Federal Register / Vol. 70, No. 212 / Thursday, November 3, 2005 / Rules and Regulations 66797 

Federalism 

We have analyzed this rule in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (Federalism) and have 

determined that it does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. These 

regulations have no substantial effects 

on the States, the current Federal-State 

relationship, or the current distribution 

of power and responsibilities among 

local officials. Therefore, consultation 

with State and local officials is not 

necessary. 

Executive Order 13175 

MARAD does not believe that this 

rulemaking will significantly or 

uniquely affect the communities of 

Indian tribal governments when 

analyzed under the principles and 

criteria contained in Executive Order 

13175 (Consultation and Coordination 

with Indian Tribal Governments). 

Therefore, the funding and consultation 

requirements of this Executive Order do 

not apply. 

Environmental Impact Statement 

We have analyzed this rule for 

purposes of compliance with the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 et seq.) and have 

concluded that under the categorical 

exclusions in section 4.05 of Maritime 

Administrative Order (MAO) 600–1, 

‘‘Procedures for Considering 

Environmental Impacts,’’ 50 FR 11606 

(March 22, 1985), neither the 

preparation of an Environmental 

Assessment, an Environmental Impact 

Statement, nor a Finding of No 

Significant Impact for this rulemaking is 

required. 

Unfunded Mandates Reform Act of 1995 

This rule does not impose an 

unfunded mandate under the Unfunded 

Mandates Reform Act of 1995. It does 

not result in costs of $100 million or 

more, in the aggregate, to any of the 

following: State, local, or Native 

American tribal governments, or the 

private sector. This rule is the least 

burdensome alternative that achieves 

this objective of U.S. policy. 

Paperwork Reduction Act 

This rule contains information 

collection requirements covered by the 

Office of Management and Budget 

approval number 2133–0529. The 

changes have no impact on the reporting 

burden. 

List of Subjects in 46 CFR 388 

Administrative practice and 

procedure, Maritime carriers, Passenger 

vessels, Reporting and recordkeeping 

requirements. 

■ Accordingly, the Maritime 

Administration amends 46 CFR chapter 

II, subchapter J, by amending part 388 

as follows. 

PART 388—ADMINISTRATIVE 

WAIVERS OF THE COASTWISE TRADE 

LAWS 

■ 1. The authority citation for part 388 

continues to read as follows: 

Authority: 46 App. U.S.C. 1114(b); Pub. L. 

105–383, 112 Stat. 3445 (46 U.S.C. 12106 

note); 49 CFR 1.66. 

■ 2. Amend § 388.3 by revising 

paragraph (a)(1) and the introductory 

text of paragraph (a)(2) to read as 

follows: 

§ 388.3 Application and fee. 

(a) * * * 

(1) The application form contained on 

MARAD’s Web site at http:// 

www.marad.dot.gov may be submitted 

electronically with credit card or 

Automated Clearinghouse (ACH) 

payment of the $500 application fee. 

(2) Alternatively, applicants may send 

written applications to Small Vessel 

Waiver Applications, Office of Ports and 

Domestic Shipping, MAR–830, Room 

7201, 400 7th St., SW., Washington, DC 

20590. Written applications need not be 

in any particular format, but must be 

signed, be accompanied by a check for 

$500 made out to the order of ‘‘Maritime 

Administration’’, and contain the 

following information: 

* * * * * 

Dated: October 31, 2005. 

By order of the Maritime Administrator. 

Joel C. Richard, 

Secretary, Maritime Administration. 

[FR Doc. 05–21924 Filed 11–2–05; 8:45 am] 

BILLING CODE 4910–81–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 051028281–5281–01; I.D. 

