[Federal Register Volume 60, Number 104 (Wednesday, May 31, 1995)]
[Rules and Regulations]
[Pages 28359-28361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13262]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 673

[Docket No. 950223058-5058-01; I.D. 022395A]


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: Emergency interim rule; extension of effective date; response 
to comments.

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SUMMARY: An emergency interim rule that closed Federal waters off 
Alaska to fishing for scallops is in effect through May 30, 1995. NMFS 
extends the emergency rule for an additional 90-day period (through 
August 28, 1995) to prevent overfishing of scallop stocks in an 
uncontrolled fishery for scallops in Federal waters by vessels fishing 
outside Alaska State's regulatory authority to govern the scallop 
fishery. This emergency closure is intended to control an unregulated 
scallop fishery in Federal waters until a Federal fishery management 
plan can be implemented. NMFS also responds to comments submitted on 
the interim emergency rule as published in the Federal Register on 
March 1, 1995, for comment. No change to the emergency rule was made as 
a result of NMFS' response to comments.

EFFECTIVE DATE: The interim regulations published on March 1, 1995 (60 
FR 11054, as corrected at 60 FR 12825, March 8, 1995) are extended from 
May 31, 1995, through August 28, 1995.

FOR FURTHER INFORMATION CONTACT: Susan Salveson, 907-586-7228.

SUPPLEMENTARY INFORMATION: NMFS published an emergency interim rule in 
the Federal Register on March 1, 1995 (60 FR 11054) that closed Federal 
waters off Alaska to fishing for scallops. The closure was intended to 
prevent unregulated and uncontrolled fishing for scallops in Federal 
waters during the period of time the North Pacific Fishery Management 
Council (Council) prepared a Fishery Management Plan for the Scallop 
Fishery off Alaska (FMP). Although the State of Alaska has implemented 
regulations to manage the scallop fishery off Alaska, these regulations 
can be applied by the State only to vessels registered under the laws 
of the State of Alaska (section 306 (a)(3) of the Magnuson Fishery 
Conservation and Management Act, 16 U.S.C. 1801 et seq. (Magnuson Act). 
Continued fishing for scallops by one or more vessels not registered 
with the State of Alaska poses significant conservation and management 
concerns that can be effectively addressed in a timely manner only 
through emergency closure of Federal waters off Alaska. Further 
background and descriptive information is contained in the preamble to 
the emergency rule published in the Federal Register March 1, 1995.
    The Council has submitted a proposed FMP to the Secretary of 
Commerce for review and approval. Proposed regulations to implement the 
FMP were published in the Federal Register May 10, 1995 (60 FR 24822). 
Given the statutory review and implementation schedule for FMPs set out 
under sections 303 and 304 of the Magnuson Act, the Council requested 
NMFS to reimplement the emergency closure of Federal waters off Alaska 
for an additional 90 days as authorized under section 305(c)(3)(B) of 
the Magnuson Act. NMFS concurs that this period of time is necessary 
for the preparation and implementation of a Federal management program 
for scallops in Federal waters and reimplements this emergency rule for 
the maximum period of time authorized under the Magnuson Act.
    Two letters of comments on the emergency rule as published in the 
Federal Register March 1, 1995, were received within the comment period 
and are summarized in the Response to Comments section, below. After 
review of the comments received, NMFS determined that no change to the 
emergency rule is warranted.
    This emergency interim rule has been determined to be not 
significant for purposes of E.O. 12866.

