Scallop Fishery Off Alaska; Management Measures; 1996-97 Harvest Specifications

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 960502124-6190-02; I.D. 042396B]

RIN 0648-AF81

Scallop Fishery Off Alaska; Management Measures; 1996-97 Harvest

Specifications

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; final 1996-97 harvest specifications; closures.

-----------------------------------------------------------------------

SUMMARY: NMFS issues a final rule to implement Amendment 1 to the

Fishery Management Plan for the Scallop Fishery off Alaska (FMP). The

management measures established under Amendment 1 and implemented by

this final rule include: Gear and efficiency restrictions, scallop

registration areas and districts, procedures for specifying total

allowable catch (TAC) and crab bycatch limits (CBLs), time and area

closures, inseason management authority, fishing seasons, and observer

coverage requirements. This action is necessary to further the

conservation and management objectives of the FMP and the Magnuson

Fishery Conservation and Management Act (Magnuson Act).

EFFECTIVE DATES: The changes to part 679 are effective August 1, 1996.

The final 1996-97 harvest specifications and closure are effective

August 1, 1996, through June 30, 1997.

ADDRESSES: Copies of Amendment 1 and the Environmental Assessment/

Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/

FRFA) prepared for Amendment 1 may be obtained from the North Pacific

Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK

99501.

FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

The scallop fishery in the exclusive economic zone (Federal waters)

off Alaska is managed under the FMP. The FMP was prepared by the North

Pacific Fishery Management Council (Council) under the Magnuson Act.

Regulations implementing the FMP are set out at 50 CFR part 679.

General regulations that also affect fishing in Federal waters are set

out at 50 CFR part 600. This action establishes Federal management

measures to replace the interim closure of Federal waters off Alaska to

fishing for scallops. The history of the scallop fishery off Alaska and

the events leading up to the interim closure of Federal waters are

described in the FMP and the preambles to the proposed and final rules

implementing the FMP (60 FR 24822, May 10, 1995, and 60 FR 42070,

August 15, 1995, respectively).

In June 1995, the Council adopted Amendment 1 to the FMP, which

authorizes Federal management measures to replace the interim closure

of Federal waters to fishing for scallops. The Council's preferred

alternative for Amendment 1 was to incorporate certain State of Alaska

management measures into the Federal regulations and implement a vessel

moratorium based on criteria adopted in April 1994 and reaffirmed in

January 1995.

At its January 1993 meeting, the Council determined that

unrestricted

[[Page 38100]]

access to the scallop fishery may be harmful to the resource and result

in a net loss to the Nation. The Council announced a control date of

January 20, 1993, to place the industry on notice that a moratorium for

this fishery may be implemented and any person or fishing vessel that

entered the scallop fisheries in Federal waters off Alaska would not be

assured of future access to those fishery resources if a moratorium is

implemented. In June 1995, the Council developed final qualifying

criteria for the vessel moratorium. Under the Council's qualifying

criteria, vessels would qualify for inclusion in the moratorium if they

made at least one legal landing of scallops in any year from 1991

through 1993, or during any 4 separate years from 1980 through 1990.

This two-tier approach was chosen to emphasize recent participation in

the fishery by allowing all vessels with any legal landings in 1991,

1992 or 1993 to qualify. Historic participants would qualify under the

more restrictive standard of a legal landing in at least 4 years

between 1980 and 1990. The Council's final recommended qualifying

criteria, which were published in the Council's newsletter, means that

fishermen and/or vessels not participating in the fishery by December

31, 1993, may not be guaranteed future access to the fishery.

The Council subsequently separated the vessel moratorium from

Amendment 1 and recommended that the vessel moratorium be implemented

as Amendment 2 to the FMP. The Council took this action to prevent

moratorium issues from delaying the reopening of the scallop fishery.

On May 10, 1996, NMFS published a proposed rule to implement Amendment

1 to the FMP (61 FR 21431). The comment period for the proposed rule

ended on June 21, 1996. Six letters of comment were received, which are

summarized in the Response to Comments section below.

The regulations implementing Amendment 1 were developed in

coordination with the Council and the State and are designed to

complement current State management of the scallop fishery. These

regulations do not preclude the State from imposing additional

regulations on State registered vessels fishing in Federal waters, so

long as State regulations are not in conflict with the FMP and its

implementing regulations. The preamble to the proposed rule provides a

description of and justification for each Federal management measure

including: Gear and efficiency restrictions, scallop registration areas

and districts, procedures for specifying TACs and CBLs, time and area

closures, inseason management authority, fishing seasons, and observer

coverage requirements.

Changes From the Proposed Rule

Four changes were made from the proposed rule. First, since

publication of the proposed rule, the Federal regulations implementing

Alaska FMPs have undergone a comprehensive consolidation. As a

consequence, most of the regulations implementing the FMP for the

scallop fishery off Alaska (50 CFR part 673) have been recodified at 50

CFR 679 subpart F, except for the purpose and scope, definitions, and

prohibitions sections of the scallop regulations, which are now found

in 50 CFR 679 subpart A.