101705C] 

RIN 0648–AT99 

Fisheries of the Northeastern United 

States; Atlantic Sea Scallop Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

current regulatory text regarding 

boundaries for the essential fish habitat 

(EFH) closures that were established by 

Framework 16 to the Atlantic Sea 

Scallop (Scallop) Fishery Management 

Plan (FMP) and Framework 39 to the 

Northeast Multispecies (NE 

Multispecies) FMP (Joint Frameworks 

16/39) in order to reflect recent court 

orders in Oceana v. Evans, vacating 

such text and reinstating boundaries for 

EFH closures established by 

Amendment 10 to the Scallop FMP 

(Amendment 10). This final rule also 

revises the Scallop Access Area 

boundaries to be consistent with the 

redefined EFH closed areas. 

DATES: Effective November 3, 2005. 

ADDRESSES: Copies of Amendment 13 to 

the NE Multispecies FMP, Amendment 

10, Joint Frameworks 16/39, their 

Regulatory Impact Reviews (RIR), 

including the Initial Regulatory 

Flexibility Analyses (IRFA), and the 

Environmental Assessment and 

Environmental Impact Statements are 

available on request from Paul J. 

Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Newburyport, MA 

01950. These documents are also 

available online at http:// 

www.nefmc.org. 

FOR FURTHER INFORMATION CONTACT: 

Peter W. Christopher, Fishery Policy 

Analyst, (978) 281–9288; fax (978) 281–

9135. 

SUPPLEMENTARY INFORMATION: On May 1, 

2004, NMFS implemented approved 

measures in Amendment 13 to the NE 

Multispecies FMP (Amendment 13), 

which was developed and 

recommended by the New England 

Fishery Management Council (NEFMC) 

(69 FR 22906, April 27, 2004). Among 

the implemented measures was a 

description of boundaries of certain 

areas of the ocean closed to all mobile 

fishing gear for the protection of NE 

multispecies EFH (§ 648.81(h)). 

Subsequent to the implementation of 

Amendment 13, on July 23, 2004, NMFS 

implemented approved measures in 

Amendment 10, which was also 

developed and recommended by the 

NEFMC (69 FR 35194, June 23, 2004). 

Amendment 10 also included a 

description of boundaries of certain 

areas of the ocean closed to scallop 

fishing for the protection of NE 

multispecies, and EFH for other species, 

from the effects of scallop fishing gear 

(§ 648.61). The Amendment 10 EFH 

66798 Federal Register / Vol. 70, No. 212 / Thursday, November 3, 2005 / Rules and Regulations 

closures were defined by somewhat 

different boundaries than the EFH 

closures implemented by Amendment 

13. Because the EFH closures under 

Amendment 10 were designed primarily 

to protect multispecies EFH, the 

NEMFC, through Joint Frameworks 16/ 

39, recommended that the Amendment 

10 EFH closed area boundaries be 

identical to the Amendment 13 EFH 

closed area boundaries. On November 2, 

2004, NMFS implemented the 

recommended Joint Frameworks 16/39 

EFH closed area boundaries, thereby 

replacing the boundaries contained in 

regulations implementing Amendment 

10 (69 FR 63460, November 2, 2004). 

Oceana, Inc., challenged Amendment 

10 and Joint Frameworks 16/39 in 

Oceana v. Evans, et al., (Civil Action 

No. 04–810, D.D.C., August 2, 2005, and 

October 6, 2005), on several grounds, 

including the validity of changing the 

Amendment 10 EFH closed area 

boundaries through a framework 

procedure, namely Joint Frameworks 

16/39. On August 2, 2005, the court 

ruled that Amendment 10 EFH closed 

area boundaries could not be changed 

through a framework procedure. Based 

on this finding, the Court ordered the 

vacatur of Joint Frameworks 16/39 

regulations, which changed the EFH 

closed area boundaries and stated that 

the ‘‘practical result of the Court’s 

holding is that, for the time being, both 

the habitat closures in Amendment 10 

and the habitat closure in Amendment 

13 will remain in place.’’ (Oceana v. 

Evans, (Order #73, August 2, 2005) p. 

