[Federal Register Volume 59, Number 223 (Monday, November 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28681]


[[Page Unknown]]

[Federal Register: November 21, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 650

[Docket No. 94111-4311; I.D. 102494B]

 

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 Framework Adjustment 
2 to the Atlantic Sea Scallop Fishery Management Plan (FMP). This rule 
implements an exemption from Federal gear regulations for vessels when 
fishing in state waters under a state scallop management program.

EFFECTIVE DATE: November 16, 1994.

ADDRESSES: Copies of Amendment 4 to the FMP, and its regulatory impact 
review (RIR), initial regulatory flexibility analysis (IRFA), final 
supplemental environmental impact statement (FSEIS), and Framework 
Adjustment 2 are available from Douglas Marshall, Executive Director, 
New England Fishery Management Council, 5 Broadway, Saugus, MA 01906-
1097.
    Comments regarding the burden-hour estimates or any other aspect of 
the collection-of-information requirements contained in this final rule 
should be sent to Allen E. Peterson, Jr., Acting Regional Director, One 
Blackburn Drive, Gloucester, MA 01930, and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget (OMB) 
(Attention NOAA Desk Officer), Washington, D.C. 20503.

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

SUPPLEMENTARY INFORMATION:

Background

    Amendment 4 to the FMP was approved on November 5, 1993, and 
implemented on March 1, 1994. Amendment 4 changed the primary 
management strategy from a meat count (size) control to effort control. 
The FMP controls total fishing effort through limited entry and a 
schedule of reductions in allowable time at sea. Supplemental measures 
include gear restrictions, limits on the number of crew members, and 
vessel restrictions. There are also catch limits for vessels not in the 
limited access fishery and a framework procedure for adjusting all the 
management measures in the FMP.
    This framework adjustment exempts Federal permit holders from 
Federal gear restrictions when fishing in state waters under a state 
management program that has been determined by NMFS not to jeopardize 
the fishing mortality/effort reduction objectives of the FMP. The 
principal gear restrictions from which participants in the program are 
exempted are minimum ring size requirements, restrictions on dredge 
width, the use of chafing gear, ring configuration and linkage 
restrictions, and restrictions on spare dredges and nets.
    Current state management measures in Maine and Massachusetts and 
the restrictions proposed by New Hampshire have been determined by NMFS 
not to jeopardize the fishing mortality/effort reduction objectives of 
the FMP. All have restrictions that are adequate to address Federal 
conservation and management concerns because they have overall gear 
requirements that are more restrictive than Federal regulations and 
because they apply to scallop resources that are predominantly in state 
waters. Massachusetts and New Hampshire management measures, in 
particular, are more restrictive because both include a minimum 3\1/4\-
inch (83-mm) ring size requirement in addition to other restrictions on 
dredge size. The Gulf of Maine and Cape Cod stocks of sea scallops are 
separate from the major stocks on Georges Bank and in the Mid-Atlantic 
area, and therefore are not included in the rebuilding program for the 
fishery. Based on landings, approximately 80 percent of the Gulf of 
Maine fishery takes place in state waters and its management is 
predominately a state responsibility.
    The purpose of this action is to allow Federal permit holders to 
compete in the state waters fishery on a more equitable basis where 
Federal and state laws are inconsistent and to encourage vessels with 
general category permits to fish under the exemption program and 
continue to submit catch and effort data. Not implementing an exemption 
could force general category vessels that target scallops to cancel 
their Federal permits and be exempt from all Federal requirements, 
including reporting of landings while fishing in state waters. These 
vessels are able to re-apply for a general category permit at anytime. 
Conversely, limited access permit holders that voluntarily relinquish 
their permits can not re-apply.
    Without this exemption, the most significant inconsistency between 
the requirements of Federal vs. state sea scallop fishery permit 
holders occurs in Maine. (Maine does not have ring size restrictions, 
but both Massachusetts and New Hampshire have regulations that are the 
same or are more restrictive than Federal regulations.) Maine-permitted 
boats typically fish with 3-inch (76-mm) rings or smaller. Because the 
Gulf of Maine sea scallop resource normally consists of beds of 
spatfall that belong to the same year class and thus all have almost 
the same shell size, Maine-permitted boats would leave few scallops for 
federally permitted vessels with 3\1/4\-inch (83-mm) rings or larger. 
Under this gear exemption program, which allows Federal permit holders 
to use smaller rings in state waters, Federal permit holders can 
compete on an equal footing with Maine state-waters-only vessel 
operators whose dredges have rings that are smaller than allowed under 
Federal regulations. Although this particular inconsistency does not 
exist in Massachusetts and New Hampshire, there are other restrictions 
in those states relating to gear that could create a competitive 
disadvantage between state and Federal permit holders.
    The exemption program also allows Federal permit holders to avoid 
the cost of changing the rings on existing gear if they intend to use 
the gear only in state waters.
    The impacts of the adjustment fall within the scope of the impacts 
analyzed in Amendment 4 to the FMP and the FSEIS. The rationale and 
analyses of expected biological effects, economic impacts, impacts on 
employment are discussed further in the framework adjustment document 
(see ADDRESSES).

