[Federal Register Volume 76, Number 105 (Wednesday, June 1, 2011)]
[Rules and Regulations]
[Pages 31491-31494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13526]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110502274-1275-01]
RIN 0648-BB05


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Closure of the Nantucket Lightship Access Area

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

ACTION: Temporary rule; emergency action.

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SUMMARY: NMFS issues this temporary rule pursuant to its authority to 
implement emergency measures under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). This emergency 
rule closes the Nantucket Lightship Access Area (NLS) prior to its 
scheduled opening on June 15, 2011, and is consistent with Framework 
Adjustment 22 to the Atlantic Sea Scallop Fishery Management Plan (FMP) 
(Framework 22), which is currently being proposed and subject to public 
comments, and which would close the NLS in FY 2011 as well. This 
closure prevents potentially high levels of scallop and yellowtail 
flounder (yellowtail) catch that could result from opening the area 
prior to the approval and implementation of Framework 22, which could 
be detrimental to the long-term management and health of the scallop 
fishery.

[[Page 31492]]


DATES: Effective June 1, 2011, through November 28, 2011. Comments must 
be received by July 1, 2011.

ADDRESSES: The Environmental Assessment (EA) is available by request 
from: Patricia Kurkul, Regional Administrator, National Marine 
Fisheries Service, Northeast Region, 55 Great Republic Drive, 
Gloucester, MA 01930-2276, or via the Internet at http://www.nero.noaa.gov. You may submit comments, identified by RIN 0648-
BB05, by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov;
     Fax: (978) 281-9135, Attn: Emily Gilbert;
     Mail to NMFS, Northeast Regional Office, 55 Great Republic 
Dr, Gloucester, MA 01930. Mark the outside of the envelope ``Comments 
on Emergency Rule to Close the Nantucket Lightship Access Area.''
     Instructions: All comments received are a part of the 
public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Emily Gilbert, Fishery Policy Analyst, 
978-281-9244; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The New England Fishery Management Council (Council) adopted 
Amendment 15 to the Scallop FMP (Amendment 15) and Framework 22 at its 
September and November 2010 meetings, respectively. Amendment 15 
proposes the process for setting annual catch limits (ACLs) and 
accountability measures (AMs) for the scallop fishery, and sub-ACLs and 
AMs for the Georges Bank and Southern New England/Mid-Atlantic (SNE/MA) 
yellowtail stocks. Framework 22 proposes scallop management measures 
for fishing years (FY) 2011 through 2013 based on the ACL/AM process in 
Amendment 15, and is thus contingent upon approval and implementation 
of Amendment 15. Framework 22 would make adjustments to the current 
scallop access area rotational schedule outlined in the regulations, 
including the closure of the NLS, which is scheduled to open on June 
15, 2011, and allocating trips into three other access areas that were 
closed in FY 2010 (i.e., Closed Area I, Closed Area II, and Hudson 
Canyon Access Areas). NMFS published the proposed rules for Amendment 
15 and Framework 22 in the Federal Register on April 11 and April 29, 
2011, respectively (76 FR 19929 and 76 FR 23940), with the comment 
period ending on May 26, 2011, for Amendment 15, and May 31, 2011, for 
Framework 22. Amendment 15 and Framework 22, if approved, are expected 
to be implemented as soon as possible, but likely after June 15, 2011.
    FY 2011 began on March 1, 2011, and FY 2010 scallop fishery 
regulations remain in effect until superseded by Amendment 15 and 
Framework 22, if approved. These two actions were originally intended 
to be in place on or around March 1, 2011, or at least before the June 
15 date when the NLS area was scheduled to be opened. Due to 