Second, in Sec. 679.1(h)(2) the phrase ``consistent with'' was

changed to ``in addition to, and not in conflict with'' so that

Sec. 679.1(h)(2) reads as follows: ``State of Alaska laws that are in

addition to, and not in conflict with, the regulations in this part are

not preempted for vessels registered under the laws of the State

fishing for scallops in the Federal waters off Alaska.'' This change

was made in response to a comment and clarifies that NMFS intends to

allow the State to impose additional regulations on State-registered

vessels that are fishing for scallops in Federal waters as long as

State regulations are not in direct conflict with Federal regulations

or the FMP.

Third, the 1996 fishing season in Registration Area D is

temporarily extended in response to a comment to allow for the harvest

of remaining 1995-96 State TAC amounts that were not harvested in this

area during the January 1996 fishery in State waters. In January 1996,

the State authorized a fishery in the State waters of Registration Area

D for the estimated portion of the TACs that were attributable to beds

in State waters (8,000 lb (3,628.7 kg) shucked meat from District 16

and 55,000 lb (24,947.6 kg) from the remaining districts of

Registration Area D). Because the entire portion of the 1996 TAC

attributable to beds in State waters has been taken, the State has

closed State waters in Registration Area D until 1997. Because State

waters will remain closed until 1997, the remaining 1996 TAC for this

area, which will become available on August 1, 1996, will be available

only in Federal waters.

Fourth, Sec. 679.62(a) was changed in response to a comment to

require that available TAC be specified by registration area rather

than allow a combined TAC for multiple registration areas. This change

was made to prevent overharvest from within one area. This change

affects Registration Areas M, Q, and R.

1996-97 Total Allowable Catch Specifications

The TACs for Registration Areas A, E, K, and O are unchanged from

the proposed specifications published with the proposed rule. TACS for

Registration Areas D, H, M, Q, and R have been changed from the

proposed specifications for the reasons cited below.

In Registration Area D, the State authorized a January 1996 fishery

inside State waters and allowed the harvest of the percentage of the

annual TAC that was estimated to be attributable to scallop beds within

State waters. Under the new regulations established by this rule, the

fishing year for scallops runs from July 1 through June 30 of the

following fishing year. Consequently, in Registration Area D, two TACs

must be specified to allow for the harvest of the remaining 1995-96 TAC

in Registration Area D. The 1995-96 TAC amount that went unharvested

during the State's January 1996 fishery is specified for the period

August 1, 1996, through December 31, 1996. The TAC for the current

1996-97 fishing year TAC is specified for the period January 1, 1997,

through June 30, 1997.

In Registration Areas M, Q, and R, and H (other than Kamishak

District), a combined TAC of 875,000 lb (396,893.32 kg) shucked meat

was listed in the proposed specifications. This combined TAC was

subdivided by area to prevent overharvest of the TAC from within any

one area. TACs for each of these registration areas are now specified

at the historic high catch, which is equal to the upper end of the OY

range. No TAC is specified for districts other than the Kamishak

District of Registration Area H. The other districts within

Registration Area H lie primarily within State waters and there are no

known commercially viable scallop beds in these districts. The State

may authorize exploratory scallop fishing in these districts within

State waters. Any exploratory fishing in Federal waters within these

districts could be authorized by NMFS pursuant to ``exempted fishing''

regulations published at 50 CFR 600.745.

[[Page 38101]]

Table 1.--Scallop TAC Amounts for the Period August 1, 1996, Through

June 30, 1997, in pounds (kilograms in parentheses) of Shucked Scallop

Meat by Scallop Registration Area and District

------------------------------------------------------------------------

TAC

Scallop registration area -----------------------

lb kg

------------------------------------------------------------------------

Area A (Southeastern)...........................

(1)zero

------------------------------------------------------------------------

Area D (Yakutat):

(Applicable August 1, 1996 through December 31, 1996) 1

------------------------------------------------------------------------

District 16................................. 27,000 12,247

All other districts......................... 195,000 88,451

------------------------------------------------------------------------

(Applicable January 1, 1997 through June 30, 1997)

------------------------------------------------------------------------

District 16................................. 35,000 15,880

All other districts......................... 250,000 113,430

Area E (Prince William Sound)................... 50,000 22,686

Area H (Cook Inlet):

Kamishak District........................... 20,000 9,074

Area K (Kodiak)................................. 400,000 181,488

Area M (Alaska Peninsula)....................... 200,000 90,718

Area O (Dutch Harbor)........................... 170,000 77,132

Area Q (Bering Sea)............................. 600,000 272,155

Area R (Adak)................................... 75,000 43,019

Total \2\................................... 1,800,000 816,416

------------------------------------------------------------------------

\1\ Represents unharvested TAC that would have been specified for the

period July 1, 1995, through June 30 1996. Because the closure of

Federal waters prevented the harvest of this TAC during the January

1996 State-managed opening, NMFS is making this unharvested TAC amount

available on August 1, 1996. The Area D TAC that would normally have

been specified for the period August 1, 1996, through June 30, 1997

will not become effective until January 1, 1997.

\2\ Does not include the August 1, 1996, through December 31, 1996, TAC

for Registration Area D because this TAC amount represents unharvested

TAC from the previous fishing year.

