[Federal Register Volume 64, Number 111 (Thursday, June 10, 1999)]
[Rules and Regulations]
[Pages 31144-31151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14745]
[[Page 31144]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 990527146-9146-01; I.D. 052099B]
RIN 0648-AM24
Fisheries of the Northeastern United States; Atlantic Sea Scallop
Fishery, Framework Adjustment 11; Northeast Multispecies Fishery,
Framework Adjustment 29
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement measures contained in
Framework Adjustment 11 to the Atlantic Sea Scallop Fishery Management
Plan (FMP) and Framework Adjustment 29 to the Northeast Multispecies
FMP. This final rule creates a 1999 seasonal Georges Bank Sea Scallop
Exemption Area (Exemption Area) in and adjacent to Closed Area II and
includes the following primary measures for vessels fishing in the
Exemption Area: A possession limit of up to 10,000 lb (4,536.0 kg) of
scallop meats per trip; a maximum of three trips for full and part-time
vessels and a maximum of one trip for occasional vessels; an automatic
minimum deduction of 10 days-at-sea (DAS) for each trip; a minimum mesh
twine-top of 10 inches (25.40 cm); a total allowable catch (TAC) of
yellowtail flounder of 387 metric tons (mt); and an increase in the
regulated species possession limit from 300 lb (136.1 kg) to 500 lb
(226.8 kg), among other measures. In addition, this rule implements a
minimum mesh twine top of 8 inches (20.32 cm) for vessels under a
scallop DAS when fishing outside the Exemption Area. The primary intent
of this action is to provide scallop vessels with a short-term strategy
to access Closed Area II without compromising multispecies rebuilding
or habitat protection, while the New England Fishery Management Council
(Council) develops an amendment that would implement a sea scallop area
rotational management plan.
DATES: Effective June 15, 1999, except for Sec. 648.51(b)(2)(ii), which
is effective December 16, 1999.
ADDRESSES: Copies of Framework Adjustment 11/Framework Adjustment 29 to
the Atlantic Sea Scallop/Northeast Multispecies FMPs, its Environmental
Assessment (EA), and regulatory impact review are available on request
from Paul J. Howard, Executive Director, New England Fishery Management
Council, 5 Broadway, Saugus, MA, 01906-1097.
Comments regarding the collection-of-information requirements
contained in this final rule should be sent to Jon C. Rittgers, Acting
Regional Administrator, Northeast Region, One Blackburn Drive,
Gloucester, MA 01930-2298, and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Washington,
DC 20503 (Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy
Analyst, 978-281-9252.
SUPPLEMENTARY INFORMATION: On December 12, 1994, NMFS implemented an
emergency action that closed three large areas with historically high
concentrations of several multispecies: Two Georges Bank closures
(Closed Area I and Closed Area II), and one closure in southern New
England (Nantucket Lightship Closed Area). These areas were closed to
all vessels capable of catching groundfish, including scallop vessels,
because of their ability to catch significant amounts of juvenile
flatfish, and because of concern that scallop dredge gear disrupts
groundfish spawning activity. The emergency action was subsequently
implemented on a continuous basis through measures included in
Framework 9 to the Northeast Multispecies FMP (60 FR 19364, April 18,
1995).
In March 1997, results from the 23rd Stock Assessment Workshop
determined that the Atlantic sea scallop resource was at a low level of
biomass and that catches were driven primarily by variations in the
number of recruits entering the fishery. However, the report also noted
that for Georges Bank, abundance and fishing mortality were at moderate
levels due to half the primary scallop area on Georges Bank and in the
Great South Channel being closed since December 1994. In fact, at the
time of the assessment, i.e., after 20 months of protection, biomass
increases in the closed areas were approximately three-fold and
increasing.
In 1998, the Center for Marine Science and Technology of the
University of Massachusetts, Dartmouth (CMAST) requested an
experimental fishery to determine the abundance and distribution of sea
scallops in Closed Area II. A cooperative experimental research fishery
was conducted by NMFS' Northeast Fisheries Science Center, CMAST, and
the fishing industry, using commercial sea scallop vessels.
At its April 14-15, 1999, meeting, the Council voted to limit sea
scallop access to Closed Area II for one fishing year and selected a
sea scallop target TAC based on an intermediate harvestable biomass
estimate (4,300 mt) for this area. The Council also voted to recommend
opening only certain portions of Closed Area II to minimize the
possible impact on finfish bycatch and habitat. Detailed information on
finfish bycatch levels caught by scallop dredge vessels during the 1998
cooperative experimental research fishery showed that during the months
August through October, the time period when this experiment was
conducted, virtually no cod or haddock--two of the three primary
groundfish species of particular concern--were caught. However, results
from the experiment demonstrated significant bycatch levels of
yellowtail flounder, the third primary groundfish species. Although
recent information indicates that some rebuilding of Georges Bank cod,
haddock, and yellowtail flounder stocks has occurred, recruitment
remains poor and the most recent scientific advice is to keep fishing
mortality at or below the multispecies Amendment 7 objective for these
stocks.
After deliberating three different area options developed to
address habitat and bycatch concerns, the Council recommended to open
that portion of Closed Area II south of 41 deg.30' N. lat., an option
recommended by the Habitat Committee, where scallop dredge vessels are
considered to have the least impact on the bottom. Although data from
the cooperative experimental fishery demonstrated that this alternative
had a slightly higher bycatch of yellowtail flounder when compared to
the other area options, bycatch of all species combined was lowest for
this area.
This action adopts a sea scallop target TAC of 4,300 mt of meat
weight for vessels fishing under the Georges Bank Sea Scallop Exemption
Program (Exemption Program). Of this target TAC, a total of 4,257 mt
will be designated for use as a directed sea scallop allocation. Forty-
three mt of the 4,300 mt (1 percent) will be set aside for funding
research of this fishery, if research programs are adopted, and an
additional 43 mt, over and above the 4,300 mt allocated, will be set
aside to help fund the cost of observers.
