24822 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules

(4) Vehicles—Waivers would be

limited to the operation of Group C

vehicles, as defined in 49 CFR 383.91,

provided that the vehicle operated has

a GVWR of less than 10,001 pounds.

(5) Area—Waivers would be granted

to operate the vehicles described above

within a 300-mile radius from the

driver’s work reporting location.

Neighboring States may recognize such

waivers provided the driver and the

vehicle are operating within the 300-

mile radius.

(6) Convictions—Waivers would only

be granted to drivers who have not been

convicted of a ‘‘serious traffic violation’’

as defined in 49 CFR 383.5, in any type

of motor vehicle during the preceding

12 month period.

The Petitioner claims that the

conditions and restrictions imposed on

the grant of waiver authority will ensure

that the safe operation of CMVs is not

diminished. Drivers participating in the

waiver program would be part-time nonprofessional drivers, operating vehicles

that would not be considered CMVs

except for the nature of the cargo. These

drivers would be required to have a

good driving record and would be

licensed, knowledgeable and trained in

the handling of the hazardous materials

to be carried. It also appears that the

waiver restrictions related to driver

documentation, duration, and area of

operation (mileage) will ensure that

implementation, regulation and

enforcement of the waivers’

requirements by the States is not unduly

burdensome. Moreover, the final

decision on whether to implement a

waiver program will rest with the States.

Request for Public Comment

The FHWA is requesting specific

views, information, and data that it

should consider when determining

whether or not the proposed waiver

would be contrary to the public interest

or would diminish the safe operation of

CMVs. Commenters are strongly

encouraged to provide any additional

facts or views pertaining to the

proposed waiver.

(Title XII of Pub. L. 99–570, 100 Stat. 3207–

170; 49 U.S.C. 31502; 49 U.S.C. 31136; 49

CFR 1.48; 49 CFR 383.7; 23 U.S.C. 315)

Issued on: May 4, 1995.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 95–11469 Filed 5–9–95; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 673

[Docket No. 950428123-5123-01; I.D.

042595A]

RIN 0648–AIOO

Scallop Fishery off Alaska; Closure of

Federal Waters to Protect Scallop

Stocks

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 a Fishery Management Plan

for the Scallop Fishery Off Alaska

(FMP). The FMP would specify the

long-term optimum yield (OY) for the

scallop fishery in Federal waters off

Alaska as a numerical range of 0–1.1

million lbs (0–499 metric tons (mt)) of

shucked scallop meats. The only

management measure authorized under

the FMP would be an interim closure of

Federal waters off Alaska to fishing for

scallops. The closure of Federal waters

would remain effective for up to 1 year

and is necessary to prevent overfishing

of scallop stocks during the period of

time an alternative FMP is prepared that

would allow the controlled harvest of

scallops in Federal waters. This action

is intended to promote the objective of

preventing overfishing of the scallop

resource that could otherwise result

from unregulated fishing for scallops in

Federal waters.

DATES: Comments must be received by

June 19, 1995.

ADDRESSES: Comments must be sent to

Ronald J. Berg, Chief, Fisheries

Management Division, Alaska Region,

NMFS, 709 West 9th Street, Juneau, AK

99801, or P.O. Box 21668, Juneau, AK

99802, Attention: Lori J. Gravel. Copies

of the proposed FMP and the

Environmental Assessment/Regulatory

Impact Review/Initial Regulatory

Flexibility Analysis (EA/RIR/IRFA)

prepared for the FMP may be obtained

from the same address.

FOR FURTHER INFORMATION CONTACT:

Susan Salveson, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

The scallop resource off Alaska has

been commercially exploited for almost

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 lbs (907 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 harvests came from waters of the

State of Alaska (State). Since 1991,

Alaska scallop harvests have

increasingly occurred in Federal waters.

In 1994, only 14 percent of the 1.2

million lbs (544 mt) landed were

harvested in State waters, with the

remainder harvested in Federal waters

off Alaska.

The State has managed the scallop

fishery in State and Federal waters,

consistent with section 306(a)(3) of the

Magnuson Fishery Conservation and

Management Act (16 U.S.C. 1801 et seq.)

