Atlantic Sea Scallop Fishery

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 650

[Docket No. 940368-4068; I.D. 030294C]

Atlantic Sea Scallop Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Emergency interim rule.

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SUMMARY: NMFS issues this emergency interim rule to provide

alternatives to the minimum ring size required for Atlantic sea scallop

dredges by amendment 4 to the Fishery Management Plan for the Atlantic

Sea Scallop Fishery (FMP) and its implementing regulations. Through

April 30, 1994, participants in the fishery must comply with either the

scallop meat-count requirement or corresponding shell-height

requirement that existed prior to the implementation of amendment 4, or

to the ring-size requirement implemented under amendment 4. The intent

is to provide relief to fishermen who may have been unable to obtain

the required rings, which are not currently available in sufficient

quantities to supply the industry.

EFFECTIVE DATES: March 4, 1994 through April 30, 1994.

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

NMFS, 508-281-9273.

SUPPLEMENTARY INFORMATION:

Background

Amendment 4 to the FMP was prepared by the New England Fishery

Management Council (Council) under the authority of the Magnuson

Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)

(Magnuson Act) and approved by NMFS. Regulations implementing amendment

4 were published January 19, 1994 (59 FR 2757), and became effective

March 1, 1994. In addition to other management measures, amendment 4

eliminated the average meat-count standard previously in effect to

protect small scallops. The meat-count standard was most recently

established at 33 meats per pound (59 FR 2777, January 19, 1994), which

corresponds to a minimum shell height of 3\11/16\ inches (94 mm). In

its place, to reduce the number of juvenile scallops that would be

retained and subjected to unnecessary mortality through elimination of

the meat-count standard, amendment 4 imposed a minimum inside diameter

ring size for scallop dredges of 3\1/4\ inches (83 mm) in 1994 and

1995.

Because they were unable to predict whether amendment 4 would be

approved, suppliers of scallop dredge rings were reluctant to purchase,

and have available, sufficient numbers of the required rings as of

March 1, 1994. As a result, not all scallop vessel owners have been

able to purchase the required rings; therefore, they are unable to

comply with the regulations implementing amendment 4 now in effect.

These circumstances have made it impossible for such vessels to fish.

To provide relief to scallop fishermen unable to acquire the larger

dredge rings, and to provide protection to juvenile sea scallops, this

emergency rule allows vessels to comply with either the 3\1/4\ inch (83

mm) minimum ring-size requirement, or an average 33-meat-count

requirement (or the corresponding minimum shell-height standard)

through April 30, 1994. By May 1, 1994, all scallop dredge vessels must

comply with the minimum ring-size requirement. It is anticipated that

the circumstances necessitating this emergency action will have been

alleviated by that date.

Classification

The Assistant Administrator for Fisheries, NOAA (AA), has

determined that this rule is necessary to respond to an emergency

situation and is consistent with the Magnuson Act and other applicable

law.

This rule is not subject to review under Executive Order 12866.

This rule is exempt from the procedures of the Regulatory

Flexibility Act because the rule is issued without opportunity for

prior public comment.

The AA finds for good cause that the reasons justifying

promulgation of this rule on an emergency basis also make it

impracticable and contrary to the public interest to provide notice and

opportunity for comment under the provisions of section 553(b) of the

Administrative Procedure Act (APA). Further, because this rule relieves

a restriction, under section 553(d) of the APA, there is no need to

delay for 30 days the effective date of these regulations.

List of Subjects in 50 CFR 650

Fisheries, Reporting and recordkeeping requirements.

Dated: March 3, 1994.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

temporarily amended from March 4, 1994, through April 30, 1994, 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.

2. In Sec. 650.9, paragraphs (b)(13) and (c)(14) are suspended and

paragraphs (b)(25), (b)(26), (c)(8), and (c)(9) are added to read as

follows:

Sec. 650.9 Prohibitions.

* * * * *

(b) * * *

(25) Possess more than 40 pounds (18.14 kg) of shucked scallops or

5 U.S. bushels (176.1 L) of in-shell scallops while in possession of,

or fish under the DAS allocation program with, dredge gear containing

rings that have minimum sizes smaller than those specified in

Sec. 650.21(b)(3), except as provided in Sec. 650.30(a).

(26) Fail to comply with the alternatives provided in

Sec. 650.30(a), if in possession of more than 40 pounds (18.14 kg) of

shucked scallops or 5 U.S. bushels (176.1 L) of in-shell scallops while

in possession of, or fishing under the DAS allocation program with,

dredge gear containing rings that have minimum sizes smaller than those

specified in Sec. 650.21(b)(3).

