[Federal Register Volume 70, Number 131 (Monday, July 11, 2005)]
[Rules and Regulations]
[Pages 39664-39666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13588]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 050325082-5165-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 10 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMP), which 
modifies 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: Effective on August 10, 2005.

ADDRESSES: Copies of Amendment 10 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for this action may be obtained from the NMFS Alaska 
Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall, and on the 
Alaska Region, NMFS, website at http://www.fakr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Gretchen Harrington, 907-586-7228.

SUPPLEMENTARY INFORMATION: Notice of availability for Amendment 10 was

[[Page 39665]]

published on March 24, 2005 (70 FR 15063), with comments on the FMP 
amendment invited through May 23, 2005. NMFS published a proposed rule 
to implement Amendment 10 on April 13, 2005 (70 FR 19409) which 
solicited public comments through May 31, 2005. Please refer to the 
notice of availability and the proposed rule for additional information 
on Amendment 10. The Secretary of Commerce approved Amendment 10 to the 
FMP on June 22, 2005.
    Under the LLP, two licenses based on the legal landings of scallops 
harvested only from Cook Inlet during the qualifying period had a gear 
restriction endorsement that limited allowable gear to a single 6-foot 
(1.8 m) dredge when fishing for scallops in any area. The seven 
remaining 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-foot (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.
    Amendment 10 and this action change the dredge restriction 
endorsement from a single 6-foot (1.8 m) dredge to two dredges with a 
combined width of no more than 20 feet (6.1 m). This change would allow 
two LLP license holders, who have been restricted to the smaller dredge 
size, to fish in Federal waters outside Cook Inlet with larger dredges. 
The North Pacific Fishery Management Council (Council) concluded, 
because of changes to the fleet after the LLP was implemented, that 
these two vessels could increase their fishing capacity by using larger 
dredges without increasing fishing effort to the extent that it would 
interfere with the total fleet's ability to operate at a sustainable 
and economically viable level.

Response to Comments

    NMFS received 3 letters of public comment on Amendment 10 (March 
24, 2005, 70 FR 15063) and the proposed rule (April 13, 2005; 70 FR 
19409). These comments are summarized and responded to below. NMFS made 
no changes to the final rule in response to public comments.
    Comment 1: This rule is environmentally reckless because it causes 
overfishing and scallop dredges damage the environment.
    Response: The rule will not cause overfishing of scallops and does 
not change the amount of scallops the fleet is allowed to catch. 
Amendment 7 to the scallop FMP established criteria for determining 
when the scallop fishery is overfished and when overfishing is 
occurring. Managers prevent overfishing by setting the annual guideline 
harvest ranges below the overfishing threshold. Additionally, current 
scallop abundance levels are above the threshold levels for determining 
whether scallops are overfished.
    The impact of scallop dredges on essential fish habitat in the 
waters off Alaska has been determined to be minimal and temporary, 
based on the analysis in the Environmental Impact Statement for 
Essential Fish Habitat Identification and Conservation in Alaska 
(available on the Alaska Region, NMFS, website at http://www.fakr.noaa.gov/habitat/seis/efheis.htm). The analysis considered the 
total area impacted by scallop dredges and the extent to which scallop 
dredges impact different habitat types. The habitat impacts of the 
scallop fishery will not change due to this regulatory change because 
the rule does not increase the amount of scallops harvested, increase 
harvest intensity, or change the location or timing of the fishery. 
Therefore, the proposed action will have no effect on essential fish 
habitat.
    Comment 2: Economic hardships of participants in the scallop 
fishery should not outweigh the environmental interests of the American 
public.
    Response: In recommending Amendment 10, the Council determined, 
because of changes to the fleet after the LLP was implemented, the two 
vessels could increase their capacity by using larger dredges without 
increasing fishing effort to the extent that it would interfere with 
the total fleet's ability to operate at a sustainable and economically 
viable level. The Secretary of Commerce agrees with this determination. 
This determination was based, in part, on an analysis of potential 
environmental and economic impacts of this action which is presented in 
the EA/RIR/FRFA (see ADDRESSES). As discussed in the EA/RIR/IRFA and 
the response to Comment 1 (above), this rule will not impact the 
environment. Thus, this action, which alleviates the economic hardships 
imposed by the LLP gear restrictions on two LLP holders, is not 
contrary to the environmental interests of the American public.
    Comment 3: This regulation seemingly contravenes the dual Magnuson-
Stevens Act goals of utilization and conservation. Provide a clear 
statement as to how this regulation serves both to conserve the fishery 
(which is held to be more important than its utilization) and how it 
complies with National Standard 5 of the Magnuson-Stevens Act.
    Response: National Standard 5 states that conservation and 
management measures shall, where practicable, consider efficiency in 
the utilization of fishery resources; except that no such measure shall 
have economic allocation as its sole purpose. National Standard 5 
guidelines recognize management measures minimizing the use of economic 
inputs to harvest the resource increase efficiency. In turn, increased 
efficiency itself is considered a conservation objective, when 
``conservation'' constitutes wise use of all resources involved in the 
fishery, not just fish stocks.
    This rule partially relieves a gear restriction imposed by the LLP 
and corrects an inequity imposed by the gear restriction on two LLP 
holders. The rule is designed to improve the fishing efficiency and 
economic viability of two LLP license holders by allowing them to use 
larger dredges than they would be allowed to use without this rule. 
Hence, the potential overall efficiency of the fishery is marginally 
increased by allowing two LLP license holders to harvest scallops using 
larger, more efficient dredges without substantially decreasing the 
efficiency of all other LLP license holders. This action will not 
diminish either the ability to biologically conserve the scallop 
resource or the ability of the scallop fishery to achieve optimum 
yield. Rather, it may enhance achievement of biological and social 
objectives of the FMP by providing for more equitable sharing of 
compliance costs and provide greater ability to consider and adopt 
further conservation measures that might otherwise have been 
economically unfeasible for the fishery as a whole. Therefore, economic 
allocation is not the sole purpose or potential outcome of this action 
while economic efficiency of the fishery overall is marginally enhanced 
by this action.

