Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Amendment 5

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 648

[Docket No. 960910252-6329-02; I.D. 082296B]

RIN 0648-AI77

Fisheries of the Northeastern United States; Atlantic Sea Scallop

Fishery; Amendment 5

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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[[Page 1830]]

SUMMARY: NMFS issues this final rule to implement Amendment 5 to the

Fishery Management Plan for the Atlantic Sea Scallop Fishery (FMP). The

final rule closes a 9 mi\2\ (23.31 km\2\) site to transiting and

fishing with other than hand gear for an 18-month period to allow for

the conduct of a NMFS-sponsored sea scallop aquaculture research

project, provides for exemptions from the closure for vessels using

certain gear types and for vessels participating in the project, and

provides for temporary exemptions for vessels participating in the

project from certain fishing regulations that might inhibit or prevent

their performing any activity necessary for project operations. The

intended effect of this action is to support the aquaculture research

project and prevent conflicts between fishing gear and project

equipment for the limited duration of the project.

EFFECTIVE DATE: February 13, 1997 through July 15, 1998.

ADDRESSES: Copies of Amendment 5, its regulatory impact review (RIR),

the initial regulatory flexibility analysis contained within the RIR,

and the environmental assessment are available from Christopher

Kellogg, Acting Executive Director, New England Fishery Management

Council, Suntaug Office Park, 5 Broadway, Saugus, MA 01906-1097.

Comments regarding burden-hour estimates for collection-of-

information requirements contained in this final rule should be sent to

Dr. Andrew A. Rosenberg, Regional Administrator, 1 Blackburn Drive,

Gloucester, MA 01930, and the Office of Information and Regulatory

Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502

(Attention: NOAA Desk Officer).

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

508-281-9273.

SUPPLEMENTARY INFORMATION: Amendment 5 to the FMP was prepared by the

New England Fishery Management Council (Council). A notice of

availability for the amendment when it was proposed, was published on

August 29, 1996 (61 FR 45395), and a proposed rule to implement it was

published on September 20, 1996 (61 FR 49428). Details of this action

were described in the preamble to the proposed rule and are not

repeated here.

Approved Management Measures

This final rule establishes a 9 mi\2\ (23.31 km\2\) area closure

approximately 12 mi (22.22 km) southwest of the island of Martha's

Vineyard, MA (hereinafter called the Sea Scallop Experimental Area), to

transiting and fishing with other than handgear for an 18-month period

to allow for the conduct of a NMFS-sponsored (Saltonstall-Kennedy (NOAA

Award NA 66FD0027)) sea scallop aquaculture research project and

provides for exemptions from the closure for vessels using certain gear

types and for vessels participating in the project.

Additionally, this final rule provides the Regional Administrator

(RA) with authority to temporarily exempt a vessel participating in the

project from any specific Federal fishing regulation which inhibits or

prevents the vessel from performing any activity necessary for project

operations, such as regulations prohibiting the use of nonconforming

fishing gear or the possession of scallops when not fishing under a DAS

allocation.

This action prohibits fishing other than with handgear within the

Sea Scallop Experimental Area for 18 months. However, fishing with gear

other than gillnet and mobile, i.e., trawls and dredges such as lobster

pots, longline, and any other gear determined by the RA as not likely

to interfere with the research project, will be allowed in the area

pursuant to an Allowable Gear Permit (AGP) issued by the RA. This

permit requirement will enable the RA to inform vessel operators of the

location of the research equipment and avoid potential conflicts

between fishery and project activities. Fishers authorized to fish in

the Sea Scallop Experimental Area under an AGP may also be required

periodically to remove their gear or may be required to set their gear

a certain minimum distance from research project activities. At least 2

weeks notice will be provided to vessel operators of any requirement to

relocate fishing gear.

All vessels will be allowed to transit the area at any time,

provided their fishing gear is properly stowed.

Vessels participating in the project will be allowed to fish within

and transit the Sea Scallop Experimental Area pursuant to an EFP issued

by the RA. Such EFP may exempt such vessel from specific Federal

fishing regulations which may inhibit or prevent that vessel from

performing any activity necessary for project operations such as

regulations prohibiting the use of non-conforming fishing gear or the

possession of scallops when not fishing under a DAS allocation. Vessels

issued an EFP are exempt from DAS requirements for any trip transiting

to and from, and conducted exclusively within, the Sea Scallop

Experimental Area, and for the portion of any trip used to transport

sea scallops from the fishing grounds to the area. The EFP also may

allocate and authorize the use of up to 2 additional DAS for the

collection of sea scallops from the fishing grounds for transportation

to the Sea Scallop Experimental Area. Vessels issued an EFP must comply

with all conditions and restrictions specified in the permit.

