[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]
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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.
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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
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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)
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\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
