Scallop Fishery off Alaska; Closure of Federal Waters to Protect Scallop Stocks

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]

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