[Federal Register Volume 60, Number 40 (Wednesday, March 1, 1995)]
[Rules and Regulations]
[Pages 11054-11056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4942]



-----------------------------------------------------------------------


DEPARTMENT OF COMMERCE
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 age-structure 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 
[[Page 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 area-
specific 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                                        
----------------------------------------------------------------------------------------------------------------
                                                                                             1995 season open-- 
             Area                     GHR (catch)              Crab limits\1\ (catch)           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.                                                                                                    
\2\Scallop 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 [[Page 11056]] 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 State-registered 
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.


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 off Alaska.

[FR Doc. 95-4942 Filed 2-23-95; 5:04 pm]
BILLING CODE 3510-22-M