Atlantic Sea Scallop Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 650

[Docket No. 94111-4311; I.D. 102494B]

Atlantic Sea Scallop Fishery

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 Framework Adjustment

2 to the Atlantic Sea Scallop Fishery Management Plan (FMP). This rule

implements an exemption from Federal gear regulations for vessels when

fishing in state waters under a state scallop management program.

EFFECTIVE DATE: November 16, 1994.

ADDRESSES: Copies of Amendment 4 to the FMP, and its regulatory impact

review (RIR), initial regulatory flexibility analysis (IRFA), final

supplemental environmental impact statement (FSEIS), and Framework

Adjustment 2 are available from Douglas Marshall, Executive Director,

New England Fishery Management Council, 5 Broadway, Saugus, MA 01906-

1097.

Comments regarding the burden-hour estimates or any other aspect of

the collection-of-information requirements contained in this final rule

should be sent to Allen E. Peterson, Jr., Acting Regional Director, One

Blackburn Drive, Gloucester, MA 01930, and to the Office of Information

and Regulatory Affairs, Office of Management and Budget (OMB)

(Attention NOAA Desk Officer), Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst,

508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

Amendment 4 to the FMP was approved on November 5, 1993, and

implemented on March 1, 1994. Amendment 4 changed the primary

management strategy from a meat count (size) control to effort control.

The FMP controls total fishing effort through limited entry and a

schedule of reductions in allowable time at sea. Supplemental measures

include gear restrictions, limits on the number of crew members, and

vessel restrictions. There are also catch limits for vessels not in the

limited access fishery and a framework procedure for adjusting all the

management measures in the FMP.

This framework adjustment exempts Federal permit holders from

Federal gear restrictions when fishing in state waters under a state

management program that has been determined by NMFS not to jeopardize

the fishing mortality/effort reduction objectives of the FMP. The

principal gear restrictions from which participants in the program are

exempted are minimum ring size requirements, restrictions on dredge

width, the use of chafing gear, ring configuration and linkage

restrictions, and restrictions on spare dredges and nets.

Current state management measures in Maine and Massachusetts and

the restrictions proposed by New Hampshire have been determined by NMFS

not to jeopardize the fishing mortality/effort reduction objectives of

the FMP. All have restrictions that are adequate to address Federal

conservation and management concerns because they have overall gear

requirements that are more restrictive than Federal regulations and

because they apply to scallop resources that are predominantly in state

waters. Massachusetts and New Hampshire management measures, in

particular, are more restrictive because both include a minimum 3\1/4\-

inch (83-mm) ring size requirement in addition to other restrictions on

dredge size. The Gulf of Maine and Cape Cod stocks of sea scallops are

separate from the major stocks on Georges Bank and in the Mid-Atlantic

area, and therefore are not included in the rebuilding program for the

fishery. Based on landings, approximately 80 percent of the Gulf of

Maine fishery takes place in state waters and its management is

predominately a state responsibility.

The purpose of this action is to allow Federal permit holders to

compete in the state waters fishery on a more equitable basis where

Federal and state laws are inconsistent and to encourage vessels with

general category permits to fish under the exemption program and

continue to submit catch and effort data. Not implementing an exemption

could force general category vessels that target scallops to cancel

their Federal permits and be exempt from all Federal requirements,

including reporting of landings while fishing in state waters. These

vessels are able to re-apply for a general category permit at anytime.

Conversely, limited access permit holders that voluntarily relinquish

their permits can not re-apply.

Without this exemption, the most significant inconsistency between

the requirements of Federal vs. state sea scallop fishery permit

holders occurs in Maine. (Maine does not have ring size restrictions,

but both Massachusetts and New Hampshire have regulations that are the

same or are more restrictive than Federal regulations.) Maine-permitted

boats typically fish with 3-inch (76-mm) rings or smaller. Because the

Gulf of Maine sea scallop resource normally consists of beds of

spatfall that belong to the same year class and thus all have almost

the same shell size, Maine-permitted boats would leave few scallops for

federally permitted vessels with 3\1/4\-inch (83-mm) rings or larger.

Under this gear exemption program, which allows Federal permit holders

to use smaller rings in state waters, Federal permit holders can

compete on an equal footing with Maine state-waters-only vessel

operators whose dredges have rings that are smaller than allowed under

Federal regulations. Although this particular inconsistency does not

exist in Massachusetts and New Hampshire, there are other restrictions

in those states relating to gear that could create a competitive

disadvantage between state and Federal permit holders.

The exemption program also allows Federal permit holders to avoid

the cost of changing the rings on existing gear if they intend to use

the gear only in state waters.

