06-9831. Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Interim Rule

AGENCY:

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

ACTION:

Temporary rule; interim rule and request for comments.

SUMMARY:

NMFS implements this interim rule to reduce overfishing that may occur in 2007. This rule delays the opening of the Elephant Trunk Access Area (ETAA) until March 1, 2007, reduces the maximum number of trips per vessel in the ETAA per limited access vessel, reduces the number of general category fleet trips from 1,360 to 865 trips in the ETAA, and prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA. This interim action is necessary because a recent projection by the New England Fishery Management Council's (Council) Plan Development Team (PDT) indicated that overfishing of the scallop resource may occur in the 2007 fishing year (FY). The new information presents previously unforeseen circumstances that also present serious management problems to the fishery. Overharvest of the ETAA in FY 2007, and resulting overfishing that may result, could undermine the goals and objectives of area rotation that is the cornerstone of the Atlantic Sea Scallop Scallop Fishery Management Plan (FMP). The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery.

DATES:

Effective from December 22, 2006 through June 20, 2007. Comments must be received at the appropriate address or fax number (see ADDRESSES) by 5 p.m., local time, on January 22, 2007.

ADDRESSES:

Written comments should be submitted by any of the following methods:

• Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Interim Action.”
• Email: [e-mail]
• Fax: [phone]
• Electronically through the Federal e-Rulemaking portal: http//www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Peter W. Christopher, Fishery Policy Analyst, 978-281-9288; fax [phone].

SUPPLEMENTARY INFORMATION:

On June 15, 2006, the NMFS implemented Framework 18 to the FMP (Framework 18) (71 FR 33211). Framework 18 included management measures for the scallop fishery for the 2006 and 2007 fishing years (FY) to prevent overfishing and to achieve optimum yield from the scallop resource. Framework 18 scheduled the opening of the ETAA to scallop fishing for January 1, 2007, with a maximum of five trips per limited access scallop vessel in the ETAA for the 2007 FY. The general category fleet was allocated 1,360 trips in the ETAA for the 2007 FY. The management measures in Framework 18 were based on biomass and fishing mortality estimates calculated using 2004 scallop survey information, which resulted in uncertainty for the projections, particularly for the 2007 FY. Due to the uncertainty, Framework 18 included a regulatory mechanism that allowed NMFS to reduce the number of trips in the ETAA if updated biomass estimates indicate that the ETAA biomass is significantly lower than the Framework 18 biomass estimate for the ETAA.

In October 2006, the Council's PDT reviewed 2006 survey information from three separate biomass surveys and determined that the biomass was lower than projected in Framework 18. Based on biomass estimates alone, no adjustment was necessary, because the biomass is still projected to be above the level that would result in trip reductions under the Framework 18 regulatory mechanism. However, the PDT urged precaution in managing the scallop fishery in 2007 because preliminary fishery projections for the 2007 FY indicated that overfishing of the scallop resource could occur in 2007 under the scheduled management measures. After incorporating 2005 and 2006 scallop survey information into updated projections in November 2006, the PDT found that, in addition to overestimating the biomass in the ETAA, Framework 18 underestimated fishing mortality and overestimated stockwide biomass in 2007. The 2006 updated projection predicted that the level of overfishing was only slightly higher than the threshold fishing mortality rate that would result in an overfishing determination, but the PDT was concerned that various assumptions in the projections combined with unquantifiable factors (reduced meat-weights due to the seasonal spawning cycle and higher-than-estimated discard and natural mortality) led to overly optimistic projections and a likely underestimate of fishing mortality on scallops in 2007. As a result, in a memorandum to the Council dated November 7, 2006, the PDT advised that reducing the number of trips in the ETAA would reduce the potential for overfishing the scallop resource in 2007. In addition, the PDT noted in the memorandum that delaying the opening to March 1, 2007, would increase yield (and reduce fishing mortality), and that prohibiting “deckloading” before leaving a Sea Scallop Access Area (Access Area) (i.e., leaving a high volume of scallops on deck to be shucked while the vessel steams to port), could prevent a source of additional scallop mortality.