1996-97 Crab Bycatch Limits

Table 2 shows CBLs for the period August 1, 1996, through June 30,

1997. These numbers are unchanged from the proposed specifications.

Table 2.--Crab Bycatch Limits for the Period August 1, 1996, Through

June 30, 1997, in Numbers of Crabs by Scallop Registration Area and

District

------------------------------------------------------------------------

Scallop registration area Red king C. bairdi C. opilio

------------------------------------------------------------------------

Area A (Southeastern)............... .......... .......... ..........

Area D (Yakutat).................... .......... .......... ..........

Area E (Prince William Sound)....... .......... 630 ..........

Area H (Cook Inlet):

Kamishak District............... 40 15,900 ..........

Outer/Eastern Districts......... 98 2,170 ..........

Area K (Kodiak):

Shelikof District............... 22 16,100 ..........

Northeast District.............. 66 130,000 ..........

Area M (Alaska Peninsula)........... 435 22,800 ..........

Area O (Dutch Harbor)............... 10 10,700 ..........

Area Q (Bering Sea)................. 500 257,000 275,000

Area R (Adak)....................... 50 10,000 ..........

------------------------------------------------------------------------

Closure

In Registration Area A, the final scallop TAC amount for the period

August 1, 1996, through June 30, 1997, is zero. Therefore, under

Sec. 679.62(c), NMFS is prohibiting the catch and retention of scallops

in Registration Area A from August 1, 1996, through June 30, 1997.

Response to Comments

Comment 1: The 30-day delay in effectiveness normally incorporated

into Federal rulemaking procedures should be waived. This rule will

impact the industry in a positive way by allowing fishing to resume

after an 18-month hiatus brought about by a lack of Federal regulation.

The period normally viewed as an opportunity for industry to adapt to

an onerous regulation is not needed and would, in fact, present further

hardship to the fishing industry.

Response: NMFS agrees. The 30-day delayed effectiveness period for

this rule has been waived (see ``Classification'' section, below).

Comment 2: The proposed rule has an August 15 opening date for

Registration Area H (Cook Inlet). A later opening date of August 29 is

recommended, because crab tend to move out of this area later in the

season. A later opening date would produce less crab bycatch,

[[Page 38102]]

which is a prime concern of industry and the Council.

Response: Because a single TAC is specified for both the Federal

and State waters of each registration area or district, a simultaneous

opening of Federal and State waters is necessary to prevent localized

overfishing of scallop stocks and reduce administration and enforcement

concerns. For these reasons, opening dates in the Federal waters of

each registration area or district were scheduled to match existing

State opening dates. If the opening date for the Federal waters of

Registration Area H were delayed until August 29, vessel operators

might try to harvest the entire TAC from within State waters that would

open on August 15. This situation could cause localized overfishing of

scallops stocks inside State waters. Moreover, enforcement of closures

would be more problematic if adjacent State and Federal waters were

open at different times. Therefore, the opening date for Registration

Area H is unchanged.

NMFS does not have adequate bycatch data to support or refute the

contention that crab bycatch would be appreciably lower if the opening

date were delayed until August 29. However, crab bycatch was certainly

a consideration of the Board of Fisheries when it established an August

15 opening date for the Cook Inlet Registration Area. In its comments

on the proposed rule, ADF&G has indicated that possible changes to

scallop opening dates will be examined by the Board of Fisheries at the

March 1997 meeting. If bycatch data presented to the Board of Fisheries

indicate that a change in opening dates is warranted for the Cook Inlet

Registration Area, NMFS, in coordination with the Council and the State

could address opening date changes at that time.

Comment 3: While the exemption from observer coverage for vessels

less than 80 ft (24.4 m) length overall (LOA) in Cook Inlet is

justified, a similar exemption is necessary for small vessels fishing

outside Cook Inlet. In the past, State regulations have exempted

vessels less than 65 ft (19.8 m) LOA from observer requirements. A

number of vessels qualified for this exemption. If small vessels must

give up bunk space to carry an observer, they will lose a significant

percentage of their workforce while incurring the extra expense of

accommodating an observer. Therefore, small vessels will be hit doubly

hard by the 100 percent observer coverage requirement. In the

groundfish observer program, vessels between 60 and 125 ft (18.3 and

38.1 m) LOA are only required to carry an observer for 30 percent of

their fishing days. A small vessel exemption should be reinstated for

the scallop fishery, or a percentage-based coverage system similar to

that used in the groundfish fishery.

Response: All vessels required to carry an observer under this rule

will need to provide accommodations for an observer. The loss of a bunk

space is not limited to small vessels. In addition, the restrictions on

dredge width and crew size will tend to limit disparities in harvesting

capacity between large and small vessels. Therefore, NMFS does not

believe that a 100 percent observer coverage requirement will have

inordinate impacts on small vessels. Nevertheless, NMFS is sensitive to

the impacts that this rule will have on small businesses and has taken

numerous steps to reduce burdens on small businesses such as avoiding

duplicate State and Federal recordkeeping and recording requirements.

