[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Rules and Regulations]
[Pages 1829-1832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-872]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 960910252-6329-02; 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: Final rule.

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[[Page 1830]]

SUMMARY: NMFS issues this final rule to implement Amendment 5 to the 
Fishery Management Plan for the Atlantic Sea Scallop Fishery (FMP). The 
final rule closes a 9 mi\2\ (23.31 km\2\) site to transiting and 
fishing with other than hand gear for an 18-month period to allow for 
the conduct of a NMFS-sponsored sea scallop aquaculture research 
project, provides for exemptions from the closure for vessels using 
certain gear types and for vessels participating in the project, and 
provides for temporary exemptions for vessels participating in the 
project from certain fishing regulations that might inhibit or prevent 
their performing any activity necessary for project operations. The 
intended effect of this action is to support the aquaculture research 
project and prevent conflicts between fishing gear and project 
equipment for the limited duration of the project.

EFFECTIVE DATE: February 13, 1997 through July 15, 1998.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR), 
the initial regulatory flexibility analysis contained within the RIR, 
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.
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to 
Dr. Andrew A. Rosenberg, Regional Administrator, 1 Blackburn Drive, 
Gloucester, MA 01930, and the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502 
(Attention: NOAA Desk Officer).

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

SUPPLEMENTARY INFORMATION: Amendment 5 to the FMP was prepared by the 
New England Fishery Management Council (Council). A notice of 
availability for the amendment when it was proposed, was published on 
August 29, 1996 (61 FR 45395), and a proposed rule to implement it was 
published on September 20, 1996 (61 FR 49428). Details of this action 
were described in the preamble to the proposed rule and are not 
repeated here.

Approved Management Measures

    This final rule establishes a 9 mi\2\ (23.31 km\2\) area closure 
approximately 12 mi (22.22 km) southwest of the island of Martha's 
Vineyard, MA (hereinafter called the Sea Scallop Experimental Area), to 
transiting and fishing with other than handgear for an 18-month period 
to allow for the conduct of a NMFS-sponsored (Saltonstall-Kennedy (NOAA 
Award NA 66FD0027)) sea scallop aquaculture research project and 
provides for exemptions from the closure for vessels using certain gear 
types and for vessels participating in the project.
    Additionally, this final rule provides the Regional Administrator 
(RA) with authority to temporarily exempt a vessel participating in the 
project from any specific Federal fishing regulation which inhibits or 
prevents the vessel from performing any activity necessary for project 
operations, such as regulations prohibiting the use of nonconforming 
fishing gear or the possession of scallops when not fishing under a DAS 
allocation.
    This action prohibits fishing other than with handgear within the 
Sea Scallop Experimental Area for 18 months. However, fishing with gear 
other than gillnet and mobile, i.e., trawls and dredges such as lobster 
pots, longline, and any other gear determined by the RA as not likely 
to interfere with the research project, will be allowed in the area 
pursuant to an Allowable Gear Permit (AGP) issued by the RA. This 
permit requirement will enable the RA to inform vessel operators of the 
location of the research equipment and avoid potential conflicts 
between fishery and project activities. Fishers authorized to fish in 
the Sea Scallop Experimental Area under an AGP may also be required 
periodically to remove their gear or may be required to set their gear 
a certain minimum distance from research project activities. At least 2 
weeks notice will be provided to vessel operators of any requirement to 
relocate fishing gear.
    All vessels will be allowed to transit the area at any time, 
provided their fishing gear is properly stowed.
    Vessels participating in the project will be allowed to fish within 
and transit the Sea Scallop Experimental Area pursuant to an EFP issued 
by the RA. Such EFP may exempt such vessel from specific Federal 
fishing regulations which may inhibit or prevent that vessel from 
performing any activity necessary for project operations such as 
regulations prohibiting the use of non-conforming fishing gear or the 
possession of scallops when not fishing under a DAS allocation. Vessels 
issued an EFP are exempt from DAS requirements for any trip transiting 
to and from, and conducted exclusively within, the Sea Scallop 
Experimental Area, and for the portion of any trip used to transport 
sea scallops from the fishing grounds to the area. The EFP also may 
allocate and authorize the use of up to 2 additional DAS for the 
collection of sea scallops from the fishing grounds for transportation 
to the Sea Scallop Experimental Area. Vessels issued an EFP must comply 
with all conditions and restrictions specified in the permit.

Comments and Responses

    Written comments were received from one individual.
    Comment: The commenter expressed concern about lobster gear that is 
typically fished in a portion of the Sea Scallop Experimental Area for 
about 6 months per year, and whether the project managers will be able 
to work around lobster gear during the research project period.
    Response: The Regional Administrator will issue AGPs to lobster pot 
vessels interested in fishing within the Sea Scallop Experimental Area. 
Lobster fishers may be required to remove their gear periodically or 
may be required to set fishing gear a certain minimum distance from 
research project activities. The AGP program provides a means by which 
to communicate the dates and specific locations of project equipment 
and activities to those who are fishing in the area. At least 2 weeks 
notice will be provided prior to activities that would require removal 
of fishing gear. A minimum of 4 weeks notice will be provided in the 
event that more than 25 percent of the closed area is involved. NMFS 
will continue to stress to the principal NOAA grant investigators for 
the project that communication between fishers and project managers be 
maintained for the duration of the project to prevent conflicts.

Changes From the Proposed Rule

    Changes were made to Sec. 648.56(a) to clarify which permits are 
required for vessels participating in the sea scallop aquaculture 
research project or fishing within the Sea Scallop Experimental Area, 
but not participating in the project. Editorial simplifications and 
clarifications were made throughout the rule.

Classification

    The Regional Administrator determined that this final rule is 
necessary for the conservation and management of the Atlantic sea 
scallop fishery and that it is consistent with the Magnuson-Stevens Act 
Fishery Conservation and Management Act (Magnuson-Stevens Act) and 
other applicable law.

[[Page 1831]]

    This final rule has been determined to be significant for the 
purposes of E.O. 12866. The action raises a novel legal or policy issue 
arising out of a legal mandate under the Magnuson-Stevens Act, in that 
it may be viewed as setting a precedent for establishing other 
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 when this rule was proposed that it 
would not have a significant economic impact on a substantial number of 
small entities. The comment received and the changes made to the rule 
do not change the basis for that certification. Accordingly, a 
regulatory flexibility analysis was not prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number.
    This rule contains one new collection-of-information requirement 
subject to the PRA. This collection-of-information requirement has been 
approved by OMB, and the OMB control number and public reporting burden 
are listed as follows: Sea Scallop Experimental Area authorization 
request, (0.5 hours/response) under OMB Control Number 0648-0321.
    The estimated response time includes the time needed for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection-of-information. Send comments regarding this burden 
estimate, or any other aspect of the collection-of-information to NMFS 
and OMB (see ADDRESSES).
    NMFS reinitiated consultation on the Atlantic Sea Scallop FMP on 
October 7, 1996. This consultation will consider new information 
concerning the status of the northern right whale. The Regional 
Administrator has determined that the implementation of Amendment 5, 
pending completion of that consultation, will not result in any 
irreversible or irretrievable commitment of resources that would have 
the effect of foreclosing the formulation or implementation of any 
reasonable and prudent alternative measures.

List of Subjects

15 CFR Part 909

    Reporting and recordkeeping requirements.

