[Federal Register Volume 70, Number 212 (Thursday, November 3, 2005)]
[Rules and Regulations]
[Pages 66797-66799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21953]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 051028281-5281-01; I.D. 101705C]
RIN 0648-AT99


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery

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

ACTION: Final rule.

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SUMMARY: This final rule amends current regulatory text regarding 
boundaries for the essential fish habitat (EFH) closures that were 
established by Framework 16 to the Atlantic Sea Scallop (Scallop) 
Fishery Management Plan (FMP) and Framework 39 to the Northeast 
Multispecies (NE Multispecies) FMP (Joint Frameworks 16/39) in order to 
reflect recent court orders in Oceana v. Evans, vacating such text and 
reinstating boundaries for EFH closures established by Amendment 10 to 
the Scallop FMP (Amendment 10). This final rule also revises the 
Scallop Access Area boundaries to be consistent with the redefined EFH 
closed areas.

DATES: Effective November 3, 2005.

ADDRESSES: Copies of Amendment 13 to the NE Multispecies FMP, Amendment 
10, Joint Frameworks 16/39, their Regulatory Impact Reviews (RIR), 
including the Initial Regulatory Flexibility Analyses (IRFA), and the 
Environmental Assessment and Environmental Impact Statements are 
available on request from Paul J. Howard, Executive Director, New 
England Fishery Management Council, 50 Water Street, Newburyport, MA 
01950. These documents are also available online at http://www.nefmc.org.

FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy 
Analyst, (978) 281-9288; fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: On May 1, 2004, NMFS implemented approved 
measures in Amendment 13 to the NE Multispecies FMP (Amendment 13), 
which was developed and recommended by the New England Fishery 
Management Council (NEFMC) (69 FR 22906, April 27, 2004). Among the 
implemented measures was a description of boundaries of certain areas 
of the ocean closed to all mobile fishing gear for the protection of NE 
multispecies EFH (Sec.  648.81(h)). Subsequent to the implementation of 
Amendment 13, on July 23, 2004, NMFS implemented approved measures in 
Amendment 10, which was also developed and recommended by the NEFMC (69 
FR 35194, June 23, 2004). Amendment 10 also included a description of 
boundaries of certain areas of the ocean closed to scallop fishing for 
the protection of NE multispecies, and EFH for other species, from the 
effects of scallop fishing gear (Sec.  648.61). The Amendment 10 EFH

[[Page 66798]]

closures were defined by somewhat different boundaries than the EFH 
closures implemented by Amendment 13. Because the EFH closures under 
Amendment 10 were designed primarily to protect multispecies EFH, the 
NEMFC, through Joint Frameworks 16/39, recommended that the Amendment 
10 EFH closed area boundaries be identical to the Amendment 13 EFH 
closed area boundaries. On November 2, 2004, NMFS implemented the 
recommended Joint Frameworks 16/39 EFH closed area boundaries, thereby 
replacing the boundaries contained in regulations implementing 
Amendment 10 (69 FR 63460, November 2, 2004).
    Oceana, Inc., challenged Amendment 10 and Joint Frameworks 16/39 in 
Oceana v. Evans, et al., (Civil Action No. 04-810, D.D.C., August 2, 
2005, and October 6, 2005), on several grounds, including the validity 
of changing the Amendment 10 EFH closed area boundaries through a 
framework procedure, namely Joint Frameworks 16/39. On August 2, 2005, 
the court ruled that Amendment 10 EFH closed area boundaries could not 
be changed through a framework procedure. Based on this finding, the 
Court ordered the vacatur of Joint Frameworks 16/39 regulations, which 
changed the EFH closed area boundaries and stated that the ``practical 
result of the Court's holding is that, for the time being, both the 
habitat closures in Amendment 10 and the habitat closure in Amendment 
13 will remain in place.'' (Oceana v. Evans, (Order 73, August 
2, 2005) p. 87). NMFS subsequently asked the Court for clarification on 
whether this statement meant that Amendment 10 EFH closures are 
automatically reinstated by the Court's order. On October 6, 2005, the 
Court issued another order in response to the request for clarification 
stating `` the Court's August 2, 2005 Order [73] is clarified 
to the extent that it reinstates the habitat area closures established 
by Amendment 10 so it is not necessary for defendants to repromulgate 
those closures . . . . `` (Oceana v. Evans, (Order 83, October 
6, 2005) p. 1).
    This final rule is necessary to ensure that the Federal Register 
and Code of Federal Regulations accurately reflects the Court's order 
reinstating Amendment 10 EFH closures and to make the Scallop Access 
Area boundaries specified in Sec.  648.59 consistent with the redefined 
EFH closed areas. This rule provides sufficient notice to the scallop 
industry and the public of the effect of the Court's order. As a 
result, it is more likely the scallop industry will come into immediate 
compliance with the Amendment 10 EFH closures and NMFS's ability to 
enforce violations of this rule effectively will be enhanced.