To minimize groundfish bycatch and habitat impacts, this action
opens the portion of Closed Area II that lies south of 41 deg.30'N.
lat. from June 15, 1999, through December 31, 1999. In addition,
[[Page 31145]]
this framework sets a TAC of 387 mt for yellowtail flounder that may be
harvested from this area, 15 percent of the 1999 yellowtail flounder
target TAC. This provision requires that when the yellowtail flounder
TAC for the Exemption Program is projected to be reached, access by
scallop dredge vessels into this exempted area must be discontinued.
This action implements a buffer zone adjacent to that portion of
Closed Area II south of 41 deg.30'N. lat., comprising a larger zone
referred to as the Georges Bank Sea Scallop Exemption Area. This buffer
zone is established at 67 deg.40'W. long. and has a northern boundary
line of 42 deg.12' N. lat., intersecting with Closed Area II, and a
southern boundary line of 40 deg.24' N. lat., intersecting the outer
boundary of the exclusive economic zone, respectively. Vessels fishing
under the Exemption Program may not fish for or harvest sea scallops
outside of the Exemption Area during that trip, nor may they enter the
Exemption Area more than once per trip. Scallop vessels fishing under a
scallop DAS, but that are not fishing under this Exemption Program,
will be prohibited from entering the Exemption Area, unless transiting
for safety reasons in accordance with the provisions of Sec. 648.81(e).
All limited access scallop vessels, including vessels that hold a
scallop Confirmation of Permit History, will be eligible to fish for
the sea scallop target TAC in the Exemption Area. Full-time and part-
time scallop vessels will each be allowed up to three trips into the
Exemption Area of up to 10,000 lb (4,536.0 kg) of meats per trip, and
occasional vessels will be allowed one trip of up to 10,000 lb (4,356.0
kg) of meats. Note that the 10,000 lb (4,356.0 kg) of meats per trip is
a possession limit rather than a landing limit to help ensure the
enforceability of this measure.
All scallop vessels fishing in the Exemption Program must have
installed on board an operational Vessel Monitoring System (VMS) unit
that meets the minimum performance criteria as specified in the
regulations (occasional permitted vessels are the only limited access
scallop vessels not currently required to have a VMS). Scallop vessels
planning to fish on an Exemption Area trip must so declare by notifying
the Administrator, Northeast Region, NMFS (Regional Administrator),
through the VMS. Vessels will be provided with instructions on
procedures for this notification requirement. For each trip declared, a
minimum of 10 DAS will automatically be deducted. A fundamental
objective of this action is to ensure that the 1999 fishing year target
fishing mortality of 0.83, established by Amendment 7 to the Atlantic
Sea Scallop FMP, will not be exceeded. Analysis indicates that by
assessing each exemption trip a minimum of 10 DAS, conservation
neutrality will be maintained, i.e., fishing mortality should not
increase beyond status quo.
On or after October 1, 1999, after taking into account data on the
number of eligible vessels participating and the total number of trips
taken, the Regional Administrator may adjust the scallop possession
limit, if necessary, and/or allocate one or more additional trips, if
enough of the sea scallop target TAC remains to warrant such an
adjustment or allocation, for full- and part-time permitted vessels
that declared a trip under the Exemption Program prior to September 1.
Occasional vessels would not be allocated an additional trip,
regardless of whether they declared a trip under the Exemption Program
before September 1.
At the discretion of the Regional Administrator, scallop vessels
may be allocated an additional amount of sea scallops (not to exceed a
cumulative total of 43 mt) for each trip on which an observer is taken
in order to help defray costs. The vessel owner will be responsible for
paying for the cost of the observer.
This action increases the regulated multispecies incidental catch
allowance from 300 lb (136.1 kg) to 500 lb (226.8 kg) per trip for
scallop vessels when fishing under the Exemption Program and authorizes
the Regional Administrator to make mid-season adjustments, if
necessary, to reduce regulatory discards. Because vessels are expected
to catch more groundfish (specifically yellowtail flounder) in the
Exemption Area, increasing the allowance of regulated species will help
reduce discards. In addition, vessels that have an observer on board
would be allowed to retain all regulated species caught, provided the
fish caught in excess of the possession limit is donated to charity.
Each vessel operator is required to inform NMFS of his/her
intention to fish in the Exemption Area on a monthly basis through the
VMS e-mail system to facilitate placement of observers. This and the
following information must be reported prior to the 15th of the month
preceding the month in question: Vessel name and permit number, owner
and operator's name, owner and operator's phone numbers, and number of
trips anticipated for the month in question. In addition, any vessel
selected for observer coverage must provide 5 working days notice prior
to departure of any trip declared under the Exemption Program. Vessels
will be provided with additional information by mail regarding all
notification requirements.
Each vessel participating in this program is required to report
information on a daily basis through the VMS. On all trips to the
Exemption Area, vessels must report their daily pounds (kilograms) of
scallop meats kept. In addition, vessels on observed trips must provide
a separate report of the daily pounds (kilograms) of scallop meats kept
and the pounds (kilograms) of yellowtail flounder caught on tows that
were observed.
Vessels that have declared a trip under the Exemption Program are
prohibited from possessing more than 50 U.S. bushels (400 lb (181.4 kg)
of meats) of shell stock when outside of the designated Exemption Area
specified in this framework. This 400-lb (181.4 kg) scallop meat limit
for shell stock is considered part of the 10,000-lb (4,536.0-kg) meat
weight possession limit. A limit on the amount of sea scallops landed
in the shell is a necessary enforcement tool for purposes of monitoring
the 10,000- lb (4,536.0-kg) meat weight possession limit requirement.
Allowing vessels to retain a relatively minor amount of shell stock
will help satisfy a market for large, live scallops, yet not compromise
the enforceability of the possession limit.
