Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Closure of the Elephant Trunk Area, 73957-73960 [2012-29967]
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73957
Federal Register / Vol. 77, No. 239 / Wednesday, December 12, 2012 / Rules and Regulations
Bureau, Broadband Division, at 202–
418–0797 or by email to
John.Schauble@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order,
adopted on October 4, 2012 and
released on October 5, 2012, FCC 12–
122, correcting § 101.147 of the
Commission’s final rules adopted in the
Wireless Backhaul 2nd R&O, FCC 12–
87, published at 77 FR 54421
(September 5, 2012). The table under
Frequency assignments, §§ 101.147(i)(9)
and 101.147(o)(8) were incorrect and an
entry to the table under Directional
antennas in § 101.115(b)(2) is incorrect.
This document makes the following
corrections.
List of Subjects in 47 CFR Part 101
Communications equipment, Radio,
Reporting and recordkeeping
requirements.
Federal Communications Commission.
Bulah P. Wheeler,
Associate Secretary.
PART 101—FIXED MICROWAVE
1. The authority citation for part 101
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303.
2. In § 101.115, amend paragraph
(b)(2) by revising the frequency entry to
the table ‘‘6,875 to 7,075’’ to read ‘‘6,875
to 7,125’’ as follows:
■
§ 101.115
*
Accordingly, 47 CFR part 101 is
corrected by making the following
correcting amendments:
Directional antennas.
*
*
(b) * * *
(2) * * *
*
*
ANTENNA STANDARDS
Maximum
beamwidth
to 3 dB
points 1
(included
angle in
degrees)
Frequency
(MHz)
Category
*
*
6,875 to 7,125 .........................
*
A ..............................................
B1 ............................................
B2 ............................................
*
*
Minimum radiation suppression to angle in degrees from centerline of main beam in decibels
Minimum
antenna
gain (dBi)
*
*
38
38
32
2.2
2.2
4.1
*
5° to
10°
*
25
21
15
10°
to
15°
15°
to
20°
29
25
20
*
*
33
29
23
*
20°
to
30°
36
32
28
30°
to
100°
100°
to
140°
140°
to
180°
42
35
29
*
55
39
60
55
45
60
*
1 If
a licensee chooses to show compliance using maximum beamwidth to 3 dB points, the beamwidth limit shall apply in both the azimuth and
the elevation planes.
*
*
*
*
*
*
3. Amend § 101.147 by revising the
frequency tables in paragraphs (i)(9) and
(o)(8) to read as follows:
■
§ 101.147
*
Frequency assignments.
*
*
(i) * * *
(9) * * *
*
*
*
*
*
*
[FR Doc. 2012–28495 Filed 12–11–12; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
Transmit
(receive)
(MHz)
[Docket No. 121203677–2677–01]
5960.025
6019.325
6078.625
6137.925
*
Receive
(transmit)
(MHz)
6212.065
6271.365
6330.665
6389.965
Fisheries of the Northeastern United
States; Atlantic Sea Scallop Fishery;
Closure of the Elephant Trunk Area
*
*
(o) * * *
(8) * * *
*
emcdonald on DSK67QTVN1PROD with
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
action.
AGENCY:
*
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10835
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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
SUMMARY:
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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
https://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,
E:\FR\FM\12DER1.SGM
12DER1
73958
Federal Register / Vol. 77, No. 239 / Wednesday, December 12, 2012 / Rules and Regulations
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:
emcdonald on DSK67QTVN1PROD with
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
VerDate Mar<15>2010
15:22 Dec 11, 2012
Jkt 229001
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 MidAtlantic 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).
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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 makeup 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
E:\FR\FM\12DER1.SGM
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emcdonald on DSK67QTVN1PROD with
Federal Register / Vol. 77, No. 239 / Wednesday, December 12, 2012 / Rules and Regulations
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
VerDate Mar<15>2010
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Jkt 229001
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
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73959
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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73960
Federal Register / Vol. 77, No. 239 / Wednesday, December 12, 2012 / Rules and Regulations
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
1. The authority citation for part 648
continues to read as follows:
■
emcdonald on DSK67QTVN1PROD with
Authority: 16 U.S.C. 1801 et seq.
VerDate Mar<15>2010
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Jkt 229001
§ 648.53
[Amended]
2. In § 648.53, paragraph (b)(4)(v) is
suspended.
■ 3. In § 648.58, paragraph (e) is added
to read as follows:
■
§ 648.58
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):
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
Point
*
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ETA1
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ETA3
ETA4
ETA1
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Latitude
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38°10′
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38°50′
Longitude
N.
N.
N.
N.
N.
74°20′
74°20′
73°30′
73°30′
74°20′
[FR Doc. 2012–29967 Filed 12–11–12; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 77, Number 239 (Wednesday, December 12, 2012)]
[Rules and Regulations]
[Pages 73957-73960]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29967]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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.
[[Page 73960]]
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.
------------------------------------------------------------------------
[FR Doc. 2012-29967 Filed 12-11-12; 8:45 am]
BILLING CODE 3510-22-P