On November 15, 2006, following a discussion of the PDT's memorandum and recommendations, the Council voted to request that NMFS implement an interim action to reduce overfishing in 2007. The Council recommended a reduction in the number of ETAA trips from 5 to 3 per full-time limited access vessel (with appropriate reductions for other permit categories), a delay of the ETAA opening date to March 1, 2007, and a prohibition on deckloading in access areas. Representatives of the scallop industry expressed strong support for the Council's recommendations throughout PDT and Council discussion on the issue.

Based on the information supporting the Council's recommendation, NMFS is implementing this action as an interim rule, pursuant to its interim action authority specified in the Magnuson-Stevens Fishery Conservation and Management Act at 16 U.S.C. 1855(c) to reduce overfishing of the scallop resource in 2007. The recent projection of overfishing in the 2007 FY presents previously unforeseen circumstances that present serious management problems to the fishery. If this rule is implemented after January 1, 2007, vessels could begin taking up to five trips (for full-time vessels) into the ETAA. This would likely result in overharvesting scallops in the ETAA and overfishing of scallops in the 2007 FY. Overharvest of the ETAA in 2007, and resulting overfishing that may result, could undermine the goals and objectives of area rotation that is the cornerstone of the FMP. The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery. These circumstances, therefore, are consistent with Policy Guidelines for the Use of Emergency Rules (August 21, 1997, 62 FR 44422) without the opportunity for prior notice and public comment.

Interim Measures

1. ETAA Trip Reduction

This interim rule reduces the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb (8,165 kg)); reduces the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels would be increased from 16,800 lb (7,620 kg) per trip to 18,000 lb per trip (8,165 kg)); and reduces the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at § 648.60(a)(5) published for Framework 18 specified that an occasional vessel's possession limit is 7,500 lb (3,402 kg) per trip. However, Framework 18 intended and analyzed a possession limit of 10,500 lb (4,763 kg) per trip for the 2007 FY. This interim rule also reduces the general category scallop fleet trip allocation from 1,360 to 865 trips in the ETAA.

Reducing the number of trips for scallop vessels in the ETAA. addresses the concern that overfishing of the scallop resource may occur in 2007. Although the biomass in the ETAA remains very high relative to the rest of the scallop resource, it is less abundant than was projected in Framework 18. As a result, even though the fishing mortality is expected to be lower than the target fishing mortality in the area, it would be high enough at the lower biomass to contribute to overfishing in 2007. Part-time vessels have a trip reduction with an increase in the possession limit to ensure that the total access area catch for part-time vessels remains at 40 percent of the full-time access area catch, as intended by the FMP. Occasional vessels have one trip to any access area, but have a possession limit of 7,500 lb (3,402 kg) for the trip, ensuring that the total access area catch for occasional vessels remains at 8.3 percent of the full-time access area catch. Reducing trips in the ETAA was contemplated in Framework 18 and the potential impacts of the trip reductions were fully analyzed in Framework 18.

2. Delayed opening of the ETAA

This interim rule delays the opening of the ETAA until March 1, 2007. A delay in the opening of the ETAA until March 1, 2007, prevents vessels from harvesting scallops in the ETAA before they gain meat-weight during January through February. Following spawning in the fall months, scallops undergo a period of recovery when the meats increase in size and weight. Harvesting scallops at a higher meat-weight improves scallop yield, resulting in lower mortality, since fewer scallops need to be caught to meet the poundage possession limits. In addition, with three trips per vessel, one of the original reasons for opening the ETAA on January 1, 2007, (i.e., to spread the five allocated trips over a longer period) is no longer supported. The March 1, 2007, opening was also contemplated in Framework 18. The new information provided by the Council demonstrates that the delay is necessary, along with the trip reductions, to reduce overfishing in 2007.