All scallop vessels, including those currently fishing with nets,
that are fishing under the Exemption Program must use scallop dredge
gear that conforms to the current sea scallop dredge vessel gear
restrictions specified in Sec. 648.51, with the exception of the twine
top mesh size restrictions. For vessels fishing in the Exempted Area,
twine tops must have a minimum mesh size of 10-inch (25.40-cm) square
or diamond mesh. Vessels not fishing in the Exempted Area and fishing
under a scallop DAS are required to have a minimum mesh twine top of 8-
inch (20.32-cm) square or diamond mesh. This 8-inch (20.32-cm) minimum
mesh twine top requirement does not expire at the end of the fishing
year, but continues indefinitely. It has a delayed effective date of
December 16, 1999, to allow industry time to order and purchase this
gear. The purpose of increasing the twine top measurement is to reduce
bycatch of groundfish and other finfish. Recent research demonstrates
that this increase may significantly reduce bycatch of certain species,
especially flatfish species.
[[Page 31146]]
Vessels fishing under the Exemption Program are prohibited from
off-loading their scallop catch at more than one location. This measure
will help in monitoring the TAC as well as aid enforcement in tracking
landings and in enforcing the trip limit.
Disapproved Measure
The framework action proposed to restrict vessels to a maximum of
10 DAS when fishing east of a buffer zone established at 67 deg.40' W.
long. This restriction would require additional compliance monitoring
to ensure vessels remain within the 10 DAS limit. With certain
exceptions, current regulations at Sec. 648.51(c) limit crew size to a
maximum of seven persons, including the operator. However, some vessel
operators are considering taking fewer crew as a cost saving measure.
Fewer crew may require longer trips that could possibly exceed 10 DAS
if it were allowed. Therefore, because this measure would disrupt
alternative approaches by some vessel owners or operators to reduce
costs and increase efficiency, while having no discernable conservation
benefit, it violates national standard 5 and national standard 7 of the
Magnuson-Stevens Fishery Conservation and Management Act. National
standard 5 requires conservation and management measures consider
efficiency in the harvesting of fishery resources. National standard 7
requires conservation and management measures minimize costs where
practicable. Therefore, this measure is disapproved.
In addition to disapproving this measure, NMFS is unable to
guarantee observer coverage to the degree that the Council recommends
in the framework document. At its April 1999 meeting, the Council voted
to include a statement in the document that observer coverage should
occur on at least 25 percent of the scallop trips in the Exemption
Area. By this statement, the Council clearly is sending a strong
message about its serious concerns regarding the need to monitor this
fishery for compliance purposes, including accurate finfish bycatch
reports. NMFS shares this concern but cannot, at this time, fund a
domestic observer program to the level recommended by the Council. NMFS
is currently exploring several options that would fund observer
coverage, including the 43-mt set aside recommended by the Council for
this purpose.
Abbreviated Rulemaking
NMFS is making these revisions to the regulations under the
framework abbreviated rulemaking procedure codified at 50 CFR part 648,
subpart F. This procedure requires the Council, when making
specifically allowed adjustments to the FMP, to develop and analyze the
actions over the span of at least two Council meetings. The Council
must provide the public with advance notice of both the proposals and
the analysis, and an opportunity to comment on them prior to and at a
second Council meeting. Upon review of the analysis and public comment,
the Council may recommend to the Regional Administrator that the
measures be published as a final rule if certain conditions are met.
NMFS may publish the measures as a final rule, or as a proposed rule if
additional public comment is needed.
The public was provided the opportunity to express comments on
allowing access by scallop vessels into the multispecies closed areas
at numerous meetings. The following list includes all meetings,
including plan development team meetings, at which this action was on
the agenda, discussed, and public comment was heard:
------------------------------------------------------------------------
Date Meeting
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1997:
October 17 Scallop and Multispecies PDT
1998:
June 17 Scallop Advisory Panel
July 28-29 Scallop Oversight Committee
1999:
January 8 Scallop PDT
January 25-26 Scallop PDT
January 27-28 Council
February 4 Habitat Committee and
Habitat Advisory Panel
February 8 Scallop Advisory Panel
February 9 Scallop Oversight Committee
February 11 Multispecies Oversight
Committee
February 11 Scallop PDT
February 12 Gear Conflict Committee
February 23 Science and Statistical
Committee
February 24-25 Council
March 9 Habitat Committee and
Habitat Advisory Panel
March 16 Multispecies PDT
March 17-18 Scallop PDT
March 22-23 Joint Multispecies Oversight
Committee/Multispecies
Advisory Panel
March 29 Enforcement Oversight
Committee
April 8-9 Scallop Oversight Committee
April 14-15 Council
------------------------------------------------------------------------
Documents summarizing the Council's proposed action, and the
analysis of biological and economic impacts of this and alternative
actions, were available for public review 1 week prior to the final
Council meeting, as is required under the framework adjustment process.
Written comments were accepted up to, and during that meeting.
Comments and Responses
Comment 1: Several commenters stated that this action should remain
conservation neutral, i.e., there should be no net increase in fishing
mortality for sea scallops.
Response: The framework analyses demonstrate that total fishing
mortality will not increase, except in the unlikely event that a large
portion of inactive vessels, including vessels that hold a Confirmation
of Permit History, begin fishing.
Comment 2: Many industry participants requested that this
framework serve as a cornerstone for a more permanent rotational
scallop fishing strategy.
Response: The framework action's intent is to allow temporary
access to Closed Area II to scallop fishing while the Council develops
an amendment that may, as a portion of the management plan, include a
formal area rotation strategy. The scallop fishery for Closed Area II
will provide an opportunity to collect needed information to make this
strategy possible.
Comment 3: Some industry members commented that the sea scallop
management measures proposed for Closed Area II are too restrictive and
that fishing effort, consequently, would remain in the open areas.
Response: The Council has accounted for the benefits, costs, and
risks associated with the closed area fishery when choosing this
action. The EA shows that, currently, it would be more economical for
scallopers to fish in the Exemption Program than in the existing open
areas.
Comment 4: Several comments were received regarding the
shortsightedness of reopening Closed Area II regarding several
important fishery resources.
