11054 Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations

[FR Doc. 95–5033 Filed 2–28–95; 8:45 am].

BILLING CODE 3510–22–W

50 CFR Part 673

[Docket No. 950223058–5058–01; I.D.

022395A]

RIN 0648–AH93

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; request

for comments.

SUMMARY: NMFS is closing the exclusive

economic zone (EEZ) off Alaska to

fishing for scallops in response to

resource conservation concerns that

result from unanticipated fishing for

scallops in the EEZ by vessels outside

the jurisdiction of Alaska State

regulations governing the scallop

fishery. This action is necessary to

prevent localized overfishing of scallop

stocks. This emergency closure is

intended to control an unregulated

scallop fishery in the EEZ until a

Federal fishery management plan (FMP)

can be implemented.

DATES: Effective February 23, 1995,

through May 30, 1995. Comments must

be submitted by March 10, 1995.

ADDRESSES: Comments may be sent to

Ronald J. Berg, Chief, Fisheries

Management Division, Alaska Region,

National Marine Fisheries Service, P.O.

Box 21668, Juneau, AK 99802,

Attention: Lori Gravel. Copies of the

Environmental Assessment prepared for

the emergency rule may be obtained

from the same address.

FOR FURTHER INFORMATION CONTACT:

Susan Salveson, 907–586–7228.

SUPPLEMENTARY INFORMATION:

Background

Fishing for scallops by U.S. vessels off

Alaska is managed by the State of

Alaska under regulations implemented

by the Alaska Department of Fish and

Game (ADF&G) at 5 AAC 38.076. These

regulations establish guideline harvest

levels for different scallop registration

areas, fishing seasons, open and closed

fishing areas, observer coverage

requirements, gear restrictions, and

measures to control the processing

efficiency of undersized scallops that

include a ban on the use of mechanical

shucking machines and a limitation on

vessel crew size.

Section 306(a)(3) of the Magnuson

Fishery Conservation and Management

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

Act) provides that a state may not

directly or indirectly regulate a fishing

vessel in Federal waters unless the

vessel is registered under the law of that

state. As a result, regulations

implemented by the State of Alaska to

manage the scallop fishery only apply in

the EEZ off Alaska to vessels registered

under the laws of the State. Until now,

all vessels fishing in the EEZ have been

registered with the State and have been

subject to ADF&G fishing regulations at

5 AAC 38.076.

The ADF&G recently became aware of

a vessel fishing for scallops in the EEZ

that is not registered under the laws of

the State. The vessel is fishing for

scallops in waters closed to Alaska

registered vessels by the ADF&G. The

State does not have authority to stop

this activity because the vessel is not

registered with the State and does not

fall under its jurisdiction.

Section 305(c) of the Magnuson Act

authorizes NMFS to implement

emergency regulations necessary to

respond to fishery conservation and

management problems that cannot be

addressed within the time frame of the

normal procedures provided by the

Magnuson Act. These emergency

regulations may remain in effect for not

more than 90 days after publication in

the Federal Register, with a possible 90-

day extension.

The North Pacific Fishery

Management Council (Council)

convened an emergency teleconference

meeting on February 17, 1995, to

address the situation of unregistered

vessels fishing for scallops in the EEZ

outside the management jurisdiction of

the State of Alaska. The Council

requested NMFS to implement

emergency rulemaking to close the EEZ

to fishing for scallops to prevent further

unregulated and uncontrolled fishing

for scallops in Federal waters.

Continued fishing for scallops by

vessels not registered with the State

poses significant conservation and

management concerns that can be

effectively addressed in a timely manner

only through emergency closure of the

EEZ. A brief discussion of the State’s

management program for scallops and

the Council’s concerns and justification

for emergency rule action follow.

Alaska State’s Scallop Management

Program

The primary pectinid harvested off

Alaska is the weathervane scallop

(Patinopecten caurinus). Since the early

1980’s, between 4 and 20 vessels

annually have participated in the Alaska

scallop fishery. Gross earnings

experienced by the fleet during this

same period of time has ranged from

almost $.9 million in 1983 to over $7

million in 1992.

The 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 lbs (816.47 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 (90.72 mt) and 0.9

million lbs (408.23 mt). The ADF&G

believes this decline was due, in part, to

reduced abundance of scallop stocks.

Landings since 1989 have increased to

near record levels. Since 1989, 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 predominated 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 the EEZ

compounded management concerns.