In addition, the Council heard testimony on the burden of 100 percent

observer requirements from small vessel owners during initial and final

consideration of Amendment 1. However, the Council believes, and NMFS

concurs, that the need for accurate management data outweighed the

economic impacts on small vessels. One hundred percent observer

coverage is necessary outside Cook Inlet to accurately monitor crab

bycatch, which is a primary management concern because crab populations

are severely depleted throughout the area covered by the FMP. Observer

data are also required because little information is presently

available on the status of scallop stocks in much of the management

area. Consequently, no observer coverage exemption was made for small

vessels fishing outside of Cook Inlet.

Comment 4: The Alaska Department of Fish and Game (ADF&G) is

concerned that the Federal regulatory system will not be flexible

enough to reflect season changes made by the Alaska Board of Fisheries,

or by ADF&G emergency order. ADF&G believes that a real likelihood

exists that the State seasons established for Registration Areas D and

E will be changed in 1997. Seasons in State and Federal waters must be

identical for conservation, as well as enforcement and fair start

reasons.

Response: NMFS may make regulatory changes in fishing seasons at

any time for conservation or management reasons in response to

recommendations from ADF&G or the Council. Any changes to State fishing

seasons made at the March 1997 Board of Fisheries meeting could not

become effective before the 1998 fishing season because the 1997

scallop fishery in Registration Areas D and E would have already

occurred in January. NMFS would have more than sufficient time to make

corresponding changes in Federal fishing seasons through the normal

regulatory process. Any conservation emergency that warrants an

immediate adjustment of fishing seasons, or any other management

measure, could be made through the inseason adjustment authority set

out at Sec. 679.63 or through an emergency rule.

Comment 5: The proposed rule establishes the TAC for each

registration area as a single number. ADF&G recommends that the TAC be

set as a range for each registration area. For example, in the Yakutat

Registration Area, TAC should be set at 0 to 250,000 lb (113,430 kg)

shucked meat. By stating TAC as a range, conservation adjustments to

harvest guidelines, either preseason or inseason, would be frameworked

within regulations and would not require additional action by NMFS.

Response: The TACs specified by NMFS simply represent the upper end

of the range of acceptable harvests. No requirement exists that the

entire TAC be harvested in each registration area. Indeed, NMFS expects

that the scallop fishery in some registration areas will close long

before the entire TAC is harvested due to attainment of CBLs. No

management advantage would be achieved by specifying TACs as a range,

because NMFS would still be required to publish an inseason adjustment

or closure to affect any change in the fishery. NMFS believes that the

inseason adjustment authority established by this regulation is

sufficient to implement timely inseason changes to TACs, should they be

warranted for conservation or management reasons.

Comment 6: Paragraph 673.1(c) of the proposed rule states ``State

of Alaska laws that are consistent with the regulations in this part

are not preempted for vessels registered under the laws of the State

fishing for scallops in the Federal waters off Alaska.'' Neither the

FMP nor the proposed rule adopt all of the areas closed by State to

scallop fishing. Thus, one could interpret paragraph 673.1(c) to mean

that State closed areas within Federal waters could be preempted for

State registered vessels. The areas closed by the State to scallop

fishing were adopted by the Board of Fisheries over 20 years ago to

protect king and Tanner crab stocks by using the best scientific

information available along with public testimony. Crab stocks in these

closed areas are very depressed and commercial king crab fisheries have

[[Page 38103]]

been closed since 1983. Based on the crab stock status and additional

public input, the Board of Fisheries confirmed the closures in 1994.

Response: NMFS did not implement all of the closed areas that are

currently established in State regulations, because NMFS did not have

sufficient information on crab bycatch and crab habitat immediately

available to propose such closures. To compile and analyze crab bycatch

statistics for the areas currently closed by the State prior to

publication of the proposed rule could have delayed the timely

reopening of the scallop fishery in Federal waters. However, NMFS

encourages the State to take any additional measures necessary to

protect scallop stocks and bycatch species for State-registered vessels

fishing in Federal waters. In Sec. 679.1(h)(2), the phrase ``consistent

with'' was changed to ``in addition to, and not in conflict with'' to

clarify that NMFS intends to allow the State to impose additional

regulations on State-registered vessels that are fishing for scallops

in Federal waters, as long as State regulations are not in direct

conflict with Federal regulations or the FMP.

Comment 7: The proposed rule does not close Federal waters

presently closed by the State to scallop fishing. ADF&G is concerned

that vessels that are not registered with the State will not comply

with State regulations and could legally fish in these closed areas.

The State's Fish and Wildlife Protection Division cannot enforce

regulations on vessels that are not registered with the State or do not

enter State waters. ADF&G believes that NMFS Enforcement could not

enforce these closed waters if they are not established in Federal

regulations.

Response: The reasons why NMFS did not implement all of the State

closures in Federal waters are outlined in the response to comment 6.

Because the closed areas in question are not established in Federal

regulations, they will not be enforced by NMFS, however, they may be

enforced by the State for State-registered vessels. A vessel fishing

for scallops that is not registered with the State could indeed fish in

areas of Federal waters that the State has closed to State-registered

vessels. However, NMFS believes it is extremely unlikely that a vessel

operator would chose to fish for scallops without registering with the

State. Many scallop beds straddle both State and Federal waters and a

vessel not registered with the State would be prevented from fishing in

State waters and could also be prevented from entering State waters

with unprocessed scallops on board. NMFS believes that the loss of

access to State waters would far outweigh any possible advantage a

vessel would gain by avoiding State-registration simply to fish in the

closed areas in question.