Response: As noted earlier, the EA concludes that there will be no
net increase in fishing mortality for scallops. One of the more
critical groundfish stocks, Georges Bank yellowtail, has recovered
considerably from its once highly depleted condition. While continued
rebuilding is necessary, this action takes the necessary steps to
protect this valuable resource through implementation of a TAC, which,
when reached, will result in eliminating access to Closed Area II by
scallop vessels. The action also promotes fishing effort reduction in
[[Page 31147]]
areas where scallops are depleted and increases yield, while at the
same time minimizing habitat impacts by keeping some important areas
closed. This action will thus promote rebuilding of the scallop
resource by reducing effort on small, fast-growing scallops and
minimize impacts on other rebuilding stocks. This action, therefore,
takes a meaningful step toward achieving optimum yield, considering
both the Sea Scallop and the Multispecies FMPs.
Comment 5: Some commenters expressed concern regarding the
destruction to the ocean floor that could be caused by scallop dredge
vessels in Closed Area II.
Response: This action re-opens only those areas in Closed Area II
that are believed to have the lowest habitat value within this area.
The bottom of the re-opened portion primarily consists of a high-energy
sand and shell bottom. While not devoid of other species, the habitat
in this area is not as complex and diverse as the habitats to the north
within Closed Area II, which will remain closed to scallop fishing.
Although the proposed action will increase impacts in the area to
be opened for scallop fishing, the compensating effect will be to
reduce scallop fishing effort in areas that are now open. Some of these
presently open areas have significantly more complex and diverse
habitat than that found in the southern portion of Closed Area II. The
biological impacts of this trade- off are discussed in the EA. On
balance, therefore, this action was determined to be consistent with
Essential Fish Habitat objectives.
A portion of the scallop target TAC has been set aside as a source
of funding for experiments that may help to identify more selective
fishing gears or gears that have less habitat impacts.
Comment 6: Several commenters noted that the Georges Bank closed
areas were closed to scallop dredge gear partly because this gear
disrupts spawning activity of groundfish.
Response: This action restricts access by scallop dredge vessels
into Closed Area II to a time frame when groundfish spawning activity
is considered to be minimal; i.e., June 15, 1999, to December 31, 1999.
Scallop vessel access to Closed Area I and the Nantucket Lightship
Closed Area are not allowed under this action at this time because of
concern regarding issues such as groundfish spawning activity.
Comment 7: Some commenters stated that any economic gain derived
from scallop fishing in Closed Area II will be offset or lost by the
setback to cod, yellowtail flounder, and other recovering species.
Response: This action sets a yellowtail flounder TAC, which, when
reached, results in termination of the Exemption Program. The
yellowtail TAC will ensure that the proposed closed area fishery will
not cause a setback to the species' rebuilding schedule. Cod and
haddock do not appear to be vulnerable to scallop fishing with dredges
within Closed Area II during the proposed fishing season. Furthermore,
increasing the twine top mesh and the expected effort transfers from
areas now open to scallop fishing will limit the impacts on other
species. By suspending the fishery when certain thresholds are exceeded
and by requiring different fishing gear, this action will mitigate the
negative impacts on species even though a net increase in mortality is
expected.
Comment 8: Several industry members commented that the yellowtail
flounder TAC will likely force an early closure of the Georges Bank Sea
Scallop Exemption Program.
Response: This action includes a 10-inch (25.40-cm) twine top mesh
for scallop dredge vessels that declare into the Exemption Program.
This larger mesh is expected to reduce yellowtail flounder bycatch
substantially. If coupled with voluntary industry efforts to change
fishing methods to avoid bycatch, these actions could delay suspension
of the fishery due to excess bycatch.
Comment 9: Questions were raised about barndoor skate and how this
exemption program may further impact this species.
Response: NMFS is currently considering a petition to list the
barndoor skate as an endangered species. Although bycatch information
on this species was derived from the 1998 experimental fishery, until
the barndoor skate population is assessed and more information becomes
available, the Council and NMFS are unable to determine the impacts on
the population.
Comment 10: Industry commented that the groundfish closure areas
compromise approximately half of the Georges Bank scallop grounds by
area and that scallop vessels should be able to regain access to these
areas.
Response: Under current conditions, the biomass within the closed
areas on Georges Bank includes much more than half of the scallop
biomass of the Georges Bank stock. This imbalance has arisen mainly due
to the excessively high fishing mortality on scallops within areas now
open to scallop fishing.
The Council and NMFS agree that access by scallopers could be
allowed into the closed areas if it does not jeopardize the rebuilding
schedule for groundfish or scallops and minimizes impacts on habitat as
much as possible. Since these issues have been adequately addressed for
Closed Area II, this action allows access to a portion of this area
under certain conditions.
Comment 11: Industry commented that gear research for the purposes
of reducing bycatch should be encouraged and suggested that a portion
of the TAC used to fund this.
Response: This action sets aside 1 percent of the scallop target
TAC (43 mt) as a means to fund research projects such as new gears or
gear modifications that would reduce bycatch by scallop dredge vessels.
Comment 12: Several industry members requested that the northeast
corner of the Nantucket Lightship Closed Area be open for scallop
fishing.
Response: This action does not reopen the Nantucket Lightship
Closed Area or portions of this area due to uncertainty about the
scallop and habitat resources in this area and, more particularly,
because of concern regarding the poor condition of the Southern New
England yellowtail flounder stock.
Comment 13: Due to the potential of gear conflicts, lobster
industry members requested that the closed area(s) to be reopened be
modified in such a way as to avoid areas with concentrations of lobster
pot gear.
Response: Smaller area options within Closed Area II were rejected
to give the scallop industry maximum flexibility to avoid stationary
gear and research experiments, as well as avoid finfish bycatch.
Fortunately, the experimental fishery showed that there are relatively
fewer scallops in most areas with dense concentrations of lobster pot
gear. The Council believes, and NMFS concurs, that it is better to let
the industry develop working arrangements in small, specific areas
where lobster gear might temporarily coincide with areas of higher
scallop abundance.