Comments on Draft Framework No. 2 and Responses

    NMFS is amending the scallop regulations following the procedure 
for framework adjustments established by Amendment 4 and codified in 50 
CFR part 650, subpart C. The New England Fishery Management Council 
(Council) followed the framework procedure when making this adjustment 
by developing and analyzing the actions over three Council meetings, on 
May 11, June 30, and September 21, 1994. The Council provided the 
public with advance notice of both the proposal and the analysis, and 
the opportunity to comment on them prior to and at the Council 
meetings. Upon review of the analysis and public comment (see below), 
the Council recommended to the Director, Northeast Region, NMFS 
(Regional Director), that the measures contained in this framework 
adjustment be published as a final rule. The Regional Director has 
agreed with this determination.
    Comment: One commenter expressed disbelief that fishing in Maine 
with 3-inch (76-mm) rings and a dredge as small as 4\1/4\ ft (1.4 m) 
would be a violation.
    Response: Current regulations would require Federal permit holders 
to change the rings on their dredges to 3\1/4\ inches (83 mm) during 
the 1994-5 season, and again to 3\1/2\ inches (89 mm) in 1996, even if 
they were fishing strictly in state waters. The gear exemption will 
allow fishermen to continue to use rings smaller than 3\1/4\ inches (83 
mm) along with the dredge sizes required by Maine regulations.
    Comment: There were two comments dealing with keeping track of 
vessels and where they fish. One commenter believes that the vessel 
tracking system (VTS) must be required to accomplish this. The U.S. 
Coast Guard commented that it will be difficult to determine who is 
fishing inside and outside of state waters.
    Response: The VTS is considered a potential aid to enforcement of 
this provision but is not essential to its enforcement. When the VTS 
requirement is implemented, all limited access vessels required to have 
a VTS under a Federal permit (full-time and part-time vessels) must use 
them while fishing in the state waters exemption program. Limited 
access vessels in the occasional category will continue to be required 
to call in, but general permit holders will not be required to call in 
while in the state waters exemption program. General permit holders 
will be required to report landings and other data.
    The primary Federal enforcement concern regarding the Gulf of Maine 
scallop resource is that vessels with state permits only, or with 
exemptions from Federal requirements, might fish in the Exclusive 
Economic Zone (EEZ) with gear not meeting Federal requirements. This 
problem exists whether or not a gear exemption program for Federal 
permit holders is implemented. Also, Federal enforcement personnel must 
still monitor scallop gear used by Federal limited access permit 
holders. Lists of vessels participating in the exemption program will 
be given periodically to enforcement agents to minimize problems. 
Therefore, exempting these vessels should not create any additional 
enforcement burden.
    Comment: The Maine Scallopers Association supported the exemption 
from the ring size requirements.
    Response: The gear exemption program responds to this concern by 
allowing vessels to fish in state waters with gear that conforms to the 
requirements of state management programs, provided that the exemption 
does not jeopardize the achievement of the fishing mortality/effort 
reduction objectives of the FMP.
    Comment: The Maine Scallopers Association was concerned about the 
cost of VTS and thought that it should not be required while vessels 
are fishing in state waters.
    Response: Vessels will not be required to purchase VTS because of 
the gear exemption program. Only vessels that will be required to use 
VTS in the Federal limited access scallop fishery must use it while 
participating in the state waters fishery.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Assistant Administrator for Fisheries, NOAA (AA), finds there 
is good cause to waive prior notice and opportunity for comment under 5 
U.S.C. 553(b)(B). The provision of advance notice as described in this 
rule and public meetings held by the Council to discuss the management 
measures implemented by this rule provided adequate prior notice and 
opportunity for public comment to be considered. Thus, additional 
opportunity for public comment is unnecessary. Because no proposed rule 
was required, this action is exempt from the procedures of the 
Regulatory Flexibility Act. The AA also finds that under section 
553(d)(1) of the Administrative Procedure Act, because immediate 
implementation of this rule relieves a restriction that would require 
vessels fishing in state waters to fish under the Federal gear 
requirements, there is no need to delay for 30 days the effectiveness 
of this regulation.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act. These requirements have been approved 
by OMB under Control Number 0648-0202. The reporting burden is 
estimated at 2 minutes per response. This time includes reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection-of-information requirement, 
including suggestions for reducing the burden, to NMFS and OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 650

    Fisheries, Reporting and recordkeeping requirements.

    Dated: November 16, 1994.
Gary Matlock,
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.


