[Federal Register Volume 63, Number 137 (Friday, July 17, 1998)]
[Rules and Regulations]
[Pages 38501-38502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19115]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980402084-8166-02; 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: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 3 to the 
Fishery Management Plan for the Scallop Fishery off Alaska (FMP), which 
delegates to the State of Alaska (State) the authority to manage all 
aspects of the scallop fishery, except limited access. This final rule 
repeals all Federal regulations governing the scallop fishery off 
Alaska, except for the scallop vessel moratorium program. This action 
is necessary to eliminate duplicative regulations and management 
programs at the State and Federal levels and is intended to further the 
goals and objectives of the FMP.

DATES: Effective July 14, 1998.
ADDRESSES: Copies of Amendment 3 and the Environmental Assessment/
Regulatory Impact Review (EA/RIR) prepared for Amendment 3 are 
available from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK 
99802, Attn: Lori J. Gravel, or by calling the Alaska Region, NMFS, at 
907-586-7228.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228 or 
<a href="/cdn-cgi/l/email-protection#3358565d471d5f5a5d57735d5c52521d545c45"><span class="__cf_email__" data-cfemail="0c6769627822606562684c62636d6d226b637a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: NMFS and the State of Alaska manage the 
scallop fishery off Alaska pursuant to the FMP. The North Pacific 
Fishery Management Council (Council) prepared the FMP pursuant to 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 Administrative Code (AAC) at 5 AAC Chapter 
38--Miscellaneous Shellfish.
    The Council submitted Amendment 3 for Secretarial review on March 
26, 1998, 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. NMFS published a proposed rule to 
implement Amendment 3 on April 16, 1998 (63 FR 18863), with comments on 
the proposed rule invited until June 1. No comments were received on 
the FMP amendment or the proposed rule by the end of the comment 
periods.
    Based on a review of the FMP amendment, proposed rule, EA/RIR, and 
applicable State laws, the Administrator, Alaska Region, NMFS, 
determined that Amendment 3 is necessary for the conservation and 
management of the scallop fishery off Alaska and that it is consistent 
with the Magnuson-Stevens Act and other applicable laws.

Management Background and Need for Action

    The history of the scallop fishery off Alaska and the events 
leading up to the development of the joint State-Federal management 
regime under Amendment 1 to the FMP are discussed in detail in the 
proposed rule (63 FR 18863, April 16, 1998) and in the EA/RIR prepared 
for this action (see ADDRESSES). 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.
    While the joint State-Federal management regime established under 
Amendment 1 has enabled NMFS to reopen the Exclusive Economic Zone 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 
management decisions rapidly 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. The statutory requirements for delegation of fisheries 
management

[[Page 38502]]

authority to a state were presented in the preamble to the proposed 
rule (63 FR 18863, April 16, 1998).

Repeal of Federal Scallop Regulations Under Amendment 3

    Amendment 3, adopted by the Council by a 10 to 1 vote, delegates 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.
    This final rule to implement Amendment 3 removes 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 June 26, 1998, Sec. 679.4(g). Amendment 3 and this final rule change 
the Federal scallop vessel moratorium program established under 
Amendment 2 to the FMP by simplifying scallop management in the Federal 
waters off Alaska through the elimination of unnecessary duplication of 
regulations at the State and Federal levels.
    This final rule also makes minor changes to Sec. 679.1(h) to 
accommodate the delegation of management authority to the State and 
adds a definition of Scallop Registration Area H (Cook Inlet) to the 
definitions at Sec. 679.2 because this definition, previously set out 
in subpart F, is necessary for the scallop vessel moratorium program.

Changes Made From the Proposed Rule

    This final rule removes definitions for ``Dive'' and ``Scallop 
dredge'' under the definition of ``Authorized fishing gear'' at 
Sec. 679.2 because these definitions are no longer required. In 
addition, the final rule eliminates cross references to scallop 
regulations at Sec. 679.7(h) and Sec. 679.22(g). No additional changes 
were made from the proposed rule.

Classification

    This action repeals duplicative Federal regulations that serve no 
Federal management purpose and have the potential to confuse the 
regulated community. In addition, this action does not significantly 
revise management measures for the regulated community in a manner that 
would require time to plan or prepare for those revisions. For these 
reasons, the Assistant Administrator for Fisheries, NOAA, finds that 
good cause exists to waive the 30-day delayed effectiveness period for 
this action under 5 U.S.C. 553(d).
    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 rule would not have a 
significant economic impact on a substantial number of small entities. 
No comments were received regarding this certification. As a result, a 
regulatory flexibility analysis was not prepared.
    This final 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: July 13, 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 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, the definition of ``Authorized fishing gear,'' is 
amended by revising the introductory paragraph, removing the paragraphs 
(1) Dive and (11) Scallop dredge, and renumbering paragraphs (2) 
through (10) and (12) through (14) as paragraphs (1) through (12), 
respectively; and a definition ``Scallop Registration Area H Cook 
Inlet'' is added, in alphabetical order, to read as follows:


Sec. 679.2  Definitions.

* * * * *
    Authorized fishing gear means, fixed gear, hook-and-line, jig, 
longline, longline pot, nonpelagic trawl, nontrawl, pelagic trawl, pot-
and-line, trawl, hand troll gear, and power troll gear:
* * * * *
    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. 679.7  [Amended]

    5. In Sec. 679.7, paragraph (h) is removed and paragraph (i) is 
redesignated as paragraph (h).


Sec. 679.22  [Amended]

    6. In Sec. 679.22, paragraph (g) is removed and reserved.


Secs. 679.60-679.65 (Subpart F)  [Removed]

    7. Subpart F, consisting of Secs.  679.60-679.65, is removed.
[FR Doc. 98-19115 Filed 7-14-98; 1:45 pm]
BILLING CODE 3510-22-F


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