[Federal Register Volume 61, Number 184 (Friday, September 20, 1996)]
[Proposed Rules]
[Pages 49428-49430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24130]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 960910252-6252-01; I.D. 082296B]
RIN 0648-AI77


Fisheries of the Northeastern United States; Atlantic Sea Scallop 
Fishery; Amendment 5

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 5 to the 
Fishery Management Plan for the Atlantic Sea Scallop Fishery (FMP). The 
amendment would: Close a 9 mi2 (23.31 km2) site to mobile 
fishing gear and partially close the site to non-mobile gear for an 18-
month period, and temporarily exempt certain vessels from fishing 
regulations. The intended effect is to support an aquaculture research 
project and prevent conflicts between fishing gear and project 
equipment for the limited duration of the research project.

DATES: Comments on the proposed rule must be received on or before 
November 1, 1996.

ADDRESSES: Comments on the proposed rule, Amendment 5, or its 
supporting documents should be sent to Dr. Andrew A. Rosenberg, 
Director, Northeast Regional Office, NMFS, 1 Blackburn Drive, 
Gloucester, MA 01930. Mark the outside of the envelope ``Comments on 
Sea Scallop Plan.''
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this proposed rule should be sent 
to Dr. Andrew A. Rosenberg, at the address above, and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).
    Copies of Amendment 5, its regulatory impact review, initial 
regulatory flexibility analysis, and the environmental assessment are 
available from Christopher Kellogg, Acting Executive Director, New 
England Fishery Management Council, Suntaug Office Park, 5 Broadway, 
Saugus, MA 01906-1097.

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

SUPPLEMENTARY INFORMATION: Regulations implementing the FMP are found 
at 50 CFR part 648. The objectives of the FMP are: (1) To restore adult 
stock abundance and age distribution; (2) to increase yield-per-recruit 
for each stock; (3) to evaluate plan research, development and 
enforcement costs; and (4) to minimize adverse environmental impacts on 
sea scallops. This amendment would address these objectives indirectly 
by implementing regulations in support of a sea scallop aquaculture 
project that may yield information applicable to improving conservation 
and management of this species.

Proposed Management Measures

    Amendment 5 to the FMP was prepared by the New England Fishery 
Management Council (Council). A notice of availability for the proposed 
amendment was published in the Federal Register on August 29, 1996, (61 
FR 45395). The amendment proposes to establish a 9 mi2 (23.31 
km2) area closure approximately 12 mi (22.22 km) southwest of the 
island of Martha's Vineyard, MA, for 18 months, during which time a 
scallop aquaculture project sponsored by NMFS under the Saltonstall-
Kennedy grant program would take place. This area is hereafter called 
the Sea Scallop Experimental Area.
    This action would allow some vessels participating in the project 
to receive exemptions from current fishing regulations. Eleven fishing 
vessels and two research vessels would participate in the project 
research and activity. Scientific research vessels conducting 
scientific research are exempt from fishing regulations implemented 
under the Magnuson Fishery Conservation and Management Act (Magnuson 
Act). However, fishing vessels engaged in project activities must 
receive written authorization in the form of an experimental fishing 
permit (EFP) from the Director, Northeast Regional, NMFS (Regional 
Director) to be exempted from any of the regulations. Activities that 
may be exempted include, but are not limited to: Fishing within the Sea 
Scallop Experimental Area, using fishing gear that does not conform to 
the regulations, or possessing scallops when not fishing under a days-
at-sea (DAS) allocation. This requirement for an EFP differs from the 
Council's proposed amendment but is necessary to ensure consistency 
with and enforceability of the new regulations under Sec. 600.745 
regarding scientific research and exempted fishing activities.
    This action would prohibit fishing with gillnet and mobile gear, 
i.e., trawls

[[Page 49429]]