(Magnuson Act), which indicates that a

state may regulate any fishing vessel

outside state waters, if the vessel is

registered under the laws of that state.

The North Pacific Fishery Management

Council (Council) had until recently

concluded that the scallop management

program implemented by the State

provided sufficient conservation and

management of the Alaska scallop

resource and did not need to be

duplicated by direct Federal regulation.

Therefore, no Federal regulations were

implemented to govern the scallop

fishery in Federal waters.

The Council currently is considering

options for an FMP for the scallop

fishery off Alaska that would authorize

a moratorium on vessel entry into the

fishery. A vessel moratorium cannot be

implemented under Alaska State

regulations given existing State statutes.

At its April, 1994, meeting, the Council

requested NMFS initiate rulemaking to

implement an FMP for the scallop

fishery off Alaska that would establish

a vessel moratorium and defer most

other routine management measures to

the State. The Council was informed

that section 306(a)(3) of the Magnuson

Act prohibits a state from regulating a

fishing vessel in Federal waters, unless

the vessel is registered under the laws

of that state. As a result, routine

management measures deferred to the

State under the Council’s proposed FMP

could not be applied in Federal waters

to vessels not 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 under the laws of

the State. Therefore, the Council

recommended that NMFS proceed with
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules 24823

implementing the Council’s proposed

FMP, given that all vessels used to fish

for scallops off Alaska had been

registered with the State and that no

information was available to indicate

that vessels would not continue to

register with the State.

During the period of time that NMFS

was developing regulations to

implement the Council’s proposed FMP,

the State informed NMFS that a fishing

vessel was fishing for scallops in

Federal waters of the Prince William

Sound management area closed by the

State, and that the vessel was not

registered under the laws of the State.

As a result, the vessel operator was not

subject to State regulations governing

the scallop fishery, including

requirements to carry an observer at all

times to monitor scallop catch and crab

bycatch. The State could not stop this

uncontrolled fishing activity because

the vessel was not registered with the

State and was, therefore, operating

outside the State’s regulatory authority.

On February 17, 1995, the Council

held a teleconference to address

concerns about uncontrolled fishing for

scallops in Federal waters by one or

more vessels fishing beyond the reach 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. Subsequent to the

Council’s recommendation, the U.S.

Coast Guard boarded an unregistered

vessel fishing for scallops and was

informed that 54,000 lbs (24.5 mt) of

shucked scallop meat was on board.

This amount exceeded the State’s

guideline harvest level for the Prince

William Sound area (50,000 lbs (22.7

mt)) by over 100 percent. NMFS issued

an emergency interim rule to close

Federal waters off Alaska to fishing for

scallops on February 23, 1995 (60 FR

11054, March 1, 1995), to respond to

concerns that continued uncontrolled

harvest of scallops in Federal waters

would result in localized overfishing of

the scallop resource.

Based on recent events in the scallop

fishery that warranted the emergency

interim rule, the Council’s proposed

FMP no longer is an appropriate option

for the management of the scallop

fishery in Federal waters. Recent

participation in the scallop fishery by at

least one unregistered vessel,

contemplation by other vessel owners of

fishing in Federal waters outside State

regulations governing the scallop

fishery, and the likelihood that

uncontrolled fishing for scallops could

occur anywhere off Alaska by the highly

mobile scallop processor fleet now

requires that Federal regulations be

implemented to control scallop fishing

activity by vessels that do not register

with the State.

At its April 1995 meeting, the Council

adopted for submission to NMFS an

alternative FMP for the Scallop Fishery

off Alaska with the intent that this FMP

could be reviewed and implemented

before the anticipated 90-day extension

of the emergency interim rule expires on

August 28, 1995. The FMP would

authorize an interim closure of Federal

waters to fishing for scallops that would

continue until the earlier of 1 year or the

issuance of a superseding management

regime. The intent of the FMP is to

prevent an unregulated and

uncontrolled fishery for scallops in

Federal waters that could result in

overfishing of scallop stocks during the

period of time an amendment to the

FMP is prepared to authorize fishing for

scallops under a Federal management

regime. The Council has pursued this

approach because it has 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 expires. Instead, the FMP was

prepared to protect the long-term

productivity of scallops stocks off

Alaska necessary to support the future

harvest of OY on a continuing basis

without the ‘‘boom and bust’’ syndrome

that has occurred historically in many

other scallop fisheries.

