Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Closure of the Delmarva Access Area, 28311-28315 [2012-11670]

Download as PDF Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 120330235–2014–01] RIN 0648–BC04 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Closure of the Delmarva Access Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; emergency action. AGENCY: NMFS issues this temporary rule under its authority to implement emergency measures under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This emergency rule closes the Delmarva Scallop Access Area (Delmarva) to all scallop vessels for the remainder of the 2012 scallop fishing year and reallocates unused 2012 limited access full-time vessel (FT) scallop Delmarva trips to the Closed Area I Access Area (CAI). Closing Delmarva will prevent high levels of fishing effort in this area, which could have reduced long-term scallop biomass and yield from Delmarva, and could have compromised the overall success of the scallop area rotational management program. This emergency action reallocates 2012 Delmarva trips to CAI to ensure equity in trip allocations and to minimize economic impacts of closing the Delmarva. The New England Fishery Management Council (Council) recommended that NMFS take this action quickly in order to minimize any fishing effort in the Delmarva, and ensure the industry is aware of any allocation adjustments as soon as possible before CAI opens on June 15, 2012. DATES: Effective June 13, 2012, through November 10, 2012. Comments must be received by June 13, 2012. ADDRESSES: The Environmental Assessment (EA) is available by request from: Daniel S. Morris, Acting 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– 2012–0071, by any of the following methods: emcdonald on DSK29S0YB1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:45 May 11, 2012 Jkt 226001 • 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, then enter NOAA–NMFS–2012–0071 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 Daniel S. Morris, Acting 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 Delmarva Access Area.’’ • Fax: (978) 281–9135; Attn: Emily Gilbert. 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: Emily Gilbert, Fishery Policy Analyst, 978–281–9244; fax 978–281–9135. SUPPLEMENTARY INFORMATION: Background The management unit of the Atlantic sea scallop fishery ranges from the shorelines of Maine through North Carolina to the outer boundary of the Exclusive Economic Zone. The Atlantic Sea Scallop Fishery Management Plan (Scallop FMP) was first established in 1982 and now includes a number of amendments and framework adjustments that have revised and refined the fishery’s management. One of the foundations of the Scallop FMP’s success is the rotational area management program. Area-based management was developed in 1998 in PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 28311 the scallop fishery and expanded through 2004. The rotational area management program was formally established in 2004 in the Scallop FMP. Under rotational management, areas that contain large concentrations of small scallops are closed before the scallops are harvested or disturbed, then the areas re-open when scallops are larger, producing more yield-per-recruit. These areas are known as scallop ‘‘access areas.’’ There are currently five scallop access areas: Closed Area I (CAI), Closed Area II, Nantucket Lightship, Delmarva, and Hudson Canyon. When an area is reopened, scallop vessels are allocated a certain number of trips into the area, based on their permit type. The limited access fleet, the larger ‘‘trip boat’’ fleet, consists of full-time (FT), part-time, and occasional vessels. Each vessel is allocated a certain number of trips, with FT vessels receiving area-specific trips and the other two types of limited access vessels receiving a fewer number of trips that are not specific to a certain access area. The smaller ‘‘day boat’’ fleet, known as the limited access general category individual fishing quota (IFQ) fleet, receive a fleet-wide allocation into most access areas. Once the fleet-wide trip allocation in a given access area is harvested, the area closes to IFQ vessels and the vessels can continue to fish their IFQ in other access areas or locations within the scallop management unit. In order to manage the access areas’ schedules, and to identify new potential access areas, the Council develops biennial framework adjustments, which also set the overall scallop allocations and expected fishing effort for upcoming fishing years (FYs). The specifications contained in these framework adjustments use the most recent scallop survey information available at the time of development to project scallop biomass levels in various access areas for future years (e.g., estimates from 2010 surveys are used to determine the specifications for FYs 2011 and 2012). As a result, projections of scallop biomass for the second year of a framework are often outdated for some areas: Updated surveys may show more or less harvestable scallop biomass in a given area than originally anticipated. The scallop FY begins on March 1 of each year and the FY 2012 scallop specifications are the second-year specifications developed by the Council through Framework Adjustment 22 to the Scallop FMP (Framework 22) (76 FR 43774, July 21, 2011). Framework 22 set the access area schedules for FYs 2011 and 2012 based on 2010 survey results. E:\FR\FM\14MYR1.SGM 14MYR1 28312 Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations emcdonald on DSK29S0YB1PROD with RULES In an attempt to account for unexpected changes in biomass levels, as well as optimize yield, Framework 22 included a new way to allocate access area trip for FT vessels: Although all FT vessels received a total of 4 access area trips in FY 2011 and in FY 2012, not all trips were allocated to the same access areas. Instead, Framework 22 included ‘‘split trip’’ allocations for FT vessels, where half the fleet is allocated a trip in one access area and half the fleet is allocated a trip in another access area. This split trip allocation scheme was successful in FY 2011. However, as explained in greater detail below, results from recent 2011 surveys show that the ‘‘split trip’’ access area allocations based on these older surveys should be adjusted for FY 2012 for the Delmarva and CAI access areas. New Information Regarding Current Scallop Biomass Levels in Delmarva At the Council’s Scallop Plan Development Team (PDT) meeting on January 5, 2012, staff from the Northeast Fisheries Science Center, the Virginia Institute of Marine Science (VIMS), and the University of Massachusetts School for Marine and Atmospheric Science presented results from their 2011 Delmarva scallop resource surveys. All three surveys, which represent the best available scientific information regarding the status of the scallop resource, indicated that the scallop biomass in Delmarva is