[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Rules and Regulations]
[Pages 73957-73960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29967]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 121203677-2677-01]
RIN 0648-BC67


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Closure of the Elephant Trunk Area

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

ACTION: Temporary rule; emergency action.

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SUMMARY: This temporary rule implements emergency measures under the 
authority of the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) to close the Elephant Trunk Area (ETA) to 
all scallop vessels for up to 180 days in order to protect the 
abundance of small scallops in the area. Closing the ETA will prevent 
fishing effort in this area, which could reduce long-term scallop 
biomass and optimum yield from the ETA, and could compromise the 
overall success of the scallop area rotational management program. The 
New England Fishery Management Council (Council), with the support of 
the scallop industry, requested that NMFS take this action quickly in 
order to minimize fishing effort in the ETA.

DATES: Effective December 12, 2012, through June 10, 2013. Comments 
must be received by January 11, 2013.

ADDRESSES: The Environmental Assessment (EA) is available by request 
from: John K. Bullard, 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 on this document, identified by NOAA-NMFS-
2012-0237, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon,

[[Page 73958]]

then enter NOAA-NMFS-2012-0237 in the keyword search. Locate the 
document you wish to comment on from the resulting list and click on 
the ``Submit a Comment'' icon on the right of that line.
     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, NMFS, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Emergency Rule to Close the Elephant Trunk Area.''
     Fax: (978) 281-9135; Attn: Travis Ford.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. 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.) submitted voluntarily by the 
sender will 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). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Travis Ford, Fishery Policy Analyst, 
978-281-9233; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    In 2004, a large abundance of small scallops was discovered in the 
ETA, and later that year, the ETA was closed to scallop fishing to 
protect the small scallops and allow them to grow. Following closure of 
the ETA, scallop biomass increased steadily in the area. When the ETA 
opened in 2007, it contained over one-quarter of the total scallop 
biomass. The area was fished as a controlled access area for 4 years 
(2007-2010) and supported a total of 12 access area trips for each 
full-time vessel, yielding around 72 million lb (32,659 mt) of scallops 
while it was an access area. As designed under the scallop fishery's 
area rotation program, the heavy fishing effort decreased scallop 
biomass significantly. Framework Adjustment 22 to the Scallop FMP 
(Framework 22) (76 FR 43774; July 21, 2011), which used 2010 scallop 
resource survey results, changed the ETA from an access area to an open 
area because the scallop biomass no longer supported access area trip 
allocations to that area.
    At the Council's Scallop Plan Development Team (PDT) meeting on 
August 19 and 20, 2012, staff from the NMFS Northeast Fisheries Science 
Center and researchers from the Virginia Institute of Marine Science 
(VIMS), Arnie's Fisheries, and the University of Massachusetts School 
for Marine Science and Technology (SMAST) presented results from their 
2012 ETA scallop resource surveys. All four surveys, which represent 
the best available scientific information regarding the status of the 
scallop resource, indicated that the abundance of very small scallops 
(which represents future recruitment for the fishery) in the ETA is 
extremely high compared to recent years. In 2012, the mean number of 
scallops per tow with less than 75 mm (3 in) shell height in the ETA 
was 994, compared to 24 in 2011. Most of the scallop biomass in the 
Mid-Atlantic is in the ETA and the Delmarva Area (currently closed). 
However, most of this biomass is small scallops.
    Vessels are currently allowed to fish open area days-at-sea in the 
ETA. To allow any additional trips into the area will result in the 
taking of these abundant small scallops, thereby preventing maximizing 
optimal catch in the future under the rotational management scheme. 
Targeting of scallops in the ETA at this time is likely to have 
negative impacts on recruitment in the short and medium term, and could 
reduce the long-term biomass and yield from the ETA and the overall 
Mid-Atlantic area. The success of the entire scallop access area 
rotational management program depends on timely openings and closing of 
access areas in order to protect scallop recruitment and optimize 
yield. This is particularly true in the Mid-Atlantic, where recruitment 
has been well below average for several years. Further, if vessels 
choose to fish in the ETA, scallop catch rates will likely be low, 
which increases fishing effort, bycatch, costs, and impacts on 
protected resources and habitat.
    At its September 2012 meeting, the Council requested that we take 
emergency action under Section 305(c) of the Magnsuson-Stevens Act to 
close the ETA as soon as possible to avoid the negative impacts 
described above. The Council's request was supported by the Fisheries 
Survival Fund (a group that represents the majority of the full-time 
scallop vessels in the scallop fishery). The Council voted 15-1 in 
favor of the emergency request with the NMFS representative voting 
against, based on NMFS's policy to avoid unanimous votes for emergency 
recommendations, which would obligate the Secretary to implement the 
emergency request. This policy was explained to the Council.
    Pursuant to the Council's request, NMFS publishes this emergency 
action to close the ETA for 180 days, the maximum allowed, without an 
extension, under Magnuson-Stevens Act. NMFS expects that the closure 
will continue for an additional 2 years through a combination of an 
extension of the emergency action, as allowed under the Magnuson-
Stevens Act, if needed, measures being developed by the Council under 
Framework 24, and future actions. NMFS does not expect the closure to 
adversely impact the scallop fleet, because these vessels have 
flexibility to fish in other areas to make-up for lost fishing 
opportunities in the ETA.
    NMFS's 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's 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 ETA meets the three criteria for 
emergency action for the reasons outlined below.
    The emergency results from recent, unforeseen events or recently 
discovered circumstance. The new information from the ETA 2012 scallop 
surveys presents a recently discovered circumstance and therefore 
warrants emergency action. Results of the most recent survey were 
presented at the August 20 and 21, 2012, Scallop PDT meeting. The new 
information suggests that there is a significantly larger amount of 
small scallops in ETA than projected through Framework 22, which

