[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33757-33760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16007]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 650

[Docket No. 950615156-5156-01; I.D. 050295A]
RIN 0648-AI02


Atlantic Sea Scallop Fishery; Framework 5 Gear Restrictions

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 5 to the Fishery Management Plan for the Atlantic 
Sea Scallop Fishery (FMP). This rule implements measures that prohibit 
limited access vessels, fishing under the days-at-sea (DAS) program, 
from using trawl nets, with the exception of vessels that have not used 
a scallop dredge since January 1, 1988, to the present, and requires 
all dredges to have a minimum number of rows of steel rings extending 
from the ``after end'' to the club stick. The intent is to protect 
against the overharvest of small, immature sea scallops.

EFFECTIVE DATE: July 31, 1995.

ADDRESSES: Copies of Amendment 4, its regulatory impact review, initial 
regulatory flexibility analysis (IRFA), the final supplemental 
environmental impact statement, and the supporting documents for 
Framework Adjustment 5 are available from Douglas Marshall, Executive 
Director, New England Fishery Management Council, Suntaug Office Park, 
5 Broadway (U.S. Route 1), Saugus, MA 01906-1097, telephone 617-231-
0422.

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

SUPPLEMENTARY INFORMATION:

Background

    Amendment 4 to the FMP was implemented on March 1, 1994 (59 FR 
2757, January 19, 1994). The amendment established controls on total 
fishing effort through limited entry and a schedule of reductions in 
allowable time at sea. Although the amendment was approved, NMFS 
remains concerned about the near-term level of protection of small sea 
scallops. This concern is reflected in the Director's, Northeast 
Region, NMFS (Regional Director), approval letter to the New England 
Fishery Management Council (Council), dated November 5, 1993, that 
advised the Council that the Regional Director will be monitoring 
carefully the initial impact of the amendment on fishing mortality 
rates of small sea scallops. If fishing mortality rates increased 
beyond anticipated levels, the Council was expected to consider 
immediately, adjustments for implementation under the framework measure 
provisions of the amendment.

Ban on Trawl Nets

    The final rule prohibits limited access vessels fishing under the 
DAS program from using trawl nets except for vessels that have not used 
a scallop dredge since January 1, 1988. The intended effect of this 
prohibition is to prevent current scallop dredge vessels from switching 
to trawl nets, a switch that would likely result in a significant 
increase in the harvest of small scallops in contravention of Amendment 
4 objectives. Many of the current dredge operators have commented that 
the replacement of dredges with trawl nets, in the sea scallop fishery, 
may result in the further depletion of the resource. The Council's 
Scallop Plan Development Team supports this concern in its finding that 
the use of trawl nets tends to circumvent the limits on fishing gear 
selectivity intended by the regulatory 3\1/4\ (83 mm) and 3\1/2\ inch 
(89 mm) minimum ring size restrictions for dredges. Furthermore, at 
least one study has shown that trawl nets are not as selective as 
dredges in regard to the harvest of smaller scallops and that larger 
numbers of smaller scallops are killed during landing, while on deck, 
or during or after discarding in the trawl fishery than in the dredge 
fishery.
    For purposes of allowing traditional fishing practices to continue, 
as analyzed in connection with Amendment 4, Framework Adjustment 5 
allows vessels that have not used a scallop dredge since January 1, 
1988, to fish for scallops using trawl nets. This exemption will apply 
only to vessels for which an eligibility determination has been made in 
1995. This criterion is intended to allow only those vessels that are 
incapable of towing dredges due to their lack of sufficient engine 
power and/or proper construction to participate in the trawl net 
segment of the fishery. The number of such vessels is projected to be 
small and, therefore, allowing such vessels to continue to fish with 
trawl nets is anticipated not to have any significant impact on the 
stock.