Comment 8: ADF&G believes that separate TACs should be established

for Registration Areas M, Q, and R. The combined TAC of 875,000 lb

(396,893.3 kg) of shucked meat creates a potential risk of overfishing

in any single area. Dependence on CBLs to protect the scallop resource

from overfishing in these areas is not appropriate. TACs for each

registration area should be established at historic high catch:

Registration Area M, 0 to 200,000 lb (90,718 kg) shucked meat;

Registration Area Q, 0 to 600,000 lb (272,155 kg) shucked meat; and

Registration Area R, 0 to 75,000 lb (43,019 kg) shucked meat.

Response: NMFS agrees. The final specifications of TAC for the

period August 1, 1996, through June 30, 1997, have been changed to

reflect TACs of 200,000 lb (90,718 kg) shucked meat for Registration

Area M, 600,000 lb (272,155 kg) shucked meat for Registration Area Q,

and 75,000 lb (43,019 kg) shucked meat for Registration Area R.

Comment 9: The Bristol Bay bottom trawl closures recently adopted

by the Council should also be closed to scallop dredging to be

consistent with Federal groundfish regulations and to assist in the

protection and rebuilding efforts for the Bristol Bay red king crab

stocks.

Response: NMFS agrees. All Federal waters that are closed to

trawling for groundfish with nonpelagic trawl gear for the purpose of

habitat protection, limiting crab bycatch, or protecting walrus

rookeries and Steller sea lion areas are also closed to dredging for

scallops. If the Bristol Bay bottom trawl closures recently adopted by

the Council are approved by NMFS, they will also apply to dredging for

scallops.

Classification

The Director, Alaska Region, NMFS, determined that Amendment 1 is

necessary for the conservation and management of the scallop fishery

off Alaska and that it is consistent with the Magnuson Act and other

applicable laws.

The Federal waters off Alaska have been closed to scallop fishing

under an emergency interim rule and subsequent final rule since

February 23, 1995 (60 FR 11054, March 1, 1995 and 60 FR 42070, August

15, 1995, respectively). The management measures established under this

final rule relieve this restriction by reopening Federal waters to

fishing for scallops. Therefore, as this rule relieves a restriction,

delayed effectiveness under 5 U.S.C. 553(d)(1) is not required.

Additionally, with respect to the new management measures imposed by

this rule, there is good cause to waive the delayed effectiveness

period under 5 U.S.C. 553(d)(3) because of the need to coordinate the

opening of Federal waters with the August 1, 1996, opening of State

waters within each registration area. Furthermore, all vessels expected

to fish in Federal waters also fish in State waters where these

regulatory requirements have been in effect and are familiar to the

fleet.

This rule has been determined to be not significant for the

purposes of E.O. 12866.

The Council prepared a FRFA as part of the RIR, which describes the

impacts that this rule is expected to have on small entities. The

economic effects of this rule to the regulated community are expected

to be significant and positive. Because this rule repeals the total

closure of Federal waters to fishing for scallops, significant

opportunities for scallop fishing will exist that could otherwise be

unavailable under current regulations. The analysis concluded that in

1994, 86 percent of the scallops harvested off Alaska were taken from

Federal waters and 11 of the 16 vessels harvesting scallops

participated in no other fishery. This rule will restore the

opportunity to fish in Federal waters that was available prior to 1995.

A copy of this analysis is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 679

Fisheries, Reporting and recordkeeping requirements.

Dated: July 17, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 679 is amended

as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. The authority citation for part 679 continues to read as

follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq.

2. In Sec. 679.1, paragraph (h) is revised to read as follows:

Sec. 679.1 Purpose and scope.

* * * * *

(h) Fishery Management Plan for the Scallop Fishery off Alaska. (1)

Regulations in this part govern commercial fishing for scallops in the

Federal waters off Alaska by vessels of

[[Page 38104]]

the United States (see subparts A and F of this part).

(2) State of Alaska laws that are in addition to, and not in

conflict with, the regulations in this part are not preempted for

vessels registered under the laws of the State fishing for scallops in

the Federal waters off Alaska.

3. In Sec. 679.2 the definition of ``Authorized fishing gear'' is

amended by revising the introductory paragraph, redesignating

paragraphs (1) through (9) and (10) as paragraphs (2) through (10) and

(12), respectively, and adding new paragraphs (1) and (11). New

definitions of ``CBL'' and ``Shucking machine'' are added, in

alphabetical order, to read as follows:

Sec. 679.2 Definitions.

* * * * *

Authorized fishing gear means dive, fixed gear, hook-and-line, jig,

longline, longline pot, nonpelagic trawl, nontrawl, pelagic trawl, pot-

and-line, scallop dredge, and trawl defined as follows:

(1) Dive means any scuba or surface supported diving equipment that

allows for the underwater harvest of scallops by divers, or the taking

of scallops by means of such gear.

* * * * *

(11) Scallop dredge means gear consisting of a mouth frame attached

to a holding bag constructed of metal rings, or any modification to

this design that can be or is used in the harvest of scallops, or the

taking of scallops by means of such gear.

* * * * *

CBL means crab bycatch limit.