Comments and Responses

Written comments were received from one individual.

Comment: The commenter expressed concern about lobster gear that is

typically fished in a portion of the Sea Scallop Experimental Area for

about 6 months per year, and whether the project managers will be able

to work around lobster gear during the research project period.

Response: The Regional Administrator will issue AGPs to lobster pot

vessels interested in fishing within the Sea Scallop Experimental Area.

Lobster fishers may be required to remove their gear periodically or

may be required to set fishing gear a certain minimum distance from

research project activities. The AGP program provides a means by which

to communicate the dates and specific locations of project equipment

and activities to those who are fishing in the area. At least 2 weeks

notice will be provided prior to activities that would require removal

of fishing gear. A minimum of 4 weeks notice will be provided in the

event that more than 25 percent of the closed area is involved. NMFS

will continue to stress to the principal NOAA grant investigators for

the project that communication between fishers and project managers be

maintained for the duration of the project to prevent conflicts.

Changes From the Proposed Rule

Changes were made to Sec. 648.56(a) to clarify which permits are

required for vessels participating in the sea scallop aquaculture

research project or fishing within the Sea Scallop Experimental Area,

but not participating in the project. Editorial simplifications and

clarifications were made throughout the rule.

Classification

The Regional Administrator determined that this final rule is

necessary for the conservation and management of the Atlantic sea

scallop fishery and that it is consistent with the Magnuson-Stevens Act

Fishery Conservation and Management Act (Magnuson-Stevens Act) and

other applicable law.

[[Page 1831]]

This final rule has been determined to be significant for the

purposes of E.O. 12866. The action raises a novel legal or policy issue

arising out of a legal mandate under the Magnuson-Stevens Act, in that

it may be viewed as setting a precedent for establishing other

aquaculture efforts in the exclusive economic zone.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration when this rule was proposed that it

would not have a significant economic impact on a substantial number of

small entities. The comment received and the changes made to the rule

do not change the basis for that certification. Accordingly, a

regulatory flexibility analysis was not prepared.

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the Paperwork Reduction Act (PRA) unless that collection of information

displays a currently valid OMB control number.

This rule contains one new collection-of-information requirement

subject to the PRA. This collection-of-information requirement has been

approved by OMB, and the OMB control number and public reporting burden

are listed as follows: Sea Scallop Experimental Area authorization

request, (0.5 hours/response) under OMB Control Number 0648-0321.

The estimated response time includes the time needed for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection-of-information. Send comments regarding this burden

estimate, or any other aspect of the collection-of-information to NMFS

and OMB (see ADDRESSES).

NMFS reinitiated consultation on the Atlantic Sea Scallop FMP on

October 7, 1996. This consultation will consider new information

concerning the status of the northern right whale. The Regional

Administrator has determined that the implementation of Amendment 5,

pending completion of that consultation, will not result in any

irreversible or irretrievable commitment of resources that would have

the effect of foreclosing the formulation or implementation of any

reasonable and prudent alternative measures.

List of Subjects

15 CFR Part 909

Reporting and recordkeeping requirements.

50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: January 8, 1997.

Charles Karnella,

Acting Deputy Assistant Administrator for Fisheries, National Marine

Fisheries Service.

For the reasons set out in the preamble, 15 CFR chapter IX and 50

CFR chapter VI are amended as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE

PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

1. The authority citation for part 902 continues to read as

follows:

Authority: 44 U.S.C. 3501 et seq.

2. In Sec. 902.1, in paragraph (b), the table is amended by adding,

in numerical order, the following entry to read as follows:

Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) * * *

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Current OMB

control

CFR part or section where the information collection number (all

requirement is located numbers

begin with

0648-)

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* * * * * * *

50 CFR

* * * * *

648.56..................................................... -0321

* * * * *

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50 CFR CHAPTER VI

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

3. The authority citation for part 648 continues to read as

follows:

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

4. In Sec. 648.14, paragraph (a)(96) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(96 ) Fish within or transit, with other than handgear, the Scallop

Experimental Area defined in Sec. 648.56(a)(1), except as provided for

in Sec. 648.56 (a)(2) and (a)(3).