substantially lower than expected for FY 2012. The Delmarva estimates ranged from 5.1 M lb (2,313 mt) to 13.0 M lb (5,897 mt), depending on the type of survey used (i.e., dredge or video) and when the survey was conducted. For example, the VIMS dredge survey that estimated biomass of 5.1 M lb (2,313 mt) was the last survey of the area; it was conducted in October 2011, when nearly all vessels had fully fished their Delmarva trips, and also when scallop meat weights are at their lowest. For comparison, based on the 2010 survey estimates, Framework 22 allocated the FT vessel fleet 5.6 M lb (2,540 mt) and 2.8 M lb (1,270 mt) of scallops from this area in FYs 2011 and 2012, respectively. In 2011, all 313 FT vessels with permits in the Atlantic sea scallop fishery were each allocated one trip (18,000 lb/trip; 8,165 kg/trip) into Delmarva; in FY 2012, only 156 FT vessels were allocated one trip each into Delmarva. The recent survey information is supported by what was observed during FY 2011 fishing activity in Delmarva, where catch rates were much lower in the area than anticipated, and much lower than catch rates in other areas. Catch rates in Delmarva declined from VerDate Mar<15>2010 14:45 May 11, 2012 Jkt 226001 about 2,000 lb (907 kg) per day in the start of FY 2011 to less than 1,000 lb (454 kg) per day later in the FY. The new survey results indicate that the scallop biomass in Delmarva is not high enough to support the FY 2012 allocations set through Framework 22. New Information Regarding Current Scallop Recruitment Levels in Delmarva In addition to identifying lower-thanexpected scallop biomass in Delmarva, the 2011 results also indicated that this access area is one of the few areas in the Mid-Atlantic where there is relatively strong recruitment, meaning an abundance of small scallops (1.57 to 2.95 in (40 to 75 mm)) that have reached maturity (i.e., are able to reproduce). These small scallops will benefit from additional protection through closure of the area—a closure will allow them to grow larger (to the 3.5-in (89-mm) minimum size for harvest) and produce more scallops before they are harvested. Recruitment helps define the health of the resource in terms of reproduction and growth, and helps predict future abundance levels of harvestable scallops. Recruitment levels also help shape the area rotation program for future years. New Information Regarding Current Scallop Biomass Levels in CAI The 2011 surveys estimated scallop biomass in CAI between 28–40 M lb (12,700–18,144 mt), depending on the survey results used and what time of year the surveys took place. These levels are higher than Framework 22’s 2011 projections based on the 2010 survey results, which estimated CAI biomass to be closer to 26 M lb (11,793 mt) in 2011, and indicate that more fishing effort could be allocated to CAI in FY 2012. In FY 2011, the scallop fishery harvested about 8.8 M lb (3,992 mt) of scallops from this area and Framework 22 allocated 157 FT vessels one trip each (18,000 lb/trip; 8,165 kg/trip) into CAI for FY 2012. Based on the most recent information on the status of the scallop resource described above, NMFS takes this emergency action to close Delmarva for the remainder of FY 2012, and reallocates any unused FT trips from Delmarva to CAI in FY 2012. By closing Delmarva, this action will prevent localized overfishing of the scallop resource, protect scallop recruitment, and improve future scallop yield in the Mid Atlantic. By reallocating FT vessel trips into a more productive scallop access area, this action ensures equity across the scallop fleet for FY 2012 and supports overall scallop harvest levels that are consistent with Framework 22. PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 Continued fishing in Delmarva during FY 2012 would result in longer fishing trips that damage scallop resources and increase the risk of overharvesting the available resource. Based on FY 2011 catch rates, if Delmarva did not close in FY 2012, catch rates could continue to be around 1,000 lb (454 kg) per day, compared to about 2,200 lb (998 kg) per day or higher in CAI, which would result in longer fishing trips that damage scallop resources and increase the risk of overharvesting the available resource. Although some vessels received Delmarva allocations at the start of FY 2012, which began March 1, 2012, very few limited access vessels have fished their FY 2012 trips in the area to date due to the poor conditions. However, if Delmarva remained open for the remainder of FY 2012, FT vessels with Delmarva ‘‘split trip’’ allocations would eventually take their trips or risk losing a full access area trip. As previously mentioned, unlike other scallop vessels that have non-specific allocations that can be fished in Delmarva or elsewhere, FT limited access vessels must fish their trips in specific areas, or trade their trips with other FT vessels to fish in other areas. If this area remained open with these low catch rates, the 156 FT vessels with Delmarva allocations would not likely be able to trade their Delmarva trips for other more productive areas. Without any other alternatives, these vessel operators would have continued to fish in Delmarva until they reached the 18,000lb (8,165 kg) limit, which would have required much longer trips to catch their full possession limit. This would have increased the amount of time and area that the scallop fishing gear is in contact with the sea floor (i.e., increased area swept), which in turn would have resulted in negative impacts on the scallop resource due to increased fishing pressure. In addition, if Delmarva remained open in FY 2012, vessel operators would have taken longer fishing trips due to lower scallop biomass levels, which would negatively impact scallop recruitment in the short and medium term, and could reduce the long-term biomass and yield from Delmarva and the Mid-Atlantic overall. Vessel operators would have continued to fish in Delmarva until they reached the 18,000-lb (8,165 kg) limit, which will which negatively impact scallop recruitment due to the potential harvest and disturbance of the small-sized and less mature scallops. The success of the entire scallop access area rotational management program depends on timely openings and closing of access E:\FR\FM\14MYR1.SGM 14MYR1 emcdonald on DSK29S0YB1PROD with RULES Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations 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. By closing Delmarva for the remainder of FY 2012, this action avoids the potential for localized overfishing of the area and promotes future yield from the area by protecting the small scallops located in the area. Reallocating unused FY 2012 Delmarva trips to CAI would ensure equity across the scallop fleet, while not compromising the scallop resource. The reallocation to CAI of unused FT vessel trips from Delmarva is not expected to result in excessive fishing in CAI for FY 2012, based on the