A historical description of the scallop

fishery off Alaska, as well as harvest

amounts and the number of vessels

annually participating in the fishery, is

presented in the FMP (see ADDRESSES).

The following discussion presents a

summary of the FMP and the

management measure proposed to meet

its objective, as well as preliminary

determinations about the consistency of

the FMP with the seven national

standards for fishery conservation and

management set forth in section 301(a)

of the Magnuson Act.

Management Area and Fishery

The management area covered under

the FMP includes all Federal waters of

the Gulf of Alaska (GOA) and the Bering

Sea and Aleutian Islands area (BSAI).

The GOA is defined as the exclusive

economic zone (EEZ) of the North

Pacific Ocean, exclusive of the Bering

Sea, between the eastern Aleutian

Islands at 170° W. long. and Dixon

Entrance at 132°40′ W. long. The BSAI

is defined as the EEZ south of the Bering

Strait to the Alaska Peninsula and

Aleutian Islands and extending south of

the Aleutian Islands west of 170° W.

long.

All commercial fisheries for Alaska

scallops take place in relatively shallow

waters (less than 200 meters (109

fathoms)) of the Continental Shelf.

Areas fished during the 1994 scallop

fishery included beds in the Bering Sea,

off the Alaska Peninsula, in Shelikof

Strait, on the east side of Kodiak Island,

and along the GOA coast from Yakutat

to Kayak Island.

In both the GOA and BSAI, scallops

are part of a diverse benthic community.

Besides scallops, several other species

of invertebrates are commercially

harvested off Alaska, including clams,

crabs, octopus, squid, and shrimp. In

addition to these fisheries, large

fisheries for groundfish also exist using

pot, longline, jig, and trawl gear.

The weathervane scallop

(Patinopecten caurinus) is the primary

commercial scallop species harvested

off Alaska and is distributed from Point

Reyes, California, to the Pribilof Islands,

Alaska. Although the weathervane

scallop has been the principal

commercial species, several other

species of scallop found in Federal

waters off Alaska have commercial

potential. These scallops, thought to be

closely related to the Icelandic scallops

(Chlamys islandica) of the North

Atlantic, grow to smaller sizes than

weathervanes, and thus have not been

extensively exploited in Alaska.

Chlamys behringiana inhabit the

Chukchi Sea to the Western Bering Sea.

Chlamys albida are distributed from the

Bering Sea and Aleutian Islands to the

Japan Sea. Pink scallops, Chlamys

rubida, range from California to the

Pribilof Islands. Spiny scallops,

Chlamys hastata, are found in coastal

regions from California to the Gulf of

Alaska. Rock scallops, Crassadoma

gigantea, range from Mexico to

Unalaska Island. The abundance of this

species is not known, and a commercial

fishery has never been developed.

Scallop Biology and Resource

Management

A description of the general life cycle

of weathervane scallops is presented in

the FMP and the EA prepared for the

FMP. Scallops spawn in May to July,

depending on location. Larvae are

pelagic and drift for about 1 month until

metamorphosis to the juvenile stage.

The ‘‘post-larvae’’ settle and attach to a

hard surface on the bottom with strings

called ‘‘byssal threads.’’ Young juveniles

may remain attached, or they may

become mobile by use of a ‘‘foot,’’ or

they may swim. Within a few months

the shell develops pigmentation, and

juveniles then resemble the adult in

appearance.
24824 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules

Weathervane scallops mature by age 3

at about 7.6 cm (3 inches) in shell

height, and virtually all scallops are

mature by age 4. Weathervane scallops

are long-lived and may reach an age of

28 years or more. The natural mortality

rate (M) is thought to be low, although

estimates vary. Based on a 28-year

maximum life span, M is estimated to be

0.16.

The stock structure of weathervane

scallops has not been studied. Contrary

to traditional assumptions about benthic

invertebrates generally being ‘‘open’’

populations that are well-connected

through the dispersion of pelagic larvae

by ocean currents, recent evidence

suggests that the scallop resource may

consist of multiple, discrete, selfsustaining populations that should be

viewed as separate stock units for

management purposes. Additional study

will be required to explore this concept

relative to the scallop resources off

Alaska.

