[Federal Register Volume 63, Number 73 (Thursday, April 16, 1998)]
[Proposed Rules]
[Pages 18863-18866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10138]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR 679

[Docket No. 980402084-8084-01; I.D. 032398B]
RIN 0648-AJ51


Fisheries of the Exclusive Economic Zone Off Alaska; Scallop 
Fishery off Alaska; Amendment 3

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 3 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMP), which 
would delegate to the State of Alaska (State) the authority to manage 
all aspects of the scallop fishery, except limited access. This 
proposed rule would repeal all Federal regulations governing the 
scallop fishery off Alaska, except for the scallop vessel moratorium 
program. This action is necessary to eliminate duplicate regulations 
and management programs at the State and Federal levels if Amendment 3 
is approved and is intended to further the goals and objectives of the 
FMP.

DATES: Comments on the proposed rule must be received by June 1, 1998.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator for Sustainable Fisheries, Alaska Region, NMFS, P.O. Box 
21668, Juneau, AK 99802, Attn: Lori J. Gravel, or delivered to the 
Federal Building, 709 West 9th Street, Juneau, AK. Copies of the 
proposed FMP amendment and the Environmental Assessment/Regulatory 
Impact Review (EA/RIR) prepared for Amendment 3 are available from NMFS 
at the same address, or by calling the Alaska Region, NMFS, at 907-586-
7228.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or 
[email protected].

SUPPLEMENTARY INFORMATION: The scallop fishery off Alaska is managed by 
NMFS and the State under the FMP. The FMP was prepared by the North 
Pacific Fishery Management Council (Council) under the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). Federal 
regulations governing the scallop fishery appear at 50 CFR parts 600 
and 679. State regulations governing the scallop fishery appear in the 
Alaska

[[Page 18864]]

Administrative Code (AAC) at 5 AAC Chapter 38--Miscellaneous Shellfish.
    The Council has submitted Amendment 3 for Secretarial review, and a 
Notice of Availability of the amendment was published March 31, 1998 
(63 FR 15376) with comments on the FMP amendment invited through June 
1, 1998. Comments may address the FMP amendment, the proposed rule, or 
both, but must be received by June 1, 1998, to be considered in the 
approval/disapproval decision on the FMP amendment. All comments 
received by June 1, 1998, whether specifically directed to the FMP 
amendment or to the proposed rule, will be considered in the approval/
disapproval decision on the FMP amendment.