Comment 14: One commenter asked why the intermediate harvestable
sea scallop biomass estimate (4,300 mt) was selected over the high
biomass estimate (6,300 mt).
Response: The Council chose, and NMFS is implementing by this
action, a target scallop TAC that represents an intermediate
harvestable biomass estimate provided by scientists. These biomass
figures were based on different dredge efficiency estimates. Because of
uncertainty surrounding the correct dredge efficiency to use, combined
with a Scallop Plan Development Team recommendation against choosing
the high biomass figure because of risk
[[Page 31148]]
factors associated with historically high catch levels, this action
adopts the intermediate estimate of 4,300 mt.
Comment 15: Safety issues were raised regarding the concentration
of scallop vessels into small reopened portions of Closed Area II.
Response: This action allows access to the largest area that was
under consideration during the development of Framework Adjustment 11/
29. This larger area gives the fleet the most flexibility to avoid
bycatch and reduces the potential for problems caused by crowding.
Comment 16: Concern was expressed that this exemption program would
encourage a ``derby-style'' fishery.
Response: Although a derby-style fishery could ensue, the scallop
possession limit to some extent addresses this concern.
Comment 17: Many people have commented that the high biomass of
scallops in Closed Area II represents an important opportunity to learn
how to manage an essentially rebuilt stock for optimum yield, as
national standard 1 requires.
Response: Additional data collected during the closed area scallop
fishery could be an important source of information for developing an
area rotation management strategy, contemplated for Amendment 10 to the
Atlantic Sea Scallop FMP.
Comment 18: Industry commented that they cannot accommodate the
required gear modification in time for the planned implementation of
the framework adjustment. The proposed action will cause substantial
amounts of inventory to become obsolete and the gear cannot be used for
other purposes.
Response: A primary reason for requiring 8-inch (20.32-cm) mesh
twine tops in all areas outside of the Exemption Area is to compensate
for the increased bycatch expected in the closed area scallop fishery.
Although only limited studies of its effectiveness are available,
preliminary indications are that substantial bycatch reductions can be
expected (especially for flounders), without losing many scallops in
areas now open to fishing. This gear is expected to have additional,
but unquantified long-term benefits that will be realized through
reducing unwanted bycatch or bycatch that cannot be legally landed.
Implementation of the 8-inch (20.32-cm) twine top requirement will be
delayed until December 16, 1999, to allow time to obtain adequate
supplies.
The cost of purchasing new twine tops is minimal when compared to
the benefits and increased profits expected from this measure. Vessels
that are not able to obtain 10-inch (25.40-cm) mesh twine tops will be
able to take their three closed area trips later in the season,
provided that the fishery is not suspended for exceeding the yellowtail
flounder target TAC.
Comment 19: Industry commented that early access to the closed area
is necessary to avoid adverse fall weather and corresponding safety
issues, as well as to improve scallop yield.
Response: This action will allow access for scallop fishing in
Closed Area II starting June 15, 1999. Although full-time scallop
vessels generally fish year-round, part-time and occasional vessels,
which tend to be smaller, less seaworthy vessels, would benefit from
this early opening since it will allow them to take all of their trips
during the summer months when weather is often favorable and scallop
yield is high.
Classification
Notice and opportunity for public comment were provided to discuss
the management measures implemented by this rule. Comments were
received from members of the fishing industry and are responded to in
the preamble of this rule. Therefore, the Assistant Administrator for
Fisheries, NOAA (AA), under 5 U.S.C. 553(b)(B), finds for good cause
that additional prior notice and additional opportunity for public
comment is unnecessary and for the reasons set forth below it would be
contrary to the public interest to delay this rule in order to provide
further notice and further opportunity for public comment.
Recently, Amendment 7 to the Atlantic Sea Scallop FMP became
effective (64 FR 14835, March 29, 1999). This amendment, which
addresses the new Sustainable Fisheries Act requirements, substantially
reduces the level of fishing for scallops through the year 2008 by
revising the current fishing effort reduction schedule. Although a less
severe reduction is proposed for fishing year 1999, failure to allow
scallop vessels access to Closed Area II as soon as finfish bycatch
concerns would be mitigated to the largest extent possible, i.e., June
15, will increase costs to scallop vessels fishing in currently open
areas where scallop biomass is low and where the stock is dominated by
small scallops. Furthermore, an earlier opening date will allow more
time for smaller vessels to fish their allotted trips during good
weather. Accordingly, the AA also finds that under 5 U.S.C. 553(d), the
need to have this regulation in place by June 15, 1999, is good cause
to waive part of the 30-day delay in effectiveness of this regulation.
Because a general notice of proposed rulemaking as specified in 5
U.S.C. 533 is not being published as explained above, the analytical
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
are inapplicable. While a regulatory flexibility analysis is not
required and none has been prepared, the socioeconomic impacts on
affected fishers and alternatives to mitigate such impacts were
considered by the Council and NMFS. The primary intent of this action
is to allow scallop vessels an opportunity to remain economically
viable, while ensuring that the fishing mortality for the entire sea
scallop stock does not exceed the F target of F=0.83 in the FMP for
1999.
This final rule has been determined to be significant for the
purposes of E.O. 12866.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB control number.
This rule contains three new collection-of-information requirements
and revises three current collection-of-information requirements. The
collection of this information has been approved through emergency
clearance by OMB under OMB control number 0648-0385. The estimated
response times are as follows:
New Collection-of-Information Requirements
1. Monthly reporting of intention to fish in the Georges Bank Sea
Scallop Exemption Program through the VMS e-mail messaging system
(Sec. 648.58(c)(3)(i))(10 minutes/response).
2. Daily reporting of sea scallops kept and, for observed trips,
sea scallops kept and yellowtail flounder caught on observed tows
through the VMS e-mail messaging system for vessels fishing in the
Georges Bank Sea Scallop Exemption Program (Sec. 648.58(c)(10))(10
minutes/response).
