[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]
BILLING CODE 3510-22-F
