[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Rules and Regulations]
[Pages 8490-8492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5017]



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DEPARTMENT OF COMMERCE
50 CFR Part 650

[Docket No. 9602226047-6047-01; I.D. 020696B]
RIN 0648-AI37


Atlantic Sea Scallop Fishery; Reduction in Crew Size Limit

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 7 to the Atlantic Sea Scallop Fishery Management 
Plan (FMP). This framework adjustment permanently reduces the maximum 
crew size from nine to seven.

EFFECTIVE DATE: March 11, 1996.

ADDRESSES: Copies of Amendment 4, its regulatory impact review and the 
final regulatory flexibility analysis contained therein, the final 
supplemental environmental impact statement (SEIS), and the supporting 
documents for Framework Adjustment 7 are available from Douglas 
Marshall, Executive Director, New England Fishery Management Council, 
Suntaug Office Park, 5 Broadway, Saugus, MA 01906-1097.

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

SUPPLEMENTARY INFORMATION:

Background

    The final rule implementing Amendment 4 to the FMP was published on 
January 19, 1994 (59 FR 2777), with implementation of most measures on 
March 1, 1994. 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 days at sea (DAS). Supplemental measures 
include limits on 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. Initially, the maximum 
crew size was set at nine.
    In response to very high levels of recruitment documented in the 
Mid-Atlantic resource area, the New England Fishery Management Council 
(Council) recommended lowering the maximum crew size from nine to 
seven, because a smaller crew lowers shucked-scallop production. This 
reduced production is exacerbated if a vessel operator is targeting 
small scallops. Thus, this restriction provides an incentive to target 
larger scallops in order to obtain the same amount of yield from fewer 
scallops. Framework Adjustments 1 (59 FR 36720, July 19, 1994) and 4 
(59 FR 36720, April 5, 1995), temporarily lowered the maximum crew size 
from nine to seven. The current framework adjustment 4 expires on 
February 29, 1996.
    Because the conditions that justified lowering the maximum crew 
size to seven still exist, the Council recommended reducing the maximum 
crew-size permanently from nine to seven, until changed by plan 
amendment or other action.
    In Framework 1, the 7-member crew limit was expected to increase 
yield-per-recruit, which would be realized during 1995 and 1996. No 
preliminary 1995 data are available to document that year's yield-per-
recruit results. Yields would increase and spawning stock biomass would 
be greatly enhanced, but only during 1994. With an extension of the 7-
member crew limit, similar results are expected as analyzed in 
Framework 1. Increased yield-per-recruit would occur during 1997 and 
1998, and spawning stock biomass would be enhanced during 1996.
    The extension of the 7-member crew limit is expected to reduce 
total 

[[Page 8491]]
landings of sea scallops, resulting in an increase in ex-vessel prices 
in 1996. The increase in ex-vessel prices should mitigate the decrease 
in landings. During 1997 and 1998, landings and ex-vessel revenues are 
expected to increase. After 1998, the projected impact of the 7-member 
crew limit on ex-vessel revenues is projected to be negligible when 
compared with projected ex-vessel revenues associated with the 9-member 
crew limit.
    The adjustments being made through the framework process 
(Sec. 650.40) are within the scope of analyses contained in Amendment 4 
and the final SEIS. Supplemental rationale and analyses of expected 
biological effects, economic impacts, impacts on employment, and safety 
concerns are contained within the supporting documents for Framework 
Adjustments 1, 4, and 7 (see ADDRESSES).
    The Council requests publication of the management measures as a 
final rule after considering the required factors stipulated in the 
regulations governing the sea scallop fishery (Sec. 650.40) and 
providing supporting analysis for each factor considered. The Director, 
Northeast Region, NMFS concurs with the Council's recommendation and 
has determined that Framework 7 should be published as a final rule.
    NMFS is adjusting the scallop regulations following the procedure 
for framework adjustments established by Amendment 4 and codified in 50 
CFR part 650, subpart C. The Council followed this procedure when 
making adjustments to the FMP, by developing and analyzing the actions 
over the span of a minimum of at least two Council meetings, on 
December 13, 1995, and January 25, 1996.

Comments and Responses

    In accordance with the regulations, public comments on the 
framework adjustment were taken by the Council during its December 13, 
1995, and January 25, 1996, meetings. Four members of the industry and 
two fishing organizations commented at the December and January 
meetings. The comments were in support of the recommended adjustment 
and urged timely implementation to avoid a hiatus when the current 
restriction expires.
    Written comments were also received from four individuals. One 
comment was in favor of the 7-member crew limit and requires no 
response. The remaining comments and responses follow.
    Comment 1: All commenters questioned the safety aspects of the 
maximum crew size.
    Response: The analysis included in the Council's framework package 
suggests that, based on recent U.S. Coast Guard information (contained 
in a November 8, 1995, letter, with enclosure, from Captain P. J. 
Howard) about the scallop fishery, there is no relationship between the 
size of the crew and accidents aboard scallop vessels. Fishers have 
stated publicly that most New Bedford scallop boats carried less than 
seven crew members in the winter of 1994-95, simply because scallop 
stocks were low. Many fishers have also stated that there is nothing 
inherently dangerous about using a 7-person crew and that safety 
ultimately depends upon on-board safety practices rather than crew 
size. The Coast Guard reported to the Council in the above-mentioned 
November 8 letter and enclosure that there was no statistical evidence 
that the number of personnel casualties has increased due to the 
maximum crew restrictions.
    Comment 2: The 7-person crew limit discriminates against those who 
have larger, more expensive vessels. Crew size limits, if required, 
should be based on horsepower, vessel length, tonnage, and size of gear 
fished.
    Response: The Council's policy is to treat all vessels, within the 
full-time, part-time, and occasional categories, equally. The 7-person 
crew limit is based on the typical full-time vessel, which generally 
includes the largest, most expensive vessels and is intended to reduce 
the incentive to target small scallops. Although there may be smaller, 
less expensive vessels in the full-time category that already use 7-
person crews, or less, it is unlikely due to their limited crew that 
these vessels pursue small scallops.
    Comment 3: Wheelhouses are unmanned during haulbacks because of the 
7-person crew limit.
    Response: Members of the Council's Sea Scallop Industry Advisory 
Committee have reported that unmanned wheelhouses are a practice found 
regardless of crew size, in both dredges and groundfish trawls. The 
First Coast Guard District reported to the Council that this is a 
common practice among many fishing vessel operators and not unique to 
the scallop fishery. In any event, the decision not to man the 
wheelhouse is not a result of the 7-member crew limit but rather an 
operational decision of the captain.

Adherence to Framework Procedure Requirements

    Neither data availability nor the need to have the 7-person crew 
limit in place for the entire harvesting season were factors considered 
by the Council in its decision to recommend publishing the adjusted 
management measures as a final rule.
    The public had adequate opportunity to express opinions at several 
meetings. The crew-limit issue was discussed at the Scallop Oversight 
Committee meeting held in East Boston, MA, on November 6, 1995, and at 
the Council meetings held in Danvers, MA, on December 13, 1995, and 
January 24 and 25, 1996.
    There is an immediate need to protect the resource by reducing the 
crew limit to seven before March 11, 1996, when the current temporary 
crew limit expires. Unnecessary delay in effecting this adjustment 
would significantly increase the danger to the new incoming year-class 
during early spring.
    The Council will continue to evaluate the effectiveness of this 
crew-size limit. This continuing evaluation will be made on the basis 
of landings data and enforcement activity.
    NMFS has determined that the framework adjustment to the FMP that 
this rule would implement is consistent with the national standards, 
other provisions of the Magnuson Fishery Conservation and Management 
Act, and other applicable law. NMFS, in making that determination, has 
taken into account the information, views, and comments received during 
the comment period of the FMP's framework adjustment mechanism in 50 
CFR 650.40.

Classification

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    In that this regulation is not subject to the requirement to 
publish a general notice of proposed rulemaking under 5 U.S.C. 553 or 
any other law, this rule is exempt from the requirement to prepare an 
initial or final regulatory flexibility analysis under the Regulatory 
Flexibility Act. As such, none has been prepared.
    This rule is implemented in compliance with all procedural 
requirements established by the Administrative Procedure Act. The 
Council requests publication of the management measures as a final rule 
after considering the required factors stipulated under the Framework 
Measures in the final rule for Amendment 4 and providing supporting 
analysis for each factor considered. Public meetings held by the 
Council to discuss the management measures implemented by this rule 
provided adequate opportunity for public comment to be considered. The 
Assistant Administrator (AA) for 

[[Page 8492]]
Fisheries, NOAA, finds there is good cause to waive prior and an 
opportunity for public comment notice under 5 U.S.C. 553(b)(B) as such 
notice and public procedure thereon are unnecessary.
    The AA finds that under 5 U.S.C. 553(d) the need to protect the 
resource by having the regulation in place by March 1, 1996, when the 
current temporary crew-size limit expires, constitutes good cause to 
waive the 30-day delay in effectiveness of this rule. Delay in 
effecting this crew-size limit would significantly increase the danger 
to the new incoming year class of sea scallops during early spring.

List of Subjects in 50 CFR Part 650

    Fisheries, Reporting and recordkeeping requirements.

    Dated: February 28, 1996.
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.

    2. In Sec. 650.21, paragraph (c) is revised to read as follows:


Sec. 650.21  Gear and crew restrictions.

* * * * *
    (c) Crew restrictions. Limited access vessels participating in or 
subject to the scallop DAS allocation program may have no more than 
seven people aboard, including the operator, when not docked or moored 
in port, unless participating in the small dredge program specified in 
paragraph (e) of this section, or otherwise authorized by the Director, 
Alaska Region, NMFS.
* * * * *
[FR Doc. 96-5017 Filed 2-29-96; 4:00 pm]
BILLING CODE 3510-22-F