circumstances more fully described below, these actions were delayed 
and it is not possible to implement before June 15, meaning the NLS 
area will open, if this emergency action is not taken. If the NLS 
opens, scallop vessels, which still have trips allocated into NLS under 
the current regulations, will be able to fish their NLS trips beginning 
June 15, 2011. Limited access vessels could take up to one trip; 
limited access general category (LAGC) vessels could take up to 714 
trips fleetwide. If all limited access vessels fished their full NLS 
trip, the fleet could land up to 6 M lb (2,727 mt) of scallops from the 
area. In addition, potential LAGC effort could increase the total 
scallop landings from NLS. This amount of landings would jeopardize the 
fishery's ability to remain below the ACL proposed for the scallop 
fishery and for yellowtail, in turn potentially triggering the AMs, to 
the detriment of the scallop fishery as a whole. Moreover, harvest of 
scallops from NLS in FY 2011 could undermine the rotational area 
management program for FY 2012 and beyond, thereby jeopardizing the 
cornerstone of scallop fishery management. While NMFS and the Council 
anticipated the implementation of Amendment 15 and Framework 22 after 
June 15, 2011, neither NMFS nor the Council anticipated the level of 
catch expected during the short period that the NLS would be open if 
this rule is not implemented.
    Because of complications in developing Amendment 15 and Framework 
22, the Council was not able to submit these actions to NMFS in time 
for them to be promulgated by June 15, 2011. Initially, the Council 
intended to take final action on Amendment 15 in June 2010. Due to 
delays in fully vetting the alternatives, the Council did not take 
final action on Amendment 15 until its September 2010 meeting. The 
Council took final action on Framework 22 at its November 2010 meeting. 
Because of various issues with the development of the environmental 
impact statement (EIS) for Amendment 15, as well as the environmental 
assessment (EA) for Framework 22, final submission of the EIS and EA 
for these actions did not occur until January 11, 2011, and March 22, 
2011, respectively.
    Because a delay was anticipated, the Council included an individual 
payback measure in Framework 22, which was designed to discourage 
fishing in NLS, should that area open prior to the implementation of 
Framework 22. Specifically, if a vessel lands scallops from NLS in FY 
2011, it would have those pounds deducted from an allocated access area 
trip in FY 2012 to account for the overage. Similar payback measures, 
also designed to be disincentives, were included in Framework 22 for 
other access areas and open area days-at-sea (DAS). However, Framework 
22 did not fully anticipate or account for the impacts of a delayed 
implementation of Framework 22 if the majority of the fleet fished this 
additional effort in FY 2011. Based on similar payback measures enacted 
in previous FYs, NMFS expected that the majority of vessels would not 
be willing to suffer the penalty of having scallops caught in FY 2011 
deducted from their FY 2012 allocation. However, in the days leading up 
to the Council meeting on April 28, 2011, the scallop industry reported 
that many industry members might fish an NLS trip in FY 2011 and accept 
the consequences in FY 2012 because they view the benefits of high 
scallop prices this year as outweighing the negative consequences of 
having a reduced allocation in FY 2012. Based on this rationale, the 
scallop industry has commented to NMFS and the Council that, if some 
vessels fish in NLS, it is likely that the majority of other scallop-
permitted vessels will follow suit so that they remain competitive with 
scallop landings of other vessels. As a result, similar to FY 2010, a 
very high level of unanticipated scallop fishing effort could occur in 
NLS within the first 2 or 3 weeks it is open, in the absence of this 
emergency action.