Only limited information on

biological productivity is available for

weathervane scallops; such information

is important to provide for the

conservation of stocks and a sustainable

yield in the fishery. Much of this

information was collected during the

early years of the fishery; the only

assessment survey since 1972 was

conducted in 1984 in lower Cook Inlet.

In addition to a lack of good abundance

estimates, no routine biological or

fishery sampling programs have been

conducted on weathervane scallops.

Data collected by a new observer

program, instituted by the State in July,

1993, may provide better abundance

information. The distribution of scallops

in Alaskan waters is rather well-known,

but insufficient information on

abundance, exploitation rates,

recruitment, and other key population

dynamics parameters hampers fishery

management based on population

dynamics.

State Management of the Scallop

Fishery

The Alaska Department of Fish and

Game (ADF&G) initiated development of

a management plan for the scallop

fishery in response to overfishing

concerns resulting from recent changes

in the weathervane scallop fishery off

Alaska. Weathervane scallops possess

biological traits (e.g., longevity, low

natural mortality rate, and variable

recruitment) that render them

vulnerable to overfishing. Record

landings occurred in the late 1960’s

(about 1.8 million lb (816 mt) shucked

scallop meat), followed by a significant

decline in catch through the 1970’s and

1980’s when landed catch ranged

between 0.2 and 0.9 million lbs (91–408

mt). The ADF&G believes this decline is

due, in part, to reduced abundance of

scallop stocks. Landings since 1989

have increased to near record levels.

During this period, the number of

vessels fishing for scallops has not

increased (about 10–15 vessels

annually), although an increase in

fishing power is evidenced by a

substantial increase in average vessel

length (from 84 ft (25.6 m) registered

length in 1981 to 110 ft (33.5 m) in

1991), a predominance of full-time

scallop vessels, and an increased

number of deliveries. Until 1993, the

State did not have a data collection

program, although some indication

exists that overfishing, or at least

localized depletion, may have occurred.

Data voluntarily submitted by

participants in the scallop fishery

during the early 1990’s showed that an

increase in meat counts per pound has

occurred, indicating that smaller

scallops now account for a greater

proportion of the harvest. These data

also suggest that catch per unit of effort

in traditional fishing grounds has

decreased.

Limited age data suggest that the

scallop stock historically exploited off

west Kodiak Island experienced an agestructure shift from predominately age 7

and older scallops in the late 1960’s to

an age structure dominated by scallops

less than age 6 during the early 1970’s.

This shift indicated that harvest

amounts had exceeded sustainable

levels. Changes in fleet distribution

from historical fishing grounds

primarily in State waters to previously

unfished grounds in Federal waters

compounded management concerns.

In response to these concerns, the

ADF&G implemented a management

plan for the scallop fishery in 1993–94,

which established a total of nine fishery

registration areas corresponding to the

Southeastern, Yakutat, Prince William

Sound, Cook Inlet, Kodiak, Alaska

Peninsula, Dutch Harbor, Adak, and

Bering Sea portions of the State. To

prevent overfishing and maintain

reproductive potential of scallop stocks,

ADF&G established a guideline harvest

range (GHR) for each of the traditional

weathervane scallop fishing areas. In the

absence of biomass estimates needed to

implement an exploitation rate harvest

strategy, the upper limit of the GHR is

specified as the long-term productivity

(catch) from each of the traditional

harvest areas.

If a GHR for a registration area is not

specified, ADF&G would authorize

fishing for weathervane or other scallop

species under special use permits that

generally include location and duration

of harvests, gear limitations and other

harvest procedures, periodic reporting

or logbook requirements, requirements

for onboard observers, and scallop catch

or crab bycatch limits.

The ADF&G also has implemented

king and Tanner crab bycatch limits to

constrain the mortality of Tanner crab

and king crab incidentally taken by

scallop dredge gear. Generally, crab

limits are set at 1 percent of total crab

population for those management areas

where crab stocks are healthy enough to

support a commercial fishery. In areas

closed to commercial fishing for crab,

the crab bycatch limits for the scallop

fishery are set at 0.5 percent of the total

crab population.