87). NMFS subsequently asked the 

Court for clarification on whether this 

statement meant that Amendment 10 

EFH closures are automatically 

reinstated by the Court’s order. On 

October 6, 2005, the Court issued 

another order in response to the request 

for clarification stating ‘‘ the Court′s 

August 2, 2005 Order [#73] is clarified 

to the extent that it reinstates the habitat 

area closures established by 

Amendment 10 so it is not necessary for 

defendants to repromulgate those 

closures . . . . ‘‘ (Oceana v. Evans, (Order 

#83, October 6, 2005) p. 1). 

This final rule is necessary to ensure 

that the Federal Register and Code of 

Federal Regulations accurately reflects 

the Court’s order reinstating 

Amendment 10 EFH closures and to 

make the Scallop Access Area 

boundaries specified in § 648.59 

consistent with the redefined EFH 

closed areas. This rule provides 

sufficient notice to the scallop industry 

and the public of the effect of the 

Court’s order. As a result, it is more 

likely the scallop industry will come 

into immediate compliance with the 

Amendment 10 EFH closures and 

NMFS’s ability to enforce violations of 

this rule effectively will be enhanced. 

Classification 

The Regional Administrator 

previously determined that Amendment 

10 is necessary for the conservation and 

management of the Atlantic sea scallop 

fishery and is consistent with the 

Magnuson-Stevens Fishery 

Conservation and Management Act and 

other applicable law. This action does 

not change that determination. 

Because prior notice and opportunity 

for public comment are not required for 

this rule by 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. 

The requirement for notice and 

comment rulemaking is waived for good 

cause pursuant to 5 U.S.C. 553(b)(B) 

because it would be unnecessary and 

impracticable. Notice and comment 

rulemaking for this rule is unnecessary 

and impracticable because the agency 

must act immediately in order to bring 

regulations into compliance with the 

court order in Oceana v. Evans. The 

agency, therefore, has no discretion as to 

the substance or timing of this rule. 

Accordingly, notice and comment 

rulemaking would serve no purpose and 

would inappropriately delay amending 

regulations necessary to reflect the court 

order. Because the agency must act 

immediately to bring regulations into 

compliance with the court order, it has 

no discretion to delay the rule′s 

effectiveness. Therefore, there is good 

cause to waive the requirement to delay 

effectiveness of the rule pursuant to 5 

U.S.C. 553(d)(3). 

This final 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. 

Dated: October 28, 2005. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, National Marine Fisheries 

Service. 

■ For the reasons stated 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, paragraphs (b)(3), and 

(d)(3) are revised to read as follows: 

§ 648.59 Sea Scallop Access Areas. 

* * * * * 

(b) * * * 

(3) The Closed Area I Access Area is 

defined the straight lines connecting the 

points in the order stated in the 

following table (copies of a chart 

depicting this area are available from 

the Regional Administrator upon 

request): 

Point Latitude Longitude 

CAIA1 41°26′ N. 68°30′ W. 

CAIA2 41°09′ N. 68°30′ W. 

CAIA3 41°4.54′ N. 69°0.9′ W. 

CAIA1 41°26′ N. 68°30′ W. 

* * * * * 

(d) * * * 

(3) The Nantucket Lightship Sea 

Scallop Access Area is defined by 

straight lines connecting the points in 

the order stated in the following table 

(copies of a chart depicting this area are 

available from the Regional 

Administrator upon request): 

Point Latitude Longitude 

NLSA1 40°50′ N. 69°00′ W. 

NLSA2 40°30′ N. 69.00′ W. 

NLSA3 40°30′ N. 69°14.5′ W. 

NLSA4 40°50′ N. 69°29.5′ W. 

NLSA1 40°50′ N. 69°00′ W. 

* * * * * 

■ 3. Section 648.61 is revised to read as 

follows: 

§ 648.61 EFH closed areas. 