(c) * * *

(8) Possess more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 L) of in-shell scallops while in possession of, or

fish for scallops with, dredge gear containing rings that have minimum

sizes smaller than those specified in Sec. 650.21(b)(3), except as

provided in Sec. 650.30(a).

(9) Fail to comply with the average meat-count standard or minimum

shell-height standard alternatives provided in Sec. 650.30(a), if in

possession of more than 40 pounds (18.14 kg) of shucked scallops or 5

U.S. bushels (176.1 L) of in-shell scallops while in possession of, or

fishing for scallops with, dredge gear containing rings that have

minimum sizes smaller than those specified in Sec. 650.21(b)(3), except

as provided in Sec. 650.30.

* * * * *

3. Section 650.20 is suspended.

4. In Sec. 650.21, paragraph (b)(3)(i) is suspended and paragraph

(b)(3)(iv) is added to read as follows:

Sec. 650.21 Gear and crew restrictions.

* * * * *

(b) * * *

(3) * * *

(iv) For 1994 and 1995, the inside diameter ring size of a scallop

dredge in use by or in possession of such vessels shall not be smaller

than 3\1/4\ inches (83 mm), except as provided in Sec. 650.30.

* * * * *

5. A new Sec. 650.30 is added to subpart B to read as follows:

Sec. 650.30 Alternatives to dredge minimum ring-size requirements.

(a) From March 4, 1994, through April 30, 1994, scallop dredge

vessels may, as an alternative to dredge minimum ring-size requirements

contained in Sec. 650.21(b)(3)(iv), comply with one of the standards in

paragraphs (a)(1) or (a)(2) of this section. (1) The average meat count

for shucked Atlantic sea scallops must not exceed 33 meats per pound

(per 0.45 kg).

(2) The shell height for in-shell Atlantic sea scallops must not be

less than 3\11/16\ inches (94 mm).

(b) Compliance and sampling. Compliance with the specified meat-

count and shell-height standards will be determined by inspection and

enforcement up to and including the first transaction in the United

States as follows: (1) Shucked meats (average meat count). The

Authorized Officer will take 1-lb (0.45 kg) samples at random from the

total amount of scallops in possession. The person in possession of the

scallops may request that as many as 10 1-lb samples be examined as a

sample group. A sample group fails to comply with the standard if the

average meat count for the entire sample group exceeds the standard.

The total amount of scallops in possession will be deemed in violation

of this regulation if the sample group fails to comply with the

standard.

(2) Scallops in the shell (minimum shell height). The Authorized

Officer will take samples of 40 scallops each, at random, from the

total amount of scallops in possession. The person in possession of the

scallops may request that as many as 10 samples (400 scallops) be

examined as a sample group. A sample group fails to comply with the

standard if more than 10 percent of the number of scallops in the

sample group are less than the shell height specified by the standard.

The total amount of scallops in possession will be deemed in violation

of this regulation and subject to forfeiture if the sample group fails

to comply with the standard.

(3) All sea scallop dredge vessels and all vessels landing more

than 5 bushels (176.2 L) of Atlantic sea scallops in the shell must

offload all fish each day within the applicable 12-hour offloading

period as specified below:

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State of offloading Period

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ME, NH, NC, SC, GA, & FL........... 7 a.m. to 7 p.m.

MA, RI & CT........................ 5 a.m. to 5 p.m.

NY, NJ, DE, MD, VA, & PA........... 6 a.m. to 6 p.m.

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(4) All other vessels not covered by paragraph (b)(3) of this

section, landing more than 40 pounds (18.1 kg) of shucked Atlantic sea

scallops, must offload the scallops within the applicable offloading

period specified in paragraph (b)(3) of this section.

(5) Presumption. Fish not offloaded from vessels subject to the

provisions of paragraph (b)(3) of this section, and shucked Atlantic

sea scallops not offloaded from vessels subject to the provisions of

paragraph (b)(4) of this section, during the offloading period, must

remain on the vessel until the following offloading period. There shall

be a presumption of unlawful offloading for any such catch that is

observed or identified on such a vessel by an authorized officer at the

close of the previous offloading period, if such catch is not found on

that vessel at the beginning of the following offloading period.

[FR Doc. 94-5367 Filed 3-4-94; 11:48 am]

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