3. Notice requirements for observer deployment
(Sec. 648.58(c)(3)(iii))(2 minutes/response).
Revised Collection-of-Information Requirements 1. Documentation of
installation of a VMS unit (Sec. 648.10(b)) (2 minutes/response).
2. Declaration into the Georges Bank Sea Scallop Exemption Program
through the VMS prior to leaving the dock (Sec. 648.58(c)(3)(ii))(2
minutes/response)
[[Page 31149]]
3. Installation of a VMS unit on board the vessel
(Sec. 648.10(b))(1 hour/response).
The estimated response time includes the time needed for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Public comment is sought regarding: Whether
this collection of information is necessary for the proper performance
of the functions of the agency, including whether the information has
practical utility; the accuracy of the burden estimate; ways to enhance
the quality, utility, and clarity of the information to be collected;
and ways to minimize the burden of the collection of information,
including through the use of automated collection techniques or other
forms of information technology. Send comments regarding any of these
burden estimates or any other aspect of the collection-of-information
to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: June 7, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, NationalMarine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.10, paragraph (b) introductory text is revised to
read as follows:
Sec. 648.10 DAS notification requirements.
* * * * *
(b) VMS Notification. Multispecies vessels issued an Individual DAS
or Combination Vessel permit, scallop vessels issued a full-time or
part-time limited access scallop permit, and scallop vessels issued an
occasional limited access permit when fishing under the Georges Bank
Sea Scallop Exemption Program specified in Sec. 648.58, or scallop
vessels fishing under the small dredge program specified in
Sec. 648.51(e), or vessels issued a limited access multispecies or
scallop permit and whose owners elect to fish under the VMS
notification of this paragraph (b), unless otherwise authorized or
required by the Regional Administrator under Sec. 648.10(d), must have
installed on board an operational VMS unit that meets the minimum
performance criteria specified in Sec. 648.9(b) or as modified in
Sec. 648.9(a). Owners of such vessels must provide documentation to the
Regional Administrator at the time of application for a limited access
permit that the vessel has an operational VMS installed on board that
meets those criteria. If a vessel has already been issued a limited
access permit without the owner providing such documentation, the
Regional Administrator shall allow at least 30 days for the an
operational VMS unit that meets the criteria to be installed on board
the vessel and for the owner to provide documentation of such
installation to the Regional Administrator. Vessels that are required
to or have elected to use a VMS unit shall be subject to the following
requirements and presumptions:
* * * * *
3. In Sec. 648.14, paragraphs (a)(39) and (h)(13) are revised and
paragraphs (h)(27) and (h)(28) are added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(39) Enter or be in the area described in Sec. 648.81(b)(1) on a
fishing vessel, except as provided by Sec. 648.58, during the time and
in the portion of Closed Area II specified in Sec. 648.58 or
648.81(b)(2).
* * * * *
(h) * * *
(13) Possess more than 40 lb (18.14 kg) of shucked, or 5 bu (176.1
L) of in-shell scallops, or fish under the DAS allocation program,
while in possession of dredge gear that uses net or net material, or
any other material, on the top half of the dredge with a mesh size
smaller than that specified in Sec. 648.51(b)(2), unless otherwise
prohibited under paragraph (h)(27) of this section.
* * * * *
(27) Enter or be in the area described in Sec. 648.58(b) when
fishing under a scallop DAS, with a net, net material, or any other
material on the top half of the dredge with mesh size smaller than that
specified in Sec. 648.58(c)(7).
(28) Fail to comply with any of the provisions and specifications
of Sec. 648.58.
* * * * *
4. In Sec. 648.51, paragraph (b) introductory text, and paragraph
(b)(2) are revised to read as follows:
Sec. 648.51 Gear and crew restrictions.
* * * * *
(b) Dredge vessel gear restrictions. All dredge vessels fishing for
or in possession of more than 40 lb (18.14 kg) of shucked, or 5 bu
(176.1 L) of in-shell scallops, all trawl vessels fishing for scallops,
and all dredge vessels issued a limited access scallop permit and
fishing under the DAS program with the exception of hydraulic clam
dredges and mahogany quahog dredges in possession of 400 lb (181.44
kg), or less, of scallops, must comply with the following restrictions,
unless otherwise specified:
* * * * *
(2) Minimum mesh size. (i) From June 15, 1999, through December 15,
1999, for vessels fishing under a scallop DAS, unless otherwise
restricted under Sec. 648.58, and from June 15, 1999, and beyond, for
all vessels not fishing under the scallop DAS program, the mesh size of
a net, net material, or any other material on the top of a scallop
dredge in use by or in possession of such vessels shall not be smaller
than 5.5 inches (13.97 cm) square or diamond mesh.
(ii) Starting December 16, 1999, unless otherwise restricted under
Sec. 648.58, the mesh size of a net, net material, or any other
material on the top of a scallop dredge possessed or used by vessels
fishing under a scallop DAS shall not be smaller than 8-inch (20.32-cm)
square or diamond mesh.
(iii) Mesh size is measured as provided in paragraph (a)(2)(iii) of
this section.
* * * * *
5. In Sec. 648.52, paragraph (c) is added to read as follows:
Sec. 648.52 Possession limits.
* * * * *
(c) Owners or operators of vessels with a limited access scallop
permit that have declared into the Georges Bank Sea Scallop Exemption
Program as described in Sec. 648.58 are prohibited from possessing or
landing per trip more than the sea scallop possession limit specified
in Sec. 648.58(c)(6).
6. Section 648.58 is added to read as follows:
Sec. 648.58 Georges Bank Sea Scallop Exemption Program.
(a) Eligibility. (1) During the period June 15, 1999, through
December 31, 1999, all scallop vessels issued a limited access scallop
permit may fish in the Georges Bank Sea Scallop Exemption Area, defined
in paragraph (b) of this section, when fishing under a scallop DAS,
provided the vessel complies with the requirements of paragraph (c) of
this section.