Specified waters are closed to fishing

for scallops to prevent scallop dredging

in biologically critical habitat areas,

such as locations of high bycatch of crab

or nursery areas for young fish and

shellfish. State regulations also require

each vessel to carry an observer at all

times to provide timely data for

monitoring scallop catches relative to

GHRs and for monitoring crab bycatch.

Observers also collect scientific data on

scallop catch rates, size distribution,

and age composition. This information

is required by ADF&G for potential

adjustment of GHRs based on changes in

stock status and productivity.

Last, ADF&G regulations establish

gear specifications to minimize the

catch of undersized scallops and

efficiency controls to reduce the

economic feasibility of harvesting

scallops much smaller than sizes

associated with OY. Current efficiency

controls include a ban on automatic

shucking machines and a crew limit of

12 persons.

Management Objective of the FMP

The objective of the FMP is to prevent

localized overfishing of scallop stocks

and protect the long-term productivity

of the resource to allow for the

achievement of OY on a continuing

basis. This objective is based on the

premise that uncontrolled fishing for

scallops in Federal waters could result

in irreversible damage to the resource’s

ability to recover in a reasonable period

of time. Fishing on a stock at a level that

severely compromises that stock’s future

productivity is counter to the goals of

the Magnuson Act and seriously

jeopardizes the opportunity to harvest

OY on a continuing basis under a future

management regime that would

authorize a regulated fishery for scallops

in Federal waters. Conservative

management of the scallop resource is

warranted given (1) unprecedented

scallop fishing operations in Federal

waters outside State jurisdiction and not
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules 24825

subject to State regulation, (2) the

harvesting and processing capacity of

the scallop fleet, which, if allowed to

fish unregulated in Federal waters,

could exceed State harvest guidelines by

several orders of magnitude, (3)

inadequate data on stock status and

biology, and (4) the vulnerability of the

scallop resource to localized depletion.

Optimum Yield (OY)

Under the Magnuson Act guidelines

for FMPs (50 CFR part 602), the most

important limitation on the

specification of OY is that the choice of

OY and the conservation and

management measures proposed to

achieve it must prevent overfishing. The

determination of OY requires a

specification of maximum sustainable

yield (MSY). However, biomass

estimates for scallops are lacking, and

the continuing exploratory nature of this

fishery into new areas makes numerical

estimation of MSY for weathervane and

other scallop species not possible at this

time. NMFS recognizes that cases exist

where the specification of MSY may

either be impossible or irrelevant. This

may be due to lack of assessment data,

or because biological resiliency or high

fecundity of some stocks or other fishery

characteristic may allow OY to become

a descriptive statement only, making a

numerical calculation of MSY

unnecessary. Nonetheless, the OY still

should be based on the best scientific

information available (50 CFR

602.10(f)(4)(v)).

Instead of specifying OY as a fishing

rate or constant catch level, the longterm OY specification for the scallop

resource in Federal waters off Alaska

(all species) is specified as a numerical

range. In the absence of biomass

estimates needed to implement an

exploitation rate harvest strategy, the

OY is specified as the long-term

productivity. The OY range proposed is

0 to 1,100,000 lb (0–499 mt) of shucked

scallop meats, and is derived from

historical catches harvested from

Federal waters. The low end of the

range is the lowest catch on record (zero

pounds in 1978). The high end of the

OY approximates the highest catch

taken from Federal waters since the

‘‘fishing up’’ period (1,087,450 lb (493.3

mt) in 1993). During the period of time

Federal waters are closed to fishing for

scallops under the FMP, OY would be

equal to zero for the same reasons that

support the closure (see ‘‘Management

measures,’’ below).

Overfishing Level

Overfishing is a level of fishing

mortality that jeopardizes the long-term

capacity of a stock or stock complex to

produce MSY on a continuing basis.

The definition of overfishing for a stock

or stock complex may be expressed in

terms of maximum level of fishing

mortality or other measurable standard

designed to ensure the maintenance of

the stock’s productive capacity.

