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Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Interim Rule Extension

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Information about this document as published in the Federal Register.

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AGENCY:

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

ACTION:

Temporary rule; interim rule extension.

SUMMARY:

This action extends interim measures that were implemented by the National Marine Fisheries Service (NMFS) on December 22, 2006, to reduce the potential for overfishing the Atlantic sea scallop (scallop) resource and causing excessive scallop mortality resulting from deck loading by reducing the number of limited access and general category scallop trips to the Elephant Trunk Access Area (ETAA), and prohibiting the retention of more Start Printed Page 29890than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA. This action will extend these interim measures, which were scheduled to expire on June 20, 2007, through December 23, 2007.

DATES:

Effective from June 21, 2007, through December 23, 2007.

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FOR FURTHER INFORMATION CONTACT:

Peter W. Christopher, Fishery Policy Analyst, 978-281-9288; fax 978-281-9135.

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SUPPLEMENTARY INFORMATION:

On December 22, 2006, the National Marine Fisheries Service (NMFS) implemented an interim final rule (71 FR 76945) that adjusted management measures for the ETAA. The interim action: (1) Reduced 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); (2) reduced the number of trips from 3 trips to 2 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 (8,165 kg) per trip); (3) reduced the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip; (4) reduced the general category scallop fleet ETAA trip allocation from 1,360 trips to 865 trips; (5) delayed the opening of the ETAA from January 1, 2007, to March 1, 2007; and (6) prohibited the retention or deck loading (i.e., leaving a high volume of scallops on deck after leaving an access area so that the scallops can be shucked on the way in) of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA.

The interim action measures superseded measures scheduled to go into effect on January 1, 2007, under Framework 18 to the Atlantic Sea Scallop Fishery Management Plan (FMP) (Framework 18). The interim action was enacted in response to findings of the Scallop Plan Development Team (PDT), which advised the New England Fishery Management Council (Council) on November 7, 2006, that reducing the number of trips in the ETAA, delaying the opening, and prohibiting “deckloading”, would reduce the potential for overfishing the scallop resource in 2007. The Council voted in November 2006, to recommend that NMFS implement interim measures consistent with the PDT's memorandum. On December 22, 2006, NMFS implemented an interim final rule adopting these recommendations. This interim final rule was scheduled to expire on June 20, 2007.

If the interim action expired, measures in Framework 18 would become effective, an increase in the number of trips and deck loading scallops in the ETAA would occur, and the benefits of the interim action would be lost. To ensure the interim action prevents or reduces overfishing for the 2007 fishing year, extension of the interim rule is necessary. This extension will keep measures in place through December 23, 2007. Since the 2007 fishing ends on February 29, 2008, the Council has initiated Framework Adjustment 20 that would extend the interim measures through February 29, 2008.

Interim Measures

1. ETAA Trip Reduction

This interim rule extension maintains the reduction in the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit remains at 18,000 lb (8,165 kg)); the reduction in 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 remains at 16,800 lb (7,620 kg) per trip); and the reduction in 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 extension also maintains the reduction in 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 addressed 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 extension maintains the provision that delayed the opening of the ETAA from January 1, 2007, until March 1, 2007. The delayed opening prevented vessels from harvesting scallops in the ETAA before they gained 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 was necessary, along with the trip reductions, to reduce overfishing in 2007.

3. Prohibition on Deckloading

This interim rule extension maintains the prohibition on 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 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.Start Printed Page 29891

Comments and Responses

Comment 1: Two commenters offered strong support for the interim action.

Response: Comment noted.

Comment 2: One commenter noted that NMFS “ should have seen the [ETAA] issue coming.”

Response: Framework 18 included a mechanism to adjust the ETAA trips. The Council and NMFS included the provision to adjust ETAA measures in the event that the biomass estimates were overestimated in Framework 18 initially. The Framework 18 mechanism was determined to be not as effective as the interim action in addressing the uncertainty in the projections, but the issue was anticipated.

Classification

Because this interim rule merely extends the interim action already in place, for which public comment was accepted and considered, NMFS finds it is impracticable and contrary to the public interest to provide any additional notice and opportunity for public comment under 5 U.S.C. 553(b)(B) prior to publishing the interim rule. Waiving prior notice and comment allows the ETAA interim measures to remain in place, thereby reducing the potential for overfishing the scallop resource and preventing excessive scallop mortality. For these reasons, the need to extend these measures to assure that overfishing does not occur also constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed effective date, and extend the 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.

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Dated: May 23, 2007.

Samuel D. Rauch III

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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[FR Doc. E7-10370 Filed 5-29-07; 8:45 am]

BILLING CODE 3510-22-S