The impacts of the adjustment fall within the scope of the impacts

analyzed in Amendment 4 to the FMP and the FSEIS. The rationale and

analyses of expected biological effects, economic impacts, impacts on

employment are discussed further in the framework adjustment document

(see ADDRESSES).

Comments on Draft Framework No. 2 and Responses

NMFS is amending the scallop regulations following the procedure

for framework adjustments established by Amendment 4 and codified in 50

CFR part 650, subpart C. The New England Fishery Management Council

(Council) followed the framework procedure when making this adjustment

by developing and analyzing the actions over three Council meetings, on

May 11, June 30, and September 21, 1994. The Council provided the

public with advance notice of both the proposal and the analysis, and

the opportunity to comment on them prior to and at the Council

meetings. Upon review of the analysis and public comment (see below),

the Council recommended to the Director, Northeast Region, NMFS

(Regional Director), that the measures contained in this framework

adjustment be published as a final rule. The Regional Director has

agreed with this determination.

Comment: One commenter expressed disbelief that fishing in Maine

with 3-inch (76-mm) rings and a dredge as small as 4\1/4\ ft (1.4 m)

would be a violation.

Response: Current regulations would require Federal permit holders

to change the rings on their dredges to 3\1/4\ inches (83 mm) during

the 1994-5 season, and again to 3\1/2\ inches (89 mm) in 1996, even if

they were fishing strictly in state waters. The gear exemption will

allow fishermen to continue to use rings smaller than 3\1/4\ inches (83

mm) along with the dredge sizes required by Maine regulations.

Comment: There were two comments dealing with keeping track of

vessels and where they fish. One commenter believes that the vessel

tracking system (VTS) must be required to accomplish this. The U.S.

Coast Guard commented that it will be difficult to determine who is

fishing inside and outside of state waters.

Response: The VTS is considered a potential aid to enforcement of

this provision but is not essential to its enforcement. When the VTS

requirement is implemented, all limited access vessels required to have

a VTS under a Federal permit (full-time and part-time vessels) must use

them while fishing in the state waters exemption program. Limited

access vessels in the occasional category will continue to be required

to call in, but general permit holders will not be required to call in

while in the state waters exemption program. General permit holders

will be required to report landings and other data.

The primary Federal enforcement concern regarding the Gulf of Maine

scallop resource is that vessels with state permits only, or with

exemptions from Federal requirements, might fish in the Exclusive

Economic Zone (EEZ) with gear not meeting Federal requirements. This

problem exists whether or not a gear exemption program for Federal

permit holders is implemented. Also, Federal enforcement personnel must

still monitor scallop gear used by Federal limited access permit

holders. Lists of vessels participating in the exemption program will

be given periodically to enforcement agents to minimize problems.

Therefore, exempting these vessels should not create any additional

enforcement burden.

Comment: The Maine Scallopers Association supported the exemption

from the ring size requirements.

Response: The gear exemption program responds to this concern by

allowing vessels to fish in state waters with gear that conforms to the

requirements of state management programs, provided that the exemption

does not jeopardize the achievement of the fishing mortality/effort

reduction objectives of the FMP.

Comment: The Maine Scallopers Association was concerned about the

cost of VTS and thought that it should not be required while vessels

are fishing in state waters.

Response: Vessels will not be required to purchase VTS because of

the gear exemption program. Only vessels that will be required to use

VTS in the Federal limited access scallop fishery must use it while

participating in the state waters fishery.

Classification

This final rule has been determined to be not significant for

purposes of E.O. 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds there

is good cause to waive prior notice and opportunity for comment under 5

U.S.C. 553(b)(B). The provision of advance notice as described in this

rule and public meetings held by the Council to discuss the management

measures implemented by this rule provided adequate prior notice and

opportunity for public comment to be considered. Thus, additional

opportunity for public comment is unnecessary. Because no proposed rule

was required, this action is exempt from the procedures of the

Regulatory Flexibility Act. The AA also finds that under section

553(d)(1) of the Administrative Procedure Act, because immediate

implementation of this rule relieves a restriction that would require

vessels fishing in state waters to fish under the Federal gear

requirements, there is no need to delay for 30 days the effectiveness

of this regulation.

This rule contains collection-of-information requirements subject

to the Paperwork Reduction Act. These requirements have been approved

by OMB under Control Number 0648-0202. The reporting burden is

estimated at 2 minutes per response. This time includes reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection-of-information requirement,

including suggestions for reducing the burden, to NMFS and OMB (see

ADDRESSES).

List of Subjects in 50 CFR Part 650

Fisheries, Reporting and recordkeeping requirements.