Overfishing must be defined in a way to

enable the Council and NMFS to

monitor and evaluate the condition of

the stock or stock complex relative to

the definition. Overfishing definitions

must be based on the best scientific

information available and reflect

appropriate consideration of risk. Risk

assessments should take into account

uncertainties in estimating harvest

levels, stock conditions, or the effects of

environmental factors.

The lack of biological information on

Alaska scallops inhibits the numerical

specification of overfishing. Although it

is difficult to define precisely the level

at which fishing jeopardizes recovery of

a stock, indicators of existing or

impending overfishing are available that

should be heeded. For the reasons

discussed above that led to the current

ADF&G scallop management program,

harvest levels of scallops off Alaska in

the 1980’s and early 1990’s may not be

sustainable. This concern, as well as

other uncertainties about the scallop

biomass and stock dynamics, must be

taken into account in developing an

overfishing definition. Although

overfishing could be defined as a fishing

mortality rate for weathervane scallops

based on existing life history data, the

lack of stock assessment information

(surveys, population age, or size

structure) limits the use of an

overfishing rate at this time. As in the

case of other stocks where very little

biological information is available,

overfishing can be defined as landings

that exceed OY. As data collected from

the fisheries and/or assessment surveys

of the scallop resource are analyzed,

overfishing for scallops may be defined

on a fishing mortality rate basis. Until

better information becomes available,

overfishing is defined as landings that

exceed OY.

Management Measures

To control fishing effort and avoid

overfishing of scallop stocks, the only

management measure authorized under

the proposed FMP would be an interim

closure of Federal waters off Alaska to

fishing for scallops. Such a closure

would protect the scallop resource from

unregulated fishing and localized

overfishing while more long-term

measures are prepared that are expected

to allow for controlled harvesting of

scallops in Federal waters. An interim

closure of Federal waters is a necessary

and appropriate interim measure for the

protection and promotion of the longterm health of the scallop resource.

Such action is expected to promote the

stability of the scallop fishery under an

anticipated future FMP or FMP

amendment authorizing fishing for

scallops in Federal waters. An interim

closure of Federal waters to prevent an

unregulated fishery also would mitigate

any potentially adverse impact crab

bycatch in the scallop fishery may have

on either crab stocks or their habitat off

Alaska.

Given that NMFS intends the interim

closure to be superseded by a long-term

FMP or FMP amendment, the closure

would be effective until either (1) a date

1 year from the date the regulations

implementing the FMP become

effective, or (2) the measures in this

FMP are superseded by a future FMP or

FMP amendment that contains

management measures to allow the

controlled harvest of scallops in Federal

waters without overfishing.

Data Collection and Assessment

NMFS and other management

agencies should initiate efforts to

identify and gather the data needed to

improve understanding of the dynamics

of the scallop resource and the effect of

exploitation on the capacity of scallop

stocks to produce MSY on a continuing

basis. The type of information that

should be pursued, in coordination with

the State, includes: (1) Stock abundance

and size/age structure; (2) scallop

biology, life history, and stock

production parameters; (3) analyses of

population thresholds and recruitment

overfishing; (4) estimation of optimum

dredge ring size or minimum shell

height based on studies of rates of

growth and mortality; (5) investigations

of exploitation rates and alternative

management strategies; (6) genetic stock

structure; and (7) new gear designs to

reduce bycatch and to minimize adverse

effects on bottom habitat. This objective

may be attained, in part, with data

collected by the Alaska State observer

program. However, assessments of the

scallop resource off Alaska, as well as

the conduct of other scallop research,

will be dependent on Federal funding,

State of Alaska general fund

appropriations, or future amendments to

the FMP that would authorize

experimental fishing under Federal

permit conditions.

Impacts of the FMP on the Alaska

Scallop Fishery

Closure of the Federal waters to

fishing for scallops would cause

substantial impact to participants in the

Alaska scallop fisheries. Of the 16
24826 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules

vessels making landings of scallops in

1994, 11 vessels landed no other catch,

indicating their dependence on this

resource. These vessels accounted for 88

percent of the scallops harvested in

Federal and State waters during 1994, or

approximately 1.1 million lbs (499 mt)

of shucked scallop meats. Using the

1994 average exvessel price of $6.00/lb

and assuming that 14 percent of the

total annual scallop landings would

continue to come from State waters, this

would equate to an annual foregone

revenue of about $ 5.7 million. During

1994, an additional five vessels landed

0.1 million lbs (45 mt) of shucked

scallop meats, equating to the potential

for another $0.52 million in foregone

revenue under the proposed closure.

