[Federal Register Volume 59, Number 137 (Tuesday, July 19, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17515]


[[Page Unknown]]

[Federal Register: July 19, 1994]


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DEPARTMENT OF COMMERCE
50 CFR Part 650

[Docket No. 940798-4198; I.D. 061094A]
RIN 0648-AG83

 

Atlantic Sea Scallop Fishery

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 1 to the Atlantic Sea Scallop Fishery Management 
Plan (FMP). This framework adjustment temporarily adjusts the maximum 
crew limit, redesignates the fishing year for sea scallops to begin on 
March 1 each year, and refines existing gear requirements.

EFFECTIVE DATE: August 17, 1994.

ADDRESSES: Copies of Amendment 4, its regulatory impact review, initial 
regulatory flexibility analysis, the final supplemental environmental 
impact statement, and the supporting documents for Framework Adjustment 
1 are available from Douglas Marshall, Executive Director, New England 
Fishery Management Council, 5 Broadway (Route 1), Saugus, MA 01906-
1097, telephone 617-565-8937.

FOR FURTHER INFORMATION CONTACT:
Paul H. Jones, NMFS, Fishery Policy Analyst, 508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

    The final rule for Amendment 4 to the FMP was published on January 
19, 1994 (59 FR 2757), with implementation for most measures on March 
1, 1994, including a call-in notification system for the days-at-sea 
(DAS) program. The amendment retained the FMP's objectives to: (1) 
Restore adult stock abundance and age distribution; (2) increase yield 
per recruit for each stock; (3) evaluate plan research, development and 
enforcement costs; and (4) minimize adverse environmental impacts on 
sea scallops.
    Amendment 4 changed the primary management strategy from a meat 
count (size) control to effort control. The amendment controls total 
fishing effort through limited-access permits and a schedule of 
reductions in allowable DAS. Supplemental measures limit increases in 
vessel fishing power to control the amount of fishing pressure and to 
help control the size of scallops landed, gear restrictions, and limits 
on the number of crew members. Additionally, the amendment includes a 
framework procedure for adjusting the management measures in the FMP.
    Framework Adjustment 1 temporarily adjusts the maximum crew limit, 
redesignates the fishing year to begin on March 1, and refines existing 
gear requirements.
    NMFS is adjusting the regulations under the framework abbreviated 
rulemaking procedure established by Amendment 4 and contained in 50 CFR 
part 650 subpart C. This procedure requires the New England Fishery 
Management Council (Council), when considering specifically allowed 
adjustments to the FMP, to develop and analyze the actions over the 
span of at least two Council meetings. The Council must provide the 
public with advance notice of both the proposals and the analysis and 
with the opportunity to comment on them prior to and at the second 
Council meeting. Upon review of the analysis and public comment, the 
Council may recommend to the Director, Northeast Region, NMFS (Regional 
Director), that the measures be published as a final rule if certain 
conditions are met. The Regional Director may publish the measures as a 
final rule, or as a proposed rule, if additional public comment is 
needed.
    In accordance with the regulations, public comments on the 
framework adjustment were taken by the Council during its February 16, 
1994 (59 FR 6949), and March 17, 1994 (59 FR 12265), meetings. Seven 
members of the industry commented at these meetings. The comments were 
generally in support of the recommended adjustment. Seven written 
responses were received, mostly offering negative commentary. The 
Council voted to approve Framework Adjustment 1 on March 17, 1994.
    The Council also held a joint sea scallop industry advisor and Plan 
Development Team (PDT) meeting on March 21, 1994. The industry 
discussed wide-area closures to protect small scallops and, after 
listening to PDT members express concern over the ability to identify 
distinct areas of small scallops to close, decided not to recommend 
closures. The general consensus at the meeting was to let the new 
regulations go into effect, along with the seven-member crew limit 
proposed in Framework Adjustment 1.

Measure 1--Protection of Small Scallops

    In response to very high levels of recruitment that have been 
documented in the Mid-Atlantic resource area (Regional Director's 
Status Report, January 1994), the Council recommended measures to 
reduce the maximum crew limit and to ensure the adequate escapement of 
small scallops from dredge gear.
    The expected impact of the proposed seven-member crew limit was 
analyzed in Amendment 4. There are two possible ways for vessel 
operators to respond to reduced crew limits. They can try to fish for 
larger scallops, and if catches are sufficient, land as much weight of 
scallop meat as with a crew of nine; or they can continue catching and 
processing fewer small scallops; or a combination of both. Either 
response effectively reduces the number of scallops harvested by a 
vessel per day at sea. For example, in the analysis done for this 
framework adjustment, it is estimated that a crew of seven can shuck 
and process 900 lb (408.2 kg) (meat weight) of scallops per day at sea, 
at an average of 45 meats per lb (45 meats per 0.453 kg). A crew of 
nine, however, would be capable of shucking 1,500 lb (680.4 kg). Under 
ideal conditions, this impact would translate into a 40 percent 
reduction in fishing mortality.