Restrictions on Dredge Configuration

    Amendment 4 prohibits the use of any material, device, or net or 
dredge configuration or design that results in obstructing the release 
of scallops that would have passed through a legal size net and dredge 
that did not use any such material, device, or net or dredge 
configuration or design. The Council is aware of a recent practice of 
running the twine top along the back of the dredge to the club stick. 
This practice limits the ability of the dredge to open up as the mesh 
stretches shut, thereby restricting the escapement of smaller scallops. 
Framework Adjustment 5 specifies the acceptable twine top configuration 
for dredges in use by limited access vessels under the DAS program. 
Specifically, the framework adjustment refines the dredge vessel gear 
restrictions to require that all dredges that are wider than 8 ft (2.44 
m) and all dredges used on double-rigged vessels have at least seven 
rows (regardless of ring size) of nonoverlapping steel rings between 
the after end of the twine top and the club stick. Additionally, all 
single dredges of 8 ft (2.44 m) or less width must have at least four 
rows (regardless of ring size) of nonoverlapping steel rings between 
the after end of the twine top and the club stick.

Public Comment

    The December 8, 1994, Council meeting was the first of the required 
public meetings under the framework adjustment process as announced in 
the Federal Register on December 2, 1994 (59 FR 61878). A draft 
document containing the proposed management measures and their 
rationale was available to the public on December 28, 1994, and mailed 
to 260 people, including those serving as scallop industry advisors to 
the Council. Two subsequent public hearings were held jointly with 
Council meetings occurring on January 12, 1995, and March 30, 1995. 
Five written sets of comments were received by the Council. Four 
commenters favored the framework, while one was opposed to an exemption 
for traditional net vessels.
    Testimony provided by industry members and other interested parties 
mirrored the concern of the Council regarding net trawls, dredge 
configuration, and the taking of small 

[[Page 33758]]
scallops. Traditional net fishers, especially those from the Mid-
Atlantic area, voiced concern regarding a prohibition on trawl nets. 
However, all agreed that an exemption for traditional net vessels from 
the ban on nets, would address concerns of net fishermen, while 
providing adequate protection to the resource.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA), finds there 
is good cause to waive prior notice and opportunity for comments under 
5 U.S.C. 553(b)(B). Three Council meetings held by the Council to 
discuss management measures implemented by this rule provided adequate 
prior notice opportunity for public comment to be made and considered. 
Thus additional opportunity for public comment is unnecessary. Because 
prior notice and an opportunity for comment is not required for this 
rule, no regulatory flexibility analysis is required or was prepared.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 650

    Fisheries, Reporting and recordkeeping requirements.

    Dated: June 23, 1995.
Richard H. Schaefer,
Acting Assistant Administrator for Fisheries, 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 650.9 is amended by revising paragraphs (a)(5) and 
(d)(13) and adding paragraphs (b)(25) and (b)(26) to read as follows:


Sec. 650.9  Prohibitions.

* * * * *
    (a) * * *
    (5) Make any false statement in connection with an application or 
declaration under Sec. 650.4, Sec. 650.5 or Sec. 650.21.
    (b) * * *
    (25) Fish with, possess on board, or land scallops while in 
possession of trawl nets, when fishing for scallops under the DAS 
allocation program unless exempted as provided for in Sec. 650.21(f).
    (26) Fail to comply with the restriction on twine top described in 
Sec. 650.21(b)(4)(iv).
* * * * *
    (d) * * *
    (13) Make any false statement on any report or declaration under 
Sec. 650.7 or under Sec. 650.21.
    3. Section 650.21 is amended by revising paragraph (a) introductory 
text and adding paragraphs (b)(4)(iv) and (f) to read as follows:


Sec. 650.21  Gear and crew restrictions.