(2) Except for scallop vessels fishing under a scallop DAS that
have not declared a fishing trip into the Georges
[[Page 31150]]
Bank Sea Scallop Exemption Program, as specified under paragraph
(c)(3)(i) of this section, vessels may fish in that portion of the
exemption area described in paragraph (b) of this section that lies
outside of Closed Area II, as described in Sec. 648.81(b), provided the
vessel complies with all applicable regulations.
(b) Georges Bank Sea Scallop Exemption Area. The Georges Bank Sea
Scallop Exemption Area (copies of a map depicting the area are
available from the Regional Administrator upon request) is defined by
straight lines connecting the following points in the order stated:
GEORGES BANK SEA SCALLOP EXEMPTION AREA
----------------------------------------------------------------------------------------------------------------
Point N. Lat. W. Long.
----------------------------------------------------------------------------------------------------------------
DA1 40 deg.24.0 67 deg.40.000'
00'
DA2 40 deg.24.0 65 deg.43.121'(on U.S./Canada Maritime Boundary)
00'
G6 41 deg.30.0 66 deg.34.728'(on U.S./Canada Maritime Boundary)
00'
G7 41 deg.30.0 67 deg.20.000'
00'
DA4 42 deg.12.0 67 deg.20.000'
00'
DA5 42 deg.12.0 67 deg.40.000'
00'
DA1 40 deg.24.0 67 deg.40.000'
00'
----------------------------------------------------------------------------------------------------------------
(c) Requirements. To fish in the Georges Bank Sea Scallop Exemption
Area under the Georges Bank Sea Scallop Exemption Program an eligible
vessel must comply with the following requirements:
(1) Season. The vessel may only fish in the Georges Bank Sea
Scallop Exemption Area under the Georges Bank Sea Scallop Exemption
Program only from June 15 through December 31, 1999, unless otherwise
specified by notification in the Federal Register.
(2) VMS. The vessel must have installed on board an operational VMS
unit that meets the minimum performance criteria specified in
Sec. 648.9(b) or as modified in Sec. 648.9(a).
(3) Declaration. (i) The vessel must submit a monthly report
through the VMS e-mail messaging system, prior to the 15th of the month
preceding the month in question, of its intention to fish in the
exemption area, along with the following information: Vessel name and
permit number, owner and operator's name, owner and operator's phone
numbers, and number of trips anticipated for the month in question.
(ii) In addition, on the day the vessel leaves port to fish under
the Georges Bank Sea Scallop Exemption Program, the vessel owner or
operator must declare into the Program through the VMS, in accordance
with instructions to be provided by the Regional Administrator prior to
leaving port.
(iii) A vessel selected for observer coverage must provide notice
to NMFS, in accordance with the notification requirements specified
under Sec. 648.11(b), as to the time and port of departure at least 5
working days prior to the beginning of any trip on which it declares
into the Georges Bank Sea Scallop Exemption Program.
(4) Number of trips. If the vessel is a full or part-time scallop
vessel, it must not fish more than three trips in the Georges Bank Sea
Scallop Exemption Area during the season described in paragraph (c)(1)
of this section, unless otherwise specified by notification in the
Federal Register. If the vessel is an occasional scallop vessel, it
must not fish more than one trip in the Georges Bank Sea Scallop
Exemption Area during the season described in paragraph (c)(1) of this
section.
(5) Area fished. A vessel that has declared a trip into the Georges
Bank Sea Scallop Exemption Program must not fish for, catch, or harvest
scallops from outside of the Georges Bank Sea Scallop Exemption Area
and must not enter or exit the Exemption Area more than once per trip.
(6) Possession limits. (i) Unless otherwise authorized by the
Regional Administrator as specified in paragraph (e) of this section, a
vessel declared into the Georges Bank Sea Scallop Exemption Program may
possess and land up to 10,000 lb (4,536.0 kg) of scallop meats per
trip, with a maximum of 400 lb (181.4 kg) of the possession limit
originating from 50 bu (176.1 L) of in-shell scallops.
(ii) The vessel may possess and land up to 500 lb (226.8 kg) of
regulated multispecies, unless otherwise restricted under
Sec. 648.86(a)(2)(i) or (b), or the vessel is carrying a NMFS approved
sea sampler or observer on board the vessel. A vessel carrying an
approved sea sampler or observer may possess all regulated multispecies
caught, provided the regulated multispecies in excess of 500 lb (226.8-
kg) are donated to charity. A vessel subject to the 500-lb (226.8-kg)
possession limit must separate all regulated multispecies onboard from
other species of fish so as to be readily available for inspection.
(7) Gear restrictions. The vessel must fish with or possess scallop
dredge gear only in accordance with the dredge vessel restrictions
specified under Sec. 648.51(b), except that the mesh size of a net, net
material, or any other material on the top of a scallop dredge in use
by or in possession of the vessel shall not be smaller than 10.0 inches
(25.40 cm) square or diamond mesh.
(8) Transiting. When transiting to and from the Georges Bank Sea
Scallop Exemption Area, all gear on board must be properly stowed and
not available for immediate use in accordance with the provisions of
Sec. 648.81(e).
(9) Off-loading restrictions. The vessel may not off-load its sea
scallop catch at more than one location.
(10) Reporting. The owner or operator must submit reports through
the VMS, in accordance with instructions to be provided by the Regional
Administrator, for each day fished when declared in the Georges Bank
Sea Scallop Exemption Program. The reports must be submitted in 24-hour
intervals, beginning at 0000 hours and ending at 2400 hours each day,
and include the following information:
(i) Total pounds/kilograms of scallop meats kept; and
(ii) For each trip that the vessel has a NMFS approved observer on
board, the total pounds/kilograms of scallop meats kept and total
pounds/kilograms of yellowtail flounder caught on tows that were
observed by a NMFS approved observer.