3. Prohibition on Deckloading

This interim rule prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA for vessels on Access Area trips. Deckloading is the practice of loading the deck of a vessel with the scallop catch from several tows. Under the current Access Area regulations, vessels can deckload and leave the area, and the vessel crews can spend the time steaming home, sorting and shucking scallops, thereby reducing overall trip costs. This can result in a vessel having more scallops on board than are necessary to achieve the possession limit. The excess scallops are discarded. In addition, due to deckloading, scallops remain on deck longer, increasing discard mortality. In the ETAA, deckloading may cause even higher scallop mortality, since catch rates are expected to be very high, there is a mix of scallop sizes in the area, and scallop crews may discard more smaller scallops in favor of larger scallops. Although the amount of additional mortality cannot be estimated, prohibiting deckloading on ETAA trips is a complementary measure that will help prevent additional scallop mortality.

Although the Council and scallop industry recommend that the prohibition on deckloading be applied to all Access Areas, NMFS has determined that the prohibition can only be supported for the ETAA under this interim action. While the prohibition would help reduce overfishing in the 2007 FY as it relates to the ETAA, deckloading in other access areas cannot be tied directly at this time to overfishing of the scallop resource. It cannot, therefore, be sufficiently justified as an interim measure necessary to reduce overfishing.

NMFS notes that the deckloading prohibition in this interim rule also includes broken trips. The broken trip provision allows a vessel operator complete discretion to terminate an access area trip if circumstances warrant. Under this interim rule, a vessel that breaks a trip will also be prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the ETAA. On broken trips, in-shell scallops could be discarded in the ETAA and the vessel would be allowed to return to the area to complete the trip, provided the owner complies with the broken trip request procedures.

4. Access Area Trip Exchange Clarification

This interim rule also specifies how ETAA trip allocations are impacted for vessel owners who were involved in one-for-one trip exchanges of FY 2007 ETAA trips and FY 2006 Closed Area II and/or Nantucket Lightship Access Area trips. In the 2006 FY, vessel owners were able to exchange with another vessel up to five ETAA trips from the 2007 FY, for up to five Closed Area II and Nantucket Lightship Access Area trips from the 2006 FY. Prior to this interim rule, the total number of FY 2007 ETAA trips that could be taken by both vessels involved in the exchange was 10 trips in the ETAA. Since the total number of FY 2007 ETAA trips between two vessels cannot exceed six trips in the ETAA under this interim rule, the regulation specifying the trip exchange is clarified.

Classification

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds it is impracticable and contrary to the public interest to provide for prior notice and an opportunity for public comment prior to publishing this interim rule, for the following reasons.

Interim action through a final rule without the opportunity for public comment will prevent the adverse impacts that could be expected if NMFS proceeds under normal rulemaking. Under Framework 18 regulations, the ETAA will open on January 1, 2007, and implementing the interim rule without opportunity for prior notice and an opportunity for public comment is necessary to prevent the area from opening on January 1, 2007. The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery. If this interim rule is implemented after January 1, 2007, vessels would be able to begin fishing in the ETAA on January 1, 2007. The scallop industry has warned that a very high amount of effort will take place upon opening of the area and that the catch rate of scallops in the area is expected to be very high. The scallop fleet could therefore complete a large number of trips in a short period of time. The updated projection provided by the PDT indicates that opening the ETAA in January to five trips (for full-time scallop vessels) would likely result in overharvesting scallops in the ETAA and overfishing of scallops in the 2007 FY. Overharvest of the ETAA in 2007, and resulting overfishing that is projected to result, will undermine the goals and objectives of area rotation that is the cornerstone of the FMP. Therefore, delaying the opening of the ETAA and reducing the number of trips is necessary to prevent overfishing, based on the projection and recommendations of the PDT.

