[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
[Rules and Regulations]
[Pages 29889-29891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10370]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 061213334-6334-01; I.D. 120806B]
RIN 0648-AV05


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Interim Rule Extension

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

ACTION: Temporary rule; interim rule extension.

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SUMMARY: This action extends interim measures that were implemented by 
the National Marine Fisheries Service (NMFS) on December 22, 2006, to 
reduce the potential for overfishing the Atlantic sea scallop (scallop) 
resource and causing excessive scallop mortality resulting from deck 
loading by reducing the number of limited access and general category 
scallop trips to the Elephant Trunk Access Area (ETAA), and prohibiting 
the retention of more

[[Page 29890]]

than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the 
boundaries of the ETAA. This action will extend these interim measures, 
which were scheduled to expire on June 20, 2007, through December 23, 
2007.

DATES: Effective from June 21, 2007, through December 23, 2007.

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

SUPPLEMENTARY INFORMATION: On December 22, 2006, the National Marine 
Fisheries Service (NMFS) implemented an interim final rule (71 FR 
76945) that adjusted management measures for the ETAA. The interim 
action: (1) Reduced the number of trips from five trips to three trips 
for full-time scallop vessels in the ETAA (scallop possession limit 
would remain at 18,000 lb); (2) reduced the number of trips from 3 
trips to 2 trips (for all access areas) for part-time scallop vessels 
in the ETAA (scallop possession limit for part-time vessels would be 
increased from 16,800 lb (7,620 kg) per trip to 18,000 lb (8,165 kg) 
per trip); (3) reduced the occasional vessel possession limit from 
10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip; (4) 
reduced the general category scallop fleet ETAA trip allocation from 
1,360 trips to 865 trips; (5) delayed the opening of the ETAA from 
January 1, 2007, to March 1, 2007; and (6) prohibited the retention or 
deck loading (i.e., leaving a high volume of scallops on deck after 
leaving an access area so that the scallops can be shucked on the way 
in) of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside 
of the boundaries of the ETAA.
    The interim action measures superseded measures scheduled to go 
into effect on January 1, 2007, under Framework 18 to the Atlantic Sea 
Scallop Fishery Management Plan (FMP) (Framework 18). The interim 
action was enacted in response to findings of the Scallop Plan 
Development Team (PDT), which advised the New England Fishery 
Management Council (Council) on November 7, 2006, that reducing the 
number of trips in the ETAA, delaying the opening, and prohibiting 
``deckloading'', would reduce the potential for overfishing the scallop 
resource in 2007. The Council voted in November 2006, to recommend that 
NMFS implement interim measures consistent with the PDT's memorandum. 
On December 22, 2006, NMFS implemented an interim final rule adopting 
these recommendations. This interim final rule was scheduled to expire 
on June 20, 2007.
    If the interim action expired, measures in Framework 18 would 
become effective, an increase in the number of trips and deck loading 
scallops in the ETAA would occur, and the benefits of the interim 
action would be lost. To ensure the interim action prevents or reduces 
overfishing for the 2007 fishing year, extension of the interim rule is 
necessary. This extension will keep measures in place through December 
23, 2007. Since the 2007 fishing ends on February 29, 2008, the Council 
has initiated Framework Adjustment 20 that would extend the interim 
measures through February 29, 2008.

Interim Measures

1. ETAA Trip Reduction

    This interim rule extension maintains the reduction in the number 
of trips from five trips to three trips for full-time scallop vessels 
in the ETAA (scallop possession limit remains at 18,000 lb (8,165 kg)); 
the reduction in the number of trips from three trips to two trips (for 
all access areas) for part-time scallop vessels in the ETAA (scallop 
possession limit for part-time vessels remains at 16,800 lb (7,620 kg) 
per trip); and the reduction in the occasional vessel possession limit 
from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The 
regulations at Sec.  648.60(a)(5) published for Framework 18 specified 
that an occasional vessel's possession limit is 7,500 lb (3,402 kg) per 
trip. However, Framework 18 intended and analyzed a possession limit of 
10,500 lb (4,763 kg) per trip for the 2007 FY. This interim rule 
extension also maintains the reduction in the general category scallop 
fleet trip allocation from 1,360 to 865 trips in the ETAA
    Reducing the number of trips for scallop vessels in the ETAA 
addressed the concern that overfishing of the scallop resource may 
occur in 2007. Although the biomass in the ETAA remains very high 
relative to the rest of the scallop resource, it is less abundant than 
was projected in Framework 18. As a result, even though the fishing 
mortality is expected to be lower than the target fishing mortality in 
the area, it would be high enough at the lower biomass to contribute to 
overfishing in 2007. Part-time vessels have a trip reduction with an 
increase in the possession limit to ensure that the total access area 
catch for part-time vessels remains at 40 percent of the full-time 
access area catch, as intended by the FMP. Occasional vessels have one 
trip to any access area, but have a possession limit of 7,500 lb (3,402 
kg) for the trip, ensuring that the total access area catch for 
occasional vessels remains at 8.3 percent of the full-time access area 
catch. Reducing trips in the ETAA was contemplated in Framework 18 and 
the potential impacts of the trip reductions were fully analyzed in 
Framework 18.