* * * * *

Shucking machine means any mechanical device that automatically

removes the meat or the adductor muscle from the shell.

* * * * *

4. In Sec. 679.7, paragraph (h) is added to read as follows:

Sec. 679.7 Prohibitions.

* * * * *

(h) Scallop fishery off Alaska. It is unlawful for any person to

violate any provision of subpart F of this part while fishing for

scallops in the Federal waters off Alaska.

5. Subpart F is revised to read as follows:

Subpart F--Scallop Fishery Off Alaska

Sec.

679.60 Gear and efficiency limits.

679.61 Registration areas.

679.62 General limitations.

679.63 Inseason adjustments.

679.64 Seasons.

679.65 Observer requirements.

Subpart F--Scallop Fishery Off Alaska

Sec. 679.60 Gear and efficiency limits.

(a) General. Scallops may be taken only with dive gear or scallop

dredge gear as defined at Sec. 679.2.

(b) The inside ring diameter on all dredges used or carried by a

vessel fishing for weathervane scallops (Patinopectin caurinus) must be

4 inches (10.16 cm) or larger.

(c) The inside ring diameter on all dredges used or carried by a

vessel fishing for scallops other than weathervane scallops must be 3

inches (7.62 cm) or larger.

(d) No person may use chafing gear or other devices that decrease

the legal inside ring diameter of a scallop dredge.

(e) Except as provided in paragraph (f) of this section, no more

than two scallop dredges may be operated at one time from a vessel, and

the opening of a scallop dredge must be equal to or less than 15 ft

(4.57 m) wide.

(f) In the Kamishak, Southern, and Central Districts of Scallop

Registration Area H defined under Sec. 679.61, no more than one scallop

dredge may be operated at one time from a vessel, and the opening of a

dredge may not be more than 6 ft (1.83 m) in width.

(g) Scallops must be shucked by hand only. A shucking machine must

not be on board a vessel that is fishing for scallops or that has

scallops on board.

(h) No vessel fishing for scallops in Federal waters may have

aboard more than 12 persons, exclusive of ADF&G or NMFS observers.

Sec. 679.61 Registration areas.

For the purpose of managing the scallop fishery, the Federal waters

off Alaska and adjacent State waters are divided into nine scallop

registration areas. Three scallop registration areas are further

subdivided into districts. The scallop registration areas and districts

are defined as follows:

(a) Registration Area A (Southeastern) has as its southern boundary

the international boundary at Dixon Entrance, and as its northern

boundary Loran-C line 7960-Y-29590, which intersects the western tip of

Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,

except for ADF&G District 16 defined under paragraph (b) of this

section.

(b) Registration Area D (Yakutat) has as its western boundary the

longitude of Cape Suckling (143 deg.53' W. long.), and as its southern

boundary Loran-C line 7960-Y-29590, which intersects the western tip of

Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,

and ADF&G District 16 defined as all waters all waters north of a line

projecting west from the southernmost tip of Cape Spencer and south of

a line projecting southwest from the westernmost tip of Cape

Fairweather.

(c) Registration Area E (Prince William Sound) has as its western

boundary the longitude of Cape Fairfield (148 deg.50' W. long.), and

its eastern boundary the longitude of Cape Suckling (143 deg.53' W.

long.).

(d) Registration Area H (Cook Inlet) has as its eastern boundary

the longitude of Cape Fairfield (148 deg.50' W. long.) and its southern

boundary the latitude of Cape Douglas (58 deg.52' N. lat.).

(1) Northern District. North of a line extending from Boulder Point

at 60 deg.46'23'' N. lat., to Shell Platform C, then to a point on the

west shore at 60 deg.46'23'' N. lat.

(2) Central District. All waters between a line extending from

Boulder Point at 60 deg.46'23'' N. lat., to Shell Platform C, to a

point on the west shore at 60 deg.46'23'' N. lat., and the latitude of

Anchor Point Light (59 deg.46'12'' N. lat.).

(3) Southern District. All waters enclosed by a line from Anchor

Point Light west to 59 deg.46'12'' N. lat., 152 deg.20' W. long., then

south to 59 deg.03'25'' N. lat., 152 deg.20' W. long., then in a

northeasterly direction to the tip of Cape Elizabeth at 59 deg.09'30''

N. lat., 151 deg.53' W. long., then from the tip of Cape Elizabeth to

the tip of Point Adam at 59 deg.15'20'' N. lat., 151 deg.58'30'' W.

long.

(4) Kamishak Bay District. All waters enclosed by a line from

59 deg.46'12'' N. lat., 153 deg.00'30'' W. long., then east to

59 deg.46'12'' N. lat., 152 deg.20' W. long., then south to

59 deg.03'25'' N. lat., 152 deg.20' W. long., then southwesterly to

Cape Douglas (58 deg.52' N. lat.). The seaward boundary of the Kamishak

Bay District is 3 nautical miles seaward from the shoreline between a

point on the west shore of Cook Inlet at 59 deg.46'12'' N. lat.,

153 deg.00'30'' W. long., and Cape Douglas at 58 deg.52' N. lat.,

153 deg.15' W. long., including a line three nautical miles seaward

from the shorelines of Augustine Island and Shaw Island, and including

the line demarking all state waters shown on NOAA chart 16640, 21st

Ed., May 5, 1990 (Available from Alaska Region).