The need for this interim action did not become apparent until the updated fishery and resource status projections were completed and reported in the November 7, 2006, memorandum to the Council. The recent projection of overfishing in the 2007 FY presents previously unforeseen circumstances that present serious management problems to the fishery. Because the information dictating the need for this action only became available and known on November 7, 2006, there is insufficient time to provide opportunity for prior public comment and a waiver of prior public comment is justifiable under U.S.C. 553(b)(B).

For the same reasons, good cause also exists under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed effective date, and implement this interim action upon publication.

This interim rule has been determined to be not significant for purposes of Executive Order 12866.

This interim rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Recordkeeping and reporting requirements.

Dated: December 19, 2006.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, 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:

Authority: 16 U.S.C. 1801 et seq.

2. In § 648.14, paragraph (i)(1) is suspended, and paragraphs (h)(27), (i)(13), and (i)(14) are added to read as follows:

§ 648.14

Prohibitions.

(h) * * *

(27) Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

(i) * * *

(13) Fish for or land per trip, or possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell scallops, unless the vessel is participating in the Area Access Program specified in § 648.60, is carrying an observer as specified in § 648.11, and an increase in the possession limit is authorized as specified in § 648.60(d)(2).

(14) Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

3. In § 648.52, paragraph (e) is added to read as follows:

§ 648.52

Possession and landing limits.

(e) Owners or operators of a vessel that is declared into the Elephant Trunk Access Area Sea Scallop Area Access Program as described in § 648.60, are prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).

4. In § 648.58, paragraphs (a) through (d) are suspended and paragraphs (e) through (h) are added to read as follows:

§ 648.58

Rotational Closed Areas.

(e) Through February 28, 2007, 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 (g) 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
ET1	38°50′ N.	74°20′ W.
ET2	38°10′ N.	74°20′ W.
ET3	38°10′ N.	73°30′ W.
ET4	38°50′ N.	73°30′ W.
ET1	38°50′ N.	74°20′ W.

(f) Delmarva Closed Area. From January 1, 2007, 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 (b) 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°10′ N.	74°50′ W.
DMV2	38°10′ N.	74°00′ W.
DMV3	37°15′ N.	74°00′ W.
DMV4	37°15′ N.	74°50′ W.
DMV1	38°10′ N.	74°50′ W.

(g) Transiting. No vessel possessing scallops may enter or be in the area(s) specified in paragraphs (e) and (f) of this section unless the vessel is transiting the area and the vessel's fishing gear is unavailable for immediate use as defined in § 648.23(b), or there is a compelling safety reason to be in such areas.

(h) Vessels fishing for species other than scallops. A vessel may fish for species other than scallops within the closed areas specified in paragraphs (e) and (f) of this section as allowed in this part, provided the vessel does not fish for, catch, or retain scallops or intend to fish for, catch, or retain scallops. Declaration through VMS that the vessel is fishing in the general category scallop fishery is deemed to be an intent to fish for, catch, or retain scallops.

5. In § 648.59, paragraphs (e)(1) and (e)(4) are suspended and paragraphs (e)(5) and (e)(6) are added to read as follows:

§ 648.59

Sea Scallop Access Areas.

(e) * * *

(5) From March 1, 2007, and subject to the seasonal restrictions specified in paragraph (e)(3) of this section, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Elephant Trunk Sea Scallop Access Area, described in paragraph (e)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60.

(6) Number of trips-(i) 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 Elephant Trunk Sea Scallop Access Area from March 1, 2007, as specified in § 648.60(a)(3)(i), unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains an Elephant Trunk Sea Scallop 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 Elephant Trunk Access Area trip that was terminated early, as specified in § 648.60(c).

(ii) General category vessels. Subject to the possession limits specified in §§ 648.52(a) and (b) and 648.60(g), a vessel issued a general category scallop permit may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the Federal Register, in accordance with § 648.60(g)(4), that 865 trips allocated for the period March 1, 2007, have been taken, in total, by all general category scallop vessels, unless transiting pursuant to paragraph (f) of this section. The Regional Administrator shall notify all general category scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken from March 1, 2007.