Measure 2--Effort Reduction Schedule

    Amendment 4 relies largely on annual incremental reductions in 
fishing effort to reduce fishing mortality. However, because Amendment 
4 was based on a calendar year and was not implemented until March 1, 
1994, the DAS allocations for 1994 would be allocated over a 10-month 
period instead of a 12-month period; therefore, there probably would 
have been no reduction in fishing effort for Atlantic sea scallops 
until 1995. Forestalling effort reduction in the first year may impose 
larger economic burdens on the fishing industry in later years if 
adjustments become necessary to make up these shortcomings.
    This final rule will implement an adjustment to the effort-
reduction program so that each allocation of DAS is done on a 365-day 
program year beginning with the first year of the plan. A given fishing 
year will begin March 1 and end on the last day of February of the 
following year.

Measure 3--Changes to the Gear Restriction Requirements

    The Council has also included gear-restriction measures that: (1) 
Allow vessels to carry one spare dredge or net so that they would not 
be forced to return to port to make major dredge repairs, (2) define a 
legal scallop dredge to enhance the likelihood that ring-size 
restrictions will reduce harvest of smaller scallops, and (3) allow the 
use of triple links and broken links in the scallop dredge to 
accommodate practical considerations concerning the use of scallop 
dredges.

Comments and Responses

    The Council received comments on Framework Adjustment 1 from two 
fishing industry associations and five individuals. Specific comments 
are discussed and responded to below.
    The Council held a joint sea scallop industry advisor and PDT 
meeting on March 21, 1994. These comments are also summarized as 
follows.

Seven-Person Crew Limit

    Comment: Limiting the crew to seven is unsafe, particularly in the 
winter. Some skippers will overwork their crews and the resulting 
fatigue will cause accidents.
    Response: The analysis included in the Council's framework package 
suggests that, based on available Coast Guard data for the scallop 
fishery, there is no relationship between the size of the crew and 
accidents aboard scallop vessels. Fishermen have publicly stated that 
most New Bedford scallop boats carried less than seven crew members in 
the winter of 1993-1994 simply because scallop stocks were low. 
Fishermen also stated, and NMFS concurs, that there is nothing 
inherently dangerous about using a seven-person crew and that safety 
ultimately depends upon on-board safety practices rather than crew 
size. The seven-crew limit will be implemented only through December 
1994, with the option of extending or modifying that limit through 
another frameworking action.
    Comment: The Coast Guard will have trouble enforcing the seven-
person crew limit.
    Response: Enforcing a seven-member crew limit is no different than 
enforcing the nine-member crew limit considered and approved under 
Amendment 4. A Coast Guard representative informed the Scallop 
Committee that the Coast Guard is experienced in procedures for 
inspecting space used to conceal contraband goods aboard vessels and 
therefore will be able to detect attempts to hide crew.
    Comment: No changes should be made until the provisions of 
Amendment 4 are allowed to work for a reasonable period.
    Response: In its discussion before the final vote to submit 
Amendment 4, and by including the framework adjustment process, the 
Council explicitly recognized the possible need for immediate 
adjustments to protect small scallops once the meat count regulations 
were eliminated. Initial reports and data since approval of Amendment 4 
indicate that small scallops are being taken in significant quantities. 
The reduction in the crew limit is the type of action the Council 
anticipated. NMFS approved the plan, contingent on the Council's 
intention to make such adjustments, if needed.
    Comment: Freezing scallops at sea should be prohibited. It 
encourages the harvesting of small scallops because frozen scallops can 
be landed with counts ranging from 50 to 100.
    Response: Amendment 4 does not include controls on the size of 
scallops landed, frozen or otherwise. Therefore, freezing at sea does 
not offer any advantage to vessel operations that would encourage the 
harvesting of small scallops. Frozen-at-sea scallops, if properly 
processed, provide some of the highest quality products made from 
Atlantic sea scallops.
    Comment: NMFS should be looking to increase the number of jobs. As 
boats are retired from the fishery, those who have suffered because of 
the failed meat count plan should be able to increase the size of their 
crews when the resource improves.
    Response: The proposed actions are part of a group of measures 
designed to eliminate overfishing over the long term. A healthy scallop 
resource will provide the greatest overall opportunity for employment. 
Also, this action will implement the crew-limit reduction only through 
December 1994. The Council may recommend adjustments to the crew-limit 
measure as necessary under the framework procedures implemented under 
Amendment 4.
    Comment: A crew limit of seven is not needed because both 
production and price fall off dramatically once vessels try to harvest 
scallops as small as 50-count.
    Response: Scallop industry advisors have informed the Council that 
more protection for small scallops is needed and that carrying nine 
crew members would allow some vessels to exploit concentrations of 
small scallops to a greater extent than if they were limited to seven 
crew members. Reduction in crew size, working in tandem with market 
forces, can only expedite conservation of small scallops.
    Comment: A closing of the fishery is warranted, for 3, 6, 9 months, 
or whatever it takes to allow juvenile scallops to reach the size 
needed for a sustainable resource.
    Response: The Council cannot implement area closures under the 
framework adjustment process using abbreviated rulemaking at this time 
and, therefore, this type of measure would inherently take longer to 
implement. Scientists, moreover, have expressed concern over the 
ability to identify distinct areas of small scallops to close because 
most areas are dominated by small scallops. Also, the Council and NMFS 
have determined that the type of measures currently included in 
Amendment 4 have the potential to eliminate overfishing for scallops 
and should be given a chance to work before major changes are made.