and dredges, within the Sea Scallop Experimental Area. Other fixed gear 
such as lobster pot, longline, handgear, and any other gear determined 
by the Regional Director not likely to interfere with the research 
project, would be allowed in the area under a special registration 
program administered by the Regional Director. The purpose of the 
registration program is to inform vessel operators of the location of 
the research equipment and to provide a means to communicate potential 
conflicts between fishery and project activities. Fishers authorized to 
fish in the Sea Scallop Experimental Area with the allowed gear may 
also be required to remove periodically their gear or may be required 
to set fishing gear a certain minimum distance from research project 
activities. At least 2 weeks notice would be provided to vessel 
operators to relocate fishing gear. All vessels would be allowed to 
transit the area at any time, provided their fishing gear is properly 
stowed.
    These restrictions on fishing are necessary because mobile gear 
could inadvertently destroy expensive grow-out or monitoring equipment. 
Although this closure would be temporary and would not create any 
permanent rights or interests at the experimental site, the success of 
the experiment is dependent on gear restrictions within the area, 
particularly for mobile and gillnet gear. The impacts of the closure 
are expected to be small, because the amount of fish landed 
commercially from this area is small compared to the total commercial 
landings in the region. Some current uses of the area by mobile gear 
operators, gillnet fishers, and scallopers would be affected by the 18-
month closure period. The estimates of lost revenue due to loss of 
multispecies landings is approximately $6,000. This would be offset by 
the benefits accrued by fishing vessels participating in the research 
project that would be compensated through the harvesting and sale of 
scallops at the conclusion of the project. New information on sea 
scallop enhancement, harvest gear and habitat interactions, open ocean 
cage engineering and growth rates of transferred juvenile brood stock 
in both cage culture and open bottom culture may provide the tools 
needed to expand the resource base for the future.
    Vessels authorized to participate in project activities would be 
exempt from the requirement to fish under a DAS allocation if a trip is 
conducted exclusively within or transiting to and from the Sea Scallop 
Experimental Area, or during the portion of a fishing trip used to 
transport project specimens from the fishing grounds to the area. 
Rather than attempting to monitor the portion of a fishing trip that a 
vessel should be exempt from DAS while transporting specimens, fishing 
vessels having DAS allocations that participate in the project activity 
would be credited with 2 DAS to account for this time. Time away from 
port that is used exclusively for project activities within the 
experimental area or transiting to and from the area would also be 
exempted from the DAS requirements.

Classification

    Section 304(a)(1)(D)(ii) of the Magnuson Act requires that the 
regulations proposed by a Council be published within 15 days of the 
receipt of the amendment and regulations. At this time, NMFS has not 
determined that the amendment these rules would implement is consistent 
with the national standards, other provisions of the Magnuson Act, and 
other applicable law. NMFS, in making that determination, will take 
into account the information, views, and comments received during the 
comment period.
    This proposed rule has been determined to be significant for the 
purposes of E.O. 12866. This action raises a novel legal or policy 
issue arising out of a legal mandate under the Magnuson Act, in that it 
may be viewed as setting a precedent for establishing future 
aquaculture efforts in the exclusive economic zone.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration regarding the proposed rule as 
follows:

    I certify that this attached proposed rule issued under 
authority of section 304(a) of the Magnuson Fishery Conservation and 
Management Act will not have a significant economic impact on a 
substantial number of small entities. The proposed rule would 
establish a nine square mile site approximately twelve miles south 
of Martha's Vineyard as an experimental use area for 18 months. The 
area would be closed to fishing with mobile gear that might 
interfere with an experimental and demonstration project involving 
sea scallop research, enhancement and aquaculture to be conducted by 
scientific and technical experts in cooperation with fishermen.
    The proposed action will not have any significant effects on a 
substantial number of small entities because: (1) The few 
groundfish, sea scallop or lobster vessels that may have fished in 
the area with mobile gear would be able to redirect their effort to 
areas adjacent to the experimental area so that ex-vessel revenues 
for these vessels should not change, (2) no vessels are expected to 
cease operations as a result of the closure, and (3) compliance 
costs are not expected to change for any vessels. The total average 
annual revenues for groundfish in this area from 1985 through 1991 
were $6,000, the area is low in abundance of sea scallops, and 
limited pot fishing for lobsters will still be allowed in the area.

    The proposed rule contains one new collection-of-information 
requirement subject to the Paperwork Reduction Act (PRA). A request to 
collect this information has been submitted to OMB for approval. The 
public's reporting burden for the collection-of-information 
requirements includes the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection-of-information requirements.
    The new reporting requirement is: Sea Scallop Experimental Area 
authorization request, (0.5 hours/response).
    Send comments regarding burden estimates, or any other aspect of 
the data collection, including suggestions for reducing the burden, to 
NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to, a penalty for 
failure to comply with a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    An informal consultation under the Endangered Species Act was 
concluded for Amendment 5 to the FMP on August 2, 1996. As a result of 
the informal consultation, the Regional Director determined that 
fishing activities conducted under this rule are not likely to 
adversely affect endangered or threatened species or critical habitat.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 16, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec. 648.14, paragraph (a)(89) is added to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (89) Fish in or transit the Sea Scallop Experimental Area defined 
in

[[Page 49430]]

Sec. 648.56(a)(1), as described in Sec. 648.56(a)(2) and (a)(3).
* * * * *
    3. Section 648.56 is added to read as follows:


Sec. 648.56   Scallop research project.