Classification

    NMFS has determined that this final rule is consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. In making that determination, NMFS took into account the data, 
views, and comments received during the comment period.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an EA/RIR/FRFA for Amendment 10 (see 
ADDRESSES), which describes the

[[Page 39666]]

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 FRFA describes the economic impacts 
this final rule would have on small entities. A summary of the FRFA 
follows.
    NMFS received no comments on the IRFA and no changes were made to 
the final rule from the proposed rule.
    This rule directly regulates two small entities (i.e., each having 
annual gross receipts of less than $3.5 million). The two small 
entities are two LLP license holders that have been restricted to using 
a single 6-foot (1.8 m) dredge by the gear endorsement on their LLP.
    This rule changes the single 6-foot (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). The purpose of 
Amendment 10 is to relieve a gear restriction adopted under the LLP 
that placed a disproportionately heavy burden of complying with 
fisheries conservation measures (such as observer coverage) on a few 
participants in the fishery, while maintaining the existing overall 
stability within the scallop fishery. This change will allow the two 
affected LLP license holders the opportunity to fish in Federal waters, 
outside Cook Inlet, with larger gear. The Council concluded that, 
because of changes to the fleet after the LLP was implemented, these 
two vessels could increase their fishing capacity by using larger 
dredges without increasing 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. This rule provides the two 
affected LLP license holders with an opportunity to capture a larger 
share of the total catch than they would be able to catch otherwise, 
thus allowing them to offset observer costs and enhance their income. 
Because the LLP imposes a maximum vessel length restriction on the 
vessels used by the affected LLP license holders, neither operation has 
the potential to significantly impact the catch shares of the other 
operations in the fishery, so economic instability in the scallop 
fishing industry is not a serious concern. One outcome of implementing 
the rule is a relatively modest redistribution of earnings and a 
redeployment of effort from the fleet to the two affected LLP license 
holders. More importantly, Amendment 10 increases the potential overall 
efficiency of the fishery by allowing two LLP license holders to 
harvest scallops using larger, more efficient dredges.
    The Council considered the following alternatives to minimize 
economic impacts of the LLP on small entities.
    Alternative 1: This alternative would retain status quo and 
maintain the 6-foot (1.8 m) dredge restriction endorsement on two LLP 
licenses.
    Alternative 2: This alternative would modify the 6-foot (1.8 m) 
dredge restriction endorsement to allow LLP licenses with this 
endorsement to be used in Federal waters outside Cook Inlet with two 
dredges with a combined width of no more that 16 feet (4.9 m).
    Alternative 3: This alternative, the preferred alternative, would 
modify the 6-foot (1.8 m) dredge restriction endorsement to allow LLP 
licenses with this endorsement to be used in Federal waters outside 
Cook Inlet with two dredges with a combined width of no more than 20 
feet (6.1 m).
    Alternative 4: This alternative would eliminate the 6-foot (1.8 m) 
dredge restriction endorsement on the two LLP licenses.
    The preferred alternative (Alternative 3) most effectively achieves 
the objectives of the action, while minimizing the potential adverse 
effects on small entities. That is, none of the other available 
alternatives place a smaller burden on directly regulated small 
entities, while fully achieving the Council's and FMP's objectives for 
this action.
    No known Federal rules duplicate, overlap, or conflict with the 
rule.
    This rule would impose no recordkeeping and reporting requirements 
on affected vessels.

Small Entity Compliance Guide

    NMFS will send new LLP licenses with the new gear restriction 
endorsement to the two LLP license holders directly regulated by the 
rule as soon as possible after the effective date of the rule. No 
additional compliance requirements are associated with this rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: July 5, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, 50 CFR part 679 is amended as 
follows:

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

0
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.

0
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. 05-13588 Filed 7-8-05; 8:45 am]
BILLING CODE 3510-22-S