(5) Barren Island District. All waters enclosed by a line from Cape

Douglas (58 deg.52' N. lat.) to the tip of Cape Elizabeth at

59 deg.09'30'' N. lat., 151 deg.53' W. long., then south to 58 deg.52'

N. lat., 151 deg.53' W. long., then west to Cape Douglas.

(6) Outer District. All waters enclosed by a line from the tip of

Point Adam to the tip of Cape Elizabeth, then south to 58 deg.52' N.

lat., 151 deg.53' W. long., then east to the longitude of Aligo Point

[[Page 38105]]

(149 deg.44'33'' W. long.), then north to the tip of Aligo Point.

(7) Eastern District. All waters east of the longitude of Aligo

Point (149 deg.44'33'' W. long.), west of the longitude of Cape

Fairfield (148 deg.50' W. long.), and north of 58 deg.52' N. lat.

(e) Registration Area K (Kodiak) has as its northern boundary the

latitude of Cape Douglas (58 deg.52' N lat.), and as its western

boundary the longitude of Cape Kumlik (157 deg.27' W. long.).

(1) Northeast District. All waters northeast of a line extending

168 deg. from the easternmost tip of Cape Barnabas, east of a line from

the northernmost tip of Inner Point to the southernmost tip of Afognak

Point, east of 152 deg.30' W. long. in Shuyak Strait, and east of the

longitude of the northernmost tip of Shuyak Island (152 deg.20' W.

long.).

(2) Southeast District. All waters southwest of a line extending

168 deg. from the easternmost tip of Cape Barnabas and east of a line

extending 222 deg. from the southernmost tip of Cape Trinity.

(3) Southwest District. All waters west of a line extending

222 deg. from the southernmost tip of Cape Trinity, south of a line

from the westernmost tip of Cape Ikolik to the southernmost tip of Cape

Kilokak and east of the longitude of Cape Kilokak (156 deg.19' W.

long.).

(4) Semidi Island District. All waters west of the longitude of

Cape Kilokak at 156 deg.19' W. long. and east of the longitude of Cape

Kumlik at 157 deg.27' W. long.

(5) Shelikof District. All waters north of a line from the

westernmost tip of Cape Ikolik to the southernmost tip of Cape Kilokak,

west of a line from the northernmost tip of Inner Point to the

southernmost tip of Afognak Point, west of 152 deg.30' W. long., in

Shuyak Strait, and west of the longitude of the northernmost tip of

Shuyak Island (152 deg.20' W. long.).

(f) Registration Area M (Alaska Peninsula) has as its eastern

boundary the longitude of Cape Kumlik (157 deg.27' W. long.), and its

western boundary the longitude of Scotch Cap Light. The registration

area also includes all waters of Bechevin Bay and Isanotski Strait

south of a line from the easternmost tip of Chunak Point to the

westernmost tip of Cape Krenitzen.

(g) Registration Area O (Dutch Harbor) has as its northern boundary

the latitude of Cape Sarichef (54 deg.36' N. lat.), as its eastern

boundary the longitude of Scotch Cap Light, and as its western boundary

171 deg. W. long., excluding the waters of Statistical Area Q.

(h) Registration Area Q (Bering Sea) has as its southern boundary a

line from Cape Sarichef (54 deg.36' N. lat.), to 54 deg.36' N. lat.,

171 deg. W. long., to 55 deg.30' N. lat., 171 deg. W. long., to

55 deg.30' N. lat., 173 deg.30' E. long., as its northern boundary the

latitude of Point Hope (68 deg.21' N. lat.).

(i) Registration Area R (Adak) has as its eastern boundary 171 deg.

W. long., and as its northern boundary 55 deg.30' N. lat.

Sec. 679.62 General limitations.

(a) Harvest limits--(1) General. NMFS will establish TAC amounts

and CBLs for the scallop fishery off Alaska according to the procedures

described under this section. The total annual TAC amount for scallops

off Alaska will be established within the OY range of 0 to 1.8 million

lb (0 to 815.5 mt) of shucked scallop meat.

(2) TACs. (i) The annual TACs for scallops in each Registration

Area or part thereof will be established as a weight in pounds of

shucked scallop meat based on a review of the following:

(A) Assessments of the biological condition of each scallop

species. Assessments will include, where practicable, updated estimates

of MSY; historical catch trends and current catch statistics, reviews

of alternative harvesting strategies; and relevant information relating

to changes in scallop markets.

(B) Socioeconomic considerations that are consistent with the goals

and objectives of the FMP.

(ii) Annual scallop TACs will be specified for the 12-month time

period extending from July 1 through June 30 of the following year. An

annual TAC amount is available for harvest only for the registration

area or district specified, only during the applicable season set out

in Sec. 679.64, and only if no closure or other restriction or

limitation is applicable.

(3) CBLs. (i) CBLs may be specified for red king crab and Tanner

crab species for any registration area or district.

(ii) Except as provided under paragraph (a)(3)(iii) of this

section, annual CBLs will be based on the biological condition of each

crab species, historical bycatch rates in the scallop fishery, and

other socioeconomic considerations that are consistent with the goals

and objectives of the FMP.