most recent survey results. By reallocating to CAI any unused FT vessel trips (up to 156) currently assigned to Delmarva, this action increases the total number of CAI trips from 157 to up to 313. The increase in CAI trips results in an FY 2012 CAI allocation of 5.6 M lb (2,540 mt) of scallops, an area with an estimated scallop biomass of between 28–40 M lb (12,700–18,144 mt). This increase doubles the amount of fishing effort that was initially allocated to CAI at the start of FY 2012, but the recent surveys show that the scallop biomass in this area can support this level of fishing. The FT Delmarva trips that will be converted to CAI once this action is effective include any undeclared FY 2012 trips and all FY 2012 Delmarva compensation trips. If a vessel began an FY 2012 Delmarva scallop trip, ended the trip prior to landing its full possession limit, and has received a subsequent FY 2012 Delmarva compensation trip in order to harvest the remainder of the possession limit, that compensation trip will also be converted to CAI upon the effective date of this action. Any vessel that has gained a Delmarva trip through a trip exchange will also have that trip converted to a CAI trip. In addition, this action reallocates the unused Delmarva FY 2012 observer set-aside (up to 36,000 lb; 16.3 mt) to CAI to account for the increase in FT trips. 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 VerDate Mar<15>2010 14:45 May 11, 2012 Jkt 226001 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 Delmarva 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 last survey in Delmarva was completed in October 2011, the results of the three 2011 Delmarva scallop resource surveys were not available until the January 5, 2012, Scallop PDT meeting. There is now evidence that there is significantly less biomass in Delmarva than projected through Framework 22. In addition, the surveys show that small scallops, or recruitment, are present within Delmarva and that there is not substantial recruitment elsewhere in the Mid-Atlantic. The emergency also presents serious conservation and management problems in the fishery. Allowing fishing effort in Delmarva in FY 2012 with the current low biomass levels could result in negative impacts on recruitment and could reduce the long-term biomass and economic yield from this area. Since there has been well below average recruitment in the Mid-Atlantic for several years, protecting scallop recruitment in this area is essential for the future success of area rotation to maximize yield and economic benefits to the scallop fishery. Additionally, catch rates are much lower for Delmarva than Framework 22 originally projected, and lower than other access areas that are currently open to vessels for FY 2012. When catch rates fall, vessels must fish longer to get 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. Assuming catch rates in FY 2012 are similar on average to catch rates in FY 2011, CAI trips would cost about $16,500 per FT vessel, about half as much as trip costs PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 28313 estimated for that vessel to take a Delmarva trip. Total fleet net revenue for those 156 vessels, assuming no used trips, which would each be reallocated a CAI trip instead of a Delmarva trip is estimated to be $25.5 million, $2.6 million more than if Delmarva had remained open and those vessels were required to fish their trips in that area. These potentially serious conservation and management consequences of high fishing effort in Delmarva in FY 2012 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. Although the Council has the authority to develop a management action to modify the scallop access area trip allocations, an emergency action can be developed and implemented by NMFS more swiftly than a Council action that is subject to procedural and other requirements not applicable to the Secretary. If the normal regulatory process is used to revise the trip allocations (e.g., considering ‘‘pay back’’ measures for vessels with unused FY 2012 Delmarva trips during the development of Framework 24, which would set the specifications for FYs 2013–2014) it would take substantially longer for the revised trip allocations to be implemented, could result in unintended impacts to future FY annual catch limits (ACLs), and could result in triggering economically harmful management actions that otherwise may have been avoided. By implementing these measures through emergency action, it is possible to maintain overall catch allocations for scallops for the remainder of FY 2012 and avoid unnecessary adverse biological and economic impacts. This emergency action closes Delmarva in FY 2012 for 150 days (after a 30-day delay in effectiveness), and NMFS anticipates extending this action for an additional 186 days, which would carry these measures into May 2013. This emergency action is expected to be replaced by Framework Adjustment 24 to the Scallop FMP (Framework 24), which sets the specifications for FYs 2013 and 2014. The Council is currently developing Framework 24 management measures but it is likely Delmarva would continue to be closed for FY 2013. NMFS expects that Framework 24 E:\FR\FM\14MYR1.SGM 14MYR1 28314 Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations emcdonald on DSK29S0YB1PROD with RULES measures will be implemented in May 2013, if approved, which would coincide with the expiration of this emergency action. 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 described under section 305(c)(3)(B) of the MagnusonStevens Act. The Assistant Administrator for Fisheries, NOAA, finds good cause under section 553(b)(B) of the Administrative Procedure Act (APA) 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. 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 harvest, and ensuring that some members of the limited access scallop fleet will not be inequitably subjected to fewer economic benefits than others. Specifically, by closing the Delmarva for the remainder of FY 2012, this action avoids jeopardizing the success of the access area program in future years by protecting scallop recruitment in the Mid-Atlantic and avoiding localized overfishing. In addition, by reallocating unused FT Delmarva trips (up to 156 trips) into CAI in FY 2012, this action avoids potential inequity in FY 2012 allocations and ensures that the limited access scallop fleet would not risk exceeding its sub-ACL in FY 2013, if vessels allocated Delmarva trips were compensated in FY 2013, rather than FY 2012. This also avoids the potential for the limited access fleet to be subjected to potential days-at-sea deductions in FY 2014 to account for any overage of their FY 2013 ACL. In addition, this action minimizes the likelihood of sea turtle interactions in the Mid-Atlantic, which are known to begin in June, due to longer Delmarva fishing trips. This action did not allow for prior public comment because the review process and