[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54735-54737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22259]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070817467-81179-04]
RIN 0648-AV90


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Framework Adjustment 19; Correcting Amendment

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

ACTION: Final rule.

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SUMMARY: NMFS is correcting regulatory text implementing measures that 
were

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approved as part of Framework Adjustment 19 (Framework 19) to the 
Atlantic Sea Scallop Fishery Management Plan (FMP), which was developed 
by the New England Fishery Management Council (Council). This 
correction specifies the September 1 through October 1 Elephant Trunk 
Sea Scallop Access Area (ETAA) seasonal closure, which was 
inadvertently removed from the regulations in the final rule for 
Framework 19. This rule also corrects an incorrect reference to the 
Nantucket Lightship Access Area included in the regulations for the 
ETAA, and includes the total allowable catch (TAC) values.

DATES: Effective September 23, 2008.

ADDRESSES: An environmental assessment (EA) was prepared for Framework 
19 that describes the action and other alternatives considered, and 
provides a thorough analysis of the impacts of the measures and 
alternatives. Copies of Framework 19, the EA, and Initial Regulatory 
Flexibility Analysis are available upon request from Paul J. Howard, 
Executive Director, New England Fishery Management Council, 50 Water 
Street, Newburyport, MA 01950. The final rule for Framework 19 includes 
the Final Regulatory Flexibility Analysis.

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

SUPPLEMENTARY INFORMATION:

Background

    The final rule for Framework 19 to the FMP was published on May 29, 
2008, (73 FR 30790). The preamble text explained that NMFS was 
maintaining the September 1 through October 31 ETAA seasonal closure to 
provide protection for sea turtles during that period in the ETAA. 
However, in the instructions for amending Sec.  648.59, which included 
the seasonal closure, the Framework 19 final rule stated that the 
paragraph that implemented the closure (Sec.  648.59(e)(3)) was to be 
``removed and reserved.'' This instruction was inadvertent and, as a 
result, the regulations effective July 1, 2008, did not include the 
seasonal closure.
    This final rule also corrects a mistaken reference to the Nantucket 
Lightship Access Area that was included in the ETAA regulations and 
provides the TAC specifications for limited access general category 
vessels fishing in the ETAA. The regulations in Sec.  648.59(e)(4)(ii), 
that became effective on June 1 in the Framework 19 final rule, 
included the TACs for general category vessels fishing in the ETAA 
prior to the effective date of the LAGC permit requirements on July 1, 
2008, but omitted the TAC values for LAGC scallop vessels.
    In Framework 19, the Council recommended elimination of the ETAA 
seasonal closure. The proposed rule for Framework 19 described NMFS's 
disapproval of the elimination of the ETAA seasonal closure and 
maintained the seasonal closure in the proposed regulations for public 
comment. The disapproval of the Council's recommendation to eliminate 
the ETAA seasonal closure was the subject of public comments on the 
Framework 19 proposed rule. NMFS has already responded to comments in 
the Framework 19 final rule. The seasonal closure has been in effect 
since the ETAA opened in 2007. The change of the reference in Sec.  
648.59(e)(4)(ii)(A) from the Nantucket Lightship Access Area to the 
ETAA and the inclusion of the TAC in that paragraph do not change the 
measures included in the Framework 19 final rule and are for 
clarification only. Therefore, the correction does not change the 
operating practices of the fishery.

Classification

    NMFS has determined that this correcting amendment is necessary for 
the conservation and management of the Atlantic sea scallop fishery and 
is consistent with the Magnuson-Stevens Act and other applicable law.
    This final rule corrects regulations implemented as part of 
Framework 19, which was determined to be not significant for purposes 
of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA (AA), finds good 
cause Pursuant to 5 U.S.C.553(b)(B) to waive prior notice and an 
opportunity for public comment on this action, as notice and comment 
would be contrary to the public interest. The opportunity for public 
comment on the ETAA seasonal closure was provided through the proposed 
rule for Framework 19. Allowing for public comment would give the 
impression that the ETAA seasonal closure is subject to review and 
approval by NMFS, despite NMFS having already decided to disapprove the 
Council's recommendation to remove the seasonal closure and leave the 
ETAA seasonal closure in place. This would be contrary to public 
interest as it would generate confusion with respect to the rulemaking 
process for Framework 19. The AA further finds pursuant to 5 U.S.C. 
553(d)(3) good cause to waive the thirty-day delayed effectiveness 
period. NMFS was only recently made aware of the inconsistency between 
the Framework 19 preamble and the regulations that became effective on 
July 1, 2008, and the closure under this correction began on September 
1, 2008. This closure is important for the protection of sea turtles 
listed under the Endangered Species Act. Sea turtles are present in the 
Mid-Atlantic region, including the ETAA, from May through November. The 
ETAA seasonal closure reduces the potential for interactions between 
the scallop fishery and turtles from interactions with fishing gear by 
prohibiting scallop fishing in the area during September and October, 
when takes have been observed. A delay in the effectiveness of this 
reinstatement of the closure provision will increase the likelihood of 
injurious interactions between turtles and scallop fishing gear.
    Because prior notice and opportunity for public comment are not 
required for this rule by 5 U.S.C. 553, or any other law, no regulatory 
flexibility analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: September 17, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out 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, paragraph (e)(3) is added and paragraph 
(e)(4)(ii)(A) is revised to read as follows:


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (e) * * *
    (3) Season. A vessel issued a scallop permit may not fish for, 
possess, or land scallops in or from the area known as the Elephant 
Trunk Sea Scallop Access Area, described in paragraph (e)(2) of this 
section, from September 1 through October 31 of each year the Elephant 
Turnk Access Area is open to scallop fishing as a Sea Scallop Access 
Area, unless transiting pursuant to paragraph (f) of this section.
    (4) * * *
    (ii) LAGC scallop vessels. (A) The percentage of the Elephant Trunk 
Access Area TAC to be allocated to

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LAGC scallop vessels shall be specified in this paragraph (e)(4)(ii)(A) 
through the framework adjustment process and shall determine the number 
of trips allocated to LAGC scallop vessels as specified in paragraph 
(e)(4)(ii)(B) of this section. LAGC vessels shall be allocated 
1,067,000 lb (484 mt) in fishing year 2008, which is 5 percent of the 
2008 Elephant Trunk Access Area TAC. LAGC vessels shall be allocated 
785,700 lb (356 mt) in fishing year 2009, which is 5 percent of the 
2009 Elephant Trunk Access Area TAC. The 2009 general category TAC may 
be reduced per Sec.  648.60(a)(3)(i)(E)(2).
* * * * *
[FR Doc. E8-22259 Filed 9-22-08; 8:45 am]
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