    (a) Trawl vessel gear restrictions. Trawl vessels in possession of 
more than 40 lb (18.14 kg) of shucked scallops or 5 U.S. bushels (176.2 
l) of in-shell scallops, trawl vessels fishing for scallops, and trawl 
vessels issued a limited access scallop permit under Sec. 650.4(a), 
while fishing under or subject to the DAS allocation program for sea 
scallops and authorized to fish with or possess on board trawl nets 
pursuant to Sec. 650.21(f), must comply with the following:
* * * * *
    (b) * * *
    (4) * * *

[[Page 33759]]

    (iv) Twine top restrictions. Vessels issued limited access scallop 
permits that are fishing for scallops under the DAS Program are also 
subject to the following restrictions: For dredges greater than 8 ft 
(2.44 m) in width or for dredges on a vessel rigged with more than one 
dredge, regardless of size, at least seven rows of nonoverlapping steel 
rings unobstructed by netting or any other material, must be between 
the terminus of the dredge (club stick) and the net material on the top 
of the dredge (twine top). For dredges less than 8 ft (2.44 m) in 
width, used singly, at least four rows of nonoverlapping steel rings 
unobstructed by netting or any other material must be between the club 
stick and the twine top of the dredge (Figure 2).
* * * * *
    (f) Restriction on the use of trawl nets. (1) Beginning on August 
28, 1995 vessels issued a limited access scallop permit fishing for 
scallops under the DAS allocation program may not fish with, possess on 
board, or land scallops while in possession of trawl nets unless such 
vessels have been determined to be eligible to use trawl nets and have 
on board a valid letter of authorization as specified and provided for 
under paragraphs (f)(2) and (3) of this section.
    (2) Determination of eligibility to use trawl nets. To be eligible 
for an exemption from the restriction described in paragraph (f) of 
this section, a vessel may not have fished for scallops with a scallop 
dredge from January 1, 1988, to the present. NMFS will contact all 
limited access permit holders to notify them of their initial 
determination of eligibility for an exemption from the prohibition on 
the use of trawl nets based on information currently available to NMFS. 
If a vessel owner agrees with an initial determination that the vessel 
is eligible to use a trawl net, the owner must, within 30 days of 
receipt of the initial determination, sign and submit to NMFS a 
declaration, provided by NMFS, stating that the vessel has not fished 
for scallops with a scallop dredge from January 1, 1988, to the 
present. If the vessel owner disagrees with an initial determination 
that the vessel is not eligible to use a trawl net, the owner must, 
within 30 days of receipt of the initial determination, sign and submit 
to NMFS a declaration, provided by NMFS, stating that the vessel has 
not fished for scallops with a scallop dredge from January 1, 1988, to 
the present. The signed declaration shall serve as a rebuttable 
presumption that the vessel qualifies for an exemption from the 
prohibition on the use of trawl nets. This exemption applies only to 
vessels that have been issued 1995 limited access scallop permits or 
that are eligible to be issued such a permit, and for which a 
determination has been made in 1995, except as provided in paragraph 
(f)(4) of this section.
    (3) Authorization to use trawl nets. Vessels determined to have met 
the criteria for exemption from the prohibition on the use of trawl 
nets, pursuant to paragraph (f)(2) of this section, shall be issued a 
letter of authorization by the Regional Director. Such letter must be 
carried on board the vessel at all times. In subsequent years, 
eligibility for this exemption will be indicated on the vessel's 
permit.
    (4) Authorization to use trawl nets by replacement vessels. To be 
eligible for an exemption from the restriction described in paragraph 
(f) of this section, any replacement vessel of a vessel authorized to 
fish for scallops with trawl nets must meet the eligibility 
requirements and have on board a valid letter of authorization as 
specified and provided under paragraphs (f)(2) and (f)(3) of this 
section. The letter of authorization must be requested at the time the 
vessel owner initially applies for a permit for the replacement vessel. 
The determination of a replacement vessel's eligibility for a letter of 
authorization shall be made in accordance with, and as specified in 
paragraph (f)(2) of this section.
* * * * *
    4. Figure 2 to part 650 is added to part 650 to read as follows:

BILLING CODE 3510-22-F

[[Page 33760]]
[GRAPHIC][TIFF OMITTED]TR29JN95.003


Figure 2 to Part 650--Schematic example of a legal dredge with 
twine top. Not Drawn to scale

[FR Doc. 95-16007 Filed 6-28-95; 8:45 am]
BILLING CODE 3510-22-C