Classification

    The Regional Administrator previously determined that Amendment 10 
is necessary for the conservation and management of the Atlantic sea 
scallop fishery and is consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and other applicable law. This action 
does not change that determination.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.
    The requirement for notice and comment rulemaking is waived for 
good cause pursuant to 5 U.S.C. 553(b)(B) because it would be 
unnecessary and impracticable. Notice and comment rulemaking for this 
rule is unnecessary and impracticable because the agency must act 
immediately in order to bring regulations into compliance with the 
court order in Oceana v. Evans. The agency, therefore, has no 
discretion as to the substance or timing of this rule. Accordingly, 
notice and comment rulemaking would serve no purpose and would 
inappropriately delay amending regulations necessary to reflect the 
court order. Because the agency must act immediately to bring 
regulations into compliance with the court order, it has no discretion 
to delay the rule's effectiveness. Therefore, there is good cause to 
waive the requirement to delay effectiveness of the rule pursuant to 5 
U.S.C. 553(d)(3).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 28, 2005.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR, part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.59, paragraphs (b)(3), and (d)(3) are revised to read 
as follows:


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (b) * * *
    (3) The Closed Area I Access Area is defined the straight lines 
connecting the points in the order stated in the following table 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request):

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  CAIA1                          41[deg]26'   68[deg]30'
                                                         N.           W.
                  CAIA2                          41[deg]09'   68[deg]30'
                                                         N.           W.
                  CAIA3                         41[deg]4.54  69[deg]0.9'
                                                       ' N.           W.
                  CAIA1                          41[deg]26'   68[deg]30'
                                                         N.           W.
------------------------------------------------------------------------

* * * * *
    (d) * * *
    (3) The Nantucket Lightship Sea Scallop Access Area is defined by 
straight lines connecting the points in the order stated in the 
following table (copies of a chart depicting this area are available 
from the Regional Administrator upon request):

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  NLSA1                          40[deg]50'   69[deg]00'
                                                         N.           W.
                  NLSA2                          40[deg]30'    69.00' W.
                                                         N.
                  NLSA3                          40[deg]30'  69[deg]14.5
                                                         N.         ' W.
                  NLSA4                          40[deg]50'  69[deg]29.5
                                                         N.         ' W.
                  NLSA1                          40[deg]50'   69[deg]00'
                                                         N.           W.
------------------------------------------------------------------------

* * * * *

0
3. Section 648.61 is revised to read as follows:


Sec.  648.61  EFH closed areas.

    Notwithstanding any other provision of this part, the following 
areas identified in paragraphs (a) through (e) of this section are 
closed to scallop fishing to protect EFH from adverse effects of 
scallop fishing (copies of charts depicting these areas are available 
from the Regional Administrator upon request):
    (a) Closed Area I EFH Closure. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Closed Area I 
EFH Closure. No vessel may possess scallops in the Closed Area I EFH 
Closure, unless such vessel is only transiting the area as provided in 
paragraph (e) of this section. The Closed Area I EFH Closure consists 
of two sections, defined by straight lines connecting the points in the 
order stated in the following table:

[[Page 66799]]