Full-Year Implementation

    Comment: The licensing process will not be synchronized with the 
calendar year permitting system.
    Response: These administrative considerations are outweighed by the 
need to begin the effort-reduction program as soon as possible. The 
economic viability of the industry in the second year of the program 
depends, in part, on achieving improvements in yield-per-recruit 
through effort reductions in the first year. Such first year effort-
reduction benefits would be dissipated if the reduction measures are 
not changed to a non-calendar year basis. Any need to make adjustments 
to the licensing system to address administrative problems can be made 
in the future. Having the permitting process on a different time 
schedule than the licensing process does not interfere in any 
significant way with the administration or objectives of Amendment 4.

Scallop Ring Linkage

    Comment: Scallopers should be able to use triple linking in the 
bottom of the dredge to minimize the need for repairs and because there 
is little or no escapement through the bottom of the dredge.
    Response: The measure to prohibit triple links in the dredge has 
been modified through this framework adjustment to allow triple linking 
in the bottom of the dredge.

Classification

    This regulation is not subject to the requirements to prepare a 
proposed rule because adequate opportunity was provided for prior 
public comment when the action was proposed and discussed over the 
course of several Council meetings. Because no proposed rule was 
required, this action is exempt from the procedures of the Regulatory 
Flexibility Act.
    This final rule is exempt from review under E.O. 12866.
    The Assistant Administrator for Fisheries, NOAA finds there is good 
cause to waive prior notice under 5 U.S.C. 553(b)(B). Public meetings 
held by the Council to discuss the management measures implemented by 
this rule provided adequate opportunity for public comment to be 
considered. Thus, additional opportunity for public comment is 
unnecessary.

List of Subjects in 50 CFR Part 650

    Fisheries, Reporting and recordkeeping requirements.

    Dated: July 13, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 650 is amended 
as follows:

PART 650--ATLANTIC SEA SCALLOP FISHERY

    1. The authority citation for part 650 continues to read as 
follows:

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

    2. Section 650.2 is amended by adding definitions for ``dredge 
bottom,'' ``fishing year,'' and ``link,'' in alphabetical order to read 
as follows:


Sec. 650.2  Definitions.

* * * * *
    Dredge bottom means the rings and links found between the bail of 
the dredge and the club stick which, when fishing, would be in contact 
with the sea bed. This definition includes the triangular shaped 
portions of the ring bag commonly known as ``diamonds.''
* * * * *
    Fishing year means the 12-month period beginning March 1 and 
extending through the end of February of the following year.
* * * * *
    Link means the material, usually made of a \3/8\-inch (10-mm) or 
\7/16\-inch (11-mm) diameter metal rod, which joins two adjacent rings 
within the ring bag of a dredge.
* * * * *
    3. Section 650.9 is amended by revising paragraphs (b)(8), (b)(11), 
(b)(14), (b)(15), (b)(16), (c)(2), (c)(5), and (c)(6) to read as 
follows:


Sec. 650.9  Prohibitions.