[[Page 31493]]

    On April 28, 2011, at the request of the Fisheries Survival Fund, 
an organization that represents a large portion of the scallop 
industry, and that is an active participant in the development of 
scallop fishery management measures, the Council passed a motion 
requesting that NMFS take emergency action to close NLS in FY 2011 to 
prevent vessels from landing scallops and catching yellowtail in the 
area. NMFS has reviewed this request and determined that there is good 
cause to implement this emergency rule to keep the NLS closed after 
June 15, 2011, as intended by Framework 22.
    NMFS' policy guidelines for the use of emergency rules (62 FR 
44421; August 21, 1997) specify the following three criteria that 
define what an emergency situation is, and justification for final 
rulemaking: (1) The emergency results from recent, unforeseen events or 
recently discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process. NMFS' policy guidelines further provide that emergency action 
is justified for certain situations where emergency action would 
prevent significant direct economic loss, or to preserve a significant 
economic opportunity that otherwise might be foregone. NMFS has 
determined that the issue of closing the NLS meets the three criteria 
for emergency action for the reasons outlined below.
    The emergency results from recent, unforeseen events or recently 
discovered circumstance. Although the delay in Framework 22's 
implementation was expected, as explained above, and measures were 
included at the vessel level to account for the delay, there are 
potential impacts of NLS opening on June 15 that were not anticipated 
or accounted for during the Council's development of Framework 22 that 
NMFS considers to be ``recently discovered circumstances.'' Because 
Framework 22 proposes payback measures as individual disincentives, it 
was not anticipated that many vessels would still take their NLS trips 
if that area opened. However, because of unexpectedly high scallop 
prices, the disincentive value of payback measures have been 
undermined, and the scallop industry believes that the majority of the 
fleet may be willing to risk the payback measures in order to 
capitalize on these high prices and stay competitive in the scallop 
market. The impact of most vessels fishing in the NLS area would result 
in unanticipated high level of scallop landings from NLS in FY 2011 
which likely would have long-term negative impacts on the scallop fleet 
and management of the scallop fishery, for reasons described in greater 
detail below.
    The emergency also presents serious conservation and management 
problems in the fishery. If the limited access scallop fleet exceeded 
the fleet's proposed sub-ACL as a result of large fishing effort in 
NLS, the entire fleet, including those that may not choose to fish 
their NLS trip, could be subject to a DAS deduction in FY 2012. Based 
on Amendment 15 ACL specifications, Framework 22 set a buffer of about 
7.8 M lb (3,538 mt) between the limited access fleet's sub-ACL and 
allocated catch (as an annual catch target (ACT)), primarily to account 
for varying open area catch levels and carryover DAS. However, the 
buffer does not take into account the effects of delayed implementation 
of specification frameworks. If access into NLS in FY 2011 results in 
nearly 6 M lb (2,727 mt) of additional landings, there is a strong 
possibility that the fishery-wide ACL would be exceeded in the first 
year of managing the fishery under ACL measures. The ACL measures are 
intended to promote the conservation of the scallop resource, and 
exceeding them could undermine those efforts, and would be contrary to 
the Magnuson-Stevens Act.
    Additionally, the scallop fishery's yellowtail sub-ACL in FY 2011, 
already allocated through Framework 45 to the Northeast Multispecies 
FMP, does not include trips into NLS, an area with relatively high 
yellowtail catch rates. The scallop fishery's sub-ACL of yellowtail was 
based, in part, on projections of what amount of yellowtail scallop 
vessels would catch in order to harvest the scallop allocations in the 
areas proposed in Framework 22. Unanticipated high fishing effort in 
the NLS would likely increase the amount of yellowtail catch in the 
scallop fishery beyond what is allocated to the scallop fishery, and 
what was anticipated in the event that Framework 22 was not implemented 
before June 15, resulting in a seasonal closure of a portion of SNE/MA 
waters to scallop vessels in FY 2012. The length of the closure depends 
on the extent of the overage of the yellowtail sub-ACL.
    Finally, the potential impacts on the long-term scallop biomass 
within, and yield from, NLS if fishing effort occurs during FY 2011 was 
not anticipated in the development of Framework 22. Based on the status 
of the resource that was analyzed in developing Framework 22, the 
current scallop biomass within NLS would benefit from a closure in FY 
2011, and from limited fishing effort in FY 2012, and result in higher 
scallop yield in future fishing years. The 2007 scallop year class, 
which is now large enough to be vulnerable to commercial fishing gear, 
is the only substantial recent year class in NLS. The closure of NLS in 
FY 2011 under Framework 22 was, in part, to protect this year class 
from harvesting and/or discarding until it grows to a larger size. With 
the NLS closed in FY 2011, Framework 22 projected sufficient biomass in 
NLS to provide access into the area in FY 2012 for half of the full-
time scallop vessels, and one trip each for all full-time scallop 
vessels in FY 2013. These projections did not account for significantly 
high levels of fishing effort in FY 2011 in NLS, and this unanticipated 
effort could compromise future scallop resource levels and access to 
this area, resulting in reduced overall yield. Rotational area 
management is a cornerstone of the Scallop FMP, and jeopardizing its 
success in future years in turn jeopardizes the overall and long-term 
success of the management program.
    These potentially serious conservation and management consequences 
of high fishing effort in the NLS in FY 2011 justify the emergency 
closure of this area.
    NMFS also finds that this emergency can be addressed through 
emergency regulations for which the immediate benefits to both the 
scallop resource and those who depend on it outweigh the value of 
advance notice, public comment, and deliberative consideration of the 
impacts on participants to the same extent as would be expected under 
the normal rulemaking process. Because of the delayed development and 
submission of Amendment 15 and Framework 22, addressing the NLS closure 
issue in a timely fashion through Council action is not now possible. 
Secretarial emergency authority, which does not include the delay of 
further public comment, is the only means available to avoid the 
negative consequences to the scallop and yellowtail resources described 
above. Closing the NLS prior to June 15, 2011, is critical, given the 
potential for a very high level of scallop fishing effort in NLS that 
would otherwise occur during the first 2 to 3 weeks it is open. 
Although this emergency action would be implemented without specific 
prior public comment, this specific measure

[[Page 31494]]

