing year, the LAGC portion of the NGOM TAC for the 2021 fishing year is reduced by 3,278 lb (1,487 kg) to account for the overage. The resulting LAGC NGOM TAC is 119,222 lb (54,078 kg) and the total 2021 NGOM TAC is 171,722 lb (77,892 kg).

5. Scallop Incidental Catch Target TAC. This action implements a 50,000-lb (22,680-kg) scallop incidental catch target TAC for fishing years 2021 and 2022 to account for mortality from vessels that catch scallops while fishing for other species and 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.

RSA Harvest Restrictions

This action allows vessels participating in RSA projects to harvest RSA compensation from the MAAA, NLS-S-D, CAII, CAII and the open area. All vessels are prohibited from harvesting RSA compensation pounds in all other access areas. Vessels are prohibited from fishing for RSA compensation in the NGOM unless the vessel is fishing an RSA compensation trip using NGOM RSA allocation that was awarded to an RSA project. Finally, Framework 33 prohibits the harvest of RSA from any access areas under default 2022 measures. At the start of 2022, RSA compensation may only be harvested from open areas. The Council will re-evaluate this default prohibition measure in the action that would set final 2022 specifications.

Classification

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

We have examined the impacts of the interim final rule under Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Office of Management and Budget (OMB) has determined that this rule is economically significant, as defined by Executive Order 12866.

As analyzed in Section 6.6.1 Economic Impacts in the Scallop Fishery Management Plan Framework Adjustment 33 Final Submission ( https://www.nefmc.org/library/framework-33 ), the costs of this rule are lost consumer and producer surplus resulting from a lower predicted catch in 2021 than predicted for 2020. We estimate a reduction in consumer and producer surplus of $104.1 million in $2020 in 2021. The benefits of this rule are to prevent overfishing and to minimize bycatch, helping to ensure the sustainability of fishery stocks and minimize adverse ecological impacts. Given data limitations, we are unable to quantify the benefits. The total catch may increase or decrease in future years due to necessary management changes. As noted in Table 1, the catch limits for the 2022 fishing year are subject to change through a future specifications action or framework adjustment. Incremental changes in total catch from year to year will be analyzed in future rulemakings to assess the relative costs and benefits of each action, consistent with E.O. 12866 and Circular A-4.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (the Congressional Review Act or CRA), 5 U.S.C. 801-808, the Office of Information and Regulatory Affairs has determined that this is a major rule. See 5 U.S.C. 804(2). The CRA's 60-day delay in the effective date for major rules is not applicable, however, because this rule establishes a regulatory program for a commercial activity related to fishing. See 5 U.S.C. 808(1).

The Assistant Administrator for Fisheries has determined that it is contrary to the public interest to provide for prior notice for this action. It is necessary to implement the measures of this rule in an expedited manner to achieve conservation objectives for the scallop fishery and certain fish stocks. Similarly, the need to implement these measures in a timely manner constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in the date of effectiveness and to make Framework 33 measures effective as soon as possible.

In the summer of 2020, due to the COVID-19 global pandemic, certain of the annual scallop surveys were delayed while others were canceled. Because of this, the Council had to delay final action on Scallop Framework 33 until its January 2021 meeting. The 2021 scallop fishing year began on April 1, 2021, and NMFS was unable to approve and implement final Framework 33 measures for the start of the fishing year. On April 1, default specifications went into place for the scallop fishery. Framework 32 set fishing year 2021 default specifications that were intentionally conservative.

Because most of the default specifications are more conservative than those that would be implemented in Framework 33, delaying the implementation of this action to allow prior notice and opportunity for public comment or a 30-day delay in effective date would be contrary to the public interest because it would cause the scallop fleet to lose the positive economic benefits of immediate implementation and could also negatively impact the access area rotation program by delaying fishing in access areas that should be available. There is good cause to immediately implement the rule rather than delay the effective date by 30-days because this action provides full-time vessels with an additional 6 DAS (24 DAS total) and 54,000 lb (24,494 kg) in access area allocations (72,000 lb (32,659 kg) total) to each full-time limited access vessel. Further, LAGC IFQ vessels will receive an additional 27-mt (950-mt total) allocation and 1,712 access area trips spread out across 3 access areas (2,283 trips total). Framework 33 could not have been put into place sooner to allow for a 30-day delayed effectiveness because the information and data necessary for the Council to develop the framework was not available in time for this action to be forwarded to NMFS and implemented by April 1, 2021, the beginning of the scallop fishing year. Additionally, because this rule relieves restrictions by increasing these allocations, it is not subject to the 30-day delayed effectiveness provision of the Administrative Procedure Act (APA) pursuant to 5 U.S.C. 553(d)(1).

This interim final rule is exempt from the procedures of the Regulatory Flexibility Act because prior notice and opportunity for public comment is not required.

This interim rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

List of Subjects 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 NORTHEAST UNITED STATES

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

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

Subpart A—General Provisions

2. In § 648.14, revise paragraphs (i)(2)(vi)(B) and (i)(3)(v)(E) to read as follows:

Subpart D—Management Measures for the Atlantic Sea Scallop Fishery

3. In § 648.51, revise paragraph (f)(1) to read as follows:

4. In § 648.53, revise paragraphs (a)(8), (b)(3), and (c)(1) and (2) to read as follows:

5. In § 648.56, remove paragraph (i).

6. In § 648.59:

a. Revise paragraph (a)(2);

b. Lift the suspension of paragraphs (b)(3)(i)(B)( 1)(ii) and (b)(3)(i)(B)(2)(ii);

c. Revise paragraph (b)(3)(i)(B);

d. Remove and reserve paragraph (b)(3)(ii)(A)( 2);

e. Revise paragraph (b)(3)(ii)(B);

f. Lift the suspension of paragraph (c);

g. Revise paragraphs (c), (e), (g)(1), and (g)(3)(v); and

h. Remove paragraph (h).

The revisions read as follows:

7. In § 648.60:

a. Revised paragraph (b), (c), and (d);

b. Lift the suspension of paragraph (f);

c. Remove and reserve paragraph (f); and

d. Remove paragraph (i).

The revisions read as follows:

8. In § 648.62, revise paragraph (b)(1) and (2), (c), and (e) to read as follows: