[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38099-38106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18666]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 960502124-6190-02; I.D. 042396B]
RIN 0648-AF81


Scallop Fishery Off Alaska; Management Measures; 1996-97 Harvest 
Specifications

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

ACTION: Final rule; final 1996-97 harvest specifications; closures.

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SUMMARY: NMFS issues a final rule to implement Amendment 1 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMP). The 
management measures established under Amendment 1 and implemented by 
this final rule include: Gear and efficiency restrictions, scallop 
registration areas and districts, procedures for specifying total 
allowable catch (TAC) and crab bycatch limits (CBLs), time and area 
closures, inseason management authority, fishing seasons, and observer 
coverage requirements. This action is necessary to further the 
conservation and management objectives of the FMP and the Magnuson 
Fishery Conservation and Management Act (Magnuson Act).

EFFECTIVE DATES: The changes to part 679 are effective August 1, 1996. 
The final 1996-97 harvest specifications and closure are effective 
August 1, 1996, through June 30, 1997.

ADDRESSES: Copies of Amendment 1 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for Amendment 1 may be obtained from the North Pacific 
Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 
99501.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    The scallop fishery in the exclusive economic zone (Federal waters) 
off Alaska is managed under the FMP. The FMP was prepared by the North 
Pacific Fishery Management Council (Council) under the Magnuson Act. 
Regulations implementing the FMP are set out at 50 CFR part 679. 
General regulations that also affect fishing in Federal waters are set 
out at 50 CFR part 600. This action establishes Federal management 
measures to replace the interim closure of Federal waters off Alaska to 
fishing for scallops. The history of the scallop fishery off Alaska and 
the events leading up to the interim closure of Federal waters are 
described in the FMP and the preambles to the proposed and final rules 
implementing the FMP (60 FR 24822, May 10, 1995, and 60 FR 42070, 
August 15, 1995, respectively).
    In June 1995, the Council adopted Amendment 1 to the FMP, which 
authorizes Federal management measures to replace the interim closure 
of Federal waters to fishing for scallops. The Council's preferred 
alternative for Amendment 1 was to incorporate certain State of Alaska 
management measures into the Federal regulations and implement a vessel 
moratorium based on criteria adopted in April 1994 and reaffirmed in 
January 1995.
    At its January 1993 meeting, the Council determined that 
unrestricted

[[Page 38100]]

access to the scallop fishery may be harmful to the resource and result 
in a net loss to the Nation. The Council announced a control date of 
January 20, 1993, to place the industry on notice that a moratorium for 
this fishery may be implemented and any person or fishing vessel that 
entered the scallop fisheries in Federal waters off Alaska would not be 
assured of future access to those fishery resources if a moratorium is 
implemented. In June 1995, the Council developed final qualifying 
criteria for the vessel moratorium. Under the Council's qualifying 
criteria, vessels would qualify for inclusion in the moratorium if they 
made at least one legal landing of scallops in any year from 1991 
through 1993, or during any 4 separate years from 1980 through 1990. 
This two-tier approach was chosen to emphasize recent participation in 
the fishery by allowing all vessels with any legal landings in 1991, 
1992 or 1993 to qualify. Historic participants would qualify under the 
more restrictive standard of a legal landing in at least 4 years 
between 1980 and 1990. The Council's final recommended qualifying 
criteria, which were published in the Council's newsletter, means that 
fishermen and/or vessels not participating in the fishery by December 
31, 1993, may not be guaranteed future access to the fishery.
    The Council subsequently separated the vessel moratorium from 
Amendment 1 and recommended that the vessel moratorium be implemented 
as Amendment 2 to the FMP. The Council took this action to prevent 
moratorium issues from delaying the reopening of the scallop fishery. 
On May 10, 1996, NMFS published a proposed rule to implement Amendment 
1 to the FMP (61 FR 21431). The comment period for the proposed rule 
ended on June 21, 1996. Six letters of comment were received, which are 
summarized in the Response to Comments section below.
    The regulations implementing Amendment 1 were developed in 
coordination with the Council and the State and are designed to 
complement current State management of the scallop fishery. These 
regulations do not preclude the State from imposing additional 
regulations on State registered vessels fishing in Federal waters, so 
long as State regulations are not in conflict with the FMP and its 
implementing regulations. The preamble to the proposed rule provides a 
description of and justification for each Federal management measure 
including: Gear and efficiency restrictions, scallop registration areas 
and districts, procedures for specifying TACs and CBLs, time and area 
closures, inseason management authority, fishing seasons, and observer 
coverage requirements.

Changes From the Proposed Rule

    Four changes were made from the proposed rule. First, since 
publication of the proposed rule, the Federal regulations implementing 
Alaska FMPs have undergone a comprehensive consolidation. As a 
consequence, most of the regulations implementing the FMP for the 
scallop fishery off Alaska (50 CFR part 673) have been recodified at 50 
CFR 679 subpart F, except for the purpose and scope, definitions, and 
prohibitions sections of the scallop regulations, which are now found 
in 50 CFR 679 subpart A.
    Second, in Sec. 679.1(h)(2) the phrase ``consistent with'' was 
changed to ``in addition to, and not in conflict with'' so that 
Sec. 679.1(h)(2) reads as follows: ``State of Alaska laws that are in 
addition to, and not in conflict with, the regulations in this part are 
not preempted for vessels registered under the laws of the State 
fishing for scallops in the Federal waters off Alaska.'' This change 
was made in response to a comment and clarifies that NMFS intends to 
allow the State to impose additional regulations on State-registered 
vessels that are fishing for scallops in Federal waters as long as 
State regulations are not in direct conflict with Federal regulations 
or the FMP.
    Third, the 1996 fishing season in Registration Area D is 
temporarily extended in response to a comment to allow for the harvest 
of remaining 1995-96 State TAC amounts that were not harvested in this 
area during the January 1996 fishery in State waters. In January 1996, 
the State authorized a fishery in the State waters of Registration Area 
D for the estimated portion of the TACs that were attributable to beds 
in State waters (8,000 lb (3,628.7 kg) shucked meat from District 16 
and 55,000 lb (24,947.6 kg) from the remaining districts of 
Registration Area D). Because the entire portion of the 1996 TAC 
attributable to beds in State waters has been taken, the State has 
closed State waters in Registration Area D until 1997. Because State 
waters will remain closed until 1997, the remaining 1996 TAC for this 
area, which will become available on August 1, 1996, will be available 
only in Federal waters.
    Fourth, Sec. 679.62(a) was changed in response to a comment to 
require that available TAC be specified by registration area rather 
than allow a combined TAC for multiple registration areas. This change 
was made to prevent overharvest from within one area. This change 
affects Registration Areas M, Q, and R.
1996-97 Total Allowable Catch Specifications
    The TACs for Registration Areas A, E, K, and O are unchanged from 
the proposed specifications published with the proposed rule. TACS for 
Registration Areas D, H, M, Q, and R have been changed from the 
proposed specifications for the reasons cited below.
    In Registration Area D, the State authorized a January 1996 fishery 
inside State waters and allowed the harvest of the percentage of the 
annual TAC that was estimated to be attributable to scallop beds within 
State waters. Under the new regulations established by this rule, the 
fishing year for scallops runs from July 1 through June 30 of the 
following fishing year. Consequently, in Registration Area D, two TACs 
must be specified to allow for the harvest of the remaining 1995-96 TAC 
in Registration Area D. The 1995-96 TAC amount that went unharvested 
during the State's January 1996 fishery is specified for the period 
August 1, 1996, through December 31, 1996. The TAC for the current 
1996-97 fishing year TAC is specified for the period January 1, 1997, 
through June 30, 1997.
    In Registration Areas M, Q, and R, and H (other than Kamishak 
District), a combined TAC of 875,000 lb (396,893.32 kg) shucked meat 
was listed in the proposed specifications. This combined TAC was 
subdivided by area to prevent overharvest of the TAC from within any 
one area. TACs for each of these registration areas are now specified 
at the historic high catch, which is equal to the upper end of the OY 
range. No TAC is specified for districts other than the Kamishak 
District of Registration Area H. The other districts within 
Registration Area H lie primarily within State waters and there are no 
known commercially viable scallop beds in these districts. The State 
may authorize exploratory scallop fishing in these districts within 
State waters. Any exploratory fishing in Federal waters within these 
districts could be authorized by NMFS pursuant to ``exempted fishing'' 
regulations published at 50 CFR 600.745.

[[Page 38101]]



  Table 1.--Scallop TAC Amounts for the Period August 1, 1996, Through  
 June 30, 1997, in pounds (kilograms in parentheses) of Shucked Scallop 
             Meat by Scallop Registration Area and District             
------------------------------------------------------------------------
                                                            TAC         
            Scallop registration area            -----------------------
                                                      lb          kg    
------------------------------------------------------------------------
Area A (Southeastern)...........................                        
(1)zero                                                                 
------------------------------------------------------------------------
Area D (Yakutat):                                                       
         (Applicable August 1, 1996 through December 31, 1996) 1        
------------------------------------------------------------------------
    District 16.................................      27,000      12,247
    All other districts.........................     195,000      88,451
------------------------------------------------------------------------
           (Applicable January 1, 1997 through June 30, 1997)           
------------------------------------------------------------------------
    District 16.................................      35,000      15,880
    All other districts.........................     250,000     113,430
Area E (Prince William Sound)...................      50,000      22,686
Area H (Cook Inlet):                                                    
    Kamishak District...........................      20,000       9,074
Area K (Kodiak).................................     400,000     181,488
Area M (Alaska Peninsula).......................     200,000      90,718
Area O (Dutch Harbor)...........................     170,000      77,132
Area Q (Bering Sea).............................     600,000     272,155
Area R (Adak)...................................      75,000      43,019
    Total \2\...................................   1,800,000     816,416
------------------------------------------------------------------------
\1\ Represents unharvested TAC that would have been specified for the   
  period July 1, 1995, through June 30 1996. Because the closure of     
  Federal waters prevented the harvest of this TAC during the January   
  1996 State-managed opening, NMFS is making this unharvested TAC amount
  available on August 1, 1996. The Area D TAC that would normally have  
  been specified for the period August 1, 1996, through June 30, 1997   
  will not become effective until January 1, 1997.                      
\2\ Does not include the August 1, 1996, through December 31, 1996, TAC 
  for Registration Area D because this TAC amount represents unharvested
  TAC from the previous fishing year.                                   

1996-97 Crab Bycatch Limits

    Table 2 shows CBLs for the period August 1, 1996, through June 30, 
1997. These numbers are unchanged from the proposed specifications.

  Table 2.--Crab Bycatch Limits for the Period August 1, 1996, Through  
   June 30, 1997, in Numbers of Crabs by Scallop Registration Area and  
                                District                                
------------------------------------------------------------------------
      Scallop registration area         Red king   C. bairdi   C. opilio
------------------------------------------------------------------------
Area A (Southeastern)...............  ..........  ..........  ..........
Area D (Yakutat)....................  ..........  ..........  ..........
Area E (Prince William Sound).......  ..........         630  ..........
Area H (Cook Inlet):                                                    
    Kamishak District...............          40      15,900  ..........
    Outer/Eastern Districts.........          98       2,170  ..........
Area K (Kodiak):                                                        
    Shelikof District...............          22      16,100  ..........
    Northeast District..............          66     130,000  ..........
Area M (Alaska Peninsula)...........         435      22,800  ..........
Area O (Dutch Harbor)...............          10      10,700  ..........
Area Q (Bering Sea).................         500     257,000     275,000
Area R (Adak).......................          50      10,000  ..........
------------------------------------------------------------------------

Closure

    In Registration Area A, the final scallop TAC amount for the period 
August 1, 1996, through June 30, 1997, is zero. Therefore, under 
Sec. 679.62(c), NMFS is prohibiting the catch and retention of scallops 
in Registration Area A from August 1, 1996, through June 30, 1997.

Response to Comments

    Comment 1: The 30-day delay in effectiveness normally incorporated 
into Federal rulemaking procedures should be waived. This rule will 
impact the industry in a positive way by allowing fishing to resume 
after an 18-month hiatus brought about by a lack of Federal regulation. 
The period normally viewed as an opportunity for industry to adapt to 
an onerous regulation is not needed and would, in fact, present further 
hardship to the fishing industry.
    Response: NMFS agrees. The 30-day delayed effectiveness period for 
this rule has been waived (see ``Classification'' section, below).
    Comment 2: The proposed rule has an August 15 opening date for 
Registration Area H (Cook Inlet). A later opening date of August 29 is 
recommended, because crab tend to move out of this area later in the 
season. A later opening date would produce less crab bycatch,

[[Page 38102]]

which is a prime concern of industry and the Council.
    Response: Because a single TAC is specified for both the Federal 
and State waters of each registration area or district, a simultaneous 
opening of Federal and State waters is necessary to prevent localized 
overfishing of scallop stocks and reduce administration and enforcement 
concerns. For these reasons, opening dates in the Federal waters of 
each registration area or district were scheduled to match existing 
State opening dates. If the opening date for the Federal waters of 
Registration Area H were delayed until August 29, vessel operators 
might try to harvest the entire TAC from within State waters that would 
open on August 15. This situation could cause localized overfishing of 
scallops stocks inside State waters. Moreover, enforcement of closures 
would be more problematic if adjacent State and Federal waters were 
open at different times. Therefore, the opening date for Registration 
Area H is unchanged.
    NMFS does not have adequate bycatch data to support or refute the 
contention that crab bycatch would be appreciably lower if the opening 
date were delayed until August 29. However, crab bycatch was certainly 
a consideration of the Board of Fisheries when it established an August 
15 opening date for the Cook Inlet Registration Area. In its comments 
on the proposed rule, ADF&G has indicated that possible changes to 
scallop opening dates will be examined by the Board of Fisheries at the 
March 1997 meeting. If bycatch data presented to the Board of Fisheries 
indicate that a change in opening dates is warranted for the Cook Inlet 
Registration Area, NMFS, in coordination with the Council and the State 
could address opening date changes at that time.
    Comment 3: While the exemption from observer coverage for vessels 
less than 80 ft (24.4 m) length overall (LOA) in Cook Inlet is 
justified, a similar exemption is necessary for small vessels fishing 
outside Cook Inlet. In the past, State regulations have exempted 
vessels less than 65 ft (19.8 m) LOA from observer requirements. A 
number of vessels qualified for this exemption. If small vessels must 
give up bunk space to carry an observer, they will lose a significant 
percentage of their workforce while incurring the extra expense of 
accommodating an observer. Therefore, small vessels will be hit doubly 
hard by the 100 percent observer coverage requirement. In the 
groundfish observer program, vessels between 60 and 125 ft (18.3 and 
38.1 m) LOA are only required to carry an observer for 30 percent of 
their fishing days. A small vessel exemption should be reinstated for 
the scallop fishery, or a percentage-based coverage system similar to 
that used in the groundfish fishery.
    Response: All vessels required to carry an observer under this rule 
will need to provide accommodations for an observer. The loss of a bunk 
space is not limited to small vessels. In addition, the restrictions on 
dredge width and crew size will tend to limit disparities in harvesting 
capacity between large and small vessels. Therefore, NMFS does not 
believe that a 100 percent observer coverage requirement will have 
inordinate impacts on small vessels. Nevertheless, NMFS is sensitive to 
the impacts that this rule will have on small businesses and has taken 
numerous steps to reduce burdens on small businesses such as avoiding 
duplicate State and Federal recordkeeping and recording requirements. 
In addition, the Council heard testimony on the burden of 100 percent 
observer requirements from small vessel owners during initial and final 
consideration of Amendment 1. However, the Council believes, and NMFS 
concurs, that the need for accurate management data outweighed the 
economic impacts on small vessels. One hundred percent observer 
coverage is necessary outside Cook Inlet to accurately monitor crab 
bycatch, which is a primary management concern because crab populations 
are severely depleted throughout the area covered by the FMP. Observer 
data are also required because little information is presently 
available on the status of scallop stocks in much of the management 
area. Consequently, no observer coverage exemption was made for small 
vessels fishing outside of Cook Inlet.
    Comment 4: The Alaska Department of Fish and Game (ADF&G) is 
concerned that the Federal regulatory system will not be flexible 
enough to reflect season changes made by the Alaska Board of Fisheries, 
or by ADF&G emergency order. ADF&G believes that a real likelihood 
exists that the State seasons established for Registration Areas D and 
E will be changed in 1997. Seasons in State and Federal waters must be 
identical for conservation, as well as enforcement and fair start 
reasons.
    Response: NMFS may make regulatory changes in fishing seasons at 
any time for conservation or management reasons in response to 
recommendations from ADF&G or the Council. Any changes to State fishing 
seasons made at the March 1997 Board of Fisheries meeting could not 
become effective before the 1998 fishing season because the 1997 
scallop fishery in Registration Areas D and E would have already 
occurred in January. NMFS would have more than sufficient time to make 
corresponding changes in Federal fishing seasons through the normal 
regulatory process. Any conservation emergency that warrants an 
immediate adjustment of fishing seasons, or any other management 
measure, could be made through the inseason adjustment authority set 
out at Sec. 679.63 or through an emergency rule.
    Comment 5: The proposed rule establishes the TAC for each 
registration area as a single number. ADF&G recommends that the TAC be 
set as a range for each registration area. For example, in the Yakutat 
Registration Area, TAC should be set at 0 to 250,000 lb (113,430 kg) 
shucked meat. By stating TAC as a range, conservation adjustments to 
harvest guidelines, either preseason or inseason, would be frameworked 
within regulations and would not require additional action by NMFS.
    Response: The TACs specified by NMFS simply represent the upper end 
of the range of acceptable harvests. No requirement exists that the 
entire TAC be harvested in each registration area. Indeed, NMFS expects 
that the scallop fishery in some registration areas will close long 
before the entire TAC is harvested due to attainment of CBLs. No 
management advantage would be achieved by specifying TACs as a range, 
because NMFS would still be required to publish an inseason adjustment 
or closure to affect any change in the fishery. NMFS believes that the 
inseason adjustment authority established by this regulation is 
sufficient to implement timely inseason changes to TACs, should they be 
warranted for conservation or management reasons.
    Comment 6: Paragraph 673.1(c) of the proposed rule states ``State 
of Alaska laws that are consistent with the regulations in this part 
are not preempted for vessels registered under the laws of the State 
fishing for scallops in the Federal waters off Alaska.'' Neither the 
FMP nor the proposed rule adopt all of the areas closed by State to 
scallop fishing. Thus, one could interpret paragraph 673.1(c) to mean 
that State closed areas within Federal waters could be preempted for 
State registered vessels. The areas closed by the State to scallop 
fishing were adopted by the Board of Fisheries over 20 years ago to 
protect king and Tanner crab stocks by using the best scientific 
information available along with public testimony. Crab stocks in these 
closed areas are very depressed and commercial king crab fisheries have

[[Page 38103]]

been closed since 1983. Based on the crab stock status and additional 
public input, the Board of Fisheries confirmed the closures in 1994.
    Response: NMFS did not implement all of the closed areas that are 
currently established in State regulations, because NMFS did not have 
sufficient information on crab bycatch and crab habitat immediately 
available to propose such closures. To compile and analyze crab bycatch 
statistics for the areas currently closed by the State prior to 
publication of the proposed rule could have delayed the timely 
reopening of the scallop fishery in Federal waters. However, NMFS 
encourages the State to take any additional measures necessary to 
protect scallop stocks and bycatch species for State-registered vessels 
fishing in Federal waters. In Sec. 679.1(h)(2), the phrase ``consistent 
with'' was changed to ``in addition to, and not in conflict with'' to 
clarify that NMFS intends to allow the State to impose additional 
regulations on State-registered vessels that are fishing for scallops 
in Federal waters, as long as State regulations are not in direct 
conflict with Federal regulations or the FMP.
    Comment 7: The proposed rule does not close Federal waters 
presently closed by the State to scallop fishing. ADF&G is concerned 
that vessels that are not registered with the State will not comply 
with State regulations and could legally fish in these closed areas. 
The State's Fish and Wildlife Protection Division cannot enforce 
regulations on vessels that are not registered with the State or do not 
enter State waters. ADF&G believes that NMFS Enforcement could not 
enforce these closed waters if they are not established in Federal 
regulations.
    Response: The reasons why NMFS did not implement all of the State 
closures in Federal waters are outlined in the response to comment 6. 
Because the closed areas in question are not established in Federal 
regulations, they will not be enforced by NMFS, however, they may be 
enforced by the State for State-registered vessels. A vessel fishing 
for scallops that is not registered with the State could indeed fish in 
areas of Federal waters that the State has closed to State-registered 
vessels. However, NMFS believes it is extremely unlikely that a vessel 
operator would chose to fish for scallops without registering with the 
State. Many scallop beds straddle both State and Federal waters and a 
vessel not registered with the State would be prevented from fishing in 
State waters and could also be prevented from entering State waters 
with unprocessed scallops on board. NMFS believes that the loss of 
access to State waters would far outweigh any possible advantage a 
vessel would gain by avoiding State-registration simply to fish in the 
closed areas in question.
    Comment 8: ADF&G believes that separate TACs should be established 
for Registration Areas M, Q, and R. The combined TAC of 875,000 lb 
(396,893.3 kg) of shucked meat creates a potential risk of overfishing 
in any single area. Dependence on CBLs to protect the scallop resource 
from overfishing in these areas is not appropriate. TACs for each 
registration area should be established at historic high catch: 
Registration Area M, 0 to 200,000 lb (90,718 kg) shucked meat; 
Registration Area Q, 0 to 600,000 lb (272,155 kg) shucked meat; and 
Registration Area R, 0 to 75,000 lb (43,019 kg) shucked meat.
    Response: NMFS agrees. The final specifications of TAC for the 
period August 1, 1996, through June 30, 1997, have been changed to 
reflect TACs of 200,000 lb (90,718 kg) shucked meat for Registration 
Area M, 600,000 lb (272,155 kg) shucked meat for Registration Area Q, 
and 75,000 lb (43,019 kg) shucked meat for Registration Area R.
    Comment 9: The Bristol Bay bottom trawl closures recently adopted 
by the Council should also be closed to scallop dredging to be 
consistent with Federal groundfish regulations and to assist in the 
protection and rebuilding efforts for the Bristol Bay red king crab 
stocks.
    Response: NMFS agrees. All Federal waters that are closed to 
trawling for groundfish with nonpelagic trawl gear for the purpose of 
habitat protection, limiting crab bycatch, or protecting walrus 
rookeries and Steller sea lion areas are also closed to dredging for 
scallops. If the Bristol Bay bottom trawl closures recently adopted by 
the Council are approved by NMFS, they will also apply to dredging for 
scallops.

Classification

    The Director, Alaska Region, NMFS, determined that Amendment 1 is 
necessary for the conservation and management of the scallop fishery 
off Alaska and that it is consistent with the Magnuson Act and other 
applicable laws.
    The Federal waters off Alaska have been closed to scallop fishing 
under an emergency interim rule and subsequent final rule since 
February 23, 1995 (60 FR 11054, March 1, 1995 and 60 FR 42070, August 
15, 1995, respectively). The management measures established under this 
final rule relieve this restriction by reopening Federal waters to 
fishing for scallops. Therefore, as this rule relieves a restriction, 
delayed effectiveness under 5 U.S.C. 553(d)(1) is not required. 
Additionally, with respect to the new management measures imposed by 
this rule, there is good cause to waive the delayed effectiveness 
period under 5 U.S.C. 553(d)(3) because of the need to coordinate the 
opening of Federal waters with the August 1, 1996, opening of State 
waters within each registration area. Furthermore, all vessels expected 
to fish in Federal waters also fish in State waters where these 
regulatory requirements have been in effect and are familiar to the 
fleet.
    This rule has been determined to be not significant for the 
purposes of E.O. 12866.
    The Council prepared a FRFA as part of the RIR, which describes the 
impacts that this rule is expected to have on small entities. The 
economic effects of this rule to the regulated community are expected 
to be significant and positive. Because this rule repeals the total 
closure of Federal waters to fishing for scallops, significant 
opportunities for scallop fishing will exist that could otherwise be 
unavailable under current regulations. The analysis concluded that in 
1994, 86 percent of the scallops harvested off Alaska were taken from 
Federal waters and 11 of the 16 vessels harvesting scallops 
participated in no other fishery. This rule will restore the 
opportunity to fish in Federal waters that was available prior to 1995. 
A copy of this analysis is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

    Fisheries, Reporting and recordkeeping requirements.

    Dated: July 17, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 679 is amended 
as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq.

    2. In Sec. 679.1, paragraph (h) is revised to read as follows:


Sec. 679.1  Purpose and scope.

* * * * *
    (h) Fishery Management Plan for the Scallop Fishery off Alaska. (1) 
Regulations in this part govern commercial fishing for scallops in the 
Federal waters off Alaska by vessels of

[[Page 38104]]

the United States (see subparts A and F of this part).
    (2) State of Alaska laws that are in addition to, and not in 
conflict with, the regulations in this part are not preempted for 
vessels registered under the laws of the State fishing for scallops in 
the Federal waters off Alaska.
    3. In Sec. 679.2 the definition of ``Authorized fishing gear'' is 
amended by revising the introductory paragraph, redesignating 
paragraphs (1) through (9) and (10) as paragraphs (2) through (10) and 
(12), respectively, and adding new paragraphs (1) and (11). New 
definitions of ``CBL'' and ``Shucking machine'' are added, in 
alphabetical order, to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Authorized fishing gear means dive, fixed gear, hook-and-line, jig, 
longline, longline pot, nonpelagic trawl, nontrawl, pelagic trawl, pot-
and-line, scallop dredge, and trawl defined as follows:
    (1) Dive means any scuba or surface supported diving equipment that 
allows for the underwater harvest of scallops by divers, or the taking 
of scallops by means of such gear.
* * * * *
    (11) Scallop dredge means gear consisting of a mouth frame attached 
to a holding bag constructed of metal rings, or any modification to 
this design that can be or is used in the harvest of scallops, or the 
taking of scallops by means of such gear.
* * * * *
    CBL means crab bycatch limit.
* * * * *
    Shucking machine means any mechanical device that automatically 
removes the meat or the adductor muscle from the shell.
* * * * *
    4. In Sec. 679.7, paragraph (h) is added to read as follows:


Sec. 679.7  Prohibitions.

* * * * *
    (h) Scallop fishery off Alaska. It is unlawful for any person to 
violate any provision of subpart F of this part while fishing for 
scallops in the Federal waters off Alaska.
    5. Subpart F is revised to read as follows:

Subpart F--Scallop Fishery Off Alaska

Sec.
679.60  Gear and efficiency limits.
679.61  Registration areas.
679.62  General limitations.
679.63  Inseason adjustments.
679.64  Seasons.
679.65  Observer requirements.

Subpart F--Scallop Fishery Off Alaska


Sec. 679.60  Gear and efficiency limits.

    (a) General. Scallops may be taken only with dive gear or scallop 
dredge gear as defined at Sec. 679.2.
    (b) The inside ring diameter on all dredges used or carried by a 
vessel fishing for weathervane scallops (Patinopectin caurinus) must be 
4 inches (10.16 cm) or larger.
    (c) The inside ring diameter on all dredges used or carried by a 
vessel fishing for scallops other than weathervane scallops must be 3 
inches (7.62 cm) or larger.
    (d) No person may use chafing gear or other devices that decrease 
the legal inside ring diameter of a scallop dredge.
    (e) Except as provided in paragraph (f) of this section, no more 
than two scallop dredges may be operated at one time from a vessel, and 
the opening of a scallop dredge must be equal to or less than 15 ft 
(4.57 m) wide.
    (f) In the Kamishak, Southern, and Central Districts of Scallop 
Registration Area H defined under Sec. 679.61, no more than one scallop 
dredge may be operated at one time from a vessel, and the opening of a 
dredge may not be more than 6 ft (1.83 m) in width.
    (g) Scallops must be shucked by hand only. A shucking machine must 
not be on board a vessel that is fishing for scallops or that has 
scallops on board.
    (h) No vessel fishing for scallops in Federal waters may have 
aboard more than 12 persons, exclusive of ADF&G or NMFS observers.


Sec. 679.61  Registration areas.

    For the purpose of managing the scallop fishery, the Federal waters 
off Alaska and adjacent State waters are divided into nine scallop 
registration areas. Three scallop registration areas are further 
subdivided into districts. The scallop registration areas and districts 
are defined as follows:
    (a) Registration Area A (Southeastern) has as its southern boundary 
the international boundary at Dixon Entrance, and as its northern 
boundary Loran-C line 7960-Y-29590, which intersects the western tip of 
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long., 
except for ADF&G District 16 defined under paragraph (b) of this 
section.
    (b) Registration Area D (Yakutat) has as its western boundary the 
longitude of Cape Suckling (143 deg.53' W. long.), and as its southern 
boundary Loran-C line 7960-Y-29590, which intersects the western tip of 
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long., 
and ADF&G District 16 defined as all waters all waters north of a line 
projecting west from the southernmost tip of Cape Spencer and south of 
a line projecting southwest from the westernmost tip of Cape 
Fairweather.
    (c) Registration Area E (Prince William Sound) has as its western 
boundary the longitude of Cape Fairfield (148 deg.50' W. long.), and 
its eastern boundary the longitude of Cape Suckling (143 deg.53' W. 
long.).
    (d) Registration Area H (Cook Inlet) has as its eastern boundary 
the longitude of Cape Fairfield (148 deg.50' W. long.) and its southern 
boundary the latitude of Cape Douglas (58 deg.52' N. lat.).
    (1) Northern District. North of a line extending from Boulder Point 
at 60 deg.46'23'' N. lat., to Shell Platform C, then to a point on the 
west shore at 60 deg.46'23'' N. lat.
    (2) Central District. All waters between a line extending from 
Boulder Point at 60 deg.46'23'' N. lat., to Shell Platform C, to a 
point on the west shore at 60 deg.46'23'' N. lat., and the latitude of 
Anchor Point Light (59 deg.46'12'' N. lat.).
    (3) Southern District. All waters enclosed by a line from Anchor 
Point Light west to 59 deg.46'12'' N. lat., 152 deg.20' W. long., then 
south to 59 deg.03'25'' N. lat., 152 deg.20' W. long., then in a 
northeasterly direction to the tip of Cape Elizabeth at 59 deg.09'30'' 
N. lat., 151 deg.53' W. long., then from the tip of Cape Elizabeth to 
the tip of Point Adam at 59 deg.15'20'' N. lat., 151 deg.58'30'' W. 
long.
    (4) Kamishak Bay District. All waters enclosed by a line from 
59 deg.46'12'' N. lat., 153 deg.00'30'' W. long., then east to 
59 deg.46'12'' N. lat., 152 deg.20' W. long., then south to 
59 deg.03'25'' N. lat., 152 deg.20' W. long., then southwesterly to 
Cape Douglas (58 deg.52' N. lat.). The seaward boundary of the Kamishak 
Bay District is 3 nautical miles seaward from the shoreline between a 
point on the west shore of Cook Inlet at 59 deg.46'12'' N. lat., 
153 deg.00'30'' W. long., and Cape Douglas at 58 deg.52' N. lat., 
153 deg.15' W. long., including a line three nautical miles seaward 
from the shorelines of Augustine Island and Shaw Island, and including 
the line demarking all state waters shown on NOAA chart 16640, 21st 
Ed., May 5, 1990 (Available from Alaska Region).
    (5) Barren Island District. All waters enclosed by a line from Cape 
Douglas (58 deg.52' N. lat.) to the tip of Cape Elizabeth at 
59 deg.09'30'' N. lat., 151 deg.53' W. long., then south to 58 deg.52' 
N. lat., 151 deg.53' W. long., then west to Cape Douglas.
    (6) Outer District. All waters enclosed by a line from the tip of 
Point Adam to the tip of Cape Elizabeth, then south to 58 deg.52' N. 
lat., 151 deg.53' W. long., then east to the longitude of Aligo Point

[[Page 38105]]

(149 deg.44'33'' W. long.), then north to the tip of Aligo Point.
    (7) Eastern District. All waters east of the longitude of Aligo 
Point (149 deg.44'33'' W. long.), west of the longitude of Cape 
Fairfield (148 deg.50' W. long.), and north of 58 deg.52' N. lat.
    (e) Registration Area K (Kodiak) has as its northern boundary the 
latitude of Cape Douglas (58 deg.52' N lat.), and as its western 
boundary the longitude of Cape Kumlik (157 deg.27' W. long.).
    (1) Northeast District. All waters northeast of a line extending 
168 deg. from the easternmost tip of Cape Barnabas, east of a line from 
the northernmost tip of Inner Point to the southernmost tip of Afognak 
Point, east of 152 deg.30' W. long. in Shuyak Strait, and east of the 
longitude of the northernmost tip of Shuyak Island (152 deg.20' W. 
long.).
    (2) Southeast District. All waters southwest of a line extending 
168 deg. from the easternmost tip of Cape Barnabas and east of a line 
extending 222 deg. from the southernmost tip of Cape Trinity.
    (3) Southwest District. All waters west of a line extending 
222 deg. from the southernmost tip of Cape Trinity, south of a line 
from the westernmost tip of Cape Ikolik to the southernmost tip of Cape 
Kilokak and east of the longitude of Cape Kilokak (156 deg.19' W. 
long.).
    (4) Semidi Island District. All waters west of the longitude of 
Cape Kilokak at 156 deg.19' W. long. and east of the longitude of Cape 
Kumlik at 157 deg.27' W. long.
    (5) Shelikof District. All waters north of a line from the 
westernmost tip of Cape Ikolik to the southernmost tip of Cape Kilokak, 
west of a line from the northernmost tip of Inner Point to the 
southernmost tip of Afognak Point, west of 152 deg.30' W. long., in 
Shuyak Strait, and west of the longitude of the northernmost tip of 
Shuyak Island (152 deg.20' W. long.).
    (f) Registration Area M (Alaska Peninsula) has as its eastern 
boundary the longitude of Cape Kumlik (157 deg.27' W. long.), and its 
western boundary the longitude of Scotch Cap Light. The registration 
area also includes all waters of Bechevin Bay and Isanotski Strait 
south of a line from the easternmost tip of Chunak Point to the 
westernmost tip of Cape Krenitzen.
    (g) Registration Area O (Dutch Harbor) has as its northern boundary 
the latitude of Cape Sarichef (54 deg.36' N. lat.), as its eastern 
boundary the longitude of Scotch Cap Light, and as its western boundary 
171 deg. W. long., excluding the waters of Statistical Area Q.
    (h) Registration Area Q (Bering Sea) has as its southern boundary a 
line from Cape Sarichef (54 deg.36' N. lat.), to 54 deg.36' N. lat., 
171 deg. W. long., to 55 deg.30' N. lat., 171 deg. W. long., to 
55 deg.30' N. lat., 173 deg.30' E. long., as its northern boundary the 
latitude of Point Hope (68 deg.21' N. lat.).
    (i) Registration Area R (Adak) has as its eastern boundary 171 deg. 
W. long., and as its northern boundary 55 deg.30' N. lat.


Sec. 679.62  General limitations.