Management Background and Need for Action

    Historic Management of the Scallop Fishery
    The scallop resource off Alaska has been commercially exploited for 
over 30 years. Weathervane scallop stocks off Alaska were first 
commercially explored by a few vessels in 1967. The fishery grew 
rapidly over the next 2 years with about 19 vessels harvesting almost 2 
million lb (907.2 metric tons (mt)) of shucked meat. Since then, vessel 
participation and harvests have fluctuated greatly, but have remained 
below the peak participation and harvests experienced in the late 
1960's. Between 1969 and 1991, about 40 percent of the annual scallop 
harvest came from State waters. Since 1991, Alaska scallop harvests 
have increasingly occurred in Federal waters. In 1994, only 14 percent 
of the 1.2 million lb (544.3 mt) landed were harvested in State waters, 
with the remainder harvested in Federal waters. Prior to 1990, about 
two-thirds of the scallop harvest was taken off Kodiak Island and about 
one-third from the Yakutat area, with other areas making minor 
contributions to overall landings. The increased harvests in the 1990's 
occurred with new exploitation in the Bering Sea. The fishery has 
occurred almost exclusively in Federal waters in recent years, but some 
fishing in State waters occurs off Yakutat, Dutch Harbor, and Adak.
    Alaska scallop vessels average 90 to 110 ft (27.4 m-33.5 m) long 
and harvest scallops using dredges of standard design. Weathervane 
scallops are processed at sea by manual shucking, with only the meats 
(adductor muscles) retained. Scallops harvested in Cook Inlet are 
bagged and iced, whereas scallops harvested from other areas of Alaska 
are generally block frozen at sea.
    Between 1968 and 1995, the State, through the Alaska Department of 
Fish and Game (ADF&G), managed the scallop fishery in State and Federal 
waters off Alaska. Under the Magnuson-Stevens Act, the State may 
regulate any fishing vessel outside State waters if the vessel is 
registered under the laws of the State. Prior to 1995, all vessels 
participating in the Alaska scallop fishery were registered under the 
laws of the State. In the 1980s, the Council concluded that the State's 
scallop management program provided sufficient conservation and 
management of the Alaska scallop resource and did not need to be 
duplicated by Federal regulation.
    Initial Federal Involvement in the Fishery
    By 1992, fishery participants and management agencies developed 
growing concerns about overcapitalization and overexploitation in the 
scallop fishery. The Council was presented with information indicating 
that the stocks of weathervane scallops were fully exploited and any 
increase in effort could be detrimental to the stocks. Information 
indicated that dramatic changes in age composition had occurred after 
the fishing-up period (1980-90), with commensurate declines in harvest. 
In the early 1990s, many fishermen abandoned historical fishing areas 
and searched for new areas to maintain catch levels. Increased numbers 
of small scallops were reported. These events raised concerns because 
scallops are highly susceptible to overfishing and boom/bust cycles 
worldwide.
    The need to limit access was the primary motivation for the Council 
to begin consideration of Federal management of the scallop fishery in 
1992. The Council believed that Federal action was necessary because 
existing State statutes precluded a State vessel moratorium and, at 
that time, the State did not have authority under the Magnuson-Stevens 
Act to limit access in Federal waters. The Council began analysis of a 
variety of options for Federal management of the scallop fishery in 
Federal waters off Alaska, and a vessel moratorium was proposed as an 
essential element of a Federal management regime to stabilize the size 
and capitalization of the scallop fleet while the Council considered 
permanent limited entry alternatives for the fishery. In September 
1993, the Council tentatively identified its preferred alternative of a 
Federal FMP for the scallop fishery-- a Federal vessel moratorium and 
shared management authority with the State. A draft FMP and analysis 
were released to the public in November 1993.
    In April 1994, the Council and its advisory bodies reviewed the 
draft FMP, received public testimony, and approved the draft FMP for 
the scallop fishery, which would establish a vessel moratorium and 
defer most other routine management measures to the State. Under the 
draft FMP, non-limited access measures were deferred to the State based 
on the premise that all vessels fishing for scallops in the Federal 
waters off Alaska would also be registered with the State. The Council 
recognized the potential problem of unregistered vessels fishing in 
Federal waters, but noted that all vessels fishing for scallops in 
Federal waters were registered in Alaska and that no information was 
available to indicate that vessels would not continue to register with 
the State.
    Unregulated Fishing and the Closure of Federal Waters
    During the time NMFS was developing regulations to implement the 
Council's proposed FMP, a vessel that had canceled its State 
registration began fishing for scallops in Federal waters in the Prince 
William Sound Registration Area. These waters had been previously 
closed by the ADF&G to fishing by State-registered vessels because the 
guideline harvest level of 50,000 lb (22.7 mt) of shucked meats had 
already been taken. Because the vessel was outside State jurisdiction, 
the ADF&G was unable to stop this uncontrolled fishing activity. The 
U.S. Coast Guard boarded the vessel in question and was informed that 
54,000 lb (24.5 mt) of shucked scallop meat were on board. This amount, 
combined with the 50,000 lb (22.7 mt) of shucked meats that had already 
been taken by State-registered vessels meant that the State's guideline 
harvest level for the Prince William Sound Registration Area was 
exceeded by over 100 percent. On February 17, 1995, the Council held an 
emergency teleconference to address concerns about uncontrolled fishing 
for scallops in Federal waters by vessels fishing outside the 
jurisdiction of State regulations and requested that NMFS implement an 
emergency rule to close Federal waters to fishing for scallops to 
prevent overfishing of the scallop stocks. NMFS approved the Council's 
request and closed Federal waters off Alaska to fishing for scallops by 
emergency rule on February 23, 1995 (60 FR 11054, March 1, 1995).
    After the unregulated fishing event that warranted the emergency 
interim rule, the Council and NMFS determined that the Council's draft 
FMP was no longer an appropriate option for the

[[Page 18865]]