Dated: November 16, 1994.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 650 is amended

as follows:

PART 650--ATLANTIC SEA SCALLOP FISHERY

1. The authority citation for part 650 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

Sec. 650.22 [Amended]

2. In Sec. 650.22(a), the phrase ``DAS exemption program'' is

removed and the phrase ``state waters exemption program'' is added in

its place.

3. Section 650.27 is revised to read as follows:

Sec. 650.27 State waters exemption program.

(a) DAS exemption. Any owner of a vessel issued a limited access

scallop permit under Sec. 650.4(a) may request an exemption from the

DAS Program, in accordance with notification requirements specified in

paragraph (c) of this section, while fishing exclusively landward of

the outer boundary of a state's waters. Any such exemption granted will

exempt the vessel from the DAS requirements specified under

Sec. 650.24(c) as long as the vessel complies with paragraphs (c)

through (f) of this section.

(b) Gear restriction exemption. (1) Limited access permits. Any

vessel issued a limited access scallop permit for which an exemption

has been granted pursuant to paragraph (a) of this section will also be

exempted from the gear restrictions specified under Sec. 650.21(a),

(b), (e)(1) and (e)(2) while fishing exclusively landward of the outer

boundary of the waters of a state that has been listed as an eligible

state as specified in paragraph (b)(3) of this section, as long as the

vessel complies with paragraphs (c) through (f) of this section.

(2) General permits. Any owner of a vessel issued a general scallop

permit shall be exempted from the gear restrictions specified in

Sec. 650.21(a), (b), (e)(1) and (e)(2) while fishing exclusively

landward of the outer boundary of the waters of a state that has been

listed as an eligible state as specified in paragraph (b)(3) of this

section, as long as the vessel complies with paragraphs (d) through (f)

of this section.

(3) State eligibility for gear exemption. (i) Vessels may be

granted an exemption from gear restrictions as specified in paragraphs

(b)(1) and (2) of this section if such vessels are fishing exclusively

landward of the outer boundary of the waters of a state that has been

determined by the Regional Director to have an Atlantic sea scallop

fishery and a scallop conservation program that does not jeopardize the

fishing mortality/effort reduction objectives of the FMP.

(ii) State eligibility. The following states have been determined

to have an Atlantic sea scallop fishery and a scallop conservation

program that do not jeopardize the fishing mortality/effort reduction

objectives of the FMP:

(A) Maine.

(B) New Hampshire.

(C) Massachusetts.

(iii) Changes in state eligibility. The states that have been

determined to be eligible, as specified in paragraph (b)(3)(ii) of this

section, shall immediately notify the Regional Director of any changes

in their scallop conservation program. The Regional Director will

review these changes and, if a determination is made that the state's

conservation program jeopardizes the fishing mortality/effort reduction

objectives of the FMP or that the state no longer has a sea scallop

fishery, the Regional Director shall publish a final rule in the

Federal Register terminating that state's eligibility. The Regional

Director may add any other state that is determined eligible, as

described in paragraph (b)(3) of this section, by publication of a

final rule in the Federal Register.

(c) Notification requirements. (1) VTS notification. Vessel owners

requesting a state waters exemption via a VTS shall:

(i) Notify NMFS, via their VTS, prior to the vessel's first trip

under the state waters exemption program, that the vessel will be

fishing exclusively in state waters; and

(ii) Notify NMFS, via their VTS, prior to the vessel's first

planned trip in the EEZ, that the vessel is to resume fishing under the

vessel's DAS allocation.

(2) Telephone notification. Vessel owners opting to request entry

into the state waters exemption program by phone shall:

(i) Notify NMFS by calling 508-281-9335 with the following

information at least 7 days prior to the date on which the exemption is

requested:

(A) Owner and caller name and address;

(B) Vessel name and permit number; and

(C) Beginning and ending dates of the exemption period;

(ii) Remain in the exemption program a minimum of 7 days; and

(iii) If an exemption holder has been in the program a minimum of 7

days and wishes to withdraw earlier than the designated end of the

exemption period, the exemption holder must notify the Regional

Director of early withdrawal from the program. Notification of

withdrawal is made by calling 508-281-9335. When providing notice, the

exemption holder will specify that the request is for withdrawal from

the program and provide the vessel name and permit number, and the name

and phone number of the caller. The exemption holder may not leave port

to fish in the EEZ until 48 hours after notification of early

withdrawal is received by the Regional Director.

(d) A vessel participating in the state waters exemption program

may not fish in the EEZ during the participation period.

(e) Participation in the state waters exemption program expires

when the owner's or vessel's name changes.

(f) Vessels participating in the state waters exemption program

continue to be subject to all the other requirements of this part.

[FR Doc. 94-28681 Filed 11-16-94; 4:18 pm]

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