E8-22259. Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 19; Correcting Amendment

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

NMFS is correcting regulatory text implementing measures that were approved as part of Framework Adjustment 19 (Framework 19) to the Atlantic Sea Scallop Fishery Management Plan (FMP), which was developed by the New England Fishery Management Council (Council). This correction specifies the September 1 through October 1 Elephant Trunk Sea Scallop Access Area (ETAA) seasonal closure, which was inadvertently removed from the regulations in the final rule for Framework 19. This rule also corrects an incorrect reference to the Nantucket Lightship Access Area included in the regulations for the ETAA, and includes the total allowable catch (TAC) values.

DATES:

Effective September 23, 2008.

ADDRESSES:

An environmental assessment (EA) was prepared for Framework 19 that describes the action and other alternatives considered, and provides a thorough analysis of the impacts of the measures and alternatives. Copies of Framework 19, the EA, and Initial Regulatory Flexibility Analysis are available upon request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The final rule for Framework 19 includes the Final Regulatory Flexibility Analysis.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

The final rule for Framework 19 to the FMP was published on May 29, 2008, (73 FR 30790). The preamble text explained that NMFS was maintaining the September 1 through October 31 ETAA seasonal closure to provide protection for sea turtles during that period in the ETAA. However, in the instructions for amending § 648.59, which included the seasonal closure, the Framework 19 final rule stated that the paragraph that implemented the closure (§ 648.59(e)(3)) was to be “removed and reserved.” This instruction was inadvertent and, as a result, the regulations effective July 1, 2008, did not include the seasonal closure.

This final rule also corrects a mistaken reference to the Nantucket Lightship Access Area that was included in the ETAA regulations and provides the TAC specifications for limited access general category vessels fishing in the ETAA. The regulations in § 648.59(e)(4)(ii), that became effective on June 1 in the Framework 19 final rule, included the TACs for general category vessels fishing in the ETAA prior to the effective date of the LAGC permit requirements on July 1, 2008, but omitted the TAC values for LAGC scallop vessels.

In Framework 19, the Council recommended elimination of the ETAA seasonal closure. The proposed rule for Framework 19 described NMFS's disapproval of the elimination of the ETAA seasonal closure and maintained the seasonal closure in the proposed regulations for public comment. The disapproval of the Council's recommendation to eliminate the ETAA seasonal closure was the subject of public comments on the Framework 19 proposed rule. NMFS has already responded to comments in the Framework 19 final rule. The seasonal closure has been in effect since the ETAA opened in 2007. The change of the reference in § 648.59(e)(4)(ii)(A) from the Nantucket Lightship Access Area to the ETAA and the inclusion of the TAC in that paragraph do not change the measures included in the Framework 19 final rule and are for clarification only. Therefore, the correction does not change the operating practices of the fishery.

Classification

NMFS has determined that this correcting amendment is necessary for the conservation and management of the Atlantic sea scallop fishery and is consistent with the Magnuson-Stevens Act and other applicable law.

This final rule corrects regulations implemented as part of Framework 19, which was determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause Pursuant to 5 U.S.C.553(b)(B) to waive prior notice and an opportunity for public comment on this action, as notice and comment would be contrary to the public interest. The opportunity for public comment on the ETAA seasonal closure was provided through the proposed rule for Framework 19. Allowing for public comment would give the impression that the ETAA seasonal closure is subject to review and approval by NMFS, despite NMFS having already decided to disapprove the Council's recommendation to remove the seasonal closure and leave the ETAA seasonal closure in place. This would be contrary to public interest as it would generate confusion with respect to the rulemaking process for Framework 19. The AA further finds pursuant to 5 U.S.C. 553(d)(3) good cause to waive the thirty-day delayed effectiveness period. NMFS was only recently made aware of the inconsistency between the Framework 19 preamble and the regulations that became effective on July 1, 2008, and the closure under this correction began on September 1, 2008. This closure is important for the protection of sea turtles listed under the Endangered Species Act. Sea turtles are present in the Mid-Atlantic region, including the ETAA, from May through November. The ETAA seasonal closure reduces the potential for interactions between the scallop fishery and turtles from interactions with fishing gear by prohibiting scallop fishing in the area during September and October, when takes have been observed. A delay in the effectiveness of this reinstatement of the closure provision will increase the likelihood of injurious interactions between turtles and scallop fishing gear.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, no regulatory flexibility analysis is required and none has been prepared.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Recordkeeping and reporting requirements.

Dated: September 17, 2008.

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 § 648.59, paragraph (e)(3) is added and paragraph (e)(4)(ii)(A) is revised to read as follows:

§ 648.59

Sea Scallop Access Areas.

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(e) * * *

(3) Season. A vessel issued a scallop permit may not 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, from September 1 through October 31 of each year the Elephant Turnk Access Area is open to scallop fishing as a Sea Scallop Access Area, unless transiting pursuant to paragraph (f) of this section.

(4) * * *

(ii) LAGC scallop vessels. (A) The percentage of the Elephant Trunk Access Area TAC to be allocated to LAGC scallop vessels shall be specified in this paragraph (e)(4)(ii)(A) through the framework adjustment process and shall determine the number of trips allocated to LAGC scallop vessels as specified in paragraph (e)(4)(ii)(B) of this section. LAGC vessels shall be allocated 1,067,000 lb (484 mt) in fishing year 2008, which is 5 percent of the 2008 Elephant Trunk Access Area TAC. LAGC vessels shall be allocated 785,700 lb (356 mt) in fishing year 2009, which is 5 percent of the 2009 Elephant Trunk Access Area TAC. The 2009 general category TAC may be reduced per § 648.60(a)(3)(i)(E)(2).

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