Notwithstanding any other provision 

of this part, the following areas 

identified in paragraphs (a) through (e) 

of this section are closed to scallop 

fishing to protect EFH from adverse 

effects of scallop fishing (copies of 

charts depicting these areas are 

available from the Regional 

Administrator upon request): 

(a) Closed Area I EFH Closure. No 

vessel may fish for scallops in, or 

possess or land scallops from, the area 

known as the Closed Area I EFH 

Closure. No vessel may possess scallops 

in the Closed Area I EFH Closure, unless 

such vessel is only transiting the area as 

provided in paragraph (e) of this 

section. The Closed Area I EFH Closure 

consists of two sections, defined by 

straight lines connecting the points in 

the order stated in the following table: 

Federal Register / Vol. 70, No. 212 / Thursday, November 3, 2005 / Rules and Regulations 66799 

SECTION 1 

Point Latitude Longitude 

CAIE1 41°30′ N. 69°23′ W. 

CAIE2 41°30′ N. 68°35′ W. 

CAIE3 41°08′ N. 69°4.2′ W. 

CAIE4 41°30′ N. 69°23′ W. 

SECTION 2 

Point Latitude Longitude 

CAIE5 41°04.5′ N. 69°1.2′ W. 

CAIE6 41°09′ N. 68°30′ W. 

CAIE7 40°45′ N. 68°30′ W. 

CAIE8 40°45′ N. 68°45′ W. 

CAIE5 41°04.5′ N. 69°1.2′ W. 

(b) Closed Area II EFH Closure. No 

vessel may fish for scallops in, or 

possess or land scallops from, the area 

known as the Closed Area II EFH 

Closure. No vessel may possess scallops 

in the Closed Area II EFH Closure, 

unless such vessel is only transiting the 

area as provided in paragraph (e) of this 

section. The Closed Area II EFH Closure 

is defined by straight lines connecting 

the points in the order stated in the 

following table: 

Point Latitude Longitude 

CAIIE1 42°22′ N. 67°20′ W.1

CAIIE2 41°30′ N. 66°34.8′ 

W.1

CAIIE3 41°30′ N. 67°20′ W. 

CAIIE1 42°22′ N. 67°20′ W.1

1 The U.S/Canada Maritime Boundary 

(c) Nantucket Lightship Closed Area 

EFH Closure. No vessel may fish for 

scallops in, or possess or land scallops 

from, the area known as the Nantucket 

Lightship Closed Area EFH Closure. No 

vessel may possess scallops in the 

Nantucket Lightship Closed Area EFH 

Closure, unless such vessel is only 

transiting the area as provided in 

paragraph (e) of this section. The 

Nantucket Lightship Closed Area EFH 

Closure is defined by straight lines 

connecting the points in the order stated 

in the following table: 

Point Latitude Longitude 

NLSE1 40°50′ N. 70°20′ W. 

NLSE2 40°50′ N. 69°29.5′ W. 

NLSE3 40°30′ N. 69°14.5′ W. 

NLSE4 40°30′ N. 69°00′ W. 

NLSE5 40°20′ N. 69°00′ W. 

NLSE6 40°20′ N. 70°20′ W. 

NLSE1 40°50′ N. 70°20′ W. 

(d) Western Gulf of Maine EFH 

Closure. No vessel may fish for scallops 

in, or possess or land scallops from, the 

area known as the Western Gulf of 

Maine EFH Closure. No vessel may 

possess scallops in the Western Gulf of 

Maine EFH Closure, unless such vessel 

is only transiting the area as provided in 

paragraph (e) of this section. The 

Western Gulf of Maine EFH Closure is 

defined by straight lines connecting the 

points in the order stated in the 

following table: 

Point Latitude Longitude 

WGOM1 43°15′ N. 70°15′ W. 

WGOM2 43°15′ N. 69°55′ W. 

WGOM3 42°15′ N. 69°55′ W. 

WGOM4 42°15′ N. 70°15′ W. 

WGOM1 43°15′ N. 70°15′ W. 

(e) Transiting. A vessel may transit 

the area(s) specified in paragraphs (a), 

(c), and (d) of this section, provided that 

its gear is stowed in accordance with the 

provisions of § 648.23(b). A vessel may 

transit the area specified in paragraph 

(b) of this section, in accordance with 

§ 648.81(b)(2)(iv). 

[FR Doc. 05–21953 Filed 10–31–05; 2:09 pm] 

BILLING CODE 3510–22–S