Response to Comments

    Two letters of comments were received within the comment period 
that ended March 10, 1995. A summary of the comments and NMFS' response 
follows.
    Comment 1. NMFS' implementation of the emergency rule was based 
upon a recommendation from the Council that was contrived at an 
illegally constituted teleconference meeting in violation of specific 
procedural requirements set forth in the Magnuson Act, 16 U.S.C. 
1852(j).
    Response. The Chairman of the North Pacific Fishery Management 
Council (Council) had very little time to respond to the emergency 
situation resulting from uncontrolled fishing for scallops off Alaska 
that precipitated the emergency rule. If necessary, NMFS was prepared 
to take action to promulgate emergency regulations without Council 
involvement to address the emergency in as timely manner as possible. 
The Council's ability to convene an emergency meeting and its 
recommendation to proceed with the emergency rule simply lent further 
indication of the widespread support for closure of Federal waters to 
protect scallop stocks.
    Furthermore, NMFS conducted an independent review of the emergency 
action recommended by the Council. Based on the administrative record, 
NMFS concurred with the Council's determination that immediate closure 
of Federal waters off Alaska was necessary to address the scallop 
management void and to address concerns of localized overfishing of 
scallop stocks. NMFS followed the appropriate procedures and 
established the rational basis for the decision to implement the 
emergency rule. Any alleged procedural irregularities at the Council 
level did not affect the Agency's independent determination to proceed 
with this action.
    Comment 2. Absolutely no justification exists for issuance of an 
emergency rule closing Federal waters off Alaska to fishing for 
scallops given that a single vessel operating outside Alaska State's 
regulatory authority could not cause overfishing of the scallop 
resource off Alaska.
    Response. NMFS disagrees. Recent participation in the scallop 
fishery by at least one vessel not registered with the State of Alaska, 
contemplation by other vessel owners of fishing in Federal 
[[Page 28360]] waters outside State regulations governing the scallop 
fishery, and the possibility uncontrolled fishing for scallops could 
occur anywhere off Alaska by the highly mobile scallop processor fleet, 
justified emergency rule action to prevent localized overfishing of 
scallop stocks. This approach is warranted given the limited 
information on stock structure and biological productivity of scallops 
off Alaska, coupled with recent scientific evidence that suggests that 
scallop resources may consist of multiple, discrete, self-sustaining 
populations that should be viewed as separate stock units for 
management. If this is the case, prudent management of these stocks is 
necessary to prevent localized depletion in order to maintain the 
integrity of these stocks and protect their long-term productivity.
    The single vessel used to participate in the unregulated fishery 
for scallops that precipitated the emergency rule was fishing in the 
Prince William Sound (PWS) area, for which the State's guideline 
harvest level (GHL) was 50,000 lb (22.68 mt) shucked scallop meat. The 
1995 harvest amounts of scallops reported by observers on board other 
vessels fishing in this area under the laws of the State resulted in 
closure of the area to fishing for scallops on January 26, 1995, when 
the State's GHL was reached. The single vessel fishing outside the 
State's regulatory authority did not have an observer on board to 
monitor catch and continued to fish once the PWS area was closed. When 
the vessel was boarded by the U.S. Coast Guard almost a month later, 
the vessel operator informed the Coast Guard that 54,000 lb (24.49 mt) 
of shucked scallop meat was on board. This amount exceeded Alaska 
State's GHL for PWS by over 100 percent. Exceeding the GHL by this 
order of magnitude, combined with the potential for discrete stock 
structure, creates a very real concern for localized overfishing of 
scallop stocks that the emergency rule was intended to prevent.
    Comment 3. The issuance of the emergency rule was based on 
political and personal assumptions which were unreasonable and not 
based on reliable scientific data as required by the Magnuson Act.
    Response. NMFS disagrees. See the response to Comment 2. NMFS has 
acknowledged that information on scallop stock structure, abundance, 
and population dynamics are limited. However, as stated in the preamble 
to the emergency rule, reasons exist to manage the Alaska scallop 
stocks with special caution given evidence that these stocks are 
susceptible to overfishing. NMFS expects that careful management of 
this resource will be necessary until more information becomes 
available to improve understanding of the dynamics of the scallop 
resource and the effect of exploitation on the biological productivity 
of scallop stocks off Alaska.
    Comment 4. The emergency rule is not consistent with any of the 
national standards. In particular National Standard 1 is violated given 
that NMFS has not taken any action to achieve the optimum yield (OY) 
from the Alaska scallop fishery. Furthermore, NMFS has no idea what the 
OY for this fishery should be because no scientific data exist upon 
which to base the OY.
    Response. NMFS disagrees. The emergency interim closure of Federal 
waters to fishing for scallops was intended as a short-term 
conservation measure to control fishing effort and prevent overfishing 
of scallop stocks until an alternative management regime may be 
implemented. The interim closure could be effective for up to a 180-day 
period. 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, the primary commercial species off Alaska, 
are a long-lived species with a low natural mortality rate. As a 
result, NMFS believes the scallop harvest foregone during the period 
Federal waters are closed largely would be available to the fishery 
once Federal waters are opened to fishing for scallops under a future 