management of the scallop fishery in Federal waters. As a result, the 
draft FMP was not submitted for review by the Secretary of Commerce. To 
respond to the need for Federal management of the scallop fishery once 
the emergency rule expired, the Council prepared a second FMP for the 
scallop fishery, which was subsequently approved by NMFS on July 26, 
1995. The only management measure authorized and implemented under the 
FMP was an interim closure of Federal waters off Alaska to fishing for 
scallops for 1 year (60 FR 42070, August 15, 1995). The purpose of the 
interim closure was to prevent uncontrolled fishing for scallops in 
Federal waters while a Federal scallop management program was 
developed. The Council recommended this approach because it determined 
that the suite of alternative management measures necessary to support 
a controlled fishery for scallops in Federal waters could not be 
prepared, reviewed, and implemented before the emergency rule expired.
    Amendment 1: State-Federal Management Regime
    During 1995, the Council prepared Amendment 1 to the FMP to replace 
the interim closure with a joint State-Federal management regime. 
Amendment 1 was approved by NMFS on July 10, 1996. Federal waters were 
re-opened to fishing for scallops on August 1, 1996. Amendment 1 
established a joint State-Federal management regime under which NMFS 
implemented Federal scallop regulations that duplicate most State 
scallop regulations, including definitions of scallop registration 
areas and districts, scallop fishing seasons, closed waters, gear 
restrictions, efficiency limits, crab bycatch limits, scallop catch 
limits, inseason adjustments, and observer coverage requirements. This 
joint State-Federal management regime was designed as a temporary 
measure to prevent unregulated fishing in Federal waters until changes 
in the Magnuson-Stevens Act would enable the Council to delegate 
management of the fishery to the State.
    Amendment 2: Vessel Moratorium
    On March 5, 1997, NMFS approved Amendment 2 to the FMP, which 
established a moratorium on the entry of new vessels into the scallop 
fishery in Federal waters off Alaska. A final rule implementing the 
vessel moratorium was published on April 11, 1997 (62 FR 17749). The 
moratorium runs from July 1, 1997, through June 30, 2000, or until 
repealed or replaced by a permanent limited access program. Eighteen 
vessels qualify for moratorium permits under the Federal vessel 
moratorium.
    Problems with the Current Management Regime
    While the joint State-Federal management regime established under 
Amendment 1 has enabled NMFS to reopen the EEZ to fishing for scallops, 
it has proven to be cumbersome in practice. Every management action, 
including inseason openings and closures, must be coordinated so that 
State and Federal actions are simultaneously effective. NMFS must draft 
and publish in the Federal Register inseason actions that duplicate 
every State inseason scallop action. State scallop managers are now 
constrained in their ability to implement rapidly management decisions 
because they must coordinate each action with NMFS and provide 
sufficient lead-time for publication of the action in the Federal 
Register.
    The only purpose of maintaining duplicate regulations at the State 
and Federal level is to prevent unregulated fishing by vessels not 
registered under the laws of the State. The State-Federal management 
regime established under Amendment 1 is no longer necessary to prevent 
unregulated fishing for scallops in Federal waters because the 
Sustainable Fisheries Act of 1996, which amended the Magnuson-Stevens 
Act, now provides authority for the Council to delegate to the State 
management responsibility for the scallop fishery in Federal waters off 
Alaska.

Regulatory Changes Proposed Under Amendment 3

    In December 1997, the Council adopted Amendment 3 to the FMP by a 
10 to 1 vote. Amendment 3 would delegate to the State the authority to 
manage all aspects of the scallop fishery in Federal waters, except 
limited access, including the authority to regulate vessels not 
registered under the laws of the State. Section 306(a)(3)(B) of the 
Magnuson-Stevens Act, as amended, requires that such a delegation of 
authority be made through an FMP amendment and be approved by a three-
quarters majority vote of the Council.
    The proposed rule to implement Amendment 3 would remove subpart F 
of 50 CFR part 679. Subpart F contains all the Federal regulations 
specific to the scallop fishery off Alaska, with the exception of the 
scallop vessel moratorium program, which is set out under permit 
requirements at 50 CFR 679.4(g). The Federal scallop vessel moratorium 
program established under Amendment 2 to the FMP would not be affected 
by the proposed rule. These changes would simplify scallop management 
in the Federal waters off Alaska by eliminating the unnecessary 
duplication of regulations at the State and Federal levels.
    The proposed rule would also make minor changes to 50 CFR 679.1(h) 
to accommodate the delegation of management authority to the State and 
would add a definition of Scallop Registration Area H (Cook Inlet) to 
the definitions at 50 CFR 679.2 because this definition is necessary 
for the scallop vessel moratorium program.