    (a) Harvest limits--(1) General. NMFS will establish TAC amounts 
and CBLs for the scallop fishery off Alaska according to the procedures 
described under this section. The total annual TAC amount for scallops 
off Alaska will be established within the OY range of 0 to 1.8 million 
lb (0 to 815.5 mt) of shucked scallop meat.
    (2) TACs. (i) The annual TACs for scallops in each Registration 
Area or part thereof will be established as a weight in pounds of 
shucked scallop meat based on a review of the following:
    (A) Assessments of the biological condition of each scallop 
species. Assessments will include, where practicable, updated estimates 
of MSY; historical catch trends and current catch statistics, reviews 
of alternative harvesting strategies; and relevant information relating 
to changes in scallop markets.
    (B) Socioeconomic considerations that are consistent with the goals 
and objectives of the FMP.
    (ii) Annual scallop TACs will be specified for the 12-month time 
period extending from July 1 through June 30 of the following year. An 
annual TAC amount is available for harvest only for the registration 
area or district specified, only during the applicable season set out 
in Sec. 679.64, and only if no closure or other restriction or 
limitation is applicable.
    (3) CBLs. (i) CBLs may be specified for red king crab and Tanner 
crab species for any registration area or district.
    (ii) Except as provided under paragraph (a)(3)(iii) of this 
section, annual CBLs will be based on the biological condition of each 
crab species, historical bycatch rates in the scallop fishery, and 
other socioeconomic considerations that are consistent with the goals 
and objectives of the FMP.
    (iii) Annual CBLs in Registration Area Q will equal the following 
amounts:
    (A) The CBL for red king crab caught while conducting any fishery 
for scallops will be specified within the range of 500 to 3,000 crab 
based on the considerations listed in paragraph (a)(3)(ii) of this 
section.
    (B) The CBL for Chionoecetes opilio Tanner crab caught while 
conducting any fishery for scallops is 0.003176 percent of the best 
available estimate of C. opilio abundance in Registration Area Q.
    (C) The CBL for C. bairdi Tanner crab caught while conducting any 
fishery for scallops is 0.13542 percent of the best available estimate 
of C. bairdi abundance in Registration Area Q.
    (iv) Annual CBLs will be specified for the 12-month time period 
from July 1 through June 30 of the following year. An annual CBL may be 
utilized only for the registration area or district specified, only if 
any applicable TAC amount is available for harvest, only during the 
applicable season set out in Sec. 679.64, and only if no closure or 
other limitation or restriction is applicable.
    (b) Specifications. The following procedure is established for 
specifying TAC amounts and CBLs:
    (1) On an annual basis, prior to the April Council meeting, the 
Council will distribute a summary of the State's most recent TAC and 
CBL recommendations and supporting documentation to the public through 
its mailing list, as well as provide copies of the recommendations, 
documentation, and the annual SAFE report to the public upon request. 
The Council will notify the public of its intent to develop final 
recommendations at the April Council meeting and solicit public comment 
both before and during the April Council meeting.
    (2) Following the April Council meeting, the Council will submit 
its TAC and CBL recommendations along with rationale and supporting 
information to NMFS for review and implementation.
    (3) As soon as practicable after receiving recommendations from the 
Council, NMFS will publish in the Federal Register annual 
specifications of TAC amounts and CBLs for the succeeding 12-month 
period extending from July 1 through June 30 of the following year.
    (c) Closures. (1) If the Director, Alaska Region, NMFS, determines 
that a TAC or CBL specified under paragraphs (a) and (b) of this 
section has been or will be reached, NMFS will publish notification in 
the Federal Register prohibiting the taking and retention of scallops 
in the Federal waters of the registration area or district where the 
notification is applicable.
    (2) It is unlawful for any person to conduct any fishing for 
scallops contrary to the notification of closure issued pursuant to 
this paragraph.
    (d) Closed areas. It is unlawful for any person to dredge for 
scallops in any Federal waters off Alaska that are closed to fishing 
with trawl gear or non pelagic trawl gear under Sec. 679.22(a)(1)(i), 
(a)(2)(i), (a)(4), (a)(6), (a)(7) and (b).

[[Page 38106]]

Sec. 679.63   Inseason adjustments.

    (a) Inseason adjustments may be issued by NMFS to implement the 
closure, extension, opening, or reopening of a season in all or part of 
a scallop registration area; and the adjustment of TAC amounts or CBLs.
    (b) Determinations for any inseason adjustment authorized under 
paragraph (a) of this section must be consistent with 
Sec. 679.25(a)(2).
    (c) Procedures for making inseason adjustments are specified at 
Sec. 679.25(c).
    (d) It is unlawful for any person to conduct any fishing for 
scallops contrary to an inseason adjustment issued pursuant to this 
section.


Sec. 679.64   Seasons.

    (a) Fishing for scallops in the Federal waters off Alaska is 
authorized from 0001 hours, A.l.t., July 1, through 2400 hours, A.l.t., 
June 30, subject to the other provisions of this part, except as 
provided in paragraphs (b) through (e) of this section.
    (b) Fishing for scallops in the Federal waters of Scallop 
Registration Areas K, M, O, Q, and R is authorized from 1200 hours, 
A.l.t., July 1 through 1200 hours, A.l.t., February 15 of the following 
year, subject to the other provisions of this part.
    (c) Fishing for scallops in the Federal waters of the Kamishak 
District of Scallop Registration Area H is authorized from 1200 hours, 
A.l.t., August 15 through 1200 hours, A.l.t., October 31, subject to 
the other provisions of this part.
    (d) (Applicable January 1, 1997) Fishing for scallops in the 
Federal waters of Scallop Registration Areas A, D, and E is authorized 
from 1200 hours, A.l.t., January 10 through 2400 hours, A.l.t., June 
30, subject to the other provisions of this part.
    (e) (Applicable through December 31, 1996) Fishing for scallops in 
the Federal waters of Scallop Registration Area D is authorized from 
1200 hours, A.l.t., August 1 through 2400 hours, A.l.t., December 31, 
subject to the other provisions of this part. Fishing for scallops in 
the Federal waters of Scallop Registration Areas A and E is not 
authorized.


Sec. 679.65   Observer requirements.

    (a) Except as provided in paragraph (c) of this section, vessels 
must carry a NMFS-certified or ADF&G-certified scallop observer at all 
times while fishing for scallops in Federal waters.
    (b) An operator of a vessel required to carry an observer must 
comply with all safety and conduct requirements set out at 
Sec. 679.7(g).
    (c) Vessels less than 80 ft (24.4 m) LOA are exempt from the 
requirements of this section while fishing for scallops in the Federal 
waters of Registration Area H.

[FR Doc. 96-18666 Filed 7-18-96; 4:19 pm]
BILLING CODE 3510-22-P