FMP.
    NMFS recognizes that the economic impact of the closure of Federal 
waters to fishing for scallops will be substantial to participants in 
the scallop fishery. The State of Alaska has announced that it will 
open up State waters in its Dutch Harbor and Adak registration areas on 
July 1 to fishing for scallops, although available fishing grounds are 
limited and harvest amounts are not expected to be significant. The 
harvest amounts from these two registration areas in 1993 and 1994 
totaled only 40,000 lb and 2,000 lb, respectively. The short-term 
foregone opportunity to harvest scallops in Federal waters 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.
    The emergency rule did not specify an OY for the scallop fishery 
off Alaska and comments on the appropriateness of any OY level for this 
fishery is outside the scope this action. Nonetheless, the preamble to 
the proposed rule to implement the FMP (60 FR 24822, May 10, 1995), 
presents a discussion on an appropriate OY for the scallop fishery in 
Federal waters off Alaska. The preamble also discusses the consistency 
of an interim closure of these waters to fishing for scallops with the 
national standards.
    Although scientific data are limited, no evidence suggests that an 
unregulated and uncontrolled harvest of scallops off Alaska is 
supportable as a means of achieving OY. The Council is scheduled to 
consider alternative options for an OY for the scallop fishery off 
Alaska at its June 1995 meeting, as well as a suite of other management 
measures under consideration by the Council for a Federally managed 
fishery.
    Comment 5. The emergency rule meets none of the criteria for 
emergency rulemaking set out in NMFS policy guidelines, which define an 
emergency situation as one that (1) results from unforeseen events; (2) 
presents serious conservation and management problems; and (3) can be 
addressed through emergency regulations for immediate benefits outweigh 
the value of advance notice, public comment and deliberative 
consideration of the impacts on participants to the same extent as 
would be expected under the normal rule making process. Furthermore, 
these guidelines preclude NMFS from using emergency rulemaking to close 
a fishery if the action is controversial and has serious economic 
effects.
    Response. NMFS disagrees. NMFS policy guidelines for emergency 
rulemaking published in the Federal Register January 6, 1992 (57 FR 
375), would authorize controversial emergency action with serious 
economic effects under certain circumstances. NMFS believes that the 
events and overfishing concerns leading up to the emergency interim 
closure of Federal waters to fishing for scallops are such 
circumstances that warranted emergency rulemaking.
    Although the potential always existed for one or more vessels to 
fish for scallops in Federal waters outside Alaska State's regulatory 
authority, no vessel had ever done so. Neither NMFS nor the Council 
anticipated this activity when it occurred, nor the conservation 
concerns that ensued from uncontrolled and unregulated fishing for 
scallops in Federal waters. Although closure of Federal waters to 
fishing for scallops [[Page 28361]] poses substantial costs to current 
participants in this fishery, these costs are justified to prevent 
localized overfishing of scallop stocks and protect the long-term 
productivity of the Alaska scallop resource. NMFS believes that the 
time it would have taken to complete notice-and-comment rulemaking 
would have jeopardized severely NMFS' ability to take action to prevent 
overfishing of scallop stocks.
    Comment 6. The emergency interim rule should be rescinded as an 
illegal action. No scientific evidence exists that can prove 
overfishing concerns are warranted and the vessel fishing in Federal 
waters outside Alaska State laws and regulations had a Federal scallop 
permit and was fishing legally.
    Response. NMFS disagrees that the emergency interim rule was an 
illegal action. Rather, this action was justified to prevent 
overfishing of scallop stocks and protect the long-term productivity of 
this resource. NMFS concurs that fishing for scallops in Federal waters 
outside the laws and regulations of the State of Alaska did not, in 
itself, constitute illegal activity. Prior to the emergency rule, 
however, no Federal regulations existed to control fishing for scallops 
in Federal waters. NMFS believes that unregulated fishing, including 
the potential for other vessels joining an uncontrolled fishery, poses 
a serious overfishing concern (see responses to comments 2 and 3). NMFS 
does not claim that it has ``proved'' overfishing is occurring in this 
fishery; rather, the emergency rule is an attempt to prevent such a 
problem from occurring while long-term management measures are being 
developed. Finally, the vessel used to fish for scallops in Federal 
waters outside Alaska State's regulatory authority was not issued a 
Federal permit to fishing for scallops off Alaska. The fact that the 
vessel may have been issued a Federal permit to fish for scallops in 
Federal waters elsewhere off the continental United States is 
immaterial to the legality of the closure of Federal waters off Alaska.
    Comment 7. Under section 306(a)(3) of the Magnuson Act, NMFS should 
not rely on the Alaska State scallop management program as a basis for 
managing the fishery in Federal waters.
    Response. Any future Federal management program for the scallop 
fishery of Alaska would consider State management measures for the 
scallop fishery and the justification for those measures. However, 
neither the Council nor NMFS would automatically incorporate State 
management measures into Federal regulations without adequate 
assessment and justification. Such measures must be consistent with the 
national standards set out in the Magnuson Act and other applicable 
law.

    Dated: May 24, 1995.
Richard H. Schaefer,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 95-13262 Filed 5-25-95; 4:30 pm]
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