[[Page 73959]]

changed the ETA from an access area into an open area. In 2012, the 
mean number of scallops per tow with less than 75 mm shell height in 
the ETA was 994, compared to 24 in 2011.
    This situation presents serious conservation or management problems 
in the fishery. The success of the entire scallop area rotation 
program, and the need to attain optimal yield from this fishery, 
depends on timely openings and closing of access areas in order to 
protect scallop recruitment and optimize yield. This is particularly 
true in the Mid-Atlantic, where recruitment has been well below average 
for several years but has recently begun to rebound. If the smaller 
scallops are not protected as soon as possible, it would jeopardize the 
area rotation program and optimal production of scallops in the ETA in 
the future. Fishing effort in the ETA could compromise the overall 
success of the area rotation program and achieving optimum yield. 
Fishing activity in ETA could negatively impact scallop recruitment and 
reduce long-term biomass and yield from the area. Due to low catch 
rates of legal-size scallops in this area, there is much concern about 
discard and bycatch mortality of the abundant smaller scallops that 
could occur while vessels are targeting the larger scallops. Further, 
when catch rates fall, vessels must fish longer to harvest the same 
total catch, increasing area swept, or time that fishing gear is in the 
water. Increased area swept has greater impacts on bycatch, habitat, 
and protected resources, as well as increased costs for fishing vessels 
due to longer trips. The increase in fishing costs would also have 
negative impacts on the producer surplus and net economic benefits from 
the fishery.
    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. The Council has the authority to develop a 
management action to close the ETA and it is doing so through Framework 
24, but this process is too slow to address the immediate problem 
presented in the ETA. Framework 24 was adopted by the Council in 
November 2012, but will not be implemented until the spring of 2013 due 
to procedural and rule making requirements. However, protection of the 
small scallops in the ETA is needed as soon as possible to prevent 
vessels from depleting the abundance of small scallops by fishing 
inefficiently in the ETA. There is no other action that either the 
Council or NMFS can take through the normal rulemaking process that 
would enable us to implement the critical closure in time to prevent 
harmful fishing activity in the ETA. An emergency action enables us to 
redirect open area scallop fishing effort in order to avoid unnecessary 
adverse biological and economic impacts. Therefore, the urgency to 
protect these small scallops through a final rule outweighs the value 
of providing prior public comment, particularly given that the members 
of the public most affected by this action have requested it and public 
comment was provided at the September Council meeting.