* * * * *

5. Section 648.56 is added to subpart D to read as follows:

Sec. 648.56 Scallop research project.

(a)(1) Scallop experimental area. From February 13, 1997 through

July 15, 1998, no fishing vessel or person on a fishing vessel may fish

within or transit, with other than handgear, the area known as the Sea

Scallop Experimental Area, as defined by straight lines connecting the

following points in the order stated, except as provided for in

paragraphs (a)(2) and (a)(3) of this section:

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Point Latitude Longitude

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1.............................. 41 deg.11.8' N. 70 deg.50' W.

2.............................. 41 deg.11.8' N. 70 deg.46' W.

3.............................. 41 deg.08.8' N. 70 deg.46' W.

4.............................. 41 deg.08.8' N. 70 deg.50' W.

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(2) Exemptions. A fishing vessel and persons on a fishing vessel

may fish within or transit the Sea Scallop Experimental Area:

(i) With pot gear and traps, longline gear, or any other gear,

provided such pot gear and traps, longline gear, or other gear is

determined by the Regional Director as not likely to interfere with the

sea scallop aquaculture research project in the Sea Scallop

Experimental Area, and provided such vessel has been issued an allowed

gear permit (AGP) under paragraph (a)(4)(i) of this section; or

(ii) If such vessel has been issued an experimental fishing permit

(EFP) under paragraph (a)(4)(i) of this section to participate in the

sea scallop aquaculture research project in the Sea Scallop

Experimental Area.

(3) Transiting. Vessels that are not exempted from the prohibition

against fishing within or transiting the Sea Scallop Experimental Area

under paragraph (a)(2) of this section may transit such area provided

their gear is stowed in accordance with the provisions of

Sec. 648.81(e).

(4) Allowed gear and experimental fishing permits--(i) Allowed gear

permits. The Regional Director may issue an AGP to any vessel to fish

within and transit the Sea Scallop Experimental Area with the gear

specified in paragraphs (a)(2)(i) of this section. Vessels issued an

AGP may be required to move their gear within, or remove their gear

from, the area upon notification by the Regional Director and must

comply with any additional conditions and restrictions specified in the

permit.

[[Page 1832]]

(ii) Experimental fishing permits. The Regional Director may issue

an EFP under the provisions of Sec. 648.12, if consistent with the

provisions of paragraph (a)(4)(iv) of this section, to any vessel

participating in the sea scallop aquaculture research project to fish

within and transit the Sea Scallop Experimental Area. Such an EFP may

exempt such vessel from specific Federal fishing regulations which may

inhibit or prevent that vessel from performing any activity necessary

for project operations such as regulations prohibiting the use of non-

conforming fishing gear or the possession of scallops when not fishing

under a DAS allocation. Vessels issued an EFP shall be exempted from

DAS requirements as specified in the FMP for any trip in which the

vessel engages exclusively in project activities such as bottom

surveying, biological sampling, or use of non-regulated hand gear

outside the Sea Scallop Experimental Area. The EFP also may allocate

and authorize the use of up to 2 additional DAS for project activities

relating to scallop seeding. Vessels issued an EFP must comply with all

conditions and restrictions specified in the permit.

(iii) A vessel with an AGP or EFP must carry the permit on board

the vessel while fishing in the Sea Scallop Experimental Area or

participating in the scallop aquaculture project.

(iv) The Regional Director may not issue an AGP or EFP unless he

determines that issuance is consistent with the objectives of the FMP,

the provisions of the Magnuson-Stevens Act, and other applicable law

and will not:

(A) Have a detrimental effect on the sea scallop resource and

fishery;

(B) Create significant enforcement problems; or

(C) Have a detrimental effect on the scallop project.

(5) Application. An application for an AGP or EFP must be in

writing to the Regional Director and be submitted at least 30 days

before the desired effective date of the permit. The application must

include, but is not limited to, the following information:

(i) The date of application.

(ii) The applicant's name, current address, telephone number and

fax number if applicable.

(iii) The current vessel name, owner address, and telephone number.

(iv) The vessel's Federal permit number.

(v) The USCG documentation number.

(vi) The species (target and incidental) expected to be harvested.

(vii) The gear type, size, buoy colors, trap identification

markings and amount of gear that will be used; and exact time(s)

fishing will take place in the Sea Scallop Experimental Area.

(viii) The signature of the applicant.

(b) [Reserved]

[FR Doc. 97-872 Filed 1-13-97; 8:45 am]

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