Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Proposed Rules 18863

central processing unit used to perform

the search added to the computer

operator’s salary cost (hourly rate plus

16 percent) equals two hours of the

computer operator’s salary costs (hourly

rate plus 16 percent).

(b) A fee is not to be charged for any

time spent searching for a record

requested under subpart C of this part

if the records are not for commercial use

and the requestor is a representative of

the news media, an educational

institution whose purpose is scholarly

research, or a non-commercial scientific

institution whose purpose is scientific

research.

(c) A fee is not to be charged for

duplication of the first 100 pages

(standard paper, not larger than 8.5×14

inches) of records provided to any

requestor in response to a request under

subpart C of this part unless the records

are requested for commercial use.

(d) A fee is not to be charged to any

requestor under subpart C of this part to

determine whether a record is exempt

from mandatory disclosure unless the

record is requested for commercial use.

A review charge may not be charged

except with respect to an initial review

to determine the applicability of a

particular exemption to a particular

record or portion of a record. A review

charge may not be assessed for review

at the administrative appeal level. When

records or portions of records withheld

in full under an exemption that is

subsequently determined not to apply

are reviewed again to determine the

applicability of other exemptions not

previously considered, this is

considered an initial review for

purposes of assessing a review charge.

(e) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that disclosure of

the information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

government and is not primarily in the

commercial interest of the requestor.

(f) Factors to be considered by DOT

officials authorized to determine

whether a waiver or reduction of fees

will be granted include:

(1) Whether the subject matter of the

requested records concerns the

operations or activities of the Federal

government;

(2) Whether the disclosure is likely to

contribute to an understanding of

Federal government operations or

activities;

(3) Whether disclosure of the

requested information will contribute to

the understanding of the public at large,

as opposed to the individual

understanding of the requestor or a

narrow segment of interested persons;

(4) Whether the contribution to public

understanding of Federal government

operations or activities will be

significant;

(5) Whether the requestor has a

commercial interest that would be

furthered by the requested disclosure;

and

(6) Whether the magnitude of any

identified commercial interest to the

requestor is sufficiently large in

comparison with the public interest in

disclosure that disclosure is primarily in

the commercial interest of the requestor.

(g) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that the request

concerns records related to the death of

an immediate family member who was,

at the time of death, a DOT employee or

a member of the Coast Guard.

(h) Documents will be furnished

without charge or at a reduced charge if

the official having initial denial

authority determines that the request is

by the victim of a crime who seeks the

record of the trial or court-martial at

which the requestor testified.

§ 7.45 Transcripts.

Transcripts of hearings or oral

arguments are available for inspection.

Where transcripts are prepared by a

nongovernmental contractor, and the

contract permits DOT to handle the

reproduction of further copies, § 7.43

applies. Where the contract for

transcription services reserves the sales

privilege to the reporting service, any

duplicate copies must be purchased

directly from the reporting service.

§ 7.46 Alternative sources of information.

In the interest of making documents

of general interest publicly available at

as low a cost as possible, alternative

sources will be arranged whenever

possible. In appropriate instances,

material that is published and offered

for sale may be obtained from the

Superintendent of Documents, U.S.

Government Printing Office,

Washington, DC 20402; U.S. Department

of Commerce’s National Technical

Information Service (NTIS), Springfield,

Virginia 22151; or National AudioVisual Center, National Archives and

Records Administration, Capital

Heights, MD 20743–3701.

Issued in Washington, DC, on March 26,

1998.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 98–10044 Filed 4–15–98; 8:45 am]

BILLING CODE 4910–62–M

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.

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

kent.lind@noaa.gov.

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
18864 Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Proposed Rules

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 MagnusonStevens 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
Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Proposed Rules 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 StateFederal 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 threequarters 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
18866 Federal Register / Vol. 63, No. 73 /Thursday, April 16, 1998 / Proposed Rules

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 MagnusonStevens 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 § 679.1, paragraph (h) is revised

to read as follows:

§ 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 § 679.2, a definition ‘‘Scallop

Registration Area H Cook Inlet’’ is

added, in alphabetical order, to read as

follows:

§ 679.2 Definitions.

* * * * *

Scallop Registration Area H (Cook

Inlet) means all Federal waters of the

GOA west of the longitude of Cape

Fairfield (148°50’ W. long.) and north of

the latitude of Cape Douglas (58°52’ N.

lat.).

* * * * *

4. In § 679.3, paragraph (g) is added to

read as follows:

§ 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.

§ § 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