determination could not have been completed before Delmarva opened on March 1, 2012, due to the inherent time VerDate Mar<15>2010 14:45 May 11, 2012 Jkt 226001 constraints associated with the Council’s rulemaking process to adjust FY 2012 allocations already specified through Framework 22. The results of the three 2011 Delmarva scallop resource surveys were not available until the January 5, 2012, Scallop PDT meeting, and thus there was not enough time for NMFS to complete a rulemaking through the Council’s process under the Magnuson-Stevens Act before the Delmarva area opened to fishing on March 1, 2012. This action is undertaken at the request of the Council and is supported by 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 urged that NMFS implement this action quickly in order to minimize any fishing effort in the Delmarva, and ensure the industry is aware of any allocation adjustments before CAI opens on June 15, 2012. Had this action been further delayed past the start of FY 2012 to account for public comment, it is possible that FT vessels, uncertain whether or not they would receive CAI trips instead of their Delmarva trips, would have fished in the Delmarva when the meat weights would be highest (i.e., during the first few months of the fishing year), which would have negative implications on the recruitment in the area. 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. 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. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: May 9, 2012. Samuel D. Rauch III, Acting 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 1. The authority citation for part 648 continues to read as follows: ■ PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 Authority: 16 U.S.C. 1801 et seq. 2. In § 648.58, paragraph (f) is added to read as follows: ■ § 648.58 Rotational Closed Areas. (f) Delmarva Closed Area. No vessel may fish for scallops in, or possess or land scallops from, the area known as the Delmarva Closed Area. No vessel may possess scallops in the Delmarva Closed Area, unless such vessel is only transiting the area as provided in paragraph (c) of this section. The Delmarva 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 DMV1 DMV2 DMV3 DMV4 DMV1 Latitude ........... ........... ........... ........... ........... 38°10′ 38°10′ 37°15′ 37°15′ 38°10′ N N N N N Longitude 74°50′ 74°00′ 74°00′ 74°50′ 74°50′ W W W W W 3. In § 648.59, paragraphs (a) and (b)(5)(i) are suspended, and paragraph (b)(5)(iii) is added to read as follows: ■ § 648.59 Sea Scallop Access Areas. * * * * * (b) * * * (5) * * * (iii) Limited access vessels. Based on its permit category, a vessel issued a limited access scallop permit may fish no more than the maximum number of trips in the Closed Area I Access Area, unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains a Closed Area I Access Area trip and gives up a trip into another Sea Scallop Access Area, as specified in § 648.60(a)(3)(ii), or unless the vessel is taking a compensation trip for a prior Closed Area I Access Area trip that was terminated early, as specified in § 648.60(c). * * * * * ■ 4. In § 648.60: ■ a. Paragraphs (a)(3)(i)(B)(2), (a)(3)(i)(C)(2), (a)(3)(i)(D)(2), (d)(1)(ii), (d)(1)(iv), and (e)(1)(ii) are suspended; and ■ b. Paragraphs (a)(3)(i)(B)(5), (a)(3)(i)(C)(5), (a)(3)(i)(D)(4), (d)(1)(vi), and (e)(1)(iv) are added to read as follows: § 648.60 Sea scallop access area program requirements. (a) * * * (3) * * * (i) * * * (B) * * * (5) In fishing year 2012, each full-time vessel shall have a total of four access E:\FR\FM\14MYR1.SGM 14MYR1 Federal Register / Vol. 77, No. 93 / Monday, May 14, 2012 / Rules and Regulations emcdonald on DSK29S0YB1PROD with RULES area trips and is subject to the following seasonal trip restrictions specified in paragraph (a)(3)(i)(B)(4) of this section. All full-time vessels shall receive one trip into the Closed Area II Access Area and one trip into the Hudson Canyon Access Area. Each vessel shall also receive an additional two access area trips that must be allocated in one of the following combinations: Two trips in the Closed Area I Access Area; one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; one trip in the Closed Area I Access Area and one additional trip in the Hudson Canyon Access Area; or one trip in the Nantucket Lightship Access Area and an additional trip in the Hudson Canyon Access Area. These allocations shall be determined by the Regional Administrator through a random assignment and shall be made publically available prior to the start of the 2012 fishing year. A full description of the random assignment process for FY 2012 is outlined in Section 2.4.2 of Framework 22 to the Scallop Fishery Management Plan. (i) If a full-time vessel was allocated, declared, and fully harvested a 2012 fishing year Delmarva Access Area trip, as originally allocated under Framework VerDate Mar<15>2010 14:45 May 11, 2012 Jkt 226001 Adjustment 22 management measures, prior to the Delmarva Access Area closure implemented under emergency action authority, it will not receive a 2012 fishing year Closed Area I Access Area trip once the Delmarva Access Area closes under emergency action. If the vessel terminated a 2012 fishing year Delmarva Access Area trip early and received a Delmarva Access Area compensation trip fish the remainder of its allowed possession limit, as specified in § 648.60(c), the compensation trip will reallocated to Closed Area I Access Area trip once the Delmarva Access Area closes under emergency action. (ii) [Reserved] (C) * * * (5) For the 2012 fishing year, a parttime scallop vessel is allocated two trips that may be distributed between access areas as follows: Two trips in the Hudson Canyon Access Area; two trips in the Closed Area I Access Area; one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; one trip in the Closed Area I Access Area and one trip in the Hudson Canyon Access Area; or one trip in the Nantucket Lightship Access Area and one trip in the Hudson Canyon PO 00000 Frm 00079 Fmt 4700 Sfmt 9990 28315 Access Area. Part-time vessels are subject to the seasonal trip restrictions specified in paragraph (a)(3)(i)(C)(4) of this section. (D) * * * (4) For the 2012 fishing year, an occasional scallop vessel may take one trip in the Hudson Canyon Access Area, or one trip in the Closed Area I Access Area, or one trip in the Closed Area II Access Area, or one trip in the Nantucket Lightship Access Area. * * * * * (d) * * * (1) * * * (vi) Closed Area I Access Area. For the 2011 and 2012 fishing years, the observer set-asides for the Closed Area I Access Area are 111,540 lb (51 mt) and 72,000 lb (33 mt), respectively. * * * * * (e) * * * (1) * * * (iv) 2012: Hudson Canyon Access Area, Closed Area I Access Area, Closed Area II Access Area, and Nantucket Lightship Access Area. * * * * * [FR Doc. 2012–11670 Filed 5–11–12; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\14MYR1.SGM 14MYR1