(iii) Annual CBLs in Registration Area Q will equal the following

amounts:

(A) The CBL for red king crab caught while conducting any fishery

for scallops will be specified within the range of 500 to 3,000 crab

based on the considerations listed in paragraph (a)(3)(ii) of this

section.

(B) The CBL for Chionoecetes opilio Tanner crab caught while

conducting any fishery for scallops is 0.003176 percent of the best

available estimate of C. opilio abundance in Registration Area Q.

(C) The CBL for C. bairdi Tanner crab caught while conducting any

fishery for scallops is 0.13542 percent of the best available estimate

of C. bairdi abundance in Registration Area Q.

(iv) Annual CBLs will be specified for the 12-month time period

from July 1 through June 30 of the following year. An annual CBL may be

utilized only for the registration area or district specified, only if

any applicable TAC amount is available for harvest, only during the

applicable season set out in Sec. 679.64, and only if no closure or

other limitation or restriction is applicable.

(b) Specifications. The following procedure is established for

specifying TAC amounts and CBLs:

(1) On an annual basis, prior to the April Council meeting, the

Council will distribute a summary of the State's most recent TAC and

CBL recommendations and supporting documentation to the public through

its mailing list, as well as provide copies of the recommendations,

documentation, and the annual SAFE report to the public upon request.

The Council will notify the public of its intent to develop final

recommendations at the April Council meeting and solicit public comment

both before and during the April Council meeting.

(2) Following the April Council meeting, the Council will submit

its TAC and CBL recommendations along with rationale and supporting

information to NMFS for review and implementation.

(3) As soon as practicable after receiving recommendations from the

Council, NMFS will publish in the Federal Register annual

specifications of TAC amounts and CBLs for the succeeding 12-month

period extending from July 1 through June 30 of the following year.

(c) Closures. (1) If the Director, Alaska Region, NMFS, determines

that a TAC or CBL specified under paragraphs (a) and (b) of this

section has been or will be reached, NMFS will publish notification in

the Federal Register prohibiting the taking and retention of scallops

in the Federal waters of the registration area or district where the

notification is applicable.

(2) It is unlawful for any person to conduct any fishing for

scallops contrary to the notification of closure issued pursuant to

this paragraph.

(d) Closed areas. It is unlawful for any person to dredge for

scallops in any Federal waters off Alaska that are closed to fishing

with trawl gear or non pelagic trawl gear under Sec. 679.22(a)(1)(i),

(a)(2)(i), (a)(4), (a)(6), (a)(7) and (b).

[[Page 38106]]

Sec. 679.63 Inseason adjustments.

(a) Inseason adjustments may be issued by NMFS to implement the

closure, extension, opening, or reopening of a season in all or part of

a scallop registration area; and the adjustment of TAC amounts or CBLs.

(b) Determinations for any inseason adjustment authorized under

paragraph (a) of this section must be consistent with

Sec. 679.25(a)(2).

(c) Procedures for making inseason adjustments are specified at

Sec. 679.25(c).

(d) It is unlawful for any person to conduct any fishing for

scallops contrary to an inseason adjustment issued pursuant to this

section.

Sec. 679.64 Seasons.

(a) Fishing for scallops in the Federal waters off Alaska is

authorized from 0001 hours, A.l.t., July 1, through 2400 hours, A.l.t.,

June 30, subject to the other provisions of this part, except as

provided in paragraphs (b) through (e) of this section.

(b) Fishing for scallops in the Federal waters of Scallop

Registration Areas K, M, O, Q, and R is authorized from 1200 hours,

A.l.t., July 1 through 1200 hours, A.l.t., February 15 of the following

year, subject to the other provisions of this part.

(c) Fishing for scallops in the Federal waters of the Kamishak

District of Scallop Registration Area H is authorized from 1200 hours,

A.l.t., August 15 through 1200 hours, A.l.t., October 31, subject to

the other provisions of this part.

(d) (Applicable January 1, 1997) Fishing for scallops in the

Federal waters of Scallop Registration Areas A, D, and E is authorized

from 1200 hours, A.l.t., January 10 through 2400 hours, A.l.t., June

30, subject to the other provisions of this part.

(e) (Applicable through December 31, 1996) Fishing for scallops in

the Federal waters of Scallop Registration Area D is authorized from

1200 hours, A.l.t., August 1 through 2400 hours, A.l.t., December 31,

subject to the other provisions of this part. Fishing for scallops in

the Federal waters of Scallop Registration Areas A and E is not

authorized.

Sec. 679.65 Observer requirements.

(a) Except as provided in paragraph (c) of this section, vessels

must carry a NMFS-certified or ADF&G-certified scallop observer at all

times while fishing for scallops in Federal waters.

(b) An operator of a vessel required to carry an observer must

comply with all safety and conduct requirements set out at

Sec. 679.7(g).

(c) Vessels less than 80 ft (24.4 m) LOA are exempt from the

requirements of this section while fishing for scallops in the Federal

waters of Registration Area H.

[FR Doc. 96-18666 Filed 7-18-96; 4:19 pm]

BILLING CODE 3510-22-P