The scallop catch by these five vessels

ranged from less than 1 percent to 46

percent of these vessels’ total 1994

landed catch of all species, including

groundfish and crab. Taken together, a

1-year closure of Federal waters off

Alaska could result in a foregone

revenue that approaches $6 million.

However, this short-term impact is

justified by the need to prevent

overfishing of the scallop resource and

ensure the long-term productivity of the

scallop resource necessary to support

the harvest of OY on a continuing basis

under a future management regime that

authorizes a regulated fishery in Federal

waters.

Consistency Determinations With the

National Standards

NMFS preliminarily has determined

that the proposed FMP is consistent

with the seven national standards for

fishery conservation and management

set forth under section 301(a) of the

Magnuson Act. A summary of these

determinations follows.

National standard 1. The proposed

interim closure of Federal waters to

fishing for scallops would be a

conservation measure to control fishing

effort and prevent overfishing of scallop

stocks until an alternative management

regime may be implemented, which is

expected to authorize a regulated fishery

in Federal waters. The proposed interim

closure would be effective for a 1-year

period unless superseded earlier by an

alternative management regime. During

this interim closure, data should be

assessed and collected on which to base

a Federal management program for the

Alaska scallop fishery. Prevention of

overfishing during this interim period

would help guarantee achievement of

OY from a healthy, productive scallop

resource when the fishery is authorized

to open under a future management

regime. Furthermore, OY would be

achieved on a continuing basis, given

that weathervane scallops are a longlived species with a low natural

mortality rate, and the resource harvest

foregone during the period Federal

waters are closed largely would be

available to the fishery after a 1-year

period. NMFS recognizes that the

economic impact on scallop fishermen

could be substantial and that the

potential foregone revenue to scallop

fishermen could approach $6 million if

Federal waters remain closed for the

entire 1-year period. However, this

short-term impact is justified by the

need to prevent overfishing of the

scallop resource and ensure the longterm productivity of the scallop

resource necessary to support the

harvest of OY on a continuing basis

under a future management regime that

authorizes a regulated fishery in Federal

waters.

National standard 2. The proposed

FMP is based on the best information

available on the status of the scallop

resource off Alaska. This information is

partially based on inference derived

from knowledge of scallop resources

elsewhere in the world. Other

information is based on fishery data

collected under the State scallop

management program. Although this

information is the best information

available currently, NMFS

acknowledges that additional data needs

to be collected and assessed to improve

the management and understanding of

the scallop resource and the fishery that

depends upon it. The type of

information that NMFS intends to

pursue, in coordination with the State,

is listed above under ‘‘Data Collection

and Assessment.’’

National standard 3. A single OY

range is proposed for all scallop species

off Alaska, although scientific evidence

suggests that the scallop resource may

consist of multiple, self-sustaining

stocks. At this time, insufficient

information exists to determine how

many separate scallop stocks exist off

Alaska and what their distribution is.

NMFS anticipates that the future

Federal management regime for the

scallop fishery may need to establish

separate management districts with

separate scallop total allowable catch

amounts, and crab bycatch limits, to

address the stock distribution of Alaska

scallops and the potential impact of the

scallop fishery on different crab stocks,

and to prevent localized depletion of the

scallop resource.

National standard 4. Neither the

proposed FMP nor its implementing

regulations would allocate fishing

privileges or discriminate between

residents of different states. The

proposed interim closure of Federal

waters to fishing for scallops would

apply to all vessels, regardless of a

vessel owner’s state of residency.

National standard 5. An interim

closure of Federal waters to prevent

overfishing of the scallop resource is

intended to maintain the health and

productivity of Alaska scallop stocks

while a Federal management regime is

developed and implemented to control

the long-term harvest of this resource

and to reduce the probability of an

inefficient ‘‘boom and bust’’ fishery. The

proposed FMP does not contain a

provision for an economic allocation of

fishing rights or other limited access

program.