Agencies

[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28311-28315]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11670]



[[Page 28311]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120330235-2014-01]
RIN 0648-BC04


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Closure of the Delmarva 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 under its authority to 
implement emergency measures under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). This emergency 
rule closes the Delmarva Scallop Access Area (Delmarva) to all scallop 
vessels for the remainder of the 2012 scallop fishing year and 
reallocates unused 2012 limited access full-time vessel (FT) scallop 
Delmarva trips to the Closed Area I Access Area (CAI). Closing Delmarva 
will prevent high levels of fishing effort in this area, which could 
have reduced long-term scallop biomass and yield from Delmarva, and 
could have compromised the overall success of the scallop area 
rotational management program. This emergency action reallocates 2012 
Delmarva trips to CAI to ensure equity in trip allocations and to 
minimize economic impacts of closing the Delmarva. The New England 
Fishery Management Council (Council) recommended that NMFS take this 
action quickly in order to minimize any fishing effort in the Delmarva, 
and ensure the industry is aware of any allocation adjustments as soon 
as possible before CAI opens on June 15, 2012.

DATES: Effective June 13, 2012, through November 10, 2012. Comments 
must be received by June 13, 2012.

ADDRESSES: The Environmental Assessment (EA) is available by request 
from: Daniel S. Morris, Acting 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-
2012-0071, 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, then enter NOAA-NMFS-2012-0071 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 Daniel S. Morris, Acting 
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 Delmarva Access Area.''
     Fax: (978) 281-9135; Attn: Emily Gilbert.
    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: Emily Gilbert, Fishery Policy Analyst, 
978-281-9244; fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The management unit of the Atlantic sea scallop fishery ranges from 
the shorelines of Maine through North Carolina to the outer boundary of 
the Exclusive Economic Zone. The Atlantic Sea Scallop Fishery 
Management Plan (Scallop FMP) was first established in 1982 and now 
includes a number of amendments and framework adjustments that have 
revised and refined the fishery's management. One of the foundations of 
the Scallop FMP's success is the rotational area management program. 
Area-based management was developed in 1998 in the scallop fishery and 
expanded through 2004. The rotational area management program was 
formally established in 2004 in the Scallop FMP. Under rotational 
management, areas that contain large concentrations of small scallops 
are closed before the scallops are harvested or disturbed, then the 
areas re-open when scallops are larger, producing more yield-per-
recruit. These areas are known as scallop ``access areas.''
    There are currently five scallop access areas: Closed Area I (CAI), 
Closed Area II, Nantucket Lightship, Delmarva, and Hudson Canyon. When 
an area is re-opened, scallop vessels are allocated a certain number of 
trips into the area, based on their permit type. The limited access 
fleet, the larger ``trip boat'' fleet, consists of full-time (FT), 
part-time, and occasional vessels. Each vessel is allocated a certain 
number of trips, with FT vessels receiving area-specific trips and the 
other two types of limited access vessels receiving a fewer number of 
trips that are not specific to a certain access area. The smaller ``day 
boat'' fleet, known as the limited access general category individual 
fishing quota (IFQ) fleet, receive a fleet-wide allocation into most 
access areas. Once the fleet-wide trip allocation in a given access 
area is harvested, the area closes to IFQ vessels and the vessels can 
continue to fish their IFQ in other access areas or locations within 
the scallop management unit.
    In order to manage the access areas' schedules, and to identify new 
potential access areas, the Council develops biennial framework 
adjustments, which also set the overall scallop allocations and 
expected fishing effort for upcoming fishing years (FYs). The 
specifications contained in these framework adjustments use the most 
recent scallop survey information available at the time of development 
to project scallop biomass levels in various access areas for future 
years (e.g., estimates from 2010 surveys are used to determine the 
specifications for FYs 2011 and 2012). As a result, projections of 
scallop biomass for the second year of a framework are often outdated 
for some areas: Updated surveys may show more or less harvestable 
scallop biomass in a given area than originally anticipated.
    The scallop FY begins on March 1 of each year and the FY 2012 
scallop specifications are the second-year specifications developed by 
the Council through Framework Adjustment 22 to the Scallop FMP 
(Framework 22) (76 FR 43774, July 21, 2011). Framework 22 set the 
access area schedules for FYs 2011 and 2012 based on 2010 survey 
results.

[[Page 28312]]

In an attempt to account for unexpected changes in biomass levels, as 
well as optimize yield, Framework 22 included a new way to allocate 
access area trip for FT vessels: Although all FT vessels received a 
total of 4 access area trips in FY 2011 and in FY 2012, not all trips 
were allocated to the same access areas. Instead, Framework 22 included 
``split trip'' allocations for FT vessels, where half the fleet is 
allocated a trip in one access area and half the fleet is allocated a 
trip in another access area. This split trip allocation scheme was 
successful in FY 2011. However, as explained in greater detail below, 
results from recent 2011 surveys show that the ``split trip'' access 
area allocations based on these older surveys should be adjusted for FY 
2012 for the Delmarva and CAI access areas.

New Information Regarding Current Scallop Biomass Levels in Delmarva

    At the Council's Scallop Plan Development Team (PDT) meeting on 
January 5, 2012, staff from the Northeast Fisheries Science Center, the 
Virginia Institute of Marine Science (VIMS), and the University of 
Massachusetts School for Marine and Atmospheric Science presented 
results from their 2011 Delmarva scallop resource surveys. All three 
surveys, which represent the best available scientific information 
regarding the status of the scallop resource, indicated that the 
scallop biomass in Delmarva is substantially lower than expected for FY 
2012.
    The Delmarva estimates ranged from 5.1 M lb (2,313 mt) to 13.0 M lb 
(5,897 mt), depending on the type of survey used (i.e., dredge or 
video) and when the survey was conducted. For example, the VIMS dredge 
survey that estimated biomass of 5.1 M lb (2,313 mt) was the last 
survey of the area; it was conducted in October 2011, when nearly all 
vessels had fully fished their Delmarva trips, and also when scallop 
meat weights are at their lowest. For comparison, based on the 2010 
survey estimates, Framework 22 allocated the FT vessel fleet 5.6 M lb 
(2,540 mt) and 2.8 M lb (1,270 mt) of scallops from this area in FYs 
2011 and 2012, respectively. In 2011, all 313 FT vessels with permits 
in the Atlantic sea scallop fishery were each allocated one trip 
(18,000 lb/trip; 8,165 kg/trip) into Delmarva; in FY 2012, only 156 FT 
vessels were allocated one trip each into Delmarva. The recent survey 
information is supported by what was observed during FY 2011 fishing 
activity in Delmarva, where catch rates were much lower in the area 
than anticipated, and much lower than catch rates in other areas. Catch 
rates in Delmarva declined from about 2,000 lb (907 kg) per day in the 
start of FY 2011 to less than 1,000 lb (454 kg) per day later in the 
FY. The new survey results indicate that the scallop biomass in 
Delmarva is not high enough to support the FY 2012 allocations set 
through Framework 22.