50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 8, 1997.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 15 CFR chapter IX and 50 
CFR chapter VI are amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:
    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, in paragraph (b), the table is amended by adding, 
in numerical order, the following entry to read as follows:

Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                             Current OMB
                                                               control  
    CFR part or section where the information collection     number (all
                   requirement is located                      numbers  
                                                              begin with
                                                                0648-)  
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         *        *        *        *        *        *        *        
50 CFR                                                                  
                                                                        
                  *        *        *        *        *                 
648.56.....................................................        -0321
                                                                        
                  *        *        *        *        *                 
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50 CFR CHAPTER VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    4. In Sec. 648.14, paragraph (a)(96) is added to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (96 ) Fish within or transit, with other than handgear, the Scallop 
Experimental Area defined in Sec. 648.56(a)(1), except as provided for 
in Sec. 648.56 (a)(2) and (a)(3).
* * * * *
    5. Section 648.56 is added to subpart D to read as follows:


Sec. 648.56  Scallop research project.

    (a)(1) Scallop experimental area. From February 13, 1997 through 
July 15, 1998, no fishing vessel or person on a fishing vessel may fish 
within or transit, with other than handgear, the area known as the Sea 
Scallop Experimental Area, as defined by straight lines connecting the 
following points in the order stated, except as provided for in 
paragraphs (a)(2) and (a)(3) of this section:

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             Point                     Latitude            Longitude    
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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 within or transit the Sea Scallop Experimental Area:
    (i) With pot gear and traps, longline gear, or any other gear, 
provided such pot gear and traps, longline gear, or other gear is 
determined by the Regional Director as not likely to interfere with the 
sea scallop aquaculture research project in the Sea Scallop 
Experimental Area, and provided such vessel has been issued an allowed 
gear permit (AGP) under paragraph (a)(4)(i) of this section; or
    (ii) If such vessel has been issued an experimental fishing permit 
(EFP) under paragraph (a)(4)(i) of this section to participate in the 
sea scallop aquaculture research project in the Sea Scallop 
Experimental Area.
    (3) Transiting. Vessels that are not exempted from the prohibition 
against fishing within or transiting the Sea Scallop Experimental Area 
under paragraph (a)(2) of this section may transit such area provided 
their gear is stowed in accordance with the provisions of 
Sec. 648.81(e).
    (4) Allowed gear and experimental fishing permits--(i) Allowed gear 
permits. The Regional Director may issue an AGP to any vessel to fish 
within and transit the Sea Scallop Experimental Area with the gear 
specified in paragraphs (a)(2)(i) of this section. Vessels issued an 
AGP 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 conditions and restrictions specified in the 
permit.

[[Page 1832]]

    (ii) Experimental fishing permits. The Regional Director may issue 
an EFP under the provisions of Sec. 648.12, if consistent with the 
provisions of paragraph (a)(4)(iv) of this section, to any vessel 
participating in the sea scallop aquaculture research project to fish 
within and transit the Sea Scallop Experimental Area. Such an EFP may 
exempt such vessel from specific Federal fishing regulations which may 
inhibit or prevent that vessel from performing any activity necessary 
for project operations such as regulations prohibiting the use of non-
conforming fishing gear or the possession of scallops when not fishing 
under a DAS allocation. Vessels issued an EFP shall be exempted from 
DAS requirements as specified in the FMP for any trip in which the 
vessel engages exclusively in project activities such as bottom 
surveying, biological sampling, or use of non-regulated hand gear 
outside the Sea Scallop Experimental Area. The EFP also may allocate 
and authorize the use of up to 2 additional DAS for project activities 
relating to scallop seeding. Vessels issued an EFP must comply with all 
conditions and restrictions specified in the permit.
    (iii) A vessel with an AGP or EFP must carry the permit on board 
the vessel while fishing in the Sea Scallop Experimental Area or 
participating in the scallop aquaculture project.
    (iv) The Regional Director may not issue an AGP or EFP unless he 
determines that issuance is consistent with the objectives of the FMP, 
the provisions of the Magnuson-Stevens Act, and other applicable law 
and 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 AGP or EFP must be in 
writing to the Regional Director and be submitted at least 30 days 
before the desired effective date of the permit. 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 USCG 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.
    (b) [Reserved]

[FR Doc. 97-872 Filed 1-13-97; 8:45 am]
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