6. In § 648.60, paragraphs (a)(3)(i), (a)(3)(ii)(B), (a)(5)(i), (d)(1)(v), (e)(1)(v), and (g)(3)(iv) are suspended and paragraphs (a)(3)(ii)(C), (a)(3)(iii), (a)(5)(iv), (d)(1)(vi), (e)(1)(vi), and (g)(3)(vi) are added to read as follows:

§ 648.60

Sea scallop area access program requirements.

(a) * * *

(3) * * *

(ii) * * *

(C) Limited access scallop vessels involved in an exchange of Closed Area II and/or Nantucket Lightship Closed Area Access Area trips for the 2006 fishing year, and Elephant Trunk Access Area trips for the 2007 fishing year shall be subject to a reduction of the vessels' allocated trips so that the total number of allocated Elephant Trunk Access Area trips between two vessels that were involved in such an exchange shall be six for full-time vessels and four for part-time vessels in the 2007 fishing year. Reductions will be applied equally to both vessels' resulting Elephant Trunk Access Area allocation for the 2007 fishing year after the exchange is taken into account, unless the vessel giving Elephant Trunk Access Area trips to another vessel has one or zero Elephant Trunk Access Area trips remaining after the exchange. In such a case, the vessel that received the Elephant Trunk Access Area trips will be subject to a reduction of up to four Elephant Trunk Access Area trips.

(iii) Limited Access Vessel trips. (A) Except as provided in paragraph (c) of this section, paragraphs (a)(3)(i)(B) through (E) specify the total number of trips that a limited access scallop vessel may take into Sea Scallop Access Areas during applicable seasons specified in § 648.59. The number of trips per vessel in any one Sea Scallop Access Area may not exceed the maximum number of trips allocated for such Sea Scallop Access Area as specified in § 648.59, unless the vessel owner has exchanged a trip with another vessel owner for an additional Sea Scallop Access Area trip, as specified in paragraph (a)(3)(ii) of this section, has been allocated a compensation trip pursuant to paragraph (c) of this section.

(B) Full-time scallop vessels. In the 2007 fishing year, a full-time scallop vessel may take one trip in the Closed Area I Access Area, one trip in the Nantucket Lightship Access Area, and three trips in the Elephant Trunk Access Area.

(C) Part-time scallop vessels. In the 2007 fishing year, a part-time scallop vessel may take one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; or one trip in the Closed Area I Access Area and one trip in the Elephant Trunk Access Area; or one trip in the Nantucket Lightship Access Area and one trip in the Elephant Trunk Access Area; or two trips in the Elephant Trunk Access Area.

(D) Occasional scallop vessels. An occasional scallop vessel may take one trip in the 2007 fishing year into any of the Access Areas described in § 648.59 that is open during the specified fishing years.

(5) * * *

(iv) Scallop possession limits. Unless authorized by the Regional Administrator, as specified in paragraphs (c) and (d) of this section, after declaring a trip into a Sea Scallop Access Area, a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, scallops, up to the maximum amounts specified in paragraphs (a)(5)(i)(A) and (B) of this section. No vessel declared into the Elephant Trunk Access Area as described in § 648.59(e) may possess more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).

(A) Up to 18,000 lb (8,165 kg) shucked scallops for full-time and part-time scallop vessels.

(B) Up to 7,500 lb (3,402 kg) shucked scallop for occasional scallop vessels.

(d) * * *

(1) * * *

(vi) Elephant Trunk Access Area. From March 1, 2007, the observer set-aside for the Elephant Trunk Access Area is 173,100 lb (78.5 mt).

(e) * * *

(1) * * *

(vi) Elephant Trunk Access Area. From March 1, 2007, the research set-aside for the Elephant Trunk Access Area is 346,200 lb (157 mt).

(g) * * *

(3) * * *

(vi) Elephant Trunk Access Area. 346,000 lb (157 mt) in 2007.