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[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Proposed Rules]
[Pages 24822-24827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11460]

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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.

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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 [[Page 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 deg. W. long. and Dixon Entrance at 
132 deg.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 deg. 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. [[Page 24824]] 
    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, 
self-sustaining 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 age-structure 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 
[[Page 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 long-term 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 long-term 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 [[Page 24826]] 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 long-lived 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 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.
    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 risk-adverse 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 
[[Page 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 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. 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.

Sec. 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.

Sec. 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 Sec. 620.2 of this chapter)
    Scallop(s) means any species of the family Pectinidae, including, 
without limitation, weathervane scallops (Patinopecten caurinus).

Sec. 673.3  Prohibitions.

    In addition to the general prohibitions specified in Sec. 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]
BILLING CODE 3510-22-F
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