New Information Regarding Current Scallop Recruitment Levels in 
Delmarva

    In addition to identifying lower-than-expected scallop biomass in 
Delmarva, the 2011 results also indicated that this access area is one 
of the few areas in the Mid-Atlantic where there is relatively strong 
recruitment, meaning an abundance of small scallops (1.57 to 2.95 in 
(40 to 75 mm)) that have reached maturity (i.e., are able to 
reproduce). These small scallops will benefit from additional 
protection through closure of the area--a closure will allow them to 
grow larger (to the 3.5-in (89-mm) minimum size for harvest) and 
produce more scallops before they are harvested. Recruitment helps 
define the health of the resource in terms of reproduction and growth, 
and helps predict future abundance levels of harvestable scallops. 
Recruitment levels also help shape the area rotation program for future 
years.

New Information Regarding Current Scallop Biomass Levels in CAI

    The 2011 surveys estimated scallop biomass in CAI between 28-40 M 
lb (12,700-18,144 mt), depending on the survey results used and what 
time of year the surveys took place. These levels are higher than 
Framework 22's 2011 projections based on the 2010 survey results, which 
estimated CAI biomass to be closer to 26 M lb (11,793 mt) in 2011, and 
indicate that more fishing effort could be allocated to CAI in FY 2012. 
In FY 2011, the scallop fishery harvested about 8.8 M lb (3,992 mt) of 
scallops from this area and Framework 22 allocated 157 FT vessels one 
trip each (18,000 lb/trip; 8,165 kg/trip) into CAI for FY 2012.
    Based on the most recent information on the status of the scallop 
resource described above, NMFS takes this emergency action to close 
Delmarva for the remainder of FY 2012, and reallocates any unused FT 
trips from Delmarva to CAI in FY 2012. By closing Delmarva, this action 
will prevent localized overfishing of the scallop resource, protect 
scallop recruitment, and improve future scallop yield in the Mid 
Atlantic. By reallocating FT vessel trips into a more productive 
scallop access area, this action ensures equity across the scallop 
fleet for FY 2012 and supports overall scallop harvest levels that are 
consistent with Framework 22.
    Continued fishing in Delmarva during FY 2012 would result in longer 
fishing trips that damage scallop resources and increase the risk of 
overharvesting the available resource.
    Based on FY 2011 catch rates, if Delmarva did not close in FY 2012, 
catch rates could continue to be around 1,000 lb (454 kg) per day, 
compared to about 2,200 lb (998 kg) per day or higher in CAI, which 
would result in longer fishing trips that damage scallop resources and 
increase the risk of overharvesting the available resource. Although 
some vessels received Delmarva allocations at the start of FY 2012, 
which began March 1, 2012, very few limited access vessels have fished 
their FY 2012 trips in the area to date due to the poor conditions. 
However, if Delmarva remained open for the remainder of FY 2012, FT 
vessels with Delmarva ``split trip'' allocations would eventually take 
their trips or risk losing a full access area trip. As previously 
mentioned, unlike other scallop vessels that have non-specific 
allocations that can be fished in Delmarva or elsewhere, FT limited 
access vessels must fish their trips in specific areas, or trade their 
trips with other FT vessels to fish in other areas. If this area 
remained open with these low catch rates, the 156 FT vessels with 
Delmarva allocations would not likely be able to trade their Delmarva 
trips for other more productive areas. Without any other alternatives, 
these vessel operators would have continued to fish in Delmarva until 
they reached the 18,000-lb (8,165 kg) limit, which would have required 
much longer trips to catch their full possession limit. This would have 
increased the amount of time and area that the scallop fishing gear is 
in contact with the sea floor (i.e., increased area swept), which in 
turn would have resulted in negative impacts on the scallop resource 
due to increased fishing pressure.
    In addition, if Delmarva remained open in FY 2012, vessel operators 
would have taken longer fishing trips due to lower scallop biomass 
levels, which would negatively impact scallop recruitment in the short 
and medium term, and could reduce the long-term biomass and yield from 
Delmarva and the Mid-Atlantic overall. Vessel operators would have 
continued to fish in Delmarva until they reached the 18,000-lb (8,165 
kg) limit, which will which negatively impact scallop recruitment due 
to the potential harvest and disturbance of the small-sized and less 
mature scallops. The success of the entire scallop access area 
rotational management program depends on timely openings and closing of 
access

[[Page 28313]]