Sec. 650.22  [Amended]

    2. In Sec. 650.22(a), the phrase ``DAS exemption program'' is 
removed and the phrase ``state waters exemption program'' is added in 
its place.
    3. Section 650.27 is revised to read as follows:


Sec. 650.27  State waters exemption program.

    (a) DAS exemption. Any owner of a vessel issued a limited access 
scallop permit under Sec. 650.4(a) may request an exemption from the 
DAS Program, in accordance with notification requirements specified in 
paragraph (c) of this section, while fishing exclusively landward of 
the outer boundary of a state's waters. Any such exemption granted will 
exempt the vessel from the DAS requirements specified under 
Sec. 650.24(c) as long as the vessel complies with paragraphs (c) 
through (f) of this section.
    (b) Gear restriction exemption. (1) Limited access permits. Any 
vessel issued a limited access scallop permit for which an exemption 
has been granted pursuant to paragraph (a) of this section will also be 
exempted from the gear restrictions specified under Sec. 650.21(a), 
(b), (e)(1) and (e)(2) while fishing exclusively landward of the outer 
boundary of the waters of a state that has been listed as an eligible 
state as specified in paragraph (b)(3) of this section, as long as the 
vessel complies with paragraphs (c) through (f) of this section.
    (2) General permits. Any owner of a vessel issued a general scallop 
permit shall be exempted from the gear restrictions specified in 
Sec. 650.21(a), (b), (e)(1) and (e)(2) while fishing exclusively 
landward of the outer boundary of the waters of a state that has been 
listed as an eligible state as specified in paragraph (b)(3) of this 
section, as long as the vessel complies with paragraphs (d) through (f) 
of this section.
    (3) State eligibility for gear exemption. (i) Vessels may be 
granted an exemption from gear restrictions as specified in paragraphs 
(b)(1) and (2) of this section if such vessels are fishing exclusively 
landward of the outer boundary of the waters of a state that has been 
determined by the Regional Director to have an Atlantic sea scallop 
fishery and a scallop conservation program that does not jeopardize the 
fishing mortality/effort reduction objectives of the FMP.
    (ii) State eligibility. The following states have been determined 
to have an Atlantic sea scallop fishery and a scallop conservation 
program that do not jeopardize the fishing mortality/effort reduction 
objectives of the FMP:
    (A) Maine.
    (B) New Hampshire.
    (C) Massachusetts.
    (iii) Changes in state eligibility. The states that have been 
determined to be eligible, as specified in paragraph (b)(3)(ii) of this 
section, shall immediately notify the Regional Director of any changes 
in their scallop conservation program. The Regional Director will 
review these changes and, if a determination is made that the state's 
conservation program jeopardizes the fishing mortality/effort reduction 
objectives of the FMP or that the state no longer has a sea scallop 
fishery, the Regional Director shall publish a final rule in the 
Federal Register terminating that state's eligibility. The Regional 
Director may add any other state that is determined eligible, as 
described in paragraph (b)(3) of this section, by publication of a 
final rule in the Federal Register.
    (c) Notification requirements. (1) VTS notification. Vessel owners 
requesting a state waters exemption via a VTS shall:
    (i) Notify NMFS, via their VTS, prior to the vessel's first trip 
under the state waters exemption program, that the vessel will be 
fishing exclusively in state waters; and
    (ii) Notify NMFS, via their VTS, prior to the vessel's first 
planned trip in the EEZ, that the vessel is to resume fishing under the 
vessel's DAS allocation.
    (2) Telephone notification. Vessel owners opting to request entry 
into the state waters exemption program by phone shall:
    (i) Notify NMFS by calling 508-281-9335 with the following 
information at least 7 days prior to the date on which the exemption is 
requested:
    (A) Owner and caller name and address;
    (B) Vessel name and permit number; and
    (C) Beginning and ending dates of the exemption period;
    (ii) Remain in the exemption program a minimum of 7 days; and
    (iii) If an exemption holder has been in the program a minimum of 7 
days and wishes to withdraw earlier than the designated end of the 
exemption period, the exemption holder must notify the Regional 
Director of early withdrawal from the program. Notification of 
withdrawal is made by calling 508-281-9335. When providing notice, the 
exemption holder will specify that the request is for withdrawal from 
the program and provide the vessel name and permit number, and the name 
and phone number of the caller. The exemption holder may not leave port 
to fish in the EEZ until 48 hours after notification of early 
withdrawal is received by the Regional Director.
    (d) A vessel participating in the state waters exemption program 
may not fish in the EEZ during the participation period.
    (e) Participation in the state waters exemption program expires 
when the owner's or vessel's name changes.
    (f) Vessels participating in the state waters exemption program 
continue to be subject to all the other requirements of this part.

[FR Doc. 94-28681 Filed 11-16-94; 4:18 pm]
BILLING CODE 3510-22-W