was part of Framework 22, and was subject to extensive public comment 
during the development of that rule. That public comment opportunity 
may mitigate the impact of waiving prior public notice for this 
specific emergency rule. Moreover, this measure is subject to public 
comment in connection with the proposed rule to approve and implement 
this framework.
    Although taking no action would result in higher vessel short-term 
revenues in FY 2011, the benefits would be short-lived if Framework 22 
is approved, because a vessel that fished its NLS trip would have those 
landings deducted pound-for-pound from an access area trip in FY 2012. 
At the fleet level, the high risk that scallop and yellowtail ACLs 
would be exceeded and that future scallop yield would be negatively 
impacted for vessels in FY 2012 and beyond indicate that the future 
costs for the entire fleet, not just vessels that choose to fish in 
NLS, would likely outweigh the benefits of the short-term revenue gain 
in FY 2011. Additionally, fishing a resource in an area that could not 
support that level of harvest in FY 2011 has negative impacts on both 
the resource and those who depend upon it. This level of fishing in NLS 
jeopardizes the long-term success of the rotational management program 
and negatively impacts the scallop resource for future years.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this rule is necessary to respond to an emergency situation and is 
consistent with the national standards and other provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws. The rule may be extended for a period of not more than 
186 days as described under section 305(c)(3)(B) of the Magnuson-
Stevens Fishery Conservation Management Act.
    The Assistant Administrator for Fisheries, NOAA, finds under 
section 553(b)(B) of the Administrative Procedure Act (APA) that it 
would be contrary to the public interest and impracticable to provide 
prior notice and opportunity for the public to comment on this rule, 
and therefore good cause exists to waive those requirements. As more 
fully explained above, the reasons justifying promulgation of this rule 
on an emergency basis make solicitation of public comment contrary to 
the public interest.
    This action provides benefits to both the scallop resource and the 
scallop fishery by not jeopardizing the success of the access area 
program in future years, not compromising future scallop biomass levels 
and subsequent scallop yield for short-term gain, and ensuring that the 
scallop fleet, including those that did not fish in NLS, would not be 
inequitably subjected to possible FY 2012 AMs. Although the measure 
being implemented by this action is receiving public comment in 
connection with Framework 22, the immediate need for this particular 
measure does not allow for prior public comment. Due to the inherent 
time constraints associated with the process and the fact that the 
information on which this action is based (i.e., the much higher 
interest in fishing in NLS than initially anticipated and the fleetwide 
impacts that would result) became available very recently, the review 
process and determination could not have been completed any earlier. 
Indeed, this emergency action is necessary due to the inadequate time 
to receive prior public comment on Framework 22, which proposed this 
measure in the first place.
    If this rulemaking were delayed to allow for notice and comment, 
vessels would be able to fish in NLS beginning June 15, 2011. If this 
were to occur, it is likely that limited access vessels would harvest 
most, if not all, of their scallop allocations in NLS within the first 
2 to 3 weeks of its opening. The time necessary to provide for prior 
notice, opportunity for public comment, and delayed effectiveness for 
this action could result in the scallop fishery incurring long-term 
negative impacts on scallop yield. A delay could also potentially 
trigger DAS deductions and seasonal closures in future FYs, and the 
scallop resource being harvested more quickly than anticipated, thus 
potentially resulting in future biomass concerns within an important 
scallop management access area (i.e., the same impacts that this action 
itself is striving to avoid).
    A delay would also be impracticable. The Magnuson-Stevens Act tasks 
NMFS with conserving fishing resources, and allowing the potential 
over-harvest of scallops by not enacting this rule would impede NMFS' 
ability to comply with those provisions of the Act. For these reasons, 
NMFS finds good cause under section 553(d) of the APA to waive the 30-
day delay in effectiveness of this emergency rule. In the interest of 
receiving public input on this action, the EA analyzing this action 
will be made available to the public and this temporary final rule 
solicits public comment.
    The Office of Management and Budget has determined that this rule 
is not significant according to Executive Order 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act to prepare a regulatory flexibility analysis because 
the rule is issued without opportunity for prior public comment. 
Nevertheless, Framework 22, which proposes the same measure, if 
approved, will assess impacts as required by the RFA.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: May 25, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    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.  648.58, paragraph (e) is added to read as follows:


Sec.  648.58  Rotational Closed Areas.

* * * * *
    (e) Nantucket Lightship Closed Area. No vessel may fish for 
scallops in, or possess or land scallops from, the area known as the 
Nantucket Lightship Closed Area. No vessel may possess scallops in the 
Nantucket Lightship Closed Area, unless such vessel is only transiting 
the area as provided in paragraph (c) of this section. The Nantucket 
Lightship Closed Area is defined by straight lines connecting the 
following points in the order stated (copies of a chart depicting this 
area are available from the Regional Administrator upon request):

------------------------------------------------------------------------
             Point                     Latitude            Longitude
------------------------------------------------------------------------
NLSA1..........................  40[deg]50[min] N     69[deg]00[min] W
NLSA2..........................  40[deg]30[min] N     69[deg]00[min] W
NLSA3..........................  40[deg]30[min] N     69[deg]14.5[min] W
NLSA4..........................  40[deg]50[min] N     69[deg]29.5[min] W
NLAA1..........................  40[deg]50[min] N     69[deg]00[min] W
------------------------------------------------------------------------

Sec.  648.59  [Amended]

0
3. In Sec.  648.59, paragraph (d) is suspended.

[FR Doc. 2011-13526 Filed 5-26-11; 4:15 pm]
BILLING CODE 3510-22-P