[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Proposed Rules]
[Pages 19409-19411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7448]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050325082-5082-01; I.D. 031705E]
RIN 0648-AS90


Fisheries of the Exclusive Economic Zone Off Alaska; License 
Limitation Program for the Scallop Fishery

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes regulations to implement Amendment 10 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMP), which 
would modify the gear endorsements under the license limitation program 
(LLP) for the scallop fishery. This action is necessary to allow 
increased participation by LLP license holders in the scallop fisheries 
off Alaska. This action is intended to promote the goals and objectives 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), the FMP, and other applicable laws.

DATES: Written comments on the proposed rule must be received on or 
before May 31, 2005.

ADDRESSES: Send comments to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
Attn: Lori Durall. Comments may be submitted by:
     E-mail: [email protected]. Include in the 
subject line of the e-mail the following document identifier: Scallop 
10 PR. E-mail comments, with or without attachments, are limited to 5 
megabytes.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Hand Delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
     Facsimile: 907-586-7557.
     Webform at the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
    Copies of Amendment 10 to the Scallop FMP, and the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) prepared for the amendment are available from 
NMFS at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, phone: 907-586-
7228 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The North Pacific Fishery Management Council 
(Council) prepared the FMP under the authority of the Magnuson-Stevens 
Act. Under the FMP, management of all aspects of the scallop fishery, 
except limited access, is delegated to the State of Alaska (State). 
Federal regulations governing the scallop fishery appear at 50 CFR 
parts 600 and 679. State regulations governing the scallop fishery 
appear in the Alaska Administrative Code (AAC) at 5 AAC Chapter 38--
Miscellaneous Shellfish.
    State regulations establish guideline harvest levels (GHL) for 
different scallop registration areas, fishing seasons, open and closed 
fishing areas, observer coverage requirements, bycatch limits, gear 
restrictions, and measures to limit processing efficiency (including a 
ban on the use of mechanical shucking machines and a limitation on crew 
size). The gear regulations limit vessels to using no more than two 15 
ft (4.5 m) dredges, except in State Scallop Registration Area H (Cook 
Inlet) where vessels are limited to using a single 6 ft (1.8 m) scallop 
dredge.
    The Council has submitted Amendment 10 for Secretarial review, and 
a Notice of Availability of the amendment was published on March 24, 
2005, with comments on the FMP amendment invited through May 23, 2005 
(70 FR 15063). Comments may address the FMP amendment, this proposed 
rule, or both, but must be received by May 23, 2005, to be considered 
in the approval/disapproval decision on the FMP amendment.
    Beginning in 2001, NMFS has required a Federal scallop LLP license 
on board any vessel deployed in the scallop fisheries in Federal waters 
off Alaska. The LLP was implemented through approval of Amendment 4 to 
the FMP by the Secretary on June 8, 2000, and the final rule 
implementing Amendment 4 was published December 14, 2000 (65 FR 78110). 
The LLP was established to limit harvesting capacity in the Federal 
scallop fishery off Alaska. NMFS issued a total of nine LLP licenses. 
Licenses were issued to holders of either Federal or State moratorium 
permits who used their permits to make legal landings of scallops in 
each of any two calendar years during the period beginning January 1, 
1996, through October 9, 1998. The licenses authorize their holders to 
catch and retain scallops in

[[Page 19410]]

