[Federal Register Volume 77, Number 206 (Wednesday, October 24, 2012)]
[Rules and Regulations]
[Pages 64915-64917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26240]



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; Emergency Rule Extension, Closure of the Delmarva Access Area

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

ACTION: Temporary final rule; emergency action extension.


SUMMARY: NMFS extends the emergency closure of the Delmarva Access Area 
(DMV) published on May 14, 2012, which is scheduled to expire on 
November 10, 2012. Specifically, this temporary rule extends the 180-
day closure of the DMV in fishing year (FY) 2012 for an additional 186 
days, through May 13, 2013.

DATES: This rule is effective from November 10, 2012, through May 14, 
2013. The expiration date of the temporary rule published May 14, 2012 
(77 FR 28311), is extended to May 14, 2013, unless superseded by 
another action which will publish in the Federal Register.

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 

FOR FURTHER INFORMATION CONTACT: Christopher Biegel, Fishery Management 
Specialist, 978-281-9112; fax 978-281-9135.


[[Page 64916]]


    This temporary final rule extends the emergency measures 
implemented on June 13, 2012 (77 FR 28311, May 14, 2012), as authorized 
by section 305(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), closing the DMV. The May 14, 
2012, emergency rule included detailed information on purpose and need 
to close the DMV for FY 2012, as well as an announcement that NMFS 
intended to extend this emergency rule for an additional six months. 
The closure of the DMV area for FY 2012 was supported by the scallop 
industry, and the emergency action was recommended by the Council at 
its January 2012 meeting. There were no comments received on the 
original emergency rule.
    This extension adds additional measure that could not be included 
in the initial emergency rule because it would not have become 
effective until after the statutory required expiration of the initial 
rule on November 10, 2012. Framework Adjustment 22 to the Scallop 
Fishery Management Plan (FMP) (FW 22) (76 FR 43774; July 21, 2011) set 
measures extending into FY 2013 as though the DMV would be opened. In 
particular, it allowed scallop research set-aside (RSA) pounds to be 
harvested in the DMV. The original emergency rule to close the DMV 
adjusted the regulations to eliminate the DMV from this set-aside in FY 
2012. However, these changes could not be extended into FY 2013 because 
the original emergency rule was statutorily required to expire on 
November 10, 2012. Since this action will extend the DMV closure into 
the FY 2013, this rule adjusts the regulations by removing the DMV from 
the RSA language. Framework Adjustment 24 to the Scallop FMP is 
expected maintain the DMV closure and is expected to be in place prior 
to the expiration of this rule.
    The emergency rule closed the DVM because fishing in the area in FY 
2012 could result in localized overfishing of the area. In addition, 
there would be no protection for small scallops in the DMV if it 
remains open for FY 2012. This could have negative impacts on 
recruitment in the short and medium term, and could reduce the long-
term biomass and yield from the DMV and the Mid-Atlantic overall. The 
success of the entire scallop rotational management program depends on 
timely openings and closing of access areas in order to protect scallop 
recruitment and optimize yield. NMFS must extend the emergency measures 
because the closure must remain in place for the full FY to prevent 
these negative impacts.
    Framework 22 to the Scallop FMP (Framework 22) used 2010 survey 
results to set the allocations for FYs 2011 and 2012. Based on this 
information, Framework 22 allocated 156 full-time (FT) vessels 1 trip 
each into DMV, which equated to 2.8 M lb (1,270 mt) of scallops from 
this area in FY 2012. However, catch rates in the DMV declined from 
about 2,000 lb (907 kg) per day in the start of FY 2011 to less than 
1,000 lb (434 kg) per day later in the FY. Based on these 2011 catch 
rates, NMFS expected catch rates in DMV in 2012 to be approximately 
1,000 lb (434 kg) per day, compared to about 2,200 lb (998 kg) per day 
or higher in CAI. With lower catch rates, vessels must fish longer to 
catch the allowed possession limit. This increases the amount of time 
and area that the scallop fishing gear is in contact with the sea floor 
(i.e., increased area swept), resulting in negative impacts on the 
scallop resource due to increased discarding of small and otherwise 
unprofitable scallops.
    The 2011 surveys in CAI estimated scallop biomass levels that are 
higher than Framework 22's 2011 projections based on the 2010 survey 
results, and that would support additional effort. When the emergency 
rule reallocated FT vessel DMV trips, the total number of CAI trips 
increased to 313. The increase in CAI trips results in an FY 2012 CAI 
allocation of 5.6 M lb (2,540 mt) of scallops, which is not expected to 
result in excessive fishing in CAI for FY 2012.
    NMFS 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 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. As noted in the 
May 14, 2012, emergency rule, NMFS determined that it was necessary to 
close the DMV, consistent with new scientific advice, in a timely 
manner in order avoid localized overfishing of the area and negative 
impacts on recruitment in the short and medium term.