National standard 6. The proposed

FMP would close Federal waters to

fishing for scallops as an effective riskadverse management measure to prevent

overfishing of the scallop resource,

which could otherwise occur in an

unregulated and uncontrolled fishery.

The need for conservative management

measures is strengthened, given the

uncertainty surrounding the current

level of understanding of scallop stock

dynamics and the effect of fishery

exploitation on those dynamics. The

closure of Federal waters is a short-term

measure that will expire within a 1-year

period, affording an opportunity to

develop and implement management

measures to allow a regulated fishery for

scallops in Federal waters.

National standard 7. The proposed

FMP is necessary to prevent an

uncontrolled and unregulated fishery

for scallops in Federal waters, which

could result in overfishing of scallop

stocks. The State has actively managed

the scallop fishery in State and Federal

waters under section 306(a)(3) of the

Magnuson Act. However, the State does

not have the jurisdiction to stop

uncontrolled fishing for scallops in

Federal waters by vessels that are not

registered with the State. A Federal FMP

is the only means to control an

unregulated fishery in Federal waters

and must be implemented to protect the

scallop resource for the long-term

benefit of the resource and the fishery

that depends upon it. The costs

associated with foregone harvest of

scallops in Federal waters during the

period of time the closure is effective

may be substantial to scallop fishermen.

However, NMFS anticipates that the

Council will immediately begin to

develop an alternative management

regime that would allow for a scallop

fishery in Federal waters.

Classification

Section 304(a) of the Magnuson Act

requires NMFS to publish regulations

implementing an FMP within 15 days of
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules 24827

receipt of the FMP and regulations from

the Council for consideration and

review. At this time, NMFS has not

determined that the FMP these rules

would implement is consistent with the

national standards, other provisions of

the Magnuson Act, and other applicable

laws. NMFS, in making that

determination, will take into account

the data, views, and comments received

during the comment period.

This proposed rule has been

determined to be not significant for

purposes of E.O. 12866.

NMFS prepared an IRFA as part of the

RIR, which describes the impact this

proposed rule would have on small

entities, if adopted. As discussed above

under ‘‘Impacts of the FMP on the

Alaska Scallop Fishery,’’ closure of

Federal waters off Alaska to fishing for

scallops could result in a significant

economic impact to nearly all

participants in the Alaskan scallop

fishery that could approach $6 million

in foregone revenues during the 1-year

period the closure is effective.

Conversely, the long-term impact of not

closing Federal waters to fishing for

scallops could be substantially greater,

given that overfishing of scallop stocks

would result in significantly reduced

catch or long-term fishery closures. This

short-term impact is justified by the

need to prevent overfishing of the

scallop resource and ensure the longterm productivity of the scallop

resource necessary to support the

harvest of OY on a continuing basis

under a future management regime that

authorizes a regulated fishery in Federal

waters. A copy of the IRFA is available

from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 673

Fisheries.

Dated: May 5, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 673 is proposed

to be added as follows:

1. Part 673 is added to Chapter VI of

50 CFR to read as follows:

PART 673—SCALLOP FISHERY OFF

ALASKA

Sec.

673.1 Purpose and scope.

673.2 Definitions.

673.3 Prohibitions.

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

§ 673.1 Purpose and Scope.

(a) These regulations implement

Federal authority under the Magnuson

Act to manage the scallop fishery in the

exclusive economic zone off Alaska.

(b) Regulations in this part govern

commercial fishing for scallops in the

exclusive economic zone off Alaska.

§ 673.2 Definitions.

In addition to the definitions in the

Magnuson Act and in 50 CFR part 620,

the terms in 50 CFR part 673 have the

following meanings:

Exclusive Economic Zone (EEZ) (see

§ 620.2 of this chapter)

Scallop(s) means any species of the

family Pectinidae, including, without

limitation, weathervane scallops

(Patinopecten caurinus).

§ 673.3 Prohibitions.

In addition to the general prohibitions

specified in § 620.7 of this chapter, it is

unlawful for any person to take or retain

any scallops in the EEZ seaward of

Alaska during the time period that

extends through the earlier of [Insert

date 1 year after the effective date of this

final rule.] or until superseded by other

management measures.

[FR Doc. 95–11460 Filed 5–5–95; 2:12 pm]

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