    (a)(1) Sea scallop experimental area. From [insert date 30 days 
after date of publication of the final rule for this action through 
date 18 months after such date], no fishing vessel or person on a 
fishing vessel may fish in or transit the area known as the Sea Scallop 
Experimental Area, as defined by straight lines connecting the 
following points in the order stated, except as described in paragraphs 
(a)(2) and (a)(3) of this section:


                                                                        
                                                                        
                                                                        
Point                  Latitude                  Longitude              
                                                                        
1                      41 deg.11.8' N.           70 deg.50' W.          
2                      41 deg.11.8' N.           70 deg.46' W.          
3                      41 deg.08.8' N.           70 deg.46' W.          
4                      41 deg.08.8' N.           70 deg.50' W.          
                                                                        


    (2) Exemptions. A fishing vessel and persons on a fishing vessel 
may fish in the Sea Scallop Experimental Area:
    (i) With pot gear and traps, if such vessel has been issued an EFP 
under paragraph (a)(4)(i)(A) of this section;
    (ii) With longline gear, if such vessel has been issued an EFP 
under paragraph (a)(4)(i)(A) of this section;
    (iii) Fishing with handgear;
    (iv) With gear determined by the Regional Director not likely to 
interfere with a scallop aquaculture research project sponsored by 
NMFS, if such vessel has been issued an EFP under paragraph 
(a)(4)(i)(A) of this section; or
    (v) If such vessel has been issued an EFP under paragraph 
(a)(4)(i)(B) of this section to participate in the scallop aquaculture 
research project sponsored by NMFS.
    (3) Transiting. Vessels that are not exempted from the prohibition 
of fishing in the Sea Scallop Experimental Area under paragraph (a)(2) 
of this section may transit such area provided that their gear is 
stowed in accordance with the provisions of Sec. 648.81(e).
    (4) Experimental fishing permits. (i) The Regional Director may 
issue an EFP under the provisions of Sec. 648.12 to:
    (A) Any vessel to fish within the Sea Scallop Experimental Area 
with the gear specified in paragraph (a)(2)(i), (a)(2)(ii), and 
(a)(2)(iv) of this section. Vessels receiving EFPs may be required to 
move their gear within, or remove their gear from, the area upon 
notification by the Regional Director and must comply with any 
additional restrictions specified in the EFP.
    (B) Any vessel participating in the scallop aquaculture research 
project sponsored by NMFS to fish within the Sea Scallop Experimental 
Area, to use fishing gear that does not conform to the regulations, and 
to possess scallops when not fishing under a DAS allocation. The 
Regional Director may also restore up to 2 DAS, per year, to vessels 
collecting and transporting undersized scallops to the area. The 
Regional Director may exempt vessels from other regulatory provisions 
if the exemptions are necessary to project operations and consistent 
with paragraph (a)(4)(iii) of this section.
    (ii) A vessel with an EFP authorizing it to participate in the 
scallop aquaculture research project sponsored by NMFS or to use 
exempted gear in the Sea Scallop Experimental Area must carry the EFP 
on board the vessel.
    (iii) The Regional Director may not issue an EFP unless it is 
determined to be consistent with the objectives of the FMP, the 
provisions of the Magnuson Act, and other applicable law and that 
issuing the EFP will not:
    (A) Have a detrimental effect on the sea scallop resource and 
fishery;
    (B) Create significant enforcement problems; or
    (C) Have a detrimental effect on the scallop project.
    (5) Application. An application for an EFP for a vessel to fish 
within the Sea Scallop Experimental Area must be in writing to the 
Regional Director and be submitted at least 30 days before the desired 
effective date of the EFP. The application must include, but is not 
limited to, the following information:
    (i) The date of application.
    (ii) The applicant's name, current address, telephone number and 
fax number if applicable.
    (iii) The current vessel name, owner address, and telephone number.
    (iv) The vessel's Federal permit number.
    (v) The Coast Guard documentation number.
    (vi) The species (target and incidental) expected to be harvested.
    (vii) The gear type, size, buoy colors, trap identification 
markings and amount of gear that will be used; and exact time(s) 
fishing will take place in the Sea Scallop Experimental Area.
    (viii) The signature of the applicant.

[FR Doc. 96-24130 Filed 9-17-96; 1:00 pm]
BILLING CODE 3510-13-P