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. By closing Delmarva for the 
remainder of FY 2012, this action avoids the potential for localized 
overfishing of the area and promotes future yield from the area by 
protecting the small scallops located in the area.
    Reallocating unused FY 2012 Delmarva trips to CAI would ensure 
equity across the scallop fleet, while not compromising the scallop 
resource.
    The reallocation to CAI of unused FT vessel trips from Delmarva is 
not expected to result in excessive fishing in CAI for FY 2012, based 
on the most recent survey results. By reallocating to CAI any unused FT 
vessel trips (up to 156) currently assigned to Delmarva, this action 
increases the total number of CAI trips from 157 to up to 313. The 
increase in CAI trips results in an FY 2012 CAI allocation of 5.6 M lb 
(2,540 mt) of scallops, an area with an estimated scallop biomass of 
between 28-40 M lb (12,700-18,144 mt). This increase doubles the amount 
of fishing effort that was initially allocated to CAI at the start of 
FY 2012, but the recent surveys show that the scallop biomass in this 
area can support this level of fishing.
    The FT Delmarva trips that will be converted to CAI once this 
action is effective include any undeclared FY 2012 trips and all FY 
2012 Delmarva compensation trips. If a vessel began an FY 2012 Delmarva 
scallop trip, ended the trip prior to landing its full possession 
limit, and has received a subsequent FY 2012 Delmarva compensation trip 
in order to harvest the remainder of the possession limit, that 
compensation trip will also be converted to CAI upon the effective date 
of this action. Any vessel that has gained a Delmarva trip through a 
trip exchange will also have that trip converted to a CAI trip. In 
addition, this action reallocates the unused Delmarva FY 2012 observer 
set-aside (up to 36,000 lb; 16.3 mt) to CAI to account for the increase 
in FT trips.
    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 Delmarva 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 last survey in Delmarva was 
completed in October 2011, the results of the three 2011 Delmarva 
scallop resource surveys were not available until the January 5, 2012, 
Scallop PDT meeting. There is now evidence that there is significantly 
less biomass in Delmarva than projected through Framework 22. In 
addition, the surveys show that small scallops, or recruitment, are 
present within Delmarva and that there is not substantial recruitment 
elsewhere in the Mid-Atlantic.
    The emergency also presents serious conservation and management 
problems in the fishery. Allowing fishing effort in Delmarva in FY 2012 
with the current low biomass levels could result in negative impacts on 
recruitment and could reduce the long-term biomass and economic yield 
from this area. Since there has been well below average recruitment in 
the Mid-Atlantic for several years, protecting scallop recruitment in 
this area is essential for the future success of area rotation to 
maximize yield and economic benefits to the scallop fishery.
    Additionally, catch rates are much lower for Delmarva than 
Framework 22 originally projected, and lower than other access areas 
that are currently open to vessels for FY 2012. When catch rates fall, 
vessels must fish longer to get 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. 
Assuming catch rates in FY 2012 are similar on average to catch rates 
in FY 2011, CAI trips would cost about $16,500 per FT vessel, about 
half as much as trip costs estimated for that vessel to take a Delmarva 
trip. Total fleet net revenue for those 156 vessels, assuming no used 
trips, which would each be reallocated a CAI trip instead of a Delmarva 
trip is estimated to be $25.5 million, $2.6 million more than if 
Delmarva had remained open and those vessels were required to fish 
their trips in that area.
    These potentially serious conservation and management consequences 
of high fishing effort in Delmarva in FY 2012 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. Although the Council has the authority 
to develop a management action to modify the scallop access area trip 
allocations, an emergency action can be developed and implemented by 
NMFS more swiftly than a Council action that is subject to procedural 
and other requirements not applicable to the Secretary. If the normal 
regulatory process is used to revise the trip allocations (e.g., 
considering ``pay back'' measures for vessels with unused FY 2012 
Delmarva trips during the development of Framework 24, which would set 
the specifications for FYs 2013-2014) it would take substantially 
longer for the revised trip allocations to be implemented, could result 
in unintended impacts to future FY annual catch limits (ACLs), and 
could result in triggering economically harmful management actions that 
otherwise may have been avoided. By implementing these measures through 
emergency action, it is possible to maintain overall catch allocations 
for scallops for the remainder of FY 2012 and avoid unnecessary adverse 
biological and economic impacts.
    This emergency action closes Delmarva in FY 2012 for 150 days 
(after a 30-day delay in effectiveness), and NMFS anticipates extending 
this action for an additional 186 days, which would carry these 
measures into May 2013. This emergency action is expected to be 
replaced by Framework Adjustment 24 to the Scallop FMP (Framework 24), 
which sets the specifications for FYs 2013 and 2014. The Council is 
currently developing Framework 24 management measures but it is likely 
Delmarva would continue to be closed for FY 2013. NMFS expects that 
Framework 24

[[Page 28314]]

measures will be implemented in May 2013, if approved, which would 
coincide with the expiration of this emergency action.

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 described under 
section 305(c)(3)(B) of the Magnuson-Stevens Act.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(b)(B) of the Administrative Procedure Act (APA) 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.
    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 harvest, and ensuring that some members of the 
limited access scallop fleet will not be inequitably subjected to fewer 
economic benefits than others. Specifically, by closing the Delmarva 
for the remainder of FY 2012, this action avoids jeopardizing the 
success of the access area program in future years by protecting 
scallop recruitment in the Mid-Atlantic and avoiding localized 
overfishing. In addition, by reallocating unused FT Delmarva trips (up 
to 156 trips) into CAI in FY 2012, this action avoids potential 
inequity in FY 2012 allocations and ensures that the limited access 
scallop fleet would not risk exceeding its sub-ACL in FY 2013, if 
vessels allocated Delmarva trips were compensated in FY 2013, rather 
than FY 2012. This also avoids the potential for the limited access 
fleet to be subjected to potential days-at-sea deductions in FY 2014 to 
account for any overage of their FY 2013 ACL. In addition, this action 
minimizes the likelihood of sea turtle interactions in the Mid-
Atlantic, which are known to begin in June, due to longer Delmarva 
fishing trips. This action did not allow for prior public comment 
because the review process and determination could not have been 
completed before Delmarva opened on March 1, 2012, due to the inherent 
time constraints associated with the Council's rulemaking process to 
adjust FY 2012 allocations already specified through Framework 22. The 
results of the three 2011 Delmarva scallop resource surveys were not 
available until the January 5, 2012, Scallop PDT meeting, and thus 
there was not enough time for NMFS to complete a rulemaking through the 
Council's process under the Magnuson-Stevens Act before the Delmarva 
area opened to fishing on March 1, 2012. This action is undertaken at 
the request of the Council and is supported by 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 urged that NMFS 
implement this action quickly in order to minimize any fishing effort 
in the Delmarva, and ensure the industry is aware of any allocation 
adjustments before CAI opens on June 15, 2012. Had this action been 
further delayed past the start of FY 2012 to account for public 
comment, it is possible that FT vessels, uncertain whether or not they 
would receive CAI trips instead of their Delmarva trips, would have 
fished in the Delmarva when the meat weights would be highest (i.e., 
during the first few months of the fishing year), which would have 
negative implications on the recruitment in the area.
    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.
    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.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 9, 2012.
Samuel D. Rauch III,
Acting 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.


