Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 28359

PART 76—CABLE TELEVISION

SERVICE

1. The authority citation for Part 76

continues to read as follows:

Authority: 47 U.S.C. 154, 303.

2. Section 76.51 is amended by

revising paragraph (a)(28) to read as

follows:

§ 76.51 Major television markets.

* * * * *

(a) * * *

(28) Tampa-St. Petersburg-ClearwaterLakeland, Florida

* * * * *

Federal Communications Commission.

William H. Johnson,

Deputy Chief, Cable Services Bureau.

[FR Doc. 95–13213 Filed 5–30–95; 8:45 am]

BILLING CODE 6712–01–M

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.

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
28360 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations

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, selfsustaining 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
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Rules and Regulations 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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