all waters off Alaska that are open for scallop fishing.
    Two licenses were based on the legal landings of scallops harvested 
only from Cook Inlet during the qualifying period and therefore have a 
gear restriction endorsement that limits allowable gear to a single 6 
ft (1.8 m) dredge when fishing for scallops in any area. The other 
seven licenses, based on the legal landings of scallops harvested from 
areas outside Cook Inlet during the qualifying period, have no gear 
restriction endorsement, but are limited to two 15-ft (4.5 m) dredges 
under existing state regulations. The purpose of the gear restriction 
endorsement was to prevent expansion in overall fishing capacity by not 
allowing relatively small operations in Cook Inlet to increase their 
fishing capacity.
    Subsequent to LLP implementation, the Council has found that the 
gear restriction endorsement may create a disproportionate economic 
hardship for those LLP license holders restricted to 6 ft (1.8 m) 
dredges when they fish in Federal waters, especially in light of the 
State's observer requirements and their associated costs. In February 
2004, the Council developed a problem statement and four alternatives 
for analysis of modifying or eliminating the gear restriction for the 
two licenses affected by the gear restriction.
    In October 2004, the Council voted unanimously to recommend to the 
Secretary Amendment 10 to change the single 6 ft (1.8 m) dredge 
restriction endorsement in the scallop LLP to two dredges with a 
combined width of no more than 20 ft (6.1 m) restriction endorsement. 
This change would allow the two LLP license holders with the current 
gear endorsement to fish in Federal waters outside Cook Inlet with 
larger dredges. The Council recommended this change because it found 
that it is not economically viable for vessels to operate outside Cook 
Inlet with the existing gear restrictions.
    The Council also recognized that economic conditions of the scallop 
fleet had changed since the LLP was approved. The change resulted from 
the formation of a harvesting cooperative by a majority of the LLP 
holders. The harvesting cooperative provides harvesting efficiency to 
participants without an increase in fishing capacity. Efficiency gains 
are realized when harvesting cooperative participants retire excess 
fishing capacity while being assured that the entry of additional 
capacity is prevented by the LLP. Without the LLP, a harvesting 
cooperative was unlikely because any efficiency gains through 
cooperation could be easily eroded by unrestricted entry of new vessels 
to the fishery. Hence, concern about the expansion of overall fishing 
capacity no longer exists with the combined effects of the LLP and 
harvesting cooperatives.
    In discussing the difference among the alternatives, the Council 
noted that allowing two vessels the ability to use two 10-ft dredges 
would give them a much greater ability to cover the costs of carrying 
an observer in Federal waters outside Cook Inlet. Public testimony by a 
vessel owner with a restricted license indicated that the use of larger 
dredges would allow the vessel to adequately cover its operational 
costs with the additional costs for an observer in statewide waters. 
The Council discussed the issue of increasing capacity in the fishery 
by this proposed action, but acknowledged that licenses already are 
limited by vessel length, and the two vessels impacted by this proposed 
action are among the smallest in the fishery. The Council acknowledged 
that these vessels, by their size, are precluded from fishing in 
inclement weather and thus are limited in their harvesting ability. The 
fishery currently is prosecuted in a slower manner than before 2000, 
due to the combination of the LLP and the harvesting cooperative in the 
fishery. The Council discussed the relative impacts of increasing 
harvesting ability on the two licences which are not part of this 
harvesting cooperative. Due to the small size of the vessels used by 
the license holders, however, this change is not expected to impact the 
operation of the harvesting cooperative.
    Therefore, the Council concluded that while these two vessels could 
increase their capacity, they would not increase overall fishing effort 
to the extent that it would interfere with the total fleet's ability to 
operate at a sustainable and economically viable level. Amendment 10 
would provide the two vessels with a larger share of the total catch 
which would offset their observer costs and enhance their economic 
viability.

Classification

    At this time, NMFS has not determined that this proposed rule is 
consistent with the national standards of the Magnuson-Stevens Act and 
other applicable laws. In making that determination, NMFS will take 
into account the data, views, and comments received during the comment 
period (see DATES).
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an EA/RIR/IRFA for Amendment 10, which 
describes the management background, the purpose and need for action, 
the management alternatives, and the socio-economic impacts of the 
alternatives. It estimates the total number of small entities affected 
by this action, and analyzes the economic impact on those small 
entities as required by the Regulatory Flexibility Act. The IRFA 
describes the economic impacts this proposed rule, if adopted, would 
have on small entities. A summary of the IRFA follows.
    For purposes of the IRFA, the two LLP license holders, which 
currently are subject to the single 6 ft (1.8 m) dredge gear 
restriction, are the only small entities (i.e., each having annual 
gross receipts of less than $3.5 million) directly regulated by the 
proposed rule.
    The LLP impacted the two small entities that fished exclusively 
inside of Cook Inlet during the qualifying period by limiting the size 
of dredge either vessel could operate to a single 6 ft (1.8 m) dredge. 
The remaining seven LLP license holders may operate up to the State-
authorized gear limit of two 15 ft dredges (4.5 m). The Council 
recommended Amendment 10 because it found that it is not economically 
viable for the two LLP license holders to operate outside Cook Inlet 
(as authorized by authority of the LLP license) with the existing 6 ft 
(1.8 m) dredge gear restrictions. The Council determined that, given 
existing observer requirements and their associated costs, the single 6 
ft (1.8 m) dredge restriction created a disproportionate economic 
hardship when fishing in Federal waters outside Cook Inlet.
    The Council considered the following four alternatives that could 
reduce impacts on small entities.
    Alternative 1: This alternative would retain status quo and 
maintain the current 6 ft. (1.8 m) dredge restriction endorsement on 
two LLP licenses. This alternative was rejected because it would not 
solve the problem of disproportionate hardship being experienced by two 
LLP license holders that are restricted to using a single 6 ft. (1.8 m) 
dredge when fishing in Federal waters outside of Cook Inlet while other 
LLP license holders are limited to two 15 ft. (4.5 m) dredges.
    Alternative 2: This alternative would modify the 6 ft. (1.8 m) 
dredge restriction endorsement to allow vessels with the current 
endorsement to fish in Federal waters outside Cook Inlet with two 
dredges with a combined width of no more than 16 ft. This alternative 
was rejected because it did not provide enough relief to the two LLP 
license holders currently limited to using a single 6 ft. (1.8 m) 
dredge in Federal waters outside of Cook Inlet. This