0
2. In Sec.  648.58, paragraph (f) is added to read as follows:


Sec.  648.58  Rotational Closed Areas.

    (f) Delmarva Closed Area. No vessel may fish for scallops in, or 
possess or land scallops from, the area known as the Delmarva Closed 
Area. No vessel may possess scallops in the Delmarva Closed Area, 
unless such vessel is only transiting the area as provided in paragraph 
(c) of this section. The Delmarva 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
------------------------------------------------------------------------
DMV1...........................  38[deg]10' N         74[deg]50' W
DMV2...........................  38[deg]10' N         74[deg]00' W
DMV3...........................  37[deg]15' N         74[deg]00' W
DMV4...........................  37[deg]15' N         74[deg]50' W
DMV1...........................  38[deg]10' N         74[deg]50' W
------------------------------------------------------------------------


0
3. In Sec.  648.59, paragraphs (a) and (b)(5)(i) are suspended, and 
paragraph (b)(5)(iii) is added to read as follows:


Sec.  648.59  Sea Scallop Access Areas.

* * * * *
    (b) * * *
    (5) * * *
    (iii) Limited access vessels. Based on its permit category, a 
vessel issued a limited access scallop permit may fish no more than the 
maximum number of trips in the Closed Area I Access Area, unless the 
vessel owner has made an exchange with another vessel owner whereby the 
vessel gains a Closed Area I Access Area trip and gives up a trip into 
another Sea Scallop Access Area, as specified in Sec.  
648.60(a)(3)(ii), or unless the vessel is taking a compensation trip 
for a prior Closed Area I Access Area trip that was terminated early, 
as specified in Sec.  648.60(c).
* * * * *

0
4. In Sec.  648.60:
0
a. Paragraphs (a)(3)(i)(B)(2), (a)(3)(i)(C)(2), (a)(3)(i)(D)(2), 
(d)(1)(ii), (d)(1)(iv), and (e)(1)(ii) are suspended; and
0
b. Paragraphs (a)(3)(i)(B)(5), (a)(3)(i)(C)(5), (a)(3)(i)(D)(4), 
(d)(1)(vi), and (e)(1)(iv) are added to read as follows:


Sec.  648.60  Sea scallop access area program requirements.

    (a) * * *
    (3) * * *
    (i) * * *
    (B) * * *
    (5) In fishing year 2012, each full-time vessel shall have a total 
of four access

[[Page 28315]]

area trips and is subject to the following seasonal trip restrictions 
specified in paragraph (a)(3)(i)(B)(4) of this section. All full-time 
vessels shall receive one trip into the Closed Area II Access Area and 
one trip into the Hudson Canyon Access Area. Each vessel shall also 
receive an additional two access area trips that must be allocated in 
one of the following combinations: Two trips in the Closed Area I 
Access Area; one trip in the Closed Area I Access Area and one trip in 
the Nantucket Lightship Access Area; one trip in the Closed Area I 
Access Area and one additional trip in the Hudson Canyon Access Area; 
or one trip in the Nantucket Lightship Access Area and an additional 
trip in the Hudson Canyon Access Area. These allocations shall be 
determined by the Regional Administrator through a random assignment 
and shall be made publically available prior to the start of the 2012 
fishing year. A full description of the random assignment process for 
FY 2012 is outlined in Section 2.4.2 of Framework 22 to the Scallop 
Fishery Management Plan.
    (i) If a full-time vessel was allocated, declared, and fully 
harvested a 2012 fishing year Delmarva Access Area trip, as originally 
allocated under Framework Adjustment 22 management measures, prior to 
the Delmarva Access Area closure implemented under emergency action 
authority, it will not receive a 2012 fishing year Closed Area I Access 
Area trip once the Delmarva Access Area closes under emergency action. 
If the vessel terminated a 2012 fishing year Delmarva Access Area trip 
early and received a Delmarva Access Area compensation trip fish the 
remainder of its allowed possession limit, as specified in Sec.  
648.60(c), the compensation trip will reallocated to Closed Area I 
Access Area trip once the Delmarva Access Area closes under emergency 
action.
    (ii) [Reserved]
    (C) * * *
    (5) For the 2012 fishing year, a part-time scallop vessel is 
allocated two trips that may be distributed between access areas as 
follows: Two trips in the Hudson Canyon Access Area; two trips in the 
Closed Area I Access Area; one trip in the Closed Area I Access Area 
and one trip in the Nantucket Lightship Access Area; one trip in the 
Closed Area I Access Area and one trip in the Hudson Canyon Access 
Area; or one trip in the Nantucket Lightship Access Area and one trip 
in the Hudson Canyon Access Area. Part-time vessels are subject to the 
seasonal trip restrictions specified in paragraph (a)(3)(i)(C)(4) of 
this section.
    (D) * * *
    (4) For the 2012 fishing year, an occasional scallop vessel may 
take one trip in the Hudson Canyon Access Area, or one trip in the 
Closed Area I Access Area, or one trip in the Closed Area II Access 
Area, or one trip in the Nantucket Lightship Access Area.
* * * * *
    (d) * * *
    (1) * * *
    (vi) Closed Area I Access Area. For the 2011 and 2012 fishing 
years, the observer set-asides for the Closed Area I Access Area are 
111,540 lb (51 mt) and 72,000 lb (33 mt), respectively.
* * * * *
    (e) * * *
    (1) * * *
    (iv) 2012: Hudson Canyon Access Area, Closed Area I Access Area, 
Closed Area II Access Area, and Nantucket Lightship Access Area.
* * * * *
[FR Doc. 2012-11670 Filed 5-11-12; 8:45 am]
BILLING CODE 3510-22-P