In response to these concerns, the

ADF&G implemented a management

plan for the scallop fishery in 1993 that

established a total of eight fishery

registration areas corresponding to the
Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations 11055

Southeastern, Yakutat, Prince William

Sound, Cook Inlet, Kodiak, Alaska

Peninsula, Dutch Harbor, 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 GHRs is

specified as the long-term productivity

(catch) from each of the traditional

harvest areas. The ADF&G may adjust

GHRs based on changes in stock status,

such as shifts in population size/age

structure coupled to changes in areaspecific catch-per-unit-effort.

If a GHR for a registration area is not

specified, ADF&G may 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 on board 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 in stock status and productivity.

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

otimum yield. Current efficiency

controls include a ban on automatic

shucking machines and a crew limit of

12 persons.

The ADF&G has closed all registration

areas to fishing for scallops because

either the 1995 scallop GHR has been

reached or the scallop fishing season

has yet to open (Table 1). The fishing

vessel currently fishing for scallops in

the EEZ outside State jurisdiction is

operating in the Yakutat and Prince

William Sound registration areas, which

the State closed because the GHR for

these areas has been harvested. In 1994,

vessels fished for scallops in the Bering

Sea and Alaska Peninsula registration

areas under special-use permits. These

areas were closed in late summer due to

crab bycatch. The 1994 scallop fisheries

in other registration areas generally

were closed based on the attainment of

the GHR (Table 1).

TABLE 1.—ALASKA STATE SCALLOP REGISTRATION AREAS, UPPER LIMIT OF GHRS (LBS SHUCKED MEAT), 1995 TANNER

(TAN) AND KING CRAB BYCATCH LIMITS (NUMBER OF CRAB), 1994 AND 1995 SCALLOP AND CRAB CATCH AMOUNTS

(IN PARENTHESIS) AND SEASON OPENING AND CLOSURE DATES

Area GHR (catch) Crab limits 1 (catch)

1995 season

open—closed

dates

Yakutat ....................................................................................................... 250,000 .................. No crab limit ....................... 1/10/95–2/14/95

1995 catch ........................................................................................... 2 (245,000)

1994 catch ........................................................................................... (236,830)

Prince William Sound ................................................................................. 50,000 .................... Tan—630 ............................ 1/10/95–1/26/95

1995 catch ........................................................................................... 2 (48,000) ................ 2 (69)

No 1994 fishery

Cook Inlet ................................................................................................... 20,000 .................... King—138 ........................... 8/15/95–

1994 catch ........................................................................................... (20,431) .................. (42)

Tan—18,070

(13,300)

Kodiak ......................................................................................................... 400,000 .................. King—283 ........................... 7/1/95–

1994 catch ........................................................................................... (381,850) ................ (157)

Tan—199,500

(69,274)

Dutch Harbor .............................................................................................. 170,000 .................. King—45 ............................. 7/1/95–

1994 catch ........................................................................................... (1,931) .................... (6)

Tan—50,500

(792)

Alaska Peninsula ........................................................................................ Permit ..................... King—85 ............................. 7/1/95–

1994 catch ........................................................................................... (66,412) .................. (0)

Tan—52,530

(26,379)

Bering Sea .................................................................................................. Permit ..................... King—17,000 ...................... 7/1/95–

1994 catch ........................................................................................... (505,439) ................ (55)

Tan—260,000

(262,500)

1 Crab bycatch limits for Prince William Sound and Cook Inlet are further divided into State management districts.

2Scallop catch and crab bycatch amounts do not include unreported amounts taken by the catcher/processor vessel fishing in the management area outside of State jurisdiction.

Continued fishing for scallops by

vessels outside the jurisdiction of the

State will result in overharvest of the

State’s GHR’s and potential localized

overfishing of scallop stocks. The

catcher/processor vessel currently
11056 Federal Register / Vol. 60, No. 40 / Wednesday, March 1, 1995 / Rules and Regulations

fishing in the Prince William Sound

registration area may have the potential

to harvest nearly 65,000 lbs (29.48 mt)

of shucked scallop meat per week based

on 1995 ADF&G observer data collected

from a similar vessel. At this rate of

harvest, the Prince William Sound GHR

could be overharvested by a significant

amount since the fishery was closed on

January 26, 1995. Although specific

information on the vessel’s harvesting

activity is not available, the U.S. Coast

Guard boarded the vessel on February

21, 1995, and was informed that 54,000

lbs (24.49 mt) of scallop meat was on

board. This level of retained catch alone

exceeds the Prince William Sound GHR

by over 100 percent. The Council is

concerned that this or other vessels

fishing outside the jurisdiction of the

State will continue to severely

overharvest other GHRs and result in

localized overfishing of scallop stocks.