[[Page 19411]]

alternative would allow slightly more than half of the fishing capacity 
of other scallop fishing operations outside of Cook Inlet.
    Alternative 3: This alternative is the preferred alternative. It 
would modify the current 6 ft. (1.8 m) dredge restriction to allow 
vessels with the current endorsement to fish in Federal waters outside 
Cook Inlet with two dredges with a combined width of no more than 20 ft 
(6.1 m). This alternative appeared to ideally balance the Council's 
original concern of limiting fishing capacity for scallops while 
allowing the two LLP license holders that are restricted to using a 
single 6 ft. (1.8 m) dredge to expand their production of scallops 
sufficiently to cover their costs and allow them to become competitive 
with other scallop fishing operations.
    Alternative 4: This alternative would eliminate the current 6-ft. 
(1.8 m) dredge restriction endorsement on the two LLP licenses. This 
alternative would allow the two LLP license holders that are restricted 
to using a single 6 ft. (1.8 m) dredge to expand their capacity to be 
equal to the current limit of two 15 ft. (4.5 m) dredges. This 
alternative was rejected because it is unnecessarily liberal.
    As proposed, Amendment 10 would change the single 6 ft (1.8 m) 
dredge restriction endorsement in the LLP to a restriction endorsement 
of two dredges with a combined width of no more than 20 feet (6.1 m). 
This change would allow the two LLP license holders with the current 
gear restriction endorsement the opportunity to fish in Federal waters, 
outside Cook Inlet, with larger gear. The Council also concluded that, 
because of changes to the fleet after the LLP was implemented, these 
two vessels could increase their capacity by using larger dredges 
without increasing fishing overall effort to the extent that it would 
interfere with the total fleet's ability to operate at a sustainable 
and economically viable level. Amendment 10 has the potential to 
provide these two vessels with an opportunity to capture a larger share 
of the total catch, thus allowing them to offset observer costs and 
enhance their income. Because of the maximum vessel length imposed on 
these vessels by the LLP license, neither operation has the potential 
to significantly impact the catch shares of the other operations in the 
fishery, so instability in the sector is not a serious concern 
associated with the proposed action. The most probable outcomes of 
implementing the preferred alternative would be some relatively modest 
redistribution of earnings to the two LLP license holders currently 
affected by the single 6 ft (1.8 m) dredge restriction.
    No known Federal rules duplicate, overlap, or conflict with the 
proposed rule.
    This proposed rule would impose no recordkeeping and reporting 
requirements on affected vessels.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: April 7, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For 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 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.  679.4, paragraph (g)(3)(ii) is revised to read as 
follows:


Sec.  679.4  Permits.

* * * * *
    (g) * * *
    (3) * * *
    (ii) The gear specified on a scallop license will be restricted to 
two dredges with a combined width of no more than 20 feet (6.1 m) in 
all areas if the eligible applicant was a moratorium permit holder with 
a Scallop Registration Area H (Cook Inlet) endorsement and did not make 
a legal landing of scallops caught outside Area H during the 
qualification period specified in paragraph (g)(2)(iii) of this 
section.
* * * * *
[FR Doc. 05-7448 Filed 4-12-05; 8:45 am]
BILLING CODE 3510-22-S