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 Act and other applicable laws. The rule may be 
extended for a period of not more than 186 days as provided under 
section 305(c)(3)(B) of the Magnuson-Stevens Act.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under 5 U.S.C. 553(b)(B) that it is contrary to the public interest and 
impracticable to provide for prior notice and opportunity for the 
public to comment. 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.
    By closing the ETA, this action avoids jeopardizing the success of 
the access area program in future years by protecting scallop 
recruitment in the ETA. The new information from the ETA 2012 scallop 
surveys suggests that there is a significantly larger amount of small 
scallops in ETA than projected through Framework 22, which changed the 
ETA from an access area into an open area. An analysis of VMS data 
showed that, in the 2 months following this PDT meeting, 36 trips were 
taken in the ETA, resulting in over 3,000 hr of fishing activity. There 
is no action that either the Council or NMFS can take through the 
normal rulemaking process that would enable NMFS to implement the 
critical closure in time to prevent harmful fishing activity in the 
ETA. This emergency action enables NMFS to redirect open area scallop 
fishing effort in order to avoid unnecessary adverse biological and 
economic impacts. Therefore, the urgency to protect these small 
scallops through a final rule outweighs the value of providing prior 
public comment, particularly given that the members of the public most 
affected by this action have requested it and public comment was 
provided at the September Council meeting. This action did not allow 
for prior public comment because the review process and determination 
could not have been completed any earlier, due to the inherent time 
constraints associated with the process. The new information from the 
ETA 2012 scallop surveys presents a recently discovered circumstance 
and therefore warrants emergency action. Results of the most recent 
survey were only presented at the August 20 and 21, 2012, Scallop PDT 
meeting. Although this action is being implementing without notice and 
comment, NMFS is seeking public comment on this rule for purposes of 
assessing the need to extend the rule if other measures to close the 
area are not implemented before the expiration of this rule.
    For these same reasons stated above, pursuant to 5 U.S.C. 
553(d)(3), the Assistant Administrator finds good cause to waive the 
full 30-day delay in effectiveness for this rule. This action is 
undertaken at the request of the Council. The Council, with the support 
of a group representing a large portion of the industry, urged that 
NMFS implement this action quickly in order to minimize any fishing 
effort in the ETA. Moreover, it would be contrary to the public 
interest if this rule does not become effective immediately because 
even an additional 30 days of fishing in the area could lead to 
increased mortality of small scallops in the ETA. This could have 
negative impacts on recruitment in the short and medium term, and could 
reduce the long term biomass and yield from the ETA and the overall 
Mid-Atlantic. For these reasons, there is good cause to waive the 
requirement for delayed effectiveness.
    Because notice and opportunity for comment are not required 
pursuant to 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. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    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.
    This 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.


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    Dated: December 6, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
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.


Sec.  648.53  [Amended]

0
2. In Sec.  648.53, paragraph (b)(4)(v) is suspended.
0
3. In Sec.  648.58, paragraph (e) is added to read as follows:


Sec.  648.58  Rotational Closed Areas.

* * * * *
    (e) Elephant Trunk Closed Area. No vessel may fish for scallops in, 
or possess or land scallops from, the area known as the Elephant Trunk 
Closed Area. No vessel may possess scallops in the Elephant Trunk 
Closed Area, unless such vessel is only transiting the area as provided 
in paragraph (c) of this section. The Elephant Trunk 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
------------------------------------------------------------------------
ETA1..........................................   38[deg]50'   74[deg]20'
                                                         N.           W.
ETA2..........................................   38[deg]10'   74[deg]20'
                                                         N.           W.
ETA3..........................................   38[deg]10'   73[deg]30'
                                                         N.           W.
ETA4..........................................   38[deg]50'   73[deg]30'
                                                         N.           W.
ETA1..........................................   38[deg]50'   74[deg]20'
                                                         N.           W.
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[FR Doc. 2012-29967 Filed 12-11-12; 8:45 am]
BILLING CODE 3510-22-P