(d) Accrual of DAS. A scallop vessel that has declared a fishing
trip into the Georges Bank Sea Scallop Exemption Program of this
section shall have a minimum of 10 DAS deducted from its DAS
allocation, regardless of whether the actual number of DAS used during
the trip is less than 10. Trips that exceed 10 DAS will be counted as
actual time.
(e) Possession limit increase. The Regional Administrator may
increase the sea scallop possession limit specified under paragraph
(c)(6) of this section for a vessel that has declared a
[[Page 31151]]
fishing trip into the Georges Bank Sea Scallop Exemption Program and on
which a NMFS approved sea sampler or observer is on board the vessel,
or on which a NMFS approved research project is being conducted.
Notification of this increase of the possession limit will be provided
to the vessel with the observer selection notification. The amount of
the possession limit increase will be determined by the Regional
Administrator and the vessel owner will be responsible for paying the
cost of the observer and/or defraying the cost of the research project,
whichever is applicable, regardless of whether the vessel lands or
sells sea scallops on that trip.
(f) In-season adjustments. (1) Adjustment process for sea scallop
possession limit and number of trips under the Georges Bank Sea Scallop
Exemption Program. On or after October 1, 1999, the Regional
Administrator may adjust the sea scallop possession limit, and/or
allocate one or more additional trips for full and part-time limited
access sea scallop vessels that declared into and began a trip under
the Georges Bank Sea Scallop Exemption Program prior to September 1,
1999. Occasional permitted vessels would not be allocated an additional
trip regardless of whether or not they declared or began an exempted
trip before September 1, 1999.
(2) Termination of Georges Bank Sea Scallop Exemption Program
because of yellowtail flounder bycatch/incidental catch. NMFS shall
publish notification in the Federal Register that the Georges Bank Sea
Scallop Exemption Program is terminated as of the date the Regional
Administrator projects that the 387 mt of yellowtail flounder will be
caught by vessels fishing in the Georges Bank Sea Scallop Exemption
Program described in this section.
(g) Transiting. Limited access sea scallop vessels intending to
fish for scallops under a scallop DAS that have not declared a trip
into the Georges Bank Sea Scallop Exemption Program may not enter,
fish, or be in the area known as the Georges Bank Sea Scallop Exemption
Area described in paragraph (b) of this section, unless:
(1) The operator has determined that there is a compelling safety
reason; and
(2) The vessel's fishing gear is stowed in accordance with the
requirements of Sec. 648.81(e).
7. In Sec. 648.80, paragraph (h)(1) is revised to read as follows:
Sec. 648.80 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(h) * * * (1) Except as provided in paragraph (h)(2) of this
section and in Sec. 648.58(c)(6)(ii), a scallop vessel that possesses a
limited access scallop permit and either a multispecies combination
vessel permit or a scallop multispecies possession limit permit, and
that is fishing under a scallop DAS allocated under Sec. 648.53, may
possess and land up to 300 lb (136.1 kg) of regulated species per trip,
provided that the amount of cod on board does not exceed the daily cod
limit specified in Sec. 648.86(b), up to a maximum of 300 lb (136.1 kg)
of cod for the entire trip, and provided the vessel has at least one
standard tote on board, unless otherwise restricted by
Sec. 648.86(a)(2).
* * * * *
8. In Sec. 648.81, paragraph (b)(1) introductory text is revised to
read as follows:
Sec. 648.81 Closed areas.
* * * * *
(b) * * * (1) No fishing vessel or person on a fishing vessel may
enter, fish, or be in the area known as Closed Area II (copies of a map
depicting this area are available from the Regional Administrator upon
request), as defined by straight lines connecting the following points
in the order stated, except as specified in paragraph (b)(2) of this
section, or unless exempt under the Georges Bank Sea Scallop Exemption
Program specified under Sec. 648.58 during the time and in the portion
of Closed Area II described in Sec. 648.58(b):
* * * * *
9. In Sec. 648.86, the section heading and paragraphs (a)(2)(iii)
and (c) are revised to read as follows:
Sec. 648.86 Possession restrictions.
* * * * *
(a) * * *
(2) * * *
(iii) Except for vessels fishing under the Georges Bank Sea Scallop
Exemption Program from July 1 through December 31, 1999, as provided in
Sec. 648.58(c)(6)(ii), scallop dredge vessels or persons owning or
operating a scallop dredge vessel that is fishing under a scallop DAS
allocated under Sec. 648.53 may land or possess on board up to 300 lb
(136.1 kg) of haddock, provided that the vessel has at least one
standard tote on board. This restriction does not apply to vessels
issued NE multispecies Combination Vessel permits that are fishing
under a multispecies DAS. Haddock on board a vessel subject to this
possession limit must be separated from other species of fish and
stored so as to be readily available for inspection.
* * * * *
(c) Other possession restrictions. Vessels are subject to all other
applicable possession limit restrictions as specified under
Sec. 648.58(c)(6), Sec. 648.82(b)(3), Sec. 648.83(b)(1), Sec. 648.88(a)
and (c), and Sec. 648.89(c).
10. In Sec. 648.88, paragraph (c) is revised to read as follows:
Sec. 648.88 Open access permit restrictions.
* * * * *
(c) Scallop multispecies possession limit permit. Unless otherwise
prohibited in Sec. 648.86(b), and except as provided in
Sec. 648.58(c)(6)(ii) for vessels fishing under the Georges Bank Sea
Scallop Exemption Program, a vessel that has been issued a valid open
access scallop multispecies possession limit permit may possess and
land up to 300 lb (136.1 kg) of regulated species when fishing under a
scallop DAS allocated under Sec. 648.53, provided that the amount of
cod on board does not exceed the daily cod limit specified in
Sec. 648.86(b), up to a maximum of 300 lb (136.1 kg) of cod for the
entire trip, and that the vessel does not fish for, possess, or land
haddock from January 1 through June 30 as specified under
Sec. 648.86(a)(2)(i), and provided the vessel has at least one standard
tote on board.
* * * * *
[FR Doc. 99-14745 Filed 6-7-99; 2:35 pm]
BILLING CODE 3510-22-F