For the reasons stated above, NMFS

concurs with the Council’s

determination that unregulated and

uncontrolled fishing for scallops by

vessels outside the jurisdiction of

Alaska State regulations poses a serious

conservation concern that must be

addressed as quickly as possible by

emergency rulemaking. Although

weathervane scallop is the primary

species of commercial interest, NMFS’

concern about localized depletion and

overfishing extends to all scallop

species that may be harvested in the

EEZ by unregulated vessels. NMFS

further concurs in the Council’s

determination that immediate closure of

the EEZ off Alaska to fishing for scallops

is an appropriate action to address the

scallop management void in the EEZ

and concerns of localized overfishing of

scallop stocks.

The Council is considering options for

a Federal FMP for scallops. Given the

time necessary for the preparation of an

FMP and the statutory review and

implementation schedule for FMPs set

out under sections 303 and 304 of the

Magnuson Act, the Council requested

NMFS repromulgate the emergency

closure of the EEZ for an additional 90

days as authorized under section

305(c)(3)(B) of the Magnuson Act.

NMFS agrees that additional time may

be necessary for the preparation and

implementation of a Federal

management program for scallops in

Federal waters and will consider

promulgating a second emergency rule

under the Magnuson Act at the

appropriate time.

There are many factors to be

considered in determining whether to

issue a second emergency rule in that

such a rule could have an impact on

State-registered vessels that participate

in this fishery under the laws of the

State of Alaska. Vessels that participate

in the Yakutat and Prince William

Sound scallop fisheries will not be

affected because ADF&G has closed

these management areas for the

remainder of the year, since the GHR

has been harvested. The Cook Inlet

fishery is conducted primarily in State

waters and will be available to Stateregistered vessels when the fishery

opens in mid-August (Table 1). Scallop

fishermen wishing to participate in the

westward area scallop fisheries (Kodiak,

Dutch Harbor, Alaska Peninsula, and

Bering Sea registrations area) when

these fisheries open July 1 would be

restricted to fishing in State waters

under ADF&G management regulations

if a second 90-day emergency rule is

promulgated in the same form as this

emergency rule. If a second emergency

rule is issued, ADF&G would make a

downward adjustment of the GHRs

specified for the westward area to

compensate for a scallop fishery

constrained to State waters. Given that

all the Bering Sea scallop harvest comes

from Federal waters, as well as about 70

percent of the scallop harvest from other

westward registration areas, and

assuming an exvessel price of $6.00 per

lb, the potential foregone harvest and

revenue could approach 820,574 lbs

(372.21 mt) and nearly $5 million.

Based on 1994 data, about 12 vessels

made landings of scallops harvested in

a westward area fishery and could

potentially be affected by a second

emergency rule action.

Comments on this emergency rule

will be accepted by NMFS through

March 10, 1995. (See ADDRESSES.)

NMFS also is soliciting comments on

appropriate Federal management

measures the Council should consider

during its further development of an

FMP for the Alaska scallop fishery.

Classification

The Assistant Administrator for

Fisheries, NOAA (AA), has determined

that this rule is necessary to respond to

an emergency situation and that it is

consistent with the Magnuson Act and

other applicable laws.

This rule is exempt from the

procedures of the Regulatory Flexibility

Act, because it is not required to be

issued with prior notice and

opportunity for prior public comment.

This emergency interim rule has been

determined to be not significant for

purposes of E.O. 12866.

NMFS finds that the immediate need

to prevent overfishing and localized

depletion of scallops in the EEZ off

Alaska, as explained in the preamble to

this rule, constitutes good cause to

waive the requirement to provide prior

notice and an opportunity for public

comment pursuant to authority set forth

at 5 U.S.C. 553(b)(B), such procedures

would be contrary to the public interest.

Similarly, the need to implement these

measures in a timely manner to prevent

localized overfishing of scallop stocks

by vessels fishing outside the

jurisdiction of Alaska State law

constitutes good cause under authority

contained in 5 U.S.C. 553(d)(3) to waive

the requirement for a 30-day delay in

effective date.

List of Subjects in 50 CFR Part 673

Fisheries.

Dated: February 23, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 673 is 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 off

Alaska.

[FR Doc. 95–4942 Filed 2–23–95; 5:04 pm]

BILLING CODE 3510–22–M