    No comments were received in response to a request for comments on 
the original emergency action.


    NMFS has determined that this rule is consistent with the Magnuson-
Stevens Act and other applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(b)(B) of the Administrative Procedure Act (APA) that 
it is unnecessary, impracticable, and contrary to the public interest 
to provide for any additional 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, coupled 
with the fact that the public has had the opportunity to comment on 
NMFS' intent to extend this emergency, make solicitation of public 
comment unnecessary, impractical, and contrary to the public interest. 
This action provides the benefit of allowing the Atlantic sea scallop 
fleet to avoid localized overfishing of the DMV and the associated 
negative impacts on recruitment in the short and medium term.
    In the interest of receiving public input on this action, the EA 
analyzing this action was made available to the public and the original 
temporary final rule solicited public comment.
    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 rule primarily extends the rule currently in place for an 
additional 6 months. The need for this extension was fully anticipated 
and announced to the public in the initial emergency rule which 
published on May 14, 2012. The additional measure will not become 
effective until after March 1, 2012. Accordingly, the entities affected 
by this rule and the public have no need to be made aware of or adjust 
to this rule by delaying its effectiveness for 30 days. The primary 
reason for delaying the effectiveness of federal regulations is not 
present, and, therefore, such a delay would serve no public purpose. On 
the other hand, it would be contrary to the public interest if this 
rule does not become effective on November 10, 2012, because the 
previously established trip allocations for the DMV would become

[[Page 64917]]

effective, with the result that overfishing could occur and the small 
scallops in the area would be put at risk. These measures are 
inconsistent with the Magnuson-Stevens Act, the stated intent of the 
scallop area rotation program, and the FMP. Moreover, failing to have 
the rule effective on November 10, 2012, may lead to confusion in the 
fishing community as to what regulations govern the harvest of scallops 
in the DMV. For these reasons, there is good cause to waive the 
requirement for delayed effectiveness.
    For the reason above, the Assistant Administrator for Fisheries 
also finds good cause under section 553(d) of the APA to waive the 30-
day delay in effectiveness.
    NMFS has consulted with the Office of Information and Regulatory 
Affairs (OIRA) and due to the circumstances described above this action 
is exempt from review under 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.
    The EA prepared for the initial emergency rule analyzed the impacts 
of the emergency specifications for the duration of a year 
(Environmental Assessment Emergency Action to the Atlantic Sea Scallop 
FMP: Closure of the Delmarva Scallop Access Area for 2012; March 2011). 
Therefore, the impacts of this emergency action extension have been 
analyzed, and are within the scope of the Finding of No Significant 

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 19, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:


1. The authority citation for part 648 continues to read as follows:

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

2. In Sec.  648.60, paragraph (e)(1)(iii) is suspended and paragraph 
(e)(1)(v) is added to read as follows:

Sec.  648.60  Sea scallop access area program requirements.

* * * * *
    (e) * * *
    (1) * * *
    (v) 2013: Hudson Canyon Access Area, Nantucket Lightship Access 
Area, and Closed Area II Access Area.
* * * * *
[FR Doc. 2012-26240 Filed 10-23-12; 8:45 am]