2. Delayed Opening of the ETAA

    This interim rule extension maintains the provision that delayed 
the opening of the ETAA from January 1, 2007, until March 1, 2007. The 
delayed opening prevented vessels from harvesting scallops in the ETAA 
before they gained meat-weight during January through February. 
Following spawning in the fall months, scallops undergo a period of 
recovery when the meats increase in size and weight. Harvesting 
scallops at a higher meat-weight improves scallop yield, resulting in 
lower mortality, since fewer scallops need to be caught to meet the 
poundage possession limits. In addition, with three trips per vessel, 
one of the original reasons for opening the ETAA on January 1, 2007, 
(i.e., to spread the five allocated trips over a longer period) is no 
longer supported. The March 1, 2007, opening was also contemplated in 
Framework 18. The new information provided by the Council demonstrates 
that the delay was necessary, along with the trip reductions, to reduce 
overfishing in 2007.

3. Prohibition on Deckloading

    This interim rule extension maintains the prohibition on the 
retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop 
outside of the boundaries of the ETAA for vessels on Access Area trips. 
Deckloading is the practice of loading the deck of a vessel with the 
scallop catch from several tows. Under the current Access Area 
regulations, vessels can deckload and leave the area, and the vessel 
crews can spend the time steaming home, sorting and shucking scallops, 
thereby reducing overall trip costs. This can result in a vessel having 
more scallops on board than are necessary to achieve the possession 
limit. The excess scallops are discarded. In addition, due to 
deckloading, scallops remain on deck longer, increasing discard 
mortality. In the ETAA, deckloading may cause even higher scallop 
mortality, since catch rates are expected to be very high, there is a 
mix of scallop sizes in the area, and scallop crews may discard smaller 
scallops in favor of larger scallops. Although the amount of additional 
mortality cannot be estimated, prohibiting deckloading on ETAA trips is 
a complementary measure that will help prevent additional scallop 
mortality.

[[Page 29891]]

Comments and Responses

    Comment 1: Two commenters offered strong support for the interim 
action.
    Response: Comment noted.
    Comment 2: One commenter noted that NMFS `` should have seen the 
[ETAA] issue coming.''
    Response: Framework 18 included a mechanism to adjust the ETAA 
trips. The Council and NMFS included the provision to adjust ETAA 
measures in the event that the biomass estimates were overestimated in 
Framework 18 initially. The Framework 18 mechanism was determined to be 
not as effective as the interim action in addressing the uncertainty in 
the projections, but the issue was anticipated.

Classification

    Because this interim rule merely extends the interim action already 
in place, for which public comment was accepted and considered, NMFS 
finds it is impracticable and contrary to the public interest to 
provide any additional notice and opportunity for public comment under 
5 U.S.C. 553(b)(B) prior to publishing the interim rule. Waiving prior 
notice and comment allows the ETAA interim measures to remain in place, 
thereby reducing the potential for overfishing the scallop resource and 
preventing excessive scallop mortality. For these reasons, the need to 
extend these measures to assure that overfishing does not occur also 
constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), 
to waive the 30-day delayed effective date, and extend the interim 
action upon publication. This interim rule has been determined to be 
not significant for purposes of Executive Order 12866. This interim 
rule is exempt from the procedures of the Regulatory Flexibility Act 
because the rule is issued without opportunity for prior notice and 
opportunity for public comment.

    Dated: May 23, 2007.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-10370 Filed 5-29-07; 8:45 am]
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