[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