                                Section 1
------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  CAIE1                          41[deg]30'   69[deg]23'
                                                         N.           W.
                  CAIE2                          41[deg]30'   68[deg]35'
                                                         N.           W.
                  CAIE3                          41[deg]08'  69[deg]4.2'
                                                         N.           W.
                  CAIE4                          41[deg]30'   69[deg]23'
                                                         N.           W.
------------------------------------------------------------------------


                                Section 2
------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  CAIE5                         41[deg]04.5  69[deg]1.2'
                                                       ' N.           W.
                  CAIE6                          41[deg]09'   68[deg]30'
                                                         N.           W.
                  CAIE7                          40[deg]45'   68[deg]30'
                                                         N.           W.
                  CAIE8                          40[deg]45'   68[deg]45'
                                                         N.           W.
                  CAIE5                         41[deg]04.5  69[deg]1.2'
                                                       ' N.           W.
------------------------------------------------------------------------

    (b) Closed Area II EFH Closure. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Closed Area II 
EFH Closure. No vessel may possess scallops in the Closed Area II EFH 
Closure, unless such vessel is only transiting the area as provided in 
paragraph (e) of this section. The Closed Area II EFH Closure is 
defined by straight lines connecting the points in the order stated in 
the following table:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  CAIIE1                         42[deg]22'   67[deg]20'
                                                         N.        W.\1\
                  CAIIE2                         41[deg]30'  66[deg]34.8
                                                         N.      ' W.\1\
                  CAIIE3                         41[deg]30'   67[deg]20'
                                                         N.           W.
                  CAIIE1                         42[deg]22'   67[deg]20'
                                                         N.        W.\1\
------------------------------------------------------------------------
\1\ The U.S/Canada Maritime Boundary

    (c) Nantucket Lightship Closed Area EFH Closure. No vessel may fish 
for scallops in, or possess or land scallops from, the area known as 
the Nantucket Lightship Closed Area EFH Closure. No vessel may possess 
scallops in the Nantucket Lightship Closed Area EFH Closure, unless 
such vessel is only transiting the area as provided in paragraph (e) of 
this section. The Nantucket Lightship Closed Area EFH Closure is 
defined by straight lines connecting the points in the order stated in 
the following table:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  NLSE1                          40[deg]50'   70[deg]20'
                                                         N.           W.
                  NLSE2                          40[deg]50'  69[deg]29.5
                                                         N.         ' W.
                  NLSE3                          40[deg]30'  69[deg]14.5
                                                         N.         ' W.
                  NLSE4                          40[deg]30'   69[deg]00'
                                                         N.           W.
                  NLSE5                          40[deg]20'   69[deg]00'
                                                         N.           W.
                  NLSE6                          40[deg]20'   70[deg]20'
                                                         N.           W.
                  NLSE1                          40[deg]50'   70[deg]20'
                                                         N.           W.
------------------------------------------------------------------------

    (d) Western Gulf of Maine EFH Closure. No vessel may fish for 
scallops in, or possess or land scallops from, the area known as the 
Western Gulf of Maine EFH Closure. No vessel may possess scallops in 
the Western Gulf of Maine EFH Closure, unless such vessel is only 
transiting the area as provided in paragraph (e) of this section. The 
Western Gulf of Maine EFH Closure is defined by straight lines 
connecting the points in the order stated in the following table:

------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
                  WGOM1                          43[deg]15'   70[deg]15'
                                                         N.           W.
                  WGOM2                          43[deg]15'   69[deg]55'
                                                         N.           W.
                  WGOM3                          42[deg]15'   69[deg]55'
                                                         N.           W.
                  WGOM4                          42[deg]15'   70[deg]15'
                                                         N.           W.
                  WGOM1                          43[deg]15'   70[deg]15'
                                                         N.           W.
------------------------------------------------------------------------

    (e) Transiting. A vessel may transit the area(s) specified in 
paragraphs (a), (c), and (d) of this section, provided that its gear is 
stowed in accordance with the provisions of Sec.  648.23(b). A vessel 
may transit the area specified in paragraph (b) of this section, in 
accordance with Sec.  648.81(b)(2)(iv).
[FR Doc. 05-21953 Filed 10-31-05; 2:09 pm]
BILLING CODE 3510-22-S