Statutory Requirements for Delegation of Authority to a State

    Section 306(a)(3) of the Magnuson-Stevens Act provides:
    (3) A State may regulate a fishing vessel outside the boundaries 
of the State in the following circumstances:
    (A) The fishing vessel is registered under the law of that 
State, and (i) there is no fishery management plan or other 
applicable Federal fishing regulations for the fishery in which the 
vessel is operating; or (ii) the State's laws and regulations are 
consistent with the fishery management plan and applicable Federal 
fishing regulations for the fishery in which the vessel is 
operating.
    (B) The fishery management plan for the fishery in which the 
fishing vessel is operating delegates management of the fishery to a 
State and the State's laws and regulations are consistent with such 
fishery management plan. If at any time the Secretary [of Commerce] 
determines that a State law or regulation applicable to a fishing 
vessel under this circumstance is not consistent with the fishery 
management plan, the Secretary shall promptly notify the State and 
the appropriate Council of such determination and provide an 
opportunity for the State to correct any inconsistencies identified 
in the notification. If, after notice and opportunity for corrective 
action, the State does not correct the inconsistencies identified by 
the Secretary, the authority granted to the State under this 
subparagraph shall not apply until the Secretary and the appropriate 
Council find that the State has corrected the inconsistencies. For a 
fishery for which there was a fishery management plan in place on 
August 1, 1996[,] that did not delegate management of the fishery to 
a State as of that date, the authority provided by this subparagraph 
applies only if the Council approves the delegation of management of 
the fishery to the State by a three-quarters majority vote of the 
voting members of the Council.
    (C) The fishing vessel is not registered under the law of the 
State of Alaska and is operating in a fishery in the exclusive 
economic zone off Alaska for which there was no fishery management 
plan in place on August 1, 1996, and the Secretary and the North 
Pacific Council find that there is a legitimate interest of the 
State of Alaska in the conservation and management of such fishery. 
The authority provided under this subparagraph shall terminate when 
a fishery

[[Page 18866]]

management plan under this Act is approved and implemented for such 
fishery.

    Paragraph (3)(B) applies to the scallop fishery off Alaska because 
the FMP was approved by the Secretary on July 26, 1995, with the 
closure of Federal waters to fishing for scallops as the sole 
management measure.

Classification

    At this time, NMFS has not determined that Amendment 3 is 
consistent with the national standards, other provisions of the 
Magnuson-Stevens Act, and other applicable laws. NMFS, in making that 
determination, will take into account the data, views, and comments 
received during the comment period.
    An RIR was prepared for this proposed rule that describes the 
management background, the purpose and need for action, the management 
action alternatives, and the social impacts of the alternatives. The 
RIR also estimates the total number of small entities affected by this 
action and analyzes the economic impact on those small entities. As a 
result of this analysis, 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 that this 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities as follows:

    The proposed rule would not have a significant economic impact 
on a substantial number of small entities. A substantial number of 
small entities would be affected by implementation of this rule, 
namely all 18 scallop vessels eligible to fish in Federal waters 
under the Federal vessel moratorium. However, the proposed rule 
would not have a significant economic impact on these affected small 
entities. Compared to the status quo, the proposed action only 
eliminates duplicative Federal regulations. The fishery would 
continue to be governed under existing State scallop regulations. 
All vessels currently participating in the fishery are registered 
with the State and subject to these State regulations at present. 
Consequently, none of the participants in the fishery would face a 
meaningful regulatory change compared to the status quo. For this 
reason, the proposed action would not change annual gross revenues 
by more than 5 percent, total costs of production by more than 5 
percent, compliance costs for small entities by at least 10 percent 
compared with compliance costs as a percent of sales for large 
entities, and would not force any small entities out of business. In 
addition, participation in the fishery would continue to be governed 
by the existing Federal moratorium program. No new vessels would be 
allowed to enter the fishery and no existing vessels would be 
eliminated. As a result, a regulatory flexibility analysis was not 
prepared.

    This proposed rule has been determined to be not significant for 
the purposes of E.O. 12866.
    The Administrator, Alaska Region, NMFS determined that fishing 
activities conducted under this rule would not affect endangered and 
threatened species listed or critical habitat designated pursuant to 
the Endangered Species Act in any manner not considered in prior 
consultations on the scallop fisheries off Alaska.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 9, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

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

    1. The authority citation for 50 CFR part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 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 the United States (see subpart 
A of this part).
    (2) State of Alaska laws and regulations that are consistent with 
the FMP and with the regulations in this part apply to vessels of the 
United States that are fishing for scallops in the Federal waters off 
Alaska.
* * * * *
    3. In Sec. 679.2, a definition ``Scallop Registration Area H Cook 
Inlet'' is added, in alphabetical order, to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Scallop Registration Area H (Cook Inlet) means all Federal waters 
of the GOA west of the longitude of Cape Fairfield (148 deg.50' W. 
long.) and north of the latitude of Cape Douglas (58 deg.52' N. lat.).
* * * * *
    4. In Sec. 679.3, paragraph (g) is added to read as follows:


Sec. 679.3  Relation to other laws.

* * * * *
    (g) Scallops. Additional regulations governing conservation and 
management of scallops off Alaska are contained in Alaska Statutes A.S. 
16 and Alaska Administrative Code at 5 AAC Chapter 38.


Sec. Sec. 679.60-679.65   (subpart F) [Removed and Reserved]

    5. Sections 679.60-679.65, subpart F, are removed and reserved.
[FR Doc. 98-10138 Filed 4-15-98; 8:45 am]
BILLING CODE 3510-22-F