* * * * *
    (b) * * *
    (8) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
participate in the DAS allocation program with, trawl nets that have a 
maximum sweep exceeding 144 ft (43.9 m), as measured by the total 
length of the footrope that is directly attached to the webbing of the 
net, except as specified in Sec. 650.21(a)(2)(iii).
* * * * *
    (11) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
participate in the DAS allocation program with, dredge gear that has a 
maximum combined dredge width exceeding 31 feet (9.4 m), measured at 
the widest point in the bail of each dredge, except as specified in 
Sec. 650.21(b)(1).
* * * * *
    (14) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
participate in the DAS allocation program with, dredge gear that uses 
links between rings of the gear or ring configurations that do not 
conform to the specifications described in Sec. 650.21(b)(4)(ii).
    (15) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
participate in the DAS allocation program with, dredge gear that uses 
cookies or chafing gear, or other gear, means, or devices on the top 
half of a dredge that obstruct the openings in or between the rings, 
except as specified in Sec. 650.21(b)(4).
    (16) Participate in the DAS allocation program with more than the 
number of persons specified in Sec. 650.21(c), including the operator, 
on board when the vessel is not docked or moored in port, unless 
otherwise authorized by the Regional Director.
* * * * *
    (c) * * *
    (2) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
fish for scallops with, dredge gear that has a maximum combined dredge 
width exceeding 31 ft (9.4 m), measured at the widest point in the bail 
of each dredge, except as specified in Sec. 650.21(b)(1).
* * * * *
    (5) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
fish for scallops with, dredge gear that uses links between rings of 
the gear or ring configurations that do not conform to the 
specifications described in Sec. 650.21(b)(4)(ii).
    (6) Possess more than 40 lb (18.14 kg) of shucked scallops or 5 
U.S. bushels (176.2 L) of in-shell scallops while in possession of, or 
fish for scallops with, dredge gear that uses cookies or chafing gear, 
or other gear, means, or devices on the top half of a dredge that 
obstruct the openings in or between the rings, except as specified in 
Sec. 650.21(b)(4).
* * * * *
    4. Section 650.21 is amended by revising paragraphs (a)(1), (b)(1), 
(b)(4)(ii), (b)(4)(iii), and (c) to read as follows:


Sec. 650.21  Gear and crew restrictions.

    (a) * * *
    (1) Maximum sweep. The trawl sweep of nets in use by or available 
for immediate use, as specified in paragraph (a)(2)(iii) of this 
section, shall not exceed 144 ft (43.9 m) as measured by the total 
length of the footrope that is directly attached to the webbing of the 
net.
* * * * *
    (b) * * *
    (1) Maximum dredge width. The combined dredge width in use by or in 
possession on board such vessels shall not exceed 31 ft (9.4 m) 
measured at the widest point in the bail of the dredge, except as 
provided under paragraph (e) of this section. However, component parts 
may be onboard the vessel such that they do not conform with the 
definition of ``dredge or dredge gear'' in Sec. 650.2, i.e., the metal 
ring bag and the mouth frame, or bail, of the dredge are not attached, 
and such that no more than one complete spare dredge could be made from 
these component parts.
* * * * *
    (4) * * *
    (ii) Link restrictions. No more than double links between rings 
shall be used in or on all parts of the dredge bag except the dredge 
bottom. No more than triple linking shall be used in or on the dredge 
bottom portion and the diamonds. Damaged links which are connected to 
only one ring, i.e., ``hangers'', are allowed unless they occur between 
two links that both couple the same two rings (see Figure 1 to part 
650). Dredge rings may not be attached via links to more than four 
adjacent rings. Thus, dredge rings will be rigged in a configuration 
such that, when a series of adjacent rings are held horizontally, the 
neighboring rings form a pattern of horizontal rows and vertical 
columns (see Figure 1 to part 650).
    (iii) Dredge or net obstructions. No material, device, net, dredge, 
ring, or link configuration or design shall be used if it results in 
obstructing the release of scallops that would have passed through a 
legal sized and configured net and dredge as, described in this part, 
that did not have in use any such material, device, net, dredge, ring 
link configuration or design.
* * * * *
    (c) Crew restrictions. Limited-access vessels participating in or 
subject to the scallop DAS allocation program may have no more than 
seven people on board when not docked or moored in port through 
December 31, 1994, and nine people on board when not docked or moored 
in port thereafter, including the operator, unless participating in the 
small dredge program specified in paragraph (e) of this section, or 
otherwise authorized by the Regional Director.
* * * * *
    5. Section 650.24 is amended by revising paragraph (c)(1) as 
follows:


Sec. 650.24  Days-at-sea (DAS) allocations.

* * * * *
    (c) * * *
    (1) Annual DAS allocations. The annual allocations of DAS for each 
category of vessel specified in paragraph (a) of this section shall be 
based on fishing years described as follows:

----------------------------------------------------------------------------------------------------------------
           DAS category              1994-95    1995-96and1996-97    1997-98    1998-99and1999-2000     2000+   
----------------------------------------------------------------------------------------------------------------
Full-time........................          204             182             164              142              120
Part-time........................           91              82              66               57               48
Occasional.......................           18              16              14               12               10
----------------------------------------------------------------------------------------------------------------

Each fishing year shall begin on March 1 and extend 12 months through 
the last day of February of the following year.
* * * * *
    6. Figure 1 is added to the end of part 650 as follows:

BILLING CODE 3510-22-P

TR19JY94.000


[FR Doc. 94-17515 Filed 7-18-94; 8:45 am]
BILLING CODE 3510-22-C